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EXHIBIT 10.55
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MASTER SERVICES AGREEMENT
between
INSpire Insurance Solutions, Inc.
and
Each Millers Entity Executing a Service Addendum
Dated as of [12-30], 1999
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THIS AGREEMENT IS SUBJECT TO ARBITRATION UNDER
THE RULES AND REGULATIONS OF THE AMERICAN
ARBITRATION ASSOCIATION AS PROVIDED
IN ARTICLE IX HEREOF.
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TABLE OF CONTENTS
Page
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ARTICLE I TERMS OF ENGAGEMENT FOR SERVICES ..................................... 1
Section 1.1 Terms and Conditions; Service Addendum ............................. 1
Section 1.2 Engagement to Provide the Addendum Services ........................ 7
Section 1.3 Exclusivity of the Addendum Services ............................... 7
Section 1.4 Addendum Service Fees; Adjustment of Addendum Service Fees ......... 8
Section 1.5 Taxes .............................................................. 9
Section 1.6 Right of First Refusal for Additional Services .................... 10
ARTICLE II REPRESENTATIONS AND WARRANTIES OF EACH CUSTOMER ..................... 11
Section 2.1 Corporate Status; Qualification ................................... 11
Section 2.2 Corporate Power and Authority ..................................... 11
Section 2.3 Enforceability .................................................... 11
Section 2.4 No Conflict; Consents ............................................. 11
Section 2.5 Infringement ...................................................... 11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF INSPIRE ........................... 11
Section 3.1 Corporate Status; Qualification ................................... 12
Section 3.2 Corporate Power and Authority ..................................... 12
Section 3.3 Enforceability .................................................... 12
Section 3.4 No Conflict; Consents ............................................. 12
Section 3.5 Year 2000 ......................................................... 12
Section 3.6 Infringement ...................................................... 12
ARTICLE IV PERFORMANCE OF THE ADDENDUM SERVICES ................................ 12
Section 4.1 Designated Representatives ........................................ 12
Section 4.2 Evaluation and Review Process ..................................... 13
Section 4.3 Access to Records and Facilities .................................. 13
Section 4.4 Ownership of Property ............................................. 13
Section 4.5 Customer's Performance Obligations and Acknowledgements ........... 14
Section 4.6 Maintenance of Documents and Files ................................ 14
Section 4.7 Ultimate Discretion ............................................... 14
Section 4.8 Mail Received ..................................................... 14
Section 4.9 Service Error ..................................................... 14
Section 4.10 Year 2000 Compliance .............................................. 15
ARTICLE V CONFIDENTIALITY ..................................................... 15
Section 5.1 Nondisclosure ..................................................... 15
Section 5.2 No Solicitation or Hiring ......................................... 15
Section 5.3 Required Disclosure ............................................... 16
Section 5.4 Remedies for Breach ............................................... 16
Section 5.5 Survival .......................................................... 17
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ARTICLE VI TRADE SECRET AND PROPRIETARY RIGHTS ................................ 16
Section 6.1 No Rights to Software ........................................... 16
Section 6.2 Nondisclosure ................................................... 16
Section 6.3 Survival ........................................................ 17
ARTICLE VII TERMINATION ........................................................ 17
Section 7.1 Termination of Agreement ........................................ 17
Section 7.2 Procedure Upon Expiration and Termination ....................... 17
ARTICLE VIII REMEDIES AND LIMITATION OF LIABILITY ............................... 18
Section 8.1 Indemnification of the Parties .................................. 18
Section 8.2 Liability Limitation ............................................ 19
Section 8.3 Notice of Claim ................................................. 20
ARTICLE IX ARBITRATION ........................................................ 20
Section 9.1 Conditions Precedent ............................................ 20
Section 9.2 Choosing the Arbitrators ........................................ 20
Section 9.3 Procedure ....................................................... 20
Section 9.4 Costs ........................................................... 21
ARTICLE X MISCELLANEOUS ...................................................... 21
Section 10.1 Amendment ....................................................... 21
Section 10.2 Counterparts .................................................... 21
Section 10.3 Entire Agreement ................................................ 21
Section 10.4 Expenses ........................................................ 21
Section 10.5 Governing Law ................................................... 21
Section 10.6 No Assignment ................................................... 21
Section 10.7 No Third Party Beneficiaries .................................... 21
Section 10.8 Notices ......................................................... 21
Section 10.9 Public Announcements ............................................ 22
Section 10.10 Representation by Legal Counsel ................................. 22
Section 10.11 Severability .................................................... 22
Section 10.12 Successors ...................................................... 22
Section 10.13 Time of the Essence ............................................. 22
Section 10.14 Waiver .......................................................... 23
Section 10.15 Force Majeure ................................................... 23
Section 10.16 Attorney's Fees ................................................. 23
Section 10.17 Relationship of the Parties ..................................... 23
Section 10.18 Drafting ........................................................ 23
Section 10.19 Headings ........................................................ 23
APPENDIX A Definitions and Interpretations
SCHEDULE 1.4(e) Service Levels
EXHIBIT 1.1 Form of Service Addendum
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MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (together with Appendix A, Exhibit 1.1
and each Service Addendum executed on or after the date hereof, this
"AGREEMENT"), dated as of [12-30], 1999 (the "SIGNING DATE"), is between
INSpire Insurance Solutions, Inc., a Texas corporation ("INSpire"), and each
Millers entity that executes a Service Addendum on or after the Signing Date
(each a "CUSTOMER"). INSpire and each Customer are sometimes collectively
referred to as the "PARTIES," and individually referred to as a "PARTY."
PRELIMINARY STATEMENTS
A. Each Customer desires INSpire to provide certain policy, claims and
other administration services to Customer, and INSpire desires to provide such
services to each Customer.
B. Each Party is willing to provide for such services in accordance
with the terms and conditions set forth in this Agreement.
C. Capitalized terms used in this Agreement are defined or indexed in
Appendix A. Appendix A is incorporated into this Agreement by this reference.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the preliminary statements and the
mutual agreements, covenants, representations and warranties set forth in this
Agreement and for other good, valid and binding consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
TERMS OF ENGAGEMENT FOR SERVICES
Section 1.1 Terms and Conditions; Service Addendum.
(a) General Applicability of this Agreement. This Agreement
sets forth the terms and conditions applicable to each Service Addendum. A
Party's execution of a Service Addendum will be deemed to be such Party's (i)
acknowledgement and acceptance of the terms and conditions set forth in this
Agreement and (ii) execution and delivery of this Agreement. If a conflict
exists between the terms and conditions of this Agreement and any Service
Addendum, then the terms and conditions set forth in such Service Addendum will
prevail.
(b) Service Addendum. Each Service Addendum will be in
substantially the form attached to this Agreement as Exhibit 1.1. Each Service
Addendum will specify, among other things, (i) the date on which such Service
Addendum was executed, (ii) the parties to such Service Addendum, (iii) the
services to be provided by INSpire pursuant to such Service Addendum (the
"ADDENDUM SERVICES"), (iv) the time period during which INSpire will perform the
Addendum Services (the "ADDENDUM TERM"), (v) the fees payable by Customer to
INSpire in consideration of the Addendum Services (the "ADDENDUM SERVICE FEES")
and (vi) any other
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terms and conditions applicable to such Service Addendum. Each Service Addendum
will constitute a separate, distinct and independent agreement and contractual
obligation of the Parties executing such Service Addendum.
(c) Policy Administration Services. If policy services are to
be provided pursuant to a particular Service Addendum, then, unless otherwise
specifically noted in such Service Addendum, that Service Addendum will be
deemed to require the policy administration services set forth in this
subsection. Specifically, INSpire will:
(i) provide the technical and administrative
services to support the acquisition of policies;
(ii) provide the necessary functions to satisfy all
applicable insurance department instructions for the specific services
provided under this Agreement;
(iii) develop expert system rules to incorporate
Customer's desired risk profiles. Each Party acknowledges and
understands that INSpire will not be defining any underwriting
guidelines for any Customer;
(iv) issue Customer's policies, process renewals,
cancellations, and reinstatements. INSpire will use such non-renewal or
cancellation notices as may be required by policy wording or regulatory
authority. Customer will advise INSpire of appropriate wording;
(v) process invoices for additional premiums and
renewal bills;
(vi) process refunds for return premiums;
(vii) handle inquiries from Producers, insureds,
premium finance and mortgage companies and other relevant third parties
(e.g. mortgagees);
(viii) provide data processing support for policy
processing, including imaging of documents, data entry, editing, expert
system underwriting, electronic workflow, rating, coding, reporting,
accounting, and maintenance of policy records;
(ix) insure that personnel assigned to support
Customer are appropriately licensed and trained and are provided with
the necessary space, furniture, fixtures, electrical power, computer
connections, telephones, and other required assets to support the
services;
(x) mail all necessary policy documents and
promotional material/marketing items at Customer's expense to relevant
parties;
(xi) support Customer billing through direct ▇▇▇▇;
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(xii) provide accounting services for premiums by receiving
and distributing premiums, maintaining trust accounts, agency accounts and
paying Producer commissions, in accordance with Customer's obligations
including, but not limited to:
(A) Premium Bank Account. Promptly upon receipt thereof,
INSpire will deposit all premiums and other funds collected
for business written by or on behalf of Customer into a
deposit-only bank account to be established and controlled by
Customer. INSpire will be deemed to have a fiduciary
responsibility to Customer with regard to such funds of
Customer;
(B) Operating Account. Customer will establish and fund a
separate bank account which INSpire may draw upon to pay
return premium due policyholders and commissions due Producers
(hereinafter called the "Operating Account"), INSpire will
reconcile all disbursements from the Operating Account each
month by type and amount of disbursement (e.g., return
premium, commissions due to or from Producers) and furnish a
copy to Customer;
(C) Monthly Reports. All month-end management reports in
printed format will be provided to Customer within 3 business
days after the end of each month. Further, a cash journal will
be provided to Customer within 3 business days after the end
of each month and all bank reconciliations will be provided to
Customer within 20 business days after the end of each month
with no material reconciling items carried over from the prior
month. All accounting end of the month electronic system
downloads will be transferred to Customer within 2 business
days after the end of each month;
(D) Required Reports. Reports with the information and
statistical data required by Insurance Services Office and
necessary for Customer to prepare any reports required by the
National Association of Insurance Commissioners will be
provided to Customer as necessary or required to prepare such
reports.
(xiii) will calculate and pay commissions to the producer on
Customer's behalf, or will invoice and receive the return of commission from the
producer on return premium transactions and will prepare and mail a Federal 1099
tax statement for each producer paid a commission during a tax year;
(xiv) will handle non underwriting questions from
policyholders, insured and producers concerning policy and/or endorsement
issuance or billing;
(xv) will provide policy, premium and payment information and
on-line access to the policy master file;
(xvi) will establish and maintain written operational
procedures to handle all business related to the policies;
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(xvii) will charge Customer for all agreed upon
additional reports or modifications as requested in writing by Customer
on a time and materials basis utilizing the appropriate mix of service
personnel required to perform the modifications or produce new reports.
Rates for such personnel are listed in the applicable Service Addendum;
(xviii) will maintain a disaster recovery plan to be
implemented in the event of an occurrence of a catastrophic event; and
(xix) Positive Pay will be established for all
business currently being serviced by INSpire for all the entities
executing this Agreement as it becomes available for programs, but no
later than 180 days after the execution of this agreement. Future
business serviced by INSpire under the terms of a Service Addendum will
have Positive Pay established on the Addendum Effective Date of such
Service Addendum.
(d) Claims Administration Services. If claims services are to
be provided pursuant to a particular Service Addendum, then, unless otherwise
specifically noted in such Service Addendum, that Service Addendum will be
deemed to require the claims administration services set forth in this
subsection. Specifically, INSpire will:
(i) investigate, evaluate, and handle each claim
reported according to applicable state law, the terms and conditions of
the policy and any written standards provided by Customer using
appropriately trained and licensed personnel. Customer grants INSpire
the authority to provide the foregoing claims administration services;
provided, however that INSpire will not have any authority to alter or
discharge any policy or waive any policy provision or condition.
(ii) establish a claims operation center that will
function as a control unit;
(iii) verify coverage on all cases;
(iv) administer the appraisal/assessment process
using a combination of staff, independent appraisers and direct repair
facilities reasonably acceptable to Customer;
(v) perform all reasonable and necessary
administrative and clerical work in connection with claim or loss
reports;
(vi) establish and maintain a claim file for each
reported claim or loss. The claim file will have a daily activity log,
which will be available for review at any and all reasonable times by
Customer subject to the provisions of the Agreement;
(vii) record and report each claim promptly to
Customer with a recommended reserve; and will consult with, and seek
consent from, Customer with respect to any of the following:
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(A) any loss or claim resulting in legal action being
instituted against Customer's insured, INSpire or Customer;
(B) any loss or claim causing a complaint to be
filed with any regulatory authority;
(C) any inquiry from any regulatory authority,
including but not limited to any insurance department, with respect to
any claim or claims, even if no complaint causes such inquiry;
(D) any claim in which INSpire deems appropriate to
rescind policy coverage for material misrepresentation;
(E) any claim involving an allegation of extra
contractual obligations, or bad faith claim handling;
(F) any claim involving a fatality, major amputation,
spinal cord or brain damage, loss of eyesight, extensive ▇▇▇▇▇,
poisoning, or multiple fractures;
(G) any claim that Customer desires to be kept
advised of during the life of the claim; or
(H) any claim where there has been a demand for
policy limits and INSpire does not evaluate the value of the claim to
include settlement at that amount;
(I) any claim involving asbestos, pollution, toxic
waste and lead or paint poisoning;
(J) potential subrogation in excess of $40,000;
(K) any claim which is very likely to result in the
commencement of litigation within 30 days;
(L) any claim involving pharmaceuticals, communicable
diseases, rape, child molestation or multiple claim food poisoning;
(viii) provide monthly and year-to-date reports on all claims
activity including new claims reported, claims pending, claims closed and
reserve changes. The reports will include:
(A) information and statistical data (1) required by
Insurance Services Office, (2) necessary for Customer to prepare any
reports required by National Association of Insurance Commissioners, or
(3) other reports reasonably requested by Customer;
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(B) loss runs with paid claims and outstanding
reserves remaining at the end of each monthly report period,
categorized as indemnity, medical payment, loss adjustment expense
separated by other expense and legal expense (to the extent that
Customer properly inputs the necessary data), plus any other
information required by the Annual Statement instructions or state
regulatory agencies;
(C) check registers;
(D) reports needed by Customer for the filing of
reinsurance claims or quarterly reinsurance updates;
(ix) perform a periodic review at mutually agreed upon
intervals of outstanding claim reserves, and recommend changes to outstanding
claim reserves;
(x) prepare checks and vouchers, compromises, releases,
agreements and any other documents reasonably necessary to finalize and close
claims. INSpire will issue payments of claims and allocate loss adjustment
expenses only within the guidelines as authorized by Customer. For purposes of
settling claims and paying claim-related expenses, Customer has agreed to
establish, maintain and fund a separate bank account from which INSpire may draw
against as hereinafter set forth (the "CLAIM ACCOUNT"). Customer agrees to
deposit additional funds into the Claim Account on a weekly basis if necessary
to maintain it at a level sufficient to allow INSpire to carry out its
obligations under this Agreement. INSpire will regularly provide information and
estimates to Customer to enable Customer to maintain the Claim Account at an
appropriate level. Customer will provide to INSpire such information as is
necessary for INSpire to draw checks on the Claim Account. INSpire hereby
guarantees that any check it prepares will be signed and issued only in
accordance with the procedures set forth below:
CHECK AMOUNT NUMBER OF TYPE OF SIGNATURE AUTHORIZED
SIGNATURES SIGNATORY
REQUIRED
0.01 - $1,999.99 1 1 Facsimile INSpire
$2,000.00 - $9,999.99 2 1 Facsimile & 1 Original INSpire
$10,000.00 - $19,999.99 2 2 Original signatures INSpire
$20,000+ 2 2 Original signatures 1 INSpire,
1 Customer
Facsimile signatures can be replaced with original signatures. Original
signatures may not be replaced with facsimile signatures. Exceptions will be
submitted to INSpire in writing by Customer.
INSpire will promptly deposit any monies collected through salvage and
subrogation to the Claim Account, and maintain a register of all such
collections and deposits (the
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"SALVAGE AND SUBROGATION REGISTER"). The Salvage and Subrogation Register will
include, but will not be limited to, the following information: date of deposit,
date of receipt of funds, the claim number, the payer, and the amount and
purpose of such payment. (The "CLAIM REGISTER" will include, but will not be
limited to, the following information: claim number; date of check; payee;
amount; and check number.) INSpire will reconcile the Claim Register and the
Salvage and Subrogation Register to the Claim Account on a monthly basis;
(xi) maintain service standards and claims documentation in
accordance with standards set by Customer and agreed to by INSpire. INSpire will
be in compliance with all state regulations dealing with the adjusting and
handling of claims. INSpire will periodically review the development of the
claims handling procedure with Customer to identify problems and recommend
corrective action;
(xii) pursue and prosecute diligently Customer's salvage and
subrogation rights relating to any losses. INSpire will use reasonable efforts
to collect and deposit funds arising from the enforcement of such rights into
the Claim Account. INSpire will report monthly on salvage/subrogation receipts;
(xiii) provide Special Investigative Services in accordance
with guidelines agreed to by Customer on a time and expense basis;
(xiv) provide Customer claim information to prepare reports
(A) required by the Internal Revenue Service, and (B) other reports reasonably
requested by Customer;
(xv) will maintain a disaster recovery plan to be implemented
in the event of an occurrence of a catastrophic event;
(xvi) upon (A) receipt by INSpire of a demand for arbitration
or notice that litigation has been filed concerning a claim or feature or (B) a
determination by Customer that it is necessary to commence litigation of a
claim, feature, or salvage or subrogation claim, INSpire will promptly provide
the Designated Representative with written notice of Customer's option to assume
all further responsibility for the administration of the disputed claim or
feature; and, in the event Customer elects within ten (10) days to assume such
responsibility for the disputed claim or feature, INSpire will promptly transfer
to Customer such disputed claim or feature, and will promptly deliver to
Customer the original claim file, notes, photographs and any Special
Investigation Unit files, which material will be returned to INSpire at the
conclusion of the arbitration or litigation. Notwithstanding Customer's election
with respect to the Party responsible for the administration of any disputed
claim or feature, Customer will be responsible for all expenses, including
attorneys' fees, incurred after receipt by INSpire of a demand for arbitration
or after receipt by INSpire of notice that litigation has been filed concerning
a claim or feature; and
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(xvii) Positive Pay will be established for all
business currently being serviced by INSpire for all the entities
executing this Agreement as it becomes available for programs, but no
later than 180 days after the execution of this agreement. Future
business serviced by INSpire under the terms of a Service Addendum
will have Positive Pay established on the Addendum Effective Date of
such Service Addendum.
Section 1.2 Engagement to Provide the Addendum Services. Each Customer
engages INSpire to provide the Addendum Services set forth in each Service
Addendum to which such Customer is a Party, and INSpire will provide the
Addendum Services to such Customer, each upon the terms and conditions set forth
in this Agreement.
Section 1.3 Exclusivity of the Addendum Services. During each Addendum
Term, INSpire will be the sole and exclusive provider of the Addendum Services
to Customer (other than Customer's rendering an incidental amount of the
Addendum Services on its own behalf, which will not in any way affect the amount
of Addendum Service Fees due to INSpire). In furtherance of the immediately
preceding sentence, Customer acknowledges that during each Addendum Term (a)
INSpire will have the sole and exclusive right to provide the Addendum Services
to Customer, (b) Customer will not use or engage any other person or entity
(including Customer or an Affiliate of Customer) to render the Addendum
Services, (c) Customer will not take any actions or do any things the intent or
effect of which is to circumvent or affect adversely the provisions of this
Section and (d) INSpire will have no restrictions on its right to market to, and
perform services for, the property and casualty insurance industry which are
similar to the Addendum Services provided pursuant to this Agreement.
Section 1.4 Addendum Service Fees; Adjustment and Discount of Addendum
Service Fees.
(a) Monthly Addendum Service Fees. During each Addendum Term,
Customer will pay to INSpire for the performance of the Addendum Services the
monthly Addendum Service Fees set forth on the applicable Service Addendum.
Customer will pay to INSpire the Addendum Service Fees within 15 days of
Customer's receipt of INSpire's invoice for the Addendum Services performed
during the previous calendar month. Customer's payment of the Addendum Service
Fees will not be deemed to be Customer's acceptance regarding the amount or
calculation of such Addendum Service Fees, and each Party agrees to resolve in
good faith any dispute regarding the amount or calculation of Addendum Service
Fees.
(b) Negotiated Adjustment of Addendum Service Fees. Each Party
agrees to negotiate in good faith for an adjustment to the Addendum Service Fees
in the event (i) of any statutory, regulatory or judicial change or other
circumstance not within the control of any Party that results in a material
increase or decrease in the Addendum Services to be provided pursuant to the
applicable Service Addendum or (ii) the Parties agree to a material increase or
decrease in the Addendum Services to be provided pursuant to the applicable
Service Addendum.
(c) Discount of Addendum Service Fees. The amount of the
monthly Addendum Service Fees due and payable to INSpire will be reduced when
such monthly Addendum Service Fees reach certain levels, as set forth below. The
Parties agree that the
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following discounts will be based on and apply to the aggregate monthly amount
of Addendum Service Fees due to INSpire as a result of performing the Addendum
Services for all Service Addendums attached hereto. In calculating the aggregate
monthly amount of Addendum Service Fees, the service fees paid to INSpire
pursuant to the Millers American Group/INSpire Service Agreement dated September
1, 1999 will also be used to calculate the discount pursuant to this section.
Aggregate Monthly
Addendum Service Fees
(excluding Catastrophe Fees) Discount
---------------------------- ----------------------------------------
up to 2,125,000 $0
from 2,125,001 to 2,375,000 $0 + 10% of amount over $2,125,000
from 2,375,001 to 2,625,000 $25,000 + 12% of amount over $2,375,000
from 2,625,001 to 2,875,000 $55,000 + 14% of amount over $2,625,000
from 2,875,001 to 3,125,000 $90,000 + 16% of amount over $2,875,000
from 3,125,001 to 3,375,000 $130,000 + 18% of amount over $3,125,000
from 3,375,001 to 3,625,000 $175,000 + 19% of amount over $3,375,000
over 3,625,000 $222,500 + 20% of amount over $3,625,000
(d) Benchmark Adjustment. After the completion of the fifth
Contract Year of each Service Addendum, the then-effective Addendum Service Fees
applicable to such Service Addendum will be adjusted, if at all, through the use
of an independent third party benchmarking services. Prior to the completion of
the fifth Contract Year of each Service Addendum, the Parties will mutually
agree on the scope of, and the methodology to be used in, the benchmarking
process. The fees and services charged by the party conducting the benchmark
service will be borne equally by the parties to such Service Addendum. If the
benchmark process demonstrates that the quality of the Addendum Services
received by Customer in relation to the Addendum Service Fees are not in the
upper half of the comparison group used in the benchmark process, then INSpire
will promptly adopt a plan (including corrective action and/or a reduction in
the Addendum Service Fees) that will remedy any deficiencies identified in the
benchmark process.
(e) Penalty/Award Payments. From (i) the later to occur of an
Addendum Effective Date or the termination of an Addendum Implementation Period
(if applicable), until (ii) the earlier of the termination of that Service
Addendum or its Addendum Expiration Date, INSpire will achieve each of those
service levels set forth on Schedule 1.4(e) that are applicable to the Addendum
Services set forth on the applicable Service Addendum (the "SERVICE LEVELS"). If
INSpire fails to achieve or exceeds the Service Levels with the frequency or in
the manner set forth on Schedule 1.4(e), then INSpire will be responsible for
the penalty payments, or entitled to the award payments, as the case may be,
specified on Schedule 1.4(e). After the Parties have reviewed and agreed upon
the content of the Monthly Service Report, the penalty payments and award
payments will be detailed on INSpire's monthly invoice, and will be subject to
the same payment terms specified in subsection (a) above. Each Party
acknowledges that the payments specified on Schedule 1.4(e) will not subject to
the limitations set forth in Section 8.2(a).
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(f) Adjustment for Changes in the Consumer Price Index. For
purposes of calculating the Addendum Services Fees payable with respect to each
Service Addendum, all fixed dollar amounts set forth in Paragraph 5 (or the
applicable Addendum Service Fee paragraph of such Service Addendum) of each
Service Addendum will be subject to increase or decrease at the beginning of
each Contract Year equal to the percentage change in the Consumer Price
Index--All Urban User (▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇) for the latest twelve month period
ending on the date of each anniversary of the Addendum Effective Date.
Section 1.5 Taxes. Customer will pay all tariffs and taxes, however
designated or levied, that are applicable to any Addendum Services and/or any
Addendum Service Fees. Such tariffs and taxes include state and local sales and
use taxes and any other tariff or tax based on the Addendum Services performed
or the payment of the Addendum Service Fees. Notwithstanding the foregoing,
Customer will not be responsible for, and INSpire will pay (a) any franchise or
income taxes based upon the income of INSpire and (b) any personal property or
similar taxes based upon the personal or real property owned or leased by
INSpire. All Parties will take all reasonable actions necessary to minimize and
mitigate any tariffs or taxes, however designated, that may be levied on or
after the Signing Date and will confer with the other Party prior to making any
filing on or behalf of such Party.
Section 1.6 Right of First Refusal for Additional Services.
(a) Notice of Bid for Additional Services. Subject to Section
1.3, if, at any time and from time to time during an Addendum Term, any Customer
elects to solicit a bid from third parties (a "BID") to perform any services
similar to the Addendum Services set forth in the Service Addendums (such
additional services, the "ADDITIONAL SERVICES"), such Customer will provide to
INSpire all the information necessary for INSpire to submit a Bid on a timely
basis for such Additional Services.
(b) Grant of Right of First Refusal. If such Customer decides
to accept any bona fide Bid other than INSpire's Bid, then, prior to such
Customer's acceptance of such competing bona fide Bid, such Customer will
provide to INSpire written notice setting forth the terms of such competing Bid,
including the price, service levels, technology to be employed and time table to
implement the Additional Services (the terms of such competing Bid, the
"COMPETING TERMS"). At any time during the fifteen (15) day period immediately
following INSpire's receipt of the notice setting forth the Competing Terms,
INSpire will have the exclusive right, but not the obligation, to amend its Bid
to meet or exceed the Competing Terms (or terms as similar as reasonably
possible).
(c) Exercise of the Right of First Refusal. INSpire will
exercise its right of first refusal granted pursuant to this Section, if at all,
by delivering written notice thereof ("EXERCISE NOTICE") to such Customer within
the fifteen (15) day period specified above. If INSpire timely delivers the
Exercise Notice, then INSpire will implement the Additional Services on terms
substantially the same as set forth in INSpire's amended Bid.
(d) Failure to Deliver an Exercise Notice. If INSpire fails to
timely deliver the Exercise Notice or, having timely delivered such Exercise
Notice, fails to implement the
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Additional Services within the time period specified in INSpire's amended Bid,
then such Customer, at any time within one hundred thirty-five (135) days after
INSpire's failure to take such appropriate action, may accept the competing Bid
on the Competing Terms. If Customer does not accept the competing Bid on the
Competing Terms within such one hundred thirty-five (135) day period, then such
Customer will again be required to comply with the provisions of this Section.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF EACH CUSTOMER
Each Customer represents and warrants that the statements contained in
this Article are correct and complete as of the Signing Date and as of the
Addendum Effective Date, except in each case as specifically stated:
Section 2.1 Corporate Status; Qualification. Customer is an entity
duly organized, validly existing and in good standing under the laws of the
state of its formation. Customer is duly qualified and in good standing as a
foreign entity under the laws of each jurisdiction where qualification is
required, except where the lack of such qualification would not have a Material
Adverse Effect.
Section 2.2 Corporate Power and Authority. Customer has the requisite
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder, to consummate the transactions contemplated hereby.
Customer has taken all requisite action necessary to authorize the execution and
delivery of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
Section 2.3 Enforceability. This Agreement has been duly executed and
delivered by Customer and constitutes a legal, valid and binding obligation of
Customer enforceable against it in accordance with the terms of this Agreement,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
Section 2.4 No Conflict; Consents. The execution, delivery and
performance by Customer of this Agreement will not (a) violate any code,
statute, law, rule, regulation, judgment, decree or injunction of any
governmental authority ("LAW"), (b) violate the articles or certificate of
incorporation or the bylaws of Customer, (c) violate any consent decree, decree,
injunction, judgment, order or writ of any arbitrator or governmental authority
("ORDER") to which Customer is a party or by which any of its assets are bound,
(d) breach any material contract, real property lease or personal property lease
to which Customer is a party, (e) result in the creation of an encumbrance of
any kind on Customer or any of its assets or (f) require any consent or approval
from any person, entity or governmental authority.
Section 2.5 Infringement. During the Term, Customer's Owned Software
and the use by Customer of its Systems as contemplated by this Agreement does
not and will not violate or
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infringe, or constitute an infringement or misappropriation of, any patent,
copyright, trademark, trade secret or other proprietary or contractual rights of
any third party.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF INSpire
INSpire represents and warrants that the statements contained in this
Article are correct and complete as of the Signing Date and as of the Addendum
Effective Date, except in each case as specifically stated:
Section 3.1 Corporate Status; Qualification. INSpire is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas. INSpire is duly qualified and in good standing as a foreign
entity under the laws of each jurisdiction where qualification is required,
except where the lack of such qualification would not have a Material Adverse
Effect.
Section 3.2 Corporate Power and Authority. INSpire has the corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
INSpire has taken all corporate action necessary to authorize its execution and
delivery of this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
Section 3.3 Enforceability. This Agreement has been duly executed and
delivered by INSpire and constitutes a legal, valid and binding obligation of
INSpire enforceable against it in accordance with the terms of this Agreement,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
Section 3.4 No Conflict; Consents. The execution, delivery and
performance by INSpire of this Agreement will not (a) violate any Law, (b)
violate the articles of incorporation or the bylaws of INSpire, (c) violate any
Order to which INSpire is a party or by which any of its assets are bound, (d)
breach any material contract, real property lease or personal property lease to
which INSpire is a party, (e) result in the creation of an encumbrance of any
kind on INSpire or any of its assets or (f) require any consent or approval from
any person, entity or governmental authority.
Section 3.5 Year 2000. All of INSpire's Systems are and will continue
to be Year 2000 Compliant.
Section 3.6 Infringement. During the Term, INSpire's Owned Software
and the use by INSpire of its Systems as contemplated by this Agreement does not
and will not violate or infringe, or constitute an infringement or
misappropriation of, any patent, copyright, trademark, trade secret or other
proprietary or contractual rights of any third party.
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ARTICLE IV.
PERFORMANCE OF THE ADDENDUM SERVICES
Section 4.1 Designated Representatives. Each Party will designate a
person (such person, or the person designated in writing from time to time by
the appropriate Party to replace such person, a "DESIGNATED REPRESENTATIVE") who
will (a) oversee and manage the performance of such Party's obligations under
this Agreement, (b) serve as such Party's primary managerial point of contact
with the other effected Party, (c) be authorized to act for such Party and on
its behalf with respect to all operational matters relating to this Agreement
and (d) review the operational, procedural and such other changes mutually
agreed upon in writing by the Parties. The Designated Representative will not
have the authority (acting in such person's capacity as a Designated
Representative) to amend this Agreement pursuant to Section 10.1.
Section 4.2 Evaluation and Review Process.
(a) Delivery of Monthly Service Reports. During the Term,
INSpire will provide Customer with a monthly service report within 30 days after
the end of each calendar month that measures actual service levels for the most
recently completed month against the Service Levels set forth on Schedule 1.4(e)
applicable to Customer (the "MONTHLY SERVICE REPORT").
(b) Review of the Addendum Services. The Designated
Representatives will meet on a monthly basis after the delivery of the Monthly
Service Report to review INSpire's performance hereunder and will meet at such
other times as may be reasonably requested by either Designated Representative
to discuss any related matters. The senior executives of each Party to whom such
Designated Representatives report will meet on a periodic basis to review the
relationship between the Parties and to discuss ways to improve the
relationship.
Section 4.3 Access to Records and Facilities.
(a) Customer's Access to INSpire's Records and Facilities.
INSpire will provide Customer and its Affiliates and Representatives reasonable
access to INSpire's facilities and all books, records and accounts necessary to
verify INSpire's compliance with this Agreement. Such access will be made
available upon prior written notice during normal business hours and during the
periods in which INSpire is required to maintain such records. INSpire will
provide the appropriate state insurance departments reasonable access to its
facilities and all necessary books, records and accounts in their then-current
form. Customer will be responsible for ensuring that all persons given access
pursuant to this subsection comply with the confidentiality provisions of
Article V.
(b) INSpire's Access to Customer's Records and Facilities.
Customer will provide, and will cause each of its Affiliates to provide, to
INSpire and its Affiliates and Representatives reasonable access to Customer's
and its Affiliates' facilities and all books, records and accounts necessary to
verify Customer's compliance with this Agreement. Such access will be made
available upon prior written notice during normal business hours and during the
periods in which Customer is required to maintain such records. Customer will
provide the
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appropriate state insurance departments reasonable access to its facilities and
all necessary books, records and accounts in their then-current form. INSpire
will be responsible for ensuring that all persons given access pursuant to this
subsection comply with the confidentiality provisions of Article V.
Section 4.4 Ownership of Property.
(a) Customer's Property. Customer will own all right, title
and interest in and to the content of the policy or claims files, accounting and
Producer files and computer images and storage discs products (back-up of data)
created or developed in connection with, as a result of or incident to the
performance of the Addendum Services.
(b) INSpire's Property. Subject to the foregoing, INSpire
will own all right, title and interest in and to any and all tools, techniques,
processes, procedures, inventions, software, patents, know how, trade secrets
and other copyrights existing on the Signing Date or first discovered, created
or developed by INSpire in connection with, as a result of or incident to the
performance of the Addendum Services.
Section 4.5 Customer's Performance Obligations and Acknowledgements.
INSpire's performance of the Addendum Services require the support and
cooperation of Customer. As such, Customer agrees and acknowledges as follows:
(a) Provide Information. Customer will provide, in a timely
manner and in a format reasonably acceptable to INSpire, the data necessary for
INSpire to perform the Addendum Services, including policy jackets, Customer's
banking institution account information, corporate and subsidiary logos (if
applicable), style and specifications of printed documents such as insurance
policies.
(b) Access to Third Party Software. Subject to Section 2.6 and
any lawful right or restriction, Customer will provide INSpire access to all of
Customer's Software that is necessary for INSpire to perform the Addendum
Services.
Section 4.6 Maintenance of Documents and Files. During each Addendum
Term, INSpire will maintain, as applicable, (a) records of amounts billable to
and payments made on behalf of Customer, (b) records of claims made and losses
incurred, and (c) copies of all policies and applications and correspondence
relating to such policies. INSpire will not destroy these records and documents
without the written permission of Customer for a period of at least five years
from the loss or termination date of the applicable policy, or the period
specified by the applicable state or federal statute regulating preservation of
records, whichever is longer. INSpire may, at its discretion, use magnetic,
optical, and other types of technology to store such data. INSpire agrees to
provide to Customer reasonable supporting documentation regarding any disputed
invoice or claim amount within fifteen days after Customer provides written
notification of the dispute to INSpire.
Section 4.7 Ultimate Discretion. INSpire acknowledges and agrees that
Customer, being at risk and having ultimate responsibility for the policy and
claims to be administered by
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INSpire, will at all times have ultimate discretion with respect to all issues
pertaining to such matters.
Section 4.8 Mail Received. INSpire may receive and open all mail
addressed to Customer or its Affiliates and deal with the contents thereof in
its discretion to the extent that such mail and the contents thereof relate to
the Addendum Services. INSpire agrees to deliver, or to cause to be delivered,
to Customer all mail received by INSpire which is addressed to Customer and does
not relate to the Addendum Services.
Section 4.9 Service Error. If data is processed in error due to an
error or defects in the Addendum Services provided by INSpire, then, upon
INSpire receiving notice of such error or defect, INSpire will reprocess such
data without charge to Customer. If data is processed in error due to an error
caused by Customer or its Representatives, then, upon INSpire's receiving notice
of such error or defect, INSpire will reprocess such data at Customer's expense.
Each Party will be responsible for all remedial expenses related to its error,
including all expenses associated with remailings, help lines and processing
time. Each Party acknowledges that the remedial expenses specified in this
Section will not be subject to the limitations set forth in Section 8.2(a).
Section 4.10 Year 2000 Compliance. To the extent that it is reasonably
determined by any Party that a Party's Systems, the Systems that a Party is
providing access to or use of in accordance with this Agreement or any portion
thereof are not Year 2000 Compliant, INSpire, on the one hand, and each
Customer, on the other hand, agrees to assist in any reasonable manner and to
cooperate and conform its work processes and methodologies to the extent it is
reasonably necessary to assist a Party to formulate and implement promptly a
plan of action to modify its System so that such System is Year 2000 Compliant.
INSpire, on the one hand, and each Customer, on the other hand, will be
obligated to (a) reimburse the other Party for any reasonable expenses incurred
by the other Party in connection with complying with the terms of this Section
and (b) indemnify, defend, and hold harmless the other Party from and against
any Claim incurred by the other Party that arises out of or directly relates to
such Party's Systems not being Year 2000 Compliant. If any of Customer's Systems
are determined not to be Year 2000 Compliant, then the Parties agree (y) to
adjust equitably the Service Levels applicable during the period in which the
plan of action to modify Customer's Systems is being implemented and (z) the
applicable Addendum Implementation Period or Addendum Term, as the case may be.
ARTICLE V.
CONFIDENTIALITY
Section 5.1 Nondisclosure. The Parties hereby agree as follows:
(a) Use of Information. All Confidential Information will be
used solely for the purpose of performing the Addendum Services. In no event
will Confidential Information be used by any party or person receiving
Confidential Information for business or competitive purposes.
(b) Confidentiality. All Confidential Information will be kept
strictly confidential by the Receiving Party and the Receiving Party will
restrict disclosure of
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Confidential Information to only those employees, agents and advisors of the
Receiving Party who have a need to know such information for the purpose of
performing the Addendum Services.
(c) Disclosure to Representatives. Representatives of the
Receiving Party will be informed by the Receiving Party of the confidential
nature of such information and the covenant of confidentiality by the Receiving
Party hereunder, and they will be directed by the Receiving Party to treat such
information confidentially. Before any disclosure or dissemination of any
Confidential Information subject to this Agreement is made to any person, other
than an officer or director of the Receiving Party or its counsel or independent
accountants, the Receiving Party will provide the person to whom such disclosure
is made with a copy of this Agreement.
Section 5.2 No Solicitation or Hiring. During each Addendum Term and
for the six month period immediately following the Addendum Expiration Date,
each Party agrees that, without the effected Party's prior written consent, no
Party nor any of its Affiliates will solicit for employment, employ or otherwise
contract for the services of any person who is or was employed by any other
Party, provided that this Section will not apply to (a) general commercially
published solicitations for employment by a Party or its Affiliates, (b) the
solicitation or hiring of an employee who was not an employee of any other Party
at any time during the six months immediately preceding such solicitation or
hiring.
Section 5.3 Required Disclosure. In the event the Receiving Party or
its Representatives are requested or required in a judicial, administrative or
governmental proceeding to disclose any Confidential Information, the Receiving
Party will cooperate with the Disclosing Party and provide it with prompt notice
of any such request so that the Disclosing Party may seek an appropriate
protective order or waive the Receiving Party's compliance with the provisions
of this Agreement. If, in the absence of a protective order or the receipt of a
waiver hereunder, the Receiving Party or its Representatives are nonetheless, in
the opinion of the Receiving Party's attorneys, legally required to disclose
Confidential Information to any tribunal or else stand liable for contempt or
suffer other penalty, the Receiving Party may disclose such information to such
tribunal without liability hereunder, provided that the Receiving Party complies
with the notice provisions of this paragraph.
Section 5.4 Remedies for Breach. The Parties acknowledge that a breach
of the covenant of confidentiality contained in this Agreement will result in
irreparable and continuing damage to the Disclosing Party for which there will
be no adequate remedy at law. In the event of any breach of this Agreement, the
Receiving Party agrees that the Disclosing Party will be entitled to seek and
obtain specific performance of this Agreement by the Receiving Party, including,
upon making the requisite showing that it is entitled thereto, provisional
injunctive relief restraining the Receiving Party from committing such breach,
in addition to such other and further relief, including monetary damages, as
provided by law.
Section 5.5 Survival. THE OBLIGATIONS UNDER THIS ARTICLE V WILL
CONTINUE AFTER THIS AGREEMENT EXPIRES OR IS TERMINATED.
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ARTICLE VI.
TRADE SECRET AND PROPRIETARY RIGHTS
Section 6.1 No Rights to Software. Notwithstanding INSpire's use of
its Systems in the performance of the Addendum Services, neither this Agreement
nor the performance of any Addendum Services hereunder will be construed as a
grant to Customer of a license or any other interest in or to INSpire's Systems.
Further, this Agreement grants to Customer no right to possess or reproduce, or
any other interest in, any of INSpire's Software used in the performance of all
or any part of the Addendum Services or their specifications in any tangible or
intangible medium. Customer may not mortgage, hypothecate, sell, assign, pledge,
lease, transfer, license or sublicense any of INSpire's Software used in the
performance of all or any part of the Addendum Services, nor allow any person or
entity to transmit, copy or reproduce any such Software. In the event Customer
comes into possession of any of INSpire's Software used in the performance of
all or any part of the Addendum Services, Customer will immediately notify
INSpire and return such Software and all copies of any kind thereof to INSpire.
Section 6.2 Nondisclosure. Other than Customer's employees who need
access to INSpire's Systems for the performance of their duties, Customer
covenants and agrees not to use, disclose or otherwise make available to any
person any of INSpire's Systems used in the performance of all or any part of
the Addendum Services. Customer agrees to take all reasonable steps necessary to
obligate each of its employees who is given access to INSpire's Systems to a
level of care sufficient to protect such Systems from unauthorized use or
disclosure.
Section 6.3 Survival. THE OBLIGATIONS OF CUSTOMER UNDER THIS ARTICLE
VI WILL CONTINUE AFTER THIS AGREEMENT EXPIRES OR IS TERMINATED.
ARTICLE VII.
TERMINATION
Section 7.1 Termination of Agreement. This Agreement will be deemed
terminated upon the termination or expiration of all Service Addendums, whether
such Service Addendums are executed on or after the Signing Date. Each Service
Addendum may be terminated prior to the Addendum Expiration Date only as
follows:
(a) with respect to any material breach of this Agreement or
any material breach of the applicable Service Addendum, by written notice from
the non-breaching Party; provided, however, such termination will be effective
only after such breach remains substantially uncured for 30 days after written
notice specifying such breach is received by the breaching Party;
(b) by a Party in the event (i) the other Party makes a
general assignment for the benefit of creditors, (ii) the other Party files a
voluntary petition in bankruptcy or petitions for reorganization or similar
arrangement under the bankruptcy laws, (iii) a petition in bankruptcy is filed
against the other Party by a third party and such petition is not dismissed
within ninety days
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of its filing date, or (iv) a receiver or trustee is appointed for all or any
part of the property and assets of the other Party;
(c) with respect to a program specified in a Service Addendum,
by Customer in the event Customer discontinues (by sale or abandonment) such
program; provided, however, that a termination pursuant to this subsection will
be effective no earlier than six months after INSpire's receipt of written
notice of such program's termination pursuant to this subsection; or
(d) with respect to any state in which Customer maintains a
program specified in a Service Addendum, by written notice from Customer in the
event such Customer becomes subject to a cease and desist order or decree issued
by a public authority exercising valid jurisdiction over such Customer in such
state.
Section 7.2 Procedure Upon Expiration and Termination. Upon expiration
or termination of this Agreement or any Service Addendum:
(a) Return of Supplies. INSpire will promptly return to
Customer any forms or other supplies imprinted with Customer's or its
Affiliate's name, regardless of who incurred the cost for same as well other
supplies paid for by Customer;
(b) Provide Files. INSpire will provide promptly to Customer a
tape (or other then-current technology) back-up of all data files in a format
reasonably requested by Customer and the personnel necessary to assist with the
records layout and file structures of the data files for Customer. The costs and
expenses associated with complying with this subsection will be borne by (i) the
breaching Party in the event of a termination pursuant to Section 7.1(a), (ii)
by the other Party in the event of a termination pursuant to Section 7.1(b) and
(iii) by Customer in the event of a termination pursuant to Section 7.1(c).
(c) No Relief for Breach. Such expiration or termination will
not in any way limit, restrict or relieve any Party of liability for any breach
of this Agreement or the applicable Service Addendum.
(d) Payment of Termination Fee. Each Party acknowledges that
INSpire agreed to provide Customer an option to terminate a program pursuant to
Section 7.1(c) in reliance on, and in anticipation of, Customer's absolute
obligation to pay the applicable Termination Fee associated with the terminated
program. As used in this subsection, "TERMINATION FEE" means the aggregate
amount of INSpire's unamortized costs associated with the terminated program,
including (i) tangible and intangible assets, (ii) implementation costs and
(iii) transaction costs (e.g. legal fees, accounting fees, etc.). Each Party
further acknowledges that the amount of the Termination Fee is not punitive in
nature and represents the Parties' best estimate of INSpire's stranded costs
associated with an early termination of the specific program. As such, Customer
will pay to INSpire, upon the termination of the program pursuant to Section
7.1(c), the Termination Fee.
(e) Payment Obligation. Each Party acknowledges that
Customer's termination of a program pursuant to Section 7.1(d) will (i) impose
certain financial hardships on
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INSpire and (ii) result in Customer's absolute obligation to pay an amount equal
to the Addendum Services Fees (associated with the terminated program in such
state) paid to INSpire for the six (6) months immediately preceding the
termination pursuant to Section 7.1(d). Each Party further acknowledges that
such amount is not punitive in nature and represents the Parties' best estimate
of the financial hardship suffered by INSpire associated with an early
termination of the specific program in such state. As such, Customer will pay to
INSpire, upon the termination of a program in a particular state pursuant to
Section 7.1(d), the amount specified in this subsection.
ARTICLE VIII.
REMEDIES AND LIMITATION OF LIABILITY
Section 8.1 Indemnification of the Parties. Each Party (the
"INDEMNITOR") will indemnify, defend, and hold harmless any other Party (the
"INDEMNITEE") from and against any arbitration award, claim, cost, damage,
demand, expense, fine, liability, lawsuit, obligation, payment or penalty of any
kind or nature whatsoever, including any reasonable attorneys' fees and expenses
(a "CLAIM") incurred by the Indemnitee that arises out of or directly relates to
the Indemnitor's performance or breach of this Agreement or any Service
Addendum. Any series of Claims incurred by an Indemnitee that arise out of or
relate to a common cause or occurrence will be deemed to be a single Claim for
purposes of this Agreement. Upon an Indemnitee's request, the Indemnitor will
indemnify the Indemnitee's directors, employees, officers, agents, attorneys,
Representatives and shareholders to the same extent as such Indemnitee. No such
person, however, will be a third party beneficiary of the indemnification
provision set forth in this Agreement. To the extent that an Indemnitee requests
the Indemnitor to indemnify such Party's directors, employees, officers, agents,
attorneys, Representatives and shareholders, the Indemnitee will cause such
persons or entities to comply with the indemnification provisions and abide by
the indemnification limitations set forth in this Agreement.
Section 8.2 Liability Limitation.
(a) Liability Limitation. Subject to subsection (b) below:
(i) Deductible. No Party will be liable for any
Claim for damages or indemnification under this Agreement or any Service
Addendum until the aggregate amount of a Claim for damages and indemnification
for which such Party would otherwise be responsible exceeds $175,000 (such
amount, the "DEDUCTIBLE") and then such Party will only be responsible for the
amount in excess of the Deductible;
(ii) Single Claim Maximum Amount. No Party will
be liable for any Claim for damages or indemnification under this Agreement or
any Service Addendum to the extent that the amount of any single Claim paid by
such Party exceeds the aggregate amount of all the Addendum Services Fees paid
by the Customers to INSpire under all then-effective Service Addendums in the
one month immediately prior to the establishment of liability for such Claim
(or the last one month immediately prior to the expiration or termination of
this Agreement and all Service Addendums if applicable); and
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(iii) Maximum Aggregate Amount. No Party will be
liable for any Claim for damages or indemnification under this Agreement or any
Service Addendum to the extent that the aggregate amount of all Claims paid by a
Party exceeds twenty percent of the aggregate amount of all the Addendum
Services Fees paid by the Customers to INSpire since the Addendum Effective
Dates under all Service Addendums prior to the establishment of liability for
such Claims (or prior to the expiration or termination of this Agreement and all
Service Addendums if applicable).
(b) Exclusions from Liability Limitation. Notwithstanding the
provisions of subsection (a) above, the limitations or exculpations of liability
set forth in subsection (a) above are not applicable to any Claim for damages or
indemnification under this Agreement or any Service Addendum resulting from (i)
a breach of Articles V or VI, (ii) the willful misconduct or fraud of a Party or
its Representatives, (iii) any violation, infringement or misappropriation of
any patent, copyright, trademark, trade secret or other proprietary or
contractual rights of a Party or any third party and or (iv) any payments
required, or any costs or expenses incurred, pursuant to Section 1.4(e), Section
4.9 and Section 4.10.
(c) Exclusion of Certain Types of Damages. No Party will be
liable for any consequential, incidental, punitive or special damages with
respect to any breach of this Agreement; provided, however, that this subsection
will not limit the amount of a Claim for indemnification (as opposed to a Claim
for damages) which is based on an amount paid by an Indemnitee to an unrelated
third party that contains consequential, incidental, punitive or special damages
as a component of such amount paid by the Indemnitee to the unrelated third
party.
(d) Limitation Acknowledgment. Each Party expressly
acknowledges that the limitations set forth in this Section represent the
express agreement of the Parties with respect to the allocation of risks between
the Parties, including the level of risk to be associated with the performance
of the Addendum Services as related to the amount of the payments to be made to
INSpire for such Addendum Services, and each Party fully understands and
irrevocably accepts such limitations.
Section 8.3 Notice of Claim. Any award of damages or indemnification
pursuant to this Agreement is conditioned upon the Indemnitor having received
full and prompt notice in writing of the Claim and the Indemnitee allowing the
Indemnitor to direct fully the defense or settlement of such Claim; provided,
however, that the failure to receive prompt notice relieves the Indemnitor of
its obligations under this Article only if the Indemnitor is materially
prejudiced by the failure to receive such notice. The Indemnitor will not be
responsible for any settlement or compromise made without its consent.
ARTICLE IX.
ARBITRATION
Section 9.1 Condition Precedent. As a condition precedent to any right
of action hereunder, any dispute arising out of the interpretation, performance
or breach of this Agreement,
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including the formation or validity thereof, shall be submitted for decision to
a panel of three arbitrators. Notice requesting arbitration will be in writing
and sent certified or registered mail, return receipt requested.
Section 9.2 Choosing the Arbitrators. One arbitrator shall be chosen by
each Party and the two arbitrators shall, before instituting the hearing, choose
an impartial third arbitrator who shall preside at the hearing. If either party
fails to appoint its arbitrator within thirty (30) days after being requested to
do so by the other party, the latter, after ten (10) days notice by certified or
registered mail of its intention to do so, may appoint the second arbitrator.
If the two arbitrators are unable to agree upon the third arbitrator
within thirty (30) days of their appointment, the third arbitrator shall be
selected from a list of six individuals (three named by each arbitrator) by
a judge of the District Court for the Northern District of Texas, Fort Worth
Division, or if the District Court declines to act, the state court having
general jurisdiction in such area.
Section 9.3 Procedure. Within thirty (30) days after notice of
appointment of all arbitrators, the panel shall meet and determine timely
periods for briefs, discovery procedures and schedules for hearings.
The panel shall be relieved of all judicial formality and shall not be
bound by the strict rules of procedure and evidence. Arbitration shall take
place in Fort Worth, Texas. Insofar as the arbitration panel looks to
substantive law, it shall consider the law of the State of Texas. The decision
of any two arbitrators when rendered in writing shall be final and binding. The
panel is empowered to grant interim relief as it may deem appropriate.
Section 9.4 Costs. Each party shall bear the expense of its own
arbitrator and shall jointly and equally bear with the other party the cost of
the third arbitrator. The remaining costs of the arbitration shall be allocated
by the panel. The panel may, at its discretion, award such further costs and
expenses as it considers appropriate, including but not limited to attorneys
fees, to the extent permitted by law.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Amendment. No amendment of this Agreement will be
effective unless in a writing signed by the Parties.
Section 10.2 Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be deemed to be an original agreement, but
all of which will constitute one and the same agreement.
Section 10.3 Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the Parties and supersedes all prior
agreements and understandings, both written and oral, with respect to the
subject matter of this Agreement.
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Section 10.4 Expenses. Each Party will bear its own expenses with
respect to the negotiation and preparation of this Agreement.
Section 10.5 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS
OF THE STATE OF TEXAS REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
THE CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE.
Section 10.6 No Assignment. No Party may assign its benefits or
delegate its duties (other than a delegation of minor or incidental tasks
related to the Addendum Services) under this Agreement without the prior consent
of the other effected Parties. Any attempted assignment or delegation without
such prior consent will be void. Notwithstanding the foregoing, any Party may
assign its rights or delegate its duties under this Agreement to a purchaser of
all the assets or equity of such Party without the other effected Party's
consent, and any such purchaser and any subsequent purchasers of all of the
assets or equity of such Party may similarly assign or delegate such rights.
Section 10.7 No Third Party Beneficiaries. This Agreement is solely for
the benefit of the Parties and no other person or entity will have any right,
interest, or claim under this Agreement.
Section 10.8 Notices. All claims, consents, designations, notices,
waivers, and other communications in connection with this Agreement will be in
writing. Such claims, consents, designations, notices, waivers, and other
communications will be considered received (a) on the day of actual transmittal
when transmitted by facsimile with written confirmation of such transmittal, (b)
on the next following actual transmittal when transmitted by a nationally
recognized overnight courier, or (c) on the third Business Day following actual
transmittal when transmitted by certified mail, postage prepaid, return receipt
requested; in each case when transmitted to a Party at its address set forth
below (or to such other address to which such Party has notified the other
Parties in accordance with this Section to send such claims, consents,
designations, notices, waivers and other communications).
INSpire
Attn: President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Customer
Attn: Chief Executive Officer
The Millers American Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Section 10.9 Public Announcements. The Parties will agree on the terms
of any press releases or other public announcements related to this Agreement,
and will consult with each other before issuing any press releases or other
public announcements related to this Agreement; provided, however, that any
Party may make a public disclosure if in the opinion of such Party's counsel it
is required by law or the rules of the Nasdaq National Market to make such
disclosure. The Parties agree, to the extent practicable, to consult with each
other regarding any such public announcement in advance thereof.
Section 10.10 Representation by Legal Counsel. Each Party is a
sophisticated entity that was advised by experienced legal counsel and other
advisors in the negotiation and preparation of this Agreement.
Section 10.11 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction will not invalidate the
remaining provisions of this Agreement or affect the validity or enforceability
of such provision in any other jurisdiction. In addition, any such prohibited or
unenforceable provision will be given effect to the extent possible in the
jurisdiction where such provision is prohibited or unenforceable.
Section 10.12 Successors. This Agreement will be binding upon and will
inure to the benefit of each Party and its heirs, legal representatives,
permitted assigns and successors, provided that this Section will not permit the
assignment or other transfer of this Agreement, whether by operation of law or
otherwise, if such assignment of other transfer is not otherwise permitted under
this Agreement.
Section 10.13 Time of the Essence. Time is of the essence in the
performance of this Agreement and all dates and periods specified in this
Agreement.
Section 10.14 Waiver. No provision of this Agreement will be considered
waived unless such waiver is in writing and signed by the Party that benefits
from the enforcement of such provision. No waiver of any provision in this
Agreement, however, will be deemed a waiver of a subsequent breach of such
provision or a waiver of a similar provision. In addition, a waiver of any
breach or a failure to enforce any term or condition of this Agreement will not
in any way affect, limit, or waive a Party's rights under this Agreement at any
time to enforce strict compliance thereafter with every term and condition of
this Agreement.
Section 10.15 Force Majeure. The Parties will not be liable or deemed
to be in default for any delay or failure in performance under this Agreement or
interruption of the Addendum Services resulting, directly or indirectly, from
acts of God, civil or military authority, labor disputes, shortages of suitable
materials, labor or transportation or any similar cause beyond the reasonable
control of the Parties.
Section 10.16 Attorney's Fees. In the event of any action, arbitration,
claim, proceeding or suit between or among the Parties seeking enforcement of
any of the terms and conditions of this Agreement, the prevailing party in such
action, arbitration, claim, proceeding or suit will be awarded its reasonable
costs and expenses, including its court costs and reasonable attorneys' fees.
23
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Section 10.17 Relationship of the Parties. The Parties are independent
contractors of one another, and there should be no instance in which they should
be construed as partners or joint venturers.
Section 10.18 Drafting. Neither this Agreement nor any provision
contained in this Agreement will be interpreted in favor of or against any Party
because such Party or its legal counsel drafted this Agreement or such
provision. No prior draft of this Agreement or any provision contained in this
Agreement will be used when interpreting this Agreement or its provisions.
Section 10.19 Headings. Article and section headings are used in this
Agreement only as a matter of convenience and will not have any effect upon the
construction or interpretation of this Agreement.
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed
and delivered by a duly authorized officer as of the Signing Date.
INSpire: INSpire Insurance Solutions, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President and Chief Operating Officer
CUSTOMER: The Millers Insurance Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ EVP & CFO
----------------------------------------------------------
[Name, Title]
The Millers Casualty Insurance Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ EVP & CFO
----------------------------------------------------------
[Name, Title]
Millers General Agency, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ CFO
----------------------------------------------------------
[Name, Title]
24
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APPENDIX A
DEFINITIONS AND INTERPRETATIONS
Definitions. Unless the context otherwise requires, the terms defined
in this Appendix will the meanings specified below for all purposes of this
Agreement:
"ADDENDUM EFFECTIVE DATE" will have the meaning established in
each applicable Service Addendum.
"ADDENDUM EXPIRATION DATE" will have the meaning established
in each applicable Service Addendum.
"ADDENDUM IMPLEMENTATION PERIOD" will have the meaning
established in each applicable Service Addendum.
"ADDENDUM SERVICE FEES" will have the meaning set forth in
Section 1.1(b), but will be established in each applicable Service Addendum.
"ADDENDUM SERVICES" will have the meaning set forth in Section
1.1(b), but will be established in each applicable Service Addendum.
"ADDENDUM TERM" will have the meaning set forth in Section
1.1(b), but will be established in each applicable Service Addendum.
"ADDITIONAL SERVICES" will have the meaning set forth in
Section 1.6(a).
"AFFILIATE" will mean with respect to a Party, any entity at
any time Controlling, Controlled by, under common Control with, or in the same
consolidated group for federal tax purposes as, such Party. "Control" and its
derivatives mean: (a) with regard to any entity, the legal, beneficial, or
equitable ownership, directly or indirectly, of more than fifty percent (50%)
of the capital stock (or other ownership interest, if not a corporation) of such
entity ordinarily having voting rights or (b) with regard to any entity, the
management control over such entity. For purposes of this Agreement, INSpire
will not be deemed to be an Affiliate of any Customer.
"AGREEMENT" will mean have the meaning set forth in the first
paragraph of the Agreement.
"BID" will have the meaning set forth in Section 1.6(a).
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York are authorized or obligated by law to close.
"CLAIM" will have the meaning set forth in Section 8.1.
"COMPETING TERMS" will have the meaning set forth in Section
1.6(b).
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"CONFIDENTIAL INFORMATION" will mean any information that is
expressly marked or identified as "Confidential" prior to its disclosure,
whether prepared by the Disclosing Party, its Representatives or otherwise,
which is furnished to the Receiving Party or on behalf of the Disclosing Party
after the date of this Agreement relating to the Disclosing Party or its
Affiliates or their respective businesses or operations. The term "Confidential
Information" does not include: (a) information which is or becomes generally
available to the public other than as a result of any unauthorized disclosure or
any wrongful acts of the Receiving Party; (b) information which is independently
developed by the Receiving Party without the use of or reference to Confidential
Information of the Disclosing Party; (c) information which is rightfully
received from a third party whose disclosure does not constitute a violation of
any confidentiality obligation or a breach of any agreement; or (d) information
which is approved for release by the Disclosing Party in a writing signed by the
Disclosing Party and specifying the information to be released.
"CONTRACT YEAR" will mean, with respect to each Service
Addendum, each of the twelve month periods during the Addendum Term beginning on
the anniversary of the Addendum Effective Date (or the Addendum Effective Date
in the case of the first Contract Year of each Service Addendum) and ending on
the day immediately preceding the next anniversary of the Addendum Effective
Date.
"CUSTOMER" will have the meaning set forth in the first
paragraph of this Agreement, but will be established in each applicable Service
Addendum.
"CUSTOMER GROUP" will mean Customer, its Affiliates, any
parent corporation, subsidiaries and Representatives.
"DATE DATA" will mean any data, formula, algorithm, process,
input or output that includes, calculates or represents a date, a reference to a
date or a representation of a date.
"DEDUCTIBLE" will have the meaning set forth in Section
8.2(a).
"DESIGNATED REPRESENTATIVE" will have the meaning set forth in
Section 4.1.
"DIRECT WRITTEN PREMIUMS" will mean the premiums written by an
insurer in consideration for the insurance coverage being provided before ceding
to a reinsurer less any cancellations and returns.
"DISCLOSING PARTY" will mean Customer Group or INSpire Group,
as the case may be, with respect to any Confidential Information provided by
such party to any other party.
"EARNED PREMIUMS" will mean monthly Direct Written Premium,
plus beginning unearned premium, minus ending unearned premium.
"EQUIPMENT" will mean all the computer hardware, including
central processing units, networking equipment and other peripheral devices, of
the named entity that is used in connection with this Agreement, whether such
equipment is owned or licensed by such entity.
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"EXERCISE NOTICE" will have the meaning set forth in Section
1.6(c).
"INDEMNITOR" will have the meaning set forth in Section 8.1.
"INDEMNITEE" will have the meaning set forth in Section 8.1.
"INSpire" will have the meaning set forth in the first
paragraph of this Agreement.
"INSpire GROUP" will mean INSpire, its Affiliates, any parent
corporation, subsidiaries and Representatives.
"LAW" will have the meaning set forth in Section 2.4.
"LICENSED SOFTWARE" will mean any computer software program
(including the available documentation, manuals and other materials necessary
for the use thereof) used in connection with this Agreement by the named entity
pursuant to a license or other arrangement.
"MATERIAL ADVERSE EFFECT" will mean, with respect to any
Party, the occurrence of an event or the existence of a circumstance that has a
material adverse effect on such Party's assets, business, cash flows, financial
condition, liabilities, operations, prospects, or relationships, including the
occurrence of any event or the existence of any circumstance that will cause
such an effect in the foreseeable future.
"MONTHLY SERVICE REPORT" will have the meaning set forth in
Section 4.2(a).
"ORDER" will have the meaning set forth in Section 2.4.
"OWNED SOFTWARE" will mean any computer software program used
in connection with this Agreement that is owned by the named entity, including
the available documentation, manuals and other materials necessary for the use
thereof.
"PARTY" and "PARTIES" will have the meanings set forth in the
first paragraph of this Agreement.
"POSITIVE PAY" will mean a process by which a data file
containing information related to checks issued (i.e. check number, check date
and check amount) is created and forwarded to a banking institution. The banking
institution will use this file to verify all checks presented for payment prior
to paying any check. The banking institution will create a listing of items that
did not match or were otherwise not included in the data file, hereby referred
to as the exception list. The exception list is made available for research and
a resolution on whether the exception items presented should be paid or returned
unpaid. The aforementioned is done daily.
"PRODUCER" will mean any person, entity, individual or
association that acts as an agent of, a broker for, or in any other similar
capacity on behalf of, a Customer for the solicitation and production of
insurance products.
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"RECEIVING PARTY" will mean Customer Group or INSpire Group,
as the case may be, with respect to any Confidential Information received by
such party from any other party.
"REPRESENTATIVE" will mean any director, officer, employee,
agent, attorney, accountant, advisor or other person acting on behalf of a Party
in connection with this Agreement; provided, however, "Representative" will not
include any person or entity which is a direct or indirect competitor of
INSpire.
"SERVICE CORRECTION" will mean a written request by Customer
to have INSpire remedy its System's inability to perform, respond, function or
operate as set forth in the applicable requirements document.
"SERVICE LEVELS" will have the meaning set forth in Section
1.4(e).
"SIGNING DATE" will have the meaning set forth in the first
paragraph of this Agreement.
"SOFTWARE" will mean the Owned Software and Licensed Software
of the named entity.
"SYSTEM MODIFICATION" will mean a written request by Customer
to alter programming code where such alteration to the coding specifically
changes, adds or otherwise alters the presentation or function of the existing
program with that being Customer's intent. Each Party acknowledges that a System
Modification is a separate and distinct concept from that concept embodied in
the definition of Service Correction.
"SYSTEMS" will mean the Equipment and Software of the named
entity.
"TERMINATION FEE" will have the meaning set forth in Section
7.1(d).
"YEAR 2000 COMPLIANT" will mean, with respect to the Systems
of a Party, (a) the functions, calculations, and other computing processes of
the System (collectively, "PROCESSES") perform in a consistent manner regardless
of the date in time on which the Processes are actually performed and regardless
of the Date Data input to the System, whether before, on, during or after
January 1, 2000 and whether or not the Date Data is affected by leap years, (b)
the System accepts, calculates, compares, sorts, extracts, sequences, and
otherwise processes Date Data, and returns and displays Date Data, in a
consistent manner regardless of the dates used in such Date Data, whether
before, on, during or after January 1, 2000, (c) the System will function
without interruptions caused by the date in time on which the Processes are
actually performed or by the Date Data input to the System, whether before, on,
during, or after January 1, 2000, (d) the System accepts and responds to
two-digit year-date input in a manner that resolves any ambiguities as to the
century in a defined, pre-determined and appropriate manner, (e) the System
stores and displays Date Data in ways that are unambiguous as to the
determinations of the century and (f) no Date Data will cause the System to
perform an abnormally ending routine or function within the Processes or
generate incorrect values or invalid results as a result of the date element
included in the Date Data.
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Accounting Terms. Except as otherwise provided in this Agreement, all
accounting terms defined in this Agreement will be construed, and all
calculations required by this Agreement will be performed, in accordance with
generally accepted accounting principles applied on a consistent basis.
Articles, Sections, Exhibits and Schedules. Except as specifically
stated otherwise, references to Articles, Sections, Exhibits and Schedules refer
to the Articles, Sections, Exhibits and Schedules of this Agreement.
Drafting. Neither this Agreement nor any provision contained in this
Agreement will be interpreted in favor of or against any Party because such
Party or its legal counsel drafted this Agreement or such provision. No prior
draft of this Agreement or any provision contained in this Agreement will be
used when interpreting this Agreement or its provisions.
Headings. Article and section headings are used in this Agreement only
as a matter of convenience and will not have any effect upon the construction or
interpretation of this Agreement.
Include. The term "include" or any derivative of such term does not
mean that the items following such term are the only types of such items.
Or. The term "or" will not be interpreted as excluding any of the items
described.
Plural and Singular Words. Whenever the plural form of a word is used
in this Agreement, that word will include the singular form of that word.
Whenever the singular form of a word is used in this Agreement, that word will
include the plural form of that word.
Pronouns. Whenever a pronoun of a particular gender is used in this
Agreement, if appropriate that pronoun also will refer to the other gender and
the neuter. Whenever a neuter pronoun is used in this Agreement, if appropriate
that pronoun also will refer to the masculine and feminine gender.
Statutes. Any reference to Law or any specific statute will include any
changes to such law or statute after the Signing Date, any successor law or
statute, and any regulations and rules promulgated under such law or statute and
any successor law or statute, whether promulgated before or after the Signing
Date.
5
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SCHEDULE 1.4(e)
SERVICE LEVELS
The following definitions apply to the documentation titled Schedule 1.1e:
SERVICE LEVEL DESCRIPTION:
Description of service level being measured.
MEASUREMENT:
Performance of service level required for determination of performance
score only applies to business processed on INSpire Systems.
DAILY FACTOR:
Based on frequency of requirement for this service level or on
frequency of interface availability as appropriate. The daily factor
will be based on Monday through Friday and be assigned a daily factor
of 5%. If the service level is not measured the value of N/A (not
applicable) is present.
WEIGHT:
Weighting factor used to determine relative impact on respective
service level standards.
MONTHLY RATING:
The purpose of the monthly rating is to develop an aggregate score for
measuring INSpire's performance as it relates to agreed upon service
levels. The aggregate score will be used to determine, in aggregate if
INSpire's performance will result in additional or reduced service fees
for the month.
The methodology used to determine the aggregate score is to determine,
for each measurement, whether or not INSpire met the desired service
level, exceeded the service level or fell below the service level. For
example, the service level average hold time is 60 seconds. Each day
the average hold time is 60 seconds, INSpire will have met the service
level. If the average hold time is greater than 60 seconds due to a
reason resulting from a direct omission or commission on the part of
INSpire, INSpire will have fallen below the service level. If the
average hold time is less than 60 seconds, INSpire will have exceeded
the service level.
Every time, (daily in this example) that INSpire meets the service
level, a score of one (1) is earned. If the service level is not met
for a reason that INSpire is responsible for, a score of zero (0) is
earned. If the service level is not met, but not due to a reason that
INSpire is responsible for, a score of one (1) is earned. Should the
service level be exceeded, INSpire will earn a score of two (2). The
following provides an example of one (1) month results:
1
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DAY RESULT SCORE
1 Met SLA 1
2 Met SLA 1
3 Met SLA 1
4 Below SLA 0
5 Met SLA 1
6 Met SLA 1
7 Exceed SLA 2
8 Met SLA 1
9 Met SLA 1
10 Met SLA 1
11 Met SLA 1
12 Met SLA 1
13 Exceed SLA 2
14 Met SLA 1
15 Met SLA 1
16 Met SLA 1
17 Below SLA 0
18 Met SLA 1
19 Met SLA 1
20 Met SLA 1
---
TOTAL SCORE 20
The total score for the SLA is then divided by the number of times the SLA is
applicable for the month. In this case 20/20= 1, for a score of 100% for this
SLA. The individual score is then multiplied by the weighing factor of %,
resulting in a weighed score, in this example, of 5%.
At the end of each month, a weighed score using the same methodology will be
used to determine an aggregate score. The aggregate score of each individual SLA
will be added together. INSpire and the Customer will mutually agree upon
aggregate scores each month.
If the aggregate score is between 100% and 95%, no adjustment to the service
fees will be made. For every percentage point above 100%, INSpire will receive
an additional .5% in service fees subject to a maximum of 5%. For every
percentage point below 95%, the monthly service fee will be reduced by .5%,
subject to a maximum of 5%.
Services fees subject to this provision include only those fees indicated for
policy and claims administration.
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SERVICE LEVEL DESCRIPTIONS MEASUREMENT DAILY FACTOR WEIGHTING FACTOR
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Call Center Availability Available between 8:00 a.m. until 5:30 p.m. Monday-Friday, local 5% 4.76%
time, utilizing toll free service.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Call Center Response Time Average hold time will not exceed 60 seconds. 5% 4.76%
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Call Center Abandonment No more than 5% of calls will be abandoned 5% 4.76%
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Major Error Rate Transactions will be processed with a Major Error rate (defined as 5% 4.76%
those errors effecting coverage or premium) of less than 3%.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Overall Error Rate Transactions will be processed with an Overall Error rate of less 5% 4.76%
than 6%.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
New Policy Transactions 90% of all new policies will be issued within three business days of 5% 4.76%
receipt of all of the information necessary to process the
transaction.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Renewal Transactions 95% of all renewal transactions will be processed 30 days (or the 5% 4.76%
number of days agreed to by Customer and INSpire) prior to
expiration of the policy. Renewals not processed at the request of
the customer due to pending rate changes will not be included in
this measurement.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Endorsement Transactions 90% of all endorsement transactions will be issued within six 5% 4.76%
business days of receipt all the information necessary to process
the transaction.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Billing Invoices 95% of all billing invoices will be mailed by the end of the 5% 4.76%
business day in which they are produced.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Refunds 95% of premium refunds will be mailed by the end of the business day 5% 4.76%
in which they are produced.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Cancellation Notices 99.9% of all cancellation notices will be mailed by the end of the 5% 4.76%
business day in which they are produced.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
Non-renewal Notices 99.9% of all non-renewal notices will be mailed by the end of the 5% 4.76%
business day in which they are produced.
-------------------------- -------------------------------------------------------------------- ------------ ----------------
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SERVICE LEVEL DESCRIPTIONS MEASUREMENT DAILY FACTOR WEIGHTING FACTOR
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Loss Reporting Loss reports will be taken 24 hours a day, 7 days a week utilizing 5% 4.76%
toll free service.
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Claim Payments 90% of claim payments will be sent within two business days after 5% 4.76%
settlement and notification to INSpire by the Customer.
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Table Change Updates 80% of customer requested modifications requiring table updates 5% 4.76%
only, will be delivered for testing within fifteen working days
after written request.
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Modification Estimates High level time and cost estimates for Customer requested system 5% 4.76%
program modifications will be completed within 10 working days after
written request.
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Cash Deposits 95% of all cash will be deposited within 2 business days of receipt. 5% 4.76%
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Claims Contact to Insureds 85% of claimants contacted within 1 business day. 5% 4.76%
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Claims Reserve Setup 90% of claims reserves will be setup within 2 business days. 5% 4.76%
--------------------------- -------------------------------------------------------------------- ------------ ----------------
NSF Posting 99.9% of all NSF checks will be posted into the system within 2 5% 4.76%
business days.
--------------------------- -------------------------------------------------------------------- ------------ ----------------
Stop Payment of Checks 99.9% of all requests for stop payment to the bank will posted to 5% 4.76%
the proper bank account.
--------------------------- -------------------------------------------------------------------- ------------ ----------------
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[INSpire LETTERHEAD]
LETTER OF UNDERSTANDING
The parties executing this letter below, recognize and agree that the Master
Services Agreement entered into by INSpire Insurance Solutions, Inc. and Millers
American Group, and its affiliates, effective December 30, 1999 is subject to
approval by the Texas Department of Insurance. Both parties agree to use all
reasonable efforts to ensure such approval. Both parties further agree that they
are unaware of any reason or impediment to the granting of such approval.
INSpire Insurance Solutions, Inc. Millers American Group (and its affiliates)
Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Signed: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -------------------------------------
Title: President Title: EVP & CFO
--------------------------- ------------------------------------
Date: 12-30-99 Date: 12-30-99
---------------------------- -------------------------------------
38
EXHIBIT 1.1
FORM OF
SERVICE ADDENDUM
THIS SERVICE ADDENDUM IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THAT
CERTAIN MASTER SERVICES AGREEMENT DATED AUGUST __, 1999. A PARTY'S EXECUTION OF
A SERVICE ADDENDUM WILL BE DEEMED TO BE SUCH PARTY'S (I) ACKNOWLEDGEMENT AND
ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THE MASTER SERVICES
AGREEMENT AND (II) EXECUTION AND DELIVERY OF THE MASTER SERVICES AGREEMENT.
1. Date of this Addendum:
[Insert the date of this Addendum.]
2. Parties to this Service Addendum:
o INSpire Insurance Solutions, Inc. ("INSpire").
o [Insert the appropriate Millers' party/parties] ("CUSTOMER").
3. Addendum Term:
The term during which INSpire will provide the Addendum Services (as
defined below) to Customer will commence on [date] (the "ADDENDUM
EFFECTIVE DATE") and will expire on [date] (as such date may be
extended pursuant to this paragraph, the "ADDENDUM EXPIRATION DATE")
unless extended pursuant to the terms of this paragraph or terminated
pursuant to the terms of the Agreement (the "ADDENDUM TERM"). The
Addendum Expiration Date will be extended automatically for a period of
one (1) year unless the parties to this Service Addendum gives written
notice of non-extension to the other effected party or parties at least
six (6) months prior to the then current Addendum Expiration Date.
4. Addendum Services: Lines of Business: Authorized States
a. [Policy/Claims] Administration Services. Except as
specifically noted in this Section 4.a, INSpire will provide the
[policy/claims] administration services set forth in Section
1.1[(c)/(d)] of the Agreement and the general management of such
services:
[INSERT ANY ADDITIONS TO, OR EXCLUSIONS FROM, THE
[POLICY/CLAIMS] ADMINISTRATION SERVICES SPECIFIED IN
SECTION 1.1(c) OF THE AGREEMENT.]
b. Authorized Lines of Business: [insert lines of business]
c. Authorized States: [insert states]
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5. Addendum Service Fees:
[Insert the service fees for the services to be provided pursuant to
this Addendum].
IN WITNESS WHEREOF, each party to this Service Addendum has caused this
Service Addendum to be executed and delivered by a duly authorized officer as of
the date written above.
INSpire: INSpire Insurance Solutions, Inc.
By:
-----------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President and Chief Operating Officer
CUSTOMER: [insert a signature block for each applicable Millers entity]
By:
-----------------------------------------------------------
[Name, Title]
2