EXHIBIT 10.1
ADDENDUM "G"
TO
MASSACHUSETTS INSURANCE PROCESSING SERVICE AGREEMENT
BETWEEN
CGI INFORMATION SYSTEMS & MANAGEMENT CONSULTANTS, INC.
("CGI")
AND
COMMERCE INSURANCE COMPANY
("COMPANY")
DATED JANUARY 1, 2004
The parties agree that this Addendum G ("Addendum") modifies the Massachusetts
Insurance Processing Service ("MIPS") dated effective January 1, 1992 between
the aforementioned parties ("Agreement") and forms an integral part of the
Agreement. All terms defined elsewhere in the Agreement and not otherwise
defined in this Addendum "G" shall have the meanings given to them in the
Agreement.
RECITAL OF FACTS:
Now, therefore, in consideration of their mutual promises and obligations, the
Agreement is amended as follows:
1. SECTION 1.1 SERVICES: is hereby deleted in its entirety and
replaced with the following:
"CGI will provide Company, Citation Insurance Company, and
automobile subsidiaries with CGI's Massachusetts Insurance
Processing Service (MIPS) through its Massachusetts Automobile
Systems ("Systems"), as described in Attachment 1, Statement
of Services.
2. SECTION 1.2 TERM: is deleted in its entirety and replaced with
the following:
Regardless of when this Agreement is actually executed by the
Parties, the term of this Agreement shall be from:
January 1, 1992 to December 31, 2009
3. SECTION. 2.1 FEES: is deleted in its entirety and replaced
with the following:
"Company agrees to pay CGI an annual license fee for each year
this Agreement is in effect. This fee shall be billed out each
year in twelve (12) equal monthly installments by the 10th of
each month for the previous month's work. An additional policy
processing fee per policy will be billed each month. The fee
and charges that are payable by the Company for years 2004
through 2009 for the provision of MIPS, under this Agreement
are explained in Attachment 1 and set out in Attachment 2.
Beginning in January, 2004, Company agrees to pay an annual
increase in all processing charges and fees, except for Fleet
and Commercial policies, CollaborativeEdge, and
Telecommunication Equipment based on the Consumer Price Index
("CPI"), as published in the Wall Street Journal as of
December 31st of the previous year. The CPI adjustment for
each year of increase will not be less than one percent (1%)
and not to exceed four percent (4%).
Company agrees to pay an Annual Minimum of seventy-five
percent (75%) of the prior year's fees, except in the Roll-Off
term as defined in Paragraph 6.3. If Company's policy count is
reduced by more than twenty-five percent (25%) in any one
year, a new Annual Minimum will be mutually agreed to".
4. SECTION 5.2 PROTECTION OF COMPANY PROPRIETARY INFORMATION: is
hereby modified by deleting the existing Section 5.2 in its
entirety and replacing it with a new Section 5.2 which is a
Confidential Disclosure Agreement between both CGI and
Company. Such Confidential Disclosure Agreement is attached
and incorporated herein as Exhibit 1 and made a part of the
existing Agreement and this Addendum G.
5. SECTION 6.0 TERMINATION: is hereby deleted in its entirety and
replaced with the following:
SECTION 6.0 TERMINATION:
SECTION 6.1. PROCEDURE: Either party may terminate this
Agreement for failure of the other party to comply with any
material terms and conditions. The terminating party must
notify the other party in writing of the conditions for
potential default and allow the other party thirty (30) days
to correct those conditions. Failure to correct such
conditions will be cause for immediate cancellation of the
Agreement and payments of all amounts due through the
termination effective date. If Company terminates this
Agreement for any reason other than CGI's failure to comply
with any material terms or conditions, the amounts still due
under the full term of the Agreement shall be payable within
thirty (30) days of the termination effective date except as
provided in Paragraph 6.2.
SECTION 6.2 TERMINATION BY COMPANY: Company may not terminate
this Agreement prior to December 31, 2007, except under
Paragraph 6.1 above. In the event that Company terminates the
Agreement after December 31, 2007, the Roll-Off period shall
immediately commence upon the effective date of the
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termination. For purposes of this Agreement, Roll-Off shall
mean a minimum of a twelve (12) month period of time in which
CGI continues to provide services to the Company.
SECTION 6.2.1: Notwithstanding the above, Company may begin
Roll-Off activities as defined herein, at any time after June
30, 2007, for personal and/or commercial processing services.
SECTION 6.3 ROLL-OFF SERVICES: Company must notify CGI in
writing at least twelve (12) months prior to the Roll-Off
term. In the first month the Roll-Off will physically
commence, and the subsequent months that Company remains on
the System, the annual license fee will be waived and a
monthly minimum equal to one twelfth the annual license fee
plus CPI will be charged in addition to the normal monthly
processing charges Company incurs. If Roll-Off commences with
policy effective dates between July 1, 2007 and December 31,
2007, in accordance with Section 6.2.1, there shall be a rate
adjustment to the fees/charges of fifteen (15%) percent less
Consumer Price Index (CPI), retroactive to January 1, 2007 and
through the expiration date of the Roll-Off period. Once
Roll-Off begins, expired policies associated with the Roll-Off
will be retained sixty (60) days beyond the expiration date.
Said policies retained for more than sixty (60) days beyond
the expiration date will be charged at a rate of $0.12 per
record per month. CGI activities associated with roll-off will
be charged at the current time and materials rate.
SECTION 6.4 FLEET AND COMMERCIAL AUTOMOBILE CONTINUATION:
Should Company terminate Private Passenger Automobile services
and opt to continue Fleet and Commercial services, CGI will
continue to process Company's Fleet and Commercial business.
However, the fees for this reduced service will revert to
those listed on attachment 2 as of the date of termination. In
such event, the annual license fee under Paragraph 2.1 shall
no longer apply. However, there shall be a Commercial monthly
processing fee of no less than fifteen thousand dollars
($15,000).
SECTION 6.5 TERMINATION FOR INSOLVENCY: Either party, CGI or
Company, may, in its sole discretion, immediately terminate
this Agreement with written termination notice and upon the
occurrence of any of the following: (a) the making by the
other party of any general assignment for the benefit of
creditors; (b) the filing by or against the other party of a
petition to have that party adjudged a bankrupt or a petition
for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against
the other party, the same is dismissed within sixty (60)
days); (c) the appointment of a trustee or receiver to take
possession of substantially all of the other party's assets,
where possession is not restored to the other party within
sixty (60) days; or (d) the attachment, execution or other
judicial seizure of substantially all of the other party's
assets where such seizure is not discharged within sixty (60)
days.
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The party that is the subject of any such insolvency action
shall provide written notice to the other party of same within
five (5) business days of the occurrence of the applicable
insolvency action. The written termination notice provided by
the terminating party shall include a reason for termination
and a date by which obligations for CGI to perform shall
cease.
The effective termination date under any of the foregoing
provisions shall be the date of the occurrence of the
applicable insolvency action, wherein the termination shall be
retroactively effective upon expiration of any applicable
sixty (60) day period stated in this section 6.5. Company
shall pay CGI in accordance with the payment provisions of
this Agreement for any authorized services performed and costs
and expenses incurred after the effective termination date.
SECTION 6.5.1 CGI INSOLVENCY: If CGI is no longer able to make
its service available, it then grants to Company the option to
immediately license its Massachusetts Automobile Systems for a
fee of $250,000. The fee is payable to CGI at the time all
programs, files and documentation are turned over to Company.
6. SECTION 8.0 WARRANTIES; by CGI is hereby modified by adding
the following new section 8.3:
8.3 VIRUS PROTECTION: CGI shall use reasonable best efforts to
prevent, through the implementation of the higher, more
stringent of either: (1) industry standards; or (2) CGI's best
business practices for the protection of its own data and
systems and those of its best customers, its linkage and/or
access to Company's systems from causing or allowing entry of
any virus or any other similar contaminants, including, but
not limited to, codes, commands or instructions that may be
used to access, alter, damage or disable the systems, other
software, information, data or other property.
7. ATTACHMENT (1), PART B - (DESCRIPTION OF PROCESSING SERVICES)
SECTION 1.1.5 PRIVATE PASSENGER FEES, Part "b." is hereby
deleted in its entirety and replaced with the following:
"Renewal policy records may be processed on the System for up
to sixty (60) days prior to scheduled renewal at no charge.
However, renewal policy records stored for periods greater
than sixty (60) days prior to scheduled renewal shall be
charged at the policy processing fee. Expired policies will be
retained sixty (60) days beyond the policy expiration date.
Expired policies retained for more than sixty (60) days beyond
the expiration date will be billed at the policy processing
fee".
8. ATTACHMENT 2 - (CHARGES AND FEES): is attached herein to
Addendum "G".
Except as amended by this Addendum "G" to the Agreement, all other terms and
conditions of the Agreement shall remain in full force and effect.
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COMMERCE INSURANCE COMPANY
-s- ▇▇▇▇▇▇ ▇▇▇▇
______________________________
Signature
▇▇▇▇▇▇ ▇▇▇▇
______________________________
Name
President, COO & CFO
______________________________
Title
11/19/03
______________________________
Date
CGI INFORMATION SYSTEMS & MANAGEMENT CONSULTANTS, INC.
______________________________ ______________________________
Signature Signature
______________________________ ______________________________
Name Name
______________________________ ______________________________
Title Title
______________________________ ______________________________
Date Date
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ATTACHMENT 2 (CHARGES AND FEES)
UNDERWRITING Effective: January 1, 2004
Annual License Fee $ 1,117,214.20
TELECOMMUNICATION EQUIPMENT
Network Access Charge,
1-120 Terminals, per month $ 3,600.00
121-240 Terminals, per month $ 3,600.00
Network Access (Lease-line) $ 400.00
Equipment $ 65.00
Telephone Lines, requested by Company $ AT THEN CURRENT RATES
Other Equipment, requested by Company $ AT THEN CURRENT RATES
POLICY PROCESSING-PRIVATE PASSENGER AUTOMOBILE
Annual Fee, per policy, $ 1.489618
To include:
Five Times Weekly Processing
Rating and Issuance
Renewal Records
MRB Processing
SDIP Processing
C.A.R. Processing
UMS Processing
Microfiche
Statistical Interface Files,
Provisional Tapes
SNC Lien holder Processing
FORMS
Forms fee, per policy, (Priv. Passenger) $ .595847
DSS
DSS, per policy fee, $ .893772
(Informational Inquiry included)
TRAINING
Training rate, per day* $ 920.00
Training rate, per partial day $ 500.00
*A day is defined as a period of time greater than four (4) hours.
TIME AND MATERIAL RATE
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Labor rate, per hour** $ 115.00
Materials, as required $ At Then Current Rates
**CPI adjustments throughout the Agreement term will not modify the labor rate
to exceed the CGI "At Then Current Rate".
POLICY PROCESSING - COMMERCIAL AUTOMOBILE:
Annual Fee, per % of Direct Written Premium $ .95%
Policy Assembly, Direct Written Premium:
0 - 500,000 $ .000125 / (monthly)
500,001 - 1,000,000 $ .000083 / (monthly)
over 1,000,000 $ .000042 / (monthly)
Laser Forms $ 0.031033
RMV / UMS:
Monthly Access Fee $ 1,085.57
UMS Commercial Auto Fees:
Policy Processing Fee (percent of premium):
Annual fee payable monthly
Up to $10,000,000 premium volume .30% of premium
$10,000,001 to $25,000,000 .10% of premium
$25,000,001 to $35,000,000 .05% of premium
$35,000,001 and over .03% of premium
CONTINGENT FLEET AND COMMERCIAL AUTO FEES
Commercial Automobile,
up to $500,000 in Premium Volume $ 2.0%
from $500,001 to $1,000,000 $ 1.5%
over $1,000,000 $ 1.0%
POLICY PROCESSING - GARAGE AUTOMOBILE:
Annual Fee, per % of GARAGE Interm Premium $ .95%
Declaration Pages/Forms $ .031033
COLLABORATIVEEDGE - PRIVATE PASSENGER
User Activation Fee - Per Agent Location $ 100.00
User Fee, Monthly - Per Agent Location $ 27.00
User Fee Monthly Cap $ 7,500
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User Fee Annual Cap $ 90,000.00
Monthly Transaction Fees,
Monthly Transaction Fee, if the:
Preceding 12 months < 276,000 transactions $ 0.50
Preceding 12 months 276,000 to 325,000 transactions $ 0.47
Preceding 12 months > 325,000 transactions $ 0.45
Note: "Per Agent Location" includes all of the individual personal computers
and/or user identification numbers which access the CollaborativeEdge product,
as long as all of these machines/people are at the same physical agent location.
COLLABORATIVEEDGE - COMMERCIAL AUTOMOBILE
User Activation Fee
Agent Location Activation Fee, One Time Fee: $ 100.00
Per Agent Location, Company use Fee $ 75.00*
Per Agent Location, Agent use Fee $ 25.00*
*Payable within the month of Agency location activation.
Monthly Agent location Fee
Per Agent site as follows:
Number of Agent Locations Activated Monthly Cost Per Agent Location
----------------------------------- -------------------------------
1 to 100 $ 28
101 to 200 $ 20
201 to 400 $ 6
401 to 500 $ 4
501 & greater $ 2
Transaction Fee, Upload, each $ .90
(includes transactions initiated from Agency
and Company locations).
Note: "Per Agent Location" includes all of the individual personal computers
and/or user identification numbers which access the CollaborativeEdge product,
as long as all of these machines/people are at the same physical agent location.
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EXHIBIT "1"
CONFIDENTIAL DISCLOSURE AGREEMENT
Whereas The Commerce Insurance Company and/or its subsidiaries and affiliates
(hereinafter referred to collectively as "COMMERCE") desires to obtain certain
processing and/or consulting services, ("SERVICES") from CGI Information Systems
& Management Consultants, Inc. ("CGI") pursuant to one or more Agreements
entered into by and between COMMERCE and CGI (hereinafter referred to
collectively as the "AGREEMENT"); and,
Whereas, the performance of the SERVICES by CGI may require the disclosure of
information by COMMERCE which is non-public, confidential and/or proprietary in
nature; and,
Whereas, COMMERCE desires to assure the proper use and appropriate protection of
any such information which is disclosed to CGI in furtherance of obtaining the
SERVICES;
Therefore, COMMERCE and CGI agree to the following terms and conditions ("CDA")
with respect to information provided by COMMERCE to CGI in performance of the
SERVICES in accordance with the AGREEMENT:
1. INFORMATION/CONFIDENTIAL INFORMATION DEFINED
In the performance of the SERVICES by CGI, COMMERCE may disclose to CGI,
directly or indirectly, or CGI may access, product, systems, systems
configuration, network or access data, marketing, business strategy, financial,
employment, legal or other information that is non-public, confidential and/or
proprietary in nature. The information may be disclosed in writing, electronic
or other media, or orally. Such information, in whole or in part, together with
any analyses, compilations, studies or other documents prepared by CGI, its
agents or employees, which contain or otherwise reflect such information, are
hereinafter referred to as the "INFORMATION." INFORMATION shall also include,
but not be limited to, any of COMMERCE'S non-public personally identifiable
customer or consumer information ("CUSTOMER/CONSUMER INFORMATION") as the same
is defined by applicable federal and/or state statutes and regulations.
Any INFORMATION that is disclosed by COMMERCE to CGI under the provisions of
this CDA shall be deemed confidential except: (1) as otherwise specifically
identified by COMMERCE in writing; (2) where received free of restriction from
another source having the right to so furnish such information; (3) after it has
become generally available to the public other than as a result of an
unauthorized disclosure by CGI or its agents or employees; (4) INFORMATION which
was in the rightful possession of CGI prior to execution of this Agreement; and,
(5) where disclosure is compelled by operation of law.
2. CGI'S OBLIGATIONS
CGI shall: (1) restrict permitted disclosure of the INFORMATION solely to those
of its agents or employees with a need to know, and not disclose INFORMATION to
any other individuals; (2) advise all agents, employees or subcontractors who
receive the INFORMATION of the obligation of confidentiality hereunder and
require appropriate non-disclosure assurances from such agents, employees or
subcontractors; (3) not reproduce or copy the INFORMATION, except as necessary
to effectuate the purposes provided for in the AGREEMENT or this CDA; (4) use
the INFORMATION solely for the purposes of performing in accordance with the
AGREEMENT and this CDA and in
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accordance with all applicable federal and state laws and statutes; (5) use,
disclose or re-disclose any CUSTOMER/CONSUMER INFORMATION only in accordance
with applicable federal and/or state statutes and regulations; and (6)
immediately return to COMMERCE all written or recorded materials containing
INFORMATION, together with any copies thereof upon the request of COMMERCE or
upon the termination of the CDA, whichever occurs first.
In the event that CGI determines that it may be subject to a subpoena or other
validly issued administrative or judicial process requiring or requesting
disclosure of any of the INFORMATION to a third party, CGI agrees to provide
COMMERCE with as much notice as reasonably possible to allow COMMERCE to seek
appropriate relief from the required or requested disclosure.
3. OWNERSHIP OF INFORMATION
COMMERCE shall have sole and exclusive ownership of all right, title and
interest in and to the INFORMATION, including ownership of all copyrights and
trade secrets pertaining thereto, subject only to the rights and privileges
expressly granted by it.
4. TERM AND TERMINATION OF OBLIGATIONS
This CDA shall terminate upon termination of the AGREEMENT. Following
termination of this CDA and the proper return of all INFORMATION, the
confidentiality obligations set forth herein shall continue in effect for a
period of three (3) years, except that confidentiality obligations with respect
to any technical INFORMATION which constitutes a trade secret shall continue in
effect for so long as the INFORMATION remains a trade secret, the provisions
hereof regarding ownership shall continue in effect for so long as necessary to
give full effect thereto, and all CUSTOMER/CONSUMER INFORMATION shall remain
confidential without limitation.
5. REMEDIES FOR BREACH
CGI agrees that, in the event of any breach of any provision hereof, COMMERCE
will not have an adequate remedy in money or damages, and shall be entitled to
obtain injunctive relief in any court of competent jurisdiction without the
necessity of posting a bond, even if otherwise normally required. Such
injunctive relief will in no way limit COMMERCE's right to obtain other remedies
available under applicable law.
6. AUTHORITY OF PARTIES/WAIVER/ENTIRE AGREEMENT
COMMERCE and CGI warrant that each is empowered to make and enter into this CDA
and that performance hereunder will not conflict with other obligations of
either party.
Any failure by COMMERCE to enforce any rights under this CDA shall not be
construed as a waiver of such rights, nor shall a waive in one or more instances
be construed as constituting a continuing waiver or as a waiver in other
instances.
This CDA contains the entire understanding between the parties regarding the
subject matter hereof, and may not be altered, modified or amended in any manner
except in writing signed by both parties. To the extent that any of the
provisions in the CDA conflicts with any other agreement, the terms of this CDA
shall supersede and control. This CDA shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
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