MASTER AGREEMENT BETWEEN WELLPOINT, INC. AND SUPPLIER AGREEMENT NUMBER:
Exhibit
10.1
MASTER
AGREEMENT BETWEEN WELLPOINT, INC. AND SUPPLIER
AGREEMENT
NUMBER:
This
Master Agreement, by and between WELLPOINT, INC., an Indiana corporation, on
behalf of itself and its affiliates (“WellPoint”), and Chordiant Software, Inc.,
a Delaware corporation, (“Supplier”), is entered into as of June 15, 2007, (the
“Effective Date”), including any Exhibits and/or Statements of Work, which
together form the Agreement between the Parties.
In
consideration of the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree
to
the terms and conditions contained in this Master Agreement.
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1.
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DEFINITIONS;
CONSTRUCTION.
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1.2
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“Agreement”
means (a) this “Master Agreement” (“Master Agreement”), (b) any other
Exhibits in effect and included in the Agreement between the Parties
as
set forth in Section B.1 and (c) any Statement of Work that is entered
into and signed by both Parties pursuant to a particular Exhibit,
as well
as any Exhibit or Statement of Work entered into subsequent to the
Effective Date of the Agreement.
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1.3
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“Deliverables”
is a subset category of Products and shall mean those Products for
which
title and ownership passes to WellPoint, and which are described
in a
specific Exhibit, Statement of Work, or attachment thereto. The
term “Deliverables” includes anything that is developed and customized
specifically for WellPoint, in which case it may constitute “Works” as
agreed to by the Parties. If the Agreement includes provision
of “Works” by Supplier to WellPoint, the term “Deliverables” shall be
construed as including such
“Works”.
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1.4
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“Documentation”
shall mean all manuals, descriptions, instructions or other materials
describing the operation, maintenance, functionality and use of the
Deliverables.
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1.5
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“Exhibit”
or “Exhibits” shall mean any and all Exhibits in effect between the
Parties as set forth in Section B.1 herein (or otherwise entered
into in a
writing signed by both Parties if entered into subsequent to the
Effective
Date).
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1.6
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“Master
Agreement” means this document.
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1.7
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“Party”
means WellPoint or Supplier; “Parties” means WellPoint and
Supplier.
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1.8
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“Product”
shall mean all software, licenses, materials, systems, and/or processes,
as applicable, provided by Supplier and delivered or made accessible
to
WellPoint for WellPoint’s use or benefit as identified in an Exhibit or
Statement of Work, as applicable, but excluding any
Services. The term Product also includes Deliverables if the
Agreement includes any Deliverable to be provided by Supplier to
WellPoint
(including any Deliverable that constitutes
“Works”).
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1.9
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“Software”
means the software referenced in a particular Order Schedule and
distributed by Supplier for which WellPoint is granted a license
pursuant
to this Agreement. Software
is
a subset of Products.
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1.10
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“Receipt”
shall have the meaning ascribed to such term in Section 15.8
(Notices).
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1.11
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“Services”
shall mean all services performed by Supplier, if any, under this
Agreement and, where applicable, shall be identified with particularity
in
each Exhibit and/or Statement of Work relating to such Services,
but
excluding Products.
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1.12
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“Works”
shall mean all work product and related documentation, in whatever
stage
of completion, if any, created in connection with and during the
performance of this Agreement, and shall be identified as such and
with
particularity in the appropriate Exhibit and/or Statement of Work
relating
to such Works. Works is a subset of
Products.
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1.13
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Each
Exhibit and Statement of Work, as applicable, is an independent obligation
of the Parties, and each Exhibit and Statement of Work if not entered
into
as of the Effective Date shall commence as of the commencement date
set
forth in (or if not specified, as of the date last set forth in the
signature area of the) relevant Exhibit and/or Statement of
Work. The definitions contained in this Master Agreement and
the provisions of each Exhibit in effect between the Parties shall
apply
to each Exhibit. To the extent that any conflict arises between
an Exhibit and any of the Statements of Work, the provisions of the
Exhibit shall prevail.
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1.14
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Each
Party agrees to perform the obligations and provide the rights and
benefits set forth in each Exhibit entered into under this
Agreement. Each Party acknowledges that it may take advantage
of any rights granted to it under the
Agreement.
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2.1
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Overview
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WellPoint,
Inc., Attn: Accounts Payable, Mail Point OH41-B 263, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
P.O.
Box [ * ]
San
Jose, CA [ * ]
Or
wire to:
Comerica
Bank
Chordiant
Software, Inc.
Account#:
[ * ]
Routing
#: [ * ]
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2.2
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Procurement
Process Technology
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2.3
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2.4
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2.5
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2.6.1
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WellPoint
may from time to time hire outsourcers, subcontractors, consultants,
or
other third parties (“WellPoint Third-Party Contractors”) to perform
services or provide products or deliverables, or perform administrative,
maintenance and other business and operational functions relating
to
WellPoint’s business, to WellPoint. Moreover, the Services
and/or Products provided by Supplier hereunder may be
integrated with projects, services, implementations or other deployments
for which WellPoint and/or WellPoint Third Party Contractors are
providing
Services (an “Integrated Project”) and Supplier acknowledges and agrees
cooperation among all such service providers is of utmost importance
for
the success of the Integrated Project and avoidance of disruption
to
WellPoint’s business and operations. Supplier shall cooperate
with and work in good faith with any WellPoint Third-Party Contractors
as
reasonably requested by WellPoint and/or as mutually agreed to under
the
terms of an applicable Statement of Work. Such cooperation may
include (but is not limited to) knowledge sharing of standards,
policies, quality assurance and testing processes, as applicable,
to
ensure smooth deployment of Integrated Projects and/or the smooth
and
efficient transition of any Services (or component of Services) to,
from,
or among WellPoint, Supplier and any Third Party
Contractor.
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3.
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DISPUTE
RESOLUTION.
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3.3
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Continued
Services
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3.3.1
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Notwithstanding
any dispute, Supplier shall continue timely performance of any services
it
provides or its other obligations under this Agreement during the
period
of management escalation and binding arbitration pursuant to Sections
3.1
and 3.2 above; provided that Supplier shall not be obligated to continue
to provide services for which WellPoint disputes payment for more
than
three months from the commencement of the binding arbitration unless
the
arbitrator otherwise directs in a written ruling and that WellPoint
continues to pay Supplier for all undisputed services within 30 days
of
receipt of a proper invoice as provided for in Section
2.1.1.
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3.4
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Statute
of Limitations
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4.1
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Annual
Business Review
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4.2.2
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Relationship
Manager: At WellPoint’s request, Supplier shall also designate an Account
Manager who shall act as liaison with WellPoint on behalf of Supplier
with
respect to the relationship and responsibilities of the
Parties. Such Account Manager shall be responsible for
coordinating and managing delivery of all Services and/or Products,
and
also for coordinating, cooperating and resolving any concerns, service
problems or other matters relating to the overall relationship between
the
Parties. The Account Manager shall have full authority to act
on Supplier’s behalf with respect to all matters relating to this
Agreement; provided that any amendment to this Agreement (or any
Exhibit
or Statement of Work hereunder) will not be effective until it is
executed
by duly authorized representatives of both parties. WellPoint
shall designate a corresponding Account Manager to act as liaison
on
behalf of WellPoint.
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4.4.1
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The
Services to be performed and Deliverables to be provided by Supplier
at
WellPoint’s request will be described in a Statement of Work that must be
signed by an officer of each party. Each Statement of Work
shall, in each case, if applicable: (i) state the responsibilities
of the
Supplier regarding such Services, Deliverables, project; (ii) state
the
compensation, including any hourly rates or fixed fees, relevant
payment
milestones, payment schedule, holdbacks, and related terms; (iii)
contain
a description of the relevant Services, specifications, locations,
schedules, systems, technologies, success measures and performance
goals,
deliverables, software, technologies, response time parameters,
performance goals, project objectives, project milestones, Incentives,
and
termination assistance, as applicable; (iv) identify the names of
the
following personnel (as defined in Article 4 herein), including (a)
the
WellPoint Project Manager, who will be authorized to act as WellPoint’s
primary contact for Supplier with respect to the parties’ obligations
under the Statement of Work, and (b) Supplier’s key project personnel,
including (x) the name of the Supplier Project Manager (as defined
in
Article 4 herein), who will be authorized to act as Supplier’s primary
contact for WellPoint with respect to the parties’ obligations under the
Statement of Work, and (y) the names of any other key project personnel,
if any (collectively, the “Key Employees”) and the percentage of each Key
Employee’s time that will be dedicated to the project covered by the
Statement of Work; (v) describe the start date, location and scheduled
completion of any discrete projects or phases of projects or Deliverables;
(vi) set forth the specifications of any project, project phases,
and/or Deliverables; (vii) set forth the project milestones or
other assessment points; (viii) identify additional charges, if any,
for
any installation or training; (ix) be consecutively numbered; (x)
if
approved or designated by WellPoint, describe with particularity
any
subcontractors who will be performing Services or providing Deliverables
and the nature and scope of such subcontract (including providing
WellPoint with a copy of the subcontract terms; and (xi) be dated
and
signed by each party.
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4.5
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Changes;
No Scope Creep.
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4.5.1
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Unless
expressly provided otherwise herein, all amendments to a Statement
of Work
must be in writing and must be signed by authorized representatives
of
WellPoint and Supplier. It is crucial that authorized WellPoint
officials approve any change in the scope of a Statement of Work,
especially an expansion in scope, before the change is
implemented. Any change in the scope or objective of a
Statement of Work or in the Services to be performed under a Statement
of
Work must be approved, prior to the change being made, by modifying
the
Statement of Work in a writing signed by an authorized representative
of
each Party. WellPoint will not be liable for payment for work
performed beyond the scope of the Statement of Work unless written
approval for scope expansion was granted in advance of the additional
work
being performed. Any modification to this Agreement other than
to a Statement of Work shall be forwarded to WellPoint’s legal department
for review reasonably in advance of
execution.
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4.5.2
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WellPoint
may, at any time, by written notice to Supplier, request changes
to a
Statement of Work (a “Change
Request”).
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4.5.3
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For
fixed fee Statements of Work, if the Change Request causes an increase
in
the time required to implement the project, as changed, which is
greater
than the threshold specified in the Statement of Work, an equitable
adjustment will be made to the contract price, the performance schedule,
or both. Upon Supplier’s receipt of a Change Request, Supplier
will promptly provide WellPoint with an estimate of the impact (with
such
estimate to be provided at no charge to WellPoint), if any, of such
change
on the price or performance schedule. If the parties mutually
agree to the impact of such change, a written description of the
agreed
change (a “Change Authorization”) will be prepared which must be signed on
behalf of WellPoint, by the WellPoint Project Manager and, if the
value of
the Change Request exceeds $50,000 or 10% of the value of the Statement
of
Work, a WellPoint Vice President, and on behalf of the Supplier,
by an
authorized representative of the Supplier before it is
binding. In the event of any conflicts or inconsistency, the
terms of a Change Authorization shall prevail over those of the Statement
of Work. Any disagreement between the parties concerning the
impact of the Change Request will be treated as a dispute subject
to
resolution pursuant to the dispute resolution procedures of this
Agreement. No verbal request for change will have any effect,
and Supplier is not entitled to any adjustment in price or performance
schedule for changes: (i) which are not authorized by a written
Change Authorization signed by the WellPoint Project Manager or Vice
President, as applicable, (ii) unless agreed to in a separate Statement
of
Work signed by authorized representatives of both parties, or (iii)
resolved pursuant to the dispute resolution procedures herein for
any
unagreed Change Request.
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4.6
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Third-Party
Software.
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4.6.1
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Clearance
for Certain WellPoint Provided Software. If WellPoint is to be
providing any software or access to software to Supplier for a particular
project, the applicable Statement of Work shall either (i) list all
third-party software that Supplier will have access to or use in
the
course of its performance of that Statement of Work supplied by WellPoint,
or (ii) it shall state when the identity of such software to be supplied
or made accessible by WellPoint will be known to the
parties. Before commencement of Supplier’s Services (if
specified on the applicable Statement of Work) or before such software
is
accessed or used by Supplier (if the software is not specified on
the
applicable Statement of Work), WellPoint must ascertain whether it
has the
license rights to permit Supplier to access and use the third-party
software needed for such Project. WellPoint may cancel or
postpone any specific work with Supplier (without any financial penalty
and without such cancellation constituting a breach of contract by
WellPoint) if WellPoint determines that it does not possess the needed
license for Supplier to perform the Services for which such third-party
software is needed, and Supplier shall not be penalized financially
or
otherwise be in breach of contract if it fails to meet any milestones
or
timelines set forth in any Statement of Work on account of such
cancellation by WellPoint.
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4.6.2
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Use
of WellPoint Provided Software. If applicable, for each item of
third-party software to which WellPoint provides Supplier access
or use of
pursuant to a Statement of Work, Supplier must deinstall and return
all
such software to WellPoint upon the expiration or termination of
a
Statement of Work or at WellPoint’s request (and, at WellPoint’s request,
provide an officer’s written certification it has done
so). Supplier may use or have access to such software only for
the purpose of performing the applicable Statement of Work and any
other
use is strictly prohibited. Supplier shall adhere to any
third-party software license limitations when informed of, or provided
with, those limitations, and shall indemnify, protect and defend
WellPoint
for any misuse by Supplier or its
personnel.]
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4.7
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Subcontractors.
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4.7.1
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Any
Services or Deliverables provided by approved subcontractors shall
be
subject to these same procedures as if the Service or Deliverable
were
provided directly by Supplier.
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5.1. Steering
Committee. The parties shall form a committee comprised of the
respective Project Managers (as hereafter defined) and an equal number of
representatives from each of the parties, which will monitor the progress of
the
Services being performed hereunder (the “Steering Committee”). At a
minimum during implementation phases of the project, the Steering Committee
will
hold meetings at least once a month to review the status of all projects, review
the benchmarks and metrics established for each of the projects, and review
best
practices across each of the projects. The parties may provide in a
Statement of Work for a different schedule of Steering Committee meetings upon
completed implementation of the project.
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5.1
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5.1.2
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No
Changes by Supplier: Except as may be necessary on an emergency basis,
as
determined by WellPoint (if this is determined by WellPoint, an individual
at WellPoint must be available to Supplier at all hours to respond
to
emergencies), no changes, modifications or enhancements in Services
shall
be made without WellPoint’s prior written consent, which shall be provided
at its sole discretion, unless such change, modification or enhancement:
(a) has no impact on the Services being provided by Supplier; (b)
has no
impact on the security of WellPoint Data and WellPoint’s systems; and (c)
causes no increase in fees or other costs chargeable to WellPoint
hereunder. If an emergency arises which requires Supplier to
make a change, modification or enhancement to the Services, Supplier
shall
notify WellPoint thereof as soon as
practicable.
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6.1
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Term
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6.1.1
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This
Agreement shall commence as of the Effective
Date, and shall continue in effect until the expiration or termination
as
provided for herein. The Parties may provide that a particular
Exhibit, or a particular Statement of Work, have a different commencement
and/or termination date. The initial term and any renewal term
of this Agreement or any Exhibit shall be referred to herein as the
“Term.” The Agreement shall commence upon execution of this
Master Agreement and shall expire upon the expiration or termination
of
the last remaining Exhibit or Statement of Work in effect, unless
otherwise terminated as provided for
herein.
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7.1
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Overview
of Materials and
Ownership
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7.4
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Works
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8.
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8.1
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8.1.1
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To
the extent made accessible to Supplier, all WellPoint Confidential
Information (as defined below) shall be stored in secure locations
consistent with high industry standards for access control, prevention
of
data piracy by employees, subcontractors or other third-parties,
virus and
“Trojan Horse” detection and prevention, and intrusion detection and
prevention.
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8.2
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9.
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CONFIDENTIALITY.
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9.1
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HIPAA
and Medicare
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10.
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11.1
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Overview
of Representations and
Warranties
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11.2
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(a) Existence. Supplier
is duly organized and existingand is in good standing and is qualified to do
businessunder the laws of any jurisdiction where the ownership ofassets or
conduct of its business require it to be so qualified, and Supplier possesses
any and all licenses and/or governmental approvals required to perform the
Services and/or to provide the Products contemplated by this Agreement, and
is
qualified to perform such Services and/or provide such Products.
(b) Duly
Authorized. Supplier’s execution, deliveryand performance of this
Agreement has been dulyauthorized by all appropriate corporate action and
thisAgreement constitutes a valid, binding and enforceable
obligation.
(c) No
Conflict. Neither the execution, delivery, norperformance of this
Agreement will conflict with or violateany other agreement, license, contract,
instrument or other commitment or arrangement to which supplier is a party
or is
bound.
(d) No
litigation. There is no litigation and Supplierknows of no
material threat of litigation that will affect theperformance of its obligations
hereunder.
(e) No
Material Defects. Any Software to be provided by Supplier
hereunder shall substantially conform to all written Documentation provided
by
Supplier and function properly in all material respects when operated in the
Supported Environment (as defined in Exhibit LI); the Documentation and other
materials describing the Software hereunder completely and accurately reflect
their operation and functionality. Supplier does not warrant that the
operation of the Software provided will be uninterrupted or error
free.
(f) Noninfringement.
All Products, and all elementsthereof to be provided by Supplier, if any, unless
providedby WellPoint, and any Services performed by Supplier, will not violate,
misappropriate or infringe upon any patent, copyright, trademark, trade secret,
or other intellectual, contractual, employment, or confidentiality right of
a
third party; to the extent Supplier incorporates any open source
software
in the Software, it has
complied with and shall
remain
responsible and liable for
compliance with all terms
of
any applicable open source
software.
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(g) Performance. To
the extent Supplier is performing Services, that, at all times during the Term,
Supplier has and will maintain the experience and skill to perform the Services
required to be performed by it hereunder and will perform such Services in
a
workmanlike, competent, timely, and professional manner: At a
minimum, Supplier will maintain staffing levels and continuity of personnel
consistent with its obligations to perform Services hereunder and in the event
of a delay or other problem, Supplier will train and staff additional personnel
as needed.
(h) Personnel. Each
of Supplier’s personnel assigned toperform Services or any other obligations
under theAgreement shall have the proper skill, training andbackground so as
to
be able to perform in a competent and professional manner.
(i) Supplier’s
Employees. Supplier shall perform allobligations of an employer with respect
to all personnelhired by Supplier in connection with any Services
and/orDeliverables to be provided, if any, including, but not limited to the
withholding and reporting of contributions, insurance deductions and applicable
taxes (including payroll and unemployment insurance taxes) required by
applicable law.
(j) Continuity
of Key Personnel. Key personnel, if sospecified in a Statement of
Work, shall be assignedpursuant to such Statement of Work and, should any
suchkey personnel be unable to perform their obligations for any reason, that
Supplier shall replace such personnel as quickly as possible with personnel
approved by WellPoint in its sole discretion.
(k) Rights
in Deliverables and/or Other Products. Tothe extent Supplier
isproviding Deliverables and/or OtherProducts, that Supplier has all rights
necessary to deliver Deliverables, Products or other items to be provided to
WellPoint under any Exhibit and/or Statement of Work for WellPoint’s use and
enjoyment as contemplated herein; and that unless otherwise specified in a
Statement of Work or attachment thereto, Supplier shall deliver all Deliverables
and/or other Products to WellPoint free and clear of any liens, claims, charges
or encumbrances; and that Supplier has proper title in all
Deliverables and/or other products for which ownership is to be transferred
to
WellPoint.
(l) No
Disabling Devices. All Products and/orServices provided by
Supplier, if any, do not, and will notwhen delivered or provided, contain any
computer code (i)designed to disrupt, disable, harm, or otherwise impede in
any
manner, including aesthetical disruptions or distortions, the operation thereof,
or any other associated software, firmware, hardware, computer system or network
(sometimes referred to as “viruses” or “worms”) (and supplier has taken
reasonable steps to test for, and has found no such, viruses or worms); (ii)
that would disable or impair in any way the operation thereof based on the
elapsing of a period of time, the exceeding of an authorized number of users
or
copies, or the advancement to a particular date or other numeral (sometimes
referred to as “time bombs”, “time locks”, or “drop dead” devices), or (iii)
that would permit access by Supplier to cause such disablement or impairment
(sometimes referred to as “traps”, “access codes” or “trap door” devices), or
any other similar harmful, malicious or hidden procedures, routines or
mechanisms that would cause the any Product or Service to cease functioning
or
to damage or corrupt data, storage media, programs, equipment or communications,
or otherwise interfere with operations;
(m) Alpha/Beta
Site. Supplier shall not use WellPointas an alpha or beta site
for any Products or Services to beprovided, if any, without the prior written
consent ofWellPoint.
(n) Government
Programs. Supplier is not, and shallnot be during the Term, (i)
excluded from participation inthe Medicare, Medicaid and/or any state health
care program; (ii) listed on any General Services Administration List of Parties
Excluded from Federal Procurement and Non-procurement Programs; (iii) sanctioned
by the United States Department of Health and Human Services, Centers for
Medicare and Medicaid Services, Office of Inspector General, or any other
federal agency; and (iv) under a corporate integrity agreement with the United
States Department of Health and Human Services, Office of Inspector General,
or
any other federal agency for any violation judicially determined by a court
of
final jurisdiction.
(o) Criminal
Convictions. Supplier has not been, andshall not during the Term
be, convicted of a criminaloffense related to the delivery of an item or service
underMedicare, Medicaid and/or under any state heath care program.
(p) DISCLAIMER
OF WARRANTIES. Except as specifically provided in this entire
Agreement (including any exhibit, attachment, schedule, or Statement of Work),
Supplier disclaims all warranties, whether express, implied or statutory,
including all implied warranties of merchantability or fitness for a particular
purpose.
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12.
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12.1
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Overview
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12.2.2
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Supplier
shall have no liability for any claim of infringement based on use
of a
superseded or altered release of Software if the infringement would
have
been avoided by the use of a current unaltered release of the Software
which Supplier makes available to WellPoint; because Supplier has
committed to supporting the current release and certain prior versions
(as
described in Exhibit LI) (the “Supported Releases”), a Supported Release
shall not constitute a superseded release subject to the exception
set
forth in this subparagraph unless and until Supplier has made available
to
WellPoint a new release that is intended to correct any potential
infringement and Supplier states explicitly this purpose of the release
at
the time it is provided to WellPoint. Moreover, any
modification or alteration made at the direction of or with the approval
of Supplier (or its agents or subcontractors) shall not constitute
an
altered release for purposes of the exceptions set forth in this
subparagraph . For the sake of clarification, Supplier shall be
liable for any claim of infringement based on the use of the allegedly
infringing software for the entire period of time of its use prior
to the
time the Supplier makes available to WellPoint a current unaltered
release.
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12.2.3
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If
a third party claim results in preventing WellPoint from using the
Software or if Supplier, in its reasonable opinion, believes that
the
Software is likely to be held as infringing, Supplier shall have
the
option, at its expense, to (i) modify the Software to be
non-infringing so long as it shall not impair the functionality or
performance of the Software, or (ii) obtain for WellPoint, at no
additional cost to WellPoint, a license to continue using the
Software. If it is not commercially reasonable to perform
either of the above options, then Supplier may terminate the license
for
the infringing Software and refund the License Fees paid for the
applicable Software license. This Article 12 states Supplier’s
entire liability and WellPoint’s exclusive remedy for
infringement.
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13.
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LIMITATION
OF LIABILITY.
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13.1
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No
Consequential Damages
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14.
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14.1
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14.1.1. Restrictions. Supplier
shall directly render all Services exclusively through its employees and shall
not use any subcontractors except as may be authorized by WellPoint pursuant
to
this Article 14. Prior to subcontracting any of the Services,
Supplier shall notify WellPoint of the proposed subcontractor and shall obtain
WellPoint’s approval of such subcontractor, which approval may be given in
WellPoint’s sole discretion. Prior to supplementing the scope of
services for any previously approved subcontract relating to the Services,
Supplier shall provide WellPoint with a summary description of the proposed
supplement and shall obtain WellPoint’s approval thereof.
14.1.2.
WellPoint Designated Subcontractors. WellPoint may recommend
Supplier to contract with one or more specified subcontractors to perform
services on behalf of WellPoint under the direction and control of
Supplier.
▇▇.▇.▇.▇▇
Release of Supplier. No subcontracting shall release Supplier
from its responsibility for its obligations under this
Agreement. Supplier shall be responsible for the work and activities
of each of the Supplier subcontractors, including compliance with the terms
of
this Agreement (and Supplier shall be jointly and severally liable for any
subcontractor breaches thereof), including with respect to Confidential
Information and Protected Health Information and Nonpublic Personal Financial
Information as defined in Article 9 and the exhibits referenced
therein. Supplier shall be responsible for all payments to its
subcontractors.
14.1.4.Prompt
Payment. Supplier shall promptly pay for all services, materials,
equipment and labor used by Supplier in providing the Services in accordance
with this Agreement and Supplier shall keep WellPoint’s premises free of all
liens and encumbrances from Supplier subcontractors.
14.1.5.Removal
of Subcontractor. WellPoint may request, by notice, that Supplier
replace any subcontractor for the reasons stated in such
notice. After receipt of such notice, Supplier shall have five days
in which to investigate the matters stated and discuss its findings with
WellPoint. In the event that, following that five-day period,
WellPoint still requests replacement of the Supplier subcontractor, Supplier
shall, subject to the other provisions of this Agreement, cease using such
Supplier subcontractor to provide the Services. For the avoidance of
doubt, WellPoint will not have the right under this Section 14.1.5 to require
Supplier, or any subcontractor, to terminate any individual’s
employment. In the event that, in its reasonable discretion,
WellPoint believes that any Supplier subcontractor (or individual retained
by
such Supplier subcontractor) is a threat to the health, safety or security
of
any of WellPoint’s, a WellPoint affiliate’s or a third-party’s personnel, data
or property, or is disruptive to WellPoint’s or a WellPoint affiliate’s
provision of health care services, or threatens to be, or is in breach of the
terms of this Agreement or any WellPoint policy or procedure which was
previously provided to Supplier, then WellPoint shall have the right to remove
that Supplier subcontractor from the provision of the Services and, without
limiting the foregoing, WellPoint shall have the right to restrict such Supplier
subcontractor’s access to WellPoint’s or any WellPoint affiliate’s facilities
and systems at its sole discretion.
14.1.6.Assignments. Supplier
shall not use any subcontractor, without first assigning all right, title and
interest in any services performed by the subcontractors to Supplier, and
obtaining such agreements from the subcontractors, evidenced by written
contract, as are necessary for such assignment.
14.1.7.Subcontractor
Compliance. Supplier shall be responsible for each
subcontractor’s compliance with the terms of the Agreement as well as for the
subcontractor’s performance of any Services. Regardless of any
subcontract, Supplier shall remain WellPoint’s sole point of contact under the
Agreement.
|
15.
|
|
15.1
|
Assignment
|
|
15.6
|
|
15.7
|
|
15.7.1
|
The
Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana, without giving
effect
to its conflict of laws
principles.
|
|
15.8
|
For
WellPoint:
WellPoint,
Inc.
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
General
Counsel
Facsimile
Number:
With
a mandatory copy
to:
WellPoint,
Inc.
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Vice President, Strategic
Sourcing
Facsimile
Number:
For
Supplier:
Chordiant
Software, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn.:
General Counsel
Facsimile
Number: (▇▇▇)
▇▇▇-▇▇▇▇
|
15.9
|
|
15.9.1
|
No
modification to the Agreement shall be valid unless
in writing and signed by each Party. The waiver by either Party
of a breach by the other Party of any provision set forth herein
or in any
Exhibit or this Master Agreement or of any right contained herein
or in
any Exhibit or this Master Agreement shall not operate as or be construed
as a modification, continuing waiver or a waiver of any subsequent
breach
or right granted herein. Nothing on any invoice, purchase order
acknowledgment, shrink wrap license or any other “boilerplate” or standard
terms issued by Supplier at any time during the Term shall
contradict, vary or amend the terms of this Agreement and any contrary
or
differing term shall have no force and
effect.
|
|
15.10
|
|
15.11
|
|
15.12
|
|
15.13
|
|
15.14
|
|
15.15
|
|
15.18
|
|
15.19
|
|
15.21
|
B. EXHIBITS
|
1.
|
Overview
of Exhibits
|
|
(1)
|
Exhibit
BAA (Business Associate
Addendum)
|
|
(2)
|
Exhibit
ET (E-Trading Partner Provisions)
|
|
(3)
|
Exhibit
MCG (Medicare Compliance
General)
|
|
(4)
|
Exhibit
MCS (Medicare Compliance Specialty)
|
|
(5)
|
Exhibit
EX (Supplier Reimbursable
Expense Guidelines)
|
|
(6)
|
Exhibit
PS (Professional Services)
|
|
(7)
|
Exhibit
LI (Software License
Terms)
|
|
(8)
|
Exhibit
LI Order (Software
License Order)
|
|
(9)
|
Exhibit
ES (Escrow
Agreement)
|
IN
WITNESS WHEREOF, the undersigned have executed this Master Agreement and agree
to be bound by its provisions as of the Effective Date.
Chordiant
Software,
Inc. WellPoint,
Inc.
|
SUPPLIER
|
COMPANY
|
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇
By: /s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇
▇.
▇▇▇▇
Its: Chief
Financial
Officer Its: Vice
President
Sourcing
&
Supplier Performance
Date: June
15,
2007 Date: June
28, 2007
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇▇ June
15, 2007
EXHIBIT
BAA
BUSINESS
ASSOCIATE ADDENDUM
This
agreement (“Agreement”) is effective on June 15, 2007, and is between Chordiant
Software, Inc. (“Business Associate”) and WellPoint, Inc on behalf of
itself and its affiliates who are Covered Entities or Business Associates and
who have a business relationship with Business Associate, if any (hereinafter
collectively “Company”). The purpose of this Agreement is to comply
with the requirements of the Health Insurance Portability and Accountability
Act
of 1996 and its implementing regulations (45 C.F.R. Parts 160-64), any
applicable state privacy laws, any applicable state security laws, Title V
of
the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (15 ▇.▇.▇. §▇▇▇▇ et seq.) and any applicable
implementing regulations issued by the Insurance Commissioner or other
regulatory authority having jurisdiction. All capitalized terms in
this Agreement that are not defined in this Agreement will have the meaning
ascribed to those terms by 45 C.F.R. Parts 160-164, the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act
(GLBA) or applicable Insurance Commissioner regulations implementing GLBA that
are applicable to Company’s relationship with Business Associate.
|
1.1
|
Permitted
and Required Uses and
Disclosures
|
|
1.5.0.1
|
Disclosure
to or request by a Health Care Provider for
Treatment;
|
|
1.5.0.2
|
Use
for or Disclosure to an Individual who is the subject of Company’s PHI, or
that Individual’s Personal
Representative;
|
|
1.5.0.3
|
Use
or Disclosure made pursuant to an authorization compliant with 45
C.F.R.
§164.508 that is signed by an Individual who is the subject of Company’s
PHI to be used or disclosed, or by that Individual’s Personal
Representative;
|
|
1.5.0.4
|
Disclosure
to the United States Department of Health and Human Services (“HHS”) in
accordance with Section C(5) of this
Agreement;
|
|
1.5.0.5
|
Use
or Disclosure that is Required by Law;
or
|
|
1.5.0.6
|
Any
other Use or Disclosure that is excepted from the Minimum Necessary
limitation as specified in 45 C.F.R.
§164.502(b)(2).
|
|
1.6
|
|
2.2
|
Business
Associate will not develop any list, description or other grouping
of
Individuals using NPFI received from or on behalf of Company, except
as
permitted by this Agreement or in writing by Company. Business
Associate will not request, Use or disclose any list, description
or other
grouping of Individuals that is derived using such NPFI, except as
permitted by this Agreement or in writing by
Company.
|
|
3.1
|
Business
Associate will require any of its subcontractors and agents to provide
reasonable assurance, evidenced by written contract, that subcontractor
or
agent will comply with the same privacy and security obligations
as
Business Associate with respect to such PHI and
NPFI.
|
|
4.2
|
No
later than the mandatory compliance date set forth in 45 Code of
Federal
Regulation §164.318, Business Associate will also develop and use
appropriate administrative, physical and technical safeguards to
preserve
the Availability of electronic PHI, in addition to preserving the
confidentiality and integrity of such PHI. The
“appropriate safeguards” Business Associate uses in furtherance
of 45 Code of Federal Regulation §164.530(c), will also meet the
requirements contemplated by 45 Code of Federal Regulation Parts
160, 162
and 164, as amended from time to time. In addition to reporting
to Company any Use or Disclosure of PHI not permitted by the Agreement,
Business Associate will also promptly report any Security Incidents
of
which Business Associate is aware, as detailed in Section D 1 of
this
Agreement.
|
|
4.3
|
The
safeguards must also comply with requirements of insurance regulations
implementing the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act applicable to Company’s
relationship with Business Associate with respect to Company’s
NPFI.
|
|
4.4
|
Business
Associate shall provide Company with such information concerning
such
safeguards as Company may from time to time request, and shall, upon
reasonable request, give Company access to Business Associate’s facilities
used for the maintenance or processing of PHI, for inspection and
copying,
and to its books, records, practices, policies and procedures concerning
the Use and Disclosure of PHI, for the purpose of determining Business
Associate’s compliance with this
Agreement.
|
|
5.
|
Security
Policies
|
|
5.1
|
Overview.
|
|
5.2
|
Compliance
with Standard
Transactions
|
|
5.2.1
|
Overview
of compliance with Standard
Transactions
|
|
5.2.1.1
|
If
Business Associate conducts in whole or part Standard Transactions
on or
after October 16, 2003, for or on behalf of Company, Business Associate
will comply, and will require any subcontractor or agent involved
with the
conduct of such Standard Transactions to comply, with each applicable
requirement of 45 C.F.R. Part 162 for which HHS has established Standards.
Business Associate will comply by a mutually agreed date, but no
later
than the date for compliance with all applicable final regulations,
and
will require any subcontractor or agent involved with the conduct
of such
Standard Transactions, to comply, with each applicable requirement
of the
Transaction Rule 45 C.F. R. Part 162. Business Associate agrees
to demonstrate compliance with the Transactions by allowing Company
to
test the Transactions and content requirements upon a mutually agreeable
date. Business Associate will not enter into, or permit its
subcontractors or agents to enter into, any trading partner agreement
in
connection with the conduct of Standard Transactions for or on behalf
of
Company that (i) changes the definition, data condition or use of
a data
element or segment in a Standard Transaction; (ii) adds any data
elements
or segments to the maximum defined data set; (iii)Uses any code
or data element that is marked “not used” in the Standard Transaction’s
Implementation Specification or is not in the Standard Transaction’s
Implementation Specification; or (iv) changes the meaning or intent
of the
Standard Transaction’s Implementation
Specification.
|
|
5.2.4.2
|
Business
Associate further agrees to comply with any guidelines or requirements
adopted by Company consistent with the requirements of HIPAA and
any
regulations promulgated thereunder, governing the exchange of information
between Business Associate and the
Company.
|
|
6.1
|
|
6.1.1
|
Business
Associate will promptly upon Company’s request make available to Company
or, at Company’s direction, to the Individual (or the Individual’s
Personal Representative) for inspection and obtaining copies any
PHI about
the Individual which Business Associate created or received for or
from
Company and that is in Business Associate’s custody or control, so that
Company may meet its access obligations pursuant to and required
by
applicable law, including but not limited to 45 C.F.R.
164.524.
|
|
6.2
|
|
6.3.1
|
Overview
of Disclosure
Accounting
|
|
6.3.2
|
|
6.3.3
|
Exceptions
from Disclosure
Tracking
|
|
6.3.3.1
|
Business
Associate need not report Disclosure of information or otherwise
account
for Disclosures of PHI that this Agreement or Company in writing
permits
or requires (i) for the purpose of Company’s Treatment activities, Payment
activities, or Health Care Operations; (ii) to the Individual who
is the
subject of the PHI disclosed, to that Individual’s Personal Representative
or to another person or entity authorized by the
Individual; (iii) to persons involved in that individual’s
Health Care or Payment for Health Care; (iv) for notification for
disaster
relief purposes; (v) for national security or intelligence purposes;
(vi)
to Law Enforcement Officials or Correctional Institutions regarding
Inmates; or (vii) disclosed in a limited data set. Business Associate
need
not report any Disclosure of PHI that was made before April 14,
2003.
|
|
6.3.5
|
Confidential
Communications and Restriction
Agreements
|
|
7.
|
Breach
of Privacy and Security
Obligations.
|
|
7.1
|
Reporting
|
|
7.1.1
|
Business
Associate will report to Company any Use or Disclosure of PHI (including
Security Incidents) not permitted by this Agreement or in writing
by
Company. Business Associate will promptly, but no later than
within one (1) business day after Business Associate’s discovery of the
breach, make the report as instructed on Company’s website,
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ after Business Associate learns of such non-permitted
or
prohibited Use or Disclosure.
|
|
7.1.2
|
Business
Associate’s report will at least: (a) Identify the nature of the
non-permitted or prohibited Use or Disclosure (b) Identify the PHI
used or
disclosed(c) Identify who made the non-permitted or prohibited Use
or
received the non-permitted or prohibited Disclosure (d) Identify
what
corrective action Business Associate took or will take to prevent
further
non-permitted or prohibited Uses or Disclosures (e) Identify what
Business
Associate did or will do to mitigate any deleterious effect of the
non-permitted or prohibited Use or Disclosure and (f) Provide such
other
information, including a written report, as Company may reasonably
request.
|
|
7.2
|
|
8.1
|
Return
or Destruction
|
|
9.1
|
Definitions
|
|
9.1.1
|
The
capitalized terms in this Agreement have the meanings set out in
45 C.F.R.
Parts 160-164, as it may be amended from time to time. As of
the execution date of this Agreement, the terms outlined within this
Section 9 are some of the relevant definitions set out in the Code
of
Federal Regulations.
|
|
9.1.2
|
“Disclosure”
means the release, transfer, provision of, access to, or divulging
in any
other manner of information outside the entity holding the
information.
|
|
9.1.3
|
“Electronic
Media” means (1) Electronic storage media including memory devices in
computers (hard drives) and any removable/transportable digital memory
medium, such as magnetic tape or disk, optical disk, or digital memory
card; or (2) Transmission media used to exchange information already
in
electronic storage media. Transmission media include, for
example, the internet (wide-open), extranet (using internet technology
to
link a business with information accessible only to collaborating
parties), leased lines, dial-up lines, Private networks, and the
physical
movement of removable/transportable electronic storage
media. Certain transmissions, including of paper, via
facsimile, and of voice, via telephone, are not considered to be
transmissions via electronic media, because the information being
exchanged did not exist in electronic form before the
transmission.
|
|
9.1.4
|
“Individual”
means the person who is the subject of Protected Health
Information.
|
|
9.1.5
|
“Individually
Identifiable Health Information” means information that is a subset of
health information, including demographic information collected from
an
Individual; and: (a) is created or received by a Health Care
Provider, Health Plan, Employer, or Health Care Clearinghouse; and
(b)
relates to the past, present or future physical or mental health
condition
of an Individual; the provision of Health Care to an Individual;
or the
past, present, or future payment for the provision of Health Care
to an
Individual; and (i) that identifies the Individual; or (ii) with
respect
to which there is a reasonable basis to believe the information can
be
used to identify the Individual.
|
|
9.1.6
|
“Nonpublic
Personal Financial Information (NPFI)” means personally identifiable
financial information not available to the public. NPFI
includes any consumer description, including name and social security
number, consumer listing, or consumer grouping; or the including
of
publicly available information (such as name and address), if derived
using NPFI. NPFI excludes health information, publicly
available information (except when derived from NPFI and
included in a consumer listing, consumer description, or consumer
grouping), or any consumer description, consumer listing, or consumer
grouping not derived from NPFI and not disclosed in a manner that
indicates individuals are a financial institution’s
consumers.
|
|
9.1.7
|
“Personally
Identifiable Financial Information” means information a consumer provides,
by application or otherwise, to Company to obtain an insurance product
or
service, or that Company collects in connection with or resulting
from a
transaction involving an insurance product or service. Personally
Identifiable Financial Information includes: (a) Account
balance information, payment history, social security number, information
the consumer provides, or Company or its agent obtains, in connection
with
collecting or servicing loans, information from a consumer report,
and
information Company collects through a device, such as Internet cookies,
that gathers information from a web server. (b) The fact that a consumer
is or has been Company’s customer, that consumer obtained insurance
products or services from Company, and any information about Company’s
consumers that would, if disclosed, indicate that the individual
is the
Company’s consumer. Personally Identifiable Financial Information excludes
health information, lists of customers’ names and addresses of an entity
that is not a financial institution; and information that does not
identify a consumer (e.g., aggregated or blind data without personal
identifiers, account numbers, names or
addresses).
|
|
9.1.8
|
“Protected
Health Information (PHI)” means Individually Identifiable Information (i)
except as provided in paragraph (ii) of this definition that is:
(a)
Transmitted by Electronic Media; (b) Maintained in Electronic Media;
or
(c) Transmitted or maintained in any other form or medium (ii) Protected
Health Information excludes Individually Identifiable Health Information
in (a)Education records covered by the Family Educational Rights
and
Privacy Act, as amended. 20 U.S.C. 1232g; (b) Records described at
20
U.S.C. 1232g(a)(4)(B)(iv); and (c) Employment records held by a Covered
Entity in its role as Employer.
|
|
9.1.9
|
“Security
Incident” means an attempted or successful unauthorized access, use,
disclosure, modification or destruction of information or interference
with system operations in an information system, involving Protected
Health Information that is created, received maintained or transmitted
by
or on behalf of Company in electronic
form.
|
|
9.1.10
|
“Use”
means, with respect to Individually Identifiable Health Information,
the
sharing, employment, application, utilization, examination, or analysis
of
such information with an entity that maintains such
information.
|
|
9.2
|
|
9.3
|
|
9.4
|
|
9.5
|
|
9.9
|
Audit
|
|
9.9.1
|
Company
shall have the right to audit and monitor all applicable activities and
records of Business Associate to determine Business Associate’s compliance
with the requirements relating to the creation or Use of PHI [and
DID, if
applicable] as it relates to the privacy and security sections of
this
Agreement.
|
|
9.10
|
|
9.11
|
Indemnity
|
|
9.11.1
|
Overview
of Indemnity
|
9.11.1.1 Business
Associate will indemnify and hold harmless Company and any Company affiliate,
officer, director, employee or agent from and against any claim, cause of
action, liability, damage, cost or expense, including attorneys’ fees and court
or proceeding costs, arising out of or in connection with any non permitted
or
prohibited Use or Disclosure of PHI or other breach of this Agreement by
Business Associate or any subcontractor, agent, person or entity under Business
Associate’s control.
|
9.11.3
|
MASTER
EXHIBIT ET
E-TRADING
PARTNER PROVISIONS
WellPoint
and Supplier (each a “party”) wish to facilitate purchase and sale transactions
under the Agreement (“Transactions”) between them by electronically transmitting
and receiving data through Ariba, Inc. Ariba Supplier Network
(“ASN”). The parties wish to assure that such Transactions are
legally valid and enforceable, notwithstanding the use of available electronic
technologies in lieu of conventional printed, typed or hand written documents
on
paper or on other “hard” media. Therefore, the parties agree as
follows:
|
1.1
|
Documents
|
|
1.2
|
|
1.4
|
Security
Procedures
|
|
1.4.1
|
Each
party shall be responsible for using security procedures that are
reasonably sufficient to ensure that all transmissions of Documents
are
authorized and to protect its business records and data from improper
access. Supplier will comply with WellPoint’s ebusiness Secure Coding
policy, which is based upon industry best practices. Failure to comply
and
remedy any violation shall be considered a breach of the Agreement
and
shall, at WellPoint’s option, be grounds for termination of the Agreement.
Violation may, as set forth in any applicable SOW, also subject Supplier
to financial penalties.
|
|
1.5
|
|
2.1
|
Garbled
Transmissions
|
|
3.1
|
Validity
and Enforceability
|
|
3.2
|
|
3.4
|
Validity
|
[End
of Master Exhibit ET]
MASTER
EXHIBIT MCG
MEDICARE
COMPLIANCE GENERAL
THE CLAUSES SET FORTH BELOWAPPLY IF SUPPLIER’S SERVICES ARE TO BE PERFORMED FOR PURPOSES OF THE MEDICARE PROGRAM.
|
1.
|
Disclosure
of Information
|
|
1.1
|
If
Supplier, its agents, officers, or employees might reasonably be
expected
to have access to information within the purview of Section 1106
of the
Social Security Act, as amended, and regulations prescribed pursuant
thereto, Supplier agrees to establish and maintain procedures and
controls
so that no information contained in its records or obtained from
WellPoint
and/or the Secretary of Health and Human Services or from others
in
carrying out the terms of this Agreement shall be used by or
disclosed by Supplier, its agents, officers, or employees, except
as
provided in Section 1106 of the Social Security Act, as amended,
and
Regulations prescribed thereunder.
|
|
4.
|
Fees
or Kickbacks of
Subcontractors
|
|
4.1
|
Public
Law 86-695, September 2, 1960 (41 U.S.C. 51-54), among other things,
prohibits the payment, directly or indirectly, by or on behalf of
a
subcontractor in any tier under any Government negotiated contract
of any
fees, gift, or gratuity to the prime contractor or any higher tier
subcontractor or any officer, agent, partner or employee thereof,
as an
inducement or acknowledgment for the award or a subcontract or
order.
|
|
4.2
|
The
provisions of Public Law 86-695, are set in more detail in Section
1-1.320
of the Federal Procurement Regulations (41 CFR 1-1.32) and are applicable
to this Agreement and any subcontracts entered into under this
Agreement.
|
|
5.
|
|
7.1
|
It
is the policy of the United States that small businesses concerns
and
small business concerns owned and controlled by socially and disadvantaged
individuals shall have the maximum practicable opportunity to participate
in performance of contracts let by any Federal
Agency.
|
|
7.2
|
Supplier
agrees to carry out this policy in the awarding of subcontracts to
the
fullest extent consistent with the efficient performance of this
Agreement, and Supplier further agrees to cooperate in any studies
or
surveys that may be conducted by the Small Business Administration
or the
Secretary which may be necessary to determine the extent of Supplier’s
compliance with this clause.
|
|
7.3
|
The
term “small business concern” means a small business as defined pursuant
to Section 3 of the Small Business Act and in relevant regulations
promulgated pursuant thereto.
|
MASTER
EXHIBIT MCS
MEDICARE
COMPLIANCE SPECIALTY
Medicare
Advantage and Medicare Part D
These
provisions only apply to services provided by Supplier to or for WellPoint’s
Medicare Advantage and/or Medicare Part D plans in accordance with and pursuant
title XVIII of the Social Security Act (Act) (specifically, but not limited
to,
Social Security Act Parts C and Part D), and any subsequent amendments or
relevant provision in the Act and applicable regulations . In the
event that there is a conflict between the attached agreement and these Medicare
Advantage and Medicare Part D terms and conditions, the Medicare Advantage
and
Medicare Part D terms and conditions shall control, but only as they relate
to
services provided to Covered Individuals enrolled in WellPoint’s Medicare
Advantage and/or Medicare Part D plans.
|
2.1
|
Supplier
recognizes that in the performance of its obligations under this
Agreement
it may be party to WellPoint’s proprietary, confidential, or privileged
information, including, but not limited to, information concerning
WellPoint’s members. Supplier agrees that, among other items of
information, the identity of, and all other information regarding
or
relating to any of WellPoint’s is
confidential. Supplier agrees to treat such information as
confidential and proprietary information of WellPoint, and all such
information shall be used by Supplier only as authorized and directed
by
WellPoint pursuant to this Agreement, and shall not be released to
any
other person or entity under any circumstances without express written
approval of WellPoint. During and after the term of this
Agreement, Supplier shall not disclose or use any of the information
described in this Section for a purpose unrelated to the terms and
obligations of this Agreement. Further, Supplier agrees to
abide by all Federal and State laws regarding confidentiality and
disclosure of Medicare Advantage and/or Medicare Part D enrollee
information. In addition, Supplier agrees to abide by the
confidentiality requirements established by WellPoint and CMS for
the
Medicare Advantage and/or Medicare Part D
program.
|
|
5.
|
Subcontractors.
|
|
5.1
|
In
accordance with, but not limited to, 42 C.F.R. 422.504(i)(3)(ii)
and/or 42
C.F.R. 423.505(i)(3), Supplier agrees that if Supplier enters into
subcontracts to perform services under the terms of the Agreement,
Supplier’s subcontracts shall include an agreement by the subcontractor to
comply with all of the Supplier obligations in this Medicare Advantage
and
Medicare Part D Regulatory Exhibit and applicable terms in the attached
Agreement.
|
|
7.
|
Compliance
Program
|
|
7.1
|
WellPoint
maintains an effective Compliance Program and Standards of Business
Conduct, and requires its employees to act in accordance
therewith. WellPoint will provide a copy of its then current
Standards of Business Conduct to Supplier upon
request. Consistent with the preceding and to the extent
applicable, WellPoint and its subcontractors may be required to monitor
for Fraud, Waste and Abuse consistent with CMS guidance. To the
extent applicable, Supplier acknowledges that certain CMS guidance
on
Fraud, Waste and Abuse may be implicated by the Agreement and agrees
to
take appropriate actions to identify and/or monitor for such activities,
including but not limited producing Supplier’s plan to monitor for Fraud,
Waste and Abuse.
|
|
9.2
|
In
the event Supplier or any employees, subcontractors or agents thereof
becomes an ineligible person after entering into this Agreement or
otherwise fails to disclose his/her/its ineligible person status,
Supplier
shall have an obligation to (a) immediately notify WellPoint of such
ineligible person status and (b) within ten (10) days of such notice,
remove such individual from responsibility for, or involvement with,
WellPoint’s business operations related to this Medicare Advantage and
Medicare Part D attachment.
|
|
9.3
|
WellPoint
retains the right to provide notice of immediate termination of the
Agreement to Supplier in the event it receives notice of Supplier's
ineligible person status.
|
|
12.
|
Indemnification
for Non-compliance
|
|
12.1
|
Supplier
agrees to indemnify and hold WellPoint harmless from and against
any and
all liabilities, claims and expenses connected therewith, including
reasonable attorneys fees, arising from any acts or omissions of
Supplier,
not specifically authorized or directed by WellPoint, violating or
resulting in an investigation under § 1128B(b) of the Social Security Act
or any other Federal or State law or
regulation.
|
|
15.
|
MASTER
EXHIBIT EX
EXPENSE
GUIDELINES
|
1.
|
General
|
|
1.1
|
When
practical to do so, Supplier shall book all travel for purposes of
the
Agreement through WellPoint’s travel service. Arrangements can
be made for air fare, hotel and rental cars. Supplier should communicate
to WellPoint’s travel service that the travel is on behalf of WellPoint
and that any applicable discounts available to WellPoint should be
obtained. Supplier shall provide to the travel service the name and
telephone number of the Procurement Representative assigned to Supplier
by
WellPoint. Any airline ticket, car rental and hotel charges
should be paid directly by Supplier, with available discounts applied.
WellPoint’s travel service telephone number is: [ *
]. WellPoint’s travel service shall be available by telephone
during its regular hours of operation, which are currently 8:00am
to 5:00
CST Monday through Friday.
|
|
1.2
|
For
purposes of reimbursement hereunder, Supplier shall submit original
receipts for all reimbursable expenses to WellPoint whenever
possible. Supplier must submit original receipts to receive
reimbursement of air travel
expenses.
|
|
2.
|
|
3.
|
|
3.2
|
Lodging
expenses shall include the cost of a Traveler’s room plus applicable
taxes, but shall not include room service, recreation, or any other
direct
charges to the room. See Section 5 of these Guidelines for further
discussion of these charges.
|
|
4.2
|
Reimbursement
will cover no more than the cost of a mid-size rental car. Limousine
service is expressly prohibited, unless authorized in advance in
writing
by a Procurement Representative.
|
|
4.3
|
Additional
insurance coverage, as provided in the rental car agreement, will
not be
reimbursed.
|
|
4.4
|
Mileage
for travel in Supplier’s vehicles or in Travelers’ personal vehicles shall
be reimbursed at the same per-mile rate in effect from time to time
for
reimbursement of mileage incurred by WellPoint’s own
employees. Toll-road charges will be reimbursed only if
incurred for office-to-office travel between Supplier’s offices and
WellPoint’s. Mileage and tolls should be supported by
appropriate, contemporaneous logs of such charges maintained by
Travelers.
|
|
5.
|
Miscellaneous
Travel Expenses
|
|
5.1
|
Original
receipts must be submitted for expenses including the following:
meals;
taxi and hotel shuttle fares; parking; and other costs for which
receipts
can be typically obtained. Expenses such as tips (for which
receipts are usually are not provided) should be reasonable for the
services provided and supported by a personal log or other contemporaneous
record kept by the Traveler.
|
|
5.2
|
Travelers’
expense reports submitted as documentation for reimbursement are
to be
signed by appropriate management personnel of Supplier and are to
include
copies of applicable receipts as supporting
documentation.
|
|
5.3
|
Documentation
of each business meal should include the names of all individuals
for whom
the meal was ordered, the date of the meal, the business purpose,
the
relationships between or among the individuals, and a summary of
the
business discussion.
|
|
5.4
|
A
per diem allowance for meals, tips, and incidentals, when agreed
to in
advance in writing by the Procurement Representatives, shall be in
lieu of
any other reimbursement for such expenses and shall not exceed the
maximum
per Traveler agreed to by the
parties.
|
|
7.
|
Subcontractors
|
|
7.1
|
If
Supplier contracts with a third party (“Subcontractor”) for purposes of
performing Supplier’s obligations under the Agreement, these Guidelines
shall apply to travel expenses incurred by a Subcontractor and which
Supplier is obligated to reimburse to the
Subcontractor. WellPoint shall not be responsible to pay
Supplier any amount in excess of Supplier’s actual cost of reimbursing a
Subcontractor, or the maximum amount permitted by these Guidelines,
whichever is less. In no event shall WellPoint pay Supplier any
percentage, fee, administrative charge or other
▇▇▇▇-up.
|
[end
of Master Exhibit EX]
EXHIBIT
PS
PROFESSIONAL
SERVICES
|
2.1
|
Scope
of Work.
|
|
2.1.1
|
Each
Statement of Work shall: (i) describe with detail the specifications
(the
“Specifications”), Services, project, and/or Deliverables (including
Works, if any) to be provided or undertaken, (ii) shall set
forth the responsibilities of the Supplier and WellPoint regarding
such
project(s), Services and/or Deliverables, as applicable, (iii) include
as
applicable a description of any relevant project objectives, design
specifications, locations, schedules, systems, technologies, success
measures and performance goals; (iv) contain a detailed
description of the compensation due to Supplier, payment schedule,
and any
related terms; and (v) be dated.
|
|
2.2
|
|
2.5.1
|
Selection
and Performance.
|
|
2.5.3
|
Supplier
Solely Responsible for Taxes, Filings and Withholdings for Supplier
Resources.
|
|
2.5.3.1
|
Supplier
shall be solely responsible for and shall indemnify, protect, and
hold
WellPoint harmless as to any remittance, reporting, filing, or payment
of
any withholding, employment, self-employment, FICA, FUTA or other
similar
payments or reporting under state, federal or local law relating
to the
Services performed by Supplier’s Resources
hereunder.
|
The
restrictions in this Section 2.5.6
shall not apply topersonnel of either Party who, without any direct or
indirectsolicitation by the hiring Party, respond to a general solicitation
for
employment by the hiring Party, or who had no direct involvement in the Services
performed for WellPoint by Supplier.
If
a Statement of Work expressly
provides that WellPointhas the “right to hire” a specific Resource, the
restrictionsin this Section 2.5.6 shall not apply to that Resource.Instead,
WellPoint shall have the right, with respect to such Resources, to offer
employment to the Resource at any time following [ * ] after the date the
Resource begins providing services to WellPoint.
|
2.6.1
|
Supplier
shall ensure that all Resources and other personnel and subcontractors
performing work pursuant to the Agreement agree to and comply with
the
terms of the Agreement relating to confidentiality and security and
shall
instruct such persons to maintain the confidentiality of all WellPoint
Confidential Information; and, as to any subcontractors, Supplier
shall
require its subcontractors in turn to execute confidentiality agreements
imposing confidentiality obligations no less restrictive than those
set
forth in the Agreement and Supplier shall be solely responsible for
and
shall indemnify, protect, and hold WellPoint harmless as to any breaches
of confidentiality or security by any such
subcontractors.
|
|
3.1
|
Overview
|
|
3.2
|
|
4.1
|
Overview
|
|
4.3
|
[end
of Exhibit PS]
EXHIBIT
PS
PROFESSIONAL
SERVICES
Rate
Card
Role Hourly
Rate
CSM
[ * ]
Project
Manager [
* ]
Senior
Business
Analyst [
* ]
Managing
Technical
Architect [
* ]
Technical
Architect [
* ]
Designer
[ * ]
Systems
Engineer [
* ]
EXHIBIT
LI
SOFTWARE
LICENSE and RELATED SERVICES
|
1.
|
Construction
|
|
1.1
|
This
Software License and Related Services Exhibit (the “Exhibit”), each order
schedule (an “Order Schedule”) attached hereto, the Master Agreement and
its applicable Exhibits constitute the Agreement between the
Parties. Defined terms contained in the Master Agreement shall
apply to this Agreement. Each Order Schedule (i) will include a
description of the software licensed therein (the “Software”); (ii) a
description of any software of third-parties to be delivered with
in the
Software (the “Third Party Software”) (iii) is hereby incorporated into
and made part of the Agreement; (iv) will be consecutively numbered;
(v)
will set forth any fees, Delivery Dates (as defined in Section 2.2)
and
such other items as may be required by the Agreement or otherwise
agreed
to in writing by the Parties. In the event of a conflict
between the terms of the Master Agreement (including any Exhibits)
and the
terms of any Order Schedule, the terms of the Master Agreement shall
govern. Any additional terms and conditions set forth and
agreed upon in an Order Schedule will apply only to the Software
licensed
under such Order Schedule.
|
|
2.
|
|
2.1
|
License
Grant
|
|
2.2
|
Restrictions
|
|
2.2.1
|
WellPoint
shall not copy or use the Software (including the Documentation)
except as
specified in this Agreement and applicable Order
Form. WellPoint shall have no right to use any Sun
Microsystems, Inc. software or any other third party software that
is
included within the Software except as licensed for and in connection
and
within the scope of WellPoint’s use of the Software
product. WellPoint acknowledges and agrees that with respect to
any Chordiant Foundation Server Software licensed under this Agreement,
that WellPoint may only interact, process and/or use such Software
in
conjunction with the specific Client seats licensed to it in a particular
Order Schedule.
|
|
2.2.2
|
WellPoint
agrees not to cause or permit the reverse engineering, disassembly,
decompilation, or any other attempt to derive source code from the
Software, except to the extent required to obtain interoperability
with
either independently created software or as specified by
law.
|
|
2.2.3
|
Supplier
shall retain all title, copyright and other proprietary rights in
the
Software. Supplier does not acquire any rights, express or implied,
in the
Software, other than those specified in this Agreement or in a Statement
of Work. WellPoint agrees that, except for cancellation of this
Agreement under Section 11.4.1 of the Master Agreement due to a failure
of
the Software to perform, it will keep confidential any results
of benchmark tests relating to functionality or performance of
the Software except that it may disclose such results to Third Party
Servicers who have a reasonable need to know such results in furtherance
of their service obligations to WellPoint, to WellPoint’s auditors, to
WellPoint’s attorneys and agents as reasonably required for enforcement of
any provision of this Agreement, or as may be required by government
rule
or regulation.
|
|
2.2.4
|
. Not
more frequently than annually and on upon reasonable notice at an
agreed
time, Supplier (or Supplier’s designee) may audit WellPoint’s use of the
Software at Supplier’s cost and expense. Any such audit shall
be conducted during regular business hours at WellPoint’s facilities and
shall not unreasonably interfere with WellPoint’s business
activities. Supplier agrees that its personnel will comply with
WellPoint’s reasonable security and confidentiality requirements during
the audit. Any payment obligations relating to any audit
results shall be governed by Section 2.3 of the Master
Agreement.
|
|
2.2.5
|
WellPoint
acknowledges that any Software licensed under this Agreement shall
primarily be in object code format. However, WellPoint
acknowledges that certain licensed Software may include source code
based
files. WellPoint acknowledges that the Software, its structure,
organization and any human-readable versions of a software program
(“Source Code”) constitutes valuable trade secrets that belong to Supplier
and/or its suppliers. To the extent that Supplier includes such
Source Code within its Software and describes such Source Code on
an Order
Form, such Source Code Software shall be deemed licensed Software
under
the terms of this Agreement and the Order Form. WellPoint
agrees not to adapt or translate the Source Code into another computer
language, in whole or in part.
|
|
2.2.6
|
WellPoint
agrees that it will only disclose the Source Code to authorized employees
(“Authorized Employees”) and authorized contractors (including Third Party
Servicers) (“Authorized Contractors”) of WellPoint who (i) require access
thereto for a purpose authorized by this Agreement, and (ii) have
been
informed of and required to maintain the confidentiality of third
party
confidential information. WellPoint agrees that it shall be
liable for any breach by any Authorized Employees or Authorized
Contractors of their confidentiality
obligations.
|
|
2.2.7
|
WellPoint
shall ensure that the same degree of care is used to prevent the
unauthorized use, dissemination, or publication of the Software’s Source
Code and the Software as WellPoint uses to protect its own confidential
information of a like nature, but in no event shall the safeguards
for
protecting such Source Code and the Software be less than a reasonably
prudent business would exercise under similar
circumstances. WellPoint shall take prompt and appropriate
action to prevent unauthorized use or disclosure of such Source Code
and
the Software, including, without limitation, storing such Source
Code only
on secure central processing units or networks and requiring passwords
and
other reasonable physical controls on access to such Source
Code.
|
|
2.2.8
|
WellPoint
agrees its Authorized Employees and Authorized Contractors will not
to
copy the Software’s Source Code or disclose such Source Code to anyone not
authorized to receive it. WellPoint shall handle, use and store
the Software’s Source Code solely at the WellPoint Designated
Center.
|
|
2.3
|
|
2.4
|
|
2.7
|
|
2.9
|
|
2.10
|
|
2.12.1
|
Supplier
agrees that, in the event of any dispute with WellPoint regarding
an
alleged breach of the Master Agreement, Supplier will not use any
type of
electronic means to prevent or interfere with WellPoint’s use of any
Software licensed by Supplier to WellPoint hereunder without first
obtaining a valid court order authorizing same. WellPoint
shall be given notice and an opportunity to be heard in connection
with
any request for such a court order. Supplier understands that a
breach of this provision could cause foreseeable and substantial
harm to
WellPoint and to numerous third parties having business relationships
with
WellPoint. No limitation of liability shall apply to a breach
of this paragraph.
|
|
2.11
|
Export
Law Compliance
|
|
2.11.1
|
WellPoint
agrees to comply with all relevant export laws and regulations of
the
United States (“Export Laws”) to assure that neither the Software nor any
direct product thereof are (i) exported, directly or indirectly, in
violation of Export Laws; or (ii) are used for any purposes
prohibited by the Export Laws, including, without limitation, nuclear,
chemical, or biological weapons
proliferation.
|
|
3.1
|
Overview
of Related Services
|
|
3.2
|
Fees
for Related Services
|
|
3.2.1
|
Supplier’s
fees for the Related Services (the “Related Services Fees”) shall, as set
forth in the applicable Order Schedule, either be (i) on a fixed-fee
basis, or (ii) on a time-and-materials basis (excluding any travel
time of
Supplier’s personnel), with the aggregate fees and expenses not to exceed
the amounts set forth in the applicable Order Schedule. If the
Related Services Fees are on a time-and-materials basis, the applicable
Order Schedule shall set forth the hourly rates for each category
of
Supplier’s personnel that will provide the Related
Services.
|
|
4.
|
Termination
|
|
4.1
|
Effect
of Termination on the
License.
|
|
4.1.1
|
Upon
termination of an Order Schedule or Maintenance Services for any
reason,
WellPoint shall retain the License with respect to any and all Source
Materials and any third-party software incorporated therein that
WellPoint
has paid for, or any portion of the foregoing delivered and paid
for as of
the time of such termination; and Supplier shall immediately refund
to
WellPoint the pro-rata portion of any related prepaid Maintenance
Fees. The foregoing shall be in addition to any other rights
and remedies available to WellPoint under the Agreement, at law or
in
equity. Upon termination, all undisputed fees for software
delivered to WellPoint will become due and payable to
Supplier. All fees previously paid are non-refundable and
non-cancelable, except as otherwise provided in the Master Agreement
or
above (with respect to Maintenance
Fees).
|
|
4.2
|
|
5.1
|
Overview
of Maintenance
Services
|
|
5.3.2
|
Update
shall not include any release, option or future product that Supplier
licenses separately; however, an Update shall include any subsequent
release, version, update or upgrade of the Software that repackages
or
re-brands the same functionality of the Software as a separately
licensed
product. Additionally, an Update shall not reduce the
functionality existing within the licensed Software nor affect previous
customizations to the Software made by the WellPoint. Supplier
will not seek to remove or materially reduce functionality from an
Update
by repacking such Updates as ‘new products’ such as to require WellPoint
to acquire such Updates for additional license fees or cost beyond
payment
of the Support Fees in accordance with the terms of this Agreement
and the
applicable Order Form(s). Supplier will provide Updates for the
Software as and when developed for general release in Supplier’s sole
discretion.
|
|
5.4.1
|
Software
Error Classifications
|
|
5.5.1
|
Class
1 Errors and Class 2
Errors
|
|
5.5.2
|
|
5.6
|
|
5.6.1
|
Class
1 Errors
|
|
5.6.2
|
Class
2 Errors
|
|
5.6.2.1
|
If
Supplier does not respond and begin to remedy any Class 2 Error within
forty-eight (48) hours of receipt of such request, or shall fail
to remedy
such Class 2 Error within five (5) days after receipt of such request,
Supplier shall, for each such failure, provide WellPoint with a credit
of
[ * ] percent [ * ]of the annual Maintenance Fee against future
Maintenance Fees for each Class 2 Error that Supplier fails to respond
to
or remedy the Error, respectively.
|
The
maximum cumulative quarterly credit WellPoint shall be entitled to receive
from
Supplier under Sections 5.6.1 and 5.6.2 is [ * ] percent [ * ] of the annual
maintenance fees but in no event shall credits in the aggregate exceed [ *
]
percent [ * ] of annual maintenance fees.
|
5.7
|
Exceptions.
|
|
5.7.1
|
Supplier
shall have no responsibility to fix any Errors directly resulting from the
following causes:
|
5.7.1.1
|
any
modifications or enhancements made by the WellPoint to the Software
or the
application specific environment, unless such modifications or
enhancements have been made by Supplier or approved by Supplier ;
this
includes but is not limited to;
|
|
|
-
location of binaries
|
|
|
-
scripts provided by Supplier
|
|
|
-
any application specific object (e.g., table, view, index,
trigger)
|
|
|
-
any application specific operating system permissions or role
privileges
|
|
5.7.1.2
|
Any
modification or combination of the Software (in whole or in part)
not made
by Supplier or its contractors or not approved by Supplier (including
without limitation any portions of the Software code or Source Code
customized by WellPoint that is not part of the -Software delivered
by
Supplier), but excluding any permitted modifications which have been
made
by Supplier or approved by
Supplier.
|
|
5.7.1.3
|
Use
of the Software in an environment other than a Supported
Environment.
|
|
5.7.1.4
|
Accident;
electrical or electromagnetic stress; neglect; misuse; failure or
fluctuation of electric power, failure of media not furnished by
Supplier;
operation of the Software with other media and hardware, software
or
telecommunication equipment or software; or causes other than ordinary
use.
|
|
5.7.2
|
WellPoint
Obligations.
|
WellPoint
agrees to:
|
5.7.2.1
|
Provide
Supplier with remote access to WellPoint’s Supported Software during the
term of this Agreement via an electronic link subject to WellPoint’s
security and accessibility policies, etc.;
and
|
|
5.7.2.2
|
Provide
any reasonable assistance that Supplier may require from the Project
Manager or other designated contact and other appropriate WellPoint
representatives (e.g. network administrator, as the case may be) to
enable Supplier to provide WellPoint with Support;
and
|
|
5.7.2.3
|
Establish
and maintain the conditions of the Supported Environment in compliance
with Supplier Certified Matrix and Technical Stack developed for
the
installed release or any environmental operating ranges specified
by the
manufacturers of the components of the Designated Center. If any
material
deviation from the Certified Matrix and Technical Stack is the direct
cause of any need for support hereunder and directly affects Supplier’s
ability to perform within the problem resolution timeframes set forth
above, then such time frames shall be reasonably relaxed and no service
credits shall be assessable for the duration of such non-conformity
in the
Support Environment..
|
|
5.7.2.4
|
In
the event that the WellPoint fails to comply with the above and this
necessitates on-site attendance and/or the provision of additional
Supplier Services, WellPoint agrees to pay Supplier for any time
and
expenses associated with such services at Supplier’s then-current time and
materials rates.
|
|
5.7.2.5
|
WellPoint
agrees to maintain procedures to facilitate reconstruction of any
lost or
altered files, data or programs and WellPoint agrees that Supplier
will
not be responsible under any circumstances for any consequences arising
from lost or corrupted data, files or programs which are not attributable
to Supplier or its subcontractors. WellPoint is solely
responsible for carrying out all necessary backup procedures for
its own
benefit, to ensure that data integrity can be maintained in the event
of
loss of data for any reason and that WellPoint programs can be
restored.
|
|
5.7.2.6
|
WellPoint
agrees to notify Supplier Product Support promptly of any malfunction
of
the Supported Software for which WellPoint seeks support
hereunder. .
|
|
5.7.2.7
|
WellPoint
agrees to provide Supplier with access to and use of such of WellPoint’s
information and facilities reasonably necessary to service the Supported
Software including, but not limited to, an accurate description of
the
Designated Center and the current Supported Environment, the problem
being
reported, the transactions and any error messages, along with screenshots
and log files.
|
|
5.7.3
|
Definitions.
|
|
5.7.3.1
|
“Designated
Center” means the computer hardware/operating system, customer-specific
application, customer-specific relational database(s) (if applicable
designated on the relevant Order Form or Statement of
Work.
|
|
5.7.3.2
|
“Error”
means a reproducible defect in the Software when operated on a Supported
Environment which causes the Software not to operate substantially
in
accordance with the Documentation and/or Specifications, as
applicable.
|
|
5.7.3.3
|
“Supported
Environment” means the hardware and operating system platform which
Supplier provides Maintenance Services for its customer
base.
|
[End
of Exhibit LI]
WELLPOINT,
INC.
MASTER
AGREEMENT
AGREEMENT
NUMBER: ________________
Order
Schedule #1
Date:
June 28, 2007
1. DESCRIPTION
OF LICENSED SOFTWARE:
|
Software
Product(s)
|
Quantity
|
License
Type (i.e. Named User/Client, Server, Developer)
URN’s
(no. of)
|
|
Chordiant
Call Center Advisor Browser Edition (CCABE)
|
[
* ]
|
Concurrent
Users
|
|
Chordiant
Foundation Server
|
[
* ]
|
CPU
|
|
-
Application Components
|
||
|
-
Business Process Server
|
||
|
-
Security Server
|
||
|
-
CTI Server
|
||
|
-
Persistence Server
|
||
|
-
Request Server
|
||
|
-
JDBC Connector
|
||
|
-
Chordiant Connector for WebSphere MQ
|
||
|
-
Chordiant Café Server
|
||
|
Chordiant
Tools Bundle
|
[
* ]
|
Developers
|
|
-
Chordiant Business Process Designer
|
||
|
-
Chordiant Café Developer Environment
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2. DELIVERY
DATE: Date of Execution
3. TERM
OF SOFTWARE LICENSE:
Perpetual,
commencing on Date of
Delivery.
4. SCOPE
OF LICENSE:
Number
of WellPoint users: Limited to
[ * ] Concurrent Users and [ * ] Developers (see above)
Number
of WellPoint computers: Limited
to [ * ] CPUs (see above).
Number
of WellPoint locations:
Unlimited worldwide.
Number
of WellPoint customers serviced
with Software: Unlimited in United States and Canada
Other
Scope Information: (See Exhibit
LI to the Agreement)
5. LICENSE
FEES: $12,000,000
Payment
Schedule.
The
license fee is payable on the following dates in the amounts set forth
below:
|
Date
|
License
Fee
|
|
September
15, 2007
|
$6,000,000
|
|
[
* ]
|
[
* ]
|
|
[
* ]
|
[
* ]
|
6. SUPPORT
FEES: $1,800,000
Annual
Support Fees are based on the level of Support chosen.
Premier
Support: 15%
of the License Fee
Support
from the date of execution of this Order Form through December 31, 2007 will
be
provided at no cost to WellPoint. On or before December 31, 2007,
WellPoint will pay Vendor $1,800,000 for support for the period of January
1,
2008 through December 31, 2008, which fee is non-cancelable and non-refundable.
At WellPoint’s option, after expiration of the then current support
period, WellPoint may acquire an additional one year of support services for
the
software licensed under this Order Form, for an annual support fee of not less
than the previous year’s support fee and not more than such support fee
increased by the annual percentage increase in the CPI-U, US City Average,
All
Items Less Food and Energy (as published by the United States Bureau of Labor
Statistics) for the immediately preceding twelve (12) month period.
7. PLATFORMS:
the
Software may be used by WellPoint
on the following platforms.
Hardware:
IBM
Operating
System: AIX/WebSphere
Customer
Application: __________
8. FUTURE
OPTION
PRICING.
WellPoint
shall have the option to license additional quantities of the software products
listed within this Order Form from Vendor at the following quantities and
license fees for a period of [ * ] years from execution of this
agreement:
|
Software
Product(s)
|
Quantity
|
License
Type
|
|
Chordiant
Call Center Advisor Browser Edition
|
[
* ]
|
Concurrent
Users
|
|
Chordiant
Foundation Server
|
[
* ]
|
CPUs
|
|
Total
License Fee for each bundle of [ * ] Concurrent Users and [ * ] CPUs:
[ *
]
|
The
initial annual support and maintenance fee for each bundle of [ * ] additional
CCABE Concurrent Users and [ * ] additional Foundation Server CPUs will be
[ *
]. If WellPoint acquires additional licenses under this option effective as
of
any date that is other than an anniversary of the effective date of the
Agreement, then the annual “Maintenance Period” (as defined in the Agreement)
and maintenance payments for each additional license bundle shall commence
as of
the actual effective date of such additional license Order Form (and any annual
maintenance renewal provisions shall be tied to such effective date of such
additional license Order Form). Upon mutual written agreement of the
parties, if WellPoint desires to coordinate the renewal date for support and
maintenance of any additional license bundle with the renewal date for the
original licenses, WellPoint shall be entitled to a pro-rated adjustment of
the
support fee for any short year that may result from such
coordination. At WellPoint’s option, after expiration of the then
current annual support period, WellPoint may acquire an additional one year
of
support services for the subsequently licensed software, for an annual support
fee of not less than the previous year’s support fee and not more than such
support fee increased by the annual percentage increase in the CPI-U, US City
Average, All Items Less Food and Energy (as published by the United States
Bureau of Labor Statistics) for the immediately preceding twelve (12) month
period.
Any
subsequent license based on option detailed above shall be set forth in a
subsequent Order Form(s).
9. OTHER
INFORMATION:
As
specified on this Order Form, Vendor shall deliver to the WellPoint Location,
by
courier or electronic download, one copy of the Software media and Documentation
(“Master Copy”) for each Software license specified above for use at the
Designated Center. WellPoint shall have the right to make a
reasonable number of copies of the Software, including Documentation, for each
of back-up and archival purposes of the Software, and WellPoint shall be
responsible for installation of the Software; these rights are intended to
be no
less restrictive than WellPoint’s rights under the Agreement. All
fees due under this Order Form shall be due upon the execution of this Order
Form and payable as described above, and shall be non-cancelable and the sum
paid non-refundable.
[the
next page is the signature page]
IN
WITNESS WHEREOF, the undersigned
have executed this Order Schedule and hereby incorporate this Order Schedule
into the Agreement set forth above.
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“Vendor”
Chordiant
Software, Inc., a Delaware corporation
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“WellPoint”
WELLPOINT,
INC., an Indiana corporation
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|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
signature
▇▇▇▇▇
▇▇▇▇▇▇
print
name
Chief
Financial Officer
title
June
28, 2007
Date
|
/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇
signature
▇▇▇▇▇▇▇
▇.
▇▇▇▇
print
name
Vice
President
Sourcing
& Supplier Performance
title
June
28, 2007
Date
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇
President
& CEO
June
28, 2007
EXHIBIT
ES
SOURCEFLEX
SOFTWARE
SOURCE CODE ESCROW AGREEMENT
SOURCEFILE
ACOUNT
NUMBER:
AGREEMENT
EFFECTIVE
DATE: March
13, 2001
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1.
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PARTIES.
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This
Software Source Code Escrow Agreement, (“Agreement”) effective as of the date
above, is between SourceFile, LLC, a California limited liability company doing
business as SourceFile (“SourceFile”) located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Chordiant Software, Inc., located at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Depositor”), and each
Beneficiary described in Paragraph 3.4 (each a “Beneficiary”, collectively the
“Beneficiaries”).
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2.
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RECITALS.
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2.1
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Depositor
licenses software to Beneficiary in object code from (the Software”)
pursuant to a software license agreement (“License Agreement”). “Source
Material” means the Software in source code form (“Source Code”),
including all relevant documentation and instructions to maintain,
duplicate and compile the Source Code. The Software and Source Material
are the proprietary and confidential information of Depositor, and
Depositor desires to protect such ownership and confidentiality.
A
description of the Software subject to this Agreement as the date
hereof
is attached hereto as Exhibit “A”. With the addition of new
Beneficiaries pursuant to Paragraph 3.4, a description of the
software (the “Software Package” or “Software Packages”) subject to this
agreement must be noted in Exhibit “B” for each respective new
Beneficiary.
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2.2
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The
purpose of this Agreement is to establish an escrow to protect Depositor’s
ownership and confidentiality of the Software and Source Material
and to
protect Beneficiary’s legitimate use of the Software by assuring the
availability of the Source Material in the event of certain conditions
set
forth in Paragraph 3.5 of this
Agreement.
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2.3
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The
parties desire that this Agreement be an agreement supplementary
to the
License Agreement pursuant to the United States Bankruptcy Code § 365
(n).
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2.4
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In
consideration of the mutual covenants and conditions contained in
this
Agreement, the parties agree as
follows.
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3.
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SOURCE
MATERIAL ESCROW
PROCEDURES.
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3.1
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Delivery
of Source Material and Updates to SourceFile. Within sixty (60) days
after acceptance of the Software, Depositor shall deliver to SourceFile
the Source Material in a sealed Parcel (the “Parcel”). Depositor shall
also deliver to SourceFile any Source Material revisions and/or new
versions which are determined by Depositor to constitute update releases
(“Update(s)”). Updates shall be added to and become part of the Source
Material. With each delivery of the Source Material and Updates,
Depositor
agrees to provide the information specified in Exhibit A.
“Description of the Software,” a copy of which is attached hereto and
incorporated herein by reference. Title and ownership of the media
upon
which the Source Material is stored, exclusive of the Source Material
itself, shall vest with the SourceFile upon delivery of the
Parcel.
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3.1.1
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Delivery
of Encrypted Updates to SourceFile. Pursuant to acceptable
instructions from SourceFile, Depositor shall have the option to
encrypt
Updates (“Encrypted Update(s)”) and transmit the Encrypted Update over the
Internet to SourceFile’s File Transfer Protocol site (“FTP Site”).
SourceFile shall not be liable to Depositor or Beneficiary of any
Encrypted Update, or any part thereof, that is transmitted over the
Internet to SourceFile’s FTP Site but is not received in whole or in part,
or for which no notification of receipt is given pursuant to Paragraph
3.2.
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3.2
Acknowledgement of Receipt by SourceFile. SourceFile shall promptly
notify Depositor and Beneficiary of receipt of the initial Parcel
by
courier, registered mail or Poste CS (the electronic courier service
of
the United States Postal Service). Notification of receipt of Updates
and
Encrypted Updates will be promptly sent by E-Mail to the E-mail address
described in the Notices section of this Agreement and posted to
a page at
SourceFile’s website (▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇) reserved for Depositor
and Beneficiary. SourceFile shall provide Depositor and Beneficiary
with a
user identification name and password as required to access said
page.
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3.3
Record Keeping Storage, Copies and Inspection of Source Material.
SourceFile shall have no obligation to determine the completeness,
accuracy or physical condition of the contents of the Parcel, or
whether
the Parcel contains the Source Material. Depositor and Beneficiary
shall
be entitled to inspect the records that SourceFile maintains during
normal
business hours and following reasonable prior
notice.
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3.4
Qualified Beneficiaries. Beneficiary shall have the right to
enforce the Source Material Release Procedures described in Paragraph
3.6
only if (i) Beneficiary is a party to a License Agreement with the
Depositor that is in force and not in default by Beneficiary, and
(ii) all
fees are paid to SourceFile. All other licensees of the
Software shall have no rights hereunder and SourceFile shall have
no
duties to such licensees. Additional Beneficiaries may be added only
upon
Depositor’s written notice to SourceFile and execution and delivery by
such new Beneficiary of Exhibit
“B.”
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3.5
Release Conditions. The following events shall be considered
“Release Conditions”.
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3.5.1 Depositor
requests in writing that SourceFile release the Source Material to
Beneficiary; or
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3.5.2 Depositor
has filed, or has had filed against it, any proceeding in bankruptcy
or
for reorganization under any federal or state bankruptcy law, any
receivership of all or a substantial part of Depositor’s assets or
business, or any other proceeding for debt relief, and such proceeding
has
not been dismissed ninety (90) days after it has begun,
or
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3.5.3 Depositor
has materially breached its maintenance obligations pursuant to any
maintenance agreement entered into by and between Depositor and
Beneficiary, and Depositor has not cured such maintenance breach
within
sixty (60) days after receiving written notice thereof from
Beneficiary.
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3.6
Source Material Release Procedures. SourceFile shall hold the
Source Material pursuant to the following terms and
conditions.
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3.6.1 In
the event SourceFile is notified in writing of a Release Condition
(the
“Release Condition Notice”), and provided that SourceFile has been paid
all fees and costs then due and owing, then SourceFile shall promptly
deliver a copy of the Release Condition Notice to
Depositor.
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3.6.2 If
SourceFile does not receive Contrary Instructions (defined below)
from
Depositor in response to the Release Condition Notice within thirty
(30)
days of SourceFile’s delivery to Depositor of the Release Condition
Notice, then SourceFile shall deliver a copy of the Source Material
to
Beneficiary. “Contrary Instruction” are defined as Depositor’s written
notice to SourceFile with a a copy to the subject Beneficiary, stating
that the Release Condition has not occurred or has been
cured.
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3.6.3 If
SourceFile receives Contrary instruction from Depositor within thirty
(30)
days of SourceFile’s delivery to Depositor of the Release Condition
Notice, then SourceFile shall not deliver a copy of the Source Material
to
the Beneficiary, but shall continue to hold the Parcel until: (1)
otherwise directed by the Depositor and Beneficiary jointly in writing;
(2) five (5) business days after SourceFile has received a copy of
an
order or judgment of a court of competent jurisdiction directing
SourceFile as to the disposition of the Source Material; or (3) five
(5)
business days after SourceFile has received a copy of the final decision
of an arbitrator directing SourceFile as to the disposition of the
Source
Material.
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3.7
Interpleader. Upon receipt of Contrary Instruction from Depositor,
SourceFile shall have the absolute right, at SourceFile’s election, to
file an action in interpleader requiring the Depositor and Beneficiary
to
answer and litigate their several claims and rights amongst themselves.
SourceFile is hereby authorized to comply with the applicable interpleader
statutes of the State of California in this
regard.
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3.8
License Grant; Beneficiary Use of Source Material. If, and only if,
any or all of the Source Material is released to Beneficiary pursuant
to
Paragraph 3.6 (Source Material Release Procedures), Depositor hereby
grants Beneficiary the right to use such Source Material solely for
the
purpose of correcting errors in the Software under the terms of the
License Agreement.
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3.9
Beneficiary Obligations of
Confidentiality.
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3.9.1 Beneficiary
acknowledges and agrees that use of the Source Material is furnished
to
Beneficiary on a confidential and secret basis for the sole and exclusive
use of Beneficiary and not for sale, sublicense, or disclosure to
third
parties. In the event that Beneficiary obtains the Source Material
pursuant to the terms hereof, Beneficiary agrees that it will not
(a)
publish, disclose or otherwise divulge the Source Code to any person,
except officers and employees of Beneficiary who are instructed to
keep
the Source Material confidential and who need access to the Source
Material to perform their duties, or (b) permit its officers or employees
to so divulge any Source Material.
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3.9.2 Beneficiary
agrees to take all necessary steps to prevent unauthorized disclosure
of
the Source Material, including but not limited to the following:
(a) The
building in which Beneficiary uses the Source Material shall have
restricted access twenty-four (24) hours a day; (b) The Source Material,
shall be used only in a location within such building to which access
is
further restricted to persons authorized to use the Source Material;
(c)
Beneficiary shall prevent telephone or other remote access to the
Source
Material from other locations; (d) Beneficiary may make only one
(1)
machine-readable copy of the Source Material solely for backup and
archival purposes; (e) The Source Material shall be installed only
on a
single computer system which is password protected and all Source
Material
files will be password protected; and (f) Beneficiary shall reproduce
and
include all copyright and other proprietary notices appearing in
or on any
and all Source Material provided to Beneficiary on any copy made
by
Beneficiary.
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4.
TERM AND
TERMINATION.
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4.1
Term of Agreement. This Agreement shall have an initial term of
three (3) years from the date hereof unless earlier terminated as
provided
herein. The term shall be automatically renewed on a yearly basis
thereafter, unless Beneficiary, Depositor, or SourceFile notifies
the
other parties in writing at least forty-five (45) days prior to the
end of
the then current term of its intention to terminate this
Agreement.
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4.2
Termination of Agreement. This Agreement shall terminate upon the
occurrence of any of the following.
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4.2.1 Upon
notice after the initial term pursuant to Paragraph 4.1 or upon notice
by
Depositor pursuant to Paragraph 5.1 after an increase of fees and
costs,
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4.2.2 Upon
release of the Source Material pursuant to Paragraph 3.5, provided
however
that upon termination of the License Agreement of one or more but
not all
Beneficiaries, then this Agreement shall terminate only as to that
Beneficiary/ies.
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4.2.3 In
the even of non-payment of fees due SourceFile or its authorized
representative, SourceFile shall provide written notice of non-payment
to
all parties to this Agreement. If the amount past due is not received
within thirty (30) days of the date of Depositor’s receipt of said notice,
then SourceFile shall have the right to terminate this Agreement
by
sending written notice of termination to all parties; provided, however
that if payment is due from a Beneficiary and not from Depositor,
then
this Agreement shall terminate as to that Beneficiary only. SourceFile
shall have no obligation to take any action under this Agreement
so long
as any amount due SourceFile remains unpaid after such written notice.
Any
party may cure past amounts due, whether or not obligated under this
Agreement.
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4.3
Return of Source Material. In the event of termination of this
Agreement, SourceFile shall return any Source Material in its possession
to Depositor forthwith. If SourceFile is unable to locate Depositor,
after
reasonable attempts to do so within 90 days from the date of termination
of this Agreement, then SourceFile will destroy the Source
Material.
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4.4
Survival of Terms. In the event of termination of this Agreement,
the rights and obligations of the parties shall terminate, other
than the
obligation of Depositor and/or Beneficiary to pay SourceFile all
fees and
costs then due, and (without limiting the terms and conditions of
the
License Agreement) the obligations of Depositor and Beneficiary pursuant
to 3.9 (Beneficiary Obligations of Confidentiality; Liability), Section
11
(Limitation of Liability of SourceFile), Section 12 (Indemnification
of
SourceFile), and the Paragraph titled, “Attorneys’ Fees,” in the Section
titled, “Miscellaneous Provisions.”
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5.
COMPENSATION OF SOURCEFILE.
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5.1
Depositor and/or Beneficiary shall pay SourceFile for its services
rendered hereunder in accordance with SourceFile’s then current schedule
of fees and costs, a copy of which is attached hereto as Exhibit
“C,”
subject to Depositor’s or Beneficiary’s obligation for fees and costs
described in Exhibit “B.” SourceFile may increase its fees and costs
annually, but in such event Depositor may terminate this agreement
by
giving SourceFile written notice of termination within thirty (30)
days of
notice of such increase, whereupon termination shall be effective
thirty
(30) days after delivery of written notice of
termination.
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5.2
So long as it has not been pain in full, SourceFile shall not be
required
to perform any service after written notice of insufficient payment
is
delivered to Depositor.
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5.3
Payment is due SourceFile within 30 days from the date of invoice
to
either party to this Agreement. If invoiced fees are not paid within
the
30-day period, SourceFile may charge interest on past due amounts
at the
rate of one and one-half percent per month (18% per annum) from the
date
of the invoice or the highest amount permitted by law, whichever
is
less.
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6.
REPRESENTATIONS AND WARRANTIES OR DEPOSITOR. Depositor represents
and warrants that the Parcel and any electronic deliverables will
include
a packing list describing the
contents.
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7.
TECHNICAL
VERIFICATION.
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7.1
Upon the Source Code being deposited with SourceFile, SourceFile
shall
from time to time perform those tests in accordance with its advertised
SCORE Program, SCORE being an acronym for “Source Code
Observation Review and Evaluation.” SourceFile shall
provide a copy of the SCORE test report to the parties to this
Agreement.
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7.2
Beneficiary shall be entitled to require that SourceFile carry out
a full
technical verification for the sole purpose of verifying that the
Source
Material matches the items identified by Depositor in the packing
list.
Any reasonable charges and expenses incurred by SourceFile in carrying
out
a full verification will be paid by the
Beneficiary.
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7.3
Subject to the provision of Paragraphs 7.1 and 7.2, SourceFile shall
bear
no obligation or responsibility to any person, firm, company or entity
whatsoever to determine the existence, relevance, completeness, accuracy,
effectiveness or any other aspect of the Source
Material.
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8.
LICENSE.
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The
Depositor hereby grants a license to SourceFile solely to make as many copies
of
the Source Material as necessary to comply with its obligations under this
Agreement.
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9.
INTELLECTUAL PROPERTY
RIGHTS.
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The
release of the Source Material to the Beneficiary will not act as an assignment
of any intellectual property rights that the Depositor possesses in the Source
Material.
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10.
RESTRICTION ON ACCESS TO SOURCE MATERIAL;
COPIES.
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Except
as otherwise required to carry out its duties hereunder, SourceFile (a) shall
not permit any SourceFile employee, Beneficiary or any other person access
to
the Source Material except as otherwise provided herein, unless consented to
in
writing by Depositor, and (b) shall not divulge or disclose or otherwise make
available to third parties, or make any use whatsoever of, the Source Material
or any information deposited with it by Depositor in connection with this
Agreement without the express prior written consent of Depositor.
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11.
LIMITATION OF LIABILITY OF
SOURCEFILE.
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SourceFile
may act in reliance on any electronic mail or written notice, instruction or
request furnished to SourceFile hereunder signed or presented by an officer
or
other person designated in writing by Depositor or Beneficiary, as applicable,
to act on such party’s behalf and all such persons are conclusively deemed to
have such authority. No action or claim against SourceFile arising under this
Agreement may be instituted more than one (1) year after the event giving rise
to such action or claim. SourceFile shall not be liable for any special,
incidental, or consequential damages (including lost profits) arising out of
this Agreement even if SourceFile has been apprised of the possibility of such
damages.
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12.
INDEMNIFICATION OF
SOURCEFILE.
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Except
as to obligations set forth in Paragraph 10 (Restriction on Access to Source
Material; Copies), Depositor and Beneficiary shall jointly and severally
indemnify, defend and hold harmless SourceFile and its agents and employees
(collectively “SourceFile”) from any and all claims, demands, liability, costs
and expenses, including attorney’s fees, incurred by SourceFile directly or
indirectly arising from or relating to the Source Material and/or SourceFile’s
performance of its duties under this Agreement; provided, however that this
indemnity shall not extend to SourceFile’s gross negligence, willful or reckless
misconduct.
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13.
NOTICES.
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Except
as otherwise provided herein for notice of Updates posted to a page at
SourceFile’s web site pursuant to Paragraph 3.2, all notices, requests, demands,
or other communications under this Agreement shall be in writing. Notice shall
be sufficiently given for all purposes as follows:
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13.1
Personal Delivery. When personally delivered to the recipient.
Notice is effective on delivery.
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13.2
Electronic mail. When sent via electronic mail. Notice is effective
on receipt.
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13.3
First-class mail. When mailed first-class to the last address of
the recipient known to the party giving notice. Notice is effective
three
(3) mail days after deposit in a United States Postal Service office
or
mailbox.
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13.4
Certified Mail. When mailed certified mail, return receipt
requested. Notice is effective on receipt, if delivery is confirmed
by a
return receipt.
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13.5
Overnight Delivery. When delivered by private overnight delivery
service such as Federal Express, Airborne, United Postal Service,
or DHL
Worldwide Express, charges pre-paid or charged to the sender’s account.
Notice is effective on delivery, if delivery is confirmed by the
delivery
service.
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13.6
Facsimile Transmission. When sent by facsimile to the last
facsimile number of the recipient known to the party giving notice.
Notice
is effective on receipt, provided that (a) a duplicate copy of the
notice
is promptly given by first-class or certified mail, or (b) the receiving
party delivers a written confirmation of receipt. Any notice given
by
facsimile shall be deemed received on the next business day if it
is
received after 5:00 p.m. (recipient’s time) or on a non-business
day.
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TO
DEPOSITOR:
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Chordiant
Software, Inc.
|
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Purchase
Order# (if applicable): ______________________________
TO
SOURCEFILE:
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Escrow Administration
Phone:
▇▇▇.▇▇▇.▇▇▇▇
Facsimile:
510.419.3875
E-Mail:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
TO
BENEFICIARY: As set forth in Exhibit “B”.
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13.7
Any correctly addressed notice that is refused, unclaimed, or
undeliverable because of an act or omission of the party to be notified
shall be deemed effective as of the first date that said notice was
refused, unclaimed, or deemed undeliverable by the postal authorities,
messenger, or overnight delivery
service.
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13.8
Any party may change its address or facsimile number by giving the
other
party notice of the change in any manner permitted by this
Agreement.
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14.
MISCELLANEOUS
PROVISIONS.
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14.1
Entire Agreement; Acknowledgement. This Agreement and all
agreements, exhibits, and schedules referred to in this Agreement
constitute the final statement of the terms of the Agreement between
the
parties and supersede all prior and contemporaneous understandings
or
agreements of the parties.
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14.2
Modification of Agreement. No supplement, amendment, or
modification of this Agreement shall be binding unless it is in writing
and signed by all parties.
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14.3
Ambiguities. Each party and its counsel have participated fully in
the review and revision of this Agreement. Any rule of construction
to the
effect that ambiguities
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are
to be resolved against the drafting party shall not apply in interpreting this
Agreement.
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14.4
Waiver. No waiver of a breach, failure of a condition, or any right
or remedy contained in or granted by the provisions of this Agreement
shall be effective unless it is in writing and signed by the waiving
party.
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14.5
Headings. The headings in this Agreement are included for
convenience only and shall neither effect the construction or
interpretation of any provision in this Agreement nor affect any
of the
rights or obligations of the parties to this
Agreement.
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14.6
Promotion. The parties agree that from time to time during the term
of this Agreement, SourceFile shall be entitled to include Depositor
and/or Beneficiary, as the case may be in lists of its customers
that
SourceFile uses in its promotional material. SourceFile may not use
Depositor’s or Beneficiary’s name for any other publicity or promotional
purposes without the prior written consent of such
party.
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14.7
Attorney’s Fees. In any litigation or other proceeding by which one
party either seeks to enforce its rights under this Agreement (whether
in
contract, tort, or both) or seeks a declaration of any rights or
obligations under this Agreement, the prevailing party shall be awarded
reasonable attorneys’ fees, together with any costs and expenses, to
resolve the dispute and to enforce the final
judgment.
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14.8
Choice of Law, Jurisdiction, Venue. This Agreement shall be
governed by and construed in accordance with the laws of the State
of
California as such laws apply to contracts between California residents
performed entirely within California. Any action or proceeding arising
from or relating to this Agreement may be brought in a federal court
in
the Northern District of California or in state court in Santa ▇▇▇▇▇
County, California, and each party irrevocably submits to the jurisdiction
and venue of any such court in any such action or
proceeding.
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14.9
Severability. If a court of competent jurisdiction holds any
provision of this Agreement to be illegible, unenforceable, or invalid
in
whole or in part for any reason, the validity and enforceability
of the
remaining provisions, or portions of them, will not be
affected.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the
date
below the signatures.
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DEPOSITOR
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SourceFile
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SourceFile
LLC, A California limited
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Chordiant
Software,
Inc. Liability
Company
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇ By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇ ▇.
▇▇▇▇▇▇ Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Acting Chief Financial
Officer Title: Client
Services Asst. Director
Date:
March 6,
2001
Date: March
13, 2001