Exhibit 10.13
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CLAIMS ADMINISTRATION SERVICES AGREEMENT
between
INSURANCE NETWORK SERVICES, INC.
(as INS)
and
MAGNA FLORIDA INSURANCE COMPANY, INC.
(as the Company)
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January 21, 2000
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THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO THE FLORIDA
ARBITRATION CODE, FLORIDA STATUTE SECTION 682.
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THIS AGREEMENT, dated as of the 21st day of January, 2000 (the
"Agreement"), between Insurance Network Services, Inc., a South Carolina
corporation ("INS"), and Magna Florida Insurance Company, Inc., a Florida
corporation (the "Company").
R E C I T A L S:
WHEREAS, INS has significant experience in insurance claims administration
services in the United States; and
WHEREAS, the Company desires to appoint INS as its claims administrator and
INS desires to accept such appointment subject to the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements, and upon the terms and subject to the conditions
hereinafter set forth, the parties do hereby agree as follows:
ARTICLE I
APPOINTMENT
1.01 APPOINTMENT. The Company hereby appoints INS to act as Claims
Administrator, as hereinafter described, on behalf of the Company and, by the
execution hereof, INS accepts such appointment for an initial term of ten (10)
years.
ARTICLE II
DUTIES OF CLAIMS ADMINISTRATOR
2.01 DUTIES. The Company acknowledges that INS may subcontract with an
independent contractor to perform all or part of the claims administration
services set forth below, subject to the requirements of this Agreement or may
assign certain duties to certain of its affiliates:
(a) LOSS NOTIFICATION. INS will provide a statewide Florida network for
the reporting of claims of the Company's insureds, including maintaining a
Florida address, telephone and facsimile and/or data centers to be used for this
purpose. INS will receive the notice of loss from the policy-processing vender.
(b) COVERAGE VERIFICATION. Coverage will be verified by the
policy-processing vender of the Company. INS will properly apply the coverage to
the particular claim.
(c) CLAIMS INVESTIGATION. INS shall require the assigned adjuster to
handle claims in accordance with the Company's rules and regulations and
generally accepted insurance industry standards. All claims will be processed in
compliance with law. INS will monitor all open claim files utilizing means
deemed appropriate for claims settlement. INS will require appropriate
documentation of each claim file which provides a tracing record of each loss,
the investigation, the damage assessment and other pertinent information
associated with each claim handling decision.
(d) CLAIM NEGOTIATION/SETTLEMENT. INS shall require that claims are
handled and settled in accordance with the Company's policies and with an
emphasis placed on expense control and appropriate settlement in compliance with
applicable law.
(e) SALVAGE/SUBROGATION PURSUIT. INS will, when appropriate, undertake all
necessary procedures through salvage or subrogation to pursue the recovery of
loss expenditures. Subrogation activities consist of pursuit of subrogation
recoveries, including without limitation notification of subrogation interest,
follow-up activity, letters, filing of appropriate arbitration forms, and
initiation of litigation if necessary. INS will implement all subrogation or
salvage programs reasonably adopted by the Company.
(f) CATASTROPHIC RESPONSE TEAM. INS shall maintain or contract with an
adequate number of claims personnel to respond to a catastrophe and shall file a
Catastrophe Response Plan with the Company within ten (10) days of the full
execution of this Agreement and thereafter by July 1 of each year during the
term hereof. INS shall make such changes to the Catastrophe Response Plan as the
Company may reasonably request, and INS shall implement such changes in a timely
manner. The Company acknowledges that INS may subcontract with an independent
contractor to perform all or part of the Catastrophe Response Plan, subject to
the requirements of this Agreement.
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(g) HARD COPY FILES. INS shall be responsible for the preparation and
maintenance of hard copy files, or other commercially acceptable documentation,
of claims activities established and maintained in a commercially reasonable
fashion which shall be maintained by INS for a retention period of at least
three (3) years subsequent to the year of the claim's closure. After the
retention period, INS shall deliver the files or documentation to the Company.
(h) ADDITIONAL DUTIES. INS shall be responsible for all additional claims
handling and administrative duties as set out in the attached SCHEDULE B.
2.02 COMPLAINT LOG. INS shall establish a tracking system for complaints
received from the Company's insureds with respect to the Company business
handled by INS. The Complaint Tracking Log shall be established and maintained
in accordance with applicable laws and applicable rules and orders of any
appropriate Department of Insurance.
2.03 ADDITIONAL SERVICES. INS shall render other reasonable services as are
reasonably necessary or appropriate to properly provide the
Company services, and fulfill the functions, as provided for and intended by
this Agreement.
2.04 ANTI-FRAUD INVESTIGATION COMPLIANCE. INS shall have filed with the
Division of Insurance Fraud of the Florida Department of Insurance on or before
the ninetieth day after the date this Agreement becomes effective all required
documentation indicating implementation of, and compliance with 626.9891, F.S.
concerning anti-fraud investigative units. INS shall provide the Company copies
of all submissions made to the Florida Department of Insurance pursuant to this
provision and copies of all Florida Department of Insurance responses.
2.05 AUDIT. INS shall make internal audits, including claim audits, of its
business at such time and intervals and in such manner and detail as the Company
shall reasonably request and require. However, INS-initiated internal audits
shall occur annually, the results of which shall be reported to the Company no
later than thirty (30) days following completion of same.
2.06 RECORDS. INS shall cooperate fully with all officers, employees,
agents or other representatives of the Company, or any appropriate Department of
Insurance representative(s) during audits, investigations or examinations made
and conducted by the Company, or such Department of Insurance representative(s)
and shall permit such persons to have full access, during the normal business
hours, to all books and records of INS pertaining to the services rendered or to
be rendered by INS pursuant to this Agreement.
ARTICLE III
COMPENSATION
3.01 FEE SCHEDULE. The Company shall compensate INS for the services
rendered by INS in accordance with SCHEDULE A attached hereto. The Company will
pay INS the compensation earned in accordance with this agreement monthly within
30 days of the end of each month. INS may amend SCHEDULE A from time to time to
reflect reasonable increases or decreases associated with costs of providing the
services pursuant to this Agreement.
ARTICLE IV
RELATIONSHIP
4.01 INDEPENDENT CONTRACTOR. INS shall be deemed an independent contractor,
performing for the Company services free from any supervision or control by the
Company, except such supervision and control as may be exercised by the Company
in connection with enforcing compliance with the terms of this Agreement,
applicable laws and applicable rules or orders of any appropriate Department of
Insurance. The Company acknowledges that INS is acting solely as a Claims
Administrator under this Agreement and that INS shall have no liability as an
insurer in connection with the risks insured.
ARTICLE V
INDEMNIFICATION
5.01 INS. INS shall indemnify and hold the Company harmless from and
against all claims, losses, damages, liabilities, judgments or settlements,
including without limitation reasonable costs, expenses and attorney's fees,
arising out
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of the relationship of the parties under the terms of this Agreement caused by
INS' act, error or omission, except to the extent the Company has caused,
contributed to or compounded such act, error or omission.
5.02 THE COMPANY. The Company shall indemnify and hold INS harmless from
and against all claims, losses, damages, liabilities, judgments or settlements,
including without limitation reasonable costs, expenses and attorney's fees,
arising out of the relationship of the parties under the terms of this Agreement
caused by the Company's act, error or omission, except to the extent INS has
caused, contributed to or compounded such act, error or omission.
ARTICLE VI
TERMINATION
6.01 TERMINATION. After the initial term, either party may terminate this
Agreement by providing the other party with written notice to such effect ninety
(90) days prior to the effective date of termination. If either party materially
breaches this Agreement and fails to cure such breach after 90 days written
notice of such breach from the non-breaching party, the non-breaching party may
terminate this Agreement upon 10 days written notice.
ARTICLE VII
MISCELLANEOUS
7.01 ENTIRE AGREEMENT. This Agreement (including the attached Schedules)
constitutes the sole understanding of the parties with respect to the subject
matter hereof; PROVIDED, HOWEVER, that this provision is not intended to
abrogate any other written agreement between the parties executed with or after
this Agreement. No amendment, modification or alteration of the terms or
provisions of this Agreement shall be binding unless the same shall be in
writing and duly executed by the parties hereto.
7.02 PARTIES BOUND BY AGREEMENT; SUCCESSORS AND ASSIGNS. The terms,
conditions and obligations of this Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
Without the prior written consent of INS, the Company may not assign its rights,
duties or obligations hereunder or any part thereof to any other person or
entity. INS may assign its rights and duties hereunder in whole or in part to
one or more of its affiliates.
7.03 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
7.04 HEADINGS. The headings of the Articles, Sections and paragraphs of
this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
7.05 MODIFICATION AND WAIVER. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party that is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provision hereof (whether
or not similar).
7.06 NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party hereto to any other party hereto shall be in
writing and delivered personally or by telecopy transmission or sent by
registered or certified mail or by any express mail service, postage or fees
prepaid,
if to INS to:
Insurance Network Services, Inc.
Attn: President
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
The Seibels ▇▇▇▇▇ Group, Inc.
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▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to the Company to:
Magna Florida Insurance Company, Inc.
Attn: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
P.O. Box 3918
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address or number for a party as shall be specified by like
notice. Any notice that is delivered personally or by telecopy transmission in
the manner provided herein shall be deemed to have been duly given to the party
to whom it is directed upon actual receipt by such party or its agent. Any
notice which is addressed and mailed in the manner herein provided shall be
conclusively presumed to have been duly given to the party to which it is
addressed at the close of business, local time of the recipient, on the fourth
business day after the day it is so placed in the mail or, if earlier, the time
of actual receipt.
7.07 GOVERNING LAW; CONSTRUCTION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. NO PROVISION OF THIS
AGREEMENT OR ANY RELATED DOCUMENT SHALL BE CONSTRUED AGAINST OR INTERPRETED TO
THE DISADVANTAGE OF ANY PARTY HERETO BY ANY COURT OR OTHER GOVERNMENTAL OR
JUDICIAL AUTHORITY BY REASON OF SUCH PARTY'S HAVING OR BEING DEEMED TO HAVE
STRUCTURED OR DRAFTED SUCH PROVISION.
7.08 ARBITRATION.
(a) Each party agrees to the extent any dispute arising in
connection with this Agreement is not resolved by voluntary agreement of the
parties, such dispute shall be exclusively and finally settled by arbitration in
accordance with the provisions of this Section 7.08. If any such dispute arises,
any party may at any time deliver written notice that it intends to submit such
dispute to arbitration. If such notice is delivered to the other parties, then
the party that delivered such notice shall be entitled to direct submission of
the dispute to arbitration. Notwithstanding this Section 7.08, each party shall
have the right to seek from any court of competent jurisdiction, pending the
establishment of the arbitral tribunal, relief in aid of arbitration or to
protect the rights of such party in respect of this Agreement. Any request for
such interim relief by a party shall not be deemed incompatible with, or a
waiver of, this agreement to arbitrate.
(b) Such arbitration shall be held in Jacksonville, Florida (which
shall be the exclusive location of such arbitration unless otherwise agreed by
the parties) in accordance with the rules and regulations of the American
Arbitration Association, with pre-hearing discovery rights in accordance with
the Federal Rules of Civil Procedure (PROVIDED that the foregoing shall not
limit the power of the arbitrator(s) to accord the parties greater rights of
inspection and discovery than they would have in a suit at law). The
determination of the arbitrator(s) shall be conclusive and binding upon the
parties, and any determination by the arbitrator(s) of an award may be filed
with the clerk of a court of competent jurisdiction as a final adjudication of
the claim involved, where application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the case may be. The
expenses of each party, including legal and accounting fees, if any, with
respect to the arbitration, shall be borne by such party, except to the extent
otherwise directed by the arbitrator(s). The arbitrator(s) shall designate the
parties to bear the expenses of the arbitrator(s) or the respective amounts of
such expense to be borne by each party.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf on the date indicated.
INS:
INSURANCE NETWORK SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President and CEO
THE COMPANY:
MAGNA FLORIDA INSURANCE COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: S.V.P & Sec.
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EXHIBIT LIST
Schedule A - Compensation Schedule
Schedule B - Claims Administration Plan
REGISTRANT UNDERTAKES TO PROVIDE COPIES OF THE EXHIBITS
TO THE COMMISSION SUPPLEMENTALLY UPON REQUEST
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AMENDMENT NO. 1
TO
CLAIMS ADMINISTRATION SERVICES AGREEMENT
THIS AMENDMENT (the "Amendment"), made effective as of this 4th day of
October, 2002, by and between INSURANCE NETWORK SERVICES, INC., a South Carolina
corporation ("INS"), and QualSure Insurance Corporation, formerly known as Magna
Florida Insurance Company, Inc., a Florida corporation (the "Company"), is
hereinafter set forth:
W I T N E S S E T H:
WHEREAS, INS and the Company are parties to that certain Claims
Administration Services Agreement dated January 21, 2000; and
WHEREAS, INS and the Company desire to amend the Claims Administration
Services Agreement in certain respects;
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, representations and warranties herein contained, and for the other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
SECTION 1. AMENDMENTS.
A. Section 1.01 of the Claims Administration Services Agreement is
hereby amended by replacing it in its entirety with the following:
"1.01 APPOINTMENT. The Company hereby appoints INS to act as
its exclusive Claims Administrator, as hereinafter
described, on behalf of the Company and, by the execution
hereof, INS accepts such appointment.
(a) TERMS. For the following terms:
i. Existing Business - until January 21, 2010;
ii. Wind Renewals - until October 4, 2007; and
iii. New Business - until October 4, 2005.
(b) EXCLUSIVE RIGHT TO NEGOTIATE. Upon the end of any
term, so long as notice of breach of the Agreement
has not been delivered by the Company, INS shall
have the exclusive right to negotiate with the
Company a renewal of this Agreement with respect to
such type of business upon terms acceptable to the
Company until three (3) months prior to the end of
the term of the type of business which term is
expiring. If, during this exclusive negotiating
period, the parties fail to agree upon the terms of
a renewal or extension of the Agreement as to the
type of business which term is expiring, the Company
shall be free to negotiate with any third party.
This provision in no way obligates the Company to
renew or extend the Agreement under any terms."
B. Section 2.01 of the Claims Administration Services Agreement is
hereby amended by adding the following:
"(i) In addition to the service requirements set forth
herein, INS shall provide services according to the standards set forth in the
attached SCHEDULE C."
C. Article III of the Claims Administration Services Agreement is
hereby amended by adding the following:
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"3.02 AUDIT. The Company shall make internal audits of its books and
records pertaining to the services rendered pursuant to this Agreement available
to INS at such time and intervals and in such manner and detail as INS shall
reasonably request and require.
3.03 RECORDS. The Company shall cooperate fully with all officers,
employees, agents or other representatives of INS during audits, investigations
or examinations made and conducted by INS and shall permit such persons to have
full access as reasonably requested, during the normal business hours, to all
books and records of the Company pertaining to the services rendered pursuant to
this Agreement including, but not limited to, premiums by type of business."
D. Section 7.08 of the Claims Administration Services Agreement is
hereby amended by replacing it in its entirety with the following:
"7.08 DISPUTE RESOLUTION.
(a) CONSENT TO JURISDICTION. Each party hereto agrees that
this Agreement may be enforced in courts of competent jurisdiction of the State
of Florida or federal courts in Florida with respect to any claim or cause of
action, whether in law or equity, including specific performance, arising under
or relating to this Agreement, and waives personal service of any and all
process upon it, and consents that all services of process may be made by
certified or registered mail, postage pre-paid and return receipt requested, to
the address of the parties set forth in Section 7.06 hereof. Each party hereto
waives any objection based on forum nonconveniens and waives any objection to
venue of any action instituted hereunder. Each party hereto agrees that a final
judgment in any such action shall be conclusive and may be enforced in any other
jurisdiction by suit on a judgment or in any other manner provided by law.
Nothing in this Section 7.08 shall affect the right of any party hereto to serve
legal process in any other manner permitted by law. To the extent that any party
hereto has or hereafter may acquire any immunity from jurisdiction of any court
or from any legal process with respect to itself or its property, such party
hereby waives (to the fullest extent permitted by applicable law) such immunity
in respect of its obligations hereunder.
(b) INJUNCTIVE RELIEF. In the event of a breach of the terms
of this Agreement, either of the parties to this Agreement shall be entitled to
an injunction restraining the party about to commit any breach of this
Agreement, or who has committed a breach of it, without showing or proving any
actual damage sustained by them.
(c) ATTORNEYS' FEES. Each party shall be responsible for
their own costs and expenses incurred in connection with resolving a dispute
under this Agreement, including fees and expenses of their financial
consultants, accountants and counsel."
E. Article VII of the Claims Administration Services Agreement is
hereby amended by adding the following:
"7.09 CONFIDENTIALITY.
(a) CONFIDENTIAL INFORMATION. Each party hereto agrees, and
agrees to cause its Affiliates, officers and directors (in their capacity as
such), and its employees, attorneys, accountants, consultants and other agents
and advisors (collectively, and together with their respective officers and
directors, "Agents") to keep secret and maintain in confidence all confidential
and proprietary information and data of either party disclosed to it or its
Agent by the other party (in each case, a "Receiving Party") in connection with
the performance of this Agreement ("Confidential Information") and shall not,
and shall cause their respective Agents not to, disclose Confidential
Information to any Person other than itself or its Agents who have a need to
know Confidential Information to perform their respective duties. Each party
further agrees that neither it nor any of its Agents shall use Confidential
Information for any purpose other than the direct performance of its duties
pursuant to the terms of this Agreement The Company and INS shall take all
reasonable measures necessary to prevent any unauthorized disclosure of
Confidential Information by any person.
(b) SURVIVAL. The obligations under this section shall
survive for a period of two (2) years from the date of final termination of this
Agreement provided that such obligations shall continue indefinitely with
respect to any trade secret or similar information which is proprietary to
either party and provides such party with an advantage over its competitors.
(c) AUTHORIZED DISCLOSURES. Nothing herein shall prevent any
party hereto or its Agents from using, disclosing, or authorizing the disclosure
of Confidential Information it receives in the course of business which:
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(i) has been published or is in the public domain, or
which subsequently comes into the public domain, through no fault of the
Receiving Party;
(ii) prior to receipt hereunder was properly within the
legitimate possession of the Receiving Party or, subsequent to receipt hereunder
(or under such agreement), is lawfully received from a third party having rights
therein without restriction of the third party's right to disseminate the
Confidential Information and without notice of any restriction against its
further disclosure;
(iii) subject to the Receiving Party's compliance with
paragraph 7.09 (d) below, is required to be produced under order of a court of
competent jurisdiction or other similar requirements of a governmental agency,
provided that such Confidential Information to the extent covered by a
protective order or its equivalent shall otherwise continue to be Confidential
Information required to be held confidential for purposes of this Agreement; or
(iv) subject to the Receiving Party's compliance with
paragraph 7.09 (d) below, is required to be disclosed by applicable law.
(d) NOTICE OF DISCLOSURES. In the event that any Receiving
Party: (i) must disclose Confidential Information in order to comply with
applicable law; or (ii) becomes legally compelled (by a court of competent
jurisdiction) to disclose any Confidential Information, the Receiving Party
shall provide the disclosing party with prompt written notice so that in the
case of clause (i), the disclosing party can work with the Receiving Party to
limit the disclosure to the greatest extent possible consistent with legal
obligations, or in the case of clause (ii), the disclosing party may seek a
protective order or other appropriate remedy or waive compliance with the
provisions of the Agreement. In the case of clause (ii): (A) if the disclosing
party is unable to obtain a protective order or other appropriate remedy, or if
the disclosing party so directs, the Receiving Party shall, and shall cause its
Agents to, exercise all commercially reasonable efforts to obtain a protective
order or other appropriate remedy at the disclosing party's reasonable expense;
and (B) failing the entry of a protective order or other appropriate remedy or
receipt of a waiver hereunder, the Receiving Party shall furnish only that
portion of the Confidential Information which it is advised by opinion of its
counsel is legally required to be furnished and shall exercise all commercially
reasonable efforts to obtain reliable assurance that confidential treatment
shall be accorded such Confidential Information, it being understood that such
reasonable efforts shall be at the cost and expense of the disclosing party
whose Confidential Information has been sought."
F. Schedule A of the Claims Administration Services Agreement is
hereby amended by replacing it in its entirely with Schedule A of this
Amendment.
G. Schedule A.1 of the Claims Administration Services Agreement is
hereby amended by replacing it in its entirely with Schedule A.1 of this
Amendment.
H. The Claims Administration Services Agreement is hereby amended by
adding Schedule C of this Amendment.
SECTION 3. CONTINUATION.
The Claims Administration Services Agreement, as amended by this Amendment,
shall continue in full force and effect in accordance with its terms.
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[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, INSURANCE NETWORK SERVICES, INC. and QUALSURE INSURANCE
CORPORATION have each caused this Amendment No. 1 to Claims Administration
Services Agreement to be executed in its respective name and on its behalf by a
corporate officer and attested, all as of the date first above written.
INSURANCE NETWORK SERVICES, INC. QUALSURE INSURANCE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
----------------------------- -----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
--------------------------- ----------------------------------
Title: President Title: President and CEO
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EXHIBIT LIST
Schedule A - Compensation Schedule
Schedule C - Service Levels
REGISTRANT UNDERTAKES TO PROVIDE COPIES OF THE EXHIBITS
TO THE COMMISSION SUPPLEMENTALLY UPON REQUEST
108