EXHIBIT 10.54
A
MENDMENT
T
O
S
ERVICES
AND
L
ICENSE
A
GREEMENT
A MENDMENT T O
S ERVICES AND L ICENSE A GREEMENT made as of the 1st day of June 2006
(“Effective Date of Amendment”), by CareAdvantage, Inc.
(“CareAdvantage” or “CAI”), a Delaware
corporation with its principal place of business at 485-C Route One
South, Iselin, New Jersey 08830, and Blue Cross and Blue Shield of
Texas, a division of the Health Care Service Corporation
(“BCBSTX”), with its principal place of business at 901
S. Central Expressway, Richardson, Texas 75030.
W HEREAS , BCBSTX and CareAdvantage have entered
into a Services and License Agreement as of August 18, 2003 (the
“Agreement”), which Agreement has from time-to-time
been modified to provide for Additional Services;
W HEREAS , the parties desire to further amend the
Agreement to provide for bi-monthly updates of paid claims data, to
clarify Portal availability, to provide for performance guarantees,
to provide for certain reports and the processing of data from
certain PBMs and to extend the term of the Agreement;
W HEREAS , the parties also desire to amend the
compensation payable under the Agreement;
N OW
, T HEREFORE , in consideration of the premises the
parties agree as follows:
1.
Bi-Monthly Processing of Paid
Claims Data . Commencing
as of the Effective Date of the Amendment, Attachment 1.2 of the
Agreement is amended in its entirety as provided in Attachment 1.2
attached hereto.
2.
Portal Availability
. Commencing as of the Effective
Date of the Amendment:
a.
Section 2.7 of the Agreement is
amended by adding to the heading, immediately prior to the period,
the following: “ ; Portal Access and Performance
Guarantee ”;
b.
The existing text of Section 2.7
(exclusive of the heading) is re-designated 2.7.1, and immediately
thereafter there is added new Sections 2.7.2 and 2.7.3 as
follows:
2.7.2 CareAdvantage will use commercially reasonable
efforts to ensure that the Portal is accessible for a minimum of
99% of scheduled uptime (the “Portal Service Levels”).
Scheduled uptime shall consist of 9:00 a.m. to 9:00 p.m. Eastern
Time, Monday through Friday. Access to the Portal generally will be
available at times other than scheduled uptime, except when
CareAdvantage is conducting maintenance, but CareAdvantage cannot
guarantee the extent to which the Portal will be accessible at
these other times. CareAdvantage will notify BCBSTX at least five
(5) days in advance of any maintenance that may be required during
scheduled uptime; provided, however, total down time for
maintenance or other reasons shall not exceed 1% of scheduled
uptime. BCBSTX acknowledges and agrees that access to the Internet
is subject to unexpected outages due to equipment failure that can
occur through a variety of external causes, and which may have an
affect on CareAdvantage’s ability to satisfy the Portal
Service Levels. BCBSTX agrees that CareAdvantage is not responsible
for any unexpected outages of the Portal caused by external
circumstances beyond CareAdvantage’s control. BCBSTX may
contact CareAdvantage to report problems with Portal access anytime
twenty-four hours a day. CareAdvantage will use all commercially
reasonable efforts in restoring unscheduled outages of the Portal
whenever they occur. If the Portal Service Levels fall below
99% of scheduled uptime in one or more monthly periods,
CareAdvantage will (i) use all reasonable efforts to diagnose the
problem(s) causing the excessive downtime, as required, and (2)
prepare and implement a remediation plan to resolve the issues. If,
notwithstanding CareAdvantage’s remediation efforts, Portal
Service Levels continue below 99% for a period of ninety (90) days
or more, BCBSTX may terminate the Agreement for cause, providing no
further cure period, and pursue all of its available remedies at
law and equity.
2.7.3 In the event that for any month the Portal
Service Level is less than 99%, then during the remainder of the
term of this Agreement, if for any subsequent month the Portal
Service Level is again below 99%, the compensation payable pursuant
to Section 4.1 for such subsequent month shall be reduced as
follows:
|
less
than 99% but at least 96%
|
2
|
%
|
|
less
than 96% but at least 90%
|
5
|
%
|
|
less
than 90% but at least 80%
|
10
|
%
|
|
less
than 80% but at least 70%
|
25
|
%
|
|
less
than 70%
|
100
|
%
|
CareAdvantage
will monitor continuously during scheduled uptime network server
availability as well as Portal Application availability. Monitoring
Portal Application availability encompasses testing the Portal for
login success and a sample data query for backend database
availability. CareAdvantage will maintain data logs and will upon
BCBSTX’s request provide it reports as to server availability
and Portal Application availability. In computing the Portal
Service Level for any month, such data logs shall be conclusive as
to the extent of network server availability and Portal Application
availability. No reduction in compensation shall be made to the
extent the Portal Service Level was affected by matters beyond
CareAdvantage’s control as provided by Section
8.10.
3.
Term . Commencing as of the Effective Date of the
Amendment, Section 5.1 is amended by substituting “May 31,
2009” for “the third anniversary of the Effective
Date.”
4.
Compensation.
Commencing as of the Effective Date
of the Amendment:
a. Section 4.1 of the Agreement is amended in its
entirety as follows:
4.1.
Generally
. BCBSTX shall pay CareAdvantage for
the services and license provided under this Agreement, as amended,
$* PMPM for each member in the Covered Population; provided,
however, that in the event BCBSTX, in accordance with Attachment
1.2, provides CareAdvantage with Incremental claims data, then in
lieu of the foregoing the fee shall be $* PMPM for each member in
the Covered Population. Notwithstanding the foregoing, because
BCBSTX intends to provide Incremental claims data commencing August
2006, the parties have agreed that the payments due June 1, July 1
and August 1, 2006, shall be computed at the Incremental claims
data rate of $* PMPM; provided, however, that in the event BCBSTX
fails to provide CareAdvantage with Incremental claims data for
August 2006, then the amounts due for June, July and August 2006
shall be retroactively adjusted to the $* PMPM rate, and the
resulting amount owing shall be paid with the amount otherwise due
on September 1, 2006. During the term of this Agreement,
compensation shall be payable without invoice monthly commencing on
the 1st day of June 2006, and on the 1 st day of each
subsequent month; payment for the month commencing June 1, 2006,
shall be $* (which assumes * members). Payments made pursuant to
the foregoing sentence shall be reconciled to the BCBSTX Data that
BCBSTX makes available to CareAdvanta
|
