|
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:
2
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 pu
|
