Exhibit 10.53
S
ERVICES
AND
L
ICENSE
A
GREEMENT
A GREEMENT made as of the 18 th day of August, 2003 (“Effective
Date”), 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 75080.
W HEREAS , CareAdvantage offers to process health
care data through its proprietary RPNavigator software (which uses
Clinical Risk Groups (“CRGs”)) and to make the results
available through its web-based RPNavigator Secure Information
Portal (“Portal”);
W
HEREAS , CareAdvantage also offers certain
services with respect to health care data;
W
HEREAS , BCBSTX desires CareAdvantage to process
its health care data (i.e., inpatient, outpatient, professional and
pharmacy claims as well as physician encounter data) relating to
its HMO, POS, PPO and ASO product lines, to license from
CareAdvantage access to its RPNavigator Secure Information Portal
and to purchase from CareAdvantage certain services, all on the
terms set forth herein,
N OW
, T HEREFORE , in consideration of the premises the
parties agree as follows:
1.1.
Implementation
Services .
CareAdvantage shall perform the
implementation services (“Implementation Services”)
described in Attachment 1.1.
1.2.
Recurring
Services . During
the term of this Agreement, CareAdvantage shall perform the
services (“Recurring Services”) described in Attachment
1.2.
1.3.
Additional
Services . At
BCBSTX’s request, CareAdvantage shall perform such additional
services as the parties may agree.
2.1.
Definitions
. As used in this Agreement, the
terms below are defined as follows:
(a) “BCBSTX Data” means data provided
to CareAdvantage by BCBSTX pursuant to this Agreement.
(b) “Information” means all information
made available through the Portal, including BCBSTX Data that is
categorized, aggregated, displayed, arrayed, or otherwise made
available through the Portal.
(c) “Analysis Period” means the last
twelve month period of incurred data incorporating a payment
lag.
(d) “Covered Population” means those
members eligible to receive health care services at the end of the
Analysis Period.
2.2.
Grant of
License . Subject to
the terms and conditions of this Agreement, during the term of this
Agreement CareAdvantage grants BCBSTX the non-exclusive right to
access and use CareAdvantage’s RPNavigator Secure Information
Portal (the “Portal”). CareAdvantage will provide
BCBSTX with accounts accessible solely by password for fifteen (15)
concurrent users. Concurrent user access licenses are granted
against the covered population, three (3) concurrent users per
100,000 lives, or can be purchased for an additional annual fee of
$* per concurrent user.
2.3.
Portal
Access . BCBSTX
shall be responsible for obtaining the requisite common carrier
communication lines and Internet connections to access the
Portal.
2.4.
Security
. CareAdvantage requires and
enforces 128 bit encryption for web access to the Portal.
CareAdvantage will limit access to the BCBSTX Data maintained at
the Portal to those persons authorized by BCBSTX and provided a
password by BCBSTX. BCBSTX shall be responsible for the
confidentiality of passwords assigned to it and shall be solely
responsible for any authorized or unauthorized access to BCBSTX
Data using such passwords. In addition, BCBSTX shall be responsible
for the configuration and maintenance of the web browser
software.
2.5.
Ownership
. The Portal contains materials
(including but not limited to programs, methods, design and screen
formats) proprietary to CareAdvantage and/or to third parties
(“Third Party Suppliers”) and licensed to CareAdvantage
(collectively, “CareAdvantage Materials”).
CareAdvantage and Third Party Suppliers retain title and ownership
to the CareAdvantage Materials; provided, however, that in no event
shall CareAdvantage Materials be deemed to include BCBSTX Data,
which shall remain the sole property of BCBSTX.
2.6.
Proprietary Rights;
Corporate Names .
BCBSTX understands and agrees that CareAdvantage and its Third
Party Suppliers have proprietary rights in certain trademarks,
service marks, trade names, corporate names and in the format of
the reports used for displaying and arraying the BCBSTX Data (the
“Intellectual Property”). BCBSTX agrees not to use the
Intellectual Property in any way that would infringe the rights of
CareAdvantage and its Third Party Suppliers. BCBSTX agrees not to
alter, remove, or obscure any copyright notices or other
proprietary notices on and in any part of the Portal and to include
on and in any copies of reports printed from the Portal the
following: “All copyrights in and to CRGs are owned by 3M.
All rights reserved. All copyrights in and to the algorithms other
than CRGs presented in this report, are owned by CareAdvantage,
Inc. All rights reserved.”
2.7.
Authorized Use of Portal and
Information . BCBSTX
(including Health Care Service Corporation and authorized agents)
is authorized to use the Portal and Information solely in
accordance with this Agreement. BCBSTX is authorized to view the
BCBSTX Data in any of the reports available at the Portal, to print
any such report, and to use any such report solely for its own
purposes in providing and administering health insurance and
benefits (including but not limited to making copies of such
reports and providing copies of such reports to its customers). Any
other use of the Portal or Information by BCBSTX is prohibited and
except as authorized herein, BCBSTX shall not transmit, divulge, or
publish any part of the contents or substance of the Portal or in
any way provide the Information, or any part thereof, to any other
person; provided, however, that the foregoing shall not in any way
limit BCBSTX’s use of the BCBSTX Data.
2.8.1.
Ownership
. CareAdvantage warrants that it is
the owner of the Portal and that it has the full power, authority
and right to license such Portal in the manner set forth in this
Agreement.
2.8.2.
No Other
Warranties .
CareAdvantage shall furnish to BCBSTX access to and use of the
Portal as promptly and accurately as is reasonably practicable.
WITH RESPECT TO THE INFORMATION AND THE PORTAL, EXCEPT AS PROVIDED
IN SECTION 2.8.1, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. No oral or
written information or advice given by CareAdvantage, its agents,
employees, affiliates, directors, or officers, shall create a
warranty or in any way increase the scope of this
warranty.
2.9.
Limitation of
Liability . The
liability of any or all of CareAdvantage, its Third Party Suppliers
and their respective affiliates, agents or licensors and any other
person claiming through, on behalf of, or as harmed by BCBSTX, is
limited to a prorated refund of any monies paid on account of this
Agreement to CareAdvantage by BCBSTX for the period at issue.
Neither CareAdvantage nor its Third Party Suppliers and their
respective affiliates, agents or licensors shall be liable to
BCBSTX or to any other person for indirect, punitive, special,
consequential or incidental damages (including, but not limited to,
loss of profits or anticipated profits, loss by reason of shutdown
in operation or increased expenses of operation, or other indirect
loss or damage) of any nature arising from any cause whatsoever,
even if CareAdvantage, its Third Party Suppliers, or their
respective affiliates, agents or licensors have been advised of the
possibility of such damages.
3.
Business Associate
Agreement . The
parties agree that the terms of the Business Associate Agreement
set forth in Attachment 3.3 shall be deemed a part of this
Agreement.
4.1.
Generally
. BCBSTX shall pay CareAdvantage for
the services and license provided under this Agreement as
follows:
(a)
as compensation for the
Implementation Services, the sum of $* upon execution of this
Agreement; plus
(b)
as compensation for the grant of
the license and for the Recurring Services $* PMPM for each member
in the Covered Population, commencing as of the Effective
Date.
Compensation
payable pursuant to paragraph (b) of this Section 4.1 shall be
payable within thirty (30) days after receipt of invoice each month
during the term of this Agreement. Payments made pursuant to the
foregoing sentence shall be reconciled to the eligibility data for
the Covered Population BCBSTX makes available to CareAdvantage each
recurring update, and CareAdvantage shall pay any reconciling
adjustment to BCBSTX within thirty (30) days of its making a
determination that such adjustment is owing, and BCBSTX shall pay
any reconciling adjustment to CareAdvantage within thirty (30) days
of CareAdvantage’s notifying it in writing that such
adjustment is owing.
4.2.
Additional
Services . BCBSTX
shall pay CareAdvantage for Additional Services as the parties may
agree.
