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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. Services
.
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. License
.
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. Warranties
.
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
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. Compensation
.
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
CareAdv
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