EXHIBIT 10.74
INSURANCE ADMINISTRATION SERVICES AGREEMENT
THIS ADMINISTRATION SERVICES AGREEMENT ("Agreement") is effective as of the
1st day of September, 2001 ("Effective Date"), by and between INSURANCE
MANAGEMENT SOLUTIONS, INC. ("IMS"), a corporation organized and existing under
the laws of the State of Florida with its principal place of business located at
360 Central Avenue, St. Petersburg, Florida 33701, and COOPERATIVA DE SEGUROS
MULTIPLES DE PUERTO RICO (herein referred to as "Customer") having their
principal place of business at 38 Nevarez Street, Corner of Americo Miranda, Rio
Piedras, Puerto Rico 00927-4608.
WHEREAS, Customer wishes to engage the services of IMS to administer
certain of the Customer's obligations for the lines of business ("Authorized
Lines of Business") in the state(s) ("Authorized States") set forth in SCHEDULE
A;
WHEREAS, IMS wishes to provide such insurance administration services as
set forth herein.
NOW THEREFORE, IN CONSIDERATION OF the mutual covenants and agreements
hereinafter set forth, the parties hereto do covenant and agree as follows:
ARTICLE I. DEFINITIONS
Unless the context clearly requires otherwise, the following terms when used in
this Agreement shall have the meanings set forth below:
A. "Affiliate" is any company which controls, is controlled by, or under
common control with, a party, and "control" is defined as owning 50% or
more of such entity.
B. "Authorized Lines of Business" means the lines of business expressly set
forth in SCHEDULE A of this Agreement.
C. "Authorized States" means the states expressly set forth in SCHEDULE A of
this Agreement.
D. "Business Day" means any day other than a Saturday, Sunday or other day
which is a bank holiday for Florida State banks or an IMS paid holiday (New
Year's Day, Memorial Day, Independence Day, Thanksgiving Day, day after
Thanksgiving, Christmas Eve (after 12 P.M. Eastern Standard Time) and
Christmas Day).
E. "Change of Control" means (a) a sale, transfer or pledge, or the issuance
to a new shareholder, of fifty (50%) percent or more of the voting stock of
a party hereto to any third party that is not an Affiliate of such party;
or (b) a sale, transfer or pledge of a substantial portion of the material
assets of a party, or any merger or consolidation of a party with another
entity or entities.
F. "Insurance Administration Services" means the services set forth in this
Agreement and EXHIBIT I hereto in the Authorized States in accordance with
the terms of the Agreement, and all applicable laws and regulations.
G. "Insurance Program" means the Customer's insurance products within the
Authorized Line(s) of Business to be offered within the Authorized States.
H. "Technical Information" means and shall include (without limitation)
computer programs, databases, designs, algorithms, processes, structures,
data formats, business methods, know how, and research and development
information.
ARTICLE II. TERM
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The term of the Agreement shall commence on the Effective Date and shall have a
minimum operating term ("Minimum Operating Term") of Twenty-Four (24) full
calendar months following the Effective Date. However, the term of this
Agreement shall automatically extend for an additional operating term
("Extended Operating Term") of twelve (12) calendar months at the end of the
Minimum Operating Term, or at the end of any Extended Operating Term, unless
terminated earlier pursuant to the termination provisions within Article VIII.
ARTICLE III. RESPONSIBILITIES OF IMS
A. IMS shall dedicate the human, equipment and computer resources commercially
reasonably required to provide Customer with the Insurance Administration
Services, during the term of this Agreement, for the Insurance Program
within Authorized States specified in SCHEDULE A.
B. IMS shall designate an employee ("Account Manager") of sufficient status
and authority to act as liaison with Customer to facilitate IMS'
performance of the Insurance Administration Services under this Agreement.
The Account Manager shall provide written and/or oral communication of the
status of administration of the Insurance Administration Services as agreed
to by and between Account Manager and Customer.
C. IMS shall, based on accepted industry standards and in accordance with
generally accepted insurance and accounting practices, as designated by the
applicable regulatory bodies, maintain complete and orderly records and
policy and/or claims files as may be required as a result of IMS performing
the Insurance Administration Services on behalf of Customer. These files
shall be retained by IMS, in a format or media defined by IMS which shall
be in compliance with applicable laws and regulations, for a minimum of
four (4) years or the period specified by the applicable statutes
regulating the preservation of records, unless the Customer requests that
its records be returned to it at its expense at the expiration of the
minimum four (4) year period; however, that IMS shall be entitled to retain
copies thereof.
ARTICLE IV. RESPONSIBILITIES OF CUSTOMER
A. During the term of this Agreement, Customer shall provide to IMS, in a
timely manner, any and all data, information and other items reasonably
required to enable IMS to perform the Insurance Administration Services
specified in EXHIBIT I of this Agreement. Customer represents and warrants
to IMS that it owns and possesses all property rights to its corporate and
subsidiary logos and hereby grants and warrants to IMS a limited,
non-transferable, non-assignable, license to use Customer's corporate and
subsidiary logos (and any other copyrighted or trademarked property of
Customer that may be provided to IMS under this Agreement) while performing
the Insurance Administration Services. Customer acknowledges and agrees
that delays in delivery of required documentation, data and/or information
by Customer will result in a similar delay in fulfilling Insurance
Administration Services, and that such a delay in performing the Insurance
Administration Services shall not be deemed a breach of the Agreement.
B. CUSTOMER ACKNOWLEDGES AND AGREES THAT IMS ASSUMES NO INSURANCE RISK FOR THE
BUSINESS PROCESSED UNDER THIS AGREEMENT.
C. Customer shall designate manager level employee(s) of sufficient status and
binding decision making authority to act as liaisons with IMS and to
facilitate Customer's role as IMS performs the Insurance Administration
Services specified in EXHIBIT I of this Agreement.
ARTICLE V. CUSTOMER ACCESS TO RECORDS/CONFIDENTIAL INFORMATION
A. At Customer's expense, Customer will be permitted reasonable access
(subject to the limitations
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set forth in Exhibit I) to all records and information maintained by IMS on
behalf of Customer (excluding, specifically, proprietary Technical
Information) reasonably necessary to: (i) audit the completeness and
accuracy of the Insurance Administration Services provided under this
Agreement and reports produced for Customer pursuant to this Agreement;
(ii) verify the accuracy and validity of all billings and charges to
Customer under this Agreement; and (iii) verify IMS' overall compliance
with the material terms of this Agreement and applicable laws and
regulations.
Access to IMS' records, for the foregoing purposes, will be provided during
normal business hours upon ten (10) Business Days prior written notice to
IMS by Customer for so long as IMS is required to maintain such records
under this Agreement; except in the case of regulatory inquiry, in which
case access will be granted on any Business Day with twenty four (24) hours
of prior written notice to IMS.
At Customer's expense, Customer will be permitted to copy those IMS records
subject to audit in accordance with this Article. Upon reasonable written
request by Customer, and at Customer's expense, IMS will promptly mail or
fax to Customer supporting documentation concerning any specific
transaction processed by IMS under the terms of this Agreement.
IMS will provide reasonably adequate workspace for Customer to conduct
audits in accordance with this Article. Further, Customer or its
representatives shall take precautions, when conducting audits under this
Article, not to disrupt IMS' ongoing business activities.
B. The recipient ("Recipient") of confidential data and/or information
pursuant to this Agreement shall maintain the confidentiality of all data
and/or information which is the property of the other party ("Disclosing
Party"), whether originally supplied by the Disclosing Party, or whether
generated by the Disclosing Party in the course of performing or
facilitating the Insurance Administration Services under this Agreement and
which is directly accessible to the Recipient or is in the possession of
Recipient in the implementation, facilitation and/or performance of the
Insurance Administration Services. During any term of this Agreement,
Recipient may acquire, know, or have within its possession, information
(including, but not limited to, Technical Information) and/or data of the
Disclosing Party concerning commercial and trade affairs, rating and
underwriting rules and guidelines, the identity of clients, the identity of
insureds and beneficiaries, claims, benefits, rates and Agents, financial
information, the Proprietary System (as defined at Article VII (A) herein),
the Third Party Proprietary System (as defined in Article VII (B) herein)
and business practices of the Disclosing Party ("Confidential
Information"). Confidential Information which is provided in tangible form
must be clearly marked "Confidential", "Proprietary" or the substantial
equivalent thereof, or if orally disclosed must be clearly identified as
"Confidential" or "Proprietary" at the time of the disclosure (except for
IMS' Technical Information, the identity of Customer's clients, the
identity of Customer's insureds and beneficiaries, claims, benefits, and
Agents, which will be deemed "Confidential Information" under this
Agreement, regardless of whether marked as such). Except as required by
law, Recipient shall keep Disclosing Party's Confidential Information
confidential and shall only use the Confidential Information in performing
or facilitating the Insurance Administration Services under this Agreement.
Recipient shall not disclose the Confidential Information without
Disclosing Party's prior written permission except to Recipient's employees
who require the information to perform or facilitate the Insurance
Administration Services under this Agreement. Each party hereto, as a
Recipient, warrants to the other that appropriate measures shall be taken
by Recipient to safeguard the confidentiality of the Confidential
Information, with a level of care at least equal to the level of care with
which Recipient safeguards its own confidential or proprietary information.
All employees, agents or representatives of Recipient and any third parties
who are given access to the Confidential Information shall be under written
obligation to Recipient to maintain such information in confidence.
IMS and Customer agree that any Recipient shall have no obligation with
respect to any information or data which:
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a) is already rightfully known to Recipient through means
other than Disclosing Party; or
b) is or becomes publicly known through no wrongful act of
Recipient; or
c) is rightfully obtained by Recipient from a
third-party without similar restriction and without breach of
this Agreement; or
d) is independently developed by Recipient without breach of
this Agreement.
Disclosing Party shall retain title to all Confidential Information
(whether tangible or intangible) delivered thereby pursuant to this
Agreement. Recipient shall not copy, reproduce or use any
Confidential Information without written authorization of Disclosing
Party, except as may be reasonably required to accomplish the
Insurance Administration Services under this Agreement. Upon written
request of Disclosing Party Recipient shall promptly return, or
destroy with specific written permission of the Disclosing Party, all
tangible copies containing Confidential Information, except those
copies kept in the regular course of business, or that are required
to be kept pursuant to any state or federal administrative,
regulatory or statutory mandates. The obligations under this
Paragraph (B) shall survive the termination of this Agreement.
Notwithstanding the foregoing, this Article shall not prevent the
disclosure of Confidential Information to the extent legally required
by any court or regulatory entity having jurisdiction over the
parties.
For purposes of Article V (B), Recipient and Disclosing Party shall
include within their meaning all respective subsidiaries, agents, or
Affiliates of the Recipient and Disclosing Party.
ARTICLE VI. EXPENSES AND FEES
A. In consideration of IMS providing Insurance Administration Services
described herein, Customer shall pay IMS, as applicable, the
servicing fee ("Service Fee"), miscellaneous fee ("Miscellaneous
Fee") and claim administration fee ("Claim Administration Fee") for
each Authorized Line of Business, as specified in SCHEDULE B. The
performance by IMS of any service or function that is outside of the
scope of the Insurance Administration Services shall require the
payment by Customer of additional consideration (in addition to the
Service Fee) as mutually agreed between IMS and Customer.
B. Except for the Service Fee and the Claim Administration Fee, the
Miscellaneous Fees specified in SCHEDULE B hereto (if any) may be
increased (up to a maximum of five percent (5%) per year from the
prior year) effective as of each anniversary of the Effective Date by
the percentage increase in the United States Consumer Price Index for
all Urban Users (CPI-U) as reported by the United States Bureau of
Labor Statistics for the most recently completed calendar year that
IMS is performing services on behalf of the Customer.
C. Customer shall reimburse IMS for travel, living and out-of-pocket
expenses incurred by IMS personnel in the performance of training
relative to the Insurance Administration Services to be performed
under this Agreement.
D. Customer agrees to pay any and all tariffs and taxes that are now or
may become applicable to the Insurance Administration Services
rendered hereunder, including, but not limited to, sales, use, and
personal property taxes, or any other form of tax based on Insurance
Administration Services performed, equipment used by IMS solely for
Customer, and the communicating or storage of data used by IMS solely
for Customer, but excluding taxes on the net income of IMS.
E. Subject to the terms of this Agreement, all fees and expenses to be
payable by Customer to IMS or any third party under this Agreement
shall be paid within thirty (30) calendar days after Customer's
receipt of IMS' monthly statement for all services provided to
Customer under this Agreement. IMS will calculate the fees owed to IMS
by Customer and will send a statement to
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Customer within two (2) weeks of the last day of the month for which
fees are owed. Customer's failure to pay all fees and expenses when
due shall be considered a material breach of this Agreement. Further,
if Customer fails to pay any fees and expenses due IMS as herein
provided, Customer shall pay to IMS in addition to all sums otherwise
due, interest which shall accrue at 1.5% per month on such
delinquency from the date the fees or expenses became past due.
Failure or forbearance to exercise any of its rights and privileges
hereunder shall not constitute the forfeiture or waiver of such
rights and privileges on the part of IMS.
F. Prior to renewal of this Agreement for any Extended Operating Term,
IMS may modify SCHEDULE B in its discretion to reflect any increase in
the cost of providing the Insurance Administration Services
(including, but not limited to statutory, regulatory, or judicial
changes that require IMS to incur additional cost or expenses in
performing the Insurance Administration Services) or to remain
competitive with the rates currently being charged within the industry
for like services. Any modification of SCHEDULE B shall be proposed to
Customer at least six (6) months prior to the expiration of any term
of this Agreement.
ARTICLE VII. LICENSE, TRADE SECRET AND PROPRIETARY RIGHTS
A. IMS from time to time may use its own proprietary computer software
products and account servicing methods and procedures ("Proprietary
System"), which are identified, described or referenced in EXHIBIT I
hereto, in the performance of the Insurance Administration Services.
During any term of this Agreement, IMS grants a personal,
non-transferable, non-assignable, non-exclusive license to Customer to
use portions of the Proprietary System as necessary for IMS to perform
the Insurance Administration Services under this Agreement. Further,
no provision within this Agreement shall be interpreted as prohibiting
IMS from selling or licensing its Proprietary System to any other
customer or prospective customer of IMS.
B. IMS, from time to time, may also use proprietary third party computer
software products and third party account servicing methods and
procedures ("Third Party Proprietary System"), which are identified,
described or referenced in EXHIBIT I hereto in the performance of the
Insurance Administration Services. No provision within this Agreement
shall be interpreted as prohibiting IMS or the Third Party Proprietary
System vendor from selling or licensing the Third Party Proprietary
System, or modifications and enhancements to the Third Party
Proprietary System, to any other customer or prospective customer of
IMS, so long as Customer's Confidential Information is not disclosed.
C. Other than the limited rights to use the Proprietary System and the
Third Party Proprietary System, as provided in Article VII (A) and
(B) above, this Agreement grants to Customer no right to possess or
reproduce, download, reverse engineer, or obtain any other interest
in, the Proprietary System or the Third Party Proprietary System, or
their specifications in any tangible or intangible medium. Customer
may not mortgage, hypothecate, sell, assign, pledge, lease, transfer,
license, or sublicense the Proprietary System or the Third Party
Proprietary System, nor allow any person, firm, entity or corporation
to transmit, copy, reproduce, download, reverse engineer, or obtain
any other interest in the Proprietary System or the Third Party
Proprietary System, or their specifications in whole or in part. In
the event Customer shall come into possession of any source or object
code associated with the Proprietary System or the Third Party
Proprietary System, Customer shall immediately notify IMS and return
the source or object code associated with Proprietary System or the
Third Party Proprietary System in its possession and all copies of any
kind thereof to IMS.
D. Customer covenants and agrees not to disclose or otherwise make the
Proprietary System or the Third Party Proprietary System available to
any person other than employees, insurance sales agents ("Agents") or
representatives of the Customer required to have access or use of the
Proprietary System or the Third Party Proprietary System to
facilitate IMS' or Customer's performance under this Agreement.
Customer agrees to obligate each such employee, Agents, or
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representative to a level of care sufficient to protect the Proprietary
System and the Third Party Proprietary System from unauthorized
disclosure.
E. The obligations of Customer under this Article shall survive termination
of this Agreement, regardless of the reason for termination.
ARTICLE VIII. TERMINATION
A. Either party may terminate this Agreement at the end of the Minimum
Operating Term or at the end of any Extended Operating Term, provided the
terminating party gives the other party at least three (3) months prior
written notice of such termination.
B. This Agreement shall also terminate:
a) at the election of the Customer, upon written notice to IMS, if
IMS becomes insolvent, if it makes an assignment for the benefit of its
creditors, if a petition for relief under the United States Bankruptcy Code
is filed by or against it and it is not dismissed within thirty (30) days
of being filed, or if a trustee, receiver or other custodian of its assets
is appointed;
b) at the election of IMS, upon written notice to Customer, if
Customer becomes insolvent, if it makes an assignment for the benefit of
its creditors, if a petition for relief under the United States Bankruptcy
Code is filed by or against it and it is not dismissed within thirty (30)
days of being filed, or if a trustee, receiver or other custodian of its
assets is appointed (including, but not limited to, any proceeding pursuant
to any state or federal action governing insurer insolvency);
c) at the election of the Customer, if IMS materially breaches any
provision of this Agreement and fails to cure such breach within sixty (60)
days after written notice thereof is given to IMS by the Customer;
d) at the election of IMS, if Customer materially breaches any
provision of this Agreement and fails to cure such breach within sixty
(60)) days after written notice thereof is given to Customer by IMS (except
for Customer's failure to pay any and all fees and expenses due under
Article VI of this Agreement, in which case Customer must cure such breach
within thirty (30) days after written notice thereof is given to Customer
by IMS);
e) at the election of IMS, upon written notice to Customer, in the
event of a Change of Control of Customer unless (i) Customer has provided
IMS not less than sixty (60) days advance written notice of the proposed
Change of Control and (ii) IMS has agreed in writing to such Change of
Control.
The initiation under this Agreement of any dispute resolution procedure shall
not prevent a party from terminating this Agreement in accordance with this
Article VIII.
C. On expiration or termination of this Agreement, IMS shall return to
Customer all of Customer's Confidential Information, either in electronic
or hard copy form, in IMS' possession and delete any electronic copies
thereof related to the Insurance Administration Services provided by IMS
during the term of this Agreement; Customer shall do the same and cause
Customer's agents and representatives (including, but not limited to, any
third party given access to the Confidential Information) to do the same
relative to IMS' Confidential Information. Customer shall pay IMS (in
accordance with SCHEDULE B then in effect) any and all Service Fees, Claim
Administration Fees, Miscellaneous Fees and third party fees due IMS for
Insurance Administration Services performed pursuant to this Agreement. IMS
and Customer shall cooperate in any transition period during the wind-up of
Insurance Administration Services provided Customer under this Agreement.
If Customer requires assistance in converting Customer's data to a new
format, or
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requires assistance from IMS relative to Customer's transition to an
alternative claim administration agreement, then IMS shall provide such
services at the then current rates charged by IMS for the services
specified in Section IV of SCHEDULE B. This obligations under this
Paragraph (C) shall survive any termination of this Agreement.
ARTICLE IX. WARRANTIES AND COVENANTS
IMS covenants that IMS will comply in all material respects with the law of the
state or states covered by this Agreement and with the rules and regulations of
all regulatory authorities having jurisdiction over IMS' activities, and shall,
whenever necessary, maintain at its own expense all required licenses to
transact business in such states. IMS warrants to Customer that (a) IMS owns or
otherwise has the right to use the Proprietary System used to perform the
Insurance Administration Services, and the rights to such Proprietary System
granted hereunder will not knowingly infringe upon a third party's copyright or
patent rights; (b) IMS is duly authorized to transact the business of servicing
insurance companies; and (c) the express warranties provided here and elsewhere
in this Agreement are IMS' only warranties and no other warranty, express or
implied, including any warranty of merchantability, fitness or fitness for a
particular purpose, will apply to the provision of Insurance Administration
Services under this Agreement.
ARTICLE X. LIABILITY, LIMIT OF LIABILITY, INDEMNITIES AND REMEDIES
A. The parties shall assume the following obligations and liabilities as
specified below and subject to the limitations on liability set forth in
Article X, (B) below:
a) IMS shall indemnify, defend and hold harmless Customer, its
officers, directors, employees and controlling persons from any liability,
cost, loss, fine, penalty, claim, demand, damage or expense, including
reasonable attorneys' fees, incurred solely and directly as a result of any
material breach of IMS' obligations under this Agreement or the material
breach of any representation or warranty made by IMS to Customer pursuant
hereto;
b) Customer shall indemnify, defend and hold harmless IMS, its
officers, directors, employees and controlling persons for any liability,
cost, loss, fine, penalty, claim, demand, damage or expense, including
reasonable attorney's fees, incurred solely and directly as a result of (i)
any material breach of Customer's obligations under this Agreement, or (ii)
the material breach of any representation or warranty made by Customer to
IMS pursuant hereto;
c) Customer agrees that in the event IMS is in violation of any
code, statute or law(s) due to the acts or omissions of Customer, or the
servants, employees, representatives, adjusters, or Agents of Customer,
then Customer shall assume the responsibility and liability for such acts
or omissions and shall indemnify and hold IMS harmless for any such
liability;
d) Customer agrees that in the event IMS is in violation of any
code, statute or law(s) while acting pursuant to the direction or at the
request of the Customer, or the servants, employees, representatives,
adjusters, or Agents of Customer, then Customer shall assume the
responsibility and liability for such acts or omissions and shall indemnify
and hold IMS harmless for any such liability;
B. Except for: (i) fees and expenses payable to IMS under Article VI of this
Agreement, (ii) acts of fraud, or willful misconduct; and (iii) violations
of Article VII of this Agreement, each party's maximum liability ("Maximum
Liability") to the other party for any cause whatsoever, during any one
calendar year shall be limited to direct damages incurred by that party and
shall not exceed the amount of compensation paid by the Customer under
SCHEDULE B of this Agreement for the six (6)
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months immediately preceding the breach or cause of liability. Further, IMS
shall not be liable for any lost profits, business goodwill, or other
consequential, punitive, special or incidental damages incurred by
Customer.
C. If data is processed in error due directly to an error of defect in the
Insurance Administration Services provided by IMS, then upon IMS receiving
notice of such error or defect, IMS shall reprocess such data without
charge to Customer.
D. All parties agree to promptly give the others notice upon being notified or
becoming aware of any and all allegations or claims, which could give rise
to a claim under this Article.
ARTICLE XI. GENERAL AGREEMENTS
A. This Agreement and all matters arising hereunder shall be governed by and
determined in accordance with the laws of the State of Florida without
giving affect to any choice of law provisions.
B. The parties shall not be liable or deemed to be in default hereunder for
any delay or failure in performance under this Agreement or interruption of
the Insurance Administration Services resulting, directly or indirectly,
from acts of God (including but not limited to weather catastrophes such as
floods, hurricanes, tornadoes, windstorms, ice storms, blizzards and hail
storms), civil or military authority, labor disputes, shortages of suitable
parts, materials, labor or transportation or any similar cause beyond the
reasonable control of the parties.
C. Any and all notices, designations, consents, offers, acceptances, or any
other communication provided for herein shall be given in writing by hand
delivery, by overnight carrier, by registered or certified mail or by
facsimile transmission and shall be addressed as follows:
As to Customer: Cooperativa de Seguros Multiples de Puerto Rico
38 Nevarez Street, Corner of Americo Miranda
Rio Piedras, Puerto Rico 00927-4608
Fax Number: (787) 759-9961
Attention: Jose M. Martinez, Vice President of Operations
As to IMS: Insurance Management Solutions, Inc.
360 Central Avenue, 16th Floor
St. Petersburg, FL 33701
Fax Number: (727) 803-2076
Attention: David Howard, President
Notices sent by hand delivery shall be deemed effective on the date of
actual hand delivery. Notices sent by overnight carrier shall be deemed
effective on the next Business Day after being placed into the hands of the
overnight carrier. Notices sent by registered or certified mail shall be
deemed effective on the fifth Business Day after being deposited into the
post office. Notices sent by facsimile transmission shall be deemed to be
effective on the day when sent if sent prior to 4:30 p.m. (the time being
determined by the time zone of the recipient), otherwise they shall be
deemed effective on the next Business Day.
D. This Agreement, and the exhibits, schedules and appendices attached hereto,
contain all of the prior oral and/or previously written agreements,
representations, and arrangements between the parties hereto. There are no
representations or warranties other than those set forth herein. No change
or modification of this Agreement, including the exhibits, schedules and
appendices hereto, shall be valid unless the same shall be in writing and
signed by all of the parties hereto. All exhibits, schedules, appendices,
addendum of any kind, or attachments to this Agreement shall be
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made a part of this Agreement and shall be subject to all terms and
conditions of this Agreement.
E. Words of a gender used in this Agreement shall be held to include any other
gender, the words in a singular number held to include the plural, when the
sentence so requires. Article headings are intended for purposes of
description only and shall not be used for purposes of interpretation of
this Agreement.
F. Should any part of this Agreement for any reason be declared invalid, such
decision shall not effect the validity of any remaining portion, which
remaining portion shall remain in full force and effect as if the Agreement
had been executed with the invalid portion thereof eliminated. It is,
therefore, declared the intention of the parties hereto that each of them
will have executed the remaining portion of this Agreement without
including therein any such part, parts or portion which may, for any
reason, be hereafter declared void.
G. If either party should bring a Court action alleging breach of this
Agreement or seeking to enforce, rescind, renounce, declare, void or
terminate this Agreement or any provisions thereof, the prevailing party
shall be entitled to recover all of its legal expenses, including
reasonable attorneys' fees and costs (including legal expenses for any
appeals taken), and to have the same awarded as part of the judgment in
the proceeding in which such legal expenses and attorneys' fees were
incurred.
H. Neither IMS nor Customer shall assign this Agreement or any of its rights
hereunder without the prior written consent of the non-assigning party.
I. The parties agree not to disclose the terms and conditions of this
Agreement to any third party, except (i) as required in the normal conduct
of Customer's business, or (ii) as required by law or regulation including,
without limitation, any Federal securities law, or regulation.
ARTICLE XII. DISPUTE RESOLUTION PROCEDURES
A. The parties will attempt in good faith to promptly resolve any material
dispute regarding this Agreement by negotiations between senior management
("Senior Management") of the parties. Senior Management of each party will
meet within ten (10) calendar days of notice ("Notice of Dispute") by a
party of the existence of a material dispute, at a mutually agreed time and
place, to resolve the material dispute. Senior Management, who shall have
the authority to settle the dispute, shall prepare and exchange memoranda
stating the issues in the material dispute and their positions. If the
material dispute is not resolved to the mutual satisfaction of the parties
within seven (7) calendar days of the meeting of Senior Management, then
the parties may attempt to resolve the controversy using mediation.
B. If the matter has not been resolved pursuant to the aforesaid mediation
procedure within thirty (30) calendar days of the issuance of a party of a
Notice of Dispute, or if either party will not participate in mediation,
then either party may initiate arbitration upon fifteen (15) calendar days
written notice to the other party. Notwithstanding the foregoing, all
deadlines specified above may be extended upon mutual written agreement of
the parties.
C. Except for the right of either party to apply to a court of competent
jurisdiction for review of the award of arbitration, for a temporary
restraining order, preliminary injunction or other equitable relief to
preserve the status quo, or disputes relating to breach of the
confidentiality, non-disclosure or trade secret provisions of this
Agreement, all claims, disputes, controversies and other matters relating
to breach of this Agreement, and which cannot be resolved by the parties
shall be settled by arbitration in accordance with this Agreement.
D. Notice requesting arbitration ("Arbitration Notice"), or any other notice
made in connection therewith, shall be made in writing by one party and
sent by certified mail, return receipt requested,
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to the other party. The Arbitration Notice shall state in particular all
issues to be resolved in the view of the complaining party, shall appoint
the arbitrator selected by the complaining party and shall set a tentative
date for the arbitration hearing, which date shall be no sooner than
forty-five (45) calendar days and no later than ninety (90) calendar days
from the date that the Arbitration Notice is mailed. Within twenty (20)
calendar days of receipt of the complaining party's Arbitration Notice, the
respondent shall notify the complaining party of the location for
conducting arbitration and the name of its appointed arbitrator. When the
two arbitrators have been appointed, they shall agree on a third
independent arbitrator and shall appoint such person by written notice to
the parties signed by both arbitrators within thirty (30) calendar days
from the date of the appointment of the second arbitrator. If the two
arbitrators fail to agree upon the appointment of an independent arbitrator
at the end of thirty (30) calendar days following the appointment of the
second arbitrator, then the independent arbitrator shall be appointed by
the American Arbitration Association ("AAA"), or its successor, in
accordance with its then prevailing commercial arbitration rules then in
effect. The three (3) arbitrators shall constitute the arbitration board
("Board").
E. The members of the Board shall be active or retired (i) lawyers or
professionals familiar with insurance and/or (ii) active or former officers
or management employees of insurance and/or data processing firms and/or
software development companies. The person selected by the two respective
arbitrators appointed by the parties shall be the umpire or chief
arbitrator and must be a licensed attorney.
F. Arbitration shall be conducted in accordance with the Commercial Rules of
the American Arbitration Associations ("AAA") then in effect except as
modified herein.
G. The parties agree that all then current employees of each with material
relevant information will be voluntarily produced, at the employer's
expense, for all proper discovery and arbitration hearings.
H. The cost of the arbitration relative to the arbitrator and the AAA
("Costs") shall be borne equally pending the arbitrators' award. Each party
shall bear its own expenses for attorneys' fees. The prevailing party in
any arbitration proceeding hereunder shall be entitled, in addition to such
other relief as may be granted, to recover the portion of the Costs
incurred by that party in connection with arbitration under the Agreement
prior to the award.
I. The parties agree that the Board shall be required to render its decision
in writing within thirty (30) calendar days of the conclusion of the
arbitration proceedings, unless such time shall be extended by mutual
written agreement of the parties.
J. With respect to any matter brought before the Board, the Board shall make a
decision having regard to the intentions of the parties, the terms of this
Agreement, and custom and usage of the insurance and data processing
industry. Such decisions shall be in writing and shall state the findings
of fact and conclusions of law upon which the decision is based, provided
that such decision may not (i) award consequential, punitive, special,
incidental or exemplary damages, or (ii) include a suspension of this
Agreement or any provisions hereof. The decision shall be based exclusively
upon the evidence presented by the parties at a hearing in which evidence
shall be allowed. Said decisions may be reviewable and vacated, modified or
corrected, in whole or in part, by appropriate courts of competent
jurisdiction for clear abuses of discretion or errors at law by the Board.
If the decision is not vacated, modified, or corrected in whole or in part
upon an appeal, such decision shall be final and binding upon all parties
to the proceeding and may be entered by either party in any court having
competent jurisdiction.
(The remainder of this page is intentionally left blank.)
10
SCHEDULES:
SCHEDULE "A"- AUTHORIZED STATES AND INSURANCE PROGRAM
SCHEDULE "B"- FEE SCHEDULE
EXHIBITS:
EXHIBIT 1- SPECIAL INVESTIGATION UNIT SERVICES
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SCHEDULE A
----------
AUTHORIZED STATES AND INSURANCE PROGRAM
---------------------------------------
IMS shall provide Insurance Administration Services as described in EXHIBIT I
for the following authorized line(s) of business ("Authorized Line of
Business") in the following authorized state(s) ("Authorized States"):
1. AUTHORIZED LINE OF BUSINESS:
Private Passenger Auto, Private Passenger Auto Physical Damage, and
Homeowners Multiperil.
2. AUTHORIZED STATES:
The State of Florida and such other states as may be mutually agreed
upon in writing by Customer and IMS.
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SCHEDULE B
FEE SCHEDULE
[*]
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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EXHIBIT I
---------
SPECIAL INVESTIGATION UNIT SERVICES
-----------------------------------
Where indications of insurance fraud or misrepresentation are present,
Customer's claim shall be referred to IMS' Special Investigation Unit ("SIU").
Fraud indicators will be based on those provided by the National Insurance Crime
Bureau ("NICB") and others deemed appropriate by Customer and IMS.
All referrals will be made from Customer's primary adjuster by way of facsimile,
telephone, e-mail or written notice to IMS' SIU.
Upon receipt of a claim referral to SIU, an SIU claim associate will be
assigned to the referral and the claim file will be assigned to an experienced
licensed claims adjuster (listed as a SIU designate with the Florida Department
of Insurance Division of Insurance Fraud) to conduct the appropriate SIU
investigation. The IMS adjuster will make 24-hour contact with Customer's
primary claim handler providing an initial SIU analysis and investigation plan.
The SIU associate will then begin the SIU investigation.
All SIU referrals will be indexed and a public records background check will be
completed with 48 hours of claim file referral to IMS. Any official incident
report (police, fire, etc.) will be ordered within this time if the primary
adjuster for Customer has not already done so.
When deemed necessary by IMS, recorded statements/written statements of the
claimant will be requested within 72 hours of the initial claim referral.
Additional statements may be obtained during the course of the investigation as
warranted by IMS.
When deemed reasonably necessary by either IMS or Customer, a scene
investigation will be completed (the same will apply to neighborhood/witness
canvass). Photographs will be obtained when it is felt that they will reasonably
benefit the investigation.
When IMS feels an "examination under oath" (EUO) would enhance the
investigation; a recommendation would be made to Customer to move forward with
the scheduling of the EUO. IMS and Customer agree that the law firm of Carlton,
Fields, P.A. shall be utilized for any necessary EUO.
Customer shall designate IMS' SIU associates to be authorized representatives to
Customer with ISO for access to ISO ClaimSearch on behalf of Customer.
Appropriate notification to the applicable law enforcement agency or agencies,
including the Florida Department of Insurance Division of Insurance Fraud, will
be made at a point in the investigation where, in IMS reasonable discretion,
findings warrant such referral.
During the term of the Agreement and at no additional cost to Customer, IMS will
provide "fraud awareness" training to Customer's primary adjusting staff. This
training can be provided at a time or location mutually agreed upon by Customer
and IMS.
In accordance with the Agreement, all of Customer's claims files shall be
subject to audit at the reasonable discretion of Customer, not to exceed one (1)
audit per calendar quarter. This audit may be conducted independently by
Customer or in concert with IMS. Additional audits may take place at time and
under conditions mutually agreed upon by the parties, however, cost for
additional audits will be borne solely by Customer.
At the conclusion of any SIU investigation, IMS will make final claims handling
recommendation to Customer. The recommendation will be forwarded to Customer's
primary claim adjuster in writing.
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IN WITNESS WHEREOF, the parties hereto by their respective duly authorized
representatives have executed this Agreement to be effective as of the 1st day
of September, 2001.
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"IMS"
INSURANCE MANAGEMENT SOLUTIONS, INC.
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By: /s/ David M. Howard
-------------------------
As its: Pres/CEO
---------------------
Date: 7/17/01
-----------------------
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"CUSTOMER"
COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO
By: Jose M. Martinez
-------------------------
As its: Vice President of Operations
---------------------
Date: 7/13/01
-----------------------
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