1
Exhibit 10.11
DELTA DENTAL OF MISSOURI
AND
QUALITY CARE SOLUTIONS, INC.
QMACS (TM)
SOFTWARE LICENSE
SUPPORT
CONFIDENTIALITY
IMPLEMENTATION
AGREEMENTS
THIS AGREEMENT is made and entered into as of the 8th day of October,
between Quality Care Solutions, Inc. ("QCSI" or the Licensor"), a Nevada
Corporation with executive offices in Phoenix, Arizona and Delta Dental of
Missouri, a not-for-profit Corporation. (with principal offices in St. Louis,
MO(the "Licensee").
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TABLE OF CONTENTS
DEFINITIONS ............................................................... 3
THE LICENSE ............................................................... 7
DELIVERABLES .............................................................. 8
SUPPORT SERVICES .......................................................... 9
SPECIAL RESPONSIBILITIES OF LICENSEE AND LICENSOR ......................... 12
SPECIAL RESPONSIBILITIES OF LICENSOR ...................................... 14
RESTRICTIONS .............................................................. 15
WARRANTY, PATENT AND COPYRIGHT INFRINGEMENT, .............................. 16
LIMITATIONS ON LIABILITY AND REMEDIES, AND LICENSEE'S LIABILITY ........... 16
TERMINATION, DISCONTINUANCE AND REMEDIES .................................. 18
GENERAL PROVISIONS ........................................................ 20
SPECIFICATIONS OF QMACS(TM) SOFTWARE ...................................... 24
CONFIDENTIALITY AGREEMENT ................................................. 32
FEES, RATES AND PAYMENT SCHEDULES ......................................... 36
HARDWARE/SOFTWARE ELEMENTS ................................................ 40
LOCATION AND NOTICES ...................................................... 43
STANDARD SUPPORT AND RELEASE POLICY ....................................... 44
QMACS(TM) STANDARD IMPLEMENTATION PLAN .................................... 46
LISTING OF QMACS(TM) STANDARD REPORTS ..................................... 47
TRADE SECRET AND COPYRIGHT NOTICE ......................................... 49
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INTRODUCTION
WHEREAS, Quality Care Solutions, Inc., hereinafter "Licensor," has
created and developed computer software which operates on micro computers and
mid-range computers for financial, administrative and operational uses in the
managed care business, health maintenance organizations and by third-party
administrators and is willing to grant Licensee a non-exclusive license to use
such Software in accordance with the terms and conditions hereof; and
WHEREAS, Delta Dental of Missouri hereinafter Licensee, owns a Prepaid
Dental Organization and wishes to obtain a non-exclusive license to use the
Licensor's Software, as specified hereinafter; and
WHEREAS, Licensee and Licensor desire to enter into an Agreement
formalizing the terms and conditions of a license, and other services (the
"Agreement"); and
WHEREAS, Licensor and Licensee are considered each to be a "Party" to
this Agreement and are hereinafter jointly referred to as the Parties.
NOW, THEREFORE, in consideration of the promises and mutual
representations herein contained, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1) "ACTIVE SUBSCRIBERS" are defined subscribers whose eligibility is managed
and processed by Licensee for the purposes of enrollment in benefit plans,
prior authorizations, or claims payment on a prepaid or fee for service
basis and are subscribers who have one or more active eligibility
segment(s) for the month for which the license fees are being calculated.
Active Subscribers are used for Software License and Support Fee
calculations on a Per Subscriber Per Month(PSPM) basis as defined in
Exhibit C.
2) "AGREEMENT FEES" shall mean any fee specified on Exhibit C.
3) An "APPLICATION" is defined as one or more Client Executables designed to
accomplish a specified business function as listed in Exhibit A.
4) An "APPROVED CLIENT WORKSTATION" is defined as a computer whose hardware
and software configuration have been approved by Licensor as appropriate to
execute the Client portions of the QMACS(TM) Software, used generally by
staff personnel, which communicates with one or more Approved Data Servers
and runs Client Executables to access, analyze and update databases stored
on a Approved Data Server as specified in Exhibit D.
5) An "APPROVED DATA SERVER" is defined as a computer whose hardware and
software configuration have been approved by Licensor as appropriate to
execute the Data Server portions of the QMACS(TM) Software, used to hold
large amounts of electronic data plus provide database management and
access services to Client computers on a computer network. Portions of the
QMACS(TM) Software reside on the Approved Data Server as specified in
Exhibit D
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6) "APPROVED HARDWARE " means Approved Data Servers, Approved Client
Workstations and Approved Operating Systems, and Approved Network as
identified in Exhibit D.
7) "APPROVED NETWORK" is defined as the wiring, communication lines,
networking and software, communication protocols and equipment necessary
for the connectivity and communication between Approved Client Workstations
and Approved Data Servers via local or wide area networks as specified in
Exhibit D
8) An "APPROVED OPERATING SYSTEM" is defined as Microsoft's Windows NT(C)
4.0 together with all current upgrades and service packs.
9) A "BENEFIT PLAN" is any reimbursement plan administered by an administrator
that has subscribers and members and pays claims.
10) A "BILLING MONTH" is defined as a calendar month.
11) A "BUSINESS PROCESS IMPROVEMENT" (BPI) is defined as a business function
analysis and specification process to document and understand Licensee
requirements and use case used for development of Enhancement
specifications work plan by Licensor.
12) "CERTIFIED IMPLEMENTATION PARTNER"(CIP) refers to a third-party
organization that the Licensor has a business relationship with and employs
consultants that have been trained, certified and authorized by the
Licensor to provide specific Training and Implementation services to the
Licensee.
13) A "CLIENT EXECUTABLE" is defined as a program which is part of the Software
designed to execute on a computer operating as a Approved Client
Workstation on a network connecting to and utilizing a Approved Data
Server.
14) "DATA BASE ADMINISTRATION" is defined as activities to maintain on the
Approved Data Server data table definitions, views, user defined data
types, triggers, stored procedures and other attributes of the data base.
15) A "DERIVATIVE WORK" means any modifications of QMACS(TM) Software or a work
which is based upon the QMACS(TM) Software code, either source or object,
or which requires the QMACS(TM) Software to function.
16) "DOCUMENTATION" is defined as manuals, Training tapes, Training workbooks,
help screens, quick reference guides and other written information that
explains the Software use, set-up, configuration, maintenance and
operation.
17) "EXECUTABLE CODE" is defined as an executable program which is part of the
Software and actually performs the functions in conjunction with the Client
or the Approved Data Server as compared to source code which is the code
from which the Executable code is compiled.
18) "EFFECTIVE DATE" means the date that this Agreement to become effective and
work and services are commenced as defined in the last paragraph of Article
IX. It is the date used for fee and term calculations.
19) "ENHANCEMENT" means the revised Software that Licensor may, from time to
time, release which is a new version or updates of QMACS(TM) Software,
including Executable Code and database changes and which may, but is not
required to, increase the functionality, ease of use or productivity of the
Software.
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20) "HARDWARE AND SOFTWARE ELEMENTS" means the required computer hardware and
software identified in Exhibit D to operate QMACS(TM) software.
21) "IMPLEMENTATION" shall mean the configuration of the QMACS(TM) Software
based upon business rule definitions and set-up, input or population of the
QMACS(TM) database by electronic or manual processes, workflow or business
process adaptation. Implementation is the joint responsibility of the
Licensee and Licensor as defined in Exhibit G. Implementation Fees are
charged according to the fee schedule in Exhibit C.
22) "INSTALLATION" shall mean the initial set-up of the Microsoft Windows(R) NT
4.0 operating system software, core relational database Microsoft SQL
Server v 6.5 software, QMACS(TM)database tables and initial QMACS(TM)
Software installation. Installation will be performed by the Licensor
unless otherwise arranged for. Installation does not include the conversion
of Licensee's data or the Implementation or Standard Implementation
services by the Licensor.
23) "LAN" shall mean a local area network.
24) "LICENSEE" is defined as Delta Dental Plan of Missouri, a not-for-profit
Corporation.
25) "LICENSEE'S ADDRESS" means that address stated in Exhibit E of this
Agreement or changed from such address by giving Licensor proper written
notice.
26) "LICENSOR'S ADDRESS" means that address stated in Exhibit E of this
Agreement or changed from such address by giving Licensee proper written
notice.
27) "LIVE OPERATION" shall mean routine business functions of: member
enrollment, issuing authorizations, adjudicating or paying claims,
providing program and data access, security, and running QMACS(TM) standard
reports through a 30 day business cycle are accomplished using Licensor
provided QMACS(TM) Software according to the specifications in Exhibit A.
28) "MATERIAL NONCONFORMITY" is defined as any operation of the Software that
prevents a major function from working or causes data integrity issues or
any operation of the Software which causes material erroneous data or
unrecoverable data loss due to the execution of the Software's
Applications.
29) "MONTHLY FEE" means the recurring Agreement Fees due each month specified
on Exhibit C.
30) "NEW SOFTWARE" means new Executable Code, which would allow the Licensee to
perform significant functions not listed in Exhibit A-Specifications.
31) "ON-SITE SUPPORT" means consultation, assistance and similar services
provided by Licensor at Licensee's main location.
32) "OUTSIDE EXECUTABLE CODE" means Executable Code relating to third-party
applications which Licensor or Licensee has been granted the right to
license.
33) "PER SUBSCRIBER PER MONTH (PSPM)" is defined as the number of Subscriber
Enrollments actively managed and used for benefit determination, claims
processing or pricing, or prior authorization purposes using the QMACS(TM)
software during a Billing Month.
34) "PLAN YEAR" is defined as a twelve month (12) period from when Subscriber
Enrollments were first accepted into a specific benefit plan managed by the
QMACS(TM) software.
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35) "QMACS(TM)" or the "SOFTWARE" is defined as all the current computer
software owned by the Licensor including but not limited to all
Executables, Applications, display screens, the Source Code, Data Server
Based Programs and any Schema, Stored Procedures, Triggers or Wizards.
36) "QMACS(TM) EXECUTABLE CODE" means Executable Code relating to the Software
applications which Licensor hereby licenses.
37) "SPECIFICATIONS" are defined as the features and functions of the QMACS(TM)
Software delivered as described in Exhibit A attached hereto.
38) The "SOFTWARE" means the QMACS(TM) programs.
39) "SOFTWARE LICENSE AND SUPPORT FEE" refers to fees charged by the Licensor
to the Licensee for the use of QMACS(TM) Software and for QMACS(TM)
Software Support according to fee schedules defined in Exhibit C Section
C.2. The PSPM Software and Support Fee is calculated by multiplying the
total subscribers in a given month times the respective PSPM rate as
defined in Exhibit C Section 2.1. The Software License and Support Fee is
the greater of the PSPM Software and Support Fee or the minimum Software
and Support Fee defined in Exhibit C - Section 2.
40) "SOURCE CODE" means that code from which the QMACS(TM) executables are
compiled.
41) "STANDARD IMPLEMENTATION PLAN" refers to a work plan and business process
that defines the minimum work effort necessary and assigned
responsibilities for said work effort to define, set-up, configure, train
and maintain the QMACS(TM) Software for a Live Operation. Exhibit G details
the work plan, business process, responsibility assignment for the Standard
Implementation Plan.
42) "SUBSCRIBER" is defined as the primary person who is eligible for benefits
under any benefit plan administered by the Software.
43) "SUBSCRIBER ENROLLMENT" is defined as the active and enrolled Subscribers
in a Benefit Plan using QMACS(TM) software. For purposes of Monthly Fee
computation, multiple enrollments by the same Subscriber during the same
month shall be counted as a single enrollment.
44) "TECHNICAL DOCUMENTATION" means all technical documentation maintained in
any format by Licensor in the usual course of its business concerning the
design and operation of the QMACS(TM) software.
45) "TRAINING" refers to a series of classes and or educational materials
produced by Licensor and made available by Licensor personnel or a
Certified Implementation Partner to teach Licensee's trainers the steps
necessary to define, set-up, configure and maintain the QMACS(TM) Software
according to the specifications in Exhibit A and Software Documentation.
Training is provided according to the Standard Implementation Plan and upon
mutual agreement of the Licensor and Licensee.
46) "VENDOR" is defined as a third-party supplier of computer hardware,
software or services.
47) "WAN" is defined as a wide area network.
48) "WARRANTY PERIOD" - refers to the period of time starting with the
installation of the QMACS(TM) Software and remain in effect during the
initial term of this agreement and renewal periods except as provided for
in Sections 6.1 and Article VII of this agreement.
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ARTICLE II
THE LICENSE
2.1 LICENSE GRANT. Licensor hereby grants to Licensee and Licensee hereby
accepts a non-exclusive, non-transferable license (the "License") to use
QMACS(TM) Software on Approved Client Workstations, application servers and
Approved Data Servers using Approved Operating Systems. The License is expressly
made and granted subject to the terms, conditions, limitations and restrictions
of this Agreement. Licensee shall have a non-exclusive, non-transferable,
License to use the QMACS Executable Code related to the QMACS(TM) Software.
Licensee shall be entitled to receive any Enhancements produced by Licensor
during the term of this Agreement as defined in Section 2.7. Unless specified
otherwise by Licensor to Licensee in writing to Licensee's Address, or before
the time that the Enhancement is supplied to the Licensee, this License and all
the other terms of this Agreement shall also apply to any Enhancements supplied
to Licensee by Licensor after the Effective Date of this Agreement. This Section
does not entitle Licensee to New Software, customized versions or "beta"
versions of the QMACS(TM) Software not yet generally released to all Licensees
of QMACS(TM) Software.
2.2 USE OF OUTSIDE EXECUTABLE CODE. Licensor may place a copy of Outside
Executable Code in magnetic form in the possession of Licensee for Licensor's
convenience and use in providing services or support to Licensee. Such copy
shall be clearly marked by Licensor as Outside Executable Code under the
License. Except as Licensor expressly authorizes in writing in each instance,
said copy of Outside Executable Code shall be immediately returned to Licensor
upon Licensor's request. Regardless, such request shall be deemed given upon
expiration or termination of this License. The Parties agree that Licensor is
not responsible for maintenance, support, updates or enhancement of said Outside
Executable Code.
2.3 COPYING. Licensee may make a reasonable number of copies of the
Documentation for use by Licensee's employees in connection with the duly
authorized use of QMACS(TM) Software (the "Copies"). Licensee shall reproduce
and include in all Copies made by it, any and all notices of copyright and other
proprietary rights included by Licensor in or on the QMACS(TM) Software and
Documentation provided to Licensee. All Copies of QMACS(TM) Documentation or
rights granted hereunder to copy the Documentation are provided to Licensee only
for the duration of this License under this Agreement and only for the purpose
of facilitating the licensed use by Licensee of QMACS(TM) Software.
2.4 OWNERSHIP. All Copies and QMACS(TM) Software and the Documentation are the
sole property of Licensor and Licensor shall hold sole title thereto.
2.5 RETURN OF COPIES. Upon expiration or termination of the License, all Copies
of the QMACS(TM) Software and the Documentation shall promptly be delivered to
Licensor or destroyed by Licensee. Within ninety (90)days of termination or
expiration of the License, Licensee shall deliver to Licensor a certification in
writing that all Copies have been delivered to Licensor or destroyed.
2.6 SAFEGUARD. Licensee shall safeguard all Executable Code and against
non-Licensee use, copying or inspection by any third-party and against transfers
to any third-party. Licensee shall require outside persons and entities to whom
Licensee has granted operations authority to save data or who have access to any
Executable Code to execute and submit to Licensor a Confidentiality Agreement as
set forth in Exhibit B.
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2.7 TERM OF THE AGREEMENT. Provided that all Agreement Fee(s) are paid timely,
and Licensee complies with the terms and conditions of this Agreement, the
initial term of this Agreement shall be for a period of five (5) years beginning
on the first of the month after the Effective Date except as provided for in
Section 8.1. Licensee and Licensor agree to begin negotiations for a renewal of
the Agreement no later than ninety(90) days prior to the expiration date of this
Agreement.
2.8 FEES. To maintain its License hereunder, Licensee shall pay to Licensor all
Monthly Fees, Implementation Fees and other fees and costs as provided in
Exhibit C attached hereto or as otherwise required by this Agreement.
ARTICLE III
DELIVERABLES
3.1 QMACS(TM) SOFTWARE. Prior to the completion of the Implementation, Licensor
will deliver at least one machine readable copy (QMACS(TM) executable code
form) of each program for each QMACS(TM) Application in accordance with the
Specifications defined in Exhibit A.
3.2 QMACS(TM) DOCUMENTATION. Licensor agrees to provide one (1) hardcopy and 1
electronic copy of the Software Documentation corresponding to each
Application to Licensee as such Documentation is published or updated. At
Licensee's option, Licensee may purchase additional hardcopies of
Documentation from Licensor at Licensor's list price in effect from time to
time. Licensee may copy the Documentation according to the provisions
contained in Article II. QMACS(TM) Software Documentation is instructional
material designed to educate the user with the configuration, set-up and
operation of the respective QMACS(TM) Software module.
3.3 QMACS(TM) STANDARD REPORTS. Licensor will deliver a limited set of standard
reports with the installation of the Software. Licensee acknowledges that
third-party report writing software tools are required to create new
reports or modify Licensor's standard reports. The license fee, support and
training cost for third-party report writing tools are not included in this
Agreement and must be acquired separately. Licensee acknowledges that
Licensor's standard reports are templates and examples of reports the
Licensor has developed for non-specific use. The Licensee acknowledges
responsibility for the design, development and production of its own
reports, documents, letters, ID Cards to be used in conjunction with the
Software. Licensee agrees the delivery of Licensor provided standard
reports meets any report production requirements of Licensee.. Exhibit H
lists the minimum set of standard reports to be delivered to Licensee
during the Implementation of the Software.
3.4 STANDARD ELECTRONIC INTERFACES. Licensor will deliver one limited set of
standard electronic data import and export interfaces known as the National
Standard Format (NSF) and an electronic data interchange (EDI) interface
module. Implementation, configuration, set-up, training and maintenance for
electronic interfaces are optionally available through Licensor or
Certified Implementation Partners of the Licensor.
3.5 STANDARD IMPLEMENTATION PLAN. Licensor agrees to deliver to Licensee a
Standard Implementation Plan as Exhibit H outlining the minimum work effort
needed to be accomplished and the assigned responsibility for that work
effort in order for the Software to be operational according to the
specifications in Exhibit A. The fees for this Standard Implementation Plan
are defined in Exhibit C -Section 1. The Parties agree that changes to this
Standard Implementation Plan will require a written change order to be
mutually agreed
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upon to prior to the beginning of the work. The work effort assigned in the
Standard Implementation Plan to either party can be sub-contracted to
competent third parties with the written approval of Licensee and Licensor.
ARTICLE IV
SUPPORT SERVICES
4.1 SUPPORT SERVICES GENERALLY. Licensor or a Certified Implementation Partner
shall provide to Licensee certain support services as specified below to
unmodified QMACS(TM) Software (the "Support Services") and standard
interfaces developed by Licensor.
4.2 SERVICE UNITS. Licensor agrees to include a variable amount of Service
Units monthly for the Support Services as defined in Section 4.3,4.4, 4.5,
4.6 and 4.7 of Article IV. The Service Units are determined according to a
schedule as defined in Exhibit C Section C 3. Licensee can purchase
additional Service Units for Support Services at the rates specified in
Exhibit C - Service Units
4.3 QMACS(TM) STANDARD TRAINING. Licensor or Certified Implementation Partner
shall provide standard training services to Licensee's training personnel
on the operation of QMACS(TM) Software. Licensee agrees to Licensor's
"Train the Trainer" method of Training. Licensee acknowledges that
Licensor's Training program is designed and intended to train key users on
the operation of the QMACS(TM) Software. Licensee agrees adapting the key
user Training to Licensee's operation and tailoring Licensee's work flow
process around QMACS(TM) Software is the responsibility of the Licensee.
The initial Training sessions will take place in accordance with a mutually
agreed upon Training schedule as a component of the Standard Implementation
Plan. Licensee shall pay all reasonable, travel, rooms, meals and other
expenses incurred by either Party as a result of Training. Training
conducted after the Standard Implementation Plan is chargeable toward the
annual Service Unit allocation.
4.4 MAINTENANCE. Licensor's sole support services obligation hereunder is to
provide the programming or documentation services necessary to conform any
Application to the Specifications defined in Exhibit A or Licensor's
documentation. This obligation shall remain in effect until the expiration
or termination of this Agreement only if the Licensor can duplicate the
defect. Upon the detection of any Material Nonconformity with the
Specifications, Licensee agrees to provide to Licensor such output
listings, data and other assistance as Licensor shall request so as to
permit Licensor to duplicate or recreate the material nonconformity.
Licensor shall remedy any Material Nonconformity between the original
QMACS(TM) Software, or any Enhanced Software, and the Specifications within
the lesser of the time frame stated in the Licensor's support policy as
defined in Exhibit F or within 30 days after notification in writing by
Licensee, at no cost to Licensee. This obligation of Licensor does not
extend to QMACS(TM) Software modified by Licensee or others or caused by
operating the Software on non-approved or malfunctioning computers or
networks. Maintenance work is not allocated as a Service Unit.
4.5 DATA BASE ADMINISTRATION. Licensor shall supply certain Data Base
Administration services to Licensee with regard to the QMACS(TM) Software.
This obligation shall remain in effect until the termination of this
agreement or as mutually agreed to. Licensor may terminate any obligation
in this Agreement if the Licensee or any third-party makes any structural
or technical modifications to the QMACS(TM) databases or data base servers
without prior written permission of the Licensor. Licensee agrees that
adding, deleting,
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importing and editing of data in QMACS(TM) data tables by third-party
software applications violates QMACS(TM) data integrity and could cause a
QMACS(TM) application to malfunction and therefore Licensor may suspend or
terminate any obligation under this Agreement if Licensee or a third-party
on behalf of Licensee engages in such activity. It is agreed that database
replication and publication implementation and support services are not
included in this agreement. It is agreed by both parties that selection,
querying, accessing, exporting or reading of data contained in the
QMACS(TM) database tables by the Licensee using third-party software is
excluded from this Section 4.4. Data Base Administration is a chargeable
item toward the total annual Service Unit allocation.
4.6 HELP DESK SUPPORT. Licensor shall provide "help desk support" as defined
herein to Licensee during Licensor's normal business hours. Help desk
support will consist of telephone consultation, wide area network (WAN),
Telecopy (Fax), E-mail or Internet communication with a representative of
Licensor to provide Licensee with information, advice and assistance with
respect to the operation and use of QMACS(TM) Software. Licensee may obtain
help desk support by communicating with Licensor's designated
representative or following Licensor's process for help desk support.
Licensee will use its best efforts to maintain the training level of its
employees on the software. Licensor's help desk is not a substitute for
training and Licensee agrees to maintain a reasonable number of trained
personnel to use the Software and train other of Licensee's personnel.
Licensor will respond within 24 hours of receiving a request for help desk
support on a five (5) day, eight (8) hour per day 8:00am to 5:00pm Mountain
Standard Time schedule except as provided for in Exhibit F. Licensee shall
operate its own internal help desk to provide end user support and training
without reliance on the help desk maintained by Licensor. Licensee's help
desk personnel may avail themselves of Licensor's help desk support
provided Licensee's help desk personnel are appropriate to the position and
correctly trained and experienced in the use of QMACS(TM). It is the
parties intention that Licensor's help desk personnel will be primarily
responsible in supporting help desk functions of the Licensee. Licensee's
help desk service will directly provide support to its end users. Help desk
support is a chargeable item toward the monthly Service Unit allocation.
Licensor shall provide Licensee an after hours contact person and/or phone
number in case of emergencies.
4.7 SOFTWARE RELEASE AND UPDATE SUPPORT. Licensor agrees to provide and release
any patches or fixes to the Software on a timely basis electronically
according to Exhibit F - STANDARD SUPPORT and RELEASE POLICY. Software
Release and Update Support is a chargeable item toward the annual Service
Units.
4.8 METHOD OF SUPPORT. Licensor shall provide support via Wide Area
Network(WAN) to Licensee. This support will consist of direct line or WAN
access to the QMACS(TM) Software installed on the Approved Hardware.
Licensee shall obtain and maintain a direct line or WAN link and other
telecommunication equipment and software such as is required and approved
by Licensor to enable Licensor to supply Data Base Administration, Support
Services and Maintenance of the Applications. The WAN link must be
capable of a minimum of 128kb per second consistent average transmission
speed on a frame relay or fractional T1 mode protocol or equivalent.
Licensor's approval of direct line or WAN link and telecommunication
equipment and software is necessary to ensure compatibility with Licensor's
modems and telecommunication equipment and software. The acquisition,
maintenance and support of Licensee's modems, routers, WAN, telephone line
and other telecommunication equipment and software and all costs thereof
shall be the responsibility of Licensee. Licensee shall reimburse Licensor
for direct line, WAN or telephone charges incurred by Licensor in
connection with WAN or modem support.
4.9 SOFTWARE MODIFICATION PURSUANT TO GOVERNMENT REGULATION. After written
notice to Licensor, Licensee shall be entitled to receive, without
additional charge, such
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modifications to the Applications as are required to reflect any mandatory
changes in federal or state government managed care regulations that are
applicable in any states where Licensee is utilizing the QMACS(TM)
Software. Licensee agrees to provide said regulatory requirement
information to Licensor no later than ninety (90) days prior to its
Effective Date. Licensor shall be obligated to provide only a single
solution to any given mandatory change which is acceptable by the
appropriate controlling government agency.
4.10 ADDITIONAL SERVICES. Subject to the mutual agreement of the Parties and
additional compensation as scheduled or agreed upon, Licensor or a
Certified Implementation Partner will provide to Licensee some or all of
the following additional services which shall be made available to Licensee
for fees, terms and conditions in effect concerning the following services.
A. On-Site Support;
B. New Software;
C. Custom Programming;
D. Special Services;
E. Data Conversion Services
F. Electronic Data Interchange;
G. Interfaces to third-party systems
H. Custom report development
Licensor and Licensee agree the design, development, testing and production of
specific electronic interfaces to third-party software applications, electronic
data input and output formats, will be quoted on a time and material basis in
writing and accepted by both Parties prior to work commencing.
These "Additional Services" are not "Support Services" and are not covered by
the Standard Service Units allocated for Support and are not covered under
Warranty provisions in Article VII.
4.11 SPECIAL SERVICES. Licensor may offer Licensee other services ("Special
Services") to enhance the utility, user-friendliness and/or value of QMACS(TM)
Software to Licensee. Such Special Services may include, but are not necessarily
limited to, consulting services, Training, classes, training modules, in
addition to initial Training, computer assisted education modules, and the
provision of Support Services for modified QMACS(TM) Software. Fees and charges,
if applicable for the foregoing will be quoted from time to time to Licensee by
Licensor.
4.12 EQUIPMENT AND ACCESS TO DATA. To facilitate the performance of Support
Service and any Additional Services, Licensee, at its expense, shall:
A. Direct line or WAN. Acquire and maintain in good operating condition at
each authorized location a telecommunication hardware/software
configuration (including router, direct telephone line link and other
telecommunication equipment and software) as Licensor shall reasonably
require for compatibility with Licensor's telecommunication
hardware/software configuration. Licensor may request Licensee to
upgrade said communication configuration from time to time upon mutual
agreement.
B. Cooperation. Make available to Licensor such personnel, time, supplies,
equipment, assistance and cooperation of Licensee as Licensor shall
reasonably request;
C. Licensor Access to Software and Data. Permit Licensor support personnel
to have full and free access to the QMACS(TM) Software installed on the
Approved Hardware and data used in connection with any QMACS(TM)
Software. Such data shall be held in confidence by Licensor and used
exclusively to enable Licensor support personnel to accomplish or
facilitate Support Services or any Additional Services. Licensee will
provide Licensor system password(s) necessary to operate and support
the QMACS(TM) applications and related databases;
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D. Back-Up Data. Maintain adequate back-ups of all data provided to
Licensor support personnel in order to ensure continued data security
and retention. LICENSOR SHALL NOT BE OBLIGATED TO RECREATE OR RESTORE,
OR BE LIABLE IN ANY WAY FOR, LICENSEE DATA IN THE EVENT OF LICENSEE'S
FAILURE TO MAINTAIN ADEQUATE BACK-UP OF ALL DATA;
E. Licensee Information. Provide Licensor's support personnel access to
all Licensee information specific to QMACS(TM) Application(s)
maintained on the Licensee's Data Server. Licensor shall comply with
all applicable laws relating to the confidentiality of such
information and promises to comply with reasonable confidentiality
policies of the Licensee and sign confidentiality agreements as
requested by Licensee;
F. Install Modifications. Promptly install or have installed on all
Client workstations all new releases of QMACS(TM) Software required by
Licensor for continued support. Licensee agrees to install
modification and upgrade QMACS(TM) applications to keep the Software
within one(1) incremental version number of the generally released
version of the Software. It is agreed the Licensee is responsible for
all software updates to the Approved Client Workstations including but
not limited to operating systems, networking software, database
connectivity software. Licensor will install any QMACS(TM) Software
modifications, updates or fixes to an agreed upon location on the
application server provided by Licensee. It will be the Licensee's
responsibility to test, accept and move the new or modified QMACS(TM)
Software to the respective Approved Client Workstations or into
production on appropriate computers.
ARTICLE V
SPECIAL RESPONSIBILITIES OF LICENSEE AND LICENSOR
SPECIAL RESPONSIBILITIES OF LICENSEE:
5.1 LICENSEE PROVISIONS TO LICENSOR'S SUPPORT TEAM MEMBERS. Licensee shall
provide to Licensor's support and Implementation staff the following while on
site performing installation, development, Implementation, Training or support
work:
A. A business-like working environment including, but not limited to,
office space, desks, furnishings, telephone with access to an outside line
for business calls relating to Licensor's performance under this Agreement.
Licensee agrees to use reasonable efforts to provide space and furnishings
consistent with the space and furnishing made available to Licensee's
employees of similar responsibility.
B. An Approved Client Workstation(s) connected to Licensee's Approved Data
Server(s) and or the WAN network.
C. Unrestricted access to the Approved Hardware running QMACS(TM) Software
or databases shall be granted to all members of the Licensor's
Installation, Development, Support, Training and Implementation staff.
Licensee shall provide to the Licensor's support manager system password
clearance including Windows NT administrator password for the Primary
Domain controller, any distribution or OLE automation servers, the system
administrator password for any data base servers, and in general, any
access required to perform Licensor's obligations hereunder.
D. Licensee shall make available to Licensor's staff other available
equipment reasonably necessary for Licensor to perform its services
including but not limited to communications equipment such as faxes,
modems, telephones and Internet connections, if available.
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E. Licensee shall maintain acceptable industry standards for input,
maintenance, storage, security and archiving of data to be used with the
Software.
5.2 LICENSEE'S PROJECT LEADER OR AGENT. Licensee shall provide a project leader
or agent. Such project leader shall be authorized by Licensee to:
A. make decisions, approve plans and grant requests on behalf of Licensee
in connection with the Implementation of the QMACS(TM) Software
consistent with the terms of this Agreement;
B. make management decisions and provide personnel, including the
appointment of Application Coordinators, and other Representatives as
reasonably required by Licensor, in order to accomplish and facilitate
the Implementation services provided by Licensor in a proper and
efficient manner;
C. maintain Licensee's Approved Hardware or cause the same to be
maintained in proper working order during the term of the License and;
D. provide for or develop workflow and organizational processes to
compliment the Implementation and Training of the QMACS(TM) Software;
E. Licensee will exercise its best efforts in the performance of
Licensee's obligations hereunder in connection with the Implementation
of QMACS(TM) Software and preparation of the authorized location(s)
therefore;
F. Provide a project plan for Implementation at Licensee site taking into
account specific operational and procedural processes. Licensor will
provide a sequential prioritized task list and estimated timeframe for
each task and recommendations on incorporating tasks into Licensee's
project plan. It is agreed that project management is the Licensee's
responsibility unless otherwise provided for in this agreement.
G. Licensee agrees to staff the Implementation with the necessary
full-time resources. It is agreed that the following resources will be
dedicated full time to the Implementation effort:
Project Manager -
Functional Specialists - Five(5) industry and operational
experienced people
One (1) Benefit Plan Specialist;
One (1) Provider Reimbursement and Contract Specialist;
One (1) Eligibility and Enrollment Specialist;
One (1) Prior Authorization Specialist;
One (1) Claims Specialist;
Database Administrator - Preferably Microsoft(R) Certified
System Engineer (MCSE) certification;
Systems and Network Administrator - preferably a
MCSE certification;
Report Writing & Data mapping personnel - preferably RDBMS
qualified;
EDI interface personnel.
H. Licensee agrees to senior management involvement and participation in
steering committee meetings throughout the Implementation of the
QMACS(TM) Software. Licensee agrees that senior management involvement
is a necessary and essential ingredient to Implementation project
success.
5.3 HARDWARE AND SOFTWARE ELEMENTS. Licensee shall insure that the minimal
Hardware and Software Elements identified in Exhibit D attached hereto are in
place and operational at the authorized location(s) prior to the Implementation
commencement date. Licensee agrees to pay Licensor for any services performed by
the Licensor for the set-up, troubleshooting, support or maintenance of any of
the Hardware or Software Elements identified in Exhibit D on behalf of the
Licensee. Licensee shall be responsible for the continued operation and
upgrading, maintenance and support of such Hardware and Software Elements and
shall comply with the operational, environmental, maintenance and support
recommendations and requirements of the vendors and manufacturers thereof.
Licensee agrees to upgrade and maintain current third-
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party software versions no older than one(1) incremental version number from the
currently released version.
5.4 DATA. Licensee agrees to enter all data required for the correct operation
of the QMACS(TM) Software in accordance with written documentation and
specifications provided by Licensor. Licensee shall provide to Licensor, in a
mutually acceptable form, that data and material as agreed by Licensor and
Licensee to enable Licensor to provide the services called for in this
Agreement. Licensee is solely responsible for the accuracy and timeliness of its
data and information and the validation thereof. If data or materials submitted
by Licensee are incorrect, or not in a form mutually agreed upon by Licensor and
Licensee for processing, Licensor may charge Licensee for costs incurred to
correct or make the data or materials submitted by Licensee as usable for
Licensor's purposes. Licensee agrees to promptly provide Licensor with copies of
documents, other materials, and communications from regulatory agencies that
affect the Software or new requirements of the respective agencies. Licensee
agrees to provide said data or information to Licensor no later than ninety (90)
days prior to its Effective Date. Licensee acknowledges that QMACS(TM) Software
is rule-based and the Licensee is responsible for the accurate data definition,
set-up and maintenance of all rules and data elements according to Licensor
supplied documentation and Training. Licensee is responsible for all errors,
omissions, penalties and restrictions as a result of improper data set-up or
maintenance by Licensee, its employees or agents.
SPECIAL RESPONSIBILITIES OF LICENSOR:
5.5 LICENSOR'S PROJECT LEADER OR AGENT. Licensor agrees to provide a project
leader or agent during the Installation and Implementation of the Software.
Licensor's project leader will be the contact person and focal point for all
communications, arrangements, scheduling, required for the planning and
Implementation of the Software at the Licensee's location. Licensor's project
leader will communicate and work with Licensee's project leader.
5.6 CONDUCT JOINT APPLICATION DESIGN SESSIONS. Licensor agrees to conduct joint
application design(JAD) sessions for the purpose of obtaining Licensee input on
new product direction, designs, innovation and planning information for new
software applications, modules under consideration for development by the
Licensor. Licensor agrees to notify Licensee of joint application design
sessions as they are planned and scheduled. Licensee shall be permitted to have
up to four(4) qualified practitioners attend any scheduled JAD sessions. Both
parties agree that new product development and Enhancements will result from
participation in JAD sessions and attendance and participation is voluntary and
Licensee will not acquire any special privilege or right to the software or
design thereof, including any intellectual property or trade secrets that result
from participation in JAD sessions. It is agreed that all materials, designs,
works, processes resulting from JAD sessions are the sole property of the
Licensor.
5.7 IMPLEMENTATION MODIFICATIONS. Licensor, at Licensor's sole discretion, will
develop simple modifications to the Software that Licensor deems necessary for
Licensee's operation at no charge to the Licensee.
5.8 STEERING COMMITTEE - Licensor agrees to senior management involvement and
participation in Steering Committee meetings throughout the Implementation of
the QMACS(TM) Software.
5.9 STAFFING AND STAFF QUALIFICATIONS - The consulting and professional
personnel provided by Licensor shall have appropriate technical and application
skills to enable them to perform their duties hereunder. Licensor shall disclose
the names, skills, abilities and roles of personnel assigned to the
Implementation and provide sufficient staff to meet Licensor's Implementation
responsibilities.
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ARTICLE VI
RESTRICTIONS
6.1 USE BY OTHERS. Licensee may use QMACS(TM) Software and the Documentation
only for Licensee's own internal purposes to process data for Licensee or any of
it's affiliates. Licensee shall not allow any third-party to access, copy or use
QMACS(TM) Software or the Documentation without first obtaining a signed
Confidentiality Agreement similar to Exhibit B from the third-party which will
be provided to the Licensor. The Licensee shall not use the QMACS(TM) Software
to provide time-sharing or data processing services to a third-party without
written permission of Licensor. Notwithstanding any other provisions of this
Agreement, Licensee may disclose the QMACS(TM) Software and Documentation to any
third-party for the limited purpose of maintenance or modification of computer
hardware or software for use by Licensee provided that such disclosure is
pursuant to a Confidentiality Agreement. Any Software modified or changed by a
third-party on behalf of Licensee will not be covered under Article VII without
a separate written agreement and is cause for termination of this Agreement.
6.2 DUTY TO SAFEGUARD. QMACS(TM) Software and the Documentation, and the trade
secrets and intellectual property embodied therein, are of great value to
Licensor. Accordingly, Licensee shall exercise reasonable care and diligence to
protect the same against any unauthorized copying, piracy and misappropriation.
6.3 MODIFICATIONS. Licensee shall notify Licensor in writing on any Derivative
Work. Any and all such Derivative Works and modifications shall be the property
of Licensor and Licensee hereby assigns all title and ownership interest therein
to Licensor. Such Derivative Works and modifications shall be deemed to be
QMACS(TM) Software for the purposes of this Agreement, provided, however, that
Licensor's representations, warranties and liabilities shall not extend to such
Derivative Works and modifications.
6.4 CONFIDENTIALITY BREACH. In the event of a breach or the threat of a breach
of any of the provisions of this Article, Licensor, in addition to any other
remedies it may have at law or in equity or under this Agreement, shall be
entitled to a restraining order, preliminary injunction, and other appropriate
relief so as to specifically enforce the terms of this Article. The Parties
agree that a breach of this Article would cause Licensor injury not compensable
in monetary damages alone, and that the remedies provided herein are appropriate
and reasonable.
ARTICLE VII
WARRANTY, PATENT AND COPYRIGHT INFRINGEMENT,
LIMITATIONS ON LIABILITY AND REMEDIES, AND LICENSEE'S
LIABILITY.
7.1 WARRANTIES: Licensor warrants that it shall remedy any Material
Nonconformity within the lesser of the support policy response time as defined
in Exhibit F or thirty (30) days after notification in writing is received from
Licensee only if Licensor can duplicate the defect. Upon receipt of such notice,
Licensor, at no cost to Licensee, shall remedy the Material Nonconformity. This
warranty does not extend to QMACS(TM) Software modified by Licensee or
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for non-conformities due to Licensee misuse. Licensor's warranty covers only
service to correct Material Non-conformities reported during the term of this
Agreement. Telephone and WAN support, and other services are excluded from
Licensor's warranty. Licensor warrants the Software conforms to the
specifications of Exhibit A - Section 1 through 18.
Licensor warrants that it is solvent and has adequate working capital to fulfill
its obligations under this Agreement.
Licensor warrants that it has or will obtain necessary licenses and permits
needed to fulfill its obligations under this Agreement.
Licensor warrants that Licensor and its employees are competent to perform the
services of the Licensor in this Agreement.
Licensor warrants that its Software is year 2000 compliant and can accommodate
February 29 for leap year.
7.2 LIMITATIONS ON WARRANTY. Except as set forth in the Specifications, Licensor
does not warrant that the QMACS(TM) Software will meet Licensee's requirements
or will operate in the combinations which may be selected for use by Licensee,
or that the operation of the QMACS(TM) Software will be uninterrupted or error
free.
7.3 SCOPE OF WARRANTY. THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS
OR IMPLIED. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH IN
THIS AGREEMENT INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE HEREBY DISCLAIMS
ANY RELIANCE ON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT.
7.4 INDEMNIFICATION Licensor promises to indemnify Licensee, at Licensor's
expense, against any claim that the QMACS(TM) Software or the corresponding
manual(s) infringe on a patent, copyright, or trade secret in the United States.
Licensor will also pay all costs, damages, and attorneys' fees that a court
finally awards as a result of such claim, to the limit of Licensor's liability
as determined by the court. Licensor's duties under this Section 7.5 are
conditioned upon the following:
A. Licensee shall give to Licensor prompt written notice or any actual or
threatened claim;
B. Licensor shall have control of the defense of any claim and of all
negotiations for the settlement or compromise of such claim;
C. Licensee shall cooperate with Licensor in the defense or settlement of
any claim at Licensor's expense: and
D. The claim does not arise out of Licensee's modification of the
QMACS(TM) Software or the use of QMACS(TM) Software in combination
with anything not approved by Licensor.
If a patent, trade secret or copyright infringement occurs, or in Licensor's
judgment is likely to occur. Licensor, at Licensor's option and expense, may
either procure the right for Licensee to continue using the QMACS(TM) Software
and the manual(s), or replace or modify them to be functionally equivalent, to
the satisfaction of Licensee, so that they become non-infringing. If neither of
the foregoing alternatives is reasonably available in Licensor's judgment,
Licensee shall return all copies of the Application(s) in question and
corresponding manual(s) to Licensor upon written request. Licensor will refund
the pro-rata cost of Implementation of the Application in question based on a
five-year useful life.
The above promise of indemnification extends only and strictly to the QMACS(TM)
Software and manual(s) in the forms provided by Licensor and expressly precludes
any indemnification with
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respect to claims based upon the QMACS(TM) Software, manual(s) or any software
or documentation which has been modified by anyone besides Licensor.
7.5 LIMITATIONS ON LIABILITY AND REMEDIES. Licensee expressly agrees that
Licensor's entire liability and Licensee's exclusive and sole remedies for
breach of Licensor warranties shall be as follows:
A. CONFORMITY/NONCONFORMITY OF THE QMACS(TM) SOFTWARE. In all situations
involving conformance or nonconformity of the QMACS(TM) Software
during the period as set forth in Section 2.7 of this Software License
Agreement, Licensee's sole remedy is the correction by Licensor at its
expense of any Material Nonconformity with the Specifications provided
written notice of such nonconformity is received by Licensor. Licensor
shall have no liability or obligation under this Agreement with
respect to any nonconformity with the Specifications not reported in
writing by Licensee to Licensor during the applicable Warranty Period.
B. DISCLAIMER OF LIABILITY. EXCEPT FOR LICENSOR'S INDEMNIFICATION
OBLIGATIONS, IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES
CAUSED BY LICENSEE'S FAILURE TO PERFORM LICENSEE'S RESPONSIBILITIES,
OR FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, LOSS OF USE OF
THE QMACS(TM) SOFTWARE, COSTS OF RECREATING LOST DATA, OR ANY OTHER
INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES, EVEN IF LICENSOR HAD
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM
AGAINST LICENSEE BY ANY OTHER PARTY.
C. MAXIMUM LIABILITY. LICENSOR'S AGGREGATE LIABILITY FOR DAMAGES TO
LICENSEE FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF
ACTION, INCLUDING CONTRACT, TORT, COMPUTER MALPRACTICE, PRODUCTS
LIABILITY, STRICT LIABILITY, AND/OR OTHERWISE SHALL BE LIMITED TO THE
AMOUNT OF THE IMPLEMENTATION FEES PAID TO LICENSOR. THIS SUBSECTION
SHALL NOT APPLY TO SECTIONS 7.5 "LICENSOR'S PATENT AND COPYRIGHT
INDEMNIFICATION OF LICENSEE" or Section 7.6 "LICENSOR'S OPTION IF
INFRINGEMENT OCCURS" or Section 9.8 "CONFIDENTIALITY-LICENSOR"
D. CARE BY LICENSEE. After installation of the Application, it is the
duty solely of Licensee to: verify the results and information
provided by the Application, that the Application is operated properly
by trained personnel, and to satisfy itself that all such results and
information are true, complete and correct.
E. TIME LIMITATIONS. No action, regardless of form, arising out of this
Agreement may be brought by Licensee later than two (2) years after
the cause of action has arisen and Licensee has (or should have)
acquired knowledge thereof.
F. ALLOCATION OF RISK. This Agreement in general, and the foregoing
limitations on liabilities and warranties in particular, represent a
mutually agreed upon allocation of risk and the consideration provided
for in this Agreement has been calculated to reflect such allocation
of risk.
7.6 SOFTWARE MISUSE. Licensee agrees to indemnify Licensor from liability due to
Licensee's misuse of the Software.
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ARTICLE VIII
TERMINATION, DISCONTINUANCE AND REMEDIES
8.1 TERMINATION OF THE LICENSE. This Agreement may be terminated as follows:
A. By Either Party
This agreement may be terminated by either party if the other Party fails
to comply with the terms, conditions or any covenant or agreement on its
party under this Agreement, and fails to perform or cure the same within
forty-five (45) days of receipt of written notice to cure (the "Cure
Date").
B. By Licensor:
1. Termination by Licensor at End of Term. Licensor may notify Licensee
that this Agreement will terminate as of the end of the initial term
thereof by giving Licensee at least 90 days prior written notice of such
termination.
2. Licensor may terminate this Agreement. Licensor may terminate this
Agreement immediately by delivering to Licensee written notice of such
termination in the event of the happening of any of the following:
(a) insolvency of Licensee; filing of voluntary petition in
bankruptcy by Licensee; filing of a petition to have
Licensee declared bankrupt, provided it is not vacated
within thirty (30) days from date of filing; appointment of
a receiver or trustee for Licensee, provided such
appointment is not vacated within thirty (30) days from date
of filing; or execution by Licensor of an assignment for
benefit of creditors;
(b) any assignment or attempted assignment by Licensee of any
interest in this Agreement except as provided for in section
9.3 without Licensor's written consent;
(c) conviction in a court of competent jurisdiction of Licensee
for any violation of law tending in Licensor's opinion to
adversely affect the operation of business of Licensor or
the good name, good will or reputation of Licensor or
Licensor's Products.
(d) conduct prohibited by the federal statutes governing the
protection of copyrights, 17 U.S.C. Section 101 et seq.
shall also constitute grounds for termination of the
performance of any obligation under or in connection with
this Agreement.
(e) if Licensee is required to maintain a license in any state
or jurisdiction where this Agreement is to be performed and
Licensee fails to secure or maintain such license after
notice of such termination.
C. By Licensee:
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1. Termination by Licensee at End of Term. Licensee may notify Licensor
that this Agreement will terminate as of the end of the initial term
thereof by giving Licensor at least 90 days prior written notice of such
termination.
2. Licensee may terminate this Agreement. Licensee may terminate this
Agreement immediately by delivering to Licensor written notice of such
termination in the event of the happening of any of the following:
(a) insolvency of Licensor; filing of voluntary petition in
bankruptcy by Licensor; filing of a petition to have
Licensor declared bankrupt, provided it is not vacated
within thirty (30) days from date of filing; appointment of
a receiver or trustee for Licensor, provided such
appointment is not vacated within thirty (30) days from date
of filing; or execution by Licensee of an assignment for
benefit of creditors;
(b) any assignment or attempted assignment by Licensor of any
interest in this Agreement except as provided for in section
9.3 without Licensee's written consent;
(c) conviction in a court of competent jurisdiction of Licensor
for any violation of law tending in Licensee's opinion to
adversely affect the operation of business of Licensee or
the good name, good will or reputation of Licensee or
Licensee's Products.
(d) conduct prohibited by the federal statutes governing the
protection of copyrights, 17 U.S.C. Section 101 et seq.
shall also constitute grounds for termination of the
performance of any obligation under or in connection with
this Agreement.
(e) if Licensor is required to maintain a license in any state
or jurisdiction where this Agreement is to be performed and
Licensor fails to secure or maintain such license after
notice of such termination.
8.2 LICENSOR REMEDIES.
A. Licensor may demand any money due and owning to it under this
Agreement defined as Implementation and development fees, support and
maintenance fees and time and material charges.
B. Seek an injunction against the continued use of the Software and to
protect the Licensor's intellectual and proprietary rights.
C. Terminate this agreement in conformance with the terms set forth in
paragraph 8.1.
8.3 OBLIGATIONS OF THE PARTIES UPON TERMINATION. Upon termination of the
License, neither Party shall have any further obligations hereunder except for:
A. Obligations accruing prior to the Cure Date ;
B. Obligations or promises contained herein which relate to the
protection or confidentiality of QMACS(TM) Software (including
Executable Code) or the Documentation, which arise hereunder or which
are expressly made to extend for five years past the Term of this
Agreement; and
C. The obligation of Licensee to certify in writing to Licensor within
twenty (20) days of expiration or termination of the License that all
copies of the QMACS(TM) Software and the manual(s) have been destroyed
by Licensee or delivered to Licensor.
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8.4 ESCROW STATEMENT. The Licensor shall maintain a copy of the most recent
Source Code for the QMACS(TM) Software with Ft. Knox Escrow Services Inc. or a
trustee mutually acceptable to Licensee and Licensor. In the event that Licensor
becomes insolvent, makes an assignment of assets for the benefit of creditors,
has a trustee or receiver appointed (either voluntary or involuntarily), is
adjudicated bankrupt, or involuntary bankrupt proceedings are commenced against
Licensor or receiver, commences any dissolution or liquidation proceedings, or
transfers all or substantially all of their assets to another entity, then the
trustee shall be directed to deliver the Source Code to Licensee. In the event
that Licensor does not meet Licensee's Cure Date as defined in Section 8.1 for
resolving Material Non Conformities, Licensee may obtain access to Licensor's
Source Code held in escrow by trustee. Licensee shall provide written
notification to both Licensor and trustee of intention to access Source Code.
Licensor shall notify Licensee who the appointed trustee is, and give notice
prior to any of the actions mentioned herein. Licensee shall reimburse Licensor
for any costs of Source Code escrow, escrow maintenance or source code access.
ARTICLE IX
GENERAL PROVISIONS
9.1 AGENCY. Except as specifically permitted under this Agreement, neither
Licensor nor Licensee shall make any representations or warranties or incur any
liability on behalf of the other. Neither party is the agent, representative,
partner or joint venture of or with the other Party.
9.2 APPLICABLE LAW AND ARBITRATION. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Arizona. Before
commencing any proceeding, the parties agree to meet and confer, face to face,
and engage in good faith efforts to resolve any dispute. Any arbitration
commenced prior to such face to face meeting shall be dismissed by the
arbitrator without prejudice, and shall not be refiled until such time as the
parties have met face to face and discussed the dispute. In the event that the
Parties are unable to resolve within a reasonable time any controversy, dispute
or claim arising out of or in connection with this Agreement, or its
interpretation, performance or termination, arbitration shall be conducted in
accordance with the rules of the Arizona Arbitration Act, A.R.S. Section Section
12-1501 et seq., and the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") in effect at the time of the arbitration, except
as they may be modified or supplemented herein or by mutual agreement of the
parties Arbitration awards shall be binding and conclusive upon the Parties,
their successors and assigns and they shall comply with such awards in good
faith. The seat of the arbitration shall be in Phoenix, AZ. If reasonably
necessary, judgment upon an arbitration award may be entered in any court having
jurisdiction. In the event of arbitration or litigation, the non-prevailing
Party shall pay the costs and expenses including reasonable attorneys fees,
incurred in arbitration or litigation, or in preparation therefor, by it and by
the prevailing Party.
9.3 ASSIGNMENTS, SUB-LICENSES, ETC. BY THE LICENSEE. Licensee shall not have the
power or the right (1) to delegate any duty under this Agreement, (2) to grant
any sub-license under the License, or (3) to assign or transfer the License,
this Agreement or any right thereunder. Any attempt by Licensee to assign any
right or duty under this agreement shall be void as a matter of law. Licensee
shall, however, have the limited right to assign or transfer this License to a
parent Corporation, holding company, or subsidiary, or to a corporation,
partnership or other entity which succeeds to all or substantially all of the
business of the Licensee, but only with the prior written approval of the
Licensor which shall not be unreasonably withheld
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9.4 ASSIGNMENTS, SUB-LICENSES, ETC. BY THE LICENSOR. Licensor shall not have the
power or the right to delegate any duty under this Agreement, except that
Licensor may make such an assignment to a parent corporation, holding company,
or subsidiary, or to a corporation, partnership or other entity which succeeds
to all or substantially all of the business or assets of the party, or otherwise
with the approval of the Licensee which shall not be unreasonably withheld.
However, Licensor, in its sole discretion and without the approval of the
Licensee, may assign the economic benefits of this Agreement. In no way is this
Agreement to restrict the rights of the Licensor to grant licenses or enter into
agreements with others.
9.5 AUTHORIZATION. Each Party represents and warrants to the other that it is
duly authorized to execute and perform under this Agreement and that this
Agreement constitutes its valid obligation, enforceable according to the
provisions hereof.
9.6 CALENDAR DAYS. Unless otherwise stated, all periods of days referred to in
this Agreement shall be measured in calendar days.
9.7 CONFIDENTIALITY - LICENSEE. Licensee shall not divulge, furnish or make
accessible any of Licensor's trade secrets, or any pricing information contained
in this Agreement to any third-party during the term of this License except as
required by federal, state or local regulatory agencies or in the course of
sanctioned audits or reviews. Any other release of information will be done only
with Licensor's prior written authorization. Licensee acknowledges that the
pricing structure set forth herein is substantially less than Licensor's
standard pricing as a result of Licensee's agreement to undertake certain tasks
and responsibilities defined in this Agreement.
9.8 CONFIDENTIALITY-LICENSOR. Licensor shall not divulge, furnish, or make
accessible to anyone else any trade secrets or data of Licensee, including but
not limited to patient data unless requested to do so in writing by Licensee,
except as required by federal, state or local regulatory agencies or in the
course of sanctioned audits or reviews.
9.9 EXHIBITS. The following exhibits are hereby incorporated into this Agreement
by reference:
Exhibit A entitled "Specifications of QMACS(TM) Software"
Exhibit B entitled "Confidentiality Agreement:"
Exhibit C entitled "Fees, Rates and Payment Schedules:"
Exhibit D entitled "Hardware and Software Elements:"
Exhibit E entitled "Locations and Notices"
Exhibit F entitled "Standard Support and Release Policy"
Exhibit G entitled "QMACS(TM) Standard Implementation Plan"
Exhibit H entitled "Listing of QMACS(TM) Standard Reports"
9.10 EXPORT ACT. Licensee hereby warrants and certifies that no part of the
QMACS(TM) Software, modifications thereof, documentation thereto, applicable
manual(s) or any related item or product will be made available or exported to
any country in contravention of any law of the United States, including the
Export Administration Act of 1979 and regulations relating thereto.
9.11 FORCE MAJEURE. Either Party shall be excused for failures and delays in
performance of their respective obligations under this Agreement caused by war,
riots or insurrections, laws and regulations, strikes, floods, fires,
explosions, or other catastrophes beyond the control and without the fault of
such Party. This provision shall not, however release such Party from using its
best efforts to avoid or remove such cause, and such Party shall continue
performance hereunder with the utmost dispatch whenever such causes are removed.
Upon claiming any such excuse or delay for nonperformance, such Party shall give
prompt written notice thereof to the other Party.
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9.12 LOSS OR DAMAGES TO QMACS(TM) SOFTWARE. In the event of loss, damage, or
destruction of any of the Licensed Software, the lost, damaged, or destroyed
QMACS(TM) Software shall be replaced by Licensor upon the written request of
Licensee. Licensee shall pay Licensor's reasonable reproduction and delivery
expenses for such replacement unless the loss, damage, or destruction is caused
by Licensor.
9.13 MODIFICATION OF THE AGREEMENT. This Agreement supersedes all oral or
written agreements, if any, between the Parties and constitutes the entire
agreement between the parties with respect to the matters contained herein. Any
modification, amendment, cancellation, or waiver of rights under this Agreement
shall be effective only if in writing signed by an Officer of the Party against
whom enforcement of the same is sought. No waiver of any breach of this
Agreement shall be construed as a waiver of any other rights under this
Agreement. No delay in acting with regard to any breach shall be construed as a
waiver of the breach.
9.14 NOTICES. Any notices required or permitted hereunder shall be sufficiently
given if sent by registered or certified mail, postage prepaid, addressed or
delivered as set forth in Exhibit E, attached hereto.
A Party hereto may change its address for notice purposes by furnishing the new
address in writing to the other Party. Any such notice shall be deemed to have
been given, if mailed to the last known address as provided herein, on the fifth
(5th)day after the date on which the notice is mailed.
9.15 RESERVATION OF RIGHTS. All rights of Licensor not expressly granted to
Licensee in writing are reserved.
9.16 SECTION HEADINGS. The headings of Articles and sections herein are used for
convenience and ease of reference and shall not limit the scope or intent of the
Articles or Sections.
9.17 SEVERABILITY. In the event that any provision of this Agreement shall
become or be unenforceable, invalid, void or voidable, the same shall be
limited, construed or, if necessary, limited to the extent necessary to remove
such defect and the remaining provisions shall continue to bind the Parties as
though the unenforceable, invalid, void or voidable part are not a part of the
Agreement.
9.18 STATE AND FEDERAL LAWS. The Parties recognize that this Agreement is at all
times are subject to applicable state, local, and federal law including, but not
limited to, the National Health Planning and Resources Development Act of 1974,
the Social Security Act, and the rules, regulations and policies of the
Department of Health and Human Services ( including the right of the Secretary
of HHS or his designee to access for a period of four years from termination of
the License, Licensor's relevant books and records evidencing Licensor's
contractual relations with Licensee), all public health and safety provisions of
state law and regulations, the rules and regulations of the applicable Health
Systems Agency and applicable Executive Orders. For example, the Equal
Employment Opportunity clause as required by Section 202 of Executive Order
11246 (1965) and as contained in and required by 41 C.F.R, Section 60-1.4
(1984), "Equal Opportunity Clause," is incorporated herein by reference, if
applicable. The Parties further recognize that the Agreement shall be subject to
Amendments in such laws and regulations and to new legislation such as a new
federal or state economic stabilization or health insurance program. Any
provisions of law that invalidate, or otherwise are inconsistent with, the terms
of this Agreement or that would cause one or both of the Parties to be in
violation of law, shall be deemed to have superseded the terms of this
Agreement, provided, however, that the Parties shall exercise their best efforts
to accommodate the terms
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and the intent of this Agreement to the greatest extent possible consistent with
the requirements of law.
9.19 SUCCESSORS IN INTEREST. This Agreement shall inure to the benefit of and be
binding upon the parties, their successors, and legal representatives, and shall
not inure to the benefit of any other person, firm or corporation.
9.20 TAXES AND DUTIES. The License Fees, Implementation Fees, and all other
fees, charges and payments specified herein are exclusive of any taxes, duties,
or other tariffs imposed by any governmental agency on the QMACS(TM) Software,
the Manual(s) or Licensee's use thereof, for any goods or services provided
pursuant to this Agreement. Licensee shall be liable for any such taxes, duties,
or tariffs, including, but not limited to, state and local sales, use, and
property taxes, and penalties exclusive of taxes based upon Licensor's or a
third-party vendor's income.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement which is
effective as of the _________________ of _____________.
LICENSOR: QUALITY CARE SOLUTIONS, INC.
By: /s/ Robert F. Theilmann
Name: Robert F. Theilmann
Title: Chief Executive Officer
LICENSEE: DELTA DENTAL OF MISSOURI, A NOT-FOR-PROFIT CORPORATION
By: /s/
Name:
Title:
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EXHIBIT A
SPECIFICATIONS OF QMACS(TM) SOFTWARE
These Specifications apply only to the QMACS(TM) Software as originally provided
to Licensee under this Agreement. Updates, Enhancements and new versions of the
QMACS(TM) Software delivered after the acceptance or use of the Software
hereunder which increase the function thereof, unless otherwise specifically and
exclusively provided for in this Agreement or agreed upon by the Parties, and
which may be offered by Licensor to Licensee, may not conform to these
Specifications.
Licensee agrees that it has performed a due diligence investigation prior to the
execution of this agreement, has examined the Software, has been provided the
opportunity to review its operation both in demonstrations at Licensee's
facility, and at third-party sites, and has independently made a determination
that the Software is suitable for its purposes.
If a matter of interpretation of the following specifications are of a material
nature, it is agreed the matter shall be resolved in accordance with the dispute
resolution and arbitration provisions set forth in the Agreement in Article IX
section 9.2.
The following are the specifications and functions of the QMACS(TM) software
system:
A. QMACS(TM) was developed in Microsoft Visual Basic(TM) Version 5.0 to
operate with Microsoft SQL Server(TM) V 6.5 relational database and
TCP/IP networking protocol.
B. The QMACS(TM) software system requires the use of Microsoft Windows(R)
NT 4.0 Server as an operating system on the Approved Data Server and
Windows(R) NT 4.0 Workstation on the Client processor. The Licenses or
cost for licenses for any Microsoft or third-party products are not
included in this agreement and must be obtained by Licensee. Support,
maintenance and warranty for third-party products are not included
C. The QMACS(TM) Software is rule-based and will accommodate the
following business functions for claims processing, adjudication and
payment as interpreted by the Licensor:
Licensee and Licensor agree that the following specifications will be revised to
reflect additional development of the Licensor and final specifications will be
mutually agreed to during the assessment phase of the Implementation. The final
Specifications of the QMACS(TM) Dental software will be incorporated into this
Exhibit A.
1. GENERAL
A. The ability to report all claims expense information by the following:
(1) Rate Code.
(2) Month of Service.
(3) Provider number
(4) Member.
(5) Paid date range.
(6) Plan
(7) Provider Classification
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B. The ability to report all authorized services for a member which have
not yet been paid for.
C. The ability to report all claims with a given diagnosis, procedure
code.
D. The ability to generate a membership per month report by:
(1) Line of Business
(2) Plan
(3) Rate Code
(4) Member coverage type
(5) Employer Group
(6) Member Delegation
E. The ability to report utilization by the following selection criteria:
(1) By procedure code.
(2) By provider.
(3) By facility.
(4) By plan.
(5) By category of service.
(6) By provider specialty.
(7) By place of service.
(8) By member demographics (age, sex.)
(9) By rate code.
(10) By dollar amount
(11) By member coverage type
(12) By member delegation
(13) By Provider Category
2. BENEFIT PLAN CONFIGURATION
A. The ability to configure benefit plan packages to pay claims based on
whether the:
(1) Member's PDP must render service.
(2) Service requires an authorization.
(3) Provider of service is a plan participating provider.
(4) Service is allowed/disallowed by the benefit plan as defined by
user specified:
a) Diagnosis code (ICD-9)
b) Procedure code (CDT or HCPCS).
c) Revenue code (UB92).
(5) Range of the above codes.
(6) Diagnosis/procedure combination
(7) Visit Limits
(8) Rolling Year
(9) Calendar Year
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(10) Plan Year
(11) Rolling Months
(12) Rolling Days
(13) Month coverage starts
(14) Lifetime Limits
(15) Per visit limits
(16) Bill type (UB-92)
(17) Provider specialty
B. The ability to specify which edits to apply, and thus which edit code
descriptions, appear on claims and EOBs/remits
C. The ability to specify the following by procedure:
(01) Deductible.
(02) Co-pay amount.
(03) Cost Share amount
(04) Dollar maximums allowed.
(05) Unit maximum allowed.
(06) Coinsurance
(07) Benefit period (i.e. days, weeks, months, years).
D. The ability to adjudicate claims according to the following benefit
plan and member information:
(01) The benefit plan rules for the date of service.
(02) The member's eligibility for the date of service.
(03) The member's benefit plan package for the date of service.
(04) The eligibility of the member's contract group for the date of
service.
C. The ability to establish rates and bill benefit plan riders in the
following way:
(01) Bill riders separately from the member's benefit plan rate.
D. The ability to vary plan rates by the following:
(01) Policy group.
(02) Member age (provisions for unlimited age groups).
(03) Member sex.
(04) Medicare vs. Non-Medicare members (Secondary coverage)
(05) Medicare Part A vs. Part B (Secondary Coverage)
(06) Member coverage dates.
E. The ability to maintain date of effective benefit plan rates.
F. The ability to identify different categories of benefit plan types
(e.g. medical, dental, vision, etc.)
3. BENEFIT PLAN ACCUMULATION
A. The ability to offer multiple benefit plans per contract group.
B. The ability to assign multiple benefit plans per member.
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C. The ability to enroll all members in a specified benefit plan to
another specified benefit plan via batch process (i.e., without having
to enroll each member individually).
4. THIRD-PARTY ADMINISTRATION
A. The ability to administer claims adjudication and payment,
authorizations, utilization review, and financial reporting in a
third-party administration role (TPA) for an entity with:
(01) The same provider network as the plan.
(02) A different provider network from the plan.
5. CAPITATION
A. The ability to assign capitation rates structures to specific
providers.
B. The ability to process manual adjustments made to capitation pools.
C. The ability to have capitation rates vary by:
(01) Group
(02) Plan
(03) Rate Code
(04) Age/Sex
(05) Provider
(06) Service Zip Code
(07) Enrollment totals
D. The ability to process prorated capitations.
E. The ability to recon previous capitations.
6. CLAIMS ENTRY/MAINTENANCE
A. The ability to adjudicate claims during on-line entry.
B. The ability to enter and adjudicate claims through a batch interface
via tape from an outside provider.
C. The ability for providers entering claims via modem to add, change,
view and delete only:
(01) Their own provider information.
(02) Members serviced by that provider.
(03) Service plans for that member.
(04) Referrals generated by that provider.
(05) Their own claims information.
D. The ability to capture all HCFA 1500 information.
E. The ability to capture all UB 92 information.
F. The ability to capture all Universal (Pharmacy) information
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7. CLAIMS ADJUDICATION/PRICING
A. The ability to adjudicate a claim based on the benefit plan of the
member and contract of the Provider.
B. The ability to pend claims at the line item level.
C. The ability to pay, pend, or deny a claim based on the existence of a
valid authorization.
D. The ability to pend or deny a claim based on the provider number and a
user defined set of either valid or invalid values for that provider
using the following codes:
(01) Procedure codes
(02) Service Location
(03) Modifier Code
(04) Age
(05) Diagnosis
E. The ability to price claims based on the following payment mechanisms:
(01) Provider Fee Schedule.
(02) Percent of billed.
(03) Per Diem.
(04) Lesser of billed or covered.
(05) Capitated
(06) Per diem based on tiers
8. COORDINATION OF BENEFITS (THIRD-PARTY LIABILITY)
A. The ability to enter other insurance carrier information for members
into the system.
B. The ability to enter the amount of COB for a claim which has already
been paid by another insurance carrier.
C. The ability to calculate the paid amount by deducting the COB amount
from allowed amount.
9. CLAIMS INQUIRY
A. The ability to access the following information On line(windows) from
the claims window:
(01) Referrals
(02) Member Information
(03) Provider Information.
(04) Code values (CPT, ICD, revenue codes).
(05) Historical claims
(06) Member and Provider Memos and Alerts
(07) Limit and deductible accruals
B. The ability to access claims by:
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(01) Claim number.
(02) Member number
(03) Member name.
(04) Provider number
(05) Provider name
(06) Referral number
10. CLAIM PAYMENTS
A. The ability generate checks for claims on predefined check stock for
laser printing.
B. The ability to generate remittances for both claims and encounters.
11. MEMBERSHIP INFORMATION INQUIRY/LISTING - ON-LINE OR REPORTS
A. The ability to view membership information and accumulate totals using
the following selection criteria:
(01) Primary Care Dentist
(02) Zip Code
(03) Age/User specified Age Range.
(04) Rate Code
(05) By benefit plan within all above mentioned criteria.
(06) To obtain above statistics by Group Id calculating percentage of
totals.
(07) Language spoken
B. The ability to produce a member enrollment analysis by Plan that lists
the total members enrolled by age group and sex within rate code.
C. The ability to record, track and resolve member grievances.
12. GROUP POLICY MAINTENANCE
A. The ability to establish effective dated policy group (i.e., employer
group) policies to which members and benefit plan products can be
assigned.
B. The ability to add/change/review/ the following policy group
information on-line:
(01) Group demographics (name, address, contacts, etc.)
(02) Plans/Riders offered by the group.
(03) Billing information (billing cycle, etc.)
(04) Rate Codes and corresponding premiums/member capitation dollar
amounts for each plan assigned to the group.
C. The ability to assign multiple rate codes (codes that can be tied to a
dollar premium/capitation amount) to a benefit plan.
D. The ability to administer the following types of policies:
(01) Per diems
(02) Discounts off a set fee schedule.
(03) Discounts off the provider's billed charges.
(04) RBRVS, RVS, Set pricing.
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(05) DRG's
(06) Per Unit
13. MEMBER MAINTENANCE
A. The ability to enroll, modify, and disenroll the following member
information on-line:
(01) Demographic information(name, address, sex birthdate, etc.)
(02) Plan/coverage information.
(03) PDP.
(04) Coordination of benefit (COB) information.
(05) Medicare coverage information.
(06) Enrollment dates (enrollment and disenrollment dates.)
(07) User definable alert flags.
14. PRIMARY CARE DENTIST ASSIGNMENT
A. The ability to indicate when a provider is not accepting new patients
on the provider's on-line a group by group basis on the provider's
on-line profile.
B. The ability to automatically assign PDP's to a member, during
enrollment, based on the member's zip code. (age, sex, and language)
C. The ability to assign a non-PDP provider to each member.
D. The ability to assign a Primary Care Dentist (PDP) to each member.
15. AUTHORIZATION MANAGEMENT
A. The ability to add/read/modify/delete the following authorization
(referral) information on-line:
(01) Authorization control number.
(02) Member ID number.
(03) Carrier ID number other than member ID.
(04) Referral service code (user maintainable).
(05) Diagnosis (presenting signs and symptoms).
(06) Accrued benefits relating to authorization in units
(07) Provider of service (Referred to provider).
(08) Referring provider.
(09) Authorized service date range.
(10) Authorized referral days/number of visits (units).
(11) Option of indicating estimate cost of service.
(12) Authorized cost of service.
(13) Operator ID number to enter the authorization.
(14) Operator ID number to last change authorization.
(15) Date of last change.
(16) Deny days and reason for in patient authorizations.
(17) Deny request for services by referral service code (w/reason).
(18) Emergency, non emergency, urgent care code indicator.
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(19) Screen alert for member special requirements.
(20) Memo/comment area capabilities.
B. The ability to create temporary providers who are not on the system.
C. The ability to automatically generate a control number to uniquely
identify an authorization abstract.
D. The ability to access and display an authorization number on-line.
E. The ability to record, track and resolve appeals of denied services.
16. PREMIUM BILL PROCESSING
A. The ability to accommodate multiple tier premium structures (i.e.,
single, family, etc.)
B. The ability to adjust the premium by:
(01) Age.
(02) Sex.
(03) Contract Group.
(04) Benefit Plan (rate code).
C. The ability to track current, historical, and future rate history and
billing provision.
D. The ability to process retroactive premium billing and credits for
enrolls, disenrolls, and changes.
E. The ability to accommodate COBRA billing.
17. PREMIUM BILL PRINTING
A. The ability to process the following billing cycles:
(01) Monthly.
(02) Bimonthly
(03) Quarterly.
(04) Semi-Annually.
18. PROVIDER MAINTENANCE.
A. The ability to add, change, review and delete provider demographic and
contract information on-line.
B. The ability to restrict deletion of any dentist with claims,
encounters, or referrals for that dentist.
C. The ability to delete terminated providers from the data file after a
user specified period of time.
D. The ability to maintain two separate addresses for each provider
(i.e., service address vs billing address.)
E. The ability to maintain at least one provider specialty for which the
provider is authorized.
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EXHIBIT B
CONFIDENTIALITY AGREEMENT
B 1. AGREEMENT
The undersigned has received and will receive access to trade secrets and
confidential information subject to the terms and conditions set forth below.
B 2. DEFINITIONS
Licensor refers to Quality Care Solutions, Inc. Licensor Product refers to a
software product and all documentation related thereto created and produced by
Licensor and its subsidiaries. Licensor Information refers to all information,
whether oral or written, manuals or on-line documentation, relating to Licensor
Products and the business operations (e.g. management, methods, finances,
customers and business plans and strategies) of Licensor and its subsidiaries,
except such information which Licensee documents (A) is or becomes generally
known to Licensor's industry through no fault of Licensee, (B) is already
rightfully known by Licensee through means other than disclosure by Licensor,
(C) is rightfully received by Licensee from a third-party having no obligation
of confidence regarding such information, or (D) is independently developed by
Licensee without breach of this Confidentiality Agreement. Licensor's use of
particular information in its Products and its business operations is
confidential, whether or not the particular information is generally known,
unless one of the exceptions applies to the fact of Licensor's use of that
particular information. A combination of information is confidential, even if
exceptions apply to parts of the combination, unless one of the exceptions
applies to the combination and its principles of operation and its economic
value.
Licensee refers to Delta Dental of Missouri, a not for profit Corporation and
its affiliates, the other party signing this Confidentiality Agreement. Licensee
Product refers to any product or service and all documentation related thereto
created and produced by Licensee and its subsidiaries. Licensee Information
refers to all information, whether oral or written, manuals or documentation,
relating to Licensee Products and the business operations (e.g. management,
methods, finances, customers and business plans and strategies) of Licensee and
its subsidiaries, except such information which Licensor documents (A) is or
becomes generally known to Licensee's industry through no fault of Licensor, (B)
is already rightfully known by Licensor through means other than disclosure by
Licensee, (C)is rightfully received by Licensor from a third-party having no
obligation of confidence regarding such information, or (D) is independently
developed by Licensor without breach of this Confidentiality Agreement.
B 3. ACKNOWLEDGMENTS
B 3.1 Licensee Products and all techniques, algorithms, data models, stored
procedures, schema's, and processes contained therein or any modification,
extraction, or extrapolation thereof are the property and trade secrets of
Licensee. The expression thereof is also protected under the copyright laws. The
copyright notice on Licensee Products does not imply unrestricted or public
access to these materials. No duplication, usage, disclosure, or publication
thereof, in whole or in part, for any purpose is permitted, except that which is
expressly permitted by this confidentiality agreement or other written agreement
with Licensee. All rights not granted are reserved.
B 3.2 Licensor Information is the property and trade secret of Quality Care
Solutions, Inc. Licensee Information is the property and trade secret of Delta
Dental a Not for Profit Missouri Corporation.
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B 3.3 Both parties acknowledge that any Products or Information which may have
been disclosed prior to the Confidentiality Agreement are subject to the terms
and conditions herein.
B 3.4 This Confidentiality Agreement does not grant a license or any other right
to either party's Products or Information, except the disclosure rights
expressly set forth herein.
B 3.5 The provisions of this Confidentiality Agreement are in addition to and
not exclusive of any and all other obligations and duties set forth in the
Agreement to which this Exhibit B is attached with respect to each party's
Products and Information.
B 3.6 For the sole purpose of each party enforcing this Confidentiality
Agreement through injunctive relief, both parties acknowledges that the
unauthorized use or disclosure of each other's Products or Information would
cause irreparable harm to the respective parties. Such remedy shall not limit
the respective parties from pursuing any other remedy, in law or in equity,
available for a breach or anticipatory breach of this Confidentiality Agreement.
B 4. DISCLOSURE TERMS
B 4.1 Licensee shall hold in confidence all Licensor Products and Information
which Licensee has received or will receive, using at least the same degree of
care as Licensee exercises for its own trade secrets.
B 4.1a Licensor shall hold in confidence all Licensee Products and Information
which Licensor has received or will receive, using at least the same degree of
care as Licensor exercises for its own trade secrets.
B 4.2 Licensee shall not disclose Licensor Products or Information which
Licensee has received or will receive, without Licensor's prior written
approval, except as set forth in Sections B 4.3 and 5 or in the Software License
and Support Agreement. Licensor shall not disclose Licensee Products or
Information which Licensor has received or will receive, without Licensee's
prior written approval, except as set forth in Sections B 4.3 and 5 or in the
Software License and Support Agreement.
B 4.3 Licensee may disclose appropriate portions of Licensor Products and
Information to such of Licensee's employees and consultants who have been
informed of Licensee's obligation to protect the intellectual property rights of
Licensor and who have a specific, legitimate need to access such portions of
Licensor's Products and Information for the purpose of evaluating Licensor and
Licensor Products. Licensee may copy the Licensor Products and Information as
reasonably necessary to accomplish such purpose with due regard for Licensee's
obligations herein (e.g. to limit use and disclosure and to return all copies).
B 4.3a Licensor may disclose appropriate portions of Licensee Products and
Information to such of Licensor's employees and consultants who have been
informed of Licensor's obligation to protect the intellectual property rights of
Licensee and who have a specific, legitimate need to access such portions of
Licensee's Products and Information for the purpose of evaluating Licensee and
Licensee Products. Licensor may copy the Licensee Products and Information as
reasonably necessary to accomplish such purpose with due regard for Licensor's
obligations herein (e.g. to limit use and disclosure and to return all copies).
B 4.4 Licensee shall notify Licensor of any breaches of security. Licensee
agrees to reproduce Licensor's copyright and proprietary notices on all copies
or transmissions of Licensor Products and Information. Licensee shall not remove
or obscure any copyright or other proprietary notices from Licensor Products or
Information. Licensee shall not take any action to reverse engineer any Licensor
Product or any part thereof. Licensee and standard reports generated
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from QMACS(TM) software are specifically excluded from requirements of
displaying Copyright notices of Licensor.
B 4.4a Licensor shall notify Licensee of any breaches of security. Licensor
agrees to reproduce Licensee's copyright and proprietary notices on all copies
or transmissions of Licensee Products and Information. Licensor shall not remove
or obscure any copyright or other proprietary notices from Licensee Products or
Information. Licensor shall not take any action to reverse engineer any Licensee
Products or any part thereof.
B 5. DISCLOSURE REQUIRED BY LAW
B 5.1 If Licensee is ordered by a court or other governmental body of competent
jurisdiction to disclose Licensor Products or Information, Licensee shall not be
liable for disclosures required by such order if the Licensee reasonably
complies with the following requirements: (a) when Licensee becomes aware of
such an order or the possibility of such an order. Licensee shall immediately
notify Licensor by the most expedient means, (b) Licensee shall join a motion by
Licensor for an order protecting the confidentiality of Licensor Products or
Information, including a motion for leave to intervene by Licensor, and if an
issued order calls for immediate disclosure, Licensee shall immediately request
a stay of such order to permit Licensor to respond as set forth in
subparagraph(b).
B 5.1a If Licensor is ordered by a court or other governmental body of competent
jurisdiction to disclose Licensee Products or Information, Licensor shall not be
liable for disclosures required by such order if the Licensor reasonably
complies with the following requirements: (a) when Licensor becomes aware of
such an order or the possibility of such an order. Licensor shall immediately
notify Licensee by the most expedient means, (b) Licensor shall join a motion by
Licensee for an order protecting the confidentiality of Licensee Products or
Information, including a motion for leave to intervene by Licensee, and if an
issued order calls for immediate disclosure, Licensor shall immediately request
a stay of such order to permit Licensee to respond as set forth in
subparagraph(b).
B 6. TERMINATION
B 6.1 Within thirty(30) days of notice or termination, Licensee agrees to
immediately return or destroy all copies of all Licensor Products and
Information as directed by Licensor and to provide written certification to
Licensor of having complied with Licensor's direction. Within thirty(30) days of
notice or termination, Licensor agrees to immediately return or destroy all
copies of all Licensee Products and Information as directed by Licensee and to
provide written certification to Licensee of having complied with Licensee's
direction. B 6.2 Licensee's obligations under this Confidentiality Agreement
shall continue for a period of five (5) years after termination of the Software
License and Support Agreement. Licensor's obligations under this Confidentiality
Agreement shall continue for a period of five (5) years after termination of the
Software License and Support Agreement.
B 7. GENERAL PROVISIONS
B 7.1 Governing Law. This Confidentiality Agreement shall be governed by the
laws of the State of Arizona, without regard to its choice of law principles.
Licensor and Licensee consent to the personal jurisdiction of the federal courts
located in the State of Arizona.
B 7.2 Modifications to agreement. Licensor and Licensee acknowledge that neither
has been induced into this Confidentiality Agreement by any condition,
representation, or warranty not set forth in this Confidentiality Agreement. Any
modifications to this Agreement are invalid unless confirmed in a writing which
states that it amends this Agreement and which is signed by an authorized
officer of Licensee and Licensor. Any subsequent agreements are invalid unless
confirmed in a writing which is signed by an authorized officer of the Licensee
and Licensor.
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B 7.3 No Waiver. The failure of either party at any time to require performance
by the other party of any provision of the Confidentiality Agreement shall in no
way affect the right of such party to require performance of that provision. Nor
shall such failure be constructed as a waiver of any continuing or succeeding
breach of such provision, a wavier of the provision itself, or a wavier of any
right under this Confidentiality Agreement.
B 7.4 Partial Invalidity. If any provision of this Agreement is held invalid,
such invalidity shall not affect other provisions of this Agreement which can be
given effect without the invalid provisions. Provisions deemed to be invalid
shall be reformed to the minimum extent necessary to render them valid at such
time and, to the extent possible, in accordance with the original intent of the
parties. For example, it is the intention of the parties that, if a court deems
any provision of this contract to be invalid because of the duration of such
provision or the area or matter covered thereby, such court shall reduce the
duration, area, or matter of such provision and, in its reduced form, such
provision shall be enforced.
B 7.5 Interpretation. "Include", "includes", and "including" shall be
interpreted as introducing a list of examples which do not limit the generality
of the concept they illustrate. "Modification" to the products includes
corrections to the product, additions to the product, and translations of the
product. "Intellectual property rights" refers to patent right, copyright, or
trade secret right.
B 7.6 Notice. Any notice given pursuant to this Confidentiality Agreement shall
be in writing, shall state that it is a notice given pursuant to this
Confidentiality Agreement, and shall be sent by certified mail to the address
indicated below
IN WITNESS WHEREOF, the parties hereto have caused this Confidentiality
Agreement to be written, and the persons signing warrant they are duly
authorized to sign on behalf of their respective parties.
FOR LICENSEE: DELTA DENTAL OF MISSOURI, A NOT-FOR-PROFIT CORPORATION.
By: By:
Name: Name:
Title: Title:
Date: Date:
FOR LICENSOR: QUALITY CARE SOLUTIONS, INC.
By:
Name: Robert F. Theilmann
Title: Chief Executive Officer
Address: 5030 E. Sunrise Drive,
Phoenix AZ 85004
Date:
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EXHIBIT C
FEES, RATES AND PAYMENT SCHEDULES
C 1. INSTALLATION AND IMPLEMENTATION FEES.
C1. INSTALLATION FEE: [Confidential treatment has been requested]
Licensee agrees to pay Licensor a [****] Installation fee for the following
services:
a. Installing QMACS(TM) Software upon an Approved Data Server supplied by
Licensee.
b. Configuring the Licensee supplied Microsoft Windows(R) NT 4.0 server
software and Microsoft SQL Server database software to Licensor's
specifications.
c. Installation of a QMACS(TM) Software test or training database.
Licensee agrees to pay the Installation fee upon the signing of this Agreement.
C1.1 IMPLEMENTATION FEE: [Confidential treatment has been requested]
Licensor's Standard Implementation Plan consists of a work plan and respective
services the Licensor or a Certified Implementor will perform to assist Licensee
in defining, configuring, setting-up, maintaining and initial Training on the
Software for Live Operation. Licensee agrees to pay Licensor or a Certified
Implementation Partner the Standard Implementation fee of [****] dollars for the
Standard Implementation work effort assigned to the Licensor or a Certified
Implementation Partner outlined in Exhibit G - Standard Implementation Plan.
Licensee agrees to pay the Standard Implementation fee in [****] installments
commencing on the first month following the Effective Date of this Agreement.
The parties agree that changes to the Standard Implementation Plan will be
mutually agreed to in writing and fees quoted prior to the change order work
commencing.
Custom Implementation plans are not included this Agreement and Licensee has the
option of obtaining Implementation and Training services on a contract basis
from Licensor. The parties agree that a separate custom implementation agreement
detailing work to be performed and associated costs will be executed prior to
work being scheduled for custom Implementation plans.
C 2. SOFTWARE LICENSE AND SUPPORT FEE:
In consideration for the licenses granted hereunder, Licensee hereby agrees to
pay Licensor according to the Installation, Implementation, Software License and
Support Fee schedule as defined in this Section C 2 of Exhibit C. Licensee
hereby agrees to permit Licensor electronic access to Licensee's enrollment
database monthly for the purpose of determining the count of subscribers
enrolled on the first day of the respective month for License Fee billing
purposes, if applicable. In the event Licensor is unable to determine the proper
enrollment on the first of each month, Licensee agrees to accept and pay an
estimation of Licensee Fee provided by Licensor. All estimations of monthly
License Fees will be reconciled within ninety (90) days to a corrected amount.
C 2.1 SOFTWARE LICENSE AND SUPPORT FEE SCHEDULE: [Confidential treatment has
been requested]
Licensee agrees to pay Licensor monthly Software License and Support Fees for
using the QMACS(TM) Software in managing and administering Licensee's prepaid
dental business. The minimum Software License and Support Fee will be the
greater of [****] per subscriber per month ("PSPM") up to [****] Subscribers.
In addition, Licensee agrees to pay Licensor monthly.
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according to the following Per Subscriber Per Month (PSPM) fee schedule over
[****] monthly Subscribers to the respective level of Subscribers as follows:
$ [****] Per Subscriber Per Month ("PSPM") over [****] subscribers per
month.
$ [****] Per Subscriber Per Month ("PSPM") from [****] subscribers per
month.
$ [****] Per Subscriber Per Month ("PSPM") from [****] subscribers
per month.
If requested by Licensee, during the term of this Agreement, the Licensor agrees
to negotiate in good faith on a PSPM rate over one million subscribers per month
and agrees that the over one million-subscriber rate will be less than $0.08
PSPM under the terms and conditions of this Agreement.
Licensee agrees the minimum Software License and Support Fee or PSPM Software
License and Support Fee is payable beginning the sixth (6th) month following the
Effective Date of this Agreement and due monthly thereafter. The PSPM Software
License and Support Fee will be due during any acceptance test period completed
in a live or production environment.
The above fees are cumulative up to the respective total number of Licensee's
active Subscriber enrollments being administered using QMACS(TM) software.
C 2.2 SUPPORT AND SERVICE UNITS.
Licensee will accrue the Service Units for Standard Support Services as defined
in Article IV on a monthly basis as follows:
One (1) Service Unit per [****] Subscribers up to [****] Subscribers and one
half (1/2) Service Unit [****] Subscribers over [****] Subscribers up to [****]
Subscribers. The minimum Service Units allocated for Support Services is [****]
Service Units per Month.
Example: A 500,000-subscriber plan would accrue the following service units:
First [****] Subscribers = [****] Service Units per month.
Next [****] Subscribers = [****] Service Units per month
MONTHLY SERVICE UNITS ACCRUED TOTAL [****] SERVICE UNITS PER MONTH
Service Units are accrued on a monthly basis and must be used by the end of the
annual anniversary of the Effective Date of this Agreement. Service Units
accrued will not be carried over to Agreement renewal periods.
Additional Service Units can be purchased according to the following service
unit fee schedule:
The rate for one service unit is [****].
The rate for a 10 Service Unit block is $ [****]
The rate for a 25 Service Unit block is $ [****]
The rate for a 50 Service Unit block is $ [****]
The rate for a 100 Service Unit block is $ [****]
Service units quoted are experience, skill and complexity adjusted. Generally, a
base service unit is equivalent to one (1) person hour of work but will be
adjusted for the skill and experience level of the person selected or required
to do the work. More experienced and senior level consultants or very complex
tasks will be quoted from one and one-half (1 1/2) to three times (3) the base
service units per person hour.
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C 2.3 VALUED PARTNERSHIP PROGRAM: [Confidential treatment has been requested]
The parties recognize the value of their partnership and have agreed to a Valued
Partnership program. The Licensee will use its best efforts in: (a) arranging
and hosting site visits for Licensor's prospects; (b) participating and
providing input at Joint Application Design (JAD) sessions conducted by
Licensor; (c) agreeing to be featured in promotional activities, press releases
and case studies of Licensor products without additional compensation or
economic benefit; (d) allow Licensor's staff to observe and train in Licensee's
operation as a real world training laboratory. In consideration for
accomplishing the foregoing valued partner program activities, Licensor agrees
to reduce the total monthly PSPM Software License and Support fee charges as
follows for every month Licensee participates in one or more of the above
activities at the request of the Licensor:
First year from live date [****] reduction of the total monthly PSPM
charges
Second year from live date [****] reduction of the total monthly PSPM
charges
Third year from live date [****] reduction of the total monthly PSPM
charges
Fourth year from live date [****] reduction of the total monthly PSPM
charges
Fifth year from live date [****] reduction of the total monthly PSPM
charges
C 3. LATE PAYMENT AND INTEREST:
If Agreement Fees are not paid within 30 days of invoice date, Licensee agrees
to pay a late payment penalty of five (5) percent of the Agreement Fees due in
addition to the Agreement Fees. Licensee agrees any payment under this Exhibit C
which is more than thirty (31) days late will accrue interest at the rate of
Twelve (12%) percent per annum (or the highest rate of interest allowed by
applicable law if lower) until paid in full. Licensor shall have the right to
suspend all its obligations under this Contract in the event that any payment is
more than forty five (45) days late. Licensor agrees to notify Licensee in
writing at least 15 days prior to suspending its obligations for late or non
payment. Notices of intent to suspend obligations will be delivered in
accordance with Exhibit E. In the event that Licensee determines in its
reasonable judgment that a billing error has occurred. Licensee must notify
Licensor in writing within thirty (30) days of receipt of such erroneous items.
Licensee agrees to pay all undisputed items on an invoice which may have
disputed items contained thereon. Licensor agrees that no late payment penalty
shall be applicable for contested invoice items until thirty (30) days following
Licensor's response to Licensee's notice of billing error.
C 4. CONSULTING FEES:
Licensor agrees to provide technical consulting to Licensee upon request of an
authorized executive of the Licensee's organization in writing on a quoted time
and material basis.
C.5 TRAINING AND SUBSEQUENT TRAINING FEES:
Licensor or Certified Implementation Partner agrees to provide initial Training
to Licensee during the Implementation of the Software as defined in Article IV
paragraph 4.3 as a component of the Implementation fees outlined Exhibit C
paragraph C1.1. Licensee and Licensor agree to a mutually acceptable training
schedule. Licensee agrees to request additional Training in writing. Licensee
Service Units may be used for additional Training.
C 6. HARDWARE CONFIGURATION:
Licensor agrees to provide Licensee reasonable hardware configuration consulting
necessary to operate Licensor's software products on Licensee's Approved
Hardware and as defined in Exhibit G - Standard Implementation Plan.
C 7. DELIVERY AND INSTALLATION:
Licensee agrees to the following terms and condition of the Licensor if the
Licensee requests or hires the Licensor to act as an agent to procure, set-up or
install computer hardware and equipment on behalf of the Licensee. Vendor's
Hardware and Operating system refers to
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computers, operating system software, database software listed in Exhibit D to
be procured from a third-party supplier on behalf of the Licensee.
C 7.1 The "delivery date" for each item of Vendor's Hardware and Operating
system software listed in Exhibit D shall be the date on which Licensor delivers
and fully installs the specific item of hardware at location specified in
Exhibit E.
C 7.2 Shipment of the Vendor's hardware and software shall be F.O.B. the
location specified in Exhibit E. All freight and handling charges on the
hardware and operating system software shall be the responsibility of the
Licensee.
C 7.3 The Licensee is responsible to ensure all wiring, environmental, safety
codes and equipment manufacturer's installation specifications are met prior to
installation. The Licensee agrees to pay or reimburse Licensor for additional
costs incurred as a result of unsatisfactory installation preparation,
practices, procedures or site conditions corrected by Licensor.
C 7.4 Title to Vendor's Hardware and operating system software shall pass to
Licensee at the F.O.B. Point, but subject to a security interest until the date
the Licensee has fully paid for the Hardware and operating system software.
C 8. TRAVEL AND EXPENSE GUIDELINES.
Licensee agrees to reimburse or pay Licensor for reasonable travel, meals,
lodging, per diem expenses which are incurred by Licensor on Installation,
Implementation, Training, maintenance, support, consulting at the Licensee's
office or location defined in Exhibit E or if Licensee's work location is in
excess of fifty(50) miles of Licensor's main office within 15 days of receipt of
invoice for reimbursement of expenses. Licensor agrees to provide receipts and
reasonable documentation of expenses to Licensee for expense reimbursement.
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EXHIBIT D
HARDWARE/SOFTWARE ELEMENTS
The following is the standard computer specification necessary to operate
Licensor's QMACS(TM) software system. Utility software, operating system
software, database software and hardware equipment procurement are Licensee's
responsibility: This includes all Microsoft software:
DATABASE SERVER SPECIFICATIONS:
Digital Alpha 4100 5/300
2 5/300 CPU - 4Mb Cache RAM for CPU
512 Mb RAM
1 x 2 GB System Disk
2 x 3 Channel Ultra Fast and Wide SCSI II Raid 0&1 PCI
32 Mb (minimum) Cache RAM per Controller
34 x 2GB Ultra Fast Wide SCSI II Drives
5,6,6 SCSI Channel set-up
4 x 8 GB RAID 0 & 1 Set-with 1 per controller
CD -ROM - SCSI
1 Mb Video Card
Ethernet Card (Twisted Pair-100MBt) PCI
15" SVGA Monitor
56kb baud external modem
UPS large enough to handle all servers for 30 minutes
DLT or 8mm Tape Drive - Arc-Serve back-up software recommended
Microsoft NT Server 4.0
Microsoft Backoffice
DOMAIN CONTROLLER HARDWARE:
Pentium Pro 200 MHz Computer With PCI Bus certified for Windows NT 4.0
2 - 200Mhz Pentium Pro CPU's w/ 512 Cache RAM per CPU
256 Mb RAM
1 x 1 Channel Ultra Fast and Wide SCSI II Raid 5 PCI
4 MB Cache RAM per controller
2 x 2 GB Ultra Fast Wide SCSI II Drives
3,3,2 SCSI Channel Set-up
1 x 12 GB RAID 5 set - with 1 hot swap
6 GB SCSI Hard Disk Capacity with SCSI Controller
CD -ROM - SCSI
1 Mb Video Card
100 Base TX PCI Ethernet Card (Twisted Pair-100Bt)
15" SVGA Monitor
Network Hubs with respective Ports for the total number of clients
2 - WAN Routers - T-1 Frame Relay or higher speed - 1 Licensee and 1
Licensor
Microsoft NT Server V 4 or higher
Microsoft Backoffice
Crystal Reports Infoserver
RECOMMENDED MINIMUM SYSTEM CONFIGURATIONS FOR QMACS(TM) SOFTWARE
(See Also Recommended Hardware Specification below)
PROVIDER, MEMBER SERVICES STAFF RUNNING PRIMARILY QMACS(TM) :
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Work Station Configuration
Pentium 166 Mhz or higher Computer - PCI Bus
64 MB RAM
1.2 GB Hard Disk Drive
3.5 in Floppy Drive-(Optional)
PCI Video
15" SVGA Monitor
10/100 MB Ethernet Network Card
Windows NT Workstation V 4.0 or higher
Windows Back Office V2.5 or higher Client License
CLAIMS ENTRY, ADJUDICATION, , PRIOR AUTHORIZATIONS, PAYMENT, DEPT. HEADS,
DIRECTORS RUNNING PRIMARILY QMACS(TM):
Work Station Configuration
Pentium 200 Mhz or higher Computer - PCI Bus
64 Mb RAM
2.0 GB Hard Disk Drive
3.5 in Floppy Drive
PCI Video
15" SVGA Monitor
10/100 Mb Ethernet Network Card
Windows NT Workstation 4.0
Windows Back Office Client License
FINANCIAL ANALYSTS, REPORTING, RUNNING PRIMARILY QMACS(TM):
Work Station Configuration
Pentium II 233 Mhz or higher Computer - PCI Bus
64 Mb SDRAM
3.0 GB Hard Disk Drive (Ultra DMA/33)
3.5 in Floppy Drive
PCI or AGP Video
17" SVGA Monitor
10/100 Mb Ethernet Network Card
Windows NT Workstation V 4.0 or higher
Windows Back Office Client License
CLERICAL STAFF RUNNING PRIMARILY E-MAIL AND MS OFFICE:
Work Station Configuration
Pentium 166 Mhz or Higher Computer - PCI Bus
48 MB RAM
2.0 GB Hard Disk Drive
3.5 in Floppy Drive
PCI Video
15" SVGA Monitor
10/100 MB Ethernet Network Card
Windows NT Workstation V 4.0 or higher
Windows Back Office Client License
HARDWARE RECOMMENDATIONS FOR CLIENT WORKSTATION.
MOTHERBOARD
Pentium Motherboards Must have Intel 82430TX or 82430HX PCISet (PCI Chip Set)
Pentium Pro Motherboards Must have Intel 82440FX or 82450 PCISet (PCI Chip Set)
Pentium II Motherboards Must have Intel 440LX AGPSet (PCI Chip Set)
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Preferably Expandable to 128 MB of Memory
Capable of using EDO Memory or SDRAM Memory
Capable of using Pipeline Burst L2 Cache RAM
Minimum of 3 PCI Slots
Motherboard MUST use INTEL Pentium, Pentium II, or Pentium Pro Processor
Two serial and one parallel port
All Extra Features MUST be Windows NT 4.0 compatible
VIDEO CARD
Must use a Windows Video Accelerator that has available drivers for Windows NT
4.0
Must have a least 1-MB of DRAM, VRAM, or EDO RAM expandable to at least 2 MB
Must be a PCI Card (or use the PCI Interface if built into the motherboard) or
AGP
Must support the following resolutions
640 x 480 256 Colors 72 Hz Refresh
800 x 600 256 Colors 72 Hz Refresh
1024 x 768 256 Colors 72 Hz Refresh
NETWORK
Ethernet Network Card with available Windows NT 4.0 Drivers
Bus Mastering PCI Card (or use the PCI Interface if built into the motherboard)
Must have an Unshielded Twisted Pair Connector. Must support 10 Base-T.
Preferably 10/100
Auto Sensing/Switching
Network cabling should be CAT-5 minimum depending on the hub.
HARD DISK AND CONTROLLER
Must have available drivers for Windows NT 4.0
Hard Disk should have a Seek Time of 10 ms or better and a Data Transfer Rate
Higher than 10 MB/s
Hard Disk should be branded Fast-ATA2, EIDE, Ultra DMA/33, Fast SCSI II, Fast
Wide SCSI II, or Ultra SCSI
Controller must be a PCI Card (or use the PCI Interface if built into the
motherboard)
3 -1/2 inch floppy drive
MONITOR
Minimum of 15 Inch Color Display, optionally 17 Inch Color Display
Maximum of .28 dot pitch (grille aperture) or lower
Must support and resolve 1024 x 768 resolution at 72 Hz Refresh
SYSTEM AMENITIES
CD Rom strongly recommended
PS/2 keyboard and mouse connectors recommended
OPTIONAL CLIENT SOFTWARE:
Crystal Reports V6.0 or higher - Report Writing Tool
MS Office Professional v7.0 or higher - Office Productivity Tools- Word, Excel,
Powerpoint
Microsoft Net Meeting V 2.1 or higher or PC Anywhere32 V8.0 - Remote Computing
Tool
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EXHIBIT E
LOCATION AND NOTICES:
Location for Licensee's Initial Installation of QMACS(TM) software and Approved
Hardware(s) will be listed below. The Parties agree that Licensee anticipates a
move to a new location and the new location will be substituted and covered
under this Agreement. Licensee will provide sixty (60) days prior written notice
to Licensor.
Any notices required or permitted hereunder shall be sufficiently given if sent
by registered or certified mail, postage prepaid, addressed or delivered as
follows:
NOTICES:
A. TO LICENSOR: Quality Care Solutions, Inc.
5030 E. Sunrise Drive
Phoenix, AZ 85044
Attention: Mr. A. Bruce Oliver
B. TO LICENSEE: Delta Dental of Missouri
8390 Delmar Boulevard
St. Louis, MO 63124
Attention: Mr. Steve P. Gaal III
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EXHIBIT F
STANDARD SUPPORT AND RELEASE POLICY
1. Released software will only be modified to handle problem fixes, not
enhancements.
2. Problems will be classified as: critical, severe or minor.
A critical problem is a problem (Material Non-Conformity) that
prevents a major function from working or causes data integrity
issues or any operation of the Software which causes material
erroneous data or unrecoverable data loss due to the execution of
the Software's Applications. A critical with workaround problem is
a problem (Material Non-Conformity) that is not working according
to specifications or documentation for which a work around has
been developed to prevent disruption of operations.
A severe problem is a problem that prevents a non-major function
from working and for which there is no workaround.
A minor problem is a problem that is an annoyance but does not
prevent a non-major function from working or there is a
workaround.
a) Example of a critical problem: Cannot adjudicate any claim,
cannot add or modify a provider, can't add or modify an
enrollment, etc.
b) Example of a severe problem: Cannot add a new licensing
board to the credentialing module.
c) Example of a minor problem: Authorization history does not
refresh when a new authorization is issued.
3. Every attempt will be made to turn around critical problem fixes
within two (2) working days of duplication. Every attempt will be made
to turn around critical workaround problems for which there is a
workaround and does not cause stoppage of operations within eight (8)
working days.
4. Severe problem fixes will be supplied within 30 working days.
5. Minor problem fixes will be released at the next major release.
6. Licensor's Customer service representative will be responsible for
clearly distinguishing between a problem fix and an enhancement to the
Licensee.
7. Enhancements require scheduling for design, development, testing,
documentation, release notes and training before they can be released
into a production environment for Licensee use.
8. Software released before testing, documentation, release notes and
training phases are complete is classified as 'beta test' software.
Beta test software will require beta test agreements to be signed and
approved by Licensee before the beta test software will be released for
use by the Licensee.
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9. All Software released for use or testing by Licensee shall be placed
in an agreed upon location on the Licensee's application server for
appropriate disposition by Licensee.
10. The use and maintenance of an application test environment shall be
the sole responsibility of the Licensee.
11. Licensee shall be responsible to insure that all Licensees' users
are using the latest released version of the Software before reporting
problems to Licensor.
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EXHIBIT G
QMACS(TM) STANDARD IMPLEMENTATION PLAN
Licensor shall be responsible for the initial Installation of QMACS(TM) Software
and database software on the Approved Data Server and made operational on the
Approved Data Server at one Licensee location only. Licensee shall cooperate
fully with Licensor in such Installation and Implementation. The Implementation
shall proceed in accordance with a mutually acceptable Implementation schedule.
Licensor shall provide consulting support for the configuration of the operating
system and database initialization. Licensee acknowledges responsibility for all
third-party software procurement, licensing and Implementation. Consulting
services requested or required in addition to Standard Implementation Plan
services may only be charged for upon written mutual agreement of both parties
for such additional services.
Licensee and Licensor agree Licensor will highlight and discuss with Licensee
any functional area or business process that cannot be accomplished in the
QMACS(TM) Software during the needs analysis section of the Implementation
phase. Licensor will document and present to Licensee options or alternative
workarounds for those functional exceptions that cannot be accomplished without
modification to the QMACS(TM) Software. Licensor will present a Business Process
Improvement (BPI) document to the Licensee detailing the modification
specification, cost and timeframe to develop proposed Enhancement to the
QMACS(TM) Software needed to accomplish the exception.
Both parties have agreed to the following Standard Implementation Plan and each
party will be responsible for performing their respective duties as assigned
under the Standard Implementation Plan. Licensee and Licensor agree that any
changes or waivers to the Standard Implementation Plan will be in writing and
agreed to before the change-taking place.
The Standard Implementation Plan consists of the following seven (7) phases and
a maximum of [****] of work effort. The Implementation fee as defined in Exhibit
C section 1.1. for this Standard Implementation Plan is for the Implementation
of one line of business. It is agreed, the work effort allocation for each phase
may be adjusted at the discretion of the Licensor after the assessment phase.
The following phases will be conducted in parallel.
PLAN PHASE WORK EFFORT IN DAYS WORK EFFORT IN PERSON HOURS
---------- ------------------- ---------------------------
ASSESSMENT/PROJECT PLAN [****] [****]
CONFIGURATION/CONNECTIVITY [****] [****]
DATA LOAD/SET-UP [****] [****]
ACCEPTANCE/VALIDATION [****] [****]
NEEDS ANALYSIS [****] [****]
TRAINING [****] [****]
TRANSITION SUPPORT [****] [****]
Total [****] [****]
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EXHIBIT H
LISTING OF QMACS(TM) STANDARD REPORTS
REPORT CATEGORY REPORT NAME
Active Enrollments Enrollment Count by Program by Age Group
Member Months by County By Program By Rate Code
Members with Active, Unrestricted Medical Enrollments
Adjudication Claim Lines Denied During Adjudication
Claims that Failed for Pay-to / Contract Issues
Claims that Failed Mass Adjudication
Audit Inactive Providers Listing by Type of Provider
Members Assigned to a Termed PCP
Members with Duplicate SSN's
Members with no Head Of Household
Overlapping PCP Assignments
Provider Affiliation Error Listing
Providers without a Contract
Providers without a Specialty
Suspect Duplicate Members
Unassigned PCP Enrollment Roster
Capitation Services Capitation Summary Counts by Date by Provider
Provider Capitation Roster
Claim Processing Claim Detail with Member Totals
Claims Aging Report By Program By Member
Claims in a PAY Status by Provider
Claims In-Process Over 90 Days
Paid Claims By Dos By Provider
Pended Claims Report
Provider Aged Claims Report
Provider Claims Detail Report for Claims In Process
Provider Claims Report for Claims In Process
Provider Claims Summary for Claims Not in a Pay Status
Temporary Provider Listing with Claims Outstanding
Daily Claims Production Report
Summary of Claims Entered by User Initials by Date
Weekly Claims Production Report
Contract Services Benefit Plan List
Benefit Plans by Organization
Category of Expense Mapping
Contract and Terms Setup
Group Codes
Financial Reports Check Register Ordered by Date
Incurred But Not Reported
Received Date to Paid Date Lag Report, Count and Amt.
(C) Quality Care Solutions, Inc. -1998 Page 47 of 49
This document is Company Confidential - Reproduction is prohibited.
04/28/98
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REPORT CATEGORY REPORT NAME
Letters Prior Authorization Approval Letter
Prior Authorization Denial Letter
Medical Management Daily Inpatient Census By Facility By Pay-To
Daily Shared Risk Census By Facility By Pay-To
Emergency Room Census
Emergency Room Pay To by Facility
EPSDT Labels
Immunization Report for Procedure Codes 90701 - 90748
Referral Summary With Cost Estimates
Referrals Assigned to Temp Providers with Incomplete Status
Referrals Issued by Week by User
Termed Members With Open Authorizations
Well Baby Immunization Report
Member Month Reporting Emergency Room per 1000 Report
Inpatient Per 1000 Report
Member Services Active Member List by Zip Code
Enrollment Count Report
Member Labels by Member Name
Member Labels By Member Name tied to a PCP
Member Labels By Zip By Member Name
Member Labels By Zip By Member Name tied to a PCP
Temporary Member List
Policies Active Policy Review Report
Provider Services Provider Affiliation Count by Program
Provider Detail List by Program
Provider Listing with Payment Information
Temporary Provider Listing
Remits Claim Detail Report for Balancing Remits
Provider Remittance Advice by Fund
Provider Remittance Advice By Payee
Rosters Affiliate Roster
Pcp Roster
Year End - 1099 1099 Affiliate Report
1099 Audit Report
1099 Duplicate Federal Tax ID Report
1099 Payment Detail Report
1099 Payment Summary Report
(C) Quality Care Solutions, Inc. -1998 Page 48 of 49
This document is Company Confidential - Reproduction is prohibited.
04/28/98
49
TRADE SECRET AND COPYRIGHT NOTICE
Any plans, prices, configurations, specifications, techniques, algorithms,
schemas, screen prints and processes contained herein, or any modification,
extraction, or extrapolations thereof, are the property and trade secrets of
Quality Care Solutions, Inc.
The copyright notice does not imply unrestricted or public access. No
duplication, usage, disclosure, or publication thereof, in whole or in part, for
any purpose is permitted, except that which is expressly permitted by License
Agreement or other written permission of Quality Care Solutions, Inc.
Quality Managed Care Solutions(TM) and QMACS(TM) are trademarks of Quality Care
Solutions, Inc. Microsoft Windows(R) NT(TM), Exchange(TM), Backoffice(TM) ,
Visual Basic, Visual C++(TM), Office97(TM) SQL Server(TM) are trademarks of
Microsoft Corporation. AlphaServer(TM) is a trademark of Digital Equipment
Corporation. Pentium and Pentium Pro are trademarks of Intel Corporation.
Crystal Reports and Crystal Infoserver are trademarks of Seagate Technologies
Inc.
All other company, brand, and/or product names that appear in this document are
trademarks or registered trademarks of their respective owners.
(C) Quality Care Solutions, Inc. -1998 Page 49 of 49
This document is Company Confidential - Reproduction is prohibited.
04/28/98