Exhibit 10.1
MASTER SERVICES AGREEMENT
This Master Services Agreement, by and between Elevance Health, Inc., an Indiana corporation (“Elevance Health”), and American Well Corporation, a Delaware corporation (“Supplier”), is entered into as of January 1, 2023 (the “Effective Date”).
In consideration of the covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to the terms and conditions contained in this Agreement.
Definitions. Capitalized terms used herein shall have the meanings ascribed to them in the body of this Agreement and/or in the Exhibits and other documents attached hereto, or as defined below. Terms other than those defined herein shall be given their plain English meaning-and terms of art having specialized meanings in Supplier’s industry shall be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and vice-versa.
1.1 “Affiliate” means any entity controlling or controlled by or under common control with a Party, at the time of execution of the Agreement and any time thereafter, where “control” is defined as (a) the ownership of at least fifty percent (50%) of the equity or beneficial interest of such entity, or (b) any other entity with respect to which such Party has significant management or operational responsibility (even though such Party may own less than fifty percent (50%) of the equity of such entity). .
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Supplier Relations Webpage: https://www.Elevance Healthinc.com/Suppliers/index.htm
(a) Supplier Code of Conduct
(c) Procurement Process Technology and Electronic Signatures
(d) Requirements for Onsite Personnel
(e) Exhibit A: Required Information Security Controls
(f) Exhibit B: Business Associate Agreement (“BAA”)
(g) Exhibit C: Federal Government Services Addendum for Commercial Items
(h) Exhibit D: Medicare Advantage and Medicare Part D Regulatory Exhibit)
(i) Exhibit E: State Medicaid Attachments
(j) Exhibit F: Diversity Supplier Compliance Exhibit
(k) Exhibit G: Qualified Health Plan Regulatory Exhibit
General. Supplier shall invoice Elevance Health for all Fees and, if applicable, Expenses via the Anthem Invoice online tool in accordance with the then current requirements at Anthem, Inc. Policies and Procedures (https://www.antheminc.com/cs/groups/wellpoint/@wp_suppliers/documents/wlp_assets/d19l/mji2/~edisp/pw_e226861.pdf)
and as stated in the Procurement Process Technology and Electronic Signatures provisions therein. Supplier shall not charge Elevance Health for researching, reporting or correcting errors related to invoices. The invoice date shall not be earlier than the date on which Supplier is entitled to payment under the applicable SOW, or if not specified in the SOW, invoices may be issued monthly in arrears. Unless otherwise specified in a SOW, rates under a SOW or rate card Exhibit attached to this Agreement shall be fixed for the greater
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of the term outlined in the SOW in question. Thereafter, unless otherwise agreed by the Parties, such rates shall not increase more often than annually and such increases shall not exceed the lesser of (i) the Consumer Price Index for All Urban Consumers (CPI-U): U. S. city average or (ii) three percent (3%) above the immediate prior rate. Supplier shall give Elevance Health at least sixty (60) days prior written notice of any increase in rate. Each such invoice shall contain sufficient detail to allow Elevance Health to identify all Services rendered.
Billing Audits. Supplier shall maintain complete, accurate and detailed records regarding all amounts charged to Elevance Health under this Agreement. Supplier shall retain such records consistent with the Record Retention obligations in Section 3.5.1, but for no less than three (3) years from date of the invoice for such amount charged. On an annual basis, Supplier shall allow Elevance Health and/or its authorized representatives to inspect and conduct on site audits on such records during normal business hours upon 30 business days’ written notice and for a maximum of one business day. Supplier will make records available for review electronically upon request and with 30 days written notice. If discrepancies or questions arise with respect to such records, Supplier shall preserve such records until an agreement is reached with Elevance Health regarding their disposition. Except as set forth in the last sentence of this Section, each Party shall bear its own expenses in conducting the audit and responding to information requests and Supplier shall not pass on such costs (including employee time, overhead, research, copying charges, professional fees, etc.) to Elevance Health. If an audit reveals that Supplier overcharged Elevance Health for any fees, expenses or any other charges under this Agreement for any logically or readily identifiable component of a Service or chargeable material (as examples for illustrative purposes only: such as a greater than an agreed upon hourly rate for one or more personnel providing services, billing in excess of actual hours worked, miscalculation of actual amount of chargeable of supplies consumed, etc.), Supplier shall promptly reimburse Elevance Health in full for such overcharge(s).
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(a) Acceptance. Unless otherwise specified in a SOW, Elevance Health shall have ten (10) calendar days from the completion of each phase or milestone to test the Services relating thereto in order to determine whether such Services meet the standards and/or accomplish the objectives or other criteria for such Services as established in the applicable SOW (“Services Preliminary Acceptance Period”). If Elevance Health gives notice of non-Acceptance, (i) Elevance Health shall describe the reasons for non-Acceptance to Supplier in reasonable detail; (ii) Supplier shall have ten (10) calendar days to re-perform the deficient Services at no cost to Elevance Health, until the applicable standards, objectives, milestones and/or other criteria set forth in the SOW are met; and (iii) a ten (10) calendar day re-testing preliminary acceptance period shall begin.
(b) Intentionally left blank.
(a) Preliminary Acceptance. Unless otherwise specified in the applicable SOW, Elevance Health shall have ten (10) calendar days after receipt to review each Review Deliverable or twenty (20) calendar days to test each Test Deliverable (or portions thereof if such Deliverable is to be delivered in portions as set forth in the applicable SOW) to determine whether it meets the Specifications (the “Preliminary Acceptance Period”). This Preliminary Acceptance Period shall not begin until the Documentation has been delivered to Elevance Health and the Deliverables are fully installed and operational as determined by the Parties. If Elevance Health gives notice of non-Acceptance, (i) Elevance Health shall describe the reasons for non-Acceptance to Supplier in reasonable detail; (ii) Supplier shall have five (5) calendar days to correct the Deliverable at no cost to Elevance Health; and (iii) the Preliminary Acceptance Period shall begin again.
(b) Final Acceptance; Multi-Phase Projects. Upon final delivery of all related Deliverables, (including upon completion of an intermediate phase of a project or entire project, as specified in a SOW), Elevance Health shall have ten (10) calendar days after receipt to review the Review Deliverables or thirty (30) calendar days to test the Test Deliverables to determine whether they meet the Specifications (the “Deliverables Final Acceptance Period”), unless a different time frame is specified in
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a SOW. This Deliverables Final Acceptance Period shall not begin until the Documentation has been delivered to Elevance Health and the Deliverables are fully installed and operational as determined by the Parties. If Elevance Health gives notice of non-Acceptance, (i) Elevance Health shall describe the reasons for non-Acceptance to Supplier in reasonable detail; (ii) Supplier shall have fourteen (14) calendar days to correct the Deliverables at no cost to Elevance Health; and (iii) the Deliverables Final Acceptance Period shall begin again. In the event Supplier fails to modify a rejected Deliverable to conform to the Specifications contained in the applicable SOW, as determined in Elevance Health’s reasonable discretion, Elevance Health may terminate the applicable SOW immediately and receive from Supplier a refund of: (i) the fees previously paid to Supplier for the rejected Deliverable; and (ii) the fees previously paid for all other Deliverables which are materially affected by such non-conformity. If Deliverables are deemed unacceptable and the Parties fail to resolve the matter to their reasonable satisfaction, then either Party may submit the matter for dispute resolution pursuant to the procedures provided for in Article 16 (Dispute Resolution). If the Parties intend that all Services and/or Deliverables performed and provided in multiple phases under a SOW are to be subject to final Acceptance testing under this paragraph, because such interim phases culminate in an integrated deployment or other solution, notwithstanding any preliminary acceptance that may have been determined during an intermediate phase of the project, then the Parties shall so explicitly provide in the SOW. To the extent a project involves Deliverables integrated with Services, then the foregoing testing, rejection and refund procedures and remedies shall include all related Services.
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Supplier further agrees, at no additional cost, to execute, or cause to be executed by its employees, agents, or subcontractors, standard assignments of IP rights and ancillary and confirmatory documents that may be reasonably required or appropriate so that title to any Deliverable or Custom IP shall be clearly and exclusively held by Elevance Health or any nominee thereof.
To the extent that any Deliverable or Custom IP or IP rights therein are not assignable or that, notwithstanding Section 8.2 (Confirmation of Elevance Health’s Ownership of Custom IP), Supplier for any reason retains any right, title, or interest therein, Supplier (i) unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Elevance Health or its Affiliates with respect to such rights, (ii) agrees, at Elevance Health’s request and expense, to consent to and join in any action to enforce such rights, and (iii) hereby grants to Elevance Health and its Affiliates a perpetual, irrevocable, fully paid-up, royalty-free, transferable, sublicensable (through multiple levels of sublicensees), exclusive, worldwide right and license under its IP rights to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Elevance Health or its Affiliates) all or any portion of such Deliverable or Custom IP. The license granted herein shall commence on the Effective Date, and notwithstanding anything to the contrary contained in this Agreement, shall continue in perpetuity and without regard to the Term of this Agreement. Supplier hereby waives and quitclaims to Elevance Health and its Affiliates any and all claims, of any nature whatsoever, which Supplier now or may hereafter have for infringement of any Deliverable, Custom IP or IP rights therein assigned hereunder to Elevance Health.
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Supplier shall identify all Supplier IP to be incorporated into the Deliverables, if any, in each applicable Statement of Work. Subject to compliance with the terms and conditions of this Agreement, Supplier hereby grants to Elevance Health and its Affiliates a perpetual, irrevocable, fully paid-up, royalty free, transferable, sublicensable (through multiple levels of sublicensees), worldwide, non-exclusive right and license under its IP rights, to use, reproduce, distribute, display and perform (whether publicly or otherwise), make, import and otherwise use and exploit (and have others exercise such rights on behalf of Elevance Health or its Affiliates) the Supplier IP solely as incorporated into the Deliverables, for use in connection with the Deliverable in Elevance Health’s business or the business of any Elevance Health Affiliate (including its distribution of products or provision of services to third-parties). The license granted herein shall commence on the Effective Date and, notwithstanding anything to the contrary contained in this Agreement, shall continue in perpetuity and without regard to the Term of this Agreement.
Except as may otherwise be provided in a Statement of Work, Supplier shall only use the Elevance Health IP in the form provided by Elevance Health and solely in connection with this Agreement. Subject to Section 17.2 below, Elevance Health hereby grants to Supplier, solely for the performance of the Services and creation of the Deliverables a non-exclusive, non-transferable, non-sublicensable right to access, operate and use the Elevance Health IP. Upon expiration or termination of this Agreement for any reason, (i) the rights granted to Supplier, its agents and subcontractors, in this Section shall immediately revert to Elevance Health, and (ii) Supplier shall (a) deliver to Elevance Health, at no cost to Elevance Health, a current copy of all of the Elevance Health IP in the form in use as of the date of such expiration or termination, and (b) immediately cease use of, and completely destroy or erase all other copies of the Elevance Health IP in Supplier’s or its agents' or subcontractors' possession in any form, including electronic, hard copy, or other memory device, and at Elevance Health’s request, have its officers certify in writing that it has so ceased use of, destroyed or erased all copies of the Elevance Health IP and that it shall not make any further use of the Elevance Health IP.
Supplier shall not incorporate Third-Party IP in any Deliverable without obtaining Elevance Health’s prior written consent. To the extent any Third-Party IP is required to be so incorporated, Supplier shall identify all Third-Party IP embedded in Deliverables, if any, in each applicable Statement of Work. Such identification shall include, at a minimum, the following information: (i) the nature of the Third-Party IP; (ii) the owner of the Third-Party IP; (iii) Supplier’s authority to include the Third-Party IP in the Deliverables; and (iv) any restrictions or royalty terms applicable to the incorporation of the Third-Party IP in the Deliverables. All software a Party licenses from a third-party vendor will be and remain the property of such third-party or such third-party's licensors. If Elevance Health provides Supplier with access to or use of Third-Party IP licensed by Elevance Health from third-parties, Supplier shall be responsible for (a) complying with all applicable obligations under any third-party license agreements, and (b) treating all such Third-Party IP as Confidential Information of Elevance Health. Unless provided otherwise in a Statement of Work, Supplier shall obtain, at Supplier’s sole cost and expense, an irrevocable, fully paid-up, royalty-free, perpetual, worldwide, non-exclusive license for Elevance Health and Elevance Health’s agents and assigns, to use the Third-Party IP incorporated into the Deliverables. “Open Source Software (OSS)” means any software, programming or other IP that (a) contains or is derived in any manner (in whole or in part) from any software that is distributed as free software, open source software, shareware or under similar
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licensing or distribution models; and (b) is subject to any agreement with terms requiring that such IP be (i) disclosed or distributed in source code or object code form; (ii) licensed for the purpose of making derivative works; and/or (iii) freely redistributable without payment of compensation. OSS includes but is not limited to software licensed or distributed under any of the following licenses or distribution models: the GNU General Public License (GPL), Lesser General Public License (LGPL), Affero General Public License (AGPL), Apache License 2.0, BSD License, MIT License, Mozilla Public License 2.0, Eclipse Public License, Community Server License, Server Side Public License (SSPL) or any similar license. Supplier will not incorporate, integrate or bundle Open Source Software in or with any Deliverable, without Elevance Health’s prior written consent, and to the extent that Supplier uses Open Source Software in creating Deliverables, it shall ensure that such use does not grant, or purport to grant, to any third-party any IP rights in the Deliverables, and does not cause a Deliverable, or any part thereof to become subject to the terms of such Open Source software license.
Except as provided herein, each Party (and each Elevance Health Affiliate) reserves all rights in the Services, the Documentation, and all IP or any other rights in the foregoing, including but not limited to any and all modifications and derivative works. No implied licenses are granted. Nothing contained herein shall be construed as granting the other Party any ownership interest in its IP. Each Party shall endeavor to include, maintain, reproduce and perpetuate all notices or markings on all copies of all tangible media comprising each Party's IP or Confidential Information in the manner in which such notices or markings appear on such tangible media. Nothing in this Agreement waives or limits extra-contractual rights or remedies available to Elevance Health or its Affiliates to protect IP rights afforded Elevance Health under the law of any jurisdiction, including trademarks and service marks.
Supplier hereby forever waives and agrees never to assert against Elevance Health, its Affiliates, their successors, or licensees any and all moral rights Supplier may have in the Custom IP, and any elements thereof, and any results or proceeds therefrom, even after expiration or termination of this Agreement, to the extent permitted by applicable law.
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(b) Elevance Health’s Indemnities. Elevance Health shall indemnify, defend and hold harmless Supplier and its successors and permitted assigns (and its and their respective officers, directors, employees,) from and against any third party claims, based upon (i) Elevance Health’s failure to perform or negligent performance of its obligations under this Agreement, and/or (ii) Elevance Health’s violation of any law, statute, ordinance, order, standard of care, rule or regulation and/or (iii) Elevance Health’s breach of any promise, agreement or representation made in this Agreement. This indemnification by Elevance Health shall survive the termination of this Agreement.
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Supplier shall remain primarily liable for the performance of all subcontracted obligations and Supplier shall promptly pay for all Services, materials, equipment and labor used by Supplier. Regardless of any subcontract, Supplier shall remain Elevance Health’s sole point of contact under this Agreement.
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For Elevance Health:
Elevance Health, Inc.
220 Virginia Avenue
Indianapolis, IN 46204
Attention: General Counsel
With a mandatory copy to:
Elevance Health, Inc.
220 Virginia Avenue
Indianapolis, IN 46204
Attention: Procurement - Contract Administration
Email: ProcurementContract@Elevance Health.com
For Supplier:
Please provide the following and then delete this list
American Well Corporation
75 State Street, Boston, MA 02109
617-204-3500
Attn: General Counsel
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legal@amwell.com
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have read, understood and executed this Agreement and agree to be bound by its provisions as of the Effective Date.
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American Well Corporation |
| Elevance Health, Inc. |
Supplier |
| Elevance Health |
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By: /s/ Brad Gay |
| By: /s/Jim Ardell |
Signature |
| Signature |
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Bradford Gay |
| Jim Ardell |
Printed Name |
| Printed Name |
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General Counsel |
| VP, Corporate Services |
Title |
| Title |
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November 17, 2022 |
| November 28, 2022 |
Date |
| Date |
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