PROCEDURES IN
WHICH INJUNCTIVE OR EQUITABLE RELIEF IS SOUGHT.
13.3.
CUSTOMIZATIONS AND ENHANCEMENTS MEANS ANY
CUSTOMIZATION OR ENHANCEMENT OR OTHER DERIVATIVE WORK MADE TO THE MEDECISION
PRODUCTS UNDER A STATEMENT OF WORK OR OTHERWISE PURSUANT TO THE MSA (I.E., THE
CREATION OF OR MODIFICATION TO ANY MEDECISION PRODUCT SOURCE CODE, SOURCE HELP
FILES AND/OR SOURCE CLINICAL CONTENT).
CUSTOMIZATIONS AND ENHANCEMENTS INCLUDE
ALL PRIOR CUSTOMIZATIONS.
13.4.
DOCUMENTATION MEANS THE USER MANUALS AND OPERATIONS
MANUALS THAT ACCOMPANY A PRODUCT, AS WELL AS UPDATES OF SUCH MANUALS, INCLUDING
IN ELECTRONIC FORMAT AND OTHER DOCUMENTS PUBLISHED BY MEDECISION PERTAINING TO
THE CURRENT VERSIONS OF THE PRODUCTS OR PORTIONS THEREOF (INCLUDING SALES
LITERATURE), AS SUCH PUBLISHED DOCUMENTS MAY BE UPDATED FROM TIME TO TIME;
PROVIDED THAT IN NO EVENT WILL DOCUMENTATION INCLUDE ANY DESCRIPTIONS OF PRODUCT
PLANS, FUTURE VERSIONS OF PRODUCTS, PRODUCTS NOT YET RELEASED, FUTURE COMPANY
PLANS AND FUTURE INDUSTRY DIRECTIONS.
13.5.
ERROR MEANS A FAILURE OF THE PRODUCTS TO SUBSTANTIALLY
CONFORM IN ALL MATERIAL RESPECTS WITH THE APPLICABLE DOCUMENTATION AND A FAILURE
OF THE CUSTOMIZATIONS TO SUBSTANTIALLY CONFORM IN ALL MATERIAL RESPECTS WITH THE
SPECIFICATIONS.
13.6.
EXPENSE MEANS ANY AND ALL COSTS, EXPENSES, AND FEES,
INCLUDING COSTS OF SETTLEMENT, ATTORNEYS' FEES, ACCOUNTING FEES, AND EXPERT
COSTS AND FEES INCURRED OR REASONABLY LIKELY TO BE INCURRED IN CONNECTION WITH
CLAIMS WHICH ARE THE SUBJECT OF INDEMNIFICATION UNDER THIS AGREEMENT OR LOSSES
OR JUDGMENTS ARISING FROM SUCH CLAIMS.
13.7.
HARDWARE MEANS EQUIPMENT, HARDWARE CONFIGURATION,
AUDIT CONTROLS, BACK-UP PLANS, NETWORK MANAGEMENT AND OPERATING METHODS
NECESSARY TO INSTALL AND USE THE PRODUCTS.
13.8.
HIPAA MEANS THE HEALTH INSURANCE PORTABILITY AND
ACCOUNTABILITY ACT OF 1996.
13.9.
JUDGMENT MEANS ANY JUDGMENT, WRIT, ORDER, INJUNCTION,
AWARD OR DECREE OF OR BY ANY COURT, JUDGMENT, JUSTICE OR MAGISTRATE, INCLUDING
ANY BANKRUPTCY COURT OR JUDGE AND ANY ORDER OF OR BY ANY GOVERNMENTAL AUTHORITY.
13.10.
LOSS MEANS AND INCLUDES ANY LOSS, ASSESSMENT, FINE, PENALTY,
DEFICIENCY, INTEREST, PAYMENT, EXPENSE (INCLUDING LEGAL FEES), COST, DEBT,
INDEBTEDNESS, LIABILITY, LIEN, JUDGMENT OR DAMAGES WHICH IS SUSTAINED, INCURRED
OR ACCRUED.
13.11.
MEDECISION COMPETITOR MEANS AN ENTITY THAT IS A COMPETITOR
OF MEDECISION AS LISTED IN APPENDIX C, AS SUCH LIST MAY BE AMENDED FROM TIME TO
TIME BY MEDECISION AND UPON APPROVAL OF SUCH AMENDMENT BY CUSTOMER, SUCH
APPROVAL TO NOT BE UNREASONABLY WITHHELD.
13.12.
MEDECISION PRODUCT MEANS A MEDECISION PRODUCT IDENTIFIED ON
A SCHEDULE ENTERED INTO BY THE PARTIES DURING THE TERM OF THIS AGREEMENT,
INCLUDING ALL ASSOCIATED DOCUMENTATION.
13.13.
MEMBERS/LIVES MEANS PRIMARY MEMBERS, SUBSCRIBERS OR ELIGIBLE
DEPENDENTS COVERED UNDER (I) CUSTOMER'S OR ITS AFFILIATES' MEDICAL PLAN(S) IN
WHICH MEDECISION'S PRODUCTS(S) IS BEING UTILIZED TO
10
PROCESS SUCH MEMBERS', SUBSCRIBERS' OR ELIGIBLE DEPENDENTS' DATA OR (II) A THIRD
PARTY MEDICAL PLAN, BUT FOR WHOM CUSTOMER PROVIDES SERVICES AND IN WHICH
MEDECISION'S PRODUCT(S) IS BEING UTILIZED TO PROCESS SUCH MEMBERS', SUBSCRIBERS'
OR ELIGIBLE DEPENDENTS' DATA.
13.14.
OUTSOURCER MEANS A THIRD PARTY THAT HAS ENTERED INTO AN
AGREEMENT WITH CUSTOMER FOR THE PROVISION OF INFORMATION TECHNOLOGY, DATA
PROCESSING AND/OR OTHER RELATED SERVICES.
13.15.
PACIFICARE COMPETITOR MEANS AN