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EXHIBIT 10.14
INTERQUAL(R)
SUBLICENSOR AGREEMENT
by and between
INTERQUAL(R), INCORPORATED
and
XXXXX MANAGEMENT SYSTEMS,
INCORPORATED
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CRITERIA SUBLICENSOR AGREEMENT
THIS SUBLICENSOR AGREEMENT is made and entered into as of the Effective
Date set forth on the signature page by and between INTERQUAL, INCORPORATED, a
Delaware corporation ("InterQual"), and the person or entity whose name is
listed under the heading "Sublicensor" on the signature page of this Agreement
("Sublicensor").
WHEREAS, InterQual owns, develops and licenses medical review criteria
and Sublicensor owns, develops and licenses computer applications software; and
WHEREAS, InterQual desires Sublicensor to market certain of its medical
review criteria and incorporate it into the Sublicensor's computer applications
software, and Sublicensor desires to market such medical review criteria, in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Preamble and Recitals. The preambles and recitals set forth above are
hereby incorporated and made a part of this Agreement.
2. Definitions.
2.1 Marks. "Marks" means all trade names, commercial symbols, trademarks
and service marks of InterQual, whether presently existing or later
established by InterQual, as set forth in Exhibit 2.1.
2.2 Criteria. "Criteria" means the medical review criteria owned or
later developed by InterQual and incorporated into the Software, as set
forth in Exhibit 2.2.
2.3 Criteria Manuals. "Criteria Manuals" means the medical review
criteria owned by InterQual contained in hard copy book format.
2.4 Software. "Software" means any or all of the computer software
presently owned or later developed by Sublicensor which incorporates the
Criteria.
2.5 Client. "Client" means a hospital or medical review organization
which has entered into or, during the term of this Agreement, shall
enter into an InterQual Sublicense Agreement with Sublicensor for use of
the Software.
2.6 Sublicensee. "Sublicensee" means any Client who has entered into an
InterQual Sublicense Agreement with Sublicensor for use of the Criteria
as incorporated into the Software ("InterQual Sublicense Agreement").
2.7 Criteria Updates. "Criteria Updates" means additions or deletions
for realizing operational efficiency or clinical clarity. Criteria
updates do not include Criteria modules that provide new functionality
for review of types of care not addressed by the Criteria.
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2.8 Modifications. "Modifications" mean client initiated changes to the
Criteria.
3. License
Grant of License to Use Criteria and to Use Marks. InterQual hereby
grants to Sublicensor a nontransferable, nonexclusive license to
incorporate the Criteria into the Software, and to use the Marks solely
for the purposes of demonstrating and identifying InterQual as the
creator and owner of the Criteria as incorporated into (i) the Software;
and (ii) promotional, advertising and operational materials of
Sublicensor relating to the incorporation of the Criteria into the
Software (collectively the "License").
4. Sublicensor Obligations.
4.1 Technical Assistance. Sublicensor, at its sole cost and expense,
shall provide Sub-Licensee with technical assistance as required for the
installation of the Software.
4.2 Referrals to InterQual. In conjunction with the grant of the License
pursuant to Section 3, Sublicensor shall refer all inquiries by Clients
regarding the Criteria and Criteria Manuals to InterQual.
4.3 Display of Marks. Sublicensor shall include notice indicating
InterQual's proprietary interest in the Criteria, Criteria Manuals and
the Marks in such form as may be determined from time to time at
InterQual's sole discretion on all promotional, advertising and
operational materials, and the initial display screen of all Software.
4.4 Copy of Software. Sublicensor, at its sole cost and expense, shall
provide InterQual with one (1) copy of the Software and the applicable
manuals, updates, enhancements, improvements and other documentation
related thereto for the purposes of reference and research to aid
Sublicensees in use of the Criteria as incorporated in the Software.
Sublicensor shall provide InterQual with all updates, enhancements,
improvements and other documentation related to the Software, as
released, without any cost to InterQual.
4.5 Distribution of InterQual Sublicense Agreements. Sublicensor shall
provide an InterQual Sublicense Agreement to each Client who desires to
become a Sublicensee. The InterQual Sublicense Agreement shall be in the
form set forth in Exhibit 4.5 or such other form as may be prescribed by
InterQual from time to time in its sole discretion.
4.6 Criteria Updates. Sublicensor shall at its sole cost and expense (i)
incorporate into the Software and related documents, as applicable, all
Criteria Updates released by InterQual; and (ii) distribute such
Software containing the Criteria Updates to Sublicensees within ninety
(90) days after receipt of the Criteria Updates to the Criteria.
5. InterQual's Obligations.
5.1 Telephone-Technical Support. InterQual shall, provide Sublicensor
with up to eight (8) hours of telephone-technical support to assist
Sublicensor in incorporating the Criteria into the Software during the
Initial Term of this Agreement. Additional support by InterQual, whether
by telephone or on-site, shall be billed to Sublicensor at InterQual's
current fee schedule for such support.
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5.2 Copy of Criteria. InterQual shall provide Sublicensor with one (1)
copy of the Criteria and the applicable manuals related thereto for the
purposes set forth in Section 3.
5.3 Criteria Updates. During the term of this Agreement, InterQual shall
provide Sublicensor with all Criteria Updates as released.
6. Fees
6.1 Sublicensor Fee. The Sublicensor shall pay InterQual fees in
accordance with Exhibit 6.1("Sublicense Fee").
6.2 Access. Each party shall have access, upon reasonable notice and
during normal business hours, to inspect and copy all records of the
other party in connection with the Sublicense Fee and other fees set
forth in this Section 6 to verify the accuracy of such fees. Each party
shall continue to have access to such records in accordance with this
Section 6.2 for a period of one (1) year following the termination or
non-renewal of this Agreement, and/or during the term of any Sublicense
Agreement executed prior to such termination or non-renewal.
7. Title
7.1 Warranty by InterQual. InterQual hereby warrants and represents that
it owns and has the right to license the Criteria, Criteria Manuals and
Marks.
7.2 Ownership & Use of Criteria, Criteria Manuals and Marks by
InterQual. Sublicensor acknowledges InterQual's claim to exclusive
right, title and interest in and to the Criteria, Criteria Manuals and
Marks, including all Criteria Updates and modifications to the Criteria
by Sublicensor. InterQual shall have the right to obtain and hold in its
own name trademarks, copyrights, registrations or such other protections
as may be appropriate to the subject matter, and any extensions or
renewals thereof. Sublicensor shall provide InterQual, and any person
designated by InterQual, any reasonable assistance, at InterQual's
expense, required to perfect InterQual's rights defined in this
Agreement. In connection with the use of the Criteria, Criteria Manuals
and Marks, Sublicensor shall not in any manner represent that it has any
ownership in the Criteria, Criteria Manuals or Marks or registration
thereof, and Sublicensor acknowledges that all uses and/or modifications
of the Criteria, Criteria Manuals or Marks by Sublicensor shall inure to
the benefit of InterQual.
7.3 Ownership of Sublicensor Software by Sublicensor.
InterQual acknowledges Sublicensor's claim to exclusive right, title and
interest in and to the title to the Software. Sublicensor shall have the
right to obtain and hold in its own name trademarks, copyrights,
registrations or such other protections as may be appropriate to the
subject matter, and any extensions or renewals thereof. InterQual shall
provide Sublicensor, and any person designated by Sublicensor, any
reasonable assistance, at Sublicensor's expense, required to perfect
Sublicensor's rights defined in this Agreement. InterQual shall not in
any manner represent that it has any ownership in the Software or
registration thereof. Any software, inventions, innovations or
enhancements that arise or result directly or indirectly from this
Agreement which Sublicensor creates, shall be and
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remain the sole and exclusive property of Sublicensor and its nominees.
As used, Software shall include data, designs, algorithms, flow charts,
source code, object code, and other documentation arising out of the
services performed by Sublicensor and shall not include any Criteria
Updates or modifications to the Criteria, Criteria Manuals or Marks by
Sublicensor or Clients.
7.4 Rights Upon Termination. Subject to Section 8, upon termination of
this Agreement with or without cause, whether voluntary or involuntary,
Sublicensor shall (i) cease and desist from all use of the Criteria,
Criteria Manuals and Marks in any way; and (ii) not adopt or use any
material similar to the Marks or any word or xxxx which is likely to be
similar to or confusing with the Marks without InterQual's prior written
consent.
8. Revocation of License Upon Termination. Upon termination of this
Agreement with or without cause, whether voluntary or involuntary, the
License granted pursuant to Section 3 shall be revoked effective on the
date of termination. Upon such termination (i) Sublicensor shall
continue to provide services to Sublicensees, including but not limited
to the incorporation and distribution of Criteria Updates in accordance
with Section 4.6.;(ii) any InterQual Sublicense Agreements shall remain
in full force and effect in accordance with their respective terms;
(iii) InterQual shall continue to be paid all Sublicense Fees received
by Sublicensor from Sublicensees in accordance with Section 6.
9. Confidential Information.
9.1 Non-Disclosure of Confidential Information.
9.1.1 Neither party shall be in default for failure to supply
information which such party, in good faith, believes cannot be
supplied due to prevailing law or for supplying information which
such party, in good faith, believes is required to be supplied
due to prevailing law.
9.1.2 Each party (and the respective officers, directors,
employees, agents, successors and assigns of each party) shall,
during the term of this Agreement and following the termination
of this Agreement with or without cause, whether voluntary or
involuntary, hold any and all Confidential Information as defined
in Section 9.1.3 in the strictest confidence as a fiduciary, and
shall not, voluntarily or involuntarily, sell, transfer, publish,
disclose, display or otherwise make available to others any
portion of the Confidential Information without the express
written consent of the other party. Each party shall use its best
efforts to protect the Confidential Information consistent with
the manner in which it protects its own most confidential
business information.
9.1.3 "Confidential Information" shall mean the information of
each party that shall be subject to patent, copyright, trademark,
trade secret, trade name or service xxxx protection, or described
in writing as confidential by each party, or not otherwise in
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the public domain and related to the business and operations of
each party, including, without limitation, the information
relating to earnings, volume of business, methods, systems,
practices or plans of each party, and all similar information of
any kind or nature whatsoever, which is known only to persons
having a fiduciary or confidential relationship with the party
that owns proprietary rights in or to such information.
10. Advertising or Publicity. Sublicensor may use the Marks in sales
literature, catalogues, mailings and other such materials subject to
InterQual's prior written approval of such uses, which approval shall
not be unreasonably withheld. InterQual shall have the right to
publicize the License of the Criteria to the Sublicensor in any
advertising or publicity releases with the prior written approval of
Sublicensor, which approval shall not be unreasonably withheld.
11. Indemnification.
11.1 Acknowledgements. Sublicensor acknowledges that InterQual has
advised SubLicensor: (i) that the Criteria and the Criteria Manuals are
based upon clinical interpretation and analyses (collectively
"Analyses") and that the Analyses are secondary sources which alone
cannot resolve medical ambiguities of particular situations or provide
the sole basis for definitive decisions; (ii) that the Criteria or the
Criteria Manuals should not be used for clinical determinations to
govern the level of medical care received by a patient or in any manner
interfere with the provider-patient relationship.
11.2 Indemnity by Sub-Licensor. Sublicensor shall indemnify, defend and
hold harmless InterQual, its officers, directors, employees and agents
from any and all claims, suits, losses, demands, damages or expenses
including reasonable attorneys' fees ("Liability") arising from any
breach by Sublicensor of its express obligations hereunder.
11.3 Indemnity by InterQual.
11.3.1 InterQual shall indemnify, defend and hold harmless
Sub-Licensor, its officers, directors, employees and agents from and
against Liability arising from any breach by InterQual of its express
obligations hereunder. InterQual assumes no Liability to SubLicensor or
to any third party with respect to the Criteria, Criteria Manuals or
Marks or other products sold or the services rendered by Sublicensor
under or in connection therewith.
11.3.2 THE CRITERIA AND CRITERIA MANUALS ARE PROVIDED "AS IS".
EXCEPT FOR THE LIMITED WARRANTY TO REPAIR OR REPLACE AS SET FORTH IN
SECTION 11.3.3 OF THIS AGREEMENT. INTERQUAL DISCLAIMS ANY OTHER
WARRANTY, EXPRESS OR IMPLIED, INCLUDING AS TO MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE OR SERVICE OF THE CRITERIA OR CRITERIA
MANUALS, OR THE COMPLIANCE OF OUTPUT USING THE CRITERIA OR CRITERIA
MANUALS WITH ANY LAW, REGULATION OR ORDER. IN NO EVENT
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SHALL INTERQUAL, ITS SUBCONTRACTORS, OFFICERS, EMPLOYEES OR AGENTS BE
LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE FURNISHING OF
THE CRITERIA OR CRITERIA MANUALS OR PERFORMANCE OF SERVICES PROVIDED FOR
HEREIN, EVEN IF ANY OF THEM HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
11.3.3 InterQual shall defend at its own cost and expense any
claim or action against Sublicensor and its Clients for infringement of
any patent, copyright or similar property right (including, but not
limited to, misappropriation of trade secrets) based on any Criteria or
Criteria Manuals or modifications of the Criteria or Criteria Manuals
furnished or approved hereunder by InterQual or based on Sublicensor's
use thereof. InterQual shall have the sole right to conduct the defense
of any such claim or action and all negotiations for its settlement or
compromise, unless otherwise mutually agreed upon and expressed in
writing signed by the parties hereto.
If such infringement claim or action has occurred, or in InterQual's
judgement is likely to occur, Sublicensor shall allow InterQual and
InterQual shall, at InterQual's option and expense, either: (i) procure
for Sublicensor and Licensees the right to continue using the alleged
infringing Criteria and/or Criteria Manual(s), whichever is in question
("Infringing Criteria"); (ii) modify the Infringing Criteria to become
non-infringing (provided that such modification does not adversely
affect Sublicensor's or Licensees' intended use of the Criteria or
Criteria Manual(s) as contemplated hereunder); (iii) replace the
Infringing Criteria with equally suitable, compatible and functionally
equivalent non-infringing Criteria or Criteria Manuals, whichever is in
question, at no additional charge to Sublicensor or Sublicensees; or
(iv) if none of the foregoing alternatives is reasonably available to
InterQual, upon written request Sublicensor shall return the Infringing
Criteria to InterQual and this Agreement shall automatically terminate.
12. Term and Termination.
12.1 Term. The Initial Term of this Agreement shall be for three (3)
year(s) commencing on the Effective Date set forth on the signature
page. Thereafter, this Agreement shall automatically renew for periods
of one (1) year unless either party shall give the other party sixty
(60) days written notice of non-renewal prior to the end of the Initial
Term or any Renewal Term.
12.2 Termination for Breach. Either party may terminate this Agreement
upon breach of this Agreement by the other party not remedied within
thirty (30) days after the receipt by such other party of notice thereof
from the terminating party.
12.3 Survival of Covenants. The surrender, cancellation or termination
of the Sublicenses granted pursuant to this Agreement shall not effect
the liability of any party for the obligations (i) set forth in Section
9 and Section 11; and (ii) accruing prior to termination.
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13. Remedies.
13.1 Injunctive Relief. Remedies at law may be inadequate and the
parties shall be entitled to equitable relief, including without
limitation, injunctive relief, specific performance or other equitable
remedies in addition to all other remedies provided hereunder or
available to the parties at law or equity.
13.2 Remedies Cumulative. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise.
13.3 Limitation of Liabilities.
13.3.1 Liability of InterQual to Sublicensor for any breach or
act or omission of InterQual pursuant to this Agreement, shall
not exceed the consideration received by InterQual from
Sublicensor and Sublicensees pursuant to this Agreement.
13.3.2 Liability of Sublicensor to InterQual for any breach or
act or omission of Sublicensor pursuant to this Agreement, except
for those relating to Section 9, shall not exceed the
consideration received by InterQual from Sublicensor and
Sublicensees pursuant to this Agreement.
13.4 Costs. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of
this Agreement, each party, if it is the successful or prevailing party,
shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief
to which it may be entitled.
14. Miscellaneous Provisions.
14.1 Notices. All notices shall be in writing personally delivered or
sent by fax or mailed by certified mail, return receipt requested,
effective on delivery, addressed to the parties at their respective
address set forth on the signature page or such other address as the
party may specify from time to time in writing.
14.2 Independent Contractors. Each party, its officers, agents and
employees are at all times independent contractors to the other party.
Nothing in this Agreement shall be construed to make or render either
party or any of its officers, agents, or employees of agent, servant, or
employee of, or joint venturer of or with, the other.
14.3 Entire Agreement.
This Agreement represents the entire agreement and understanding of the
parties hereto
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with respect to the subject matter hereof, and all prior and concurrent
agreements, understandings, representations and warranties with respect
to such subject matter, whether written or oral, are and have been
merged herein and superseded hereby. This Agreement may be amended in
writing, and any such amendment shall not be effective against a party
to this Agreement that shall not have signed such amendment.
14.4 Compliance with Terms. Failure to insist upon strict compliance
with any of the terms herein (by way of waiver or breach) by any party
hereto shall not be deemed to be a continuous waiver in the event of any
future breach or waiver of any condition hereunder.
14.5 Rights of Parties. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason
of this Agreement on any persons other than the parties to this
Agreement and to their respective successors and assigns.
14.6 Benefits. This Agreement shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and,
to the extent permitted herein, assigns.
14.7 Severability. If any portions of this Agreement shall, for any
reason, be invalid or unenforceable, such portions shall be ineffective
only to the extent of such invalidity or unenforceability, and the
remaining portion or portions shall nevertheless be valid, enforceable
and of full force and effect.
14.8 Conflict of Laws. This Agreement shall be governed by the laws of
the State of Massachusetts, without giving effect to its conflicts of
law provisions.
14.9 Exhibits. The Exhibits referenced herein are made a part of this
Agreement, and the parties to this Agreement represent and warrant that
they are true and correct in all material respects as of the date
appearing thereof.
14.10 Assignment. Except as otherwise specifically provided herein, this
Agreement may not be assigned without the express written consent of the
parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date set forth Below as the effective date.
EFFECTIVE DATE 15 APR 94
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LICENSOR: InterQual, Inc. SUBLICENSOR: Xxxxx Management Systems,
------------------------- Inc.
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Address: 000 Xxxxxx Xxxx Xx. West Address: 0000 XXXXXXXXX XXXXX, Xxxxx #0
Xxxxxxxxxxx, XX 00000 XXXXX, XX 00000
------------------------- -------------------------------
By: By: XXXXX X. XXXX
-------------------------------- ------------------------------------
Print Name Print Name
By: /s/ [Signature Illegible] By: /s/ XXXXX X. XXXX
------------------------------- ------------------------------------
Signature Signature
Title: V.P. Finance Title: CEO
---------------------------- ---------------------------------
Date: 8-31-93 Date: 15 APR 94
----------------------------- ----------------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
------------------------ -----------------------------
Fax: (000) 000-0000 Fax: (000) 000-0000
------------------------------ -----------------------------------
This Sublicensor Agreement is an offer valid for thirty days (30) from
the date executed by InterQual. This offer may be extended by InterQual only by
written notification to Sublicensor.
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INTERQUAL(R)
Exhibit 2.1
TRADEMARKS AND REGISTERED MARKS OF INTERQUAL
1. InterQual(R)
2. SI/IS(TM)
3. ISD(R)
4. ISD-A(R)
5. SIM(TM)
6. SIM(TM)II
7. SIM(TM)III
8. SIM(TM)IV
9. SIM(TM)V
10. SIM-A(R)
11. IQ/ACS(TM)
12. IPM-A(R)
13. BBP-A(TM)
14. NIPM-A(TM)
15. MTM-A(R)
16. MPT-A(TM)
17. RAQ(R)
18. ISDAD(TM)
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INTERQUAL(R)
Exhibit 2.1
TRADEMARKS AND REGISTERED MARKS OF INTERQUAL Cont'd
19. ISPAD (TM)
20. IPM(TM)
21. BBP(TM)
22. NIPM(TM)
23. MTM(TM)
24. MPT(TM)
25. ISP-A(TM)
26. ISP(TM)
27. ISD/ISP-A(TM)
28. ISD/ISP(TM)
29. Any additional trademarks and registered marks as may be added from time
to time. InterQual shall provide delineation of any added marks in writing,
return receipt requested.
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INTERQUAL(R)
EXHIBIT 2.2
CRITERIA
The following list of Criteria are specifically covered under this agreement:
ISDAD(TM)
ISD(TM) Adult and Pediatric
SIM(TM) Adult and Pediatric
IPM(TM) Adult
NIPM(TM)
BBP(TM)
MPT(TM) (not currently available for distribution)
RAQ(TM)
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INTERQUAL(R)
EXHIBIT 4.5
INTERQUAL SUBLICENSE AGREEMENT
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INTERQUAL(R)
EXHIBIT 6.1
SUBLICENSOR FEES
1. Criteria License Fees to be charged to LandaCorp Sublicensee's: For each sale
of LandaCorps software systems containing InterQual Criteria, LandaCorp will
remit to InterQual eighty (80%) percent of that Criteria list Price based upon
fee's in Attachment A-1 through A-7.
2. All remittances are due thirty (30) days from the date of Sublicensee
Agreement.
3. InterQual maintains the right to modify its Criteria fee schedule from time
to time. Sublicensor shall, upon receipt of the new pricing fee, have sixty (60)
days to modify its own fee schedule to reflect InterQual's new price structure.
4. License Fee Price Lists, Attachment A-l through A-7, shall not be distributed
or issued without prior consent of InterQual.
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