LICENSE AGREEMENT
by and between
CALIFORNIA HEALTHCARE FOUNDATION
and
CARESCIENCE, INC.
(Formerly Care Management Science Corporation)
Dated as of October 2, 2000
This LICENSE AGREEMENT (the "Agreement") is made as of the 2nd day of
October, 2000 between the California Healthcare Foundation, a nonprofit public
benefit corporation ("CHCF") and CareScience, Inc., a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania ("Licensee").
The Effective Date is October 1, 1999.
WHEREAS CHCF and Licensee are parties to that certain Consulting Agreement,
dated as of October 1, 1999 (the "Consulting Agreement"), pursuant to which CHCF
engaged Licensee to perform certain services as set forth therein; and
WHEREAS Section 9 of the Consulting Agreement provides for the ownership rights
and use of certain intellectual property developed in connection with the
Project (as defined in the Consulting Agreement); and
WHEREAS Section 9 of the Consulting Agreement provides that CHCF grants to
Licensee a fully-paid, non exclusive, perpetual, worldwide license to certain
intellectual property; and
WHEREAS Licensee desires to obtain from CHCF an exclusive license to use the
Licensed Work (as defined herein), subject to the terms, conditions and
provisions hereinafter set forth; and
WHEREAS CHCF and Licensee desire that the subject matter of this Agreement
supersede Section 9 of the Consulting Agreement;
NOW, THEREFORE in consideration of the premises and of the promises and mutual
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, shall have the following
meanings:
"Affiliate" means any Person directly or indirectly
controlling, controlled by or under common control with Licensee. For purposes
of this Agreement, "control" means the direct or indirect ownership of over 50%
of the outstanding voting securities of a Person, or the right to receive over
50% of the profits or earnings of a Person, or the right to control the policy
decisions of a Person.
"Bankruptcy Event" means the Person in question becomes
insolvent, or voluntary or involuntary proceedings by or against such Person are
instituted in bankruptcy or under any insolvency law, or a receiver or custodian
is appointed for such Person, or proceedings are instituted by or against such
Person for corporate
reorganization or the dissolution of any such Person, which
proceedings, if involuntary, shall not have been dismissed within ninety (90)
days after the date of filing, or such Person makes an assignment for the
benefit of creditors, or substantially all of the assets of such Person are
seized or attached and not released within sixty (60) days thereafter.
"Calendar Quarter" means each three-month period, or any
portion thereof, beginning on January 1, April 1, July 1 and October 1.
"Care Data Exchange Project IP" means any and all IP used in,
developed during, or related to the data exchange project funded by CHCF (the
"Data Exchange Project"), which is a project to develop (i) concepts related to,
(ii) a methodology for, and (iii) means of effecting the electronic distribution
and sharing or exchange of data through a site or sites located on the world
wide web, which data may consist of text, graphics, still or moving images,
audio files, e-mail or other content.
"CHCF Intellectual Property" means any and all IP which is
either Care Data Exchange Project IP or Vendor Certification Project IP and not
(i) data which solely identifies a specific individual or entity, (ii) a
standard software product (i.e., a product generally available for license to
consumers (e.g., "Windows" or "Quicken" products)) licensed or purchased in the
ordinary course of business or (iii) a software product set forth in a schedule
to either a Final Anchor Agreement (as defined in the Consulting Agreement) or a
Care Data Alliance Agreement (as defined in a Final Anchor Agreement) which is
solely an internal system or process of a Care Alliance Anchor (as defined in
the Consulting Agreement) or a member of a Care Alliance (as defined in the
Consulting Agreement) (i.e. not necessary to the functioning of any work
included in the Care Data Exchange Project IP or the Vendor Certification
Project IP).
"Confidential Information" means and includes (i) the Licensed
Work, (ii) any other information or material in tangible form that is marked as
confidential or proprietary by the furnishing party at the time it is delivered
to the receiving party, and (iii) information that is furnished orally if the
furnishing party identifies such information as confidential or proprietary when
it is disclosed and promptly confirms such designation in writing after such
disclosure.
"Copyright" means the copyrights related to the Licensed Work,
including the copyright applications and registration(s), if any, authorized
under Title 17 of the United States Code or under the laws of any other
jurisdiction.
"Customer" means any Person who has executed a valid End User
Agreement, Distributor Sublicense Agreement or any other form of sublicense
agreement approved by CHCF relating to the license set forth herein.
"Distributor Sublicense Agreement" means an agreement between
Licensee and a Person granting the right to use or benefit from any of the
rights granted hereinunder in the form of a Distributor Sublicense in
substantially the form agreed to pursuant to Section 2.1(c).
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"Distributor Sublicense" means a sublicense granted by
Licensee to a third party which allows that third party to modify software, and
sublicense that software in the form of End-User Sublicenses only.
"End User Agreement" means an agreement between Licensee and a
Person granting the right to use or benefit from any of the rights granted
hereinunder in the form of an End User Sublicense in substantially the form
agreed to pursuant to Section 2.1(c).
"End User Sublicense" means a sublicense granted by Licensee
which allows the sublicensee to use, but not to modify or to distribute
software.
"Fees" shall mean, cumulatively, Service Fees and Sublicense
Fees. Licensee shall establish: 1) stand-alone Sublicense Fees and 2) Service
Fees for use, maintenance or modification of the Licensed Work. If Licensee
charges a Customer Service Fees for a package of services, only some of which
involves use of the Licensed Program, and no volume or other Customer discount
is provided, then the portion of Licensee's revenues representing Fees shall not
be less than the separate prices or Fees charged by Licensee on a stand-alone
basis for services using the Licensed Work. If Licensee charges a Customer
service Fees on such a package of services and a volume or other discount is
provided, then the discount related to use of the Licensed Work shall be no
greater than the discount related to other services provided by Licensee. CHCF
acknowledges that Licensee also may have to negotiate Sublicense Fee discounts
from its published fees in the usual course of doing business.
Licensee shall be permitted to deduct from Fees qualifying
costs directly attributable to the sublicensing of the Licensed Work, which are
actually identified on the invoice and borne by Licensee, or the provision of
services using the Licensed Work, which are actually identified on the invoice
and borne by Licensee or its sublicensee.
Such qualifying costs shall be limited to the following:
(i) Discounts, in amounts customary in the trade, for quantity
purchases, prompt payments and for wholesalers and distributors;
(ii) Credits or refunds, not exceeding the original invoice amount,
for claims or returns;
(iii) Prepaid transportation insurance amounts;
(iv) Prepaid outbound transportation expenses;
(v) Sales and use taxes imposed by a government agency upon
Licensee; and
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(vi) Permitted Proprietary Rights Fees (as defined in Section
8.1(a)).
"IP" means any and all business models, copyrights, data,
software, technical and other documentation, trade secret rights (including any
that may be included in any patent applications), and all other intellectual
property rights as may now exist or hereafter come into existence and be
protectable by law anywhere throughout the world, and all applications and
registrations therefor, patent rights, and name, xxxxx, xxxx trademark, service
xxxx, trade dress, business name or other indicia of origin including without
limitation any registrations, applications and renewals therefor.
"Licensed Work" means the CHCF Intellectual Property, and any
portion or Modification thereof.
"Modification" of a work means any and all changes including
improvements, enhancements, corrections, revisions to the work or any portion
thereof, and any derivative of or work substantially similar to any of the
foregoing, made by CHCF or Licensee (or any licensee or distributor of
Licensee).
"Person" or "Persons" means any corporation, partnership,
joint venture or natural person.
"Safety Net Provider" means any governmental entity
(including, without limitation, local or state governments and similar
governmental entities) that provides health care services, or other provider
(including non-profit and for-profit hospitals) of health care services whose
primary purpose is to provide health care to persons who cannot otherwise afford
to pay for such services
"Sale" as applied to the Licensed Work means a genuine, BONA
FIDE transaction for which consideration is received or expected for the use,
maintenance, modification, lease, transfer or any other disposition of the
Licensed Work. A Sale of the Licensed Work shall be deemed completed at the time
Licensee or its sublicensee invoices, ships, or receives payment for such
Licensed Work, whichever occurs first.
"Service Fees" means gross consideration actually received by
Licensee as a fee for use of the Licensed Work (including, without limitation,
any maintenance, modification or similar services related to the Licensed Work).
CHCF hereby acknowledges that Licensee has in the past and will continue to
provide consulting, other products and other product-related services to third
parties which do not employ the use of, or involve maintenance, modification or
similar services related to the Licensed Work, and CHCF further acknowledges
that such revenues are expressly not a part of Service Fees as defined herein.
"Sublicense Fees" means gross consideration actually received
by Licensee (i) as a fee for sublicensing the Licensed Work to any third party
or (ii) as royalties under the terms of any such sublicense agreement.
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"Vendor Certification Project IP" means any and all IP used
in, developed during, or related to the vendor certification project funded by
CHCF, which is a project to develop (i) concepts related to, (ii) a methodology
for, and (iii) means of effecting the electronically-enabled application for
certification of vendors or suppliers of goods or services to be used in
connection with the Data Exchange Project or any similar data exchange project
("Project Vendors"), certification of Project Vendors, promulgation of Project
Vendor standards, distribution of tools and/or information about tool sets
required for Project Vendor certification, and to display Project Vendors'
certification status and results.
ARTICLE II
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions contained in
this Agreement, CHCF hereby grants to Licensee for the term of this Agreement a
royalty-bearing, worldwide, exclusive license, with a right to sublicense to:
(a) make copies of, to make derivative works of, and to use the
Licensed Work;
(b) distribute the Licensed Work;
(c) sublicense the Licensed Work (as either an End User Sublicense or a
Distributor Sublicense) to Customers of Licensee who have first
executed an End User Agreement or a Distributor Sublicense Agreement,
as the case may be. The terms and conditions of a form of End User
Agreement and Distributor Sublicense Agreement shall be reasonably
agreed upon by both CHCF and Licensee.
2.2 NO RIGHTS BY IMPLICATION. No rights or licenses with respect to the
Licensed Work are granted or deemed granted hereunder or in connection herewith,
other than those rights or licenses expressly granted in this Agreement.
ARTICLE III
COMPENSATION
3.1 ROYALTIES.
(a) In consideration for the license granted by this Agreement,
Licensee shall pay CHCF royalties as follows on all Sales of the
Licensed Work:
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(i) [*];
(ii) [*];
(b) In the event CHCF releases a Modification to the Licensed program
developed exclusively by CHCF, CHCF shall be entitled to a royalty of
[*] of the Sublicense Fee paid by existing Customers for such
modification. In the event that such a Modification is jointly
developed by CHCF and Licensee, Licensee shall pay a royalty to CHCF
equal to a prorated percentage of [*] based upon the relative
contributions of the two parties, such contributions to be mutually
agreed upon.
(c) Notwithstanding the foregoing, Licensee shall not be required to
make a payment hereunder until the earlier of (i) June 30, 2001 and
(ii) the date on which CHCF has earned Fees equal to or in excess of
$10,000 (the "Transition Period").
3.2 MINIMUM ROYALTIES. Licensee shall Pay to Licensor minimum annual
royalties ("Minimum Royalties") for the following periods in the corresponding
amounts:
CALENDAR YEAR BEGINNING
Transition Period January 1, 2000
$25,000. January 1, 2001
$41,250. January 1, 2002
$57,500. January 1, 2003
$73,750. January 1, 2004
$90,000. January 1, 2005 and for
each calendar year thereafter
Licensee shall pay these Minimum Royalties in four (4) evenly distributed
installments on the last day of each calendar quarter (March 31, June 30,
September 30 and December 31) of each year.
3.3 EXCLUSIVE; NON-EXCLUSIVE LICENSE. If Licensee fails to pay the
Minimum Royalties as set forth in section 3.2 above for any calendar year, CHCF
will have the right in its sole discretion on written notice to Licensee
delivered at any time after the end of such calendar year, to convert the
license granted hereunder from an exclusive to a non-exclusive license.
---------------------
*WE ARE SEEKING CONFIDENTIAL TREATMENT OF THESE TERMS, WHICH HAVE BEEN
OMITTED. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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3.4 PAYMENTS. Royalties payable under Section 3.1 hereof shall be paid
within forty-five (45) days following the last day of the Calendar quarter in
which the royalties accrue. The final payment shall be made within thirty (30)
days after termination of this Agreement. Royalties shall be deemed paid as of
the day on which they are received at the account designated pursuant to Section
3.6. Royalties that are not paid when due shall be subject to interest in
accordance with Section 3.6 hereof.
3.5 REPORTS. Licensee shall deliver to CHCF within forty-five (45)
days after the end of each Calendar Quarter a report, certified by the chief
financial officer of Licensee, setting forth in reasonable detail the
calculation of the earned royalties and Minimum Royalties available for credit
payable to CHCF for such Calendar Quarter.
3.6 CURRENCY. PLACE OF PAYMENT INTEREST.
(a) CURRENCY; PLACE OF PAYMENT. All dollar amounts referred to in this
Agreement are expressed in United States dollars. All payments of
Royalties and other amounts to CHCF under this Agreement shall be made
in United States dollars (or other legal currency of the United States)
by check payable to "California Healthcare Foundation".
(b) INTEREST. Amounts that are not paid when due shall accrue interest
from the due date until paid, at a rate equal to the prime rate plus
two percent (2%) with a maximum cap of eighteen percent (18%). CHCF may
treat unpaid payments as a breach of this Agreement notwithstanding the
payment of interest.
3.7 RECORDS. Licensee will maintain complete and accurate books and
records which enable the royalties payable hereunder to be verified. The records
for each calendar quarter shall be maintained for five years after the
submission of each report under Section 3.5 hereof. Upon reasonable prior notice
to Licensee, CHCF and its accountant shall have access to the relevant books and
records of Licensee necessary to conduct a review or audit thereof. Such limited
access shall be available not more than twice each calendar year, during normal
business hours, and for three years after the expiration or termination of this
Agreement. If CHCF determines that Licensee has underpaid royalties by ten
percent (10%) or more, Licensee will immediately pay to CHCF such amount plus
interest as set forth in Section 3.6 above in addition to the documented costs
and expenses of CHCF's accountant in connection with its review or audit. If an
overpayment is determined to exist, CHCF shall refund any movies overpaid by
Licensee back to licensee.
ARTICLE IV
USE OF LICENSED PROGRAM
4.1 MAINTENANCE. Licensee acknowledges and agrees that CHCF shall be
under no obligation to Licensee to install, maintain, support, modify or enhance
the Licensed Work or any of it, all such obligations being the responsibility of
Licensee.
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4.2 COPY LIMITATIONS. Licensee shall be entitled to receive from CHCF
one copy of the each software program included in the Licensed Work (each a
"Licensed Program") and related documentation, and licensed technical
information. Licensee shall keep a record of the location of each and every copy
of each Licensed Program that it makes and shall maintain such copies in
locations consistent with Licensee's confidentiality obligations as set forth in
Article V hereof. Licensee shall reproduce without alteration any disclaimers,
legends and proprietary rights notices on all copies of each Licensed Program
and related documentation and licensed technical information.
4.3 MODIFICATION OF LICENSED WORK.
(a) Licensee shall have the right to make Modifications of the Licensed
Work, including derivatives as contemplated by the copyright laws,
provided that such Modifications, and all copyrights and trademarks
relating thereto, shall remain the property of CHCF from the moment of
their creation, subject to the Licensee's license rights hereunder.
Licensee shall provide one copy of any Modification of the Licensed
Work to CHCF promptly upon request. License shall obtain from each and
every individual or entity who makes a Modification of the Licensed
Work an assignment of all rights to CHCF, including but not limited to
copyright, whether or not such contribution may be a "work made for
hire." Prior to the commencement of work by such individuals or
entities, Licensee shall have each individual or entity sign a document
in reasonable form acknowledging that all rights in their respective
contributions will be assigned to CHCF whether or not such
contributions are works made for hire.
(b) CHCF may from time to time release Modifications developed by CHCF,
subject to the Licensee's license rights hereunder. CHCF will provide
one copy of such Modifications to Licensee. The incorporation into the
Licensed Work of any Modification developed by CHCF shall be reflected
in the royalty schedule for the Licensed Work after good faith
negotiations by the parties. Notwithstanding, licensee acknowledges and
agrees that CHCF shall have no obligation to make Modifications of the
Licensed Work.
4.5 COMPLIANCE WITH LAWS. Licensee shall comply with all prevailing
laws, rules and regulations pertaining to the use of the Licensed Work, and
Licensee will be responsible for obtaining, at its cost and expense, any
governmental approvals required to use the Licensed Work. All rights granted to
Licensee by this Agreement are contingent upon compliance with United States
laws and regulations controlling the export of technical data, computer
software, laboratory prototypes, and all other export controlled commodities.
These laws include, but are not limited to, the Arms Export Control Act and the
Export Administration Act as they may be amended. Licensee shall not, directly
or indirectly, export any export controlled commodities, which are subject to
this Agreement, unless the required authorization and/or license is obtained
from the proper government agency(ies) prior to export. By granting rights in
this Agreement, CHCF does not represent that export authorization or an export
license will not be necessary or, if necessary, that such authorization or
export license will be granted.
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ARTICLE V
CONFIDENTIALITY
5.1 CONFIDENTIALITY.
(a) NONDISCLOSURE. Licensee shall maintain in confidence and shall not
disclose to any third party (except an authorized sublicensee) the
Confidential Information received pursuant to this Agreement, without
the prior written consent of CHCF. The foregoing obligation shall not
apply to:
(i) information that is known to Licensee or independently
developed by Licensee in the performance of services or work wholly
unrelated to the Project prior to the time of disclosure, in each case,
to the extent evidenced by written records promptly disclosed to CHCF
upon receipt of the Confidential Information. This exception shall not
apply to information learned by Licensee from any employee who was
previously engaged by CHCF with responsibility for the development or
use of the Licensed Work;
(ii) information disclosed to Licensee by a third party that
has a right to make such disclosure;
(iii) information that becomes patented, published or
otherwise part of the public domain as a result of acts by CHCF or by a
third person who has the right to make such disclosure; or
(iv) information that is required to be disclosed by order of
any governmental authority or a court of competent jurisdiction;
provided that Licensee shall notify CHCF if it believes such disclosure
is required and shall use its best efforts to obtain confidential
treatment of such information by the agency or court.
(b) USE OF CONFIDENTIAL INFORMATION. Licensee shall ensure that all of
its employees having access to the Confidential Information of CHCF are
obligated in writing to abide by Licensee's obligations hereunder.
Licensee shall use the Confidential Information only for the purposes
contemplated under this Agreement. Nothing in this Section 5.1 is
intended to, or shall affect CHCF's rights to the CHCF Intellectual
Property, or Licensee's payment obligations to CHCF hereunder.
(c) NO OBLIGATION BY CHCF. CHCF shall not be obligated to accept any
Confidential Information of the Licensee. If Licensee desires to
furnish any of Licensee's Confidential Information to any CHCF
personnel, Licensee may request such individual to sign a
confidentiality agreement with Licensee in form and substance
satisfactory to CHCF. CHCF bears no institutional responsibility for
maintaining the confidentiality of any Confidential Information of
Licensee.
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(d) COPYRIGHT NOTICE. The placement of a copyright notice by CHCF on
the Licensed Work, or any portion thereof, shall not be construed to
mean that the program or information has been published. Such placement
will not release Licensee from its obligations of confidentiality
hereunder.
5.2 PUBLICATION. RIGHT TO PUBLISH. Neither CHCF nor Licensee shall
disclose publicly, in writing or by oral presentation, Confidential
Information related to the Licensed Work for which an appropriate form
of intellectual property protection has not been filed without the
prior written consent of the other party hereto.
5.3 USE OF NAME.
(a) Licensee shall not directly or indirectly use CHCF's name, or the
name of any director, officer or employee thereof, without CHCF's
written consent. CHCF hereby approves the use of the following wording
as applied to CHCF, as appropriate:
(i) [funded by]
(ii) [licensed from]
(iii) [developed in conjunction with]
(b) CHCF and Licensee are independent entities and contractors and
neither is an agent of the other. Neither Licensee nor CHCF shall take
any action which would suggest to a reasonable person that an agency
relationship exists between them.
5.4 INJUNCTIVE RELIEF. Because damages at law will be an inadequate
remedy for breach of any of the covenants, promises and agreements contained in
this Article V hereof, CHCF shall be entitled to injunctive relief in any state
or federal court with jurisdiction, including specific performance or an order
enjoining the breaching party from any threatened or actual breach of such
covenants, promises or agreements. Licensee hereby waives any objection it may
have to the personal jurisdiction or venue of any such court with respect to any
such action. The rights set forth in this Section 5.4 shall be in addition to
any other rights which CHCF may have at law or in equity.
ARTICLE VI
WARRANTIES AND REPRESENTATIONS
6.1 REPRESENTATIONS AND WARRANTIES OF CHCF. CHCF represents and
warrants to Licensee that this Agreement, when executed and delivered by CHCF,
will be the legal, valid and binding obligation of CHCF, enforceable against
CHCF in accordance with its terms. CHCF also represents to Licensee that CHCF
has not received any written notice that the Licensed Work infringes the
proprietary rights of
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any third party. These representations are to the knowledge of CHCF, based upon
conversations with certain CHCF officers. CHCF has made no independent
investigation of the matters which are subject to these representations.
6.2 REPRESENTATION AND WARRANTIES OF LICENSEE. Licensee represents and
warrants to CHCF as follows:
(a) Licensee is a good corporation duly organized, validity existing
and in good standing under the laws of Pennsylvania, and has all
requisite corporate power and authority to execute, deliver and perform
this Agreement;
(b) This Agreement, when executed and delivered by Licensee, will be
the legal, valid and binding obligation of Licensee, enforceable
against Licensee in accordance with its terms; and
(c) The execution, delivery and performance of this Agreement by
Licensee does not conflict with, or constitute a breach or default
under, (i) the charter documents of Licensee, (ii) any law, order,
judgment or governmental rule or regulation applicable to Licensee, or
(iii) any provision of any agreement, contract, commitment or
instrument to which Licensee is a party; and the execution, delivery
and performance of this Agreement by Licensee does not require the
consent, approval or authorization of, or notice or declaration to or
filing or registration with, any governmental or regulatory authority.
ARTICLE VII
LIMITATION ON LIABILITY AND INDEMNIFICATION
7.1 NO WARRANTIES: LIMITATION ON LIABILITY. THE LICENSED WORK IS
PROVIDED ON AN "AS IS" BASIS AND CHCF MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED WORK. BY WAY OF EXAMPLE BUT NOT
OF LIMITATION, CHCF MAKES NO REPRESENTATIONS OR WARRANTIES (i) OF COMMERCIAL
UTILITY, (ii) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (iii)
THAT THE USE OF THE LICENSED WORK WILL NOT INFRINGE ANY PATENT, COPYRIGHT OR
TRADEMARK OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF OTHERS. EXCEPT AS EXPRESSLY
PROVIDED HEREIN, CHCF DISCLAIMS ANY WARRANTY THAT THE LICENSED WORK IS FREE FROM
THE RIGHTFUL CLAIMS OF ANY THIRD PARTY. CHCF SHALL NOT BE LIABLE TO LICENSEE,
LICENSEE'S SUCCESSORS OR ASSIGNS, OR ANY OTHER THIRD PARTY WITH RESPECT TO ANY
CLAIM ON ACCOUNT OF, OR ARISING FROM THE USE OF INFORMATION IN CONNECTION WITH
THE LICENSED WORK SUPPLIED HEREUNDER OR ANY OTHER MATERIAL OR ITEM DERIVED
THEREFROM. CHCF SHALL NOT BE LIABLE TO LICENSEE, OR ANY OTHER PERSON FOR ANY
LOSS OF PROFITS, LOSS OF BUSINESS OR INTERRUPTION OF BUSINESS, OR FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY
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LICENSEE OR ANY OTHER PERSON WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF
CHCF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
7.2 LICENSEE INDEMNIFICATION. Licensee will indemnify and hold harmless
CHCF, its directors, officers, agents, representatives and employees
(collectively, the "Indemnified Parties"), from and against any and all
liability, loss, damage, action, claim or expense suffered or incurred by the
Indemnified Parties (including reasonable attorney's fees) (individually, a
"Liability" and collectively, the "Liabilities") which results from or arises
out of (a) the use of the Licensed Work by Licensee, its Affiliates, assignees,
vendors or other third parties; (b) breach by Licensee of any covenant or
agreement contained in this Agreement; and (c) the successful enforcement by an
Indemnified Party of its right under this Section 7.2. Without limiting the
foregoing, Licensee will indemnify and hold harmless the Indemnified Parties
from and against any Liabilities resulting from:
(a) Any claim of any kind related to the use by a third party of the
Licensed Work by Licensee, its Affiliates, assignees, or other third
parties; and
(b) A claim by a third party that the Licensed Work infringes or
violates any patent, copyright, trademark or other intellectual
property rights of such third party.
7.3 PROCEDURES. The Indemnified Party shall promptly notify Licensee of
any claim or action giving rise to a Liability that is subject to the provisions
of Section 7.2. Licensee shall have the right to defend any such claim or
action, at its cost and expense. Licensee shall not settle or compromise any
such claim or action in a manner that imposes any restrictions or obligations on
CHCF or grants any rights to the Licensed Work, without CHCF's written consent,
which consent shall not be unreasonably withheld. If Licensee fails or declines
to assume the defense of any such claim or action within thirty (30) days after
notice thereof, CHCF may assume the defense of such claim or action for the
account and at the risk of Licensee, and any Liability related thereto shall be
conclusively deemed a liability of Licensee. Licensee shall pay promptly to the
Indemnified Party any Liabilities to which the foregoing indemnity relates, as
incurred. The indemnification rights of CHCF or other Indemnified Party
contained herein are in addition to all other rights which such Indemnified
Party may have at law or in equity or otherwise.
7.4 LIABILITY INSURANCE. During the Term of this Agreement, Licensee
shall maintain general liability and product liability, insurance in amounts not
less than $1,000,000 per incident and $1,000,000 in the aggregate, issued by an
insurance company rated AA or better and naming CHCF as an additional insured.
The minimum insurance amounts specified herein shall not be deemed a limitation
on Licensee's indemnification liability under this Agreement. Licensee shall
provide CHCF with copies of the endorsements to such policies, upon request of
CHCF. Licensee shall notify CHCF at least thirty (30) days prior to cancellation
of any such coverage.
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ARTICLE VIII
PROPRIETARY RIGHTS AND INFRINGEMENT
8.1 PROPRIETARY RIGHTS PROTECTION.
(a) LICENSEE CONTROL. Licensee shall be responsible for and shall
control the preparation, prosecution and maintenance of all copyrights
and patent rights pertaining to the Licensed Work. Licensee shall be
entitled to deduct from Fees all documented out-of-pocket expenses
(including legal fees, filing and maintenance fees or other
governmental charges) incurred in connection with the filing,
prosecution and maintenance of any such rights ("Permitted Proprietary
Rights Fees").
(b) LICENSEE OBLIGATIONS. Licensee and CHCF shall mutually determine
the countries where copyrights and patents pertaining to the Licensed
Work will be prosecuted and maintained. If Licensee declines to pay for
such prosecution and maintenance costs in any jurisdiction, CHCF may do
so at its cost and expense but such rights shall be excluded from the
definition of Licensed Work.
(c) CHCF PROSECUTION. If Licensee elects not file, prosecute or
maintain any copyright pertaining to the Licensed Work, it shall notify
CHCF at least sixty (60) days prior to taking, or not taking, any
action which would result in abandonment, withdrawal, or lapse of such
right. CHCF shall then have the right to file, prosecute or maintain
the right at its own expense and shall be reimbursed by Licensee (but
only from Fees), with such reimbursed amounts (after such
reimbursement) being deductible as Permitted Proprietary Rights Fees
hereunder.
(d) COOPERATION. Each party shall cooperate with the other party to
execute all lawful papers and instruments and to make all rightful
oaths and declarations as may be necessary in the preparation and
prosecution of all rights referred to in this Section 8.1.
8.2 OWNERSHIP. Licensee acknowledges that all right, title and
interest in and to the Licensed Work and any copyrights, patents, trademarks and
other protection related thereto is and shall remain in CHCF, regardless of
which party prepares prosecutes or maintains the foregoing, subject to the
express license granted to Licensee under Article II hereof. Licensee further
agrees to assign (or cause to be assigned) and does hereby assign fully to CHCF
all of Licensee's rights, if any, worldwide in the Licensed Work and all
intellectual property rights thereto including any copyrights, patents, patent
applications, trademarks, and tradenames, subject to the express license granted
to Licensee under Article II hereof.
8.3 POWER TO SIGN.
13
(a) CHCF agrees that if Licensee is unable because of CHCF's
unavailability, incapacity, or for any other reason, to secure a
signature by or on behalf of CHCF for or to pursue any application for
any United States or foreign patents or copyright registrations
covering the Licensed Work, then CHCF hereby irrevocably designates and
appoints Licensee and its duly authorized officers and agents as CHCF's
agent and attorney in fact, to act for and on CHCF's behalf and stead
to execute, acknowledge, deliver and file any such applications and to
do all other lawfully permitted acts to further the prosecution and
issuance of patents and copyright registrations thereon with the same
legal force and effect as if executed by CHCF.
(b) Licensee agrees that if CHCF is unable because of Licensee's
unavailability, incapacity, or for any other reason, to secure a
signature by or on behalf of Licensee for or to pursue any application
for any United States or foreign patents or copyright registrations
covering the Licensed Work assigned to CHCF herein, then Licensee
hereby irrevocably designates and appoints CHCF and its duly authorized
officers and agents as Licensee's agent and attorney in fact, to act
for and on Licensee's behalf and stead to execute, acknowledge, deliver
and file any such applications and to do all other lawfully permitted
acts to further the prosecution and issuance of patents and copyright
registrations thereon with the same legal force and effect as if
executed by Licensee.
8.4 INFRINGEMENT BY THIRD PARTY.
(a) LICENSEE'S OBLIGATIONS. Each party will promptly notify the other
party of any infringement or possible infringement of rights relating
to the Licensed Work. Licensee shall have the right, but not the
obligation, to prosecute such infringement at its own expense. In such
event, CHCF shall cooperate with Licensee, at Licensee's expense.
Licensee shall not settle or compromise any such suit in a manner that
imposes any obligations or restrictions on CHCF or grants any rights to
the Licensed Work, without CHCF's written consent.
(b) CHCF'S RIGHTS. If Licensee fails to prosecute such infringement
within ninety (90) days after receiving notice thereof, CHCF shall have
the right, but not the obligation, to prosecute such infringement at
its own expense. In such event, Licensee shall cooperate with CHCF, at
CHCF's expense.
(c) RECOVERY DISTRIBUTION. Any recovery obtained by the prosecuting
party as a result of such proceeding, by settlement or otherwise, shall
be applied first to the prosecuting party, in an amount equal to its
costs and expenses of the litigation, with the remainder to be paid to
Licensee, subject to the earned royalties due to CHCF under Article 3
hereof.
ARTICLE IX
TERM AND TERMINATION
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9.1 TERM. This Agreement and the licenses granted herein shall commence
on the Effective Date and shall continue, subject to earlier termination under
Sections 9.2 or 9.3 hereof, for a period of thirty (30) years thereafter.
9.2 TERMINATION BY CHCF.
(a) EVENTS OF DEFAULT. Upon the occurrence of any of the events set
forth below ("Events of Default"), CHCF shall have the right to
terminate this Agreement by giving written notice of termination, such
termination being effective with the giving of such notice:
(i) nonpayment of any amount payable to CHCF that is
continuing ten (10) calendar days after CHCF gives Licensee written
notice of such nonpayment;
(ii) breach by Licensee of any covenant (other than a payment
breach referred to in clause (i) above) or any representation or
warranty contained in this Agreement that is continuing sixty (60)
calendar days after CHCF gives Licensee written notice of such breach;
provided that if Licensee, using its best efforts, cannot cure such
breach within the first sixty (60) days, the cure period shall be
extended by an additional sixty (60) calendar days, the total cure
period not to exceed one hundred twenty (120) days;
(iii) Licensee fails to comply with the terms of the license
granted under Article II hereof and such noncompliance is continuing
thirty (30) calendar days after CHCF gives Licensee notice of such
noncompliance;
(iv) Licensee becomes subject to a Bankruptcy Event;
(v) the dissolution or cessation of operations by Licensee; or
(vi) Licensee has failed to receive any fees for use or
sublicensing of the Licensed Program by December 31, 2001.
(b) NO WAIVER. No exercise by CHCF of any right of termination shall
constitute a waiver of any right of CHCF for recovery of any monies
then due to it hereunder or any other right or remedy CHCF may have at
law or under this Agreement.
(c) SUBLICENSES. Any sublicense(s) in effect at the time of such
termination by CHCF will be assigned to CHCF and will remain in full
force and effect so long as (1) Licensee is in full compliance with the
terms and conditions of any such sublicense(s), and (2) such
sublicense(s) are consistent with the terms of this Agreement, and (3)
CHCF has no obligation to provide any support, maintenance or other
service to sublicensee. The assignment will occur
15
automatically upon the request of Licensee, notwithstanding the
provision of 9.5 "Sublicenses".
9.3 TERMINATION BY LICENSEE. Licensee shall have the right to terminate
this Agreement, after the last day of the stated term of the Consulting
Agreement with or without cause, upon (90) days written notice to CHCF at which
point, subject to Section 9.5, all rights to the Licensed Work shall revert to
CHCF. No such termination shall constitute a waiver of any right of CHCF for
recovery of any monies then due to it hereunder or any other right or remedy
CHCF may have at law or under this Agreement.
9.4 RIGHTS AND DUTIES UPON TERMINATION. Within thirty (30) days after
termination of this Agreement, each party shall return to the other party any
Confidential Information of the other party. Licensee also shall return all
copies of Licensed Programs or other portions of the Licensed Work in its
possession that are embodied in physical form to CHCF promptly upon the
termination of this Agreement.
9.5 SUBLICENSES. Any sublicenses granted by Licensee under this
Agreement may survive termination of this Agreement in accordance with the terms
of such sublicense if so requested by CHCF, in which event the sublicense shall
be assigned to CHCF.
9.6 PROVISIONS SURVIVING TERMINATION. Licensee's obligation to pay
Royalties accrued but unpaid prior to termination of this Agreement shall
survive such termination. In addition, Sections 3.8, 3.9, 4.1, 8.2, 8.3 and this
9.6 and Articles V, VI and VII and any other provisions required to interpret
the rights and obligations of the parties arising prior to the termination date
shall survive expiration or termination of this Agreement.
ARTICLE X
ADDITIONAL PROVISIONS
10.1 SAFETY NET PROVIDERS. During the term of this Agreement, Licensee
shall provide the products and services relating to or derived from the Project
to Safety Net Providers at a price that is at least 25% less than the most
favorable then-current price offered for the same or similar products or
services, as the case may be, to similarly situated providers.
10.2 ANCHOR AGREEMENTS. Licensee shall enter into an agreement with
each Care Alliance Anchor in substantially the form set forth in Exhibit A
attached hereto. CHCF shall, in its sole discretion, have the right to approve
or disapprove of any schedule to such agreement or schedule to any exhibit of
such agreement prior to its effectiveness.
10.3 ASSIGNMENT. This Agreement and the rights and duties appertaining
thereto may not be assigned by the Licensee, directly or indirectly except to an
Affiliate of Licensee wherein Licensee guarantees performance of assignee or in
the case of
16
merger, acquisition or operation of law, without first obtaining the
written consent of CHCF. Any such purported assignment, without the written
consent of CHCF, shall be null and of no effect. No assignment shall relieve
Licensee of responsibility for the performance of any obligations which have
accrued prior to such assignment.
10.4 NO WAIVER. A waiver by either party of a breach or violation of
any provision of this Agreement must be in writing in order to be effective. No
waiver will constitute or be construed as a waiver of any subsequent breach or
violation of that provision or as a waives of any breach or violation of any
other provision of this Agreement.
10.5 INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to
establish a relationship of principal and agent between CHCF and Licensee, nor
any of their agents or employees for any purpose whatsoever. This Agreement
shall not be construed as constituting CHCF and Licensee as partners, or as
creating any other form of legal association or arrangement which could impose
liability upon one party for the act or failure to act of the other party.
10.6 NOTICES. Any notice under this Agreement shall be sufficiently
given if sent in writing by prepaid, first class, certified or registered mail,
return receipt requested, addressed as follows:
(a) if to CHCF, to:
California Healthcare Foundation
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxx, Chief Information Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to Licensee, to:
CareScience, Inc.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, President
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other addresses as may be designated from time to time by notice
given in accordance with the terms of this Section.
10.7 ENTIRE AGREEMENT; EFFECT ON EXISTING AGREEMENT. This Agreement
embodies the entire understanding between the parties relating to the subject
matter hereof and supersedes all prior understandings and agreements, whether
written or oral,
17
including without limitation Section 9 of the Consulting Agreement. The parties
acknowledge and agree that Section 9 of the Consulting Agreement is hereby
replaced in its entirety by this Agreement, which shall be deemed to apply to
all matters covered hereby since the effective date of the Consulting Agreement,
October 1, 1999, it being the intent of the parties that all such matters shall
be governed by this Agreement, rather than some by the provisions of Section 9
of the Consulting Agreement and others by this Agreement. This Agreement may not
be varied except by a written document signed by duly authorized representatives
of both parties.
10.8 SEVERABILITY. Any of the provisions of this Agreement which are
determined to be invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the remaining
provisions hereof or affecting the validity or unenforceability of any of the
terms of this Agreement in any other jurisdiction.
10.9 HEADINGS. Any headings and captions used in this Agreement are
for convenience of reference only and shall not affect its construction or
interpretation.
10.10 NO THIRD PARTY BENEFITS. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto or
their permitted assigns, any benefits, rights or remedies.
10.11 GOVERNING LAW. This Agreement shall be construed, governed,
interpreted and applied in accordance with the laws of the State of California,
without giving effect to conflict of law provisions.
10.12 COUNTERPARTS. This Agreement shall become binding when any one
or more counterparts hereof, individually or taken together, shall bear the
signatures of each of the parties hereto. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against the
party whose signature appears thereon, but all of which taken together shall
constitute but one and the same instrument.
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INTENDING TO BE BOUND, the parties hereto execute this Agreement through their
authorized representatives as of the date first written above.
CALIFORNIA HEALTHCARE FOUNDATION
By:/s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
CARESCIENCE, INC.
By:/s/ XXXXXX X. XXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: President
19
EXHIBIT A
FORM OF AMENDED AND RESTATED ANCHOR AGREEMENT
A-1
CARESCIENCE, INC.
AMENDED AND RESTATED ANCHOR AGREEMENT
THIS AMENDED AND RESTATED ANCHOR AGREEMENT ("Agreement") is entered
this _____ day of INSERT MONTH AND YEAR into by and between INSERT ANCHOR NAME
("Anchor"), a INSERT STATE AND TYPE OF ORGANIZATION located at INSERT ADDRESS,
and CareScience, Inc. ("CS"), a Pennsylvania corporation with offices at 0000
Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, XX 00000.
WHEREAS, the parties desire to participate in the evaluation of the
efficacy of community-wide data sharing within the County of Santa Barbara,
California (the "Project"), sponsored by the California Healthcare Foundation,
("CHCF") a California non-profit public benefit corporation located at 000 Xxxxx
Xxxxxx, Xxxxxxx, XX 00000, which project will be managed by CS;
WHEREAS, the parties intend that any data to be shared by them in
connection with the Project which is "protected health information" as defined
in proposed 45 C.F.R. Part 164 or any such succeeding final regulations (the
"HHS Regulations") shall be used only for treatment, payment or health care
operations, as defined in the HHS Regulations, unless prior written consent is
obtained from the individual subjects of such data or such data is de-identified
in compliance with the HHS Regulations;
WHEREAS, the parties both recognize that the Project is contingent upon
receipt of funds from CHCF;
WHEREAS, the parties are party to an Anchor Agreement, dated as of
________ (the "Original Anchor Agreement");
WHEREAS, the parties desire to amend and restate the Original Anchor
Agreement in its entirety as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS:
1.1 "ANCHOR" has the meaning set forth in the preamble.
1.2 "CARE DATA EXCHANGE PROJECT IP" means any and all IP used in,
developed during, or related to the data exchange project
funded by CHCF (the "Data Exchange Project"), which is a
project to develop (i) concepts related to, (ii) a methodology
for, and (iii) means of effecting the electronic distribution
and sharing or exchange of data through a site or sites
located on the world wide web, which data may consist of text,
graphics, still or moving images, audio files, e-mail or other
content.
1.3 "CHCF" has the meaning set forth in the preamble.
1.4 "CHCF INTELLECTUAL PROPERTY" means any and all IP which is
either Care Data Exchange Project IP or Vendor Certification
Project IP and not (i) data which solely identifies a specific
individual or entity, (ii) a standard software product (i.e.,
a product generally available for license to consumers (e.g.,
"Windows" or "Quicken" products)) licensed or purchased in the
ordinary course of business or (iii) a software product set
forth on Schedule 1.4 and which is solely an internal system
or process of an Anchor or member of a Care Alliance team
(i.e. not necessary to the functioning of any work included in
the Care Data Exchange Project IP or the Vendor Certification
Project IP).
1.5 "COMMITTEE" has the meaning set forth in Section 9.1.
1.6 "CS" has the meaning set forth in the preamble.
1.7 "DELIVERABLES" means those items that the Anchor is
responsible for delivering or ensuring the delivery of in
order to comply with the terms and conditions of this
Agreement as set forth in Exhibit 1.7 or as otherwise required
to receive payment from CHCF.
A-2
1.8 "EFFECTIVE DATE" means INSERT DATE, the date upon which the
services under this Agreement began in support of the Project;
1.9 "IP" means any and all business models, copyrights, data,
software, technical and other documentation, trade secret
rights (including any that may be included in any patent
applications), and all other intellectual property rights as
may now exist or hereafter come into existence and be
protectable by law anywhere throughout the world, and all
applications and registrations therefor, patent rights, and
name, xxxxx, xxxx trademark, service xxxx, trade dress,
business name or other indicia of origin including without
limitation any registrations, applications and renewals
therefor.
1.10 "ORIGINAL ANCHOR AGREEMENT" has the meaning set forth in the
preamble.
1.11 "PARTICIPANTS" means those organizations listed on Exhibit 1.7
(as may be amended from time to time by written agreement of
the parties) with whom Anchor has entered into a Care Data
Alliance Agreement described in Section 6.1.
1.12 "PLANNING DOCUMENT" is defined under the Deliverables in
Exhibit 1.7.
1.13 "PROJECT" has the meaning set forth in the preamble.
1.14 "PROJECT COMPENSATION" is defined under Compensation in
Section 7.1.
1.15 "VENDOR CERTIFICATION PROJECT IP" means any and all IP used
in, developed during, or related to the vendor certification
project funded by CHCF, which is a project to develop (i)
concepts related to, (ii) a methodology for, and (iii) means
of effecting the electronically-enabled application for
certification of vendors or suppliers of goods or services to
be used in connection with the Data Exchange Project or any
similar data exchange project ("Project Vendors"),
certification of Project Vendors, promulgation of Project
Vendor standards, distribution of tools and/or information
about tool sets required for Project Vendor certification, and
to display Project Vendors' certification status and results.
1.16 All other capitalized terms used, but not defined herein have
the meaning ascribed to such terms in the Santa Xxxxxxx County
Data Exchange Accord.
2. TERM OF ENGAGEMENT.
2.1 CS hereby engages Anchor on the terms and conditions as
defined herein to take on the responsibilities as specified
for Anchor in this Agreement and to develop or to ensure the
development of the Deliverables in accordance with the
description and timeline as set forth in Exhibit 1.7 attached
hereto.
2.2 The term of this Agreement ("Term") shall be for a period from
the Effective Date through INSERT TERMINATION DATE and shall
automatically terminate on INSERT TERMINATION DATE or upon the
completion of the scope of work as stated in Exhibit 1.7,
whichever comes first, unless otherwise terminated earlier as
allowed herein.
3. PROVISION OF SERVICES. Anchor may, at Anchor's discretion and at
Anchor's own expense, use consultants or other third parties to perform
the services required to generate the Deliverables required under this
Agreement so long as Anchor guarantees the performance of any such
consultants or third parties and provides written notice to CS of its
intent to use such any such consultants or third parties.
4. TERMINATION.
4.1 MUTUAL TERMINATION RIGHTS.
4.1.1 BREACH. Either party may terminate this Agreement
upon the provision of at least four (4) weeks advance
written notice to the other party in the event that
the other party is in breach of a material provision
of this Agreement and fails to cure that breach to
the reasonable satisfaction of the other party within
four (4) weeks of receipt of notice (or such longer
time that may be specified in the notice).
4.1.2 CESSATION OF OPERATIONS OR BANKRUPTCY. In the event
either party ceases its business operations or files
for or declares bankruptcy or is otherwise deemed
insolvent, then the other party may, subject to the
restrictions imposed by federal bankruptcy law, at
its sole
A-3
discretion, terminate this Agreement upon
giving written notice of termination to the other
party.
4.1.3 Either party may terminate this Agreement upon the
provision of at least four (4) weeks advance written
notice to the other party.
4.2 CS RIGHT OF TERMINATION.
4.2.1 ANCHOR'S INABILITY TO PRODUCE DELIVERABLES. If in
CS' reasonable judgment, it determines that Anchor
will be unable to produce the Deliverables required
under this Agreement according to the schedule set
forth in Exhibit 1.5, CS reserves the right to
terminate this Agreement upon four (4) weeks' written
notice to Anchor unless Anchor is able to demonstrate
to CS' reasonable satisfaction that it will be able
to produce the Deliverables and that demonstration
occurs within four (4) weeks of receipt of CS' notice
of termination.
4.2.2 FAILURE TO PRODUCE DELIVERABLES IN A PROFESSIONAL
MANNER. Anchor's failure to perform the services
required to produce the Deliverables in a
professional manner, as determined by CS in its sole
discretion, shall constitute a material breach of
this Agreement. CS reserves the right to terminate
this Agreement if Anchor repeatedly fails to produce
the Deliverables in a professional manner upon four
(4) weeks' written notice to Anchor, unless Anchor is
able to demonstrate to CS' satisfaction that it will
be able to produce the Deliverables in a professional
manner and that demonstration occurs within four (4)
weeks of receipt of CS' notice of termination. Anchor
shall be solely responsible for the professional
performance of the services required to produce the
Deliverables, and shall receive no assistance from,
and will not be under the control of, CS.
4.2.3 CHCF'S TERMINATION OF THIS PROJECT. CS may terminate
this Agreement upon the provision of two (2) days
advance written notice in the event that CHCF
terminates its project contract with CS.
4.3 LIMITATION ON POST-TERMINATION PAYMENT OBLIGATIONS. In the
event that CS terminates this Agreement under the provisions
of Sections 4.1.1, 4.1.3, 4.2.1, or 4.2.2, (A) neither CS nor
CHCF shall have any further payment obligation to Anchor
except for any Project Compensation (as defined below)
contingent upon Deliverables already made and accepted by CS
but not yet paid to Anchor and (B) Anchor shall immediately
refund to CHCF any payments advanced to it for Deliverables
not yet made or accepted by CS. In the event that CS
terminates this Agreement under the provisions of Sections
4.1.2 or 4.2.3 or Anchor terminates this Agreement under
Section 4.1.1, Anchor shall be reimbursed for all reasonable
expenses that would otherwise be allowed under this Agreement
that have been incurred by but not yet reimbursed to Anchor.
If Anchor has any funds in excess of these expenses they shall
be immediately refunded to CHCF. In the event that Anchor
terminates this Agreement under the provisions of Section
4.1.3, Anchor shall immediately inform CS of its termination
in writing, shall refund funding for any incomplete
deliverables on a pro-rated basis directly and immediately to
CHCF and shall deliver all CHCF Intellectual Property in
Anchor's possession directly and immediately to CHCF.
5. CARE DATA EXCHANGE.
5.1 Anchor has signed the Santa Xxxxxxx County Care Data Exchange
Accord, a copy of which is attached hereto as Exhibit 5.1, and
will remain an active Member of the Care Data Exchange at all
times during the Term of this Agreement. Anchor will use its
best efforts to develop and support the growth and expansion
of the Care Data Exchange, participate on the Care Data
Exchange Council and attend all Care Data Exchange meetings.
5.2 Anchor will allow external parties to engage in discussions
with and visit Anchor's premises and use reasonable efforts to
allow such parties to engage in discussions with and visit
Participants' premises from time to time upon request and
reasonable notice from CS in furtherance of understanding
and/or assessing the success of the Project, and will
cooperate with such parties' reasonable requests to meet with
Anchor's representatives and/or Participants' representatives.
A-4
5.3 Anchor will participate in all Care Data Exchange Conferences
and Vendor Exhibitions held in or within __[INSERT A NUMBER]
miles of Santa Xxxxxxx County.
6. CARE DATA ALLIANCE AGREEMENTS.
6.1 As part of its Deliverables, Anchor will enter into a Care
Data Alliance Agreement, in the form attached as Exhibit 6.1,
with the Participants. Anchor may not enter into, amend,
terminate or waive any rights under a Care Data Alliance
Agreement without CS' advance written approval unless this
Agreement has been terminated.
6.2 Anchor will lead and participate in the Care Data Alliance and
ensure that Participants participate in the Care Data
Alliance.
6.3 Anchor will make payments to Participants according to the
Payment Schedule set forth in Exhibit 7 and in accordance with
the Care Data Alliance Agreement.
6.4 Neither the Anchor nor the Participant may use funds provided
under this agreement to purchase, lease or otherwise contract
for technology that is not certified by CS. Anchor
acknowledges and agrees that although CS has the right to
certify any purchase or use of technology, CS is not
guaranteeing that such technology will work or be compatible
with the Project.
7. COMPENSATION.
7.1 COMPENSATION. Compensation will be paid to Anchor by CHCF in
accordance with the payment schedule set forth in Exhibit 7
and in accordance with the approvals and instructions provided
by CS as set forth in its agreement with CHCF dated October 1,
1999. Anchor hereby acknowledges and agrees that CHCF may not
modify the Deliverables or the Payment Schedule without the
advance written approval of CS. Anchor further acknowledges
and agrees that CHCF (and not CS) is providing the payments
set forth in Exhibit 7 (the "Project Compensation") and that
CS shall have no liability to Anchor or any other person if
CHCF fails to pay any Project Compensation due to Anchor.
7.2 FUNDS ARE TO BE USED ONLY FOR DELIVERABLES. The Project
Compensation funds may not be used for any purposes other than
those specifically required to meet the Deliverables and that
are consistent with the purpose of the project. Anchor is
responsible for all expenses other than those specifically
provided for in this Agreement.
7.3 AUDITS. Anchor shall maintain full and complete records (which
shall be made available to CS and/or CHCF and their respective
agents) to the extent reasonably required by CS and/or CHCF to
permit CS and/or CHCF (or their respective agents) to audit
invoices related to project expenditures. CS or CHCF (or their
respective agents), at its own expense, will periodically
audit a selected number of its contracts. If Anchor is
selected for an audit, Anchor shall provide all reasonable
assistance in connection with such audit. Anchor acknowledges
and agrees that CS may provide to CHCF copies of any and all
information provided to CS by Anchor related to the Project or
this Agreement. Records must be kept for at least three (3)
years after completion of this Agreement.
7.4 NO OTHER OBLIGATIONS OF CHCF. CHCF shall have no obligation or
liability to Anchor for any performance or non-performance
under this Agreement by CS, or for any payments, liabilities
or obligations of Anchor or CS other than the Project
Compensation payable in accordance with the other terms and
conditions hereof.
8. INDEPENDENT CONTRACTOR.
8.1 Anchor enters into this Agreement as, and shall continue to
be, an independent contractor. Under no circumstances shall
Anchor look to CS or CHCF as its employer, or as a partner,
agent or principal. Anchor shall not be entitled to any
benefits which may be accorded to CS's or CHCF's employees,
including workers' compensation, employee benefit plans,
disability insurance, vacation or sick pay. Anchor shall be
responsible for providing, at Anchor 's expense, and in
Anchor's name, disability, workers' compensation or other
insurance as well as licenses and permits usual or necessary
for performing the Services.
A-5
8.2 Anchor shall be responsible for all wages, withholding,
workers compensation and all other fringe benefits for its
employees. Anchor is not an agent of CS or CHCF, nor shall
Anchor possess any right or authority to bind CS or CHCF in
any manner without the consent of CS or CHCF as the case may
be. None of Anchor's employees shall hold themselves out to
third parties to be, or otherwise represent in any manner that
they are, an officer, director, agent or employee of CS or
CHCF or their affiliates, or that such employee of Anchor has
authority to bind CS or CHCF or any of their affiliates.
8.3 Anchor shall pay, when and as due, any and all taxes incurred
as a result of the compensation paid to Anchor hereunder,
including any estimated taxes, and shall provide CS with proof
of payment on demand.
8.4 Anchor hereby represents and warrants to CS that it has
verified the immigration status of each of its employees as
required by applicable law and regulations, and is in
compliance with all applicable federal immigration law and
regulations with respect to each of its employees.
9. INTELLECTUAL PROPERTY.
9.1 Anchor acknowledges and agrees, for good and valuable
consideration, including, without limitation, that specified
in Section 7 hereof, that all CHCF Intellectual Property and
all intellectual property rights therein and appurtenant
thereto, including, without limitation, all intellectual
property arising in or developed as a result of Anchor's
participation in the Committee, are and will remain the sole
and exclusive property of CHCF except as otherwise determined
in writing by CHCF. Anchor further agrees to assign (or cause
to be assigned) and does hereby assign fully to CHCF all of
Anchor's worldwide rights, title and interest, if any,
worldwide in such CHCF Intellectual Property and all
intellectual property rights therein and appurtenant thereto,
including, without limitation, any copyrights, patents, patent
applications, trademarks, and trade names. CHCF shall have the
right to obtain and hold in its own name patents, copyright
registrations, or other such protection as may be appropriate
to the subject matter, and any extensions and renewals
thereof. Anchor agrees to give CHCF and any person designated
by CHCF such reasonable assurance and assistance (at CHCF's
expense for all out-of-pocket costs incurred in connection
therewith) as is required to obtain patents, copyright
registrations or otherwise to perfect CHCF's rights in any
CHCF Intellectual Property. As used herein "Committee" shall
mean any committee or group constituted to consider the
Project, or any aspect thereof.
9.2 Anchor acknowledges and agrees that CHCF will at all times
have the right, in its sole and exclusive discretion, to sell,
license, or otherwise exploit in any medium now or hereafter
known, any of the CHCF Intellectual Property.
9.3 Anchor agrees that if CHCF is unable because of Anchor's
unavailability, incapacity, or for any other reason, to secure
a signature by or on behalf of Anchor or to pursue any
application for any United States or foreign patents or
copyright registrations covering the CHCF Intellectual
Property assigned to CHCF herein, then Anchor hereby
irrevocably designates and appoints CHCF and its duly
authorized officers and agents as Anchor's agent and attorney
in fact, to act for and on Anchor's behalf and stead to
execute, acknowledge, deliver and file any such applications
and to do all other lawfully permitted acts to further the
prosecution and issuance of patents and copyright
registrations thereon with the same legal force and effect as
if executed by Anchor.
9.4 Anchor agrees that Anchor will not have or be deemed to have
any lien, charge or other encumbrance upon any of the rights
conveyed to CHCF herein, the CHCF Intellectual Property, or
any proceeds derived therefrom, and that no act or omission by
CHCF or CS, nor any other act, omission or event of any kind,
will terminate or otherwise adversely affect CHCF's ownership
of the rights conveyed herein.
9.5 Anchor agrees to secure a right on behalf of CHCF identical to
this right in any agreements with any Participants.
10. MUTUAL CONFIDENTIALITY.
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10.1 Both parties acknowledge that during the course of this
Agreement, either party may have access to information which
is confidential to, or a trade secret of, the other party or
CHCF. Both parties agree not to disclose any such information,
regardless of the form or format in which, or means by which,
the other party becomes aware of such information, to any
third party without the specific written authorization of the
other party or CHCF as the case may be. For the purposes of
this Agreement, trade secrets and confidential information
shall not include information that (i) is generally available
to the public (other than as a result of a disclosure by a
party hereto or its affiliates), or (ii) is available to such
party on a non-confidential basis from a source that is not
prohibited from disclosing such information to such party.
10.2 All CHCF Intellectual Property shall be deemed trade secret
and/or confidential information of CHCF, and Anchor shall not,
and shall have no right to disclose or authorize the
disclosure of such information to any person or entity without
the prior written consent of CHCF. Notwithstanding the
foregoing, officers of Anchor shall be allowed to speak
publicly about the processes and materials developed in the
course of Anchor's performance of this Agreement so long no
CHCF Intellectual Property is disclosed without CHCF's
consent.
10.3 Both parties agree to take whatever measures are reasonably
necessary, by notice, agreement or otherwise, to ensure that
any employee of either party, or anyone provided access
thereto by either party shall be personally bound to maintain
the confidentiality of any and all information acquired in the
course of providing services under this Agreement.
11. INDEMNIFICATION.
11.1 Anchor hereby agrees to indemnify, defend and hold harmless CS
and CHCF, and CS's and CHCF's officers and directors from and
against any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and
deficiencies, including interest and penalties, and reasonable
attorneys' fees and costs, that CS or CHCF may incur or suffer
and that result from, or are related to, (i) any breach or
failure of Anchor to perform any representations, warranties,
covenants or other agreements contained in this Agreement,
including, but not limited to, Anchor's failure to produce the
Deliverables in accordance with the schedule set forth on
Exhibit 1.5, (ii) any assertion, claim or cause of action by
any employee or consultant of Anchor that such consultant or
employee is entitled to any benefits form CS or CHCF, or (iii)
Anchor's breach of the Care Data Alliance Agreement.
11.2 Each party shall indemnify and hold the other party harmless
from and against any and all claims, liabilities, injuries,
suits, demands and expenses of all kinds (including reasonable
attorney's fees) that may result or arise out of the other
party's negligent, reckless, deliberate, illegal or fraudulent
acts or omissions. In the event that a claim is made against
both parties, it is the intent of both parties to reasonably
cooperate in the defense of said claim.
12. REPRESENTATIONS OF ANCHOR. Anchor represents and warrants that Anchor
has the qualifications and ability to perform the services required to
produce the Deliverables in a professional manner, without the advice,
control, or supervision of CS. Anchor further represents and warrants
that Anchor possesses any and all licenses and governmental approvals
required in order for Anchor to perform the services required to
produce the Deliverables. Anchor's execution of this Agreement and its
performance of the services contemplated herein do not and will not
contravene any laws, regulations or rules of any state, federal, or
non-governmental regulatory body. No consent of any third party is
required for the execution by Anchor of this Agreement and the
performance of the services contemplated herein. Anchor's
representations and warranties in this Agreement shall survive
termination of this Agreement.
13. GENERAL PROVISIONS.
13.1 BINDING ON SUCCESSORS. Subject to any restrictions stated in
any other provision of this Agreement, this Agreement shall be
binding on and shall inure to the benefit of the parties and
their respective successors and permitted assigns. Except for
CHCF, none of the provisions of this
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Agreement is intended to provide any rights or remedies to any
person (including without limitation any employees or
creditors of either of the parties hereto), other than the
parties and their respective successors and permitted assigns.
Notwithstanding the rights and remedies expressly conferred on
CHCF herein, CHCF is not a party to this Agreement, and shall
have no obligations to Anchor or CS, or be responsible in any
way for the performance or non-performance of Anchor or CS
hereunder, provided that CHCF shall make the Project
Compensation payments to Anchor subject to the other terms and
conditions hereof.
13.2 PARTIAL INVALIDITY/SEVERABILITY. Should any of the provisions
of this Agreement be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity
or enforceability of any other provision of this Agreement.
13.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter of this
Agreement and supersedes all prior oral or written
understandings and agreements including, but not limited to,
any and all consulting or consultancy agreements, promissory
notes, summary of agreements, discharge agreements,
non-disclosure agreements, reduction of debts agreements, and
any other document executed between the parties or their
agents, employees, officers or shareholders.
13.4 AMENDMENTS; WAIVERS. No provision of this Agreement may be
changed, extended, waived, modified, discharged or terminated,
except by a written instrument executed by the parties hereto,
provided that no such amendment, modification, discharge or
termination shall be effective unless and until CHCF agrees
thereto in writing.
13.5 NOTICE. Any notice, payment, report or any other communication
required or permitted to be given by one party to the other
party by this Agreement shall be in writing, shall be deemed
effective upon receipt and shall be either (a) served
personally on the other party, (b) sent by express, registered
or certified first-class mail, postage prepaid, addressed to
the other party by like notice, or (c) delivered by commercial
courier to the other party, at the following address:
To CS:
CareScience, Inc.
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: President
To Anchor :
INSERT ADDRESS 1
INSERT ADDRESS 2
INSERT ADDRESS 3
Phone: INSERT PHONE
Facsimile: INSERT FAX
Attention: INSERT CONTACT
13.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of
California, without giving effect to conflicts of law
principles.
13.7 TITLES AND HEADINGS. Title and headings to sections,
subsections and sub-subsections of this Agreement are for the
purposes of reference only and shall not affect the
interpretation of this Agreement.
13.8 COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall be deemed to be an original,
but all of which together will constitute one and the same
instrument.
13.9 TAX MATTERS. Nothing in this Agreement shall be construed to
require CS or CHCF to take any action that would violate any
federal or state law, rule or regulation, including, but not
limited to, the rules governing organizations classified as
private foundations as set forth in the Internal Revenue Code,
and any state laws concerning the operation of charitable
trusts or private foundations. CS has the authority to report
any payments made hereunder to the Internal Revenue
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Service, and to make any withholdings as required by the
Internal Revenue Code or any applicable state law.
13.10 SURVIVAL. In the event of any expiration or termination of
this Agreement, provisions hereof which are intended to
continue and survive shall so continue and survive, including,
but not limited to, the provisions of Sections 4.3, 7.3, 7.4,
8, 9, 10, 11, 12 and 13.
13.11 ASSIGNMENT. This Agreement and all rights and obligations
hereunder may not be assigned or transferred by Anchor, except
with the prior written consent of CS.
13.12 POLITICAL ACTIVITIES. Funds from this Agreement may not be
used for any purposes other than those that directly support
the project. Prohibited purposes include but are not limited
to: to carry out propaganda, or otherwise attempt to influence
legislation; to influence the outcome of any specific public
election or to carry on directly or indirectly any voter
registration drive.
13.13 USE OF NAME, ACKNOWLEDGEMENT AND PUBLICITY. Anchor may not
publish or otherwise disclose in writing or in computer form,
and shall use reasonable efforts not to allow any Participant
to publish or otherwise disclose in writing or in computer
form, any information regarding the project including but not
limited to press releases or project results without prior
approval by CS and CHCF. CS or CHCF may issue press releases
without prior consent of Anchor or Participant so long as any
description of Anchor or Participant has been pre-approved,
and such description is hereby attached hereto as Exhibit
13.13. Anchor may not otherwise use CS's or CHCF's names
except as specified in this Agreement. Any publication
produced by Anchor that refers to or results from this Project
shall include an acknowledgment of CHCF and CS that reads:
SUPPORTED BY THE CALIFORNIA HEALTHCARE FOUNDATION, BASED IN
OAKLAND, CALIFORNIA. THE FOUNDATION IS A NON-PROFIT
PHILANTHROPIC ORGANIZATION WHOSE MISSION IS TO EXPAND ACCESS
TO AFFORDABLE, QUALITY HEALTH CARE FOR UNDERSERVED INDIVIDUALS
AND COMMUNITIES, AND TO PROMOTE FUNDAMENTAL IMPROVEMENTS IN
THE HEALTH STATUS OF THE PEOPLE OF CALIFORNIA. THIS PROJECT
WAS MANAGED BY CARESCIENCE, INC., WHICH PROVIDES
INTERNET-BASED TOOLS DESIGNED TO IMPROVE THE QUALITY AND
EFFICIENCY OF HEALTH CARE. CARESCIENCE'S OBJECTIVE IS TO
FACILITATE IMPROVEMENTS IN HEALTH CARE QUALITY AND EFFICIENCY
BY USING THE INTERNET TO BECOME THE LEADER IN COLLECTION,
ANALYSIS AND EXCHANGE OF COMPREHENSIVE, COMMUNITY-WIDE
CLINICAL DATA. CARESCIENCE'S PRODUCTS ALLOW HOSPITAL, HEALTH
SYSTEM, HEALTH PLAN, PHYSICIAN AND PHARMACEUTICAL MANUFACTURER
USERS TO COST-EFFECTIVELY EVALUATE AND MANAGE THE KEY QUALITY
FACTORS IN CARE DELIVERY.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the parties
effective as of the day and year first written above.
For CareScience, Inc.
By:
------------------
Name:
----------------
Its:
-----------------
For Anchor
----------------------
By:
------------------
Name:
----------------
Its:
-----------------
Tax ID
---------------
Date: _________________________
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EXHIBIT 1.7
-----------
DELIVERABLES
INSERT ANCHOR ORGANIZATION NAME
Anchor agrees to professionally and competently complete the following
deliverables to CS' reasonable satisfaction according to the schedule below and
to submit to CS each deliverable by the agreed upon due date.
DELIVERABLES DUE DATE/
TIMEFRAME
Sign Care Data Exchange Accord Completed:INSERT DATE
Enter into Care Data Alliance Agreements Within 30 days of
as provided by CS with self-selected execution of this
Santa Xxxxxxx Care Data Exchange Members Agreement
Develop Care Data Alliance Data Security
Policies and Procedures.
Milestone
Deliverable to be submitted
Milestone
Deliverable to be submitted
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EXHIBIT 1.11
CARE DATA ALLIANCE PARTICIPANTS
INSERT ANCHOR ORGANIZATION NAME
LIST PARTICIPANTS HERE
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EXHIBIT 6.1
CARE DATA ALLIANCE AGREEMENT
INSERT ANCHOR ORGANIZATION NAME
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EXHIBIT 7
PAYMENT SCHEDULE
INSERT ANCHOR ORGANIZATION NAME
CHCF will make payments to Anchor according to the following Payment Schedule
provided CS certifies to CHCF that (i) Anchor is not in breach of this
Agreement, and (ii) has met all conditions to such payment as set forth herein.
This Agreement comprises payment solely for process and labor-related
deliverables specifically provided for in this agreement and not including
vendor-specific technologies.
Total project costs: not to exceed INSERT MAXIMUM AMOUNT
Payments will be made in three phases:
$xxx,xxx Initial payment to be made within 30 days of receipt of a
fully executed Care Data Alliance Agreement.
$xxx,xxx Second payment to be made within 30 days of receipt and
CS' approval of the "Planning Document" noted in Exhibit 1.7
and evidence of compliance with all other Responsibilities as
outlined in Exhibit 1.7.
$xxx,xxx Third payment to be made within 30 days of successful
completion of all Responsibilities and Deliverables as
outlined in Exhibit 1.7.
Anchor will make payment to contracted Care Data Alliance Participants for the
following amounts according to the Payment Schedule outlined in the Care Data
Alliance Agreement as defined in Exhibit 6.1.
Participant $xx
Participant $xx
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SCHEDULE 1.4
SOFTWARE PRODUCTS ONLY FOR INTERNAL SYSTEM OR PROCESS
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