LICENSE AND MAINTENANCE AGREEMENT
FACTS
This License and Maintenance Agreement (hereinafter referred to as
"Agreement") is made as of the date indicated below by and between FACTS
Services, Inc., a Florida corporation (hereinafter referred to as
"Licensor"), and the party executing this Agreement as Licensee (hereinafter
referred to as "Licensee").
WHEREAS, Licensor hereunder is the sole licensee under that certain
License Agreement dated April 5, 1989, with JOVAST, Inc. a Florida
corporation, (hereinafter referred to as "OWNER"), the sole owner of all
rights, both tangible and intangible, to a certain computer software system
known as FACTS* (hereinafter referred to as "SYSTEM"); and,
WHEREAS, SYSTEM is comprised of certain modules (hereinafter referred to
as "Modules"); and,
WHEREAS, Licensee desires to license and receive maintenance services
for certain Modules from Licensor as set forth on Schedule 1, attached hereto
and made a part hereof, under "SYSTEM"; and,
WHEREAS, Licensor desires to provide Licensee with a license for said
Modules and provide such maintenance services to Licensee.
NOW, THEREFORE, for and in consideration of the covenants and promises
herein recited, it is understood, acknowledged and agreed by the parties as
follows:
1. GRANT AND TERM. Subject to the terms and conditions specified
herein, Licensor grants to Licensee a non-transferable, nonexclusive Five (5)
year license to use a copy of the object code of SYSTEM (hereinafter referred
to as "Object Code") as provided by Licensor and all related documentation and
manuals, as more fully described on Schedule 1. After expiration of the
initial five (5) year term of this Agreement, this Agreement shall
automatically renew in full force and effect for all subsequent five (5) year
periods in which Licensee shall have prepaid to Licensor the License Renewal
Fee (hereinafter referred to as "LICENSE RENEWAL FEE") specified in Schedule 1
for each five (5) year period after the initial five (5) year period. The
LICENSE RENEWAL FEE must be paid by Licensee to Licensor prior to the renewal
of any five (5) year period, including the initial five (5) year period. Such
license shall be for Licensee's internal use only and used only on the
computer system (hereinafter referred to as "COMPUTER") specified in Schedule
2 attached hereto and made a part hereof and only at the location (hereinafter
referred to as "LOCATION") set forth below. Licensee may not transfer SYSTEM
to any other computer system without the prior written approval of Licensor.
Further, Licensee may not transfer SYSTEM to any other computer system without
the payment of the Software Transfer Fee pursuant to Section 4 herein.
Licensee recognizes that more than one copy of SYSTEM will be licensed to
others, and that this does not evidence an intent by Licensor or OWNER to
publish SYSTEM, and shall not be construed as such a publication, nor does
such multiple licensing evidence any intent by Licensor or OWNER not to treat
the SYSTEM as its trade secret. Also, see Section 22, THIS AGREEMENT
SUPERSEDES ALL PRIOR AGREEMENTS.
2. SCOPE OF USE. One copy of SYSTEM must be licensed for each computer
system upon which SYSTEM is installed. Licensee may purchase additional
licenses from Licensor if Licensee desires to install SYSTEM on another
computer system other than Licensee's COMPUTER or at another location. SYSTEM
may only be used by employees of Licensee at the LOCATION of the COMPUTER. The
employees shall be actual employees of Licensee and shall not provide any
SYSTEM-related services or disclose any information relating to the SYSTEM to
any person or entity other than Licensee during or after the term of their
employment. Further, employees shall specifically exclude any former employees
of Licensor, CGData, FACTS Services, Inc., or JOVAST, Inc., unless prior
written approval is given by Licensor. Licensee is authorized to use SYSTEM in
the course of the rendering professional advice to Licensee's clients, who are
not competitors or clients of Licensor. Licensee is expressly prohibited
without the prior
-------------------------------------------------------------------------------
*FACTS-R- is a registered trademark of JOVAST Inc. Page 1
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
written consent of the Licensor from (i) giving any person, including without
limitation, its clients and customers, direct access to SYSTEM; except that
Licensee may provide access to SYSTEM to its client American Care Source for
use of the FACTS CASE MANAGEMENT-TM- and FACTS PPO-TM-Modules; (ii) renting or
lending, with or without charge, COMPUTER or any computer system, which
includes SYSTEM to any person, including without limitation, Licensee's
clients; (iii) operating at any time an on-line or off-line customer service
bureau involving SYSTEM; or (iv) using, or allowing others to use, including
without limitation, Licensee's clients, SYSTEM in a time sharing, multiple
user or multiple computer system environment in which the COMPUTER would be
part of, or in a network which extends beyond the LOCATION of the COMPUTER.
Regardless of the number of computer systems installed at a particular site,
one additional copy of SYSTEM must be licensed for each additional computer
system upon which SYSTEM is installed or used. At no time shall SYSTEM be used
to service (including repricing claims and processing claims) any insured not
in SYSTEM.
3. PAYMENT. Payments for use of SYSTEM shall be due in accordance with
the payment schedule set forth in Schedule 3 attached hereto and made a part
hereof. Prices reflected in Schedule 3 and all invoices from Licensor are
stated and payable in U.S. dollars. Licensee shall pay, or upon receipt of
invoice from Licensor, shall reimburse Licensor for, all sales, use, property,
customs, excise or other taxes (however designated and whether foreign or
domestic) imposed on Licensee or required to be collected by Licensor, or
imposed on SYSTEM or Modules, irrespective of whether included in any prior
invoice sent to Licensee at any time by Licensor. All invoices sent to
Licensee are sent at the end of the calendar month for most charges incurred
in that month that were not prepaid. Any delay in payment exceeding the due
date shall be assessed at the higher of a 1.5% finance charge per month or
portion thereof or the maximum finance charge available by law. The finance
charge shall be charged on a monthly basis. Freight, insurance, shipping and
handling charges are not included in price quotes given to Licensee by
Licensor. Such charges will be invoiced to Licensee at the time of shipment.
In the event that Licensee uses Licensee's purchase order form in connection
with this Agreement or for any products or services requested from Licensor,
such order will be governed by the terms and conditions (referred to as
"provisions" in this section) of this Agreement and any provisions of such
order form which in any manner differs from or is in addition to the
provisions of this Agreement shall be of no force or effect. Licensor's
acceptance of such order is expressly made conditional on Licensee's assent to
the provisions of this Agreement. Any acknowledgment by Licensee of this
Agreement shall be limited to the provisions of this Agreement, and any
provision in such acknowledgment which in any manner differs from or is in
addition to the provisions of this Agreement shall be of no force or effect.
Commencing thirty (30) days after the earlier of Licensee's or Licensor's
signature below and continuing quarterly thereafter, Licensee agrees to pay
Licensor the quarterly licensing fee (hereinafter referred to as "Quarterly
Fee") specified in Schedule 4 attached hereto and made a part hereof. Licensor
may not increase this licensing fee more than once in any 12 month period and
only upon thirty (30) days' notice to Licensee; notwithstanding the foregoing,
the Quarterly Fee shall be subject to change if Licensee purchases additional
software licenses or extends the scope of SYSTEM or licenses additional
Modules, third party software, sites or computers or increases or expands its
operations to require additional support in which case said fees may be
increased by Licensor's published rates. It is acknowledged and agreed that
Quarterly Fees are past due if they are not received in Licensor's office by
the first day of the calendar quarter for such calendar quarter.
4. INSTALLATION/SOFTWARE TRANSFER/SOFTWARE RELICENSING FEES. Licensor
shall be responsible for installation of SYSTEM on the COMPUTER specified in
Schedule 2 and Licensor shall provide Licensee with all documentation
applicable to Modules in SYSTEM on or before the installation of COMPUTER at
LOCATION. All fees and charges relating to such installation are specified in
Schedule 2 and shall be payable in accordance with the terms thereof. In the
event that Licensee desires to transfer SYSTEM to another computer system,
Licensee will be required to pay Licensor the Software Transfer Fee that
Licensor has in effect at the time the system is transferred. The Software
Transfer Fee is a combination of the amount of work required to transfer
SYSTEM to the new computer and the configuration of the new computer. In the
event that Licensee desires to upgrade the COMPUTER, Licensee shall pay
Licensor the Software Relicensing Fee that Licensor has in effect at the time
the COMPUTER is upgraded. In the event that Licensee desires to increase the
total number of ports or users on the COMPUTER, Licensee shall pay the
Additional Licensing Fees specified in Schedule 3 to Licensor.
-------------------------------------------------------------------------------
Page 2
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
5. TRAINING. Licensor hereby agrees to furnish, and Licensee hereby
agrees to pay for, those training services set forth in Schedule 1.
6. TITLE, RISK OF LOSS AND NON-ASSIGNABILITY. Title to SYSTEM, all
property rights therein and all documentation and all other materials supplied
to Licensee under this Agreement are and shall remain the sole property of
OWNER. After delivery and installation of SYSTEM, Licensee shall bear all risk
of loss relating to the copy of SYSTEM licensed hereunder, except as otherwise
provided herein. The license to use SYSTEM hereunder is personal to Licensee
and Licensee shall not sell, transfer, sublease, assign, or deliver SYSTEM
(or any copy of SYSTEM) or such license to any other person or entity
including any entity that controls, is controlled by, or is under common
control with Licensee. All applicable rights to patents, copyrights,
trademarks, and trade secrets in SYSTEM shall remain in OWNER.
7. MODIFICATION. Licensee is expressly prohibited from modifying, any
portion of SYSTEM for any purpose or from merging SYSTEM, in whole or in part,
into any other program materials. Licensee shall not modify, clone, tolerate
or permit to occur any design theft, disassembling, decompiling, or otherwise
reverse engineering: in whole or in part, SYSTEM; Licensor's Security
Features; any Source Code of SYSTEM or Source Code that interacts with SYSTEM
or any part thereof; any Object Code; or any other programs, or program
materials, whether developed by Licensee or Licensor, at any time, for any
reason. Further, Licensee shall not compile Source Code or compile any
enhancements or modifications to Source Code of SYSTEM or produce any Object
Code that would or does replace Object Code, in whole or in part, of SYSTEM in
any manner whatsoever.
8. CONFIDENTIALITY, NON-DISCLOSURE AND NON-REPRODUCTION OF PROPRIETARY
INFORMATION. Each party acknowledges that certain material and information
including this Agreement, its terms and conditions, which has or will come
into its possession or knowledge in connection with this Agreement includes
identified confidential or proprietary information, disclosure of which to
third parties may be damaging. Therefore, each party agrees to hold such
material and information in strictest confidence, to be used only for the
performance of this Agreement, and to be released only to those persons
requiring access to the information for such performance. Licensee understands
and agrees that SYSTEM and related documentation, manuals, and materials
constitute confidential and proprietary information or trade secrets of
Licensor. Licensee agrees to maintain SYSTEM and all related documentation,
manuals and materials in strict confidence and, except for the right of
Licensee to make one copy of SYSTEM for backup purposes to support its use of
SYSTEM in the manner specified herein, Licensee agrees not to disclose,
duplicate or otherwise reproduce, directly or indirectly, SYSTEM, in whole or
in part, or any documentation, manuals or materials relating thereto. Licensee
agrees to take all reasonable steps to ensure that only full-time employees of
Licensee shall have access to SYSTEM and that all authorized persons having
access to SYSTEM shall refrain from any such disclosure, duplication or
reproduction. Licensee agrees not to remove Licensor's or OWNER's copyright
notice and other proprietary markings from SYSTEM, and any copy of SYSTEM made
by Licensee for backup purposes pursuant to the terms of this Section 8 shall
contain the same copyright notice and proprietary markings contained on the
copy of SYSTEM furnished by Licensor to Licensee hereunder. Licensee is
prohibited from renaming, selling, publishing, disclosing, transferring,
timesharing, lending, leasing or otherwise making available to others the
SYSTEM or any portion or copy thereof Licensee acknowledges that SYSTEM is
unique and that Licensee's failure to comply with any provision of this
Section 8 shall result in irreparable harm to Licensor and that in the event
of the breach or threatened breach by Licensee of its obligations under this
Section 8, Licensor may bring suit in equity to enjoin any such actual or
threatened breach. Also, see Section 12, TERMINATION.
9. INDEMNIfICATION.
A. LICENSEE INDEMNITY. Licensor shall defend or settle any proceeding
brought against Licensee to the extent that it is based on a claim that the
SYSTEM made to Licensor's specifications and being within the scope of the
-------------------------------------------------------------------------------
Page 3
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
Agreement hereunder constitutes and infringement of a U.S. copyright or an
existing U.S. patent provided that Licensor is notified of the claim promptly
in writing and is given complete authority and information required for the
complete defense of same, and Licensor shall pay all damages and costs awarded
therein against Licensee, but Licensor shall, in no event, be responsible for
any costs, expenses or compromise incurred or made by Licensee without
Licensor's prior written consent.
In the event that SYSTEM or any Module of SYSTEM furnished hereunder is,
in Licensor's opinion, likely to or does become the subject of a claim for
infringement of a copyright or patent, Licensor may, at its option and
expense, procure for Licensee the right to continue using such materials,
modify them to make them non-infringing, or substitute other materials of
similar capability. If none of the foregoing alternatives is reasonably
available to Licensor in its opinion, Licensor may terminate the License of
such Module upon thirty (30) days written notice to Licensee, in which case
Licensor shall refund to Licensee all fees (exclusive of: Training Fees;
Training Expenses; Quarterly Fees; Software Relicensing Fees; Additional
Licensing Fees; taxes; and the price of the COMPUTER) paid to Licensor by
Licensee for the infringing Module under this Agreement. If, however, the
Module or SYSTEM is likely to become the subject of a filed claim for
copyright infringement but has not, Licensee may, at its peril, elect to
continue using the same until an injunction issues or the claim has been
withdrawn. In such event Licensee agrees to defend any action involving such
claim and to indemnify Licensor with respect to all costs, damages and
attorneys fees attributable to use of the SYSTEM or Module by Licensee after
notice from Licensor of the possibility of a claim. Licensor may participate,
at its expense, in the defense of any action that may arise out of any claim
made against Licensee from its use after notice from Licensor against Licensor.
Licensor shall have no liability for any claim of infringement based upon
the use of other than a current unaltered release of the SYSTEM available from
Licensor if such infringement would have been avoided by the use of such
current unaltered release, or upon use of a combination of the SYSTEM with
non-Licensor programs or combination of the unaltered SYSTEM with any other
programs or data.
The foregoing states the entire liability of Licensor with respect to
infringement of any copyright or patent by the SYSTEM or Modules or any part
of the SYSTEM or Modules, and is in lieu of all warranties or representations,
expressed or implied, in regard thereto.
B. Licensor INDEMNITY. Licensee shall, to the full extent permitted by
law, indemnify Licensor and OWNER hold Licensor and OWNER harmless against all
damages, costs, charges, expenses (including attorney's fees), actions, claims
and demands which may be sustained or suffered by or recovered or made against
Licensor by any third party arising from or in any way connected with a breach
of any term of this Agreement by Licensee.
10. LIABILITY. Except as specified in this Section 10 in this Agreement,
neither Licensor nor OWNER shall be liable for any loss or damage that may
arise in connection with the furnishing, performance or use by Licensee of
SYSTEM, including, without limitation, any indirect, special, incidental or
consequential damages. Except as otherwise provided in Section 9 hereof, the
remedies of Licensee set forth under Section 11 hereof shall be the sole and
exclusive remedies of Licensee for any breach of any obligations of Licensor
hereunder or otherwise, and in no event shall Licensee be entitled to any
monetary damages against Licensor in excess of the software license fees
(exclusive of: Training Fees; Training Expenses; Quarterly Fees; Software
Relicensing Fees; Additional Licensing Fees; taxes; and the price of the
COMPUTER) paid to Licensor by Licensee hereunder.
11. WARRANTY. Licensor warrants that it has full power and authority to
grant the rights granted herein. Licensor additionally warrants that at the
time of installation of the initial copy of SYSTEM and for a period of one
year thereafter, such copy of SYSTEM shall be in substantial conformance with
the applicable published documentation (which may be updated from time to
time) of SYSTEM and will operate on the COMPUTER specified on Schedule 2
attached hereto. Licensor agrees to use its best reasonable efforts to
correct, as soon as practicable, any failure of
-------------------------------------------------------------------------------
Page 4
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
SYSTEM to so conform or replace any defective item(s) in such copy of SYSTEM
(or any subsequent release of SYSTEM) which Licensor determines to be
necessary at Licensor's own cost and expense, provided that Licensee is able
to reproduce any such error in SYSTEM and provided further that written notice
reasonably identifying such error is given immediately to Licensor during the
warranty period. This warranty shall not apply if: (i) an item of SYSTEM shall
not have been used in accordance with Licensor's instructions; (ii) an item of
SYSTEM shall have been altered, modified, merged or converted by Licensee
without the prior written approval of Licensor; (iii) Licensee's operating
system shall have been altered, modified or converted without the prior
written approval of Licensor; (iv) any of Licensee's equipment shall
malfunction; or (v) any other cause within the control of Licensee or Licensor
shall result in an item of SYSTEM becoming inoperative. THE FOREGOING WARRANTY
IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND, OTHER THAN AS
EXPRESSLY SET OUT HEREIN, LICENSOR DISCLAIMS ALL WARRANTIES OF ANY KIND OR
NATURE INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF RESULTS,
COMMERCIAL PRACTICALITY OR PERFORMANCE.
12. TERMINATION. In the event that Licensee shall breach any of its
covenants or agreements herein or has any two Quarterly Fees that are past due
(as defined in Section 3, PAYMENT), then Licensor may, at its option, suspend
the supply of products and services Licensor provides to Licensee upon verbal
notification to Licensee or terminate this Agreement and terminate the license
to use SYSTEM hereunder, upon written notification to Licensee. Either party
may terminate this Agreement by providing the other with written notice 120
(one hundred twenty) days prior to the expiration of the term hereof. Upon
termination of this Agreement, Licensee shall promptly return to Licensor any
and all copies of SYSTEM and all documentation,manuals and materials relating
to SYSTEM in Licensee's possession and certify in writing to Licensor that all
such copies have been so returned. Licensor shall have the right to enter upon
any premises of Licensee where the SYSTEM, COMPUTER and related documentation,
manuals and materials may be found to verify that SYSTEM and any such related
documentation, manuals and materials have been returned to Licensor. In the
event that, upon inspection by Licensor, SYSTEM or any such documentation,
manuals and materials still exist upon such premises, Licensor shall have the
right to remove them and Licensee shall permit and assist Licensor in
effecting the retaking and removal of the SYSTEM related documentation,
manuals and materials. In the event that any invoice due hereunder or any
invoice from Licensor to Licensee is past due (unpaid for seven days beyond
the stated due date described in Section 3, PAYMENT, and not disputed in
writing, prior to its stated due date, pursuant to Section 21 hereof) or any
Quarterly Fee is not paid by the first day of the calendar quarter for which
it is due then Licensor may, at its option, suspend the supply of products and
services Licensor provides to Licensee until Licensee pays all unpaid items in
full. In the case where Licensee causes Licensor more work or effort as a
result of Licensee's non-payment of an invoice and where Licensor suspends
Licensee's supply of products and services as a result thereof, then Licensee
agrees to pay for the amount of extra time and charges Licensor expends as a
result of such cause. Suspension of products or services shall not relieve
Licensee of its obligations to make any payments due for any then past or then
current Quarterly Fees to Licensor. Further, there shall be no reimbursement
or proration of the Quarterly Fee in the event of such suspension, or in the
event of any termination of this Agreement. Licensee's obligation to maintain
the confidentiality of Licensor's proprietary information shall survive any
termination of the license granted hereunder. Licensor shall have the right to
terminate the license to use the FACTS CES Module if Licensor ceases to have
its VAR AGREEMENT in effect with Medicode. For further information and the
definition of the terms "VAR AGREEMENT" and "Medicode", please refer to
Section 21, Item O hereof
13. NON-INTERFERENCE WITH EMPLOYEES. During the term of this Agreement,
and for a period of three (3) years after its termination, Licensee agrees not
to hire or to solicit knowingly the employment of any employee, or former
employee, of Licensor, CGData Corporation, Jovast, Inc., or FACTS Services,
Inc., without the prior written consent of Licensor. The terms "employee" and
"employment," for the purposes of this Section, apply also to any individual
working on a contracted or subcontracted basis for Licensee.
-------------------------------------------------------------------------------
Page 5
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
14. OWNER'S RIGHTS AND RESPONSIBILITIES. Irrespective of any language
contained herein the Licensee agrees, acknowledges and understands that OWNER,
as the owner of the software, makes no representations or warranties with
respect to SYSTEM, and the Licensee shall have the right to look solely to
FACTS Services, Inc. with respect to any alleged breach of this Agreement or
any other cause of action which may arise with respect to the use of SYSTEM.
Licensee agrees that upon notice from OWNER of a breach of the obligations of
Licensor to OWNER and without need for further inquiry or investigation by
Licensee, Licensee shall acknowledge OWNER as the Licensor hereunder and be
obligated to OWNER as though OWNER were the initial Licensor, under this
Agreement.
15. LICENSOR'S RIGHT TO REVIEW SYSTEM. Licensee agrees and consents that
Licensor shall at all times have access to and the right of entry into
Licensee's COMPUTER to review SYSTEM, the Object Code, the Source Code and any
enhancements or modifications thereof and any production accounts that access
the SYSTEM pursuant to Licensor's technical specifications. Access shall occur
either through modem or by means of an on site inspection at the option of
Licensor. Licensee shall be required to provide Licensor, at no cost to
Licensor, a full file save complete with a file statistics, which excludes
Licensee's clients data, report every six months, starting from the date of
the execution of this Agreement.
16. DEFAULT. Licensee shall be in default under this Agreement and all
rights granted herein shall automatically terminate without notice to
Licensee, upon any of the following: (i) if Licensee shall become materially
delinquent, insolvent, makes an assignment for the benefit of creditors,
suffers or permits the appointment of a receiver, trustee in bankruptcy, or
similar official for all or any substantial part of its business or assets;
(ii) in the event Licensee shall avail itself or become subject to any
Bankruptcy Code or any statute or any procedure relating to insolvency or the
protection of the rights of creditors; or (iii) in the event Licensee
terminates or suspends its business, or a Federal or State governmental or
quasi-governmental authority terminates or suspends Licensee's business.
17. UPDATE TO MODULES. Licensor from time to time updates the Modules
which result in new releases of the Modules. During the term hereof, Licensor
shall provide Licensee with one (1) copy of every new release of Modules which
are the subject of this Agreement. Licensee agrees and understands that
Licensor may from time to time include within a Module provisions which extend
the then current capabilities of the Modules and require Licensee to sign a
separate license agreement with Licensor for the use of the additional
capabilities and that Licensor may also from time to time develop a new Module
or extend the capabilities of an existing Module and make such available to
Licensee only through the payment of additional licensing fees to Licensor. In
such case, Licensee shall determine if Licensee desires to purchase the
additional functionality. Notwithstanding anything to the contrary contained
herein, Licensor, in its sole and unfettered discretion, shall decide whether
a provision in an update is a new product and whether a provision in an update
adding additional capabilities to the Modules shall only be made available for
Licensee's use only for an additional fee, and/or for executing a separate
license agreement.
18. MAINTENANCE SERVICES. Licensor warrants, commencing on July 1, 1997
and during the term hereof, to maintain the Modules in such a manner that the
Modules shall perform in substantial conformance with the then-existing
published documentation (which may be updated from time to time) for the
Modules listed in Schedule 1. Personnel of Licensor shall be available during
Licensor's standard working hours to respond to inquiries by Licensee for
consultation concerning maintenance of the Modules. Licensee agrees to use
Licensor's Electronic Support System-TM- as its principal means of
communication with Licensor. In the event that Licensee notifies Licensor of
an error or malfunction of the Modules or SYSTEM and in the further event that
Licensor shall reasonably determine that such problem relates to Licensee's
failure to operate the Modules or SYSTEM in accordance with Licensor's
instructions or Licensor's documentation, Licensee shall, upon receipt of an
invoice from Licensor, promptly pay Licensor its hourly rate, which is
currently One Hundred Thirty Dollars ($130.00), for all services performed in
connection with the diagnosis and correction of such problem and reimburse
Licensor for all out-of-pocket expenses incurred in connection therewith.
-------------------------------------------------------------------------------
Page 6
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
19. SPECIALLY REQUESTED ENHANCEMENTS TO SYSTEM.
A. Licensee may request that Licensor develop, at Licensee's expense,
certain enhancements to SYSTEM. Licensor, in its sole discretion, may develop
enhancements requested by Licensee which will reasonably relate to the
functions or processes performed by SYSTEM. Licensee agrees to pay Licensor's
standard hourly rates for all services performed in developing any such
enhancements and to reimburse Licensor for all out-of-pocket expenses incurred
in connection therewith. Licensor reserves the right to reject any requests by
Licensee for enhancements.
B. In the event that Licensee desires that Licensor develop any
enhancement to SYSTEM, Licensee shall submit a written request acceptable to
Licensor setting forth in substantial detail the nature and specifications of
the requested enhancement. If Licensor agrees to develop such enhancement
Licensor will set forth an estimated date by which such enhancement may be
developed and the estimated cost thereof Licensee shall pay Licensor its
standard published fee for evaluating such request. Upon receipt of an
authorization to proceed, Licensor will proceed with the enhancement request
as detailed in Licensor's quote. Licensee's request for the enhancement and
authorization for Licensor to proceed with the enhancement, and any other
documents which reference the enhancement that in any manner differs from or
is in addition to Licensor's quote shall be of no force or effect. Licensor's
acceptance of agreeing to perform an enhancement is expressly made conditional
on Licensor's assent to the fact that only the quote from Licensor shall be
the governing document for the development of the enhancement. In as much
Licensor cannot accurately detail the exact time it will take to perform any
specific enhancement, Licensee agrees to pay Licensor for all time spent in
completing any such enhancement, even if such enhancement should cost more
than the estimate in Licensor's quote for such enhancement.
C. All enhancements made to SYSTEM (and all rights in such
enhancements, tangible and intangible), whether such enhancements be made by
Licensor or by Licensee, shall be the sole property of OWNER. In the event
that any enhancements to SYSTEM shall be developed by Licensee, Licensee shall
immediately deliver a copy of such enhancements (and all related documentation
and backup materials) to Licensor. Licensor shall, in its sole discretion, be
free to make available any such enhancements developed by Licensor or Licensee
to other licensees of SYSTEM. In addition, Licensee agrees to execute any and
all documents and instruments requested by Licensor to protect OWNER's
property rights, tangible and intangible, in SYSTEM and any such enhancements.
D. The terms "enhancements" and "modifications" used throughout this
Agreement are further defined as any Source Code, Object Code, or any
derivative works of the SYSTEM or any other programs that access the SYSTEM or
any data that the SYSTEM uses or interacts with the SYSTEM, directly or
indirectly, or the data that the SYSTEM uses. Such enhancements and
modifications are not limited to programs or programming techniques. It is
expressly acknowledged that these definitions extend to the interaction of
hardware and peripheral devices that in any manner use or access the SYSTEM or
any data that the SYSTEM uses.
20. ADDITIONAL TERMS GOVERNING USE OF SYSTEM.
A. The updates to Modules provided by Licensor to Licensee described in
Section 17 herein must be loaded by Licensee in the time frame given to
Licensee by Licensor. Such updates will replace the Modules, thus bringing
Licensee up to a current revision. At no time is Licensee permitted to load an
old version of the SYSTEM or Modules without the prior written approval of
Licensor as required herein.
B. Licensor requires that Licensee's COMPUTER operate within an
operating system revision as specified by Licensor. Such operating system
revision may or may not be Equipment Manufacturer's current revision.
-------------------------------------------------------------------------------
Page 7
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
21. GENERAL.
A. This Agreement constitutes the entire and exclusive Agreement
between the parties with respect to the SYSTEM, Modules, COMPUTER, and duties
and obligations to be performed by each of the parties and supersedes all
prior and concurrent proposals, agreements and all other communications (oral
and written) between the parties relating to the subject matter of this
Agreement, notwithstanding any prior course of dealing, custom or usage of
trade or course of performance. No representations or statements of any kind
made by any representative of Licensor, which are not stated herein, shall be
binding on Licensor. Licensee represents that Licensee is not relying on any
oral or written representation or warranties not contained in this written
Agreement.
B. No term or provision of this Agreement shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and be signed
by the party claimed to have waived or consented. Any consent by any party to,
or waiver of, a breach by the other, whether express or implied, shall not
constitute a continuing waiver of, or continuing consent to, or a consent to
or waiver of, or excuse for different or subsequent breaches.
C. If any provision of this Agreement is held to be ineffective,
unenforceable or illegal for any reason, such decision shall not affect the
validity or enforceability of any or all of the remaining provisions hereof.
D. In the event that either party is required to enforce any provision
of this Agreement in a court of competent jurisdiction, both parties agree
that the party that prevails shall be awarded reasonable attorneys' fees and
expenses of counsel in addition to other monetary and/or equitable damages,
both at the trial and appellate levels.
E. Licensee shall pay, or upon receipt from Licensor, shall reimburse
Licensor for, all sales, use, property, customs, excise or other taxes imposed
on Licensee, or required to be collected by Licensor, or imposed on SYSTEM or
the use thereof, irrespective of whether included in any invoice sent to
Licensee at any time by Licensor. Licensor agrees to notify Licensee of any
taxes that Licensor has been notified of, that Licensee will be subject to,
pursuant to SYSTEM or the use thereof Licensee's obligation pursuant to this
Section 21 E shall survive any termination of the license granted hereunder.
F. Notwithstanding choice of law principles, place of performance or
execution, the parties agree that this Agreement shall be interpreted,
governed, constructed, and enforced in accordance with the laws of the State
of Florida, and that any action, be it litigation, mediation, arbitration or
otherwise, between the parties shall be conducted in either the federal or the
state courts located in Dade County, Florida, and the parties hereby submit to
such jurisdiction and venue.
G. Any notice or other communication hereunder shall be in writing, and
shall be delivered in person or sent by certified or registered mail, return
receipt requested, or by Federal Express, Express Mail of the U.S. Postal
Service, or other similar, bonded, overnight delivery service and shall be
addressed, if to Licensor, to the person whose signature appears below, and
only in that person's absence, to the President or Chairman of the Board, and
if to Licensee, to the party for whom it is intended. All deliveries are to be
made to the respective addresses as set forth below. Such addresses may be
changed by written notice pursuant to and in accordance with Sections 21G and
21H.
H. This Agreement shall not be deemed accepted by or binding upon
Licensor until executed by the President or Vice President of Licensor. Any
additions, amendments, deletions, modifications, or other changes made to the
preprinted form of this Agreement must be effected by a written instrument
signed by the President or Vice President of Licensor in order for such an
amendment to be binding. In the absence of such an amendment, commencement of
performance by Licensor shall be for Licensee's convenience only and shall not
be deemed acceptance of any proposed amendment by Licensee.
-------------------------------------------------------------------------------
Page 8
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
I. The operating system for the COMPUTER and certain third party
software is not sold or licensed under this Agreement. In order to obtain such
operating system, Licensee must enter into a license agreement(s) with the
manufacturer of the equipment (hereinafter collectively referred to as
"Equipment Manufacturer") upon the execution of this Agreement. In order to
obtain certain third party software, Licensee must enter into a license
agreement with the manufacturer of such third party software upon the
execution of this Agreement. Licensor gives no assurances regarding the
availability of such operating system or third party software and shall have
no obligation or liability with respect thereto.
J. All risk of loss or destruction or damage to the COMPUTER by reason
of theft, fire, water or any other cause, shall pass to Licensee upon delivery
of the COMPUTER to Licensee. The occurrence of any such casualty shall not
relieve Licensee from the obligation to make payment of any amount due
hereunder. Prior to delivery of the COMPUTER, Licensee shall, at its own
expense, procure and continuously maintain fire, theft, extended coverage,
vandalism and malicious mischief insurance in an amount equal to the purchase
price of the COMPUTER, plus all freight and handling charges and taxes due
hereunder. Until payment in full of all amounts due hereunder, such insurance
policies shall name Licensee as insured and Licensor as an additional insured.
Immediately upon delivery of COMPUTER, Licensee shall inspect the COMPUTER
for damage. Licensee must describe any and all visible damage of the COMPUTER
on the Xxxx of Lading prior to Licensee accepting delivery of the COMPUTER.
K. Licensor shall have no responsibility or liability whatsoever for
the operation or maintenance of the COMPUTER or the operating system of the
COMPUTER or third party software. Licensor requires that the COMPUTER and the
operating system be maintained by Equipment Manufacturer or other agent that
Licensor designates and that third party software be maintained by the
manufacturer of the software, or other agent that Licensor designates, who may
offer to enter into its standard maintenance agreement with Licensee for
maintenance thereof. In no event shall Licensor be responsible for any
improper operation of the COMPUTER or certain third party software, defects or
other consequences arising from or related to the operation or maintenance of
the COMPUTER or certain third party software, by Licensee or others, including
Equipment Manufacturer, an agent that Licensor designates, and the
manufacturer of such third party software. Licensee shall contact the party
whom Licensor designates in its judgment as appropriate for all such operation
or maintenance issues regarding the COMPUTER or the operating system of the
COMPUTER or third party software.
L. Licensee agrees that its sole remedy in case of any defect in the
COMPUTER shall be such remedy as is afforded it against Equipment Manufacturer
by Equipment Manufacturer's warranty of the COMPUTER, if any, or such other
remedy against the Equipment Manufacturer as Licensee may have under any
provision of contract or law. During Equipment Manufacturer,s warranty period,
Licensor agrees to use its best efforts to assist Licensee in resolving with
Equipment Manufacturer any problems with respect to the failure of the
COMPUTER to perform in accordance with such warranty, though Licensor provides
no assurances that any such problem can be resolved in a manner that is
satisfactory to Licensee. Licensor shall not be liable to Licensee for any
damage, defect, failure to meet specifications, late delivery or shortage with
respect to the COMPUTER. Licensor shall not be liable, in any event, for lost
profits, loss of anticipated profits, loss by reason of shut-down,
non-operation, or increased expense of operation of other equipment,
processes, or systems, or other incidental or consequential loss or damage of
any nature arising from any cause whatsoever, including breach of contract,
breach of warranty, tort, negligence or otherwise. THE FOREGOING WARRANTIES
ARE IN LIEU OF ALL OTHER WARRANTIES OF Licensor WITH RESPECT TO THE COMPUTER,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
M. Licensor may assign payment of any monies due hereunder to any other
party that Licensor designates for any consideration Licensor may determine in
its sole discretion.
-------------------------------------------------------------------------------
Page 9
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
N. If Licensee is licensed under Schedule 1 hereunder to use the FACTS
MICR Module as part of SYSTEM, then Licensee agrees that all Printer Supplies
specified in Schedule 4 attached hereto and made a part hereof must be
purchased from Licensor. Licensor's published prices for the additional
PRINTERS and PRINTER SUPPLIES are outlined in Schedule 4. In the event that
Licensee purchases an additional PRINTER, to be used in connection with the
MICR Module, from any entity other than Licensor, then Licensee agrees that it
shall pay Licensor a licensing fee of Ten Thousand Dollars ($10,000.00)
exactly for each PRINTER that Licensee does not purchase from Licensor. For
the purposes of the Agreement, an "additional PRINTER" shall be defined as any
printing device that the MICR Module uses, whether used for actual MICR
printing or not, that increases the total number of PRINTERS used by the MICR
Module to more than the number of PRINTERS described in Schedule 1. Licensee
acknowledges and agrees that this Agreement only gives Licensee the right to
use the number of PRINTERS described in Schedule 1. Licensee is only permitted
to replace the PRINTERS with actual replacement printers by purchasing such
replacement printers from Licensor. The cost of replacement printers is
outlined in Schedule 4. Regardless of the number of times a PRINTER is
replaced, Licensee shall only be permitted to use and be Licensed for the
number of PRINTERS described in Schedule 1. For the purposes of this
Agreement, a "replacement printer" is defined as a printer that replaces a
PRINTER licensed hereunder. Licensee may use additional PRINTERS by purchasing
from Licensor a license to use additional PRINTERS. Any replacement printer
that Licensee replaces that was purchased from Licensor shall be deemed a
PRINTER as if the replacement printer was actually a PRINTER.
O. Licensor hereunder is a Value-Added Reseller under that certain
MEDICODE" VALUE-ADDED RESELLER SOFTWARE DEVELOPMENT MARKETING AND MAINTENANCE
AGREEMENT (herein referred to as "VAR AGREEMENT") effective December 1, 1993,
with Medicode, Inc., a Utah Corporation (herein referred to as "Medicode"),
the provider of the data that the FACTS CES Module will use under this
Agreement. The VAR AGREEMENT is for a 24 month term. If Licensee is licensed
under Schedule 1 hereunder to use the FACTS CES Module as part of SYSTEM, then
Licensee agrees to the following: (i) Licensor requires Licensee to contract
with Medicode for use of Medicode's data prior to installing the FACTS CES
Module; (ii) Licensor shall install the FACTS CES Module and Medicode's data
upon both the execution of this Agreement and receipt of the authorization
from Medicode to release their data. The initial installation charge is Two
Hundred Fifty Dollars exactly ($250.00). All subsequent loads that Medicode
authorizes shall be at Licensor's then prevailing rates; (iii) Licensee shall
look solely to Licensor for loading Medicode's data; and (iv) Licensor shall
have the right to terminate the license to use the FACTS CES Module if
Licensor ceases to have its VAR AGREEMENT in effect with Medicode or if
Licensee terminates it contract to use MEDICODE'S data.
P. If Licensee is licensed under Schedule 1 hereunder to use any of the
Modules outlined below, then Licensee agrees to pay Licensor the additional
annual licensing fee that is associated with the Module(s) licensed beginning
on January 1 of the second year immediately after the date of execution of
this Agreement. On January 1 of the first year immediately after the date of
execution of this Agreement, Licensee shall pay the appropriate annual
licensing fee reduced by either (i) nothing, if the date of execution of this
Agreement is in the months of January through March inclusive; (ii)
twenty-five (25) percent if the date of execution of this Agreement is in the
months of April through June inclusive; (iii) fifty (50) percent if the date
of execution of this Agreement is in the months of July through September
inclusive; (iv) seventy-five (75) percent if the date of execution of this
Agreement is in the months of October through December inclusive.
Modules Annual Licensing Fee
------- --------------------
FACTS CES $2,500 or 25% of Medicode's published annual
fee, whichever is greater
FACTS EDI $2,000 (per format) plus see Schedule 5
OPTIFACTS $5,000 (per workstation)
FACTS MICR (with HP Printer) $1,000 (per printer)
FACTS WDS See Schedule 5
-------------------------------------------------------------------------------
Page 10
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
AUTOFACTS See Schedule 5
FACTS WDS, AUTOFACTS, and FACTS EDI have annual fees based on the number
of insured lives administered listed in Schedule 5, attached hereto and made a
part hereof; that are due January 1 of each year after execution of the
Agreement. No proration of these fees is calculated.
Q. Licensee shall not use SYSTEM or any related proprietary
confidential materials disclosed by Licensor to compete with, or otherwise
unduly take advantage of, Licensor.
R. Licensee shall appoint one if its employees as project manager who
shall work with Licensor and who shall furnish Licensor, in a timely manner,
with all of the information reasonably deemed necessary by Licensor to
complete the production and delivery of SYSTEM. In the absence of receiving
notice of the identity of the project manager within 10 days after Licensee
executes this Agreement, Licensee shall be deemed to have appointed the person
whose signature appears below on behalf of Licensee as the project manager.
S. Nothing in this Agreement obligates Licensor to assume
responsibility for making ready and/or converting any data files of Licensee
or MEDICODE from their present condition to that required by the SYSTEM.
T. The headings at the beginning of the Sections of this Agreement are
for identification purposes and shall not, by themselves, determine the
interpretation or construction of this Agreement. This Agreement shall be
interpreted fairly to both parties without regard for which party drafted any
particular Section of this Agreement.
U. This Agreement does not constitute Licensee as the agent, legal
representative, partner, or joint venture of Licensor for any purpose
whatsoever. Licensee is not granted any rights to create any obligation or
responsibility, express or implied, on behalf of or in the name of Licensor,
or to bind Licensor in any manner or thing whatsoever.
V. To the extent that Licensor's performance hereunder is prevented,
hindered, or delayed by reason of any cause beyond the reasonable control of
Licensor, including by way of example and not limitation, any computer system
manufacturing or shipping delays or labor disputes, act of God, or regulation
of any governmental or quasi-governmental authority, the dates or times by
which Licensor is required to make performance hereunder shall be waived and
Licensor shall not be liable for any damages arising out of any such delay,
hindrance or prevention.
W. This Agreement may be executed in any number of duplicate
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. The persons
signing below represent that they are duly authorized to execute this
Agreement for and on behalf of the party for whom they are signing. The
parties agree that transmission of the other party of this Agreement with the
transmitting party's facsimile signature shall suffice to bind the party
signing and transmitting same to this Agreement in the same manner as if the
Agreement with an original signature had been delivered. Without limitation of
the foregoing, each party who transmits this Agreement with its facsimile
signature covenants to deliver the original thereof to the other party with
reasonable promptness thereafter.
X. This Agreement does not constitute Licensee as the agent, legal
representative, partner, or joint venture of Licensor for any purpose
whatsoever. However, Licensor does recognize that Licensee has access to
potential clients of the FACTS system and agrees to pay Licensee an amount of
no less than five percent (5) of the price of the FACTS Software Modules
purchased for all contacts that Licensee registers with Licensor, that have
not been identified as a prospect by Licensor, or been contacted by Licensor,
or entered by Licensor in Licensor's prospect or marketing database, or been
registered by any other person or entity, that result in an actual purchase of
any module of the FACTS system within one (1) year of Licensee providing for
the registration information. Licensee is not granted any rights to create
any obligation or responsibility, express or implied, on behalf of or in the
-------------------------------------------------------------------------------
Page 11
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
name of Licensor, or to bind Licensor in any manner or thing whatsoever. For
the purposes of this Section 21, item U, registration of prospects is defined
as Licensee providing notice to Licensor, in writing and pursuant to Section
20, item G herein, as to the prospect, a contact name, phone number, address,
type of business, types of blocks of business being administered by prospect,
and the potential Modules to be purchased by prospect. Upon such receipt,
Licensor will issue a registration number if such prospect will be pursued or
used by Licensor. If no registration number is received by Licensee then there
shall be no commission paid. Licensor is obligated to provide such a
registration number if such prospect is pursued or used by Licensor.
22. THIS AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS. THIS AGREEMENT
SUPERSEDES ANY AND ALL PRIOR AGREEMENTS BETWEEN LICENSEE AND LICENSOR
INCLUDING BUT NOT LIMITED TO ANY LICENSE AGREEMENTS AND ANY SOFTWARE
MAINTENANCE AND ENHANCEMENT AGREEMENTS. ALSO SEE, SECTION 21, GENERAL, ITEM A.
23. TRAINING. Licensee shall at all times maintain employee(s), herein
referred to as "System Administrator(s)", through whom Licensee shall make all
requests for support to Licensor under this Agreement.
A. The System Administrator(s) shall be required to have taken
Licensor's standard Phase I training course and may be required by Licensor to
take up to 5 days of Licensor's training every calendar year. The annual 5
days of training may be waived at the discretion of Licensor.
B. Prior to requesting support or assistance for any Module of the
SYSTEM, Licensee must employ at least one current employee who has received
Licensor's training on that module. Licensor may elect to waive this
requirement where Licensee has lost such an employee as a result of employee
turnover and Licensor has signed up, with prepayment, a replacement employee
to take the required Licensor training course.
C. Licensee agrees that it shall maintain System Administrator
personnel who are competent and capable of maintaining the integrity of the
SYSTEM and of understanding the total operation of the SYSTEM, including
hardware, the operating system software, utilities and operating system.
-
-
-
-
-
-
-
This space intentionally left blank
-
-
-
-
-
-------------------------------------------------------------------------------
Page 12
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
IN WITNESS THEREOF, each of Licensor and Licensee has executed this
Agreement effective JULY 7, 1997.
Licensor: Licensee and LOCATION of COMPUTER:
FACTS Services, Inc. Electronic Transmission Corporation
Xxxxx 000 Xxxxx 000
5025 Arapaho Road
0000 Xxx Xxxxxxx Xxxxxx Xxxxxx, XX 00000
Xxxxx Xxxxxx, XX 00000
Name: XXXXX X. XXXXXX Name: XXXX XXXXXX
------------------------ -------------------------
Title: VICE PRESIDENT Title: PRESIDENT
Signature: Signature: /s/ L. Xxxx Xxxxxx
------------------- --------------------
Attest: Attest: /s/ Xxx X. XxXxxxxxx
---------------------- -----------------------
Dated: Dated: July 7, 1997
----------------------- ------------------------
-------------------------------------------------------------------------------
Page 13
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
SCHEDULE 1
"SYSTEM"
FACTS-R- CLAIMS & ENCOUNTERS-TM- Version 30.7 for 16 users
FACTS-R- BILLING & ACCOUNTING-TM- Version 30.7 for 16 users
FACTS-R- PPO-TM- Version 30.7 for 16 users
FACTS-R- CASE MANAGEMENT-TM-** Version 30.7 for 16 users
FACTS-R- CODER-TM- Version 30.7 for 16 users
FACTS-R- PRE-AUTH & REFERRAL-TM- Version 30.7 for 16 users
FACTS-R- COMP-R- Version 30.7 for 16 users
FACTS-R- CES-TM- Version 30.7 for 16 users
AUTOFACTS-TM- Version 30.7 for 16 users
FACTS-R- WDS-TM- Version 30.7 for 16 users
FACTS-R- EDI-TM- Version 30.7 for 16 users
FACTS-R- MICR-TM- Module for two (2) HP5si Printer
Serial#________ Serial#________
FACTS-R- REPORTER-TM-* Version 2.3
The grant to Licensee to use a copy of the Object Code of the FACTS
computer Software System for a non-exclusive five (5) year renewable term is for
the following Modules with related documentation:
"LICENSE RENEWAL FEE"
The License Renewal Fee is Thirty Eight Thousand Dollars exactly ($38,000)
for each five (5) year period after the initial five (5) year period. Further,
the License Renewal Fee must be paid by Licensee to Licensor prior to the
automatic renewal of any five (5) year period, including the initial five (5)
year period.
"TRAINING"
Training will be provided by Licensor at Licensee's office for a total of
fifteen (15) days to be used in non-consecutive 5 day blocks. All training
hereunder must be scheduled with Licensor by Licensee such that it is completed
within 120 days of execution of this Agreement. Additional training may be
obtained from Licensor at Licensor's prevailing rates. Training quotes given by
Licensor for on-site training do not include travel or lodging expenses nor a
$50 per diem trainer expense. All such expenses shall be paid by Licensee.
Licensee will control training, travel and lodging expenses by booking airline
reservations and accommodations. Licensor shall approve such reservations and
accommodations.
*FACTS REPORTER-TM- is an end-user product and is not supported by Licensor or
included under Section 18, MAINTENANCE SERVICES.
**Upon delivery of Module.
-------------------------------------------------------------------------------
Page 14
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
SCHEDULE 2
"COMPUTER"
*NCR S-26XLP Server System Serial #_________________.
200MHz Pentium Pro Processor
256MB RAM
6GB Disk Capacity
Tape, QIC SCSI, 1GB
4/8GB 4MM DAT
CD-ROM SCSI
Systech EISA Host Adapter
Systec Unplug 16 Port CCU
Fast Ethernet adapter PCI
UPS 1400VA In-Line
14" Autoscan Color Monitor
FACTS 4000 Terminal
NFS UNIX 3.01 SVR4 (unlimited users)
Mentor Base & Manuals
Mentor Operating Environment (16 users)
Via Duct Version 3.5 (Terminal Emulation) (16 users)
"INSTALLATION FEES"
There is no initial installation fee due to Licensor for the installation of the
COMPUTER. There is no initial installation fee due Licensor for the installation
of SYSTEM on COMPUTER.
-------------------------------------------------------------------------------
Page 15
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
SCHEDULE 3
"PAYMENT"
The purchase price of the COMPUTER (pursuant to Schedule 2), and the grant
to use a copy of the Object Code of the SYSTEM and the Training (pursuant to
Schedule 1) is Four Hundred Forty One Thousand Eight Hundred Thirty Eight
Dollars exactly ($441,838) and is payable as follows:
1. A payment of Eighty Seven Thousand Five Hundred Dollars exactly
($87,500) is due on or before the execution of this Agreement by
Licensee.
2. A payment of One Hundred Fifty Thousand Dollars exactly ($150,000) is
due upon the installation of COMPUTER at Licensee's office.
3. A payment of One Hundred Sixteen Thousand Eight Hundred Thirty Eight
Dollars exactly ($116,838) is due on the earlier of: (i) the set-up of
a group on SYSTEM by Licensee; or (ii) October 31, 1997.
4. A payment of Eighty Seven Thousand Five Hundred Dollars exactly
($87,500) is due on or before January 1, 1998.
"ADDITIONAL LICENSING FEES"
Additional Licensing Fees for use of SYSTEM are required to be paid to
Licensor by Licensee as the total number of ports, or total number of users who
have access to SYSTEM, whichever is greater, (referred to in this section as
"Licensed Users"), increases.
Licensee must pay to Licensor the amount below when the total number of
Licensed Users on the COMPUTER equals or exceeds the number of Licensed Users
below.
Number of Licensed Users Additional Licensing Fee
------------------------ ------------------------
each additional 8
Licensed Users past 16 $15,000
and less than 57
each additional 8 $30,000
Licensed users past 56
-------------------------------------------------------------------------------
Page 16
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
SCHEDULE 4
"QUARTERLY FEE"
The QUARTERLY FEE is Fourteen Thousand Three Hundred Fifty Seven Dollars
exactly ($14,357) and shall be paid quarterly in advance.
"PRINTER SUPPLIES"
HP5si Printer $14,500
Additional Printer 14,500
Replacement Printer 7,500
Digitizing, per Logo/Signature 250
Cartridges 350
Cartridge burn in fee 150
MICR Toner Cartridge 295
MICR Bond Paper:
25,000 sheets @ $24 per 1,000 sheets 600
50,000 sheets @ $18 per 1,000 sheets 900
100,000 sheets @ $17 per 1,000 sheets 1,700
250,000 sheets @ $16 per 1,000 sheets 4,000
ALL PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE AND DO NOT INCLUDE SHIPPING,
HANDLING OR INSURANCE.
-------------------------------------------------------------------------------
Page 17
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
LICENSE AND MAINTENANCE AGREEMENT
FACTS
SCHEDULE 5
FACTS WDS, AUTOFACTS, AND FACTS EDI ANNUAL LICENSING FEE
If Licensee is licensed under Schedule 1 hereunder or otherwise to use the FACTS
WDS Module, FACTS EDI Module, or AUTOFACTS Module, then Licensee agrees to pay
Licensor the Annual Licensing Fee corresponding to the number of insured lives
being administered by Licensee, as indicated below. In addition, Licensee shall
provide to Licensor, in writing and signed by an officer of Licensee, the actual
number of insured lives being administered, in each of the 12 previous months on
October 1 of each year beginning the first year of the date of execution of this
Agreement, and continuing annually thereafter.
NUMBER OF INSURED LIVES FACTS WDS AUTOFACTS FACTS EDI
----------------------- --------- --------- ---------
ADMINISTERED BY LICENSEE
------------------------
0 - 4,999 $7,500 $3,000 $1,000
5,000 - 9,999 10,000 6,000 2,000
10,000 - 19,999 12,500 9,000 3,000
20,000 - 29,999 15,000 12,000 4,000
30,000 - 39,999 17,500 15,500 5,000
40,000 - 49,999 20,000 18,000 6,000
50,000 - 74,999 30,000 22,000 9,000
75,000 - 99,999 40,000 26,000 12,000
100,000-124,999 50,000 30,000 15,000
125,999-149,999 60,000 34,000 18,000
150,000+ Prices to be determined
For the purposes of determining the number of insured lives, the greater of the
following shall be used: (i) the number of active employees as of September 30
for the year in which this calculation is made; (ii) the average of any three
months of active employees for the 12 months preceding September 30 for which
this calculation is being made; or (iii) the annual average for active employees
as of September 30 for the previous 12 months for which this calculation is
being made. For definition purposes, an active employee is any insured employee
in SYSTEM. In the case where a PPO group or any of the like kind of any network
of providers of service is used, the definition of an active employee shall
extend to all members or participants of the administered group, not just the
members or participants for which claims are submitted.
-------------------------------------------------------------------------------
Page 18
Licensor's Initials: Licensee's Initials:
LCH
-------------------- -------------------- CONFIDENTIAL
