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EXHIBIT 10.13
[PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED AND ARE SUBJECT TO A CONFIDENTIAL
TREATMENT REQUEST FILED WITH THE SECRETARY OF THE COMMISSION PURSUANT TO RULE
24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. THE REDACTED
MATERIAL IS INDICATED BY AN "{*}" AND WAS FILED SEPARATELY WITH THE COMMISSION.]
HBO & COMPANY
AND
HEALTHDYNE INFORMATION ENTERPRISES, INC.
VALUE ADDED MARKETING AGREEMENT
This Value-Added Marketing Agreement ("Agreement") is made and entered
into as of this 8th day of September, 1998, ("Effective Date") by and between
Healthdyne Information Enterprises, Inc. ("Business Partner"), a Georgia
corporation with its principal place of business at 0000 Xxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxxx, 00000 , and HBO & Company of Georgia ("HBOC"), a
Delaware corporation with its principal place of business at 000 Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000.
STATEMENT OF PURPOSE
A. HBOC is in the business of developing proprietary computer
software applications, integrating them with software
developed by others and distributing the integrated software
product together with associated hardware and services in
order to provide comprehensive information solutions desired
by healthcare providers.
B. Business Partner owns, distributes and supports certain
computer software known and marketed as the Cloverleaf(R)
Integration Engine Tool -- which transports data among
disparate information systems.
C. HBOC desires to acquire and Business Partner desires to grant
to HBOC a license to integrate the Cloverleaf Integration
Engine Tool with HBOC proprietary software and software
developed by third parties and to market and distribute the
Integrated Software (as defined below) together with other
HBOC products and services to HBOC customers and prospects
under the terms and conditions of this Agreement.
AGREEMENT
In consideration for the mutual promises set forth below, and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. The following capitalized terms used in this Agreement
shall have the following meanings:
1.1 "Affiliates" means any entity controlling, controlled by, or
under common control with, either party to this Agreement.
1.2 "BP Software" means the operating system software, application
software or other software products which are proprietary to
Business Partner or for which Business Partner has the right
to distribute and which comprise the software set forth on
Exhibit A, including: (a) the machine-executable object code
version of the user-loadable programs which Business Partner
makes generally available to its customers including all
options, database interfaces, operating system and hardware
versions, now or hereinafter developed; (b) Documentation; (c)
any modifications, revisions, Corrections, Enhancements, New
Releases or replacements for all of the foregoing items; and
(d) authorized copies of all of the foregoing items.
1.3 "Consumer Price Index" means, as of any date, the Consumer
Price Index for All Urban Consumers, U.S. City Average,
published by the U.S. Bureau of Labor Statistics (base year
1982-84=100, except that, if the base for the Index is so
changed that 1982-84 prices no longer represent 100, an
appropriate adjustment will be applied to the published
indices so as to relate them to the aforesaid base in which
1982-84 prices represent 100), as published by the Bureau of
Labor Statistics of the U.S. Department of Labor as of the
most recent calendar
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month for which the Index is published prior to such date. In
the event that the Consumer Price Index is discontinued, the
parties shall agree to a substantially similar government
index or publication as a reasonable replacement.
1.4 "Correction(s)" means a modification, revision or supplement
to the BP Software which makes such software perform functions
it was designed to perform or corrects defects or "bugs".
1.5 "Distributor(s)" means HBOC and those entities which (at the
time in question) are authorized by HBOC either as distributor
or agent to distribute software marketed by HBOC. Additional
Distributors may be added by HBOC during the term of this
Agreement. HBOC shall require all such entities to execute a
written agreement with HBOC containing terms and conditions
substantially similar to those contained in this Agreement for
the protection of Proprietary Information.
1.6 "Documentation" means the documentation in any media and form
(CD, hard copy, electronic, etc.) for BP Software, including
all documents and manuals relating to an end-user's
installation, training, and use of the BP Software and those
documents and manuals necessary for HBOC to integrate, test,
and support the Integrated Software, together with all
revisions, updates and other modifications thereto as Business
Partner may make from time to time.
1.7 "Enhancement(s)" means modifications, revisions, additions or
supplements to the BP Software which enables such software to
provide or perform services or functions it could not
previously perform or materially improves the manner in which
the BP Software performs existing functions.
1.8 "HBOC Customer(s)" means the (i) current customers of HBOC
which have licensed HBOC Software or purchased from HBOC
services or hardware, and (ii) prospective customers to whom
HBOC is marketing or with whom HBOC is negotiating for the
license of HBOC Software or the sale of hardware or HBOC
services. The term "HBOC Customer" shall include Affiliates of
any HBOC Customer.
1.9 "HBOC Software" means the computer software now or hereafter
marketed and licensed by HBOC (whether developed by HBOC or
licensed to HBOC with a right to sublicense to HBOC Customers,
excluding BP Software) for use by HBOC Customers.
1.10 "Integrated Software" means HBOC Software which operates in
conjunction with BP Software and which accomplishes a business
application extending the features and functions of the HBOC
Software.
1.11 "List Price(s)" means Business Partner's lowest,
non-discounted, standard charges to third parties for BP
Software, as contained in the price list, a current copy of
which is attached hereto as Exhibit B, and which may be
updated from time to time during the term of this Agreement.
1.12 "New Release(s)" means all modifications, revisions,
Enhancements, Corrections or replacements for BP Software and
related Documentation which Business Partner has agreed to
provide pursuant to this Agreement or which Business Partner
makes available to its customers in general from time to time
at no additional license fee.
1.13 "Proprietary Information" means any data or information,
including but not limited to any and all confidential
information and trade secrets, pertaining to (i) the business
operations of a party which is not generally known to the
public and affords such party a competitive advantage,
including but not limited to, information regarding its
products and product development, suppliers, marketing
strategies, finance, operations, customers, sales, and
internal performance results; (ii) the proprietary software,
including but not limited to: concepts, designs,
documentation, reports, data, specifications, source code,
object code, flow charts, file record layouts, databases,
inventions, know-how, and show-how, whether or not patentable
or copyrightable; and (iii) the terms and conditions of this
Agreement.
1.14 "Royalty(ies)" means an amount, calculated in U.S. Dollars,
equal to a percentage of Business Partner's List Price or a
fixed fee for BP Software, as set forth on Exhibit C, which is
due Business Partner for each Sublicense.
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1.15 "Source Code" means the statements which define the BP
Software functions which, when assembled or compiled become
the executable code of the BP Software and includes both the
human readable and machine readable forms; however, it shall
not include the source code for any third party software
contained in the BP Software.
1.16 "Sublicense(s)" means a non-exclusive, non-transferable
(except as set forth in Section 15.11) right granted by HBOC
to a HBOC Customer under a Sublicense Agreement to use an
object code copy of the BP Software in connection with the
license and use of the Integrated Software.
1.17 "Sublicense Agreement" means the terms and conditions pursuant
to which HBOC Customer will be licensed to use Integrated
Software, such terms and conditions to include at a minimum
the terms and conditions set forth in Exhibit D.
1.18 "Territory" means the geographical area and territories listed
in Exhibit E. The Territory may be extended pursuant to the
mutual written agreement of the parties.
2. TERM.
2.1 Term. This Agreement shall commence on the Effective Date and
shall continue in full force and effect for a period of {*}
years ("Initial Term"), unless earlier terminated as provided
for below in Article 14. Thereafter, this Agreement will
automatically renew for successive terms of one (1) year each
("Renewal Terms"). Either party may terminate this Agreement
without cause at the end of the Initial Term or any Renewal
Term by providing at least twelve (12) months prior written
notice to the other party.
3. LICENSE.
3.1 License Grant. Subject to the terms and conditions of this
Agreement, Business Partner hereby grants HBOC, its Affiliates
and Distributors, a non-exclusive, non-transferable (except as
set forth in Section 15.11), license to use BP Software in the
Territory on any computer system operated by HBOC for the
purposes of testing, developing, interfacing and integrating
the BP Software with HBOC Software and for marketing,
demonstrating, educating, installing and supporting and
maintaining Integrated Software. Additionally, HBOC shall have
the right to incorporate all or portions of the Documentation
pertaining to an end-user's installation, training, and use of
the BP Software or pertaining to HBOC's integration, testing,
and support of the BP Software into documentation created by
HBOC for the Integrated Software, provided that HBOC
identifies such Documentation or portions thereof as being
proprietary to Business Partner. HBOC shall not attempt to
reverse engineer the BP Software in any way, including but not
limited to disassembly of the BP Software, to derive an
equivalent of the BP Software. Ownership of all copyrights,
trade secrets, patents, patents pending, trademarks and other
intellectual and property rights in the BP Software and all
other items licensed to HBOC hereunder is and remains in
Business Partner. Nothing in this Agreement shall be construed
as conveying or transferring ownership or title of the BP
Software or the other items licensed hereunder to HBOC.
3.2 Sublicenses. Business Partner further grants HBOC, its
Affiliates and Distributors, a non-exclusive, non-transferable
(except as set forth in Section 15.11), license to (a)
distribute the Integrated Software in the Territory to HBOC
Customers, provided HBOC first obtains a written Sublicense
Agreement (the license term of which may be perpetual); and
(b) provide data processing and facility management or
outsourcing services to HBOC Customers. HBOC, its Affiliates
and Distributors may also grant Sublicenses which permit HBOC
Customers to access their data within the Integrated Software
by means of remote access (e.g., electronic transfer, remote
dial-in, etc.) for the purposes of supplementing, modifying,
deleting, reporting or reviewing data. HBOC Customers shall be
prohibited from using Integrated Software to process data for
unrelated third parties; however, this restriction, with
respect to the processing of data, shall not apply to local or
remote access by Affiliates of HBOC Customers, such as
physicians and outpatient facilities or any agent of an HBOC
Customer which is operating, supporting or using Integrated
Software for or on behalf of HBOC Customers, which access and
use is expressly permitted. HBOC shall be solely responsible
for negotiating the terms of the Sublicense Agreements.
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3.3 Copies. HBOC and its Affiliates and Distributors may make
copies of BP Software for the functions required or permitted
in this Article 3 and may also make a reasonable number of
copies of BP Software for purposes for archival, backup and
disaster recovery. HBOC shall reproduce, on each copy of BP
Software, all Business Partner patent, patent pending,
trademark, copyright, confidentiality and proprietary notices,
or legends, as may be established, revised, and provided in
guidelines to HBOC from time to time by Business Partner.
3.4 Trademarks.
3.4.1 Business Partner grants HBOC a non-exclusive,
non-transferable (except as set forth in Section
15.11) right to use and display, at HBOC's
discretion, Business Partner's trademarks to
advertise and promote the Integrated Software. HBOC
shall use such trademarks in accordance with Business
Partner's published guidelines, a copy of which shall
be delivered to HBOC promptly following execution of
this Agreement. HBOC shall not receive any ownership
in or to Business Partner's trademarks as a result of
such use. HBOC shall not use any of Business
Partner's trademarks, service marks, logos, or
slogans in any manner likely to confuse, mislead, or
deceive the public, or to be adverse to the best
interests of Business Partner.
3.4.2 HBOC grants to Business Partner limited permission to
use the HBOC's trademarks solely to identify itself
as a partner of HBOC. Business Partner shall use such
trademarks in accordance with the guidelines
established by HBOC (from time to time), a current
copy of which is attached to this Agreement as
Exhibit F. Business Partner shall submit all such
materials to HBOC for prior review and approval.
Business Partner shall not use any of HBOC's
trademarks, service marks, logos, or slogans in any
manner likely to confuse, mislead, or deceive the
public, or to be adverse to the best interests of
HBOC.
3.5 Private-Label Option. Notwithstanding anything to the contrary
in this Agreement, HBOC shall have the right, exercisable at
its option, to market and sublicense the Integrated Software
(and the BP Software, if HBOC exercises the option granted in
Section 3.5) under HBOC's private label Should HBOC desire to
exercise this right, it will provide written notice to
Business Partner and submit to Business Partner for approval,
a private-label marketing plan. HBOC shall reproduce, on each
copy of the BP Software or the Integrated Software, all
Business Partner patent, patent pending, trademark, copyright,
confidentiality and proprietary notices, or legends, as may be
established, revised, and provided in guidelines to HBOC from
time to time by Business Partner.
4. SOURCE CODE ESCROW.
4.1 Escrow Account. Within thirty (30) days following the
execution of this Agreement, Business Partner shall place the
Source Code into an escrow account with a reputable,
financially sound, industry recognized third party consented
to by HBOC to act as the escrow agent ("Escrow Agent") under
the terms of a mutually acceptable escrow agreement (the
"Escrow Agreement"). A fully executed copy of the Escrow
Agreement, together with a receipt from the Escrow Agent
acknowledging receipt of the Source Code, shall be delivered
to HBOC within five (5) days after execution of the Escrow
Agreement. In addition to the initial delivery of Source Code,
Business Partner shall deliver to the Escrow Agent, within
thirty (30) days following general availability, copies of all
New Releases of the BP Software, and shall provide HBOC with
receipts of such additional deposits, executed by the Escrow
Agent. Business Partner shall be responsible for all costs
incurred in connection with the Escrow Agreement.
4.2 Release of Source Code from Escrow Account. In the event that
Business Partner (a) becomes insolvent or ceases to carry on
business, and the business of Business Partner is not carried
on by a receiver or trustee or assignee; or (b) Business
Partner discontinues or fails to provide the BP Software or
support or maintenance of the BP Software in accordance with
the terms of this Agreement for any reason whatsoever, then
HBOC shall have the right to receive, possess, and use (but not
own) a copy of the Source Code released from the Escrow Account
for the purpose of developing, maintaining, modifying and
marketing the Integrated Software in accordance with the terms
of this Agreement so long as HBOC continues to pay the
appropriate fees due to Business Partner hereunder times a
factor of {*}.
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5. DELIVERY.
5.1 Initial Delivery. Business Partner shall deliver to HBOC, at
no charge, a reasonable number of copies of the most recent
version (unless HBOC specifies a different available version)
of BP Software and Documentation for use by HBOC in accordance
with Section 3.1 within fifteen (15) days after the Effective
Date.
5.2 New Releases. Business Partner shall deliver to HBOC, at no
additional charge and within thirty (30) days after general
availability by Business Partner a reasonable number of copies
of New Releases and Documentation related to such New Releases
for use by HBOC in accordance with Section 3.1.
5.3 Customer Delivery. HBOC shall deliver the Integrated Software
to HBOC Customers subject to a Sublicense Agreement. HBOC
shall be responsible for installation and implementation at
HBOC Customer sites. HBOC may copy BP Software to electronic
media for delivery or may deliver BP Software and
Documentation via electronic interchange.
5.4 Development and Delivery of Enhancements. Business Partner
shall use its best efforts to deliver the Enhancements
described on Exhibit G within ninety (90) days (but in any
case no later one hundred eighty (180) days) from the
Effective Date.
6. MARKETING.
6.1 Generally. HBOC will use reasonable efforts to market the
Integrated Software. It is the parties' intention that HBOC,
or its Affiliates or Distributors, be the single channel
through which HBOC Customers procure Integrated Software; and
that all agreements, licenses, orders and invoices for the
Integrated Software shall be by and between HBOC (or its
Affiliate or Distributor) and an HBOC Customer.
Notwithstanding the foregoing, if requested by the customer
Business Partner shall not be prohibited from fulfilling
orders for add-on sales to an HBOC Customer that is one of
Business Partner's existing customers listed on Exhibit J.
Business Partner shall at all times during the term of this
Agreement maintain policies and procedures with regard to its
sales force such that Business Partner's sales representatives
are given incentive and compensation for sales made by HBOC to
HBOC Customers.
6.2 HBOC and Business Partner are both currently in the process of
developing and marketing solutions that, generally, may be
described as "enterprise master patient index" (EMPI)
solutions. By execution of this Agreement, the parties agree
to reduce the potential for channel conflict and further the
business relationship by exploring additional avenues to work
together. As such, the parties intend to reach agreement to
reduce the potential for conflicts within a period of ninety
(90) days following the Effective Date. The parties will use
reasonable efforts to share the necessary and appropriate
information about their respective EMPI products and
strategies in order to enter into a mutually acceptable
agreement.
In the event the parties are unable to reach a mutual
agreement within the time period specified above, Business
Partner shall immediately cease marketing of its EMPI product
and shall enter into an agreement (the "EMPI Agreement")
containing terms and conditions substantially similar to the
terms and conditions set forth in this Agreement, pursuant to
which Business Partner shall remarket and sublicense HBOC's
EMPI product. Unless otherwise expressly agreed, the EMPI
Agreement shall include the following provisions: (a) Business
Partner shall be permitted to support its own EMPI product
indefinitely for its existing customers, (b) Business Partner
shall remit to HBOC a royalty equal to {*}% of the list price
for sublicenses of HBOC's EMPI, except that the first
twenty-four (24) such sublicenses by Business Partner shall be
royalty-free, (c) Business Partner shall provide first level
support for its customers and shall be entitled to retain {*}%
of the maintenance fees associated with those sublicenses, and
(d) for a period of twenty four (24) months from the effective
date of the EMPI Agreement, Business Partner shall have a
royalty-free license to convert any of its existing EMPI
customers to HBOC's EMPI.
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6.3 Marketing Activities. HBOC and Business Partner, as
appropriate, may perform some or all of the following
marketing activities:
6.3.1 Press Releases. Subject to each party's prior written
approval, issue a press release announcing the
creation of the marketing relationship and additional
press releases from time to time to publicize other
significant events regarding joint business
developments.
6.3.2 Marketing Collateral. Work together to develop
articles or entries regarding Integrated Software for
the HBOC marketing publications, including without
limitation: Fact Sheets, Business Partner Solutions
Directory, HBOC Sales Manual and For Your Arsenal,
and any other marketing publications released by HBOC
from time to time during the term of this Agreement.
HBOC shall include references to the BP Software in
presentations, as appropriate, and shall be
responsible for the design and development of
marketing collateral for the Integrated Software.
6.3.3 RFP Responses. Recommend Integrated Software as a
solution in responses to requests for proposals
("RFP's") from HBOC Customers, provided Business
Partner cooperates with HBOC in the preparation of
such responses, such cooperation to include, without
limitation, ensuring the accuracy of HBOC's responses
to questions regarding BP Software contained in
RFP's, the development and update of standard
information required to support HBOC responses to
RFP's, and support to HBOC's RFP Specialists as
required in connection with clarifications to RFP
responses.
6.3.4 Demonstrations. Business Partner shall provide HBOC a
reasonable amount of sales support which may include
demonstrations of the BP Software, either at an HBOC
or HBOC Customer site, and attendance at sales
presentations by HBOC.
6.3.5 Representatives. Each party shall assign a
representative who shall serve as that party's
point-of-contact or facilitator between the parties
on all matters arising under this Agreement. The
representatives shall meet on a mutually agreed upon
basis to review and coordinate all activities under
this Agreement, including development, support,
marketing, and sales, and to amicably resolve any
disputes which may arise under this Agreement.
6.3.6 Sales Training and Assistance. From time to time and
at no charge to HBOC, upon mutually agreeable terms
and conditions, HBOC and Business Partner may
organize and hold sales training workshops for the BP
Software and/or the Integrated Software. Business
Partner agrees to respond timely and effectively to
reasonable requests for assistance from HBOC in order
to promote the license of the Integrated Software by
HBOC.
6.3.7 Business Partner Database. HBOC will include
information about Business Partner, BP Software and
Integrated Software in HBOC's Business Partner
Database for use by HBOC sales representatives,
Affiliates, Distributors and others.
6.3.8 Trade Show Attendance. Upon HBOC's reasonable
request, Business Partner shall participate with HBOC
at vendor fairs and healthcare informatics industry
trade shows, seminars and selected user group events.
6.3.9. Web Page References. It is the intent of the parties
to establish a web page link on each party's home
page to the home page of the other party within a
reasonable period of time following execution of this
Agreement.
7. BUSINESS PARTNER RESPONSIBILITIES. During the term of this Agreement,
Business Partner shall provide the following support and resources to
HBOC:
7.1. Technical Support for HBOC. Business Partner shall provide to
HBOC, at no additional charge, reasonable technical support
and consultation from Business Partner's designated offices by
way of telephone, bulletin boards or other electronic means,
to assist HBOC in the resolution of problems encountered by
HBOC or HBOC Customers in the operation, configuration,
implementation and support of BP Software seven (7) days per
week,
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twenty-four (24) hours each day. Such support shall include
commercially reasonable efforts by Business Partner to verify,
diagnose and correct errors and defects in the BP Software in
accordance with the support and escalation procedures set
forth at Exhibit H. Business Partner agrees to support the
release immediately prior to the New Release of the BP
Software for a minimum of twelve (12) months after the general
availability of a New Release.
7.1.1 Initial Staffing for HBOC Support Desk. Within
forty-five (45) days of the Effective Date and for a
period of one (1) year thereafter, Business Partner
shall provide to HBOC, at no additional charge, two
(2) qualified full-time personnel to reside at HBOC's
facilities in Atlanta, Georgia (Windward office) to
augment HBOC's staff in providing support to HBOC's
Customers regarding the BP Software. These Business
Partner personnel shall be available for emergency
after hours support twenty-four (24) hours per day,
seven (7) days per week as required. HBOC shall be
responsible for reasonable travel and lodging
expenses incurred by Business Partner under this
Section 7.1.1, which in any case shall not exceed one
thousand dollars ($1,000) per person per month.
7.2 Pre-releases. Upon HBOC's reasonable request, Business Partner
shall provide newly developed or beta versions
("Pre-releases") of BP Software for review, evaluation,
training and planning purposes, provided that HBOC makes
available to Business Partner a written critique of such
Pre-release software after completing its evaluation. Business
Partner shall make Pre-releases available to HBOC no later
than when Business Partner makes the same available to other
value added resellers of the BP Software. ANY PRE-RELEASE
SOFTWARE IS PROVIDED TO HBOC "AS IS" AND BUSINESS PARTNER
MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES REGARDING THE PRE-RELEASE SOFTWARE.
7.3 Participation in Development. HBOC may participate in any
development councils or other customer steering committees
which Business Partner may establish to gather input for the
future direction and ongoing development of BP Software.
Business Partner shall also provide HBOC with frequent
communication regarding contemplated New Releases,
Enhancements, and other product directions, including
providing HBOC with copies of BP Software under development in
order that HBOC may fully utilize all the features of the BP
Software as early as is technically feasible, all of which
shall be provided to HBOC no later than provided to any third
party.
7.4 HBOC Training. Business Partner shall provide to HBOC, at no
additional charge, adequate initial training and re-training
as reasonably necessary and requested by HBOC on the use,
operation and installation of BP Software. All training shall
be conducted by qualified personnel at such facilities and at
such times mutually agreed to by the parties, it being
contemplated that initially Business Partner's personnel shall
provide such training in one or more sessions at HBOC's
offices. Unless otherwise expressly agreed, travel and living
expenses incurred by each party in connection with the
training shall be the responsibility of the party incurring
the expenses.
7.5 Professional Services. Business Partner shall make
professional services available to HBOC beyond the scope of
those provided in this Article 7 as set forth in Exhibit I.
7.6 Continued Development of BP Software. Recognizing that a
significant portion of a customer's perceived value in any
software is the developer's continued investment in improved
and enhanced versions thereof, Business Partner shall devote
appropriate resources to developing improved and enhanced
versions of the BP Software (including versions designed to be
compatible with new hardware, database,
presentation/windowing, and operating system features and
versions with improved and additional features).
7.7 Sale of Line of Business. In the event that HBOC should
transfer any line of business whose software products are
dependent on the BP Software, Business Partner shall not
unreasonably refuse to enter into a distributorship agreement
with the buyer of such product line on terms comparable to
Business Partner's then current terms for such a relationship.
8. HBOC RESPONSIBILITIES. During the term of this Agreement, HBOC shall
provide the following resources:
8.1 Customer Support. HBOC shall provide HBOC Customer with their
sole contact point for maintenance and support, and may either
perform the installation of the Integrated Software and the
training of HBOC Customer personnel in
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the use of the Integrated Software or sub-contract with
Business Partner for such services. Business Partner shall
provide appropriate levels (both in quantities and experience)
of staff to support HBOC in answering technical questions, as
specifically set forth in Section 7.1 of this Agreement,
identifying and resolving errors in the BP Software, and
providing temporary solutions to BP Software errors which are
not immediately resolvable. In accordance with procedures
established by the parties, Business Partner shall prioritize
work on error corrections and shall from time to time provide
HBOC with New Releases incorporating such error corrections.
8.2 New Releases. HBOC shall use reasonable efforts to incorporate
New Releases into the Integrated Software for distribution to
HBOC Customers which have purchased software support services
for the Integrated Software from HBOC. While it is the
parties' desire that the Integrated Software contain the New
Releases, they acknowledge that the Integrated Software is
complex and that such changes may require substantial
development efforts on behalf of HBOC, third parties and HBOC
Customers, and that whether the New Releases are incorporated
into the Integrated Software is in the sole discretion of
HBOC.
8.3 Sublicense Agreement Enforcement. In the event HBOC becomes
aware of a breach of a Sublicense Agreement by an HBOC
Customer which affects Business Partner's rights it shall use
commercially reasonable efforts to enforce the terms of the
Sublicense Agreement, using no less efforts that HBOC would
use to protect its own rights under similar circumstances.
9. PRICES AND PAYMENT.
9.1 Customer Fees. HBOC shall unilaterally determine the fees to
be charged to HBOC Customers for the Integrated Software,
including without limitation, software license,
implementation, customization and support fees. There will be
no additional fees payable by HBOC for any Corrections
delivered to HBOC or HBOC Customers during the term of this
Agreement and for so long as support fees are paid to Business
Partner by or on behalf of HBOC Customers.
9.2 Royalty and Royalty Reports. For each Sublicense granted
pursuant to this Agreement, Business Partner shall be entitled
to the applicable Royalty, as set forth in Exhibit C. HBOC
shall report Royalties due Business Partner for each calendar
quarter within thirty (30) days following the last day of the
quarter (e.g., a royalty report for the calendar quarter
beginning January 1 and ending March 31 would be due on April
30). Such royalty report shall include the following
information for each Sublicense: HBOC Customer name and
address, BP Software and Integrated Software licensed,
effective date of the Sublicense Agreement, Royalty and
software support fees due Business Partner, and an estimated
effective date for the commencement of software support
services. Upon receipt of a royalty report, Business Partner
shall issue an invoice to HBOC for the total Royalties and for
that portion of the software support fees which are due and
payable. Payments shall be made within thirty (30) days
following HBOC's receipt of the invoice. The identities of
HBOC Customers disclosed in the royalty report shall be deemed
Proprietary Information for purposes of this Agreement.
9.3 Software Support Fee. In consideration for the technical
support provided by Business Partner pursuant to Section 7.1,
HBOC shall pay Business Partner a software support fee as set
forth in Exhibit C. No software support fee shall be due to
Business Partner for Sublicenses which are not supported by
HBOC. The software support fees shall be paid by HBOC on an
annual basis beginning March 1 of each year during the term of
this Agreement.
9.4 Business Partner Prices; Discounts. Current Agreement List
Prices for BP Software and support and maintenance for the BP
Software are set forth on Exhibit B. Business Partner reserves
the right to increase these Agreement List Prices no more than
once in any consecutive twelve (12) month period, upon at
least 120 days prior written notice to HBOC; however, there
will be no increase during the first twelve months of the term
of this Agreement. No annual increase for any prices shall
exceed the lesser of (i) an amount no greater than the
percentage of any increase over the preceding 12-month period
in the Consumer Price Index or (ii) five percent (5%), and
during the Initial Term of this Agreement, the cumulative
increases will not exceed {*}. The List Price in effect when
the HBOC Customer enters into the Sublicense Agreement shall
control, except that where HBOC (or its Affiliate or
Distributor) has quoted a price and the HBOC Customer enters
into a Sublicense Agreement within 120 days of such quotation
and a price increase would otherwise go into effect, the List
Price in effect as of the date of such quote shall be used. In
the event Business Partner provides discounts
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greater than the discounts provided herein to any similarly
situated so-called reseller or distributor, HBOC shall be
entitled to receive the benefit of such discount for as long
as such discount is in effect. Business Partner shall notify
HBOC of all such transactions for which HBOC either qualifies
or which it might qualify for if it agreed to the conditions
of such other transaction.
9.5 Payment Terms; Conversion Methods.
9.5.1 HBOC shall collect all fees directly from HBOC
Customers and distribute Business Partner's portion
of such fees to Business Partner. Except as otherwise
permitted herein, HBOC shall pay all invoices
submitted by Business Partner within thirty (30) days
of receipt. In addition, HBOC reserves the right to
withhold payment to Business Partner for other
invoices, in whole or in part, which HBOC disputes in
good faith and in writing to Business Partner. The
parties agree to use reasonable efforts to settle
such payment disputes. If HBOC, in its reasonable
discretion, must refund all or a portion of the fees
collected for BP Software to an HBOC Customer and
Business Partner has been paid by HBOC in accordance
with this section, then HBOC shall deduct from the
next payment to Business Partner the amounts refunded
to the HBOC Customer.
9.5.2 For the purposes of calculating currency conversions
in the event Business Partner establishes different
prices in different countries HBOC shall either use
the method it uses for its own internal accounting,
which must conform to Generally Accepted Accounting
Principles (GAAP), or an exchange rate for each
calendar month based upon the exchange rates printed
in The Wall Street Journal (Eastern Edition) on the
last day in each calendar quarter. Business Partner's
List Prices outside of the United States for
countries in which Business Partner does not have a
distributor shall not exceed the ratio established by
HBOC for its products in such country compared to its
United States charges. Business Partner may from time
to time obtain such ratios from HBOC which shall be
binding on the parties until a new ratio is
established by notice from HBOC or upon Business
Partner's request.
9.6 Taxes. HBOC shall be responsible for payment of any sales or
use or similar taxes (except those based on income to Business
Partner) relating to the Sublicenses.
9.7 Expenses. Except as otherwise specified in this Agreement or
agreed to by the parties, each party shall be solely
responsible for its own travel and out-of-pocket expenses
incurred in the performance of its obligations under this
Agreement.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
10.1 Ownership and Protection. Each party agrees that it has no
interest in or right to use the Proprietary Information of the
other except in accordance with the terms of this Agreement.
Each party acknowledges that it may disclose Proprietary
Information to the other in the performance of this Agreement.
The party receiving the Proprietary Information shall: (i)
maintain it in strict confidence and take all reasonable steps
to prevent its disclosure to third parties, except to the
extent necessary to carry out the purposes of this Agreement,
in which case these confidentiality restrictions shall be
imposed upon the third parties, through written agreement with
said third parties, to whom the disclosures are made, (ii) use
at least the same degree of care as it uses in maintaining the
secrecy of its own Proprietary Information (but no less than a
reasonable degree of care) and (iii) prevent the removal of
any proprietary, confidential, copyright, patent, patent
pending, or trademark notices placed on the Proprietary
Information. Proprietary Information shall be maintained as
confidential during the term of this Agreement and for a
period of two (2) years after expiration or earlier
termination of this Agreement, except that any and all
Proprietary Information which constitutes a trade secret shall
be maintained as confidential for as long as such Proprietary
Information remains a trade secret.
10.2 Limitation. Neither party shall have any obligation concerning
any portion of the Proprietary Information of the other which:
(i) is publicly known prior to or after disclosure hereunder
other than through acts or omissions attributable to the
recipient or its employees or representatives; (ii) as
demonstrated by prior written records, is already known to the
recipient at the time of disclosure hereunder; (iii) is
disclosed in good faith to the recipient
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by a third party having a lawful right to do so; or (iv) is
the subject of written consent of the party which supplied
such information authorizing disclosure; or (v) is required to
be disclosed by the receiving party by applicable law or legal
process, provided that the receiving party shall immediately
notify the other party so that it can take steps to prevent
its disclosure.
10.3 Remedies for Breach. In the event of a breach of this Article
10, the parties agree that the non-breaching party may suffer
irreparable harm and the total amount of monetary damages for
any injury to the non-breaching party may be impossible to
calculate and may therefore be an inadequate remedy.
Accordingly, the parties agree that the non-breaching party
may be entitled to temporary, preliminary and permanent
injunctive relief against the breaching party, its officers or
employees, in addition to such other rights and remedies to
which it may be entitled at law or in equity.
10.4 Rights to Additional Applications. Business Partner
acknowledges that HBOC shall have the right (without
obligation to Business Partner) to develop and market software
which operates in conjunction with the BP Software (but does
not include the BP Software) which performs other
applications, interfaces the BP Software to other software, or
improves the ease of use of the BP Software (such as front-end
software); even though such software requires the BP Software
to operate. Nothing in this Agreement shall be construed as
restraining the either party or its Affiliates from developing
or otherwise acquiring for its own purposes or for marketing
computer software similar or identical in function to that of
the other party, except that such development shall not make
use of any Proprietary Information disclosed pursuant to this
Agreement and that such computer software shall not violate
any intellectual property rights of the other party.
11. WARRANTIES.
11.1 Business Partner Warranties.
11.1.1 Warranties of Authority and Title. Business Partner
hereby warrants and represents that (i) it is a
corporation duly organized, validly existing and in
good standing under the laws of the state in which it
was organized and has full power and authority to
enter into and consummate the transactions
contemplated in this Agreement; (ii) the execution,
delivery and performance of this Agreement does not
violate the terms of any security agreement, license,
or any other contract or written instrument to which
Business Partner is bound; (iii) the BP Software does
not infringe any patent, trademark, copyright or
trade secret of a third party; and (iv) it is not
aware of any third party infringing on the rights of
Business Partner with respect to the BP Software.
11.1.2 Product Warranties. Business Partner hereby warrants
and represents that BP Software, including all
modifications, Corrections, Enhancements and New
Releases will have the functions and features and
perform in material respects as described in the
Documentation and other marketing material provided
to HBOC or to HBOC Customers by Business Partner
during the term of this Agreement. Business Partner
further warrants that prior to delivery, the BP
Software has been audited and tested in accordance
with Business Partner's internal quality control
processes and will be free from any virus, worm, trap
door, back door, timer, clock, counter or other
limiting routine, instruction or design that would
erase data or programming or otherwise cause the BP
Software or HBOC Software to become inoperable or
incapable of being used in accordance with its
documentation, and that the BP Software contains no
third party software which would require HBOC to
agree to any terms and conditions in addition to
those set forth in this Agreement. In the event that
the BP Software fails to conform to such warranties,
Business Partner shall promptly and continuously
provide such software support as necessary to cause
the BP Software to perform as warranted. Business
Partner warrants that the BP Software shall meet all
Federal, state and local laws regulations and
policies. HBOC agrees not to make any representations
or warranties with respect to the BP Software other
than the limited warranties made by Business Partner
herein.
11.1.3 Pass-Through Warranty. HBOC may assign to HBOC
Customers to whom it has granted Sublicenses, its
rights in, to and under the warranties and
infringement indemnification set forth in this
Article 11, and upon such assignment, such HBOC
Customers shall have the benefit of the warranties
and be subject to the limitations thereon.
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11.1.4 Business Partner Disclaimer. EXCEPT AS EXPRESSLY
PROVIDED IN THIS ARTICLE 11 OR OTHERWISE UNDER THIS
AGREEMENT (OR ANY OTHER AGREEMENT BETWEEN THE
PARTIES) OR IN ANY OTHER BUSINESS PARTNER MATERIALS
OR DOCUMENTATION PROVIDED TO LICENSEES OF BP
SOFTWARE, BUSINESS PARTNER DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR
CUSTOM, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11.1.5 Year 2000 Warranty: Both parties warrant that the
occurrence in or use by any of its software included
in the Integrated Software of dates on or after
January 1, 2000 (the "Millennial Dates") will not
adversely affect the performance of its Software with
respect to date-dependent data, computations, output
or other functions (including, without limitation,
calculating, computing or sequencing), and its
Software will create, store and generate output data
related to or including the Millennial Dates without
errors or omissions. In the event that BP Software
fails to conform to such warranty, Business Partner
shall provide software support as necessary to cause
BP Software to conform to such warranty. In the event
that HBOC's software fails to conform to such
warranty, HBOC shall indemnify, defend, and hold
harmless Business Partner from any claims, demands,
liabilities, losses, damages, judgments, or
settlements, including all reasonable costs and
expenses related thereto including attorney's fees,
directly or indirectly resulting from any claimed
breach of such warranty.
11.2 HBOC Warranties.
11.2.1 Warranties of Authority. HBOC hereby warrants and
represents that (i) it is a corporation duly
organized, validly existing and in good standing
under the laws of the state in which it was organized
and has full power and authority to enter into and
consummate the transactions contemplated in this
Agreement; and (ii) the execution and performance of
this Agreement does not violate the terms of any
security agreement, license, or any other contract or
written instrument and that it possesses or will
possess, prior to granting the first Sublicense, the
appropriate licenses and agreements with third
parties necessary for the development and
distribution of the Integrated Software.
11.2.2 HBOC Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION 11.2 OR OTHERWISE UNDER THIS AGREEMENT (OR
ANY OTHER AGREEMENT BETWEEN THE PARTIES) HBOC
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
ARISING BY LAW OR CUSTOM, INCLUDING BUT NOT LIMITED
TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
12. INTELLECTUAL PROPERTY INDEMNIFICATION.
Business Partner shall indemnify, defend and hold harmless HBOC, its
Affiliates and Distributors, and HBOC Customers and their officers,
directors, employees agents and affiliates (collectively, for purposes
of this Section 12, "HBOC Persons") from all damages, liabilities and
expenses (and all legal costs including attorneys' fees, court costs,
expenses and settlements resulting from any action or claim) arising
out of, connected with or resulting in any way from: (i) any allegation
that the possession, distribution or use (by HBOC, its Affiliates,
Distributors or HBOC Customers) of BP Software infringes a patent,
trademark, copyright, trade secret or other intellectual property right
of a third party and (ii) the performance or use of BP Software (by
HBOC, its Affiliates, Distributors or HBOC Customers). If any such
claim or proceeding arises, HBOC Persons seeking indemnification
hereunder shall give timely notice of the claim to Business Partner
after it receives actual notice of the existence of the claim. Business
Partner shall have the option, at its expense, to employ counsel
reasonably acceptable to HBOC Persons to defend against such claim and
to compromise, settle or otherwise dispose of the claim; provided,
however, that no compromise or settlement of any claim admitting
liability of or imposing any obligations upon HBOC Persons may be
affected without the prior written consent of HBOC Persons. In
addition, and at the option and expense of Business Partner, Business
Partner may, at any time after any such claim has been asserted, and
shall, in the event any BP Software is held to constitute an
infringement, either procure for HBOC Persons the right to continue
using that the BP Software, or replace or modify the BP Software so
that it becomes non-infringing, provided that such replacement or
modified BP Software has the same functional characteristics as the
infringing BP Software, or, if the prior two remedies are
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commercially impractical, refund to HBOC all fees, costs, and charges
paid by HBOC to Business Partner for that BP Software and any other BP
Software reasonably rendered ineffective as the result of said
infringement. HBOC shall cooperate fully in such actions, making
available books or records reasonably necessary for the defense of such
claim. If Business Partner refuses to defend or does not make known to
HBOC Persons its willingness to defend against such claim within ten
(10) days after it receives notice thereof, then HBOC Persons shall be
free to investigate, defend, compromise, settle or otherwise dispose of
such claim in its best interest and incur other costs in connection
therewith, all at the expense of Business Partner.
13. LIMITATION OF LIABILITY.
13.1. Exclusion of Consequential Damages. NEITHER PARTY WILL BE
LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL
DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS
OF THE OTHER PARTY OR ITS CLIENTS OR CUSTOMERS (INCLUDING
WITHOUT LIMITATION CLAIMS FOR GOODWILL, LOST PROFITS OR USE OF
MONEY) ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTIES,
BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE IN CONNECTION WITH OR ARISING
OUT OF THIS AGREEMENT, EXCEPT ONLY IN THE CASE OF PERSONAL
INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES
SUCH LIABILITY; PROVIDED, HOWEVER, THAT NOTHING CONTAINED
HEREIN SHALL IMPAIR OR LIMIT BUSINESS PARTNER'S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 12.
13.2. Limitation of HBOC's Obligations. HBOC reserves the right to
withhold service or otherwise cease performance of its
development, marketing, maintenance and support obligations
hereunder with respect to any HBOC Customer which is found by
HBOC to be in default or breach of any agreement with HBOC.
Upon such cessation of services to an HBOC Customer, HBOC
shall be relieved of its performance obligations contained in
this Agreement with respect to such HBOC Customer, and shall
not be found to be in breach of this Agreement by Business
Partner. HBOC's aggregate liability to Business Partner for
damages concerning performance or nonperformance by HBOC or in
any way related to the subject matter of this Agreement,
regardless of whether the claim for such damages is based on
contract or tort, shall not exceed the amount received by
Business Partner from HBOC during the previous twelve months
for the BP Software giving rise to such claim.
13.3 Limitation of Business Partner Obligations. Business Partner
reserves the right to withhold performance hereunder with
respect to any HBOC Customer which is found by HBOC to be in
default or breach of any agreement with HBOC. HBOC shall
promptly notify Business Partner of any such HBOC Customer.
Upon cessation of services by HBOC pursuant to Section 13.2,
Business Partner shall be relieved of its obligations
contained in this Agreement with respect to said HBOC
Customer. Business Partner's aggregate liability to HBOC for
damages concerning performance or nonperformance by Business
Partner or in any way related to the subject matter of this
Agreement, regardless of whether the claim for such damages is
based on contract or tort, shall not exceed, with respect to
each HBOC Customer, the amount received by Business Partner
from HBOC for BP Software sublicensed to each said respective
HBOC Customer.
14. TERMINATION; DISPUTE RESOLUTION.
14.1 Early Termination. Either party may terminate this Agreement
immediately by notice to the other party upon the occurrence
of any of the following events of default by the other party:
(i) The other party fails to observe, perform or fulfill
any of its obligations or warranties (other than
confidentiality obligations) under the Agreement and
fails to cure such default within thirty (30) days
after the non-defaulting party gives notice of such
failure;
(ii) The other party fails to observe, perform or fulfill
any confidentiality obligation imposed hereunder and
fails to cure such default within ten (10) days after
the non-defaulting party gives notice of such
failure;
(iii) The other party's business is liquidated, dissolved
or suspended;
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(iv) The other party is prevented from performing any of
its material obligations hereunder for more than
ninety (90) days due to an event beyond its
reasonable control as described in Section 15.12; or
(v) Any representation or warranty made herein by the
other party is false or misleading in any material
respect as of the date on which it was made or
becomes false or misleading in any material respect
at any time thereafter.
14.1.1 Termination By Either Party. Either party may terminate this
Agreement without cause at the halfway point {*} years of the
Initial Term by providing at least six (6) months written
notice to the other party.
14.2 Termination by HBOC. HBOC may, in its reasonable discretion,
terminate this Agreement immediately by providing notice to
Business Partner upon the occurrence of a change in the direct
or indirect ownership or control of Business Partner which in
HBOC's opinion may adversely affect HBOC's rights, goodwill,
HBOC Customer relationships or competitive position.
14.3 Obligations After Expiration or Termination. Upon the
expiration or termination of this Agreement for any reason:
(i) Except as otherwise specified below in clause (ii),
each party will promptly cease using and destroy or
return to the other party all advertisements and
promotional materials that bear a trademark of the
other party and all Proprietary Information of such
other party.
(ii) HBOC may retain the BP Software and other Proprietary
Information provided by Business Partner during the
term of this Agreement solely for the purpose of
performing the functions permitted under this Agreement
as necessary to fulfill the provisions of Sublicense
Agreements existing on the date of expiration or
termination until such time as the last Sublicense
Agreement expires or terminates.
(iii) Business Partner shall continue to perform all
applicable warranty and technical support and other
obligations regarding that BP Software in accordance
with the provisions of this Agreement for the fees
negotiated in this Agreement as necessary to enable
HBOC to fulfill the provisions of Sublicense Agreements
existing on the date of expiration or termination of
this Agreement until such time as the last Sublicense
Agreement expires or terminates.
(iv) HBOC Customers may continue to use the BP Software
provided to them pursuant to this Agreement, so long as
such HBOC Customers have in effect a Sublicense
Agreement on the effective date of expiration or
termination of this Agreement.
14.4 Survival. The following provisions of the Agreement shall
survive expiration or termination of this Agreement: Articles
4, 10, 12 and 14 and Sections 9.1, 9.3, 9.6, 9.7, and 15.4.
14.5 Dispute Resolution. Except when seeking equitable relief, in
the event of a dispute between the parties and for which
dispute the parties are unable to reach a mutually agreeable
resolution, the dispute shall be submitted to arbitration
under the commercial arbitration rules of the American
Arbitration Association then in effect. There shall be one
arbitrator mutually agreed to by both parties; such arbitrator
shall have experience in the area of controversy. After the
hearing, the arbitrator shall decide the controversy and
render a written decision setting forth the issues
adjudicated, the resolution thereof and the reasons for the
award. The award of the arbitrator shall be conclusive. Each
party shall be responsible for its own attorney's fees in
connection with the arbitration. Payment of the expenses of
arbitration, including the fee of the arbitrator and exclusive
of the attorney's fees of the parties, shall be borne equally
by the parties.
15. MISCELLANEOUS PROVISIONS.
15.1 Independent Contractors. It is expressly agreed that Business
Partner and HBOC are acting under this Agreement as
independent contractors, and the relationship established
under this Agreement shall not be construed as a partnership,
joint venture or other form of joint enterprise, nor shall one
party be considered an
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agent of the other. Neither party is authorized to make any
representations or create any obligation or liability,
expressed or implied, on behalf of the other party, except as
may be expressly provided for in this Agreement.
15.2 Comparable Terms. The List Prices and Royalties of this
Agreement shall not at any time be less favorable than any
price terms offered by Business Partner to any
similarly-situated third party which distributes BP Software
in comparable volumes. In the event that Business Partner
offers any third party more favorable price or non-price terms
than those offered hereunder to HBOC, the Business Partner
shall so notify HBOC, and the more favorable terms shall be
immediately extended to HBOC.
15.3 Non-Exclusive. The parties reserve the right to enter into
similar agreements with third parties for the purpose of
marketing and distributing their respective products which are
the subject of this Agreement or any other products providing
the same or similar functions.
15.4 Access to Books and Records. The parties shall keep complete,
accurate, and up-to-date books and records in accordance with
generally accepted accounting principles and sound business
practices covering all transactions relating to this
Agreement. Either party and/or its qualified authorized
representatives shall upon reasonable notice have the right
(not more than once annually) to inspect, audit, and/or copy
appropriate records in order to determine whether all
provisions of this Agreement have been met. The parties agree
that all information and records obtained in such audit shall
be considered Proprietary Information and that individuals
performing such audits shall be required to execute
confidentiality agreements pertaining to the Proprietary
Information (and including provisions substantially similar to
the provisions herein relating to the Proprietary Information)
prior to the performance of any such audits. This right to
audit shall be available to either party for up to two (2)
years following the termination or expiration of this
Agreement.
15.5 Omnibus Reconciliation Act of 1980. If the provisions of
Section 952 of the Omnibus Reconciliation Act of 1980, as
amended (currently codified at 42 U.S.C. 1395x(v)1(I)), are or
become applicable to this Agreement, then, until the
expiration of four (4) years after the furnishing of services
pursuant to this Agreement, Business Partner shall, upon
written request, make available to the Secretary of Health and
Human Services, the U. S. Comptroller General, or any other
duly authorized representative of the federal government, the
contracts and books, documents and records of Business Partner
that are necessary to certify the nature and extent of costs
related to this Agreement.
15.6 Compliance with Laws. Both parties, their employees and agents
shall comply with applicable federal, state and local laws,
ordinances, regulations and codes, including the
identification and procurement of required permits,
certificates, approvals and inspections, in the performance of
this Agreement.
15.7 Export Assurance. HBOC hereby acknowledges and agrees that it
will first obtain any export license or approval required by
the United States Department of Commerce pursuant to the
Export Administrative Regulation prior to exporting the
Integrated Software. HBOC shall indemnify, defend and hold
harmless Business Partner from all damages, liabilities, and
expenses (and all legal costs including attorneys' fees, court
costs, expenses and settlements resulting from any action or
claim) arising out of, connected with or resulting in any way
from HBOC's failure to comply with any export laws or
regulations.
15.8 Headings/Days. The headings of the paragraphs of this
Agreement are for convenience only and shall not be a part of
or affect the meaning or interpretation of this Agreement. All
references to "days" within this Agreement shall mean days
during the standard business work week, excluding Saturdays
and Sundays and including holidays of any kind.
15.9 Exhibits. This Agreement incorporates the attached Exhibits A,
B, C, D, E, F, G, H, and I and any subsequent Exhibits or
schedules referencing this Agreement.
15.10 Non-Solicitation of Employees. During the term of this
Agreement and for a period of one (1) year thereafter, each
party agrees that without the other party's prior written
consent neither it nor its Affiliates shall solicit, hire or
otherwise retain as an employee or independent contractor any
person who during the previous twelve (12) months was an
employee of the other party.
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15.11 Assignment. This Agreement and any interest hereunder shall
inure to the benefit of and be binding upon the parties and
their respective successors, legal representatives and
permitted assigns. Upon prior notice to the other party,
either party may assign this Agreement: (i) to any legal
entity in connection with the merger or consolidation of the
assigning Party into such entity or the sale of all or
substantially all of the assets of the assigning Party to such
entity or (ii) to any direct or indirect subsidiary of the
assigning party in connection with any corporate
reorganization. Except as stated in the previous sentence,
neither party may assign or delegate this Agreement without
the other party's prior written consent, which consent shall
not be unreasonably withheld. Any attempt to assign, delegate
or otherwise transfer the Agreement in violation of this
Section 15.11 is voidable by the other party.
15.12 Force Majeure. Neither party shall be responsible or
considered in breach of this Agreement for any delay or
failure in the performance of any obligation of this Agreement
to the extent that such failure or delay is caused by acts of
God, fires, explosions, labor disputes, accidents, civil
disturbances, material shortages or other similar causes
beyond its reasonable control, even if such delay or failure
is foreseeable. Provided, however, that the non-performing
party provides notice of such cause preventing or delaying
performance and resumes its performance as soon as practicable
and provided further that the other party may terminate this
Agreement upon notice if such non-performance continues for a
period of ninety (90) days.
15.13 Governing Law; Statute of Limitations. The validity and
construction of this Agreement shall be governed by, subject
to and construed in accordance with the laws of the state of
Georgia, excluding its conflicts of law rules. Subject to
Section 14.5, in the event either party employs attorneys to
enforce any right arising out of or relating to this
Agreement each party shall be responsible for its own
attorney's fees and costs. Any claim arising out of or
relating to this Agreement shall be commenced within one year
of the date upon which the cause of action accrued (or, if one
year is shorter than the maximum allowed by law, then the
maximum period allowed by law shall apply).
15.14 Notices. All notices, requests, demands and other
communications (collectively, "Notices") required or permitted
by this Agreement shall be in writing and shall be delivered
by hand, telex, telegraph, facsimile or like method of
transmission or mailed by registered or certified mail, return
receipt requested, first class postage prepaid, addressed as
follows:
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A. If to HBOC:
HBO & Company of Georgia
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
FAX: 404/000-0000
with a copy to: Vice President, Business Development
B. If to Business Partner:
Healthdyne Information Enterprises, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attn: President and Chief Executive Officer
FAX: 770/000-0000
If delivered by hand, telex, telegraph, facsimile or like method of
transmission, the date on which a Notice is actually delivered
shall be deemed the date of receipt and if delivered by mail,
the date on which a Notice is actually received shall be
deemed the date of receipt. Either party may change the
address or designated person for receiving Notices by
providing notice in accordance with this Section 15.14.
15.15 Severability. If any term of this Agreement is held as invalid
or unenforceable, the remainder of this Agreement shall not be
affected, and each term and provision shall be valid and
enforced to the fullest extent permitted by law.
15.16 Entire Agreement/Amendments. This Agreement, including all
Exhibits attached hereto, contains the entire agreement
between the parties and supersedes all prior and
contemporaneous proposals, discussions and writings by and
between the parties and relating to the subject matter hereof.
None of the terms of this Agreement shall be deemed to be
waived by either party or amended or supplemented unless such
waiver, amendment or supplement is written and signed by both
parties. The invalidity or unenforceability of any particular
provision of this Agreement, as determined by any court of
competent jurisdiction or any appropriate legislature, shall
not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or
unenforceable provision had been omitted. No usage of trade or
industry course of dealing shall be relevant to explain or
supplement any term expressed in this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
HBO & COMPANY OF GEORGIA HEALTHDYNE INFORMATION ENTERPRISES, INC.
Signature: /s/ Xxxxxx X. Xxxxxxxx Signature: /s/ Xxxxxx X. Xxxxxx
-------------------------- -----------------------------
By: By:
--------------------------------- ------------------------------------
Title: President Title: President
Date: 9/8/98 Date: 9/8/98
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EXHIBIT A
BP SOFTWARE
BP SOFTWARE ID DESCRIPTION PLATFORM AVAILABILITY*
---------------------------------------------------------------------------------------------------------------
HIE-001 Cloverleaf(R) Integration Engine Tool 1,2,3,4,5
HIE-001-HA Cloverleaf(R) HACMP (High Availability) 1,2,3
HIE-001DV Cloverleaf(R)_Testing & Development License 1,2,3,4,5
HIE-006 Cloverleaf(R) 6-Server pack (single customer) 1,2,3,4,5
HIE-012 Cloverleaf(R)_12-Server pack (single customer) 1,2,3,4,5
HIE-001DB Cloverleaf(R)_ODBC Single Client Driver 1,2,5
HIE-002 Cloverleaf(R)_Gateway (runtime) 1,2,3,4,5
HIE-003 Cloverleaf(R)_Gateway 10-Server pack (single customer) 1,2,3,4,5 HIE-001-LTD*
Cloverleaf(R) Integration Engine Tool Limited Use 1,2,3,4,5
HIE-001-LTD-RMG** Cloverleaf(R) Integration Engine Tool Limited Use for RMG 1,2,3,4,5
PLATFORMS:
VENDOR O/S
---------------------------------
1. Hewlett Packard HP-UX
2. IBM AIX
3. Digital Digital UNIX
4. Data General DG-UX (Intel)***
5. (Intel) Windows NT
* Limited Use version restricts to ten (10) the number of connections to
non-HBOC software applications
** Limited Use version for RMG restricts the customer to interfaces only
between HBOC's Resource Management Group (RMG) Products and other software
products or applications. RMG Products means, collectively, the following HBOC
software applications (which list may be modified or added to from time to time
upon mutual written agreement of HBOC and Business Partner):
1. ESi Enterprise Scheduling (ES)
2. Pathways Materials Management
3. Pathways Financial Management
4. Nova
5. Titan
6. Orbit
7. Pathways Staff Scheduling (formerly ESP)
8. CCS (group reporting module)
9. TS2000 (TouchScan 2000 floor issuing)
10. Matkon
*** Business Partner is to port Cloverleaf to Data General platform as per terms
and conditions of this Agreement
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18
EXHIBIT B
AGREEMENT LIST PRICES
{*} THE NEXT FOUR PAGES HAVE BEEN REDACTED IN ACCORDANCE WITH THE COMPANY'S
REQUEST FOR CONFIDENTIAL TREATMENT.
Page 18
19
EXHIBIT C
ROYALTIES & MAINTENANCE FEES
{*} THIS PAGE HAS BEEN REDACTED IN ACCORDANCE WITH THE COMPANY'S REQUEST FOR
CONFIDENTIAL TREATMENT.
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20
EXHIBIT D
REQUIRED SUBLICENSE TERMS
The provisions of HBOC's form of Information Systems Agreement in use in the
country in which the Integrated Software will be licensed shall be used by HBOC
or its Affiliates or distributors. Those provisions shall include terms
providing, at minimum, protection for Business Partner's rights and interests,
including but not limited to terms related to intellectual property, Proprietary
Information, warranties, disclaimers, limitations of liability, statutes of
limitation, and indemnification, that are substantially similar to and not
inconsistent with similar terms included herein.
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21
EXHIBIT E
TERRITORY
Worldwide
Page 21
22
EXHIBIT F
BUSINESS PARTNER TRADEMARK/LOGO REQUIREMENTS
(TO BE SUPPLIED BY BUSINESS PARTNER TO HBOC)
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23
EXHIBIT G
ENHANCEMENTS TO BE DEVELOPED
(THIS EXHIBIT G REFERENCES AND INCLUDES THE ATTACHED EIGHT (8) PAGES)
Business Partner shall port the Cloverleaf(R) Integration Engine to the
Intel-based Data General UNIX platform and shall make this version of the BP
Software available to HBOC under the terms and conditions of this Agreement. As
with other versions of the BP Software, the Data General UNIX version shall be
tested and certified in accordance with Business Partner's standard policies and
procedures.
In addition, Business Partner shall develop the interfaces described on the
attached seven (7) pages and shall make them available to HBOC in conjunction
with the BP Software being provided under the terms and conditions of this
Agreement. HBOC shall provide reasonable assistance to Business Partner in this
effort which shall include (a) providing specifications for the applicable HBOC
Software, (b) providing other product specifications known to HBOC (c) providing
a development environment at HBOC's facilities to accommodate Business Partner.
Although these interfaces shall be developed and provided to HBOC free of
charge, HBOC shall pay any travel and lodging expenses incurred by Business
Partner in this effort.
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PRIORITIZED INTERFACE MAPPINGS FOR HNS
FORMAT TYPE DIRECTION INTERIM DIRECTION TYPE FORMAT DATA CHGS SEQ NOTES
----------------------------------------------------------------------------------------------------------
STAR 17.1 ADT > HBOCHI 2.2b 1 sales
STAR 17.1 Orders > HBOCHI 2.2b 1 sales
STAR 17.1 Results > HBOCHI 2.2b 1 sales
HBOCHI 2.2b > ADT HNS 4.0 4.0.0 2 sales
HBOCHI 2.2b > Orders HNS 4.0 4.0.0 2 sales
HBOCHI 2.2b > Pharmacy HNS 4.0 4.0.0 2 sales
HBOCHI 2.2b > Results HNS 4.0 4.0.0 2 sales
HBOCHI 2.2b > Transcription HNS 4.0 4.0.0 2 sales
PCM 6.2 Orders > HBOCHI 2.2b 3 sales
PCM 6.2 Results > HBOCHI 2.2b 3 sales
PHC 1.0 ADT > HBOCHI 2.2b 4 sales - cert (12/31/97)
SMR 4.0 Results > HBOCHI 2.2b 5 sales
SMR 4.0 Transcription > HBOCHI 2.2b 5 sales
Series 6.1 ADT > HBOCHI 2.2b 6 sales - cert (12/31/97)
Series 6.1 Orders > HBOCHI 2.2b 6 sales - cert ( 3/01/98)
Series 6.1 Pharmacy > HBOCHI 2.2b 6 sales - 47% mappings
Series 6.1 Results > HBOCHI 2.2b 6 sales - cert ( 3/01/98)
PPM 3.2 ADT > HBOCHI 2.2b 7 sales
PMC 5.0 ADT Mship > HBOCHI 2.2b 8 sales - cert ( 3/31/98)
HBOCHI 2.2b > ADT HNS 3.0 3.0.3 9
HBOCHI 2.2b > Orders HNS 3.0 3.0.3 9
HBOCHI 2.2b > Pharmacy HNS 3.0 3.0.3 9
HBOCHI 2.2b > Results HNS 3.0 3.0.3 9
HBOCHI 2.2b > Transcription HNS 3.0 3.0.3 9
HBOCHI 2.2b < ADT HNS 3.0 10
HBOCHI 2.2b < ADT HNS 4.0 10
HQ 3.0 ADT > HBOCHI 2.2b 11 21-Aug
PWLab ER4.0 Orders > HBOCHI 2.2b 12 11-Sep
PWLab ER4.0 Results > HBOCHI 2.2b 12 11-Sep
PHS 7.0 ADT > HBOCHI 2.2b 13 9-Oct ?
TPA 7.0 ADT > HBOCHI 2.2b 14 4-Dec
PCM 5.1.6 Orders > HBOCHI 2.2b 15 31-Dec
PCM 5.1.6 Results > HBOCHI 2.2b 15 31-Dec
AdV 4.3 Orders > HBOCHI 2.2b 16 21-Jul
AdV 4.3 Results > HBOCHI 2.2b 16 21-Jul
STAR 16.1 ADT > HBOCHI 2.2b 17 98%
STAR 16.1 Orders > HBOCHI 2.2b 17 95%
STAR 16.1 Results > HBOCHI 2.2b 17 95%
STAR 15.1 ADT > HBOCHI 2.2b 18 12/31/97
Page 1 of 2
25
Prioritized Interface Mappings for HNS
FORMAT TYPE DIRECTION INTERIM DIRECTION TYPE FORMAT DATA CHGS SEQ NOTES
----------------------------------------------------------------------------------------------------------
STAR 15.1 Orders > HBOCHI 2.2b 18 95%
STAR 15.1 Results > HBOCHI 2.2b 18 95%
SMR 3.5 Results > HBOCHI 2.2b 18 98%
SMR 3.5 Transcription > HBOCHI 2.2b 18 98%
SMR 3.51 Results > HBOCHI 2.2b 19
SMR 3.51 Transcription > HBOCHI 2.2b 19
PWLab 6.0 Orders > HBOCHI 2.2b 20
PWLab 6.0 Results > HBOCHI 2.2b 20
HBOCHI 2.2b > ADT HNS 3.0 3.0.2 21
STAR 15.1 Pharmacy > HBOCHI 2.2b 23
STAR 16.1 Pharmacy > HBOCHI 2.2b 24
Page 2 of 2
26
HBOC TO HBOC Interfaces
SENDING MSG. TYPE RECEIVING
CORE HIS*
Core HIS ADT HNS
Orders
Results
Core HIS ADT Caremanager
Orders
Results
Core HIS ADT PHS
Core HIS ADT Pathways Matl. Mgmt.
Xxx Refunds
Core HIS ADT Image Mgr
Core HIS ADT Pathways Lab
Orders
Results
Core HIS ADT Advantage Lab
Orders
Results
Core HIS ADT Pathways Surg. Mgr.
Core HIS ADT SMR
Core HIS ADT Core HIS II
Orders
Results
Charges
CARE MANAGER (CM) 6.2
Care Manager Orders Core HIS
Results
Care Manager Orders HNS
Results
PHS
PHS ADT Core HIS
ADT HNS
ADT Pathways Lab
ADT Advantage Lab
ADT SMR
ADT Pathways Matl. Mgmt.
ADT Pathways Surg. Mgr.
ADT Caremanager
ADT Image Mgr
PATHWAYS FIN MGMT.
Pathway Fin. Mgmt. GL Issues Core HIS
Journal Entry
PATHWAYS MATL. MGMT.
Pathways Matl. Mgmt. Accrued Receipts Core HIS
Charges
27
HBOC TO HBOC Interfaces
SENDING MSG. TYPE RECEIVING
Matched Invoices
PATHWAYS HOMECARE 4.1
Pathways HomeCare ADT Core HIS
ADT Pathways Lab
ADT ALG
ADT Caremanager
ADT HNS
ADT Image Mgr
ADT Pathways Matl. Mgmt.
ADT PHS
ADT Pathways Surg. Mgr.
ADT SMR
PATHWAYS SURG. MGR. 3.0
Pathways Surg. Mgr. Charges Core HIS
SMR 4.0
SMR Orders ALG
Orders Caremanager
Orders Core HIS
Orders HNS
PPM 3.2, 3.3
PPM ADT ALG
ADT Caremanager
ADT Core HIS
ADT HNS
ADT Image Mgr
ADT Pathways Matl. Mgmt.
ADT PHS
ADT SMR
ADT Pathways Surg. Mgr.
ALG 4.3
AdVantage Lab Lab Results Core HIS
Orders
Charges
Status Changes
Orders Caremanager
Results
Orders HNS
Charges Pathways HomeCare
*CORE HIS: Series 6.1, STAR 15.1, 16.1, 17.1, Saint Express**, Paragon 1.0
Precision 2000 7.0, Healthquest 3.0
**SAINT EXPRESS:
28
HBOC TO HBOC Interfaces
SENDING MSG. TYPE RECEIVING
PF 3.4
PC 3.3
GF 3.1
RadCom 7.0
Payroll 7.0
Payroll/HR 1.1
29
HBOC TO Foreign System Interfaces
SENDING MSG. TYPE RECEIVING
STAR 15.1, 16.1, 17.1
Pt. Care ADT Foreign Systems*
Pt. Care Orders Foreign Systems*
Pt. Care MFN Foreign Systems*
Pharmacy Orders Foreign Systems*
Pharmacy Disp. Msg. Foreign Systems*
Pharmacy Charges Foreign Systems*
Med. Rec. Transcription Foreign Systems*
Lab Orders Foreign Systems*
Lab Results Foreign Systems*
Lab Charges Foreign Systems*
CARE MANAGER (CM) 6.2
CM Orders Foreign Systems*
CM Results Foreign Systems*
PHS 7.0
PHS ADT Foreign Systems*
PATHWAYS MATL. MGMT. 2.0, 3.0
ESI Charges Foreign Systems*
ALG LAB 4.3
ALG Lab Orders Foreign Systems*
ALG Lab Charges Foreign Systems*
ALG Lab Results Foreign Systems*
PPM 3.2, 3.3
PPM ADT Foreign Systems*
PPM Elig Reply Foreign Systems*
MedCare Elig Query Foreign Systems*
SERIES 4000 6.1
Pt. Care ADT Foreign Systems*
Pt. Care Orders Foreign Systems*
Lab Orders Foreign Systems*
Lab Results Foreign Systems*
Lab Charges Foreign Systems*
Pharmacy Order Foreign Systems*
Pharmacy Disp. Msg. Foreign Systems*
Pharmacy Charges Foreign Systems*
Med. Rec. Transcription Foreign Systems*
SERIES 5000 6.1
Pt. Care ADT Foreign Systems*
30
HBOC TO Foreign System Interfaces
SENDING MSG. TYPE RECEIVING
Pt. Care Orders Foreign Systems*
Pharmacy Orders Foreign Systems*
Pharmacy Disp. Msg. Foreign Systems*
Pharmacy Charges Foreign Systems*
Lab Orders Foreign Systems*
Lab Results Foreign Systems*
Lab Charges Foreign Systems*
Med. Rec. Transcription Foreign Systems*
HEALTHQUEST 3.0
Pt. Care ADT Foreign Systems*
Pt. Care Orders Foreign Systems*
Lab Orders Foreign Systems*
Lab Results Foreign Systems*
Lab Charges Foreign Systems*
Pharmacy Orders Foreign Systems*
Pharmacy Disp. Msg. Foreign Systems*
Pharmacy Charges Foreign Systems*
Med. Rec. Transcription Foreign Systems*
Med. Rec. Foreign Systems*
PRECISION 7.0
Precision ADT Foreign Systems*
Precision Orders Foreign Systems*
PARAGON 1.0, 2.0/SAINT EXPRESS ***
Pt. Care ADT Foreign Systems*
Pt. Care Orders Foreign Systems*
Lab ADT Foreign Systems*
Lab Orders Foreign Systems*
Pharmacy ADT Foreign Systems*
Pharmacy Orders Foreign Systems*
Med. Rec. ADT Foreign Systems*
Med. Rec. Orders Foreign Systems*
FOREIGN SYSTEMS*
ADT HBOC Product List**
Orders HBOC Product List**
Results HBOC Product List**
Charges HBOC Product List**
Transcription HBOC Product List**
Disp. Msg. HBOC Product List**
31
HBOC TO Foreign System Interfaces
SENDING MSG. TYPE RECEIVING
*FOREIGN SYSTEMS: Sunquest Lab, Cerner Lab, Cerner RX, Pyxis RX,
Softmed Chart Tracking, Softmed Transcription,
Dictaphone Transcription, Citation Lab, Per-Se
Scheduling, IDX Rad, IDS RX
** HBOC PRODUCT LIST Star 15.1, 16.1, 17.1, Care Management (CM) 6.2, PHS
7.0, ALG 4.3, Lab 4.3, PPM 3.2, 3.3, Series 4000 6.1,
Series 5000 6.1, Healthquest 3.0, Precision 7.0,
Paragon 1.0, 2.0, Financial Management 3.4, Matl.
Management 2.0, 3.0
*** SAINT EXPRESS:
PF 3.4
PC 3.3
GF 3.1
RadCom 7.0
Payroll 7.0
Payroll/HR 1.1
32
EXHIBIT H
SOFTWARE SUPPORT AND ESCALATION PROCEDURES
Software Support twenty-four (24) hours per day, seven (7) days per week.
------------------------------------------------------------------------------------------------------------------------------------
ESCALATION RESPONSE TIMES
------------------------------------------------------------------------------------------------------------------------------------
PRIORITY DEFINITION INITIAL RESPONSE NEXT FOLLOW-UP
----------------------------------- --------------------------------- --------------------------------------------------------------
Critical Issue Any issue that directly affects 15 minutes Every hour until resolution.
the delivery of care to the
patient or significantly
affects the financial
operations of the institution.
----------------------------------- --------------------------------- --------------------------------------------------------------
High Issue Any issue that affects the One hour Every 4 hours or next scheduled
operations of the customer and contact time until resolution.
no acceptable means of "working
around" the problem exist. The
issue is important due to the
frequency of client usage or data
integrity, but does not have
critical implications.
----------------------------------- --------------------------------- --------------------------------------------------------------
Standard Issue Any other issue. Same business day Next scheduled contact time
until resolution.
----------------------------------- --------------------------------- --------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
DEFECT RESOLUTION TIMES
------------------------------------------------------------------------------------------------------------------------------------
PRIORITY DEFINITION EXPECTED RESPONSE
---------------------------------------------- -------------------------------------------- ----------------------------------------
High Software Issue The issue is important due to the Identification: 2 business days
frequency of client usage or data Interim fix: 5 business days
integrity, but does not have critical Final fix: Next software release
implications.
---------------------------------------------- -------------------------------------------- ----------------------------------------
Standard Software Issue Identification: 5 business days
Interim fix: 15 business days
Closure: Next software release
---------------------------------------------- -------------------------------------------- ----------------------------------------
Page 24
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EXHIBIT I
BUSINESS PARTNER PROFESSIONAL SERVICES
Implementation Services for HBOC Customers shall be available from Business
Partner at the following rates:
FOR EXISTING INSTALLED* HBOC PATHWAYS INTERFACE MANAGER CUSTOMERS CONVERTING TO
BP SOFTWARE: Implementation Services for HBOC-to-HBOC interfaces: No hourly
charge, only travel & lodging Implementation Services for all other existing
interfaces: $46/hour plus travel & lodging
FOR EXISTING UNINSTALLED** HBOC PATHWAYS INTERFACE MANAGER CUSTOMERS CONVERTING
TO BP SOFTWARE: $125/hour plus travel & lodging for all implementation services
FOR NEW SALES OF BP SOFTWARE TO HBOC CUSTOMERS:
$125/hour plus travel & lodging for all implementation services
* An installed HBOC Pathways Interface Manager Customer has either completed
implementation or is in the process of implementing the Pathways Interface
Manager software as of the Effective Date.
** An uninstalled HBOC Pathways Interface Manager Customer has licensed Pathways
Interface Manager but has not yet begun implementation of the software.
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EXHIBIT J
BUSINESS PARTNER EXISTING CUSTOMERS REFERENCED IN SECTION 6.1
{*} THE NEXT SEVEN PAGES HAVE BEEN REDACTED IN ACCORDANCE WITH THE COMPANY'S
REQUEST FOR CONFIDENTIAL TREATMENT.
Page 26
