Master Agreement For Computer Software, Products
and Related Services
between
Alternative Technology Resources, Inc.
and
Resource Information Management Systems, Inc.
Effective Date: January 12, 2001
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TABLE OF CONTENTS
SECTION
1. Relationship Management 3
2. Definitions 4
3. Limited Warranties; Disclaimer 8
4. Remedies and Limited Liability 11
5. Ownership 15
6. Confidentiality 17
7. Developed Software 20
8. Audit Rights 21
9. Licensed Software Escrow 22
10. Taxes 22
11. Pass-through Charges 22
12. Dispute Escalation; Mediation 22
13. Term and Xxxxxxxxxxx 00
00. Indemnities and Liability 24
15. Press Releases; Public Announcements 25
16. Miscellaneous 25
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This Agreement is between Alternative Technology Resources, Inc., a Delaware
corporation with its principal place of business at 000 X Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx ("ATR" or "Customer") and Resource Information Management Systems,
Inc., an Illinois corporation with its principal place of business at 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx ("RIMS") effective as of January 12, 2001
("Effective Date") relating to the licensing of computer software and the
provision of related services and products.
Section 1. Relationship Management.
1.1 Overview. This Agreement is intended to be a "Master Agreement" that will
provide the common terms and conditions that will govern the parties'
contractual relationship on an ongoing basis. The specific agreement
between the parties will be set forth in "Statements of Work" to this
Master Agreement, which will address various products or services related
to the health care claims payment and administration industry.
1.2 Statements of Work. Statements of Work and the issues they cover may be
added in the future which will be governed by the provisions of this Master
Agreement.
1.3 Party Representatives.
1.3.1Relationship Managers. Each party shall at all times designate at least
one management level employee ("Relationship Manager") who will have
responsibility for compliance with this Agreement, communication with the
other party regarding this Agreement and all disputes, inquiries, requests,
and management issues related to the Agreement or any matter concerning the
relationship between ATR and RIMS.
1.3.2Relationship Managers will exchange and keep current the telephone
numbers, mailing address, e-mail address, and facsimile numbers for all
other Relationship Managers. Changes in the identity or information
regarding the Relationship Manager shall be made by notice to the other
party.
1.4 Use Of Affiliates and Subcontractors. RIMS may use affiliated companies and
third parties to provide products and services which may be required by
this Agreement provided RIMS maintains substantial supervision and control
over such providers. RIMS will not outsource operation of the Data Center,
software "Support Services" or "Implementation Services" without prior
notice to and consent by Customer, which consent will not be unreasonably
withheld.
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Section 2. Definitions.
2.1 "Agreement" means this Master Agreement for Computer Software, Products and
Related Services including all Statements of Work and Exhibits.
2.1.1 "Master Agreement" means the Agreement excluding Statements of Work.
2.2 "Applicable Federal Law" shall mean those United States Federal statutes
and regulations which govern Customer's use of Licensed Software and the
privacy of patient data.
2.3 "Claim" means information submitted by a Provider or covered person to
establish that medical services were provided to a covered person in order
to process for payment or "Repricing".
2.4 "Customer" means Alternative Technology Resources, Inc., a Delaware
corporation.
2.5 "Customer's Site" is 000 X Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx, 00000.
2.6 "Cure Period" is a commercially reasonable time, not less than thirty (30)
days, after receiving notice of a breach of warranty from Customer, within
which RIMS may correct such breach of warranty, using commercially
reasonable efforts to make such correction.
2.7 "Delivery" of Licensed Software means that the Licensed Software is
available for use by Customer using the method mutually agreed by the
parties.
2.7.1. "Delivered" means Delivery has occurred.
2.7.2"Delivery Date" is the date Delivery is deemed to occur. The Delivery Date
shall be the first date following Delivery on which notice has been
received by Customer from RIMS notifying Customer that Licensed Software
has been Delivered ("Delivery Notice").
2.8 "Emergency Recovery" shall mean those emergency plans and equipment used by
the RIMSLink Data Center to provide Services in the event of an occurrence
described in the "RIMSLink Data Center Emergency Recovery Plan".
2.9 "Escrow Agreement" is the Source Code Escrow Agreement provided for in
Section 9 of this Agreement and attached as Exhibit 9.
2.10 "Fees" are "License Fees", "Service Fees" and any other charge to Customer
by RIMS pursuant to any Statement of Work.
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2.10.1 "License Fees" are charges to Customer by RIMS for use of any Licensed
Software as set forth in a Statement of Work for such Licensed Software.
2.10.2 "Service Fees" are charges to Customer by RIMS for any "Service"
provided pursuant to a Statement of Work. If a Service is provided by a
third party, the fee for such Service may, but need not be a "Third
Party Service Fee".
2.10.3 "Third Party Service Fee" is a fee for a Service paid directly to a
Third Party for such Service.
2.11 "RIMSLink Data Center" means any RIMS computer data center at which RIMS
Equipment is housed, and through which Customer (through Customer
Equipment) will use Licensed Software, conduct Transactions, and process
Claims and related data.
2.12 "Equipment" means 1) the RIMS Equipment and 2) the Customer Equipment.
2.12.1 "RIMS Equipment" is the computer(s), disk drive storage, router(s) and
other required equipment (including telecommunications equipment)
located at a RIMSLink Data Center.
2.12.2 "Customer Equipment" is computer servers (as required), workstations,
printers, routers, modems and other related communications equipment
supplied by Customer and used by Customer to process computer input and
output to and from the RIMS Equipment.
2.13 "Repricing" means the determination or specification of the amount a
Provider has agreed to accept as full payment for health care services
and/or products in lieu of the charge stated by the Provider in a claim
or a xxxx for those services or goods.
2.14 "Statement of Work" shall mean the agreements relating to specific
services or products between Customer and RIMS which are entered into
now or in the future as a result of and pursuant to the terms of the
Master Agreement. Each Statement of Work shall refer to and incorporate
the Master Agreement. The Statement of Work shall control over any
conflicting provision of this Master Agreement.
2.14.1 Each Statement of Work is a separate and independent agreement between
Customer and RIMS, even though a Statement of Work may incorporate terms
or make reference to the Master Agreement or another Statement of Work.
2.15 "Services" means any service provided by RIMS to or for the benefit of
Customer as provided in any Statement of Work. Services may include
support, implementation, training, Transaction Services or others as
agreed by the parties.
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2.15.1 "Transaction Services" shall mean electronic services performed by RIMS
or third parties at RIMS' and Customer's direction, for Customer or its
customers, with regard to Claims or other data, pursuant to a Statement
of Work.
2.16 "Software" is all Licensed Software and Developed Software.
2.16.1 "Licensed Software" means those computer software programs, systems and
related materials specifically identified in a Statement of Work as
"Licensed Programs". Licensed Software includes all Derivative Products
and Enhancements for the Licensed Software. Licensed Software does not
include Customer's data or data of any customer of Customer.
A. "Derivative Products" means any software, program or product developed
by the parties either separately or jointly during the term of this
Agreement which uses, incorporates, employs, or includes any Licensed
Software, any component or element of any Licensed Software, or any
materials or documentation related to Licensed Software. Derivative
Products shall also include any software, product or program which in
any way directly or indirectly used the Licensed Software or any part
of the Licensed Software for its development, or as a basis or
component. Customer's data shall not be considered a Derivative
Product.
B. "Enhancements" shall mean any modifications or additions that, when
made, added to, directly or indirectly created from, originated or
derived from, or re-engineered from or through Licensed Software
(whether or not dependent upon the Licensed Software), in any manner
whatsoever change the utility, efficiency, functional capability, or
application of the Licensed Software. Customer's data shall not be
considered an "Enhancement".
C. "Essential Functionality" means a capability or function of Licensed
Software which is essential to operation of the Licensed Software as a
whole, and which is not cosmetic, or available in the same or similar
fashion through a "work-around", and the absence of which is not
merely inconvenient to a user of the Licensed Software. Examples of
Essential Functionality may be included in an exhibit to the Statement
of Work for such software.
2.16.2 "Customer Enhancements" shall be that software, computer code or other
product resulting when (i) Customer develops modifications, Derivative
Products, or Enhancements to the Licensed Software as permitted by this
Agreement, or (ii) RIMS creates Developed Software for Customer which is
specifically identified and which RIMS expressly agrees by Statement of
Work prior to the commencement of such development that such Developed
Software shall not be licensed except to Customer.
2.16.3 "Developed Software" is computer code or software created by RIMS for
Customer.
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2.16.3.1 Developed Software, after Delivery to Customer pursuant to this
Agreement or a Statement of Work shall be either (i) Licensed Software for
purposes of this Agreement and any applicable Statement of Work ("Standard
Developed Software") or (ii) subject to such restrictions as to use,
availability of support or maintenance, or limitation of warranty as may be
agreed by the parties and set forth in a Statement of Work or this
Agreement ("Custom Developed Software"). Each Statement of Work for
Developed Software shall designate such software as Standard Developed
Software or Custom Developed Software, provided however, if not
specifically designated Standard Developed Software, such software shall be
deemed Custom Developed Software.
2.16.3.2In the absence of express agreement to the contrary, if no
"Functionality Criteria" are specified in the Statement of Work for such
Custom Developed Software, Custom Developed Software shall have no
warranty as to functionality as provided in Section 3.1.1 of this
Agreement, nor will any other express or implied software warranty
apply. If "Functionality Criteria" are specified in the Statement of
Work governing Custom Developed Software, the functionality warranty as
to such software shall be solely as provided in Section 3.1.1.1 of this
Agreement. Upon Delivery, Custom Developed Software shall be subject to
all limitations concerning use, confidentiality, transfer and ownership
which apply to Licensed Software, but shall not otherwise be considered
Licensed Software.
2.16.4 "Third Party Software" is computer software used by Customer in
conjunction with Licensed Software, Developed Software, the Equipment,
the RIMSLink Data Center, or any Transaction, which is not owned by RIMS
and which is not Licensed Software or Developed Software.
2.17 "Software Specifications" means the End-user Documentation for any
Software (including that End-user Documentation which shall be supplied
by RIMS at or reasonably promptly after Delivery of Standard Developed
Software) plus any additional specifications contained in a Statement of
Work which are specifically designated as a "Software Specification."
2.17.1 "End-user Documentation" shall be the sole description of the capability
and functionality of the Licensed Software, hardware requirements or
capabilities of the Licensed Software to which such End-user
Documentation pertains, unless otherwise stated in an applicable
Statement of Work.
2.17.2 New Releases. RIMS may alter the then-current Software Specifications
with each new release of Licensed Software. Specifications for any new
release of Licensed Software Delivered to Customer shall become the sole
Software Specifications for the Licensed Software to which they pertain.
2.18 "Transaction" shall mean information processed as a distinct Claim,
inquiry, Repricing request or information request by Customer, or on
Customer's behalf, or on behalf of a customer of Customer as part of
this Agreement.
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2.19 "Warranty Repair" is the remedy for breach of limited warranty with regard
to functionality of Licensed Software as specifically provided in Section
3.1.1, or as to Custom Developed Software as specifically provided in
Section 3.1.1.1.
Section 3. Limited Warranties; Disclaimer.
Except as expressly changed or supplemented by a Statement of Work, this
Section 3 contains all warranties for any product or Service provided by
RIMS or third parties to or for the benefit of Customer or any of its
customers, clients or other persons or entities.
3.1 Software and Services Warranty.
3.1.1Warranty of Software Functionality. RIMS warrants that Licensed Software
shall substantially conform to that Licensed Software's Software
Specifications at the time of its Delivery to Customer. RIMS shall use
commercially reasonable efforts to correct Licensed Software so that it
substantially conforms to its Software Specifications.
3.1.1.1Custom Developed Software. RIMS warrants that Custom Developed Software
for which "Functionality Criteria" are provided shall substantially conform
to such Functionality Criteria at the time of Delivery to Customer. RIMS
shall provide commercially reasonable efforts to correct Custom Developed
Software so that it substantially conforms to the Functionality Criteria
for such software. Absent notice from Customer to RIMS within thirty (30)
days of Delivery of Custom Developed Software specifically identifying any
aspect in which Custom Developed Software fails to substantially conform to
the applicable Functionality Criteria, ("Functionality Deficiency Notice")
it will be conclusively presumed that the Custom Developed Software
substantially conforms to the Functionality Criteria and no further or
additional warranty shall apply except under Section 3.1.6 as to Services.
In the event of a proper and timely Functionality Deficiency Notice, the
provisions of Sections 4.1.1.1. and 4.1.3 shall provide the sole remedy to
Customer for such breach.
3.1.2New Releases. Any new releases of Licensed Software Delivered to Customer
by RIMS will be covered by warranty as Licensed Software as of the date of
Delivery, whereupon no prior release levels shall be warranted. Such new
releases may have Software Specifications which differ from Software
Specifications of prior releases of such Licensed Software.
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3.1.2.1 If RIMS removes Essential Functionality contained within the original
Software Specifications of the Licensed Software within sixty (60) months
of the Delivery of the Licensed Software which contains such functionality,
provided Customer is then a party to a Software Support and Maintenance
Statement of Work for the Licensed Software, (a) RIMS, upon request of
Customer, will use its commercially reasonable efforts to devise a
correction or modification to enable Customer to perform the removed
functionality using the existing release of the Licensed Software, which
correction or modification will be performed by RIMS at its expense, or, in
the event RIMS is unable to devise such correction, (b) Customer shall
receive Support Services for its then-current release of the Licensed
Software at no additional charge, notwithstanding any other obligation
which would otherwise exist for Customer to use a new release of the
Licensed Software for the remainder of any existing term of the license for
such Licensed Software.
3.1.2.2 During the time Customer is entitled to continue use of an older version
of the Licensed Software pursuant to this subsection, the Software
Specifications for the release used by Customer shall remain unchanged.
Upon Customer requesting or using a new release of the Licensed Software,
and upon Delivery of same by RIMS, the Software Specifications of the
Licensed Software shall be amended to conform with the Software
Specifications of the new release.
3.1.3Silence. Omissions from Software Specifications, descriptions of
functionality for Licensed Software not included in Software Specifications
or Functionality Criteria are not intended as (and should not be construed
by any court or party as) a representation, statement or warranty
concerning the Licensed Software or Developed Software or its capability,
capacity, performance, functionality, or hardware requirements. RIMS'
obligation to meet descriptions of functionality or Functionality Criteria
is met if RIMS produces computer code achieving such functionality in any
manner.
3.1.4Modifications and Enhancements. With each new release of the Licensed
Software, the functionality of the Licensed Software may be enhanced or
changed in a manner that may modify its conformity to the Software
Specifications in effect at the time of such release. RIMS product
management personnel will include Enhancements using their discretion, and
the Software Specifications shall be deemed modified at the time of
Delivery of each such new release to include such Enhancements; provided,
however, Customer's obligation to begin use of a new release is subject to
the limitations provided in Section 3.1.2 of this Agreement.
3.1.5Authority to License Software. RIMS warrants that it has the legal right
to license Licensed Software as provided in a Statement of Work.
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3.1.6Services Warranty. RIMS warrants that the Services provided pursuant to
any Statement of Work shall be provided in a commercially reasonable
manner. Warranty as to Transaction Services is subject to the provisions of
Section 3.1.7 of this Agreement.
3.1.7Transaction Service Limited Warranty. RIMS warrants that Transaction
Services provided by RIMS to Customer under a Statement of Work (but not
those provided by third parties) will be provided in a commercially
reasonable manner.
3.1.7.1 Transaction Services Assistance. Notwithstanding that RIMS provides no
warranty with regard to Transaction Services which are provided by third
party vendors, RIMS will (i) provide Customer with a copy or description of
the warranty and support services agreements of the third party vendor, and
(ii) pass on to Customer those warranty rights regarding third party
Transaction services which are transferable and (iii) either (a) assist
Customer in a commercially reasonable manner to make claims against such
third parties for warranty breaches or service with regard to Transaction
Services provided by or through third party vendors, or (b) prosecute
claims on Customer's behalf at Customer's direction and expense with regard
to Transaction Services provided by or through third party vendors.
3.1.8Data Center Limited Warranty. RIMS warrants that it will operate the
RIMSLink Data Center in a commercially reasonable manner.
3.1.9Support Services Limited Warranty. RIMS warrants that the Support Services
provided under any Statement of Work shall be provided in a commercially
reasonable manner.
3.2 Disclaimer of Warranties. Other than as expressly set out in Section 3.1 or
in an applicable Statement of Work, RIMS disclaims all express or implied
warranties, Representations, and conditions of any kind or nature as to any
product or service of any type including, by way of example and not
limitation, warranties of merchantability or fitness for a particular
purpose, warranties of results, performance, uptime, accuracy of
information, system integration, scalability, performance with any
particular computer hardware or system of computer hardware, volume
performance as it relates to claims, data or "covered lives" processed,
speed, response time, software or data "load-time," commercial
practicability, that the products or services will be "error" or "bug"
free, or concerning Transaction Services provided by third parties. RIMS
expressly disclaims any warranty or representation concerning patent,
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copyright or other violation of intellectual property rights by Third Party
Software, Equipment or means or medium other than Licensed Software.
Section 4. Remedies and Limited Liability.
4.1 Licensed Software Remedy. In the event of any breach of the warranty for
Licensed Software contained in Section 3.1.1 of the Agreement or Custom
Developed Software contained in Section 3.1.1.1 of the Agreement, subject
to Sections 4.1.1.1 or 4.1.2 below, RIMS' sole responsibility shall be
Warranty Repair.
4.1.1Failure of Warranty Repair. Subject to Section 4.1.2, upon RIMS' failure
to correct a breach of the Warranty contained in Section 3.1.1 by providing
Warranty Repair, RIMS will refund prepaid unearned License Fees paid by
Customer prorated for that portion of the Licensed Software which breaches
the warranty ("Uncorrected Portion"). RIMS shall have no liability for
Warranty Repair or refund after sixty six (66) months from Delivery of the
Licensed Software.
4.1.1.1 RIMS shall have a period of thirty (30) days to correct any deficiency
(which may include a failure to Deliver) identified in a Functionality
Deficiency Notice (as defined in Section 3.1.1.1 above) after receipt of
the Functionality Deficiency Notice ("Correction Period"). Functionality
Deficiency Notice shall be provided to RIMS by Customer within thirty (30)
days of Delivery. Following the Correction Period, Customer shall have
fifteen (15) days within which to notify RIMS in writing specifying any way
that the Custom Developed Software continues to fail to substantially meet
the Functionality Criteria, whereupon RIMS shall have a second Correction
Period. After the second Correction Period, Customer shall have fifteen
(15) days within which to notify RIMS in writing identifying a specific
manner in which the Custom Developed Software continues to fail to
substantially meet the Functionality Criteria, whereupon RIMS shall have a
third Correction Period. After the third Correction Period, Customer shall
have fifteen (15) days within which to notify RIMS in writing, and (i)
identifying a specific manner in which the Custom Developed Software
continues to fail to substantially meet the Functionality Criteria, and
(ii) to reject the Custom Developed Software. If the Custom Developed
Software is properly rejected, RIMS shall be in breach of the Statement of
Work, and Customer shall have the remedies provided in Section 4.1.3 for
failure of Warranty Repair. If RIMS Delivers Custom Developed Software
meeting the Functionality Criteria, it has met its obligation under the
Statement of Work.
4.1.2If RIMS is unable to complete a Warranty Repair for a warranty breach of
the Licensed Software which renders it unable to substantially perform an
Essential Functionality (e.g. inability of the NetworX System Licensed
Software to perform Repricing) within ninety (90) days of receiving notice
of such warranty breach, regardless of whether such period is otherwise a
commercially reasonable time for Warranty Repair to occur, Customer shall
be entitled to terminate the Statement of Work creating the License for
such Licensed Software, whereupon the license for any Licensed Software
will terminate. Such termination must occur by written notice received by
RIMS after expiration of such ninety (90) day period and prior to
completion of Warranty Repair, and shall be in lieu of any other remedy or
damages.
4.1.3In the event RIMS is unable to complete Warranty Repair as to Custom
Developed Software as provided in Section 4.1.1.1 of this Agreement, RIMS
will refund to Customer the Service Fees paid by Customer for such Custom
Developed Software prorated for the uncorrected portion of such Software.
4.2 Infringement Remedy. In the event of any actual or threatened Infringement
Claim, RIMS shall defend or settle any proceeding brought against Customer
to the extent that it is based on a claim that Licensed Software maintained
to its Software Specifications and being within the scope of the License
under this Agreement constitutes an infringement of a U.S. copyright or an
existing U.S. patent ("Infringement Claim") subject to the following
conditions:
A. RIMS is notified of the Infringement Claim promptly in writing; and
B. RIMS is given complete authority and information required for the
defense of the Infringement Claim.
4.2.1Damages. RIMS shall pay all damages and costs awarded because of the
Infringement Claim against Customer, but RIMS shall not be responsible for
any cost, expense or compromise incurred or made by Customer without RIMS'
prior written consent.
4.2.2Cure of Potential Infringement Claim. In the event any Licensed Software
furnished hereunder is in RIMS' opinion likely to, or does become the
subject of an Infringement Claim, RIMS may, at its option and expense, (i)
procure for Customer the right to continue using the Licensed Software,
(ii) modify the Licensed Software to make it non-infringing, or (iii)
substitute other Software of similar capability.
4.2.3 Termination; Continued Use.
A. If none of the alternatives set forth in Section 4.2.2 is reasonably
available to RIMS in its opinion, RIMS may terminate the license of
such Licensed Software upon seven (7) days written notice to Customer
without liability or obligation to Customer except as provided in
subsection 4.2.5 below.
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B. If, however, the Licensed Software is not the subject of an actual
Infringement Claim, Customer may elect to continue using such Licensed
Software until an injunction issues or the Infringement Claim has been
withdrawn, and Customer agrees to defend any action involving such
claim when an Infringement Claim is made, and to indemnify RIMS with
respect to all costs, damages and attorneys' fees attributable to use
of the Licensed Software by Customer after notice by RIMS. RIMS may
participate at its expense in the defense of any such action if such
claim is against RIMS.
4.2.4Liability for Unaltered Licensed Software Only. RIMS shall have no
liability for any Infringement Claim based upon the use of other than a
current, unaltered release of the Licensed Software available from RIMS
(except as permitted by Section 3.1.2.1 of this Agreement), if such
infringement would have been avoided by the use of (i) such current
unaltered release, or (ii) a combination of the Licensed Software with
non-RIMS programs or (iii) combination of the unaltered Licensed Software
with any other programs or data; provided, however, RIMS may require
Customer to cease use of a version of Licensed Software otherwise permitted
under Section 3.1.2.1 pursuant to Section 4.2.2 of this Agreement.
4.2.5Infringement Limitation of Liability. Following execution of any Statement
of Work which licenses Licensed Software which becomes subject to an
Infringement Claim, in the event RIMS is unable to correct any Infringement
Claim as provided in Section 4.2 above, subject to Section 4.2 and 4.2.1,
RIMS' sole liability to Customer for any Infringement Claim made shall be
to refund any prepaid unearned License Fee paid for such Licensed Software,
on a pro rata basis. Such liability shall be pro-rated, based on the
License Fee paid for the infringing portion of the Licensed Software. After
the sixty-six (66) months following Delivery, RIMS shall have no liability
to Customer for any Infringement of a copyright or patent as provided
herein or otherwise.
4.2.6Entire Liability and Limitation for Infringement Claims. Section 4.2
states the entire remedy, responsibility and liability of RIMS with respect
to Infringement of any copyright or patent by Licensed Software, any part
of the Licensed Software, the RIMS Equipment, or any part of the RIMS
Equipment, and is in lieu of all remedies, expressed or implied, in regard
thereto. The Section 3.1.1 warranty does not apply to other than Licensed
Software used on RIMS Equipment or permissibly used on Customer Equipment.
RIMS expressly disclaims any warranty or representation concerning patent,
copyright or other violation of intellectual property rights by Third Party
Software, equipment or means or medium other than Licensed Software.
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4.3 Services Remedy. Subject to contrary provision in a Statement of Work, in
the event any type of Services are provided which breach the Warranty of
Section 3.1.6, 3.1.7 or 3.1.9, RIMS shall use commercially reasonable
efforts to cure the breach during the Cure Period. Upon RIMS' failure to
cure the breach or to use commercially reasonable efforts to cure within
the Cure Period, Customer's sole remedy shall be to terminate the Statement
of Work applicable to the Services not provided in compliance with this
Warranty and/or damages as permitted in Section 4.3.1.
4.3.1Damage Limit; Services. RIMS' total liability for any damages related to
non-conforming Services shall in no event exceed the Service Fees paid by
Customer prior to termination of the Statement of Work AND after notice of
breach to RIMS under the specific Statement of Work pertaining to the
non-conforming services which give rise to such damages.
4.4 Data Center Services Remedy. Any remedy, including damages, for a breach of
the warranty or failure to provide any Data Center Service, whether
described in Section 3.1.8 or otherwise, shall be solely as provided in a
Statement of Work concerning such Data Center Services.
4.5 Overall General Limitation of Liability.
4.5.1Amount of Damage Limit. In no event and under no circumstances shall RIMS'
liability related to any product, service obligation or event contemplated
under this Agreement, whether pursuant to contract, tort, statute, or in
any way related to Software Services, Transaction Services, Support
Services, or licenses not provided in conformity with this Agreement or
otherwise concerning this Agreement, exceed the License or Service Fees
actually paid by Customer for such non-conforming Licensed Software, or
Service, and with respect to liability for breaches of this Agreement
(including Statements of Work) not relating to any particular products,
Licensed Software, or service shall in no event exceed the License Fees
(EXCLUDING LICENSE FEES FOR THIRD PARTY SOFTWARE) paid under this Agreement
during the prior twelve (12) month period.
4.5.2Type of Damages Excluded. In no event shall RIMS be liable under this
Agreement or any Statement of Work for any indirect, incidental,
consequential, special or punitive damages of any nature whatsoever,
including by way of example and not limitation, damages arising from lost
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data, lost profits, down-time or delay, notwithstanding that RIMS has been
advised of the possibility of such damages.
4.5.3Entire Remedy and Limitation of Liability. RIMS' entire liability and
Customer's sole remedy whether pursuant to contract, tort, statute or in
any way related to or otherwise concerning the Licensed Software is limited
as set forth in this Section 4.
4.6 Termination. In the event of any refund of License Fees as a remedy
provided hereunder, the license for such Licensed Software shall
immediately terminate.
Section 5. Ownership.
5.1 RIMS Ownership. RIMS shall own all rights to Licensed Software, Developed
Software, Enhancements, Customer Enhancements or Derivative Products.
Customer shall have no ownership rights or right to transfer Licensed
Software, Developed Software, Enhancements, Customer Enhancements or
Derivative Products except as specified in a Statement of Work.
5.2 Customer Data Ownership. Customer's data and data of Customer's customers
or clients or patients of Customer's customers or clients which is used on
or with any Licensed Software shall not thereby become Licensed Software or
a Customer Enhancement, nor shall RIMS have any property rights to such
data.
5.3 Customer Enhancements. Customer Enhancements shall be restricted as
follows:
5.3.1No Relicense. Neither RIMS nor Customer shall use or relicense Customer
Enhancements except in conjunction with use of the Licensed Software or
other Licensed Software pursuant to the Master Agreement or as provided in
a Statement of Work.
5.3.2Independent Developments. The restrictions of Section 5.3.1 above do not
limit RIMS from independently developing or re-creating the functionality
of any Customer Enhancement for another Customer or for RIMS' general
development and RIMS shall have the sole right to license, sell, or
otherwise distribute or transfer any rights to such software without
further consent or obligation to Customer for such software.
5.3.3No Customer Enhancements will be developed by Customer or RIMS absent
express agreement in writing as to the nature, scope and price of any such
Customer Enhancements.
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5.4 Customer Screen Identification. Unless Customer and RIMS agree otherwise in
any Statement of Work governing license of any Licensed Software, Customer
may display to its customers and other authorized users of such Licensed
Software an identifying phrase or logo which identifies Customer, its
products, services and programs to such user of the Licensed Software
("Customer Screen Logo"). If a Customer Screen Logo is used with a
particular Licensed Software, the following restrictions shall apply:
5.4.1RIMS Approval. Customer shall obtain RIMS' prior approval of the form and
mechanism for display of any Customer Screen Logo, which approval shall not
be unreasonably withheld.
5.4.2Approval Criteria/Conditions. A Customer Screen Logo or separate following
screen for the Licensed Software shall (i) fairly represent that RIMS is
the owner or authorized licensee of the Licensed Software and related
intellectual property to which the Customer Screen Logo is attached, (ii)
shall not represent or imply that RIMS and ATR are other than vendor and
vendee with regard to the products and services being used, and (iii) shall
not in any way infringe upon, detract from or injure any patents,
copyrights, trademarks, trade names, trade dress, or other intellectual
property rights to any product or service being used. The requirements of
this Section 5.4.2 shall appear not later than the third (3rd) "screen" of
the Customer Screen Logo for the Licensed Software in a specific location
determined by Customer.
5.4.3Cost. The Customer Screen Logo shall be incorporated in Licensed Software
only by RIMS personnel, at Customer's expense, at RIMS then-current rates
for such work, and subject to schedule availability of RIMS personnel.
Customer shall additionally pay any costs for support of the Customer
Screen Logo, including costs of incorporating the Customer Screen Logo into
any new release of Licensed Software.
5.4.4Warranty Exclusion. There shall be no warranty of any type or description,
either express or implied, with regard to any Customer Screen Logo or use
thereof. In the event of Customer dissatisfaction with a Customer Screen
Logo for any reason, RIMS shall use commercially reasonable efforts to
modify or repair the Customer Screen Logo at Customer's expense, at RIMS'
then-current rates for such work. If RIMS reasonably determines that the
Customer Screen Logo cannot be made to work to Customer's reasonable
satisfaction and otherwise in compliance with this Agreement, Customer's
sole recourse shall be to have RIMS remove the Customer Screen Logo from
the Licensed
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Software and to restore the Licensed Software to the form in which it
existed prior to installation of the Customer Screen Logo, such removal at
Customer's expense.
5.4.5Ownership. Nothing in this Section 5.4 shall give Customer any intellectual
property rights or other rights in or to any Licensed Software or portion
thereof, nor shall Customer receive any right to use a copyright, patent,
trademark, trade name, service xxxx, service name or trade dress belonging
to RIMS, except as expressly provided herein.
Section 6. Confidentiality.
6.1 Confidentiality.
6.1.1Definition. As used herein, "Confidential Information" shall mean
Information, material and/or documents which belong to either party
("Owning Party"), which are disclosed to the other party in written,
tangible or oral form, and which are not generally known in the relevant
industry or industry segment.
6.1.2Oral. Information disclosed orally shall only be Confidential Information
if either the person making the disclosure on behalf of the Owning Party or
someone else affiliated with the Owning Party orally notifies the other
party that the orally disclosed information is Confidential Information
(the Owning Party may give this notice by the means for giving notice if it
wishes) at the time of the disclosure or within a reasonable period of time
thereafter.
6.1.3Types of Information. Confidential Information includes any information,
material and/or documents that afford the Owning Party a commercial or
business advantage over others who do not have the information, materials,
and/or documents; and information, materials and/or documents that the
Owning Party considers confidential, proprietary, or a "trade secret" as
those terms are defined by law and which are designated as "Confidential"
at the time of disclosure. The Owning Party's Confidential Information may
include, without limitation, financial information, business plans,
marketing plans, source code, system documentation, user manuals, training
instructions, data structures, and modifications of computer programs,
system design, and architecture and other technical developments, drawings,
designs, processes, computer software, methods, formulae, techniques,
know-how, discoveries, concepts, ideas, whether or not they can be
patented, copyrighted or registered as a trademark.
A. RIMS' Confidential Information. RIMS' Confidential Information
includes (without limitation) Licensed Software including Derivative
Products or Enhancements, Source Code and Developed Software, and all
End-User Documentation or other Software Specifications pertaining to
any Software owned or licensed by RIMS.
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B. Customer's Confidential Information. Customer's Confidential
Information includes pricing terms, level of pricing, pricing
discount, or other pricing adjustment planned, proposed or used by
Customer in negotiating with or contracting with health care
providers, and marketing plans, strategic plans, business plans and
processes including contracts with Providers and Payers, and
information regarding clients or customers of Customer and patients of
customers or clients of Customer.
6.1.4Exclusions. Confidential Information shall not include any of the foregoing
information that (i) is or becomes publicly known without breach of any
confidentiality obligation, (ii) is disclosed to the non-Owning Party or
its employees through a third party without breach of confidentiality
obligation on the part of the third party, or (iii) that was known to the
other party prior to execution of this Agreement and was not subject to any
confidentiality obligation (collectively, the information described in this
subsection is "Public Information").
6.2 Maintaining Confidentiality.
6.2.1No Disclosure. Except as permitted under this Agreement, each party hereby
agrees that neither party nor its employees, subcontractors, agents or
assigns shall use or disclose, for themselves or others, any Confidential
Information of the other party.
6.2.2Reasonable Controls. Customer and RIMS (on behalf of themselves and all of
their employees, subcontractors, agents and anyone else to whom disclosure
is permitted) each agree to use reasonable controls to protect the
confidential nature of all Confidential Information each receives from the
other hereunder, and to protect such Confidential Information in a manner
consistent with the manner in which each protects its own similar
confidential business information.
6.2.3Inform Employees. Customer and RIMS shall inform every such third party
and employee of the confidential nature of the Confidential Information
each receives.
6.3 Return of Materials, Termination Rights.
6.3.1Property Rights. Except as provided in this Agreement, each party
understands and agrees that all embodiments of Confidential Information
received from the Owning Party pursuant to this Agreement are the property
of the Owning Party.
6.3.2Return by Employees. Upon termination of this Agreement for whatever
reason, the Non-Owning Party shall require its employees and/or
contractors, as applicable, to deliver promptly to the Owning Party all
such materials, including all copies thereof, in the employees' possession
or under the employees' control.
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6.3.3License Termination. If this Agreement is terminated for any reason
(including termination resulting from Customer seeking a refund of all or
any portion of the License Fee), the license for Licensed Software provided
hereunder will terminate and Customer shall return all of RIMS'
Confidential Information and all related documentation and materials within
thirty (30) days of notice of such termination, or destroy it and provide
RIMS with certification of such destruction.
6.4 Injunctive Relief. Each party agrees that a material violation of this
Section 6 would cause the Owning Party irreparable injury for which it
would have no adequate remedy at law and, in the event of any such
violation, the non-offending party shall be entitled to a temporary
restraining order, a preliminary injunction and any other injunctive relief
in addition to any other remedies to which the non-offending party may be
entitled at law or in equity.
6.5 Required Disclosure. Nothing in this Agreement shall be deemed to prevent a
party receiving Confidential Information from disclosing it if that party
is required to do so by a valid subpoena or other legal process, or the
authority of any state or Federal administrative agency or governmental
body. Nonetheless, the receiving party shall immediately notify the
disclosing party of the request or requirement so that the disclosing party
may have the opportunity to challenge the requirement that disclosure be
made.
6.6 Protection of Patient Information.
6.6.1Patient Information. In addition to the obligations of RIMS in Section
6.1, the parties acknowledge that Customer's Confidential Information
includes information in any format about patients of clients and customers
of Customer, including, without limitation, from medical records,
information received from facilities and professionals that provide mental
and physical health services, information pertaining to the identity,
diagnosis, prognosis or treatment of patients, and any information relating
to the character, habits, avocations, finances, occupation, general
reputation, credit, health, or any other personal characteristic of
patients.
6.6.2Access and Reports. RIMS shall report to Customer any use or disclosure of
Confidential Information that may violate the terms of this Agreement. RIMS
shall limit access to Confidential Information within RIMS' organization to
personnel who require access to the information in order to perform RIMS'
obligations under this Agreement who have expressly agreed to comply with
the terms of this Agreement and of all applicable privacy and
confidentiality laws regarding such Confidential Information. Immediately
upon becoming aware of any such use or disclosure, RIMS shall only access
such Confidential Information as is necessary to perform RIMS' obligations
under this Agreement.
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6.6.3Software Compliance with Confidentiality Law. If Customer or RIMS
determine that Licensed Software, the RIMSLink Data Center, Repricing or
the Transaction Services cannot be operated or provided in conformance with
then-current Applicable Federal Law when used in compliance with both RIMS
then-current instructions and the Software Specifications (such
determination is a "Non-compliance Determination"), then the identifying
party shall notify the other party of such Non-compliance Determination
within sixty (60) days thereof.
6.6.3.1 Provided that Customer at the time of the Non-compliance Determination
is currently purchasing Support and Maintenance Services from RIMS for the
Licensed Software under a Statement of Work, upon receipt of the said
notification, as applicable, RIMS shall modify this Agreement and any
Statement of Work and the operation of the RIMSLink Data Center, the
Repricing or the Transaction Services to conform to the then current
Applicable Federal Law and RIMS shall do one of the following:
(a) Modify the Licensed Software to conform to the then current Applicable
Federal Law;
(b) Modify Third Party Software or Services to conform with the then
current Applicable Federal Law; or
(c) Show Customer how to operate the Licensed Software in conformance with
the then current Applicable Federal Law.
6.6.3.2 RIMS shall not be obligated under the Agreement to maintain the Licensed
Software in compliance with any current or future state laws except as
provided in a Statement of Work.
6.6.4Procedures. RIMS shall adopt and enforce confidentiality procedures and
policies designed to ensure that such Confidential Information is kept
confidential as required by law and by the terms of this Agreement,
including in its operation of the RIMSLink Data Center, and in providing
Transaction Services and Repricing.
6.7 Term. The provisions of this Section 6 shall survive the term or
termination of this Agreement for any reason.
Section 7. Developed Software.
7.1 Statement of Work for Developed Software. In the event any Statement of
Work Between the Parties contemplates Delivery of Developed Software, the
following provisions and requirements will be deemed included unless the
Statement of Work provides otherwise:
7.1.1General Requirements. The Statement of Work will include (a) a general
description of the project for the Developed Software, (b) price and fees,
if any, and (c) a final Delivery Date by which all Developed Software under
such Statement of Work must be complete and Delivered ("Final Deadline").
Section 8. Audit Rights.
8.1 Audit Rights. Each party shall have the right upon reasonable prior written
notice to access Software and Equipment and to audit the business records
of the other party directly related to the other party's obligations under
this Master Agreement or any Statement of Work in order to confirm the
other party's compliance with its obligations under this Agreement at such
time and place as the parties agree but not more than once every six (6)
months.
8.2 Procedure.
8.2.1Reasonable Times. Unless otherwise agreed in writing, the auditing party
will conduct such audit during normal business hours and shall make all
reasonable efforts not to disrupt normal business operations.
8.2.2Cooperation. The Audited Party shall provide full cooperation with all
such audits and in no event, except in the event the audited party is
legally obligated to do so, shall it withhold any such business records
from such an audit.
8.2.3Availability. The Audited Party shall make available to the Auditing
Party's auditor (i) the Software (and all related passwords), (ii) the
Equipment (and all operating system passwords), (iii) any related business
and computer hardware and software records and documents reasonably related
to the confirmation of the accuracy of payments made or owed by the Audited
Party to the Auditing Party, and the Audited Party's compliance with its
obligations hereunder.
8.2.4Representative. At the Audited Party's option, one or more of its
representatives may be present throughout the audit to preserve and protect
the integrity of the Audited Party's computer system.
8.3 Results. If there is a discrepancy between the reported results and the
audit results in an amount equal to or exceeding five percent (5%), the
non-auditing party shall pay, in addition to payment or refund for the
discrepancy, fees and expenses for the audit and related expenses incurred
by the auditing party in connection with the audit, and the auditing party
shall be entitled to audit monthly in whole or on a limited basis, for the
balance of the term of the Agreement.
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Section 9. Licensed Software Escrow.
9.1 Source Code Escrow. RIMS may agree in a Statement of Work to provide
Customer with coverage under a Source Code Escrow Agreement ("Escrow
Agreement") in a form substantially as set forth in Exhibit 9.
9.2 Use of Source Code. Use of any source code software released from the said
Source Code Escrow Agreement shall be limited as provided in the Escrow
Agreement and further limited to the same extent as the use of the Licensed
Software is limited under this Agreement.
9.3 Amendments to Escrow. RIMS may amend the Escrow Agreement to substitute
another institutional Escrow Agent, or to modify the Escrow Agreement as
required by the Escrow Agent or otherwise. Customer will not refuse
approval of any changes to the Escrow Agreement which do not materially
adversely affect its rights under said Agreement. New or modified Escrow
Agreements will be added as exhibits to the Master Agreement.
Section 10. Taxes.
Unless exempted, evidence of which must be provided to RIMS, Customer shall
be obligated to pay all federal, state, local, and other taxes or other
charges (other than income taxes payable by RIMS) applicable to the
Services Transaction Services, Equipment, Support or Software provided
hereunder, as well as any shipping and handling fees. (If no taxes are
assessed, Customer is solely responsible to self-assess and pay any tax
that may be due as a result of the Services provided hereunder, and shall
indemnify and hold RIMS harmless with respect to such taxes.)
Section 11. Pass-through Charges.
11.1 Government Tariffs and Similar Charges. RIMS shall be entitled at any time
without prior notice to pass through any increase in communications tariffs
related to the Services provided hereunder, including, without limitation,
government imposed access fees, fees resulting from changes in regulation
or statute, or other similar fees assessed against RIMS and outside its
control. Upon written request, RIMS shall make available to Customer
documentation relating to these pass through fees in connection with the
said Services.
11.2 Third Party Charges. If a third party charges an access fee to RIMS for any
Transaction Services, RIMS reserves the right to request at any time a
price increase for such Transactions and, if Customer fails to accept such
price increase, RIMS shall have the right to terminate the use of the
Services provided hereunder for such Transactions on thirty (30) days prior
notice.
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Section 12. Dispute Escalation; Mediation.
12.1 Dispute Resolution. If any dispute, controversy or claim (a "Dispute")
occurs between the parties, they shall attempt in good faith to resolve the
Dispute by mediation.
12.1.1 Mediator. In mediation, the parties will attempt to choose a mutually
acceptable mediator to conduct the mediation.
12.1.2 Party Representative. Whether or not they choose a mediator, an executive
management representative of each party with full authority to reach a
settlement shall meet together, in person if the parties can mutually agree
to a site for such meeting or otherwise by teleconference, at least once
for the purpose of attempting to resolve the dispute.
12.1.3 If such mediation fails and at least one such meeting has occurred, only
then may a party institute litigation.
12.2 A party shall not be required to attempt mediation or meet in person as a
precondition to litigation if that party files suit solely to seek
equitable relief including a request for a temporary injunction or
restraining order.
Section 13. Term and Termination.
13.1 Term. This Agreement shall be ongoing and in effect until occurrence of one
or more of the following events:
13.1.1 No Statements of Work. All Statements of Work have been terminated or
expired for two (2) years, unless extended by express written agreement of
the parties;
13.1.2 Agreement. Mutual Agreement of Customer and RIMS to terminate this
Agreement;
13.1.3 Termination Event. Occurrence of an event permitting termination of this
Agreement as provided in Section 13.3 or 13.4, following failure to cure as
provided in Section 13.2 below.
13.2 Mutual Right to Cure. In the event of a material breach of this Agreement
by either party, except where a Cure Period is otherwise expressly provided
in this Agreement or the Statements of Work, the other party shall provide
the breaching party thirty (30) days prior written notice of breach. During
the thirty (30) day period following Breach Notice ("Breach Notice"), the
breaching party shall have the right to cure the breach without being
subject to damages. This Section does not apply to requests for temporary
or preliminary equitable relief with fifteen (15) days written notice to
the other party.
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13.3 RIMS Termination. RIMS shall have right to terminate this Agreement as
follows:
A. Upon material breach of any license for Software by Customer, or
B. Failure by Customer to pay Fees, upon thirty (30) days' written
notice.
13.4 Mutual Right to Terminate. Either party may terminate the Agreement
immediately in the event the other party terminates or suspends business.
13.5 Customer Termination. Customer shall have the right to terminate this
Agreement as may be provided in a Statement of Work.
Section 14. Indemnities and Liability.
14.1.Indemnification of RIMS by Customer. To the extent allowed by law,
Customer shall indemnify and hold harmless RIMS, its agents, employees,
successors and assigns from and against any and all liabilities, losses,
damages, suits, costs, expenses, charges, actions, claims and demands,
including attorneys fees, whether in tort or in contract, of whatsoever
kind and nature imposed on, incurred by, or asserted against RIMS, its
agents, employees, successors and assigns by any third party which arise
from or are in any way connected with unauthorized use of any Software or
Equipment by Customer, or other claims by third parties (including without
limitation clients or customers of Customer) arising from or related to
Customer's use of RIMS' products or services, or any act or omission by
Customer.
14.2 Indemnification of Customer by RIMS. To the extent allowed by law, RIMS
shall indemnify and hold harmless Customer, its agents, employees,
successors and assigns from and against any and all liabilities, losses,
damages, suits, costs, expenses, charges, actions, claims and demands,
including attorney fees whether in tort or in contract, of whatsoever kind
and nature imposed on, incurred by, or asserted against Customer, its
agents, employees, successors and assigns by any third party which arise
from or are in any way connected with claims by third parties (including
without limitation clients or customers of Customer or patients of clients
or customers of Customer) arising from or related to any act or omission by
RIMS in fulfilling its obligations under Section 6.6. Provided, however,
any obligation to indemnify under this Section 14.2 is subject to the
limitations of Section 4.5.
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Section 15. Press Releases; Public Announcements.
15.1 Neither party to this Master Agreement shall issue any press release or
public announcement of any kind concerning any of the transactions
contemplated by the Agreement without the prior written consent of the
other party. The text and time of such release or announcement shall be
mutually approved by Customer and RIMS. This Section 15.1 shall not be
construed to limit or prohibit RIMS or ATR from identifying ATR as a
customer or purchaser of specified products or services from RIMS,
without prior approval or agreement, in a public statement or to other
customers or prospective customers.
Section 16. Miscellaneous.
16.1 Notices. All notices provided for in this Agreement, to be effective,
must be made as follows: the notice must be sent by certified mail,
return receipt requested, by way of a major next-day delivery service
with signed receipt, or by in-hand personal delivery, separately to the
following addressees at their then current addresses:
16.1.1 If to RIMS:
Chief Executive Officer
Resource Information Management Systems, Inc.
And
Legal Department
Resource Information Management Systems, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx, Xxxxxx & Associates, Ltd.
000X Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
16.1.2 If to Customer:
Xxxxxxx X. XxXxxxxxx, Chief Executive Officer
Alternative Technology Resources, Inc.
000 X Xxxxxx
Xxxxxxxxxx, XX 00000
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With a copy to:
Xxxxxxx Xxxxxx
Relationship Manager
Alternative Technology Resources, Inc.
000 X Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
16.1.3 Any party may change its address or addresses (or those of its agents)
by giving written notice to the other party of such change or changes.
16.1.4 Each notice shall be deemed effective as of the date it is officially
recorded as delivered or refused by return receipt or the equivalent.
16.1.5 "Notice", "notice," "notify" or "notification" as used in this Agreement
or any Statement of Work shall refer to notice as provided in this
Section 16.1.
16.2 Export. The Licensed Software shall not be shipped out of the United
States nor used by Customer out of the United States.
16.3 Employee Solicitation. During the term of this License, and for a period
of two (2) years thereafter, neither party shall directly or indirectly
solicit, entice, offer employment to, or hire any employee of the other
to perform services for such party or to perform services for any other
person, sole proprietorship, partnership, corporation or other entity.
16.4 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors
and assigns of the parties, provided, however, Customer may not assign,
sublicense or transfer any of its rights or duties under this Agreement
without the express prior written consent of RIMS executed by an
authorized officer of RIMS.
16.4.1 Any material change in the ownership or control of Customer or
acquisition of or by Customer and another entity (collectively
"Reorganization") shall not be deemed to constitute an assignment of
this Agreement if Customer survives such Reorganization as an
independent entity, business unit or separate corporation, in which case
this Agreement will continue in effect as to Customer (but not its
subsidiaries, parents or affiliates). After such Reorganization, any use
of the rights (including licenses granted pursuant hereto) may not be
utilized by the acquiring entity outside of the Customer entity or unit,
without the express written consent of RIMS, which consent will not be
unreasonably withheld. It will not be unreasonable for RIMS to withhold
its consent if the acquiring entity is a potential customer of RIMS or
the volume of business to be conducted is significantly higher than that
which is then being conducted by Customer, or if the then current
pricing for the RIMS products and services has materially changed from
that otherwise provided to Customer.
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16.5 Choice of Law; Venue.
16.5.1 This Agreement shall be construed under Illinois law.
16.5.2 Any action to enforce any right under this Agreement or pertaining to
any dispute arising from the transactions contemplated herein shall be
commenced and prosecuted only in the U.S. District Court for the
District or the State Court for the County in which the defendant is
headquartered.
16.5.3 In no event shall the Uniform Computer Information Transactions Act
("UCITA") apply to this Agreement in any manner.
16.6 Severability. In the event that any of the terms of this Agreement is
declared to be invalid or void by any court or tribunal of competent
jurisdiction, such term or terms shall be null and void and shall be
deemed severed from this Agreement and all the remaining terms of this
Agreement shall remain in full force and effect.
16.7 Waiver. The waiver or failure by either party to claim a breach of any
provision of this Agreement shall not be a waiver of a breach of any
other provision or subsequent breach of the same provision.
16.8 Headings. The headings used in this Agreement are for reference purposes
only and shall not be deemed a part of this Agreement.
16.9 Force Majeure. To the extent that either party's performance hereunder
is prevented, hindered or delayed by reason of any cause beyond the
reasonable control of that party, including, by way of example and not
limitation, any labor dispute, act of God or regulation or order of
government authority, the dates or times by which that party is required
to make performance hereunder shall be postponed until the cause for
such delay is abated. Neither party shall be liable for any damages
arising out of any such delay, hindrance or prevention.
16.10 Independent Contractor. The parties each acknowledge that RIMS and
Customer are each independent contractors and not an employee of the
other. Nothing in this Agreement shall be construed to mean that RIMS or
Customer or their employees are employees, agents, associates, joint
venturers, or partners of the other. It is understood that any of RIMS'
employees who perform services for Customer under this Agreement are in
all respects employees of RIMS and not of Customer.
16.11 Authorized Signers. Each person signing this Agreement covenants that he
or she is duly authorized by all necessary and appropriate corporate
action to execute this Agreement.
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16.12 Counterparts. Each party may execute this Agreement in counterpart and,
without limitation, may deliver an executed copy by fax provided that it
then follows that delivery by transmitting a signed original counterpart
to the other party by the means provided for notice.
16.13 Neither Party the Drafter. The parties acknowledge that this is a
negotiated document. No party to this Agreement shall be deemed to be
the drafter of it, and any construction of its terms shall be without
regard to any rules of construction concerning the drafter.
16.14 Non-exclusive. This Agreement is not exclusive to Customer or RIMS
except as specifically provided herein.
16.15 Survival of Termination. Any terms of this Agreement that by their
nature extend beyond the Agreement termination remain in effect until
fulfilled. Such terms include, but are not necessarily limited to
Sections 4.1.1, 4.2.5, 4.5, 5, 6, 10, 14, 16.3, 16.4, and 16.5. Section
6 shall terminate 10 years after termination of the Master Agreement,
except with regard to patient information, which shall be governed by
applicable law.
Alternative Technology Resources, Inc. Resource Information Management
Systems, Inc.
By: ____________________ By: _________________________
Its: ____________________ Its: __________________________
