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EXHIBIT 6.1
BUSINESS PRODUCT ALLIANCE AGREEMENT
This agreement ("Agreement") is made between Achieve Healthcare Information
Systems, an Indiana corporation ("Achieve") and SureQuest Systems, Inc., a
Nevada corporation ("Company"), and is effective as of the date of execution and
delivery by both parties ("Contract Date").
RECITALS
1. Achieve has developed and markets a suite of software products known as
PathLinks (the "Software") for use by the long term care ("LTC") industry,
including skilled nursing facilities, subacute care facilities, assisted living
facilities, and retirement housing facilities ("Facilities"). Achieve is a
leading provider of software products and related services addressing the unique
needs of the LTC industry, and has established customer relationships with LTC
organizations and Facilities throughout the United States which use Achieve's
software products and/or have contracted with Achieve to acquire the right to
use the Software (all such organizations and Facilities having established
customer relationships with Achieve, "Achieve Clients").
2. The Company is a provider of a suite of software products which Achieve
has determined through market research to be useful to meeting the needs of
Achieve Clients and the LTC industry, such product or products being as follows:
dietary software (Windows version), as described in Exhibit A attached hereto
(the "Products").
3. Achieve wishes to incorporate the Products as a part of the "Enterprise
Solution" to be made available to Achieve Clients and the LTC Industry, and for
that purpose wishes to enter into a business alliance with the Company to
cooperate in marketing and the establishment/maintenance of an interface between
the Software and the Products.
4. Each party welcomes the opportunity to cooperate with the other as a
means of expanding sales of its products and services to the LTC industry.
Nothing in this agreement restricts either party from entering into
arrangements with other companies for any purpose.
5. Achieve has established a program designated as the "Certified Achieve
Partner" ("CAP") program to identify and market to Achieve Clients and the LTC
industry the products and services of superlative companies operating on a
cooperative basis with Achieve to provide, in tandem with Achieve's Software,
comprehensive systems for addressing the information technology ("IT") needs of
Achieve Clients and the LTC industry. An essential element of the CAP program is
that Achieve and each CAP, by formally recognizing the other as a provider of
high-quality goods and services which make an excellent "fit" with one another's
products and services, benefit from and add to the other's established
reputation and goodwill. Those CAPs which furnish products as well as services,
as opposed to CAPs which are strictly service providers, are designated within
the CAP program as "Business Product Allies" ("BPAs"). By this agreement, the
Company will participate as a BPA within Achieve's CAP program.
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TERMS
1. Qualification. The Company and Achieve have each had the opportunity to
become familiar with one another's reputation and products so as to be satisfied
that establishing joint marketing efforts is mutually beneficial.
2. Interface Development. Achieve will create, based on information
provided by the Company, an interface between the Products and the Software
(the "Interface") sufficient to enable Facilities using both the Software and
the Products to obtain the maximum feasible benefit from the integration of such
software products. The Company will provide Achieve with information as
necessary for this purpose.
A. The Company will furnish Achieve with updated database
specifications as necessary hereafter to enable Achieve to maintain and modify
the Interface on a continuous basis, as the Software is hereafter modified,
without interruption of the functionality of the Interface.
B. The parties will take all appropriate action to create, test, and
implement the Interface as soon as possible. The parties will jointly solicit
Achieve Clients to act as beta sites for testing the Product and the Interface;
participating facilities will be asked to sign the standard Achieve beta
agreement.
3. Integrated Offering. After the Interface is functional, Achieve will
establish an "icon" on the "tool bar" of the launch pad screen of the Software
for the Products purchased by Achieve clients. Further, Achieve will make
specific reference on the "drop down list" as to the availability of the
Products and will use best efforts as to where to locate the reference. Further,
Achieve will promote the Products to Achieve Clients and the LTC industry as
part of a comprehensive Enterprise Solution anchored by the Software. The
purpose of the Enterprise Solution is to provide synergies between the Software
and BPA products integrated with the Software.
4. Joint Marketing. Achieve may from time to time propose joint marketing
efforts. Development of joint marketing plans and materials (and the sharing of
marketing expenses) will be subject to further agreement. Such marketing plans,
materials, cost and cost sharing to be mutually agreed upon by the Company and
Achieve.
5. Installation, Training And Support Services. The Company will market and
sell its Products to Achieve Clients and, when acceptable to an Achieve Client,
license the particular part of the Products which best meets the needs of that
Client (the portion of the Products selected by an Achieve Client is referred to
hereafter as the "Program"), on either an up front one-time payment basis or
pursuant to monthly payments. After the Program is installed at an Achieve
Client, the Company will provide training and support services as necessary for
the Achieve Client to utilize the Company's Program. Terms and charges for
provision of such services may be established by the Company in its discretion.
Achieve will have no financial involvement or interest in the
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business relationship between the Company and the Facilities using the Products
("End Users"), however, the Company agrees to inform Achieve of the existence of
and terms of its contractual relationships with all Achieve Clients, including
without limitation the provision of a list of the names and addresses of all
Achieve Clients using the Products, to be updated as the Products are installed.
Once a Product is installed at an Achieve Client and the Company has developed a
support and business relationship with that Client, Achieve agrees that it will
not do anything to interfere with that business relationship.
6. Marketing Cooperation.
A. FAQs. To assist Achieve in promoting the Product, the Company will
provide Achieve (as soon as possible after the Contract Date, and on an updated
basis as necessary thereafter to reflect changes which may occur) with a list of
the ten most frequently asked questions on the part of users of the Product,
together with the answers to such questions.
B. Sales Leads. To the extent that current or prospective Achieve
Client express serious interest in the Products, Achieve will notify the Company
of such expressions of interest and the pertinent facts concerning such
prospective End Users as are known to Achieve and deemed likely to be useful to
the Company in pursuing such possible sales. The Company will provide Achieve
with a sales lead form to be used for collecting and providing such information
to the Company. The Company will provide training to the Achieve sales force on
the sales features and benefits of the Products and will provide a sales
commission to any Achieve salesperson who closes or refers a sale with a
prospective client to license to use the Products from the Company. Such
commission will be 10% of the gross price received by the Company for any sale
of the Product closed by Achieve or closed by the Company after a referral by
Achieve; provided, that if the terms of the sale provide for the Company to
receive installment payments, the commission will be paid in nine (9) equal
monthly installments, starting sixty (60) days after the date of sale, the total
of such installments being 10% of the normal price for the Products sold in such
sale if such Products had been sold on a cash-up-front basis for the Company's
normal price for a cash sale as of the date of the sale. All commissions will be
paid to Achieve, accompanied by written identification of the purchaser, the
date and amount of the sale, and the Achieve sales representative involved;
Achieve will be responsible for making payment to the sales representative. If
Company closes a sale without a specific referral or sales assistance from
Achieve, then no sales commission shall be paid to Achieve. Further, if the
Company provides a specific referral or sales assistance that results in closing
an Achieve PathLinks sale, then the Company shall be paid a referral fee or
commission as follows: In the USA, generally, there will be no compensation paid
except for certain situations to be determined in advance and negotiated on a
case by case basis. In Canada, the Company shall be paid 5% of site license fee
only for each sale where Company provides the principal and specific referral
and direct sales assistance except, the Company will be paid 2% of the site
license fee for sales made through or by Serca Foodservice, a major food
supplier in Canada, if an arrangement between Serca Foodservice and Achieve is
reached as a direct result of introductions made by the Company.
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C. Marketing And Sales Guidance. Achieve will use its best efforts to
advise the Company how the Products can best be marketed and sold to the LTC
industry. Without limitation, Achieve will inform the Company of the reaction of
Achieve Clients and others in the LTC industry to the Company's Products, and
will, subject to the consent of Achieve Clients, provide the Company with
information about the needs, structure and style of LTC organizations.
D. Achieve Marketing. Achieve will continue to nurture its national
posture as a provider of software products and related services to the LTC
industry through attendance at key conferences and exposure through major public
relations vehicles (e.g., industry publications). In so doing, Achieve will
publicize its relationship with the Company and the value of the Product as part
of the Enterprise Solution anchored by the Achieve Software. The Company may be
requested to participate in joint promotional events, and will use its best
efforts to do so. Achieve will also include the Company as a Certified Achieve
Partner, in the Business Product Alliance category, in its advertising and
marketing materials, including its Internet home page.
E. Company Marketing. The Company will publicize its standing as an
Achieve BPA in advertising and marketing directed to Achieve Clients and the LTC
industry, and shall include the "Achieve CAP" logo in its advertising and
marketing materials, including its Internet home page and published advertising,
marketing brochures, and collateral materials directed to the LTC industry where
mutually beneficial to Company and Achieve.
F. Case Study. The Company will participate with Achieve in the
development of at lease one case study to be used in sales materials and for
possible publication in magazines, newsletters, and other media.
G. Internet Links. Each party will provide, on its Internet home page,
a link to the other's web site.
7. Non-solicitation. Each party agrees not to knowingly employ or utilize
as an independent contractor, directly or indirectly, on a full-time or
part-time basis, any person employed by or utilized as an independent contractor
by the other party with whom the first party has had contact in the course of
such person's duties on behalf of the other party. This prohibition shall extend
for a period of one year following termination of any such person's employment
by or contracted activities on behalf of the other party and, for persons
employed by a party when this Agreement is terminated, for one year following
termination of this Agreement. Any waiver of this provision shall be effective
only if given in writing, signed by the party waiving the right, prior to any
solicitation by the other party of the employee or agent in question, or the
commencement of any employment of such individual by such other party. This
restriction shall not apply to any individual whose employment or contractual
relationship with a party is terminated upon the initiative of such party.
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8. Relationship Description. Neither party shall be an agent of the other.
This Agreement does not create a partnership or joint venture. Neither party
shall hold itself out as a partner or joint venturer with the other. Each party
may describe the relationship as a "strategic business alliance."
9. Notices. All notices, authorizations, consents, or the communications
required or permitted to be given hereunder shall be made in writing and shall
be deemed effective when delivered by certified mail or recognized overnight
carrier or by facsimile (followed by delivery via certified mail or recognized
overnight carrier) as follows:
if to the Company:
SureQuest Systems, Inc.
00000 XX Xxxx.
Xxxxxx, XX 00000
Attn: President
Fax: 000-000-0000
if to Achieve: with a copy to:
Achieve Healthcare Achieve Healthcare
0000 Xxxxxx Xxxxxxxx Xx. 000 X. Xxxxxxxxx Xxxx.
Xxxx Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
Attn: Chief Operating Officer Attn: General Counsel
Fax: 000-000-0000 Fax: 000-000-0000
Any party hereto may change its address for purposes hereof by so notifying the
other party.
10. Full Agreement, Merger, etc. This Agreement contains the whole
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written representations and agreements between the
parties relating thereto except for the Confidentiality and Non-Disclosure
Agreement executed by Achieve on January 28, 1999 and by the Company on January
30, 1999. This Agreement may not be varied except by a writing duly executed by
both parties. If any clause or provision of this Agreement shall be deemed
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, the remainder of this Agreement shall not be
affected by such illegality, invalidity or unenforceability, and in lieu of each
clause or provision of this Agreement that is illegal, invalid or unenforceable,
there shall be added as a part of this Agreement a clause or provision as
similar in terms to such illegal, invalid or unenforceable clause or provision
as may be possible and be legal, valid and enforceable.
11. Assignment. Neither party to this Agreement may assign its rights or
obligations under this Agreement without the express written consent of the
other party, which consent shall not be unreasonably withheld, except that
obligations under this Agreement may be provided or fulfilled by any parent,
subsidiary, affiliate, successor corporation, or subcontractor of a party, and
the rights of a party may be assigned thereto,
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so long as such party retains full responsibility for such obligations. For
purposes hereof, successor corporation" shall include any corporation,
partnership or business entity acquiring substantially all the assets or stock
of a party to this Agreement, provided that the "successor corporation" is not a
competitor of the other party.
12. Ownership Of Software And Products. Each party hereby acknowledge that
the Software and the Products are the property of Achieve and the Company,
respectively, and incorporate valuable copyrights and trade secrets of such
parties and that each party shall have exclusive proprietary rights in the
Software and the Products and in all modifications and additions thereto and
versions thereof, including all copyrights, trade secrets and other proprietary
concepts, ideas, know-how and information incorporated therein. Neither party
will attempt to reverse engineer, disassemble, decompose, modify, amend, or
similarly manipulate all or any portion of the Software or the Products or any
property rights of the other, provided that the parties may create an interface
between the Software and the Products as set forth in Section 2 above, but may
not otherwise incorporate the software systems of the other into their own
software. Neither party will do or suffer to be done at any time any act or
thing which may in any way adversely affect any rights of the other.
13. Term Of This Agreement.
A. This Agreement shall become effective as of the Contract Date and
shall continue in effect for a period of five (5) years from the Contract Date
("Initial Term") and from year to year thereafter so long as neither party
terminates this Agreement in accordance with its terms.
B. Either party may terminate this Agreement with or without cause by
giving written notice at least ninety (90) days prior to the termination of the
Initial Term or prior to the termination of any renewal term thereafter.
C. The termination of this Agreement shall not affect the rights or
obligations of either Achieve or the Company under any executed license
agreement, which either may have with an Achieve Client.
14. Amendments. This Agreement may not be amended or modified by the
parties except be a further written agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to conflicts of
law principles.
16. Dispute Resolution. All disputes arising under this agreement shall be
resolved in accordance with the following provisions.
All disputed matters shall be referred first to an officer of Achieve and
an officer of the Company who can contractually commit their respective
companies. In the event such officers cannot resolve a dispute, either party may
request the matter to be submitted to binding arbitration in Dallas, Texas, if
Achieve is the requesting party, and in
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and conditions of this Agreement; and (iv) may require such procedures as
discovery and the submission of written briefs;
B. Require the testimony to be transferred;
C. Require the award to be accompanied by findings of fact and a
statement of reasons for the decision, and
D. Require the award to include reasonable attorney's fees and costs.
Judgment upon any award made in such arbitration may be entered and enforced in
any court of competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement upon
the date first written above.
SUREQUEST SYSTEMS, INC. ACHIEVE SOFTWARE CORPORATION
d/b/a ACHIEVE HEALTHCARE
INFORMATION SYSTEMS
By: /s/ C. XXXXX XXXXX XX. By: /s/ J. XXXXXXXXX XXXXXX
-------------------------- ----------------------------
C. Xxxxx Xxxxx Xx. J. Xxxxxxxxx Xxxxxx
President Chief Marketing Officer
Date: July 16, 1999 Date: July 30, 1999
-------------------------- ----------------------------
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EXHIBIT A
PRODUCT NAME: Three Squares(R)
DEVELOPMENT SYSTEM: Centura's Scalable Application Language (XXX) using
Gupta SQL Windows (16 bit single user) Centura Team
Developer (32 bit multi-user)
DATABASE ENGINE: Centura's SQL Base
PRODUCT DESCRIPTION: SureQuest's Three Squares(R) is a Microsoft
Windows(R) based software program that provides a
total management solution for healthcare and other
institutional food service environments. Three
Squares is available as single function group modules
and as a fully integrated series of modules designed
to offer a complete suite of solutions for dietary
and food service professionals.
PRODUCT FEATURES: o Completely integrated modules
o Meets all resident food preferences
o Generates food specific tray menus
o Provides complete nutritional analysis
o Active weight change alerts and history
o Maintains perpetual inventories
o Budget to expenditure comparison
o Automatically generates purchase orders
o Evaluates menu, recipe and meal cost
o Interfaces with most food distributors
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ACHIEVE HEALTHCARE INFORMATION SYSTEMS
SUREQUEST SALES LEAD FORM
FACILITY INFORMATION===================================================================================
Check here if
Facility Name [ ] Part of Chain? (complete Corporate Information below)
--------------------------------
Address City State Zip
--------------------------------------- ------------------ --------- --------------
Telephone Fax Web Site
------------------------------------ ------------------ ------------------------
Facility Type: [ ]LTC [ ]Assisted Living [ ]CCRC [ ]Acute [ ]Other
------------------------
No. Beds Menu Type(s) [ ]Non-Select [ ]Select [ ]Cafeteria [ ]Catering [ ]Meals on Wheels
------
Contact Person Title
------------------------------------- -------------------------------------------
Telephone [ ]Same Ext. Email
--------------------------- ------------------ ----------------------------
Other Contact Title
------------------------------------- -------------------------------------------
Telephone [ ]Same Ext. Email
--------------------------- ------------------ ----------------------------
Does facility currently use a Dietary Program? [ ] No [ ] Yes - Product
-------------------------
What priority benefits is client seeking?
--------------------------------------------------------------
Existing Achieve Client? [ ] Yes [ ] No Achieve Product
--------------------------------------------
CORPORATE INFORMATION==================================================================================
Corporate/Owner Name [ ]Same
------------------------------------------------------------------------
Address City State Zip
--------------------------------------- ------------------ --------- --------------
Corporate Contact Person Title
------------------------------- ---------------------------------------
Telephone Ext. Fax
------------------------------------ ------------------ ----------------------------
Additional Facilities Owned/Managed: Number Type
--------------------------- ---------------------------
ACHIEVE SALES PERSON INFORMATION=======================================================================
Lead Submitted by Date Submitted
----------------------------------------------------- -----------------
Comments
-----------------------------------------------------------------------------------------------
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PLEASE FAX COMPLETED SALES LEAD FORM TO: SUREQUEST SYSTEMS, 000-000-0000
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