Portions of this Exhibit have been omitted pursuant
to a request for confidential treatment. The omitted
portions, marked by [****], have been separately filed
the Commission.
EXHIBIT 10.11
SERVICES AGREEMENT
This Agreement is effective this 28 day of July, 1996, (the "Effective Date")
between Disease State Management, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("Vendor") and Equifax. Vendor agrees to provide services to Equifax
under the terms set forth below.
A. SERVICES
Vendor will provide the product(s) or service(s) set forth, and to the
specifications set forth in the proposal incorporated herein as
Attachment A.
The product and all elements as set forth on Attachment A are subject to
prior approval by Equifax, such approval not to be unreasonably withheld.
B. COMPENSATION
1. Equifax shall pay Vendor a program operational fee of [****] in the
program described in Exhibit A. [****]
2. "At Risk" reports shall be generated and transmitted via fax directly
to health care providers for patients exhibiting specific high risk
behaviors. Such contacts shall be billed at a flat rate of [****] per
notification.
3. All amounts due under this Agreement shall be invoiced to Equifax by
Vendor and payable to Vendor within thirty days of the date of the
invoice. Payments exceeding thirty days past due shall be subject to a
service charge of [****] per month until paid.
In the event that Equifax shall request any changes in the concept,
specifications or scope of the product(s) or service(s) described on
Attachment A hereto, Vendor will notify Equifax the cost of such revisions
and will not proceed without prior written approval.
If the compensation provision on Attachment A hereto is other than [****]
Vendor will provide such documentation in support of all ▇▇▇▇▇▇▇▇ as
Equifax may reasonably require.
C. CONFIDENTIALITY
1. Equifax and Vendor acknowledge that certain confidential and
proprietary information may be disclosed by one of them to the other in the
course of this Agreement. For purposes of this Agreement, the term
"Confidential Information" includes the following: (a) All information
regarding the patient, Equifax's Customer, any patient medical
data and/or status, or provider information; and (b) any other information
identified as confidential in writing by the disclosing party prior to
disclosure. Notwithstanding the confidentiality requirements of this
Agreement, the foregoing shall not prevent Equifax from retaining
information, including any and all information and data pertaining to any
patient which comes to Equifax or to which Equifax is given access during
this Agreement.
Disease State Management-SM- and DSMI-SM- are servicemarks of Disease State
Management, Inc.
2. Should Equifax receive confidential information of Vendor for use in
performing their Services, Equifax agrees to take all reasonable steps to
safeguard the confidentiality of said information and to prevent
unauthorized disclosure thereof by Equifax employees, agents and
representatives. Equifax shall maintain strict security procedures to
protect the confidentiality of any information received, stored, or
delivered on patients in the Equifax or any affiliated or associated
company's database.
3. The data released hereunder to Vendor regarding patients, patient
medical data, Equifax Customers, and provider information, is considered
sensitive and confidential information. Vendor warrants that is shall use
any information provided by Equifax strictly for the performance of this
Agreement. Vendor acknowledges and agrees to take all steps necessary to
safeguard the confidentiality of all information and reports, whether oral
or written, maintain such information as strictly confidential and to
prevent unauthorized disclosure thereof by Vendor's employees, agents,
representatives and other third parties. Vendor warrants that all such
information and reports will not be disclosed to any person, organization
or entity other than Equifax.
4. Each party shall hold the other party, its affiliated companies, the
officers, agents, employees, and independent contractors of the other party,
harmless and shall indemnify and defend such party for any claim of
expense or damage, whatsoever, resulting from the publishing or release by
such party, of information contrary to the above conditions.
5. The obligations of the Paragraph shall not apply to any Confidential
Information which the recipient can demonstrate is or becomes available to
the public through no breach of this Agreement.
6. Neither party to this Agreement shall, except as may be required by
law or federal regulation, or except with express written permission of
the other party, disclose the terms and conditions of this Agreement to
any third party or publicly advertise its contents.
7. The parties agree that Vendor's breach of any of its material
obligation under the applicable Confidentiality provisions of this
Agreement, may cause Equifax irreparable injury for which it would have
not adequate remedy at law, and that Equifax shall be entitled to specific
performance or preliminary or other injunctive relief in addition to any
and all remedies it may otherwise be entitled to at law in equity.
8. This paragraph shall survive the termination of this Agreement.
Vendor shall not duplicate any material containing Equifax Confidential
Information, except in the direct performance of its services under this
Agreement. Vendor shall return all copies of materials containing Equifax
Confidential Information upon Vendor's completion of services under this
Agreement or upon any earlier termination of this Agreement for any
reason whatsoever.
D. INDEMNIFICATION
Each party shall indemnify and hold the other party harmless from and
against all liability, damages, penalties, losses, costs or expenses,
including reasonable attorneys' fees, arising from or in any way related
to its willful or negligent actions or omissions in performing the
responsibilities as described in this Agreement.
Disease State Management-SM- and DSMI-SM- are servicemarks of Disease State
Management, Inc.
E. LIMITATION OF LIABILITY
Neither Equifax nor vendor shall in any way be liable for any special,
indirect, exemplary, incidental or consequential damages, whether based on
contract, tort, or any other legal theory, even if Equifax or vendor has
been previously advised of the possibility of such damages. This
paragraph shall survive the termination of this agreement.
F. PROFESSIONAL STANDARDS
Vendor represents that it has facilities, personnel, experience and
expertise sufficient in quality and quality to perform all such assignments
and projects given it by Equifax hereunder and agrees that it will
perform all such assignments and projects in a manner commensurate with
professional standards generally applicable to its industry.
G. OWNERSHIP OF MATERIALS
The parties acknowledge that any modifications to the printed materials
produced by its asthma program for Equifax are being created at the
insistence of Equifax and shall be deemed "work made for hire" under the
United States copyright law.
Equifax shall have the right to use the whole work, any part of the parts
thereof, or none of the work, as it sees fit. Equifax may alter the work,
add to it, or combine it with any other works, at its sole discretion.
Notwithstanding the foregoing, all original material submitted by Vendor
as part of the work or as part of the process creating the work, including
but not limited to listings, printouts, documentation, notes, reports,
shall be the property of Equifax whether or not Equifax uses such material.
No rights are reserved by Vendor.
All surveys, reports, data, documentation and all other information
prepared by Vendor in connection with the performance of its services
hereunder will become and remain Equifax's sole property. Title to all
material and documentation, including data furnished by Equifax to Vendor
or delivered by Equifax into the Vendor's possession shall remain with
Equifax. Vendor shall immediately return all such material or
documentation within seven (7) days of any request by Equifax or upon the
termination or conclusion of this Agreement, whichever shall occur first.
Equifax hereby grants Vendor a worldwide perpetual royalty free license to
the data and information created by Vendor in connection with this
agreement for purposes of making marketing presentations to other potential
customers and for the development and sales of additional products based
upon this data. Vendor's use of this data is limited to instances where
data will not be identified by patient or by client of Equifax.
Vendor agrees it will not disclose to any third party, without the prior
written consent of Equifax, any proprietary or confidential information
acquired from Equifax under this Agreement, including trade secrets,
business plans and confidential or other information which may be
proprietary to Equifax.
Vendor warrants and represents that is has or will have the right, through
written agreements with its employees, to secure for Equifax the rights
called for in this Section. Further, in the event Vendor uses any
subcontractor, even though subcontracting is not permitted by this
Agreement, or other third party to perform any of the services contracted
for under this Agreement, Vendor agrees to enter into such written
agreements with such third party, and to take such other steps as are or
may be required to secure for Equifax the rights called for in this Section.
Disease State Management-SM- and DSMI-SM- are servicemarks of Disease State
Management, Inc.
H. DURATION OF AGREEMENT
1. Term
This Agreement is effective as of the Effective Date and shall continue
in full force and effect until the earlier of (i) completion of the
project assigned hereunder, (ii) terminated by at least thirty (30) days
written notice by either party to the other, sent by registered mail to
the address for each party first set forth above, or to such other address
which a party may designate for its receipt of notices hereunder. This
Agreement may be terminated by Equifax immediately in the event Equifax is
unable to obtain waivers from its customers regarding Vendor's services.
2. Transfer Upon Termination
Vendor shall transfer, assign and make available to Equifax or Equifax
representative all property and materials in Vendor's possession or control
and any copies thereof belonging to and paid for by Equifax, and all
information regarding Equifax project(s) covered by this Agreement, as set
forth in Paragraph C herein.
3. Neither Equifax nor Vendor shall be liable to the other for damages of
any kind, including but not limited to lost profits or Incidental, punitive
or consequential damages, relative to termination of this Agreement in
accordance with Section 6.2, even if advised of the possibility of such
damages.
I. INDEPENDENT CONTRACTORS
Vendor shall at all times be an independent contractor and shall so
represent itself to all third parties. Nothing in this Agreement shall be
deemed to constitute either party the agent or legal representative of the
other nor to constitute the parties as partners, agents or joint ventures
of one another.
J. THIRD PARTY OBLIGATIONS
In connection with this Agreement, Vendor shall make no commitments or
disbursements, incur no obligations nor place any advertising, public
relations or promotional material for itself Equifax its parent,
subsidiaries or affiliate companies, nor disseminate any material of any
kind using the name of Equifax and/or Equifax such parent, subsidiary or
affiliate companies or using their trademarks, without the prior written
approval of Equifax.
K. GOVERNING LAW
This Agreement is entered into in the State of Texas and shall be
constructed and governed under and in accordance with the laws of that
State.
Disease State Management-SM- and DSMI-SM- are servicemarks of Disease State
Management, Inc.
L. MISCELLANEOUS
1) The terms of this Agreement shall be binding upon Equifax and
Vendor and their respective successors and permitted assigns.
Notwithstanding the foregoing, this Agreement is not assignable in whole
or in part by Vendor without the prior written consent of Equifax.
Factoring of accounts receivable is not permitted.
2) The failure of either party to take action as a result of a breach
of this Agreement by the other party shall constitute neither a waiver of
the particular breach involved nor a waiver of either party's right to
enforce any or all provisions of this Agreement through any remedy granted
by law or this Agreement.
3) Equifax is an Equal Opportunity Employer and does not discriminate
against any person because of race, color, creed, age, sex, or national
origin. Vendor represents that it has the same policy of Equal Opportunity
Employment.
4) This Agreement contains the entire understanding of the parties
with respect to the subject matter contained herein, supersedes any prior
written or oral communications and may be modified in writing subject to
mutual agreement of the parties hereto.
5) The headings of each paragraph are for reference only and shall
not be construed as part of this Agreement.
6) Except for the obligation to pay money property due and owing,
either party shall be excused from any delay or failure in performance
hereunder caused by reason of any occurrence or contingency beyond its
reasonable control, including, but not limited to, failure of performance
by the other party, earthquake, labor disputes, riots, governmental
requirements, inability to secure materials on a timely basis, failure of
computer equipment, failures or delays of sources from which information
or data is obtained and transportation difficulties.
Disease State Management-SM- and DSMI-SM- are servicemarks of Disease State
Management, Inc.
IN WITNESS WHEREOF, the parties hereto, each by a duly authorized officer,
have entered in to this Agreement this 28 day of July, 1996
Equifax Disease State Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. Page By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
Title: President Title: President & CEO
------------------------- -------------------------
EXHIBIT A
DIABETES
DISEASE MANAGEMENT
PROPOSAL
---------------------------------------
FOR
EQUIFAX HEALTHCARE ADMINISTRATIVE SERVICES
PRESENTED BY
Disease State Management,-SM- Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Disease State Management and DSMI are registered service marks of Disease
State Management, Inc.
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
[****]
