EXHIBIT 10.10
HBO & Company
and
HealthDesk(TM)
MARKETING AGREEMENT
This Marketing Agreement ("Agreement") is made and entered into as of this
30th day of September, 1997, ("Effective Date") by and between HealthDesk(TM),
Corporation ("Business Partner"), a California corporation with its principal
place of business at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
and HBO & Company of Georgia ("HBOC"), a Delaware corporation with its principal
place of business at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000.
STATEMENT OF PURPOSE
A. HBOC is in the business of developing proprietary computer software
applications, integrating them with software developed by others and
distributing the integrated software product together with associated
hardware and services in order to provide comprehensive information
solutions desired by healthcare providers.
B. Business Partner owns, distributes and supports certain computer
software known and marketed as HealthDesk(TM) OnLine, and
HealthDesk(TM) OnLine for Diabetes which are consumer software packages
that leverages the Internet to provide a confidential information and
resource link between the consumer and the healthcare provider.
C. HBOC desires to acquire and Business Partner desires to grant to HBOC a
license to market, sublicense and distribute HealthDesk(TM) Online
together with other HBOC products and services to HBOC customers and
prospects under the terms and conditions of this Agreement.
AGREEMENT
In consideration for the mutual promises set forth below, and for other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. DEFINITIONS. The following capitalized terms used in this Agreement shall
have the following meanings:
1.1 "Affiliates" means any entity controlling, controlled by, or under
common control with, either party to this Agreement.
1.2 "BP Software" means the operating system software, application
software or other software products which are proprietary to Business
Partner or for which Business Partner has the right to distribute and
which comprise the software set forth on Exhibit A, including: (a)
the machine-executable object code version of the user-loadable
programs which Business Partner makes generally available including
all options, database interfaces, operating system and hardware
versions, now or hereinafter developed; (b) Documentation; (c) any
modifications, revisions, Corrections, Enhancements, New Releases or
replacements for all of the foregoing items; and (d) authorized
copies of all of the foregoing items.
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1.3 "Consumer Price Index" means, as of any date, the Consumer Price
Index for All Urban Consumers, U.S. City Average, published by the
U.S. Bureau of Labor Statistics (base year 1982-84=100, except that,
if the base for the Index is so changed that 1982-84 prices no longer
represent 100, an appropriate adjustment will be applied to the
published indices so as to relate them to the aforesaid base in which
1982-84 prices represent 100), as published by the Bureau of Labor
Statistics of the U.S. Department of Labor as of the most recent
calendar month for which the Index is published prior to such date.
In the event that the Consumer Price Index is discontinued, the
parties shall agree to a substantially similar government index or
publication as a reasonable replacement.
1.4 "Correction(s)" means a modification, revision or supplement to the
BP Software which makes such software perform functions it was
designed to perform or corrects defects or "bugs".
1.5 "Distributor(s)" means HBOC and those entities which (at the time in
question) are authorized by HBOC either as distributor or agent to
distribute other software marketed by HBOC. Additional Distributors
may be added by HBOC during the term of this Agreement so long as
HBOC requires any such entity to execute a written agreement with
HBOC containing terms and conditions substantially similar to those
contained in this Agreement for the protection of Proprietary
Information.
1.6 "Documentation" means the full and complete documentation in any
media and form (CD, hard copy, electronic, etc.) for BP Software,
including all programmer, user, training, operating, support and
other manuals, technical specifications and documents and manuals
relating to the installation, implementation, use, maintenance,
testing and operation of BP Software, together with all revisions,
updates and other modifications thereto as Business Partner may make
from time to time.
1.7 "Enhancement(s)" means modifications, revisions, additions or
supplements to the BP Software which enables such software to provide
or perform services or functions it could not previously perform or
materially improves the manner in which the BP Software performs
existing functions.
1.8 "HBOC Customer(s)" means the (i) current customers of HBOC which have
licensed HBOC Software or purchased from HBOC services or hardware,
and (ii) prospective customers to whom HBOC is marketing or with whom
HBOC is negotiating for the license of HBOC Software or the sale of
hardware or HBOC services. The term "HBOC Customer" shall include
Affiliates of any HBOC Customer.
1.9 "End User (s)" means the person(s) who register with HBOC Customers
for the license and use of the Business Partner Software.
1.10 "HBOC Software" means the computer software now or hereafter marketed
and licensed by HBOC (whether developed by HBOC or licensed to HBOC
with a right to sublicense to HBOC Customers, excluding BP Software)
for use by HBOC Customers.
1.11 "List Price(s)" means Business Partner's retail, non-discounted,
standard charges to third parties for BP Software, as contained in
the price list, a current copy of which is attached hereto as Exhibit
B, and which may be updated from time to time during the term of this
Agreement.
1.12 "New Release(s)" means all modifications, revisions, Enhancements,
Corrections or replacements for BP Software and related Documentation
which Business Partner has agreed to provide pursuant to this
Agreement or which Business Partner makes available to its customers
in general from time to time at no additional license fee. This
definition excludes new disease and life stage modules.
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1.13 "Proprietary Information" means any data or information regarding (i)
the business operations of a party which is not generally known to
the public and affords such party a competitive advantage, including
but not limited to, information regarding its products and product
development, suppliers, marketing strategies, finance, operations,
customers, sales, and internal performance results; (ii) proprietary
software, including but not limited to: concepts, designs,
documentation, reports, data, specifications, source code, object
code, flow charts, file record layouts, databases, inventions,
know-how, show-how and trade secrets, whether or not patentable or
copyrightable; and (iii) the terms and conditions of this Agreement.
1.14 "Royalty(ies)" means an amount, calculated in U.S. Dollars, equal to
a percentage of Business Partner's List Price or a fixed fee for BP
Software, as set forth on Exhibit C, which is due Business Partner
for each Sublicense.
1.15 "Source Code" means the statements which define the BP Software
functions which, when assembled or compiled become the executable
code of the BP Software and includes both the human readable and
machine readable forms; however, it shall not include the source code
for any third party software contained in the BP Software.
1.16 "Sublicense(s)" means a non-exclusive, non-transferable (except as
set forth in Section 15.11) right granted by HBOC to a HBOC Customer
under a Sublicense Agreement to use an object code copy of the BP
Software regardless of whether such use is in connection with the
license and use of HBOC Software.
1.17 "Sublicense Agreement" means the terms and conditions pursuant to
which HBOC Customer will be licensed to use BP Software, such terms
and conditions to include at a minimum the terms and conditions set
forth in Exhibit E.
1.18 "Territory" means the geographical area and territories listed in
Exhibit F. The Territory may be extended pursuant to the mutual
written agreement of the parties.
2. TERM.
2.1 Term. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for a period of three (3) years
("Initial Term"), unless earlier terminated as provided for below in
Article 14. Thereafter, this Agreement will automatically renew for
successive terms of one (1) year each ("Renewal Terms"). Either party
may terminate this Agreement without cause at the end of the Initial
Term or any Renewal Term by providing at least one hundred and twenty
days (120) days prior written notice to the other party.
3. LICENSE.
3.1 License Grant. Business Partner hereby grants HBOC, its Affiliates
and Distributors, a non-exclusive, non-transferable (except as set
forth in Section 15.11), license to use BP Software in the Territory
on any computer system operated by HBOC for the purposes of testing,
developing, interfacing and integrating the BP Software with HBOC
Software and for marketing, demonstrating, educating, installing and
supporting BP Software. Additionally, HBOC shall have the right to
incorporate all or portions of the Documentation into documentation
created by HBOC for HBOC Software, provided that HBOC identifies such
Documentation or portions thereof as being proprietary to Business
Partner.
3.1.1 At HBOC's option, Business Partner shall grant to HBOC and
HBOC's employees **** licenses for the BP Software to use for a
**** per employee. Thereafter, HBOC, at its option, may renew
the trial licenses and purchase additional licenses, upon the
signing of a mutually agreed upon contract between HBOC and
Business Partner, for its employees for a period of one year for
**** per employee.
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3.2 Sublicenses. Business Partner further grants HBOC, its Affiliates and
Distributors, a non-exclusive, non-transferable (except as set forth
in Section 15.11), license to (a) distribute the BP Software in the
Territory to HBOC Customers, provided HBOC first obtains a written
Sublicense Agreement (the license term of which may be perpetual);
and (b) provide data processing and facility management or
outsourcing services to HBOC Customers. HBOC, its Affiliates and
Distributors may also grant Sublicenses which permit HBOC Customers
to access their data within the BP Software by means of remote access
(e.g., electronic transfer, remote dial-in, etc.) for the purposes of
supplementing, modifying, deleting, reporting or reviewing data. HBOC
Customers shall be prohibited from using BP Software to process data
for unrelated third parties; however, this restriction shall not
apply to local or remote access by Affiliates of HBOC Customers, such
as physicians and outpatient facilities or any third party which is
operating, supporting or using BP Software for or on behalf of HBOC
Customers, which access and use is expressly permitted. HBOC shall be
solely responsible for negotiating the terms of the Sublicense
Agreements. Business Partner shall secure and keep confidential any
information about HBOC Customers and their End-Users that resides on
the Business Partner's server. In the event that an HBOC Customer
wants to access its End-Users information that resides on the
Business Partner's server, before Business Partner will distribute
the information, the HBOC Customer must obtain authorization and
consent from the End-Users.
3.3 Copies. HBOC and its Affiliates and Distributors may make copies of
BP Software for the functions required or permitted in this Article 3
and may also make a reasonable number of copies of BP Software for
purposes for archival, backup and disaster recovery. HBOC will use
reasonable efforts to reproduce all Business Partner copyright,
confidentiality and proprietary notices on each copy.
3.4 Trademarks.
3.4.1 Business Partner grants HBOC a non-exclusive, non-transferable
(except as set forth in Section 15.11) right to use and
display, at HBOC's discretion, Business Partner's trademarks to
advertise and promote the BP Software. HBOC shall use such
trademarks in accordance with Business Partner's published
guidelines, a copy of which shall be delivered to HBOC promptly
following execution of this Agreement. HBOC shall not receive
any ownership in or to Business Partner's trademarks as a
result of such use. HBOC shall not use any of Business
Partner's trademarks, service marks, logos, or slogans in any
manner likely to confuse, mislead, or deceive the public, or to
be adverse to the best interests of Business Partner.
3.4.2 HBOC grants to Business Partner limited permission to use the
HBOC's trademarks solely to identify itself as a partner of
HBOC. Business Partner shall use such trademarks in accordance
with the guidelines established by HBOC (from time to time), a
current copy of which is attached to this Agreement as Exhibit
K. Business Partner shall submit all such materials to HBOC for
prior review and approval. Business Partner shall not use any
of HBOC's trademarks, service marks, logos, or slogans in any
manner likely to confuse, mislead, or deceive the public, or to
be adverse to the best interests of HBOC.
3.5 HBOC Co-Branding. Notwithstanding anything to the contrary in this
Agreement, HBOC shall have the right , with mutual agreement with
HBOC's Customers, to incorporate HBOC's logo and other information
in the Business Partner Software and sublicenses to HBOC Customers.
HBOC's logo and other information will co-exist with Business
Partner's logo and information.
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4. SOURCE CODE ESCROW.
4.1 Escrow Account. Within thirty (30) days following the execution
of this Agreement, Business Partner shall place the Source Code
into an escrow account with a reputable, financially sound,
industry recognized third party consented to by HBOC to act as
the escrow agent ("Escrow Agent") under the terms of a mutually
acceptable escrow agreement (the "Escrow Agreement"). A fully
executed copy of the Escrow Agreement, together with a receipt
from the Escrow Agent acknowledging receipt of the Source Code,
shall be delivered to HBOC within five (5) days after execution
of the Escrow Agreement. In addition to the initial delivery of
Source Code, Business Partner shall deliver to the Escrow
Agent, within thirty (30) days following general availability,
copies of all New Releases of the BP Software, and shall
provide HBOC with receipts of such additional deposits,
executed by the Escrow Agent. Business Partner shall be
responsible for all costs incurred in connection with the
Escrow Agreement.
4.2 Release of Source Code from Escrow Account. In the event that
Business Partner (a) becomes insolvent or ceases to carry on
business, and the business of Business Partner is not carried
on by a receiver or trustee or assignee; or (b) Business
Partner discontinues or fails to provide the BP Software or
support or maintenance of the BP Software in accordance with
the terms of this Agreement for any reason whatsoever, then
HBOC shall have the right to acquire a copy of the Source Code
for the purpose of developing, maintaining, modifying and
marketing the BP Software in accordance with the terms of this
Agreement so long as HBOC continues to pay the appropriate fees
due to Business Partner hereunder times a factor of (i) 1.0 in
the first year; (ii) .75 in the second year; (iii) .5 in the
third year; (iv) .25 in the fourth year; and (v) zero in
further years
5. DELIVERY.
5.1 Initial Delivery. Business Partner shall deliver to HBOC, at
no charge, a reasonable number of copies of the most recent
version (unless HBOC specifies a different available version)
of BP Software and Documentation for use by HBOC in accordance
with the terms and conditions of this Agreement within fifteen
(15) days after the Effective Date.
5.2 New Releases. Business Partner shall deliver to HBOC or make
available to HBOC via downloads from the Business Partner Home
Page at no additional charge and within thirty (30) days after
general availability by Business Partner, a reasonable number
of copies of New Releases and Documentation related to such
New Releases for internal use by HBOC, its Affiliates and
Distributors. Business Partner shall deliver New Releases to
HBOC Customers or make available to the HBOC Customers via
downloads from the Business Partner Home Page at no additional
charge and within thirty (30) days after general availability
by Business Partner.
5.3 Customer Delivery. Business Partner shall deliver the BP
Software to HBOC Customers as soon as possible (and in any
case, no later than seven (7) days), after receipt of a
purchase order from HBOC (subject to a Sublicense Agreement).
Business Partner shall be responsible for installation and
implementation of the Business Partner Software for HBOC
Customers.
5.4 New Products. Business Partner new products will be
added to this Agreement when generally available for
distribution, to be sold by HBOC.
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6. MARKETING.
6.1 Generally. HBOC will use reasonable efforts to market the BP
Software. It is the parties' intention that HBOC, or its
Affiliates or Distributors, be the single channel through
which HBOC Customers procure BP Software; and all agreements,
licenses, orders and invoices for the BP Software shall be by
and between HBOC (or its Affiliate or Distributor) and an HBOC
Customer.
6.2 Marketing Activities. HBOC and Business Partner, as
appropriate, may perform some or all of the following
marketing activities:
6.2.1 Press Releases. Subject to each party's prior written
approval, issue a press release announcing the creation of the
marketing relationship and additional press releases from time
to time to publicize other significant events regarding joint
business developments.
6.2.2 Marketing Collateral. Work together to develop articles or
entries regarding BP Software for the HBOC marketing
publications, including without limitation: Fact Sheets,
Business Partner Solutions Directory, HBOC Sales Manual and For
Your Arsenal, and any other marketing publications released by
HBOC from time to time during the term of this Agreement. All
cost associated with the production of marketing collateral will
be at HBOC's expense. Business Partner will provide HBOC free of
charge Business Partner logo and any necessary art work for HBOC
to incorporate into the marketing collaterals. HBOC shall
include references to the BP Software in presentations, as
appropriate, and shall be responsible for the design and
development of marketing collateral for the BP Software.
6.2.3 RFP Responses. Recommend BP Software as a solution in
responses to requests for proposals ("RFP's") from HBOC
Customers, provided Business Partner cooperates with HBOC in the
preparation of such responses, such cooperation to include,
without limitation, ensuring the accuracy of HBOC's responses to
questions regarding BP Software contained in RFP's, the
development and update of standard information required to
support HBOC responses to RFP's, and support to HBOC's RFP
Specialists as required in connection with clarifications to RFP
responses.
6.2.4 Demonstrations. Business Partner shall provide HBOC a
reasonable amount of sales support which may include
demonstrations of the BP Software, either at an HBOC or HBOC
Customer site, and attendance at sales presentations by HBOC.
6.2.5 Representatives. Each party shall assign a representative
who shall serve as that party's point-of-contact or facilitator
between the parties on all matters arising under this Agreement.
The representatives shall meet on a mutually agreed upon basis
to review and coordinate all activities under this Agreement,
including development, support, marketing, and sales, and to
amicably resolve any disputes which may arise under this
Agreement.
6.2.6 Sales Training and Assistance. From time to time and at no
charge to HBOC, upon mutually agreeable terms and conditions,
HBOC and Business Partner may organize and hold sales training
workshops for the BP Software. Business Partner agrees to
respond timely and effectively to reasonable requests for
assistance from HBOC in order to promote the license of the BP
Software by HBOC.
6.2.7 Business Partner Database. HBOC will include information
about Business Partner and BP Software in HBOC's Business
Partner Database for use by HBOC sales representatives,
Affiliates, Distributors and others.
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6.2.8. Trade Show Attendance. Upon HBOC's reasonable request,
Business Partner shall participate with HBOC at vendor fairs and
healthcare informatics industry trade shows, seminars and
selected user group events.
6.2.9. Web Page References. It is the intent of the parties to
establish a web page link on each party's home page to the home
page of the other party within a reasonable period of time
following execution of this Agreement. HBOC will announce the
new partnership on the "What's New" section of the HBOC home
page and provide a link to the press release of the partnership
on Business Partner's Homepage.
6.2.10. Business Partner Reference. As appropriate and
reasonable, and at HBOC's discretion, may serve as a Business
Partner reference and assist Business Partner in putting
together a white paper after HBOC employees have used the BP
Software for fifteen (15) months.
7. BUSINESS PARTNER RESPONSIBILITIES. During the term of this Agreement,
Business Partner shall provide the following support and resources to HBOC:
7.1. Technical Support for HBOC. Business Partner shall provide to
HBOC, at no additional charge, reasonable technical support and
consultation from Business Partner's designated offices by way
of telephone, bulletin boards or other electronic means, to
assist HBOC in the resolution of problems encountered by HBOC in
the operation, configuration, implementation and support of BP
Software seven (7) days per week, twenty-four (24) hours each day.
Such support shall include best efforts by Business Partner to
verify, diagnose and correct errors and defects in the BP
Software in accordance with the support and escalation procedures
set forth at Exhibit I. Business Partner agrees to support the
release immediately prior to the New Release of the BP Software
for a minimum of twelve (12) months after the general availability
of a New Release.
7.2 Pre-releases. Upon HBOC's reasonable request, Business Partner shall
provide newly developed or beta versions ("Pre-releases") of BP
Software for review, evaluation, training and planning purposes,
provided that HBOC makes available to Business Partner a written
critique of such Pre-release software after completing its
evaluation. Business Partner shall make Pre-releases available to
HBOC no later than when Business Partner makes the same available to
other value added resellers of the BP Software. ANY PRE-RELEASE
SOFTWARE IS PROVIDED TO HBOC "AS IS" AND BUSINESS PARTNER MAKES NO
WARRANTIES AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES
REGARDING THE PRE-RELEASE SOFTWARE.
7.3 Participation in Development. HBOC may, upon mutual agreement,
participate in any development councils or other customer steering
committees which Business Partner may establish to gather input for
the future direction and ongoing development of BP Software. Business
Partner shall also provide HBOC with frequent communication regarding
contemplated New Releases, Enhancements, and other product
directions, including providing HBOC with copies of BP Software under
development in order that HBOC may fully utilize all the features of
the BP Software as early as is technically feasible, all of which
shall be provided to HBOC no later than provided to any third party.
7.4 HBOC Training. Business Partner shall provide to HBOC, at no
additional charge, adequate initial training and re-training as
reasonably necessary and requested by HBOC on the use, operation and
installation of BP Software. All training shall be conducted by
qualified personnel at such facilities and at such times mutually
agreed to by the parties, it being contemplated that initially
Business Partner's personnel shall provide such training in one or
more sessions at HBOC's offices. Unless otherwise expressly agreed,
travel and living expenses incurred by each party in connection with
the training shall be the responsibility of the party incurring the
expenses.
7.5 Professional Services. Business Partner shall make professional
services available to HBOC beyond the scope of those provided in this
Article 7 on mutually acceptable terms and conditions; however the
rates payable by HBOC for such services shall not exceed Business
Partner's then current rates in any event.
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7.6 Access to Source Code. Business Partner shall provide HBOC with
access to the Source Code of such portions of the BP Software as may
be reasonably necessary for any application or database interfaces or
integration HBOC may desire to create.
7.7 Continued Development of BP Software. Recognizing that a significant
portion of a customer's perceived value in any software is the
developer's continued investment in improved and enhanced versions
thereof, Business Partner shall devote appropriate resources to
developing improved and enhanced versions of the BP Software
(including versions designed to be compatible with new hardware,
database, presentation/windowing, and operating system features and
versions with improved and additional features).
7.8 New Versions. The parties acknowledge that in order to support the
continuing development and enhancement of the Business Partner
Software and related products, it may be desirable for Business
Partner to invest significantly in special research and development
projects or to license third party technology to provide material
enhancements to the Business Partner Software which are beyond
customary incremental improvements. It is expressly understood that
the agreed to royalties as provided herein do not cover such material
enhancements and that the terms and conditions regarding the license
of any such material enhancements shall be subject to good faith
negotiations between the parties.
7.9 Sale of Line of Business. In the event that HBOC should transfer any
line of business whose software products are dependent on the BP
Software, Business Partner shall not unreasonably refuse to enter
into a distributorship agreement with the buyer of such product line
on terms comparable to Business Partner's then current terms for such
a relationship.
7.10 Marketing Literature; Sales Support. Business Partner shall provide
and distribute a reasonable number of copies of its BP Software
marketing literature to appropriate HBOC sales and marketing
personnel Business Partner shall respond timely and effectively to
HBOC requests for information and sales assistance
8. HBOC RESPONSIBILITIES. During the term of this Agreement, HBOC shall provide
the following resources:
8.1 Customer Support. Business Partner shall be responsible for support
to HBOC customers. HBOC shall provide HBOC Customer the name and
phone number for Business Partner Technical support. The Business
Partner will be the first point of contact for maintenance and
support. Business Partner will perform the installation of the BP
Software and the training of HBOC Customer personnel in the use of
the BP Software or HBOC, may at its option, either perform the
installation or the BP Software and training of the HBOC Customer
personnel in the use of the BP Software. Business Partner shall
provide appropriate levels (both in quantities and experience) of
staff to support HBOC in answering technical questions, as
specifically set forth in Section 7.1 of this Agreement, identifying
and resolving errors in the BP Software, and providing temporary
solutions to BP Software errors which are not immediately resolvable.
In accordance with procedures established by the parties, Business
Partner shall prioritize work on error corrections and shall from
time to time provide HBOC with New Releases incorporating such error
corrections.
8.2 New Releases. HBOC shall use reasonable efforts to interface BP New
Releases with HBOC Software. While it is the parties' desire that the
BP Software contain the New Releases, they acknowledge that the BP
Software is complex and that such changes may require substantial
development efforts on behalf of HBOC, third parties and HBOC
Customers, and that whether the New Releases are interfaced with HBOC
Software is in the sole discretion of HBOC.
8.3 Sublicense Agreement Enforcement. In the event HBOC becomes aware of
a breach of a Sublicense Agreement by an HBOC Customer which affects
Business Partner's rights it shall use commercially reasonable
efforts to enforce the terms of the Sublicense Agreement, using no
less efforts that HBOC would use to protect its own rights under
similar circumstances.
9. PRICES AND PAYMENT.
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9.1 List Prices. List Prices for the BP Software and any associated
services are set forth on Exhibit B. HBOC shall unilaterally
determine the fees to be charged to HBOC Customers for the BP
Software, including without limitation, software license fees,
standard implementation, standard customization and support fees.
Quotes for special and other non-standard charges will be quoted by
Business Partner.
9.2 License & Sublicense Fees. For each Sublicense of BP Software and
resale of BP Services to an HBOC Customer, HBOC agrees to pay
Business Partner the List Prices on Exhibit B less the applicable
Discount as set forth on Exhibit C, exclusive of taxes. Business
Partner reserves the right to increase the List Prices on Exhibit B
no more than once in any consecutive twelve (12) month period, upon
at least one-hundred-eighty (180) days prior written notice to HBOC.
No annual increase for BP Software or BP Services shall exceed the
lesser of (i) an amount no greater than the percentage of any
increase over the preceding 12-month period in the Consumer Price
Index or (ii) five percent (5%).
9.3 Software Maintenance Fees. In consideration for the New Releases
provided by Business Partner pursuant to Section 5.2, Business
Partner shall be entitled to annual software maintenance fees as set
forth in Exhibit B. No software maintenance fee shall be due Business
Partner for (a) HBOC Internal Licenses, or (b) Sublicenses of the BP
Software which are not supported by BP and for which New Releases
from Business Partner are not requested. Support fees will accrue
beginning one (1) year after fulfillment of the initial order for the
BP Software and shall paid annually, during the first calendar
quarter of each year. The first annual support fee for each HBOC
Customer shall be prorated through December 31 of the calendar year
in which it becomes due.
9.4 Invoices.
9.4.1 Sublicenses and HBOC Internal Licenses: Upon fulfillment of any
order by Business Partner for a Sublicense or an HBOC Internal
License, Business Partner shall issue an invoice to HBOC for the
total amount due.
9.4.2 Software Maintenance Fees for Sublicenses: Business Partner
shall issue separate invoices for annual software maintenance fees
for Sublicenses at such time that these fees become due.
9.5 Payment Terms. HBOC shall pay all invoices submitted by Business
Partner within sixty (60) days of receipt. HBOC reserves the right to
withhold payment to Business Partner for invoices, to and only to the
extent, which HBOC disputes in good faith. The parties agree to use
reasonable efforts to settle such payment disputes within 60 days. If
HBOC and BP, reasonably agree that HBOC must refund all or a portion
of the fees collected for BP Software, BP Interface or BP Services to
an HBOC Customer and Business Partner has been paid by HBOC in
accordance with this section, then HBOC shall deduct from the next
payment to Business Partner the amounts refunded to the HBOC
Customer.
9.6 Exclusivity. During the term of this Agreement, Business Partner will
not market the Business Partner Software to the companies listed in
Exhibit D. This exclusivity applies only if HBOC meets or exceeds
cumulative revenue targets in Exhibit D. Revenue targets will be
reconciled quarterly, 60 days after the close of the quarter. (e.g.,
The calendar quarter beginning January 1 and ending March 31 would be
due on May 31). In the event the cumulative revenues at the end of
any given quarter is less than the targeted amount, then Business
Partner may, at its option, terminate this exclusivity clause.
Alternatively, HBOC may, at its option, elect to continue the
exclusivity terms of this agreement by paying to Business Partner a
lump sum equal to the difference between the quarterly cumulative
revenue target and the amount of cumulative revenues actually
received by Business Partner. Such sum shall serve as a
non-refundable prepay against which future Sublicense may be applied.
9.7 Taxes. HBOC shall be responsible for payment of any sales or use or
similar taxes (except those based on income to Business Partner)
relating to the sublicense of BP Software or the resale of BP
Services to HBOC Customers under this Agreement.
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9.8 Expenses. Except as otherwise specified in this Agreement or agreed
to by the parties, each party shall be solely responsible for its own
travel and out-of-pocket expenses, including postage and other
delivery expenses, incurred in the performance of its obligations
under this Agreement.
9.9 Exclusive Payment. This Article 9 is the exclusive statement of the
payments to which Business Partner shall or may be entitled with
respect to the subject matter of this Agreement.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
10.1 Ownership and Protection. Each party agrees that it has no interest
in or right to use the Proprietary Information of the other except in
accordance with the terms of this Agreement. Each party acknowledges
that it may disclose Proprietary Information to the other in the
performance of this Agreement. The party receiving the Proprietary
Information shall: (i) maintain it in strict confidence and take all
reasonable steps to prevent its disclosure to third parties, except
to the extent necessary to carry out the purposes of this Agreement,
in which case these confidentiality restrictions shall be imposed
upon the third parties to whom the disclosures are made, (ii) use at
least the same degree of care as it uses in maintaining the secrecy
of its own Proprietary Information (but no less than a reasonable
degree of care) and (iii) prevent the removal of any proprietary,
confidential or copyright notices placed on the Proprietary
Information.
10.2 Limitation. Neither party shall have any obligation concerning any
portion of the Proprietary Information of the other which: (i) is
publicly known prior to or after disclosure hereunder other than
through acts or omissions attributable to the recipient or its
employees or representatives; (ii) as demonstrated by prior written
records, is already known to the recipient at the time of disclosure
hereunder; (iii) is disclosed in good faith to the recipient by a
third party having a lawful right to do so; or (iv) is the subject of
written consent of the party which supplied such information
authorizing disclosure; or (v) is required to be disclosed by the
receiving party by applicable law or legal process, provided that the
receiving party shall immediately notify the other party so that it
can take steps to prevent its disclosure.
10.3 Remedies for Breach. In the event of a breach of this Article 10, the
parties agree that the non-breaching party may suffer irreparable
harm and the total amount of monetary damages for any injury to the
non-breaching party may be impossible to calculate and would
therefore be an inadequate remedy. Accordingly, the parties agree
that the non-breaching party may be entitled to temporary,
preliminary and permanent injunctive relief against the breaching
party, its officers or employees, in addition to such other rights
and remedies to which it may be entitled at law or in equity.
11. WARRANTIES.
11.1 Business Partner Warranties.
11.1.1 Warranties of Authority and Title. Business Partner hereby
warrants and represents that (i) it is a corporation duly
organized, validly existing and in good standing under the
laws of the state in which it was organized and has full power
and authority to enter into and consummate the transactions
contemplated in this Agreement; (ii) the execution, delivery
and performance of this Agreement does not violate the terms
of any security agreement, license, or any other contract or
written instrument to which Business Partner is bound; (iii)
the BP Software does not infringe any patent, trademark,
copyright or trade secret of a third party; and (iv) it is not
aware of any third party infringing on the rights of Business
Partner with respect to the BP Software.
Page 10
11.1.2 Product Warranties. Business Partner hereby warrants and
represents that BP Software, including all modifications,
Corrections, Enhancements and New Releases will have the
functions and features and perform as described in the
Documentation and other marketing material provided to HBOC or
to HBOC Customers by Business Partner during the term of this
Agreement. Business Partner further warrants that prior to
delivery, the BP Software have been audited and tested in
accordance with Business Partner's internal quality control
processes and to the best of Business Partner knowledge will
be free from any virus, worm, trap door, back door, timer,
clock, counter or other limiting routine, instruction or
design that would erase data or programming or otherwise cause
the BP Software or HBOC Software to become inoperable or
incapable of being used in accordance with its documentation,
and that the BP Software contains no third party software
which would require HBOC to agree to any terms and conditions
in addition to those set forth in this Agreement. In the event
that the BP Software fails to conform to such warranties,
Business Partner shall promptly and continuously provide such
software support as necessary to cause the BP Software to
perform as warranted. Business Partner warrants that the BP
Software, to the best of Business Partner's knowledge, shall
meet all Federal, state and local laws regulations and
policies.
11.1.3 Pass-Through Warranty. HBOC may assign to HBOC Customers to
whom it has granted Sublicenses, its rights in, to and under
the warranties and infringement indemnification set forth in
this Article 11, and upon such assignment, such HBOC Customers
shall have the benefit of the warranties and be subject to the
limitations thereon.
11.1.4 Disclaimer of Warranty.
11.1.5 Business Partner makes no warranties of medical information or
representations, not withstanding section 11.1.2, except as
set forth in Business Partner's limited warranty which is
included with the Business Partner Software and related
End-User documentation in Exhibit K.
11.1.6 BP does not warrant the output of the BP product to meet the
standards or requirements which may be applicable to any
End-User. Except as herein provided, BP does not make or give
any representation or warranty with respect to the usefulness
or the efficiency of the BP product, it being understood that
the degree of success with which equipment, software programs
and materials can be applied to data processing is dependent
upon many factors, many of which are not under BP's control.
11.1.7 HBOC and HBOC Customers shall not make any warranty,
guarantee, or representations, express or implied, greater in
scope or duration than that set forth in this Section 11.
11.1.8 EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 11 OR OTHERWISE
UNDER THIS AGREEMENT, BUSINESS PARTNER DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM,
INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
Page 11
11.2 HBOC Warranties.
11.2.1 Warranties of Authority. HBOC hereby warrants and represents
that (i) it is a corporation duly organized, validly existing
and in good standing under the laws of the state in which it
was organized and has full power and authority to enter into
and consummate the transactions contemplated in this
Agreement; and (ii) the execution and performance of this
Agreement does not violate the terms of any security
agreement, license, or any other contract or written
instrument and that it possesses or will possess, prior to
granting the first Sublicense, the appropriate licenses and
agreements with third parties necessary for the development
and distribution of the BP Software.
11.2.2 HBOC Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION
11.2 OR OTHERWISE UNDER THIS AGREEMENT (OR ANY OTHER AGREEMENT
BETWEEN THE PARTIES) HBOC DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
12. INTELLECTUAL PROPERTY INDEMNIFICATION.
Business Partner shall indemnify, defend and hold harmless HBOC, its
Affiliates and Distributors, and HBOC Customers and their officers,
directors, employees agents and affiliates (collectively, for
purposes of this Section 12, "HBOC Persons") from all damages,
liabilities and expenses (and all legal costs including attorneys'
fees, court costs, expenses and settlements resulting from any action
or claim) arising out of, connected with or resulting in any way
from: (i) any allegation that the possession, distribution or use (by
HBOC, its Affiliates, Distributors or HBOC Customers) of BP Software
infringes a patent, trademark, copyright, trade secret or other
intellectual property right of a third party and (ii) the performance
or use of BP Software (by HBOC, its Affiliates, Distributors or HBOC
Customers). If any such claim or proceeding arises, HBOC Persons
seeking indemnification hereunder shall give timely notice of the
claim to Business Partner after it receives actual notice of the
existence of the claim. Business Partner shall have the option, at
its expense, to employ counsel reasonably acceptable to HBOC Persons
to defend against such claim and to compromise, settle or otherwise
dispose of the claim; provided, however, that no compromise or
settlement of any claim admitting liability of or imposing any
obligations upon HBOC Persons may be affected without the prior
written consent of HBOC Persons. In addition, and at the option and
expense of Business Partner, Business Partner may, at any time after
any such claim has been asserted, and shall, in the event any BP
Software is held to constitute an infringement, either procure for
HBOC Persons the right to continue using that the BP Software, or
replace or modify the BP Software so that it becomes non-infringing,
provided that such replacement or modified BP Software has the same
functional characteristics as the infringing BP Software, or, if the
prior two remedies are commercially impractical, refund to HBOC all
fees, costs, and charges paid by HBOC to Business Partner for that BP
Software and any other BP Software reasonably rendered ineffective as
the result of said infringement. HBOC shall cooperate fully in such
actions, making available books or records reasonably necessary for
the defense of such claim. If Business Partner refuses to defend or
does not make known to HBOC Persons its willingness to defend against
such claim within ten (10) days after it receives notice thereof,
then HBOC Persons shall be free to investigate, defend, compromise,
settle or otherwise dispose of such claim in its best interest and
incur other costs in connection therewith, all at the expense of
Business Partner.
Page 12
13. LIMITATION OF LIABILITY.
13.1. Exclusion of Consequential Damages. NEITHER PARTY WILL BE LIABLE TO
THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, WHETHER
FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF THE OTHER PARTY OR
ITS CLIENTS OR CUSTOMERS (INCLUDING WITHOUT LIMITATION CLAIMS FOR
GOODWILL, LOST PROFITS OR USE OF MONEY) ARISING OUT OF BREACH OF
EXPRESS OR IMPLIED WARRANTIES, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT, EXCEPT ONLY IN THE CASE OF PERSONAL
INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH
LIABILITY; PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL
IMPAIR OR LIMIT BUSINESS PARTNER'S INDEMNIFICATION OBLIGATIONS UNDER
SECTION 12.
13.2. Limitation of HBOC's Obligations. HBOC reserves the right to withhold
service or otherwise cease performance of its development, marketing,
maintenance and support obligations hereunder with respect to any
HBOC Customer which is found by HBOC to be in default or breach of
any agreement with HBOC. Upon such cessation of services, HBOC shall
be relieved of its performance obligations contained in this
Agreement with respect to such HBOC Customer, and shall not be found
to be in breach of this Agreement by Business Partner. HBOC's
aggregate liability to Business Partner for damages concerning
performance or nonperformance by HBOC or in any way related to the
subject matter of this Agreement, regardless of whether the claim for
such damages is based on contract or tort, shall not exceed the
amount received by Business Partner from HBOC during the previous
twelve months for the BP Software giving rise to such claim.
14. TERMINATION; DISPUTE RESOLUTION.
14.1 Early Termination. Either party may terminate this Agreement
immediately by notice to the other party upon the occurrence of any
of the following events of default by the other party:
(i) The other party fails to observe, perform or fulfill any of
its obligations or warranties (other than confidentiality
obligations) under the Agreement and fails to cure such
default within thirty (30) days after the non-defaulting party
gives notice of such failure;
(ii) The other party fails to observe, perform or fulfill any
confidentiality obligation imposed hereunder and fails to cure
such default within ten (10) days after the non-defaulting
party gives notice of such failure;
(iii) The other party's business is liquidated, dissolved or
suspended;
(iv) The other party is prevented from performing any of its
material obligations hereunder for more than ninety (90) days
due to an event beyond its reasonable control as described in
Section xx; or
(v) Any representation or warranty made herein by the other party
is false or misleading in any material respect as of the date
on which it was made or becomes false or misleading in any
material respect at any time thereafter.
14.2 Termination by HBOC. HBOC may, in its reasonable discretion,
terminate this Agreement immediately by providing notice to Business
Partner upon the occurrence of a change in the direct or indirect
ownership (excluding any public financing) or control of Business
Partner which in HBOC's opinion may adversely affect HBOC's rights,
goodwill, HBOC Customer relationships or competitive position.
Page 13
14.3 Obligations After Expiration or Termination. Upon the expiration or
termination of this Agreement for any reason:
(i) Except as otherwise specified below in clause (ii), each party
will promptly cease using and destroy or return to the other
party all advertisements and promotional materials that bear a
trademark of the other party and all Proprietary Information
of such other party.
(ii) HBOC may retain the BP Software and other Proprietary
Information provided by Business Partner during the term of
this Agreement solely for the purpose of performing the
functions permitted under this Agreement as necessary to
fulfill the provisions of Sublicense Agreements existing on
the date of expiration or termination until such time as the
last Sublicense Agreement expires or terminates.
(iii) Business Partner shall continue to perform all applicable
warranty and technical support and other obligations regarding
that BP Software in accordance with the provisions of this
Agreement for the fees negotiated in this Agreement as
necessary to enable HBOC to fulfill the provisions of
Sublicense Agreements existing on the date of expiration or
termination of this Agreement until such time as the last
Sublicense Agreement expires or terminates.
(iv) HBOC Customers may continue to use the BP Software provided to
them pursuant to this Agreement, so long as such HBOC
Customers have in effect a Sublicense Agreement on the
effective date of expiration or termination of this Agreement.
(v) HBOC agrees to pay all outstanding commitments associated with
any outstanding sublicense agreements.
14.4 Survival. The provisions of the Agreement which by their nature are
intended to survive termination or expiration of this Agreement shall
survive expiration or termination of this Agreement.
14.5 Dispute Resolution. In the event of a dispute between the parties and
for which dispute the parties are unable to reach a mutually agreeable
resolution, the dispute shall be submitted to arbitration under the
commercial arbitration rules of the American Arbitration Association
then in effect. There shall be one arbitrator mutually agreed to by
both parties; such arbitrator shall have experience in the area of
controversy. After the hearing, the arbitrator shall decide the
controversy and render a written decision setting forth the issues
adjudicated, the resolution thereof and the reasons for the award. The
award of the arbitrator shall be conclusive. Payment of the expenses
of arbitration, including the fee of the arbitrator, shall be assessed
by the arbitrator based on the extent to which each party prevails.
15. MISCELLANEOUS PROVISIONS.
15.1 Independent Contractors. It is expressly agreed that Business Partner
and HBOC are acting under this Agreement as independent contractors,
and the relationship established under this Agreement shall not be
construed as a partnership, joint venture or other form of joint
enterprise, nor shall one party be considered an agent of the other.
Neither party is authorized to make any representations or create any
obligation or liability, expressed or implied, on behalf of the other
party, except as may be expressly provided for in this Agreement.
15.2 Non-Exclusive. HBOC reserve the right to enter into similar
agreements with third parties for the purpose of marketing and
distributing their respective products which are the subject of this
Agreement or any other products providing the same or similar
functions.
Page 14
15.3 Access to Books and Records. The parties shall keep complete,
accurate, and up-to-date books and records in accordance with
generally accepted accounting principles and sound business practices
covering all transactions relating to this Agreement. Either party
and/or its authorized representatives shall upon reasonable notice
have the right (not more than once annually) to inspect, audit,
and/or copy such records in order to determine whether all provisions
of this Agreement have been met. The parties agree that all
information and records obtained in such audit shall be considered
Proprietary Information. This right to audit shall be available to
either party for up to two (2) years following the termination of
this Agreement.
15.4 Omnibus Reconciliation Act of 1980. If the provisions of Section 952
of the Omnibus Reconciliation Act of 1980, as amended (currently
codified at 42 U.S.C. 1395x(v)1(I)), are or become applicable to this
Agreement, then, until the expiration of four (4) years after the
furnishing of services pursuant to this Agreement, Business Partner
shall, upon written request, make available to the Secretary of
Health and Human Services, the U. S. Comptroller General, or any
other duly authorized representative of the federal government, the
contracts and books, documents and records of Business Partner that
are necessary to certify the nature and extent of costs related to
this Agreement.
15.5 Compliance with Laws. Business Partner, its employees and agents
shall comply with applicable federal, state and local laws,
ordinances, regulations and codes, including the identification and
procurement of required permits, certificates, approvals and
inspections, in the performance of this Agreement.
15.6 Export Assurance. HBOC hereby acknowledges and agrees that it will
first obtain any export license or approval required by the United
States Department of Commerce pursuant to Section 370 of the Export
Administrative Regulation prior to exporting the BP Software.
15.7 Headings. The headings of the paragraphs of this Agreement are for
convenience only and shall not be a part of or affect the meaning or
interpretation of this Agreement.
15.8 Exhibits. This Agreement incorporates the attached Exhibits X, X, X,
X, X, X, X, X, X, X and K and any subsequent Exhibits or schedules
referencing this Agreement, which are signed by both parties.
15.9 Non-Solicitation of Employees. During the term of this Agreement and
for a period of one (1) year thereafter, each party agrees that
without the other party's prior written consent neither it nor its
Affiliates shall solicit, hire or otherwise retain as an employee or
independent contractor any person who during the previous twelve (12)
months was an employee of the other party.
15.10 Assignment. This Agreement and any interest hereunder shall inure to
the benefit of and be binding upon the parties and their respective
successors, legal representatives and permitted assigns. Upon prior
notice to the other party, either party may assign this Agreement:
(i) to any legal entity in connection with the merger or
consolidation of the assigning Party into such entity or the sale of
all or substantially all of the assets of the assigning Party to such
entity or (ii) to any direct or indirect subsidiary of the assigning
party in connection with any corporate reorganization. Except as
stated in the previous sentence, neither party may assign or delegate
this Agreement without the other party's prior written consent, which
consent shall not be unreasonably withheld. Any attempt to assign,
delegate or otherwise transfer the Agreement in violation of this
Section 15.11 is voidable by the other party.
15.11 BP Software Functionality. Business Partner has the right to modify
its services in response to market and customer needs. Business
Partner can make these modifications as long as the changes are
greater than or equal to the current service level and does not
materially change from the present BP software functionality.
Page 15
15.12 Payment of mutual clients. It is agreed by the parties that Business
Partner will pay HBOC a percentage of Business Partner's revenue for
sales made to the mutual clients Scottsdale Memorial Health Systems
and DC Ranch, to which, HBOC and Business Partner both marketed the
BP Software prior to the signing of this Agreement. HBOC will receive
28% of the sublicenses and the total dollars for the Website Fees.
The sales made to the mutual clients Scottsdale Memorial Health
Systems and DC Ranch, will apply toward the Cumulative Sublicenses in
Exhibit C and toward the Sublicense Royalties plus Renewal Targets in
Exhibit D for the purposes of calculating discounts on future
sublicenses and achieving the Exclusivity targets.
15.13 Business Partner Advertising. HBOC and Business Partner will mutually
agree upon terms and conditions under which advertisements can be
sold by Business Partner, HBOC and HBOC's Customers for display
within the Business Partner Software sublicensed to HBOC Customers.
15.14 Disaster Recovery Plan. Business Partner agrees to put together a
disaster recovery plan for submission and approval by HBOC within six
(6) months after execution of this contract.
15.15 Force Majeure. Neither party shall be responsible or considered in
breach of this Agreement for any delay or failure in the performance
of any obligation of this Agreement to the extent that such failure
or delay is caused by acts of God, fires, explosions, labor disputes,
accidents, civil disturbances, material shortages or other similar
causes beyond its reasonable control, even if such delay or failure
is foreseeable. Provided, however, that the non-performing party
provides notice of such cause preventing or delaying performance and
resumes its performance as soon as practicable and provided further
that the other party may terminate this Agreement upon notice if such
non-performance continues for a period of ninety (90) days.
15.16 Governing Law; Statute of Limitations. The validity and construction
of this Agreement shall be governed by, subject to and construed in
accordance with the laws of the state of Georgia, excluding its
conflicts of law rules. In the event either party employs attorneys
to enforce any right arising out of or relating to this Agreement,
the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs. Any claim arising out of or relating to
this Agreement shall be commenced within one year of the date upon
which the cause of action accrued (or, if one year is shorter than
the minimum allowed by law, then the minimum period allowed by law).
15.17 Notices. All notices, requests, demands and other communications
(collectively, "Notices") required or permitted by this Agreement
shall be in writing and shall be delivered by hand, telex, telegraph,
facsimile or like method of transmission or mailed by registered or
certified mail, return receipt requested, first class postage
prepaid, addressed as follows:
A. If to HBOC:
HBO & Company of Georgia
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: General Counsel
FAX: 404/000-0000
with a copy to: Vice President, Business Partner Solutions Group
B. If to Business Partner:
HealthDesk(TM) Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X'Xxxxxxx
FAX:510/000-0000
with a copy to: Xxx Xxxxxxxx, Chief Financial Officer
Page 16
If delivered by hand, telex, telegraph, facsimile or like method of
transmission, the date on which a Notice is actually delivered shall
be deemed the date of receipt and if delivered by mail, the date on
which a Notice is actually received shall be deemed the date of
receipt. Either party may change the address or designated person for
receiving Notices by providing notice in accordance with this Section
15.17.
15.18 Severability. If any term of this Agreement is held as invalid or
unenforceable, the remainder of this Agreement shall not be affected,
and each term and provision shall be valid and enforced to the
fullest extent permitted by law.
15.19 Entire Agreement/Amendments. This Agreement, including all Exhibits
attached hereto, contains the entire agreement between the parties
and supersedes all prior and contemporaneous proposals, discussions
and writings by and between the parties and relating to the subject
matter hereof. None of the terms of this Agreement shall be deemed to
be waived by either party or amended or supplemented unless such
waiver, amendment or supplement is written and signed by both
parties. The invalidity or unenforceability of any particular
provision of this Agreement, as determined by any court of competent
jurisdiction or any appropriate legislature, shall not affect the
other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision had been
omitted. No usage of trade or industry course of dealing shall be
relevant to explain or supplement any term expressed in this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
HBO & Company of Georgia HealthDesk(TM) Corporation
Signature____________________________ Signature______________________________
By:__________________________________ By:____________________________________
Title:_______________________________ Title:_________________________________
Date:________________________________ Date:__________________________________
Page 17
EXHIBIT A
BP SOFTWARE
HealthDesk OnLine(TM)
Health Desk OnLine(TM) delivers the tools and expertise that consumers need to
take a more active role in general health management. With HealthDesk's record
keeping facilities, users can keep track of diet and exercise, personal and
family health history, medications as well as take advantage of the available
online health resources. As users manage personal data in HealthDesk OnLine,
they can also take advantage of links to wide-ranging health education topics.
HealthDesk OnLine simplifies, organizes and improves health management.
HealthDesk OnLine(TM) for Diabetes
HealthDesk OnLine for Diabetes is a groundbreaking Windows application that
delivers the tools and expertise that consumers need to take a more active role
in diabetes management. With HealthDesk's medical record keeping facilities,
patients can keep close tabs on doctor visits, glucose readings, diet and
exercise, health history and more. Using the power of the Internet, HealthDesk
helps patients to easily log and graph progress and communicate more effectively
and efficiently with physicians and other healthcare providers. As patients
manage personal data in HealthDesk, they can also take advantage of links to
wide-ranging health education topics. HealthDesk OnLIne for Diabetes simplifies,
organizes and improves diabetes management.
Page 18
EXHIBIT B
BUSINESS PARTNER LIST PRICES
HealthDesk(TM) Online **** Annual Retail Price
(HealthDesk Online Diabetes will be
included at no additional charge
until December 31, 1997)
HealthDesk(TM) Online for Diabetes ****
************ ****
************ ****
Page 19
EXHIBIT C
---------
ROYALTIES
Cumulative HBOC
Sublicenses Discount
---------------------------------------------
**** - **** ****
**** - **** ****
**** - **** ****
**** - **** ****
**** - **** ****
Every sublicense renewal will count as a new sublicense and will accrue toward
the Cumulative total for the purposes of this discount structure.
Maintenance: The following is the standard maintenance fee, however, in the
event, a non-standard request or need arises, which could materially affect
Business Partner's costs, HBOC and Business Partner in good faith will endeavor
to negotiate a mutually agreeable maintenance fee. HBOC will pay Business
Partner annual maintenance and support fees for each HBOC Customer with active
End Users as follows:
Standard Maintenance Fee Schedule
# of Active End Users Annual Maint/Support Fee
< 1000 ****
1000 - 1999 ****
2000 - 2999 ****
3000 - 3999 ****
4000 - 4999 ****
5000 - 5999 ****
6000 - 6999 ****
7000 - 7999 ****
8000 - 8999 ****
9000 - 9999 ****
10,000 - 10,999 ****
11,000 - 11,999 ****
12,000 - 12,999 ****
13,000 - 13,999 ****
14,000 -14,999 ****
15,000 - up ****
Page 20
EXHIBIT D
---------
EXCLUSIVITY
Business Partner will not market the BP Software to the competitors of HBOC,
including but not limited to:
****
****
****
****
****
****
****
****
****
Health Information Technology companies whose primary markets are integrated
health systems or Manage Care Organizations
The above list will be reviewed and updated on a quarterly basis by Business
Partner and HBOC.
In the event that Business Partner feels that there might be a potential
conflict Business Partner will contact the HBOC Business Partner Solution Group
Representative for review and approval.
The following are the quarterly cumulative revenue targets required of HBOC to
maintain the exclusivity:
Quarters Cumulative Sublicense Royalties and
Renewal Revenue Targets
1997
Fourth quarter 1997 ****
1998
First quarter 1998 ****
Second quarter 1998 ****
Third quarter 1998 ****
Fourth quarter 1998 ****
1999
First quarter 1999 ****
Second quarter 1999 ****
Third quarter 1999 ****
Fourth quarter 1999 ****
2000
First quarter 2000 ****
Second quarter 2000 ****
Third quarter 2000 ***
Page 21
EXHIBIT E
---------
REQUIRED SUBLICENSE TERMS
The provisions of HBOC's form of Information Systems Agreement in use in the
country in which the BP Software will be licensed shall be used by HBOC or its
Affiliates or distributors. Those provisions protecting HBOC's proprietary
rights shall not be modified in any way more adverse to Business Partner's
Software specifically than the same provisions applicable to HBOC Software.
Page 22
EXHIBIT F
---------
TERRITORY
Worldwide
Page 23
EXHIBIT G
---------
TRADEMARK/LOGO REQUIREMENTS
Page 24
EXHIBIT H
---------
SOFTWARE SUPPORT AND ESCALATION PROCEDURES
For HBOC Customers operating standalone sublicenses fo the BP Software:
A software product problem report will be classified as a product "defect" when
the following conditions are met:
1. The problem can be reproduced by HealthDesk staff.
2. The problem is determined by HealthDesk to reside within the
application software produced by HealthDesk. 3. The problem
exists in the most recently released version of the product or
module.
4. The problem is of a nature that impairs customer data integrity
and/or severely limits the effectiveness of key product
features.
5. No suitable workaround procedure can alleviate the problem's
effect.
Defects will be immediately escalated from the customer support manager to the
product manager and the software development manager. There, the determination
will be made as to whether a resolution of the defect is to be provided as:
1. a component of a product version upgrade;
2. a component of a product release upgrade, or;
3. a software patch specific to the defect.
HealthDesk's service level definition for defect resolution is to remain
consistent with industry standards for response to problems of this nature in
mass market, consumer software products.
The service level statement is that HealthDesk will supply a resolution for 90
percent of such problems within 24 hours and the remainder within 3 days.
In the event that BP Software is integrated with any HBOC's Software, Business
Partner will follow the following Support and Escalation Procedures:
Business Partner shall perform all technical support for HBOC Sublicensees of
the BP Software. Business Partner shall provide its best efforts to resolve all
support requests within the following guidelines:
Priority 1 (System Down) - where the system is defined as any one of HBOC=s
software systems, and that system has been rendered inoperable due to problems
or suspected problems with the BP Software. Business Partner shall respond to
the HBOC Customer immediately to begin problem resolution and shall assist HBOC
Customer in resolving the problem within twenty-four (24) hours.
Priority 2 (Application Down) - where the application is defined as a subsystem
(e.g. Accounts Payable, Medical Records, etc.) within HBOC=s total system, and
that application or a portion of that application has been rendered inoperable
due to problems or suspected problems with the BP Software. Business Partner
shall respond to HBOC Customer immediately to begin problem resolution and shall
assist HBOC Customer in resolving the problem within forty-eight (48) hours.
Priority 3 (All Others) - where other problems or defects in the BP Software
that do not constitute a higher severity level are encountered. In these cases
Business Partner shall respond to HBOC Customer within two (2) hours to begin
problem resolution, which is expected to be completed within seven (7) business
days.
Page 25
EXHIBIT I
CUSTOMIZATIONS
A. Standard Customizations for customers - No Cost
- On-line home screen for logos and narratives. A standard modification
customization.
- E-mail home screen - A standard template will also be provided.
- Hot link(URL) back to the HBOC Customer's website
B. Other Customizations - ****
This is any other customization other than what is explained in A. above,
which will be billed at ****.
C. HBOC customer defined content - ****
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EXHIBIT J
HBOC BUSINESS PARTNER LOGO USAGE POLICY
Components. The HBOC Authorized Business Partner logo is a single item.
Individual parts should not be used separately.
Usage. The HBOC Authorized Business Partner logo can be used in a number
of ways. Suggestions include placing the logo on business cards, fact
sheets, sales collateral, trade show booths, slide presentations,
letterhead, shirts, jackets, etc.
Size. The logo should be reproduced in a size proportionate to
surrounding elements. It should never be reproduced so small as to be
illegible.
Availability. The logo can be reproduced directly from the stat sheets.
Additional stat sheets can be obtained from the Business Partner
Solutions Group.
Authorization. You are permitted to use the HBOC Authorized Business
Partner logo as long as a valid Business Partner agreement is in place
with HBOC. All documents or other materials utilizing the HBOC logo must
be submitted to HBOC for approval prior to publication/usage. If for any
reason the Business Partner agreement between our companies is
terminated you must stop all usage of the logo. Any preprinted material
using the logo and all stat sheets must be returned to HBOC or certified
by you as having been destroyed.
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EXHIBIT K
BUSINESS PARTNER SOFTWARE LICENSE AGREEMENT
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