MEDPLUS, INC.
OPTIMAXX AND STEP2000 SOFTWARE
LICENSE, HARDWARE PURCHASE AND
RELATED SERVICES AGREEMENT
Agreement No. Q983001
This Agreement is made effective as of August 31, 1998 ("Effective
Date") by and between MedPlus, Inc. (hereinafter "MedPlus"), an
Ohio corporation with its principal place of business located at
0000 Xxxxxxxx'x Xxxx Xxxxx, Xxx. 000, Xxxxxxxxxx, Xxxx 00000 and
Quest Diagnostics Incorporated (hereinafter "Quest Diagnostics"),
a Delaware corporation with its principal place of business
located at Xxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, MedPlus directly licenses certain software, Enhancements
(as defined below), releases and updates thereto and provides
certain hardware and services related thereto (the "OptiMaxx
System"); and
WHEREAS, MedPlus sublicenses certain document management and
workflow software and Enhancements (as defined below), releases
and updates thereto ("Step2000") licensed to MedPlus by its
wholly-owned subsidiary Universal Document Management Systems,
Inc. ("UDMS") and provides application building, interfacing and
software customization through a subcontract with UDMS (the "UDMS
Services"); and
WHEREAS, MedPlus provides certain document management analysis and
related consulting services (the "Consulting Services") through a
subcontract with its wholly-owned subsidiary FutureCORE, Inc.
("FutureCORE"); and
WHEREAS, Quest Diagnostics desires to license the software and
purchase the hardware associated with the OptiMaxx System, license
Step2000, and purchase the UDMS Services and the Consulting
Services for use in at least two of its laboratory sites located
in the United States (all of such sites referred to as the
"Sites") and desires to have the option to license the software
and purchase the hardware associated with the OptiMaxx System,
license Step2000, and purchase the UDMS Services and the
Consulting Services from MedPlus for use at the remainder of its
Sites (and/or by other Quest Diagnostics Affiliates, as the case
may be), and MedPlus desires to provide Quest Diagnostics with
such products and services; and
WHEREAS, the needs of Quest Diagnostics related to the OptiMaxx
System, Step2000, the UDMS Services and the Consulting Services,
including but not limited to pricing, configuration specifications
and analysis parameters, may vary from Site to Site (the "Site
Specifics"); and
WHEREAS, for each Site at which Quest Diagnostics desires to use
the OptiMaxx System, Step2000, the UDMS Services and/or the
Consulting Services, the parties will execute a Site Technical
Specification and Pricing Approval Form to which various schedules
indicating such Site Specifics will be attached (the "Site
Approval Forms")(an example of a Site Approval Form and related
schedules is attached as Exhibit A to this Agreement); and
WHEREAS, the parties desire to formalize the general terms and
conditions governing each Site Approval Form and pursuant to which
MedPlus will provide Quest Diagnostics with access to the OptiMaxx
System, Step2000, the UDMS Services and the Consulting Services
for use at each of the Sites; and
WHEREAS, in exchange for the consideration described herein and
more specifically on Schedule A to each Site Approval Form, for
all of the Sites, MedPlus agrees to (1) license the Software (as
defined below) to Quest Diagnostics for Quest Diagnostics' own
uses on a non-transferable and non-exclusive basis, (2) sell to
Quest Diagnostics the Hardware (as defined below), (3) provide to
Quest Diagnostics service and support with respect to the Software
and the Hardware and (4) provide to Quest Diagnostics the UDMS
Services and the Consulting Services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties agree
as follows:
A. GENERAL DEFINITIONS
The following terms shall be defined herein as follows:
1. "Computer System(s)" means the computer hardware configuration
at each Site on which Quest Diagnostics has elected to install
and/or execute the Software from time to time, provided that such
hardware configuration has a central processing unit that is
capable of running the Software and is an authorized hardware
configuration that is supported by MedPlus. A Computer System
includes any Hardware (as defined below and as further specified
on Schedule B to each Site Approval Form) purchased by Quest
Diagnostics.
2. "Concurrent User" means a single user accessing or logged on to
the Software at any one time regardless of the Computer System
being used. The number of Concurrent Users at each Site shall be
stipulated on the Software Configuration attached as Schedule C to
each Site Approval Form.
3. "Consulting Services" means the consulting services to be
provided by FutureCORE as more specifically described in and in
accordance with the terms of Addendum 1 hereto.
4. "Documentation" means documentation relating to or describing
the Software including, but not limited to, user manuals now or
hereafter provided by MedPlus or by third parties through MedPlus.
5. "Hardware" means the equipment, including the operating system
embedded therein, to be purchased by Quest Diagnostics from
MedPlus for use with the Software, as more specifically described
on Schedule B to each Site Approval Form.
6. "Illicit Code" means any computer instructions commonly known
as computer viruses, anomalies or any other computer instructions
which interfere with or prevent Quest Diagnostics from using the
Software as contemplated by this Agreement, but does not include
errors or bugs in the Software.
7. "Quest Diagnostics Affiliates" shall include all of Quest
Diagnostics' affiliates, subsidiaries, joint venture entities in
which Quest Diagnostics is a partner and parent entities.
8. "Software" means the executable code of the OptiMaxx System
software and of Step2000 described on Exhibit A(8) hereto and as
more specifically described on Schedule C to each Site Approval
Form.
9. "Software Specifications" means the specifications described in
MedPlus' written response to Quest Diagnostics' Request for
Proposal as supplemented and clarified by Exhibit A(8) hereto.
10. "UDMS Services" means application building, interfacing and
software customization provided by UDMS as more specifically
described in and in accordance with the terms of Addendum 2
hereto.
B. SOFTWARE LICENSE TERMS AND CONDITIONS
1. Software License Grant. MedPlus hereby furnishes to Quest
Diagnostics the Software and Documentation under a perpetual, non-
exclusive and, except to Quest Diagnostics Affiliates or as
otherwise provided herein, non-transferable license. The Software
and the Documentation are furnished solely for Quest Diagnostics'
own use on the designated Computer System(s) on which the Software
is installed or such other designated Computer System(s) on which
the Software is subsequently installed from time to time at
various Sites in accordance with the terms of this Agreement.
2. Use of the Software.
2.1 Installation/Configuration/Implementation. MedPlus shall
provide installation, configuration and implementation services
with respect to the Software as described on Exhibit B(2) hereto
and more specifically in the schedules to each Site Approval Form.
2.2 Computer System(s). The Software may only be accessed on
the Computer System located at each Site. If Quest Diagnostics is
unable to operate the Software on a Computer System at a
particular Site due to equipment malfunction, the Software may be
transferred temporarily to another Computer System at such Site
during the period of equipment malfunction. However, in no event
may the Software be reverse compiled, disassembled or otherwise
reverse engineered.
2.3 Concurrent Users. The Software may only be accessed on a
Site's Computer System by the specific number of Concurrent User
licenses purchased by Quest Diagnostics for that Site. Upon Quest
Diagnostics' request, and following an amendment to the Software
Configuration for the particular Site, the number of Concurrent
User licenses may be increased for that Site at a cost based on
MedPlus' then-current license fees.
3. Enhancements. During the period(s) that Quest Diagnostics is a
party to a Service and Support Agreement with MedPlus, MedPlus
shall distribute to Quest Diagnostics, at no charge, those
Enhancements to the specific Applications included in the Software
which are released by MedPlus and/or UDMS, as the case may be, for
general commercial availability to other similar licensees.
("Applications" are collections of related features and/or
functions integrated into executable programs which are accessible
from the OptiMaxx System main menu). Specifically, "Enhancements"
to the Software consist of new or added features or functionality
to existing Applications of the Software, but do not include (a)
entirely new Applications or (b) customization or other services
included in the UDMS Services. Quest Diagnostics shall have a
perpetual license hereunder to any and all Enhancements custom-
designed for Quest Diagnostics by MedPlus at MedPlus' then-current
fees, provided that all proprietary rights in such Enhancements
shall remain in MedPlus. MedPlus shall provide installation and
implementation or training with respect to Upgrades and/or
Enhancements as indicated on the Service and Support Agreement
attached as Exhibit D. If any additional Hardware, additional
third-party software or hardware or third-party software updates
to the Computer System are necessary for Quest Diagnostics to gain
the full benefit of an Enhancement, and such Enhancement is
required to provide functionality warranted by MedPlus, the cost
of such additional hardware and/or software shall be borne solely
by MedPlus. MedPlus shall not be responsible for the cost of any
other additional hardware, additional third-party software or
hardware or third-party software updates to the Computer System,
including but not limited to those which are required to complete
any customization requested by Quest Diagnostics or by an increase
in the number of Concurrent Users by Quest Diagnostics.
4. Software License Fee. The Software license fee for each Site
shall be based on the number of Concurrent Users stipulated in the
Software Configuration attached as Schedule C to the Site Approval
Form for that Site and shall be calculated as described in Exhibit
B(4) hereto.
5. Proprietary Rights in Software and Data.
5.1 Title to and Proprietary Rights in the Software. No title to
or ownership in the Software or Documentation is transferred to
Quest Diagnostics hereby. Title to and all applicable rights in
patents, copyrights and trade secrets in the Software and the
Documentation, including but not limited to the format of screens
and reports associated with the Software, shall remain in MedPlus
or third parties from whom MedPlus has obtained rights to license
the Software or Documentation (which third parties shall be
considered third party beneficiaries of the license agreement
contained herein). Except as may be permitted in writing by
MedPlus, Quest Diagnostics shall not provide, or otherwise make
available, the Software or Documentation or copies thereof to any
third party.
5.2 Copies of Software/Documentation. Quest Diagnostics may make
one copy of the Software for archival purposes and one copy for
back-up purposes. Quest Diagnostics may make additional copies of
the Documentation solely for Quest Diagnostics' internal use. All
copies of the Software and/or Documentation must include MedPlus'
and/or UDMS' copyright notice and other proprietary notices and
legends as indicated thereon and shall be subject to the terms and
conditions of this Agreement.
5.3 Permitted Disclosure. Notwithstanding the above, the
foregoing shall not prohibit (i) disclosure of the Software to any
third party (such as an independent contract programmer) who is
obligated to protect as confidential the Software and MedPlus',
UDMS' or any third party's proprietary rights therein and who is
under written contract to Quest Diagnostics for the purpose of
assisting Quest Diagnostics in the customization, maintenance or
other use of the Software in a manner not prohibited by this
Agreement, or (ii) delivery of copies of the Software to any third
party disaster recovery firm engaged by Quest Diagnostics, in each
case so long as the applicable third party is informed of and
bound by an obligation to use the Software under the terms of this
Agreement.
5.4 Escrow. MedPlus and/or UDMS, as the case may be, shall place
in escrow, and will regularly update, one electronic copy of the
OptiMaxx System software source code and related documentation and
the Step2000 source code and related documentation in accordance
with the Escrow Agreements attached hereto as Exhibits B(5)(a) and
(b) (the "OptiMaxx Escrow Agreement" and the "Step2000 Escrow
Agreement"). MedPlus acknowledges that once Quest Diagnostics has
gained access to either the OptiMaxx System source code or the
Step2000 source code in accordance with either Escrow Agreement,
it can modify the source code, or have a third party modify the
source code on its behalf, to maintain the Software as described
in and in accordance with this Agreement. MedPlus acknowledges
that it cannot terminate either Escrow Agreement without notice to
Quest Diagnostics and without having entered into an escrow
agreement with another escrow agent which will give Quest
Diagnostics substantially similar rights as it has under the
Escrow Agreement being terminated.
6. Term and Termination of Software License.
6.1 Term of License. The term of the license granted hereunder
shall commence upon delivery of the Software by MedPlus to Quest
Diagnostics and shall continue until terminated, as provided
herein, or, as to a particular Computer System, until such time as
Quest Diagnostics discontinues use of the Software on that
particular Computer System. Otherwise, this license shall be
without restriction as to time (the "License Term").
6.2 Termination of License by MedPlus. MedPlus shall have the
right to terminate this license if Quest Diagnostics materially
defaults under these license terms and conditions or breaches the
terms of paragraph B(10) hereof. MedPlus shall give written
notice to Quest Diagnostics of any such breach or default and if
the breach or default is not remedied, or Quest Diagnostics has
not initiated action to cure such breach or default, within 30
days after such notice, the license shall terminate.
6.3 Disposition of Software Upon Termination. Quest Diagnostics
agrees, upon expiration of the License Term, immediately to return
to MedPlus or destroy the Software and Documentation, and copies
thereof, as directed by MedPlus and, if requested by MedPlus, to
certify in writing as to such destruction or return.
7. Software Warranty. The following warranty information is in
addition to any service obligations to be provided by MedPlus
pursuant to the Service and Support Agreement attached as Exhibit
D.
7.1 Right to License. MedPlus represents and warrants to Quest
Diagnostics that MedPlus has, and will throughout the term of this
Agreement have, all right, title and interest in the Software, or
has been granted the right by a third party who has the right,
title and interest in the Software, to license the Software to
Quest Diagnostics in accordance with terms and provisions of this
Agreement free from any lien, claim or encumbrance of any third
party and without violation of any agreements, rights or
obligations existing between MedPlus and any other party.
7.2 Warranty of Performance/Extended Warranty. MedPlus warrants
that (i) for a period of one year from Quest Diagnostics' receipt
of the OptiMaxx System software, and (ii) for a period of thirty
days from Quest Diagnostics' receipt of the Step2000 software,
such software will perform in accordance with the Documentation
and with the Software Specifications ((i) and (ii) collectively
the "Software Warranty"). If the Software does not perform in
accordance with the Software Warranty, then with respect to any
defect or variation as to which MedPlus is notified by Quest
Diagnostics during the applicable warranty period, MedPlus shall,
at its option, either (i) correct such defect or variation so as
to cause the Software to perform in the manner set forth in the
Documentation or the Specifications or (ii) replace the Software
with functionally equivalent software ((i) and (ii) shall be
referred to as "Corrective Actions"). If the defect or variation
(i) causes a broad system failure affecting the overall use of the
OptiMaxx System or problems involving loss of data, and MedPlus
has failed to take Corrective Action within 30 days of its receipt
of written notice of such defect or variation from Quest
Diagnostics, or (ii) affects a material portion of the OptiMaxx
System, but the OptiMaxx System is still usable and there has been
no loss of data, and MedPlus has failed to take Corrective Action
within 180 days of its receipt of written notice of such defect or
variation from Quest Diagnostics, then the license granted
hereunder shall terminate with respect to such Site and Quest
Diagnostics shall receive a repayment of all monies paid to
MedPlus hereunder for Software and services at such Site (and, if
Quest Diagnostics desires to return to MedPlus any Hardware
purchased specifically for use with the OptiMaxx System at such
Site, the monies paid to MedPlus hereunder for the purchase price
of that Hardware). In no event shall MedPlus be required to
refund monies to Quest Diagnostics for a failure or defect in the
Software which is immaterial to the functionality of the OptiMaxx
System unless such failure or defect is not remedied within a
commercially reasonable time. The Software Warranty shall only
apply provided that: (i) the Software has not been modified by
anyone other than MedPlus or someone authorized in writing by
MedPlus; (ii) the Computer System on which the Software has been
installed has not been modified in any way that impairs the
functioning of the Software; (iii) the Software and the Computer
System on which it has been installed have been maintained
according to procedures recommended by the relevant hardware
manufacturer(s) and/or provided to Quest Diagnostics in writing by
MedPlus; and (iv) all fees due MedPlus under this Agreement have
been paid. Notwithstanding anything contained in this paragraph
to the contrary, so long as Quest Diagnostics is a party to a
service and support agreement with MedPlus, the one year and
thirty day warranty periods during which the Software Warranty
applies shall each be extended through the first five years of the
license granted hereunder.
7.3 Illicit Code Warranty. During the License Term, MedPlus will
use commercially reasonable efforts to ensure that the Software is
free from Illicit Code.
THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, WHICH WARRANTIES ARE HEREBY DISCLAIMED,
EXCEPT THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8. Patent and Copyright Indemnification as to Software.
Notwithstanding anything herein to the contrary, MedPlus shall
protect, indemnify, hold harmless and defend any action, suit or
proceeding brought against Quest Diagnostics insofar as it is
based on a claim that the products or services delivered hereunder
infringes any patent, copyright, or any other intellectual
property of a third party ("Infringement"), provided that MedPlus
is promptly notified by Quest Diagnostics of the action and given
full authority, information and assistance (at MedPlus' expense)
for the defense of the action. MedPlus shall pay all damages and
costs awarded therein against Quest Diagnostics, but shall not be
responsible for any compromise made without its written consent.
In the event that the products or services provided by MedPlus
hereunder, or any portions thereof, are held to constitute an
Infringement, MedPlus shall have the obligation to, at its option
and expense, (i) modify the product or service without impairing
in any material respect the functionality or performance thereof
so that it does not constitute and Infringement, (ii) procure for
Quest Diagnostics the right to continue to use the infringing or
violative product or service, or (iii) replace said product or
service with an equally suitable, non-infringing product or
service. If none of the foregoing alternatives is available to
MedPlus, the license granted hereunder shall terminate and Quest
Diagnostics shall receive a repayment of all monies paid to
MedPlus hereunder. In addition, Quest Diagnostics shall have no
obligation to make any additional payments to MedPlus for the
products or services and MedPlus shall accept return of all
products sold or licensed hereunder at its sole expense once Quest
Diagnostics has arranged for the continuation of the functions
performed thereby. MedPlus' commitment hereunder shall not extend
to any infringement or claim thereof which is based upon the
combination of the products or services supplied by MedPlus
hereunder with products or services not supplied by MedPlus.
9. Use of Software. Quest Diagnostics acknowledges and agrees
that the Software is designed merely to assist Quest Diagnostics
and its agents in the performance of their professional activities
and is not intended to replace the professional skill and judgment
of Quest Diagnostics and/or its agents. Quest Diagnostics shall
retain full control over the use of the Software, including input
of information and analysis thereof, and any modifications or
enhancements thereto. Accordingly, except as specifically
described in the exhibits hereto and in the schedules to each Site
Approval Form, Quest Diagnostics agrees to be solely responsible
for Quest Diagnostics' design, repair and configuration of Quest
Diagnostics' equipment, machinery, systems and/or products. Quest
Diagnostics understands the crucial nature of all tape backup
procedures and the importance of maintaining archive discs at an
off-site location.
10. Confidential Information. As used in this Agreement,
"Confidential Information" of either party shall include the
computer programs and other programs/modules and may include
(without limitation) information relevant to computer programs,
documentation, source code, research, research efforts, product
development, product plans and timing, intellectual property,
names and addresses of clients, referring physicians, and patients
or the design, manufacturing, testing, purchasing, accounting,
marketing, merchandising and/or service operations of such party's
business, so long as they are identified by the disclosing party
as confidential. Confidential Information shall also include
patient medical records. In performing services related to this
Agreement, MedPlus may have access to patient medical records (the
"Records"). The Records are Confidential Information and shall
not be copied, revealed or disclosed in any manner to anyone. The
Records are subject to confidentiality laws and requirements
applicable to medical records, and disclosure of any information
in the Records would violate the laws. By soliciting or providing
services or products hereunder, neither party surrenders any claim
to or interest in such Confidential Information, nor does the
other party make or create any claim to them. The confidentiality
obligations in this Agreement shall not extend to any item of
information identified as Confidential Information which is
disclosed or made available by one party (disclosing party) to the
other party and received by that other party (receiving party) and
which:
(a) was in the receiving party's possession before receipt
from the disclosing party;
(b) is or becomes a matter of public knowledge through no fault
of the receiving party;
(c) is rightfully received by the receiving party from a
rightfully possessing third party without a duty of
confidentiality;
(d) is disclosed by the receiving party in accordance with the
disclosing party's prior written approval;
(e) is independently developed by the receiving party without
access to Confidential Information exchanged hereunder, as
provable by competent evidence; or
(f) is provided or disclosed pursuant to applicable laws,
regulations or court order.
The parties acknowledge and agree that all Confidential
Information is confidential and a valuable trade secret which is
and shall remain the sole property of the disclosing party. The
receiving party shall not, during performance under this Agreement
(and thereafter until the information is no longer confidential),
reveal, divulge, copy, make known or disseminate in any manner any
Confidential Information. Each receiving party represents and
warrants that it will treat the received Confidential Information
as it treats its own confidential information and, at a minimum,
will use safeguards one would reasonably use to prevent
unauthorized disclosure of the Confidential Information. The
parties agree to advise all employees, representatives, and/or
contractors performing services for them of the terms of this
paragraph B(10) and shall advise them that they are bound by the
terms hereof. The obligations of the parties pursuant to the terms
of this paragraph B(10) shall be in addition to obligations
described in paragraph B(5) above.
11. Export/Limitations on Dangerous Application. Quest
Diagnostics acknowledges that the Software provided hereunder is
subject to export and import controls. Quest Diagnostics agrees
that any Software licensed hereunder will not be exported,
directly or indirectly, separately or as part of a system, without
Quest Diagnostics, at its own cost, first obtaining all licenses
from any applicable government agency of the United States,
including but not limited to the United States Department of
Commerce and any other appropriate agency of the United States
Government as may be required by law. In addition, Quest
Diagnostics acknowledges that the Software contains software which
on its own is not specifically developed or licensed for use in
any nuclear, aviation, mass transit or medically diagnostic
application or in any other inherently dangerous application and
neither MedPlus nor any third party vendor whose software is
contained in the Software shall be liable for any damages
resulting from such uses.
12. Year 2000 Warranty. MedPlus represents and warrants that the
Software shall be Year 2000 Compliant. "Year 2000 Compliant"
means that performance and functionality is not affected by dates
prior to, during and after January 1, 2000. Specifically, this
means that (a) no value for current dates will cause an
interruption in operation of the Software, (b) date-based
functionality shall behave consistently for dates prior to, during
and after January 1, 2000 in all interfaces and data storage, (c)
the century in any date should be specified explicitly ("CCYY"),
and (d) the year 2000 must be recognized as a leap year.
In the event the Software requires a modification to prevent
MedPlus from being in breach of the foregoing warranty, MedPlus
represents and warrants to Quest Diagnostics that it will
immediately assign senior engineering staff to work continuously
until the Software is returned to the same level of functionality
as warranted herein at no charge to Quest Diagnostics, and without
interruption to the ongoing business of Quest Diagnostics, time
being of the essence.
In the event MedPlus breaches the foregoing warranty, MedPlus
shall defend, indemnify and hold harmless (including reasonable
attorney's fees) Quest Diagnostics, its employees, officers and
directors against all costs, expenses and liability arising from
or in connection with such breach and shall provide Quest
Diagnostics, free of charge, with any new versions and upgrades of
all Software which prevent or correct a breach of warranty. In
addition, a breach of the foregoing warranty will be considered a
"Producer Default" as defined in the OptiMaxx Escrow Agreement or
the Step2000 Escrow Agreement, as the case may be, if MedPlus does
not provide Quest Diagnostics, free of charge, with any such new
versions and upgrades of all Software which prevent or correct a
breach of warranty within thirty days of such breach.
MedPlus' commitment pursuant to this paragraph B(12) shall not
extend to any failure of the Software to be Year 2000 Compliant
which is caused by the combination of the Software with software
not supplied by MedPlus. In the event of such failure, MedPlus
will immediately dedicate resources to work continuously until the
Software is returned to the same level of functionality as existed
prior to the millenium change. The cost of any such resources
shall be borne by Quest Diagnostics.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY WHICH MAY BE
CONTAINED IN THIS AGREEMENT, THERE SHALL BE NO LIMITATION OF
LIABILITY FOR MEDPLUS' BREACH OF THE FOREGOING WARRANTY. The
obligations of this Section shall survive termination of this
Agreement.
Quest Diagnostics may have the Software tested for Year 2000
compliance through Ft. Xxxx Escrow Services, Inc. in accordance
with the Escrow Agreements attached hereto as Exhibits B(5)(a) and
(b).
C. HARDWARE PURCHASE TERMS AND CONDITIONS.
1. Purchase of Hardware. MedPlus agrees to sell to Quest
Diagnostics, and Quest Diagnostics agrees to buy from MedPlus, the
Hardware according to the terms and at the purchase prices
indicated on Exhibit C(1) hereto and as described on Schedule B to
each Site Approval Form.
2. Insurance. Following Quest Diagnostics' receipt of the
Hardware, until MedPlus is paid in full for the Hardware, Quest
Diagnostics shall insure the Hardware against loss or damage by
insurance carriers and/or with types of insurance which are
commercially reasonable.
3. Security Interest. Until MedPlus is paid in full for the
Hardware, Quest Diagnostics hereby grants to MedPlus a purchase
money security interest in the Hardware and all additions,
replacements and proceeds thereof. A copy of this Agreement may
be filed with appropriate state, local or other authorities as a
financing statement in order to perfect MedPlus' security interest
in the Hardware. (At MedPlus' reasonable request, Quest
Diagnostics shall sign UCC financing statements or any other
documentation MedPlus deems reasonably necessary or advisable in
order to perfect its security interest.)
4. Delivery and Installation. Delivery and installation of the
Hardware shall be made in accordance with the following general
provisions subject to the specific terms of Schedule B to each
Site Approval Form.
4.1 Site Preparation. Prior to shipment of the Hardware, Quest
Diagnostics shall prepare the location at which the Hardware is to
be installed at each Site in accordance with installation
specifications provided by MedPlus based on its pre-installation
inspection of the Site and recommendations of third party hardware
manufacturers ("Delivery Specifications") and in accordance with
the Hardware manufacturers' specifications received by Quest
Diagnostics. At Quest Diagnostics' request, MedPlus shall inspect
a Site following its preparation to ensure that the Site meets all
Delivery Specifications ("Follow-Up Inspection"). All time
reasonably expended and expenses reasonably incurred by MedPlus as
a result of such Follow-Up Inspection shall immediately be billed
to and payable by Quest Diagnostics.
4.2 Expense of Delivery and/or Installation. Extraordinary
expenses associated with delivery and/or installation of the
Hardware shall be the responsibility of Quest Diagnostics. For
purposes of this Section C(4.2), "extraordinary expenses" shall
mean those expenses which result from the actions or inactions of
Quest Diagnostics, including but not limited to Quest Diagnostics'
failure to properly prepare a Site for installation, Quest
Diagnostics' failure to correctly advise MedPlus as to physical
parameters of the proposed physical location(s) of the Software
and/or Hardware, or any other similar substantial expense not
included in the prices listed on Schedule B to a Site Approval
Form. Notwithstanding anything contained in this Section C(4) to
the contrary, extraordinary expenses associated with delivery
and/or installation of the Hardware which result solely from
incorrect Delivery Specifications provided by MedPlus shall be the
responsibility of MedPlus.
4.3 Cancellation or Rescheduling of Delivery or Installation. If
Quest Diagnostics desires to reschedule or cancel shipment of the
Hardware or any component thereof, Quest Diagnostics shall
immediately notify MedPlus in writing. If Quest Diagnostics
provides MedPlus with less than 45 days written notice of such
rescheduling or cancellation, then all time reasonably expended
and expenses reasonably incurred by MedPlus as a result of such
rescheduling or cancellation shall immediately be billed to and
payable by Quest Diagnostics, including, but not limited to, any
penalty imposed by the Hardware manufacturer and/or vendor so long
as Quest Diagnostics is given written notification of the expenses
involved at the time of cancellation.
5. Title and Risk of Loss with Respect to Hardware. Title to and
risk of loss with respect to the Hardware shall pass to Quest
Diagnostics on receipt.
6. Hardware Warranty. MedPlus warrants that the Hardware purchased
hereunder shall be Year 2000 Compliant. In addition, MedPlus
shall be responsible for fulfilling all warranties on the
Hardware, if any, made by the Hardware manufacturer(s), to the
extent permitted by the Hardware manufacturer(s). Quest
Diagnostics acknowledges that, except as otherwise provided in
this Agreement, warranties and remedies with respect to the
Hardware are limited to those provided by the Hardware
manufacturer(s) and MedPlus has not made and does not make any
representation or warranty, express or implied, as to the
Hardware. MedPlus' obligation to fulfill any manufacturer's
warranty for the Hardware shall be contingent upon proper use of
the Hardware by Quest Diagnostics and shall apply only if (i) any
proprietary notices have not been removed from the Hardware, (ii)
Quest Diagnostics notifies MedPlus immediately of any problem with
the Hardware and (iii) Quest Diagnostics has paid all amounts owed
MedPlus by Quest Diagnostics.
THE WARRANTIES CONTAINED IN THIS SECTION C ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WHICH WARRANTIES
ARE HEREBY DISCLAIMED, INCLUDING THE WARRANTY OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
7. Additional Hardware. Additional Hardware requested by Quest
Diagnostics for use at a particular Site will be furnished by
MedPlus in accordance with the terms and conditions, including any
increase in support fees, and upon execution, of an Addendum to
Schedule B to the Site Approval Form for such Site. Except as
expressly set forth in any Addendum, such additional Hardware
shall be subject to the terms and conditions of this Agreement.
8. Hardware Operation and Limitation of Liability. Quest
Diagnostics shall be responsible for the operation of the Hardware
and for the accuracy and adequacy of the data input thereto or
data derived therefrom. MedPlus shall be liable for damage to the
Hardware which is caused directly by the actions or inactions of
MedPlus. In no event shall MedPlus be liable for any damages
whatsoever related to Quest Diagnostics' use of the Hardware,
including but not limited to consequential damages and/or damages
related to or resulting from loss of data. Quest Diagnostics
understands the crucial nature of all tape backup procedures and
the importance of maintaining archive discs at an off-site
location.
D. MAINTENANCE AND SUPPORT TERMS AND CONDITIONS
1. Support Services. MedPlus shall provide, and Quest Diagnostics
agrees to accept, maintenance and support services for the
Software and the Hardware as more specifically described in the
Service and Support Agreement attached as Exhibit D hereto.
2. Support Fees. In exchange for the support services to be
provided in accordance with Exhibit D, Quest Diagnostics shall pay
to MedPlus an annual support fee for each Site (the "Annual
Support Fee"). The Annual Support Fee for each Site shall equal
the sum of (a) 16% of the value of the license granted hereunder
(which value shall be equal to the software license fee paid by
Quest Diagnostics for its then-current release of the OptiMaxx
System software and the Step2000 software multiplied by the number
of Concurrent Users of each then licensed to Quest Diagnostics at
such Site) and (b) 16% of the total purchase price of the Hardware
purchased for use at such Site. Notwithstanding anything
contained herein to the contrary, the percentages indicated in
sections (a) and (b) of this paragraph shall be 18% for the first
year of Annual Support at each Site and 17% for the second year of
Annual Support at each Site. MedPlus shall invoice Quest
Diagnostics for the Annual Support Fee for a particular Site once
installation at that Site has been completed by MedPlus and "Sign-
Off" requirements have been met. Each Annual Support Fee will be
calculated based on the twelve month period beginning February 1
and ending January 31 ("Fiscal Year"). As such, the initial
payment for service and support for installations that are
completed during a Fiscal Year shall be prorated accordingly.
E. PRICING AND PAYMENT TERMS AND EXPENSES.
1. General Payment Terms/Milestones. Quest Diagnostics shall pay
all license fees, Hardware costs, configuration, installation,
implementation, project management, training, maintenance,
enhancement and support fees and all other amounts payable
pursuant to this Agreement in accordance with the terms and
conditions described on Exhibit E(1) hereto and the "Sign-Off"
requirements set forth on Schedule D to each Site Approval Form,
and in no event later than thirty (30) days from the receipt of
invoice therefor. Quest Diagnostics shall provide MedPlus with
any and all information reasonably requested by MedPlus to
complete the items necessary for Sign-Off.
2. Tax Liability. Quest Diagnostics shall be responsible for and
shall pay or reimburse MedPlus for any fees, assessments, charges,
duties and taxes (including, but not limited to, sales or use
taxes) which may now or later be paid or payable by Quest
Diagnostics or by MedPlus by virtue of this Agreement or the
performance of any duty under this Agreement, excluding (i) taxes
based upon the net income of MedPlus and (ii) non-sales taxes
imposed on the performance of services hereunder or the payment
for such services, including withholding of state and federal
income, unemployment compensation, worker's compensation, Federal
Insurance Contributions Act and Federal Unemployment Tax Act
taxes. Upon receipt of a valid tax exemption certificate from
Quest Diagnostics, MedPlus will honor the certificate to the
extent permitted by law.
3. Consulting Services and UDMS Services. Notwithstanding
paragraph E(1) above, payment for the Consulting Services and the
UDMS Services shall be made in accordance with Addenda 1 and 2
hereto, respectively.
4. Expenses. MedPlus shall be responsible for all ordinary and
reasonable expenses that it may incur in connection with this
Agreement, including the Addenda and Exhibits attached hereto.
Quest Diagnostics agrees, however, to reimburse MedPlus for any
extraordinary expenses previously approved in writing by Quest
Diagnostics.
F. MISCELLANEOUS
1. Termination of Agreement. Either party shall have the right to
terminate this Agreement if the other party hereto materially
defaults hereunder or breaches the terms of paragraph B(10)
hereof. The non-breaching party shall give written notice to the
breaching party of any such breach or default and if the breach or
default is not remedied, or the breaching party has not initiated
action to cure such breach or default, within 30 days after such
notice, this Agreement shall terminate. Upon termination of this
Agreement, licenses previously granted hereunder shall not
terminate unless terminated in accordance with section B(6)
hereof. Notwithstanding anything contained herein to the
contrary, Quest Diagnostics shall have no obligation to license
the Software or purchase the Hardware or Consulting Services for
additional Sites following completion of installation at the first
five Sites.
2. Limitation to Actual Damages/Indemnification. Unless otherwise
specifically provided herein, except for injury to person or
property caused directly by an employee, agent or representative
of a party hereto while on the premises of the other party hereto
("Injury"), in no event shall either party be liable to the other
for lost profits, consequential, exemplary, special, indirect,
incidental, or punitive damages, howsoever arising from its
performance hereunder and any permitted liability, regardless of
the form or forum, shall not exceed the total amount paid by Quest
Diagnostics to MedPlus hereunder or $1,000,000 per incident,
whichever is greater. Any liability for Injury, regardless of the
form or forum, shall not exceed the total amount paid by Quest
Diagnostics to MedPlus hereunder or $5,000,000 per incident,
whichever is greater. MedPlus and Quest Diagnostics shall each
indemnify, defend and save the other harmless from and against any
and all losses, claims, suits, damages, liabilities and expenses
(including, without limitation, reasonable attorneys' fees) based
upon, arising out of or attributable to any acts or omissions
arising from such party's performance hereunder or otherwise
related to this Agreement. This provision shall survive
termination of this Agreement.
3. System Capacity. Quest Diagnostics acknowledges that the
capacity of each OptiMaxx System (including the Hardware and the
Software) at a particular Site shall be limited to the number of
total Concurrent Users and by the magnetic and optical storage
specifications specifically described on Schedules B and C to the
Site Approval Form for such Site.
4. Privileged Data. Quest Diagnostics acknowledges that it
accepts full responsibility for complying with Federal, state and
local laws, rules and regulations concerning use and disclosure of
privileged data as the laws, rules and regulations may relate to
any information placed in or stored through use of the Software or
in the Hardware or related to output from the Hardware.
5. Payment for Additional Items. Quest Diagnostics shall be
responsible for the purchase of all discs, tapes, cables, ribbons,
forms and other items required for use in conjunction with the
Hardware and Software. All such additional items must conform to
specifications, if any, provided by MedPlus and the Hardware
manufacturer(s).
6. Assignment. This Agreement is not assignable in whole or in
party by either party with the prior written consent of the other
party hereto, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Quest Diagnostics shall be entitled
to assign this Agreement and its rights hereunder to an affiliate,
successor or parent corporation upon notice to MedPlus.
7. Notices. All notices will be said to have been properly given
hereunder when delivered in person or mailed via certified mail,
return receipt requested, to:
MedPlus:
MedPlus, Inc.
0000 Xxxxxxxx'x Xxxx Xxxxx, Xxx. 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Quest Diagnostics:
Quest Diagnostics Incorporated
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000.
Attention: Chief Information Officer
With a copy to:
Xx Xxxxxx
Quest Diagnostics Incorporated
0 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Each party shall inform the other in writing of a change of
address or contact person.
7. Corporate Authority/Resources. Each of the parties hereby
warrants and represents that it has full corporate power and
authority to enter into this Agreement without the consent of any
other person, organization or other entity, that this Agreement
represents the valid and binding agreement of such party
enforceable in accordance with its terms. Quest Diagnostics
represents that it has the financial resources to perform this
Agreement.
8. Severability. The invalidity in whole or in part of any
provision of this Agreement shall not effect the validity of any
other provision. In the event that a court of competent
jurisdiction determines that any part or provision of this
Agreement is unlawful or unenforceable, then such part or
provision shall be revised as appropriate to make it lawful and
enforceable.
9. Amendments and Waiver. No waiver, alteration or modification
of any of the provisions of this Agreement shall be binding unless
in writing and signed by a duly authorized representative of the
party to be bound thereby.
10. Choice of Law. The rights and obligations of the parties
hereto shall be construed under and be governed in all respects by
the internal laws of the State of New Jersey excluding any
provisions of law governing conflicts of law.
11. Entire Agreement. This Agreement, along with all Exhibits and
addenda hereto and any Site Approval Forms and schedules issued in
accordance herewith, contains the entire agreement between the
parties with respect to the subject matter hereof. All previous
and collateral agreements, representations, warranties, promises
and conditions of sale are superseded by this Agreement with the
exception of the Confidentiality and Non-Disclosure Agreement
agreed to previously by Quest Diagnostics and MedPlus which shall
remain in full force and effect. Any representation, promise or
condition not incorporated in this Agreement shall not be binding
on either party.
12. Uncontrollable Circumstances. If the performance of any part
of this Agreement by MedPlus or Quest Diagnostics is prevented or
delayed by acts of civil or military authority, flood, fire,
epidemic, war or riot, or other acts beyond the reasonable control
of either party, the party affected shall be excused from such
performance only during the continuance of any such event;
provided, however, that if such delay in performance extends for
more than 60 days, the other party, at its discretion, upon giving
written notice, may terminate this Agreement. The arrival of the
new millenium shall not be considered a force majeure.
13. Independent Contractor. It is understood that MedPlus' and
its agents' services hereunder are to be rendered in the capacity
of an independent contractor of Quest Diagnostics, and that
neither MedPlus nor its agents are in any respect or under any
circumstances employees of Quest Diagnostics. Neither party has
authority to enter into contracts or assume any obligations for or
on behalf of the other party or to make any warranties or
representations for or on behalf of the other party.
14. Disclosure of Customer Status/Public Representations. During
the License Term and thereafter, MedPlus shall not represent
itself to be owned or controlled by Quest Diagnostics or as
authorized to represent Quest Diagnostics or to obligate Quest
Diagnostics with respect to any matters not expressly provided
herein. MedPlus may represent to the general public or to any
person that it is an independent contractor affiliated with Quest
Diagnostics, and shall do so if reasonably necessary to clarify
any misunderstanding by the general public of the relationship of
the parties. In addition, neither party, its employees, agents
and/or representatives shall not originate any publicity, news
release, or other public announcement, whether written or oral,
relating to the terms hereof, to any amendment hereto or to any
performance hereunder, without the prior written approval of the
other party hereto. Notwithstanding anything herein to the
contrary, Quest Diagnostics agrees that MedPlus may disclose to
third parties the fact that Quest Diagnostics is a client or
customer of MedPlus.
15. Computer Access Agreements. MedPlus represents and warrants
that it and its agents will use Quest Diagnostics' computers and
all related computer programs only for purposes authorized or
permitted by Quest Diagnostics hereunder or in writing and take
appropriate steps to see that they are protected from accidents,
tampering or unauthorized use or modification. In addition,
MedPlus acknowledges that most software purchased or developed for
use in connection with computers is proprietary and may not be
copied without permission of the owner; MedPlus agrees to read and
follow all terms and conditions, including liability notices and
back-up procedures, that may apply to a software package.
Furthermore, MedPlus recognizes that information stored on a
computer and on diskettes must be provided the appropriate level
of security to prevent unauthorized access to that information and
that the appropriate level of security will vary from department
to department. MedPlus agrees to follow the specific instructions
regarding the security requirements of a Site, as amended from
time to time, as provided to MedPlus by Quest Diagnostics or a
Site. Finally, MedPlus agrees to report to Quest Diagnostics any
possible or actual violation of data security that comes to
MedPlus' attention.
16. Quest Diagnostic's Copyrighted Information. Use of Quest
Diagnostics' proprietary information by MedPlus, its employees,
agents and/or representatives, the copyright of which is owned by
Quest Diagnostics, does not in any way constitute permission for
MedPlus to use or reproduce such copyrighted or other material
except in the specific conduct of business under the terms of this
Agreement and as requested by Quest Diagnostics.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be executed as of the date first written above.
QUEST DIAGNOSTICS MEDPLUS, INC.
INCORPORATED
By:______________________ By:______________________
Name:____________________ Name:____________________
Title:_____________________ Title:_____________________
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