1
EXHIBIT 10.06
Confidential Treatment Requested
DISTRIBUTION AND SERVICES AGREEMENT
This Distribution and Services Agreement is entered into on October 1, 1999
("Effective Date"), between Xxxxxxxx.xxx, Inc., a Delaware Company
("Xxxxxxxx.xxx" or "Company"), 0000-0 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000, and Superior Consultant Company, Inc. ("Superior"), a Michigan
Corporation, 0000 Xxxx Xxxxxx, Xxxxx 0000 Xxxxxxxxxx, Xxxxxxxx 00000.
BACKGROUND
Superior is a leading e-services consulting firm providing management
consulting and information technology consulting, systems integration,
outsourcing, e-commerce and Digital Business Transformation(TM) services
(collectively "Healthcare Consulting Services") to all segments of the
healthcare industry, including integrated delivery networks, hospitals of all
sizes, physician groups, physician/hospital organizations, ambulatory centers,
allied healthcare professionals, employers and employer coalitions, HMOs and
other managed care organizations, pharmaceutical companies, insurance companies
and other payers, and healthcare information systems suppliers (collectively
"Healthcare Entities").
Xxxxxxxx.xxx is a leader in healthcare business-to-business e-commerce,
delivering information and e-commerce services for medical products, equipment,
supplies, and services to healthcare buyers and suppliers worldwide, including
developing web front ends; compiling searchable, digital product catalogs;
aggregating multiple vendor content to create a medical equipment and supplies
sourcing marketplace; and building site traffic from medical professionals.
Xxxxxxxx.xxx's current internet-based service offerings ("Offerings") include
Shop, Auction, Tour, Asset Management and online Resources. Offerings also
includes all future versions, enhancements, modifications and/or derivatives of
any of the above during the term of this Agreement. Xxxxxxxx.xxx customers
range from individual physician offices to Clinics to Integrated Delivery
Networks.
The Parties believe that Xxxxxxxx.xxx's current and future Offerings will offer
the opportunity to reduce supply chain costs for healthcare providers and
suppliers and which may be of interest and benefit to Superior's clients.
The Parties believe that the Xxxxxxxx.xxx Offerings present a rapidly
deployable e-commerce solution that will enhance Superior's service offerings.
Xxxxxxxx.xxx desires to obtain Superior's assistance in promoting the Offerings
to Superior's clients based on Superior's relationship with those clients and
the business and information technology expertise of Superior's consulting and
business development personnel ("Superior's enterprise distribution portal").
Xxxxxxxx.xxx desires to obtain the benefit of Superior's Healthcare Consulting
Services in connection with the development, implementation and back-end
enterprise application integration of the Xxxxxxxx.xxx Offerings.
Xxxxxxxx.xxx and Superior desire to enter into this Agreement to enhance their
respective ability to offer integrated solutions to the medical community which
include, without limitation,
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supply chain optimization through redesigned and internet-enabled commerce,
asset management and facilities planning processes.
The parties desire to provide to each other certain services on the terms
described herein.
THEREFORE, the parties agree as follows:
1. DEFINITIONS
A. AUCTION CLIENT means an IDN that enters into an agreement with
Xxxxxxxx.xxx to use Xxxxxxxx.xxx's auction services for the
disposition of surplus medical equipment and supplies on terms
generally consistent with Xxxxxxxx.xxx's customary terms and
conditions for such clients.
B. IDN'S means integrated Delivery Networks, hospitals or other
Healthcare Entities with revenues in excess of $100 million per year.
C. NET REVENUE means [*]
D. OTHER SUPERIOR CLIENTS means any third party that is not an IDN, for
whom Superior has provided or is currently providing Healthcare
Consulting Services or for which there is an opportunity for Superior
to provide Healthcare Consulting Services.
E. SHOP CLIENT means an IDN that enters into an agreement with
Xxxxxxxx.xxx to use Xxxxxxxx.xxx's web based service for the purchase
of medical products, equipment and supplies, on terms generally
consistent with Xxxxxxxx.xxx's customary terms and conditions for
such clients.
F. SUPERIOR CLIENTS means IDN's and Other Superior Clients.
2. TERM
This Agreement will begin on the Effective Date and terminate three (3)
years from the Effective Date unless terminated earlier as described below.
3. SERVICES
A. PREFERRED STATUS OF XXXXXXXX.XXX
Superior hereby designates Xxxxxxxx.xxx a member of Superior's
Digital Business Transformation(TM) preferred partner program. In
connection with this commitment, Superior shall:
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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DISTRIBUTION AND SERVICES AGREEMENT
1) [*]
2) With Xxxxxxxx.xxx's participation and cooperation, train Superior
business development personnel and consultants concerning Offerings.
3) Promote Offerings and Joint Services (as described in Section 3E
below) to appropriate Superior healthcare consulting personnel.
4) [*]
5) Incorporate Offerings, as appropriate, in relevant Superior service
offerings and proposals, with the prior approval of Xxxxxxxx.xxx.
Xxxxxxxx.xxx agrees that such approval shall not be unreasonably
withheld or delayed.
6) [*]
Superior shall aggressively perform its obligations under this Section 2B,
subject at all times to Superior's right to use its reasonable business
judgment in performing those obligations. [*]
B. PROMOTION OF XXXXXXXX.XXX OFFERINGS AND SUPERIOR SERVICES
1) Superior and Xxxxxxxx.xxx will, within sixty (60) days of the
Effective Date, as part of the Alliance Plan further described in
Section 7, below, develop and implement a joint promotion plan for the
Xxxxxxxx.xxx Offerings and Healthcare Consulting Services as described
in Section 3A above and 3G below. [*]
2) [*]
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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[*]
Date 12-31-99 3-31-00 7-31-00 12-31-00 12-31-01 12-31-02 Totals
------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
[*]
C. HEALTHCARE CONSULTING SERVICES
1) Xxxxxxxx.xxx appoints Superior as a member of its preferred partner
program. As Xxxxxxxx.xxx's preferred partner for Healthcare Consulting
Services, Superior will be a preferred provider of Healthcare Consulting
Services to Xxxxxxxx.xxx clients (whether as a sub-contractor to
Xxxxxxxx.xxx, or as a direct contractor with the Xxxxxxxx.xxx client).
Xxxxxxxx.xxx will train its sales and other appropriate personnel as to
the range of Superior's Healthcare Consulting Services and use
commercially reasonable efforts to refer customers to Superior when the
customer expresses an interest in or desire for or as to which
Xxxxxxxx.xxx believes there is a reasonable opportunity for a service
which Superior provides. Notwithstanding anything else in this Section
3C, Xxxxxxxx.xxx may refer customers to another consulting service
provider if, in Xxxxxxxx.xxx's reasonable business judgment (1) Superior
(or its subsidiaries and affiliates) does not have competence with
respect to the services; (2) Superior (or its subsidiaries and
affiliates) does not have experienced staff available on a timely basis;
or (3) Xxxxxxxx.xxx's client declines to do business with Superior, (4)
Xxxxxxxx.xxx's client has an existing contractual obligation or business
relationship with a third-party consulting service provider, or (5)
Xxxxxxxx.xxx has other substantial business reason(s) for failing to
refer a particular client to Superior.
2) The parties agree that the preferred delivery model is for Superior to
directly contract with the Xxxxxxxx.xxx clients, and the parties shall
use commercially reasonable efforts to accomplish that result. If
Superior provides Healthcare Consulting Services as a direct contractor
with a Xxxxxxxx.xxx client, then the services shall be provided on the
terms agreed to by Superior and that client. If Superior provides
Healthcare Consulting Services as a sub-contractor to Xxxxxxxx.xxx, then
the services shall be provided in accordance with a Master Service
Agreement ("MSA"), in the form attached as Exhibit B. Such Healthcare
Consulting Services provided to Xxxxxxxx.xxx under an MSA may be billed
on a fixed fee or time and materials basis. For time and materials work,
Superior will also be entitled to xxxx for its expenses, as provided
under the MSA. The parties recognize that if Superior provides services
as a sub-contractor to Xxxxxxxx.xxx, Xxxxxxxx.xxx may, if commercially
appropriate, "xxxx-up" the cost of Superior's services (that is, change
the client a fee greater than the charged by Superior to Xxxxxxxx.xxx).
3) Superior and Xxxxxxxx.xxx will, within sixty (60) days of the Effective
Date, develop a service delivery plan as part of the Alliance Plan
further described in Section 7, below, for the Healthcare Consulting
Services, including but not limited to
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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developing service and pricing models, promotional materials,
budgets and projections, and such other subjects as the parties
deem appropriate to effectuate the purpose of this Agreement.
The service delivery plan shall be revised from time to tome as
the parties deem appropriate.
D. HEALTHCARE CONSULTING SERVICES CONTENT
Superior shall license to Xxxxxxxx.xxx, on-lone Healthcare Consulting
Services content ("Content"). to be offered to Xxxxxxxx.xxx clients,
which content is anticipated to cover a broad range of subjects of
interest to Healthcare Entities. The parties shall agree on the
positioning and labeling of any Content that Xxxxxxxx.xxx elects to make
available through its offerings. Superior shall be a preferred partner
of Xxxxxxxx.xxx for on-line Healthcare Consulting Services. Xxxxxxxx.xxx
and Superior will cooperatively web-enable such Content and collaborate
to promote the mutually agreed trade name, the Content, and Superior's
status as Xxxxxxxx.xxx's preferred provider of Healthcare Consulting
Services Content.
E. JOINT SERVICES
The Parties believe that substantial revenues may be derived from new
product/service introductions ("Joint Services") related to supply chain
process improvements and e-commerce transactions of clients using
technology and systems based on the Xxxxxxxx.xxx Offerings and
Superior's Healthcare Consulting Services. Superior and the Company
will, as part of the Alliance Plan further described in Section 7,
below, within sixty (60) days of the Effective Date, explore the
feasibility of the joint, development, promotion, and sale of Joint
Services. Any such plan will specify any agreement of the parties with
respect to revenue and expense sharing.
F. WEB-BASED MARKETING ACTIVITIES
Xxxxxxxx.xxx and Superior will establish hyperlinks between their
respective commercial Internet Web sites, as outlined below, and agree
to work together with the goal (i.e., making available for viewing by
users of the Internet) of establishing such links prior to October 15,
1999 but in any event within sixty (60) days after the Effective Date.
Once established, the links will be continuously maintained during the
term of this Agreement.
1) Throughout the term of this Agreement, Superior will provide and
maintain the following placements on its website: The Superior
site will contain within a section entitled "client services" or
"partners," or other appropriate designation the Xxxxxxxx.xxx
logo and a hypertext ling that permits users to navigate
directly to a welcome page on the Company's healthcare website.
The link and logo will be at least ____ by ____ pixels in size.
2) Throughout the term of this Agreement, Xxxxxxxx.xxx will provide
and maintain the following placements on its website: The
"partners" page on the Xxxxxxxx.xxx site will contain the
Superior logo and a hypertext link that permits users to
navigate
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directly to a welcome page on the Superior website. The link and
logo will be at least _____ by ____ pixels in size
3) The content, functionality and appearance of the messages,
described above, will be mutually agreed upon by the parties.
G. XXXXXXXX.XXX PROMOTION OF SUPERIOR.
In addition to all other obligations under this Agreement,
Xxxxxxxx.xxx shall:
1) Promote Superior's Healthcare Consulting Services to appropriate
healthcare industry clients and prospects.
2) With Superior's participation and cooperation, train its business
development and other appropriate personnel concerning Superior's
Healthcare Consulting Services.
3) Promote the Joint Services offerings of Xxxxxxxx.xxx and Superior
to appropriate personnel;
4) Promote Superior's preferred status in its marketing materials
and efforts, as appropriate, including its web sites, client
newsletters and other client publications, and seminars;
5) Incorporate Superior's Healthcare Consulting Services, as
appropriate, in proposals and offerings.
4. COMPENSATION
A. In consideration for being designated as a preferred member of
Superior's Digital Business Transformation(TM) preferred partner
program, Xxxxxxxx.xxx shall pay to Superior [*]. Payment is
due as follows:
> Within 30 days of the Effective Date $[*]
> Within 60 days of the Effective Date $[*]
B. In consideration for creation of the Alliance Plan called for in
Section 7A, Xxxxxxxx.xxx shall pay to Superior [*] within 90 (ninety)
days of the Effective Date.
C. [*] Within sixty (60) days of the Effective Date, the parties will, as
part of the Alliance Plan described in Section 7, below, develop
mechanisms and procedures for identifying, reporting and otherwise
administering the transactions subject to this Section 4C.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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D. For the services described in Section 3B(2), Xxxxxxxx.xxx shall pay
Superior a fee of: [*]
E. Xxxxxxxx.xxx will purchase not less than $1,500,000 of Healthcare
Consulting Services that results in recognized revenue to Superior
within eighteen (18) months of the Effective Date. Xxxxxxxx.xxx shall
receive a discount from Superior's standard professional fees, in an
amount to be specified in the Alliance Plan described in Section 7,
below.
F. Except as specified herein, Superior shall not be entitled to receive
any additional payment from Xxxxxxxx.xxx.
G. Except as specified in the Alliance Plan, Superior shall receive [*]
of the revenues associated wit Healthcare Consulting Services.
H. Except as provided in this Agreement, no compensation is owed to
either party for its activities under this Agreement. Each party
shall bear its own costs in connection with those activities, unless
otherwise agreed in writing.
5. TERMINATION
This Agreement may be terminated by either party for material breach by
the other party, in accordance with the following procedure: The party
claiming material breach shall provide the other party with a written
notice of breach, specifying in detail the act or omission claimed to
constitute the material breach. The other party shall then have thirty
(30) days to cure the claimed breach. If the breaching party does not cure
the breach within the cure period, then the other party shall be entitled
to terminate this Agreement immediately upon written notice to the other
party. In the event Xxxxxxxx.xxx terminates this Agreement due to any
material uncured breach by Superior, Superior shall be entitled to payment
for all fees and costs for Healthcare Consulting Services performed prior
to termination and for all amounts payable under Section 3 above, subject
to Xxxxxxxx.xxx's rights of set off for any damages caused by Superior's
breach and which are recoverable hereunder.
6. NON DISCLOSURE
The Company and Superior recognize that in the course of performance of
this Agreement each of them may disclose Proprietary information to the
other. The receiving party shall treat the disclosing party's Proprietary
Information as confidential and will exercise reasonable care to protect
it, using not less than the degree of care taken by the receiving party in
the protection of its own confidential information. Without the disclosing
party's permission, Proprietary Information, including the terms of this
Agreement, will not be (1) disclosed to anyone, unless required by law
(however, in such event, the other party shall
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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be informed of the required disclosure prior to any disclosure being made
so that it may seek to prevent such disclosure); or (ii) used for the
receiving party's personal benefit.
Proprietary Information means non-public information of the disclosing
party or its clients or prospects: (1) which the disclosing party
designates as such in writing; or (2) which, given the nature of the
information and the circumstances of disclosure, should be recognized by
the receiving party as confidential in nature, including but not limited
to: (i) strategic business plans, marketing plans, or financial
information; (ii) personal or financial information regarding the employees
of the disclosing party; or (iii) technical information regarding
Xxxxxxxx.xxx's current or contemplated Offerings including product design
and implementation plans. However, unless otherwise specifically agreed in
writing, Proprietary Information does not include the following: (i) any
ideas, innovations, information, techniques, procedures or methodologies
developed by the receiving party, either prior to or in the course of this
Agreement; (ii) any information previously known to the receiving party
without obligation of confidentiality, (iii) any information that is or
becomes available to or known by persons in the healthcare information and
healthcare management industry through no fault or wrongdoing of the
receiving party; or (iv) any information developed independently by the
receiving party without reference to Proprietary Information.
Each of the parties will, as reasonably necessary to carry out the purpose
of this Agreement, enter into agreements for the protection of the
confidential information of clients for which services are performed
pursuant to this Agreement.
7. ALLIANCE PROCESS, GOVERNANCE AND MANAGEMENT
A. Within 60 days from the Effective Date, the parties agree to create
an Alliance Plan that sets forth, without limitation, mutually
developed guidelines, processes and procedures for a) sales and
marketing communications; b) sales funnel management; c) client
account planning; d) written guidelines and an updating process for
Xxxxxxxx.xxx and Superior market positioning and public relations
statements; e) escalation procedures and a dispute resolution
process; and f) a mechanism for evaluating and jointly pursuing
additional sales or service opportunities. The parties agree to apply
resources, time and personnel adequate to complete the Alliance Plan
within 60 days of the Effective Date.
B. Xxxxxxxx.xxx and Superior will establish a Steering Group, consisting
of three executives from Xxxxxxxx.xxx and three from Superior. The
Steering Group will meet on a regular basis, either in person or by
telephone, to set overall direction, monitor progress and resolve
issues.
C. Xxxxxxxx.xxx and Superior will work together to identify target
clients, and coordinate sales pursuits. Each party will assign a
named individual, who will serve as the main liaison for contact and
coordination of activities between the two firms.
B. OWNERSHIP
Superior shall have exclusive ownership of all ideas, intellectual
property, techniques, methodologies, procedures, skills, innovations or
know-how (collectively "Materials") and Content developed or introduced by
Superior in the course of performing services under
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this Agreement. Xxxxxxxx.xxx and its subsidiaries shall have exclusive
ownership of all Materials developed or introduced by Xxxxxxxx.xxx in the
course of performing services under this Agreement. Ownership rights to
Materials jointly developed by Xxxxxxxx.xxx and Superior will be agreed to
in writing in advance. Unless specifically agreed to by the parties in
writing, ownership of such jointly developed Materials will be determined
by product type, as follows:
(i) Configurations, product demonstrations and training materials
relating to the Xxxxxxxx.xxx Offerings will be owned by
Xxxxxxxx.xxx. However, Superior will have non-exclusive use of the
Materials for the benefit of clients for the term of this Agreement.
Xxxxxxxx.xxx will not provide support for such Materials, unless it
incorporates such Materials in a supported release of the
Xxxxxxxx.xxx Software.
(ii) Other marketing material, including presentations and marketing
collateral will be jointly owned and copyrighted and may be used
without restriction for the term of this Agreement subject to the
confidentiality provisions of this Agreement.
(iii) Methodologies, procedures, skills, techniques and know-how relating
to the performance of Healthcare Consulting Services will be solely
owned by Superior.
9. LIMITATION OF LIABILITY
Neither party shall be liable under any cause of action or theory of
recovery whatever for punitive, exemplary, special, incidental or
consequential damages for loss, damage or expense including but not limited
to lost profits or goodwill, and costs of recovering, reprogramming or
reproducing any program or data, even if the other party has been advised
of the likelihood of the same; neither party shall be liable to the other
for any loss claim or damages arising out of any Year 2000 Failure. For
purposes of this Agreement, "Year 2000 Failure" means the failure of any
hardware, software, information system, microprocessor or other computer
system to accurately process date/time data (including, but not limited to,
calculating, comparing, and sequencing) from, into, and between the
twentieth and twenty-first centuries, and the years 1999 and 2000 and leap
year calculations.
10. INDEMNIFICATION
A. Superior and the Company shall each indemnify, defend and hold
harmless the other from: (1) any third party claims for loss, damage,
expense (including attorneys' fees) liability and claims for death or
personal injury or physical damage to property caused by the negligent
acts or omissions of the indemnifying party, its employees, agents or
subcontractors; and (2) any breach of the warranties set forth in
Section 19, below.
B. Each party shall promptly, and in writing, notify the other party of
any such claim made against it by any third party, and shall take
action as may be necessary to avoid default or other adverse
consequences until such time as the other party has a reasonable
opportunity to assume the defense of the claim.
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C. The party obligated to defend under this Section shall have the
right to select counsel and to control such defense. The other
party and its personnel shall cooperate and participate as
required for such defense.
11. EXCLUSIVITY
All services provided hereunder by the Parties are provided on a
non-exclusive basis and the Parties may provide like or similar services
to other clients.
12. BILATERAL NO-HIRE AGREEMENT
Without the prior written consent of the other party, the Company and
Superior each agree to refrain from conducting employment discussions
with, or hiring, directly or indirectly, the other party's employees,
agents, and subcontractors ("Personnel") who have provided services
relating to this Agreement, until twelve (12) months after the date the
Personnel was last involved in any activity related to this Agreement.
13. ASSIGNMENT
Neither party may assign its obligations under this Agreement, except to
its majority owned subsidiaries and affiliates, without the other
party's prior written consent, which may not be unreasonably withheld.
Any purported assignment without prior consent shall be voidable by the
other party.
14. COMPLIANCE WITH LAW
Each party shall comply with all applicable laws and regulations
pertaining to their performance under this Agreement.
15. NOTICES
All notices under this Agreement shall be by certified mail, return
receipt requested as follows:
If to Superior: If to Xxxxxxxx.xxx
Superior Consultant Company, Inc. Xxxxxxxx.xxx, Inc.
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000 0000-0 Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx Attention: Xxx Xxxxx
Cc: General Counsel Cc: General Counsel
Notice by either party of a change in its address shall be in writing.
16. FUTURE COOPERATION
The parties shall cooperate with each other with respect to any
ancillary agreements needed to fulfill the purpose of this Agreement including,
by way of illustration, a license agreement for the Content, and procedures and
forms the reporting and verification of implementation fees.
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17. RELATIONSHIP OF THE PARTIES
A. The relationship between the Company and Superior shall be that of
independent contractors only. No agency relationship between the Company
and Superior is created by this Agreement. Neither party shall have the
right or authority to act on behalf of the other or represent that it
has such right or authority. Each party shall be responsible for its own
tax obligations arising in connection with the performance of this
Agreement. Any reference in this Agreement or any document or
communication relating to this agreement to "partnership", "alliance",
"joint venture", or similar terms is only descriptive of the anticipated
cooperative relationship between the parties, and does not establish any
partnership, agency or fiduciary relationship between the parties.
B. Neither party will make any representations or warranties, either
express or implied, with respect to the specifications, features,
capabilities or other attributes of the products or services offered by
the other party, other than those set forth in any nonconfidential
materials provided by the supplying party for distribution to the
public.
C. Each Party shall at all times conduct its business in a manner that
shall not reflect adversely upon the business and reputation of the
other Party.
18. COMPLETE AGREEMENT
This Agreement and the agreements that are to be entered into as
contemplated by this Agreement will set forth the full and complete
agreement of the parties, and both parties warrant that there have been no
other promises, obligations or undertakings, oral or written. This
Agreement can be modified only by a writing signed by both parties.
19. SAVING CLAUSE
If any section or clause contained in this Agreement is found to be invalid
by a court of competent jurisdiction, the remaining sections and clauses
shall remain in full force and effect.
20. WARRANTY
A. Each party warrants that it has full power and authority to grant the
rights granted by this Agreement, that no consent of any other person or
entity is required to grant such rights other than consents that have
been obtained and are in effect, and that the performance of this
Agreement will not violate any non-disclosure agreement, nor constitute
an infringement or other violation of any copyright, trade secret,
trademark, service xxxx, patent, invention, proprietary information, or
other rights of any third party.
B. The Company warrants that it owns, has a license to, or otherwise has,
and will continue to have throughout the term of this Agreement, the
right to use, distribute and exploit in the manner contemplated by this
Agreement each program, product, service or other component of the
Offerings.
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21. Superior's Business
A. Superior shall not permit any employee, while in its employment, to
whom Xxxxxxxx.xxx has disclosed the object code or source code of the
Offerings ("Core Technology") in accordance with Section 21A(1), below
("Recipient"), to participate, directly or indirectly, in the
development, enhancement or design of the object code or source code of
Competing Offerings, as defined in Section 21A(2), below, for a period
of six (6) months after the Recipient last provided services to
Xxxxxxxx.xxx under this Agreement related to the disclosed Core
Technology. This Section 21A shall not be construed to preclude the
Recipient from implementing or assisting in the implementation of
Competing Offerings, or otherwise providing services relating to
Competing Offerings, as long as in providing such services, the
Recipient does not assist with the actual development, enhancement or
design of the object code or source code for the Competing Offerings.
1) Prior to disclosing Core Technology to Superior's employee,
Xxxxxxxx.xxx shall notify Superior in writing of its intent to do
so, identifying the Core Technology to be disclosed, including the
employee(s) to which it is to be disclosed. Xxxxxxxx.xxx shall
disclose such Core Technology only after obtaining Superior's
express written consent to disclosure. Section 21A shall not apply
to Core Technology disclosed without Superior's express written
consent as provided in this sub-part. Superior may decline to
accept any Core Technology.
2) Competing Offerings shall mean not more than 4 Competing Offerings
internet based healthcare business-to-business e-commerce offerings
that directly compete with the Offerings. The Competing Offerings
shall be designated within 50 days of the Effective Date as part of
the Alliance Plan and may be revised annually on the anniversary
date of the Effective Date by mutual agreement of the parties. The
restrictions of Section 21A shall apply only to Competing Offerings
to which the Core Technology disclosed to that employee relates.
B. Except as provided in Section 21A, Superior retains the right to
continue to provide its services, including services of the type
provided under this Agreement, to any other client, including
competitors of Xxxxxxxx.xxx, provided that Superior maintains its
obligations of nondisclosure of Proprietary Information. Superior
retains the right to exercise its skills and expertise and to form and
express opinions to its clients that may be based upon experience
gained under this Agreement.
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22. GOVERNING LAW
This Agreement and any Interpretation thereof shall be governed by the laws
of the State of California without regard to its conflict of laws rules.
23. AUTHORIZED SIGNATURES
Acknowledged and accepted, for Xxxxxxxx.xxx
By /s/ XXXXXX X. XXXXXXX CEO 10/3/99
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Signature Title Date
Acknowledged and accepted for Superior Consultant Company, Inc.
CORPORATE VP
By /s/ XXXX XXXXXX STRATEGIC DEVELOPMENT 10/3/99
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Signature Title Date
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