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EXHIBIT 10.16
ADDENDUM TO THE MASTER LICENSE AGREEMENT
THIS ADDENDUM, made and entered into as of April 15, 1999, supplements and
amends the Masters License Agreement between Medical Manager Midwest, Inc.
("Licensor") and MTS, Inc. ("Customer") dated March 5, 1999 (hereinafter the
"Original Agreement").
NOW THEREFORE, Licensor and Customer further agree as follows:
1. This Addendum modifies and amends the Original Agreement, revoking portions
in whole and in part and creating additional covenants. Wherever discrepancies,
modifications or revocations appear, the agreements contained in this Addendum
shall prevail, any language in the Original Agreement to the contrary
notwithstanding. In all other respects the terms and conditions set forth in the
Original Agreement shall continue in full force and effect.
2. Section 1.02 shall be modified by inserting the following underlined
language:
"Customer is a provider of physician practice management and information
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technology services to physicians, clinics, and other medical
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practitioners."
3. Section 2.04 shall be modified by inserting the following underlined
language:
"'Customer Practice' means an individual medical practice which is owned or
operated or serviced by Customer."
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4. Section 5.02, Third Party Interfaces, shall be moved in its entirety and
renumbered as Section 4.04.
5. Pursuant to Customer's right in Section 13.04, Assignment, Customer hereby
assigns the Original Agreement to The TriZetto Group in connection with the
sale of substantially all of Customer's assets to the TriZetto Group effective
March 26, 1999.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum by a duly
authorized representative.
Medical Manager Medwest, Inc MTS, Inc.
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
------------------------- ------------------------------
Title: Vice President Title: President
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Date: 4-15-99 Date: 4/15/99
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[MEDICAL MANAGER LETTERHEAD]
THE MEDICAL MANAGER(R)
Date: March 1, 1998
Contract No.: pr-4544
Between
Licensor Name: MEDICAL MANAGER MIDWEST, INC.
Address: 00000 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Principal Contact: Xxx Xxxxxxx
And
Customer Name: MTS, INC.
Address: 0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Principal Contact: Xxxx Xxxxx
THIS AGREEMENT is entered into as of the date of the last signature hereto (the
"Effective Date"), by and between Medical Manager Midwest, Inc., having its
principal place of business at 00000 Xxxxxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000
(hereinafter "Licensor"), and the above-named customer (hereinafter "Customer").
In consideration of the premises hereof, and the mutual obligations herein made
and undertaken, the parties hereto covenant and agree as follows:
I. RECITAL OF FACTS
SECTION 1.01 Licensor is the distributor of a certain computer software program
known as THE MEDICAL MANAGER(R) (hereinafter "THE MEDICAL MANAGER" software).
SECTION 1.02 Customer is a provider of physician practice management services to
physicians, clinics, and other medical practitioners.
SECTION 1.03 Customer desires to utilize THE MEDICAL MANAGER software to fulfill
the patient billing, managed care, and other practice management needs of
Customer's practices.
SECTION 1.04 Licensor desires to provide THE MEDICAL MANAGER software and
related services to Customer pursuant to the terms and conditions set forth
herein.
II. DEFINITIONS
For the purposes of this Agreement, the definitions set forth in this Article II
shall apply to the respective italicized terms:
SECTION 2.01 "AGREEMENT" means this Master License Agreement, including any
Exhibits attached hereto.
SECTION 2.02 "ANNIVERSARY DATE" means the annual recurrence of the Effective
Date.
SECTION 2.03 "CUSTOM PROGRAMS" means Data Merge Language ("DML") programs
developed by Personalized Programming, Inc., ("R&D") or developed by an
authorized DML programmer for use exclusively with THE MEDICAL MANAGER software,
approved by R&D, and licensed to Customer as described in Exhibit A.
SECTION 2.04 "CUSTOMER PRACTICE" means an individual medical practice which is
owned or operated by Customer.
SECTION 2.05 "CUSTOMER PRODUCTS" means one or more combinations of the Software
with other services and computer equipment and/or software independently
developed or procured by Customer, for use by Customer Practices as an integral
part of Customer's management services and not for sub-license or resale.
SECTION 2.06 "DOCUMENTATION" means the printed instructions provided by
Licensor, known as The Medical Manager Operators' Guide, Installation &
Appendices, Features & Reports, and Report Generator manuals, as well as other
materials created by Licensor and provided to Customer, in print form or on
diskette, as instructions to or guidelines for use of the Software.
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SECTION 2.07 "ERROR" means a defect in the Software that prevents the Software
from functioning in substantial conformity with the Documentation.
SECTION 2.08 "FILE SERVER" means a central computer system upon which the
Software resides and performs its primary data functions. Individual terminals,
PC workstations (using terminal emulation software), and/or X-Window
workstations, which are located in the Satellite Site locations, may be linked
to the File Server via telecommunications networks or other networks procured
and supported by Customer.
SECTION 2.09 "MAINTENANCE MODIFICATION(S)" means computer software changes to be
integrated with the Software, generally intended to correct Errors therein, but
which do not alter the functionality of the Software or add any new functions or
features thereto.
SECTION 2.10 "MARKETING TERRITORY" means the geographical territory within the
United States to encompass the USA.
SECTION 2.11 "MASTER TAPE" means a magnetic tape or diskettes containing the
non-Serialized version of the Software. Upon Serialization, the Software
contained on the Master Tape becomes a fully-operable version of the Software.
SECTION 2.12 "MSO SYSTEM" means THE MEDICAL MANAGER Management Service
Organization license which is located on a single File Server with five (5) or
more Satellite Sites. The system can be expanded to include multiple servers
working in conjunction to provide a flexible application environment for the MSO
system.
SECTION 2.13 "NEW PRODUCT" means any Optional Module(s) or other MEDICAL MANAGER
software product not duly licensed to Customer as set forth in Exhibit A. The
term "New Product" also refers to a New Version of the Software which, in
Licensor's reasonable discretion, requires new installation or training and
(a) the list price of such New Version is substantially higher
than the list price of the previous version, or
(b) the New Version constitutes a major change in the overall
underlying data base structure or the overall user interface;
or
(c) additional third party software is incorporated therein as an
integral part of such New Version thereby requiring a per site
purchase or license of the third party software, or requiring
Licensor to pay a royalty therefor.
(d) increases in current applications are capped at the cost plus
annual CPI computation.
SECTION 2.14 "NEW VERSION(S)" means improvements to the Software which create
additional features or enhance the value of the Software but which do not
constitute a New Product.
SECTION 2.15 "NORMAL BUSINESS HOURS AND SUPPORT" means 7:00 am. to 5:00 p.m.
CST, Monday through Friday, excluding Licensor holidays. Support to include 7X24
hour pager support for emergency service.
SECTION 2.16 "OBJECT CODE" means computer programs assembled or compiled in
magnetic or electronic binary form on software media, which are readable and
usable by machines, but not generally readable by humans without reverse
assembly, reverse compiling, or reverse engineering.
SECTION 2.17 "OPTIONAL MODULES" or "OPTIONS" means additional functions which
need not be present in order for The Medical Manager software to properly
operate, but which can be added at Customer's request to any MSO System at an
additional cost. Optional Modules are licensed to the MSO System and all
Satellite Sites in the MSO System. The Optional Modules included with the
Customer's system is described in Exhibit A hereto.
SECTION 2.18 "SATELLITE SITE" means an individual data set in an MSO System
which maintains the data files for an individual Customer Practice. The
Satellite Site includes the Optional Modules licensed to the MSO System and the
number of Users which are Serialized for that Satellite as requested by Customer
from the total Users licensed for the MSO System.
SECTION 2.19 "SOFTWARE" means the Object Code of THE MEDICAL MANAGER MSO System
computer software and Documentation as described in Exhibit A, including without
limitation Optional Modules and Custom Programs licensed to Customer.
SECTION 2.20 "SERIALIZATION" or "SERIALIZE" means the process whereby the
practice name is encoded into a unique, secret serial number which thereby
limits the usage of the Software to that practice name and the operating system,
version, number of Users, and Optional Modules set forth in the Serialization.
The Serialization process is the sole property and trade secret of Licensor.
SECTION 2.21 "SOURCE CODE" means THE MEDICAL MANAGER computer programs written
in higher-level programming languages, such as C and THE MEDICAL MANAGER Data
Merge Language, sometimes accompanied by English language comments. The Source
Code is intelligible to trained programmers and may be translated into Object
Code for operation on computer equipment through the process of compiling.
Specifically excluded from the Source Code are Customer-created report formats,
if any, and Customer's data. The Source Code for the Software is the exclusive
property and trade secret of R&D.
SECTION 2.22 "USER" means an individual session which is logged on to the
Software. The MSO System is licensed with a maximum number of simultaneous
Users, and these Users are allocated among the Satellite Sites and Customer's
central administration. The number of Users which are Serialized for any
Satellite Site data set is the maximum number of simultaneous Users who may
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log onto that data set (whether logged on from the remote site or the central
administrative location). The term, "Standard User," means an additional User
for a Satellite Site with the Optional Modules described in Exhibit A.
III. LICENSE AND ADMINISTRATION
SECTION 3.01 PURCHASE. Customer agrees to purchase, and Licensor agrees to
convey to Customer, the licenses, products and services set forth in this
Agreement under the terms and conditions set forth herein. The license fee shall
be due in accordance with the payment schedule set forth in Exhibit A. Customer
acknowledges that Licensor is assembling a support team to provide Customer with
the highest level of service and support for THE MEDICAL MANAGER software, as
well as assisting Customer in building its own internal support team for THE
MEDICAL MANAGER system. In exchange for these efforts, Customer agrees to
exclusively purchase THE MEDICAL MANAGER software, its optional modules and all
other software products related to THE MEDICAL MANAGER software, which are
proprietary to Licensor or R&D, from Licensor.
SECTION 3.02 GRANT OF LICENSE. Subject to the terms and conditions of this
Agreement and receipt by Licensor of the applicable license fee, Licensor grants
to Customer, a non-transferable, non-assignable, non-exclusive and indivisible
license to use the Software to operate Customer Practices, but not for resale or
sub-license to any third party. Pursuant to this grant, Customer shall purchase
a separate MSO license for each File Server housing the Software. Each separate
MSO license shall be issued under the terms and conditions of this Agreement.
The system can be expanded to include multiple servers working in conjunction to
provide a flexible application environment for the MSO system. Volume pricing
does not start over if additional servers are added.
SECTION 3.03 LICENSED CONFIGURATION.
(a) Each File Server shall be located in a regional Customer
office.
(b) Each File Server shall support one MSO System with five (5) or
more Satellite Sites. Subject to the limitations of the
computer hardware and operating system. Customer may Serialize
up to [*] Satellite Sites on any single MSO System for version
9.01 of THE MEDICAL MANAGER software. THE MEDICAL MANAGER
version 9.01 will enable Customer to Serialize up to [*]
Satellite Sites on any single MSO System. The system can be
expanded to include multiple servers working in conjunction to
provide a flexible application environment for the MSO
system.[*]
(c) Each Satellite Site will serve one medical practice, with one
or more locations.
(d) Each MSO System shall be Serialized under a name determined by
Customer with the Optional Modules set forth in Exhibit A, and
with the sum total of Users contained in each of the Satellite
Sites on the subject File Server.
(e) Each Satellite Site shall be Serialized for the individual
practice name it serves, with the same Optional Modules
contained on the MSO System.
SECTION 3.04 DELIVERABLES. Upon the execution of this Agreement, Licensor agrees
to deliver to Customer the number of published copies of the Documentation set
forth in Exhibit A. Additional bound, published copies of the Documentation may
be acquired by Customer from Licensor at Licensor's then current price.
SECTION 3.05 SALES TAX. Customer covenants and agrees to pay any and all
applicable sales taxes, duties, tariffs, or other assessments levied by or on
behalf of any taxing authority having jurisdiction over Client relating to any
transaction contemplated by this Agreement.
SECTION 3.06 UPDATES AND UPGRADES. The terms and conditions of this Agreement
shall apply to all Software and Documentation provided by Licensor to Customer
subsequent to the Effective Date, including without limitation, Maintenance
Modifications, new Optional Modules, New Versions, New Products, custom
programming, and all derivative works of such Software and Documentation,
provided, however, that New Products shall be subject to the then current
license agreement for such New Product. Upon the issuance of a new Serialization
for any Customer installation, the previously issued license for that
installation shall terminate.
SECTION 3.07 UNAUTHORIZED USE. Any use of the Software which is not in
compliance with the terms and conditions of this Agreement is unauthorized and
prohibited. In the event Customer learns of any unauthorized use of the
Software, Customer agrees to use all reasonable efforts to terminate such
unauthorized use and to immediately notify Licensor in writing of such
violation. Customer agrees to communicate the terms and conditions of the
license granted herein to all of Customer's agents and employees who may come in
contact with the Software, and to ensure that such agents and employees comply
with the restrictions contained herein.
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IV. TITLE
SECTION 4.01 TITLE TO SOFTWARE. Title to all copies of the Software and
Documentation, including Maintenance Modifications, new Optional Modules, New
Versions, New Products, custom programming, and all derivative works, shall at
all times remain and vest solely with the author of the Software, R&D. Customer
agrees that it will not claim or assert title to any such materials or attempt
to transfer any title to any third party.
SECTION 4.02 WARRANTY OF TITLE. Licensor warrants and represents that it has the
right to license or sublicense the Software to Customer without violating any
rights of any third party.
SECTION 4.03 TRANSFER OF SOFTWARE. Customer understands and agrees that it may
not act as a reseller or sell, assign, sub-license, or otherwise transfer the
Software or the license granted herein to any third party.
V. LIMITED WARRANTIES
SECTION 5.01 LIMITED WARRANTY. Licensor hereby warrants that, for a period of
six (6) months from the date the Serialization for each MSO System is first
installed on the Customer's File Server (the "Warranty Period"), that the
Software shall substantially perform in accordance with the related
Documentation, but Licensor does not warrant that the operation of the Software
shall be Error-free or uninterrupted. Customer shall promptly notify Licensor in
writing of the nature of the perceived Software defect(s) which causes the
Software not to perform substantially in accordance with the related
Documentation, and specifically describe the conditions under which the
perceived defect occurs. Customer shall provide Licensor with sufficient test
time and support to duplicate the problem, to verify that the problem is with
the Software, and to confirm that the problem has been corrected. Should any
component of the Software fail to perform substantially in accordance with the
related Documentation during the Warranty Period, Licensor shall at its expense,
correct the defect(s) by bringing the performance of the Software into
substantial compliance with the related Documentation. Should Licensor be unable
to correct such defect, then Customer's exclusive remedy for the failure of the
Software to substantially conform with the Documentation shall be to return such
affected software product to Licensor within the Warranty Period, whereupon
Licensor, at its sole option, shall either provide Customer with software that
conforms to the Documentation or refund the license fee for such affected
software product. In the event such non-conformity is found in a New Version or
New Product, then any refund shall be based upon the license fee for such New
Version or New Product, if any. Prior to the issuance of any refund, Customer
shall destroy or deliver to Licensor any and all copies of the affected software
product, including any copies contained in any memory device under Customer's
control, and shall warrant that all such copies have been delivered to Licensor
or destroyed. Upon the issuance of a refund to Customer, the license to such
affected software product granted herein shall terminate.
THE FOREGOING WARRANTIES ARE FOR CUSTOMER'S EXCLUSIVE BENEFIT AND ARE
NONTRANSFERABLE. THE FOREGOING WILL BE CUSTOMER'S EXCLUSIVE REMEDIES FOR BREACH
OF WARRANTY BY LICENSOR OR R&D. LICENSOR AND R&D DISCLAIM ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE
SOFTWARE OR ANY PRODUCTS, SERVICES OR OTHER SOFTWARE FURNISHED HEREUNDER, THEIR
QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
THERE IS NO WARRANTY BY LICENSOR OR R&D THAT THE FUNCTIONS CONTAINED IN THE
SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS, GOVERNMENTAL REGULATIONS OR THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES
ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE CUSTOMER'S
INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM SUCH
INSTALLATION AND USE.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.01 BELOW, IN NO EVENT WILL LICENSOR
OR R&D BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL,
OR OTHER SIMILAR DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE EXISTENCE,
FURNISHING, FAILURE TO FURNISH OR USE OF THE SOFTWARE, PRODUCTS, OR SERVICES
FURNISHED HEREUNDER, INCLUDING ANY RELATED THIRD PARTY SOFTWARE, PRODUCT OR
SERVICE, WHETHER OR NOT LICENSOR OR R&D HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE ABSOLUTE LIABILITY OF LICENSOR AND R&D SHALL NOT EXCEED THE
TOTAL AMOUNT OF ALL FEES PAID TO LICENSOR BY CUSTOMER FOR THE SOFTWARE.
SECTION 5.02 THIRD PARTY INTERFACES. The Software may include the ability to
electronically interface directly with one or more third party products or
services. Customer understands and agrees that, THE MEDICAL MANAGER interface
software is part of the Software, but (i) such third party products and services
are not part of the Software, (ii) Licensor makes no warranties or
representations of any kind with respect to such third party products and
services, and (iii) Customer assumes all risk of loss arising from the use of
such third party products. The license to use any Optional Module which is a
third party interface shall immediately terminate without further notice or
obligation of Licensor upon termination of Customer's or Licensor's agreement
with such third party.
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SECTION 5.03 DATA MERGE OPTION. The DML Option permits the Software to run
custom applications written by Licensor and authorized DML Developers. Customer
understands and agrees that DML programs, except for such programs written
entirely by R&D, may alter the normal operation of the Software and thereby void
the limited warranty set forth in Section 5.01 herein. Customer further agrees
to use such DML programs at its own risk and hereby indemnifies and holds
Licensor harmless from and against any claims arising from Customer's use of
such programs. Any DML code supplied by MMMW is fully warranted.
SECTION 5.04 LIMITATION OF ACTIONS. No action arising or resulting from this
Agreement, regardless of its form, may be brought by any party more than one (1)
year after expiration of the warranty on the affected Software as set forth in
Section 5.01 above.
VI. SOURCE CODE
SECTION 6.01 SOURCE CODE. Nothing contained herein shall be construed as a grant
of the copyright or other proprietary rights in Licensor's products or services,
including without limitation the Software. Customer agrees that it shall not
modify reverse engineer, translate or disassemble the Software, or prepare or
develop any derivative works thereof. Customer acknowledges and agrees that the
Source Code is a trade secret of R&D and that Customer is expressly prohibited
from altering the Source Code in any way, or soliciting another to do so.
SECTION 6.02 SOURCE CODE DEPOSIT. The magnetic tapes containing the Source Code
have been deposited with the law firm of Xxxx, Xxxx & Xxxx, P.A., 000 Xxxxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, in accordance with the Source Code Deposit
Agreement attached hereto as Exhibit B.
SECTION 6.03 [*]. Customer understands and agrees that [*] owns complete right,
title and interest in the [*] (the "Executable Server"), and that Customer is
licensed only to use the Executable Server. Customer agrees not to distribute
and/or transfer the Executable Server (whether alone or in conjunction with any
other products) to any third party. Customer shall not distribute and/or
transfer to any third party any program whose main purpose is to cause an
Executable Server to perform its storage and retrieval operations.
SECTION 6.04 COMPUTER VIRUSES. Licensor agrees that it shall take reasonable
precautions to ensure that at the time the Master Tape is provided to Customer
it is free of any concealed program code which has been intentionally and
surreptitiously created by a third party for the purpose of damaging or
destroying data files or computer equipment. Licensor agrees the Software will
not deactivate itself without the control of a person operating the computing
equipment on which it resides.
SECTION 6.05 MILLENNIUM COMPLIANCE. Version 9.01 of The Medical Manager software
shall be year 2000 compliant to include (I) calculations using a four digit
year. (specifically including, without limitation, the year 2000 and following);
(ii) functionality for on-line and batch processing including, but not limited
to, entry, inquiry, maintenance and update support four-digit year processing;
(iii) interfaces and reports support four-year digit year processing; (iv)
translation into year 2000 with the correct system data ( e.g. 1/ 1/2000)
without human intervention; (v) processing with a four-year digit year after
transition to and beyond the year 2000 without human intervention; (vi)
providing correct results in forward and backwards data calculations spanning
century boundaries.
VII. SUPPORT MAINTENANCE AND SERVICES
SECTION 7.01 TRAINING. During the term of this Agreement, Licensor shall provide
to Customer initial training services at the then current initial training
rates, as described in Exhibit A. Licensor agrees to provide additional training
on the use of the Software to Customer's central support staff at Licensor's
facilities, at the then current training rates. Additionally, if the training is
to be held at a location requiring travel, Customer agrees to reimburse Licensor
for reasonable expenses of travel, food and lodging. Customer agrees that all
requests for training shall clearly specify the type of training desired and
shall be scheduled a reasonable time in advance.
SECTION 7.02 SOFTWARE MAINTENANCE. During the term of this Agreement and subject
to Customer's payment of the maintenance fees described on Exhibit A hereto,
Licensor agrees to provide Customer's central administration support staff with
one copy of all published Maintenance Modifications in the form of individual
update diskettes or a new Master Tape for each operating system version of the
Software licensed to Customer. Customer understands and agrees that Maintenance
Modifications which correct Software Errors shall be provided only on the then
current version of the Software. MMMW will support two prior versions of The
Medical Manager system.
SECTION 7.03 SOFTWARE VERSION MAINTENANCE. Customer agrees to pay the annual
"Software Version Maintenance Fee" described in Exhibit A hereto, which will
entitle Customer to receive all New Versions of the Software when released by
Licensor. Customer understands and agrees that such Software Version Maintenance
Fee must be paid in advance as invoiced by Licensor. Failure of Customer to
timely remit payment for the New Version Maintenance Fee shall terminate
Licensor's obligation to provide New Versions to Customer.
SECTION 7.04 SUPPORT SERVICES. During the term of this Agreement, and subject to
Customer's payment of the maintenance fees described on Exhibit A hereto, during
Normal Business and Support Hours, Licensor shall provide to a staff of key
Customer employees, who are highly trained and experienced in THE MEDICAL
MANAGER software, voice and/or modem (if requested) telephone consultation and
support. Customer shall provide and maintain a list of key Customer employees
who are authorized
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to contact Licensor for support. (A grace period of 6 months is granted for MTS
to complete operations structure.) If a system is not able to be on-line after
hours, on-site help will be made available.
SECTION 7.05 MAINTENANCE FEES. In consideration of the software maintenance and
support services described in Sections 7.02 and 7.04, Customer agrees to pay to
Licensor an annual support maintenance fee at the then current support
maintenance rate as set forth in Exhibit A. The support maintenance fee is
payable in advance on the first day of each month, based upon the Software and
number of Users which have been serialized as of the first day of such month.
VIII. CONFIDENTIALITY OF INFORMATION
Licensor may disclose information to Customer concerning its confidential
business information, inventions, confidential know-how and trade secrets. Such
confidential business information, inventions, confidential know-how and trade
secrets disclosed hereunder shall remain the sole property of Licensor and/or
R&D, and Customer shall have no interest or right with respect thereto. Except
as expressly set forth herein, Customer agrees that it shall not use or
commercially exploit any such confidential information without the express prior
written consent of Licensor. Among other things, the Source Code for R&D's
software, R&D's internal developmental documents, preliminary Object Code, any
test copies of the Software, the Data Merge Language, the GenDML routine, any
Data Merge programs written in whole or in part by R&D, any derivative works,
EMC Formats, ERS Formats, prices and/or discounts are all regarded as
confidential information by Licensor. Customer covenants and agrees that, during
the term of this Agreement and for a period of three (3) years after
termination, it shall use all reasonable efforts to protect Licensor's and R&D's
trade secrets and the proprietary aspects of THE MEDICAL MANAGER products from
unauthorized disclosure and use, including but not limited to the confidential
information described herein.
Customer may disclose information to Licensor concerning its confidential
business information, confidential patient records, inventions, confidential
know-how and trade secrets. Such confidential business information, inventions,
confidential know-how and trade secrets disclosed hereunder shall remain the
sole property of Customer, and Licensor shall have no interest or right with
respect thereto. Except as expressly set forth herein, Licensor agrees that it
shall not use or commercially exploit any such confidential information without
the express prior written consent of Customer. Licensor covenants and agrees
that, during the term of this Agreement and for a period of three (3) years
after termination, it shall use all reasonable efforts to protect Customer's
trade secrets and confidential materials from unauthorized disclosure and use.
Any party may bring an action in a court of competent jurisdiction to enjoin
another party from violating this provision, and/or to obtain damages for the
breach thereof. In the event such action is brought by a party hereto, the
prevailing party shall be entitled to an award of reasonable attorneys' fees,
including appellate fees.
The obligation of this Article VIII shall terminate with respect to confidential
information when the party receiving such confidential information (the
"Recipient") can document that the information:
(a) was in the public domain at the time the disclosing party (the
"Discloser") communicated such information to the Recipient;
(b) entered the public domain through no fault of the Recipient
subsequent to the time of the Discloser's communication
thereof to the Recipient;
(c) was in the Recipient's possession free of any obligation of
confidence at the time of the Discloser's communication
thereof to the Recipient;
(d) was rightfully communicated to the Recipient by a third party
free of any obligation of confidence subsequent to the time of
the Discloser's communication thereof to the Recipient,
(e) was developed by employees or agents of the Recipient
independently of and without any reference to any information
that the Discloser has disclosed in confidence to any third
party; or
(f) was required pursuant to applicable law, provided that the
Recipient uses reasonable efforts to allow the Discloser an
opportunity to resist such communication or seek a protective
order.
IX. LIMITATION OF REPRESENTATIONS AND USE OF NAME
Customer agrees to make no representations concerning the Software except as set
forth in the printed Documentation furnished to Customer by Licensor. Customer
shall not reproduce, reference, distribute, or utilize any trade name or
trademark of Licensor and/or R&D, except solely for purposes of identifying
Licensor's products and software, without the prior written approval of
Licensor. Each party agrees to submit to the other party for approval, prior to
use, distribution, or disclosure, any advertising, promotion, or publicity in
which the trade names or trademarks of the other party are used, or which is
otherwise undertaken pursuant to this Agreement.
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X. INDEMNIFICATION
SECTION 10.01 INDEMNIFICATION BY LICENSOR. Licensor shall indemnify Customer
against the liabilities and costs, including reasonable attorneys' fees based
upon defending any claim or suit arising from the alleged infringement by THE
MEDICAL MANAGER Software of any registered United States copyright or trademark,
or the trade secret rights of a third party, provided Customer promptly notifies
Licensor in writing of the suit or any claim of infringement and that Licensor
is permitted to control fully the defense and settlement of any claim or suit.
Customer shall have the right, at its own expense, to appear through counsel of
its own choosing. Licensor shall have the right, in its sole discretion, to
settle any such claim or suit. If an infringement claim is asserted, or if
Licensor believes one likely, Licensor will have the right but not the
obligation to (a) procure a license for Customer from the party claiming or
likely to claim infringement, or (b) modify the Software to avoid the claim of
infringement so long as such modification does not materially impair the
operation of the Software. Licensor shall have no obligation hereunder for or
with respect to claims, actions, or demands alleging infringement which arise by
reason of combination of non-infringing items with any items which are not
Software. THE FOREGOING IS LICENSOR'S EXCLUSIVE OBLIGATION WITH RESPECT TO
CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.
SECTION 10.02 INDEMNIFICATION BY CUSTOMER. Customer hereby indemnifies and holds
harmless Licensor from and against any and all claims, actions, or demands
arising with respect to any use or misuse of the Software or any Customer
Products with the sole exception of those matters for which Licensor bears
responsibility under Section 10.01 herein.
SECTION 10.03 SALES TAX. Customer covenants and agrees that it shall indemnify
and hold harmless Licensor from and against any sales taxes, duties, tariffs, or
other assessments levied by or on behalf of any taxing jurisdiction or entity
relating to any transaction contemplated by this Agreement.
SECTION 10.04 NOTICE REQUIRED. The foregoing indemnities are conditioned on
prompt written notice of any claim, action, or demand for which indemnity is
claimed, complete control of the defense and settlement thereof by the
indemnifying party, and cooperation of the other party in such defense.
XI. TERM AND TERMINATION
SECTION 11.01 TERM. This Agreement shall commence as of the Effective Date and
shall continue until terminated as set forth herein.
SECTION 11.02 TERMINATION BY LICENSOR. Licensor may terminate this Agreement
upon forty five (45) days notice in the event one or more of the following
occurs and, if capable of being cured, is not cured within such forty five (45)
day cure period:
(a) The failure of Customer at any time to timely make any payment
required herein (Payment is considered late if not paid with
in thirty (30) days of the invoice date);
(b) The failure of Customer to protect Licensor's proprietary
rights in the Software as set forth in this Agreement; or
(c) The failure of Customer to cure a breach of a material term of
this Agreement.
SECTION 11.03 TERMINATION BY CUSTOMER. Customer may terminate this Agreement in
the event Licensor fails to cure a breach of a material term of this Agreement
within forty five (45) days after receiving written notice thereof from
Customer.
SECTION 11.04 INSOLVENCY. Should any party admit in writing its inability to pay
its debts generally as they become due, or make a general assignment for the
benefit of creditors, or institute proceedings to be adjudicated a voluntary
bankrupt, or consent to the filing of a petition of bankruptcy against it, or be
adjudicated by a court of competent jurisdiction as bankrupt or insolvent; or
should any party seek reorganization under any bankruptcy act, or consent to the
filing of a petition seeking such reorganization; or should any party have a
decree entered against it by a court of competent jurisdiction appointing a
receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency
covering all or substantially all of such party's property or providing for the
liquidation of such party's property or business affairs, then the other party
may, at its option and without notice, terminate this Agreement, effective
immediately.
SECTION 11.05 EFFECT OF TERMINATION. Termination of this Agreement shall not
relieve any party of the obligations incurred hereunder pursuant to Article IV
(Title), Article V (Limited Warranties), Article VI (Source Code), Article VIII
(Confidentiality of Information), Article X (Indemnification), Section 11.05
(Effect of Termination), Section 11.06 (Use of Software After Termination), and
Article XII (Arbitration), which provisions shall survive such termination. Upon
termination of this Agreement, any and all amounts or fees due under this
Agreement or otherwise due to Licensor shall immediately be paid in full without
further demand by Licensor.
SECTION 11.06 USE OF SOFTWARE AFTER TERMINATION. Customer's license to use the
Software Serialized prior to termination, shall survive termination of this
Agreement and shall continue in full force and effect under the terms and
conditions of the then current license agreement for THE MEDICAL MANAGER
software, unless termination is pursuant to Section 11.02, 11.03, 11.04, or
based upon a violation of Section 3.01 (Grant of License), Section 3.02
(Licensed Configuration), or any other violation of Licensor's intellectual
property rights whereupon Customer's right and license to use the Software shall
immediately terminate.
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XII. ARBITRATION
Any controversy or claim arising out of or relating to this contract or breach
thereof, except as specifically set forth in Article VIII hereof, shall be
submitted to arbitration by giving written notice to that effect to the other
parties.
(a) Within ten (10) days after delivery of such written notice,
each party shall designate one arbitrator each of whom shall
be knowledgeable in the computer software industry. The two
arbitrators so named shall designate a third arbitrator, who
shall be an attorney knowledgeable in the computer software
industry to act as the head arbitrator. Should the partisan
arbitrators be unable to agree upon a third arbitrator, then
the third arbitrator shall be named by a Judge of a United
States District Court, upon the application of either party;
provided, however, that such selection shall be made solely on
the basis of the arbitrator's knowledge of the computer
software industry.
(b) The arbitration shall be conducted in accordance with the then
prevailing rules of the American Arbitration Association. The
first and third week of arbitration shall be conducted in
South Bend, Indiana and the second and fourth week, if
necessary, shall be conducted in South Bend, Indiana. Other
locations may be selected upon the unanimous agreement of the
parties hereto.
(c) In connection with the arbitration, the arbitrators shall, at
the request of either party, direct that discovery be
provided. In the event information of a confidential nature is
obtained by either party during discovery, the other party
shall not disclose such information to any third party and
shall take all steps reasonably necessary for the protection
of any such information.
(d) In rendering their decision and award, the arbitrators shall
not add to, nor subtract from or otherwise modify the
provisions of this Agreement, but rather shall be bound
thereby. Each party shall bear its own costs and expenses in
connection with the arbitration and the costs and expenses of
the arbitrators shall be borne equally. Judgment upon the
award rendered by the arbitrators may be entered by any court
having jurisdiction thereof.
XIII. MISCELLANEOUS PROVISIONS
SECTION 13.01 ENTIRE AGREEMENT. Each of the parties hereto acknowledges that it
read this Agreement, understands it, and agrees to be bound by its terms. The
parties further agree that this Agreement is the complete and exclusive state of
Agreement and supersedes all proposals (oral or written), understandings,
representations, conditions, warranties, covenants, and all other communications
between the parties relating thereto. This Agreement may be amended only by a
writing that refers to this Agreement and is signed by both parties.
SECTION 13.02 FORCE MAJEURE. In the event that either party is prevented from
performing, or is unable to perform, any of its obligations under this Agreement
due to any act of God, fire, casualty, flood, war, strike, lock out, failure of
public utilities, injunction or any act, exercise, assertion or requirement of
governmental authority, epidemic, destruction of production facilities,
insurrection, or any other cause beyond the reasonable control and without the
fault or negligence of the party invoking this provision, and if such party
shall have used its best efforts to avoid such occurrence and minimize its
duration and has given prompt written notice to the other party, then the
affected party's performance shall be excused for the period of delay or
inability to perform due to such occurrence.
SECTION 13.03 NO IMPLIED RIGHTS. Except for any licenses and immunities that are
expressly granted by this Agreement, nothing in this Agreement or course of
dealing between the parties will be deemed to create a license from any party to
the other of any intellectual property right, whether by estoppel, implication,
or otherwise.
SECTION 13.04 ASSIGNMENT. Customer represents that it is acting on its own
behalf and is not acting as an agent for or on behalf of any third party.
Neither party may assign or delegate this Agreement without the other party's
prior written consent, which consent shall not be unreasonably withheld, except
that either party may assign this Agreement without the other party's consent to
a parent, affiliate, subsidiary, successor in interest, or in connection with an
acquisition, merger, or sale of substantially all assets of a party which does
not materially and adversely affect its business activities or its abilities to
carry out its obligations under this Agreement.
SECTION 13.05 SEVERANCE. If any provision of this Agreement shall be held
illegal, unenforceable, or in conflict with any law of a federal, state, or
local government having jurisdiction over this Agreement, the validity of the
remaining portions or provisions hereof shall not be affected.
SECTION 13.06 REFORMATION. To the extent that any provision of this Agreement
shall be held illegal, unenforceable, or in conflict with any law of a federal,
state, or local government having jurisdiction over this Agreement, a court of
competent jurisdiction may modify such provision to achieve a provision that is
consistent with the parties' intent.
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SECTION 13.07 WAIVER. Except as specifically provided herein, neither party
shall by mere lapse of time without giving notice or taking other action
hereunder be deemed to have waived any breach by the other party of any of the
provisions of this Agreement. Furthermore, the waiver by either party of a
particular breach of this Agreement by the other party shall not be construed
as, or constitute, a continuing waiver of such breach, or of other breaches of
the same or other provisions of this Agreement.
SECTION 13.08 HEADINGS. The headings of paragraphs hereof are for the purpose of
reference only and shall not limit or otherwise affect any of the terms or
provisions hereof
SECTION 13.09 PARTIES BOUND. This Agreement shall bind and inure to the benefit
of the parties hereto, and their respective successors, subsidiaries and
authorized assigns.
SECTION 13.10 INTERPRETATION. The parties hereto acknowledge and agree that they
have each had the benefit of counsel and have participated in the drafting of
this Agreement. Therefore, the rule of law which provides that, if an ambiguity
is found to exist in an agreement, the ambiguity is construed against the party
who drafted the agreement, shall not apply to the interpretation of this
Agreement.
SECTION 13.11 NOTICE. All notices and other communications required or permitted
to be given under this Agreement shall be in writing and shall be considered
effective one (1) day after deposit with a nationally-recognized overnight
carrier, or five (5) days after deposit in the U.S. mail as certified or
registered mail, return receipt requested, postage prepaid, and addressed to the
party at the address noted above, unless by such notice a different address
shall have been designated in writing.
SECTION 13.12 GOVERNING LAW. All questions concerning the validity, operation,
interpretation, and construction of this Agreement will be governed by and
determined in accordance with the laws of the State of Indiana without regard to
conflict of laws principles.
IN WITNESS WHEREOF, the parties have caused the Agreement to be duly executed by
their authorized representatives as set forth below.
CUSTOMER LICENSOR
MTS, Inc. Medical Manager Midwest, Inc.
By: /s/ Illegible By: /s/ Illegible
-------------------------------- --------------------------------
Company: MTS Company: MMMW
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Date: Mar. 4, 1998 Date: 3-5-98
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Contingent upon lease approval as discussed with Xxx Xxxxxx
