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EXHIBIT 6.3
AMENDMENT TO
PURCHASE AND SOFTWARE LICENSE AGREEMENT
This Amendment, dated October 1, 1999, (the "Amendment") amends and supplements
the Purchase and Software License Agreement, dated July 27, 1998 (the "Original
Agreement"), by and between Food Services of America, Inc., a Delaware
Corporation located at 0000 Xxxxxxxx Xxx, X.X., Xxxxx 000, Xxxxxxx, Xxxxxxxxxx
00000 ("FSA"), and SureQuest Systems, Inc. a Nevada Corporation located at 00000
XX Xxxx., Xxxxxx, XX 00000 ("SureQuest").
WHEREAS, the Original Agreement recited that FSA would provide
SureQuest's Service Bureau to at least ___________________ accounts and
SureQuest's pricing, in the Original Agreement, for the Service Bureau
business was based on this commitment; and
WHEREAS, FSA was actually only able to provide SureQuest's Service
Bureau to approximately ________________ accounts; and
WHEREAS, FSA and SureQuest agree that SureQuest will waive FSA's
inability to provide the Service Bureau to ____________________
accounts, if FSA agrees to acquire additional software licenses in each
of the next three (3) years.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein after set forth, FSA and SureQuest hereby agree as
follows:
Section 1. The term "Agreement" as used in the Original Agreement is hereby
amended to mean the Original Agreement, as amended and supplemented by this
Amendment. All other capitalized terms used in this Amendment shall have the
meanings ascribed to them in the Original Agreement.
Section 2. The paragraph entitled "Additional licenses" on page 5 of the
Original Agreement is hereby amended in its entirety to read as follows:
"Additional Licenses:
FSA hereby agrees as follows:
(a) To acquire, on or before October 15, 1999, twenty-five (25)
licenses of the FirstLink Software at a license fee of ______________
_________________________________ per license, for a Total Purchase
Price of _________________________________________, plus taxes, if
applicable, subject to the following terms:
Terms: FSA agrees to wire transfer or send a check in the
amount of ________________________________________ to be
applied to the Total Purchase Price, such that the funds are
received by SureQuest on or before October 15, 1999. FSA
further agrees to pay the remaining balance of the Total
Purchase Price, ____________________________________, plus
taxes, if applicable, such that the funds are received by
SureQuest on or before January 5, 2000.
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(b) FSA further agrees to acquire additional licenses of the FirstLink Software
at a license fee of ________________________________________________ per
license, plus taxes, if applicable, as follows:
Placement Year Minimum Commitment Required Payment Date
-------------- --------------------- ---------------------
10/15/00-10/14/01 30 FirstLink Systems 10/15/00
10/15/01-10/14/02 30 FirstLink Systems 10/15/01
10/15/02-10/14/03 30 FirstLink Systems 10/15/02
FSA may acquire the above licenses, one or more at a time, and payment shall be
made in accordance with the Original Agreement for each such acquisition;
provided, however, that full payment shall have been made and received by
SureQuest for each year's commitment no later than the Required Payment Date (as
defined above). FSA shall endeavor to place in operation, during the Placement
Year subsequent to the required Payment Date, the licenses acquired and paid for
by such Required Payment Date. If FSA acquires more than ___________ FirstLink
Software systems prior to the Required Payment Date of each year, the
acquisition price for each system in excess of ___________ shall be _____
_______________________________________________, equal to a ___ percent (___)
discount off the ______ license price.
If FSA does not acquire all ___________ additional licenses by the Required
Payment Date of each year, the failure to do so shall not constitute a default
under the Original Agreement but, because of that failure, the license fee of
the FirstLink Software for that year's commitment shall increase to SureQuest's
then retail "list" price for the Three Squares(R) product (currently, the retail
list price is _______________________________________________________________
for the non-select menu Three Squares(R) product and ____________________
_______________________________________ for the select menu Three Squares(R)
product). To the extent that FSA did acquire some licenses for ______________
_____________________________________, but did not acquire all ___________
licenses in such Acquisition Year to retain the ________________________________
___________________ price, FSA shall pay to SureQuest, no later than the
applicable Required Payment Date, the difference between the _________________
_________________________________ license fee and SureQuest's then retail list
price, at October 1 of the appropriate year, for each license so acquired at the
____________________________________________________ price.
Furthermore, if FSA does not acquire all ___________ licenses by the Required
Payment Date, then FSA agrees as follows: (i) that FSA shall pay to SureQuest
__________________________________________ for ___________________ Service
Bureau accounts even if FSA does not have ___________________ Service Bureau
account customers. Any amounts paid by FSA to SureQuest for Service Bureau
Services pursuant to Section 8 of the Original Agreement shall be included in
this amount, as the intent of this provision is to have FSA pay for three
not acquire all of the additional software licenses committed to above; and (ii)
that SureQuest
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shall no longer be required to support and maintain the FirstLink
Software as a private label product and that all software systems
acquired by FSA as FirstLink shall be converted to SureQuest's Three
Squares(R) software product and SureQuest shall support and maintain
the Three Squares(R) product as it did the FirstLink Software".
Section 3. The paragraph entitled "Software Support" on page 6 of the Original
Agreement is hereby amended in its entirety to read as follows:
"Software Support. SureQuest agrees to provide, for all licenses
acquired by FSA pursuant to this Agreement, software support for FSA
and/or FSA customers, including semi-annual database updates for each
Branch, upgrades (as available from time to time) and technical support
pursuant to a toll free line. The cost to have these services available
(even if some are not actually used) is ______________________________
______ per month per license acquired; provided that this monthly price
is conditioned on FSA's customers having the appropriate hardware and
dataline (see Section 10 below). The charge for these services shall
commence in the month following the date of acquisition and shall be
payable on or before the tenth (10th) day of that and every succeeding
month during the Term (as defined in Section 15); provided, however,
that for the additional licenses acquired by FSA pursuant to Section 2
of this Amendment, FSA shall pay the above support fee as follows:
(a) for each license acquired pursuant to subparagraph (a) of Section 2
above, FSA shall commence payment of the support fees as each FirstLink
Software is placed in operation with an FSA customer but in any event
the support fees for all ________________ licenses so acquired shall
commence on March 1, 2000 and be payable on the first of every
succeeding month thereafter during the Term even if all such
________________ licenses are not placed in operation with an FSA
customer.
(b) for each license acquired pursuant to subparagraph (b) of Section 2
above, FSA shall commence payment of the support fees in the month
following the date that each FirstLink Software is placed in operation
with an FSA customer and such support fees for such "placed" Software
shall be payable on or before the tenth (10th) day of that and every
succeeding month during the Term. If all ___________ licenses are not
acquired by FSA the October 15 of the Acquisition Year or if all such
___________ licenses are so acquired but not all ___________ are placed
in operation with an FSA customer by March 1 of the succeeding
Acquisition Year, FSA shall nevertheless commence payment of the
support fees on all ___________ licenses on March 1 of the succeeding
Acquisition Year, just as if all such licenses had been acquired or
placed in operation by that date.
Section 4. The first two sentences in the paragraph entitled "Existing Accounts"
in Section 8 of the Original Agreement are hereby amended in their entirety to
read as follows:
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"Existing Accounts. FSA has at least ________ , _________ food service
customers which could be benefit from SureQuest's Service Bureau. FSA
agrees to provide, as a value-added service and for the duration of the
Agreement, the Service Bureau to at least __________________
(_____________ ) accounts."
Section 5. All other provisions of the Original Agreement shall continue in full
force and effect.
IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
duty executed by their respective officers, who are duty authorized, as of the
date first written above.
FOOD SERVICES OF AMERICA, INC. SUREQUEST SYSTEMS, INC.
By: /s/ XXXXXXX XXXXXXXXXXX By: /s/ C. XXXXX XXXXX XX
---------------------------- -----------------------
Xxxxxxx Xxxxxxxxxxx C. Xxxxx Xxxxx Xx
---------------------------- -----------------------
Name Name
V.P Business Development President
---------------------------- -----------------------
Title Title
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SUREQUEST SYSTEMS, INC.
[LOGO]
================================================================================
PURCHASE & SOFTWARE
LICENSE AGREEMENT
PREPARED FOR
================================================================================
FOOD SERVICES OF
AMERICA, INC.
--------------------------------------------------------------------------------
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PURCHASE AND SOFTWARE LICENSE AGREEMENT
This Purchase and Software License Agreement (the "Agreement") is
entered into this 27th day of July 1998, by and between Food Services of
America, Inc., a Delaware Corporation located at 0000 Xxxxxxxx Xxx, X.X., Xxxxx
000, Xxxxxxx, Xxxxxxxxxx 00000 ("FSA"), and SureQuest Systems, Inc, a Nevada
Corporation located at 00000 Xxxxx Xx., Xxxxxx, XX 00000 ("SureQuest").
WHEREAS, SureQuest has acquired the assets and business of Positive
Input, Inc, a Michigan corporation (now known as PIC of Michigan, Inc.) (such
assets and business so acquired by SureQuest is herein known as "PIC"); and
WHEREAS, PIC has developed, and SureQuest has acquired, a nutrition
management software program known generally as "Three Squares(R)"; and
WHEREAS, SureQuest, prior to the acquisition of PIC, also provided and
still provides a nutrition management software program and provides a leading
menu service; and
WHEREAS, FSA desires to offer various levels of nutrition management
software programs and menu services for use by FSA customers as a value-added
service and desires to license the Software defined below.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings hereinafter set forth, FSA and SureQuest do hereby agree as
follows:
Section 1. Definitions. Unless specifically stated otherwise, for the
purposes of this Agreement, the following terms shall be defined as follows:
Branch. Branch means one of the FSA geographic service areas generally
known as, and containing the current territories as set forth on
Schedule 1. The parties understand that FSA may have a geographic
service area, that while not designated as a Branch, may receive, and
be billed for, Software and Service Bureau services under this
Agreement but will not have separate menus or data bases.
PIC Software. The PIC Software which is the subject of this Agreement
includes the single-user versions of the "Non-Select Menu Management
Module" and the "Inventory/Purchase Control Module", which are
components of PIC's Three Squares(R) food service nutrition management
software program, whether sold under Three Squares(R) or another name.
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SureQuest Software. The SureQuest Software, which is the subject of
this Agreement, includes the single-user version of SurePref(TM) and
SureMenu(TM) with Nourishments.
Software. Software means, collectively, the PIC Software and the
SureQuest Software.
SureQuest. SureQuest means, collectively, the (i) SureQuest
organization as it existed before and continues after the acquisition
of PIC and (ii) the assets, business and personnel of PIC which has
been acquired by SureQuest.
Service Bureau. The Service Bureau is the SureQuest menu service
provided prior to the acquisition of PIC. (Service Bureau may factor in
mutually agreed on features from PIC Service Bureau.)
Licensed Materials. Licensed Materials shall mean the User's Manual and
such other documentation as is generally provided, in written and
electronic medium, by SureQuest for use with the Software and the
Service Bureau.
Maintenance. Changes to the Software that SureQuest deems necessary to
maintain and enhance its performance and "fixes" that FSA identifies.
Section 2. Summary of Business Relationships. FSA and SureQuest hereby
enter into a five (5) year business relationship, which shall be deemed to begin
July 27, 1998 and continue through and including July 26, 2003, unless
terminated earlier as provided below (See Section 15). FSA agrees to pay
SureQuest a one-time license fee of _______________________________________
__________, less _______________________________________ previously paid to PIC,
for the development of a private label software product and certain other
services and benefits (See Section 3). FSA also agrees to purchase licenses for
___________ copies of the PIC Software at a discounted price and further agrees
to purchase an additional ___________ licenses at a further discounted price as
set forth below during the Term of this Agreement (see Section 4). In addition,
SureQuest has agreed to provide two (2) levels of its SureQuest Software
pursuant to a monthly payment arrangement (see Section 5) and to provide several
different levels of its Service Bureau to certain of FSA's Branches (See Section
8). Also included in this Agreement are technical support, maintenance, data
base management, training and, to the extent requested by FSA, custom
programming.
Section 3. FirstLink and Other Services. At the time of execution and
delivery of this Agreement (the "Closing"), FSA shall pay to SureQuest, by
either corporate check or wire transfer, a one time license fee of ___________
______________________________________, less _____________________________
_________ previously paid to PIC, for a net amount due at Closing of ___________
__________________________ ("FirstLink License Fee"). The payment of this amount
entitles FSA to receive, and SureQuest hereby agrees to provide, the following:
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FirstLink. SureQuest shall license, on a non-exclusive basis, the PIC
Three Squares(R) program to be used by FSA as a private label product
under the name FirstLink (the "FirstLink Software"). FSA shall have the
right to place "FirstLink" with its food service customers and the
placement by FSA of the FirstLink product shall be called the
"Signature Level". The private labeling of the Three Squares(R)
software and Licensed Materials to become the FirstLink Program shall
be completed within thirty (30) days of the Closing and shall contain
the features of the PIC Software. The name FirstLink shall be owned by
FSA. FSA agrees that no other software program or service bureau which
competes with the Software or Service Bureau shall be given the name
FirstLink.
ServiceLink. SureQuest also agrees to provide the interface between the
FirstLink Software and FSA's ServiceLink direct order program
("ServiceLink") provided that FSA acts as the intermediary and obtains
SPS's (owner of ServiceLink) requirements, and all other technical
information required, to provide the interface with FirstLink. After
receiving all of the necessary information, SureQuest agrees to
complete the interface within ninety (90) days.
National Scope. Except as provided in this Agreement, FSA may use the
FirstLink Software and offer Service Bureau services, without
additional charges or limitations, anywhere in the United States.
Database Development. SureQuest agrees to create and maintain the
databases for each Branch by entering FSA food item codes, menu designs
and diet types. Each of the existing FSA Branches can specify to
SureQuest the item codes it wants in the database for the customers in
that Branch. The above payment of the FirstLink License Fee covers
providing the database input services for these existing Branches.
Additional Branches will be charged the following for these database
services: either (i) a one-time payment at the beginning of the
services of _____________________________ per Branch or (ii) a one-time
payment at the beginning of the services of _________________________
__________________________ and ___________________________________
______ per month per Branch. FSA agrees to provide, and SureQuest's
duties are subject to receiving, the information needed by SureQuest to
create these databases in accordance with a time schedule to be agreed
to by FSA and SureQuest.
Demonstration Software. As provided in Section 4 below, FSA
will purchase licenses to use the PIC Software for use by FSA
customers. Subsequent to this initial purchase, SureQuest shall provide
to each of the eight (8) FSA Health Care Specialists a "full use" copy
of the FirstLink Software for demonstration, testing and back-up
purposes. (As long as Health Care Specialists are trained, no support
fees will be charged for Health Care Specialist's "full use" license.)
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Upon the request of FSA, SureQuest shall also provide FSA with
one (1) "full use" copy of the FirstLink Software (with limited FSA
database information) to be used by Branch Sales Managers and qualified
prospective FSA customers evaluating the FirstLink product (the
"Evaluation Demo"). This Evaluation Demo shall have a thirty (30) day
expiration built-in and shall not be duplicated by FSA.
Marketing Plans/Materials. FSA and SureQuest will co-develop a
marketing plan for the Software and Service Bureau. The parties will
agree within thirty (30) days after the Closing and outline the
schedule for developing this plan, to include responsibilities and time
deadlines. The beginning of this planning program will start at the
three (3) day training program referenced in Section 6 below.
SureQuest will assist FSA in developing marketing materials for
the FirstLink program, to include customer mailings, a quarterly
newsletter, and a computer based slide presentation for use by the FSA
sales force and their customers. The parties will agree within thirty
(30) days after the Closing to develop the plan for producing these
marketing materials, to include responsibilities and time schedules;
provided, however, that the FirstLink License Fee mentioned above shall
include the cost of one mailing by SureQuest to all FSA's targeted
healthcare customers and for SureQuest's developing the quarterly
newsletter.
Food/Trade Shows. SureQuest agrees that SureQuest personnel will be
available to attend one (1) FSA Food Show or healthcare show per year
for each Branch and to attend the annual Regional Trade Shows in order
to explain/support the FirstLink product and the Service Bureau
services. FSA agrees to give SureQuest at least ninety (90) days prior
written notice of any such Food or Trade Shows. FSA further agrees to
reimburse, within ten (10) days after invoice, SureQuest's out of
pocket reasonable costs for travel, hotel and Fifty Dollars ($50) per
diem per person for attending these shows.
Monthly Xxxxxxxx. For the payment of the FirstLink License Fee, FSA
shall be entitled to receive the SureQuest Software and Service Bureau
pursuance to a monthly billing arrangement set forth in Sections 5 and
8 below.
Section 4. Acquisition of PIC Software Licenses.
Required Licenses. Simultaneously with the execution and delivery of
this Agreement, FSA purchases, and SureQuest licenses to FSA, ______
____ individual user licenses for the PIC Software, to be used as the
FirstLink Software, at a fee of ______________________________________
___________ per license, for a total license fee of _______________
____________________ plus taxes, if applicable. (This price includes
second day shipping. The cost of expedited one-day shipping will be
borne by FSA.) Heretofore, FSA has acquired from PIC, five (5) licenses
(the "Prior Licenses") for the PIC Software which have not been
designated the
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FirstLink Software but which shall be credited towards the __________
required licenses, leaving a remaining ____________ to be acquired at
the time of Closing. Therefore, at Closing, FSA shall pay SureQuest
___________________________________________________ plus taxes, if
applicable. SureQuest shall private label the five (5) prior licenses
FSA has previously acquired by December 31, 1998 as FirstLink products.
Additional Licenses. FSA hereby agrees to acquire, on or before January
1, 2000, an additional ___________ licenses, one or more at a time, of
the FirstLink Software at a license fee of ___________________________
________________________ per license plus taxes. If FSA acquires all of
these twenty (20) additional licenses by January 1, 2000, FSA shall
have the right to acquire all subsequent licenses for the duration of
this Agreement for __________________________________________________
per license. If FSA does not acquire all of these ___________________
additional licenses by January 1, 2000, the failure to do so shall not
constitute a default under this Agreement but, because of that failure,
the license fee of the FirstLink Software shall increase to SureQuest's
then retail "list" price for the Three Squares(R) product (currently,
the retail list price is _____________________________________________
___________________) and, to the extent that FSA did acquire some
licenses for _________________________________________________, but did
not acquire all ___________ licenses to retain the ____________________
______________________________ price, FSA shall pay to SureQuest, no
later than January 15, 2000, the difference between the _______________
__________________________________ license fee and SureQuest's then
retail list price, at January 1, 2000, for each license so acquired at
the _________________________________________________ fee.
FSA may also acquire the license to acquire the select menu program for
the PIC Software when FSA also acquires one of the licenses mentioned
in one of the two (2) immediately preceding paragraphs. The acquisition
price for this select menu program is _________________________________
per copy (which is in addition to the license fee mentioned in one for
the two immediately preceding paragraphs) and, when so acquired, the
name of this select menu product shall be "FirstLinkSelect."
If, during the Term of this Agreement, FSA acquires __________________
PIC and/or SureQuest Software licenses (which may include, and are not
in addition to the __________ PIC Software licenses mentioned in the
preceding paragraphs), SureQuest agrees to pay FSA, within thirty (30)
days after the Term of this Agreement as set forth in Section 15,
___________________________________ and, in that event and if the
parties agree to extend the Term of this Agreement, then FSA shall have
the right to acquire additional PIC Software licenses for the duration
of the extended Agreement for ________________________________________
________________________ per license.
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Licensed Materials. Each license acquired shall include one (1) copy of
the Licensed Material. Additional manuals may be purchased for ________
______________________ each.
Software Support. SureQuest agrees to provide, for all licenses
acquired by FSA pursuant to this Agreement, software support for FSA
and/or FSA customers, including semi-annual database updates for each
Branch, upgrades (as available from time to time) and technical support
pursuant to a toll free line. The cost to have these services available
(even if some are not actually used) is _______________________________
______ per month per license acquired; provided that this monthly price
is conditioned on FSA's customers having the appropriate hardware and
dataline (see Section 10 below). The charge for these services shall
commence in the month following the date of acquisition and shall be
payable on or before the tenth (10th) day of that and every succeeding
month during the Term (as defined in Section 15.
Relocated Software. If FSA relocates the FirstLink Software from one
site to a different customer's site, FSA shall so notify SureQuest and
SureQuest shall provide FSA a new install disk at ___________________
_____ per disk and new Licensed Materials for _______________________
______ per manual. This fee for new install disks and manuals may
increase, from time to time, if SureQuest increases these fees for
other SureQuest client's for replacement software or additional
manuals. The new install disk will contain the latest databases. Before
SureQuest will provide the new disk and manual, FSA agrees to return to
SureQuest the superceded program disk and manual and the security
device (dongle) applicable to that software program.
Section 5. SureQuest Software. In addition to the acquisition of PIC
licenses, FSA shall also have the right to license certain levels of the
DOS-based SureQuest Software as follows (the "SureQuest Licenses"):
SurePref(TM) with Nourishments. For _________________________ per month
per license, FSA can acquire the license to use SureQuest SurePref(TM)
with Nourishments program. This is a Tray Ticket printing program
(non-selective) with Service Bureau menus for FSA pre-loaded,
nourishment labels, computerized resident/patient cardex and production
sheets (the program does not include the nutritional diet spread
sheets). This will be called the "Pride Level". The use of the software
still requires any level of the Service Bureau to meet Government
requirements.
SureMenu(TM) with Nourishments. For _____________________________
______ per month per license, FSA can acquire the license to use
SureQuest's SureMenu(TM) with Nourishments. This is a select or
non-select Menu printing program with
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Service Bureau menus for FSA pre-loaded, computerized, resident/patient
cardex, nourishment control and pre-prep and production sheets. This
will be called the "Elite Level". The use of this software still
requires any level of the Service Bureau to meet Government
requirements.
Miscellaneous. The SureQuest Software mentioned above will not be a
private label product for FSA and the above monthly charges will
include software technical support from SureQuest for FSA and/or FSA
customers (via a toll free line). Billing will be on the first of the
month after installation and invoices will be payable within ten (10)
days of receipt of invoice.
Section 6. Training. SureQuest shall provide a three (3) day training
program on the PIC Software and on the SureQuest Software and Service Bureau for
FSA corporate staff and each FSA Branch's Health Care Specialist or their
respective designees to begin on July 28, 1998 at SureQuest's corporate
headquarters in Dallas, Texas. FSA agrees to pay SureQuest, within ten (10) days
of receipt of an invoice, ________________________________ for this three (3)
day training program. SureQuest also agrees to provide special training
programs, at least twice a year, for the FSA Branch's Health Care Specialists
and for the FSA field sales force at a time and place to be agreed upon.
SureQuest also agrees to provide additional training programs for either FSA
personnel or for clients of FSA on the Software operations. The cost of any of
this training will be ___________________________ a day plus reimbursement for
reasonable out of pocket travel, lodging and ______________________ per diem per
person. These costs shall be paid by FSA within ten (10) days of receipt of an
invoice.
Section 7. Custom Programming. Upon the written agreement of FSA and
SureQuest, SureQuest shall perform custom software programming for FSA. In this
event, the parties shall develop, and agree upon, a work plan, time schedule and
estimated budget for any custom programming. SureQuest's charges for any custom
programming shall be _________________________ per hour (subject to increases).
SureQuest agrees to a fifteen percent (15%) cap on budget overrides. Custom
programming expenses will be billed by SureQuest as incurred, and each invoice
shall be paid by FSA within ten (10) days after receipt of each invoice.
Section 8. Menu Service Bureau.
Existing Accounts. FSA currently has at least ___________________ food
service customers which could benefit from SureQuest's Service Bureau. FSA
agrees to provide, as a value-added service and for the duration of the
Agreement, the Service Bureau to at least ___________________ of these accounts.
FSA further agrees that the Service Bureau shall be the only service of its kind
offered by FSA to its clients during the term of this Agreement except where
otherwise required of FSA by a customer.
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Service Bureau Options. SureQuest agrees to provide FSA several options
on the level of Service Bureau service as follows:
Base Level -- This level of service is described on Schedule 2.
This service is priced at _________________________________
________ a month per FSA customer site.
Secondary Level -- This level is described on Schedule 2 and is
priced at __________________________________ per month FSA
customer site.
Custom Level -- This level is described on Schedule 2 and is
priced at _____________________________________ per month per
FSA customer site.
Payments. The invoices for the appropriate level of Service Bureau
shall be mailed monthly on the first of the month preceding the month in which
installation is scheduled (and on the first of the month for each month
thereafter) to the appropriate FSA Branch and will be based on the number of FSA
clients using the different levels of service. Billing for FSA's accounts which
use the Fall/Winter menu cycle will begin on September 1, 1998 for installation
in October, 1998. Billing for FSA's accounts which use the Winter/Spring menu
cycle will begin on December 1, 1998 for installation in January, 1999. FSA
agrees to pay all such invoices within ten (10) days of the receipt of the
invoice.
Section 9. License.
All licenses for the Software, the Licensed Materials and other
software discussed herein (the "Licensed Property") are non-exclusive, single
user licenses and are limited to be used only with FSA food service customers.
This Agreement does not create in FSA any ownership or title rights to the
Licensed Property. FSA further agrees not to network multiple users on a single
licensed software. Subject to receiving SureQuest's prior written approval, FSA
shall have the right to sublicense others to use, consistent with this
Agreement, the Licensed Property for their intended purpose of providing
Healthcare facilities with computer assisted menu management, nutrition
information and patient tracking. FSA shall only have the right to use as many
copies of the Licensed Property as are covered by the license fees paid
hereunder. FSA hereby agrees to use exclusively the Software with FSA customers
who request these services and FSA shall not use SureQuest's competitors'
software, except where required by a FSA customer.
Section 10. Hardware and Data Line.
In order for FSA and FSA's customers to receive full benefit from, and
to allow SureQuest to provide the appropriate software support, it is necessary
that FSA and its customers have appropriate hardware and dedicated data lines.
Schedule 3 lists the appropriate hardware and back-up and printer specifications
and UPS requirements which are currently necessary for the PIC Software. The
parties agree that hardware
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specifications may change in the future to accommodate updated software and that
FSA and its customers may have to upgrade hardware in these instances. Also, FSA
and each FSA customer shall have a dedicated, direct modem line for the
computers.
Section 11. Customer/User list.
In order to allow SureQuest to know which FSA customers are entitled to
support pursuant to this Agreement, FSA shall initially provide to SureQuest a
complete list of its customers (by FSA Branch, with addresses, contact person,
phone numbers, etc.) that are currently using and are going to use the PIC
Software, the SureQuest Software and/or the Service Bureau. SureQuest shall
maintain the list and provide it to FSA monthly for FSA to update it and make it
current as FSA customers are added or deleted from one or more of these
programs. The parties agree to develop a system to correct any discrepancies
between the information in the FSA and SureQuest files.
Section 12. Representations and Warranties.
WARRANTIES and REPRESENTATIONS of SUREQUEST
a) SureQuest warrants and represents that SureQuest is the lawful
owner of the Software, and that it has full power and
authority to license the Software to FSA and that the Software
is free and clear of all liens and encumbrances.
b) SureQuest warrants and represents the Software does not
infringe upon any patent, copyright, license, trade secret or
other proprietary right of any third party. In the event the
Software is adjudicated to be in violation of the above
non-infringement warranty or is enjoined as a result of a suit
based on any claim of infringement, SureQuest at its own
expense will:
i) Negotiate a license or other agreement with the
claimant so that the Software is no longer subject to
the injunction.
ii) Replace the infringing components of the Software with
compatible, non-infringing components of equal or
better performance and quality subject to the approval
of FSA.
iii) Modify the Software so that it becomes non-infringing
without materially affecting the performance or
usability of the Software.
iv) Procure a license for FSA that allows FSA continued
use of the Software without additional expense to FSA.
Payments by SureQuest to procure such license could
include: license fee(s); royalties, attorney's fees
and other related costs. If SureQuest, in a good faith
effort, determines that none of the above options are
practical, then FSA will return the Software to
SureQuest within three (3) months of FSA's receipt of
such determination. SureQuest, upon receipt of the
Software, will refund to FSA all license fees paid by
FSA less depreciation at the rate of fifteen percent
(15%) per year based upon the date the Software
license was first acquired by FSA.
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v) SureQuest will indemnify FSA, its directors, officers,
and employees from and against any claims or damages
awarded against FSA which result from the actual
infringement by SureQuest of any such patent,
copyright, license, trade secret or other proprietary
right of any third party. Indemnification of FSA by
SureQuest is subject to the following conditions:
o FSA must promptly notify SureQuest in writing of
any such claim, or significant threat thereof;
o FSA must give SureQuest the right to control the
defense of all such claims, lawsuits, and other
proceedings;
o FSA will not settle any such claim, lawsuit, or
proceeding without SureQuest's prior written
approval.
c) SureQuest represents that it is implementing a program to make
the Software year 2000 compliant by July 1, 1999. Specifically,
this means that the Software will continue to operate correctly
at least through 2070. It will perform all date-related
arithmetic and logical operations correctly, including
operations which cross the century boundary, sort date-related
information in correct chronological order, correctly recognize
the year 2000 as a "leap-year", and store internal,
date-related information (including all interim date-related
results) in a manner that is unambiguous as to century.
d) SureQuest warrants and represents FSA will have quiet and
peaceful enjoyment of the use of the Software for the duration
of this Agreement until and unless this Agreement is properly
and lawfully terminated, ended, or otherwise declared
ineffective, as specified herein.
e) SureQuest warrants the Software will conform to published
specifications and documentation (e.g. user and technical
manuals) and to be free from defects in materials or
manufacture under normal use for a period of 90 days from the
date of receipt of the Software by FSA. Programs found to have
a defect in the medial or that do not comply with published
specifications will be fixed and provided at no extra charge to
FSA.
f) SureQuest agrees to offer Software support subsequent to the
warranty period pursuant to Section 4 above.
SureQuest warrants for ninety (90) days that the Software will perform
in accordance with the written documentation and specifications of the SureQuest
software programs as presented to FSA. Should any of the Software delivered to
FSA not function during this period in accordance with the documentation and
specifications, after written notice to SureQuest and reasonable opportunity for
SureQuest to correct nonconformance, FSA shall be entitled to a refund of any
and all money paid to SureQuest with respect to the non-conforming Software, and
this Agreement with respect to the non-conforming Software (but not as to any
other part of the Agreement) shall terminate. Any demand for refund pursuant to
this Section must be received in writing by SureQuest within six (6) months from
the time when the opportunity to correct the nonconformance has expired.
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SureQuest does not make any representation or warranty that the Software as
delivered to FSA or to an FSA customer fulfills any particular State's
nutritional or operational requirements. Each individual customer of FSA which
uses the Software is responsible for advising FSA and SureQuest of its State's
nutritional requirements so that this information can be loaded by SureQuest
into the database for the facilities in that State. Each FSA customer is also
responsible to advise in writing FSA and SureQuest of (i) the necessary updates
of data to ensure that the Software remains in compliance with said customer's
State's nutritional and/or operational standards and (ii) any other special
nutritional information or needs. FSA agrees to advise its customers of these
obligations.
If any modifications are made without written authorization of SureQuest to the
Software by either FSA or a customer of FSA during the warranty period, this
warranty shall immediately terminate. Modifications for difficulties or defects
traceable to FSA's or FSA's customer's errors or systems changes shall be billed
at SureQuest's standard time and materials charges.
Section 13. Proprietary Information.
Non-Disclosure. Without the other party's prior written consent, and then only
to the extent reasonably necessary for each to perform its obligations under
this Agreement, neither party shall, directly or indirectly, furnish or disclose
to any person or entity or use in any way for its or any third party's benefit
any proprietary or confidential information of the other, except information
which may:
(a) be required to be disclosed or divulged by law or
regulation, or
(b) become part of the public domain, except by an act or
omission of the disclosing party, or
(c) be received by either party from a third party having
legal right to transmit same to such recipient.
Restriction. FSA shall not copy, reverse engineer, decompile or disassemble the
Software, or copy or reproduce the Licensed Materials accompanying the Software
or Service Bureau without SureQuest's written consent. FSA agrees to take
appropriate and reasonable actions to prevent the use of the Software on more
computers than have paid-up licenses.
Reservation. Nothing in this Agreement shall be construed to grant either party
any rights with respect to the other's copyrights, trademarks, trade names,
service marks, or other intellectual property except the narrowest such rights
necessary for each to perform its obligations hereunder.
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Intellectual Property Notices. FSA will ensure that all copyright, patent,
proprietary and trade secret notices of SureQuest or PIC will remain on the
Software in any form and on all Licensed Materials.
Remedy for Breach. Each party acknowledges that compliance with the restrictive
covenants contained in this section are necessary to protect the other's
substantial investment in proprietary information. Each party recognizes the
irreparable harm and continual damage that would result from a breach of these
covenants for which money damages may not be adequate. In the event either party
breaches, threatens to breach or willfully violates any of the covenants
contained herein, the other shall be entitled to any legal or equitable relief
available, including, without limitation, specific performance, immediate
preliminary and/or permanent injunctive relief, and money damages insofar as
they can be determined.
This Section shall survive termination of this Agreement
Section 14. Mediation and Indemnification.
Mediation. If any claim arising out of this Agreement (other than a claim for
injunctive relief which shall not be covered by this provision) cannot be
settled by the parties, such claim shall be settled by mediation, in a neutral
geographic location. The parties shall mutually agree on this geographic
location and a mediator. To the extent they cannot agree on the location or the
mediator, each party shall name a mediator and these two mediators shall choose
a third mediator. Decisions (including the decision on the neutral geographic
location) will be made by a majority of the three mediators hearing the claim or
dispute. The parties shall bear their own costs and fees, and shall each pay
one-half (1/2) of any mediator's fees.
Indemnification and Hold Harmless. FSA shall indemnify and hold SureQuest and
its shareholders, directors, officers, agents and employees harmless from any
and all claims; causes of action, loss, damage, costs and expenses, judgments,
orders, civil and criminal penalties, forfeitures and assessments arising from
or related to (i) the failure of FSA to perform as required by this Agreement;
or (ii) any services rendered by FSA or any employee of FSA pursuant to this
Agreement.
SureQuest shall indemnify and hold FSA and its shareholders, directors,
officers, agents and employees harmless from any and all claims, causes of
action, loss, damage, costs and expenses, judgments, orders, civil and criminal
penalties, forfeitures and assessments arising from or related to (i) the
failure of SureQuest to perform as required by this Agreement; or (ii) any
services rendered by SureQuest or any employee of SureQuest pursuant to this
Agreement.
Attorney's Fees. In the event of the commencement of suit to enforce any of the
terms or conditions of this Agreement, prevailing party's attorney fees will be
paid by the nonprevailing party.
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Section 15. Term. This Agreement shall be for a five (5) year term
commencing on July 27, 1998 and continuing through and including July 26, 2003.
At the termination of this Agreement, FSA shall continue to have the right to
use the same number of FirstLink Software licenses which were acquired prior to
the termination of this Agreement, upon payment to SureQuest of a monthly
maintenance fee to be agreed to in writing, at that time, between FSA and
SureQuest. The parties shall also agree in writing for the period after the
termination of the Agreement on the terms and costs of any software updates,
technical support and other appropriate matters, including access to the
SureQuest Software and the Service Bureau.
SECTION 16. LIMITATION OF DAMAGES. FOR ANY BREACH OR DEFAULT BY
SUREQUEST IN CONNECTION WITH THIS AGREEMENT, EVEN FOR A BREACH OF FUNDAMENTAL
CONDITION, FSA'S EXCLUSIVE REMEDY SHALL BE PAYMENT BY SUREQUEST OF FSA'S
DAMAGES TO A MAXIMUM AMOUNT EQUAL TO THE AMOUNT PAID BY FSA UNDER THIS
AGREEMENT.
IN NO EVENT SHALL SUREQUEST'S LIABILITY FOR DAMAGES EXCEED THE AMOUNT PAID BY
FSA UNDER THIS AGREEMENT. IN NO EVENT SHALL SUREQUEST BE LIABLE FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, LOSS OF COMPUTER TIME, FAILURE TO
ATTAIN ONE OR MANY OBJECTIVES (ECONOMICAL OR OTHER).
Section 17. Assignment/Transfers Prohibited.
Except as may be otherwise provided herein, this Agreement may not be
assigned nor may any of the rights and obligations of the parties under the
terms of this Agreement, including the license rights, be assigned,
subcontracted or otherwise transferred. Any such assignment, subcontract or
other transfer shall be null and void, ab initio.
Section 18. Notices.
All notices and other communications provided for in this Agreement
shall be in writing and shall be deemed to have been given or made when sent by
certified mail, return receipt requested, as follows:
If to FSA, addressed to: Food Services of America, Inc.
0000 Xxxxxxxx Xxx, X.X., Xxxxx 000
Xxxxxxx, XX 00000
Attn: XxXxxx Xxxxxx, R.D., C.D.
If to SureQuest or PIC, addressed to: SureQuest Systems, Inc.
00000 Xxxxx Xx.
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, COO
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Section 19. Severability.
Each provision of this Agreement shall be construed in such a manner as
to give such provision the fullest force and effect permissible at law or in
equity. To the extent that any provision herein, or part thereof, is held to be
unenforceable or invalid by court of competent jurisdiction, such
unenforceability or invalidity shall not affect the enforceability or validity
of the remaining provisions of this Agreement which shall remain in full force
and effect, nor shall such unenforceability or invalidity render such provision
inapplicable to other facts in the context of which such provision or part
thereof, would be held legally enforceable or valid.
Section 20. Waiver or Modification.
It is agreed that no waiver or modification of this Agreement or of any
covenant, condition or limitation herein contained shall be valid unless made in
writing and duly executed by the party to be charged therewith.
No waiver by either of the parties of any breach by the other party or
of compliance with any condition or provision of this Agreement shall be deemed
to be a waiver of any other provisions or conditions of this Agreement or of any
further breach or non-compliance so waived.
Section 21. Default and Termination. This Agreement and any rights
granted hereunder can be terminated as follows:
(a) by the mutual written consent of the parties hereto; or
(b) if either party fails to perform its obligations as set
out in this Agreement and such failure to perform is not
corrected within thirty (30) days after written
notification of such failure from the other, this
Agreement may be terminated upon thirty (30) days
written notice of termination to the defaulting party.
Any such termination of this Agreement shall be without prejudice to any other
remedies which either party may have against the other arising out of each
breach or default and shall not affect any rights or obligations of either party
arising under this Agreement prior to such termination.
Section 22. Governing Law.
The parties hereto agree that it is their intention and covenant that
this Agreement and the mutual and respective performance thereof and all
litigation and special proceedings hereunder be construed in accordance with and
under and pursuant to the laws of the State of Texas and that in any action,
special proceeding or other proceeding
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that may be brought arising out of; in connection with, or by reason of this
Agreement, the laws of the State of Texas shall be applicable and shall govern
to the exclusion of the law of any other forum, without regard to the
jurisdiction in which any action or special proceeding may be instituted.
Section 23. Miscellaneous.
Software Title/Governmental Fees. SureQuest retains title and all ownership
rights to the PIC and SureQuest Software, the FirstLink Software (other than the
name) and all other software described herein. FSA agrees to pay all fees and
taxes imposed by the federal, state or local government regarding the use,
possession or ownership of its license thereof.
Technical Support Availability. In order to provide timely technical support,
SureQuest personnel will be available 24 hours a day, seven days a week, via
toll free line. This toll free line will be manned from Monday to Friday,
excluding holidays (New Years Day, Memorial Day, July 4th, Labor Day,
Thanksgiving Day and Christmas Day) during the hours of 8:00 a.m. through 6:00
p.m. Central Time. At all other days and times, such personnel will be available
via pager. Response time to a page will not exceed thirty (30) minutes in order
to assess if situation is "critical" in nature. Response to non-critical "downs"
will be less than ten (10) hours.
Users Changing Food Distributors. If an FSA customer no longer qualifies for FSA
delivery services and FSA retrieves the Software from this customer, FSA agrees
that the data relating to that customer continues to be the property of that
institution and SureQuest may continue to do business with that institution for
either Software or Service Bureau service, or both, and, if the institution
agrees, to have access to that institution's data. SureQuest agrees that if it
continues in a business relationship with a former customer of FSA, SureQuest
will not give that customer the FirstLink product nor will that institution have
the favorable pricing set forth herein for FSA customers. FSA data, menus, items
and prices could be replaced in the customer's system with the installation of
the Three Squares Software.
Payment Terms. Payments due SureQuest or PIC pursuant to Section 3 (Food/Trade
Shows), Section 4 (Software Support), Section 5 (Miscellaneous), Section 6
(Training), Section 7 (Custom Programming) and Section 8 (Payments) of this
Agreement which are not received on time are subject to and will be assessed
late charges equal to one and one half (1.5%) percent per month calculated daily
from the date of invoice. Failure to make timely payment for the SureQuest
Software or for the Service Bureau services may result, in SureQuest's sole
discretion, in terminating such services without violating this Agreement.
SureQuest agrees, however, not to terminate such services unless it shall have
first given written notice to FSA of the default in payment and full payment
(including any late charges) is not made within ten (10) days from the date of
such notice.
Force Majeure. Neither party to this Agreement shall be liable to the other for
failure to perform its part of this Agreement, when such failure is due to a
breakdown of
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transportation, explosion, storm, fire, flood, war, riot, civil disorder,
vandalism, sabotage, labor dispute, Act of God or any other cause beyond the
control of the parties of this Agreement.
US Government Restricted Rights. The Software and License Materials are provided
with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights
in Technical Data and Computer Software clause at 48 CFR {252.227-7013.
Contractor/manufacturer is SureQuest Systems, Inc., 00000 Xxxxx Xxxx, Xxxxxx,
Xxxxx 00000.
Sales Incentives. The parties agree that it is in their mutual best interest to
place as many Software programs and Service Bureau services with FSA customers.
To this extent, the parties agree that SureQuest can develop appropriate
incentives for FSA's Health Care Specialists and FSA sales force to market,
promote and place as many Software programs and Service Bureau services as
possible with FSA customers with FSA Branch Sales Manager's coordination and
approval.
Promotional Material. FSA and SureQuest may make reference to the other party
and to this business relationship in promotional material, press releases,
disclosure documents and other appropriate documents provided that the other
party reviews and approves such references prior to the dissemination thereof
except as otherwise required by law.
Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter and supersedes all other
contemporaneous Agreements between the parties in connection with the subject
matter. No supplement shall be binding, unless executed in writing by the
parties to this Agreement. Further, this Agreement shall be binding upon FSA and
SureQuest and shall inure to the benefit of FSA and SureQuest and to their
respective heirs, successors and assigns provided, however, the term "assigns"
shall not be deemed to permit an assignment of this Agreement except as
expressly provided herein.
Captions. The captions of this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
Mutual Duties and Obligations. The parties agree that, upon the request of the
other, each shall promptly execute, swear to, acknowledge under oath and/or
deliver such further documents and instruments, information and other further
assurances and promptly perform further acts as may be necessary, appropriate or
incidental to carry out the intent and purpose of this Agreement.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement to be duly
executed by their respective officers, thereunto duly authorized, as of the date
first above written.
FOOD SERVICES OF AMERICA, INC. SUREQUEST SYSTEMS, INC.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
-------------------------------- -----------------------------
Title: V.P. Business Development Title: Chairman
----------------------------- --------------------------
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SCHEDULE 2
MENU SERVICES - A packet of information in `hard-copy' form consisting of
Week-at-a-Glance summaries/Posting Menus, Daily Diet spreadsheets, a per Patient
Day Generic Costing summary, a Generic Production Spreadsheet, a Grocery
List/Purchase Guide based on one of the eight item code databases, Quantified
Recipes, and daily, weekly and cycle Nutritional Analysis with weekly average
values compared to average RDA's is provided twice-per-year on either a
Spring/Summer, Fall/Winter cycle or a Summer/Fall, Winter/Spring cycle. (Two
master menus per cycle(s) are maintained.)
BASE LEVEL - Packet is based on one of two Regional four (4) or five (5) week
cycle `base' menus established/altered by FSA at cycle change, but not alterable
by FSA's customers or by FSA at other times. FSA establishes a set of
Therapeutic Diets and a set of Quantification Levels for each of the two
Regional Base Menus.
SECONDARY LEVEL - Packet is based on one of two Regional four (4) or five (5)
week cycle menus established/altered by FSA's at cycle change customers may make
reasonable changes to the menus to `personalize' the content to match facility
needs, change up to five (5) of the established Therapeutic Diets, and select up
to three Recipe Quantification levels at cycle change time.
CUSTOM LEVEL - Packet is based on one of two Regional four (4) or five (5) week
cycle menus established/altered by FSA or may be based on customer developed
menus. Menus may be altered/changed at no additional charge on a monthly basis
and will be sent directly to the FSA client site by the first of the month
before the month of usage.
CORPORATE MENUS - Corporate Customers may have their own menus and diet
requirements. These are available and will need to be handled on a case-by-case
basis.
HOLIDAY AND THEME MEALS - A meal menu with quantified recipes, but not
including nutritional or therapeutic analysis or spreadsheets, for up to twelve
(12) specific meals per year.
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