TECHNICAL SUPPORT AGREEMENT
National Jewish Center Denver
Licensee State of Incorporation
0000 Xxxxxxx Xxxxxx
Address
Denver, Colorado 80206
City, State, Zip Code
000-000-0000 Xxx Xxxxxx
Area Code/Phone No. License Representative
This Agreement is made and entered into as of this 18th day of December, 1996,
by and between LifeRate Systems, Inc. (LRSI) a Minnesota Corporation, having
it's principal offices at 0000 Xxxxx Xxxx., Xxxxxxxxxxx, XX. 00000-0000 and the
Licensee identified above.
LRSI and Licensee have entered into a Development Agreement (the "Development
Agreement") on this date pursuant to which LRSI has granted to Licensee a
restrictive and nonexclusive license to use the LRSI Software as defined in the
Development Agreement. Licensee desires to obtain from LRSI certain technical
support services with respect to the LRSI Software and Licensee's use thereof.
The terms "LRSI Software, "Documentation," "Defined Computer," "Defined Computer
Site," and other capitalized terms have the same meaning in this Agreement as in
the Development Agreement, except that for purposes of this Agreement, the term
"LRSI Software" shall include any error corrections provided by LRSI pursuant to
Section 1(b) and any new releases, enhancements, or software provided by LRSI
pursuant to Sections 1(d), 1(e), and 1(f) of this Agreement, and the term
"Documentation" shall include any user documentation or other printed or
tangible materials delivered by LRSI to Licensee in connection with any of the
foregoing.
In consideration of the mutual covenants contained herein and other valuable
consideration, the adequacy and receipt of which is hereby mutually
acknowledged, the parties hereto agree as follows:
1. SUPPORT SERVICES. During the term of this Agreement, LRSI agrees to provide
the following technical support services to Licensee:
(a) LRSI agrees to assume primary responsibility for assisting Licensee
with reasonable promptness in determining the cause of any malfunction in
the LRSI Software. If the case of such malfunction is reasonably believed by
LRSI to be attributable to either the Licensee's computer hardware equipment
or the operating software used with such equipment. LRSI agrees to provide
such assistance to obtain and facilitate, at Licensee's expense, the
warranty or maintenance services to remedy the same. As a condition to the
obligations of LRSI under this Section 1(a), Licensee agrees to maintain
Licensee's computer hardware equipment and operating software maintenance
contracts in effect as reasonably recommended by the equipment vendor
(b) LRSI agrees to use prompt and commercially reasonable efforts to
correct verifiable and reproducible errors in the LRSI Software which are
reported to LRSI by Licensee in accordance with LRSI's standard reporting
procedures. For purposes of this Agreement, the term "error" means any failure
of the LRSI Software to function on the Defined Computer substantially as
provided in LRSI's then current Documentation for the LRSI Software. The
correction of errors shall involve either a software modification or addition
that, when made or added to the LRSI Software, makes them capable of functioning
on the Defined Computer substantially as provided in the Documentation, or a
procedure or routine that, when observed in the regular operation of the LRSI
Software, eliminates the practical adverse effect on Licensee of the error. LRSI
shall have no responsibility under this Agreement with respect to errors in any
version of the LRSI Software other than the most recent release thereof made
available by LRSI to Licensee pursuant to Sections 1(e) and 1(f) (or the release
of the LRSI Software delivered pursuant to the Development Agreement, if no
release has been made pursuant to Sections 1(e) or 1(f) of this Agreement),
provided that LRSI shall continue to support a prior release for a reasonable
period sufficient to allow Licensee to implement the most recent release, but
not to exceed 90 days.
LRSI's obligations under this Section 1(b) are conditioned upon proper us of
the LRSI Software and shall not apply if Licensee makes or permits any
modification or alteration therein, or deviates from the operating
procedures therefor which are suggested by LRSI, or if an error results in
whole or in part from any neglect, accident or misuse by Licensee or its
employees or agents, or from any Defined Computer or other equipment failure
or failure to maintain a proper operating environment , or from any error in
the operating software which are not part of the LRSI Software. If LRSI
performs services to correct an error and it is determined that the error
resulted in whole or in part form circumstances described in the preceding
sentence, LRSI shall have the option to charge License a reasonable fee for
such service in addition to the fee provided for in Section 4 herein, which
fee shall be based on LRSI's then standard rates for personnel, computer
usage, travel and other costs.
Should LRSI, or its successor as approved in writing by Licensee,
discontinue support of the LRSI Software as defined in the Development
Agreement and its attached Exhibits within five (5) years after the final
payment date, then Licensee shall have the right to receive the source code
of the current version of the LRSI Software. Licensee shall only have a
right to use such LRSI Software source code for its' benefit and that if
its' affiliates as defined in Exhibit D of the Development Agreement.
Licensee understands that it is obligated to abide by the terms and
conditions of Sections 8, 9, and 19 of the Development Agreement and Section
10 of this Agreement.
(c) LRSI shall be available to provide reasonable 24 hour a day telephone
assistance to Licensee in problem diagnosis and resolution with respect to
Licensee's use of the LRSI Software. LRSI shall, at its expense, maintain an
800 number for this purpose. On Sunday's and on Federal and State holidays,
LRSI's response may be slower to the extent it utilizes an answering service
or paging device. The telephone support service to be provided by LRSI shall
not be a substitute for proper training of Licensee's employees.
Except in emergency situations, all telephone communications by Licensee
shall be made by Licensee's representative designated by it from time to
time pursuant to Section 11 herein.
(d) LRSI intends, from time to time, to issue new releases of the LRSI
Software to its customers generally, containing error corrections and minor
enhancements. LRSI shall provide Licensee with a copy of any such releases.
Enhancements may be designated by LRSI as minor or major depending upon the
functions added to the prior releases of the LRSI Software.
(e) With respect to enhancements not covered in Section 1(d) or which LRSI
designates as major, and which LRSI makes generally available to its
customers for an additional charge, LRSI shall make releases containing such
enhancements available to Licensee: (I) for a charge designated by LRSI
which shall be in addition to the fee provided for in Section 4 herein, and
(ii) during the five (5) year period of marketing support by Licensee as
defined in Section 12 of the Development Agreement, LRSI shall grant
Licensee a 25% discount off LRSI's then current market price for software
developed for use in the area of respiratory disease, and (iii) pursuant to
the terms and conditions of a separate license agreement.
(f) With respect to new releases provided to Licensee pursuant to this
Agreement, LRSI shall provide object code and user documentation. Such
releases shall in no event include source code.
(g) LRSI shall maintain a trained staff capable of rendering the serviced
set forth in this Agreement.
2. ENHANCEMENTS. All error corrections, new releases, enhancements, and updates
provided by LRSI to Licensee pursuant to this Agreement shall be part of the
LRSI Software and Documentation for purposes of the License under the
Development Agreement, and Licensee shall have all of the obligations and be
subject to all of the limitations with respect thereto which are set forth in
the License Agreement and this Agreement.
Licensee may, from time to time, request that LRSI develop enhancements to the
LRSI Software for the commercial benefit and at the expense of Licensee. If
Licensee makes such a request, LRSI shall provide License an estimate of LRSI's
fees for developing such enhancement within a reasonable time after Licensee's
request. Licensee shall provide written documentation of the commercial benefit
to Licensee to be derived from the requested enhancement at the time of making
such request, and LRSI shall provide written support of the fees to be charged
to Licensee for such requested enhancement at the time of providing its estimate
of such fees. If Licensee is able to demonstrate through independent third
parties that LRSI's fees for the requested enhancement are commercially
unreasonable, and the parties are unable to agree on the fees for such
enhancement, Licensee shall be entitled to receive the Source Code for the LRSI
software module to which such enhancement request applies so Licensee can
program such enhancement itself. Licensee understands that upon receipt of such
source code, LRSI has no obligation of technical support services as defined
herein. If the parties are unable to resolve any dispute with respect to the
foregoing matter, such dispute shall be submitted to arbitration in accordance
with Section 25 of this Agreement.
Should Licensee receive a copy of the source code for the then current version
of the LRSI Software, Licensee understands that it is obligated to abide by the
terms and conditions of Sections 8, 9, and 19 of the Development Agreement and
Section 10 of this Agreement.
3. TERMS. The initial term of this Agreement shall commence at the end of the
Acceptance Testing period under the Development Agreement and shall continue
until the December 31 which immediately follows the end of the Acceptance
Testing Period. The initial term shall automatically be extended for successive
periods of one year each unless and until terminated pursuant to Section 5
herein. In no event, however, shall the term extend beyond any termination of
the license under the Development Agreement.
4. FEES. For the technical use and support services to be provided by LRSI under
this Agreement, Licensee agrees to pay to LRSI a monthly fee in the amount set
forth in Exhibit "A,". For each yearly extension of the term, LRSI may increase
the monthly fee, but License shall be notified of the increase at least 90 days
prior to the beginning of such extension (or at the commencement of the initial
term if the initial term is for a period of less than 90 days.)
In addition to the foregoing fee, Licensee shall pay the following expenses
reasonably incurred by any employees of LRSI who make an on site visit in
connection with the performance by LRSI of its services under this Agreement:
economy class, round trip air fare or its equivalent; first class, single
occupancy hotel or motel accommodations; reasonable out-of-pocket meal expenses;
and reasonable out-of-pocket local transportation expenses for taxi and/or
automobile rental service. License shall reimburse LRSI for any such expenses
within 30 days after receipt of an invoice therefor.
5. TERMINATION. This Agreement may be terminated as follows:
(a) This Agreement shall immediately terminate upon termination of the
Development Agreement.
(b) This Agreement may be terminated by either party effective at the
expiration of the then current term of this Agreement, provided that at
least 90 days prior written notice is given to the other party
(c) This Agreement may be terminated by either party upon material default
by the other party in the performance of its obligations and failure of such
other party to correct such default within 45 days after written notice
thereof(or if such default, other than a default in the payment of money
owed, cannot reasonably be corrected within such 45 days, then failure of
such other party to commence corrective steps within such 45 day period and
diligently to pursue such steps to completion).
6. ADDITIONAL SERVICE. Upon written request from Licensee from time to time, but
subject to specific agreement by LRSI in each instance, LRSI shall use
commercially reasonable efforts to perform additional technical support services
which Licensee may reasonably need in addition to those otherwise provided for
in this Agreement. Licensee agrees, within 30 days after receipt of an invoice,
to pay reasonable charges for such additional services, which shall be based on
LRSI's then standard rates for personnel, travel and other costs.
7. COOPERATION. Licensee agrees to cooperate with LRSI in the performance by
LRSI of its obligations under this Agreement.
8. EMPLOYEES ON OTHER PARTY'S PREMISES. The employees or authorized agents of
each party shall comply with the other party's work rules and security
regulations when at the other party's premises in connection with this
Agreement. Each party agrees to indemnify and hold harmless the other party from
any personal injury or damage to real or tangible personal property resulting
from the negligence or intentional misconduct of the first party's employees or
agents while they are at the premises of the second party.
9. OWNERSHIP. Title to and ownership of and all proprietary rights in the LRSI
Software and the Documentation are reserved to and will at all times remain with
LRSI, and Licensee acknowledges that it has and will have no right or interest
therein regardless of whether Licensee, its employees or agents may have
contributed to the conception or development there or paid LRSI for its services
in connection therewith. Licensee shall from time to time take any further
action and execute and deliver any further instruments, including documents of
assignment or acknowledgment, that LRSI may reasonably request in establishing
and perfecting its ownership rights in the LRSI Software and the Documentation.
10. PROTECTION OF PROPRIETARY RIGHTS. Licensee recognizes and agrees that the
LRSI Software and the Documentation: (a) are considered and will be considered
by LRSI to be trade secrets, (b) are and will be furnished to Licensee in
confidence and (c) contain and will contain proprietary and confidential
information of LRSI. The placement of a copyright notice on any portion of the
LRSI Software or Documentation will not be construed to mean that such portion
has been published and will not derogate from any claim that such portion is a
trade secret or contains proprietary and confidential information. Licensee
agrees to hold the LRSI Software and Documentation in confidence and to take all
reasonable precautions to safeguard the confidentiality thereof. Licensee shall
not print, copy or duplicate any portion of the LRSI Software or Documentation,
in whole or in part, except that Licensee may make a copy of any machine
readable portion of the LRSI Software for normal security backup purposes and
may make a reasonable number of copies of the user documentation for its own
internal use. Licensee shall keep all copyright notices and proprietary legends
on the LRSI Software and Documentation and all copies thereof.
Licensee will not provide or otherwise make available any portion of the LRSI
Software or Documentation in any form without LRSI's prior written consent
except to Licensee's employees or agents during the period they are at the
Defined Computer Site and then only for the purposes specifically related to
Licensee's authorized use of the LRSI Software. Licensee will take appropriate
action by instruction, agreement or otherwise, with any persons permitted access
to any portion of the LRSI Software or Documentation to inform them of the trade
secret proprietary and confidential nature of the LRSI Software and
Documentation and to obtain their compliance with the terms of this Section.
Licensee will be liable for noncompliance by agents to the same extent as it
would be liable for noncompliance by its employees.
Licensee will insure, prior to disposing of any media, that any materials
relating to the LRSI Software or Documentation have been erased or otherwise
destroyed.
The provisions of this Section shall survive any termination of this Agreement
or the license granted under the Development Agreement. Notwithstanding anything
in this Section to the contrary, Licensee shall have no obligation of
confidentiality with respect to any portion of an LRSI Program or the
Documentation which is in or becomes part of the public domain, and Licensee
shall not be in breach of its confidentiality obligations to the extent it is
required to disclose any portion of the LRSI Software or the Documentation
pursuant to any order of a court or competent jurisdiction as long as Licensee
has furnished LRSI notice of any petition for such an order and of any such
order prior to disclosure.
11. LICENSEE REPRESENTATIVE. Licensee agrees to designate a qualified person to
act as its representative in coordinating the activities of the parties under
this Agreement. The name of the initial representative is set forth at the
beginning of this Agreement. The representative may be changed from time to time
by written notice to LRSI. All communications by and to such representative
shall be deemed communications by and to Licensee and shall be binding upon
Licensee.
12. PATENT AND COPYRIGHT INDEMNITY. LRSI will, at its expense, defend Licensee
against any claim made against Licensee during the term of this Agreement in
which claim it is alleged that the LRSI Software as used within the scope of the
license granted to Licensee infringe a valid U.S. patent, copyright, or trade
secret belonging to any third party, and LRSI will pay all costs, damages, and
attorneys' fees that a court finally awards against Licensee as a result of such
claim provided that:
(a) Licensee promptly notifies LRSI in writing of any such claim, and
(b) Licensee allows LRSI to control, and fully cooperates with LRSI in, the
defense and all related settlement negotiations.
If such a claim of infringement has occurred, or in LRSI's judgment is likely to
occur, Licensee agrees to allow LRSI, at LRSI's option and expense, to procure
the right for Licensee to continue using the LRSI Software or to replace or
modify them so that they become non-infringing. If none of the foregoing
alternatives is available on terms which are reasonable in LRSI's judgment, then
LRSI shall have the right to terminate the license of each potentially
infringing LRSI Software program upon 90 days prior written notice to Licensee,
in which event LRSI shall refund to Licensee the amount by which the license fee
paid by Licensee under the Development Agreement exceeds the product of
one-sixtieth of such license fee multiplied by the number of months between the
date when the LRSI Software to which it applies was first installed on the
Defined Computer and the date of termination,
This section state LRSI's entire obligation to Licensee regarding infringement
or the like.
13. TAXES. Licensee agrees to pay when due (or reimburse LRSI for) all Colorado
sales, use and other taxes, including penalties and interest, which LRSI is at
any time obligated to pay or collect from the State of Colorado in connection
with the services (including new releases, enhancement, and software provided as
part of those services) provided pursuant to this Agreement and otherwise in
connection with this Agreement, except any taxes based on LRSI's net income. Any
delay by LRSI in collecting any such tax shall in no way release Licensee of its
obligation to pay or reimburse LRSI.
14. DISCLAIMER OF WARRANTIES. LRSI MAKES NO REPRESENTATIONS OR WARRANTIES UNDER
THIS AGREEMENT WITH RESPECT TO THE LRSI SOFTWARE OR THE DOCUMENTATION, EXCEPT AS
SET FORTH HEREIN, WITH RESPECT TO THE SERVICES TO BE RENDERED BY LRSI HEREUNDER,
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. LIMITATION OF DAMAGES; EXCLUSIONS OF DAMAGES. THE TOTAL LIABILITY OF LRSI
FOR ANY AND ALL CLAIMS IN ANY WAY RELATED TO THIS AGREEMENT AND ANY PERFORMANCE
OR NONPERFORMANCE BY LRSI HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER
IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL IN NO EVENT EXCEED THE TOTAL
TECHNICAL SUPPORT FEES AND CHARGES PAID TO LRSI BY LICENSEE WITHIN THE SIX MONTH
PERIOD PRIOR TO THE ASSERTION OF ANY SUCH CLAIM. THIS LIMITATION OF LIABILITY
WILL NOT APPLY TO CLAIMS UNDER SECTION 8 HEREIN FOR PERSONAL INJURY OR DAMAGE TO
REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF LRSI'S EMPLOYEES OR AGENTS WHILE AT THE PREMISES OF LICENSEE OR TO
CLAIMS UNDER SECTION 12 HEREIN RELATED TO PATENT AND COPYRIGHT INDEMNITY.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY IN NO EVENT SHALL
LRSI BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST
SAVINGS OR OTHER CONSEQUENTIAL DAMAGES, OR FOR ANY INCIDENTAL OR SPECIAL
DAMAGES, EVEN IF LRSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR
FOR ANY CLAIM BY LICENSEE BASED UPON ANY CLAIM BY ANY OTHER PARTY AGAINST
LICENSEE.
16. THIRD PARTY CLAIMS. Licensee agrees to indemnify and hold LRSI harmless from
any and all claims, losses and damages asserted against LRSI by any patient,
employee or agent of Licensee, or any Affiliate, or any other person or entity
who may be affected by Licensee's use of the LRSI Software, except for claims in
which it is alleged that the LRSI Software or Documentation infringe a U.S.
patent, copyright or trade secret belonging to any third party.
17. DELAY IN PERFORMANCE. LRSI shall not be responsible for any failure to
perform due to causes beyond LRSI's control, including, but not limited to,
labor disputes, strikes, acts of God, fire, storm, water, delays in
transportation, power failure, communication line failure and governmental
actions. Any delay beyond LRSI's control shall be excused and the period of
performance extended as may be necessary to enable LRSI to perform after the
case of delay has been removed.
18. CONFIDENTIAL INFORMATION OF LICENSEE. LRSI shall use the same standard of
care to preserve the confidentiality of all financial, patient and other clearly
designated confidential information of Licensee as LRSI uses with respect to its
own materials of a confidential nature and with respect to the confidential
materials of other licensees of its data processing software.
19. NOTICES. All notices given under this Agreement shall be in writing and
shall be given by personal delivery, United States nail or United States express
mail, or other established express delivery service (such as Federal Express),
postage or delivery charge prepaid, addressed to the parties as follows:
LRSI LifeRate Systems, Inc.
0000 Xxxxx Xxxx.
Xxxxxxxxxxx, XX. 00000-0000
LICENSEE: The address set forth at the
beginning of this Agreement.
Notice shall be considered received on the date of actual receipt, in the event
of personal delivery, or on the date of first attempted delivery in the event of
United States mail or United States express mail or other established express
delivery service. Either party, upon notice to the other, may change the address
for future notices as long as the changed address is one to which notices may be
delivered in the manner contemplated by this section.
20. GOVERNING LAW; LIMITATION ON ACTIONS. This Agreement is entered into in the
State of Minnesota and in all respects shall be construed, interpreted, and
governed by the laws of the State of Minnesota, without regard to conflicts of
law principles. No claim or action arising out of this Agreement may be asserted
by either party more than two years after the cause of action has arisen.
21. ENTIRE AGREEMENT; INTERPRETATION; MODIFICATION. This Agreement and the
Development Agreement and their Exhibits, set for the entire agreement and
understanding of the parties with respect to subject matter hereof, and
supersedes all prior agreements, written or oral, between the parties. The
provisions of this Agreement shall be construed as a whole and not strictly for
or against either party. The section headings in this Agreement are included
only for purposes of convenient reference, and they shall not affect the
interpretation of this Agreement. This Agreement may not be amended or modified
except by a written instrument signed by both parties.
22. LATE PAYMENTS. If any payment owed by Licensee to LRSI is not paid when due,
LRSI, at its option, may charge Licensee interest on such past due amount at the
prime rate as published in the WALL STREET JOURNAL on the first of each month.
23. EFFECT OF INVALID OR UNENFORCEABLE PROVISIONS. This Agreement, to the extent
possible, shall be construed so as to give validity to all the provisions
hereof. any provision of this Agreement found to be invalid or unenforceable
shall not affect the validity or enforceability of any other provision of this
Agreement and each provision of this Agreement shall be enforced to the fullest
extent permitted by applicable law.
24. ACCEPTANCE BY LRSI. This Agreement shall not be effective until accepted by
LRSI and signed by one of its officers at its principal office in Minneapolis,
Minnesota, and a copy of this Agreement so accepted has been delivered or mailed
by LRSI to Licensee.
25. ARBITRATION. If a dispute under this Agreement cannot be resolved by the
parties such dispute shall be submitted to binding arbitration except that any
dispute under Sections 11, 19, and 24 need not be submitted to arbitration. It
is the intent of the parties that the arbitration be structured in such a way as
to minimize costs and delay. The arbitration shall be conducted pursuant to the
rules of commercial arbitration of the American Arbitration Association (AAA),
with the following stipulations or exceptions.
(a) The arbitration hearing shall be held before a single arbitrator if LRSI
and Licensee agree upon a single arbitrator. If LRSI and Licensee cannot
agree upon a single arbitrator, then each shall select an arbitrator, and
those arbitrators shall select a third arbitrator If they are unable to
agree upon a third arbitrator within 15 days, the third arbitrator shall be
selected as provided in the AAA rules. Each arbitrator shall have knowledge
of healthcare electronic data processing practices.
(b) The arbitration decision shall be rendered not later than thirty (30)
days after the final day of the hearing and shall be judicially enforceable,
non-appealable and binding.
(c) Summaries of any expert testimony, along with copies of all documents to
be submitted as exhibits, shall be exchanged at least (10) business days
before arbitration under procedures set up by the arbitrator(s).
(d) Except as otherwise specified herein, there shall be no discovery or
dispositive motion practice except as may be permitted by the arbitrator(s),
who may authorize only such discovery as is shown to be necessary to insure
a fair hearing. No discovery or motions permitted by the arbitrators shall
in any way alter the time limits specified herein.
(e) Arbitration costs, arbitrators' fees, and attorneys' fees and costs
shall be allocated between the parties by the arbitrator(s).
(f) The arbitration shall occur in Chicago, Illinois.
(g) In no event may the arbitrator(s) award punitive damages.
26. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties, their successors and assigns. This Agreement and any of
its attachments are not assignable or transferable by Licensee except to a
successor in interest of the business of Licensee and then only with the prior
written approval of LRSI, which approval may require additional license fees and
which approval shall not be unreasonable withheld.
IN WITNESS WHEREOF, the parties have executed this Agreement.
LIFERATE SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Authorized Signature
Title: President & CEO
LICENSEE: National Jewish Center
By: /s/ Xxxx Xxxxxxx
Authorized Signature
Title: President & CEO
12/31/96
