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EXHIBIT 10.17
[MEDICAL MANAGER LETTERHEAD]
TECHNICAL INFRASTRUCTURE MAINTENANCE AGREEMENT
Date: March 1, 1998
Contract No.: pr-4544
Between
Client Name: MEDICAL MANAGER MIDWEST, INC.
00000 Xxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Principle Contact: Xxx Xxxxxxx
And
Customer Name: MTS, INC.
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Principle Contact: Xxxx Xxxxx
ANNUAL FEE. [ ] Technical Support Hours Maximum: [*]; If
Retainer $[*] support extends beyond [*] hours,
Support will be charged at [*] per
hour.
[*].
MEDICAL MANAGER, MIDWEST, INC., hereinafter referred to as "MMMW", hereby agrees
to provide service with respect to the technical infrastructure and MTS, INC.,
hereinafter referred to as "Customer", agrees to accept such service, subject to
the following terms and conditions:
THE ATTACHED TERMS AND CONDITIONS ARE PART OF THIS AGREEMENT. THIS AGREEMENT IS
THE SOLE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES RELATING TO SERVICES FOR
THE ABOVE ITEMS. THE "Customer" HAS READ THIS AGREEMENT, UNDERSTANDS IT AND
AGREES TO BE BOUND BY IT.
TERMS AND CONDITIONS
1. TECHNICAL INFRASTRUCTURE
(a) Technical Infrastructure Maintenance Agreement covers
applicable items that make up the underlying technical
infrastructure that is required to run an application. This
would include items such as hardware, operating system,
network connections, etc.
(b) Maintenance refers to the services involved in maintenance of
equipment already purchased.
(c) This Agreement shall be effective on the date of signed
acceptance ("Effective Date") by MMMW.
(d) Renewal agreement shall be effective on the "Effective Date"
if it is signed and returned to MMMW by the "Effective Date."
(e) Renewal agreement not signed and received by MMMW by the
"Effective Date" will suspend all coverage of technical
infrastructure support between the "Effective Date" and the
actual date of receival of the renewal technical
infrastructure maintenance agreement. Services provided
between these two dates are billable.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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2. TERM
(a) MMMW provided Customer with an all inclusive warranty for a period of
12 months commencing on the date of installation to include system
purchased by Customer from MMMW. Upon expiration of that 12 months,
MMMW affords the Customer the opportunity of a continuation of support
on an annual basis as follows: The Initial Term of this Technical
Infrastructure Maintenance Agreement is twelve months, commencing on
the Effective Date. The support agreement will be subject to prior
inspection and acceptance of the hardware for service and to the
Customer's payment of any charges for the inspection and/or the
pre-agreement servicing and repair of the hardware, such estimates to
be approved in advance by Customer.
(b) MMMW shall make two options of hardware support available to Customer:
TECHNICAL SUPPORT RETAINER is a Support Plan that allows the Customer
to pay a Retainer that provides technical Related Support by qualified
Support Analysts and Field Technicians. This Support Plan covers a 12
Month period, with a Maximum Cap of hours for that period. If the Cap
of Hours is met before the end of the 12 Month period, Customer may
choose to purchase an additional Retainer Support Plan at the same
rates. This Support Plan is to include all necessary labor in a repair
situation, but Customer is to incur the cost of components to replace
broken or faulty equipment. Customer is to incur reasonable cost of
travel time/expenses of MMMW personal. MMMW accepts the responsibility
for payment of shipping and handling costs of the components. Customer
is to incur the cost for any swap equipment. Fee for swap equipment is
a flat-rate, one time fee as follows (not applicable from the central
site): terminal $[*], color terminal $[*], [*] printer $[*], [*]
printer $[*], personal computer $[*]. Cluiterports $[*], muxes $[*],
multiport boards $[*], power supplies $[*], and [*] printers $[*] are
subject to availability. All other equipment is subject to
availability. Phone calls to the MMMW Support Department or Technical
Department related to Technical Issues are also charged against your
Technical Support Retainer in 15 minute increments. Example: If your
office places a call to the MMMW Support Desk to receive help for a
non-functioning printer, our Support Analyst will track and log the
length of the call to deduct from the total of your available
Technical Support Retainer.
(c) If customer elects to not accept the Technical Support Retainer
Contract, MMMW will make available to Customer support on their
Technical Infrastructure in the following manner. MMMW will take
Customer Technical related calls and process through MMMW Support
Department. The Customers issue will then be queued and handled as
soon as possible directly behind contracted Technical Supported
clients. Customer is to be billed an Hourly rate of $[*] per hour on
all Technical Related Issues, unless notified otherwise by MMMW.
Customer is to incur the cost of swap equipment. Swap equipment is
subject to availability. Customer is to incur the cost of travel
time/expenses of MMMW Personal.
(d) Customer, upon thirty days prior written notice, may cancel this
Agreement at the end of the Initial Term and thereafter on each
anniversary of the end of the Initial Term. MMMW may cancel this
Agreement if the Customer does not remit payment according to the
terms of MMMW's invoice.
(e) The term of this Agreement consists of the Initial Term and any
continuations.
(f) Equipment under Warranty: A Manufacturer's Warranty accompanies most
items, pleas refer to the Warranty for specific coverage. Copies of
Warranty will be provided to Customer. Where applicable, Customer is
to incur the cost for labor, travel time/expenses of MMMW personnel,
swap equipment rental fees, and Phone Support from the MMMW Support
Desk.
3. SERVICE
(a) MMMW will provide on-call service for the Technical Infrastructure
during the term of this Agreement from 7:00am to 5:00pm CST, with a
guaranteed response time of 3 hours with a goal of on site within 2
hours. Support to include 7X24 hour pager support for emergency
services. After the customer has 30 locations, MMMW will locate
technical personnel in the current geography. If a system is not able
to be on-line after hours, on-site help will be made available.
(b) The Customer shall provide a suitable environment for the Technical
Infrastructure in accordance with MMMW specifications of non-humid
environment, between the temperature range of 60 degrees F and 80
degrees F.
(c) MMMW may elect to: repair a failing hardware with new or serviceable
used parts; or exchange the hardware with a hardware that is new or
used but in good working order, cleaned, lubricated, adjusted and
tested.
(d) Replaced parts and hardware become MMMW's property or at clients
discretion.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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(e) All programs (excluding any MMMW supplied), data, storage
media not requiring service, parts, options, attachments or
alterations not provided by MMMW shall be removed before
hardware is submitted to MMMW for service. The Customer agrees
that if any such material is not removed, it will be deemed to
have been discarded by the Customer and shall not be liability
of MMMW.
(f) The Customer is responsible to implement appropriate
safeguards to protect and/or recreate the Customer's data,
should it be destroyed through hardware malfunction or
otherwise (see exclusions 4b).
(g) On Call Service Selection:
At the time this Agreement is agreed to by the Customer, the
Customer will have notified MMMW of the location(s) of the
hardware. MMMW shall not be required to furnish On Call
service at any other location. The Customer shall notify MMMW
of any change in location and MMMW may elect not to provide On
Call service at the changed location.
i) The Customer shall provide full, free,
timely and safe access to the hardware for
MMMW to provide the service.
ii) MMMW may elect to exchange or repair the
hardware requiring remedial service during
MMMW's normal service hours at the hardware
location. MMMW may use a MMMW selected
independent contractor for exchange service.
MMMW accepts responsibility for all work
performed.
4. EXCLUSIONS
(a) There could be an increase in service time caused by accident,
misuse, disaster, abuse, alterations, attachments, parts,
options, or repairs not provided by MMMW, failure to provide a
suitable operating environment, relocation of the equipment by
non-Medical Manager, Midwest, Inc. personnel, or use of the
hardware for purposes other than intended.
(b) Service does not include repair or replacement of normally
dispensable items such as diskettes, tapes, printer ribbons,
cartridges, toners, etc.
5. CHARGES
(a) Charges will be invoiced and are payable within thirty (30)
days after the date of the invoice. All charges are subject to
change by MMMW for the forthcoming period capped at the CPI
annually, on thirty days written notice. MMMW reserves the
right to apply [*] finance charges.
(b) If MMMW notifies the Customer of any increase in charges in
accordance with paragraph (a) above, the Customer may cancel
the forthcoming service by advising MMMW in writing within
thirty (30) days after notification of the change. If MMMW is
not so advised, it is conclusively presumed that the Customer
has accepted such change.
(c) The charges do not include applicable taxes. Any applicable
taxes or amounts in lieu thereof and interest thereon paid or
payable by MMMW, shall be borne by the Customer.
6. NON-DISCLOSURE
While this Agreement is in effect and thereafter, the Customer shall
keep confidential and protect from disclosure to others any materials
designated as containing information confidential or proprietary to
MMMW and/or its licensor. On the ending or cancellation of this
Agreement any proprietary information shall be destroyed or returned to
MMMW.
7. SAFETY CHANGES
If MMMW determines that changes in safety are required for the
Technical Infrastructure, MMMW has the right to install them and to
select the method of installation.
8. WARRANTY
(a) MMMW warrants that the Technical Infrastructure remains in
satisfactory operating condition provided it is:
1) continuously subject to MMMW's inspection and acceptance of
the hardware for service; and
2) subject to normal use and conditions. MMMW's sole and
exclusive obligation under this warranty shall be at its
option to repair or exchange any hardware not in satisfactory
operating condition. Said obligation shall be subject to the
conditions and charges of Section 3, 4 and 5 and the prompt
submission of (or notification to MMMW of the problem) the
hardware to MMMW for service.
(b) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, EXPRESS OR
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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IMPLIED, BY OPERATI0N OF LAW OR OTHERWISE. MMMW DISCLAIMS ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE.
(c) MMMW's warranties extend only to the Customer and may not be
changed except by an instrument in writing as provided in
Section 11(g).
9. LIMITATION OF LIABILITY
(a) MMMW's entire liability and the Customer's sole and exclusive
remedy for claims related to or arising out of this Agreement
for any cause and regardless of the form of action, whether in
contract or tort, including negligence and strict liability,
shall be the remedies set forth in Section 8, provided that if
MMMW fails after repeated attempts to perform those remedies,
MMMW's entire liability shall be the Customer's actual, direct
damages such as would be provided in a court of law, not to
exceed the charge for service for the item that caused the
damages.
(b) MMMW shall NOT be liable for INCIDENTAL or CONSEQUENTIAL
DAMAGES, even if MMMW has been advised, knew or should have
known of the possibility of such damages.
(c) SOME STATES HAVE LAWS REQUIRING WARRANTY AND LIABILITY RIGHTS
DIFFERENT FROM THOSE STATED IN THIS AGREEMENT. IN SUCH STATES,
THE MINIMUM REQUIRED WARRANTY AND LIABILITY TERMS WILL APPLY.
10. GENERAL PROVISIONS
(a) MMMW is not responsible for failure to provide services due to
cases beyond its reasonable control.
(b) The Customer is solely responsible for the acquisition, use
and results of any products or services not provided by MMMW,
not withstanding any MMMW recommendation of or referral to
such products or services.
(c) The Customer shall not assign or transfer its rights or
obligations under this Agreement except with MMMW's prior
written consent; any prohibited assignment or transfer shall
be void.
(d) This Agreement shall be interpreted in accordance with the
laws of the State of Indiana.
(e) No action, regardless of form, related to, or arising out of
this Agreement may be brought by either party more than two
(2) years after the cause of action has arisen.
(f) The customer represents that the Customer is either the owner
of the hardware, or if not, that the Customer has the
authority from the owner to include the hardware under this
Agreement. Also, the Customer warrants that no liens, security
interest or encumbrances upon the hardware exist, or will
exist when the hardware is submitted to MMMW for services, or
if any encumbrance does exist, that the holder thereof has
consented to this agreement and the service.
(g) This Agreement may not be changed, released or discharged
except by a written agreement entered into by duly authorized
representatives of the parties.
MMMW and Customer accept and agree to the terms and conditions of this
Agreement.
MTS, INC. MEDICAL MANAGER, MIDWEST, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxx Xxxxxxx
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Date: March 4, 1998 Date: 3-5-98
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