Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
EXHIBIT 10.12
SERVICES AGREEMENT
This Agreement is effective this 13th day of September, 1996, (the
"Effective Date") between Patient Infosystems, 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxx 00000 ("Vendor") and Health Resources,Inc. under the terms set forth
below.
A. SERVICES
Vendor will provide the product(s) or service(s) set forth in the
proposal incorporated herein as Exhibit A.
The product and all elements as set forth in Exhibit A are subject to
prior approval by Health Resources, Inc., such approval not to be
unreasonably withheld.
B. COMPENSATION
1. Health Resources, Inc. shall pay Vendor an operational fee of [****]
in the program described in Exhibit A.
2. Health Resources, Inc. shall pay Vendor for pre-printed materials
(e.g. marketing brochure, business reply mailer, program description)
required for the program. Vendor will furnish estimates for printing costs
upon determination of volumes and specifications.
3. All amounts due under this agreement shall be invoiced monthly to
Health Resources, Inc. by Vendor and payable within thirty days of the date
of the invoice. Payments exceeding thirty days past due shall be subject to
a service charge of [****] per month until paid.
4. In the event that Health Resources, Inc. shall request any changes in
the specifications or scope of the services described in Exhibit A
hereto, Vendor will notify Health Resources, Inc. of the cost of such
revisions and will not proceed without prior written approval.
C. CONFIDENTIALITY
1. Health Resources, Inc. and Vendor acknowledge that certain
confidential and proprietary information may be disclosed by one of them
to the other in the course of this Agreement. For purposes of this
Agreement, the term "Confidential Information" includes the following: (a)
All information regarding the patient, Health Resources, Inc's. Customer,
any patient medical data and/or status, or provider information; and (b)
any other information identified as confidential in writing by the
disclosing party prior to disclosure. Notwithstanding the confidentiality
requirements of this Agreement, the foregoing shall not prevent Health
Resources, Inc. from retaining information, including any and all
information and data pertaining to any patient which comes to Health
Resources, Inc. or to which Health Resources, Inc. is given access during
this Agreement.
2. Should Health Resources, Inc. receive confidential information of
Vendor for use in performing their Services, Health Resources, Inc.
agrees to take all reasonable steps to safeguard the confidentiality of
said information and to prevent unauthorized disclosure thereof by Health
Resources, Inc.'s employees, agents and representatives. Health
Resources, Inc. shall maintain strict security procedures to protect the
confidentiality of any information received, stored, or delivered on
patients in the Health Resources, Inc. or any affiliated or associated
company's database.
-1-
3. The data released hereunder to Vendor regarding patients, patient
medical data, Health Resources, Inc. Customers, and provider information,
is considered sensitive and confidential information. Vendor warrants that
it shall use any information provided by Health Resources, Inc. strictly
for the performance of this Agreement. Vendor acknowledges and agrees to
take all necessary steps to safeguard the confidentiality of all
information and reports, whether oral or written, maintain such information
as strictly confidential and to prevent unauthorized disclosure thereof by
Vendor's employees, agents, representatives and other third parties. Vendor
warrants that all such information and reports will not be disclosed to
any person, organization or entity other than Health Resources, Inc.
4. Each party shall hold the other party, its affiliated companies, the
officers, agents, employees, and independent contractors of the other
party, harmless and shall indemnify and defend such party for any claim
of expense or damage, whatsoever, resulting from the publishing or
release by such party, of information contrary to the above conditions.
5. The obligations of the Paragraph shall not apply to any Confidential
Information which the recipient can demonstrate is or becomes available
to the public through no breach of this Agreement.
6. Neither party to this Agreement shall, except as may be required by
law or federal regulation, or except with express written permission of
the other party, disclose the terms and conditions of this Agreement to
any third party or publicly advertise its contents.
7. The parties agree that Vendor's breach of any of its material
obligation under the applicable Confidentiality provisions of this
Agreement, may cause Health Resources, Inc. irreparable injury for which
it would not have adequate remedy at law, and that Health Resources, Inc.
shall be entitled to specific performance or preliminary or other
injunctive relief in addition to any and all remedies it may otherwise be
entitled to at law or in equity.
8. This Paragraph shall survive the termination of this Agreement.
Vendor shall not duplicate any material containing Health Resources, Inc.
Confidential Information, except in the direct performance of its
services under this Agreement. Vendor shall return all copies of
materials containing Health Resources, Inc. Confidential Information upon
Vendor's completion of services under this Agreement or upon any
earlier termination of this Agreement for any reason whatsoever.
D. INDEMNIFICATION
D1. Each party shall indemnify and hold the other party harmless from and
against all liability, damages, penalties, losses, costs or expenses,
including reasonable attorneys' fees, arising from or in any way related to
its willful or negligent actions or omissions in performing the
responsibilities as described in this Agreement.
D2. "Limitation of Liability"
Neither Health Resources, Inc. nor vendor shall in any way be liable for
any special, indirect, exemplary,incidental or consequential damages,
whether based on contract, tort, or any other legal theory, even if Health
Resources, Inc. or vendor has been previously advised of the possibility
of such damages. This paragraph shall survive the termination of this
agreement.
-2-
E. PROFESSIONAL STANDARDS
Vendor represents that it has facilities, personnel, experience and
expertise sufficient in quality and quality to perform all such
assignments and projects given it by Health Resources, Inc. hereunder and
agrees that it will perform all such assignments and projects in a manner
commensurate with professional standards generally applicable to its
industry.
F. OWNERSHIP OF MATERIALS
The parties acknowledge that any modifications to the printed materials
produced by its asthma program for Health Resources, Inc. are being
created at the insistence of Health Resources, Inc. and shall be deemed
"work made for hire" under the United States copyright law.
Health Resources, Inc. shall have the right to use the whole work, any part
of parts thereof, or none of the work, as it sees fit. Health Resources,
Inc. may alter the work, add to it, or combine it with any other works, at
it sole discretion. Notwithstanding the foregoing, all original material
submitted by Vendor as part of the work or as part of the process creating
the work, including but not limited to listings, printouts, documentation,
notes, reports, shall be the property of Health Resources, Inc. whether or
not Health Resources, Inc. uses such material. No rights are reserved by
Vendor.
All surveys and reports prepared by Vendor in connection with the
performance of its services hereunder will become and remain Health
Resources, Inc.'s sole property.
Vendor agrees it will not disclose to any third party, without the prior
written consent of Health Resources, Inc., any proprietary or confidential
information acquired from Health Resources, Inc. under this Agreement,
including trade secrets, business plans and confidential or other
information which may be proprietary to Health Resources, Inc..
Vendor warrants and represents that it has or will have the right, through
written agreements with its employees, to secure for Health Resources,
Inc. the rights called for in this Section. Further, in the event Vendor
uses any subcontractor, even though subcontracting is not permitted by this
Agreement, or other third party to perform any of the services contracted
for under this Agreement, Vendor agrees to enter into such written
agreements with such third party, and to take such other steps as are or
may be required to secure for Health Resources, Inc. the rights called for
in this Section.
G. DURATION OF AGREEMENT
1. Term
This Agreement is effective as of the Effective Date and shall continue
in full force and effect until the earlier of (i) completion of the project
assigned hereunder, (ii) terminated by at least one hundred eighty (180)
days written notice by either party to the other, sent by registered mail
to the address for each party first set forth above, or to such other
address which a party may designate for its receipt of notices hereunder.
This Agreement may be terminated by Health Resources, Inc. immediately in
the event Health Resources, Inc. is unable to obtain waivers from its
customers regarding Vendor's services.
-3-
2. Payment on Termination
Upon termination of this Agreement Health Resources, Inc. is to pay for all
authorized work in process.
3. Transfer Upon Termination
Vendor shall transfer, assign and make available to Health Resources, Inc.
or Health Resources, Inc.'s representative all property and materials in
Vendor's possession or control and any copies thereof belonging to and paid
for by Health Resources, Inc., and all information regarding Health
Resources, Inc.'s project(s) covered by this Agreement, as set forth in
Paragraph C herein.
4. Neither Health Resources, Inc. nor Vendor shall be liable to the other for
damages of any kind, including but not limited to lost profits or incidental,
punitive or consequential damages, relative to termination of this Agreement
in accordance with Section 6.2, even if advised of the possibility of such
damages.
H. INDEPENDENT CONTRACTORS
Vendor shall at all times be an independent contractor and shall so represent
itself to all third parties. Nothing in this Agreement shall be deemed to
constitute either party the agent or legal representative of the other nor to
constitute the parties as partners, agents or joint ventures of one another.
I. THIRD PARTY OBLIGATIONS
In connection with this Agreement, Vendor shall make no commitments or
disbursements, incur no obligations nor place any advertising, public
relations or promotional material for itself, Health Resources, Inc.'s,
subsidiaries or affiliate companies, nor disseminate any material of any kind
using the name of Health Resources, Inc. and/or Health Resources, Inc.'s such
parent, subsidiary or affiliate companies or using their trademarks, without
the prior written approval of Health Resources, Inc.
J. GOVERNING LAW
This Agreement is entered into in the State of New York and shall be
constructed and governed under and in accordance with the laws of that State.
K. MISCELLANEOUS
1) The terms of this Agreement shall be binding upon Health Resources, Inc.
and Vendor and their respective successors and permitted assigns.
Notwithstanding the foregoing, this Agreement is not assignable in whole or
in part by Vendor without the prior written consent of Health Resources, Inc.
2) The failure of either party to take action as a result of a breach of this
Agreement by the other party shall constitute neither a waiver of the
particular breach involved nor a waiver of either party's right to enforce
any or all provisions of this Agreement through any remedy granted by law or
this Agreement.
-4-
3) This Agreement contains the entire understanding of the parties with
respect to the subject matter contained herein, supersedes any prior written
or oral communications and may be modified in writing subject to mutual
agreement of the parties hereto.
4) The headings of each paragraph are for reference only and shall not be
construed as part of this Agreement.
5) Except for the obligation to pay money property due and owing, either
party shall be excused from any delay or failure in performance hereunder
caused by reason of any occurrence or contingency beyond its reasonable
control, including, but not limited to, failure of performance by the other
party, earthquake, labor disputes, riots, governmental requirements,
inability to secure materials on a timely basis, failure of computer
equipment, failures or delays of sources from which information or data is
obtained and transportation difficulties.
-5-
IN WITNESS WHEREOF, the parties hereto, each by a duly authorized officer,
have entered in to this Agreement this 13th day of September, 1996.
Health Resources, Inc. Patient Infosystems, Inc.
00 Xxxxxx Xxxx 00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, Xxx Xxxx 00000
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------- -------------------------
Title: President & CEO Title: President & CEO
---------------------- ----------------------
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Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
[****]
EXHIBIT A
ASTHMA
DISEASE MANAGEMENT
PROPOSAL
-------------------------------------------------
PRESENTED BY
Patient Infosystems, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
000-000-0000
Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by [****], have been
separately filed with the Commission.
[****]
