Exhibit 10.10
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS, MARKED BY AN * AND [ ], HAVE BEEN
SEPARATELY FILED WITH THE COMMISSION.
AGREEMENT
BETWEEN
BAPTIST HEALTH SYSTEMS OF SOUTH FLORIDA, INC.
AND
CAREFLOW | NET, INC.
MARCH 3, 1997
TABLE OF CONTENTS
PAGE
----
1. SCHEDULES.................................................................1
2. DEFINITIONS...............................................................1
3. TERM OF AGREEMENT.........................................................4
4. PRODUCTS AND SERVICES.....................................................5
5. DEVELOPMENT OF THE APPLICATIONS...........................................5
6. SOFTWARE LICENSE..........................................................7
7. OBLIGATIONS OF BHS........................................................9
8. SUPPORT SERVICES.........................................................10
9. PRICES; PAYMENT TERMS...................................................11
10. INTELLECTUAL PROPERTY RIGHTS; PROPRIETARY INFORMATION..................12
11. WARRANTIES; INDEMNIFICATION..............................................13
12. LIMITATION OF LIABILITY..................................................15
13. INSPECTION RIGHTS........................................................16
14. RISK OF LOSS.............................................................17
15. CAUSES BEYOND THE PARTIES' CONTROL.......................................17
16. TERMINATION..............................................................18
17. INJUNCTIVE RELIEF; PRE-ACCEPTANCE DISPUTE RESOLUTION.....................19
18. MISCELLANEOUS............................................................20
SCHEDULES
A Description of Applications
B Implementation Services
C Implementation Project Plan
D Support Services
E Software Fees and Schedule of Payments
F Supported Platforms
G BHS Facilities
AGREEMENT
This AGREEMENT is made as of March 3, 1997 between CareFlow | Net, Inc., a
Delaware corporation located at 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
("CFN"), and Baptist Health Systems of South Florida, Inc., a Florida
not-for-profit corporation located at 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx, XX
00000-0000 ("BHS").
WHEREAS, BHS desires to procure the development of, obtain a non-exclusive
license to, and use one or more computer software applications from CFN and
obtain from CFN certain technical support services for such applications, to
meet certain of BHS's clinical, administrative and operational business
requirements of its healthcare service business , and CFN desires to develop
and supply to BHS such applications and support services, and to grant such
license, as set forth in this Agreement, and
WHEREAS, BHS desires to procure software applications that will be designed and
maintained to conform to standards approved by OMG (the Object Management
Group), and CFN desires to develop, supply and maintain such software
applications,
NOW, THEREFORE, in consideration of the premises, the covenants and the
agreements contained herein, as well as other valuable consideration CFN and BHS
covenant and agree as follows:
1. SCHEDULES.
---------
The following Schedules are attached to and made part of this Agreement :
1.1 Schedule A: Description of Applications
1.2 Schedule B: Implementation Services
1.3 Schedule C: Implementation Project Plan
1.4 Schedule D: Support Services
1.5 Schedule E: Software Fees and Schedule of Payments
1.6 Schedule F: Supported Platforms
1.7 Schedule G: BHS Facilities
2. DEFINITIONS.
In this Agreement the following expressions shall have the meanings given
to them below.
ACCEPTANCE: The acceptance of the accomplishment of a Milestone or of an
Application by BHS, pursuant to Section 5 of this Agreement; provided,
however, that Acceptance will be deemed to have occurred on the first Live
Date for any Application.
ACCEPTANCE DATE: The acceptance date(s) for a Milestone or an Application,
as the case may be.
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AGREEMENT: This Agreement, the Schedules attached hereto, and all Change
Orders, if any, which are incorporated herein by reference.
APPLICATION: A software application to be provided by CFN that is named
separately by CFN, which is usually designed to support a particular
business function, as described in SCHEDULE A: APPLICATIONS. Each
Application shall include any future Minor Releases relating to such
Application issued in any period during which Support Services are being
provided with respect to such Application.
BHS AFFILIATES: Medical personnel affiliated with BHS, to the extent that
such personnel directly provide medical care and services to patients
treated at any of the BHS Facilities.
BHS AFFILIATES FACILITIES: All present and future facilities, other than
BHS Facilities, at which BHS Affiliates provide patient care services to
patients treated at any of the BHS Facilities, which facilities shall only
have access to the Applications by means of Web browsers.
BHS FACILITIES: All present and future healthcare facilities owned or
operated by BHS; provided, however, that BHS Facilities shall not include
any otherwise unaffiliated healthcare facilities or entities to which BHS
may now or in the future provide administrative or managerial, but not
medical, services. BHS Facilities shall also include the offices of any
physicians affiliated with BHS to the extent that such physicians directly
provide care to patients treated at any of the BHS Facilities enumerated
above.
CHANGE ORDER: A written order signed by both parties authorizing a change
in or addition to any Application, the addition of new Applications, or a
change in the scope or completion due date of the Implementation Services.
Any Change Order relating to a new Application shall include provisions
with regard to Permitted Users and payment terms relating to delivery of
the Application and the Support Services related thereto.
CPI: The Consumer Price Index published for All Urban Consumers: U. S. City
Average for All Items, by the United States Department of Labor, Bureau of
Labor Statistics as derived for the previous calendar year, or if this
index is no longer published, a comparable index.
DOCUMENTATION: The paper, magnetic, optical or electronic media based
information related to any Application and provided by CFN (on an as
available basis), which may include existing and future user guides, Minor
Releases, reference manuals, operational manuals, reference guides
describing the interactive and batch processing, operation, tuning,
trouble-shooting, and control and management of such Application.
EFFECTIVE DATE: The date set forth in the first paragraph of this
Agreement.
HARDWARE: The equipment on which the Application runs.
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CFN SERVICE RATES: The rates in effect from time to time for services
provided by CFN personnel (or personnel of CFN sub-contractors), other than
pursuant to annualized Support Service agreements, which rates, as of the
date of this Agreement, are set forth in SCHEDULE E: APPLICATION SOFTWARE
FEES - CFN SERVICE RATES.
IMPLEMENTATION PROJECT PLAN: The detailed schedule of delivery of the
Applications as set forth in SCHEDULE C: IMPLEMENTATION PROJECT PLAN.
IMPLEMENTATION SERVICES: The services furnished by CFN under the
Agreement, as set forth in SCHEDULE B: IMPLEMENTATION SERVICES.
LICENSE: The license to use the Applications, as defined in this
Agreement, granted to BHS in Section 6 of this Agreement.
LIVE DATE: The Live Date for an Application is the first date on which
the Application is used by BHS to process actual patient data.
LIVE TEST PERIOD: A 30 day period commencing with Milestone 5 and
preceding the Live Date during which the Applications will be tested with
non-mission critical clinical data.
MAJOR RELEASE: An upgrade of an Application that: (i) contains
significant enhancements in software functionality; or (ii) requires a
conversion of the data files for its implementation at BHS; or (iii)
requires a change in or addition to the Hardware for its implementation at
BHS. A Major Release may, in addition, also include the components of a
Minor Release.
MINOR RELEASE: An update to an Application that provides one or more of
the following: (i) additional functionality; (ii) updates to the
Reference Files; (iii) performance improvements, and (iv) "bug fixes" and
does not include the other components of a Major Release.
MILESTONE: Achievement of a defined project plan objective, as set forth
in SCHEDULE C: IMPLEMENTATION PROJECT PLAN.
OEM SOFTWARE: Software applications owned or licensed by third parties and
acquired by or licensed to BHS from such third parties, including, without
limitation, the software applications of the Supported Platforms.
OEM PRODUCTS: Hardware and OEM Software.
PERMITTED USES: Uses of the Applications within the BHS Facilities (or
within the BHS Affiliates Facilities solely by means of Web browser
technology) by Permitted Users solely in the conduct of the business of
providing healthcare services to patients of the BHS Facilities and not to
process the data of any third parties.
PERMITTED USERS: All BHS employees and BHS Affiliates.
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PROCESSOR: Central processing unit (CPU) of any computer.
PROJECT MANAGER: An individual designated by either party pursuant to
Section 5.9.1 of this Agreement.
SOURCE CODE: Both machine readable and human readable copies of an
Application, consisting of instructions to be executed upon a computer in
the language used by its programmer (i.e., prior to compilation or
assembly), in a form in which the program logic or the Application is
deducible by a human being, full commented, and including all flow
diagrams and all other documentation and manuals which would allow persons
who are experienced computer programmers, but who are unfamiliar with the
Application, to properly effect modifications, enhancements and support for
that Application.
SUPPORT SERVICES: The support services to be provided by CFN in accordance
with SCHEDULE D: SUPPORT SERVICES.
SUPPORTED PLATFORMS: The system environment supported by the
Applications, in which the Applications are designed to run, consisting of
the combination of the OEM Products, operating systems, networking
environments, database management systems, file management systems,
middleware, Web browser and utilities and tools, as set forth in SCHEDULE
F: SUPPORTED PLATFORMS.
Other terms are defined in the various Schedules and in the body of this
Agreement.
3. TERM OF AGREEMENT.
3.1 Except as set forth in Section 6 or as earlier terminated in
accordance with its terms, this Agreement shall be for a term commencing on
Effective Date and ending the later of (i) one (1) year after the date of
acceptance of the Applications or the (ii) termination of Support Services
with regard to the Applications in accordance with the terms of this
Agreement. This Agreement may be terminated earlier or extended beyond
that date by mutual agreement of both parties.
4. PRODUCTS AND SERVICES.
4.1 BHS hereby engages CFN (i) to develop and deliver the Applications
and the Implementation Services in accordance with the specifications and
timetable set forth in SCHEDULE A: DESCRIPTION AND APPLICATIONS and
SCHEDULE B: IMPLEMENTATION SERVICES and SCHEDULE C: IMPLEMENTATION PROJECT
PLAN, and (ii) to provide the Support Services, as set forth in SCHEDULE
D: SUPPORT SERVICES, and CFN agrees to develop and deliver the
Applications, provide the Implementation Services, grant a non-exclusive
license, and provide the Support Services to BHS, on the terms and
conditions set forth herein.
4.2 CFN may be requested to perform such additional services, duties and
tasks for such compensation as shall be mutually agreed upon between CFN
and BHS, and set forth in Change Orders. CFN shall only be obligated to
perform such additional services,
6
duties and tasks as to which it shall agree in writing in such Change
Orders. Unless otherwise specified, Change Orders shall be governed by the
terms and conditions of this Agreement.
5. DEVELOPMENT OF THE APPLICATIONS
5.1 CFN agrees to use its best efforts to develop, produce and license
to BHS the Applications, as described in the SCHEDULE A: DESCRIPTION OF
APPLICATIONS, on the terms and conditions hereinafter set forth.
5.2 BHS shall procure and purchase all OEM Products, including but not
limited to the OEM Products set forth in SCHEDULE F: SUPPORTED PLATFORMS
or described in SCHEDULE A: DESCRIPTION OF APPLICATIONS directly from
their respective producers or their designated distributors or vendors,
without the involvement of CFN. BHS also shall be solely responsible for
the operation and maintenance of the OEM Products, and the timely
procurement, operation and maintenance of the OEM Products shall be a
continuing condition of CFN's obligations to develop and deliver the
Applications and to provide the Implementation Services and the Support
Services. CFN shall not be responsible for any delay or failure to
complete the development of any Application, or failure to operate properly
of any Application, which failure or delay results from the use of OEM
Products other than those set forth in SCHEDULE F: SUPPORTED PLATFORMS
or described in SCHEDULE A: DESCRIPTION OF APPLICATIONS or otherwise
designated by CFN, or from the malfunction of any OEM Product.
5.3 The Applications shall be developed substantially in accordance with
the requirements set forth in SCHEDULE A: DESCRIPTION OF APPLICATIONS;
however, CFN and BHS acknowledge that there may be variations in the
Applications from the description in SCHEDULE A: DESCRIPTION OF
APPLICATIONS to which the parties shall agree in writing during the course
of the development of the Applications (which writings shall be
incorporated by reference into and become a part of this Agreement). CFN
agrees to proceed promptly with the development of the Applications, and
the parties agree that it is an objective that the Applications will be
operational and ready for BHS's use approximately six months after the
effective start date described in SCHEDULE C: IMPLEMENTATION PROJECT PLAN.
CFN shall provide the Applications in Object Code. CFN shall deliver such
Documentation as it shall determine is required in connection with each
Application on or before the commencement of the Live Test Period.
5.4 Upon receipt of notice from CFN that a Milestone, as set forth in
SCHEDULE C: IMPLEMENTATION PROJECT PLAN has been achieved, BHS shall
promptly commence such acceptance testing as described in Section 5.5
hereunder of the developments achieved, and shall notify CFN in writing as
soon as practicable, and, in any event, not later than 15 business days
after the delivery of the notice of the Milestone by CFN to BHS, as to
whether or not the developments achieved are acceptable to BHS. In the
event of BHS's failure to so advise CFN in writing within such time period,
such Milestone will be deemed to have been achieved and accepted by BHS.
BHS shall accept the Applications and the developments achieved at each
Milestone unless they fail in material respects to meet the acceptance test
criteria established pursuant to Section 5.5. In the event the
7
Applications or any development achieved in accordance with SCHEDULE A:
DESCRIPTION OF APPLICATIONS are not accepted by BHS, BHS's notice shall
specify in detail in what respects the Application or the development fails
to so conform with the terms of this Agreement and SCHEDULE A: DESCRIPTION
OF APPLICATIONS , subject to any agreed upon variations as noted in Section
5.3.
5.5 Applications and the developments to be completed at each Milestone
shall be tested in accordance with a procedure agreed upon in writing by
BHS and CFN. Such procedure shall (i) be based on the intended input,
output, and operation of the Applications and such developments as set
forth in SCHEDULE A: DESCRIPTION OF APPLICATIONS, (ii) include criteria
for determining the time for commencement of the Live Test Period, and
(iii) be incorporated by reference into and become a part of this
Agreement. CFN shall deliver to BHS on or prior to the Milestones a
statement defining the testing procedures and requirements for each
development or completed Application, which statement shall be subject to
the written approval of BHS. BHS shall review such statement and give its
approval or suggested changes, in reasonable detail, in writing within 10
days of receipt of the statement. If BHS does not respond in writing to
the statement within such 10 day period, the statement will be deemed to
have been accepted by BHS. CFN and BHS shall use their best efforts to
agree to a procedure and requirements for acceptance testing in accordance
with the foregoing.
5.6 In the event that any development or Application is not accepted
pursuant to Sections 5.3 - 5.5 above, CFN shall promptly proceed to make
any corrections which are required by this Agreement in order to meet such
acceptance test criteria and BHS shall repeat the applicable acceptance
test in accordance with such Sections until such development or Application
meets, in all in material respects, the acceptance test criteria
established pursuant to Section 5.5.
5.7 BHS shall promptly notify CFN if at any time during the acceptance
testing, BHS becomes aware that any development or Application being
tested does not meet the acceptance test criteria established pursuant to
Section 5.5.
5.8 The acceptance testing shall be conducted on the OEM Hardware at the
BHS Facilities. CFN reserves the right to participate in the acceptance
testing in order to monitor such testing and to demonstrate that any of the
developments or Applications conform to the acceptance test criteria. BHS
agrees to cooperate with CFN in connection with the acceptance testing.
5.9.1 Each party shall designate a Project Manager who shall be available
to consult with each other to resolve any problems and provide any
information reasonably required in connection with the development and
operation of the Applications during their development and throughout any
period for which CFN is obligated to provide Support Service pursuant to
the terms of this Agreement. The individual designated by either party as
its Project Manager may be changed from time to time by such party, in its
sole discretion.
5.9.2 All reports, notices and communications related to the
Applications, including determinations and notices of Acceptances, and the
Implementation Project Plan shall be
8
delivered by, and directed to, the respective Project Managers.
6. SOFTWARE LICENSE.
6.1 Subject to the terms and conditions set forth below, CFN hereby
grants to BHS a nonexclusive, nontransferable license for use of the
Applications solely by the Permitted Users (the "License") for the
Permitted Uses.
6.2 The License to use Applications shall be subject to payment of the
license fees and compliance with usage limitations specified in SCHEDULE E:
SOFTWARE FEES AND SCHEDULE OF PAYMENTS exclusively on the Supported
Platforms for the Permitted Uses.
6.3 The Applications may be accessed and used only from locations
within the BHS Facilities and the BHS Affiliates Facilities.
6.4 Commencing with the achievement of the first Milestone, the
Applications may be used solely for testing and training purposes by
accessing a designated database that has been set up for testing or
training purposes. Subject only to the performance of the tests to be
performed during the Live Test Period, in no event shall such use permit
BHS to access the "live" or production version of the Applications or to
use the Applications to process any live patient database.
6.5 Commencing with the payment in full of the respective License fees
and the Implementation Service fees set forth in SCHEDULE E: SOFTWARE FEES
AND SCHEDULE OF PAYMENTS, the License shall be effective with regard to use
of the respective Applications for "live" operational purposes.
6.6 The License for each Applications shall be perpetual with regard to
the number of processors set forth on SCHEDULE E: SOFTWARE FEES AND
SCHEDULE OF PAYMENTS.
6.7 Notwithstanding Section 6.6, if BHS does not use any Application for
a period of six (6) months for any reason, the License for such Application
shall terminate automatically at the end of such six (6) month period.
BHS shall notify CFN if it discontinues the use of any Application, but the
failure of BHS to so notify CFN shall not affect the applicability of this
section. Notwithstanding the foregoing, if BHS notifies CFN that it
intends to suspend or delay initiation of use of an Application for one (1)
period of up to six (6) months, the provisions of the first sentence of
this section shall not be applicable for the period as to which such
notice was given.
6.8 Should BHS desire to increase the number of processors (or users)
subject to the License for any Application, it shall notify CFN in writing
and an additional license fee for each such additional processor in an
amount equal to the per-processor (or user) fee set forth on SCHEDULE E:
SOFTWARE FEES AND SCHEDULE OF PAYMENTS shall be paid prior to the
activation or use of any Application on such additional processors.
However, BHS may not add processors to the License for any Application that
depends for its operation on another Application or Applications unless it
adds the same number of processors to the License(s) for such other
Application(s). For example, it may add processors for
9
middleware Applications if it has added processors for all back-end
Applications and for front-end Applications if it has added processors for
all back-end and middleware Applications, as such Applications are
described in SCHEDULE E: SOFTWARE FEES AND SCHEDULE OF PAYMENTS.
6.9 BHS may prepare a reasonable number of copies of the Applications for
internal use, solely for archival and backup purposes. All copies of
Software and Documentation shall contain the proprietary notices appearing
on the copies initially furnished by CFN and shall be subject to the terms
and conditions of this Agreement. BHS must maintain an accurate record of
the location of such backup copies at all times. Such record may be
inspected and verified by CFN at any time during normal business hours
(9:00 A.M. to 5:00 P.M. local time).
6.10 No Application shall be changed or modified, other than by CFN,
without the prior written consent of CFN.
6.11 A Minor Release shall be deemed to be subject to, and included in,
the License for the Applications to which such Minor Release relates. A
Major Release shall be deemed to be a new software application. BHS shall
have the option to obtain a license for any Major Release or any other new
software application or product for which CFN makes licenses available on a
non-exclusive basis, on the terms set forth on SCHEDULE E: SOFTWARE FEES
AND SCHEDULE OF PAYMENTS.
6.12 BHS may not grant any sublicense to any License granted to it by CFN.
6.13 CFN shall include copyright, proprietary and/ or trade secret notices
on or with the Applications and Documentation, and BHS shall not remove or
modify any such notice and shall maintain, reproduce and include all such
copyright, proprietary and/ or trade secret notices on all copies,
including backup copies, of the Applications and any media containing the
Applications or any part thereof.
6.14 Upon Acceptance of any Application, CFN shall deliver the Source
Code corresponding to the subject Application to an escrow agent, which
shall be such firm or person as to whom the parties shall mutually agree,
pursuant to an escrow agreement. The Source Code for the Applications
included in the escrow shall be updated by CFN at any time any Minor
Release or other modification is delivered to BHS and not less frequently
than semi-annually, including all changes to the Source Code since the
previous deposit. The escrow agreement shall provide, among other things,
that the Source Code shall be delivered to BHS only in the event of (i) as
to all the Applications, (A) a filing by CFN of a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization, or an
arrangement with creditors, or the entering against CFN of a court order
approving a petition filed against it under the Federal bankruptcy laws,
which order shall not have been vacated or set aside or otherwise
terminated within sixty (60) days, or (B) a cessation of business
activities by CFN, or (ii) as to any particular Application, if CFN
discontinues Support Services for such Application AND does not make
available a successor product with a "migratory" transition capability;
provided, that at the time of the occurrence of an event set forth in
clause (i) or (ii) above, the Applications are subject to Software Support
agreements and provided, further, that such
10
Source Code, if so delivered, shall be used by BHS solely in connection
with its use of the Applications and not for sale to others or for any
other purposes.
7. OBLIGATIONS OF BHS.
In connection with the development of the Applications and provision of the
Support Services by CFN hereunder, BHS shall, in addition to its other
obligations hereunder, provide for, or perform, the following at BHS's own
cost and expense:
7.1 BHS will, within the timeframe set forth in SCHEDULE C:
IMPLEMENTATION PROJECT PLAN, purchase, operate and maintain all Supported
Platforms and OEM Products in conformity with the specifications set forth
in SCHEDULE F: SUPPORTED PLATFORMS, including but not limited to all
Hardware, operating system software, database management systems, file
management systems, middleware, reference information (if any), knowledge
bases (if any), utilities and tools (if any) and any other OEM Software
directly from their respective producers or their designated distributors
or vendors, without the involvement of CFN.
7.2 BHS will deal with third party vendors directly with regard to
licensing from them any products or purchasing from them any services
related to any applications, gateways, tools, interfaces or any other
software or services that may be required by such third parties in order to
interface with the Applications.
7.3 BHS shall provide to CFN access to the OEM Products and appropriate
hardware and software facilities to enable CFN to develop and test the
Applications on a timely basis and to otherwise perform its obligations
hereunder.
7.4 BHS shall provide a complete list of the current BHS Facilities,
which shall be set forth as SCHEDULE G: BHS FACILITIES not later than the
date of the first Milestone and shall promptly provide CFN with revisions
of such schedule reflecting any additions or deletions of such facilities
as they occur. The use of the Applications at or from any location other
than a BHS Facility set forth on such schedule, as revised from time to
time, or a BHS Affiliates Facility solely by means of Web browser
technology, shall not constitute a Permitted Use.
8. SUPPORT SERVICES.
8.1 CFN shall provide BHS with the Support Services set forth in
SCHEDULE D: SUPPORT SERVICES upon the terms and conditions set forth below.
8.2 The Support Services for each Application shall be provided on an
annual basis, commencing upon the first of the month immediately following
the Live Date of each Application, for a minimum of one (1) year, and shall
thereafter be automatically renewed on a yearly basis, unless BHS provides
CFN at least 60 days' advance notice prior to the annual renewal
anniversary date of its intent not to renew the Support Services; provided,
however, that as to any annual period commencing three (3) years from the
applicable Live Date, CFN may notify BHS, on not less than 90 days prior
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written notice of its intention to terminate the availability of Support
Services, or change the nature of the Support Services or the fees therefor
at the end of the then current annual period.
8.3 BHS may choose whether or not to renew the Support Services for the
Applications on an individual basis; provided, however, it may not renew
the Support Services for any Application that depends for its operation on
another Application or Applications unless it renews for such other
Application(s). For example, it may renew Support Services for middleware
Applications if it has renewed for all back-end Applications and for
front-end Applications if it has renewed for all back-end and middleware
Applications, as such Applications are described in SCHEDULE E: SOFTWARE
FEES AND SCHEDULE OF PAYMENTS.
8.4 BHS shall not receive any Minor Releases relating to any Application
for which Support Services have been terminated. Major Releases shall be
deemed to be new software applications and shall not be delivered as part
of the Support Services relating to existing Applications.
8.5 CFN shall not be obligated to provide Support Services hereunder with
regard to any Application (or for any other Application that depends for
its operation on such Application) if such Application has been changed or
modified other than in compliance with Section 6.10, or if any platforms or
OEM Products are used other than those set forth in SCHEDULE F: SUPPORTED
PLATFORMS or described in SCHEDULE A: DESCRIPTION OF APPLICATIONS or
otherwise designated by CFN.
8.6 Any service provided by CFN other than as set forth on SCHEDULE D:
SUPPORT SERVICES shall be subject to agreement by the parties and shall be
provided by CFN on a time and materials basis at the CFN Service Rate then
in effect, except as otherwise agreed to in writing by the parties.
9. PRICES; PAYMENT TERMS.
9.1 BHS shall pay to CFN the fees and other payments for development of
the Applications, the License, the Implementation Services and the Support
Services in the amounts set forth in SCHEDULE E: SOFTWARE FEES AND
SCHEDULE OF PAYMENTS and elsewhere in this Agreement.
9.2 BHS shall pay all amounts due under this Agreement in full at the
times specified in the applicable Schedules and provisions of this
Agreement and, if not otherwise specified, such payments shall be mailed by
BHS and postmarked within 30 days after receipt by BHS of the invoice
therefor. Unless otherwise specified by CFN in writing, all payments made
to CFN under this Agreement shall be mailed to CFN at its address for
notice set forth in Section 17.8. Such payments shall be marked
"Attention: Accounts Receivable."
9.3 CFN has been advised that BHS currently is exempt from the payment of
certain taxes under applicable federal and state laws. However, BHS is
responsible for all taxes,
12
however designated, measured or based on this Agreement, the Applications,
the License and the Support Services, including state or local sales and
use taxes, privilege or excise taxes, and any taxes or amounts in lieu
thereof paid or payable in respect of the foregoing, if any, but excluding
any Federal, state or local taxes levied against or measured by the net
income of CFN.
9.4 Payments more than 10 days past due shall bear interest at a rate
equal to the lesser of (a) the prime commercial lending rate as published
daily in the WALL STREET JOURNAL plus one percent per annum, compounded
monthly, but not in excess of one and one half percent (1-1/2%) per month,
or (b) the highest rate of interest allowable under applicable law. The
interest on any past due amount shall be referred to as the "Late Charge."
10. INTELLECTUAL PROPERTY RIGHTS; PROPRIETARY INFORMATION.
10.1 BHS acknowledges that all developments, Applications and other work
products developed by CFN for BHS pursuant to this Agreement or otherwise,
including those that may be subject to intellectual property protection,
including patent, copyright, trade secret, trademark or other proprietary
protection, shall be owned by CFN (or CFN's third party licensors, as the
case may be) exclusively. All Software and Documentation delivered to BHS
by CFN shall be subject to the restrictions of this Section 10.
10.2 BHS agrees to take any reasonable steps necessary to protect the
proprietary rights of CFN (and CFN's suppliers or licensors), including but
not limited to the display of patent, copyright, trademark, trade secret
and other proprietary notices provided by CFN (and CFN's suppliers or
licensors) on any copies, including backup copies, of the Applications and
the Documentation. BHS agrees to take reasonable steps, at its own cost and
expense, to keep the Applications and the Documentation free and clear of,
or to remove, any claims, liens and legal processes of third parties of
BHS, including creditors of BHS.
10.3 BHS agrees to keep confidential the Applications, the Documentation,
all specifications regarding the Applications, and all discussions,
presentations and correspondence involving CFN's business or product plans
and agrees not to disclose, sell, rent, reproduce or otherwise make all or
any portion of these available to third parties unless all of the following
conditions are met: 1) such disclosure is reasonably required in the
operation or support of the Applications at BHS; 2) such parties are
agents of BHS; and 3) such third parties have signed a confidential
disclosure agreement to the satisfaction of CFN directly with CFN. CFN
agrees to keep confidential all discussions, presentations and
correspondence involving BHS's business and agrees not to disclose, sell,
rent, reproduce or otherwise make all or any portion of these available to
third parties unless all of the following conditions are met: 1) such
disclosure is reasonably required in the operation or support of the
Applications at BHS; 2) such parties are agents of CFN; and 3) such
third parties have signed a confidential disclosure agreement to the
satisfaction of BHS directly with BHS.
10.4 Each party shall take the same precautions for protecting
confidential or
13
proprietary information belonging to the other party as it does for its own
information of a confidential or proprietary nature. To the extent either
party's employees, agents and representatives are exposed to confidential
information belonging to or in the custody of the other party, such persons
shall take all reasonable steps to keep such information confidential. If
requested, a party shall demonstrate to the other party that its employees,
consultants and agents are obligated to it in writing to so protect the
other party's confidential information. On notice of disclosure or
possible breach of confidentiality, each party agrees to cooperate with the
other for the purpose of injunctive relief and providing other relief to
protect the interests of the injured party. The foregoing does not apply
to any information: (i) currently in the public domain or rightfully in
the possession of such party, (ii) subsequently entering the public domain
for any reason other than a party's failure to meet its obligations under
this Agreement, (iii) rightfully acquired by a party without obligation of
confidentiality, and (iv) independently developed by a party without use
of the other party's confidential information. In the event that either
party becomes legally compelled (by interrogatories, subpoena, civil
investigative demand or similar process) to make any disclosure that is
prohibited by this Agreement, each party agrees that it will provide the
other party with prompt notice of such event so that the other party may
seek an appropriate protective order or other prompt appropriate remedy
and/or waive compliance with the provision of this section. In the event
that such protective order or other remedy is not obtained, or a party
grants a waiver hereunder, the other party may furnish only that
information that, in the written opinion of counsel reasonably acceptable
to the party whose information may be subject to disclosure, the disclosing
party is legally compelled to disclose or else be subject to liability for
contempt or suffer other censure or penalty; provided, however, that the
disclosing party shall use its best efforts to obtain reasonable assurance
that, to the extent legally possible, confidential treatment will be
accorded any information so disclosed.
10.5 BHS shall not disassemble, decompile or reverse engineer the
Applications; nor shall BHS reproduce, sell, license or rent the
Applications or derivative works based on the Applications or similar to
the Applications to any third parties. BHS may use the open interfaces
provided with the Applications using the Interface Definition Language
(IDL) to use or develop other software applications.
11. WARRANTIES; INDEMNIFICATION.
11.1 CFN represents and warrants to BHS as follows:
11.1.1 CFN has full power and authority to enter into and perform
this Agreement.
11.1.2 CFN owns or has sufficient rights in and to the Applications
to grant the license granted in this Agreement. The materials to be
provided to BHS hereunder shall be original, except for material in
the public domain and such excerpts from other works as may be
included with the written permission of the copyright, patent or
trademark owners; CFN has the right to disclose to BHS all
information and materials made available to BHS in the course of
performing this Agreement. To the best of CFN's knowledge, such
materials do not infringe any
14
trade name, trademark, patent or copyright or other proprietary right
or other common law or statutory right of any third party.
11.1.3 On their respective Live Dates and on such subsequent dates
upon which additional Documentation, Minor Releases or other written
materials are provided by CFN, each Application shall conform in all
material respects to the specifications set forth on SCHEDULE A:
DESCRIPTION OF APPLICATIONS and the Documentation and any other
written materials related thereto provided by CFN in effect as of
such dates.
11.1.3 On their respective Live Dates, each Application shall be
clear of any time bombs, viruses or disabling features.
11.1.4 The occurrence in, or the use of the Applications of dates on
or after January 1, 2000 (the "Millennial Dates") will not adversely
affect the performance of the Applications with respect to date
dependent data, computations, output or other functions, including
but not limited to calculating, computing and sequencing, and the
Applications will create store and generate output data related to or
including the Millennial Dates without errors or omissions.
11.2 In the event any Application is changed or modified other than by CFN
(except in accordance with Section 6.10) is used with any hardware or
software other than the OEM Products set forth in SCHEDULE F: SUPPORTED
PLATFORMS or described in SCHEDULE A: DESCRIPTION OF APPLICATIONS or
otherwise designated in writing by CFN, then any representation or warranty
of CFN with regard to such Application (and any other Application that
depends for its operability on such Application) shall be void.
11.3 BHS represents and warrants to CFN as follows:
11.3.1 BHS has full power and authority to enter into and perform
this Agreement and to grant the rights granted in this Agreement.
11.3.2 BHS has the right to disclose to CFN all information and
materials made available to CFN in the course of performing this
Agreement.
11.4 THE WARRANTIES EXPRESSED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, HARDWARE AND OTHER
PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT INCLUDING, BUT NOT
LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11.5. CFN shall indemnify, defend and hold harmless BHS and BHS's
subsidiaries, affiliates, officers and directors, or otherwise dispose
of, at its sole cost and expense, including reasonable attorneys' fees, any
and all losses, damages to persons or property, liabilities, costs,
charges, and expenses (collectively, "losses") solely to the extent that
such losses result from any claim, suit or proceeding brought against BHS
that alleges
15
that the Applications, as delivered and installed in accordance with the
terms of this Agreement, infringes any patent or copyright, and to pay the
amount of any judgment or settlement, provided that BHS gives CFN prompt
notice of such claim, suit or proceeding and gives CFN full information and
reasonable assistance in its defense or settlement. CFN shall be entitled
to direct such defense and to settle or otherwise dispose of such claim,
suit or proceeding as it sees fit. If, however, any Application becomes
subject to any such claim, or there is any threat of any such claim, CFN
may, at its option, obtain for BHS the right to continue using the
Application or make any modifications of, or substitutions to, the
Application which are necessary to make it noninfringing, provided that
such modifications or substitutions do not materially compromise the
functionality of such Application. BHS's cooperation with CFN at CFN's
request, in accordance with this Section, shall be at CFN's expense. No
costs or expenses shall be incurred for the account of CFN without its
prior written consent. BHS may participate with CFN in BHS's own defense
in such claim, suit or proceeding, at BHS's option at its sole expense.
11.6 BHS shall indemnify, defend and hold harmless CFN, and CFN's
subsidiaries, affiliates, officers and directors, from, or otherwise
dispose of, at its sole cost and expense, including reasonable attorneys'
fees, any and all losses, damages to persons or property, liabilities,
costs, charges, and expenses (collectively, "losses") solely to the extent
that such losses result from BHS's negligent acts or omissions in using the
Applications. Subject to the next sentence, the foregoing indemnity shall
not be applicable to any claim that the Applications or the use thereof by
BHS violate any person's patent, copyright or other proprietary right.
Notwithstanding the foregoing, BHS agrees to indemnify, defend and hold
harmless CFN, CFN's and CFN's subsidiaries, affiliates, officers and
directors, from, or otherwise dispose of, at its sole cost and expense,
including reasonable attorneys' fees, any and all losses incurred as a
result of a claim based on modifications or changes to the Applications
made other than by CFN (except in accordance with Section 6.10).
11.7 Each party will name the other ( to the extent required to afford
coverage to the other party under the naming party's policy) as an
additional named insured to the naming party's general liability insurance
coverage. The extension of coverage shall not apply to the additional
insured's losses arising wholly or (to the extent of such partial
liability) partly from its own liability, or that of its agents, affiliates
or subsidiaries. The coverage afforded by the additional insured
endorsement shall be limited to the additional insured's legal liability
for the losses set forth in Sections 11.5 and 11.6.
12. LIMITATION OF LIABILITY.
12.1 In the event that the Applications do not perform substantially in
accordance with the description set forth in SCHEDULE A: DESCRIPTION OF
APPLICATIONS and/or the Documentation, CFN shall at its sole cost and
expense for a period of four (4) months after Acceptance of the
Applications by BHS pursuant to Section 5.5, promptly after notice by BHS,
correct any errors, defects, or nonconformities in the Applications. In the
event the nonconforming Application does not meet, in all in material
respects, the acceptance test criteria established pursuant to Section 5.5,
BHS shall receive a refund equal to 50% of the aggregate of the license and
Support Service fees for such
16
Application actually paid by BHS. CFN shall have no obligation to correct
any errors, defects, or nonconformities in the Applications if the
Applications have been changed or modified other than by CFN (except in
accordance with Section 6.10), if the Applications have been used with OEM
Products other than those set forth in SCHEDULE F: SUPPORTED PLATFORMS
or described in SCHEDULE A: DESCRIPTION OF APPLICATIONS or otherwise
designated by CFN, or the nonconformity, defect, or error relates to any
item which was tested in the acceptance tests pursuant to Section 5.5,
unless Acceptance of the Application was conditioned, in writing, upon the
correction of such nonconformity. The foregoing shall be CFN's sole
liability and responsibility in the event of any defects, errors, or
nonconformities in the Applications.
12.2 Neither party shall be liable to the other for incidental, indirect,
special or consequential damages, or for lost profits, savings or revenues
of any kind, whether or not it has been advised of the possibility of such
damages.
12.3 The remedies set forth throughout this Agreement constitute the
parties' sole and exclusive remedies and entire liability in the event of a
breach and/or termination of this Agreement or any Schedule to this
Agreement.
12.4 Except in the event of a breach of the representations and warranties
set forth in Sections 11.1.2 and 11.1.4, in no event shall CFN's liability
to BHS or any person claiming through BHS, or as a result of the authorized
or unauthorized use of the Applications by or through BHS, exceed in the
aggregate the license and Support Service fees actually paid to CFN
hereunder.
13. INSPECTION RIGHTS.
During the term of this Agreement or any agreement pursuant to which CFN
is providing Support Services to BHS and for a period of five (5) business
days after the last of this Agreement or any such Support Service agreement
to expire:
13.1 CFN shall have the right to inspect the BHS Facilities during normal
business hours (9:00 A.M. to 5:00 P. M., local time), on not less than five
(5) business days written notice, in order to audit the identity of the
users of the Applications, the location and number of processors upon which
the Applications are being accessed and the uses of the Applications.
13.2 CFN may, at its sole discretion, choose to automatically monitor,
audit and enforce compliance of BHS's use of the Applications in conformity
with the license usage conditions through features built into the
Applications or through remote access of the Applications. CFN shall
disclose to BHS if and when such monitoring is initiated and shall notify
BHS of its intention to "dial-in" to BHS's information management
facilities. CFN shall not disable the Applications or any other software
or hardware of BHS in the process of such monitoring.
14. RISK OF LOSS.
17
Subsequent to Acceptance Date of the Applications by BHS, BHS shall be
responsible for the Applications and all associated Documentation, and bear
the risk of loss for the same. CFN will maintain a backup copy of the
Applications and the related Documentation in the form delivered to BHS,
and as updated or modified by CFN from time to time, and shall provide a
copy to BHS at BHS's cost and expense (at CFN's standard rates for time and
materials) in the event of loss by BHS.
15. CAUSES BEYOND THE PARTIES' CONTROL.
15.1 Neither party shall be liable for delay or failure to perform its
obligations herein set forth nor shall either party be held to have
breached any of its obligation hereunder by reason of any delay or failure,
if such delay or failure is due to any cause or condition beyond its
reasonable control. Such causes or conditions shall include, without
limitation, acts of God or of the public enemy, acts of the Federal or any
state or local government or agency in either its sovereign or contractual
capacity, fires, floods, epidemics, quarantine restriction, strikes,
negligence or other fault of the other party or any delay or failure on the
other party's part in the performance of any of its obligations or giving
of any approvals hereunder, refusal or inability of a common carrier to
provide communications capabilities, earthquakes, energy, or materials,
freight embargoes, delays in transportation, unusually severe weather, or
other circumstances beyond either party's control, or any delay or failure
of any supplier or subcontractor of CFN resulting from any of the above;
provided, however, that the foregoing shall not excuse either party from
its obligations under this Agreement to protect the other's proprietary
information. Any time for performance under this Agreement shall be
mutually agreed upon and extended for a period of time equal to any time
lost by reason of such delay. Either party shall promptly inform the other
of any such delays and corresponding extension in agreement in writing.
15.2 In the event that CFN's failure to meet any performance date is
caused by BHS's failure to meet its obligations under the terms of this
Agreement, such CFN failure shall not be deemed a breach of this Agreement.
16. TERMINATION.
16.1 In the event that the Implementation Project Plan is delayed more
than 30 days, except as a result of CFN's excused performance under
Section 15.1 or breach of this Agreement by BHS, BHS may terminate this
Agreement if within 15 days after BHS notice of an intent to terminate
under this Section 16.1, CFN does not commence to perform its obligations
under this Agreement and diligently continue such performance without
further delay or interruption. Upon such termination, neither party shall
have any further obligation to the other, and no amounts previously paid to
CFN shall be refundable; provided however, that if CFN has not given notice
of accomplishment of the first Milestone, BHS shall receive a refund equal
to 50% of the initial payment made to CFN pursuant to SCHEDULE E: SOFTWARE
FEES AND SCHEDULE OF PAYMENTS, Section 1.2.1.
16.2 This Agreement may be terminated at any time by either party upon the
18
occurrence of an Event of Default. The following events shall be deemed to
be events of default ("Events of Default") with respect to either party:
16.2.1. Making an assignment for the benefit of creditors or filing
a petition under any section or chapter of the United States
Bankruptcy Code, as amended, or under similar laws or statutes of the
United States or any State thereof;
16.2.2. Adjudication of either party as bankrupt or insolvent in
proceedings filed against either party under any section or chapter
of the United States Bankruptcy Code, as amended, or under any
similar laws or statutes of the United States or any State thereof;
16.2.3. Appointment of a receiver for all or substantially all of
the assets of a party, or
16.2.4. Except as set forth in Section 16.1, a breach by the other
party of any term or condition of this Agreement, provided that:
.
16.2.4.1 In the event of a breach by BHS of any term or condition of
Sections 6 or 10 of this Agreement, in addition to any other
remedies available to CFN pursuant to this Agreement or otherwise;
upon written notice specifying the nature of such breach, such
termination shall be immediate, the License with regard to all
Applications shall be terminated, and BHS shall immediately cease to
use the Applications and shall destroy all copies of the
Applications and the Documentation.
16.2.4.2 In the event of a breach of any term or condition of this
Agreement other than as set forth in Sections 6 or 10, if written
notice specifying the nature of such breach has been given and such
breach has not been cured within 60 days after receipt of such
notice, or if such breach is of a nature that it cannot be cured
within such 60 day period or the breaching party has not commenced to
proceed to cure such default within such said 60 day period;
provided, however, that if such breach shall be of any obligation to
timely pay any amount due hereunder, the cure period shall be 30
days.
16.3 Upon termination of this Agreement for any reason other than
non-payment by BHS or breach by BHS of any term or condition of Sections 6
or 10 of this Agreement, should BHS request CFN's assistance, CFN shall
provide BHS (at its then current CFN Service Rates) on a best efforts
basis with all support reasonably requested by BHS to convert, transfer and
store production data so that it can be utilized in a successor
applications.
16.4 Upon termination of the License or this Agreement for any reason, BHS
shall destroy all copies of the Applications and the Documentation.
17. INJUNCTIVE RELIEF; PRE -ACCEPTANCE DISPUTE RESOLUTION.
19
17.1 In the event of a breach or threatened breach of any of the terms and
conditions of Sections 6 or 10 of this Agreement by BHS, or any of its
employees, agents, independent contractors, representatives or affiliates,
or any other person or entity who has obtained access to the Applications
from or through BHS or any of its employees, agents, independent
contractors, representatives or affiliates, BHS acknowledges that CFN shall
be entitled to preliminary and permanent injunctive relief to enforce the
provisions of this Agreement, but nothing herein shall preclude CFN from
pursuing any action or other remedy for any breach or threatened breach of
this Agreement, all of which shall be cumulative.
17.2.1 In the event a dispute arising prior to Acceptance of the
Applications that cannot be resolved by the parties' respective Project
Managers, the matter shall be referred to designated representatives of
each party, who shall work to resolve the matter amicably, expeditiously
and fairly and shall document the resolution of such dispute in writing.
The initial designated representatives of the parties are as follows:
CFN: Vice President, Technical Support
BHS: BHS Contact Executive.
A party may designate another representative at any time by notifying the
other party. The referral of the dispute to the designated representatives
shall not delay any time for performance under this Agreement or otherwise
be deemed to waive the rights of either party under this Agreement.
17.2.1 Any disputes that cannot be resolved amicably within 60 days of
notice by either party of its desire to refer the matter to the designated
representatives shall be exclusively resolved by binding arbitration in
Miami Florida, under the then prevailing rules of the American Arbitration
Association. The decision of the arbitrator will be entitled to
enforcement in any court of competent jurisdiction. As part of the award,
the prevailing party shall be entitled to recover reasonable fees for its
time and to recover all costs, including attorney fees and costs, incurred
in enforcing its rights under this Agreement.
18. MISCELLANEOUS.
18.1 None of the terms of this Agreement shall be deemed to be waived or
amended by either party unless such waiver or amendment is in writing and
signed by both parties, and recites specifically that it is a waiver of, or
amendment to, the terms of this Agreement. Any amendment to this Agreement
must be signed by the Executive Vice President and Chief Financial Officer
of BHS (or such other person who shall have previously been designated in
writing) in order to be effective and by the CEO of CFN (or such other
person who shall have previously been designated in writing) in order to
be effective. The failure of CFN or BHS in any one or more instances to
insist upon strict performance of any of the terms or provisions of this
Agreement shall not be construed as a waiver or relinquishment, to any
extent, or the right to assert or rely upon any such terms or provisions on
any future occasion.
18.2 In the event that a court of competent jurisdiction and last resort
holds that a
20
particular provision or requirement of this Agreement is in violation of
any applicable law, each such provision or requirement shall be enforced
only to the extent it is not in violation of such law or is not otherwise
unenforceable and all other provisions and requirements of this Agreement
shall remain in full force and effect.
18.3 This Agreement is deemed to have been entered into in the State of
Florida, and its interpretation, its construction, and the remedies for its
enforcement or breach are to be applied pursuant to, and in accordance
with, the laws of the State of Florida, exclusive of its choice of law
rules.
18.4 BHS may, upon written notice to CFN, assign this Agreement in whole
to any party, other than a competitor of CFN, acquiring substantially all
of BHS's assets or with which BHS merges and which, in either event, agrees
in writing to assume each and every obligation conferred upon BHS under
this Agreement. BHS may not otherwise assign this Agreement without CFN's
prior written consent and any attempted unauthorized assignment shall be
void.
18.5 CFN may, upon written notice to BHS, assign this Agreement in whole
to any party acquiring substantially all of CFN's assets or with which CFN
merges and which, in either event, agrees in writing to assume each and
every obligation conferred upon CFN under this Agreement.
18.6 This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.
18.7 CFN shall perform all services under this Agreement as an independent
contractor and not as an agent or employee of BHS.
18.8 All notices to be given under this Agreement shall be made in writing
and if given by mail, shall be mailed by certified or registered mail,
return receipt requested, or by Federal Express, Express Mail or other
similar express deliver service, to the other party at its address set
forth below or at such other address as the party may specify on five days'
written notice. Notices may also be hand delivered or sent by telex,
telegraph. All notices shall be effective upon receipt. The parties'
addresses for notice are as follows:
To CFN: Healthcare Computing Systems, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn.: Xx. X. Xxxxxxxxxxx
To BHS: Baptist Health Systems of South Florida, Inc.
Information Technologies
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attn.: Xxxx Xxxxxx
18.9 Neither party shall solicit or seek to employ or retain any
employee, consultant or
21
independent contractor of the other party for a period of one (1) year
after the date of the last Acceptance under this Agreement without the
prior written consent of the other party.
18.10 The section headings in this Agreement are for convenience of
reference only and shall not be used in the interpretation or construction
of this Agreement.
18.11 The provisions of Sections 10, 11, 12, 13, 14, 17 and 18 shall
survive any termination of this Agreement.
18.12 Each party represents to the other that this Agreement has been duly
authorized by such party and has been signed and delivered by the duly
authorized officer or agent of such party.
18.13 This Agreement may be signed in counterparts with the same effect as
if both parties had signed one and the same instrument.
18.14 This Agreement contains the entire understanding between the parties
and supersedes any prior oral or written agreement or understanding
previously made between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BAPTIST HEALTH SYSTEMS OF SOUTH FLORIDA, Inc.
By: /s/ Xxxx Xxxxxxxxx
-------------------
Name: Xxxx Xxxxxxxxx
---------------
Title: V.P., Information Technology
-----------------------------
CAREFLOW | NET, INC.
By: J. Xxxxxx Xxxxxx
-----------------
Name: J. Xxxxxx Xxxxxx
-----------------
Title: President and CEO
------------------
22
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE A TO AGREEMENT
DATED AS OF MARCH 3, 1997
DESCRIPTION OF APPLICATIONS
This Schedule describes the Applications that will be delivered by CFN to BHS
pursuant to this Agreement.
[*]
23
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
[*]
24
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
[*]
25
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
[*]
26
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
[*]
27
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
[*]
28
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE B TO AGREEMENT
DATED AS OF MARCH 3, 1997
IMPLEMENTATION SERVICES
1. IMPLEMENTATION SERVICES.
1.1 The Implementation Services shall consist of the following services
provided by CFN:
1.1.1 Delivery of Applications to BHS
1.1.2 Training the Trainers sessions
1.1.3 Project Management status meetings
1.1.4 Analysis and design meetings
1.1.5 Feedback collection and analysis meetings
1.1.6 On-site installation support.
1.2 These services listed above will be provided to BHS during the
course of performance of the Implementation Project Plan at a fixed price
of [*], which shall include all labor and travel expense costs incurred by
CFN in providing such services.
1.3 After completion of Milestone 5, Support Services described in
Section 8 of the Agreement and SCHEDULE D: SUPPORT SERVICES will be
available upon the terms set forth on SCHEDULE E: FEES AND SCHEDULE OF
PAYMENTS. Additional CFN services can be provided to BHS on an "as
available, best efforts" basis at the standard CFN Service Rates.
29
SCHEDULE C TO AGREEMENT
DATED AS OF MARCH 3, 1997
IMPLEMENTATION PROJECT PLAN
Project Plan and Milestones:
The following describes the project plan for the CFN Implementation Services.
The figure below highlights the various milestones. Milestones are numbered M1
through M5.
[CHART]
Assuming an effective start date ("ESD") of March 3, 1997, M5 will be September
3, 1997. Slippage in the ESD start date will shift all the milestones by a
corresponding time frame.
ESD: Kick-off meeting in Miami and review of project plan and get information
on Xxxxxx system integration.
ESD + 1 month (M1): Concept of operations of the transcriptionist, Provider and
System Adman. detailed in terms of Use cases. Mockup of the various interfaces
provided to BHS for evaluation and comment.
ESD + 3 months (M2): Open interface specifications and pre-release of the
various graphical interface Applications for comment.
ESD + 4 months (M3): Integration with Xxxxxx completed and testing of the all
Applications begins in Morgantown.
ESD + 5 months (M4): Trip to Miami to kick-off on-site installation and
testing.
30
ESD + 6 months (M5): Go live date with all Applications.
31
SCHEDULE D TO AGREEMENT
DATED AS OF MARCH 3, 1997
SUPPORT SERVICES
1. CFN currently offers two Support Plans for Licensed Applications: a
Standard Support Plan and a Priority Support Plan. BHS may choose either
plan, but must choose the same plan for all Applications.
1.1 The "Standard Support Plan" carries an annual service fee as
specified in SCHEDULE B SOFTWARE FEES AND SCHEDULE OF PAYMENTS (with
proportional increases for added usage units based on additional licenses
purchased by BHS). The Standard Support Plan provides for telephonic,
electronic mail or remote control (dial-up or Internet based) support by
CFN during normal business hours (9:00 a.m. - 5:00 p.m.) Monday through
Friday, excluding Federal holidays) for any of the covered Applications.
1.2 The "Priority Support Plan" carries an annual service fee as
specified in SCHEDULE B SOFTWARE FEES AND SCHEDULE OF PAYMENTS (with
proportional increases for added usage unit based additional licenses
purchased by BHS). The Priority Support Plan provides for telephonic,
electronic mail or remote control (dial-up to Internet based) support by
CFN during normal business hours (9:00 a.m. - 5:00 p.m.) Monday through
Friday, excluding Federal holidays) for any of the covered Applications, as
well as around the clock, seven days a week off-site support from CFN
personnel reachable through a paging service.
2. Minor Releases - So long as BHS subscribes to either of the above plans for
an Application, BHS shall continue to receive Minor Releases to the
supported Application. Minor Releases shall be in electronic form, either
shipped to BHS or down-loadable from CFN's Web site, by mutual agreement of
the parties. Telephonic, electronic mail or remote control (dial-up or
Internet based) assistance with installations of new Minor Releases will be
provided to BHS at no additional charge, during the hours of coverage
available through the selected Support Service Plan. CFN shall use its
reasonable best efforts to remain compliant with future versions of the HL7
Standard and its successor standards. CFN will use its reasonable best
efforts to design the Applications and to maintain the Applications, for so
long as an agreement is in effect with regard to Support Services, in
conformity with OMG approved standards.
3. On-Site Support - If requested by BHS, on-site support at BHS can be
provided on an "as available" basis at the standard CFN Service Rates.
4. CFN may from time-to-time in its sole discretion change the features of
its existing Support Plans or offer other Support Plans. In such event,
BHS shall have the option of converting its Support Plan then in effect to
an alternative plan, upon payment of the additional fees, if any, payable
for such alternative plan.
5. Additional custom services relating to integration with third party vendor
products or other matters may be provided, upon agreement by the parties,
at standard CFN Service Rates, or as otherwise agreed by the parties.
32
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE E TO AGREEMENT
DATED AS OF MARCH 3, 1997
SOFTWARE FEES AND SCHEDULE OF PAYMENTS
The following describes the Application license fees, Implementation Service
fees, Support Service fee and other fees, if any, to be paid by BHS for the
Applications delivered under this Agreement. The Applications are defined in
Schedule A to this Agreement.
These fees, and usage rights based on the payment of the applicable fees, are
further qualified as specified in the Agreement.
1.1.1 The following are the Application license fees currently in effect, the
Implementation Service fees for the Implementation Services set forth on
SCHEDULE C: IMPLEMENTATION PROJECT PLAN, and the Support Service fees for the
first annual period:
-----------------------------------------------------------------------------------------------------------------------------------
License Unit Price Per Unit Initial Fee Initial Units Usage Enhancements, Enhancements,
Unit Interval Included Period Fixes and Fixes and
Included Standard Priority
Annual Annual
Support Support
-----------------------------------------------------------------------------------------------------------------------------------
FRONT END
-----------------------------------------------------------------------------------------------------------------------------------
Transcription Entry Licensed User [*] [*] 18 Perpetual [*] [*]
(including
technicians)
-----------------------------------------------------------------------------------------------------------------------------------
Clinician Sign off Per Processor [*] [*] 20 Perpetual [*] [*]
of Transcribed notes
-----------------------------------------------------------------------------------------------------------------------------------
Clinician Review of
Transcribed notes Per Processor [*] [*] 20 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
MIDDLEWARE
-----------------------------------------------------------------------------------------------------------------------------------
Report Repository Per Processor [*] [*] 1 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Report Routing Per Processor [*] [*] 1 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Security Service Per Processor [*] [*] 1 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
Patient Demographics Per Processor [*] [*] 1 Perpetual [*] [*]
Update + Retrieval
-----------------------------------------------------------------------------------------------------------------------------------
Medical Staff Per Processor [*] [*] 1 Perpetual [*] [*]
Demographics Update
+ Retrieval
-----------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Backend
-----------------------------------------------------------------------------------------------------------------------------------
33
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
-----------------------------------------------------------------------------------------------------------------
Database for Reports Per Processor [*] [*] 1 Perpetual [*] [*]
and Demographics
HTML Repository Per Processor [*] [*] 1 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------
SUBTOTAL [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------
Interfaces Xxxxxx Xxxxxx System [*] [*] 3 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------
Demographics from ADT ADT System [*] [*] 2 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------
Report Routing to HIS HIS System [*] [*] 2 Perpetual [*] [*]
-----------------------------------------------------------------------------------------------------------------
Report Routing to Com Server [*] [*] 1 Perpetual [*] [*]
Communication Server
-----------------------------------------------------------------------------------------------------------------
Subtotal [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Total Licenses [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
"Luminary Site" Discount 25% [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Discounted Total Licenses [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
IMPLEMENTATION
SERVICES N/A N/A
-----------------------------------------------------------------------------------------------------------------
Requirements N/A [*]
Specification and
Project Management
Meetings
-----------------------------------------------------------------------------------------------------------------
Customization [*]
Allowance
-----------------------------------------------------------------------------------------------------------------
Subtotal [*] [*] [*]
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
TOTAL [*] [*] [*]
COST
-----------------------------------------------------------------------------------------------------------------
1.1.2 Support Service fees for the second and third annual periods shall be
equal to the prior period's fees X the change in the CPI between the
two periods. Fees for subsequent periods shall be the fees then in
effect, as determined by CFN.
1.2 Schedule of payments for the aggregate of the initial Application
license fees and the Implementation Service fees:
1.2.1 Fifty percent (50%) is due upon the Effective Date
34
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
1.2.2 Ten percent (10%) is due upon delivery of notice, pursuant to Section
5.4, of the achievement of each successive milestone, M1 through M5,
identified in Schedule D, for a total of five (5) such payments.
1.3 Schedule of Support Service fee payments:
1.3.1 Fees for the first annual period are due in full on or
before the date of Milestone 5.
1.3.2 Fees for subsequent annual periods are due in full on or
before the commencement of such periods.
1.4. Additional Usage Units
1.4.1 One-time License Fee for additional units (processors) : The
per unit fee for additional units added during the first
annual period shall be as set forth in 1.1.1, above.
Subject to Section 3, below, (i) the per unit fee for
additional units added during the second and third annual
periods shall be equal to the prior period's fees X the
change in the CPI between the two periods, and (ii)
subsequent to the third annual period after the Effective
Date, the License fee for additional units shall be the fee
then in effect, as determined by CFN. The fees for the
additional usage units are due in advance of the activation
of such usage units.
1.4.2 Support Service fees for additional units: The annual fee
then in effect for Support Services shall be adjusted
proportionally to the increase in the number of licensed
usage units. The amount of such increase is due in advance
of the activation of such usage units.
1.5 CFN Service Rates
1.5.1 The CFN Service Rates in effect as of the Effective Date
are:
Vice President
or other officer.. [*]
Senior Technical Staff.... [*]
Junior Technical Staff.... [*]
Administrative Support.... [*]
The CFN Services Rates are subject to change in CFN's sole
discretion.
1.5.2 Should travel by CFN personnel be needed for the performance
of the CFN
35
THE INFORMATION BELOW, MARKED BY * AND [ ], HAS BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTION HAD BEEN SEPARATELY
FILED WITH THE COMMISSION.
services, such expenses shall be billed on a pass-through
basis at actual out-of-pocket cost.
1.5.3 Travel times shall be billable at the rates specified above,
based on door-to-door travel times.
1.5.4 All services will be billable in fifteen (15) minute
increments.
2 Licenses for Major Releases and other new products .
BHS shall have the option to obtain a license for any Major Release
or any other new software application or product for which CFN makes
licenses available on a non-exclusive basis. The license terms,
including the fee and terms of payment, for any such license shall be
as mutually agreed by the parties, subject to Section 3, below.
3 Special Pricing Terms.
[*]
36
SCHEDULE F TO AGREEMENT
DATED AS OF MARCH 3, 1997
Supported Platforms
The Supported Platform shall include the following operating environments for
the Software:
1. HARDWARE:
Hosts / servers: Windows NT 4.0 Server
End-user Workstations: IBM-compatible PCs
2. OPERATING SYSTEMS:
Windows: Windows 95 or Windows NT 4.0 for all clients.
3. NETWORKING ENVIRONMENT:
Any environment supporting TCP/IP.
4. DATABASE MANAGEMENT SYSTEM:
Oracle 7.0 (running on Windows NT)
5. MIDDLEWARE:
Object Request Broker: Orbix, Orbix for Windows and Orbixweb 2.1 all from
Iona, Inc.
Interface Gateways: any gateway that supported Health Level 7 version 2.2
compliant messages
6. WEB BROWSERS AND SERVERS
Netscape Web browser 3.0 or above and Netscape Suitespot server set.
Microsoft's Internet Explorer will be supported for patient information
review applications.
7. OTHER SOFTWARE
Microsoft Word 7.0, Active X and Java.
37
SCHEDULE G TO AGREEMENT
DATED AS OF MARCH 3, 1997
BHS FACILITIES
[TO BE PROVIDED BY BHS]
38
