Exhibit 10
LICENSE AND MAINTENANCE AGREEMENT
THIS LICENSE AND MAINTENANCE AGREEMENT (this "Agreement") is entered
into effective as of September 30, 2002 (the "Effective Date"), by and between
I-TRAX, INC., a Delaware corporation, I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC.,
a Delaware corporation (collectively, "I-trax"), and UICI, INC., a Delaware
corporation ("UICI"). I-trax and UICI are individually a "Party" and
collectively the "Parties."
A. I-trax has developed and owns all right, title, and interest in and
to certain software.
B. I-trax and UICI intend that, among other things, I-trax grant to
UICI an exclusive license to such software in the student market and a
non-exclusive license to such software for use by UICI for its other businesses
and maintain such software.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, and warranties contained in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the Parties, intending to be legally bound, agree as follows:
1. Definitions. The following definitions apply in this Agreement
unless otherwise expressly provided or the context otherwise requires:
1.1 "Additional Services" means the services set forth in Section
18.
1.2 "Affiliate" means, with respect to an entity, any other
entity that (directly or indirectly) controls, is controlled by, or is under
common control with, such entity.
1.3 "Confidential Information" means all information and
materials (tangible and intangible) disclosed by a Party to the other Party
pursuant to this Agreement and identified in writing, at the time of disclosure,
as "confidential" or "proprietary." The Licensed Software, including, but not
limited to, the Source Code thereof, is I-trax's Confidential Information.
1.4 "Content Maintenance" means the maintenance set forth in
Section 17.2.
1.5 "Developed Materials" means (i) all materials developed
pursuant to Section 16 and (ii) all Headers, Navigation Bars, and Web Pages
developed by I-trax and derived directly or indirectly from UICI Materials.
1.6 "DM and PM Services" means a multi-disciplinary approach,
based on evidence-based guidelines, to the delivery of healthcare services that
(i) assists individuals with self managing such individuals' health and
wellness, (ii) proactively identifies individuals at risk for or with a disease
and empowers such individual to become a part of such individual's health care
team, (iii) support the individual/physician relationship, and/or (vi)
continuously evaluate individuals' clinical, humanistic, and economic outcomes
with the goal of improving such individuals' health.
1.7 "Documentation" means all technical and user documentation
(whether written or in electronic form) provided or made available by I-trax to
UICI for the Licensed Software.
1.8 "Enhancement" means (i) an enhancement, version, revision,
release, or upgrade to the Licensed Software, (ii) a derivative work of the
Licensed Software, (iii) software that adds functionality or one or more
features to the Licensed Software, (iv) software that is intended to replace the
Licensed Software, or (v) software that contains all or substantially all of the
functionality of the Licensed Software.
1.9 "Error" means any failure of the Licensed Software to perform
in accordance with the Documentation.
1.10 "Error Correction" means a correction or workaround for an
Error.
1.11 "Existing Agreements" means any and all agreements,
including, but limited to, letter agreements or terms and conditions posted on
an Internet web site, in the Student Market to which I-trax is a party.
1.12 "Existing Agreements Schedule" means the Existing Agreements
related to the Schools set forth in Schedule I.
1.13 "Existing MedWizard(R)" means a MedWizard(R)in existence as
of the Effective Date.
1.14 "Further Assurances" means conveying the facts concerning
any invention, improvements in any invention, and at the expense of UICI, UICI's
successors, assigns, and legal representatives, to do generally, as and when
requested by UICI, everything reasonably possible to vest title in UICI, UICI's
successors, assigns, and legal representatives, to aid UICI, UICI's successors,
assigns, and legal representatives to obtain and enforce proper protection for
any invention and any improvements thereon in all countries throughout the
world, including, but not limited to, recording in all appropriate registries
evidence of the rights transferred to UICI by this Agreement and obtaining in
writing an assignment of all rights from each I-trax employee and all other
entities acting on I-trax's behalf who could have rights in and/or to the
Developed Materials, either now and/or in the future.
1.15 "Header" means a header, located on an Internet web page,
containing (i) text and/or graphics identifying a business and (ii) links.
1.16 "HealthGate" means HealthGate Data Corp, a Delaware
corporation.
1.17 "HIPAA" means the Health Insurance Portability and
Accountability Act of 1996 and any and all regulations adopted thereunder.
1.18 "Implementation Schedule" means the implementation schedule
set forth in Schedule II.
1.19 "Intellectual Property Rights" means any and all now known
or hereafter known tangible and intangible (i) rights associated with works of
authorship throughout the universe, including, but not limited to, copyrights,
moral rights, and mask-works, (ii) trademark, trade name, and trade dress rights
and any similar rights, (iii) trade secret rights and any and all other rights
to prohibit disclosure, (iv) Patent Rights, algorithms, and other industrial
property rights, (v) all other intellectual and industrial property rights (of
every kind and nature throughout the universe and however designated)
(including, but not limited to, domain names, logos, "rental" rights, and rights
to remuneration), whether arising by operation of law, contract, license, or
otherwise, and (vi) any and all registrations, initial applications, renewals,
extensions, continuations, divisions, or reissues hereof now or hereafter in
force (including, but not limited to, any and all rights in any of the
foregoing).
1.20 "I-trax Content License" means that certain Content
Agreement, dated as of May 31, 2002, by and between I-trax and HealthGate.
1.21 "I-trax Indemnified Group" means I-trax, I-trax's
Affiliates, and the shareholders, partners, members, directors, managers,
officers, employees, independent contractors, and agents of I-trax and I-trax's
Affiliates.
1.22 "Level 1 Error" means that the Licensed Software or a major
function or subsystem of the Licensed Software is inoperable.
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1.23 "Level 2 Error" means the repeated failure of the Licensed
Software or a major function or subsystem of the Licensed Software.
1.24 "Level 3 Error" means a failure of the Licensed Software or
a function or subsystem of the Licensed Software that is infrequent or has minor
user impact on UICI's operations.
1.25 "Level 4 Error" means a failure of the Licensed Software or
a function or subsystem of the Licensed Software that has little or no user
impact on UICI's operations.
1.26 "Licensed Software" means collectively, the following
software and their underlying core technologies and middleware: (i)
MyFamilyMD(TM), (ii) CarePrime(R), (iii) Health-e-Coordinator, (iv) Medicive(R),
(v) all other software required to operate items (i) through (iv), and (vi) any
and all Error Corrections, Updates, and Enhancements to items (i) through (v).
1.27 "Login Page" means an Internet login page permitting access
to the Licensed Software's functionality upon the submission of a valid username
and password.
1.28 "Losses" means all liabilities, claims, damages, injuries,
demands, proceedings, actions, assessments, settlements, judgments, awards,
punitive awards, fines, charges, deficiencies, losses, costs, and expenses
(including, but not limited to, all costs of preparation and investigation,
interest, penalties, fees, disbursements, and expenses for attorneys,
accountants, and other professional advisors).
1.29 "Maintenance" means collectively, Software Maintenance and
Content Maintenance.
1.30 "Marks" means all I-trax marks related to the Licensed
Software.
1.31 "XxXxxxxxx" means Xxxx XxXxxxxxx, an individual.
1.32 "Medicive(R)" means I-trax's Medicive(R)Medical Enterprise
Data System.
1.33 "MedWizard(R)" means an interactive software tool designed
to easily enter and track health information, including, but not limited to,
weight, height, immunizations, peak flow, health history, and medication.
1.34 "Navigation Bar" means a navigation bar, located on an
Internet web page, permitting navigation of an Internet web site.
1.35 "Patent Rights" means the rights to all inventions, whether
patentable or not, including, but not limited to, the right to file applications
and obtain patents, utility models, industrial models, and designs in the
inventor's own name in the United States and throughout the world, and all
rights to obtain other intellectual property protection in the United States and
throughout the world.
1.36 "Pre-Closing Tests and Audits" means the initial, stress
tests and security audits of the Licensed Software developed, conducted, and
certified by UICI, I-trax, and applicable third parties, prior to the Effective
Date, on agreed upon hardware.
1.37 "Production Interface Engine" means software that passes all
data elements bi-directionally between UICI and the Licensed Software related to
health care insurance claims, eligibility statements, and status.
1.38 "School" means a school, school district, or university in
the Student Market.
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1.39 "Second Tier Support" means I-trax (i) answering questions
from, and providing general advice to, the UICI Group by telephone concerning
the use, configuration, and troubleshooting of the Licensed Software and (ii)
receiving reports from the UICI Group by telephone of possible Errors in the
Licensed Software.
1.40 "Security Plan" means the security plan jointly developed by
I-trax and UICI prior to the Effective Date for the redesign and
re-implementation of the security architecture of the Licensed Software.
1.41 "Software Maintenance" means the maintenance set forth in
Section 17.1.
1.42 "Solicitation Event" means I-trax (i) breaching this
Agreement, which remains uncured for five days following notice from UICI of
such breach, (ii) ceasing to function as an ongoing concern or to conduct
I-trax's operations in the normal course of business, (iii) becoming insolvent
(after the Effective Date) or bankrupt, or (iv) making an assignment for the
benefit of creditors.
1.43 "Source Code" means the source code for the Licensed
Software, the Headers, the Navigation Bars, the Web Pages, the Stress Correction
Version, the Security Plan Version, and the Production Interface Engine and
includes, but is not limited to:
(a) all administrator (highest access level) passwords to
the Licensed Software;
(b) all web browser viewable components of any type
(including, but not limited to, files of type html, xml, asp, jsp, jpg, gif,
mov, swf) (i.e., the presentation layers);
(c) all documentation describing completely the entry
points, parameters, function calls, use, and limitations of the "COM, COM+
objects" (i.e., the middleware);
(d) all database files that contain the tables, queries,
stored procedures, relationships, and indices of the Licensed Software, subject
to Third Party Licenses;
(e) all documentation that details the data model,
including, but not limited to, entity-relationships of the Licensed Software;
(f) source code and documentation for the database
architecture that comprise FAM-A and FAM-D and all other derivatives and
progenitors of Medicive(R) which are not implemented in the Licensed Software;
(g) source code and documentation for Error Corrections,
Updates and Enhancements and/or any item listed in (a) through (f) above that
have been developed by I-trax or are being developed by I-trax, even if such
versions and enhancements reside on a development system.
1.44 "Specialized Associations Services" means Specialized
Association Services, an entity, which manages and works with UICI Independent
Associations. 1.45 "Student Market" means any and all markets for products or
services in which students (without regard to age or classification) are the
primary, intended end users of such products or services.
1.46 "Technology Consultant" means a consultant engaged by I-trax
to assist I-trax with I-trax's product development efforts. The Technology
Consultant as of the Effective Date is identified on Schedule VI to this
Agreement. I-trax reserves the right to retain a different Technology Consultant
with reasonable prior written notice to UICI.
1.47 "Third Party Content" means text and graphics provided by a
party other than the UICI Group or I-trax (e.g., HealthGate).
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1.48 "Third Party Licenses" means third party licenses disclosed
in writing to UICI prior to the Effective Date or otherwise approved by UICI in
writing.
1.49 "UICI Affiliates" means collectively all Affiliates of UICI.
1.50 "UICI Agencies" means collectively all third parties that
sell UICI products, including, but not limited to, agencies know as "CMA,"
"GSA," "SF," and "UGA."
1.51 "UICI Customers" means collectively all customers of UICI's
products or services, whether customers as of the Effective Date or following
the Effective Date.
1.52 "UICI Independent Associations" means collectively all third
parties that offer UICI products to their respective members (and who may also
offer other third party products unrelated to UICI to such members), including,
but not limited to, those independent associations known as "AAS," "ABA,"
"ACSA," "AFS," and "NASE" and those independent associations listed on Schedule
III.
1.53 "UICI Data" means any and all data generated or collected by
UICI in connection with the Licensed Software.
1.54 "UICI Divisions" means collectively all divisions (whether
in existence as of the Effective Date or created following the Effective Date)
within UICI, including, but not limited to, divisions known as "AMS," "LTC,"
"SI," "STAR," "SEA," "Seniors," and "Student Resources."
1.55 "UICI Group" means collectively, (i) UICI, (ii) all UICI
Divisions, (iii) all UICI Affiliates, (iv) all UICI Independent Associations,
(v) all UICI Agencies, (vi) Specialized Associations Services, and (vii) all
successors and assigns of (i) through (vi).
1.56 "UICI Indemnified Group" means collectively, the UICI Group
and the shareholders, partners, members, directors, managers, officers,
employees, independent contractors, and agents of the UICI Group.
1.57 "UICI Other Market" means any and all markets, other than
the Student Market, for products or services offered by the UICI Group now or in
the future, exclusive of the DM and PM Services offered on a stand-alone basis
(i.e., offered separate from any other product or service, including, but not
limited to, any insurance product or service).
1.58 "Updates" means (i) an aggregation of Error Corrections,
(ii) changes to the Licensed Software to maintain compatibility with applicable
third party software, (iii) changes to the Licensed Software made for the
benefit of I-trax or other I-trax licensees, and (iv) changes to UICI's version
of the Licensed Software necessary to implement changes made for the benefit of
I-trax or other I-trax licensees.
1.59 "Web Page" means text and/or graphics, located on an
Internet web page, exclusive of Headers and Navigation Bars
2. Parties' General Obligations.
2.1 I-trax's General Obligations. I-trax shall:
(a) Jointly develop the Implementation Schedule with UICI
in accordance with Section 3;
(b) Correct any failure of the Licensed Software to pass
the stress test portion of the Pre-Closing Tests and Audits in accordance with
Section 4 and the Implementation Schedule (the "Stress Corrections");
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(c) Grant licenses to the Licensed Software in accordance
with Section 5;
(d) Grant a license to all Marks in accordance with
Section 6;
(e) Develop and implement Headers, Navigation Bars, and
Web Pages in accordance with Section 7 and the Implementation Schedule;
(f) Develop and implement Login Pages in accordance with
Section 8 and the Implementation Schedule;
(g) Develop and implement MedWizards(R)in accordance with
Section 9 and the Implementation Schedule;
(h) Integrate Third Party Content in accordance with
Section 10 and the Implementation Schedule;
(i) Develop and implement disease management modules in
accordance with Section 11;
(j) Provide training in accordance with Section 12;
(k) Make available I-trax personnel in accordance with
Section 13;
(l) Grant access to development efforts and third party
preferential pricing in accordance with Section 14;
(m) Identify in writing, on the Effective Date and from
time to time as requested by UICI, all third party vendors and products used by
I-trax in connection with Maintenance and the cost of such vendors and products;
(n) Implement the Security Plan in accordance with
Section 15;
(o) Develop and implement the Production Interface Engine
in accordance with Section 16;
(p) Provide Software Maintenance in accordance with
Section 17.1;
(q) Provide Content Maintenance in accordance with
Section 17.2; and
(r) Provide the Additional Services in accordance with
Section 18.
2.2 UICI's Obligations. UICI shall:
(a) Jointly develop the Implementation Schedule with
I-trax in accordance with Section 3
(b) Oversee, and have approval rights with respect to,
I-trax's implementation of the Stress Corrections in
(c) Oversee, and have approval rights with respect to,
I-trax's implementation of the Security Plan in accordance with Section 15;
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(d) Oversee, and have approval rights with respect to,
I-trax's implementation of the Production Interface Engine in accordance with
Section 16; and
(e) Pay the amounts when due in accordance with Section
19.
3. Implementation Schedule. Immediately following the Effective Date,
I-trax and UICI shall jointly develop the Implementation Schedule, execute it,
and attach it to this Agreement, at which time the Implementation Schedule will
become a part hereof.
4. Stress Test Correction.
4.1 Modification and Delivery. I-trax shall modify the Licensed
Software, in accordance with the Implementation Schedule, to fully implement the
Stress Corrections (the "Stress Correction Version"). The date on which I-trax
delivers the Stress Correction Software to UICI is the "Stress Correction
Delivery Date."
4.2 Testing. Commencing on the Stress Correction Delivery Date,
UICI shall perform such tests as UICI, in UICI's sole discretion, chooses on the
Stress Correction Version, for a period of 60 days (the "Stress Correction Test
Period") for compliance with the Stress Corrections.
4.3 Correction Period. If the Stress Correction Version fails to
comply with the Stress Corrections, then UICI shall notify I-trax in writing of
such failure. Upon receipt of such notice, I-trax shall use its best efforts to
complete, as quickly as possible, all necessary corrections, repairs, and
modifications to the Stress Correction Version, but in no event shall such
corrective measures exceed 60 days following such notice or such other period as
the Parties may mutually agree upon in writing (such period, the "Stress
Correction Period").
4.4 Re-Testing. Upon completion of the corrections, repairs and
modifications to the Stress Correction Version, I-trax shall deliver a revised
Stress Correction Version to UICI for re-testing in accordance with Section 4.2.
The date on which I-trax delivers the revised Stress Correction Version to UICI
as modified under Section 4.3 shall be deemed to be the Stress Correction
Delivery Date and new Stress Correction Test Period shall commence as of such
Stress Correction Delivery Date.
4.5 Acceptance. UICI's acceptance of the Stress Correction
Version shall occur on the earlier of (i) the date on which UICI delivers to
I-trax written notice that the Stress Correction Version, original or as
revised, has been accepted; or (ii) upon the expiration of the applicable Stress
Correction Test Period without receipt of notice from UICI notifying I-trax that
the Stress Correction Version, original or as revised, fails to comply with the
Stress Corrections.
5. Software Licenses.
5.1 Student Market. I-trax hereby grants to the UICI Group an
exclusive, perpetual, irrevocable, worldwide, royalty free, fully paid-up,
transferable, and sublicensable through multiple tiers license to use, possess,
copy, display, perform, distribute, modify, and prepare derivative works of the
Licensed Software in the Student Market, in all formats, including, but not
limited to, Source Code format, at one or more locations (as determined by the
UICI Group, in the UICI Group's sole discretion) and in any and all media, now
known or hereafter developed. Included, without limitation, in the foregoing
grant, the UICI Group has the right to display the Licensed Software to, cause
the performance of the Licensed Software for, and make the Licensed Software
available for use by, users in the Student Market (including, but not limited
to, Schools, students, and student health centers or similar service providers).
5.2 UICI Other Market. I-trax hereby grants to the UICI Group a
non-exclusive, perpetual, irrevocable, worldwide, royalty free, fully paid-up,
transferable, and sublicensable (with I-trax's prior, express, and written
consent, which consent may be withheld in I-trax's sole discretion) license to
use, possess, copy, display, perform, distribute, modify, and prepare derivative
works of the Licensed Software in the UICI Other Market, in all formats,
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including, but not limited to, Source Code format, at one or more locations (as
determined by UICI, in UICI's sole discretion) and in any and all media, now
known or hereafter developed. Included, without limitation, in the foregoing
grant, the UICI Group has the right to display the Licensed Software to, cause
the performance of the Licensed Software for, and make the Licensed Software
available for use by, users in the UICI Other Market.
5.3 Initial Delivery. Immediately following the Effective Date,
I-trax shall deliver to UICI one copy of the Licensed Software in Source Code
format to a location specified by UICI (the "Designated Location"). The Parties
acknowledge and agree that the ownership, operation, and physical location of
the Designated Location shall be determined by UICI, in UICI's sole discretion.
5.4 Source Code. All Source Code delivered by I-trax to UICI
pursuant to this Agreement shall (i) be in form enabling a person possessing
reasonable skill and expertise in computer software and information technology
to build, load, and operate the machine-executable object code and (ii) include,
but shall not be limited to, all scripts, procedures, proprietary compilers, and
other information necessary or useful to modify, configure, compile, link, and
execute such Source Code and to build the Licensed Software from such Source
Code.
5.5 Copies. UICI may, in UICI's sole discretion, make unlimited
copies of the Licensed Software and may locate such copies at one or more
UICI-controlled facilities and/or third party hot site or host site facilities,
as selected by UICI, in UICI's sole discretion.
5.6 Exclusivity. In furtherance of the exclusive license granted
by I-trax pursuant to Section 5.1, if I-trax desires to license the Licensed
Software to a third party in the Student Market, then each such license grant
shall be subject to (i) UICI's prior, express, and written consent, which
consent may be withheld in UICI's sole discretion, and (ii) any and all terms
and conditions imposed by UICI (including, but not limited to, the amount of the
license fees paid by the third party and the scope of such third party's use of
the Licensed Software).
6. Marks License. Commencing on the Effective Date and continuing for
so long as UICI engages I-trax to provide Software Maintenance, I-trax grants to
the UICI Group a non-exclusive, worldwide, royalty free, fully paid-up,
transferable, and sublicensable (with I-trax's prior, express, and written
consent, which consent may be withheld in I-trax's sole discretion) license to
copy, display, perform, and distribute the Marks in the Student Market and the
UICI Other Market.
7. Headers, Navigation Bars, and Web Pages.
7.1 Headers.
(a) I-trax shall develop and implement, at UICI's sole
direction, (i) a Header for each School with an aggregate enrollment exceeding
5,000 students (the "Large School Headers") and (ii) up to ten Headers for the
UICI Group (the "Ten UICI Group Headers"). The Large School Headers and the Ten
UICI Group Headers are collectively, the "Initial Headers."
(b) I-trax shall develop and implement Headers in
addition to the Initial Headers at UICI's direction (each, an the "Additional
Header").
7.2 Navigation Bars.
(a) I-trax shall develop and implement, at UICI's sole
direction, a Navigation Bar for each School with an aggregate enrollment
exceeding 10,000 students.
(b) I-trax shall implement I-trax's standard Navigation
Bar for each School with an aggregate enrollment of 10,000 or fewer students.
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(c) I-trax shall develop and implement, at UICI's sole
direction, a Navigation Bar for each member of the UICI Group (not to exceed ten
such Navigation Bars, however).
7.3 Web Pages.
(a) I-trax shall develop and implement, at UICI's sole
direction, a standard Web Page applicable to all Schools (the "School Page").
Each School Page for a School shall include a Header and a Navigation Bar
applicable to such School.
(b) I-trax shall develop and implement, at UICI's sole
direction, a standard Web Page for each member of the UICI Group (not to exceed
ten such Web Pages, however) (each, a "UICI Group Page"). Each UICI Group Page
for a UICI Group member shall include a Header and a Navigation Bar applicable
to such UICI Group member.
(c) Each Web Page shall contain links to certain Internet
accessible resources and web sites in accordance with UICI's reasonable
directions.
7.4 UICI Development. Notwithstanding Sections 7.1 through 7.3,
UICI reserves the right, without limiting or otherwise affecting the validity of
any license granted by I-trax pursuant to this Agreement or any other term or
condition of this Agreement, to bring in-house (on a permanent basis or on a
case-by-case basis) the development of Headers, Navigation Bars, and Web Pages.
8. Login Pages. I-trax shall implement I-trax's standard Login Page in
the Student Market and the UICI Other Markets. Each Login Page for a School or a
UICI Group member shall include a Header applicable to such School or UICI Group
member.
9. MedWizards(R).
9.1 Existing. I-trax shall implement all Existing
MedWizards(R)for use with all Navigation Bars and all Web Pages.
9.2 Forms.
(a) I-trax shall develop and implement MedWizards(R), at
UICI's sole direction, that implement and provide links on applicable School
Pages to the following enrollment forms:
(i) A customized health enrollment form for each
School with an aggregate enrollment exceeding 5,000 students;
(ii) A standard health enrollment form for all
Schools with an aggregate enrollment of 5,000 or fewer students; and
(iii) An insurance enrollment form for each
School.
(b) I-trax shall develop and implement MedWizards(R), at
UICI's sole direction, that implement and provide links on applicable UICI Group
Pages to an insurance enrollment form for each UICI Group member (not to exceed
ten such enrollment forms, however).
9.3 Additional. I-trax shall develop or redevelop and implement,
at UICI's sole direction, up to ten new MedWizards(R) (in addition to the
MedWizards(R) developed and implemented pursuant to Section 9.2) for use with
all Navigation Bars and all Web Pages.
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10. Third Party Content.
10.1 HealthGate.
(a) I-trax shall cause HealthGate to enter into a license
with UICI for UICI's use of all of HealthGate's Third Party Content in the form
of Exhibit A to this Agreement. The costs of such license (including, but not
limited to, the negotiation of such license) shall be borne entirely by I-trax
through the first anniversary of the Effective Date. Thereafter, the costs of
such license shall be borne entirely by UICI.
(b) Notwithstanding Section 10.1(a), I-trax shall amend
the I-trax Content License to permit the UICI Group to receive all of the Third
Party Content made available to, and received by, I-trax pursuant to the I-trax
Content License when the I-trax Content License comes up for renewal on May 31,
2003.
10.2 Integration. I-trax shall integrate all Third Party Content
for use with all Navigation Bars and Web Pages.
11. Disease Management Modules. I-trax shall develop and implement, in
the Licensed Software, disease management modules relating to high-risk
pregnancy and cancer within 90 days following notice from UICI that UICI has
adopted a definitive plan to use such disease management modules.
12. Training. I-trax shall train UICI on the use and maintenance of all
Licensed Software provided by I-trax (including, but not limited to, system
architecture and use and maintenance of the Source Code related to all such
Licensed Software) at such times and locations, and for such durations, as are
determined by UICI in UICI's sole discretion (provided, however, that each such
determination by UICI shall be reasonable regarding demands placed on I-trax's
time and travel requirements). The scope and level of detail of the training
shall be in UICI's sole discretion. The experience of the I-trax trainers shall
correspond to the complexity of the subject matter and shall be acceptable to
UICI.
13. Personnel. I-trax shall make available, upon UICI's reasonable
request, I-trax personnel (including, but not limited to, XxXxxxxxx or the
person or persons who are performing XxXxxxxxx'x duties in the event XxXxxxxxx
is no longer employed by I-trax) to address questions and issues related to the
Licensed Software (including, but not limited to, Medicive(R) and the
Medicive(R) database management system). The obligations in this Section 13
shall be in addition to I-trax's providing Second Tier Support.
14. Access.
14.1 I-trax Development. I-trax grants to UICI unlimited, remote,
and on-site access to observe all new I-trax product development and enhancement
project efforts.
14.2 Strategic Partnerships. I-trax grants to UICI unlimited,
remote, and on-site access to (and shall make available benefits received
pursuant to) strategic partnerships with third parties formed to develop
products. This grant does not extend to (i) strategic partnership pre-formation
activities (e.g., meetings or discussions held prior to, or in contemplation of,
the formation of a strategic partnership), (ii) strategic partnerships wherein
I-trax and the applicable third party have entered into a binding
confidentiality commitment prohibiting the access and sharing contemplated by
this grant or (iii) access and sharing in contravention of the applicable third
party's request.
14.3 Third Party Pricing. I-trax shall use I-trax's commercially
reasonable efforts to allow UICI the ability to acquire goods and services at
preferential prices from I-trax's vendors.
10
15. Security Plan.
15.1 Modification and Delivery. I-trax shall modify the Stress
Correction Version of the Licensed Software, in accordance with the
Implementation Schedule, to fully implement the Security Plan (the "Security
Plan Version"). The date on which I-trax delivers the Security Plan Version to
UICI is the "Security Plan Delivery Date."
15.2 Testing. Commencing on the Security Plan Delivery Date, UICI
shall perform such tests as UICI, in UICI's sole discretion, chooses on the
Security Plan Version, for a period of 60 days (the "Security Plan Test Period")
for compliance with the Security Plan.
15.3 Correction Period. If the Security Plan Version fails to
comply with the Security Plan, then UICI shall notify I-trax in writing of such
failure. Upon receipt of such notice, I-trax shall use its best efforts to
complete, as quickly as possible, all necessary corrections, repairs, and
modifications to the Security Plan Version, but in no event shall such
corrective measures exceed 60 days following such notice or such other period as
the Parties may mutually agree upon in writing (such period, the "Security Plan
Correction Period").
15.4 Re-Testing. Upon completion of the corrections, repairs and
modifications to the Security Plan Version, I-trax shall deliver a revised
Security Plan Version to UICI for re-testing in accordance with Section 15.2.
The date on which I-trax delivers the revised Security Plan Version to UICI as
modified under Section 15.3 shall be deemed to be the Security Plan Delivery
Date and new Security Plan Test Period shall commence as of such Security Plan
Delivery Date.
15.5 Acceptance. UICI's acceptance of the Security Plan Version
shall occur on the earlier of (i) the date on which UICI delivers to I-trax
written notice that the Security Plan Version, original or as revised, has been
accepted; or (ii) upon the expiration of the applicable Security Plan Test
Period without receipt by I-trax of notice from UICI that the Security Plan
Version, original or as revised, fails to comply with the Security Plan.
16. Production Interface Engine.
16.1 Specifications. I-trax shall develop and deliver to UICI, in
accordance with the Implementation Schedule, the proposed technical design,
functional, operational, and performance specifications for the Production
Interface Engine (the "Proposed Engine Specifications"). UICI shall, within a
reasonable period of time thereafter, accept or reject the Proposed Engine
Specifications in writing. If UICI rejects the Proposed Engine Specifications,
I-trax shall modify the Proposed Engine Specifications as requested by UICI.
This process shall continue until UICI accepts the Proposed Engine
Specifications in writing. The Proposed Engine Specifications as accepted by
UICI in writing are the "Accepted Engine Specifications."
16.2 Development and Delivery. I-trax shall develop the
Production Interface Engine, in accordance with the Implementation Schedule, to
perform in accordance with, and/or to conform to, the Accepted Engine
Specifications. The date on which I-trax delivers the Production Interface
Engine to UICI is the "Engine Delivery Date."
16.3 Testing. Commencing on the Engine Delivery Date, UICI shall
perform such tests as UICI, in UICI's sole discretion, chooses on the Production
Interface Engine, for a period of 60 days (the "Engine Test Period") for
performance in accordance with, and conformance to, the Accepted Engine
Specifications.
16.4 Correction Period. If the Production Interface Engine fails
to perform in accordance with, and/or to conform to, the Accepted Engine
Specifications, then UICI shall notify I-trax in writing of such failure. Upon
receipt of such notice, I-trax shall use its best efforts to complete, as
quickly as possible, all necessary corrections, repairs and modifications to the
Production Interface Engine, but in no event shall such corrective measures
exceed 60 days following such notice or such other period as the Parties may
mutually agree upon in writing (such period, the "Engine Correction Period").
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16.5 Re-Testing. Upon completion of the corrections, repairs and
modifications to the Production Interface Engine, I-trax shall deliver a revised
Production Interface Engine to UICI for re-testing in accordance with Section
16.3. The date on which I-trax delivers the revised Production Interface Engine
to UICI as modified under Section 16.4 shall be deemed to be the Engine Delivery
Date and new Engine Test Period shall commence as of such Engine Delivery Date.
16.6 Acceptance. UICI's acceptance of the Production Interface
Engine shall occur on the earlier of (i) the date on which UICI delivers to
I-trax written notice that the Product Interface Engine, original or as revised,
has been accepted; or (ii) upon the expiration of the applicable Engine Test
Period without receipt by I-trax of notice from UICI that the Product Interface
Engine, original or as revised, fails to perform in accordance with, and/or to
conform to, the Accepted Engine Specifications.
16.7 Technology Consultant. I-trax shall make Technology
Consultant available for all necessary discussions with UICI and UICI's vendors
in connection with the development and implementation of the Production
Interface Engine (including, but not limited to, the development of the Proposed
Engine Specifications). I-trax shall be solely responsible for all expenses and
fees incurred or charged by Technology Consultant (and any other vendor engaged
by I-trax) in connection with the development and implementation of the
Production Interface Engine.
16.8 Exclusion. Notwithstanding any other provision of this
Agreement, the Production Interface Engine does not include, and I-trax shall
not be responsible for, any analysis, systems design, and modifications required
to UICI's internal systems such that those systems could deliver and receive
data to and from the Production Interface Engine in an agreed upon HIPAA
compliant format.
17. Maintenance. Commencing on the Effective Date and continuing until
termination by UICI upon written notice, I-trax shall provide Maintenance in
accordance with this Section 17.
17.1 Software Maintenance.
(a) I-trax shall provide and make available to the UICI
Group, 24 hours a day, seven days a week, (i) Second Tier Support and (ii)
electronic and written support and Documentation related to the Licensed
Software (whether such Documentation is available as of the Effective Date or at
any time thereafter), which includes, but is not limited to, user requirements,
design documentation, quality assurance testing, and operational guides.
(b) I-trax shall maintain a production environment that
mirrors UICI's production environment (including, but not limited to, the
Licensed Software), exclusive of modifications made by UICI to the Licensed
Software without I-trax's consent (the "Mirrored Production Environment").
(c) I-trax shall deliver to UICI any and all Error
Corrections, Updates, and Enhancements, in source code format, within 24 hours
following implementation of such Source Code in I-trax's production environment,
and thereafter, (i) implement such Source Code in the Mirrored Production
Environment and (ii) deliver to UICI a written explanation of such Source Code
(and any changes thereto) and written directions necessary to implement such
Source Code; provided, however, that nothing in this Section 17.1(c) shall limit
or otherwise reduce I-trax's obligations to correct Errors or deliver Error
Corrections or other software pursuant to Section 17.1(d).
(d) Upon the occurrence of an Error, UICI shall designate
such Error as being (i) a Level 1 Error, (ii) a Level 2 Error, (iii) a Level 3
Error, or (iv) a Level 4 Error. I-trax shall promptly modify the Licensed
Software to correct each Error in accordance with the following:
(i) I-trax shall respond to UICI by telephone
within two hours of UICI's report of a Level 1 Error and promptly assign the
appropriate personnel to commence efforts to correct the Error. If the Error is
not corrected within eight hours of UICI's reporting it, I-trax's support
manager shall telephone UICI and describe in detail the efforts underway. If the
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Error is not corrected within 24 hours of UICI's reporting it, the manager to
whom I-trax's support manager reports shall telephone UICI, give a status
report, and assign a member of the I-trax programming staff to give full time
attention to correction of the Error. If the Error is not corrected within two
business days of UICI's reporting it, at I-trax's sole expense, a member of
I-trax's programming staff shall travel to the UICI's site and remain on-site
until the Error is corrected. However, if a member of I-trax's programming staff
travels to UICI's site for purposes of correcting an Error under this Section
17.1(d)(i) and thereafter determines that the failure of the Licensed Software
was caused by anything other than the Licensed Software (e.g. hardware or
network issues), UICI shall pay I-trax (A) 100% of such member's actual
out-of-pocket travel expenses and (B) $250 per hour for each hour spent by such
member, including travel time, to resolve the failure.
(ii) I-trax shall respond to UICI by telephone
within eight hours of UICI's report of a Level 2 Error and promptly assign the
appropriate personnel to commence efforts to correct the Error. If the Error is
not corrected within 24 hours of UICI's reporting it, I-trax's support manager
shall telephone UICI and describe in detail the efforts underway. If the Error
is not corrected within 48 hours of UICI's reporting it, the manager to whom
I-trax's support manager reports shall telephone UICI, give a status report, and
assign a member of the I-trax programming staff to give full time attention to
correction of the Error. If the Error is not corrected within five business days
of UICI's reporting it, the Error shall be deemed a Level 1 Error.
(iii) I-trax shall respond to UICI by telephone or
e-mail within two business days of UICI's report of a Level 3 Error and promptly
assign the appropriate personnel to commence efforts to correct the Error. If
the Error is not corrected within five business days of UICI's reporting it,
I-trax's support manager shall telephone UICI and describe in detail the efforts
underway. If the Error is not corrected within seven business days of UICI's
reporting it, I-trax's support manager shall telephone UICI, give a status
report, and assign a member of the I-trax programming staff to address
correction of the Error. If the Error is not corrected within 15 business days
of UICI's reporting it, the Error shall be deemed a Level 2 Error.
(iv) I-trax shall respond to UICI by telephone or
e-mail within five business days of UICI's report of a Level 4 Error and
promptly assign the appropriate personnel to commence efforts to correct the
Error. If the Error is not corrected within ten business days of UICI's
reporting it, I-trax's support manager shall telephone UICI and describe in
detail the efforts underway. If the Error is not corrected within 15 business
days of UICI's reporting it, I-trax's support manager shall telephone UICI, give
a status report, and assign a member of the I-trax programming staff to address
correction of the Error. If the Error is not corrected within 20 business days
of UICI's reporting it, the Error shall be deemed a Level 3 Error.
(e) This Section 17.1 shall apply to (i) the Licensed
Software as initially delivered by I-trax to UICI and (ii) any and all
modifications made to the Licensed Software by, or at the direction or with the
approval of, I-trax. If UICI modifies the Licensed Software without I-trax's
consent (a "UICI Version"), I-trax shall have no obligation pursuant to Sections
17.1(a) and 17.1(d) with respect to such UICI Version.
17.2 Content Maintenance.
(a) I-trax shall maintain all Headers, Navigation Bars,
and Web Pages, which maintenance includes, but is not limited to, (i) up to 100
hours each year for implementing minor changes to the Headers, Navigation Bars,
and Web Pages and (ii) changing the tabs located in the "personal health record"
portion (or a portion with similar functionality) of the Web Pages.
(b) Upon UICI's direction, I-trax shall co-brand or
private label all Headers, Navigation Bars, Web Pages, and user interfaces
(e.g., use a name other than "MyFamilyMD" or "Health-e-Coordinator"), subject,
however, to contractual commitments in Third Party Licenses.
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18. Additional Services.
18.1 Software. I-trax shall develop, implement, and maintain
software, Headers, Navigation Bars, and Web Pages not otherwise contemplated by
this Agreement, as agreed to by I-trax and UICI.
18.2 Call Center. I-trax shall make available I-trax's disease
management call center staffed by I-trax health care personnel at UICI's
request.
19. Payments.
19.1 Out-of-Pocket Expenses. On the Effective Date, UICI shall
reimburse I-trax for all of I-trax's out-of-pocket expenses (i.e., I-trax's
actual travel and similar expenses and exclusive of salaries, overhead expenses,
and other costs of doing business) incurred while assisting UICI and UICI's
vendors in conducting the Pre-Closing Tests and Audits, subject to a "not to
exceed" ceiling equal to $10,000.00.
19.2 License and Development Fee. On the Effective Date, UICI
shall pay I-trax a one-time license and development fee equal to $2,500,000.00.
19.3 Headers Fee. UICI shall pay I-trax, within 30 days following
receipt of an invoice, an amount equal to $1,500.00 for each Additional Header
developed and implemented by I-trax at UICI's request.
19.4 Security Plan Fee. If the Security Plan Version is accepted
by UICI pursuant to Section 15.5, UICI shall thereafter immediately pay I-trax
an amount equal to $150,000.00; provided, however, that this amount shall be
reduced by an amount equal to $250.00 for each day (if any) following the
completion date for the Security Plan Version identified in the Implementation
Schedule. This fee is in addition to expenses incurred by third parties (other
than I-trax) engaged by UICI.
19.5 Stress Corrections and Production Interface Engine Fee. If
the Stress Correction Version is accepted by UICI pursuant to Section 4.5 and
the Production Interface Engine is accepted by UICI pursuant to Section 16.6,
UICI shall, immediately following the later of the two acceptances, pay I-trax
an amount equal to $250,000.00; provided, however, that this amount shall be
reduced by an amount equal to $250.00 for each day (if any) following the
completion date for the Stress Correction Software identified in the
Implementation Schedule and an amount equal to $250.00 for each day (if any)
following the completion date for the Production Interface Engine identified in
the Implementation Schedule. This fee is in addition to expenses incurred by
third parties (other than I-trax) engaged by UICI.
19.6 Maintenance. Commencing on the first anniversary of the
Effective Date and continuing on each anniversary thereafter until Maintenance
is terminated by UICI in accordance with Section 17, UICI shall pay I-trax an
amount equal to $100,000.00 for Maintenance; provided, however, that any partial
year shall be prorated by days.
19.7 Additional Services. Unless otherwise agreed to by I-trax
and UICI in writing, the Additional Services shall be invoiced monthly in
arrears on an hourly basis, subject to an hourly rate not to exceed $225.00.
Each such invoice is due within 30 days following UICI's receipt of such
invoice.
19.8 Most Favored Pricing. All amounts listed in Sections 19.3
through 19.7 are subject to the lesser of the stated amounts or the "most
favored" pricing made available to I-trax's other customers.
14
20. Non-Competition. Unless otherwise agreed to by UICI in writing, in
UICI's sole discretion, I-trax shall never, in any way, provide (directly or
indirectly) in the Student Market (i) the Licensed Software, (ii) services
related to the Licensed Software, (iii) software that competes with the Licensed
Software, or (iv) services related to software that competes with the Licensed
Software.
21. Ownership.
21.1 Licensed Software. Subject to the licenses granted by I-trax
pursuant to this Agreement, I-trax owns all right, title, and interest in and to
the Licensed Software.
21.2 Marks. Subject to the licenses granted by I-trax pursuant to
this Agreement, I-trax owns all right, title, and interest in and to the Marks.
21.3 Reservation of Rights. Except as provided herein, each Party
reserves all rights in its Intellectual Property Rights and nothing contained
herein shall be construed as granting the other Party any ownership interest in
its Intellectual Property Rights. Each Party shall include, maintain, reproduce,
and perpetuate all notices or markings on all copies of all tangible media
comprising each Party's Confidential Information in the manner in which such
notices or markings appear on such tangible media or in the manner in which
either Party may reasonably request.
21.4 Residual Knowledge. Nothing in this Agreement shall be
construed to restrict either Party from developing or distributing products or
performing services that do not infringe upon any Intellectual Property Rights
of the other Party, using intangible residual know-how or concepts (as
distinguished from the tangible implementation of such know-how and concepts)
retained in the mind of such Party's employees, provided that such Party or its
employees shall not directly reference, incorporate or otherwise use in such
products or services any Confidential Information or Intellectual Property
Rights (or any tangible embodiment thereof) of the other Party or otherwise
infringe in any manner upon that Party's Intellectual Property Rights; it being
understood that any use by either Party of any ideas, know-how, technical
information, processes, practices or systems that are in the public domain (not
through any wrongful action or wrongful failure to act of such Party), including
items generally known in the information technology and securities industries,
shall not constitute any such infringement.
21.5 Developed Materials.
(a) Upon the Developed Materials being fixed in a
tangible medium of expression, I-trax assigns, transfers, and conveys to UICI
all right, title, and interest in and to the Developed Materials, including, but
not limited to, all Intellectual Property Rights. If I-trax has any rights that
cannot be assigned to UICI, I-trax waives the enforcement of such rights, and if
I-trax has any rights that cannot be assigned or waived, I-trax grants to UICI
an assignable, exclusive, transferable, fully paid-up, irrevocable, perpetual,
royalty-free, worldwide, and unlimited license, with right to sublicense through
multiple tiers, to such rights.
(b) I-trax acknowledges and agrees that there are, and
may be, future rights that I-trax may otherwise become entitled to with respect
to the Developed Materials that do not yet exist, as well as new uses, media,
means, and forms of exploitation throughout the universe exploiting current or
future technology yet to be developed, and I-trax intends the assignment of
rights to UICI in Section 21.5(a) to include all such now known or unknown uses,
media, and forms of exploitation throughout the universe.
(c) The intent of Section 21.5(a) is to convey to UICI
all rights of an exclusive owner of the Developed Materials.
(d) I-trax shall do all acts and things, including, but
not limited to, the execution of all such documents, as UICI may reasonably deem
necessary, useful, or convenient to evidence or perfect the rights of UICI in
and to the Developed Materials and providing UICI with Further Assurances.
15
21.6 UICI Materials. UICI shall continue to own all materials
provided by UICI (the "UICI Materials") in connection with any (i) Header
development, (ii) Navigation Bar development, (iii) Web Page development, and
(iv) existing or new work product development efforts.
22. Representations and Warranties of I-trax.
22.1 As of the Effective Date. I-trax represents and warrants to
UICI the following as of the Effective Date:
(a) I-trax has good and marketable title to the Licensed
Software, including, but not limited to, all Intellectual Property Rights in and
to the Licensed Software.
(b) I-trax has all necessary rights to enter into this
Agreement without violating any other agreement or commitment of any sort.
(c) All Existing Agreements are set forth in the Existing
Agreements Schedule.
(d) Each Existing Agreement is assignable to UICI, and
I-trax has the right to assign each Existing Agreement to UICI.
(e) Except for the Existing Agreements, I-trax does not
have any outstanding agreements or understandings, written or oral, concerning
the Licensed Software in the Student Market.
(f) I-trax is the exclusive owner of all right, title,
and interest in and to the Licensed Software.
(g) The Licensed Software is free and clear of all liens
and encumbrances.
(h) All contributions to the development of the Licensed
Software, including, but not limited to, by means of software maintenance, were
made by I-trax employees in the United States acting within the scope of their
employment with I-trax (collectively, the "I-trax Employees").
(i) I-trax has paid all of the I-trax Employees in full
for the I-trax Employees' contribution to the Licensed Software.
(j) The Licensed Software contains no software,
information, and/or materials from entities other than I-trax and HealthGate.
(k) Schedule IV contains a list of all errors of which
I-trax has knowledge in the current version of the Licensed Software and a brief
description of all enhancements I-trax has contemplated for the current version
of the Licensed Software.
(l) Schedule V contains a list of all patents,
copyrights, trademarks, and other registrations and related documents that
relate to the Licensed Software.
(m) The user documentation for the Licensed Software does
not contain any errors or misrepresentations concerning the Licensed Software.
(n) There are no claims that the Licensed Software or
that I-trax violates or has violated the rights of anyone, including, but not
limited to, patent, copyright, trade secret, trademark, and other proprietary
rights.
16
(o) I-trax (i) has not ceased functioning as an ongoing
concern, (ii) is conducting I-trax's operations in the normal course of
business, (iii) is not insolvent (as a result of the compensation to be received
pursuant to Section 19.2) or bankrupt, and (iv) has not made an assignment for
the benefit of creditors.
(p) I-trax is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Delaware and
possesses the corporate power to enter into this Agreement and to comply with
the terms and conditions of this Agreement.
22.2 Surviving after the Effective Date. I-trax represents and
warrants to UICI the following as of the Effective Date and thereafter, with the
intention that such representations and warranties survive the Effective Date:
(a) The use, possession, copying, display, and
performance of the Licensed Software will not infringe or induce infringement or
contribute to an infringement or constitute a misappropriation of any trademark,
patent, copyright, trade secret, moral right, proprietary right, or similar
property right.
(b) The Licensed Software is designed to facilitate
compliance by its users with the applicable portions of HIPAA.
(c) The Licensed Software does not contain any "back
door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus,"
"software lock," or "hardware lock" (as such terms are generally known in the
computer industry) or other instructions to intentionally disable or erase the
Licensed Software and/or data (collectively, "Disabling Instructions").
(d) I-trax will not introduce any Disabling Instructions
in any Licensed Software delivered to UICI.
(e) The load capacity of the Licensed Software shall meet
or exceed the load capacity used in the Pre-Closing Tests and Audits.
(f) This Agreement is a legal, valid, and binding
obligation of I-trax.
(g) The execution and delivery of this Agreement by
I-trax and the performance of, and compliance by, I-trax with the terms and
conditions of this Agreement will not result in the imposition of any lien or
other encumbrance on the Licensed Software and will not conflict with or result
in a breach by I-trax of any of the terms, conditions, or provisions of any
agreement, order, injunction, judgment, decree, statute, rule or regulation
applicable to I-trax, any of the Licensed Software, or any note, indenture, or
other agreement, contract, license, or instrument by which any of the Licensed
Software may be bound or affected.
(h) No consent or approval by any person or public
authority is required to authorize, or is required in connection with, the
execution, delivery, or performance of this Agreement by I-trax.
(i) The execution, delivery, and performance of this
Agreement and the transactions contemplated by this Agreement by I-trax have
been duly and validly authorized and approved by all requisite corporate action
on the part of I-trax.
23. Representations and Warranties of UICI. UICI represents and
warrants to I-trax that, as of the Effective Date, (i) UICI is a corporation
duly organized, validly existing, and in good standing under the laws of the
state of Delaware and possesses the corporate power to enter into this Agreement
and to comply with the terms and conditions of this Agreement, (ii) this
Agreement is a legal, valid, and binding obligation of UICI, and (iii) the
execution, delivery, and performance of this Agreement and the transactions
contemplated by this Agreement by UICI have been duly and validly authorized and
approved by all requisite corporate action on the part of UICI.
17
24. Indemnification.
24.1 By I-trax. I-trax shall reimburse, defend, indemnify, and
hold harmless the UICI Indemnified Group for, from, and against any and all
Losses resulting from, relating to, or arising out of, (i) the actual or alleged
infringement by the Licensed Software and the Developed Materials, of any
Intellectual Property Right and (ii) I-trax's use or disclosure of the UICI Data
(collectively a "Claim Against UICI"); provided, however, I-trax is promptly
notified in writing of such Claim Against UICI; I-trax is promptly given in
writing the complete control of the defense and settlement of such Claim Against
UICI; and that the UICI Indemnified Group provides reasonable cooperation in the
defense of such Claim Against UICI.
24.2 By UICI. UICI shall reimburse, defend, indemnify, and hold
harmless the I-trax Indemnified Group for, from, and against any and all Losses
resulting from, relating to, or arising out of, the actual or alleged
infringement by the UICI Materials of any Intellectual Property Right;
(collectively a "Claim Against I-trax"); provided that UICI is promptly notified
in writing of such Claim Against I-trax; UICI is promptly given in writing the
complete control of the defense and settlement of such Claim Against I-trax; and
that the I-trax Indemnified Group provides reasonable cooperation in the defense
of such Claim Against X-xxxx.
00. Limitation of Liability.
25.1 I-TRAX. EXCEPT FOR SECTION 24.1, (i) I-TRAX SHALL HAVE NO
LIABILITY UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF I-TRAX HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND (ii) I-TRAX'S ENTIRE LIABILITY ARISING OUT OF,
OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED IN
CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR OTHERWISE, SHALL
NOT EXCEED THE AGGREGATE OF ALL MONIES PAID BY UICI TO I-TRAX PURSUANT TO THIS
AGREEMENT.
25.2 UICI. UICI SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR
INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES,
EVEN IF UICI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND UICI'S
ENTIRE LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER
SUCH LIABILITY IS BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT,
WARRANTY, OR OTHERWISE, SHALL NOT EXCEED $500,000.
25.3 I-TRAX IS NOT RESPONSIBLE FOR PATIENT CARE DECISIONS.
26. UICI Data.
26.1 No Rights. I-trax shall have no rights in or to the UICI
data.
26.2 Restricted Access. I-trax will not be permitted access to
the UICI data (except in the provision of Software Maintenance and Content
Maintenance).
26.3 HIPAA. I-trax will execute a HIPAA business associate
agreement upon UICI's request and in a form requested by UICI.
27. Confidential Information.
27.1 Use and Disclosure.
(a) Without the prior, express, and written consent of a
Party disclosing Confidential Information (the "Disclosing Party"), the Party
receiving such Confidential Information (the "Receiving Party") shall never
disclose or use any Confidential Information of the Disclosing Party in any
18
manner, except as necessary to perform the Receiving Party's obligations under
this Agreement or to exercise the licenses granted (if any) by the Disclosing
Party to the Receiving Party in this Agreement.
(b) The Receiving Party shall treat all Confidential
Information of the Disclosing Party with the same degree of care as the
Receiving Party accords to the Receiving Party's own Confidential Information,
but in no case less than reasonable care.
(c) The Receiving Party may disclose Confidential
Information only to those employees and contractors of the Receiving Party who
need to know such information, and the Receiving Party certifies that such
employees and contractors, including, without limitation, any third party
receiving Confidential Information pursuant to Sections 5.3, 5.4 and 5.5, have
previously agreed, either as a condition of employment or in order to obtain the
Confidential Information, to be bound by terms and conditions substantially
similar to those terms and conditions applicable to the Receiving Party under
this Section 27. The Receiving Party shall promptly advise the Disclosing Party
if the Receiving Party learns of any unauthorized use or disclosure of any
Confidential Information of the Disclosing Party.
27.2 Exclusions. Except for information that is required by law
to remain confidential, including, but not limited to, "personally identifiable
information" as defined in HIPAA, Confidential Information of the Disclosing
Party does not include information or materials that are (i) or become publicly
available without violation of this Agreement or any other obligation of
confidentiality, (ii) already known by the Receiving Party, (iii) independently
developed by the Receiving Party without any use of the Disclosing Party's
Confidential Information, and/or (iv) subsequently disclosed to the Receiving
Party by a third party without restriction and the disclosure by the third party
does not violate any obligation of confidentiality.
27.3 Ownership. The Disclosing Party shall continue to own all of
the Disclosing Party's Confidential Information disclosed pursuant to this
Agreement.
27.4 Return. The Receiving Party shall promptly return to the
Disclosing Party, at the Disclosing Party's sole cost and expense, all
Confidential Information of the Disclosing Party upon a written request by the
Disclosing Party.
27.5 Equitable Remedies. A breach of this Section 27 by the
Receiving Party may cause irreparable harm and injury to the Disclosing Party
for which money damages are inadequate. In the event of such breach, the
Disclosing Party shall be entitled to seek injunctive relief, in addition to its
legal and other equitable remedies.
28. Existing Agreements. I-trax hereby sells, assigns, transfers, and
conveys the Existing Agreements to UICI and all of I-trax's licenses, rights,
duties, and obligations (but not I-trax's liabilities) under the Existing
Agreements.
29. Solicitation. UICI has the right, without recourse to I-trax, to
offer employment to, and to employ, XxXxxxxxx upon a Solicitation Event
30. Miscellaneous.
30.1 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the state of Texas,
without regard to Texas' conflicts of laws principles. The jurisdiction for any
dispute arising out of, or relating to, this Agreement shall lie exclusively
with courts located in Dallas County, Texas.
30.2 Severability. If for any reason a court of competent
jurisdiction finds any provision of the Agreement to be unenforceable, that
provision will be enforced to the maximum extent possible to effectuate the
intent of the Parties, and the remainder of the Agreement will continue in full
force and effect.
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30.3 Relationship. The Parties are independent contractors.
Neither Party has any express or implied right or authority to assume or create
any obligations on behalf of the other Party or to bind the other Party to any
contract, agreement, or undertaking with any third party. Nothing in this
Agreement shall be construed to create a partnership, joint venture, employment
or agency relationship.
30.4 Entire Agreement. The terms and conditions of this
Agreement, including, but not limited to, its exhibits and schedules, contain
the entire agreement between the Parties and merge and supersede all prior and
contemporaneous agreements, understandings, negotiations, and discussions
concerning the subject matter of this Agreement. Neither Party shall be bound by
any conditions, definitions, warranties, understandings, or representations with
respect to the subject matter of this Agreement, other than as expressly
provided in this Agreement. No oral explanation or oral information by either
Party shall alter the meaning or interpretation of this Agreement.
30.5 Amendments. No amendments or modifications to this Agreement
shall be effective unless in writing signed by an authorized representative of
each Party. These terms and conditions will prevail notwithstanding any
different, conflicting, or additional terms and conditions that may appear in
any purchase order, acknowledgement, or other writing not expressly incorporated
into this Agreement.
30.6 Notices.
(a) All notices required or permitted to be given under
this Agreement shall be in writing, shall make reference to this Agreement, and
shall be delivered by hand or dispatched by prepaid air courier or by registered
or certified airmail, postage prepaid, addressed as follows:
(i) If to I-trax, addressed to:
I-trax, Inc.
One Xxxxx Xxxxxx, Xxxxx 0000
000 X. 00xx Xxxxxx
Attention: Xxxxx X. Xxxxxx
(ii) If to UICI, addressed to:
UICI, Inc.
0000 XxXxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
(b) Such notices shall be deemed served when received by
the addressee or, if delivery is not accomplished by reason of some fault of the
addressee, when tendered for delivery.
(c) Each Party may change its address at any time by
written notice to the other Party.
30.7 Assignment. Neither Party may directly or indirectly sell,
assign, transfer, delegate, convey, pledge, encumber, or otherwise dispose of
this Agreement, or any of the licenses, rights, duties, or obligations under
this Agreement, without the prior, express, and written consent of the other
Party; provided, however, that either Party may assign this Agreement to a
purchaser of all or substantially all of such Party's assets. Any attempted
assignment in violation of this Section 30.7 shall be null and void. The Parties
acknowledge and agree that the issuance or transfer of a Party's capital stock
is not subject to the terms and conditions of this Section 30.7.
30.8 Waiver. The failure of either Party to enforce any term of
this Agreement shall not be deemed or considered a waiver of future enforcement
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of that or any other term in this Agreement. No term of this Agreement may be
considered waived, and no breach excused, by either Party unless made in writing
by the waiving or excusing Party. No consent, waiver, or excuse by either Party,
express or implied, constitutes a subsequent consent, waiver, or excuse.
30.9 Third Party Beneficiaries. Except with respect to Section
24, there are no third party beneficiaries to this Agreement.
30.10 Interpretation. The Agreement is the result of UICI's and
I-trax's negotiations, and no provision of this Agreement shall be construed for
or against any Party because of the authorship of that provision. In the
interpretation of the Agreement, except where the context otherwise requires:
"including" or "include" does not denote or apply any limitation; "or" has the
inclusive meaning "and/or;" "and/or" means "or" and is used for emphasis only;
"$" refers to United States dollars; the singular includes the plural, and vice
versa, and each gender includes each of the others; captions or headings are
only for reference and are not to be considered in interpreting the Agreement;
"Section" refer to a section of the Agreement, unless otherwise stated in this
Agreement.
(Signatures are on next page)
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IN WITNESS WHEREOF, the Parties have executed this Agreement to be
effective as of the Effective Date.
I-TRAX:
I-TRAX, INC., a Delaware corporation
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Office of the President
-------------------------------
I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Office of the President
-------------------------------
UICI:
UICI, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Executive Vice President
-------------------------------
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