EXHIBIT 10.6
AGREEMENT
This Alliance Agreement ("Agreement") is effective as of this sixth (6th) day of
October, 1998 (the "Effective Date"), between WASHINGTON HOSPITAL SERVICES, INC.
("WHS") with its principal offices at 000 Xxxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000-0000 and POINTSHARE CORPORATION ("Pointshare"), with
its principal offices at 0000 000xx Xxxxxx XX, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx
00000.
1. RECITALS
a) Pointshare provides on-line services for the healthcare industry.
b) WHS is engaged in offering innovative and cost-saving programs to hospitals
and other health service providers (hereinafter referred to as
"Providers").
c) WHS is a wholly owned subsidiary of the Washington State Hospital
Association ("WSHA"). WHS contracts with vendors in order to make their
services and products available to Providers.
d) The parties desire to set forth the terms and conditions under which WHS
and Pointshare will cooperate to develop and market the Member Services (as
defined below) in Washington State.
In consideration of the foregoing and the agreements contained herein, the
parties agree as follows:
2. DEFINITIONS
a) "XXXX.xxx Statewide Intranet Services" shall mean the services provided by
Pointshare to WSHA as set forth in Attachment A.
b) "XXXX.xxx Statewide Intranet" shall mean the XXXX.xxx web site and secure
member connections provided by Pointshare.
c) "WSHA Authorized User" WSHA or WHS employees or contractors who are
authorized by WSI-IA to access and use the XXXX.xxx Statewide Intranet
Services.
d) "Member" shall mean WA State hospitals that are members of the Washington
State Hospital Association, and other "WHS Non-hospital Web Clients" as set
forth on Attachment C; but shall exclude "Existing Pointshare Hospital
Clients and Active Sales Prospects" as also set forth on Attachment C.
e) "Medical Intranet" shall mean Pointshare's community medical intranets
across Washington State through which Pointshare delivers its services.
f) "Online Services" shall mean services that may be accessed using a standard
web browser for the purpose of viewing and retrieving informational content
or performing transactions; but shall not mean services accessed using a
web browser that require data integration to customers' information systems
(e.g., interfacing into a hospital information system). Examples of "Online
Services" include eligibility verification, referral processing, organized
access to Internet informational content, purchasing sites, and online
provider directory services. "Online Services" include the services
described in the Online Service Package described in Attachment B (Package
2)
g) "Member Services" shall mean Pointshare services provided to Members as set
forth in Attachment B.
h) "Member Set-up Receipts" shall mean receipts from initial, set-up services
requested and paid for by WSHA Members, such services being described in
the Set-up columns of the sample Member packages set forth in Attachment B.
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i) "Subscriber" shall mean a Provider that enters into an agreement with
Pointshare to receive Member Services.
j) "Member User" shall mean an individual Member Subscriber or individual
employed by a Member Subscriber who is provided with an account and is
authorized to access and use the Member Services.
k) "Proprietary Rights" shall mean all rights in the XXXX.xxx Services and
Member Services, and Pointshare's Confidential Information, including, but
not limited to, patents, copyrights, authors' rights, trademarks, trade
names, know-how and trade secrets, irrespective of whether such rights
arise under U.S. or international intellectual property, unfair competition
or trade secret laws.
l) "Confidential Information" of a party shall mean any information disclosed
by that party to the other party pursuant to this Agreement which is in
written, graphic, machine readable or other tangible form and is marked
"Confidential," "Proprietary" or in some other manner to indicate its
confidential nature. Confidential Information may also include oral
information disclosed by one party to the other pursuant to this Agreement,
provided that such information is designated as confidential at the time of
disclosure and is reduced to writing by the disclosing party within a
reasonable time (not to exceed thirty (30) days) after its oral disclosure,
and such writing is marked in a manner to indicate its confidential nature
and delivered to the receiving party.
3. POINTSHARE'S RIGHTS AND RESPONSIBILITIES
a) XXXX.xxx Statewide Intranet Services. Pointshare will provide the XXXX.xxx
Statewide Intranet Services to WSHA and WSHA Authorized Users in a timely
and professional manner.
b) Member Services. Pointshare will provide the Member Services to Subscribers
in a timely and professional manner.
c) Program Manager. Pointshare will assign a full-time program manager to
oversee the sales and marketing efforts of the strategic alliance in
addition to coordinating Pointshare technical and project management
resources required to deliver the XXXX.xxx Statewide Intranet Services and
the Member Services.
d) Quality Program. Pointshare will maintain a quality program dedicated to
the continuous improvement of Pointshare online services to WSHA and its
Members.
e) WSHA Recognition. Pointshare will publicly recognize the Washington State
Hospital Association as a value-added sponsor of Pointshare services as
well as a valued Pointshare client. Additionally, Pointshare will
prominently display WSHA's logo and name on supplemental marketing
literature directed to WSHA members.
f) Member Contracts. Pointshare will contract directly with WSHA Members for
the Member Services.
g) Network Access. Pointshare will use reasonable commercial efforts to
provide the XXXX.xxx Statewide Intranet Services 24 hours per day, 7 days
per week.
h) Help Desk Support. Pointshare will provide Help Desk support to WSHA
Authorized Users and Member Users during normal business hours (Monday --
Friday, 8AM -- 5PM PT). Additionally, Pointshare will provide on call
technical support for the purpose of responding to mission critical,
downtime issues outside of normal business hours.
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i) Network Security. Pointshare will use reasonable commercial efforts to
maintain the security of the XXXX.xxx Statewide intranet Services.
4. WHS RIGHTS AND RESPONSIBILITIES
a) Marketing and Promotion. With the exception of Online Services, WHS will
actively market and promote Pointshare and Pointshare Member Services to
WSHA Members including announcements in WSIIA newsletters, direct mail
correspondences, Web sites, e-mail, annual meetings, and educational
seminars.
b) Endorsement of Online Services. WHS will provide an endorsement by WSHA of
Pointshare's Online Services and will permit Pointshare to publish such
endorsement freely. Further, WHS will publish the WHSA endorsement of
Pointshare's Online Services to WSHA Members on XXXX.xxx and in other
publications and marketing materials in which other WSHA and WHS endorsed
service offerings and vendors are presented.
c) WHS Marketing Resource Commitment. WHS will assign a partial (no less than
half time) or full-time program manager to generate and qualify Member
Service sales leads, oversee the promotional and marketing efforts of WSHA,
and to work with Pointshare's marketing department on future collateral
materials, mailings, and events.
d) WHS Technical Resource Commitment. WHS will provide access to WHS or WSHA
technical resources as required to implement and maintain the services
proposed.
e) Equipment Access. WHS will provide Pointshare with access to any equipment
on WHS's premises twenty-four (24) hours a day, seven days a week that is
required by Pointshare to fulfill Pointshare's obligations under this
Agreement. In the event that service interruptions arise solely due to
WHS's unauthorized modification of any of the XXXX.xxx Statewide Intranet
equipment or services, Pointshare will charge WHS for time and materials
required to correct the service interruptions.
f) XXXX.xxx Virtual Community Content. WHS will provide content (text,
graphics, and internet links) for their Virtual Communities as described in
Attachment A.
g) Circuit Purchase and Assignment. WHS will purchase a frame relay circuit
from US West and assign agency to Pointshare to direct its configuration.
This is required to maintain network security.
h) Member Circuits. With respect to circuits between Member facilities and
XXXX.xxx Statewide Intranet servers, WHS may negotiate volume discounts
with the local telecommunication vendors on behalf of members who
contractually agree to assign circuit agency to WHS's agent of choice, with
Pointshare designated as the agent of choice during the term of this
Agreement. Members who refuse WHS circuit ownership or agency assignment
will not be precluded from participating in the XXXX.xxx Statewide Intranet
Services.
i) Exclusivity. Except with respect to Online Services, during the term of
this Agreement WHS agrees that neither WHS nor WHSA will enter into any
agreement or arrangement with any third party concerning the offering,
marketing or promoting of services or products that are competitive with
the Member Services.
j) Promotion of Online Services. During the term of this Agreement, WHS agrees
that neither WHS nor WHSA will enter into any agreement or arrangement with
any third party concerning the offering of Online Services to the extent
such agreement or arrangement includes any terms (including any terms
affecting how WHS or WHSA markets, promotes or offers such third party
Online Services) that are more favorable than the terms on which WHS
endorses Pointshare's Online Services.
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k) Future Offerings. Both parties agree to notify each other and enter into
discussions in good faith concerning mutual incentive arrangements on
future Member Service offerings and potential incentive programs for WHS's
establishment of similar alliance agreements with Allied Healthcare
Association Services or other state hospital associations.
5. PAYMENTS, MARKETING COMMISSIONS, AND PRICING.
a) XXXX.xxx State Intranet Service Payments. WHS will pay the fees for the
XXXX.xxx State Intranet Services set forth on Attachment A within thirty
(30) days of receipt of an invoice. Fees identified as "Set-up" fees in
Attachment A will be invoiced 50% on the Effective Date and 50% after ten
days of successful live operation following the installation of the
XXXX.xxx Statewide Intranet Services. All other fees will be invoiced on a
monthly basis. Any amounts that remain unpaid for thirty (30) days after
the date of an invoice will be subject to late penalty fees equal to one
and one-half percent (11/2%) per month from the due date until such amount
is paid.
b) WHS Marketing Commissions. During the term of this Agreement, Pointshare
will pay a marketing commission to WHS on a quarterly basis, equal to
[* * *] of Member Set-up Receipts. The WHS marketing commission will be
paid in consideration of WHS's marketing obligations under this Agreement.
c) Marketing Commissions Disbursement. Pointshare shall remit to WHS all
marketing commissions accrued from the previous calendar quarter along with
a report detailing the Member Set-up Receipts for such quarter within 30
days following the end of the previous calendar quarter.
d) WHS Price Changes. During the first year of this Agreement, the XXXX.xxx
Statewide Intranet Services fees described in Attachment A will remain in
effect unless otherwise mutually agreed upon in writing by both parties.
Following the first anniversary of the Effective Date of this Agreement,
Pointshare will have the right, upon ninety (90) days prior written notice,
to increase or decrease the XXXX.xxx Statewide Intranet Services fees.
Increases, if any, to XXXX.xxx Statewide Intranet Services fees shall not
exceed [* * *] per year on a cumulative basis unless unforeseen market
price increases in excess of [* * *] occur in Internet access fees or frame
relay circuit costs.
e) Member Services Price Changes. After the initial term of a Member Contract
(typically one year), Pointshare will have the right, upon ninety (90) days
prior written notice, to increase or decrease the fees and change the other
terms and conditions of the Member Contracts.
f) Member Service Pricing Publishing. With the exception of pricing for Member
access to the XXXX.xxx Statewide Intranet Services, both parties agree not
to publish or disclose to any third party the sample pricing set forth in
Attachment B. Both parties understand and agree that the pricing for the
Online Service Package, Hospital Intranet Package, Hospital Extranet
Package, and Hospital Internet Access as described in Attachment B may
increase or decrease based on market conditions.
6. TERM AND TERMINATION.
a) Agreement Term. The term of this Agreement will commence on the Effective
Date and continue for a period of five (5) years (the "Initial Term") and
thereafter shall automatically renew annually unless terminated by either
party upon ninety (90) days written notice to the other party prior to and
effective on the expiration of the current term.
b) Termination. Either party may terminate this Agreement prior to expiration
of the term: (1) if either party fails to perform any of its material
obligations under this Agreement and such failure remains uncured for
thirty (30) days (or in the case of failure to make a required payment, ten
(10) days) after receipt of written
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notice of default from the other party; or (2) if either party ceases to
conduct business, becomes or is declared insolvent or bankrupt, files a
petition in bankruptcy, is the subject of any proceeding relating to its
bankruptcy, liquidation or insolvency which is not dismissed within thirty
(30) days, appoints a receiver or liquidator of any of its properties or
assets or makes an assignment for the benefit of its creditors, or (3) if
at any time after a period of two years, either party is unsatisfied with
sales results of this relationship and cannot in good faith resolve the
unsatisfactory sales results.
c) XXXX.xxx Statewide Intranet Services Termination. WHS may terminate the
portion of this Agreement relating to the XXXX.xxx Statewide Intranet
Services if at any time after a period of two years WHS identifies a
service provider who can provide XXXX.xxx Statewide Intranet Services which
are either more suited to WSHA's needs as determined solely by WSHA or are
less expensive than the XXXX.xxx Statewide Intranet Services under this
Agreement, or both, and Pointshare declines to either revise its services
or lower its prices, or both, to meet the competing services..
d) Effect of Termination. If this Agreement is terminated under Section
6.b)(3), then it shall be terminated only as to Sections 4.a), 4.b), 4.c),
4.1), 4.j), 4.k), 5.b), 5.c), 5.e) and 5.0, and all other provisions of the
Agreement shall remain in effect. If this Agreement is terminated under
Section 6.c), then it shall be terminated only as to Sections 3.a), 3.g),
3.h), 3.1), 4.d), 4.e), 4.0, 4.g), 4.h), 5.a), 5.d), 8.a), 8.b), 8.c),
9.a), 9.b), and 10), and all other provisions of the Agreement shall remain
in effect. In all other circumstances, upon termination of this Agreement,
all of Pointshare's service obligations (including XXXX.xxx Statewide
Intranet Services) and WHS's right to market Pointshare services (including
any further right to receive marketing commissions) shall terminate. Except
as otherwise provided in this Agreement, within thirty (30) days after
termination, each party will pay all fees and other charges due to the
other party under this Agreement and will destroy or return to the other
party all full or partial copies of the other party's software products,
hardware products and associated documentation (including materials
relating to the Member Services) and Confidential Information in its
possession or control.
e) Limitation of Liability. In the event of termination by either party in
accordance with any of the provisions of this Agreement, neither party
shall be liable to the other, because of such termination, for
compensation, reimbursement or damages on account of the loss of
prospective profits or anticipated sales or on account of expenditures,
inventory, investments, leases or commitments in connection with the
business or goodwill of either party. Termination shall not, however,
relieve either party of any obligations incurred prior to the termination,
including, without limitation, the obligation of either party to pay to the
other party the amounts owed as set forth in Section 5 arising prior to
such termination.
f) Survival of Certain Terms. The provisions of Sections 2, 6, 7, 11, 12, 13
and 14 of this Agreement, and all payment obligations accrued during the
term of this Agreement, shall survive the expiration or termination of this
Agreement for any reason. All other rights and obligations of the parties
shall cease upon termination of this Agreement.
7. OWNERSHIP OF INTELLECTUAL PROPERTY AND EQUIPMENT
a) Ownership of Works. Except as stated below, the patents, copyrights, trade
secrets and other intellectual property rights (the "IP Rights") in any and
all tangible or intangible works and materials developed by Pointshare in
connection with the XXXX.xxx Statewide Intranet Services and Member
Services including but not limited to systems, solutions, processes,
formulae, designs, inventions, algorithms, computer source and/or object
code (the "Works") will be owned by and the property of Pointshare
("Pointshare Intellectual Property"). The IP Rights in any and all Works
provided by WHS in connection with the XXXX.xxx Statewide Intranet Services
will be owned by and the property of WHS ("WHS Intellectual Property").
With respect to any Web development services provided by Pointshare to WHS
under this Agreement, WHS will own the IP Rights in any graphics, text,
images, music and other material of the Web Site which
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is visible to WWW browsers and any software, other than Developer Tools (as
defined below), developed to implement the Web Site. Pointshare will own
the IP Rights in any software tools or design templates of general
application, which are used to develop the Web Site (the "Developer
Tools").
b) Pointshare Software and Third Party Software. Title, ownership and
intellectual property rights in and to the software, including third party
software, all associated documentation and any enhancements and updates to
such software, provided by Pointshare in connection with the XXXX.xxx
Statewide Intranet Services (the "Pointshare Software") will remain in
Pointshare, its suppliers, and/or such other third party.
8. LICENSES
a) License to End Users. The WSHA Authorized Users will be granted a
revocable, non-exclusive and non-transferable license, without right to
sublicense, to use Pointshare Software and any part of Pointshare
Intellectual Property that Pointshare installs in the Medical Intranet,
solely in connection with WI-IS's use of the XXXX.xxx Statewide Intranet
during the term of the Agreement.
b) WHS's Obligations. WHS agrees not to (a) sell, assign, transfer, or
sublicense the Pointshare Software; (b) copy the Pointshare Software except
for backup or archival purposes; or (c) cause or permit modification,
disassembly, decompilation, or reverse engineering of the Pointshare
Software. These restrictions apply to partial or complete copies of the
Pointshare Software as well as the originals. WHS agrees to ensure that all
copies of the Pointshare Software made by WHS bear all proprietary rights
notices appearing on the original copy.
c) Compilation Copyright. Pointshare retains a copyright on the Medical
Intranet as a collective work in accordance with the United States
Copyright laws.
9. MEDICAL INTRANET
With respect to WSHA Authorized Users, WHS agrees to implement, maintain and
enforce ongoing computing and security policies and procedures that include at
least the following practices:
a) Minimum Security Requirements.
i) Individual Authentication of WSHA Authorized Users. Every individual
in an organization must have a unique identifier (or log-on ID) for
use in logging onto the organization's information systems. Password
discipline must be exercised, requiring users to change passwords on a
regular basis and to select passwords that cannot easily be guessed.
Procedures should be established to (1) revoke the identifiers of
employees who leave the organization; and (2) ensure that only
legitimate users are granted access to the organization's information
system. WSHA Authorized Users will not be authorized to provide their
login and or password to anyone except WSHA's chief information
officer (CIO).
ii) Physical Security. WHS will take steps to limit unauthorized physical
access to its PCs, Local Area Networks ("LANs") and Wide Area
Networks. WHS will not have direct access to any workstations or WHS's
LANs by the Internet without a firewall system approved by Pointshare.
WHS will not allow direct access to its PCs or LANs by outside
organizations via direct dial-up unless appropriate security (approved
by Pointshare) is in place.
iii) Education and Training Programs. WHS will establish education and
training programs to ensure that all WSHA Authorized Users receive
some minimum level of training in relevant security
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practices and knowledge regarding existing confidentiality policies.
All WSHA Authorized Users should complete such training before being
granted access to any information systems.
b) Usage and Compliance with Laws. WHS agrees that Intranet and Internet
access is not to be used for any unlawful purpose. WHS agrees to prohibit
WSHA Authorized Users from transmitting any material in a manner that
violates any U.S. or state regulation. This prohibition applies to, but is
not limited to, copyrighted material, material legally judged to be
threatening or obscene, material protected by trade secret laws, and
confidential health information.
10. EQUIPMENT RISKS.
WHS agrees to be responsible for any equipment and services purchased from
sources other than Pointshare. In the event that the additional equipment and
services are faulty and cause Pointshare to suffer delays, incur expenses or
provide replacement equipment, Pointshare will be entitled to reasonable fees
for replacement and/or rental equipment and services not described in Attachment
A.
11. NONDISCLOSURE.
Neither party shall, without first obtaining the written consent of the other
party, disclose the terms and conditions of this Agreement, except as may be
required to implement and enforce the terms of this Agreement, or as may be
required by legal procedures or by law. Neither party will disclose (the
"Disclosing Party") to any third party, or use for any purposes other than those
set forth in this Agreement, for a period of five (5) years beyond the term of
this Agreement, any technical information and any customer lists, business or
marketing plans, or non-public information provided to the other party (the
"Receiving Party") and identified as confidential or proprietary by the
Disclosing Party ("Confidential Information"). No other information exchanged
between the parties will be deemed confidential unless the parties otherwise
agree in writing. The foregoing restrictions will not apply to information that:
(i) is known to the Receiving Party at the time it receives Confidential
Information; (ii) has become publicly known through no wrongful act of the
Receiving Party; (iii) has been rightfully received by the Receiving Party from
a third party authorized to make such communication without restriction; (iv)
has been approved for release by written authorization of the Disclosing Party;
or (v) is required by law to be disclosed; provided, however, that the Receiving
Party takes all reasonable actions to maintain the confidential nature of all
Confidential Information.
12. WARRANTIES, INDEMNIFICATION, LIMITATION OF LIABILITY.
a) WARRANTIES. POINTSHARE MAKES NO REPRESENTATIONS OR WARRANTIES OTHER THAN
THOSE EXPRESSLY CONTAINED IN THIS AGREEMENT. POINTSHARE EXPRESSLY DISCLAIMS
ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
POINTSHARE IS NOT THE CREATOR OF THIRD PARTY SOFTWARE AND DOES NOT GIVE ANY
WARRANTY, EXPRESS OR IMPLIED. WHS RELEASES POINTSHARE FROM ANY AND ALL
RESPONSIBILITY FOR ANY ERRORS, DAMAGES, OR FAILURE OF THIRD PARTY SOFTWARE
OR CAUSED BY THIRD PARTIES. NEITHER POINTSHARE NOR ANY OF ITS INFORMATION
PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICES WILL
BE UNINTERRUPTED OR ERROR FREE. POINTSHARE SHALL NOT BE LIABLE FOR ANY
DELAY, FAILURE IN PERFORMANCE OR INTERRUPTION OF SERVICES RESULTING
DIRECTLY OR INDIRECTLY FROM ANY CAUSE BEYOND ITS REASONABLE CONTROL.
b) Indemnification. WHS agrees to indemnify, defend and hold Pointshare and
its suppliers harmless from and against any and all liability, claims,
suits, demands, losses, and expenses (including reasonable attorneys fees,
legal expenses, and interest) arising from the performance or non-
performance of any obligations under this Agreement, breaches of Medical
Intranet security, or authorized or unauthorized use of the
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Medical Intranet by WHS or any WHSA Authorized User. Pointshare agrees to
indemnify, defend and hold WHS and WSHA harmless from and against any and
all liability, claims, suits, demands, losses, and expenses (including
reasonable attorneys fees, legal expenses, and interest) arising from the
performance or non-performance by Pointshare of any of Pointshare's
obligations under this Agreement.
c) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, RELIANCE OR COVER DAMAGES,
INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE INCURRED BY EITHER PARTY
OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE
OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. Pointshare's total liability for damages hereunder for any cause
whatsoever will in no event exceed the amounts received by Pointshare from
WHS within the twelve (12) month period prior to the date that the cause of
action arose.
13. WEB DEVELOPMENT
a) Ownership of supplied material. WHS represents and warrants that with
respect to all information supplied by WHS to Pointshare for electronic
publication: (i) WHS holds the copyright and trademark, or explicit written
transfer of all necessary rights in digital and/or print media; (ii) WHS
does not make any defamatory, libelous, or other actionable statements; and
(iii) WHS makes no statements that contravene local or federal law in the
State of Washington, or in the United States of America, including
statements or information about products for sale.
b) Product Liability. With the exception of advertising for Pointshare's
products and services, WHS assumes full liability for any failures to
conform to product liability and advertising laws, failure to fulfill
product warranties, and failure to deliver goods or services advertised on
WHS's electronic and/or print materials.
c) Indemnification. WHS agrees to indemnify Pointshare consistent with its
indemnification obligations above for any legal action brought against
Pointshare arising out of a breach by WHS of this Section 13.
d) Copyright ownership. WHS retains copyright on all materials supplied by WHS
to Pointshare. Pointshare retains copyright on all materials rendered
retrievable from Pointshare, but Pointshare assigns full use of said
materials to WHS for WHS's use under this Agreement. Copyright of all
materials supplied by third party vendors will be retained by them, but use
rights will be negotiated prior to assignment of work.
14. GENERAL PROVISIONS
a) Dispute Resolution. If any dispute, controversy, or claim arises out of
this Agreement, or if either party alleges breach by the other ("Dispute"),
both parties will participate in a mediation conducted by a recognized
neutral third-party professional mediation service and selected by both
parties. The cost of the mediation service will be borne equally by the
parties. Both parties agree to negotiate in good faith a resolution through
such mediation prior to commencing any legal action. If any legal action
following the unsuccessful mediation of the dispute is instituted, the
prevailing party will be entitled to reasonable attorney's fees.
b) Survival. All provisions of this Agreement relating to confidentiality,
nondisclosure, limitation of liability, warranty disclaimer and
indemnification will survive the termination of this Agreement.
c) Amendments and Waivers. Any term of this Agreement may be amended or waived
only with the written consent of the parties or their respective permitted
successors and assigns. Any amendment or waiver
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effected in accordance with this Section 13(a) shall be binding upon the
parties and their respective successors and assigns.
d) Governing Law. This Agreement is governed by and construed in accordance
with the laws of the State of Washington and all disputes arising under
this Agreement will be heard in the state courts of Washington in the
County of King.
e) Force Majeure. In no event will Pointshare be liable to WHS for any delay
or failure to perform under this Agreement to the extent such failure or
delay encountered by Pointshare is beyond Pointshare' s reasonable control.
f) Independent Contractor Relationship. This Agreement does not create a joint
venture or partnership between the parties. Pointshare is an independent
contractor.
g) Government Restricted Rights. Any Pointshare products or software provided
to the US Government (or any of its agencies) will be provided with
"Restricted Rights" and the party distributing such software products will
affix to any media containing such product the following restricted rights
legend: "This Program is provided with Restricted Rights. Use, duplication
or disclosure by the Government is subject to the restrictions set forth in
DFARs 252.227-70l3(c)(1)(ii) and 48 CFR 52.227-1 9(c)( 1) and (2) or
applicable successor provisions."
h) Invalidity. If a court holds any provision of this Agreement to be invalid
or unenforceable, the other provisions of this Agreement will remain in
effect.
i) Entire Agreement. This Agreement constitutes the entire agreement of the
parties pertaining to the subject matter hereof, and merges all prior
negotiations and drafts of the parties with regard to the transactions
contemplated herein. Any and all other written or oral agreements existing
between the parties hereto regarding such transactions are expressly
canceled.
15. NOTICES
All notices or other communications required or permitted under this
Agreement shall be in writing and deemed received upon receipt. All such
communications shall be to a party at its address set forth below or such
other address as indicated by at least ten (10) days prior written notice.
Pointshare: Washington Hospital Services:
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Pointshare Corporation Washington Hospital Services
0000-000xx Xxxxxx XX 000 Xxxxxxx Xxx. W.
Suite 100 Suite 300
Bellevue, WA 98004 Xxxxxxx, XX 00000
Attn: CEO Attn: CEO
16. ATTACHMENTS AND EXHIBITS
The following Attachments are incorporated herein by reference:
Attachment A: XXXX.xxx Statewide Intranet Services and Fees
Attachment B: Sample Member Service Packages and Pricing
Attachment C: Listing of WHS non-hospital WEB clients and Pointshare's
existing hospital clients and active hospital sales
prospects.
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
This Agreement and the Attachments, upon your written acceptance, are the
binding agreement between us with respect to the XXXX.xxx Statewide lntranet
Services and marketing alliance and constitute the entire agreement between us
on this subject matter and supersede any prior discussions, agreements,
proposals, or representations. This Agreement may be changed only by mutual
agreement of the parties in writing. This Agreement may be executed in any
number of counterparts, each of which shall be an original and all of which
shall constitute together but one and the same document.
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CONFIDENTIAL
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
Pointshare Corporation Washington Hospital Services, Inc.
Signature: /s/ TKilgallon Signature: /s/ Xxxx Menanl
------------------- ----------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxx Menanl
------------------------ ---------------------------
Title: CEO Title: President
----------------------- --------------------------
Date: 6 October 1998 Date: Oct. 6, 1998
------------------------ ---------------------------
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CONFIDENTIAL
[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
ATTACHMENT A
XXXX.xxx Statewide Intranet Services and Pricing
XXXX.xxx Statewide Intranet
-------------------------------------------------------------------------------------------------------------------------
Service Description Set-up * Monthly *
---------------------------------------------------------------------------------------------
WSHA Administrative Offices Connection 256KBPS $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------------------
Intranet Browser Access and E-Mail for all WSHA staff included
---------------------------------------------------------------------------------------------
Unlimited Internet Access for WSHA staff included
---------------------------------------------------------------------------------------------
Router set-up, programming, and maintenance included
---------------------------------------------------------------------------------------------
General monthly usage report included
---------------------------------------------------------------------------------------------
WSHA Site Development, Hosting, and Maintenance $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------------------
Assumptions: Initial development estimate is based on approximately 200 hours
of HTML development, graphic design, testing and project management. The
estimate assumes that the XXXX.xxx site will include a landing page and 7
Virtual Communities pages for the Hospital CEO, Hospital CFO, Hospital CIO/MIS
Dept., Human Resources, Business Office, Quality Assurance, and Managed Care.
Each Virtual Community Page will have links to a Forum for that specialty, a
News page with internet links, and other links and services provided by the
Hospital Association. It further assumes that text is provided by WSHA
electronically and that graphics are provided either electronically or ready to
scan. Ongoing monthly maintenance for site changes assumes no more than four
hours of HTML development per month. Monthly hosting service assumes no more
than 4MB storage and 4Gb of throughput.)
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
*Does not include travel, lodging, and hospital telco costs.
-------------------------------------------------------------------------------------------------------------------------
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CONFIDENTIAL
[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
ATTACHMENT B
Sample Member Service Packages and Pricing
Package 1. Hospital Access to XXXX.xxx Set-up* Monthly*
----------------------------------------------------------------------------------------------------------------
Each Hospital connection to the XXXX.xxx web server includes router installation
and set-up, programming, coordination of circuit provisioning, connection to
hospital LAN, testing, set-up, and IS support. $[* * *] +
$[* * *]/user
----------------------------------------------------------------------------------------------------------------
Monthly fees = Base + $X/user
----------------------------------------------------------------------------------------------------------------
Monthly Base Fees
----------------------------------------------------------------------------------------------------------------
56 KBPS Frame Relay Connection $[* * *]
----------------------------------------------------------------------------------------------------------------
128 KBPS Frame Relay Connection $[* * *]
----------------------------------------------------------------------------------------------------------------
256 KBPS Frame Relay Connection $[* * *]
----------------------------------------------------------------------------------------------------------------
1.544 MBPS Frame Relay Connection $[* * *]
----------------------------------------------------------------------------------------------------------------
Fractional DS-3 TBD
----------------------------------------------------------------------------------------------------------------
XXXX.xxx Forum and E-mail Administration User Fees
----------------------------------------------------------------------------------------------------------------
10-99 Users $[* * *]/user+
----------------------------------------------------------------------------------------------------------------
100-199 Users $[* * *]/user+
----------------------------------------------------------------------------------------------------------------
200-299 Users $[* * *]/user+
----------------------------------------------------------------------------------------------------------------
* Does not include travel, lodging, and member telco costs.
----------------------------------------------------------------------------------------------------------------
+Add $[* * *]/user for XXXX.xxx +Internet e-mail accounts
----------------------------------------------------------------------------------------------------------------
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
ATTACHMENT B
Sample Member Service Packages and Pricing (continued)
Package 2. Pointshare Online Service Package Set-up* Monthly*
----------------------------------------------------------------------------------------------------------------------
Pointshare Online Services include CheckPoint Eligibility, ContactPoint Online Healthcare Directory, ReferralPoint
Referral Management Service, InfoPoint, and PurchasePoint.
----------------------------------------------------------------------------------------------------------------------
Per User Online Service Subscription Fees
----------------------------------------------------------------------------------------------------------------------
10-19 Users $[* * *]/user $[* * *]/user
------------------------------------------------------------------------------------
20-49 Users $[* * *]/user
------------------------------------------------------------------------------------
50-99 Users $[* * *]/user
----------------------------------------------------------------------------------------------------
100-249 Users $[* * *]/user $[* * *]/user
------------------------------------------------------------------------------------
250-499 Users $[* * *]/user
------------------------------------------------------------------------------------
500-999 Users $[* * *]/user
----------------------------------------------------------------------------------------------------
1,000-2,499 Users $[* * *]/user
------------------------------------------------------------------------------------
2,50-4,999 Users $[* * *]/user $[* * *]/user
------------------------------------------------------------------------------------
5,000 - 9,999 Users $[* * *]/user
----------------------------------------------------------------------------------------------------
* Does not include travel, lodging, and member telco costs.
----------------------------------------------------------------------------------------------------------------------
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
ATTACHMENT B
Sample Member Service Packages and Pricing (continued)
Package 3. Hospital Internet Access
----------------------------------------------------------------------------------------------------------------
Service Description Set-up* Monthly*
----------------------------------------------------------------------------------------------------------------
High speed, unlimited Internet Access per hospital
----------------------------------------------------------------------------------------------------------------
56 KBPS Frame Relay Connection $[* * *] $[* * *]
----------------------------------------------------------------------------------------------------------------
128 KBPS Frame Relay Connection $[* * *] $[* * *]
----------------------------------------------------------------------------------------------------------------
256 KBPS Frame Relay Connection $[* * *] $[* * *]
----------------------------------------------------------------------------------------------------------------
512 KBPS Frame Relay Connection $[* * *] $[* * *]
----------------------------------------------------------------------------------------------------------------
1.544 MBPS Frame Relay Connection $[* * *] $[* * *]
----------------------------------------------------------------------------------------------------------------
Web Development Services (pre-defined templates and custom
development) @ $[* * *]-[ * * *]/hr
----------------------------------------------------------------------------------------------------------------
Web Hosting Services. Varies depending on
traffic & space
----------------------------------------------------------------------------------------------------------------
Co-location Services. Varies depending on
traffic & space
----------------------------------------------------------------------------------------------------------------
Professional Consulting Services @ $[* * *]-[* * *]/hr: Usage, Security,
Confidentiality, Guidelines, Policies and Procedures
----------------------------------------------------------------------------------------------------------------
* Does not include travel, lodging, and member telco costs.
----------------------------------------------------------------------------------------------------------------
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[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
ATTACHMENT B
Sample Member Service Packages and Pricing (continued)
Package 4. Hospital Intranet Package
-------------------------------------------------------------------------------------------------------------
Service Description Set-up * Monthly *
-------------------------------------------------------------------------------------------------------------
Hospital Intranel Package for internal communications and information
dissemination within the hospital enterprise. Bundle includes:
hardware, software, departmental content consulting,
train-the-trainer training, basic monthly network activity, security
and usage reports, support and a pre-defined number of hours of site
update development/month. The "packages" below are examples. Actual
package pricing is based on the actual needs of each hospital. Secure
Internet access is also provided assuming Internet Service package is
also purchased directly through Pointshare.
-------------------------------------------------------------------------------------------------------------
Package A $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------
Package B $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------
Package C $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------
Package D $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------
Package E $[* * *] $[* * *]
-------------------------------------------------------------------------------------------------------------
Large or decentralized organizations Case-by-case Case-by-case
-------------------------------------------------------------------------------------------------------------
Additional Project Management Services Pricing $[* * *]-[* * *]/hr
-------------------------------------------------------------------------------------------------------------
Additional Intranet Consulting Services Pricing $[* * *]-[* * *]/hr
-------------------------------------------------------------------------------------------------------------
Additional HTML Development (average) $[* * *]-[* * *]/hr
-------------------------------------------------------------------------------------------------------------
* Does not include travel, lodging, and member telco costs. Pricing assumes e-mail administration by client
-------------------------------------------------------------------------------------------------------------
Package A Recommended for small hospitals (less than$20M in Annual Gross
Operating Expenses): Includes NT Server hardware with high
availability features (redundant Pentium Pro CPUs, redundant hot-
swappable power supplies, RAID-0 mirrored disk arrays), web
server software, and e-mail server software. It also includes
installation and set-up of server hardware and software, 60 hours
of project management, 120 hours of content consulting and
training, and 180 hours of HTML development. Recurring monthly
services include management reporting and 14 hours of consulting
and HTML development.
Package B Recommended for small to mid-sized hospitals ($20M - $50M in
Annual Gross Operating Expenses): Includes NT Server hardware
with high availability features (redundant Pentium Pro CPUs,
redundant hot-swappable power supplies, RAID-0 mirrored disk
arrays), web server software, and e-mail server software. It also
includes installation and set-up of server hardware and software,
80 hours of project management, 180 hours of consulting and
training, and 220 hours of HTML development. Recurring monthly
services include management reporting and 18 hours of consulting
and HTML development.
Package C Recommended for mid-sized hospitals ($50M - $100M in Annual Gross
Operating Expenses): Includes NT Server hardware with high
availability features (redundant Pentium Pro CPUs, redundant hot-
swappable power supplies, RAID-O mirrored disk arrays), web
server software, and e-mail server software. It also includes
installation and set-up of server hardware and software, 100
hours of project management, 220 hours of consulting and
training, and 350 hours of HTML development. Recurring monthly
services include management reporting and 20 hours of consulting
and HTML development.
Package D Recommended for moderately-sized hospitals ($1 DOM - $200M in
Annual Gross Operating Expenses): Includes NT Server hardware
with high availability features (redundant Pentium Pro CPUs,
redundant hot-swappable power supplies, RAID-0 mirrored disk
arrays), web server software, and e-mail server software. It also
includes installation and set-up of server hardware and software,
125 hours of project management, 240 hours of consulting and
training, and 400 hours of HTML development. Recurring monthly
services include management reporting and 24 hours of consulting
and HTML development.
Package E Recommended for large hospitals ($200M - $300M in Annual Gross
Operating Expenses): Includes NT Server hardware with high
availability features (redundant Pentium Pro CPUs, redundant hot-
swappable power supplies, RAID-0 mirrored disk arrays), web
server software, and e-mail server software. It also includes
installation and set-up of server hardware and software, 150
hours of project management, 260 hours of consulting and
training. and 500 hours of HTML development. Recurring monthly
services include management reporting and 30 hours of consulting
and HTML development.
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CONFIDENTIAL
[***] CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
Attachment B
Sample Member Service Packages and Pricing (continued)
Package 5. Hospital Extranet Package
-----------------------------------------------------------------------------------------------------------------------
Service Description Set-up* Monthly*
-----------------------------------------------------------------------------------------------------------------------
Hospital Extranet Package includes a secure connection to community
physicians and other healthcare partners along with the ReferralPoint
service (Referring and Consulting Provider views) and the Clinical
Messaging Service. Package prices listed assume a 256 KBPS connection
and up to four data interfaces
-----------------------------------------------------------------------------------------------------------------------
Active Staff less than 100 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff: 100 - 199 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff: 200 - 299 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff: 300 - 399 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff: 400 - 599 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff: 600 - 799 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff: 800 - 1000 $[* * *] $[* * *]
-----------------------------------------------------------------------------------------------------------------------
Active Staff less than 1000 $[* * *] $[* * *]/physician
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
* Does not include local telco circuit costs. Pricing assumes e-mail administration by client
-----------------------------------------------------------------------------------------------------------------------
Existing Pointshare Hospital Clients and Active Sales Prospects
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CONFIDENTIAL
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
AGREEMENT
ATTACHMENT C
WHS Non-Hospital WEB Customers
------------------------------
Seattle American Medical Response
Tacoma Diagnostic Imaging Northwest
Portland Legacy Health Systems
Seattle Medalia Healthcare
Olympia Memorial Clinic
Seattle Minor & Xxxxx Clinic
Portland Oregon Health Sciences University
Portland Pacific Gateway Hospital
Seattle Pacific Medical Center
Seattle Polyclinic
Seattle Puget Sound Radiology
Spokane Rockwood Clinic
Lewiston St. Xxxxxx Medical Center
Tacoma Tacoma Radiology
Federal Way Valley Radiologists
Vancouver Vancouver Clinic
Vancouver Columbia River Mental Health
Kirkland Evergreen Pharmaceuticals
Spokane Evergreen Pharmaceuticals East
Seattle Group Health Cooperative
Seattle Seattle/King County Public Health
Fife Baby First Steps Foundation, Inc.
Seattle CHAP
Seattle King County Youth Services
Fort Worth, TX Professional medical Services
Puyallup Puyallup Tribal Health Authority
Spokane Spokane County Health District
Richland Summit Healthcare
Toppenish Yakima Val. Farm Workers
Seattle HHL Financial/Paralign
Woodinville Medical Supply Incorporated
Seattle Pacific Medicaid
Seattle Puget Sound NHC
Existing Pointshare Hospital Clients and Active Sales Prospects
---------------------------------------------------------------
Client Swedish Medical Center
Client Evergreen Community Health (hospital & clinics)
Client Yakima Memorial Hospital
Prospect Overlake Hospital
Prospect Sunnyside Medical Center
Prospect Providence (Yakima)
Prospect Holy Family Hospital (Spokane)
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CONFIDENTIAL
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WITH THE SECURITIES AND EXCHANGE COMMISSION.
