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EXHIBIT 10.15
[MEDIC COMPUTER SYSTEMS LOGO]
This MASTER SOFTWARE LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made
this 1st day of May 1999, between Medic Computer Systems, Inc., having its
principal offices at 0000 Xxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx
00000 ("Medic") and The TriZetto Group Inc., having its principal office at 000
Xxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000. ("Client").
1. LICENSE.
In accordance with the terms herein, Medic grants to Client, and Client accepts
from Medic, a perpetual, nonexclusive and nontransferable license to use the
software and related documentation described on the Purchase Schedule attached
hereto (the "Software") for the number of users as set forth on the Purchase
Schedule. All modifications, enhancements and updates to the Software provided
by Medic shall become part of the Software and subject to the terms and
conditions herein.
The Software shall be used only for Client's internal business needs and shall
be installed on a Central Processing Unit ("CPU") installed at the above
address; provided that Client may use the Software in combination with a
different CPU upon the payment of an additional license fee. Client shall not
permit any third party to use the Software or grant a sublicense for the use of
the Software, or allow access to the licensed Software through terminals located
outside Client's business premises.
In the event that Client should hereafter combine with any other entity or
person, Client shall promptly notify Medic of such combination and that portion
of the combined entity or person previously unlicensed to use the Software
shall be licensed to use the Software only upon the payment of an additional
license fee.
2. COPIES.
The license granted herein includes the right to copy the object code only in
non-printed, machine readable form in whole or in part as necessary for
Client's own business use, including the making of back-up copies. In order to
protect Medic's trade secret and copyrights in the Software, Client agrees to
reproduce and incorporate Medic's trade secret or copyright notice in any
allowed copies, compilations, modifications or partial copies. Client may
obtain additional copies from Medic at Medic's standard prices then in effect.
Violation of any provision of this paragraph shall be the basis for immediate
termination of this Agreement.
3. PRICE AND PAYMENT.
Client shall pay Medic an initial payment of [*] of the Total Purchase Price as
set forth in the Purchase Schedule upon execution of this Agreement and
the remaining [*] of the Total Purchase Price upon installation of the
Software. In addition to the license fee, Client shall pay all transportation
charges and all taxes (including, but not limited to sales, use, privilege, ad
valorem or excise taxes, but excluding all income taxes payable by Medic),
however designated, levied or based on amounts payable to Medic under this
Agreement. All payments hereunder shall be made in United States Dollars. All
other payments shall be due and payable within thirty (30) days of date of
invoice. On any invoice not paid within thirty (30) days, Client shall pay a
service charge accruing thereafter until the date of payment equal to the lesser
of (i) the rate of one and one-half percent (1.5%) per month, or (ii) the
maximum lawful interest rate applicable. On noncredit sales, shipment shall be,
at Medic's election, either cash with order, C.O.D. or other normal commercial
means. All collection costs shall be borne by Client, including reasonable
attorney's fees, in the event Medic commences litigation upon default by Client
of its obligation under this Agreement.
In the event that Client is leasing, the Total Purchase Price shall be due and
payable upon installation of the Software and the delivery and acceptance
receipt of the leasing company must be signed upon Software installation.
4. TITLE TO SOFTWARE AND CONFIDENTIALITY.
The Software, any modifications thereto, all programs developed hereunder, and
all copies thereof are proprietary to Medic (or to the third parties under
whose license Medic may distribute the Software) and title thereto remains in
Medic or in such third party. All applicable rights to patents, copyrights,
trademarks and trade secrets in the Software or any modifications made at
Client's request are and shall remain in Medic or in such third party. Client
shall not reverse assemble or decompile in whole or in part the Software.
Client shall not sell, license, transfer, publish, disclose, display or
otherwise make available the Software or copies thereof to others. Client agrees
to secure and protect the Software, documentation and copies thereof in a
manner consistent with the maintenance of Medic's rights therein and to take
appropriate action by instruction or agreement with its employees or consultants
who are permitted access to the Software to satisfy its obligations hereunder.
Violation of any provision of this paragraph shall be the basis for immediate
termination of this Agreement. The obligations set forth in this paragraph
shall survive the cancellation of this agreement. Liability for breach of this
clause shall not be limited to the dollar value of the contract.
Each party agrees that it shall not disclose to any third party the terms and
conditions of this Agreement or any information concerning the customers, trade
secrets, methods, processes or procedures or any other confidential, financial,
or business information of the other party which it learns during the course of
its performance of this Agreement, without the prior written consent of such
other party. This obligation shall survive the cancellation or other termination
of this Agreement.
5. TRAINING.
Medic will furnish Client with the number of training and implementation hours
identified on the Purchase Schedule attached
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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hereto. Client shall be responsible for training key personnel and new staff
additions on proper use of the Software.
6. MAINTENANCE.
(a) Medic agrees, upon Client's request and payment of the applicable
maintenance fees, to provide the following maintenance support and services for
the Software: 1-800 Help Desk Support 8:00 A.M. - 9:00 P.M. Eastern Time,
Monday through Friday, Medic recognized holidays excluded; and Beeper service
9:00 A.M. - 6:00 P.M. ET Saturday and Sunday for emergency calls only. Beeper
service outside these hours and nonemergency calls are billable at Medic's then
prevailing rates.
(b) Helpdesk Support is defined as telephone support for Medic's Software.
This service ranges from simple application questions to in-depth technical
assistance. Help Desk Services does not provide unlimited training via phone
support. Examples of the in-depth services provided are rebuilding corrupted
data files and troubleshooting Medic equipment i.e. terminals and printers.
Network Support Services are not included in standard Help Desk Support, but
may be contracted for separately. If a hardware problem is diagnosed and cannot
be resolved over the phone, Medic Help Desk Support Staff will communicate the
problem to our Field Engineering Dispatcher who, if Client is covered by Medic
Hardware Maintenance, will contact Hardware Support for service.
(c) Medic shall use commercially reasonable efforts to provide periodic
Software releases that include enhancements, state and national insurance
changes and corrections to the Software, as applicable.
(d) Medic shall not be responsible for maintaining Client- or
third-party-modified portions of the Software or portions of the Software
affected by such modifications. Corrections for difficulties or defects
traceable to the Client's or a third party's errors or system changes may be
billed to Client at Medic's then standard time and material charges. Medic
shall be responsible for maintaining only the current and next most current
release of the Software.
7. CLIENT'S RESPONSIBILITIES.
In the event that Client requests maintenance services pursuant to Paragraph 7
herein,
(a) Client shall backup, without errors, its financial and medical data on a
daily basis per documentation and follow all standard practices and procedures
in accordance with the Software documentation when operating the computer
system, regardless of the Software, including the performance of all remedial
and corrective actions prior to seeking assistance from Medic.
(b) Client shall maintain hardware equipment on which the Software is
installed in good working order whether under Medic, third party or time and
material maintenance. If hardware is not covered under formal maintenance,
Client must maintain adequate maintenance logs to document on-going hardware
maintenance and service.
(c) Client shall identify and provide a "key" individual contact, who has been
trained by Medic staff, to act as a liaison between Client and Medic.
(d) Client shall provide Medic access to the Software via a support modem over
a dedicated, data quality telephone line. Such access shall allow Medic, from
time to time, to conduct an audit of the Software. As required by Medic, Client
shall provide Medic with sufficient documentation, information, assistance,
support and test time on Client's computer system, to duplicate the problem,
certify that the problem is with the Software, and certify that the problem has
been corrected.
(e) Client shall take all necessary steps to ensure that no virus is loaded on
the system running the Software from any outside source. Virus diagnosis and
removal services are not covered by Software maintenance and are billable at
the then prevailing rates.
(f) Client shall install all updates within thirty (30) days of receipt from
Medic thereby maintaining the system on Medic's most recent release.
8. CHARGES FOR MAINTENANCE SUPPORT AND TERM.
(a) The charges for software maintenance are those identified in the attached
Purchase Schedule. All invoices shall be due and payable in full thirty (30)
days from the date of such invoice. All invoices past due shall bear interest
thereafter until the date of payment at a rate equal to the lesser of (i) the
rate of one and one-half percent (1.5%) per month, or (ii) the maximum lawful
interest rate applicable. All charges are subject to change at any time after
the end of the initial one (1) year term. Appropriate taxes will be added to
the charges as necessary and applicable. If Client goes over sixty (60) days
without payment, Client's account will be put on support hold. No company
services, including EDI services, will be provided until account is brought
current. If Client elects not to purchase software maintenance or Client
discontinues maintenance and then subsequently elects to obtain maintenance,
maintenance will be available for the normal fee plus a one-time fee equal to
all missed maintenance fees and a one time charge of $[*], provided Medic can
bring Client up to the current release.
(b) The initial term of this Agreement shall be one year. All charges are
subject to change at any time after the end of the initial one (1) year term.
Thereafter, the term of this Agreement shall be automatically extended for
successive one year periods until terminated by either party upon prior written
notice to the other, which notice shall be given at least ninety (90) days
prior to the end of the applicable term. Maintenance for any additional options
or applications installed shall commence pursuant to this Agreement upon
installation of such software and upon payment of the applicable maintenance
fee shown on the Purchase Schedule, as such Schedule may be modified from time
to time.
9. CHARGES FOR EDI SERVICES AND TERM.
The charges for EDI services are those identified in the attached Purchase
Schedule. All invoices shall be due and payable in full thirty (30) days from
the date of such invoice. Medic will provide FastServices as outlined in the
attached Purchase Schedule for as long as the Client elects to utilize this
service. Either party may terminate FastServices by giving the other thirty
(30) days written notice prior to termination. Medic reserves the right to
terminate FastServices if an account is over sixty (60) days past due.
- FastClaim
MEDIC shall not be responsible for any errors or omissions in any Claims
received from Client or transmitted to Payers. MEDIC shall not be responsible
for any unauthorized or other improper transmission by or on behalf of any Payee
or any other person and Payers shall be responsible to verify the authenticity
of each Claim.
Record Keeping and Transmission Verification
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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CLIENT SHALL MAINTAIN A PERMANENT, COMPLETE, AND ACCURATE RECORD OF ALL CLAIMS
TRANSMITTED THROUGH THE MEDIC FASTCLAIM SYSTEM, INCLUDING THE NUMBER OF CLAIMS
PER TRANSMISSION AND THE TOTAL DOLLAR AMOUNT OF EACH TRANSMISSION. ALL SUCH
RECORDS SHALL BE RETAINED AND PRESERVED FOR AT LEAST EIGHTEEN (18) MONTHS FROM
THE DATE OF TRANSMISSION AND SHALL BE SUBJECT TO INSPECTION, COPYING, AND AUDIT
BY MEDIC AT ALL REASONABLE TIMES. IT IS ALSO THE RESPONSIBILITY OF CLIENT TO
REVIEW EACH TRANSMISSION REPORT SENT TO CLIENT BY MEDIC AND TO IMMEDIATELY
NOTIFY MEDIC OF ANY ERROR, OMISSION, OR OTHER DISCREPANCY BETWEEN THE REPORT AND
THE ACTUAL CLAIMS TRANSMITTED.
- FastReceipt
Client agrees to reimburse Medic for any insufficient or returned checks that
appear in the FastReceipt process
- FastBill
Client acknowledges that Medic is using the USPS FastForward Move update on
Client's records and Client agrees to comply with the USPS regulations. All
forward results would be utilized for the sole purpose of updating preexisting
addresses.
10. DATA CONVERSION.
Medic to use commercially reasonable efforts to convert data (if possible)
including patient demographics and associated balance forwards, only as
identified in the attached Purchase Schedule. Where a conversion is desired,
Client agrees to provide the contact person and the telephone number of its
current computer system vendor, and is responsible (through its vendor) for
providing to Medic all necessary and specified tapes, diskettes, and/or file
components and documentation necessary to perform an electronic conversion. All
costs associated with the electronic conversion (i.e. media, freight, current
vendor costs, readable data format, data conversion lab) are the responsibility
of Client. A conversion implementation schedule will be developed and mutually
agreed upon by Medic and Client.
11. INDEMNITY.
Medic at its own expense will defend and hold Client harmless from any claim
asserted against Client to the extent that it is based on a claim that any
Software used within the scope of this Agreement infringes any patents,
copyrights, license or other property right of a third party. Client shall
promptly notify Medic in writing of such claim. Medic shall have the right to
control the defense of all such claims, lawsuits and other proceedings. In no
event shall Client settle any such claim, lawsuit or proceeding without Medic's
prior written approval. In all events, Client shall have the right to
participate in the defense of any such suit or proceeding through counsel of
its own choosing. If, as a result of any claim of infringement against any
patent, copyright, license or other property right, Medic or Client is enjoined
from using the Software, or if Medic believes that the Software is likely to
become the subject of a claim of infringement, Medic at its option and expense
may (i) procure the right for Client to continue to use the Software, (ii)
replace or modify the Software so as to make it noninfringing, with similar
functionality, or (iii) discontinue the license granted herein and refund to
Client the license fees paid hereunder. The foregoing states the entire
liability of Medic with respect to infringement of any copyrights or patents by
the Software or any parts thereof. This indemnity shall not apply if the
infringement is caused in whole or in part by Software changes made by Client
or other non-Medic personnel.
12. WARRANTY AND DISCLAIMER OF WARRANTIES.
(a) Medic represents that for a period of ninety (90) days from the
installation of the Software, the Software will (i) conform, as to all
substantial operational features, to Medic's documentation provided with the
Software when installed and properly used in the operating environment
specified in such documentation and (ii) be free of defects under normal use
which substantially affect system performance. Medic does not represent that
the functions contained in the Software will meet Client's requirements or
that the operation of the Software will be uninterrupted or error free.
(b) The Client must notify Medic in writing, within ninety (90) days from
the date of installation of the Software of its claim of any such defect. If
the Software is found defective by Medic, Medic's sole obligation under this
warranty is to remedy such defect.
(c) With respect to maintenance services provided, Client agrees that
Medic's obligations under this Agreement are to use commercially reasonable
efforts to diagnose errors or malfunctions in the system, and to advise Client
of possible corrective measures.
(d) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY
MEDIC. MEDIC MAKES AND CLIENT RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED
AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. EXCEPT FOR CLAIMS BROUGHT UNDER PARAGRAPH 11, MEDIC
SHALL HAVE NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES OR FOR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE,
DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE
OR PERFORMANCE OF THE SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL MEDIC BE LIABLE IN THE AGGREGATE FOR ANY
CLAIMS OR DAMAGES IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CLIENT FOR THE
SOFTWARE LICENSE SET FORTH IN THE ATTACHED PURCHASE SCHEDULE.
(e) The warranty shall not apply if modifications to the Software made by
Client are the cause of any operational difficulties experienced. If
difficulties or defects are traceable to Client's errors or systems changes,
any repairs or corrections made by Medic may, at Medic's discretion, be billed
at Medic's then prevailing time and materials charges.
(f) Medic warrants that the Medic PM version 7.0.X, dated 12/15/97 or
later has been programmed to be year 2000 compatible, in addition IBM warrants
that AIX version 4.3.1 has been programmed to be year 2000 compatible.
Additionally, Client shall be entitled to any warranties which are afforded
Medic through its third party relationships.
Medic has defined "Y2K Compatible" as meaning that Medic applications (i) will
completely and accurately address, present, produce, store and calculate data
involving dates from, into and between the twentieth and twenty-first
centuries, which includes the years 1999 and 2000 and any leap year
calculations, and will not produce abnormally ending or incorrect results
involving such dates as used in any forward or regression date based function;
and (ii) will support both two and four digit years to be displayed where
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appropriate and will perform calculations which involve a four digit year field.
13. CANCELLATION.
If Client fails to pay any amount due hereunder or otherwise commits a breach
hereof, and persists in such failure for ten (10) days after receiving written
notice thereof from Medic, Medic may cancel this Agreement and declare any
unpaid amounts owed hereunder immediately due and payable. Thereupon Client
shall immediately return the Software and related documentation and all copies
thereof to Medic. Cancellation of the license granted hereunder shall be in
addition to and not in lieu of any other remedies available to Medic.
14. SOURCE CODE ESCROW.
A current version of the Software source code and all necessary documentation
has been put into escrow with the law firm of Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLC
in Raleigh, North Carolina. Source code is eligible for release in the event
Medic liquidates or shall be declared bankrupt. If Client receives source code
under the above circumstances, such source code shall be deemed to be Software
and subject to the term and conditions herein. The source code is to be used
solely for Client's maintenance of the Software.
15. HIRING OF EMPLOYEES.
During the term of the Agreement and for one year thereafter, Client will not,
without the prior written consent of Medic, offer employment to, employ or
subcontract work to any person employed then or within the preceding twelve
months by Medic. If this provision is violated, client agrees to pay as
damages, an amount equal to one times the annual compensation of the employee
or subcontractor to Medic.
16. GENERAL.
(a) The terms of this agreement will take precedence over the terms of any
present or future order from Client for any license or services hereunder. This
Agreement is a master software license and maintenance agreement. It is
contemplated that additional software may be licensed hereunder by supplementing
the Purchase Schedule attached hereto with later dated schedules upon agreement
by both parties hereto. Notwithstanding any revision of the Purchase Schedule,
this Agreement shall continue in full force and effect and shall govern all such
later dated schedules and transactions as if such schedules were part of this
Agreement on the date this Agreement was executed. Client agrees that the
installation of future software from Medic is conclusive evidence of its
agreement that the license for such software provided is governed by the terms
of this Agreement.
(b) Client shall, notwithstanding any assistance from Medic, bear the sole
risk and responsibility for 1) the selection of the Software to achieve the
Client's intended use; 2) proper use of the Software; 3) its satisfaction with
the results achieved through operation of the Software; and 4) any
modifications made to the Software by Client.
(c) If Software is lost or damaged during shipment from Medic, Medic shall
replace such Software at no additional charge to Client. If Software is lost or
destroyed while in the possession of the Client, Medic shall replace such
Software, upon Client's request, at Medic's then prevailing replacement charges.
(d) Each party acknowledges that it has read this Agreement, understands it,
and agrees to be bound by its terms, and further agrees that this Agreement
along with the Hardware Equipment and Maintenance Agreement and the Purchase
Schedule attached hereto is complete and exclusive statement of the Agreement
between the parties with respect to the license of the Software or otherwise
relating thereto, which supersedes all prior proposals, understandings and all
other agreements, oral and written. This Agreement may not be modified or
altered except by a written instrument duly executed by both parties.
(e) Neither party hereto shall be liable or deemed in default for any delay or
failure in performance hereunder resulting from any cause beyond its reasonable
control.
(f) This Agreement, and any action arising out of or related to it, shall be
governed by and construed in accordance with the laws of the State of North
Carolina. In the event that any action or proceeding is brought in connection
with this Agreement, the prevailing party shall be entitled to recover its
costs and reasonable attorneys' fees.
(g) If any provision of this Agreement shall be held to be invalid or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired.
(h) This Agreement shall be binding upon and for the benefit only of the
parties hereto and their respective successors and permitted assigns. Client
may assign this Agreement and any of its rights, duties or obligations
hereunder only with the prior written consent of Medic. Transfer of Client's
rights and obligations under this Agreement will require an additional
Software license fee paid to Medic unless otherwise specified.
(i) The waiver or failure of Medic to exercise in any respects any right
provided for herein shall not be deemed a waiver of any further right
hereunder.
(j) All communications or notices permitted or required to be given or served
under this Agreement shall be in writing, shall be addressed to the parties at
the appropriate party's address as set forth below, and shall be deemed to have
been duly given or served if delivered in person or deposited in the United
States mail, certified mail, return receipt requested.
(k) Any dispute or claim arising out of, or in connection with, this Agreement
shall be finally settled by binding arbitration in Raleigh, North Carolina, in
accordance with N.C. Gen. Stat. Section 1-567.1 et seq. (the "Uniform
Arbitration Act") and the then-current rules and procedures of the American
Arbitration Association by one (1) arbitrator appointed by the American
Arbitration Association. The arbitrator shall apply the law of the State of
North Carolina, without reference to rules of conflict of law or statutory rules
of arbitration, to the merits of any dispute or claim. Judgment on the award
rendered by the arbitrator may be entered in any North Carolina court of
competent jurisdiction. The parties agree that, any provision of applicable law
notwithstanding, they will not request, and the arbitrator shall have no
authority to award punitive or exemplary damages against any party.
APPROVAL
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representative.
Approved By: Approved By:
MEDIC COMPUTER SYSTEMS, INC. CLIENT
By: /s/ X.X. X'Xxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- ----------------------
Signature Signature
Name: /s/ X.X. X'Xxxxx Name: /s/ Xxxxx X. Xxxxxx
------------------------- --------------------
Printed Printed
Title: CEO Title: Senior VP
------------------------ --------------------
Date: 5/3/99 Date: 5/3/99
------------------------ --------------------
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SOFTWARE LICENSE AND MAINTENANCE AGREEMENT ADDENDUM
This Software License and Maintenance Agreement Addendum is entered
into this 1st day of May, 1999, by and between Medic Computer Systems, Inc.
("Medic") and The TriZetto Group Inc. ("TriZetto"), to supplement and modify the
terms and conditions of the Software License and Maintenance Agreement
("Agreement") being executed concurrently herewith and to which this Addendum is
attached and incorporated by reference, as if fully set forth in such Agreement.
WITNESSETH:
WHEREAS, the parties intend to supplement and modify their Agreement to
the extent provided for herein.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and as set forth in the parties' Agreement, Medic and TriZetto do
hereby agree as follows:
1. [*]
2. [*]
3. Terms of payment are outlined as follows:
Initial payment due to execute Agreement is [*] of total investment or $[*].
Additional [*] payments each in the amount of [*] are due at the beginning
of each month following completion of the Agreement until total investment,
$[*] is paid in full. The first of the installment payments shall be made
on [*].
4. Set forth on Exhibit A hereto are Sections from the Agreement, which are
hereby amended to reflect the changes thereon and except as expressly
indicated on Exhibit A hereto, all other Sections of the Agreement shall
remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the date
first written above.
MEDIC COMPUTER SYSTEMS, INC. THE TRIZETTO GROUP
By: /s/ X. X. X'Xxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------- ----------------------------
Its: CEO Its: SVP
--------------------------- ----------------------------
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT A
Revised TERMS OF AGREEMENT
1. Revised Section 1:
License.
In accordance with the terms herein, Medic grants to Client, and Client accepts
from Medic, a perpetual, nonexclusive and nontransferable license to use the
software and related documentation described on the Purchase Schedule attached
hereto (the "Software") for the number of users, and Medic companies as set
forth on the Purchase Schedule. All modifications, enhancements and updates to
the Software provided by Medic shall become part of the Software and subject to
the terms and conditions herein.
The Software shall be used only (i) for Client's internal business needs and
(ii) for Client's use on behalf of third parties in connection with Client's
provision of application support services to such third parties on a contract or
outsource basis, and shall be installed on no more than 6 Central Processing
Units ("CPUs"); provided that Client may transfer the Software to different CPUs
upon notification to Medic; provided that Client may be required to pay an
additional license fee in the event that Client installs the Software on more
than 6 CPUs, with the amount of such additional license fee to be determined by
Client and Medic after good faith negotiations. Client shall not permit any
third party to use the Software or grant a sublicense for the use of the
Software; or allow access to the licensed Software through terminals located
outside of premises controlled by or operated by or on behalf of Client or for
Customers of Client. Nothing in this section is intended to precluded Client's
ability to offer remote access to its customers for application services.
2. Revised Section 2:
Copies.
The license granted herein includes the right to copy the object code only in
non-printed, machine readable form in whole or in part as necessary for Client's
use as contemplated in Section 1 above, including the making of back-up copies.
In order to protect Medic's trade secret and copyrights in the Software, Client
agrees to reproduce and incorporate Medic's trade secret or copyright notice in
any allowed copies, compilations, modifications or partial copies. Client may
obtain additional copies from Medic at prices to be agreed to by Client and
Medic after good faith negotiations. Violation of any provision of this
paragraph shall be the basis for immediate termination of this Agreement.
3. Revised Section 3:
Price and Payment.
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Client shall pay Medic an initial payment of $[*] from the Total Purchase Price
as set forth in the Purchase Schedule upon execution of this Agreement and the
remaining $[*] of the Total Purchase Price shall be paid in [*] installments of
$[*] thereafter (the first installment being due on [*]), until paid in full. In
addition to the license fee, Client shall pay all transportation charges and all
taxes (including, but not limited to, sales, use, privilege, ad valorem or
excise taxes, but excluding all income taxes payable by or attributable to
Medic), however designated, levied or based on amounts payable to Medic under
this Agreement. All payments hereunder shall be made in United States Dollars.
All other payments shall be due and payable within thirty (30) days of date of
invoice. On any invoice not paid within thirty (30) days, Client shall pay a
service charge accruing thereafter until the date of payment equal to the lesser
of (i) the rate of one and one-half percent (1.5%) per month, or (ii) the
maximum lawful interest rate applicable. On noncredit sales, shipment shall be,
at Medic's election, either cash with order, C.O.D. or other normal commercial
means. All collection costs shall be borne by Client, including reasonable
attorneys' fees, in the event Medic commences litigation upon default by Client
of its obligations to pay any amounts owing to Medic under this Agreement.
4. Revised Section 4:
Title to Software and Confidentiality.
The Software, any modifications thereto, all programs developed hereunder, and
all copies thereof are proprietary to Medic (or to the third parties under whose
license Medic may distribute the Software) and title thereto remains in Medic or
in such third party. All applicable rights to patents, copyrights, trademarks
and trade secrets in the Software or any modifications made at Client's request
are and shall remain in Medic or in such third party. Client shall not reverse
assemble or decompile in whole or in part the Software. Client shall not sell,
license, transfer, publish, disclose, display or otherwise make available the
Software or copies thereof to others, except for individuals who may be agents,
independent contractors and/or consultants of Client who perform installation,
integration and/or support services on behalf of Client and who shall agree to
be bound by the provisions set forth in this Section 4. Client agrees to secure
and protect the Software, documentation and copies thereof in a manner
consistent with the maintenance of Medic's rights therein and to take
appropriate action by instruction or agreement with its employees, agents,
independent contractors or consultants who are permitted access to the Software
to satisfy its obligations hereunder. Violation of any provision of this
paragraph shall be the basis for immediate termination of this Agreement. The
obligations set forth in this paragraph shall survive the cancellation of this
Agreement. Liability for breach of this clause shall not be limited to the
dollar value of the contract.
Each party agrees that it shall not disclose to any third party the terms and
conditions of this Agreement or any information concerning the customers, trade
secrets, methods, processes or procedures or any other confidential, financial,
or business information of the other party which it learns during the course of
its performance of this Agreement, without the prior written consent of such
other party. This obligation shall survive the cancellation or other termination
of this Agreement.
5. Revised Sections 7(b), 7(d), 7(e) and 7(f):
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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(b) Client shall maintain hardware equipment on which the Software is installed
in good working order whether under Medic, third party or time and material
maintenance. If hardware is not covered under formal maintenance, Client must
maintain reasonably adequate maintenance logs to document on-going hardware
maintenance and service.
(d) Client shall provide Medic access to the Software via a support modem over a
dedicated, data quality telephone line. Such access shall allow Medic, from time
to time, to conduct an audit of the Software. As reasonably required by Medic,
Client shall provide Medic with sufficient documentation, information,
assistance, support and test time on Client's computer system, to duplicate the
problem, certify that the problem is with the Software, and certify that the
problem has been corrected.
(e) Client shall take all necessary steps to reasonably ensure that no virus is
loaded on the system running the Software from any outside source. Virus
diagnosis and removal services are not covered by Software maintenance and are
billable at the then prevailing rates.
(f) Client shall install all updates within one hundred twenty (120) days of
receipt from Medic thereby maintaining the system on Medic's most recent
release.
6. Revised Section 8(b):
((b) The licenses granted pursuant to section 1 of this Exhibit A are perpetual,
however, as it relates to section 8 of The Master Software and Maintenance
Agreement, the initial term of this Agreement shall be [*]. All charges are
subject to change at any time after the end of the initial one (1) year term,
provided that Medic shall not increase any charges by more than the percentage
increase in the then current [*]. Thereafter, the term of this Agreement shall
be automatically extended for successive one year periods until terminated by
either party upon prior written notice to the other, which notice shall be given
at least ninety (90) days prior to the end of the applicable term. Maintenance
for any additional options or applications installed shall commence pursuant to
this Agreement upon installation of such software and upon payment of the
applicable maintenance fee shown on the Purchase Schedule, as such Schedule may
be modified in a writing signed by Medic and Client from time to time.
7. Revised Section 9:
Charges for EDI Services and Term.
The charges for EDI services are those identified in the attached Purchase
Schedule. All invoices shall be due and payable in full thirty (30) days from
the date of such invoice. Medic will provide FastServices as outlined in the
attached Purchase Schedule for as long as the Client elects to utilize this
service. Either party may terminate FastServices by giving the other thirty (30)
days written notice prior to termination. Medic reserves the right to terminate
FastServices if an account is over sixty (60) days past due.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
10
FastClaim
MEDIC shall not be responsible for any errors or omissions in any Claims
received from Client or transmitted to Payers. MEDIC shall not be responsible
for any unauthorized or other improper transmission by or on behalf of any Payee
or any other person and Payers shall be responsible to verify the authenticity
of each Claim.
Record Keeping and Transmission Verification
CLIENT SHALL MAINTAIN A PERMANENT, COMPLETE, AND ACCURATE RECORD OF ALL CLAIMS
TRANSMITTED THROUGH THE MEDIC FASTCLAIM SYSTEM, INCLUDING THE NUMBER OF CLAIMS
PER TRANSMISSION AND THE TOTAL DOLLAR AMOUNT OF EACH TRANSMISSION. ALL SUCH
RECORDS SHALL BE RETAINED AND PRESERVED FOR AT LEAST EIGHTEEN (18) MONTHS FROM
THE DATE OF TRANSMISSION AND SHALL BE SUBJECT TO INSPECTION, COPYING, AND AUDIT
BY MEDIC AT REASONABLE TIMES UPON REASONABLE PRIOR WRITTEN NOTICE. IT IS ALSO
THE RESPONSIBILITY OF CLIENT TO REVIEW EACH TRANSMISSION REPORT SENT TO CLIENT
BY MEDIC AND TO NOTIFY MEDIC OF ANY ERROR, OMISSION, OR OTHER DISCREPANCY
BETWEEN THE REPORT AND THE ACTUAL CLAIMS TRANSMITTED AS SOON AS REASONABLY
PRACTICABLE AFTER RECEIPT OF SUCH REPORT.
FastReceipt
Client agrees to reimburse Medic for any insufficient or returned checks that
appear in the FastReceipt process.
FastBill
Client acknowledges that Medic is using the USPS FastForward Move update on
Client's records and Client agrees to comply with the USPS regulations. All
forward results would be utilized for the sole purpose of updating preexisting
addresses.
8. Revised Section 11:
Indemnity.
Medic at its own expense will defend and hold Client harmless from any claim
asserted against Client to the extent that it is based on a claim that any
Software used within the scope of this Agreement infringes any patents,
copyrights, license or other property right of a third party. Client shall
promptly notify Medic in writing of such claim; provided that the failure to
give such prompt notice shall not affect Medic's obligations hereunder except to
the extent, and solely to the extent, Medic is prejudiced thereby. Medic shall
have the right to control the defense of all such claims, lawsuits and other
proceedings. In no event shall Client settle any such claim, lawsuit or
proceeding without Medic's prior written approval. In all events, Client shall
have the right to participate in the defense of any such suit or proceeding
through counsel of its own choosing. If, as a result of any claim of
infringement against any patent, copyright, license or other property right,
Medic or Client is enjoined from using the Software, or if Medic believes that
the Software is likely to become the subject of a claim of infringement, Medic
at its option and expense may (i) procure the right
11
for Client to continue to use the Software, (ii) replace or modify the Software
so as to make it noninfringing, with similar functionality, or (iii) discontinue
the license granted herein and refund to Client the license fees paid hereunder.
The foregoing states the entire liability of Medic with respect to infringement
of any copyrights or patents by the Software or any parts thereof. This
indemnity shall not apply to the extent, and solely to the extent, the
infringement is caused in whole or in part by Software changes made by Client or
other non-Medic personnel.
9. Revised Section 12:
Warranty and Disclaimer of Warranties.
(a) Medic represents that for a period of ninety (90) days from the installation
of the Software, the Software will (i) conform, as to all substantial
operational features, to Medic's documentation provided with the Software when
installed and properly used in the operating environment specified in such
documentation and (ii) be free of defects under normal use which adversely
affect system performance. Medic does not represent that the functions contained
in the Software will meet Client's requirements or that the operation of the
Software will be uninterrupted or error free.
(b) The Client must notify Medic in writing, within ninety (90) days from the
date of execution of this Agreement of its claim of any such defect. If the
Software is found defective by Medic in Medic's reasonable judgment, Medic's
sole obligation under this warranty is to remedy such defect
(c) With respect to maintenance services provided, Client agrees that Medic's
obligations under this Agreement are to use commercially reasonable efforts to
diagnose errors or malfunctions in the system, and to advise Client of possible
corrective measures.
(d) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY MEDIC.
MEDIC MAKES AND CLIENT RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND THERE
ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR CLAIMS BROUGHT UNDER PARAGRAPH 11, MEDIC SHALL
HAVE NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL
DAMAGES OR FOR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR
PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR
PERFORMANCE OF THE SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO EVENT SHALL MEDIC BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS
OR DAMAGES IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CLIENT FOR THE SOFTWARE
LICENSE SET FORTH IN THE ATTACHED PURCHASE SCHEDULE.
(e) This warranty shall not apply if modifications to the Software made by
Client are the cause of any operational difficulties experienced. If
difficulties or defects are traceable to Client's errors or systems changes, any
repairs or corrections made by Medic may, at Medic's discretion, be billed at
Medic's then prevailing time and materials charges.
12
(f) Medic warrants that the Medic PM version 7.0.X, dated 12/15/97 or later has
been programmed to be Y2K Compatible (as defined below), in addition IBM
warrants that AIX version 4.3.1 has been programmed to be Y2K Compatible.
Additionally, Client shall be entitled to any warranties which are afforded
Medic through its third party relationships.
Medic has defined "Y2K Compatible" as meaning that Medic applications (i) will
completely and accurately address, present, produce, store and calculate data
involving dates from, into and between the twentieth and twenty-first centuries,
which includes the years 1999 and 2000 and any leap year calculations, and will
not produce abnormally ending or incorrect results involving such dates as used
in any forward or regression date based function; and (ii) will support both two
and four digit years to be displayed where appropriate and will perform
calculations which involve a four digit year field.
10. Revised Section 13:
Cancellation.
If Client fails to pay any amount due hereunder or otherwise commits a
material-breach hereof, and persists in such failure for [*] days after
receiving written notice thereof from Medic, Medic may cancel this Agreement and
declare any unpaid amounts owed hereunder immediately due and payable. Thereupon
Client shall immediately return the Software and related documentation and all
copies thereof to Medic. Cancellation of the license granted hereunder shall be
in addition to and not in lieu of any other remedies available to Medic.
11. Revised Section 14:
Source Code Escrow.
A current version of the Software source code and all necessary documentation
has been put into escrow with the law firm of [*]. Source code is eligible for
release in the event Medic liquidates or shall be declared bankrupt. If Client
receives source code under the above circumstances, such source code shall be
deemed to be Software and subject to the term and conditions herein. The source
code is to be used solely for Client's maintenance of the Software.
12. Revised Section 15:
Hiring of Employees.
During the term of the Agreement and for one year thereafter, neither party
will, without the prior written consent of the other, offer employment to (other
than general employment advertising), employ or subcontract work to any person
employed then or within the preceding twelve months by the other party. If this
provision is violated, the violating party agrees to pay as damages, an amount
equal to one times the annual compensation of the employee or subcontractor to
the other party.
13
13. Revised Section 16(a), 16(d) and 16(h):
General.
(a) To the extent modified by the addendum attached hereto, the terms of this
agreement will take precedence over the terms of any present or future order
from Client for any license or services hereunder. This Agreement is a master
software license and maintenance agreement. It is contemplated that additional
software may be licensed hereunder by supplementing the Purchase Schedule
attached hereto with later dated schedules upon agreement by both parties
hereto. Notwithstanding any revision of the Purchase Schedule, this Agreement
shall continue in full force and effect and shall govern all such later dated
schedules and transactions as if such schedules were part of this Agreement on
the date this Agreement was executed. Client agrees that the installation of
future software from Medic is conclusive evidence of its agreement that the
license for such software provided is governed by the terms of this Agreement.
(d) Each party acknowledges that it has read this Agreement, understands it, and
agrees to be bound by its terms, and further agrees that this Agreement, to the
extent modified by the addendum attached hereto, and the Purchase Schedule
attached hereto is the complete and exclusive statement of the Agreement between
the parties with respect to the license of the Software or otherwise relating
thereto, which supersedes all prior proposals, understandings and all other
agreements, oral and written. This Agreement may not be modified or altered
except by a written instrument duly executed by both parties.
(h) This Agreement shall be binding upon and for the benefit only of the parties
hereto and their respective successors and permitted assigns. Client may assign
this Agreement and any of its rights, duties or obligations hereunder only with
the prior written consent of Medic, such consent shall not be unreasonably
withheld. Transfer of Client's rights and obligations under this Agreement will
require an additional Software license fee paid to Medic unless otherwise
specified.
14
TriZetto Purchase Schedule 5/3/99
S/W DISCOUNTED
ITEM # DESCRIPTION QUANTITY UNIT PRICE PRICE DISCOUNT TOTAL PRICE MAINT S/W MAINT
------ ----------- -------- ---------- ----- -------- ----------- ----- ---------
MEDIC SOFTWARE & SERVICES [*] [*] [*] [*] [*] [*] [*]
900016 BASE SOFTWARE LICENSE (NO USERS)
FOR RS6000
9000x [*]Medic PM User licenses
213501 Cobol Runtime
9301X AutoChart Text-based
90296 Medic Companies *
9332X Autochart Companies
9423TR Train the Trainer (1st Student)
[*]
Reference library of documentation includes the following:
Operator's Manual, Manager's Manual, MEDIC Training Manual,
Instructor's Manual, Hardware Manuals, Operating System Manuals,
Troubleshooting Manuals, Videos of Selected Classes, Training Data
Bases, CBT's, Daily Routines Multimedia CD-ROM (future), and
unlimited observation of a MEDIC Trainer "in action" at a MEDIC
Training Center (if space is available). This highly specialized
training requires that the student has completed basic +Medic PM
training and is familiar with how to use all standard ????
TOTAL DISCOUNTED LICENSING FEES [*]
Discounted Annual S/W Maintenance [*]
Savings from [*] discount [*]
Prices valid for 30 days. Quote based on entire configuration.
Charges for EDI Services are as detailed in the three (3) pages
attached to this Purchase Schedule.
* = See the attached list of Medic Companies.
Medic Computers, Inc Confidential
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
1
15
TriZetto Purchase Schedule 5/3/99
MONTHLY SOFTWARE MAINTENANCE.
The first 90 days of usage are at no charge. Maintenance includes the following:
1. Unlimited Use of Toll-Free support Hotline
2. All future upgrades and updates to the +Medic system
3. All federally or state-mandated insurance revisions
4. Use of Medic's Toll-Free User Bulletin Board
5. Monthly support newsletter (tips & software update news)
6. Access to Medic's user section on our website.
TERMS:
[*] of total payment upon contract signature $[*]
The [*] additional [*] payments of [*] post contract signing until total
investment of $[*] is paid in full. Payments are subject to applicable taxation.
ACCEPTED:
/s/ Xxxxx X. Xxxxxx 5/3/99
------------------------------------- --------------
Authorized Customer Signature Date
/s/ X. X. X'Xxxxx 5/3/99
------------------------------------- --------------
Authorized Medic Computers Date
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
Medic Computers, Inc Confidential
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
2
16
PRACTICE NAME PROVIDERS USERS CPU PRACTICE PHONE # Location
------------- --------- ----- --- ---------------- --------
[*]
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
17
Amid pressures for cost containment, a growing need for more accurate
information as well as improved access to data, healthcare providers and
practice administrators are driving to move to EDI. Today, there is rapid
adoption of EDI in healthcare, as providers nationwide recognize the value of
electronic communications and are anxious to reap the rewards of moving from a
paper-based system to an electronic platform.
Medic's EDI Network Solutions generate tangible savings by:
[CHECK XXXX] Dramatically reducing paperwork and follow-up calls;
[CHECK XXXX] Promoting office efficiency and increasing productivity;
[CHECK XXXX] Lowering administrative expenses and costs for postage and
paper forms;
[CHECK XXXX] Streamlining billing and speeding up payments;
[CHECK XXXX] Automating claim filing, assuring faster reimbursement, and
improving cash flow;
[CHECK XXXX] Minimizing errors;
With Medic's EDI Network Solutions, your practice can be more responsive not
only to patient needs but also to the expectations of employers, insurers and
other payers.
[CHECK XXXX] Verify eligibility for services, benefit information, and plan
enrollment or disenrollment;
[CHECK XXXX] Customize patient communications;
[CHECK XXXX] Document claims and encounters;
[CHECK XXXX] Speed referrals and authorizations;
[CHECK XXXX] Streamline coordination of benefits;
With the passage of the Health Insurance Portability and Accountability Act of
1996 (HIPAA), there will be increased market receptivity for EDI. This
legislation encourages the use of EDI as a means of reducing expense for
administration of healthcare information processing. Medic's EDI Network
Solutions will keep your practice in compliance with the EDI standards of the
American National Standards Institute (ANSI) or transaction standards as defined
by HIPAA. With government and private sectors encouraging providers to make the
move to EDI, Medic's EDI Network Solutions will position your practice for
success.
EDI Network Solutions Deliver a Full Range of Electronic Business Services:
FASTCLAIM(R) - provides faster processing and payment of insurance claims
through electronic filing.
FASTNOTES - provides instant access to information
contained in the FastClaim(R) reports.
FASTELIGIBILITY - offers on-line insurance eligibility and benefit data
verification.
FASTREMIT(TM) - collects insurance explanation of benefits reports
electronically, allowing automatic payment posting to patient accounts.
FASTBILL(R) - eliminates the need for the practice to print and mail billing
statements.
FASTRECEIPT(R) - eliminates the labor-intensive process of posting payments to
patient accounts.
FASTCOLLECT - provides a fast and easy way to send letters directly to patients
with past-due accounts.
FASTREMINDER - reduces the time and money spent by the practice on patient
reminders.
FASTCALL - provides practices with an automated service which places reminder
phone calls to patients concerning appointments.
18
================================================================================
================================================================================
Electronic Claims $[*] Paper Claims $[*]
================================================================================
NOTE: PAPERCLAIMS pricing includes the billing form, outgoing envelopes, and
postage.
================================================================================
================================================================================
NUMBER OF PAGES PER MONTH PRICE PER PAGE
--------------------------------------------------------------------------------
Less Than [*] $[*]
[*] to [*] [*]
[*] to [*] [*]
[*] to [*] [*]
More Than [*] [*]
================================================================================
NOTE: FASTBILL pricing includes billing form, outgoing envelop, return envelope,
and postage. For billing purposes, all transactions of FASTREMINDER,
FASTCOLLECT, and FASTBILL will be combined to give the best volume
discounts possible.
================================================================================
================================================================================
NUMBER OF MAIL RECEIPTS PER MONTH PRICE PER RECEIPT
--------------------------------------------------------------------------------
Less Than [*] $[*]
More Than [*] [*]
--------------------------------------------------------------------------------
NOTE: In addition to the standard receipt fee, MasterCard and Visa transactions
will be processed for 1.95% of the transaction, plus a $0.20 processing
fee.
================================================================================
================================================================================
NUMBER OF MEMOS PER MONTH PRICE PER MEMO
--------------------------------------------------------------------------------
Less Than [*] $[*]
[*] to [*] [*]
[*] to [*] [*]
[*] to [*] [*]
More Than [*] [*]
================================================================================
NOTE: FASTCOLLECT pricing includes the form, outgoing envelope, return envelope,
and postage. For billing purposes, all transactions of FASTREMINDER,
FASTCOLLECT, and FASTBILL will be combined to give the best volume
discounts possible.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
19
================================================================================
================================================================================
NUMBER OF PAGES PER MONTH PRICE PER PAGE
--------------------------------------------------------------------------------
Less Than [*]
[*] to [*] [*]
[*] to [*] [*]
[*] to [*] [*]
More Than [*] [*]
================================================================================
NOTE: FASTREMINDER pricing includes the reminder form, outgoing envelope,
and postage. For billing purposes, all transactions of FASTREMINDER
FASTCOLLECT, and FASTBILL will be combined to give the best volume
discounts possible.
================================================================================
================================================================================
================================================================================
NUMBER OF ELIGIBILITY PER MONTH PRICE PER REQUEST
--------------------------------------------------------------------------------
Less Than [*] [*]
[*] to [*] [*]
More Than [*] [*]
================================================================================
================================================================================
================================================================================
NUMBER OF COMPANIES PRICE PER COMPANY PER
MONTH
--------------------------------------------------------------------------------
[*] [*]
[*] to [*] [*]
More than [*] [*]
--------------------------------------------------------------------------------
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
20
[MEDIC COMPUTER SYSTEMS LOGO]
CLIENT # _____________________
SALESPERSON __________________
SOFTWARE LICENSE AND MAINTENANCE AGREEMENT ADDENDUM # 2
This Software License and Maintenance Agreement Addendum # 2 ("Addendum")
is entered into this _ day of June, 1999, by and between Medic Computer Systems,
Inc. ("Medic") and The TriZetto Group Inc. ("TriZetto"), to supplement and
modify the terms and conditions of the Software License and Maintenance
Agreement ("Agreement") to which this Addendum is attached and incorporated by
reference, as if fully set forth in such Agreement.
WITNESSETH:
WHEREAS, the parties intend to supplement and modify their Agreement by
deleting the parties' Software License and Maintenance Agreement Addendum, dated
May 1, 1999, and replacing it in its entirety with this Addendum.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and as set forth in the parties' Agreement, Medic and TriZetto do hereby agree
as follows:
1. In the event that any of the physician practices originally
licensed under this Agreement fail or cease to use the services of
TriZetto hereunder and become retired practices, then upon the
payment by TriZetto of an additional license fee equal to [*] of
the proportionate fee originally paid under this Agreement for the
same retired practices, then TriZetto shall be entitled to
reallocate those respective licenses, as many times as is
necessary, to any replacement physician practices.
2. TriZetto's terms of payment are outlined as follows:
[*].
3. That TriZetto shall be required to pay Medic Software maintenance
fees in accordance with the attached Purchase Schedule.
[*]
Page 1
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
21
will immediately notify Medic. Upon receipt of the notification of
this termination, Medic will stop charging maintenance fees for
the licenses previously allocated to that clinic. [*]
4. Set forth on Exhibit A hereto are Sections from the Agreement,
which are hereby amended to reflect the changes thereon and,
except as expressly indicated on Exhibit A hereto, all other
Sections of the Agreement shall remain unchanged and in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the
date first written above.
MEDIC COMPUTER SYSTEMS, INC. THE TRIZETTO GROUP
By: /s/ [ILLEGIBLE] By: /s/ Xxxxx X. Xxxxxx 6-24-99
------------------------ ---------------------------
Its: CFO Its: Senior Vice President
----------------------- --------------------------
Page 2
22
EXHIBIT A
REVISED TERMS OF AGREEMENT
1. Revised Section 1:
License.
In accordance with the terms herein, Medic grants to Client, and Client accepts
from Medic, a perpetual, nonexclusive and nontransferable license to use the
software and related documentation described on the Purchase Schedule attached
hereto (the "Software") for the number of users, and Medic companies as set
forth on the Purchase Schedule. All modifications, enhancements and updates to
the Software provided by Medic shall become part of the Software and subject to
the terms and conditions herein.
The Software shall be used only (i) for Client's internal business needs and
(ii) for Client's use on behalf of third parties in connection with Client's
provision of [*] to such third parties on a [*] basis, and shall be installed on
no more than [*] Central Processing Units ("CPUs"); provided that Client may
transfer the Software to different CPUs upon notification to Medic; provided
that Client may be required to pay an additional license fee in the event that
Client installs the Software on more than [*] CPUs, with the amount of such
additional license fee to be determined by Client and Medic after good faith
negotiations. Client shall not permit any third party to use the Software or
grant a sublicense for the use of the Software; or allow access to the licensed
Software through terminals located outside of premises controlled by or operated
by or on behalf of Client or for Customers of Client. [*]
2. Revised Section 2:
Copies.
The license granted herein includes the right to copy the object code only in
non-printed, machine readable form in whole or in part as necessary for Client's
use as contemplated in Section 1 above, including the making of back-up copies.
In order to protect Medic's trade secret and copyrights in the Software, Client
agrees to reproduce and incorporate Medic's trade secret or copyright notice in
any allowed copies, compilations, modifications or partial copies. Client may
obtain additional copies from Medic at prices to be agreed to by Client and
Medic after good faith negotiations. Violation of any provision of this
paragraph shall be the basis for immediate termination of this Agreement.
3. Revised Section 3:
Price and Payment.
23
(b) Client shall maintain hardware equipment on which the Software is installed
in good working order whether under Medic, third party or time and material
maintenance. If hardware is not covered under formal maintenance, Client must
maintain reasonably adequate maintenance logs to document on-going hardware
maintenance and service.
(d) Client shall provide Medic access to the Software via a support modem over a
dedicated, data quality telephone line. Such access shall allow Medic, from time
to time, to conduct an audit of the Software. As reasonably required by Medic,
Client shall provide Medic with sufficient documentation, information,
assistance, support and test time on Client's computer system, to duplicate the
problem, certify that the problem is with the Software, and certify that the
problem has been corrected.
(e) Client shall take all necessary steps to reasonably ensure that no virus is
loaded on the system running the Software from any outside source. Virus
diagnosis and removal services are not covered by Software maintenance and are
billable at the then prevailing rates.
(f) Client shall install all updates within one hundred twenty (120) days of
receipt from Medic thereby maintaining the system on Medic's most recent
release.
6. Revised Section 8(b):
((b) The licenses granted pursuant to section 1 of this Exhibit A are perpetual,
however, as it relates to section 8 of The Master Software and Maintenance
Agreement, the initial term of this Agreement shall be [*]. All charges are
subject to change at any time after the end of the initial [*] term, provided
that Medic shall not increase any charges by more than the percentage increase
in the then current [*]. Thereafter, the term of this Agreement shall be
automatically extended for successive one year periods until terminated by
either party upon prior written notice to the other, which notice shall be given
at least ninety (90) days prior to the end of the applicable term. Maintenance
for any additional options or applications installed shall commence pursuant to
this Agreement upon installation of such software and upon payment of the
applicable maintenance fee shown on the Purchase Schedule, as such Schedule may
be modified in a writing signed by Medic and Client from time to time.
7. Revised Section 9:
Charges for EDI Services and Term.
The charges for EDI services are those identified in the attached Purchase
Schedule. All invoices shall be due and payable in full thirty (30) days from
the date of such invoice. Medic will provide FastServices as outlined in the
attached Purchase Schedule for as long as the Client elects to utilize this
service. Either party may terminate FastServices by giving the other thirty (30)
days written notice prior to termination. Medic reserves the right to terminate
FastServices if an account is over sixty (60) days past due.
FastClaim
24
MEDIC shall not be responsible for any error or omissions in any Claims received
from Client or transmitted to Payers. MEDIC shall not be responsible for any
unauthorized or other improper transmission by or on behalf of any Payee or any
other person and Payers shall be responsible to verify the authenticity of each
Claim.
Record Keeping and Transmission Verification
CLIENT SHALL MAINTAIN A PERMANENT, COMPLETE, AND ACCURATE RECORD OF ALL CLAIMS
TRANSMITTED THROUGH THE MEDIC FASTCLAIM SYSTEM, INCLUDING THE NUMBER OF CLAIMS
PER TRANSMISSION AND THE TOTAL DOLLAR AMOUNT OF EACH TRANSMISSION. ALL SUCH
RECORDS SHALL BE RETAINED AND PRESERVED FOR AT LEAST EIGHTEEN (18) MONTHS FROM
THE DATE OF TRANSMISSION AND SHALL BE SUBJECT TO INSPECTION, COPYING, AND AUDIT
BY MEDIC AT REASONABLE TIMES UPON REASONABLE PRIOR WRITTEN NOTICE. IT IS ALSO
THE RESPONSIBILITY OF CLIENT TO REVIEW EACH TRANSMISSION REPORT SENT TO CLIENT
BY MEDIC AND TO NOTIFY MEDIC OF ANY ERROR, OMISSION, OR OTHER DISCREPANCY
BETWEEN THE REPORT AND THE ACTUAL CLAIMS TRANSMITTED AS SOON AS REASONABLY
PRACTICABLE AFTER RECEIPT OF SUCH REPORT.
FastReceipt
Client agrees to reimburse Medic for any insufficient or returned checks that
appear in the FastReceipt process
FastBill
Client acknowledges that Medic is using the USPS FastForward Move update on
Client's records and Client agrees to comply with the USPS regulations. All
forward results would be utilized for the sole purpose of updating preexisting
addresses.
8. Revised Section 11:
Indemnity.
Medic at its own expense will defend and hold Client harmless from any claim
asserted against Client to the extent that it is based on a claim that any
Software used within the scope of this Agreement infringes any patents,
copyrights, license or other property right of a third party. Client shall
promptly notify Medic in writing of such claim; provided that the failure to
give such prompt notice shall not affect Medic's obligations hereunder except to
the extent, and solely to the extent, Medic is prejudiced thereby. Medic shall
have the right to control the defense of all such claims, lawsuits and other
proceedings. In no event shall Client settle any such claim, lawsuit or
proceeding without Medic's prior written approval. In all events, Client shall
have the right to participate in the defense of any such suit or proceeding
through counsel of its own choosing. If, as a result of any claim of
infringement against any patent, copyright, license or other property right,
Medic or Client is enjoined from using the Software, or if Medic believes that
the Software is likely to become the subject of a claim of infringement, Medic
at its option and expense may (i) procure the right
25
for Client to continue to use the Software, (ii) replace or modify the Software
so as to make it noninfringing, with similar functionality, or (iii) discontinue
the license granted herein and refund to Client the license fees paid hereunder.
The foregoing states the entire liability of Medic with respect to infringement
of any copyrights or patents by the Software or any parts thereof. This
indemnity shall not apply to the extent, and solely to the extent, the
infringement is caused in whole or in part by Software changes made by Client or
other non-Medic personnel.
9. Revised Section 12:
Warranty and Disclaimer of Warranties.
(a) Medic represents that for a period of ninety (90) days from the installation
of the Software, the Software will (i) conform, as to all substantial
operational features, to Medic's documentation provided with the Software when
installed and properly used in the operating environment specified in such
documentation and (ii) be free of defects under normal use which adversely
affect system performance. Medic does not represent that the functions contained
in the Software will meet Client's requirements or that the operation of the
Software will be uninterrupted or error free.
(b) The Client must notify Medic in writing, within ninety (90) days from the
date of execution of this Agreement of its claim of any such defect. If the
Software is found defective by Medic in Medic's reasonable judgment, Medic's
sole obligation under this warranty is to remedy such defect
(c) With respect to maintenance services provided, Client agrees that Medic's
obligations under this Agreement are to use commercially reasonable efforts to
diagnose errors or malfunctions in the system, and to advise Client of possible
corrective measures.
(d) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY MEDIC.
MEDIC MAKES AND CLIENT RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND THERE
ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR CLAIMS BROUGHT UNDER PARAGRAPH 11, MEDIC SHALL
HAVE NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL
DAMAGES OR FOR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR
PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR
PERFORMANCE OF THE SOFTWARE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO EVENT SHALL MEDIC BE LIABLE IN THE AGGREGATE FOR ANY CLAIMS
OR DAMAGES IN AN AMOUNT EXCEEDING THE AMOUNT PAID BY CLIENT FOR THE SOFTWARE
LICENSE SET FORTH IN THE ATTACHED PURCHASE SCHEDULE.
(e) This warranty shall not apply if modifications to the Software made by
Client are the cause of any operational difficulties experienced. If
difficulties or defects are traceable to Client's errors or systems changes, any
repairs or corrections made by Medic may, at Medic's discretion, be billed at
Medic's then prevailing time and materials charges.
26
(f) Medic warrants that the Medic PM version 7.0.X, dated 12/15/97 or later has
been programmed to be Y2K Compatible (as defined below), in addition IBM
warrants that AIX version 4.3.1 has been programmed to be Y2K Compatible.
Additionally, Client shall be entitled to any warranties which are afforded
Medic through its third party relationships.
Medic has defined "Y2K Compatible" as meaning that Medic applications (i) will
completely and accurately address, present, produce, store and calculate data
involving dates from, into and between the twentieth and twenty-first centuries,
which includes the years 1999 and 2000 and any leap year calculations, and will
not produce abnormally ending or incorrect results involving such dates as used
in any forward or regression date based function; and (ii) will support both two
and four digit years to be displayed where appropriate and will perform
calculations which involve a four digit year field.
10. Revised Section 13:
Cancellation.
If Client fails to pay any amount due hereunder or otherwise commits a
material breach hereof, and persists in such failure for [*] days after
receiving written notice thereof from Medic, Medic may cancel this Agreement and
declare any unpaid amounts owed hereunder immediately due and payable. Thereupon
Client shall immediately return the Software and related documentation and all
copies thereof to Medic. Cancellation of the license granted hereunder shall be
in addition to and not in lieu of any other remedies available to Medic.
11. Revised Section 14:
Source Code Escrow.
A current version of the Software source code and all necessary
documentation has been put into escrow with the law firm of [*]. Source code is
eligible for release in the event Medic liquidates or shall be declared
bankrupt. If Client receives source code under the above circumstances, such
source code shall be deemed to be Software and subject to the term and
conditions herein. The source code is to be used solely for Client's maintenance
of the Software.
12. Revised Section 15:
Hiring of Employees.
During the term of the Agreement and for one year thereafter, neither party
will, without the prior written consent of the other, offer employment to (other
than general employment advertising), employ or subcontract work to any person
employed then or within the preceding twelve months by the other party. If this
provision is violated, the violating party agrees to pay as damages, an amount
equal to one times the annual compensation of the employee or subcontractor to
the other party.
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13. Revised Section 16(a), 16(d) and 16(h):
General.
(a) To the extent modified by the addendum attached hereto, the terms of this
agreement will take precedence over the terms of any present or future order
from Client for any license or services hereunder. This Agreement is a master
software license and maintenance agreement. It is contemplated that additional
software may be licensed hereunder by supplementing the Purchase Schedule
attached hereto with later dated schedules upon agreement by both parties
hereto. Notwithstanding any revision of the Purchase Schedule, this Agreement
shall continue in full force and effect and shall govern all such later dated
schedules and transactions as if such schedules were part of this Agreement on
the date this Agreement was executed. Client agrees that the installation of
future software from Medic is conclusive evidence of its agreement that the
license for such software provided is governed by the terms of this Agreement.
(d) Each party acknowledges that it has read this Agreement, understands it, and
agrees to be bound by its terms, and further agrees that this Agreement, to the
extent modified by the addendum attached hereto, and the Purchase Schedule
attached hereto is the complete and exclusive statement of the Agreement between
the parties with respect to the license of the Software or otherwise relating
thereto, which supersedes all prior proposals, understandings and all other
agreements, oral and written. This Agreement may not be modified or altered
except by a written instrument duly executed by both parties.
(h) This Agreement shall be binding upon and for the benefit only of the parties
hereto and their respective successors and permitted assigns. Client may assign
this Agreement and any of its rights, duties or obligations hereunder only with
the prior written consent of Medic, such consent shall not be unreasonably
withheld. Transfer of Client's rights and obligations under this Agreement will
require an additional Software license fee paid to Medic unless otherwise
specified.
