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DEVELOPMENT SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is entered into
as of February 24, 2000 by and between ▇▇▇▇▇.▇▇▇, a Delaware corporation with
offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ("▇▇▇▇▇.▇▇▇"),
and Texas Managed Care Administrative Services on behalf of MethodistCare
Inc., with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Client").
This Agreement covers the purchase and license of consulting,
development and other services from ▇▇▇▇▇.▇▇▇, pursuant to orders placed by
Client and accepted by ▇▇▇▇▇.▇▇▇ after the Effective Date.
This Agreement includes the following attachments, which are
incorporated herein by this reference:
Schedule 1 ▇▇▇▇▇.▇▇▇ Development Services
Schedule 2 Contract Fee Structure and Agreements
Any notice required or permitted under this Agreement will be in
writing and delivered to the address set forth below, or to such other notice
address as the other party has provided by written notice.
THIS AGREEMENT, INCLUDING THE ATTACHMENTS LISTED ABOVE, CONSTITUTES THE
COMPLETE AND) EXCLUSIVE UNDERSTANDING OF THE PARTIES WITH REFERENCE TO THE
SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS,
AGREEMENTS AND) OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR
WRITTEN. IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF CLIENT'S
PURCHASE ORDER (OR ANY OTHER PURCHASE OR SALES DOCUMENT) AND THE TERMS AND
CONDITIONS OF THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL. THIS AGREEMENT MAY
BE MODIFIED, REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY
AUTHORIZED REPRESENTATIVE OF EACH PARTY.
AGREED:
▇▇▇▇▇.▇▇▇
Client: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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President & CEO
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ By:
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(Authorized Signature) (Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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(Printed Name and Title) (Printed Name and Title)
Sr. VP Finance & CFO
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ATTACHMENT 1
▇▇▇▇▇.▇▇▇ DEVELOPMENT SERVICES
1. DEFINITIONS
1.1. "Content" shall mean marketing collateral, data, text, audio
files, video files, graphics and other materials provided by Client or developed
hereunder for use with the Client Web Site, but excluding the ▇▇▇▇▇.▇▇▇
Software.
1.2. "Development Services" shall mean design, development, and set-up
services as necessary to modify existing ▇▇▇▇▇.▇▇▇ technology, trade secrets and
know-how to produce the ▇▇▇▇▇.▇▇▇ Software and other elements of the Client Web
Site, and/or any other consulting services rendered hereunder as identified in
the appropriate schedules ("Schedule(s)") attached hereto.
1.3. "▇▇▇▇▇.▇▇▇ Software" shall mean all computer program code and
other results and proceeds of ▇▇▇▇▇.▇▇▇'s services hereunder (other than
Content) that are delivered by ▇▇▇▇▇.▇▇▇ to Client pursuant to this Agreement.
Such ▇▇▇▇▇.▇▇▇ Software shall be provided in object code form unless the parties
mutually agree in writing to delivery of source code.
1.4. "Client Web Site(s)" shall mean the so-called "web page" site or
sites on the World Wide Web, for the public Internet or for corporate intranets
or extranets, to be developed or serviced by ▇▇▇▇▇.▇▇▇ hereunder, as identified
in the appropriate Schedule(s).
2. SERVICES
2.1. Development Services. ▇▇▇▇▇.▇▇▇ shall render Development Services
in accordance with the requirements set forth in Schedules attached hereto. Each
Schedule for new services shall be successively numbered (e.g., 1, 2, etc.).
Each schedule shall be executed by the parties and shall be subject to the terms
and conditions of this Agreement. ▇▇▇▇▇.▇▇▇ shall provide qualified and trained
personnel to render such services and shall use reasonable commercial efforts to
meet the delivery schedule set forth in the applicable Schedules. Any additions,
deletions or other changes to a Schedule shall be mutually agreed to in writing
in advance by both parties and shall be memorialized in a revised Schedule
pursuant to the procedure set forth in Section 2.6 below for Change Orders. All
services shall be performed at ▇▇▇▇▇.▇▇▇'s offices unless otherwise agreed by
the parties. In the event that services are performed at Client's location,
Client shall provide ▇▇▇▇▇.▇▇▇ at no charge with all necessary facilities and
equipment, including without limitation, computer time on Client's computers and
office space, sufficient to render the services contemplated hereunder. Client
shall deliver to ▇▇▇▇▇.▇▇▇ all Content selected by Client for incorporation into
any Client Web Site in digitized format in accordance with the delivery schedule
set forth in the applicable Schedule(s). In the event that Client fails to
deliver the Content in accordance with the delivery schedule, the development
schedule shall be extended by the number of days that delivery of the Content
was delayed, unless ▇▇▇▇▇.▇▇▇ notifies Client that this extension will not
rectify ▇▇▇▇▇.▇▇▇'s scheduling interruption resulting from Client's delay in
which case the parties shall mutually agree upon a new delivery schedule and
fees with respect to the rendition of the Development Services.
2.2. Acceptance of Deliverables. Within fifteen (15) business days
after the delivery to Client of any deliverable pursuant to any Schedule, Client
shall provide ▇▇▇▇▇.▇▇▇ with written notice of any failure of any deliverable to
materially conform to the functional specifications set forth in the applicable
Schedule.
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▇▇▇▇▇.▇▇▇ and Client shall review the objections, and ▇▇▇▇▇.▇▇▇ will use
commercially reasonable efforts to correct any material non-conformity with the
functional specifications and provide Client with a revised deliverable within
fifteen (15) business days. Client shall have deemed to have accepted the
deliverable if ▇▇▇▇▇.▇▇▇ does not receive written notice of Client's objections
within said fifteen (15) business day period.
2.3. Domain Name Registration Services. If domain name registration
services are included in the Schedule, ▇▇▇▇▇.▇▇▇ shall use commercially
reasonable efforts to assist Client in registering an Internet domain name
selected by Client. Client will be solely responsible for all out-of-pocket
costs and all legal clearances regarding name selection and registration.
2.4. Maintenance Services. If Client desires to purchase maintenance
services from ▇▇▇▇▇.▇▇▇ for the Client Web Site, the parties shall execute the
then current ▇▇▇▇▇.▇▇▇ Maintenance Services Agreement and ▇▇▇▇▇.▇▇▇ shall render
maintenance services pursuant to the terms and conditions of such agreement.
2.5. Hosting Services. If Client desires to purchase hosting services
from ▇▇▇▇▇.▇▇▇ for the Client Web Site, the parties shall execute the then
current ▇▇▇▇▇.▇▇▇ Hosting Services Agreement, and ▇▇▇▇▇.▇▇▇ shall render hosting
services pursuant to the terms and conditions of such agreement.
2.6. Change Orders. If Client desires to make changes to an existing
Schedule, the parties shall mutually agree upon an additional or revised
Schedule for each new Change Order. Each such Schedule shall be successively
numbered (e.g., 1.A, 1.B, etc.) and shall be executed by the parties. Any
revised Schedule(s) shall be subject to the terms and conditions of this
Agreement. Further, Xcare and Client agree to allow reasonable, non-material
modifications to the contract if both Xcare and Client agree to such change.
3. OWNERSHIP AND LICENSE RIGHTS
3.1. Property Rights and Ownership. The Client Web Site(s) and all
other results and proceeds of ▇▇▇▇▇.▇▇▇'s services hereunder, shall consist of,
and shall operate in conjunction with, multiple elements of intellectual
property, including without limitation the ▇▇▇▇▇.▇▇▇ Software and the Client
Content. The parties' respective rights to such elements shall be as set forth
below. For purposes of this Agreement, the term "ownership" shall refer to
ownership of all intellectual property rights including, but not limited to, all
patent, copyright, trade secret and trademark rights, as applicable, with
respect to the subject intellectual property.
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Intellectual Property Elements Ownership/Rights
------------------------------------------------------- --------------------------------------------------------
Client Content, including all Client Content that is Client has sole ownership.
modified by ▇▇▇▇▇.▇▇▇ ("Modified Content") and HTML
files that contain Client Content, and modifications
to Content as a result of Client's usage of
self-authoring tools.
Content created for Client by ▇▇▇▇▇.▇▇▇ and accepted Client has sole ownership.
and paid for by Client, as well as commissioned Content
authored by third parties specifically for use in
connection with this Agreement and paid for by Client
(e.g., original illustrations or graphics).
Domain name for Client Web Site. Client has sole ownership.
Server usage report data/statistics generated by the Client has sole ownership of data/statistics, and
▇▇▇▇▇.▇▇▇ Software in form and substance as set forth ▇▇▇▇▇.▇▇▇ has a license pursuant to Section 3.3 below.
in the applicable Schedule or as mutually agreed by
the parties.
Commercially available third-party software which is Third parties have ownership, and Client shall be
incorporated into the ▇▇▇▇▇.▇▇▇ Software. informed of all third-party software that Client may
need to license at Client's own expense.
▇▇▇▇▇.▇▇▇ Software developed by or for ▇▇▇▇▇.▇▇▇ in ▇▇▇▇▇.▇▇▇ has sole ownership of such ▇▇▇▇▇.▇▇▇
connection with this Agreement for Client. Software. Client shall be granted a license to use the
▇▇▇▇▇.▇▇▇ Software as set forth in Section 3.2.
▇▇▇▇▇.▇▇▇ supplied material developed generally to ▇▇▇▇▇.▇▇▇ has sole ownership of such developed
support ▇▇▇▇▇.▇▇▇ products and/or service offerings material. Client shall be granted a license to use the
(e.g. http configuration). ▇▇▇▇▇.▇▇▇ Software as set forth in Section 3.2 below.
3.2. License to Client. ▇▇▇▇▇.▇▇▇ grants Client a non-exclusive,
non-transferable license to use the ▇▇▇▇▇.▇▇▇ Software on a single computer
system in object code version only to operate and display the Client Web Site in
order for end users to access the Client Web Site. If the ▇▇▇▇▇.▇▇▇ Software is
not developed for use on a Client Web Site, then the foregoing license shall
constitute a non-exclusive, non-transferable license to use the ▇▇▇▇▇.▇▇▇
Software on a single computer system in object code version only for Client's
internal business needs. Client may transfer the ▇▇▇▇▇.▇▇▇ Software to a
different computer system so long as the ▇▇▇▇▇.▇▇▇ Software is not retained on
the prior computer system on which it was initially installed other than as a
permitted backup copy. Client may grant a sublicense to a third party that
Client engages to host the Client Web Site; provided, that such third party
agrees in writing to be bound by the license and confidentiality restrictions
set forth in this Agreement. Client is prohibited from duplicating and/or
distributing any ▇▇▇▇▇.▇▇▇ Software without the prior written consent of
▇▇▇▇▇.▇▇▇; provided, however that Client may copy the ▇▇▇▇▇.▇▇▇ Software only as
needed for reasonable ordinary backup or disaster recovery procedures. Client
may use the backup copies only if the installed copy is lost or destroyed or the
hardware on which the installed copy is installed becomes inoperable, provided
that the use of said backup
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copies is discontinued immediately when the original hardware becomes operable.
3.3. License to ▇▇▇▇▇.▇▇▇. Client grants ▇▇▇▇▇.▇▇▇ a non-exclusive
license (i) to use, copy, and modify the Content in connection with ▇▇▇▇▇.▇▇▇'s
performance of the Development Services, (ii) to use, copy, modify, distribute
and display server usage data and statistics generated by the ▇▇▇▇▇.▇▇▇
Software. This non-exclusive license will be subject to applicable Federal and
State healthcare information privacy laws and regulations.
3.4. Supporting Documents. Each party agrees to execute any additional
documents deemed reasonably necessary to effect and evidence the other party's
rights with respect to the intellectual property elements set forth above.
3.5. No Reverse Engineering. All rights not expressly granted hereunder
are reserved by ▇▇▇▇▇.▇▇▇. Without limiting the foregoing, Client may not
reverse engineer, reverse assemble, decompile or otherwise attempt to derive the
source code from the ▇▇▇▇▇.▇▇▇ Software.
3.6. Proprietary Notices. All copies of the ▇▇▇▇▇.▇▇▇ Software and
other ▇▇▇▇▇.▇▇▇ supplied materials used by Client shall contain copyright and
other proprietary notices in the same manner in which ▇▇▇▇▇.▇▇▇ incorporates
such notices in the ▇▇▇▇▇.▇▇▇ Software or in any other manner requested by
▇▇▇▇▇.▇▇▇. Client agrees not to remove, obscure or obliterate any copyright
notice, trademark or other proprietary rights notices placed by ▇▇▇▇▇.▇▇▇ on or
in the ▇▇▇▇▇.▇▇▇ Software.
4. PAYMENT
4.1. Development Services. In consideration for the performance of the
Development Services, Client shall pay to ▇▇▇▇▇.▇▇▇ the amounts set forth in the
applicable Schedule, on the payment dates set forth in such Schedule. In the
event that ▇▇▇▇▇.▇▇▇ renders services at Client's location, Client shall pay the
mutually agreed upon reasonable travel, living and related expenses for
▇▇▇▇▇.▇▇▇ personnel rendering services at Client's location. All services
hereunder shall be rendered on a per-project basis; provided, however, that in
the event that the parties agree that any services hereunder will be rendered on
a time and materials basis, all work will be billed at ▇▇▇▇▇.▇▇▇'s standard
hourly rates, which may be revised from time to time by ▇▇▇▇▇.▇▇▇, in its sole
discretion, upon written notice to Client. For time and materials billing,
amounts set forth in the applicable Schedule represent an estimate of the hours
required to complete the work outlined in such Schedule; in the event that
actual hours incurred to complete the work exceed those included in the
estimate, ▇▇▇▇▇.▇▇▇ will notify Client, and additional hours will be billed at
▇▇▇▇▇.▇▇▇'s standard hourly rates.
4.2. Maintenance Services. If the parties have entered into a ▇▇▇▇▇.▇▇▇
Maintenance Services Agreement, Client shall pay ▇▇▇▇▇.▇▇▇ the amounts set forth
in said Maintenance Services Agreement.
4.3. Hosting Services. If the parties have entered into a ▇▇▇▇▇.▇▇▇
Hosting Services Agreement, Client shall pay ▇▇▇▇▇.▇▇▇ the amounts set forth in
said Hosting Services Agreement.
4.4. Taxes. In addition to the fees due as specified above, Client
shall pay any and all federal, state and local sales, use, value added, excise,
duty and any other taxes of any nature assessed upon or with respect to the
license granted hereunder, arising from this Agreement, except that taxes on
▇▇▇▇▇.▇▇▇'s income shall be the sole responsibility of ▇▇▇▇▇.▇▇▇.
4.5. Payments. All payments made pursuant to this Agreement shall be
made in U.S. Dollars and are due thirty (30) days from the date of receipt. Late
payments shall bear interest at one and one-half percent
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(1.5%) per month or the maximum rate permitted by law, whichever is less.
5. LIMITED WARRANTY
5.1. Software Warranty. Subject to the limitations set forth in this
Agreement, ▇▇▇▇▇.▇▇▇ warrants only to Client that the ▇▇▇▇▇.▇▇▇ Software
furnished hereunder when properly installed, properly used and unmodified by
Client, will conform to the functional specifications set forth in the
applicable Schedule. ▇▇▇▇▇.▇▇▇'s warranty shall extend for a period of one
hundred eighty (180) days from the date that the final deliverables specified in
each Schedule are delivered to Client ("Warranty Period"). ▇▇▇▇▇.▇▇▇'s sole
responsibility under this Section 5.1 shall be to use reasonable commercial
efforts to promptly correct material errors, or at ▇▇▇▇▇.▇▇▇'s option, to refund
Client's fees paid for the ▇▇▇▇▇.▇▇▇ Software after deinstallation and return
thereof. All warranty claims not made in writing or not received by ▇▇▇▇▇.▇▇▇
within the Warranty Period shall be deemed waived. ▇▇▇▇▇.▇▇▇'s warranty
obligations are solely for the benefit of Client, who has no authority to extend
or transfer this warranty to any other person or entity.
5.2. ▇▇▇▇▇.▇▇▇ DOES NOT WARRANT THAT THE USE OF THE ▇▇▇▇▇.▇▇▇ SOFTWARE
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET
CLIENT'S REQUIREMENTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, ▇▇▇▇▇.▇▇▇
DOES NOT MAKE ANY WARRANTY AS TO THE ▇▇▇▇▇.▇▇▇ SOFTWARE OR THE SERVICES PROVIDED
HEREUNDER OR THE RESULTS TO BE OBTAINED FROM USE OF THE ▇▇▇▇▇.▇▇▇ SOFTWARE.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE ▇▇▇▇▇.▇▇▇ SOFTWARE IS
USED AND THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE
INTERNET OR USE OF INFORMATION IN CONNECTION WITH THE SOFTWARE.
6. INTELLECTUAL PROPERTY INDEMNIFICATION
6.1. ▇▇▇▇▇.▇▇▇.
6.1.1. Indemnification. ▇▇▇▇▇.▇▇▇, at its own cost and
expense, shall defend Client and its officers and directors, against a claim
that the ▇▇▇▇▇.▇▇▇ Software infringes a third-party United States copyright or
trade secret, and shall pay any settlements entered into or damages awarded
against Client, or its officers and directors, to the extent related to such
claim, provided that (i) Client notifies ▇▇▇▇▇.▇▇▇ promptly in writing of the
claim; (ii) ▇▇▇▇▇.▇▇▇ has the sole control of the defense and all related
settlement negotiations; and (iii) Client provides ▇▇▇▇▇.▇▇▇ with all reasonably
necessary assistance, information, and authority to perform the foregoing at
▇▇▇▇▇.▇▇▇'s expense.
6.1.2. ▇▇▇▇▇.▇▇▇ shall have no liability for any claim of
infringement based on (i) use by Client of other than the current update of the
▇▇▇▇▇.▇▇▇ Software if the infringement would have been avoided by uses of the
current update, assuming Client is notified of such current update; (ii)
modifications, adaptations or changes to the ▇▇▇▇▇.▇▇▇ Software not made by
▇▇▇▇▇.▇▇▇; (iii) the combination or use of the materials furnished hereunder
with materials not furnished by ▇▇▇▇▇.▇▇▇ if such infringement would have been
avoided by use of the ▇▇▇▇▇.▇▇▇ materials alone; or (iv) use or incorporation of
Client Content or Client Modified Content. In the event the ▇▇▇▇▇.▇▇▇ Software
is held to, or ▇▇▇▇▇.▇▇▇ believes is likely to be held to, infringe the
intellectual property rights of a third party, ▇▇▇▇▇.▇▇▇ shall have the right at
its sole option and expense to (i) substitute or modify the ▇▇▇▇▇.▇▇▇ Software
so that it is non-infringing and qualitatively and functionally equivalent to
the ▇▇▇▇▇.▇▇▇ Software; (ii) obtain for Client a license to continue using the
▇▇▇▇▇.▇▇▇ Software; or if neither (i) nor (ii) is commercially reasonable,
▇▇▇▇▇.▇▇▇ shall have the right to
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terminate this Agreement immediately upon written notice to Client, and
▇▇▇▇▇.▇▇▇ shall make payment to Client of an amount equal to the fees paid for
the ▇▇▇▇▇.▇▇▇ Software, pro-rated over a three (3) year period commencing on the
Effective Date. This Section 6.1 sets forth Client's sole and exclusive remedy
and ▇▇▇▇▇.▇▇▇'s sole liability for intellectual property infringement by
▇▇▇▇▇.▇▇▇.
6.2. Client.
6.2.1. Client hereby represents and warrants to ▇▇▇▇▇.▇▇▇ that
(i) Client has secured all necessary consents, permissions, clearances,
authorizations and waivers for the use of Content or Modified Content, including
without limitation, all text, pictures, audio, video, logos and copy contained
in all Content or Modified Content; (ii) the use of Content as contemplated
herein shall not infringe the copyright, trademark or other intellectual
property rights of any party, or constitute defamation, invasion of privacy, or
the violation of any right of publicity or any other right of any party; and
(iii) Client has complied and shall comply with all legislation, rules and
regulations regarding Content.
6.2.2. Client shall indemnify and hold harmless ▇▇▇▇▇.▇▇▇, its
directors, officers, parent company, and affiliates, from any and all liability,
costs and expenses (including attorney's fees) arising in connection with any
third party claim or action brought against ▇▇▇▇▇.▇▇▇, or any of its directors,
officers, parent company, and affiliates, relating to Client Content or Client
Modified Content, provided (i) ▇▇▇▇▇.▇▇▇ notifies Client promptly in writing of
such claim, (ii) Client has the sole control of the defense and all related
settlement negotiations, and (iii) ▇▇▇▇▇.▇▇▇ provides Client with all reasonably
necessary assistance, information and authority to perform the foregoing at
Client's expense.
7. LIMITATIONS ON LIABILITY
THE MAXIMUM LIABILITY OF ▇▇▇▇▇.▇▇▇ OR CLIENT, ITS DIRECTORS, OFFICERS,
PARENT COMPANY, AND, AFFILIATES, TO ▇▇▇▇▇.▇▇▇ OR CLIENT FOR DAMAGES RELATING TO
▇▇▇▇▇.▇▇▇'S FAILURE TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO AN AMOUNT
EQUAL TO THE TOTAL FEES PAID BY CLIENT TO ▇▇▇▇▇.▇▇▇ WITH RESPECT TO SUCH
SERVICES. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY OF ▇▇▇▇▇.▇▇▇ OR
CLIENT, ITS DIRECTORS, OFFICERS, PARENT COMPANY, AND AFFILIATES, TO CLIENT FOR
DAMAGES FOR ANY AND ALL OTHER CAUSES WHATSOEVER, AND CLIENT OR ▇▇▇▇▇.▇▇▇'S
MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR
OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT
TO ▇▇▇▇▇.▇▇▇ HEREUNDER. IN NO EVENT SHALL ▇▇▇▇▇.▇▇▇ OR CLIENT, ITS DIRECTORS,
OFFICERS, PARENT COMPANY, AND AFFILIATES, LICENSORS, AND SUPPLIERS, BE LIABLE
FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES
ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER,
EVEN IF ▇▇▇▇▇.▇▇▇ OR CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. TERM AND TERMINATION
8.1. Term. Subject to this Section 8, the term of this Agreement shall
commence on the Effective Date and continue until terminated by either party
pursuant to Section 8.2 or 8.3 below or as stated in Schedule 2.
8.2. Termination for Cause. This Agreement may be terminated by either
party in the event of
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(i) any material default in, or material breach of, any of the terms and
conditions of this Agreement by the other party, which default continues in
effect after the defaulting party has been provided with written notice of
default and thirty (30) days to cure such default; (ii) the commencement of a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to either party of its debts under any bankruptcy,
insolvency, or other similar law now or hereafter in effect, that authorizes the
reorganization or liquidation of such party or its debt or the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property; (iii) either party's consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it; or (iv) either
party's making a general assignment for the benefit of creditors; or either
party's becoming insolvent; or either party taking any corporate action to
authorize any of the foregoing.
8.3. Termination for Convenience. This Agreement may be terminated by
either party upon ninety (90) days' advance written notice.
8.4. Effect of Termination. If this Agreement is terminated by
▇▇▇▇▇.▇▇▇ under Section 8.2, while ▇▇▇▇▇.▇▇▇ is performing any Development
Services for Client hereunder, Client shall immediately pay ▇▇▇▇▇.▇▇▇ all
amounts due and owing for any transaction use or projects already completed by
▇▇▇▇▇.▇▇▇ hereunder or for any third-party products or services purchased by
▇▇▇▇▇.▇▇▇ in Client's behalf. If the Agreement is terminated under Section 8.3
while ▇▇▇▇▇.▇▇▇ is performing any Development Services or other services for
Client hereunder, Client shall pay ▇▇▇▇▇.▇▇▇ all fees due and owing up to the
effective date of such termination, not to exceed the monthly minimum payment
for services performed to that date. The foregoing shall be without limitation
to ▇▇▇▇▇.▇▇▇'s rights and remedies under this Agreement.
8.5. Survival. Sections 3, 5, 7, 8, 9 and 10 shall survive any
termination or expiration of this Agreement; provided, however, that if this
Agreement is terminated by ▇▇▇▇▇.▇▇▇ pursuant to Section 8.2 above, then Section
3.2 shall not survive.
9. CONFIDENTIALITY
9.1. Confidential Information. Each party acknowledges that, in
connection with the performance of this Agreement, it may receive certain
confidential or proprietary technical and business information and materials of
the other party ("Confidential Information"). Such Confidential Information may
be subject to applicable Federal and State healthcare information privacy laws
and regulations.
9.2. Confidentiality. Each party hereby agrees: (i) to hold and
maintain in strict confidence all Confidential Information of the other party
and not to disclose it to any third party, except as allowed by law; and (ii)
not to use any Confidential Information of the other party except as permitted
by this Agreement or as may be necessary to perform its obligations under this
Agreement. Each party will use at least the same degree of care to protect the
other party's Confidential Information as it uses to protect its own
Confidential Information of like importance, and in no event shall such degree
of care be less than reasonable care; and (iii) adhere to applicable Federal and
State healthcare information privacy laws and regulations.
9.3. Exceptions. Notwithstanding the foregoing, the parties agree that
Confidential Information will not include any information that: (i) is or
becomes generally known or is or becomes part of the public domain through no
fault of the other party, (ii) the first party authorizes to be disclosed; (iii)
is rightfully received by the other party from a third party without restriction
on disclosure and without breach of this Agreement; or (iv) is known to the
other party on the Effective Date from a source other than the first party, and
not subject to a confidentiality obligation.
9.4. Injunctive Relief. Each party acknowledges that any breach of the
provisions of this
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Section 9 may cause irreparable harm and significant injury to an extent that
may be extremely difficult to ascertain. Accordingly, each party agrees that the
other party will have, in addition to any other rights or remedies available to
it at law or in equity, the right to seek injunctive relief to enjoin any breach
or violation of this Section 9.
10. GENERAL PROVISIONS
10.1. Force Majeure. In the event that either party is unable to
perform any of its obligations under this Agreement or to enjoy any of its
benefits because of any event beyond the control of the affected party
including, but not limited to, natural disaster, acts of God, actions or decrees
of governmental bodies or failure of communication lines (a "Force Majeure
Event"), the party who has been so affected shall promptly give written notice
to the other party and shall use its best efforts to resume performance. Upon
receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
10.2. Notice. All notices, demands, requests or other communications
required or permitted under this Agreement will be deemed given when (i)
delivered personally; (ii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iii) one (1) day
after deposit with a commercial overnight carrier, with written verification of
receipt.
10.3. Waiver. Waiver of any breach or failure to enforce any term of
this Agreement shall not be deemed a waiver of any breach or right to enforce
which may thereafter occur. No waiver shall be valid against any party hereto
unless made in writing and signed by the party against whom enforcement of such
waiver is sought and then only to the extent expressly specified therein.
10.4. Severability. In the event any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired
and the parties will substitute a new enforceable provision of like economic
intent and effect.
10.5. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto, shall be governed by and
construed in accordance with the laws of the State of [Colorado] without
reference to conflict of law principles.
10.6. Assignment. Neither party shall have the right to assign this
Agreement without the prior written consent of the other party; provided, that
either party shall have the right to assign this Agreement to any person or
entity that acquires or succeeds to all or substantially all of such party's
business or assets upon written notice to the other party.
10.7. Publicity. Within a time frame mutually agreed upon by the
parties, the parties shall mutually agree on a joint press release announcing
the existence of this Agreement. Neither party will use the other party's name,
domain name, logo, trademark or service ▇▇▇▇ in advertising or publicity without
obtaining the other party's prior written consent; provided, however, that
▇▇▇▇▇.▇▇▇ shall have the nonexclusive right and license to use Client's name and
Client Web Site name, including the URL (Uniform Resource Locator) thereto, as a
Client reference, and as part of ▇▇▇▇▇.▇▇▇'s client portfolio. ▇▇▇▇▇.▇▇▇ shall
also have the right to display its name and logo, as well as a link to the
▇▇▇▇▇.▇▇▇ site, on the Client Web Site(s), and to receive credit as the
developer of the Client Web Site(s), (collectively, the "Credit"). Such Credit
shall appear on the "home page" of the Client Web Site(s), if the "home page" is
redesigned or on those pages designed or significantly changed by ▇▇▇▇▇.▇▇▇ in a
position that provides reasonable and appropriate visibility to ▇▇▇▇▇.▇▇▇ in
light of industry standards and Client's requirements.
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10.8. Additional Actions and Documents. Each of the parties hereto
hereby agrees to take or cause to be taken such further actions, to execute,
deliver and file or cause to be executed, delivered and filed such further
documents, and will obtain such consents, as may be necessary or as may be
reasonably requested in order to fully effectuate the purposes, terms and
conditions of this Agreement.
10.9. Headings. Section headings contained in this Agreement are
inserted for convenience or reference only, shall not be deemed to be a part of
this Agreement for any other purpose, and shall not in any way define or affect
the meaning, construction or scope of any of the provisions hereof.
10.10. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and all
of which, when taken together, shall constitute one and the same instrument.
10.11. Independent Contractors. The relationship of the parties
hereunder shall be that of independent contractors. Nothing herein shall be
construed to constitute a partnership between or joint venture of the parties,
nor shall either party be deemed the agent of the other or have the right to
bind the other in any way without the prior written consent of the other.
10.12. Jurisdiction. All disputes arising out of or relating to this
Agreement shall be submitted to the non-exclusive jurisdiction of the state and
federal courts encompassing Houston, Texas, and each party irrevocably consents
to such personal jurisdiction and waives all objections thereto.
10.13. Regulatory Compliance. Regulatory Compliance. ▇▇▇▇▇.▇▇▇
acknowledges Client is a regulated entity that must comply with various state
and federal laws, regulations and directives that could potentially impact this
agreement. ▇▇▇▇▇.▇▇▇ agrees to fully cooperate with Client in complying with all
state and federal laws, regulations and directives including but not limited to:
HIPAA electronic privacy standards, access of regulators to information,
marketing and advertising guidelines, obtaining necessary regulatory approval
and proper retention of records.
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SCHEDULE 1
This Schedule describes Services to be provided by ▇▇▇▇▇.▇▇▇ to Client under
this Professional Services Agreement dated February 24, 2000. Xcare agrees to,
in good faith and a timely manner, show normal, customary levels of activity as
it relates to development of work to be performed in this Agreement. Client also
agrees to show good faith to provide Xcare, in a timely manner, with requested
documents, material, etc. necessary for the completion of development work.
Functional Specifications: To be completed during `kick-off' meeting.
Deliverables: Phase 1 to include the following as estimated for completion
by 6/1/00:
> Create an eHealth site and strategy encompassing the
goals, philosophy and reputation of MethodistCare.
Provide a platform that enables the ability to do the
following via the web:
o Eligibility Status
o Eligibility Update / Add / Delete (by
Employee with HR approval)
o Claims Status
o PCP Change-routed via email
o ID Card Order-routed via email
o Interactive Provider Directory with Geo
Search (based on zip code / street address)
o Request Marketing / Plan Materials-routed
via email
o Referral Status
o Integration of ▇▇▇▇▇▇ Phase I will include
on-line Quote Generation Screens for Small
Group Brokers. This Phase will include a
modest redesign of four basic screens to
make the screens more visually appealing.
> Provide the hardware and facilities to host the above
functionality.
> XCare's Creative Services group will redesign
MethodistCare's website creating a Branded "Point of
Presence" so that no matter the entry point, it will
be clear that the services are provided by
MethodistCare. Site development will include a
re-work for new transactions to be incorporated,
leveraging some existing MethodistCare color and
branding to replicate look and feel. Also, the Home
Page will be re-designed to make the site more
appealing and easier for members and providers to
navigate. This site will be developed with future
functionality in mind.
Phase 2 to include and estimated for completion by 9/1/00:
o On-line Enrollment- Secure pages for
Employer Groups and Individuals to enroll
for coverage. Forms customized based on
product line. Ability to upload a specified
file (i.e.- Excel spreadsheet of all
employees) into the Enrollment forms so they
are pre-populated with that data. While
Enrolling, employees will also have the
ability to select PCP and transfer data onto
the form, as well as view a comparison of
benefits. Enrollment data uploaded into
extensible Care
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system.
o HR Account Management (with ability to
update current enrollment, make changes to
coverage, add dependant, view enrolled
employees, view premium ▇▇▇▇, print
enrollment form- data changed/inputted on
screens to feed into eXtensible Care)-
Creation of a secure area where HR
Administrators will feel as though they can
manage their own accounts using many of the
transactions above.
o Benefit Plans / General Product Information-
Displayed for comparison of copays, covered
services, etc.
o Questions and Answers - taken via the site
and sent email to appropriate persons at
MethodistCare for answers. Answer is then
sent back to person via email. Also,
General Q&A (i.e.- What is a copay?)
o Provider Update of Demographic Information-
Allow Providers to update address, phone,
language spoken, etc. Update sent to
Methodist for entry.
o Referral / Pre-Certification Submission-
Allow direct completion and submission of
web based form which will be edited and
input into the Xcare MCIS.
o Medicare Area (updates, enrolled, status)-
Medicare Management area for Medicare
recipients and their dependents.
▇ ▇▇▇▇▇▇ Phase II will include Small Group
Enrollment, display of rates, display of
benefits and submission of Enrollment forms.
This will be linked to ▇▇▇▇▇▇ Phase I above.
Acceptance: Per Contract Wording
Fee Schedule: See Attachment 2
▇▇▇▇▇.▇▇▇ and Client Contacts: (Identify key contacts for both parties who
will have involvement/approval authorities
for the project -- Project management,
technical contacts, financial, etc.)
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SCHEDULE 2
Contract Duration: Two Years (3/1/00-2/31/02)
The Monthly Fees listed below contain charges for Development and Transaction
use on a PMPM basis. Hosting charges are then applied at 15% and included in
the PMPM as shown. Monthly Transactions Fees will run for 24 months from an
expected go live date of 6/1/00. This contract is renewable for an additional
period of time on 3/1/02.
CONTRACT PAYMENT PMPM STRUCTURE (BASED ON 85,000 LIVES):
June 1, 2000 - May 31, 2001 (Year 1)
PMPM RATE TIME PERIOD PERCENT OF LIVES MONTHLY FEE
$0.22 June 1 - August 31 * $ *
$0.22 September 1 - November 31 * $ *
$0.22 December 1 - May 31 * $ *
Total Year 1 Minimum Monthly Fees = $182,577
PLEASE NOTE THAT THE MONTHLY CHARGE DURING YEAR 1 ABOVE WILL BE CALCULATED USING
THE ACTUAL PERCENTAGE OF LIVES ACCESSING THE CLIENT TRANSACTIONS MULTIPLIED BY
THE RATE OF $0.22 PMPM OR THE PERCENTAGE OF LIVES CALCULATION AS STATED ABOVE,
WHICHEVER IS GREATER.
June 1, 2001 - May 31, 2002 (Year 2)
MINIMUM MONTHLY FEE (Based on * Lives) $ * MONTHLY HOUSING $ *
Total Minimum Monthly Fees Year 2 = $ *
Total Minimum Annual Fees Year 2 $ * X 12 = $ *
PMPM PRICING SCHEDULE FOR INCREASING LIFE COUNT
LIFE COUNT PMPM HOSTING
100,000-249,999 $ * * of calculated monthly fee
250,000-499,999 $ * * of calculated monthly fee
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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The fees listed below contain charges for Development.
-- Web enabled Transactions and Customization as referenced in Schedule 1
above:
Phase I $ * (Due 3/00)
Phase II $ * (Due 6/00)
Website Re-design $ * (Due 3/00)
TOTAL FOR DEVELOPMENT AND IMPLEMENTATION $ *
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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▇▇▇▇▇.▇▇▇ *"CLIENT"
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Printed Name Printed Name
Sr. VP Finance & CEO President & CEO
-------------------------------- ---------------------------------
Title Title
2-28-00 2-24-00
-------------------------------- ---------------------------------
Date Date
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