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EXHIBIT 10.14
[EPIC letterhead]
0000 Xxxxx Xxxxxxxxx, Xxxxxxx, XX 00000
STANDARD MULTI-DIRECTORY LICENSE AND
SUPPORT AGREEMENT
This Agreement is made between Epic Systems Corporation, a Wisconsin corporation
which is located at 0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000 ("Epic"); and
the TriZetto Group, a Delaware corporation having its principal place of
business at 000 Xxx Xxxxxxxx Xxxxx, Xxx. 000, Xxxxxxx Xxxxx, XX 00000 ("You").
Epic and You agree as follows:
1. DEFINITIONS
The definitions provided on Appendix A shall apply to this Agreement.
2. LICENSE
a. GENERAL. Epic hereby grants You a non-exclusive license to use
the Program Property during the term of this Agreement,
subject to the limitations set forth in the terms and
conditions of this Agreement and the Exhibits hereto.
b. LIMITATIONS. This license is limited as follows: (i) You are
licensed to use the licensed Program Property and third party
software in connection with the provisions of Service Bureau
Services only; (ii) You are not permitted to sell or grant
sublicenses; (iii) You will not permit Your Annual Volume to
exceed the Licensed Volume for any Item of Program Property
without first obtaining an upgraded license pursuant to
Section 6(c); (iv) You will not offer to sell or sell Service
Bureau Services which utilize the Program Property to entities
or organizations that employ, directly or indirectly, one
hundred (100) or more physicians without the express written
consent of Epic; and (v) You will use the Program Property in
accordance with other restrictions in this Agreement. The
restriction in (iv) above shall not apply to existing
MedPartners Affiliates who currently have actual patient data
processed utilizing the Program Property and who become
customers of Yours within 180 days of the date of this
Agreement.
c. OWNERSHIP. The grant of this license does not confer on You
any right of ownership to any form of the Program
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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Property (whether Code or Documentation). All Program Property
remains the property of Epic.
d. SUBLICENSE FOR OPERATING ENVIRONMENT SOFTWARE. You agree to
obtain a sublicense to and the maintenance for the Operating
Environment software from [*] used in conjunction with the
Program Property through Epic at Epic's then standard fees for
such sublicense and maintenance. Epic believes that its
standard fees for such sublicenses and maintenance are
competitive with the fees for such sublicenses and maintenance
charged by [*]. The terms of the [*] attached hereto applies
and sets forth the terms of Your sublicense to the Operating
Environment Software. [*] prices are based on [*] being
licensed. The [*] may not be readily ascertainable until after
the installation process has begun. IF "TBD" is listed for the
[*] Operating Environment software on Exhibit 1(a), then the
number of [*] and associated license and maintenance fees will
be determined during the installation process and agreed to by
Change Order. To the extent legally possible, Epic will
transfer to You [*] issued by Epic and [*]. You will be
responsible for any charges associated with such transfers.
e. SUBLICENSE FOR OTHER THIRD PARTY SOFTWARE AND DATA. Except
where the price is specified as "TBD" on Exhibit 1(a), You are
granted a sublicense to the Other Third Party Software and
Data and You agree to pay the fees specified on Exhibit 1(a)
with respect to such items. The terms of the following addenda
attached hereto apply and set forth the terms of Your
sublicense to these items: for the [*] from [*]; for the [*]
software, the [*]; for the [*], the [*]; for the images from
the [*], the [*]; and for the [*], the [*]. Your use of the
Other Third Party Software and Data is also limited as set
forth on Exhibit 1(a) under "Additional Billing Information"
for each such item. In addition, Your license to use the Other
Third Party Software and Data is limited solely to use in
conjunction with Your licensed use of the Program Property. IF
"TBD" is listed for any of the Other Third Party Software and
Data, then such item may be added by Change Order during the
installation process. Once added, such item will be licensed
as if it were included under the Additional Billing
Information in Exhibit l(a) with the applicable fees and
limitations stated in the Change Order. If You are licensing
the [*] in this Agreement, You may obtain a license to future
versions and/or additional copies of the [*] by Change Order.
Once added, such item will be licensed as if it were included
under the Additional Billing Information in Exhibit 1(a) with
the applicable fees and limitations stated in the Change
Order. The licensing requirements for the [*] are subject to
change with future versions; such changes will be reflected in
the Change Order. [*]
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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[*]. You will be responsible for any charges associated with
such transfers.
f. ADDITION OF INTERFACES. The parties may determine that one or
more interfaces should be added as Program Property under this
Agreement. Interfaces may be added to this Agreement by an
amendment or by a Change Order executed by both parties. Upon
such execution, the specified interfaces will become Program
Property licensed under this Agreement with the additional
terms specified in the Change Order or amendment. [*]
3. DELIVERY
a. GENERAL. Items of Program Property listed an Exhibit 1(a) as
of the date of this Agreement are Items You are licensing
pursuant to a license [*]. These Items have been delivered to
You on the date of this Agreement. For any new Items of
Program Property, Epic will deliver the Code to You
substantially in accordance with the Implementation Schedule.
Epic will also deliver to You any Documentation published and
generally released by Epic to its customers for the Items of
Program Property licensed to You.
b. RESPONSIBILITY FOR SITE. You will be responsible for providing
proper hardware and establishing a suitable site for the
hardware, assuring proper operating methods and adequate
backup procedures, and implementing sufficient procedures and
checks to assure data security and accuracy in both input and
output and in the event of the need for restart or recovery
from malfunction.
c. VIRUSES AND TIME LOCKS. Except as provided in Section 4(g),
Epic agrees that Epic will not intentionally insert any
instructions, routines, devices key-locks, time-bombs or the
like into the Program Property to: (i) disrupt Your use of an
Item of Program Property, your network or Your other software
used with the Program Property or to which the Program
Property is linked; or (ii) destroy, damage or make data
inaccessible (except for file and purge routines necessary for
the routine functioning of the Program Property). Before
delivering any workstation Program Property to You, Epic will
first check the workstation Program Property code for viruses
using recently-released, commercially-available,
virus-detection software to the extent such software is
reasonably available to Epic. Epic believes there is currently
no software available for detecting viruses in [*]. Epic makes
no representations concerning viruses in any data or files
transmitted over the Internet, including, but not limited to
email and documents that are included as attachments to email.
4. INSTALLATION, TRAINING AND MARKETING
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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a. GENERAL. Epic will assist You in installing and implementing
the Program Property on Your Designated Platform and will
assist in training Your employees, all substantially in
accordance with the Implementation Schedule. The
Implementation Schedule will outline the expected schedule for
the implementation of the Program Property on Your Designated
Platform. You are responsible for many of the tasks that will
be outlined in the Implementation Schedule. Therefore, the
timing of Your actual implementation of the Program Property
may vary.
b. TRAINING. Standard training courses utilize test data, test
items, standard screens, and other mock parameters for
training, while customized courses utilize Your screens, a
subset of Your items and data, and other parameters more
similar to Your actual operations. Additional fees are
chargeable for preparation time for customized courses.
c. PROJECT MANAGER. In order to facilitate communication, You
will designate an individual to serve as project manager to
coordinate with Epic concerning installation and training
services.
d. RATES. Except as provided in Section 4(j), all installation,
implementation and training services provided by Epic to You
and Your Affiliates shall be at Epic's standard rate for such
services. Such rates are listed on Exhibit 4 and will not
increase during the [*] of this Agreement and will not be
increased more than once during each subsequent [*].
e. ACCESS TO SERVER. You will provide Epic with access to the
server(s) on which the Program Property is installed through a
dedicated, leased data circuit, ISDN line, or comparable
technology as agreed to by Epic, with a minimum guaranteed
bandwidth of at least 56 Kilobits per second between Epic and
You. The connection between Epic and the server(s) on which
the Program Property is installed will have a maximum latency
of 150 milliseconds. Collectively, the access technology
requirement and the connection requirement are the "Minimum
Access Requirements." Access may not be through analog modem
or the Internet, except that, if approved in advance in
writing by Epic, access may be accomplished through the use of
[*] which may utilize Internet infrastructure in the creation
of a secure connection. You will be responsible for all
necessary hardware and software and line costs on both ends,
including configuration. Epic may revise the Minimum Access
Requirements from time to time to ensure that access is still
adequate given changes in technology. Epic will notify You of
any such revisions to the Minimum Access Requirements. You
agree to upgrade the access technology and/or connection, at
Your sole cost, to meet the Minimum Access Requirements within
six (6) months of written notice from Epic to You of any such
change. You also grant to Epic the right of access to the
Program Property as reasonably needed by Epic for support and
to monitor and maintain efficient Program Property operations.
After the First Live Use of an Item of Program Property, it
shall be Your responsibility to grant access to Your server(s)
containing the Program Property or Your data
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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by Epic employees only as follows: Whenever access is
required, You will be responsible for verifying that the
applicable Epic employee may access Your server(s). Upon such
verification, You will provide the Epic employee with a
temporary password for use in accessing the server(s). After
consulting with Epic, You will reasonably determine the date
and time that the password will expire. In general, such
expiration should be scheduled to occur shortly after the
scheduled date and time of completion of the work requiring
such access.
f. OPERATING ENVIRONMENT, CHRONICLES AND SYSTEMS TRAINING AND
ASSISTANCE. Epic will provide You training and assistance
concerning the Operating Environment software and Epic's
Chronicles database system as provided in the Implementation
Schedule (including without limitation with respect to
journaling and typical backup procedures) at Epic's standard
hourly rate for such services. Such rates are listed on
Exhibit 4 and will not increase during the first [*] months of
this Agreement. Implementation and training assistance
concerning Your hardware and operating system should be
provided by the hardware and/or operating system vendor that
You select. Other training and assistance concerning Your
hardware and operating system or any assistance concerning
programming code developed by You to work in conjunction with
the Program Property or other services not directly related to
Epic's obligations hereunder will be provided as Epic
personnel are available at Epic's standard hourly rates for
such services. Such rates are listed on Exhibit 4 and will not
increase during the first twelve (12) months of this
Agreement.
g. [*]
h. [*]
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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(i) [*]
(ii) [*]
(iii) End User Training. The quality of training for
Affiliate End Users will play an important role in
the success of Your Affiliates' implementations.
Therefore, You and Epic agree that only Epic
certified trainers will be used to train Your Service
Bureau Affiliate End-Users.
i. MAINTAINING AN ACCEPTABLE CUSTOMER SATISFACTION RATING.
(i) General. You agree to maintain an "Acceptable
Customer Satisfaction Rating" for Your Service Bureau
Affiliates.
(ii) You will be considered to have maintained an
"Acceptable Customer Satisfaction Rating" if the
average of the Customer Satisfaction Ratings for Your
Service Bureau Affiliates is [*] or greater for each
twelve (12) month period commencing May 1.
(iii) Customer Satisfaction Rating. "Customer Satisfaction
Rating" means the average of the ratings by
representatives of Your Service Bureau Affiliates of
Your performance in marketing or providing services
to that Affiliate. Epic may provide customer
satisfaction surveys to representatives of Your
Service Bureau Affiliates. The surveys will measure
the Affiliates' satisfaction in various categories.
Responses to questions will be on the following
scale: [*]
(iv) You will have each of Your Service Bureau Affiliates
rate Your performance on the following schedule: [*]
after Date of First Live Use; [*] after Date of First
Live Use; and [*] after Date of First Live Use; and
[*] per year thereafter.
j. MARKETING ASSISTANCE. Epic will provide You with marketing
assistance, at Your expense, as set forth on Exhibit 4(j).
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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5. CUSTOMIZATION
a. GENERAL. You may request that Epic customize part of the
Program Property at any time more than three months after Your
First Live Use of the Program Property by using a Change
Order. Epic will furnish You with a written price quotation
for such customization on the Change Order. Your acceptance of
the Change Order within twenty (20) days will constitute an
agreement to pay the price specified therein. Payments for any
fixed-price customization will be [*]. Work on other
customizations will be invoiced as incurred.
b. RATES. Custom programming hourly rates will vary depending on
the services to be performed and the current rates are listed
on Exhibit 4 attached hereto. Such rates will not increase
during the first [*] of this Agreement and will not be
increased more than [*] during each subsequent [*]. Additional
charges apply for retrofits and rush Change Orders as
specified in the Change Order.
c. OWNERSHIP. Epic shall own all customized Code and customized
Documentation that Epic develops, and all copyrights, trade
secrets and other intellectual property rights with respect to
any customized Code or customized Documentation. [*]
d. WAIVER OF LICENSE FEE FOR [*] AND [*].
(i) [*]. If [*] is listed as an Item of Program Property
on Exhibit 1(a), the license fees for the [*] Item
are waived and You agree to provide to Epic and
Epic's [*] all report forms created using or for use
with [*] (except as provided below). Epic may make
such report formats available to any of its other
customers for their use either directly or through
the [*]. By licensing [*] and complying with this
provision, You will also have access to the reports
submitted by others to the [*] as they become
available. The [*] will be available on Epic's
customer website. You may designate report formats
that could give Your competitors a significant
competitive advantage as proprietary ("Proprietary
Report Formats") through a procedure to be determined
by Epic. You agree that no more than [*] of Your
total report formats will be so designated. Your
Proprietary Report Formats will not be distributed by
Epic except with [*]. Except as otherwise agreed by
Epic in writing, You hereby waive any copyrights,
trade secret rights and other proprietary rights that
You may have with respect to any Report Formats that
You provide to Epic (except those that You designate
as Proprietary Reports) and to any Report Formats
that You submit to the [*]. If You do not provide
Epic with the report formats as required by this
Section 6(d)(i), such failure shall be a breach of
this Agreement and the notice and cure periods
provided in Section 18(c) shall apply. The remedy for
such breach shall be that, upon written notice to
You, Epic may terminate Your access to the [*] and
reinstate the waived license fee for [*]. Such
reinstated fee shall
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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be due and payable by You to Epic immediately upon
such reinstatement. INITIAL HERE IF YOU AGREE TO THIS
FEE WAIVER PROVISION _________
(ii) [*]. If [*] is listed as an Item of Program Property
on Exhibit 1(a), the license fees for [*] are waived
and You agree to provide to Epic and [*] all [*]
created using or for use with the Program Property
(except as provided below). Epic may make such [*]
available to any of its other customers for their use
either directly or through the [*]. By licensing [*]
and complying with this provision, You will also have
access to the [*] submitted by others to the [*] as
it becomes available. The [*] will be available on
Epic's customer website. You may designate those
items of Your [*] that could give Your competitors a
significant competitive advantage as [*] through a
procedure to be determined by Epic. You agree that no
more than [*] will be so designated. Your [*] will
not be distributed by Epic except with Your [*] and
You are not required to submit it to the [*]. Except
as otherwise agreed by Epic in writing, You hereby
waive any copyrights, trade secret rights and other
proprietary rights that You may have with respect to
any [*] that You provide to Epic (except those that
You designate as Proprietary Reports) and to any [*]
that You submit to the [*]. If You do not provide
Epic with the [*] as required by this Section
6(b)(ii), such failure shall be a material breach of
this Agreement and the notice and cure periods
provided in Section 18(c) shall apply. However, the
remedy for such breach shall be that, upon written
notice to You, Epic may terminate Your access to the
[*] and reinstate the waived license fee for the [*].
Such reinstated fee shall be due and payable by You
to Epic immediately upon such reinstatement. INITIAL
HERE IF YOU AGREE TO THIS FEE WAIVER PROVISION
_________
(iii) DISCLAIMER AND WAIVER. YOU UNDERSTAND THAT REPORT
FORMATS, [*] AND ANY OTHER DATA, SOFTWARE OR OTHER
ITEMS MADE AVAILABLE THROUGH THE [*] ARE PROVIDED ON
AN "AS IS" BASIS, WITHOUT ANY WARRANTY OF ANY KIND
FROM EPIC OR ANY OTHER PARTY AND EPIC AND ALL
AUTHORS, CREATORS, DISTRIBUTORS AND OTHERS ASSOCIATED
IN ANY WAY WITH SUCH REPORT FORMATS, [*], DATA,
SOFTWARE OR OTHER ITEMS HEREBY DISCLAIM ANY
WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT
LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. YOU HEREBY AGREE TO
WAIVE ANY CLAIMS YOU MAY HAVE AGAINST EPIC OR ANY
AUTHORS, CREATORS, DISTRIBUTORS OR OTHERS ASSOCIATED
WITH SUCH REPORT FORMATS, [*], DATA, SOFTWARE OR
OTHER ITEMS WITH RESPECT THERETO
e. RETROFITS. Customized Code will normally be made available to
You through Epic's standard Update release process unless
otherwise agreed to on the Change Order. Retrofits are
available only to the then current standard version of the
Program Property upon Epic's consent in the Change Order.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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6. PAYMENTS
a. SCHEDULE. For the license rights to the Program Property, You
will pay Epic the Total License Fee as described in Sections
6(b) through 6(i) inclusive, when you enter into this
Agreement.
b. LARGE CLINIC LICENSE FEE.
(i) General. You acknowledge and agree that the customers
that You intend to provide Service Bureau Services to
are ambulatory care clinics which employ fewer than
[*] ("Large Clinic").
(ii) Large Clinic Fee. As provided in Section 2(b)(ii)
above, You agree that you will not offer to sell or
sell Service Bureau Services that utilize the Program
Property to any customer which employs [*] without
the [*]. Should [*] agree to pay Epic a [*] to be
agreed to in advance by Epic and This provision shall
not apply to existing MedPartners Affiliates who
currently have actual patient data processed using
the Program Property and who become customers of
Yours.
c. INCREASING THE LICENSED VOLUME. Exhibit 1(a) limits Your use
of each Item of Program Property to the Licensed Volume. If
You wish to increase the Licensed Volume, You should notify
Epic. This increase will become effective upon receipt of Your
payment of the additional license fee due for the greater
Licensed Volume. [*]
d. FEE FOR ADDITIONAL DIRECTORIES. [*].
e. THIRD PARTY LICENSE FEES. [*].
f. OUT-OF-POCKET EXPENSES. All travel, telephone for computer
connections, messenger and shipping costs, media charges,
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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and other out-of-pocket expenses sustained by Epic for
installation, maintenance, error-correction, consultation, or
instructions in the Program Property will be billed to You
separately as incurred, with payment due upon receipt of
invoice. Travel shall not be initiated by Epic without Your
prior written approval.
g. PAYMENT DATE; INTEREST. You will pay all funds due to Epic by
the later of: (i) 45 days after the invoice date; (ii) the
payment date specified in the invoice; or (iii) the date such
payment is due as otherwise specified in this Agreement. If
You owe Epic any balance after the date specified in the
preceding sentence, then such balance will accrue interest
until paid at the rate of the lesser of one percent (1%) per
month or the maximum rate allowed by law. All payments shall
be applied first to accrued and unpaid interest charges and
then to other amounts due to Epic under this Agreement, as
determined in Epic's sole discretion. You agree that if any
amounts that You owe to Epic remain unpaid more than sixty
(60) days after such amounts are due to Epic, Epic may, in its
sole discretion and with written notice to You, suspend the
performance of Epic's installation, training, customization
and/or maintenance services under this Agreement until such
amounts are paid in full. In addition, if You fail to make any
payment specified in this Agreement when due, You will have
Materially Breached this Agreement if such payment remains
unpaid for a period of sixty (60) days or more after written
notice of default from Epic to You.
h. PAYMENTS BEFORE FIRST LIVE USE. You agree that You will begin
First Live Use of each Item only if at such time there are no
amounts due to Epic under this Agreement that are unpaid and
You agree that Epic will not enable an Item of Program
Property for live, production use by You if You are not
current with Your payments to Epic.
i. MAINTENANCE FEE. [*]
7. MAINTENANCE
a. GENERAL. [*] The Maintenance Program has three components:
(1) Epic will provide You with consultation and assistance
concerning the Program Property by telephone as specified in
Section 7(b); (2) Epic will provide You with Updates as
provided in Section 7(c); and (3) Epic will use its best
efforts to correct any errors or defects in the Program
Property as provided in Section 7(d). [*]
b. CONSULTATION AND ASSISTANCE. Epic will provide consultation
and assistance to You by telephone concerning the operation of
the Program Property. Such consultation and assistance will be
available during and after Epic's
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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regular business hours (24 hours per day, 7 days per week) as
provided in Exhibit 7 hereto.
c. UPDATES. Epic will make all Updates available to You. You are
responsible for the installation of all Updates.
d. ERROR CORRECTION.
(i) Epic will use its best efforts to correct or provide
a Reasonable Workaround for any Program Error. Epic
will use reasonable efforts to respond to requests
concerning error correction during the Maintenance
Program within the periods set forth in Exhibit 8.
(ii) Epic's responsibility with respect to any Non-Program
Property Error shall be limited to providing
assistance and advice to enable You to determine
appropriate remedial action to be taken by You or
others. Epic shall charge You for any associated
consulting time for any Non-Program Property Error at
Epic's rates listed in Exhibit 4 attached hereto.
Such rates will not increase during the first twelve
(12) months of this Agreement and will not be
increased more than once during each subsequent
twelve (12) month period.
e. MAINTENANCE REQUESTS. You will perform first line consultation
and assistance to Your Affiliates concerning the operation of
the Program Property. You will, from time to time during the
term hereof, designate one or more of Your employees, who
shall be trained, knowledgeable, and Certified by Epic in the
Program Property, to be responsible for contacting Epic
concerning requests for service under the Maintenance Program.
From time to time You may designate additional or replacement
employees for this purpose. Epic may charge You at its then
standard rates for any direct requests for Maintenance
Program services that are not made through these designated
employees.
f. MAINTENANCE PROGRAM.
(i) General. By execution of this Agreement, You have
also contracted for the Maintenance Program for each
Item of Program Property currently in use to process
actual patient data for production purposes. For
Items of Program Property included on Exhibit 1(a) as
of the date of this Agreement, the Maintenance
Program begins on the date of this Agreement. Epic
acknowledges that not all items in Exhibit 1(a) are
in use to process actual patient data for production
purposes, and that during the first year of this
Agreement, the Items of Program Property subject to
the Maintenance Program will be adjusted quarterly,
upward or downward, to reflect the actual level of
usage of Each Item of Program Property by You. You
will provide Epic with reports regarding Your actual
level of use of Program Property each quarter. If
Your actual level of usage of any Licensed Volume of
any Item of Program Property drops below your highest
level of usage of that Item of Program Property, the
difference in volume shall be considered as [*].
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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[*]
For Items of Program Property subsequently licensed
under this Agreement, the Maintenance Program for
such Item commences at the end of the Warranty Period
for that Item. [*]
(ii) [*]
(iii) Staying Current.
A. You will install and use: (1) the Current
Version of each Item of Program Property;
(2) the most current version of the
operating system supported by such version
for Your Designated Platform, and (3) the
most current version of the [*] software,
the SQL Module and, if applicable, the most
current version of the [*] Software and the
[*] supported by such version of the Program
Property for Your Designated Platform, all
subject to a transition period of [*] the
release of the newer version to You, and in
the case of Program Property set forth in
Exhibit l(a), no less than a [*] transition
period will be allowed for the Program
Property version currently being used to
process actual patient data, regardless of
version. If You are using the Superseded
Version of any Item of Program Property
during the [*] transition period, Epic's
obligations under this Section 7 concerning
the correction of any errors or defects in
the Superseded Version shall be limited
solely to the minimal maintenance necessary
to keep the Superseded Version operating in
the same manner that it had prior to the
release of the Current Version. Once the
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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Current Version is released to You, Epic
will not provide any customization services
with respect to the Superseded Version. If
You do not remain current within the
transition periods as described above, you
have Materially Breached this Agreement.
B. If You are more than 90 days delinquent on
any payment due to Epic, You agree that Epic
may, in its sole discretion, suspend its
performance of the maintenance services set
forth in Sections 7(a) - (d) until such time
as You have become current in Your payments
to Epic.
(v) Epic agrees that it will make the Maintenance Program
available for all Items of Program Property for at
least five years after the date of this Agreement.
Thereafter, Epic may terminate the Maintenance
Program for any Item a by providing You with notice
of such termination at least one year prior to the
effective date of the termination.
(vi) [*]
g. THIRD PARTY SOFTWARE MAINTENANCE. The maintenance programs for
the [*] software, the [*] module and the [*] software begin
[*] after delivery of such software to You. The maintenance
programs for the [*] software and the [*] software and data
begin when You first begin the Maintenance Program for any
Program Property. You will contact Epic with respect to any
consultation or assistance requests relating to any of this
third-party software. During the maintenance period for any
of this third-party software, Epic will respond to such
inquiries by either consulting with and assisting You
directly, if possible, or by contacting the owners/publishers
of the applicable third party software to obtain any
additional consultation or assistance that is necessary. You
must participate in the software maintenance programs for all
of this software during any period that You are participating
in the Maintenance Program.
8. WARRANTY
a. GENERAL. THERE IS NO WARRANTY FOR ITEMS OF PROGRAM PROPERTY
THAT ARE SET FORTH ON EXHIBIT 1(a) AS OF THE DATE OF THIS
AGREEMENT BECAUSE THE WARRANTY PERIOD FOR SUCH ITEMS OCCURRED
DURING THE TERM OF THE MEDPARTNERS' LICENSE AND HAS NOW
EXPIRED. For Items of Program Property subsequently licensed
under this Agreement, Epic warrants that if, during the
Warranty Period, You notify Epic (in the manner specified in
Section 20) that an Item of Program Property contains a
Substantive Program Error, and such notice specifically refers
to this Section and describes each Substantive Program Error,
then Epic will either correct such Substantive Program Error
or provide a Reasonable Workaround for such Substantive
Program Error as provided in Section 8(b). Epic also will use
its best efforts to correct
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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any Program Errors other than Substantive Program Errors that
You report to Epic during the Warranty Period.
b. CURE PERIODS. Epic shall have an initial cure period of
forty-five days after the end of the Warranty Period, if any,
to correct or provide a Reasonable Workaround for any
Substantive Program Error that is properly and timely reported
to Epic. You shall have until [*] after the [*] period to
notify Epic of either: (i) any remaining Substantive Program
Errors in such Item which You properly and timely reported to
Epic; or (ii) any new Substantive Program Errors in such Item
arising out of a correction or Reasonable Workaround completed
during the [*] period. Such notice shall be provided in the
manner specified in Section 20, shall specifically refer to
this Section and shall describe each Substantive Program
Error. Epic shall then have an additional cure period of [*]
after such notification to correct or provide a Reasonable
Workaround for any Substantive Program Errors.
c. RESPONSES TO WARRANTY SERVICE REQUESTS. Epic will use
reasonable efforts to respond to requests for warranty service
within the periods set forth in Exhibit 8.
d. CUSTOMIZED CODE. If You select the fixed price and warranty
option on the applicable Change Order, Epic also provides a
warranty with respect to Substantive Program Errors in
customized code provided under that Change Order. Such
warranty shall have the same provisions as Sections 8(a) and
8(b), except that the warranty period shall be the thirty-day
period after delivery of such customized code to You.
e. ACKNOWLEDGMENT. You acknowledge that the Program Property was
designed to operate in a certain manner to produce a defined
result as described in the Documentation for the Program
Property and if You would like the Program Property to operate
in a different manner or to achieve a different result, such
differences do not represent Program Errors or design defects.
You understand that Epic does not warrant that the Program
Property is free from error, or that the Program Property will
always run in an uninterrupted fashion, and that, due to the
complex nature of computer software, certain errors may be
virtually impossible to reproduce or correct.
f. CORRECTION OF PROGRAM ERRORS AFTER WARRANTY PERIOD. After the
Warranty Period or if there is no Warranty Period for an Item
(i.e., for those Items of Program Property set forth on
Exhibit l(a) as of the date of this Agreement) the correction
of Program Errors (other than those for which You properly and
timely notified Epic pursuant to Sections 8(a) and (b)) will
be governed by the terms of the Maintenance Program as
provided in Section 7 rather than the warranty specified in
this Section 8.
g. LIMITATIONS. In no event shall Epic bear any responsibility
for any errors or damages caused by or resulting from defects
in the hardware, input errors, changes to the Program Property
made by You, or combinations of the Program Property with
software not provided by Epic. Any modifications of the
Program Property by anyone other than Epic shall relieve Epic
of any and all obligations under this Section 8.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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h. EXCLUSIVE REMEDY. Your sole and exclusive remedy for a breach
of any warranty under Sections 8(a), (b) and (d) or for a
rejection under Section 9(b) in which the Substantive Program
Error has not been cured shall be to terminate Your license to
that Item (or that customized Code) by so notifying Epic in
the manner provided in Section 20 within thirty days after the
last cure period for that Item. Upon such termination, You
will receive a refund of the entire license fee You paid to
Epic with respect to such Item.
i. YEAR 2000 WARRANTY. Epic hereby warrants that the Program
Property licensed under the Agreement will process dates and
date-related data without any material error arising from the
transition to the year 2000 or the use of dates beyond
December 31, 1999, provided that the dates or date-related
data are properly entered by You and Your end users in
accordance with Documentation provided by Epic ("Year 2000
Program Error"). For such purposes, processing of data means
any calculating, comparing or sequencing of dates or
date-related data (including but not limited to date data
century recognition, calculations that accommodate same
century and multi-century formulas and date values) to the
extent the Program Property can perform such operations with
the applicable dates or date-related data for other dates
prior to January 1, 2000. You will notify Epic in writing as
provided in Section 20 of the Agreement concerning any Year
2000 Program Error and will specifically refer to this Section
8(i) of this Amendment or state that You are making a Year
2000 warranty claim. Epic shall have a cure period of thirty
(30) days after the receipt of the notice from You to correct
any reported Year 2000 Program Errors for which it has been
properly notified. If You have made any changes to the source
Code of the Program Property, Epic shall have no obligation to
retrofit any release that corrects a Year 2000 Program Error
to work with such changes. The warranty provided under this
Section 8(i) shall expire on January 1, 2001.
j. NO OTHER WARRANTY. THE ABOVE EXPRESS LIMITED WARRANTY IS
EXCLUSIVE AND ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED
OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. You
acknowledge that no employee of Epic or any other party is
authorized to make any representations or warranty not in this
Agreement.
9. TESTING AND ACCEPTANCE
a. GENERAL. As is the case with very complex computer software,
the Program Property is likely to contain some errors. Both
Epic and You must test for errors both in the Program Property
as delivered and in any Updates. You are responsible for all
final testing of the Program Property, including any
customized Code. You should also instruct Your employees and
End Users using the Program Property to be vigilant in
identifying Program Errors and in reporting any Program Errors
detected to Epic both during the Warranty Period and
thereafter. Any procedures, rules or guidelines for medical
treatment incorporated into or provided with EpicCare or any
other Items of the Program
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Property are provided as examples only, and You must test and
validate that any such procedures, rules, or guidelines are
both medically correct and in accordance with Your
requirements and procedures.
b. REJECTION. Except for Items of Program Property set forth on
Exhibit 1(a) as of the date of this Agreement (which are
irrevocably accepted by You on the date of this Agreement),
You may reject any Item of Program Property, but only if it
contains a Substantive Program Error, by giving Epic explicit
written notice of such rejection before the earlier of the end
of the Warranty Period for that Item of Program Property or
fifteen months after the date the Code for that Item is
delivered to You. Any notice of rejection must be provided to
Epic in accordance with Section 20, contain a specific
reference to this Section 9(b), and describe each Substantive
Program Error for which You are rejecting the Program
Property. The same cure periods specified in Section 8(b)
shall also apply to a cure under this Section 9(b); however,
notice of a Substantive Program Error shall constitute a
rejection only if the notice specifically states that it is a
rejection and refers to this Section 9(b). If an Item of
Program Property is properly rejected and the Substantive
Program Error is not cured within the applicable cure periods,
then You shall have the remedy specified in Section 8(h) for a
refund of Your license fee. If an Item of Program Property is
not properly and timely rejected as specified in this Section
9(b), then that Item of Program Property shall be deemed to
have been irrevocably accepted by You. Upon actual or deemed
acceptance of an Item of Program Property, Epic shall continue
to provide maintenance services with respect to any Program
Errors as provided in Section 7 during the term of the
Maintenance Program.
10. LIMITATIONS OF LIABILITY
a. GENERAL. YOU AGREE THAT NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR
LOST PROFITS OR REVENUES RESULTING FROM OR IN ANY WAY RELATED
TO THIS AGREEMENT, ANY BREACH OR TERMINATION OF THIS AGREEMENT
OR OPERATION OF THE PROGRAM PROPERTY, INCLUDING CLAIMS BASED
ON THE NEGLIGENCE OR BREACH OF WARRANTY OF EPIC, OR EITHER
PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY HEREIN. UNDER NO CIRCUMSTANCES SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY REASON FOR ANY AMOUNT IN
EXCESS OF THE AGGREGATE LICENSE FEES AND TRANSFER FEES PAID BY
YOU TO EPIC HEREUNDER PRIOR TO THE DATE OF THE CLAIM.
b. FORCE MAJEURE. No liability shall result to You or Epic from
delay in performance or nonperformance caused by circumstances
beyond the reasonable control of You or Epic
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including, but not limited to, acts of God, fire, war,
embargo, any law or governmental regulations or labor dispute,
and the period of performance shall be deemed extended to
reflect such delay as agreed upon by the parties hereto.
c. TIMING OF ACTIONS. You shall not commence any action before an
arbitrator or arbitrators (if this Agreement provides for
arbitration) or in a court of law regarding or in any way
related to any Item of the Program Property more than [*] from
the date of First Live Use of that Item of the Program
Property. The immediately preceding sentence does not apply to
disputes involving the Maintenance Program or other continuing
services by Epic or to claims brought under Section 16(a). The
initial [*] limitation does not apply to any Update,
customization or other new Code that is subsequently added to
the Program Property; instead, a new [*] limitation period
shall apply to such new Code beginning on the date of First
Live Use of such Update, customization or other new Code.
11. CERTAIN LICENSEE COVENANTS
a. GENERAL. You will not, and will not permit Your employees or
agents, or any other person or party, to do any of the
following:
(i) Copy or duplicate by any means the Program Property
or any part thereof, except as follows: (1) You may
create additional Directories by notifying Epic and
paying additional fees as provided in Section 6(d),
Exhibit 1(b) and the definition of Directory in
Appendix A; (2) You may make copies of the Code to
the extent such copies are required for backup,
recovery, or system redundancy to ensure availability
of the system to You; (3) You may copy Workstation
Code onto any number of Your workstations for
authorized End-Users; and (4) You may modify and
reproduce the Documentation and disseminate the
Documentation to authorized End-Users of the Program
Property to the extent appropriate;
(ii) Reverse engineer any of the Program Property or any
part thereof,
(iii) Use the Program Property or any part thereof, other
than the Workstation Code, on any computer other than
the Designated Platform except for disaster recovery,
except with Epic's prior written consent; or
(iv) Remove the Epic copyright notice screen from any copy
of the Program Property or otherwise modify the
Program Property so that Epic's copyright notice is
not displayed to each user upon logon.
b. COPYRIGHT NOTICE ON PERMITTED COPIES. To the extent reasonably
practical, You further agree to affix and maintain the
copyright notice of Epic and on all permitted backup or
multiple use copies made of the Program Property.
c. TRADE SECRETS. You understand and agree that Epic's Program
Property contains trade secrets of Epic protected by operation
of law and this Agreement. Consistent with that understanding
and to protect the rights of Epic, You will, subject to the
provisions of Section 14,
(i) Maintain in confidence any information You acquire as
to the functioning or operation of the Program
Property,
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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and will only use such information to carry out the
purposes of this Agreement;
(ii) Limit access to the Program Property to those of Your
employees, other End-Users, and Service Bureau
Clients who must have access to the Program Property
in order to make proper use of the same in connection
with Your operations;
(iii) Store all copies of the Program Property in a secure
place;
(iv) Either: (1) require any person given access to the
Program Property to execute a written agreement
(which may be Your standard employee agreement if it
applies these protections to the Program Property)
requiring non-disclosure of Epic's trade secrets in
the Program Property, and limiting the use of such
information to uses within the scope of the
employee's duties; or (2) inform all of such persons
that You are obligated to keep Epic's trade secrets
in the Program Property confidential and that it is
Your policy to keep all such information
confidential.
(v) You will notify Epic promptly and fully in writing of
any person, corporation or other entity that You know
has copied or obtained possession of or access to any
of the Program Property without authorization from
Epic.
Notwithstanding the foregoing, nothing in this Section 11c
shall be construed as preventing You from providing Service
Bureau Services for Your Customers using the Program Property
and Documentation licensed under this Agreement.
d. COVENANTS ESSENTIAL TO AGREEMENT. You agree and understand
that the covenants of Section 11 are essential to the
Agreement and that violation of any part of this Section is a
material breach of the Agreement.
12. YOUR CONFIDENTIAL INFORMATION
Epic will not disclose to any individual, entity, or other third party
any of Your Confidential Information, except: (a) as required by law or
court order; as confirmed by written opinion of Epic's legal counsel,
or (b) with Your prior written consent.
13. RESTRICTIONS ON TRANSFER
a. GENERAL. During the first 18 months of this Agreement You will
not assign, transfer, sublicense or timeshare this Agreement
or any licenses granted hereunder to or with any third party,
including Your parent, subsidiary, or affiliate, if any.
Thereafter, You may not assign, transfer, sublicense or
timeshare this Agreement or any licenses granted hereunder to
any third party, except that with the prior written approval
of Epic, which approval shall not be unreasonably withheld,
You may assign and/or transfer this Agreement in its entirety
to a third party in conjunction with the transfer by sale or
merger of substantially all of Your Assets to a successor
organization if the successor organization accepts in writing
an assignment of this Agreement and agrees to be bound by all
of its terms and conditions. For example purposes only, both
Parties agree that it would be "reasonable" for Epic to not
permit assignment of this Agreement to a competitor of Epic or
to an entity in poor financial condition or an entity with a
poor reputation in the industry. Nothing in this
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Section 13(a) shall be construed as preventing You from
providing Service Bureau Services for Your customers using the
Epic Software and Documentation licensed under this Agreement.
b. ASSIGNMENT BY EPIC. Epic may, upon giving You prior written
notice, assign some or all of its rights and obligations under
this Agreement to any Affiliated Company. Epic also may, upon
giving You prior written notice, assign all of its rights and
obligations under this Agreement pursuant to a complete
assignment in conjunction with the transfer by sale or merger
of substantially all of Epic's assets to a successor
organization if the successor organization accepts in writing
an assignment of this Agreement and agrees to be bound by all
of its terms. In either event, Epic will remain liable for
Epic's obligations under this Agreement if the Affiliated
Company or successor organization fails to satisfy such
obligations.
14. USE OF PROGRAM PROPERTY BY AFFILIATES
a. GENERAL. You may provide any Affiliate with access to and the
right to use the Program Property, subject to the following
terms and conditions:
(i) To preserve Epic's trade secrets from competitors,
You and Your Affiliates will not knowingly allow
access to any individual or entity outside of Your
company, which licenses or sells software Service
Bureau Services to health care facilities (or any
other potential competitor of Epic) without Epic's
prior written consent.
(ii) You will provide access to Affiliates, including
employees, only to the extent such access is
consistent with the requirements of Section
11(c)(ii).
(iii) You will grant access to a non-employee Affiliate
only as an end-user. You will not give any
non-employee Affiliate access to any source or object
code of the Program Property other than Workstation
Code.
(iv) Any rights of End Users will be subject to all of the
restrictions, limitations and conditions provided in
this Agreement. You will have the same responsibility
to Epic for the actions and omissions of any End User
as You would have if they were Your actions or
omissions.
b. (i) For purposes of construing the terms and conditions
imposed by this Agreement, all End-Users shall be
combined with You and treated as a single licensee.
For example, but without limitation: (1) all
Volume with regard to You or any End User shall be
aggregated for determining whether You have exceeded
the Licensed Volume; (2) no additional copies of the
Program Property shall be provided to any End Users
(except applicable to Workstation Code); (3) all
maintenance, training, installation, support,
requests for customization and the like will be
conducted through the responsible employees
designated by You to contact Epic; and (4) You will
be responsible for all payments to be made to Epic
with regard to the activities of any End User,
including without limitation any increases in
license fees or maintenance fees attributable to the
End User's Volume and any services provided by Epic
directly or indirectly to any End User.
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(ii) Except as specifically provided herein, any
termination of this Agreement or any license granted
in this Agreement shall also terminate the
corresponding rights of any End User.
c. USE OF EXHIBIT 1(a) LICENSES
The Volumes of Program Property licensed hereunder and listed
in Exhibit 1(a) can be used to provide Service Bureau Services
to the following customers:
(i) Current MedPartner Affiliates wherever located;
(ii) Any other customer as long as You are not competing
against another service bureau that utilizes Epic
Software. In such circumstance at least fifty percent
(50%) of the Annual Patient Visits for such customer
must be purchased from Epic pursuant to Section 6(c)
above.
15. TRADE-IN
a. CHANGE IN DESIGNATED PLATFORM WITH [*]. If You elect to change
the Designated Platform to a new processor that is (i) [*] and
(ii) [*], then You may transfer the Program Property to the
new processor without charge if You provide at least thirty
(30) days written notice to Epic prior to the transfer.
b. CHANGE IN DESIGNATED PLATFORM [*]. If You elect to change the
Designated Platform processor manufacturer or operating system
or the publisher of the Operating Environment software, [*],
then Epic will license such product to You without an
additional license fee.
c. CONVERSION ASSISTANCE. You will pay Epic for any time spent by
Epic personnel in connection with any implementation,
consultation or conversion associated with any change of
processor, operating system or Operating Environment software
publisher, all at Epic's then standard hourly rates.
16. INDEMNIFICATIONS
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
-20-
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a. INTELLECTUAL PROPERTY INDEMNIFICATION. Epic agrees to defend
or settle, and to indemnify and to hold Your Indemnitees
harmless from, any Claim brought against any of Your
Indemnitees to the extent that: (1) it is based on a Claim of
infringement of any U.S. copyright; (2) it is based in whole
on all or part of the Program Property in the form supplied to
You by Epic; and (3) Your Indemnitees promptly notify Epic in
writing of the Claim, promptly provide Epic with the
information reasonably required for the defense of the same,
and grant to Epic exclusive control over its defense and
settlement. If such a Claim is brought by a third party, Epic
may, at its sole option and expense, either:
(i) procure the right for You to continue to use the
infringing Item Program Property;
(ii) modify or replace the infringing Item of Program
Property or such portion thereof as is appropriate as
long as such modified or replaced software has
substantially similar or better capabilities;
or if Epic determines that neither of the foregoing is
commercially practicable,
(iii) terminate Your license to the infringing Item of
Program Property. Upon such termination and the
return of such Item to Epic, Epic will repay to You
the license fee You paid to Epic for such Item less
depreciation calculated on a straight line basis over
a ten year period from the date of execution of this
Agreement.
This Section 16(a) states the entire liability and obligation
of Epic to Your Indemnities with respect to infringement of
any intellectual property rights.
b. INDEMNIFICATION IF EPICCARE LICENSED. If EpicCare is licensed
under the terms of this Agreement, then You agree to defend or
settle, and to indemnify and to hold the Epic Indemnitees
harmless from, any Claim by or on behalf of any [*], or by or
on behalf of any other third party or person claiming damage
by virtue of a familial or financial relationship with such a
patient, which is brought against any [*], including Claims
based on [*], which may arise out of the operation of the
copies of the Program Property licensed to You under this
Agreement, if the claim is not of the type covered by Section
16(a). The preceding sentence does not apply to the payment of
damages for claims in which the court finds that the injury at
issue was caused solely as a result of [*].
17. TAXES
All taxes arising out of the license or use of the Program Property,
including sales taxes, use taxes, personal property taxes, including
any assessments or taxes imposed by foreign governments, but excluding
any taxes on Epic's income, shall be Your responsibility. If Epic is
required to pay any such taxes or penalties or interest relating
thereto, You shall promptly pay to Epic an amount equal to any such
amounts actually paid or required to be collected or paid by Epic. If
You are exempt from paying applicable sales or use taxes, then Your tax
exemption number(s) for all relevant jurisdictions is (are):
_____________________________________________. If You are not exempt
from paying applicable sales or use taxes, then Your sales/use tax
identification number(s) for all relevant
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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jurisdictions (are) [to be provided]______________________________
_________________________________.
18. TERM AND TERMINATION
a. GENERAL. The Initial Term of this Agreement will be for a
three (3) year period commencing on May 1, 1999 and ending on
April 30, 2002. If You (i) are not in default under any
provision of the Agreement or (ii) are not in Material Breach
of the Agreement, the Agreement will automatically renew for
additional one (1) year terms unless written notice of Intent
Not to Renew is given by one party to the other party at least
one hundred fifty (150) days prior to the end of the then
current term. There is no limit on the number of times this
Agreement may be renewed.
b. EFFECT OF TERMINATION OF AGREEMENT. Upon termination of this
Agreement for any reason and by any party, all rights and
licenses granted to use the Program Property or to offer to
sell or sell Service Bureau Services that utilize the Program
Property, or to use any other Epic intellectual property, such
as the Epic name, Epic Logos, Epic Trademark and/or Service
Marks for any purpose shall terminate. However, You may
continue to provide then existing customers with Service
Bureau services that utilize the Program Property to the same
extent provided on the date of termination of this Agreement.
c. TERMINATION UPON BANKRUPTCY, INSOLVENCY AND THE LIKE. Subject
to applicable bankruptcy and insolvency laws, if either party
(i) ceases the active conduct of business; (ii) becomes
subject to any bankruptcy or insolvency proceeding under
federal or state statute; (iii) becomes insolvent or subject
to direct control by a trustee, receiver, or similar
authority; or (iv) has wound up or liquidated its business,
voluntarily or otherwise, the other party may, at its sole
option, terminate this Agreement immediately.
d. TERMINATION UPON MATERIAL BREACH; CURE PERIODS. This Agreement
may not be terminated upon a Material Breach of this Agreement
unless the other party (the "Notifying Party") first provides
written notice of such breach to the first party (the "Curing
Party") as provided herein and the breach has not been cured
within sixty (60) days after the Curing Party receives such
notice. The notice shall be provided in the manner specified
in Section 20, shall reference this Section 18(d), and shall
describe each Material Breach of the Agreement in sufficient
detail to permit the Curing Party to cure the breach. Neither
party may claim a Material Breach of this Agreement until the
foregoing periods have expired. Termination and cure periods
with respect to the provisions of Sections 8 and 9 shall be
covered under such Sections and not under this Section 18(e).
e. EFFECT OF TERMINATION. If this Agreement or the license to any
Item of Program Property is terminated for any reason, then
You will return all copies of the Program Property (including
the Code and the Documentation) to Epic, or destroy such
copies and certify to Epic that such actions have occurred,
within thirty (30) days of the effective date of termination
or termination of providing Service Bureau Services utilizing
Program Property to Your then existing
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customers, whichever occurs first. In the event of termination
of this Agreement for any reason, You shall remain liable to
Epic for all fees and service charges accrued prior to such
termination.
f. SURVIVAL. The provisions of Sections 6, 8(g), (h) and (j),
10-14, 16, 17, 18, 19 and 21 shall survive termination or
expiration of this Agreement.
19. SOURCE CODE
a. DELIVERY AND USE. Epic will provide You with a complete copy
of the source Code for all of the Program Property. You agree
that You will use the source Code only for Your internal
maintenance of the Program. Notwithstanding any other
provisions of this Agreement, if You make changes to the
source Code, then all of Epic's warranty, support, and
maintenance obligations shall cease. You agree that You will
not modify the source Code in any way that will affect the
Program Property's ability to count Your Volume or the
accuracy of such counts.
b. UNLICENSED SOFTWARE. Epic's various items of software are
integrated for the benefit of Epic's customers. For Your and
Epic's convenience, Epic may provide You with object and/or
source code for items of software that are not licensed under
this Agreement. In such event, Epic will normally deactivate
the object and source code for the unlicensed items. You agree
that You will not modify the source code of such items or of
any of the Program Property in a manner that would allow You
or anyone else to use the unlicensed object or source code.
You agree not to use such unlicensed source or object code.
You also agree not to copy such unlicensed source or object
code other than as is incidental and necessary for any
properly licensed copying of the licensed Program Property. In
addition, although such code is not Program Property under
this Agreement, the non-Program Property Code will also be
subject to the restrictions on the use, confidentiality,
safekeeping and copying of Program Property under Section 11
of this Agreement.
20. NOTICE
a. GENERAL. No notice required to be provided in this Agreement
shall be effective unless it is in writing; is delivered to
the other party by either reputable overnight courier, U.S.
mail by registered, certified or overnight delivery service,
with all postage prepaid and return receipt requested, or by
personal delivery; and is addressed to:
If to Epic:
Xxxxxx X. Xxxxxxxx
President
Epic Systems Corporation
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
or to such other address as Epic may designate by written notice to
You; and
If to You:
Xxxxxxx X. Xxxxxxxx
President
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The TriZetto Group
000 Xxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
or to such other address as You may designate by written notice to
Epic.
b. INVOICES. Invoices should be sent to:
Accounts Payable
The TriZetto Group
000 Xxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
or to such other address as You may designate by written notice to
Epic.
21. MISCELLANEOUS
a. GOVERNING LAW, FORUM AND JURISDICTION. The validity,
construction and enforcement of this Agreement shall be
determined in accordance with the laws of Wisconsin, without
reference to its conflicts of laws principles, and any action
(whether by arbitration or in court) arising under this
Agreement shall be brought exclusively in Wisconsin. You
consent to the personal jurisdiction of the state and federal
courts located in Wisconsin.
b. SEVERABILITY. The provisions of this Agreement shall be
considered as severable, so that the invalidity or
unenforceability of any provisions will not affect the
validity or enforceability of the remaining provisions;
provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to
either party.
c. NO WAIVER. The failure of either party to require the
performance of any item or obligation of this Agreement, or
the waiver by either party of any breach of this Agreement
shall not act as a bar to subsequent enforcement of such term
or obligation or be deemed a waiver of any subsequent breach.
d. PURCHASE ORDERS. Your purchase orders will be accepted by Epic
for accounting convenience only. No terms or conditions
contained in any purchase order shall amend this Agreement or
shall otherwise constitute an agreement between the parties.
e. ENTIRE AGREEMENT. This Agreement and the schedules and
exhibits herein, is the entire agreement between the parties
with regard to the subject matter of this Agreement and
supersedes and incorporates all prior or contemporaneous
representations, understandings or agreements, and may not be
modified or amended except by an agreement in writing signed
between the parties hereto. Each party represents that the
individual signing below on behalf of the party has the
authorization to bind the party indicated to this Agreement.
f. SUBCONTRACTING. Epic may subcontract services to be performed
under this Agreement to one or more subcontractors. No
subcontractor will begin working on any project or task until
You have first agreed in writing (on a
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change order form, by letter or otherwise) to the proposed
subcontractor and the specific project or tasks to be
subcontracted. Epic will be responsible to You for the work
performed by the subcontractor to the same extent that Epic
would be if it were Epic's own work. All other provisions of
this Agreement shall apply to the work of the subcontractor in
the same manner and to the same extent as if the work were
performed by Epic hereunder. All source code, object code and
associated documentation provided to You by the subcontractor
pursuant to this Agreement shall be owned by Epic and subject
to all applicable confidentiality and use restrictions as if
such code or documentation had been provided by Epic. Epic may
provide the subcontractor with a copy of those sections of
this Agreement with which the Subcontractor must comply. If
the Subcontractor needs access to Your confidential
information to perform the subcontracted services, Epic may
provide such access if the Subcontractor first agrees in
writing to comply with all confidentiality provisions
contained in this Agreement that apply to such information.
g. RESTRICTION ON OFFERS OF EMPLOYMENT. Before either party
directly or indirectly offers employment to, or discusses the
terms of prospective employment (such as salary and benefits)
with any person who is currently employed by the other party,
such party will first contact the management of the other
party (Your CIO or equivalent and Epic's president) to inform
the other party about such possibility.
h. INCORPORATION OF APPENDICES AND EXHIBITS. All appendices and
exhibits attached to this Agreement are incorporated into and
form a part of this Agreement.
i. HEADINGS. Headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning and interpretation of this Agreement.
j. SITE VISITS. From time to time a prospective customer for one
or more Items of Epic Program Property may contact You
concerning a visit to Your site for a demonstration of Epic
Program Property. Epic desires to participate in such
demonstrations and to arrange for such demonstrations to occur
in an appropriate place, time and manner agreed to by You.
Therefore, You agree to conduct any "site visits" related to
demonstrations of Epic's Program Property for potential Epic
customers only with Epic's prior approval.
k. PROVIDER ASSISTANCE TO EPIC. From time to time Epic may ask
Your providers to assist Epic with certain development
projects. Epic will pay Your providers for such assistance.
You agree to consider such requests in good faith and to allow
Your providers to so assist Epic unless such assistance
-25-
26
to Epic would place an unreasonable burden upon Your
operations.
l. NOTICE OF INTENT TO USE. Prior to entering into any Service
Bureau Agreement with a new customer or the addition of a new
application to the service provided to an existing customer
which includes the provision of services that will utilize the
Licensed Program Property, You will notify Epic, in a manner
to be agreed to by Epic and You, of the name and address of
the customer, the Items of Licensed Program Property to be
utilized in providing the services to the customer, and the
anticipated volume levels for each Item of Licensed Program
Property. You will not finalize any such new or expanded
agreement without the written consent of Epic. Epic shall
withhold such consent if You are in Material Breach of this
Agreement or are more than sixty (60) days past due in the
payment of any amounts due to Epic pursuant to this Agreement.
[*].
An example of the latter would be a prestigious, small
start-up or pilot, of a large organization.
m. QUARTERLY REPORTS. Within thirty (30) days of the end of
calendar quarter, or such other period of time agreed to by
Epic and You, You will provide Epic with a written report, in
a form agreed to by the parties, showing Your actual usage of
each Item of Licensed Program Property during the said
calendar quarter. You will also provide Epic with any other
information reasonably required by Epic to monitor your
compliance with this Agreement.
n. AUDIT. Epic may, at its own expense, upon written notice to
You and during mutually agreed upon times, by itself or
through a recognized independent accounting firm, reasonably
acceptable to You, audit Your Volume, as well as the use and
location of Epic's Program Property. Representatives of any
accounting firm retained by Epic shall execute a mutually
agreed upon confidentiality agreement and shall abide by Your
reasonable security regulations while on Your premises. If
Your Volume is found to exceed the Licensed Volume, then Epic
will invoice You for the then current license fee applicable
to Your Volume. Furthermore, if Your Volume is more than [*]
greater than Your Licensed Volume, then You will pay Epic its
reasonable expenses for such audit.
o. ACCESS TO BOOKS AND RECORDS. Epic and You agree to make
available upon the written request of the Secretary of Health
and Human Services or the Comptroller General, or their
representatives, this Agreement and such books, documents and
records as may be necessary to verify the nature and extent of
the costs of the services rendered hereunder to the full
extent required by the Health Care Financing Administration
implementing Section 952 of the Omnibus Reconciliation Act
of 1980, codified at 42 U.S.C. Section 1395x(v)(1)(l), or by
any other applicable federal or state authority.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
-26-
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THIS AGREEMENT HAS BEEN ENTERED INTO AS OF THE EXECUTION DATE INDICATED BY YOUR
SIGNATURE BELOW.
EPIC SYSTEMS CORPORATION TRIZETTO GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx -------------------------------
-------------------------------
Name: Xxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxxxx ------------------------------
------------------------------
Title: Senior Vice President
Title: President -----------------------------
-----------------------------
Date: 5-21-99
Date: 5-25-99 ------------------------------
------------------------------
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APPENDIX A
DEFINITIONS
1. "Affiliate" means any person or entity with whom You have a business or
employee relationship and includes those entities for which You provide
Service Bureau Services using the Epic Software and Documentation
licensed under this Agreement. "Affiliates" shall not include
businesses that provide outsourcing or facility management services
unless Epic agrees in writing that such entities may become Your
Affiliate.
2. "Affiliated Companies" means an entity that (a) directly or indirectly
owns or controls at least fifty percent of the applicable party, or (b)
is at least fifty percent owned or controlled, directly or indirectly,
by the applicable party or an entity described in clause (a).
3. "Annual Volume" means:
(a) for all Items other than Tapestry and its modules, the
aggregate Volume for an Item of Program Property during the
twelve-month period beginning on the date of this Agreement
and for each succeeding twelve-month period thereafter
(whether or not You have increased the Licensed Volume); and
(b) for Tapestry and its modules, Annual Volume is the number of
members (see Exhibit 6) as of the last anniversary of the date
of this Agreement (or as of the date of this Agreement until
its first anniversary).
4. "Change Order" means the form attached to this Agreement as Exhibit 3
or such appropriate substitute form designated by Epic.
5. "Claims" shall include without limitation all claims, demands, actions,
liabilities, losses, damages and expenses including, without
limitation, settlement costs, and reasonable attorney's fees.
6. "Clinical Support Materials" shall mean the following types of data and
forms: SmartForms, SmartSets, SmartText, SmartPhrases, BestPractices
Pathways, BestPractices Decision Support Rules, Selection Lists,
Flowsheets, Handouts and Letter forms, After Visit Summary forms,
Preference Lists, and similar such data and forms that become available
using the Program Property.
7. "Code" means the object code and source code of the Program Property,
including all Updates and other modifications to the Program Property
provided by Epic to You pursuant to this Agreement.
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8. "[*]" means the [*] that is further identified on Exhibit 1(a) hereto.
9. "Current Version" means the most recently released version of the
particular Item for use on Your Designated Platform or any interim
version released since the last major version. Major versions are
typically released approximately once per year. Interim releases
currently are typically released once every three to four months. If
You are operating the most recent major version or a subsequent interim
version, then You will be deemed to be operating the Current Version.
10. "Designated Platform" means the make and model of the processor and its
operating system specified on Exhibit 1(a) hereto, it does not refer to
a specific processor designated by serial number.
11. "Directory" means and includes both: (i) each separate copy of the
server Code of the Program Property used to process actual patient
data; and (ii) each actual patient data base exceeding one that is
processed by the same server Code copy of Program Property. For
example, if You use three separate copies of the server Code of the
Program Property to process actual patient data, two of those copies
process only one patient data base each and one of those copies
processes two patient data bases, then You would be using four
Directories. You will notify Epic that You are creating an additional
Directory at least thirty days before the date such Directory is
created.
12. "Documentation" means any instructions, manuals or other materials
relating to the installation, operation or Code of the Program Property
that is provided by Epic to You pursuant to this Agreement.
13. "ECI" means the Employment Cost Index for Total Compensation (not
seasonally adjusted), Private Industry Workers, White-collar
occupations excluding sales, June 1989 = 100, compiled by the U.S.
Department of Labor, Bureau of Labor Statistics. The most recently
published ECI prior to the date of this Agreement shall be the base for
measuring any changes in the ECI, unless otherwise specified in this
Agreement. If publication of the ECI is discontinued, Epic may, in its
sole reasonable discretion, substitute a similar cost index for use for
the purposes that the ECI is used in this Agreement.
14. "End User" means any Affiliate granted access to or the right to use
the Program Property pursuant to Section 14.
15. "First Live Use" of a Major Item of Program Property occurs when You
first use such Item to process actual patient data for production
purposes. "First Live Use" of an Optional Item of Program Property
occurs upon the earlier of when You first use such Item to process
actual patient data for production purposes or the date of First Live
Use of a Major Item with which such Optional Item may be used by You if
the Optional Item is installed and available for use with the Major
Item.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
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30
16. "Implementation Schedule" means the implementation schedule for Items
of Program Property other than those set forth on Exhibit 1(a) as of
the date of this Agreement.
17. "Indemnitees" means the applicable party hereto, its affiliated
companies, all employees, officers and directors of the applicable
party and its affiliated companies, and, for Your Indemnitees, all End
Users. Thus, "Your Indemnitees" means You and each of these persons or
entities who are related to You, and "Epic Indemnitees" means Epic and
each of these persons or entities who are related to Epic.
18. "Item" means each individual line item of Program Property specified on
Exhibit 1(a). An Update is not a new Item, but shall be deemed to be
the same Item as the earlier version of Program Property upon which the
Update is based.
19. "Licensed Volume" means the limitation(s) on Your Annual Volume for
each Item as initially specified in Exhibit 1(a) and increased pursuant
to Section 6(c). You represent to Epic that You reasonably calculated
Your expected Annual Volume for each Item based on Your current
operations as if each Item were fully implemented and that such
expected Annual Volume does not exceed the initial Licensed Volume for
such Item as provided in Exhibit 1(a).
20. "Major Item" shall mean any of the following Items of Program Property:
EpicCare, Cadence, Resolute, Tapestry, Outpatient Registration,
EPIcenter, or Cohort.
21. "Maintenance Program" means the program of maintenance and support
available to You from Epic under the terms specified in Section 7.
22. "Non-Program Property Error" means any apparent or real defect, error,
or other anomaly relating to the operation of the Program Property that
is reasonably determined by Epic, after reasonable inquiry and
investigation, either not to have originated from the Program Property
(such as incorrect use of the Program Property or Your hardware; input
errors; or errors or defects originating in Your hardware, Your
communications equipment, the operating systems, the Operating
Environment software, the [*], the [*], the Programming Points Code
developed by You, or in any application software other than the Program
Property) or to have resulted from modifications of the Program
Property by anyone other than Epic. As used herein, "incorrect use of
the Program Property" means data processing procedures used by You that
do not substantially comply with the procedures described in the
Documentation associated with the Program Property.
23. "Operating Environment" shall mean the software published by [*] which
is identified on Exhibit 1(a) hereto and which shall be either the
current version of [*] products. With Epic's and [*] consent, You may
also be able to license [*] product directly from [*], since Epic does
not currently offer a sublicense to this product.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
-3-
31
24. "Optional Item" shall mean any Item of Program Property other than a
Major Item.
25. "Other Third Party Software and Data" shall mean the software and data
specified in the "Additional Billing Information" section of Exhibit 1
(a) other than the Operating Environment.
26. "Program Error" means an error or defect in the Code which results in
the failure of the Program Property to operate or to produce output on
the Designated Platform in substantial conformity to descriptions of
such operation or output in the Documentation for the Program Property.
27. "Programming Points Code" means software code (other than the Code)
that is developed to be executable at places in the Code that are
designed to permit the execution of external code.
28. "Program Property" means each of the following with respect to each
computer program listed as an Item of Program Property on Exhibit 1
(a): the computer program object and source code, the Documentation,
and all Updates and other modifications to the object or source code
that are provided by Epic to You pursuant to this Agreement.
29. "Reasonable Workaround" means a workaround of a Program Error that does
not materially decrease the general utility of the Program Property.
30. [*]
31. "Substantive Program Error" means any Program Error that materially and
adversely affects Your operations.
32. "Superseded Version" means the second most recent version of an Item
released to You that is intended for use on Your Designated Platform.
33. "Total License Fee" means the sum of the license fees for the Program
Property listed in Exhibit 1(a).
34. "Update" means a release or version of the Program Property containing
functional enhancements, extensions, error corrections or fixes if such
release or version is intended for use on the Designated Platform and
is generally made available free of charge (other than charges for
media, handling and installation and services) to Epic's customers who
are then participating in Epic's Maintenance Service Program. An Update
will include the Code and its associated Documentation.
35. "Volume" means the actual level of use by You of an Item of Program
Property determined as provided in Exhibit 6 (e.g.,
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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32
according to patient visits or members, depending upon the Item) and
Section 14(b(i)(1).
36. "Warranty Period" means, for each Item of the Program Property (other
than Items of Program Property set forth on Exhibit 1(a) as of the
date of this Agreement, for which there is no warranty), the ninety-day
period beginning on the date of the First Live Use of such Item.
37. "Workstation Code" means components of the object Code, if any, which
are designed to operate on personal computers for the purpose of
accessing the object Code on Your server(s).
38. "Your Confidential Information" means, except as provided below, all
confidential patient data stored using the Program Property, Your
confidential information concerning Your business strategies, and Your
confidential financial information. "Your Confidential Information"
shall exclude, without limitation, any information that: (a) is now or
hereafter becomes publicly known through no act or failure on the part
of Epic and without breach of this Agreement; (b) is known by Epic on a
nonconfidential basis at the time of the receipt of such information;
or (c) relates to the identity of Program Property modules that have
been licensed by You, the types and configuration of hardware or
operating systems on which the Program Property operates for You, or
the identity of any software or hardware systems with which the Program
Property interfaces for You.
-5-
33
LIST OF EXHIBITS
EXHIBIT DESCRIPTION
------- -----------
1(a) List of All Licensed Program Property, Additional Billing
Information, and Applicable Limitations
1(b) Fees for Additional Directories
1(c) Maintenance Fees and Good Maintenance Program
3 Change Order Form (for requesting Customization)
4 Epic's Current Standard Hourly Rates
4(j) Marketing Assistance Packages
6 Definition of "Volume"
7 Epic's Support Policies
8 Epic's Service Response Times
Addendum [*] Addendum: Terms of [*] Sublicense
Addendum [*] Addendum: Terms of [*]
Addendum [*] Addendum
Addendum Distinct Addendum
Addendum Diagnostic Data Addendum
Addendum Illustration Addendum
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
34
EXHIBIT 1(a)
The Program Property shall include the following listed items of standard or
customized programs on the following specifically listed Designated Processor,
for one production copy (unless otherwise provided), and for the limitations on
use indicated:
INITIAL
PROGRAM PROPERTY MTNC. COMMENTS
A. CADENCE ENTERPRISE APPOINTMENT See Licensed for [*]
SCHEDULING SYSTEM Exhibit
1(c)
Additional Cadence-Related Items
B. Advanced, Ancillary Scheduling Features See Licensed for [*]
Exhibit
1(c)
C. Chart Tracking See Licensed for [*]
Exhibit
1(c)
D. RESOLUTE PATIENT ACCOUNTING SYSTEM See Licensed for [*]
Exhibit
1(c)
E. TAPESTRY MANAGED CARE SYSTEM See Licensed for [*]
Exhibit
1(c)
Tapestry Modules
F. Referral Authorization See Licensed for [*]
Exhibit
1(c)
G. Claims Adjudication See Licensed for [*]
Exhibit
1(c)
H. Capitation Payment See Licensed for [*]
Exhibit
1(c)
I. Case Management/Concurrent Review See Licensed for [*]
(Tapestry UM) Exhibit
1(c)
J. EPICCARE ELECTRONIC MEDICAL RECORDS See Licensed for [*]
SYSTEM Exhibit
1(c)
K. EPICCARE ORDERS/RESULTS SYSTEM See Licensed for [*]
Exhibit
1(c)
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
35
ADDITIONAL ITEMS
L. Analyst Ad Hoc Report Generators and See Licensed for [*]
Statistics Exhibit
1 (c)
M. Clarity Enterprise Reporting* See Licensed for [*]
Exhibit
1 (c)
X. Xxxxxxx EDI Developer's License See Licensed for [*]
Exhibit
1 (c)
O. Advantage See Licensed for [*]
Exhibit
1 (c)
P. Epic Standard Outgoing Lab Orders (HL7) [*] Licensed for [*] annual patient visits for the formerly
per known [*] directory; maintenance will begin on go-live
month
Q. Epic Standard Incoming Lab Results (HL7) [*] Licensed for [*] annual patient visits for the formerly known
per [*] directory; maintenance will begin on the effective date
month of the agreement
Program Property Transfer Fee [*]
MONTHLY
Additional Billing Information - Description Mtnc.
(not Program Property) (US $) Comments
Requested Enhancements [*] [*] Maintenance starts on the [*] of the agreement
Interface Customizations [*] [*] Maintenance starts on the [*] of the agreement
Requested Enhancements [*] [*] Maintenance starts on the [*] of the agreement
[*] TBD
[*] TBD [*] concurrent user run-time license.
Licensed with Analyst.
[*] TBD Licensed for [*]
[*] [*] Site License for [*]
LIMITATIONS
THE LICENSED VOLUME FOR EACH ITEM IS SPECIFIED IN THE COMMENTS SECTION.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
36
EXHIBIT 1(b)
EPIC SYSTEMS CORPORATION
LICENSE FEES FOR ADDITIONAL DIRECTORIES
Epic is to be notified 30 days prior to the creation of any new directory using
the attached election form. If Epic installation services are desired, such
request is to be made at least 60 days before any such assistance is required.
I. LICENSE FEE PRICE
If all of the following are true, then you may purchase an additional
directory as an extension of the existing visit volume.
o All [*] are the responsibility of the client; and
o There is [*] and
o There is [*]
Epic shall determine, in its judgment based upon the above factors, which
pricing calculation shall apply. The factors listed above are intended as
guidelines -- if in Epic's judgment, [*] then Epic will apply [*] prices
to the new directory.
The current fee for an additional Directory is [*] or part thereof in the
Licensed Volume attributable to the additional Directory (the "Additional
Directory License Fee"). Epic may, upon [*] notice to You [*]. Additional
Directory License Fees will be applied to all [*] other than the [*] with
the [*] for any item of [*] (e.g., if the [*] attributable to one [*] for
[*] and the [*] attributable to the second [*] for [*] would be the [*].
The Additional Directory License Fee is due and payable [*] of the
additional Directory and [*]. As the [*] to an [*] the [*] for that [*]
will be [*] in the [*] and any [*] when the [*].
When You add a Directory, Your [*] must be [*] from the additional
Directory [*]. Additional license fees due for such an upgrade in Your [*]
will be due and payable [*] at the time [*] of the additional Directory and
[*].
II. INSTALLATION CHARGE FOR ADDITIONAL DIRECTORIES
The standard hourly rate schedule for installation services for additional
directories is described in Exhibit 4.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
-1-
37
ELECTION TO ADD NEW DIRECTORY
EPIC SYSTEMS CORPORATION
Pursuant to its License Agreement with Epic Systems Corporation ("Epic"), You
hereby elect to add an additional Directory as follows:
Name of Affiliate
Location
Software Applications Name Expected Annual
Volume
Pricing (check one): ________ Aggregate with Licensee (Extension Sale Pricing)
________ Separately priced (requires separate agreement
between You and Epic)
Epic Installation Assistance Requested: _______ Yes _______ No
Approximate Date Directory is anticipated to go live: _________________________
Authorized Licensee Signature:_________________________
Print Name: _________________________
Title: _________________________
Date: _________________________
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EXHIBIT 1 (c)
MAINTENANCE FEES/GOOD MAINTENANCE PROGRAM
(MULTI-DIRECTORY)
1. GENERAL.
Your total annual maintenance fees for Items of Program Property set forth
on Exhibit 1(a) as of the date of this Agreement will be calculated as
provided in Schedule 1 to this Exhibit 1(c). Maintenance fees are due [*]
in advance. You and Epic agree to negotiate in good faith to determine the
maintenance fees for Epic products that You add as Items of Program
Property.
Your initial monthly maintenance fee for any customized Code is equal to
the [*] for the [*] multiplied by the [*] provided in Epic's quotation on
the applicable Change Order (i.e., [*]). If a quotation is not completed or
the maintenance fee is left blank, then the rate is Your initial [*]
maintenance fee for interfaces will be determined at the time that You add
the interface.
II. ADJUSTMENTS.
The annual maintenance fees will remain at the initial rates for a time
period of [*] months from the execution of this Agreement. After that
period, Epic may change the maintenance fees from time to time. During the
first [*] years of this Agreement, the total amount of any increases in
maintenance fees [*] for any Item shall not exceed the [*] per year.
III. [*] MAINTENANCE CHARGES [*].
If You have [*] then You will be charged [*] for [*]. The [*] for each [*]
is based on [*] and the amount is derived from the table below.
[*]
IV. THE [*] PROGRAM.
A. GOALS.
The [*] has several goals:
o Encourage you to [*] to your users
o Reduce your [*]
o Reduce Epic's [*]
B. REQUIREMENTS OVERVIEW
You agree that You will:
o Have all [*] and all other [*] communicated by [*] for [*] for
which they are calling;
o Maintain a [*] for [*];
o Have a [*] for [*];
o Have appropriate [*] and appropriate [*];
o [*] to Epic's [*] within [*] from [*] it is made generally
available;
o Participate in a [*]; and
o Participate in [*] and an [*] every year;
o [*] your [*] and your [*] with [*] and the [*];
o Stay up to date on the payment of invoices.
More details on these requirements are provided in Sections C - K
below.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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39
C. [*]
Only [*] who are [*] can contact Epic with questions about [*].
In addition, your [*] must utilize [*] and maintain a [*] and of [*] to
help them see if the answer [*] before they contact Epic.
After a question is answered by Epic, the [*] involved will [*].
If you have multiple sites in multiple cities, you may have [*] at any of
[*] except for [*] who must be [*].
[*]
To be [*] need to
o take the [*] to be a [*] and get a [*].
o keep [*] the appropriate [*] at the [*] or by [*] during the year
which cover [*]. Each year, Epic will publish the [*]. It is not
expected that [*] will be required.
o Systems staff may be [*] to take [*] and obtain [*] from [*] in
addition to the above.
D. [*]
You must [*] a detailed [*] which [*]. The [*] shall contain all [*] for
the ongoing [*] whether assigned to You or to Epic. You must [*] with [*]
regarding the [*].
E. [*]
Each [*] must have [*]. You must have [*] following [*]. You must provide
Epic with access to the server(s) on which the Program Property is
installed through a [*] as agreed to by Epic, with a minimum guaranteed
bandwidth of at least [*] per second between Epic and You. The connection
between Epic and the server(s) on which the Program Property is installed
will have a maximum latency of [*]. Collectively, the access technology
requirement and the connection requirement are the "Minimum Access
Requirements." [*]. You will be responsible for [*], including [*]. Epic
may revise the Minimum Access Requirements from time to time to ensure
that access is still adequate given changes in technology. Epic will
notify You of any such revisions to the Minimum Access Requirements. You
agree to [*] cost, to meet the Minimum Access Requirements within [*] of
written notice from Epic to You of any such change.
F. [*]
You must have the [*] installed and working well, and you must have [*]
appropriate for the [*].
G. STAYING CURRENT
You must have [*] no later than [*] after [*] is first [*].
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
-2-
40
H. [*]
Your [*] for [*] will [*] to meet with [*]. At least [*] for each [*] will
participate. This trip is separate from the [*] so that the focus can be
on [*]. In alternate years, Epic's technical staff will visit some of your
user sites to [*] and to give [*]. At least [*] for each Application area,
Topic area, and Foundation area will [*] on these trips. You will cover
[*] expenses for up to [*] per trip and Epic will cover the [*].
I. [*]
The [*] encourages regular [*] and a [*]. Your [*] will visit Epic every
other year. Executive staff includes the senior management of your
organization for business [*], technical [*], and clinical [*] for all
regions using the software. [*] will visit [*] every other year.
[*] from your organization will have [*] with [*] during the [*] and [*].
J. [*]
You will allow [*] to have up to [*] per year for every [*] or part
thereof you have licensed. [*] will be conducted only at your and our
mutual convenience.
K. [*]
You will provide to [*] all [*] created using or for use with [*] (except
as provided below) and all of your [*] created using or for use with the
[*] means the following types of data and forms: [*] may make these [*]
and [*] to any of [*] for their use either [*] or through the [*]. You may
designate [*] and [*] that could give [*] through a procedure to be
determined by [*] if no more than [*] of Your total [*] and [*] are so
designated. These [*] will [*] except with [*] and You are not required to
[*]. Except as otherwise agreed by Epic in writing, You hereby waive any
[*] that you may have with respect to any [*] and [*] that You provide to
[*] (except those that [*] as specified above) and to any [*] that You
submit to the [*].
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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SCHEDULE 1
TO EXHIBIT 1(c)
EPIC APPLICATION MAINTENANCE FOR OUTSOURCING
MARCH 1999
Use the table below to determine Your maintenance payment to Epic for each
service bureau Affiliate of Yours. The annual maintenance payment per such
Affiliate is determined per "maintained" provider at that service bureau
Affiliate. A "maintained" provider is one who is actually setup to use EpicCare,
or whose volume (patient visits or members, as applicable) is counted for
purposes of Cadence, Resolute or Tapestry. Providers include physicians, nurse
practitioners, physicians' assistants, ophthalmologists, podiatrists, midwives,
and the like.
Maintenance for an optional module package is charged when one or more of the
Items of Program Property in that package is being used. The charge is the same
whether You use one or more of the Items of Program Property from a specific
module package.
Annual Maintenance is based upon "maintained" provider, whether employed,
affiliated, contracted, or sub-contracted. Providers can be counted in multiple
ways, including but not limited to the following: listings in the provider
directory and/or master files, names associated as the provider for a patient
encounter, having a template in scheduling for seeing patients, and assignment
as a PCP. Epic may dial into the systems at regular intervals to measure
provider counts.
No. of Providers Annual Maintenance - Main Apps Annual Maintenance-Optional Module Packages
---------------- ------------------------------ -------------------------------------------
[*]
(1) Includes [*]
(2) Includes [*]
(3) Includes [*]
(4) Bridges [*]
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
42
EXHIBIT 4
EPIC HOURLY RATES
Person Providing Services Hourly Billing Hourly Billing
Rate Rate
(at Epic) (On Site)
Installation and Application Coordinators [*] [*]
Application Training Staff [*] [*]
Programmer [*] [*]
Documentation Staff [*] [*]
Interface & Conversion Customization, Training & Support Staff [*] [*]
M Installation, Training & Support Staff (if not purchased through Epic) [*] [*]
Hardware & Systems Installation, Training, and Support Staff [*] [*]
Physician Staff [*] [*]
Services provided outside regular business hours are [*] the above rates [*].
Travel time outside of the United States and Canada will be billed at [*] of the
on-site rate.
For training at Epic, you will not be charged hourly, but by the number of
persons attending the training per day as provided below.
CHARGES FOR TRAINING AT EPIC
Charge Per Person Attending Training Per Day
First [*] of Your Next [*] of Your Your Additional
Trainees For a Trainees For a Trainees for a
Type of Training Session Session Session
--------------------------------------------------------------------------------------
Application, Administrator and $[*] $[*] $[*]
Other Training at Epic (Except
System Manager/Work Station
Training)
System Manager/ Work Station $[*] $[*] $[*]
Training
All prices on this Exhibit 4 are subject to change [*], except that prices are
firm for [*] from contract date.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT 4(j)
MARKETING ASSISTANCE
Epic will provide You with the following sales and marketing assistance for the
prices indicated. You must notify Epic in writing of Your election prior to
arranging for marketing assistance services. Fees for any marketing assistance
are due before service is provided.
MARKETING AND SALES PACKAGE
- [*] of Epic assisted demos (by up to [*] Epic employees per demo as staff
are available). Prices at [*] per day per Epic employee.
- [*] assisted response reviews for Request for Proposals, as Epic staff is
available.
- [*] copies of all Epic marketing literature at Epic cost.
- Inclusion of TriZetto's name and description of service on Epic's Web.
- Assistance in building a PowerPoint presentation.
- Training for [*] TriZetto staff on demoing Epic Software at Epic's hourly
rates.
- Allow TriZetto staff to participate in Epic UGM and Advisory Councils, at
Epic standard rates.
- Use of Epic name, logos, trademarks, and service marks, subject to prior
written approval by Epic, in connection with sales and marketing materials
developed, produced and used by TriZetto.
- All out of pocket costs including travel in the package are not included.
Epic will assist TriZetto with the Medic client sales demos as requested,
and include the trips in the PACKAGE.
- Access to the Epic Website for questions about the products.
- Sales technique packets on how to sell our systems, when available.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
44
EXHIBIT 6
DEFINITION OF A "VOLUME" BY ITEM OF PROGRAM PROPERTY
"Volume" is defined differently for different Items of Program Property. Except
as otherwise noted below, "Volume" is determined according to the number of
"Patient Visits" relating to such Item. For such purposes, "Patient Visit" is
defined by Item of Program Property as follows:
o With respect to the [*], "Patient Visit" is a [*] between one or more
[*] and a patient that results in the [*]. Such encounters shall be
counted as a [*]. Encounters with persons other than [*] shall not be
counted if each such encounter is [*] directly resulting from a [*]
so that there is no more than [*] for each counted [*] otherwise such
encounters shall be counted as [*].
o With respect to the [*] a "Patient Visit" is a [*] except that [*]
for the [*] are counted as [*].
o With respect to [*] a "Patient Visit" is any patient visit that [*]
plus any occurrence of a charge for a patient using [*]. If the [*]
is not licensed under this agreement, then Patient Visit [*].
o With respect to the [*] "Patient Visits" will be determined according
to the [*]. The "Patient Visits" [*] will be based on the Patient
Visits used by the first [*]. You have licensed in the following list
[*].
o With respect to the [*] Volume is based on both "Patient Visits" and
"Additional Active Patient Records" as defined below. A "Patient
Visit" for [*] is any [*] or the [*] is licensed [*] then Your Volume
for [*] is determined exclusively using the [*].
The "Volume" for certain applications is based in whole or in part on
"Additional Active Patient Records." For such purposes, "Additional Active
Patient Records" is defined as follows:
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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45
o With respect to the [*] an "Additional Active Patient Record" is any
[*] and not accessed by the [*] during any given one year tracking
period. [*].
o With respect to the [*] an "Additional Active Patient Record" is any
[*] shall include [*] shall not be included in the [*].
The "Volume" for the [*] is based solely on [*].
The "Volume" for the [*] and the [*] is based on the total number of [*] are
the total number of [*] that are [*].
The "Volume" for the [*] is based on Patient Days. A "Patient Day" [*] and any
visits by a patient to one of [*] all to the extent that the [*] has been used
[*] to such [*]. A minimum of [*] is used.
Certain Items are licensed based on user level. When this is applicable, these
Items are indicated on Exhibit 1(a).
With respect to other Items of Program Property, Epic will determine which of
the above counts is appropriate or whether an alternative means of determining
Volume is appropriate.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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EXHIBIT 7
EPIC SYSTEMS CORPORATION
SUPPORT POLICIES
Telephone consultation and assistance support will be available to You at any
time, 24 hours per day and 7 days per week as provided below.
REGULAR BUSINESS HOURS
Our regular business hours are 8 a.m. to 5:30 p.m., Monday through Friday,
Central Time, excluding holidays (currently New Year's Day, Good Friday,
Memorial Day, July 4, Labor Day, Thanksgiving, Christmas Eve, Christmas, and New
Year's Eve.). During our regular business hours, telephone consultation and
assistance concerning the Program Property under the Maintenance Program will be
provided at no additional charge.
EXTENDED DAILY SUPPORT
Extended hours are 7 a.m. to 8 a.m., and 5:30 p.m. to 8:00 p.m., Central Time
Monday through Friday, holidays excluded, for urgent problems. There will be an
operator at Epic to answer your calls. There is no additional charge for this
support.
AFTER HOURS SUPPORT
For urgent problems after 8:00 p.m. or before 7:00 a.m. Central Time, or on
holidays you can dial support directly at [*]. Or, you can access urgent support
through our regular phone number by dialing "0" when you hear the message.
(There will be a 10 second delay.)
During the Maintenance Program, consultation and assistance concerning any
Program Errors at any time will be provided by Epic without any additional
charge as provided in your Agreement.
If you request consultation and assistance after 8:00 p.m. or before 7:00 a.m.
Central Time or on a holiday or weekend, and such consultation and assistance is
not with respect to a Program Error, then there is an additional charge for this
service as follows:
PLANNED AFTER HOURS SUPPORT
You can schedule support for an evening, weekend, or holiday. The charge is
[*] the hourly rate for the task, with a $[*].
UNPLANNED AFTER HOURS SUPPORT
A signed authorization (fax, Change Order, etc.) is required. Please fax it
before you call. If you have a Standing Purchase Order with Epic, the
charge is [*] the hourly rate for the task, with a $[*]. Without a Standing
Purchase Order, the charge is twice the hourly rate for the task, with a
$[*].
24 HOUR SUBSCRIPTION SERVICE POLICY
A seven days a week, 24 hours a day service is available at standard hourly
rate plus a base fee (based on number of software systems, number of
sites/directories, and size of installation). Please contact Epic for
details.
These prices are available only to customers on standard maintenance.
Epic reserves the right to change these policies and prices without notice.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
Page 1
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EXHIBIT 8
SERVICE RESPONSE TIMES
1. Epic will use reasonable efforts to acknowledge errors identified by
Licensee and provide workarounds or corrections according to the following
schedule as measured from Epic's receipt of the request and in accordance
with the priority level of the Error, as set forth below.
LEVEL OF PRIORITY:
Level 1 Critical: The problem renders the Program Property unusable at one
or more Data Centers or Medical Centers or severely impacts normal
processing at any such Data Center or Medical Center or the problem
threatens the integrity of clinical data.
Level 2 Serious but not Critical: The problem affects a portion of the
Program Property at one or more Data Centers or Medical Centers and makes
that portion of the Program Property unusable.
Xxxxx 0 Not Serious: The problem is of minor nature and does not
substantially affect the use of the Program Property at one or more Data
Centers or Medical Centers.
RESPONSE TIMES: *
Level 1: Acknowledgment of the problem within one (1) hour and initiation
of action immediately thereafter.
Level 2: Acknowledgment of the problem within four (4) hours and initiation
of action within same day.
Level 3: Acknowledgment of the problem within one (1) business day.
* The response times set forth above are for service requests made during
Epic's regular business hours. For service requested at other times, the
anticipated response times shall be tripled; however, Epic shall make
reasonable effort to provide response within one hour for Level 1 problems.
The response times are determined from the earlier of the time that (i)
Licensee receives a tracking number from Epic that is assigned specifically
to that service request; or (ii) Epic's answering service answers
Licensee's call after Epic's regular business hours and Licensee clearly
informs the answering service that the call is a request for after-hours
support service. Messages left in Epic's voice mail system shall not
constitute service requests for purposes of this response time policy.
2. Epic will use reasonable efforts to provide a workaround or correction
within one (1) day for any Level 1 problems and within four (4) days for
any Xxxxx 0 problem. For Level 3 problems, Epic and Licensee shall mutually
agree on an appropriate response time for providing a workaround or
correction, including providing the correction in a later release of the
Software.
3. Licensee may escalate any unresolved problem to the responsible Epic
product manager or to Epic's President, at Licensee's sole discretion.
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[*] SOFTWARE ADDENDUM
STANDARD ADDENDUM - [*]
A part of the software supplied to Licensee by Epic consists of the software
(either M or Cache, as applicable) from [*]. The following terms and conditions
apply to the sublicense of the Sublicensed Software from Epic to Licensee, as
required and authorized by [*].
1. REPRESENTATION OR WARRANTIES OF [*]
EXCEPT AS EXPRESSLY PROVIDED HEREIN, [*] DOES NOT MAKE AND SHALL NOT BE
DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO THE CONDITION, MERCHANTABILITY, TITLE, DESIGN, OPERATION OR FITNESS FOR
A PARTICULAR PURPOSE OF THE SUBLICENSED SOFTWARE OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED OR IMPLIED, WITH RESPECT
TO THE SUBLICENSED SOFTWARE.
a. [*] hereby represents and warrants as follows:
(i) [*] has (a) valid title to the Sublicensed Software, free of all
liens, encumbrances, restrictions and claims of others, (b) the
right to license the same to Epic, and (c) the right to license
Epic to grant sublicenses of the type granted to User by Epic.
(ii) Any Sublicensed Software services performed hereunder or under
any Sublicensed Software maintenance agreement between [*] and
Epic shall be performed by highly skilled personnel qualified to
perform such services and such services shall be performed in a
professional and workmanlike manner in accordance with the then
prevailing standards of the computer services industry.
(iii) The Sublicensed Software and its use do not and will not
violate or infringe upon any currently issued United States
patent or any copyright, trade secret or other property right
(whether conferred by statute, code, common law, or otherwise) of
any other person or entity that is valid or enforceable in the
United States or in any country in which Epic now maintains or
hereafter maintains any office, property or data processing
services.
(iv) The Sublicensed Software, as delivered by [*], is free from
defects in manufacturing and materials and shall operate
substantially in the conformance with the Applicable
Specifications relating to such Sublicensed Software until thirty
(30) days after the later of (a) initial delivery of the
Sublicensed Software to User, and (b) the date when Epic Program
Property is first in live operation by User (the "Software
Warranty Period").
b. During the Software Warranty Period, [*] shall promptly provide,
through Epic and at no charge to User, corrections, modifications or
additions to the Sublicensed Software in the event that Epic notifies
[*] in writing of any substantive errors in the Sublicensed Software.
User shall assist Epic and, upon request, [*], in identifying the
circumstances in which any such substantive errors are discovered and,
if requested by Epic or [*], shall document the existence of the same.
In no event shall [*] have any responsibility to correct any data base
errors or errors or damages caused by or arising out of the hardware
defects or input errors or resulting
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
-1-
49
from changes to or modifications of the Sublicensed Software made by
Epic or User without the express written approval of [*].
c. All warranty claims or other claims pursuant to this section shall be
made to [*] through Epic.
d. The foregoing representations and warranties are by [*] only. Epic
makes no representations or warranties pursuant to, and Epic shall
have no liability arising out of, this section.
2. INDEMNIFICATION OF INTERSYSTEMS
a. [*] shall, and hereby agrees to, indemnify, defend, and hold harmless
User and its officers, employees, agents, and representatives, from
and against any and all claims, actions damages, liabilities, costs,
and expenses (including, without limitation, reasonable attorneys'
fees and expenses arising out of the defense of any claim, whether
proven or not) arising from or based upon a breach by [*] of any of
its representations or warranties in Section 1(a) hereunder,
including, without limitations, any claim or allegation that the
Sublicensed Software (or any component or part thereof) infringes upon
or violates any patent, copyright, trade secret, or other proprietary
right referenced in Section 1(a)(iii) above.
b. (i) The indemnities specified in Section 2(a) above shall not apply
to a specific claim, action, or allegation unless User shall have
provided written notice of such claim, action, or allegation to
[*] as soon as practicable, and shall have granted [*] full
opportunity to control the response thereto and the defense
thereof, including without limitation any agreement relating to
the settlement thereof, provided, however, that user shall have
the right to monitor, at its own expense, [*] defense of any such
claim, action, or allegation and, if necessary, to preclude a
default judgment or other loss of rights, to file pleadings on
its behalf in the event [*] fails to fulfill its obligation to
defend User pursuant to this Section 2.
(ii) In the case of a claim based on a breach of the representation
and warranty contained in Section 1(a)(iii) above, the indemnity
specified in Section 2(a) shall not apply to any claim, action,
or allegation (or any judgment or order related thereto) based
upon: (a) the use by User of the Sublicensed Software in
combination with other hardware or software not supplied by [*],
where the use of the Sublicensed Software alone is not claimed or
alleged to be an infringement; (b) the modification or alteration
of the Sublicensed Software in a manner that is not approved by
[*]; or (c) the failure by User to implement a release or
engineer change order for the Sublicensed Software issued by [*]
(which release or change order does not preclude the Sublicensed
Software from meeting the standards specified in Section 1(b))
c. In the event that the Sublicensed Software (or any component or part
thereof) becomes the subject of any claim, action, or allegation of
the type specified in Section 1(a)(iii), [*] shall promptly use all
reasonable efforts at its expense: (a) to procure for User the right
to continue using the Sublicensed Software (or applicable component or
part thereof); or (b) if such continued use cannot be so procured, to
modify it to become non-infringing; or (c) if such modification cannot
be so implemented, to provide substitute hardware, software, or other
products, components or parts of similar capability acceptable to and
approved by User, which approval shall not be unreasonably withheld or
delayed.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
-2-
50
d. THE FOREGOING STATES THE ENTIRE OBLIGATION OF [*] WITH RESPECT TO THE
INFRINGEMENT OF PATENTS, COPYRIGHTS, AND OTHER PROPRIETARY RIGHTS.
e. The foregoing indemnification is by [*] only. Epic makes no
indemnification pursuant to, and Epic shall have no liability arising
out of, this section.
3. LIMITATION OF LIABILITY
Except as specifically set forth in Sections 1 and 2 above, [*] shall have
no liability of any kind to the User, whether direct or indirect, for any
loss or damage suffered by the User or its employees, agents or
representatives, or customers or patients using the facilities or retaining
the services of the User, as a result of or arising out of the Sublicensed
Software.
The liability of [*] for any loss or damage directly or indirectly suffered
by User as a result of any defects in the Sublicensed Software or any acts
of omission of [*] or its officers, employees, agents, or representatives
hereunder shall in no event exceed any amount equal to the license fees
paid or owed to [*] by Epic in respect of the Sublicensed Software and/or
services on account of which User has suffered loss or damage. The
foregoing shall not apply to claims of property damage or bodily injury or
those claims based on the willful misconduct of InterSystems.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL [*] BE
LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED UPON BREACH
OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER
LEGAL THEORY EVEN IF [*] HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. SUCH DAMAGES SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF PROFITS,
LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR ANY
ASSOCIATED EQUIPMENT OR SOFTWARE, COST OF CAPITAL, COST OF ANY SUBSTITUTE
EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PARTIES
(INCLUDING, WITHOUT LIMITATION, CUSTOMERS OR OTHER PERSONS USING THE
FACILITIES OF THE USER), AND PROPERTY DAMAGE.
4. PROPRIETARY RIGHTS AND CONFIDENTIALITY
a. The Sublicensed Software and related materials (including, without
limitation, the System Documentation) are and shall remain, the sole
property of [*] or one or more of its affiliates. No right to print or
copy, in whole or in part, any such Sublicensed Software, System
Documentation or related materials is granted hereunder except as
herein expressly provided.
b. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE USER AGREES NOT TO
(i) DECOMPILE, DISASSEMBLE OR REVERSE ENGINEER THE LICENSED SOFTWARE
OR (ii) USE OR DISCLOSE OR DIVULGE TO OTHERS ANY DATA OR INFORMATION
RELATING TO THE LICENSED SOFTWARE AND/OR THE TECHNOLOGY, IDEAS,
CONCEPTS, KNOW-HOW AND TECHNIQUES EMBODIED THEREIN.
c. The obligations of confidentiality and non-use described in Section
4(b) above shall not be deemed to include disclosure or other use of
such data or information to the extent that the User can prove the
same is or becomes publicly known within the public domain (other than
by acts attributable to the User or any of its officers, agents,
shareholders of
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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51
privately-held companies, employees or representatives). Information
shall not be deemed to be in the public domain by reason of the
general licensing and other commercial disposition of the Sublicensed
Software by [*] in the ordinary course of its business. The existence
of a copyright notice shall not cause, or be deemed or construed as
causing, the Sublicensed Software or System Documentation to be
published copyright work or to be in the public domain.
d. Nothing contained in this Section shall prohibit the User or any of
its officers, agents, shareholders, employees or representatives from:
(i) using his or its general technical skills when not otherwise
inconsistent with the terms hereof; or
(ii) disclosing data or information pursuant to any enforceable
administrative or judicial order, provided, however, that the
User first notifies [*] of the entry or existence of such order
and of the User's intention to comply with its terms. Data or
information shall not be deemed to be in the public domain solely
by reason of any such order.
e. The User further agrees:
(i) except for back-up security purposes, not to copy, reproduce or
duplicate, or allow to be copied, reproduced or duplicated, in
whole or in part, the Sublicensed Software, System Documentation
or any related materials without the prior written consent of
InterSystems;
(ii) not to provide or otherwise make available any Sublicensed
Software, System Documentation or related materials in any form
to any other Person or organization, without the prior written
consent of InterSystems; and
(iii) that it will take appropriate action with its officers, agents,
shareholders, employees or representatives, by instruction,
agreement or otherwise, to satisfy its obligations under this
Agreement with respect to use, copying, modification, and
protection and security of the Sublicensed Software, System
Documentation and related materials. Without limiting the
generality of the foregoing, the Customer shall in any event
denote the same degree of care to protecting the Sublicensed
Software and System Documentation as it devotes to the
protection of its own confidential and proprietary information.
f. In the event of any breach or threatening breach of the provisions of
this Section, [*] shall, in addition to all other rights and remedies
available to it at law or in equity, be entitled to a temporary or
permanent decree or order restraining and enjoining such breach and
the User shall not plead in defense thereto that there would be an
adequate remedy at law, it being hereby expressly acknowledged and
understood that damages at law will be an inadequate remedy in the
event of such a breach or threatened breach.
g. If, having complied with the foregoing provisions of this Section, the
User has actual notice of any unauthorized possession, use or
knowledge of any part of the Sublicensed Software or physical
embodiment thereof, or of the System Documentation any other
information made available pursuant to this Agreement by anyone else
other than Persons authorized by this Agreement to have such
possession, use or knowledge, the User agrees to notify [*]
promptly of the circumstances surrounding such unauthorized
possession, use or knowledge.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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h. The User shall not remove or destroy any proprietary markings or
proprietary legends placed upon or contained within the Sublicensed
Software or any related materials or System Documentation in the
User's possession.
i. Subject to other restrictions contained herein, User shall have the
right to grant access to the Sublicensed Software to others to the
same extent that User has the right to grant access to Epic's Program
Property under User's license agreement with Epic.
5. DEFINITIONS
For the purposes of this Addendum only, the following definitions apply to
the capitalized terms as follows.
"Affiliate" means, as to a specified Person, any entity controlling,
controlled by or under common control with such Person. For purposes of
this definition the term "control" shall mean the power to control the
operations and policies of such Entity, whether by ownership of voting
stock or other securities or interests, by contract or otherwise.
"Sublicensed Software" means the computer programs (which, unless otherwise
determined by [*] in its sole discretion, shall be in Object Code version
only) licensed by [*] through Epic to the Customer hereunder, which are
more fully identified as [*] software in Exhibit 1(a) to the Epic Standard
License Agreement of which this is a part, together with any Enhancements
and related items which InterSystems may announce while the Agreement is in
effect.
"System Documentation" means the documentation, reference manuals, user
guides and other standard visually readable materials relating to the
Sublicensed Software furnished by [*] to the VAR (Epic) and licensed by
Epic to the Licensee hereunder.
"User" means the Licensee in the Epic License and Support Agreement to
which this is a part.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
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[*] ADDENDUM
This is a software license granted by [*], with its mailing address at [*]. The
[*] (SOFTWARE) is licensed to you as the end user; it is not sold. The SOFTWARE
is subject to the following license terms and conditions.
1. LICENSE
1.1 COPYRIGHT
The SOFTWARE is copyrighted material. Once you have paid the required
license fee, you may use the SOFTWARE for as long as you do not
violate the copyright and if you follow these simple rules.
1.2 MAXIMUM NUMBER OF USERS
You may use the SOFTWARE on any computer or computer network for which
it is designed so long as no more than the specified number of user(s)
(see comments in Exhibit 1(a) to the main license agreement with Epic)
use it at any one time. If you increase the number of users as
indicated above, you must upgrade your license to the appropriate
number of users or pay for additional copies of the SOFTWARE.
1.3 BACKUP COPIES
You may make no more than three (3) copies of the SOFTWARE for backup
purposes and all such copies, together with the original, must be kept
in your possession or control.
1.4 MODIFICATIONS
You may not make any changes or modifications to the Licensed
SOFTWARE, and you may not decompose, disassemble, or otherwise reverse
engineer the SOFTWARE. You may not rent or lease it to others.
1.5 BREACH OF THIS AGREEMENT
In the event you breach this license agreement, [*] may at its sole
option in addition to other remedies terminate your right to use the
SOFTWARE.
2. USING COMPILED QUERY ROUTINES
2.1 QUERY ROUTINES
Compiled Query Routines that are generated by the [*] compiler may
be used, given away or sold without additional license or fees.
3. LIMITED WARRANTY
3.1 DISTRIBUTION MEDIA AND DOCUMENTATION
[*] warrants the physical distribution media (diskettes, tape, etc.)
and physical documentation shipped with the SOFTWARE to be free of
defects in materials and workmanship for a period of 60 days from the
purchase date. If [*] receives notification within the warranty period
of defects in materials or workmanship, and such notification is
determined to be correct, [*] will replace the defective distribution
media or documentation.
3.2 PRODUCT RETURNS
DO NOT RETURN ANY PRODUCT UNTIL YOU HAVE CALLED THE [*] CUSTOMER
SERVICE DEPARTMENT AND OBTAINED AUTHORIZATION FOR SUCH RETURN.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
54
3.3 BREACH OF THIS LIMITED WARRANTY
The entire and exclusive liability and remedy for breach of this
Limited Warranty shall be limited to replacement of defective
distribution media or documentation and shall not include or extend
any claim for or right to recover any damages, including but not
limited to, loss of profit, data or use of the SOFTWARE, or special,
incidental or consequential damages or other similar damage claims,
even if [*] has been specifically advised of the possibility of such
damages. In no event will [*] liability for any damages to you or
any other person ever exceed the lower of suggested list price or
actual price paid for the license to use the SOFTWARE, regardless of
any form of claim.
3.4 YOUR LEGAL RIGHTS
This limited warranty gives you specific legal rights; you may have
others which vary from state to state. Some states do not allow the
exclusion of incidental or consequential damages, or the limitation on
how long an implied warranty lasts, so some of the above may not apply
to you.
3.5 NO OTHER WARRANTIES
[*] SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
4. GOVERNING LAW AND GENERAL PROVISIONS
4.1 STATE OF VIRGINIA
This license and Limited Warranty shall be construed, interpreted and
governed by the laws of the State of Virginia and any action hereunder
shall be brought only in Virginia. If any provision is found void,
invalid or unenforceable it will not affect the validity of the
balance of this license and Limited Warranty which shall remain valid
and enforceable according to its terms. If any remedy hereunder is
determined to have failed of its essential purpose, all limitations of
liability and exclusion of damages set forth herein shall remain in
full force and effect. This License and Limited Warranty may only be
modified in writing signed by you and a specifically authorized
representative of [*].
4.2 RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure by the U.S. Government of the computer
software and documentation in this package shall be subject to the
restricted rights under DFARS 52.227-7013 applicable to commercial
computer software. All rights not specifically granted in this
statement are reserved by [*].
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission.
55
[*] ADDENDUM
The following provisions apply to the license to the [*] Corporation object code
version of [*] Software") licensed under the Agreement.
1. If there is a limitation on the number of copies specified in Exhibit 1(a)
of the Agreement, then You may not make any additional copies of the [*]
Software and may use only the number of copies stated in Exhibit 1 (a). If
Exhibit 1(a) states that you have a site license, then You may use an
unlimited number of copies of the [*] Software for a single Directory, but
only in conjunction with Your licensed use of Program Property. In either
case, this is a run-time license only.
2. You shall not grant any sublicenses to the [*] Software to any other party
and You shall not sell or otherwise transfer any copies to any other party.
3. The [*] Software remains the proprietary property of [*] Corporation. You
shall not reverse engineer, disassemble, or decompile the [*] Software. You
shall comply with all United States export or technology transfer
restrictions at all times in connection with the [*] Software.
4. DISCLAIMER OF WARRANTY: THE [*] SOFTWARE (INCLUDING WITHOUT LIMITATION ANY
DOCUMENTATION RELATED TO THE [*] SOFTWARE) IS BEING PROVIDED AND IN EACH CASE
SHALL BE PROVIDED TO YOU STRICTLY "AS IS" WITHOUT WARRANTY OF ANY KIND. NO
WARRANTY OF ANY KIND IS BEING PROVIDED OR WILL BE PROVIDED TO YOU OR ANY THIRD
PARTY. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE [*] SOFTWARE IS
HEREBY EXPRESSLY ASSUMED BY YOU. EPIC AND [*] CORPORATION EACH HEREBY DISCLAIM
ANY AND ALL WARRANTIES OF ANY KIND OR NATURE PERTAINING OR RELATING TO THE [*]
SOFTWARE OR ANY PART THEREOF, WHETHER EXPRESS OR IMPLIED OR WRITTEN OR ORAL,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
[*] Confidential portions omitted and filed separately with the Securities and
Exchange Commission
