EXHIBIT 10.19
STRATEGIC ALLIANCE AGREEMENT
APRIL 17, 2000
THIS AGREEMENT ("Agreement") is made as of the 17th day of April, 2000
("Effective Date"), by and between PricewaterhouseCoopers LLP ("PwC") with an
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇.▇▇▇ (OC) with an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇,
▇▇▇▇▇.
WHEREAS, PwC and OC recognize that their individual products and
services will meet certain client requirements and such effort may be closely
coordinated to provide an effective overall solution for each client; and
WHEREAS, PwC and OC intend to market their respective products and
services both jointly and separately; and
WHEREAS, clients will be free to select OC and/or PwC, to perform
their respective portions of an engagement ("Engagement"); and
WHEREAS, the parties wish to define and establish their respective
responsibilities, obligations, and rights in developing joint product and
service offerings ("Offerings"), marketing their joint Offerings, submitting
their client proposals, and any subsequent contracts resulting therefrom,
consistent with applicable state and federal laws and regulations.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, OC and PwC ("Parties") agree as follows:
1. RELATIONSHIP OF PARTIES
1.1 The Parties shall act as independent contractors in
performance of this Agreement and nothing herein shall be deemed or construed
to create a joint venture, partnership, agency, or employer/employee
relationship between the Parties. Each of the Parties shall be responsible
for its own employees and for effecting the work for which it has
responsibility. In addition, each party shall be exclusively responsible for
any liability associated with its respective products and/or services on any
proposal, engagement or other work undertaken hereunder.
1.2 Nothing in this Agreement shall be construed to grant either
OC or PwC the right to make commitments of any kind for or on behalf of the
other Party without the prior written consent of the other Party.
1.3 Each Party agrees to designate a liaison to serve as the
contact person and the coordinator of the efforts agreed to in this Agreement.
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APRIL 17, 2000
1.4 Expenses associated with joint marketing and sales activities
will be borne by each Party as agreed prior to incurring the expenses.
1.5 Neither Party shall be obligated to collaborate with the
other Party in any particular instance.
1.6 The Parties agree that during the term of this Agreement each
Party will be free to enter into relationships with other firms conditioned
by the strategic alliance commitments of this Agreement. Each Party is also
free to prepare and submit proposals independent of the other Party
conditioned by the strategic alliance commitments of this Agreement. Any
effort made by either Party pursuant to this subparagraph is subject to the
confidentiality provisions of Paragraph 7 below.
2. STRATEGIC ALLIANCE COMMITMENTS
2.1 PwC will be designated as the preferred global systems
integrator for OC in the healthcare industry.
2.2 OC will be designated a preferred e-business healthcare
alliance partner providing healthcare e-commerce solutions
for PwC and its clients.
2.3 The designation "Preferred" status means that each party has
reviewed the Offerings of the other party and that each party
will, when appropriate and at each party's sole discretion,
jointly bid and market each other's "Offerings" to target
clients in the healthcare industry.
2.4 OC will provide copies of its product, annual software
upgrades and access to its customer support hotline and
training for PwC staff on aspects of their product to PwC
staff at the amount, the time and place, frequency and
duration which shall be mutually agreed to in writing by each
party's respective liaison.
2.5 PwC will, at OC's request and cost, provide PwC staff and/or
subcontractors to service OC and/or OC's customers. Specific
services to be provided are more fully described in Addendum
I. (Note: "PwC staff" refers to PwC staff and/or
subcontractors.)
2.6 PwC and OC shall jointly and individually issue press
releases mutually agreed to in writing by the parties to
communicate the subject matter of this Agreement within a
mutually agreed upon number of days following the execution
of this Agreement.
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2.7 PwC and OC will support joint marketing and sales initiatives
as agreed upon in advance by each party's liaison. These
initiatives may include but shall not be limited to items
such as:
(a) Joint speaking engagements at industry conferences
(within certain parameters agreeable to each party).
(b) Joint sponsorship of educational marketing seminars
(within certain parameters agreeable to each party).
(c) Joint sales calls and proposal development with
targeted clients.
(d) Joint development of the marketing materials for the
Offerings and joint Offerings and associated
marketing and sales activities.
2.8 In the context of this agreement, PwC's role with OC's
clients/prospective clients will be to serve as a
subcontractor for the installation/implementation of OC's
healthcare e-commerce solutions. As such, in the context of
this agreement, PwC's business relationship will be with OC,
and not OC's customers. Nothing in this agreement is to be
construed as prohibiting either PwC or OC from independently
proposing or conducting work, or selling any products or
services, to any entity which it chooses.
2.9 The word "agreement" in this document refers to this
agreement and the attached addendum.
3. REFERRALS. OC and PwC agree that where appropriate, either Party may
choose to refer the other Party's products and/or services to its respective
clients and potential clients; all referrals shall be based upon the business
needs identified by such clients and/or potential clients. In the case of
such referrals, neither party expects to receive a commission, finders fee,
or other similar financial incentive. The Parties recognize and agree that
they may refer the products and/or services of other vendors or consultants
to their clients or prospective clients.
4. COSTS. Neither Party shall be liable to the other for any cost,
expense or liability arising out of this Agreement or its implementation
except as otherwise specified in this agreement. Furthermore, the parties
agree that any and all costs, expenses, or liabilities of the Parties arising
out of this Agreement or its implementation shall be the responsibility of
each party separately and individually unless agreed to by the parties in any
addendum to this Agreement or by the terms and conditions agreed to by the
parties in any prime/subcontractor agreement for an Engagement for a
specified client which agreement shall govern and take precedence over any
term or condition of this Agreement for that Engagement.
5. INTELLECTUAL PROPERTY RIGHTS. Each Party shall retain the sole and
exclusive intellectual property rights to all products, methodologies and
materials brought to any Engagement hereunder. Each Party will retain
ownership to their own ideas, methods,
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concepts or other intellectual property developed independently by each
Party's own efforts. Intellectual property rights to material that is jointly
developed by the Parties will belong to both Parties and each Party will have
a copy of the material and full rights and authority to utilize the material
independent of the other Party. Notwithstanding the forgoing, PwC hereby
agrees to grant OC a perpetual, royalty-free right and license to any
software interfaces developed on behalf of OC customers under this Agreement.
6. TERM/TERMINATION. This Agreement shall become effective on the date
of its execution by the Parties and shall remain in effect for a minimum of 3
years until terminated in accordance with the provisions hereof. After 3
years, the contract shall be renewable annually. In the event that either
Party hereto materially defaults in the performance of any of its duties or
obligations hereunder, then the Party not in default may, by giving written
notice thereof to the defaulting Party, terminate this Agreement as of a date
specified in such notice of termination. The parties anticipate an annual
revenue flow of at least [*] a year to PwC. Should annual revenue be less
than [*], this will be grounds for PwC to terminate the contract. In
addition, either party may terminate this Agreement at its discretion on 90
days prior written notice, provided such termination shall not effect any
engagement then in progress.
7. CONFIDENTIAL INFORMATION
7.1 The Parties anticipate that under this agreement it may be
necessary for either or both Parties to furnish to the other
information of a confidential and proprietary nature,
including information furnished to OC or PwC by the client.
Such information may be oral, written, or in machine-readable
form which may comprise data, knowledge, ideas or other
information of an important and competitive nature.
7.2 Each of the Parties agrees that it will use the same degree
of care to protect such information from disclosure to third
parties as is used to protect its own information of similar
importance. Disclosures of such information shall be
restricted to those individuals who are directly
participating in the proposals.
7.3 The information furnished to either party may only be used
and reproduced in performance of its respective obligations
under this Agreement.
7.4 The limitations on reproduction, disclosure, or use of
confidential information shall not apply to, and neither
Party shall be liable for reproduction, disclosure, or use of
such information if any of the following conditions exist:
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS UNDER 17.C.F.R. SECTION 200.80(b)(4), 200.83 AND
230.406.
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(a) If the information has been developed independently
by the receiving party;
(b) If the information has been lawfully received from
other sources;
(c) If the information is published by the disclosing
party or is disclosed to others, without restriction;
or
(d) If such information otherwise comes within the public
knowledge or becomes generally known to the public.
(e) If such information is disclosed pursuant to a
validly issued court order, subpoena or other legal
process provided that promptly upon receiving such
order, subpoena or process, the Party would notify
the other Party to aid in affording an opportunity to
seek a protective order covering the subpoenaed
material.
(f) If such information is known to receiving party prior
to disclosure hereunder.
7.5 Except as specifically contained herein, nothing contained in
this Agreement shall be construed as granting to the other
Party either expressly, by implication, estoppel, or
otherwise, any license under any invention or patent,
trademark, copyright, or trade secret, owned or controlled by
the disclosing Party.
7.6 The confidentiality obligation contained herein shall not
prevent either party from entering into other agreements with
third parties, provided that the restrictions hereunder are
not violated.
8. PUBLIC RELEASE OF INFORMATION. The Parties shall not issue a news
release, public announcement, advertisement, or any other form of publicity
concerning its efforts in connection with this Agreement, the proposal, or
Engagement, without obtaining prior written approval from the other.
9. NON-SOLICITATION. The Parties agree to not knowingly engage in any
attempt to solicit for employment, or to engage as independent contractors,
whether directly or indirectly, such of the other's employees or independent
contractors who have worked on an Engagement or who have provided training,
support or other development, technical, sales or marketing assistance which
is the subject of or provided for under this Agreement for the period ending
one year after the completion of the last Engagement performed by the
employee or independent contractor or termination of this Agreement which
ever shall occur last, except as may be otherwise agreed to in writing by
both Parties.
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10. GENERAL
10.1 This Agreement may not be assigned or otherwise transferred
by either party, in whole or in part, without the prior
written consent of the other party except that PwC may assign
this Agreement to a successor to the business of PwC to which
this Agreement relates.
10.2 This Agreement shall be governed by and interpreted under the
laws of the State of New York.
10.3 This Agreement and the attached addendums contains the entire
exclusive agreement of the Parties and supersedes any
previous understanding or agreement related to the subject
matter, whether written or oral. All changes or modifications
to this Agreement shall be agreed to in writing by the
Parties.
10.4 All rights and remedies conferred under this Agreement or by
any other instrument of law shall be cumulative and may be
exercised singularly or concurrently. Failure by either party
to enforce any contract term shall not be deemed a waiver of
future enforcement of that any other term. The provisions of
the contract are declared to be severable.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
as of the day and year first written.
PRICEWATERHOUSECOOPERS LLP ▇▇▇▇▇▇▇▇.▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------ -----------------------
Title: Title:
--------------------- --------------------
Date: Date:
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STRATEGIC ALLIANCE AGREEMENT
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ADDENDUM I
1. PwC will provide the following types of staff, subject to need and
availability, at the following rate structures:
(a) Individuals to serve as project managers at hospitals
(aka, "E-commerce Account Managers", "EAMs")
Individuals to serve as project analysts at hospitals
(responsible for business rules identification,
training, etc.) (aka "E-commerce Implementation
Specialists" - "▇▇▇▇")
These individuals will be billed at a blended hourly
rate of [*] per hour.
(b) Individuals to serve as Interface writers.
These individuals will be billed at an hourly rate of
[*] per hour.
(c) Individuals to serve as "Supplier EAMs" (responsible
to help suppliers get catalogued into OmniSupplier
and then match existing OmniBuyer customers with
newly enlisted suppliers). These individuals will be
billed at an hourly rate of [*].
(d) Additional individuals with appropriate knowledge and
skills will be provided subject to need and
availability. Rates will be mutually agreed upon in
advance.
(e) Expenses (e.g., including travel, sustenance,
lodging, telephone calls, document production, etc.)
will be passed through, at cost, to OC.
(f) In general, PwC does not ▇▇▇▇ for travel time.
However, in cases where the burden of travel
represents a significant portion of time (e.g.,
flying to Europe to attend a 2 hour meeting), we do
reserve the right to ▇▇▇▇ for travel time. We will
discuss all such situations with you in advance to
arrive at a mutually agreeable solution.
(g) As skills allow, certain individuals may serve in
more than one of the roles described above.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS UNDER 17.C.F.R. SECTION 200.80(b)(4), 200.83 AND
230.406.
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STRATEGIC ALLIANCE AGREEMENT
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(h) PwC may raise its rates no more than once a year.
These increases will be in accordance with increases
in our internal standard billing rates. We will
inform you of these increases before implementing
them.
(i) PwC will submit its bills monthly. Payment is due
upon receipt.
(j) PwC will commit an appropriate number of resources to
be trained over the next four months, provided that
OC commits that these resources will be deployed
within one week after training for a minimum of 6
months.
2. OC will be responsible to provide appropriate product/technical training
to PwC staff. It is anticipated that the training for EAMs, and ▇▇▇▇
will consist of approximately 3 days of Commerce One training and 2 days
of OC specific training.
Training requirement for interface writers have not yet been determined,
but is estimated to be approximately five days in duration.
PwC will be responsible for the salary and travel expenses of PwC staff
for up to five days of training per individual.
OC will be responsible for the cost of the training itself for Commerce
One and OC.
3. PwC and OC will undertake Co-marketing activities, including, but not
necessarily limited to the following:
(a) Issuance of joint press release announcing the
strategic alliance.
(b) PwC participation in the Healthcare Interactive 2000
exhibit in Houston.
(c) We may engage in cooperative advertising.
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