Exhibit 10.4
HEALTHPROJECTS, LLC
AMERICA SERVICE GROUP, INC.
SERVICES AGREEMENT
This Agreement is entered into by and between America Service Group, Inc.
("ASG"), and healthprojects, LLC ("healthprojects"), this 17th day of September,
2001 ("Effective Date").
In consideration of the mutual promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1: SERVICES; PAYMENT
1.1 Services
a) ASG agrees to retain healthprojects to perform the tasks, projects
and activities (the "Services") as directed by ASG management and
until such time as ASG management and healthprojects agree is
necessary.
b) A standard list of healthprojects services is included and entitled
Attachment A ("Description of Services and General Terms"). The
specific terms and conditions associated with the engagement will be
delineated in the applicable Attachment A.
c) In no event shall healthprojects be required under this Agreement or
any Attachment A to provide ASG with any proprietary or third-party
software products, information products, or equipment. Any agreement
regarding these items will be separate and independent of the terms
and conditions herein.
1.2 Services for Others
healthprojects and its members shall be free to represent or perform services
for other persons and companies during and after the term of this Agreement,
including consulting or other services for companies whose businesses or
proposed businesses are or might become competitive with the business of ASG
and/or companies or persons with existing or potential business relationships
with ASG.
1.3 Payment
a) ASG shall pay healthprojects for the Services rendered under this
Agreement and related expenses in accordance with the applicable
Attachment A. In addition, ASG shall pay for additional services as
mutually agreed in writing by the parties. Such related expenses
shall include all travel, food, and lodging expenses incurred by
healthprojects while performing the Services. Such expenses shall be
presented to ASG monthly along with healthprojects' other charges
and shall be paid as provided below.
b) All payments are net 15 days, unless otherwise specified in the
applicable Attachment A, with penalties for late payment assessed
after 30 days as follows: 1.5% per month. In addition, ASG agrees to
reimburse healthprojects for all reasonable costs of collections,
including attorneys' fees.
c) ASG shall be responsible for any and all applicable taxes. however
designated, incurred as a result of or otherwise in connection with
this Agreement or the Services. including but not limited to state
and local privilege, excise, sales, and use taxes and any taxes or
Page 1
HEALTHPROJECTS
[LETTERHEAD]
HEALTHPROJECTS, LLC
AMERICA SERVICE GROUP, INC.
SERVICES AGREEMENT
amounts in lieu thereof paid or payable by healthprojects, but
excluding taxes based upon the net income of healthprojects.
1.4 Independent Contractor
In making and performing this Agreement, the parties act and shall act at all
times as independent contractors, and at no time shall either party make any
commitments or incur any charges or expenses in the name of the other party.
healthprojects shall be responsible for all compensation, fees and taxes
applicable to its employees and subcontractors. Nothing herein shall be deemed
or construed to create a joint venture, partnership or agency relationship
between the parties for any purpose. This Agreement does not create an
employer-employee relationship between ASG and any of healthprojects' employees.
healthprojects will retain sole and absolute discretion and judgment in the
manner and means of carrying out healthprojects' activities and responsibilities
hereunder.
1.5 No Assignment by healthprojects
This Agreement may not be assigned by healthprojects without the prior written
consent of ASG, except in connection with the sale of all or substantially all
of the assets of healthprojects or in connection with a corporate
reorganization. healthprojects, however, shall have the right to use
subcontractors to perform Services under this Agreement.
1.6 ASG Responsibilities
a) ASG shall supply healthprojects personnel with suitable office
space, desks, storage, and other normal office equipment support,
including adequate computer resources, telephone service, postage,
copying, typing, and general office supplies that may be necessary
in connection with healthprojects' performance of the Services at
ASG's site.
SECTION 2: CONFIDENTIALITY; INTELLECTUAL PROPERTY
2.1 Confidentiality
a) The parties acknowledge that they may have previously executed a
Confidentiality or Nondisclosure Agreement (the "Confidentiality
Agreement") The provisions of any Confidentiality Agreement shall
remain in force; provided, however that ASG acknowledges that it may
be necessary for healthprojects to disclose certain information in
contravention of any Confidentiality Agreement relating to ASG in
order to satisfactorily perform its consulting services hereunder
and more specifically to further the development of business
relationships, strategic alliances and partnership arrangements with
third parties for the benefit of ASG. Accordingly and
notwithstanding any contrary term in any Confidentiality Agreement,
healthprojects is hereby authorized to disclose all such
information, which is reasonable and necessary in order to perform
the Services. The foregoing authorization shall not, however, apply
to information that ASG shall have identified as "Strictly
Confidential - Not to be Disseminated to Third Parties," provided,
however that advance written notice of such information shall be
provided to healthprojects.
b) ASG agrees that healthprojects may identify ASG as a client of
healthprojects and use ASG's logo in connection therewith in
healthprojects' marketing, public relations and
Page 2
HEALTHPROJECTS
[LETTERHEAD]
HEALTHPROJECTS, LLC
AMERICA SERVICE GROUP, INC.
SERVICES AGREEMENT
promotional materials, including but not limited to press releases,
press commentary, electronic and on-line materials. healthprojects
agrees not to describe the services it provides for ASG in any such
materials that identify ASG or use ASG's logo without first
obtaining ASG's consent.
2.2 Intellectual Property
a) Except with respect to materials and information provided to
healthprojects by Customer that is confidential and/or proprietary
to ASG under the terms of the Confidentiality Agreement,
healthprojects shall own all intellectual property rights in all
deliverable items developed by healthprojects in the course of the
Services, including, but not limited to, any reports, analyses,
letters, memoranda, documentation, and lists, information and
materials regarding potential customers, prospects, alliance
partners, and providers of financing and other services (the "Work
Product"). In addition, healthprojects shall retain all intellectual
property rights in all pre-existing reports, analyses, letter, and
memoranda. documentation, know-how, techniques, lists, information
and materials regarding potential customers, prospects, alliance
partners, and providers of financing and other services, as well as
all other materials, which have been previously developed or
acquired, by healthprojects and that are used in connection with the
Services. The parties will cooperate with each other and execute
such other documents as may be appropriate to achieve the objective
of this section.
b) Upon receipt in full of payment under the applicable Attachment A,
healthprojects hereby grants ASG a non-exclusive, perpetual,
royalty-free license to use, copy or modify the Work Product for its
own benefit or for the benefit of its customers. ASG agrees not to
sell, distribute or otherwise disclose the Work Product to any third
party, without healthprojects' prior written consent.
SECTION 3: WARRANTY
healthprojects warrants that its Services will be performed in accordance with
applicable industry standards and the applicable Attachment A. THE PRECEDING
WARRANTY IS HEALTHPROJECTS' SOLE AND EXCLUSIVE WARRANTY CONCERNING THE SERVICES
AND ANY WORK PRODUCT, AND HEALTHPROJECTS DISCLAIMS ALL OTHER WARRANTIES AND
REPRESENTATIONS, EXPRESS OR IMPLIED.
SECTION 4 - LIMITATION OF LIABILITY
4.1 Reliance on Information and Deliverables.
Pursuant to this Agreement, healthprojects may obtain and deliver to ASG
information that has been obtained from a variety of sources, including but not
limited to proprietary data services, government information, industry
publications, ASG press releases, web sites, marketing materials and other
generally available public sources. All information, statements, facts,
analyses, interpretations and opinions contained in healthprojects' deliverables
are provided "AS- IS," without representation or warranty by healthprojects, its
affiliates, officers, employees, contractors or business partners as to
accuracy, completeness, usefulness or otherwise. ASG agrees not to utilize
information provided in order to support the sale of securities and acknowledges
and agrees that healthprojects shall not be deemed to give investment advice or
advocate the purchase or sale of any security or investment.
Page 3
HEALTHPROJECTS
[LETTERHEAD]
HEALTHPROJECTS, LLC
AMERICA SERVICE GROUP, INC.
SERVICES AGREEMENT
4.2 Limitation of Liability
The limit of healthprojects' liability (whether in contract, tort, negligence,
strict liability in tort, or by statute or otherwise) to ASG or to any third
party concerning performance or non-performance by healthprojects, or in any
manner related to this Agreement, for any and all claims shall not exceed in the
aggregate the fees paid by ASG to healthprojects hereunder with respect to the
work involved. ASG's exclusive remedy for any claim arising out of these
arrangements shall be for healthprojects, upon receipt of written notice, to use
its best efforts to cure the breach at its expense, and, failing that, the
return of fees paid to healthprojects for the work related to the breach.
4.3 Indemnification
a) healthprojects covenants and agrees to defend, indemnify and hold
ASG harmless from and against any and all actions, claims, damages,
expenses, costs, judgments, legal and other fees, filed or assessed
against or incurred by ASG as a result of (i) any acts or omissions
of healthprojects, including, without limitations, any injuries to
or deaths to persons, or any damage to property or equipment, or
(ii) the breach by healthprojects of any obligation to ASG as set
forth in this Agreement.
b) ASG covenants and agrees to defend, indemnify and hold
healthprojects harmless from and against any and all actions,
claims, damages, expenses, costs, judgments, legal and other fees,
filed or assessed against or incurred by healthprojects or its
employees as a result of (i) any acts or omissions of ASG or its
employees, including, without limitations, any injuries to or deaths
to persons, or any damage to property or equipment, or (ii) the
breach by ASG of any obligation to healthprojects as set forth in
this Agreement. To the extent any individual member of
healthprojects is appointed as a director of ASG during the term of
this Agreement, ASG shall indemnify such individual to the same
extent ASG is required to indemnify its other directors.
Furthermore, ASG shall provide such individual the same directors
liability coverage as provided to other directors of ASG.
4.4 Consequential Damages
In no event shall either party be liable for consequential, incidental or
punitive loss, damage or expenses (including but not limited to lost profits,
savings, data, or the cost of recreating lost data), even if it has been advised
of their possible existence. Any action by either party must be brought within
two (2) years after the cause of action arose.
SECTION 5: MISCELLANEOUS
5.1 Actions: Expenses
In the event of any action at law or in equity to enforce the provisions of this
Agreement, the unsuccessful party shall pay to the other all costs and expenses
so incurred, including but not limited to attorneys' fees.
5.2 Governing Law
This Agreement shall be construed in accordance with and governed by the laws of
the State of Tennessee, without regard to its conflicts of law provisions.
Page 4
HEALTHPROJECTS
[LETTERHEAD]
HEALTHPROJECTS, LLC
AMERICA SERVICE GROUP, INC.
SERVICES AGREEMENT
5.3 Entire Agreement; Amendment; Waiver
This Agreement expresses the entire understanding with respect to the subject
matter hereof and supersedes and terminates any prior oral or written agreements
with respect to the subject matter hereof. Any term of this Agreement may be
amended and observance of any term of this Agreement may be waived only with the
written consent of the parties hereto. Waiver of any term or condition of this
Agreement by any party shall not be construed as a waiver of any subsequent
breach or failure of the same term or condition or a waiver of any other term or
condition of this Agreement. The failure of any party at any time to require
performance by any other party of any provision of this Agreement shall not
affect the right of any such party to require future performance of such
provision or any other provision of this Agreement.
5.4 Force Majeure
Neither party shall be liable for any failure to perform its obligations under
this Agreement if prevented from doing so by a cause or causes beyond its
reasonable control, including but not limited to, personnel unavailability or
shortage that is beyond the reasonable control of a party, Acts of God or the
public enemy, fires, floods, storms, riots, war or restraints of government.
5.5 Term
The term of this Agreement shall commence on the execution hereof and shall
continue until terminated by either of the parties upon 30 days advance written
notice to the other party.
healthprojects and ASG hereby accept and agree to the above terms and execute
this Agreement as of the date first set forth above.
healthprojects America Service Group, Inc.
By: ___________________________ By: ____________________________
Name: _________________________ Name: __________________________
Title: ________________________ Title: _________________________
Date: _________________________ Date: __________________________
Page 5
HEALTHPROJECTS
[LETTERHEAD]
HEALTHPROJECTS, LLC
AMERICA SERVICE GROUP, INC.
SERVICES AGREEMENT
ATTACHMENT A (Cont.)
A.2 Payment
Services performed by healthprojects shall be reimbursed based on the
following hourly rates:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $200/hr.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ $150/hr.
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $150/hr.
