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EXHIBIT 10.30
DEVELOPMENT SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is entered into
as of November 10, 1999 (the "Effective Date") by and between ▇▇▇▇▇.▇▇▇, a
Delaware corporation with offices at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, ("▇▇▇▇▇.▇▇▇"), and Delta Health Services, a California corporation
with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("Client").
This Agreement covers the purchase and license of consulting,
development and other services from ▇▇▇▇▇.▇▇▇, pursuant to orders placed by
Client and accepted by ▇▇▇▇▇.▇▇▇ after the Effective Date.
This Agreement includes the following attachments, which are
incorporated herein by this reference Attachment A ▇▇▇▇▇.▇▇▇ Grant of
6-month Exclusive License as defined Schedule 1 Description of Work and
Fee Schedule
Any notice required or permitted under this Agreement will be in writing
and delivered to the address set forth below, or to such other notice address as
the other party has provided by written notice.
THIS AGREEMENT, INCLUDING THE ATTACHMENTS LISTED ABOVE, CONSTITUTES THE
COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES WITH REFERENCE TO THE
SUBJECT MATTER HEREOF, ANT) SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS.
AGREEMENTS AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF CLIENT'S PURCHASE
ORDER (OR ANY OTHER PURCHASE OR SALES DOCUMENT) AND THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL. THIS AGREEMENT MAY BE MODIFIED,
REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULLY AUTHORIZED
REPRESENTATIVE OF EACH PARTY
AGREED
▇▇▇▇▇.▇▇▇ CLIENT DHS
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By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 11/10/99
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Pres. and CEO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
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(PRINTED NAME AND TITLE) (PRINTED NAME AND TITLE)
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ATTACHMENT 1
▇▇▇▇▇.▇▇▇ DEVELOPMENT SERVICES
1. DEFINITIONS
1.1. "Content" shall mean marketing collateral, data, text, audio files,
video files, graphics and other materials provided by Client or developed
hereunder for use with the Client Web Site, but excluding the ▇▇▇▇▇.▇▇▇
Software.
1.2. "Development Services" shall mean design, development, and set-up
services as necessary to modify existing ▇▇▇▇▇.▇▇▇ technology, trade secrets and
know-how to produce the ▇▇▇▇▇.▇▇▇ Software and other elements of the Client Web
Site, and/or any other consulting services rendered hereunder as identified in
the appropriate schedules ("Schedule(s)") attached hereto.
1.3 "▇▇▇▇▇.▇▇▇ Software" shall mean all computer program code and other
results and proceeds of ▇▇▇▇▇.▇▇▇'s services hereunder (other than Content) that
are delivered by ▇▇▇▇▇.▇▇▇ to Client pursuant to this Agreement. Such ▇▇▇▇▇.▇▇▇
Software shall be provided in object code form unless the parties mutually agree
in writing to delivery of source code.
1.4 "Client Web Site(s)" shall mean the so-called "web page" site or
sites on the World Wide Web, for the public Internet or for corporate intranets
or extranets, to be developed or serviced by ▇▇▇▇▇.▇▇▇ hereunder, as identified
in the appropriate Schedule(s).
2. SERVICES
2.1. Development Services ▇▇▇▇▇.▇▇▇ shall render Development Services in
accordance with the requirements set forth in Schedules attached hereto. Each
Schedule for new services shall be successively numbered (e.g., 1, 2, etc.).
Each schedule shall be executed by the parties and shall be subject to the terms
and conditions of this Agreement. ▇▇▇▇▇.▇▇▇ shall provide qualified and trained
personnel to render such services and shall use reasonable efforts to meet the
delivery schedule set forth in the applicable Schedules. Any additions,
deletions or other changes to a Schedule shall be mutually agreed to in writing
in advance by both parties and shall be memorialized in a revised Schedule
pursuant to the procedure set forth in Section 2.6 below for Change Orders. All
services shall be performed at ▇▇▇▇▇.▇▇▇'s offices unless otherwise agreed by
the parties. In the event that services are performed at Client's location.
Client shall provide ▇▇▇▇▇.▇▇▇ at no charge with all necessary facilities and
equipment, including without limitation, computer time on Client's computers and
office space, sufficient to render the services contemplated hereunder. Client
shall deliver to ▇▇▇▇▇.▇▇▇ all Content selected by Client for incorporation into
any Client Web Site in digitized format in accordance with the delivery schedule
set forth in the applicable Schedule(s). In the event that Client fails to
deliver the Content in accordance with the delivery schedule, the development
schedule shall be extended by the number of days that delivery of the Content
was delayed, unless ▇▇▇▇▇.▇▇▇ notifies Client that this extension will not
rectify ▇▇▇▇▇.▇▇▇'s scheduling interruption resulting from Client's delay and
such delay may also result in additional charges to Client, in which case the
parties shall mutually agree upon a new delivery schedule and fees with respect
to the rendition of the Development Services.
2.2. Acceptance of Deliverables. Within fifteen (15) days after the
delivery to Client of any
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deliverable pursuant to any Schedule, Client shall provide ▇▇▇▇▇.▇▇▇ with
written notice of any failure of any deliverable to materially conform to the
functional specifications set forth in the applicable Schedule. ▇▇▇▇▇.▇▇▇ and
Client shall review the objections, and ▇▇▇▇▇.▇▇▇ will use commercially
reasonable efforts to correct any material non-conformities with the functional
specifications and provide Client with a revised deliverable within fifteen (15)
days. Client shall have deemed to accepted the deliverable if ▇▇▇▇▇.▇▇▇ does not
receive written notice of Client's objections within said fifteen (15) day
period.
2.3. Domain Name Registration Services. If domain name registration
services are included in the Schedule, ▇▇▇▇▇.▇▇▇ shall use commercially
reasonable efforts to assist Client in registering an Internet domain name
selected by Client. Client will be solely responsible for all out-of-pocket
costs and all legal clearances regarding name selection and registration.
2.4. Maintenance Services. If Client desires to purchase maintenance
services from ▇▇▇▇▇.▇▇▇ for the Client Web Site, the parties shall execute the
then current ▇▇▇▇▇.▇▇▇ Maintenance Services Agreement and ▇▇▇▇▇.▇▇▇ shall render
maintenance services pursuant to the terms and conditions of such agreement.
2.5. Hosting Services. If Client desires to purchase hosting services
from ▇▇▇▇▇.▇▇▇ for the Client Web Site, the parties shall execute the then
current ▇▇▇▇▇.▇▇▇ Hosting Services Agreement, and ▇▇▇▇▇.▇▇▇ shall render hosting
services pursuant to the terms and conditions of such agreement.
2.6. Change Orders. If Client desires to make changes to an existing
Schedule, the parties shall mutually agree upon an additional or revised
Schedule for each new Change Order. Each such Schedule shall be successively
numbered (e.g., 1.A, 1.B, etc.) and shall be executed by the parties. Any
revised Schedule(s) shall be subject to the terms and conditions of this
Agreement.
3. OWNERSHIP AND LICENSE RIGHTS
3.1. Property Rights and Ownership. The Client Web Site(s) and all other
results and proceeds of ▇▇▇▇▇.▇▇▇'s services hereunder, shall consist of, and
shall operate in conjunction with, multiple elements of intellectual property,
including without limitation the ▇▇▇▇▇.▇▇▇ Software and the Client Content. The
parties' respective rights to such elements shall be as set forth below. For
purposes of this Agreement, the term "ownership" shall refer to ownership of all
intellectual property rights including, but not limited to, all patent,
copyright, trade secret and trademark rights, as applicable, with respect to the
subject intellectual property.
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Intellectual Property Elements Ownership/Rights
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Client Content, including all Client Content that is Client has sole ownership.
modified by ▇▇▇▇▇.▇▇▇ ("Modified Content") and
HTML files that contain Client Content, and
modifications to Content as a result
of Client's usage of self-authoring tools.
Content created for Client by ▇▇▇▇▇.▇▇▇ and Client has sole ownership.
accepted and paid for by Client, as well as
commissioned Content authored by third parties
specifically for use in connection with this
Agreement and paid for by Client (e.g., original
illustrations or graphics).
Domain name for Client Web Site. Client has sole ownership.
Server usage report data/statistics generated by the Client has sole ownership of
▇▇▇▇▇.▇▇▇ Software in form and substance as set data/statistics, and ▇▇▇▇▇.▇▇▇
forth in the applicable Schedule or as mutually has a license pursuant to Section
agreed by the parties. 3.3 below.
▇▇▇▇▇.▇▇▇ Software developed by or for ▇▇▇▇▇.▇▇▇ ▇▇▇▇▇.▇▇▇ has sole ownership of such
in connection with this Agreement for Client. ▇▇▇▇▇.▇▇▇ Software. Client shall be
granted a license to use the ▇▇▇▇▇.▇▇▇
Software as set forth in Section 3.2.
▇▇▇▇▇.▇▇▇ supplied material developed generally ▇▇▇▇▇.▇▇▇ has sole ownership of such
to support ▇▇▇▇▇.▇▇▇ products and/or service offerings developed material. Client shall be
(e.g. http configuration). granted license to use the ▇▇▇▇▇.▇▇▇
Software as set forth in Section 3.2
below.
3.2. License to Client. ▇▇▇▇▇.▇▇▇ grants Client a non-exclusive, license
as defined in Attachment A. to begun upon contract signing, non -transferable
license to use the ▇▇▇▇▇.▇▇▇ Software on a single computer in object code
version only to operate and display the Client Web Site in order for end users
to access the Client Web Site. License shall convert to non-exclusive at the end
of six months as defined in Attachment A. If the ▇▇▇▇▇.▇▇▇ Software is not
developed for use on a Client Web Site, then the foregoing license shall
constitute a non-exclusive, non-transferable license to use the ▇▇▇▇▇.▇▇▇
Software on a single computer in object code version only for Client's internal
business needs. Client may transfer the ▇▇▇▇▇.▇▇▇ Software to a different
computer so long as the ▇▇▇▇▇.▇▇▇ Software is not retained on the prior computer
on which it was initially installed other than as a permitted backup copy.
Client may grant a sublicense to a third party that Client engages to host the
Client Web Site: provided, that such third party agrees in writing to be bound
by the license and confidentially, restrictions set forth in this Agreement.
Client is prohibited from duplicating and/or distributing any ▇▇▇▇▇.▇▇▇ Software
without the prior written consent of ▇▇▇▇▇.▇▇▇; provided, however that Client
may copy the ▇▇▇▇▇.▇▇▇ Software only as needed for reasonable ordinary backup or
disaster recovery procedures Client may use the backup copies only if the
installed copy is lost or destroyed or the hardware on which the installed copy
is installed becomes inoperable, provided that the use of said backup copies is
discontinued immediately when the original hardware becomes operable.
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3.3. License to ▇▇▇▇▇.▇▇▇. Client grants ▇▇▇▇▇.▇▇▇ a non-exclusive
license (i) to use, copy, and modify the Content in connection with ▇▇▇▇▇.▇▇▇'s
performance of the Development Services, (ii) to use, copy, modify, distribute
and display server usage data and statistics generated by the ▇▇▇▇▇.▇▇▇
Software.
3.4. Supporting Documents. Each party agrees to execute any additional
documents deemed reasonably necessary to effect and evidence the other party's
rights with respect to the intellectual property elements set forth above.
3.5. No Reverse Engineering All rights not expressly granted hereunder
are reserved by ▇▇▇▇▇.▇▇▇. Without limiting the foregoing, Client may not
reverse engineer, reverse assemble, decompile or otherwise attempt to derive the
source code from the ▇▇▇▇▇.▇▇▇ Software.
3.6. Proprietary Notices. All copies of the ▇▇▇▇▇.▇▇▇ Software and other
▇▇▇▇▇.▇▇▇ supplied materials used by Client shall contain copyright and other
proprietary notices in the same manner in which ▇▇▇▇▇.▇▇▇ incorporates such
notices in the ▇▇▇▇▇.▇▇▇ Software or in any other manner requested by ▇▇▇▇▇.▇▇▇.
Client agrees not to remove, obscure or obliterate any copyright notice,
trademark or other proprietary rights notices placed by ▇▇▇▇▇.▇▇▇ on or in the
▇▇▇▇▇.▇▇▇ Software.
4. PAYMENT
4.1. Development Services. In consideration for the performance of the
Development Services, Client shall pay to ▇▇▇▇▇.▇▇▇ the amounts set forth in the
applicable Schedule, on the payment dates set forth in such Schedule. In the
event that ▇▇▇▇▇.▇▇▇ renders services related to development and implementation
of this Agreement at Client's location, Client shall pay the reasonable travel,
living and related expenses for ▇▇▇▇▇.▇▇▇ personnel rendering services at
Client's location. All services hereunder shall be rendered on a per-project
basis; provided. however, that in the event that the parties agree that any
services hereunder will be rendered on a time and materials basis, all work will
be billed at ▇▇▇▇▇.▇▇▇'s standard hourly rates, which may be revised from time
to time by ▇▇▇▇▇.▇▇▇, in its sole discretion, upon written notice to Client. For
time and materials billing, amounts set forth in the applicable Schedule
represent an estimate of the hours required to complete the work outlined in
such Schedule: in the event that actual hours incurred to complete the work
exceed those included in the estimate, ▇▇▇▇▇.▇▇▇ will notify Client, and
additional hours will be billed at ▇▇▇▇▇.▇▇▇'s standard hourly rates.
4.2. Maintenance Services. If the parties have entered rate a ▇▇▇▇▇.▇▇▇
Maintenance Services Agreement. Client shall pay ▇▇▇▇▇.▇▇▇ the amounts set forth
in said Maintenance Services Agreement.
4.3. Hosting Services. If the parties have entered into a ▇▇▇▇▇.▇▇▇
Hosting Services Agreement. Client shall pay ▇▇▇▇▇.▇▇▇ the amounts set forth in
said Hosting Services Agreement.
4.4. Taxes. In addition to the fees due as specified above. Client shall
pay any and all federal, state and local sales, use, value added, excise, duty
and any other taxes of any nature assessed upon or with respect to the license
granted hereunder, arising from this Agreement, except that taxes on ▇▇▇▇▇.▇▇▇'s
income shall be the sole responsibility of ▇▇▇▇▇.▇▇▇.
4.5. Payments. All payments made pursuant to this Agreement shall be
made in U.S. Dollars are are due thirty (30) days from the date of invoice. Late
payments shall bear interest at one and one-half percent (1.5%) per month or the
maximum Fate permitted by law, whichever is less
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5. LIMITED WARRANTY
5.1. Software Warranty. Subject to the limitations set forth in this
Agreement, ▇▇▇▇▇.▇▇▇ warrants only to Client that the ▇▇▇▇▇.▇▇▇ Software
furnished hereunder when properly installed, properly used and unmodified by
Client, will substantially conform to the functional specifications set forth in
the applicable Schedule. ▇▇▇▇▇.▇▇▇'s warranty shall extend for a period of
ninety (90) days from the date that the final deliverables specified in each
Schedule are delivered to Client ("Warranty Period"). ▇▇▇▇▇.▇▇▇'s sole
responsibility under this Section 5.1 shall be to use reasonable commercial
efforts to promptly correct material errors. or at ▇▇▇▇▇.▇▇▇'s option, to refund
Client's fees paid for the ▇▇▇▇▇.▇▇▇ Software after de-installation and return
thereof. All warranty claims not made in writing or not received by ▇▇▇▇▇.▇▇▇
within the Warranty Period shall be deemed waived. ▇▇▇▇▇.▇▇▇'s warranty
obligations are solely for the benefit of Client, who has no authority to extend
or transfer this warranty to any other person or entity.
5.2. ▇▇▇▇▇.▇▇▇ DOES NOT WARRANT THAT THE USE OF THE ▇▇▇▇▇.▇▇▇ SOFTWARE
SKILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET
CLIENT'S REQUIREMENTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE. ▇▇▇▇▇.▇▇▇
DOES NOT MAKE ANY WARRANTY AS TO THE ▇▇▇▇▇.▇▇▇ SOFTWARE OR THE SERVICES PROVIDED
HEREUNDER OR THE RESULTS TO BE OBTAINED FROM USE OF THE ▇▇▇▇▇.▇▇▇ SOFTWARE.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE ▇▇▇▇▇.▇▇▇ SOFTWARE IS
USED AND THE SERVICES ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE
INTERNET OR USE OF INFORMATION IN CONNECTION WITH THE SOFTWARE.
6. INTELLECTUAL PROPERTY INDEMNIFICATION
6.1. ▇▇▇▇▇.▇▇▇ and Client (language shall apply to client wherever
▇▇▇▇▇.▇▇▇ appears in section 6).
6.1.1. Indemnification. ▇▇▇▇▇.▇▇▇, at its own cost and expense,
shall defend Client and its officers and directors, against a claim that the
▇▇▇▇▇.▇▇▇ Software infringes a third-party. United States copyright or trade
secret, and shall pay any settlements entered into or damages awarded against
Client, or its officers and directors. to the extent related to such claim,
provided that (i) Client notifies ▇▇▇▇▇.▇▇▇ promptly in writing Of the claim;
(ii) ▇▇▇▇▇.▇▇▇ has the sole control of the defense and all related settlement
negotiations; and (iii) Client provides ▇▇▇▇▇.▇▇▇ with all reasonably necessary
assistance, information, and authority to perform the foregoing, at ▇▇▇▇▇.▇▇▇'s
expense.
6.1.2. ▇▇▇▇▇.▇▇▇ shall have no liability for any claim of
infringement based on (i) use by Client of other than the current update of the
▇▇▇▇▇.▇▇▇ Software if the infringement would have been avoided by uses of the
current update; (ii) modifications, adaptations or changes to the ▇▇▇▇▇.▇▇▇
Software not made by ▇▇▇▇▇.▇▇▇: (iii) the combination or use of the materials
furnished hereunder with materials not furnished by ▇▇▇▇▇.▇▇▇ if such
infringement would have been avoided by use of the ▇▇▇▇▇.▇▇▇ materials alone; or
(iv) use or incorporation of Content or Modified Content. In the event the
▇▇▇▇▇.▇▇▇ Software is held to, or ▇▇▇▇▇.▇▇▇ believes is likely to be held to,
infringe the intellectual property rights of a third party, ▇▇▇▇▇.▇▇▇ shall have
the right at its sole option and expense to (i) substitute or modify the
▇▇▇▇▇.▇▇▇ Software so that it is non-infringing and qualitatively and
functionally equivalent to the ▇▇▇▇▇.▇▇▇ Software: (ii) obtain for Client a
license to continue using the ▇▇▇▇▇.▇▇▇ Software; or if neither (i) nor (ii) is
commercially reasonable, ▇▇▇▇▇.▇▇▇ shall have the right to terminate this
Agreement within 60 days upon written notice to Client and ▇▇▇▇▇.▇▇▇ shall make
payment to Client of an amount equal to the fees paid for the ▇▇▇▇▇.▇▇▇ Software
pro-rated over a three (3) year period
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commencing on the Effective Date. This Section 6.1 sets forth Client's sole and
exclusive remedy and Xcare net's sole liability for intellectual property
infringement by ▇▇▇▇▇.▇▇▇.
6.2. Client.
6.2.1. Client hereby represents and warrants to ▇▇▇▇▇.▇▇▇ that
(i) Client has secured all necessary consents, permissions, clearances,
authorizations and waivers for the use of Content or Modified Content, including
without limitation, all text, pictures, audio, video, logos and copy contained
in all Content or Modified Content; (ii) the use of Content as contemplated
herein shall not infringe the copyright, trademark or other intellectual
property rights of any party, or constitute defamation, invasion of privacy, or
the violation of any right of publicity or any other right of any party; and
(iii) Client has complied and shall comply with all legislation, rules and
regulations regarding Content.
6.2.2. Client shall indemnify and hold harmless ▇▇▇▇▇.▇▇▇, its
directors, officers, parent company and affiliates, from any and all liability,
costs and expenses (including attorney's fees) arising in connection with any
third party claim or action brought against ▇▇▇▇▇.▇▇▇, or any off its directors,
officers, parent company, and affiliates, relating to Content or Modified
Content, provided (i) ▇▇▇▇▇.▇▇▇ notifies Client promptly in writing of such
claim, (ii) Client has the sole control of the defense and all related
settlement negotiations, and (iii) ▇▇▇▇▇.▇▇▇ provides Client with all reasonably
necessary assistance, information and authority to perform the foregoing at
Client's expense.
7. LIMITATIONS ON LIABILITY
THE MAXIMUM LIABILITY OF ▇▇▇▇▇.▇▇▇, ITS DIRECTORS, OFFICERS, PARENT
COMPANY, AND, AFFILIATES, TO CLIENT FOR DAMAGES RELATING TO ▇▇▇▇▇.▇▇▇'S FAILURE
TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL
FEES PAID BY CLIENT TO ▇▇▇▇▇.▇▇▇ WITH RESPECT TO SUCH SERVICES NOTWITHSTANDING
THE FOREGOING, THE MAXIMUM LIABILITY OF ▇▇▇▇▇.▇▇▇. ITS DIRECTORS, OFFICERS.
PARENT COMPANY, AND AFFILIATES. TO CLIENT FOR DAMAGES FOR ANY AND ALL OTHER
CAUSES WHATSOEVER, AND CLIENT'S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. SHALL BE LIMITED TO AN AMOUNT
EQUAL TO THE TOTAL FEES PAID BY CLIENT TO ▇▇▇▇▇.▇▇▇ HEREUNDER IN NO EVENT SHALL
▇▇▇▇▇.▇▇▇, ITS DIRECTORS, OFFICERS, PARENT COMPANY, AND AFFILIATES, LICENSORS,
AND SUPPLIERS. BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS
INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE SERVICES
PROVIDED HEREUNDER EVEN IF ▇▇▇▇▇.▇▇▇ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
8. TERM AND TERMINATION
8.1. Term. Subject to this Section 8, the term of this Agreement shall
commence on the Effective Date and continue until terminated by either party,
pursuant to Section 8.2 or 8.3 below.
8.2. Termination for Cause. This Agreement may be terminated by either
party in the event of (i) any material default in, or material breach of, any of
the terms and conditions of this Agreement by the other party. which default
continues in effect after the defaulting party has bran provided written notice
of default and sixty (60) days to cure such default: (ii) the commencement of a
a voluntary case or other proceeding seeking
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liquidation, reorganization or other relief with respect to either party of its
debts under any bankruptcy, insolvency, or other similar law now or hereafter in
effect, that authorizes the reorganization or liquidation of such party or its
debt or the appointment of a trustee, receiver. liquidator, custodian or other
similar official of it or any substantial part of its property (iii) either
party's consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it; or (iv) either party's making a general assignment for the benefit
of creditors or either party's becoming insolvent: or either party taking any
corporate action to authorize any of the foregoing.
8.3. Termination for Convenience. This Agreement may be terminated by
either party upon ninety (90) days advance written notice.
8.4. Effect of Termination. If this Agreement is terminated by Client
under Section 8.2, while ▇▇▇▇▇.▇▇▇ is performing any Development Services for
Client hereunder, Client shall immediately pay ▇▇▇▇▇.▇▇▇ the total fees
associated with such incomplete project, as well as all mounts due and owing for
any projects already completed by ▇▇▇▇▇.▇▇▇ hereunder or for any third-party
products or services purchased by ▇▇▇▇▇.▇▇▇ in Client's behalf. If the Agreement
is terminated under Section 8.3 while ▇▇▇▇▇.▇▇▇ is performing any Development
Services or other services for Client hereunder, Client shall pay ▇▇▇▇▇.▇▇▇ all
fees due and owing up to the effective date of such termination. The foregoing
shall be without limitation to ▇▇▇▇▇.▇▇▇'s fights and remedies under this
Agreement.
8.5. Survival. Sections 3, 5, 7, 8, 9 and 10 shall surmise any
termination or expiration of this Agreement; provided. however, that if this
Agreement is terminated by ▇▇▇▇▇.▇▇▇ pursuant to Section 8.2 above.
then Section 3.2 shall not survive.
9. CONFIDENTIALITY
9.1. Confidential Information. Each party acknowledges that, in
connection with the performance of this Agreement, it may receive certain
confidential or proprietary technical and business information and materials of
the other party ("Confidential Information").
9.2. Confidentially. Each party hereby agrees: (i) to hold and maintain
in strict confidence all Confidential Information of the other party and not to
disclose it to any third party; and (ii) not to use any Confidential Information
of the other party except as permitted by this Agreement or as may be necessary
to perform its obligations under this Agreement. Each party will use at least
the same degree of care to protect the other party's Confidential Information as
it uses to protect its own Confidential Information of like importance, and in
no event shall such degree of care be less than reasonable care.
9.3. Exceptions. Notwithstanding the foregoing, the parties agree that
Confidential Information will not include any information that: (i) is or
becomes generally known or is or becomes part of the public domain through no
fault of the other party, (ii) the first party authorizes to be disclosed: (iii)
is rightfully received by the other party from a third party without restriction
on disclosure and without breach of this Agreement; or (iv) is known to the
other party on the Effective Date from a source other than the first party, and
not subject to a confidentially obligation.
9.4. Injunctive Relief. Each party acknowledges that any breach of the
provisions of this Section 9 may cause irreparable harm and significant injury
to an extent that may be extremely difficult to ascertain. Accordingly, each
party agrees that the other party will have, in addition to any other rights or
remedies available to it at law or in equity, the right to seek injunctive
relief to enjoin any breach or violation of this Section 9.
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10. GENERAL PROVISIONS
10. l. Force Majeure. In the event that either party is unable to
perform any of its obligations under this Agreement or to enjoy any of its
benefits because of an event beyond the control of the affected party including,
but not limited to, natural disaster, acts of God, actions or decrees of
governmental bodies or failure of communication lines (a "Force Majeure Event"),
the party who has been so affected shall promptly give written notice to the
other party and shall use its best efforts to resume performance. Upon receipt
of such notice. all obligations under this Agreement shall be immediately
suspended for the duration of such Force Majeure Event.
10.2. Notice. All notices, demands, requests or other communications
required or permitted under this Agreement will be deemed given when (i)
delivered personally; (ii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iii) one (1) day
after deposit with a commercial overnight carrier, with written verification of
receipt.
10.3. Waiver. Waiver of any breach or failure to enforce any term of
this Agreement shall not be deemed a waiver of any breach or right to enforce
which may thereafter occur. No waiver shall be valid against any party hereto
unless made in writing and signed by the party against whom enforcement of such
waiver is sought and then only to the extent expressly specified therein.
10.4. Severability. In the event any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired
and the parties will substitute a new enforceable provision of like economic
intent and effect.
10.5. Governing Law This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto. shall be governed by and
construed in accordance with the laws of the State of [Colorado] without
reference to conflict of law principles.
10.6 Assignment. Neither party shall have the right to assign this
Agreement without the prior written consent of the other party; provided, that
either party shall have the right to assign this Agreement to any person or
entity that acquires or succeeds to all or substantially all of such party's
business or assets upon written notice to the other party.
10.7. Publicity Within a time frame mutually agreed upon by the pomes,
the parties shall mutually agree on a joint press release announcing the
existence of this Agreement. Neither party, will use the other party's name.
domain name, logo, trademark or service ▇▇▇▇ in advertising or publicly without
obtaining the other party's prior written consent: provided. however, that
▇▇▇▇▇.▇▇▇ shall have the nonexclusive right and license to use Client's name and
Client Web Site name, including the URL (Uniform Resource Locator) thereto. as a
Client reference, and as part of ▇▇▇▇▇.▇▇▇'s client portfolio. ▇▇▇▇▇.▇▇▇ shall
also have the right to display its name and logo, as well as a link to the
▇▇▇▇▇.▇▇▇ site. on the Client Web Site(s), and to receive credit as the
developer of the Client Web Site(s), (collective(v, the "Credit"). Such Credit
shall appear on the "home page" of the Client Web Site(s) in a position that
provides reasonable and appropriate visibility to ▇▇▇▇▇.▇▇▇ in light of industry
standards and Client's requirements.
10.8. Additional Actions and Documents. Each of the parties hereto
hereby agrees to take or cause to be taken such further actions, to execute,
deliver and file or cause to be executed, delivered and filed such further
documents, and will obtain such consents, as may be necessary or as may be
reasonably requested in order to fully effectuate the purposes, terms and
conditions of this Agreement.
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10.9 Heading. Section headings contained in this Agreement are
inserted for convenience or reference only, shall not be deemed to be a part of
this Agreement for any other purpose, and shall not in any way define or affect
the meaning, construction or scope of any of the provisions hereof.
10.10. Execution in Counterparts. This Agreement maybe executed in
several counterparts, each of which shall be deemed to be an original, and all
of which. when taken together, shall constitute one and the same instrument.
10.11 Independent Contractors. The relationship of the parties
hereunder shall be that of independent contractors. Nothing herein shall be
construed to constitute a partnership between or joint venture of the parties,
nor shall either party be deemed the agent of the other or have the right to
bind the other in any way without the prior written consent of the other.
10.12. Jurisdiction. All disputes arising out of or relating to this
Agreement shall be submitted to the non-exclusive jurisdiction of the state and
Federal courts encompassing Denver, Colorado, and each party irrevocably
consents to such personal jurisdiction and waives all objections thereto.
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SCHEDULE 1
This Schedule describes Services to be provided by ▇▇▇▇▇.▇▇▇ to Client under
this Professional Services Agreement dated October 15, 1999.
Description of Work: Development of ELIGIBILITY STATUS, CLAIMS STATUS,
ID CARD ORDER (with change/update member information
message) and Benefit Search (SPDs). Transaction will be
used by Providers, Members and Employer Groups.
Transactions will present data dynamically for those three
segments.
Functional Specifications: Integration with homegrown MCIS running on
AS/400 using DB2. Other functional
specifications as outlined Transactions
linked to client's web-site.
Deliverables: Deliverables include transactions listed above with an
anticipated go-live date of [ * ]. Customized
development of "look and feet" of those transactions leveraging
the work being done on the client's web-site and maintaining
creative flow from site to transactions. Development must also
adhere to all security protocols as required by HCFA and HIPAA.
Transactions will reside on the client's web-site currently under
development and expected to be completed by [ * ].
Acceptance: Upon completion of testing and for a period of five consecutive
days in a live environment running on the Internet.
Fee Schedule: The transactions listed above can be priced as a bundled service
of $[ * ] Per Employee Per Month or as separate transactions
with a rate of $[ * ] per transaction. A minimum usage fee of
$[ * ] per month for the first six (6) months of the contract
duration of two years will apply. At the conclusion of six
months, Client shall pay the $[ * ] per month or monthly
transaction volume times $[ * ] each month, whichever is
greater, for the remaining 18 months of the contract.
Development costs are $[ * ] based on revised estimates from
the original proposal. A fee. of $[ * ] will be paid to
▇▇▇▇▇.▇▇▇ upon contract signing. The remaining $[ * ] will be
due. along with the initial $[ * ] monthly fee upon Acceptance.
▇▇▇▇▇.▇▇▇ and Client Contacts: Client- ▇▇▇ ▇▇▇▇▇▇▇, Project Lead
Others to be named
XCare.net- ▇▇▇▇▇ ▇▇▇▇▇▇▇. Account
Manager ▇▇ ▇▇▇▇▇▇, Creative
Director ▇▇▇▇▇ ▇▇▇▇▇,
Senior Developer
* Confidential Treatment Requested
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▇▇▇▇▇.▇▇▇ "CLIENT"
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By
---------------------------- --------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ --------------------------------
Printed Name Printed Name
------------------------------ --------------------------------
Title Title
11/10/99
------------------------------ --------------------------------
Date Date
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ATTACHMENT A
GRANT OF SIX (6) MONTH EXCLUSIVE LICENSE
▇▇▇▇▇.▇▇▇ agrees to issue Client a six (6) month exclusive license, to begin
upon contract signing, with the following provisions:
1. ▇▇▇▇▇.▇▇▇ agrees that for a period of six (6) months, beginning
on the contract signing date. November 10, 1999 and ending on or
around May 10, 2000. ▇▇▇▇▇.▇▇▇ will not contract with the
following companies/organizations as provided by the Client:
- HealthComp Inc.
- ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- Benefit Administrators Corp. (BAC)
- Glacier Administration
- Managed Care Administrators
- Allied Administrators
- HRM Claims Mgmt
2. Client may not disclose terms of this exclusive contract
provision to any party without the consent and written approval
of ▇▇▇▇▇.▇▇▇.
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