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DEVELOPMENT SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is entered into
as of January 19, 2000 by and between Xxxxx.xxx, a Delaware corporation with
offices at 0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, ("Xxxxx.xxx"),
and the CHEC (Community Health Electronic Clearinghouse) with offices at 0000 X.
Xxxxxxx 000, Xxxxx 000, Xxxxx Xxxxxxx, XX 00000 ("Client").
This Agreement covers the purchase and license of consulting,
development and other services from Xxxxx.xxx, pursuant to orders placed by
Client and accepted by Xxxxx.xxx after the Effective Date.
This Agreement includes the following attachments, which are
incorporated herein by this reference:
Attachment 1 Xxxxx.xxx Development Services
Attachment 2 Contract Fee Structure and Agreements
Any notice required or permitted under this Agreement will be in
writing and delivered to the address set forth below, or to such other notice
address as the other party has provided by written notice.
THIS AGREEMENT, INCLUDING THE ATTACHMENTS LISTED ABOVE, CONSTITUTES THE
COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES WITH REFERENCE TO THE
SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS,
AGREEMENTS AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF CLIENT'S PURCHASE
ORDER (OR ANY OTHER PURCHASE OR SALES DOCUMENT) AND THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL. THIS AGREEMENT MAY BE MODIFIED,
REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY AUTHORIZED
REPRESENTATIVE OF EACH PARTY.
AGREED:
Xxxxx.xxx Client:
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Community Health
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Electronic Clearinghouse
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By: /s/ XXXXXX X. PIANHO By: /s/ XXXXX D SPRING
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(Authorized Signature) (Authorized Signature)
Xxxxxx X. Pianho, Sr. VP Sales Xxxxx D Spring CEO
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(Printed Name and Title) (Printed Name and Title)
1-19-2000 19/January/2000
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ATTACHMENT 1
XXXXX.XXX 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 Xxxxx.xxx
Software.
1.2. "Development Services" shall mean design, development, and set-up
services as necessary to modify existing Xxxxx.xxx technology, trade secrets
and know-how to produce the Xxxxx.xxx 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. "Xxxxx.xxx Software" shall mean all computer program code and
other results and proceeds of Xxxxx.xxx's services hereunder (other than
Content) that are delivered by Xxxxx.xxx to Client pursuant to this Agreement.
Such Xxxxx.xxx 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 Xxxxx.xxx hereunder, as identified
in the appropriate Schedule(s).
2. SERVICES
2.1. Development Services. Xxxxx.xxx 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. Xxxxx.xxx shall provide qualified and trained
personnel to render such services and shall use reasonable commercial efforts to
meet the delivery schedule set forth in the applicable Schedules. Any additions,
deletions or other changes to a Schedule shall be mutually agreed to in writing
in advance by both parties and shall be memorialized in a revised Schedule
pursuant to the procedure set forth in Section 2.6 below for Change Orders. All
services shall be performed at Xxxxx.xxx's offices unless otherwise agreed by
the parties. In the event that services are performed at Client's location,
Client shall provide Xxxxx.xxx 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 Xxxxx.xxx 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 Xxxxx.xxx notifies Client that this extension will not
rectify Xxxxx.xxx'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.
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2.2. Acceptance of Deliverables. Within fifteen (15) days after the
delivery to Client of any deliverable pursuant to any Schedule, Client shall
provide Xxxxx.xxx with written notice of any failure of any deliverable to
materially conform to the functional specifications set forth in the applicable
Schedule. Xxxxx.xxx and Client shall review the objections, and Xxxxx.xxx 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 have accepted the
deliverable if Xxxxx.xxx 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, Xxxxx.xxx 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 Xxxxx.xxx for the Client Web Site, the parties shall execute the
then current Xxxxx.xxx Maintenance Services Agreement and Xxxxx.xxx 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 Xxxxx.xxx for the Client Web Site, the parties shall execute the then
current Xxxxx.xxx Hosting Services Agreement, and Xxxxx.xxx shall render hosting
services pursuant to the terms and conditions of such agreement.
2.6. Change Orders. If Client desires to make changes to an existing
Schedule, the parties shall mutually agree upon an additional or revised
Schedule for each new Change Order. Each such Schedule shall be successively
numbered (e.g., 1.A, 1.B, etc.) and shall be executed by the parties. Any
revised Schedule(s) shall be subject to the terms and conditions of this
Agreement. Further, Xcare and Client agree to allow reasonable, non-material
modifications to the contract if both Xcare and Client agree to such change.
3. OWNERSHIP AND LICENSE RIGHTS
3.1. Property Rights and Ownership. The Client Web Site(s) and all
other results and proceeds of Xxxxx.xxx's services hereunder, shall consist of,
and shall operate in conjunction with, multiple elements of intellectual
property, including without limitation the Xxxxx.xxx 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 has sole ownership.
Client Content that is modified by
Xxxxx.xxx ("Modified Content") and
HTML files that contain Client
Content, and modifications to
Content as a result of Client's
usage of self-authoring tools.
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Content created for Client by Client has sole ownership.
Xxxxx.xxx and 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).
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Domain name for Client Web Site. Client has sole ownership.
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Server usage report data/statistics Client has sole ownership of
generated by the Xxxxx.xxx data/statistics, and Xxxxx.xxx has
Software in form and substance as a license pursuant to Section 3.3
set forth in the applicable Schedule below.
or as mutually agreed by the parties.
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Commercially available third-party Third-parties have ownership, and
software which is incorporated into Client shall be informed of all
the Xxxxx.xxx Software. third-party software that Client
may need to license at Client's
own expense.
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Xxxxx.xxx Software developed Xxxxx.xxx has sole ownership of
by or for Xxxxx.xxx in connection such Xxxxx.xxx Software. Client
with this Agreement for Client. shall be granted a license to use
the Xxxxx.xxx Software as set
forth in Section 3.2.
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Xxxxx.xxx supplied material Xxxxx.xxx has sole ownership
developed generally to support of such developed material. Client
Xxxxx.xxx products and/or service shall be granted a license to use
offerings (e.g. httpd Xxxxx.xxx Software as set forth in
configuration). Section 3.2 below.
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3.2. License to Client. Xxxxx.xxx grants Client a non-exclusive,
non-transferable license to use the Xxxxx.xxx 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. If the Xxxxx.xxx 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 Xxxxx.xxx
Software on a single computer in object code version only for Client's internal
business needs. Client may transfer the Xxxxx.xxx Software to a different
computer so long as the Xxxxx.xxx 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 confidentiality restrictions set forth in this Agreement.
Client is prohibited from duplicating and/or distributing any Xxxxx.xxx Software
without the prior written consent of Xxxxx.xxx; provided, however that Client
may copy the Xxxxx.xxx Software only as needed for reasonable ordinary backup or
disaster recovery procedures. Client may use
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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.
3.3. License to Xxxxx.xxx. Client grants Xxxxx.xxx a non-exclusive
license (i) to use, copy, and modify the Content in connection with Xxxxx.xxx's
performance of the Development Services, (ii) to use, copy, modify, distribute
and display server usage data and statistics generated by the Xxxxx.xxx
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 Xxxxx.xxx. Without limiting the foregoing, Client may not
reverse engineer, reverse assemble, decompile or otherwise attempt to derive the
source code from the Xxxxx.xxx Software.
3.6. Proprietary Notices. All copies of the Xxxxx.xxx Software and
other Xxxxx.xxx supplied materials used by Client shall contain copyright and
other proprietary notices in the same manner in which Xxxxx.xxx incorporates
such notices in the Xxxxx.xxx Software or in any other manner requested by
Xxxxx.xxx. Client agrees not to remove, obscure or obliterate any copyright
notice, trademark or other proprietary rights notices placed by Xxxxx.xxx on or
in the Xxxxx.xxx Software.
4. PAYMENT
4.1. Development Services. In consideration for the performance of the
Development Services, Client shall pay to Xxxxx.xxx the amounts set forth in the
applicable Schedule, on the payment dates set forth in such Schedule. In the
event that Xxxxx.xxx renders services at Client's location, Client shall pay the
reasonable travel, living and related expenses for Xxxxx.xxx 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 Xxxxx.xxx's standard hourly rates, which may be
revised from time to time by Xxxxx.xxx, 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, Xxxxx.xxx will notify
Client, and additional hours will be billed at Xxxxx.xxx's standard hourly
rates.
4.2. Maintenance Services. If the parties have entered into a Xxxxx.xxx
Maintenance Services Agreement, Client shall pay Xxxxx.xxx the amounts set forth
in said Maintenance Services Agreement.
4.3. Hosting Services. If the parties have entered into a Xxxxx.xxx
Hosting Services Agreement, Client shall pay Xxxxx.xxx 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
Xxxxx.xxx's income shall be the sole responsibility of Xxxxx.xxx.
4.5. Payments. All payments made pursuant to this Agreement shall be
made in U.S. Dollars and
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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 rate
permitted by law, whichever is less.
5. LIMITED WARRANTY
5.1. Software Warranty. Subject to the limitations set forth in this
Agreement, Xxxxx.xxx warrants only to Client that the Xxxxx.xxx 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. Xxxxx.xxx'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"). Xxxxx.xxx's sole
responsibility under this Section 5.1 shall be to use reasonable commercial
efforts to promptly correct material errors, or at Xxxxx.xxx's option, to refund
Client's fees paid for the Xxxxx.xxx Software after deinstallation and return
thereof. All warranty claims not made in writing or not received by Xxxxx.xxx
within the Warranty Period shall be deemed waived. Xxxxx.xxx'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. XXXXX.XXX DOES NOT WARRANT THAT THE USE OF THE XXXXX.XXX SOFTWARE
WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET
CLIENT'S REQUIREMENTS. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, XXXXX.XXX
DOES NOT MAKE ANY WARRANTY AS TO THE XXXXX.XXX SOFTWARE OR THE SERVICES PROVIDED
HEREUNDER OR THE RESULTS TO BE OBTAINED FROM USE OF THE XXXXX.XXX SOFTWARE.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE XXXXX.XXX 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. Xxxxx.xxx.
6.1.1. Indemnification. Xxxxx.xxx, at its own cost and expense,
shall defend Client and its officers and directors, against a claim that the
Xxxxx.xxx 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 Xxxxx.xxx promptly in writing of the claim;
(ii) Xxxxx.xxx has the sole control of the defense and all related settlement
negotiations; and (iii) Client provides Xxxxx.xxx with all reasonably necessary
assistance, information, and authority to perform the foregoing at Xxxxx.xxx's
expense.
6.1.2. Xxxxx.xxx shall have no liability for any claim of
infringement based on (i) use by Client of other than the current update of the
Xxxxx.xxx Software if the infringement would have been avoided by uses of the
current update; (ii) modifications, adaptations or changes to the Xxxxx.xxx
Software not made by Xxxxx.xxx; (iii) the combination or use of the materials
furnished hereunder with materials not furnished by Xxxxx.xxx if such
infringement would have been avoided by use of the Xxxxx.xxx materials alone; or
(iv) use or incorporation of Content or Modified Content. In the event the
Xxxxx.xxx Software is held to, or Xxxxx.xxx believes is likely to be held to,
infringe the intellectual property rights of a third party, Xxxxx.xxx shall have
the right at its sole option and expense to (i) substitute or modify the
Xxxxx.xxx Software
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so that it is non-infringing and qualitatively and functionally equivalent to
the Xxxxx.xxx Software; (ii) obtain for Client a license to continue using the
Xxxxx.xxx Software; or if neither (i) nor (ii) is commercially reasonable,
Xxxxx.xxx shall have the right to terminate this Agreement immediately upon
written notice to Client, and Xxxxx.xxx shall make payment to Client of an
amount equal to the fees paid for the Xxxxx.xxx Software, pro-rated over a three
(3) year period commencing on the Effective Date. This Section 6.1 sets forth
Client's sole and exclusive remedy and Xxxxx.xxx's sole liability for
intellectual property infringement by Xxxxx.xxx.
6.2. Client.
6.2.1. Client hereby represents and warrants to Xxxxx.xxx 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 Xxxxx.xxx, 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 Xxxxx.xxx, or any of its directors,
officers, parent company, and affiliates, relating to Content or Modified
Content, provided (i) Xxxxx.xxx notifies Client promptly in writing of such
claim, (ii) Client has the sole control of the defense and all related
settlement negotiations, and (iii) Xxxxx.xxx 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 XXXXX.XXX, ITS DIRECTORS, OFFICERS, PARENT
COMPANY, AND, AFFILIATES, TO CLIENT FOR DAMAGES RELATING TO XXXXX.XXX'S FAILURE
TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL
FEES PAID BY CLIENT TO XXXXX.XXX WITH RESPECT TO SUCH SERVICES. NOTWITHSTANDING
THE FOREGOING, THE MAXIMUM LIABILITY OF XXXXX.XXX, 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 XXXXX.XXX HEREUNDER. IN NO EVENT SHALL
XXXXX.XXX, 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 XXXXX.XXX HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY.
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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 been provided with written
notice of default and thirty (30) days to cure such default; (ii) the
commencement of a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to either party of its debts under
any bankruptcy, insolvency, or other similar law now or hereafter in effect,
that authorizes the reorganization or liquidation of such party or its debt or
the appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property; (iii) either party's
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it;
or (iv) either party's making a general assignment for the benefit of creditors;
or either party's becoming insolvent; or either party taking any corporate
action to authorize any of the foregoing.
8.3. Termination for Convenience. This Agreement may be terminated by
either party upon ninety (90) days' advance written notice.
8.4. Effect of Termination. If this Agreement is terminated by
Xxxxx.xxx under Section 8.2, while Xxxxx.xxx is performing any Development
Services for Client hereunder, Client shall immediately pay Xxxxx.xxx the total
fees associated with such incomplete project, as well as all amounts due and
owing for any projects already completed by Xxxxx.xxx hereunder or for any
third-party products or services purchased by Xxxxx.xxx in Client's behalf. If
the Agreement is terminated under Section 8.3 while Xxxxx.xxx is performing any
Development Services or other services for Client hereunder, Client shall pay
Xxxxx.xxx all fees due and owing up to the effective date of such termination,
not to exceed the monthly minimum payment for services performed to that date.
The foregoing shall be without limitation to Xxxxx.xxx's rights and remedies
under this Agreement.
8.5. Survival. Sections 3, 5, 7, 8, 9 and 10 shall survive any
termination or expiration of this Agreement; provided, however, that if this
Agreement is terminated by Xxxxx.xxx 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. Confidentiality. Each party hereby agrees: (i) to hold and
maintain in strict confidence all Confidential Information of the other party
and not to disclose it to any third party; 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.
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9.3. Exceptions. Notwithstanding the foregoing, the parties agree that
Confidential Information will not include any information that: (i) is or
becomes generally known or is or becomes part of the public domain through no
fault of the other party, (ii) the first party authorizes to be disclosed; (iii)
is rightfully received by the other party from a third party without restriction
on disclosure and without breach of this Agreement; or (iv) is known to the
other party on the Effective Date from a source other than the first party, and
not subject to a confidentiality obligation.
9.4. Injunctive Relief. Each party acknowledges that any breach of the
provisions of this Section 9 may cause irreparable harm and significant injury
to an extent that may be extremely difficult to ascertain. Accordingly, each
party agrees that the other party will have, in addition to any other rights or
remedies available to it at law or in equity, the right to seek injunctive
relief to enjoin any breach or violation of this Section 9.
10. GENERAL PROVISIONS
10.1. Force Majeure. In the event that either party is unable to
perform any of its obligations under this Agreement or to enjoy any of its
benefits because of any event beyond the control of the affected party
including, but not limited to, natural disaster, acts of God, actions or decrees
of governmental bodies or failure of communication lines (a "Force Majeure
Event"), the party who has been so affected shall promptly give written notice
to the other party and shall use its best efforts to resume performance. Upon
receipt of such notice, all obligations under this Agreement shall be
immediately suspended for the duration of such Force Majeure Event.
10.2. Notice. All notices, demands, requests or other communications
required or permitted under this Agreement will be deemed given when (i)
delivered personally; (ii) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iii) one (1) day
after deposit with a commercial overnight carrier, with written verification of
receipt.
10.3. Waiver. Waiver of any breach or failure to enforce any term of
this Agreement shall not be deemed a waiver of any breach or right to enforce
which may thereafter occur. No waiver shall be valid against any party hereto
unless made in writing and signed by the party against whom enforcement of such
waiver is sought and then only to the extent expressly specified therein.
10.4. Severability. In the event any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired
and the parties will substitute a new enforceable provision of like economic
intent and effect.
10.5. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto, shall be governed by and
construed in accordance with the laws of the State of [Colorado] without
reference to conflict of law principles.
10.6. Assignment. Neither party shall have the right to assign this
Agreement without the prior written consent of the other party; provided, that
either party shall have the right to assign this Agreement to any person or
entity that acquires or succeeds to all or substantially all of such party's
business or assets upon written notice to the other party.
10.7. Publicity. Within a time frame mutually agreed upon by the
parties, the parties shall mutually agree on a joint press release announcing
the existence of this Agreement. Neither party will use
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the other party's name, domain name, logo, trademark or service xxxx in
advertising or publicity without obtaining the other party's prior written
consent; provided, however, that Xxxxx.xxx 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
Xxxxx.xxx's client portfolio. Xxxxx.xxx shall also have the right to display its
name and logo, as well as a link to the Xxxxx.xxx site, on the Client Web
Site(s), and to receive credit as the developer of the Client Web Site(s),
(collectively, the "Credit"). Such Credit shall appear on the "home page" of the
Client Web Site(s) in a position that provides reasonable and appropriate
visibility to Xxxxx.xxx 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.
10.9. Headings. Section headings contained in this Agreement are
inserted for convenience or reference only, shall not be deemed to be a part of
this Agreement for any other purpose, and shall not in any way define or affect
the meaning, construction or scope of any of the provisions hereof.
10.10. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and all
of which, when taken together, shall constitute one and the same instrument.
10.11. Independent Contractors. The relationship of the parties
hereunder shall be that of independent contractors. Nothing herein shall be
construed to constitute a partnership between or joint venture of the parties,
nor shall either party be deemed the agent of the other or have the right to
bind the other in any way without the prior written consent of the other.
10.12. Jurisdiction. All disputes arising out of or relating to this
Agreement shall be submitted to the non-exclusive jurisdiction of the state and
federal courts encompassing 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 Xxxxx.xxx to Client under
this Professional Services Agreement dated January 19, 2000. Xcare agrees to, in
good faith and a timely manner, show normal, customary levels of activity as it
relates to development of work to be performed in this Agreement. Client also
agrees to show good faith to provide Xcare, in a timely manner, with requested
documents, material, etc. necessary for the completion of development work.
Description of Work:
- Member, Provider, Payer login and security
- Member services including - online enrollment, eligibility changes,
pcp changes, card request, claims history with appropriate
accumulators, referral history, plan document display (we tested Word
to HTML and it works fine on our documents), provider lookups and
mapping, important phone numbers, view basic member reports, etc.
- Provider services including - verify patient information similar to
Member service area (plan design, provider lookup, etc.), submit and
lookup a referral, submit a claim for payment, verify claim payment,
verify pcp's covered members, view basic member and provider reports.
- Employer services including -- modify enrollment (support online open
enrollment as well as ongoing adds and deletes), view their plan
document, communicate via broadcast messaging, view payment
information, run basic reports, perform ad hoc reporting (this would
definitely be phased in over time).
- CHEC corporate services-- marketing, job-posting, etc. (concepts,
layout, and procedures jointly developed, maintenance performed by
CHEC)
- WebTPA/NetTPA-- allow for private labeling of CHEC web infrastructure
via a new entity, WebTPA or NetTPA.
Functional Specifications: To be completed during "kick-off" meeting.
Deliverables: Phase 1 to include and estimated for completion by 6/1/00:
o Member- Eligibility Updates, PCP Change, ID Card
Request, Claim History, Benefit Plan Document Display
o Provider- Member Status/Eligibility, Claim Status,
Display PCP's Member Panel, Benefit Plan Document
Summary
o Employer- View Plan Document, On-Line Enrollment,
Update/Modify Eligibility
o CHEC Corporate Services- Marketing, Job Posting,
Information by State that CHEC is operating in
(concepts, layout and procedures jointly developed and
maintenance performed by CHEC)
Phase 2 to include and estimated for completion by 9/1/00:
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o Member- Display Accumulators with Claim Status,
Referral Status, Provider Search with Geo Mapping and
Characteristics (sex, language, where educated, etc.),
Basic Member Reports
o Provider- Submit Claim, Submit Referral and Status,
Basic Member and Provider Reports
o Employer- Communicate with Employees via Message Board,
Run Basic Reports and Perform Ad Hoc Reporting (uses
new report writer)
o Branding and Launch of XxxXXX.xxx
Acceptance: Per Contract Wording
Fee Schedule: See Attachment 2
Xxxxx.xxx and Client Contacts: (Identify key contacts for both
parties who will have
involvement/approval authorities
for the project - Project
management, technical contacts,
financial, etc.)
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SCHEDULE 2
Contract Duration: Two Years (2/00-12/02)
The Monthly Fees listed below contain charges for Development and Transaction
use on a PMPM basis. Hosting charges are then applied as shown.
CONTRACT PAYMENT PMPM STRUCTURE:
February 1, 2000-- January 31, 2001 (Year 1)
Monthly Fee $ * Monthly Hosting $ *
Total Annual Fee $ * X 12 = $ *
February 1, 2001-- January 31, 2002 (Year 2)
MINIMUM MONTHLY FEE (Based on * Lives) $ * MONTHLY HOSTING $ *
Total Minimum Monthly Fees-Year 2 = $ *
Total Minimum Annual Fees Year 2 $ * X 12 = $ *
Lives above * in Year 2 will be calculated using a PMPM rate to be
negotiated at that time and incorporated into this agreement as a new addendum.
A * Hosting Fee will be applied to any re-negotiated PMPM fees or PMPM scale
put in place and adjusted monthly during Year 2.
A review of current lives will take place prior to the start of Year 2. The
minimum for Year 2 will be no less than $ * per month.
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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Xxxxx.xxx "Client"
By: /s/ XXXXXX X. PIANHO By: /s/ XXXXX D SPRING
--------------------------------- -----------------------------
Xxxxxx X. Pianho Xxxxx D Spring
------------------------------------ -------------------------------
Printed Name Printed Name
Sr. VP Sales/Business Dev. CEO
------------------------------------ -------------------------------
Title Title
1-19-2000 19, January 2000
------------------------------------ -------------------------------
Date Date
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