EXHIBIT 10.23
LICENSE AND MASTER AGREEMENT
This Agreement, together with all Appendices hereto, is entered into by and
between Premier Computer Systems, Inc., a Georgia Corporation whose address is
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Licensor"), and Medical Staffing Network Inc. whose address is ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Licensee") as of the date of execution.
SECTION 1. GENERAL DEFINITIONS.
1.1 "PROGRAM" will mean the software programs named as Staff-Trac,
Centrix, MSN Healthworks and MSN Healthworks Accountant, together with
all documentation, other materials and information supplied by
Licensor.
1.2 "PRIMARY CONTACT" will be one person designated by the Licensee to act
for the Licensee in connection with instructions, questions, requests,
telephone calls and correspondence related to the Program(s) outlined
in this Agreement. The Primary Contact will be the person with primary
responsibility for contact with Licensor. The Primary Contact is
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
1.3 "SECONDARY CONTACT" will be a person designated by the Licensee to act
for the Licensee in the event the Primary Contact is unavailable. The
Secondary Contact(s) will be designated by the Primary Contact and
communicated to the Licensor as needed.
1.4 "LOCAL AREA NETWORK" will mean any two or more computers at a single
location, connected to a central file server and allowing multi-user
access to the Program.
1.5 "WIDE AREA NETWORK" will mean any two or more computers at two or more
detached locations, connected to a central file server and allowing
remote multi-user access to the Program.
1.6 "CUSTOM MODIFICATIONS" will mean any work done to the basic Program at
the Licensee's request. Included in "Custom Modification" would be
such things as special reports, interfaces with other software and/or
any other changes made to the basic Program at the request of the
Licensee.
1.7 "USE OF LICENSED PROGRAM" will mean when the Program is loaded into
temporary memory (i.e., RAM) or installed into permanent memory (e.g.,
hard drive, CD-ROM, or other storage device) of one computer.
1.8 "REGULAR HOURLY RATE" is the billing rate set forth in writing between
the Licensee and Licensor.
SECTION 2. GRANT OF LICENSE.
This Agreement permits Licensee the nonexclusive use of the Program as set forth
herein.
2.1 PERMITTED USES OF LICENSED PROGRAM. Licensee will use the Program on a
single computer at the location(s) as notified in writing to the
Licensor by the Licensee. Additional user licenses may be purchased to
allow multiple and simultaneous access of the Program at each
location.
2.2 LIMITATION ON LICENSE. Licensee may not reverse engineer, decompile,
disassemble, or otherwise duplicate the Program or any part of it.
Additionally, Licensee may not sell, assign, disclose, furnish, or
redistribute the Program or any part thereof to any other location
within Licensee's firm or to a third person, firm, or entity.
2.3 PHYSICAL LOCATION OF LICENSED PROGRAM. Licensee will use the Program
at the location(s) as notified in writing to the Licensor by the
Licensee; provided that if an office location is moved after
installation of the Program, the Program may be used at the new
location in accordance with the terms of this Agreement. Licensee must
notify the Licensor of relocation of licenses in writing.
SECTION 3. TERM.
3.1 LICENSE TERM. Licensee's exclusive license of MSN Healthworks and MSN
Healthworks Accountant will be for twenty-five (25) years beginning
immediately upon acceptance and execution of this agreement.
Licensee's non-exclusive license of Staff-Trac and Centrix will be for
twenty-five (25) years beginning immediately upon acceptance and
execution of this agreement.
3.2 TERMINATION. This Agreement will continue to be in effect and
renewable on a monthly basis subject to an annual review of the
various rates charged for services, until terminated by either party
upon ninety (90) days prior written notice provided that the Licensor
will not terminate the License so long as Licensee has fully paid the
licensing fees. Licensor will also have the option of terminating this
agreement in the event that any of the following occurs (a) Licensee
fails to timely make any payment due; (b) Licensee breaches any of the
terms of this Agreement or fails to perform any obligation hereunder
and such breach of failure is not cured within ten (10) days of
notice.
Upon termination for any reason, no refund will be due, but Licensee
will not be relieved of any obligations previously incurred, including
the obligation to make payments.
3.3 CONTINUATION. The non-disclosure of proprietary information provision
and non-competition provisions of this Agreement will continue beyond
the termination of this Agreement as set forth in those Sections.
SECTION 4. FEES AND PAYMENT.
4.1 FEE FOR PROGRAM. The license fee is as set forth in writing between
the Licensee and Licensor.
4.2 FEE FOR OTHER SERVICES. Licensee will pay Licensor, Licensor's regular
hourly rate for all installation, conversion, training, custom
modifications, and other services.
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4.3 HARDWARE OR THIRD PARTY SOFTWARE COSTS. Any third party hardware or
software purchased or obtained through Licensor will be in addition to
the license fee for Program and in accordance with invoices and/or
quotations from Licensor to Licensee.
4.4 SITE VISITS. If any work is performed at the Licensee's site, Licensee
shall pay, in addition to the Licensor's regular hourly rate, Licensor
for any travel expenses incurred. These expenses include, but are not
limited to, transportation, lodging, and meals.
4.5 All fees are payable on Net 30 terms from the date of invoices.
SECTION 5. INSTALLATION AND TESTING.
5.1 PRE-INSTALLATION. Licensee will ensure that Licensee's hardware is
compatible with the system specifications as shown in Appendix A.
5.2 INSTALLATION. Licensor will install Program and such equipment and
third party software obtained through Licensor as soon as practical,
depending on the delivery of such hardware and third party software.
The installation will include the following: (a) loading of the
Program on the Licensee's network server; (b) loading of any third
party software obtained through Licensor onto Licensee's network
server hard disk; and (c) setting up all third party hardware obtained
through Licensor.
Installation will not include any data entry, except for such test
data as is necessary to provide a demonstration of the use of the
Program. Licensor will not, under any circumstances, be responsible
for any delays in connection with the installation of any hardware or
software other than the Program.
5.3 TESTING. Licensor will test the Program on Licensee's hardware to
ensure that the Program is operational. If for any reason the
Licensee's hardware is not compatible with the Program, Licensor will
not be responsible for making corrections or modifications to the
existing system. Any changes to the existing system will be considered
Additional Services and be governed by that Section of this Agreement.
5.4 DEMONSTRATION. Licensor will demonstrate the use of the Program using
test data.
SECTION 6. DATA CONVERSION.
6.1 FEES. Fees for data conversion are as set forth in writing between the
Licensee and Licensor.
6.2 IMPLEMENTATION. Licensor will assist Licensee in planning a schedule
of activities and/or a checklist for the conversion process from
Licensee's current system to the Program. However, Licensee
acknowledges that transferring data from prior systems, modifying such
data if necessary and interpreting the same, as well as all other
aspects of the conversion process necessary to cause Licensee's data
to conform with Program's data structure is Licensee's responsibility.
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6.3 STANDARD CONVERSION. The Program is designed to allow Licensee to
manually enter data into the Program by having Licensee's personnel
input the data after Program is installed. If the Licensee's data is
in a form and structure compatible with the data structure of Program
as set forth in Appendix B, it may be possible for Licensor to write a
program to assist in the transfer of Licensee's previous data to the
Program at the Licensor's regular hourly rate. If such is done, the
program, including the copyright thereto, will remain the property of
Licensor.
It is acknowledged that not all information in Licensee's old system
may be transferable to the Program and the interface, if it can be
done, will apply only to compatible items.
6.4 OTHER CONVERSION. Standard conversion includes the transfer of only
the data types listed in Appendix B. It is acknowledged that adding
and/or transferring other data which may be in the Licensee's prior
system is considered custom modification work, which will be at
additional cost and which will take additional time. Such work is
governed by the Additional Services provisions herein.
SECTION 7. TRAINING.
7.1 FEES AND TYPES. The fees and time allotted for training are as set
forth in writing between the Licensee and Licensor.
7.2 RESPONSIBILITIES. Licensor will notify Licensee regarding those parts
of the training program which will be essential for staffing
coordinators and personnel involved in payroll and billing. Licensee
will: (a) ensure that the Primary and Secondary Contact persons as
well as other management personnel responsible for training other
workers and all personnel who are to be knowledgeable regarding the
Program must attend the entire training program at the scheduled time;
and (b) will pay for any additional training that may be required due
to the failure of Licensee's personnel to attend the regularly
scheduled training, at Licensor's regular hourly rate plus travel and
expenses.
SECTION 8. PROGRAM MAINTENANCE AND SUPPORT.
8.1 FEES. The license fee for maintenance and support of the Program are
as set forth in writing between the Licensee and Licensor.
8.2 MAINTENANCE. The Program Maintenance Options are set forth in Appendix
B.
8.3 SERVICES. Custom Services (if any) are set forth in Appendix C.
8.4 CHANGES TO LICENSEE'S SYSTEM. Once the Program is installed on
Licensee's system, any changes to the hardware or additions of other
software to the system, which cause the Program to have operational
problems will be considered a user error. Licensor will charge the
Licensee at the Licensor's regular hourly rate to correct the error.
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SECTION 9. ADDITIONAL SERVICES.
9.1 FEES. Fees for additional services will be at Licensor's regular
hourly rate plus expenses.
9.2 SERVICES AVAILABLE. Licensor may provide additional services such as
assistance in choosing equipment or software, purchasing third party
equipment and software, training, conversion, custom modifications,
interfacing the Program with Licensee's payroll, billing, and/or
general ledger or other programs, consultations, and similar functions
for an additional fee.
SECTION 10. WARRANTIES AND DISCLAIMER.
10.1 WARRANTIES. Licensor warrants: (a) that the Program will perform
substantially in accordance with the accompanying written materials;
(b) that the Program does not infringe upon the valid copyright or
other rights of others and will indemnify and hold Licensee harmless
from and against all claims of infringement so long as Licensee
utilizes the Program in accordance with this Agreement and adheres to
the terms hereof.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, LICENSOR MAKES NO WARRANTIES
WHATSOEVER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR USE. PROGRAM IS LICENSED AS IS AND WHERE IS AND
DAMAGES, INCLUDING, BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, ARISING OUT OF OR
IN CONNECTION WITH THE USE OR ATTEMPTED USE OF PROGRAM. NOTWITHSTANDING ANY OF
THE ABOVE, LICENSOR'S LIABILITY AND LIQUIDATED DAMAGES SHALL NOT UNDER ANY
CIRCUMSTANCES EXCEED THE CHARGES ACTUALLY PAID BY LICENSEE HEREUNDER FOR THE
LICENSE OF PROGRAM.
10.2 DISCLAIMERS. To the extent that Licensor supplies Licensee with
third-party products, whether hardware, software or other supplies,
Licensor makes NO WARRANTY WHATSOEVER regarding such third-party
products and Licensee will rely solely on the manufacturer's warranty
and Licensee's sole recourse will be against such manufacturers.
Under no circumstances shall Licensor be responsible for user error,
including but not limited to, erroneous input, misuse of Program,
user's failure to follow the Program's directions, incorrect
interpretation of instruction or data or missing data.
Licensor will not be responsible for the performance of any of
Licensee's existing hardware or third party software.
Licensor will not be responsible for any failure to perform hereunder
which failure is caused by Acts of God or any other circumstances
beyond the control of Licensor.
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SECTION 11. CONFIDENTIALITY AND NON-DISCLOSURE.
11.1 PROPRIETARY INFORMATION AND TRADE SECRETS. This Program and all
information and materials related thereto supplied by Licensor
constitute proprietary information and trade secrets of the Licensor.
11.2 CONFIDENTIALITY. Licensee will use its best efforts to ensure that
Licensee, its employees, agents, attorneys and representatives ensure
the confidentiality of the Program and all related materials and
information supplied by the Licensor.
11.3 DISCLOSURE. Licensee warrants that Licensee, its employees, agents,
attorneys and representatives will not disclose, use, modify, copy, or
reproduce the Program, or any of the information or related materials
supplied by Licensor except in accordance with this Agreement without
first obtaining the written permission of Licensor.
11.4 SURVIVAL OF PROVISIONS. The provisions of this section will continue
beyond the term of this Agreement and will be binding and enforceable
even after the termination of this Agreement.
SECTION 12. MISCELLANEOUS PROVISIONS.
12.1 EQUITABLE RELIEF. Licensee acknowledges and agrees that the breach of
the provisions of Section 11, Confidentiality and Non-Disclosure, of
this Agreement would be extremely detrimental to Licensor and cannot
reasonably or adequately be compensated in damages in an action at
law, and that such a breach of those provisions would cause Licensor
irreparable injury and damage. By reason thereof, Licensee agrees, in
any action for preliminary or permanent injunctive or other equitable
relief to prevent or to curtail any breach of the Provisions of
Section 11, Confidentiality and Non-Disclosure by Licensor, not to
assert that Licensor has an adequate remedy at law hereunder.
12.2 TITLES AND SUBTITLES. The titles of paragraphs and subparagraphs of
this Agreement are for the convenience of reference only and are not
to be considered in construing this Agreement.
12.3 LEGAL FEES. If any dispute arises in connection herewith, the party
finally prevailing on any issue will be entitled to immediate payment,
by the party whose position on such issue was not upheld, of all
reasonable attorneys' fees and legal expenses incurred in connection
with such issue, whether or not suit be filed, and whether before or
after appeal; provided, however, that if in the settlement of any such
dispute the parties provide for such legal fees in the written
settlement agreement, this provision will be waived.
12.4 SEVERABILITY. The provisions of this Agreement will be severable and
if one or more provisions should be declared invalid, the remaining
provisions will remain in full force and effect.
12.5 NOTICES. Any notice required or permitted hereunder will be given in
writing and will be deemed effectively given upon personal delivery or
upon deposit in the United States
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Postal Service, by registered or certified mail, postage paid,
addressed to the address shown in the opening section of this
Agreement or to such other address as a party may designate by notice
to the other party hereto.
12.6 WAIVER. Any failure or delay in the execution of any right herein
shall not constitute a waiver thereof, nor shall any such delay or
waiver of a particular default or right operate as a waiver of any
other rights.
12.7 GOVERNING LAW. This Agreement shall be governed and construed
according to the laws of the State of Georgia.
12.8 COMMENCEMENT OF WORK. Licensor shall commence work on the installation
as soon as possible upon receipt by the Licensor of an executed copy
of this Agreement and the payments due as set forth in Appendix A.
12.9 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the
subject hereof. Neither this Agreement nor any terms hereof may be
amended, waived, discharged or terminated orally, but only by a
written instrument signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
on the day and year set forth below.
LICENSOR: LICENSEE:
PREMIER COMPUTER SYSTEMS, INC. MEDICAL STAFFING NETWORK INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- -------------------------
Its: PRESIDENT Its: CEO
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Date: 2/8/2002 Date: 2/8/02
------------------------------------ -------------------------
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APPENDIX A - HARDWARE / SOFTWARE REQUIREMENTS
WORKSTATION MINIMUM HARDWARE REQUIREMENTS AND CONFIGURATION
Pentium - 400 MHz or Greater
64 MB+ RAM
1 GB Free Disk Space
WORKSTATION OPERATING SYSTEMS
Windows 98, Windows NT, Windows 2000, Windows XP
SEVER 6 - 8 USERS -- MINIMUM HARDWARE REQUIREMENTS AND CONFIGURATION
Pentium - 500 MHz or Greater
128 MB+ RAM
SCSI-2 Controller
8 GB SCSI HD
Battery Backup Power Source
Tape Backup
SEVER 6 - 20 USERS -- MINIMUM HARDWARE REQUIREMENTS AND CONFIGURATION
Pentium - Dual Processors
256 MB+ RAM
SCSI-2 Controller
18 GB SCSI HD
Battery Backup Power Source
Tape Backup
NETWORK OPERATING SYSTEMS
Windows NT, Windows 2000
DATABASE
Microsoft SQL Server
ADDITIONAL REQUIREMENTS
Remote access to data and program execution and file transfer via PCAnywhere 32,
ver 8 or higher, Citrix Metaframe, Terminal Services Client and ftp, or some
other acceptable remote control method as mutually agreed upon between Licensee
and Licensor.
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