PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is entered into as
of September 9, 1999 (the "Effective Date") by and between XCare.net, a Delaware
corporation with offices at 6400 S. Fiddler's Green Circle, Englewood, CO 80111,
("XCare.net"), and Asthma Management Company, a corporation with offices at 645
Madison Ave, 12th Floor, New York, NY, 10022 ("Client").
This Agreement covers the purchase and license of consulting, development
and other services from XCare.net, pursuant to orders placed by Client and
accepted by XCare.net after the Effective Date. This includes the following
Asthma Management objectives: electronic medical records, workflow engines, data
warehousing, support, maintenance, hosting services, and the Internet product.
This Agreement includes the following attachments, which are incorporated
herein by this reference:
Attachment 1 XCare.net Development Services
Attachment 2 Schedule of Work Deliverables, Project Plan, Fees and Payment Terms
Attachment 3 Maintenance Agreement
Attachment 4 Architectural Platform
Attachment 5 List of Acceptance Criteria
Attachment 6 Escrow Agreement
Attachment 7 Hosting Agreement
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REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY AUTHORIZED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:
XCare.net Client:
Lorine Sweeney -------------------------------------
President & CEO -------------------------------------
By: By:
---------------------------------- ----------------------------------
(Authorized Signature) (Authorized Signature)
- ------------------------------------- -------------------------------------
(Printed Name and Title (Printed Name and Title)
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ATTACHMENT 1
XCARE.NET DEVELOPMENT SERVICES1. 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 XCare.net Software.
1.2. "Development Services" shall mean design, development, and set-up
services to (i) modify, if necessary, existing XCare.net technology,
trade secrets and know-how to produce the XCare.net Software and
other elements of the Client Web Site, (ii) produce the client
software, (iii) produce the client web site and (iv) provide any
other consulting services rendered hereunder as identified in the
appropriate schedules ("Schedule(s)") attached hereto.
1.3. "XCare.net Software" shall mean the architectural platform described
in Attachment 3, all computer program code and other results and
proceeds of XCare.net's services hereunder (other than Content and
Client Software) that are delivered by XCare.net to Client pursuant
to this Agreement. Such XCare.net Software shall be provided in
object code form that conforms with Extensible Mark-Up Language
Standards and the parties will enter into an escrow agreement
(Attachment 6) paid for by client.
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
XCare.net hereunder, as identified in the appropriate Schedule(s).
1.5. "Client Software" shall mean all computer program code and other
results and proceeds of XCare.net's services, excluding the
XCare.net platform architecture and associated technical residuals,
developed specifically by XCare.net for Client hereunder and paid
for by Client. Client Software shall be provided in source code that
conforms with Extensible Mark-Up Language Standards. 2. SERVICES
2.1. Development Services. XCare.net shall render Development Services in
accordance with the requirements set forth in Schedules in the form
of mutually agreed upon Project Management Plans that will be
created for each Phase of application development. 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. XCare.net 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 get forth in Section 2.6 below
for Change Orders. All services shall be performed at XCare.net's
offices unless otherwise agreed by the parties. In the event that
services are performed at Client's location, Client shall provide
XCare.net at no charge with all necessary 2
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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
XCare.net all Content selected by Client for incorporation into any
Client Web Site in digitized format if available, otherwise hard
copies shall be provided 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 XCare.net
notifies Client that this extension will not rectify XCare.net'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) calendar days after
the delivery to Client of any deliverable pursuant to any Schedule,
Client shall provide XCare.net with written notice of any failure of
any deliverable to materially conform to the functional
specifications set forth in the in the applicable Schedule.
XCare.net and Client shall review the objections, and XCare.net will
use commercially reasonable efforts to correct any material
nonconformities with the functional specifications and provide
Client with a revised deliverable within fifteen (15) calendar days.
Client shall have deemed to have accepted the deliverable if
XCare.net does not receive written notice of Client's objections
within said fifteen (15) calendar day period. All deliverables
pursuant to any schedule must include a 30 calendar day client beta
testing period.
2.3. Domain Name Registration Services. If domain name registration
services are included in the Schedule, XCare.net 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. XCare.net shall render maintenance services
pursuant to the terms and conditions of Attachment 3 Maintenance
Agreement. The maintenance and support phase begins after the
acceptance of the delivered product.
2.5. Hosting, Services. If Client desires to purchase hosting services
from XCare.net for the Client Web Site, the parties shall execute a
Hosting Services Agreement (Attachment 7 Hosting Agreement), and
XCare.net 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., LA, 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.
2.7. Disaster Recovery Plan. XCare.net will provide a disaster recovery
plan to the Client by July 1, 2000. This plan will include
co-location information, software recovery, data recovery, and a
plan outlining the timeframe for disaster recovery. The disaster
recovery plan will be implemented by December 31, 2000.
2.8. Performance Guarantee. Except as may otherwise be provided in the
Agreement, credit for lost Services will be issued only for periods,
calculated in fifteen (15) minute increments, in excess of two (2)
hours in any calendar month. One (8) hour services loss will be
permitted in each 6 3
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month service period to allow for potential catastrophic system
disruption. Lost services or "Downtime" is deemed to have occurred
only if service becomes unusable by Client as a result of failure of
XCare.net facilities, equipment or personnel used to provide the
Services, and only where the interruption is not the result of (a)
negligence or other conduct of Client or its agents, (b) failure or
malfunction of any equipment or services not provided by XCare.net,
including failure of the internet transport network. Credit shall be
calculated by calculating the average hourly rate for XCare.net's
services over the prior month and multiplying it times the number of
hours of downtime.
XCare.net's latency guarantee constitutes average round-trip
transmissions of three seconds or less between the transit backbone
routers (hub routers) in the contiguous U.S. The transatlantic
latency guarantee is six seconds or less. The performance guarantees
specified do not reflect infringements upon speed as a result of the
Internet or connections of the users.
2.8.1 XCare.net Average Server Response Times. Should the response
times stipulated above not be met for a minimum of 30 minutes
per day for FIVE consecutive days, then XCare.net will make
all necessary additions/modification to the equipment
configuration over the next calendar month to bring the
response times within their stipulated levels again.
2.9 XCare.net represents and warrants that all Client Software and
XCare.net Software will process dates correctly prior to, during and
after the calendar year 2000. This shall include, but not be limited
to, century recognition, calculations that accommodate the same
century and multi-century formulas and date values, and interface
values that reflect the century. In the event that Client becomes
aware that the Client Software or XCare.net Software will not or
does not process data containing any dates subsequent to the year
1999 correctly, Client shall immediately notify XCare.net of that
fact and XCare.net agrees to correct or replace the Client Software
or XCare.net Software to eliminate such processing problem in
accordance with XCare.net's standard policies, which are available
upon request.
The foregoing is Client's sole and exclusive remedy for breach of
warranty. The warranty set forth above is made to and for Client's
benefit only. The warranty will apply only if no modification,
alteration or addition has been made to the Client Software or
XCare.net Software by persons other than XCare.net or XCare.net's
authorized representative.
3. OWNERSHIP AND LICENSE RIGHTS
3.1. Property Rights and Ownership. The Client Web Site(s) and all other
results and proceeds of XCare.net's services hereunder, shall
consist of, and shall operate in conjunction with, multiple elements
of intellectual property, including without limitation the XCare.net
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. 4
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Intellectual Property Elements Ownership/Rights
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Client Content, including all Client Content that Client has sole ownership.
is modified by XCare.net ("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 XCare.net 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.
Client Software Client has sole
ownership. Subject to exclusion
specified in Section 1.5
Server usage report data/statistics generated by Client has sole
ownership of data/statistics, and
the XCare.net Software in form and substance as XCare.net has a
license pursuant to Section 3.3
set forth in the applicable Schedule or as below.
mutually agreed by the parties.
Commercially available third-party software which Third-parties have
ownership, and Client shall be
is incorporated into the XCare.net Software. informed of all
third-party software that Client
may need to license
at Client's own expense.
XCare.net Software provided and/or developed by or XCare.net has sole
ownership of such XCare.net
for XCare.net in connection with this Agreement Software. Client
shall be granted a license to use
for Client. the XCare.net
Software as set forth in Section 3.2.
XCare.net supplied material developed generally to XCare.net has sole
ownership of such developed
support XCare.net products and/or service material. Client
shall be granted a license to use
offerings (e.g. httpd configuration). the XCare.net
Software as set forth in Section 3.2 below.
3.2. License to Client. XCare.net grants Client a non-exclusive,
non-transferable license to use the XCare.net Software on one or
more computers in code version only to operate and display the
Client Web Site in order for end users to access the Client Web
Site. If the XCare.net Software is not developed for use on a Client
Web Site, then the foregoing license shall constitute a
nonexclusive, non-transferable license to use the XCare.net Software
on one or more computers in object code version only for Client's
internal business needs. 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 XCare.net
Software without the prior written consent of XCare.net; provided,
however that Client may copy the XCare.net Software only as needed
for reasonable ordinary backup or disaster recovery
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procedures. All registered users shall be granted permission to
access the software from as many locations as are necessary.
Client is granted rights to modifications and updates to the
XCare.net internal software product updates as they apply
specifically to the application created for Client. This excludes
enhancements to products that do not directly correlate to the
application created for Client. New products created after the
delivery of the Client application are also excluded. Adaptations to
the XCare.net product(s) so that they are customized for Client
shall incur additional costs.
3.3. License to XCare.net. Client grants XCare.net a non-exclusive
license (i) to use, copy, and modify the Content in connection with
XCare.net's performance of the Development Services, and (ii) to
use, copy, modify, distribute and display server usage data and
statistics generated by the XCare.net 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 XCare.net. Without limiting the foregoing, Client
may not reverse engineer, reverse assemble, decompile or otherwise
attempt to derive the source code from the XCare.net Software.
3.6. Proprietary Notices. All copies of the XCare.net Software and other
XCare.net supplied materials used by Client shall contain copyright
and other proprietary notices in the same manner in which XCare.net
incorporates such notices in the XCare.net Software or in any other
manner requested by XCare.net. Client agrees not to remove, obscure
or obliterate any copyright notice, trademark or other proprietary
rights notices placed by XCare.net on or in the XCare.net Software.
3.7. Support of the Client and XCare.net Software. Should XCare.net, or
an organization acquiring, merging with, or succeeding XCare.net in
any way, decide to cease supporting the Client software or XCare.net
software, then client will have a twelve (12) month option to either
(i) request the source code for the software out of escrow (see
Attachment 5 Escrow Agreement) so Client can arrange for the support
of the software on their own or (ii) replace the software with a
similar or like application from XCare.net or the successor
organization at no additional license fee (a reasonable
implementation fee can be charged). 4. PAYMENT
4.1. Development Services. In consideration for the performance of the
Development Services, Client shall pay to XCare.net the rates as set
forth in Attachment 2 Schedule of Work and Fees. In the event that
XCare.net renders services at Client's location, Client shall pay
the reasonable travel, living and related expenses for XCare.net
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 with a
budget not to be exceeded, all work will be billed at XCare.net's
standard hourly rates, which may be revised from time to time by
XCare.net, 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 6
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those included in the budget XCare.net will notify Client, and the
budget will be revised with additional agreed upon hours billed at
XCare.net's standard hourly rates. All time and materials billings
will be made biweekly.
4.2. Maintenance Services. Maintenance services will be provided
according to Attachment 3 Maintenance Services.
4.3. Hosting, Services. If the parties have entered into a XCare.net
Hosting Services Agreement, Client shall pay XCare.net the amounts
set forth in said Hosting Services Agreement. Attachment 7 Hosting 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 XCare.net's income shall be the sole
responsibility of XCare.net.
4.5. Payments. All payments made pursuant to this Agreement shall be made
in U.S. Dollars are due thirty (30) calendar 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, XCare.net war-rants only to Client that the XCare.net
Software and Client Software furnished hereunder when properly
installed, properly used and unmodified by Client, will
substantially conform to the functional specifications set forth in
Attachment 5 List of Acceptance Criteria. XCare.net's warranty shall
extend for a period of one hundred five (105) calendar days from
the date that the final deliverables specified in each Schedule are
accepted by the Client ("Warranty Period"). XCare.net's sole
responsibility under this Section 5.1 shall be to take reasonable
precautions and will apply testing procedures to assure that the
Vendor Systems (EMR and other) and the Developed Systems (XCare.net)
are free from material reproducible programming errors and defects
in workmanship and materials, and that the Developed Systems will
conform in all material respect to the specifications therefore. If
material reproducible programming errors are discovered in the
Developed Systems, XCare.net shall promptly remedy them at no
additional expense to Customer. XCare.net will obtain a
substantially similar warranty from the Vendor Systems and if
material reproducible programming errors are discovered in the
Vendor Systems, XCare.net and System vendor will promptly remedy
them at no additional expense to Customer. All warranty claims not
made in writing or not received by XCare.net within the Warranty
Period shall be deemed waived. XCare.net'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. XCARE.NET DOES NOT WARRANT THAT THE USE OF THE CLIENT SOFTWARE AND
THE XCARE.NET SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT
THE SPECIFICATIONS WILL MEET ANY OF CLIENT'S REQUIREMENTS OTHER THAN
THE EXPRESS WRITTEN REQUIREMENTS SET FORTH IN ATTACHMENT 5 - LIST OF
ACCEPTANCE CRITERIA. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE,
XCARE.NET DOES NOT MAKE ANY WARRANTY AS TO THE XCARE.NET SOFTWARE OR
THE SERVICES PROVIDED HEREUNDER 7
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OR THE RESULTS TO BE OBTAINED FROM USE OF THE XCARE.NET SOFTWARE.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE XCARE.NET
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. XCare.net.
6.1.1. Indemnification. XCare.net, at its own cost and expense,
shall defend Client and its officers and directors, against a
claim that the XCare.net Software or Client 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 XCare.net promptly in writing of the claim; (ii)
XCare.net has the sole control of the defense and all related
settlement negotiations; and (iii) Client provides XCare.net
with all reasonably necessary assistance, information, and
authority to perform the foregoing at XCare.net's expense.
6.1.2. XCare.net shall have no liability for any claim of
infringement based on (i) use by Client of other than the
current update of the XCare.net Software or Client Software
if the infringement would have been avoided by uses of the
current update; (ii) modifications, adaptations or changes to
the XCare.net Software or Client Software not made by
XCare.net; (iii) the combination or use of the materials
furnished hereunder with materials not furnished by XCare.net
if such infringement would have been avoided by use of the
XCare.net materials alone; or (iv) use or incorporation of
Content or Modified Content. In the event the XCare.net
Software is held to, or XCare.net believes is likely to be
held to, infringe the intellectual property rights of a third
party, XCare.net shall have the right at its sole option and
expense to (i) substitute or modify the XCare.net Software or
Client Software so that it is noninfringing and qualitatively
and functionally equivalent to the XCare.net Software or
Client Software; (ii) obtain for Client a license to continue
using the XCare.net Software or Client Software; or if
neither (i) nor (ii) is commercially reasonable, XCare.net
shall have the fight to terminate this Agreement immediately
upon written notice to Client, and XCare.net shall make
payment to Client of an amount equal to the fees paid for the
XCare.net Software or Client 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
XCare.net's sole liability for intellectual property
infringement by XCare.net.
6.2. Client.
6.2.1. Client hereby represents and warrants to XCare.net 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 8
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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 XCare.net, 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 XCare.net, or any of its directors,
officers, parent company, and affiliates, relating to Content
or Modified Content, provided (i) XCare.net notifies Client
promptly in writing of such claim, (ii) Client has the sole
control of the defense and all related settlement
negotiations, and (iii) XCare.net 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 XCARE.NET OR CLIENT, ITS DIRECTORS, OFFICERS,
PARENT COMPANY, AND, AFFILIATES, TO CLIENT FOR DAMAGES RELATING TO
XCARE.NET'S FAILURE TO PERFORM SERVICES HEREUNDER SHALL BE LIMITED TO AN
AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT TO XCARE.NET WITH RESPECT TO
SUCH SERVICES, EXCEPT THAT NO SUCH LIMITATION SHALL APPLY TO SECTION
6.1.1, SECTION 9 OR SECTION 3.1. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, IN NO EVENT SHALL XCARE.NET, 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 XCARE.NET 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 been provided with written notice of default and thirty
(30) calendar 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. 9
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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 XCare.net
under Section 8.2, while XCare.net is performing any Development
Services for Client hereunder, Client shall immediately pay
XCare.net the total fees associated with such incomplete project, as
well as all amounts due and owing for any projects already completed
by XCare.net hereunder or for any third-party products or services
purchased by XCare.net in Client's behalf. If the Agreement is
terminated under Section 8.3 while XCare.net is performing any
Development Services or other services for Client hereunder, Client
shall pay XCare.net all fees due and owing up to the effective date
of such termination. The foregoing shall be without limitation to
XCare.net'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 either party pursuant to Section
8.2 above, then Section 3.2 and 3.3 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").
XCare.net agrees to obtain prior written consent from Asthma
Management before releasing any client-specific data/statistics,
including but not limited to the server usage reports. Asthma
Management owns all of the data that flows through the XCare.net
applications and servers.
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.
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
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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) calendar 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 New York 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 the other
party's name, domain name, logo, trademark or service mark in
advertising or publicity without obtaining the other party's prior
written consent; provided, however, that XCare.net 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 XCare.net's client portfolio.
XCare.net shall also have the right to display its name and logo, as
well as a link to the XCare.net 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 XCare.net 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 11
12
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. Mediation. Any Dispute that the Parties are unable to resolve through
informal discussions or negotiations will be submitted to non-binding
mediation, which will be held in New York, New York. The Parties will
mutually determine who the mediator will be from a list of mediators
obtained from the AAA office located in New York, New York. If the
Parties are unable to agree on the mediator, the mediator will be
selected by the AAA.
10.13. Arbitration. Any Dispute that the Parties are unable to resolve
through mediation pursuant to Section 10.12 will be submitted to
arbitration in accordance with the following procedures:
10.13.1. Demand for Arbitration; Location. Either Party may demand
arbitration by giving the other Party written notice to such
effect which notice will describe, in reasonable detail, the
facts and legal grounds forming the basis for the filing
Party's request for relief and will include a statement of the
total amount of damages claimed, if any, and any other remedy
sought by that Party. The arbitration will be held before one
neutral arbitrator in New York, New York.
10.13.2. Identification of Arbitrator. Within thirty (30) calendar days
after the other Party's receipt of such demand, the Parties
will mutually agree upon an arbitrator. If the parties are
unable to agree on the arbitrator within that time period, the
arbitrator will be selected by the AAA. The arbitrator
will have a background in, and knowledge of, the information
technology services. If a person with such industry experience
is not available, the arbitrator will be chosen from the large
and complex case panel or, if an appropriate person is not
available from such panel, the retired federal judges pool. 12
13
10.13.3. Conduct of Arbitration. The arbitration will be governed by the
Commercial Arbitration Rules of the AAA, except as expressly
provided in this Section 10.13. However, the arbitration will
be administered by an organization mutually agreed to in
writing by the Parties. If the Parties are unable to agree upon
the organization to administer the arbitration, it will be
administered by the AAA under its procedures for large and
complex cases. Pending the arbitrator's determination of the
merits of the Dispute, either Party may apply to any court of
competent jurisdiction to seek injunctive or other
extraordinary relief.
10.13.4. Scope of Discovery. Discovery will be limited to the request
for and production of documents, depositions and
interrogatories. Interrogatories will be allowed only as
follows: a Party may request the other Party to identify by
name, last known address and telephone number (i) all persons
having knowledge of facts relevant to the Dispute and a brief
description of that person's knowledge, (ii) any experts who
may be called as an expert witness, the subject matter about
which the expert is expected to testify, the mental impressions
and opinions held by the expert and the facts known by the
expert (regardless of when the factual information was
acquired) which relate to or form the basis for the mental
impressions and opinions held by the expert and (iii) any
experts who have been used for consultation, but who are not
expected to be called as an expert witness, if such consulting
expert's opinions or impressions have been reviewed by an
expert witness. All discovery will be guided by the Federal
Rules of Civil Procedure. All issues concerning discovery upon
which the Parties cannot agree will be submitted to the
arbitrator for determination.
10.13.5. Authority of Arbitrator. In rendering an award, the arbitrator
will determine the rights and obligations of the Parties
according to the substantive and procedural laws of the State
of New York. The arbitrator will not have authority to award
damages in excess of the amount or other than the types allowed
by Section 5.2, except in the case of gross negligence or
willful misconduct, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and
conditions of this Agreement, except in the case of gross
negligence or willful misconduct.
10.13.6. Joinder of Parties. Each of Vendor and Customer agree that it
will use commercially reasonable efforts to join (and will
allow the other Party to join) any Third Party that the Parties
have agreed is indispensable to the arbitration. If any such
Third Party does not agree to be joined, the arbitration will
proceed nonetheless.
10.13.7. Award. The decision of, and award rendered by, the arbitrator
will be final and binding on the Parties. Upon the request of a
Party, the arbitrator's award will include written finding of
fact and conclusions of law. Judgement on the award may
be entered in and enforced by any court of competent
jurisdiction. Each Party will bear its own costs and expenses
(including filing fees) with respect to the arbitration,
including one-half of the fees and expenses of the arbitrator. 13
14
10.14. Exclusive Remedy. Other than those matters involving injunctive or other
extraordinary relief or any action necessary to enforce the award of the
arbitrator, the Parties agree that the provisions of this Article 10 are
a complete defense to any suit, action or other proceeding instituted in
any court or before any administrative tribunal with respect to any
Dispute or the provision of the Services by Vendor. Nothing in this
Article 10 prevents the Parties from exercising their rights to
terminate this Agreement in accordance with Article 8.
10.15. 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 New York, New York, and each party
irrevocably consents to such personal jurisdiction and waives all
objections thereto. 14
15
ATTACHMENT 2
SCHEDULE OF WORK AND FEES
This Schedule describes Services to be provided by XCare.net to Client under
this Professional Services Agreement dated September 9, 1999.
1. DESCRIPTION OF WORK
1.1. Phase I - Development of Beta Website Version 1.0
In order to enable Client to test the content of the Standard of
Care document, XCare is developing a Beta website. In
conjunction with this deliverable, XCare with Client is
analyzing the functional requirements laid out in the Standard
of Care document. The project team will evaluate the feasibility
of either selecting/licensing/customizing a web-based EMR
package that meets Client's functional requirements or custom
building an application that technologically enables the
remaining functionality within the Standard of Care document.
The major activities to complete these tasks are as follows (see
attached project plan for more detail):
A. Analyze Functional Requirements
B. Database Design
C. Define the network architecture for Client and the
physician offices
D. Define hardware architecture for Client and the
physician offices
E. Questionnaire Content Development - the functionality in
release 1.0 of the Beta site includes the following
cross references from the List of Acceptance Criteria:
o Criteria Numbers: 2, 22, 32, 33, 34, 35, 36, 37, 39,
40, 44, 45, 46, 48, 49, 50, 63, 67
F. Selection of Bulletin Board (threaded discussion) Software
G. Hosting of Interim Marketing Website
H. Implementation Plan for version 2.0 Beta Site
TOTAL ESTIMATED HOURS = [*] HOURS
TOTAL ESTIMATED COST = $[*]K - $[*]K
PAYMENT SCHEDULE
The contract is based on a not to exceed time and materials
budget based on the functionality specified above. The payment
schedule will be based on the following timeline for Phase I:
o 20% upon signing the contract
o 40% Dec. 31, 1999
o 30% Jan. 31, 2000
o 10% Feb. 15, 2000
* Confidential treatment requested 1
16
1.2. Phase Ia - Development of Beta Website Version 2.0
In order to enable Client to test the content of the Standard of
Care document, XCare is developing a beta website. In
conjunction with this deliverable, XCare is also selecting a
web-based EMR package that meets Client's functional
requirements. The major activities to complete these tasks will
be further defined and outlined in an addendum to this document.
1.3. Phase II - Final Site Integration/Implementation
Applications/partnerships that have not been defined
specifically will be incorporated into the architecture based on
the type of service. Mutually agreed upon requirements for these
applications will be developed and implemented by March 31,
2000. The major activities to complete these tasks will be
further defined and outlined in an addendum to this document.
2. FEE SCHEDULE:
Our approach is highly structured which provides our clients with
detailed costing estimates throughout the project. For time and
materials projects, XCare.net billing rates are $150/hr and payable upon
completion of the agreed upon milestone activities. Travel expenses
associated with the project will be billed separately.
There will be no hosting charges made for XCare.net to host the interim
marketing site, the branded interim marketing site, and the beta web
site through Dec. 31, 1999.
3. XCARE.NET AND CLIENT CONTACTS ASTHMA MANAGEMENT CORPORATION
Bob Smoler CEO 203/341-0798
Anna Wong Chief Operating Officer 718/229-0821 XCARE.NET
Jon Wisda V.P. Product Development 303/488-2019 x238
Debbie Daufeldt Director, Solution Architecture 303/488-2019 x259 XCARE.NET "CLIENT" By: By:
---------------------------------- ----------------------------------
- ------------------------------------- -------------------------------------
Printed Name Printed Name
- ------------------------------------- ------------------------------------- Title Title
- ------------------------------------- ------------------------------------- Date Date
2
17
ATTACHMENT 3
MAINTENANCE SERVICES
In consideration of payment of the annual Maintenance Fee(s) set forth in this
Attachment, Customer agrees to purchase, and XCare.net agrees to provide
Customer on an annually renewable basis with software maintenance services for
XCare.net and Client software as follows:
A. Any and all content updates to the Client website;
B. Any and all updates to the Documentation issued by XCare.net; and
C. Remote diagnostic support (including dial-up capabilities) regarding
XCare.net and Client software to include error analysis and, where
possible, correction services, twenty-four (24) hours per day, seven (7)
days per week. Any on-site assistance which Customer may request and which
is provided by XCare.net, which, in XCare.net's reasonable opinion, is not
necessary to determine the nature and resolution of any problems Customer
may have with XCare.net shall be provided by XCare.net at its then-current
rates. If Customer notifies XCare.net that it suspects a material error in
the program logic of XCare.net or in the Documentation, XCare.net shall
make all reasonable efforts to confirm the existence of the error and
correct it. If the parties mutually determine that no such error exists,
Customer agrees to pay XCare.net for its services at XCare.net's hourly
rates then in effect and to reimburse XCare.net for any and all reasonable
travel and living expenses incurred by XCare.net in rendering such
services. XCare.net will use its Severity Designations in effect from time
to time to provide remote diagnostic support. A current copy of Severity
Designations are attached.
D. XCare.net's providing Customer with maintenance services as described in
this Attachment shall automatically continue, on an annual basis, unless
either party shall give written notice to the other that it desires not to
renew such maintenance services. The parties agree that such written notice
shall be remitted for receipt by the other no less than ninety (90) days
prior to the end of the then-current annual maintenance period. PAYMENT ESTIMATED ESTIMATED
TRIGGERING EVENT TIME FRAME PERCENTAGE DUE
AMOUNT DUE
- ---------------- ---------- -------------- ----------
Final Acceptance or February, 2000 1/12 of total payment to be made
25% of final
commencement of on a monthly basis during the application
Live Production Year of maintenance services.
development fee.Environment("Acceptance")
First and Subsequent Annually 1/12 of Annual Maintenance
25% of Total
Anniversaries of Thereafter Fee applicationAcceptance
development fee
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ATTACHMENT 4 ARCHITECTURAL PLATFORM
XCARE.NET OUTSOURCING SERVICES
XCare.net relies on a redundant frame network to support Extranet capabilities
with its customers. XCare.net's systems architecture is built on a multitiered
fully redundant architecture using UNIX as the base operating
XCare.net Frame Network
Asthma Management Co.
[FLOW CHART]
system. Xcare.net will commence full web outsourcing operation operations in
1999 from its main hosting facility located in Albuquerque, New Mexico. Plans to
co-locate the web services to another area in 2000 are currently underway.
Xcare.net uses virtual servers to present a single address for a group of real
servers and load-balance service requests between real servers in a site. Real
servers are actual host machines with unique IP addresses that provide TCP/IP
and WWW services to the network. This physical network design facilitates the
expansion of the network for future growth. Systems may be added to help manage
resources where required.
XCARE.NET NETWORK ARCHITECTURE DESIGN [DIAGRAM]
19
Attachment 5 -- List of Acceptance Criteria Original
Standard of
In Beta IT
Care (versions 1
System (release
AMC Desired IT Functions and 2), page #
1.0, 12/9/99) Beta release 2.0
- ------------------------ -------------- ------------- ----------------
2. Search the IT system for possible patient records 6 X
4. Enter "mini-registration" data (pt. registration
via website -- need security functions) 6
5. Lookup insurance information 7
6. Input the appointment into the scheduling system 7
7. Determine Encounter Package Code 8 X
9. Patients "pre-register" via the Internet 8
11. Assign temporary medical record number or password
or other alternative allowing patient to enter
pre-registration, intake and survey data via the internet 8
12. Pre-populate "introductory" letters 8 X
14. Create and print the "Scheduling Pull List Report" 8
15. Search for the "mini-registration" from last name
and first name 10
17. Encounter screen (need to spec) 10 X
18. Use scanning to store images 11
20. Assign tickler flag in the IT system to track
missing referrals 11
21. Trigger a notification to the patient if a valid
referral is not received within five business days 11
22. Intake screens:
22a. Demographics 13 X
22b. Communication 13 X
22c. Parental Consent 14 X
22d. Emergency Contact 14 X
22e. Appointment Preference 14
22f. Insurance Coverage 15 X
22g. Coordination of Benefit 16 X
22h. PCP 16 X
22i. Referring Physician 17 X
22j. Consult Letter 17 X
22k. Pharmacy 18 X
22l. Outreach 18 X
25. Research flag screen 20 X
26. Check the patient's record to see if flagged for
a research study or clinical trial 20 X
27.1. Research screen 20
