EXHIBIT 10.3
IHS OF VIRGINIA, INC.
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DataQual+
Software Maintenance
Agreement
1. PROGRAM COVERED
The Program covered by this Agreement is the Program described in the License
Agreement. The expression "Program" also covers the New Releases (as defined
below) supplied to you under this Agreement.
2. MAINTENANCE SERVICES
2.1 IHS of ▇▇▇▇▇▇▇▇▇, Inc. ("IHS") will for the term of this Agreement:
i) provide you with any known problem solutions relating to the Program as
such solutions become known to IHS;
ii) make all reasonable efforts to supply corrections to problems reported
by you which IHS diagnoses as defects in a currently supported release
of the Program;
iii) provide you with New Releases which IHS elects to make available to its
customer base generally (a New Release is defined as modifications,
refinements and enhancements which IHS elects to incorporate into and
make part of the Program and does not separately price or market). The
basic hours for the provision of these services will be 8.00 am to 5.00
PM Eastern Standard Time, Monday to Friday inclusive, excluding public
holidays.
2.2 Maintenance services will be chargeable as specffied in Section 5 below.
It is understood however, that in respect of on-site support visits at any
time IHS will invoice you for economy class air travel, car hire and other
ground transportation expenses and reasonable living and accommodation
costs.
2.3 You understand and agree that all solutions, corrections and New Releases
supplied by IHS must be installed by you in accordance with IHS's
installation instructions. You recognize that your failure to install such
solutions, corrections and New Releases may render the Program unusable or
non-conforming with its associated documentation and you agree to assume
all risks arising therefrom and to release IHS from all liability in
respect thereof.
2.4 Any attempt by you to alter the Program on your own and without IHS's
written direction will be at your sole risk and expense and in no event
will IHS have any obligation to support or maintain any alteration which
is not distributed by IHS to its general customer base and made part of
IHS's standard Program.
2.5 You will reimburse IHS for time and expenses incurred by lST in connection
with support provided which is not necessitated by defects in the current
release of the Program or which are incurred in the provision of services
other than those described in Section 2.1 above. Such charges will be
invoiced to you at IHS's then current rates, together with economy class
air fare, car hire and other ground transportation expenses, and reasonable
living and accommodation costs.
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2.6 IHS's maintenance services do not include:
a) services which in IHS's opinion are required due to accident, neglect,
misuse, failure of electrical power, air conditioning or humidity
control, or failure of storage media not furnished by IHS;
b) services required due to attempts by other than IHS's personnel to
repair, maintain, modify or move the Program;
c) the provision of consumable operating supplies or accessories.
3. YOUR OBLIGATIONS
3.1 You must promptly report any identified problem or error to IHS by
telephone (with confirmation by telex or facsimile), documenting it in
sufficient detail for IHS to be able to recreate the problem or error, and
indicating the priority to be assigned to ft.
3.2 As IHS will support only the current release level of the Program and the
prior release level for ninety(90)days after introduction of a New Release,
you must install each New Release of the Program within such ninety
(90)-day period.
3.3 You agree to allow IHS reasonable accesses to the Premises and to the
Program and reasonable use of any equipment or media necessary for IHS to
perform its maintenance obligations hereunder.
4. TERM
Maintenance services will begin on the Commencement Date and will continue for
an initial term of twelve (12) months. They shall automatically continue
thereafter for further periods of twelve (1 2) months unless or until this
Agreement is terminated by you or IHS on not less than ninety (90) days' written
notice before the expiration of the initial term or any subsequent twelve
(12)-month period.
5. FEES, TAXES AND PAYMENT
5.1 Fees and Taxes
You shall pay to IHS the Annual Maintenance Fee for the services
specified in Section 2.1 hereof. You are solely responsible for payment
of any taxes (including sales or use taxes and intangible taxes) in
connection with the maintenance services provided to you. You agree to
hold IHS harmless from all claims and liability arising from your
failure to report or pay such taxes.
5.2 Increases
On January 1 of each year, the Annual Maintenance Fee may be adjusted
by IHS by an amount not to exceed ten per cent (10%) of the previous
years fee.
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5.3 Payment
Payment of the first Annual Maintenance Fee must be made within thirty
(30) days of delivery and installation of the Program. Subsequent
Annual Maintenance Fees are due and payable within thirty (30) days of
the Annual Renewal Date. Payment of all invoices hereunder must be made
by you to IHS within thirty (30) days of the date of the invoice.
Charges of one and one half percent (1.5%) per month or the highest
amount allowed by law, whichever is less, prorated on a daily basis
will be applied to late payments.
6. LIMITATION OF LIABILITY
IHS MAKES AND YOU RECEIVE NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY
EXCLUDED ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IHS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS
AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL IHS BE LIABLE
FOR DIRECT DAMAGES IN EXCESS OF AN AGGREGATE OF ALL SUMS PAID BY YOU TO IHS
UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS.
7. FORCE MAJEURE
Neither party shall be liable for any failure to perform or delay in the
performance of its obligations hereunder caused by circumstances beyond its
reasonable control including, but not limited to, acts of God, government
priorities, fires, strikes, floods, epidemics, riots, power shortages, delays in
transportation, inability to obtain necessary labor, materials, or components,
or any act, neglect or default of the other party.
8. TERMINATION
8.1 If either party petitions for relief under the Bankruptcy Code or if any
involuntary petition thereunder is filed against either party, and the
same be not dismissed within thirty (30) days, or K a receiver is
appointed for the business of either, or if either makes an assignment for
the benefit of creditors, the other may give written notice of its intent
to terminate. The party receiving the notice shall have thirty (30) days
from delivery of such notice in which to remedy the position, failing
which the other party shall have the immediate right to terminate this
Agreement.
8.2 If you default in payment of any sum due under this Agreement, IHS may
notify you in writing of the default. You will have thirty (30) days from
delivery of the written notice to remedy the default, failing which IHS
shall have the immediate right to terminate this Agreement.
8.3 If either party commits a material breach of its obligations under this
Agreement, other than default in payment, the other party may notify the
defaulting party in writing of the breach. The defaulting party shall have
sixty (60) days to remedy the breach, failing which the other party shall
have the immediate right to terminate this Agreement.
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8.4 If IHS terminates the License Agreement for your default, all maintenance
fees or charges payable for the remaining term of this Agreement shall
become due and payable and IHS's obligations under this Agreement shall
immediately end.
8.5 Termination of this Agreement shall be without prejudice to all accrued
rights and remedies and shall not affect the continuing rights and
obligations of the parties under this Agreement.
9. TITLE TO SOFTWARE AND CONFIDENTIALITY
9.1 Any solutions, corrections, New Releases or documentation ('The
Confidential Information") as may be provided under this Agreement shall
remain proprietary to IHS and/or its suppliers. The License Agreement shall
include the Confidential Information under its grant of license and
proprietary restrictions.
9.2 All applicable rights to patents, copyrights, trade marks, and trade
secrets in the Confidential Information and all improvements, modifications
and changes thereto are and shall remain in IHS and/or its suppliers. You
shall not sell, transfer, publish, disclose or otherwise make available the
Confidential Information to any third party. You agree to secure and
protect the Confidential Information and all copies thereof in a manner
consistent with the maintenance of IHS's or its suppliers' rights therein
and to take appropriate action by instruction or agreement with your
employees and others who are permitted access to the Confidential
Information to satisfy your obligations hereunder. Violation of any
provisions herein shall be the basis for immediate termination of this
Agreement.
10. OMNIBUS RECONCILIATION ACT COMPLIANCE
As applicable under the Omnibus Reconciliation ▇▇▇ ▇▇▇▇, until the expiration of
four (4) years after furnishing of services pursuant to this Agreement, IHS
shall, upon receipt of written request, and if still required to make such
information available under the then existing law, make available to the
Secretary of the Department of Health and Human Services, the Comptroller
General, or any of their duly authorized representatives, this Agreement, books,
documents and records of IHS that are necessary to certify the nature and extent
of such costs, and if IHS carries out any of the duties of this Agreement
through a subcontract with a value or cost of Ten Thousand Dollars ($ 10,000) or
more over a twelve (12)-month period, such subcontract shall contain a clause to
the effect that, until the expiration of four (4) years after the furnishing of
such services pursuant to such subcontract, the subcontractor shall, upon
receipt of written request and if still required to make such information
available under the then existing law, make available to the Secretary,
Comptroller General, or any of their duly authorized representatives, the
subcontract, books, documents and records of such organization that are
necessary to verify the nature and extent of such costs.
11. GENERAL PROVISIONS
11.1 You may not, without the prior written consent of IHS, assign your rights
or obligations under this Agreement to any person or entity, in whole or in
part.
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11.2 Any notices required or permitted under this Agreement shall be in writing
and delivered in person or sent by registered or certified mail, return
receipt requested.
11.3 This Agreement and performance hereunder shall be governed by and
construed in accordance with the laws of the State of Delaware. Any and
all proceedings relating to the subject matter hereof shall be maintained
in the courts of the State of Delaware, which courts shall have exclusive
jurisdiction for such purpose.
11.4 The failure of either party to enforce any rights granted hereunder or to
take action against the other party in the event of any breach hereunder
shall not be deemed a waiver by that party as to subsequent enforcement
of rights or subsequent actions in the event of future breaches.
11.5 This Agreement represents the entire agreement between you and IHS for
the provision of maintenance services in respect of the Program and it
supersedes any prior proposals, representations or understandings between
you and IHS. No modification of this Agreement shall be binding unless ft
is in writing and is signed by an authorized representative of both
parties. Should any term of this Agreement be declared void or
unenforceable by any court of competent jurisdiction, such declaration
shall have no effect on the remaining terms hereof.
By Your Signature Hereto You Acknowledge Having Read This Agreement and Agree to
Accept and to Abide by Its Terms and Conditions.
For: (Customer) Accepted and Approved by
IHS of ▇▇▇▇▇▇▇▇▇, Inc.
By:___________________________ By: ________________________________
Name Name
Printed:______________________ Printed:____________________________
Title:________________________ Title:______________________________
Date:_________________________ Date:_______________________________
Mailing Address: Mailing Address:
(Customer) IHS of Viriginia, Inc.
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Appendix A
Maintained Software Description
Maintained Software modules and features included in the DataQual+ software
maintenance fee are as follows:
DataQual+
Software Products
DataQual+ Base System Utilization Management Module
o Quality Assurance
o Ad Hoc Reporting Medical Records Module
o Graphics
Infection Control Module
Staff Credentialing Module
DRG Grouper/Maximizer Module
Risk Management Module
FastNote
Summary of Total Charges
Annual Software Maintenance/New Release Support
(15% of $xx,xxx) $x,xxx
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Total Annual Charges (Recurring) $x,xxx
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