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CONSULTING AGREEMENT
EXHIBIT 10.28
This Agreement is entered into as of this 16th day of September, 1998, between
ADIS International Ltd ("ADIS"), a New Zealand corporation, with offices located
at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ and MPOWER Solutions
Incorporated, Suite 540, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇.
("Consultant").
1. Independent Consultant. Subject to the terms and conditions of this
Agreement ADIS hereby engages Consultant as an independent consultant to
perform the services set forth herein, and Consultant hereby accepts such
engagement.
2. Duties, Term, and Compensation. The duties, term of engagement, and
compensation of Consultant are described in Exhibit A hereof, which may be
amended in writing from time to time, and which is hereby incorporated by
reference.
3. Written Reports. The full results of Consultant's services shall be
submitted to ADIS in a confidential written report at such time and in such
form, setting forth such information and data as is reasonably requested by
ADIS.
4. Inventions. Any and all inventions, discoveries, development improvements,
and innovations including the programming code conceived by Consultant during
this engagement relative to the duties under this Agreement shall be the
exclusive property of ADIS; and Consultant hereby assigns all right, title, and
interest in the same to ADIS. Any and all inventions, discoveries,
developments, and innovations conceived by the Consultant prior to the term of
this Agreement and utilized by the Consultant in rendering Consultant's duties
to ADIS are hereby licensed to ADIS for use in its operations and for a
perpetual duration. This license is nonexclusive, and may be assigned by ADIS
only to a wholly-owned subsidiary of ADIS.
5. Confidentiality. Consultant acknowledges that during Consultant's
engagement Consultant shall have access to and become acquainted with various
trade secrets, inventions, innovations, processes, compilations of information,
records, and specifications owned or licensed by ADIS and/or used by ADIS in
connection with the operation of its business including, without limitation,
ADIS's business and product processes, methods, customer lists, accounts,
procedures, and source material. Consultant agrees not to disclose any of the
aforesaid, directly or indirectly, or use any of them in any manner, either
during the term of this Agreement or at any time thereafter, except as required
in the course of his/her engagement with ADIS. All files, records, documents,
specifications, information, letters, notes, notebooks, and similar items
relating to the business of ADIS whether prepared by Consultant or otherwise
coming into Consultant's possession shall remain the exclusive property of ADIS.
Consultant shall not make or retain any copies of the foregoing. Upon the
expiration or earlier termination of this Agreement, or whenever requested by
ADIS, Consultant shall immediately deliver to ADIS all such files, records,
documents, specifications, information, and other items in Consultant's
possession or under Consultant's control. Consultant further agrees not to
disclose Consultant's retention as an independent consultant or the terms of
this Agreement to any person without the prior written consent of ADIS and shall
at all times preserve the confidential nature of Consultant's relationship to
ADIS and of Consultant's service hereunder.
ADIS acknowledges that during Consultant's engagement ADIS may have access
to and become acquainted with various trade secrets, inventions, processes, and
innovations owned or licensed by Consultant. Subject to the following conditions
having been met, ADIS agrees not to disclose any of the aforesaid, directly or
indirectly, or use them in any manner, either during the term of this Agreement
or at any time thereafter, except for purposes of carrying out the provisions of
this Agreement:
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1. Consultant shall identify in a reasonably detailed writing the nature
of the confidential information proposed to be disclosed to ADIS; and
2. ADIS shall also mutually agree in writing that any proposed
confidential information shall be treated as confidential, which agreement
shall not be unreasonably denied; and
3. Any disclosure of Consultant's confidential information shall not be
construed as to place any restriction or limitation whatsoever on ADIS's
use of the deliverables as are specified within Exhibit A, attached hereto.
Neither party shall have any obligation with respect to any item of
confidential information: (1) known prior to the receipt from the disclosing
party as evidenced by written records; (2) which is or becomes known publicly
through no fault of the receiving party and without breach of this agreement;
(3) which is independently developed by either party; or (4) which otherwise
becomes available to the receiving party through legal sources. The receiving
party may produce or disclose the disclosing party's confidential information
pursuant to, and to the extent required by applicable law, regulation or court
order, provided that the receiving party has notified the disclosing party
prior to such required disclosure and has given the disclosing party an
opportunity to contest such required disclosure and to obtain a protective
order.
6. Conflict of Interest. Consultant represents that Consultant is free to
enter into this Agreement, and that this engagement does not violate the terms
of any agreement between Consultant and any third party. Further, Consultant,
in rendering duties, shall not utilize any invention, discovery, development,
improvement, innovation, or trade secret in which Consultant does not have a
proprietary interest.
During the term of this Agreement, Consultant shall devote as much time,
energy and abilities to the performance of the duties hereunder as is necessary
to perform such duties in a timely and productive manner.
For a period of eighteen months following any termination, Consultant
shall not, directly or indirectly, hire, solicit, or encourage to leave the
employment of ADIS, any employee or consultant of ADIS or hire any such
employee or consultant who has left ADIS's employment or consultation within
six months of such employment or consultation.
7. Right to Injunction. The parties hereto acknowledge that the services to
be rendered by Consultant under this Agreement and the rights and privileges
granted to ADIS under this Agreement are of a special, unique, unusual,
extraordinary, and intellectual character which gives them a peculiar value,
the loss of which cannot be reasonably or adequately compensated by damages in
any action at law, and the breach by Consultant of any of the provisions of
this Agreement will cause ADIS irreparable injury and damage. Consultant
expressly agrees that ADIS shall be entitled to injunctive and other equitable
relief in the event of, or to prevent, a breach of any provision of this
Agreement by Consultant. Resort to such equitable relief, however, shall not be
construed to be a waiver of any other rights or remedies which ADIS may have
for damages or otherwise. The various rights and remedies of ADIS under this
Agreement or otherwise shall be construed to be cumulative, and no one of them
shall be exclusive of any other or of any right or remedy allowed by law.
8. Merger. This Agreement shall not be terminated by the merger or
consolidation of ADIS into or with any other entity.
9. Termination. ADIS may terminate this Agreement at anytime by 30 days
written notice to Consultant. In addition, if Consultant is convicted of any
crime or offense, fails or refuses to comply with the written policies or
reasonable directive of ADIS, is guilty of serious misconduct in
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connection with performance hereunder, or materially breaches provisions of the
Agreement, ADIS at any time may terminate this Agreement upon prior written
notice to Consultant.
10. Independent Contractor. This Agreement shall not constitute Consultant
as employee, partner, agent of, or joint venturer with ADIS for any purpose.
Consultant is and will remain, as far as the relationship with ADIS is
concerned, an independent contractor. ADIS shall not be responsible for
withholding taxes with respect to Consultant's compensation hereunder.
Consultant shall have no claim against ADIS hereunder or otherwise for vacation
pay, sick leave, retirement, benefits, social security, workmen's compensation,
disability, or unemployment insurance benefits or employee benefits of any kind.
11. Successors and Assigns. All of the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, if any, successors, and assigns.
12. Choice of Law. The laws of the State of Colorado shall govern the
validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties hereto.
13. Arbitration. Any controversies arising out of the terms of this
Agreement or its interpretation shall be settled by arbitration in Chicago in
accordance with the rules of the American Arbitration Association, and the
judgment upon award may be entered in any court having jurisdiction thereof.
14. Headings. Section headings are not to be considered a part of this
Agreement and are not intended to be a full and accurate description of the
contents hereof.
15. Waiver. Waiver by one party hereto of breach of any provision of this
Agreement by the other shall not operate or be construed as a continuing waiver.
16. Assignment. Consultant shall not assign any of the rights under this
Agreement, or delegate the performance of any of the duties hereunder, without
the prior written consent of ADIS.
17. Notices. Any and all notices, demands, or other communications required
or desired to be given hereunder by any party shall be in writing and shall be
validly given or made to another party if personally served, or if deposited in
the United States mail, certified or registered, postage prepaid, return
receipt requested. If such notice or demand is served personally, notice shall
be deemed constructively made at the time of such personal service. If such
notice, demand or other communication is given by mail, such notice shall be
conclusively deemed given five days after deposit thereof in the United States
mail addressed to the party to whom such notice, demand or other communication
is to be given as follows:
If to Consultant: MPOWER Solutions Inc.
Suite 540
6400 South Fiddlers Green
Englewood
CO. 80111
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to ADIS: ADIS Incorporated
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Director Healthcare Information Systems
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Any party hereto may change its address for purposes of this paragraph by
written notice given in the manner provided above.
18. Modification or Amendment. No amendment, change, or modification of this
Agreement shall be valid unless in writing signed by the parties hereto.
19. Entire Understanding. This document and the Exhibit attached constitute
the entire understanding and agreement of the parties, and any and all prior
agreements, understandings and representations are hereby terminated and
canceled in their entirety and are of no further force and effect.
20. Unenforceability of Provisions. If any provision of this Agreement, or any
portion thereof, is held to be invalid and unenforceable, then the remainder of
the Agreement shall nevertheless remain in full force and effect.
IN WITNESS WHEREOF the undersigned have executed this Agreement as of the day
and year first written above.
ADIS International Ltd. MPOWER Solutions Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director Healthcare Title: President
Information Systems
dated: 16th Sept. 1998 dated: 9/16/98
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EXHIBIT A
CLINASSIST MARKET RESEARCH AND MARKET DEVELOPMENT PROJECT
SCOPE: To identify and recruit appropriate healthcare professionals, develop
structured discussion plan and conduct and report on, 2 focus groups to
validate the content, delivery and commercial assumptions of the ClinASSIST
Project as described in the attached New Product Development Proposal.
ASSUMPTIONS:
TARGET HEALTHCARE PROFESSIONALS
The target healthcare professionals for this project are as follows:
Clinicians: Hospital ▇▇▇▇ based junior staff, Hospital based ▇▇▇▇ nursing
staff, ambulatory care physicians.
Commercial: Hospital administrators, COOs, CFOs, CIOs, GPOs and government
purchasers.
CLINASSIST CONTENT: It is assumed that a focus group of target clinicians
will be shown the demonstration versions of ClinASSIST and then lead
through a structured discussion to yield the following information:
- Appropriateness and value of the core knowledge concept of providing drug
and disease information which has been made specific to some
pre-identified patient characteristics.
- Appropriateness of the core assumption that this resource would provide
80% of the information which non-super-specialist practising clinicians
require.
- The appropriateness of the broad disease subject headings i.e. does the
product provide the right type of information on diseases?
- The appropriateness of the broad drug subject headings i.e. does the
product provide the right type of information on drugs?
- The appropriateness and value of the pre-defined patient characteristics
for both diseases and drugs.
- Within each demonstrated disease or drug topic area the following:
- The relevance of the data to non-super specialist practising
clinicians.
- The style of presentation i.e. is it succinct enough?, does it
convey the information quickly enough?
- The extent of the data, is it too short, too long?
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o Agreement with the actual data? Does it appear valid, are there
disagreements with the data.
o The amount of 'drill-down' data provided. Is it enough should
there be more and if so what and how much.
CLINASSIST DELIVERY AND FORMAT CONCEPT: It is assumed that;
1. A focus group of target clinicians will be shown the demonstration
versions of ClinASSIST and then lead through a structured discussion to
yield the following information;
o The overall reaction to the product in terms of physical presentation
such as layout, type sizes, colours,
o The appropriateness of the navigation design from the initial screen
offering disease or drug information, the understanding of where
within the product the users is, clarity of understanding the context
of the data provided, i.e. patient characteristics that are applying.
o Speed and ease of use
2. A focus group of target hospital administrators/IS or IT personnel will
be shown the demonstration versions of ClinASSIST and then lead through a
structured discussion to yield the following information;
o The appropriateness of the overall Intranet concept, the use of IE 4
or Netscape 4 as browser
o The practicality of delivery to all workstations within an institution
ClinASSIST COMMERCIAL CONCEPT: It is assumed that a group of hospital
administrators/CFO/COOs, government purchasers would be shown the product
demonstration and sales plan and through structured discussion yield the
following information;
o The overall perceived value to the institution of providing the
product to all clinicians within the institution
o Degree of identification with the problems of inappropriate drug
utilisation, drug missadventure, and quality (HEDIS) reminders/actions
o The perceived differences with existing drug and disease information
resources
o The existence or otherwise of budgets for resources targeted to
clinicians as opposed to pharmacy departments
o The positioning of the product as a $[*] per institution unlimited
user resource
* Confidential Treatment Requested
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MARKETING PLAN: It is assumed that the marketing plan development phase would
closely review the assumption in the attached New Product Development Proposal
and correct, adjust and supplement this document.
DELIVERABLES: The deliverables are in order;
o Recruitment plan and participant lists
o Structured discussion guide for each element
o Meeting planning and logistics
o Moderation of the discussion and recording
o Focus group report
o Marketing plan
Adis will review approve and provide comments on the deliverables
PEOPLE
MPower will provide Clinical and Marketing Specialists (▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Light and ▇▇▇▇ ▇▇▇▇▇▇) to develop and direct and manage the project plus
marketing and administration support from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇.
▇▇▇▇ will provide key editorial personnel to attend the focus groups as
observers and for discussion with the participants following the structured
discussion.
PROJECT COSTS, PAYMENT AND ACCOUNTING
The project has been scoped and costed on an hourly charge basis according to
the attached spread sheets.
Adis will pay in stage payments each of one third, at commencement of the
project, at the time of the focus meetings and on receipt of the report and
marketing plan.
Adis would provide payment in advance for the third party 'out of pocket'
expenses for the meetings, this payment to be accounted for by invoices.
OTHER ASSUMPTIONS
o Project completion is expected to be [*].
* Confidential Treatment Requested
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ClinAssist Market Research/Launch Plan
Budget Detail
Direct Research
Target Group
Size
------------
Functional/Clinical Validation Focus Group 1: Senior Clinical Decision Makers 5-7
Nursing Dept Heads, Case Mgmt Directors
Medical Directors (inpatient/ambulatory)
Focus Group 2: Functional Clinical Providers 5-7
Hospital ▇▇▇▇-based junior staff, nursing staff
Ambulatory care physicians
Cost/Benefit Validation Focus Group 3: Commercial 5
Hospital Administrators/CFOs/COOs, GPOs
Medical Group Mgrs, Govt Purchasers
$ Per $ Per
Attendee # Attendees Attendee
-------- ----------- --------
Group 1 Airfare $ [*]
Lodging (1 night) $ [*]
Transportation $ [*]
Dinner (night before) $ [*]
Breakfast $ [*]
Materials/Misc. $ [*]
Stipend $ [*]
------
Subtotal $ [*] 6 $ [*]
Group 2 - All locally based Airfare $ [*]
Lodging (1 night) $ [*]
Transportation $ [*]
Lunch $ [*]
Materials/Misc. $ [*]
Stipend $ [*]
------
Subtotal $ [*] 6 $ [*]
Group 3 Airfare $ [*]
Lodging (1 night) $ [*]
Transportation $ [*]
Dinner (night before) $ [*]
Breakfast $ [*]
Materials/Misc. $ [*]
Stipend $ [*]
------
Subtotal $ [*] 5 $ [*]
Total Group Related Expenses $ [*]
Other Expenses Conf Center Rental (2 days) $ [*] 2 $ [*]
Subtotal Direct Cost $ [*]
Management Fees* $ [*]
Subtotal Direct Research $ [*]
Marketing Plan Development
Management Fees* $ [*]
Subtotal Marketing Plan Dev. $ [*]
Total $ [*]
*See detail in following worksheet (Hours and Rates)
*Confidential Treatment Requested
9/22/98 Page 1
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CLINICAL
PROJECT KEY MILESTONES EST. START EST. HOURS EXEC MGMT(2) DIR(2) MKTG MGR ADMIN
------- -------------- ---------- ---------- ------------ -------- -------- -----
Direct Research
(Focus Groups)
Functional/Clinical
Validation Identity/Recruit Panel [*] [*] [*] [*] [*]
Develop Research Scope
Pre-test
Meeting/Logistics Planning
Conduct Session
Prepare/Deliver Recap Document
Subtotal
Cost/Benefit
Validation Identify/Recruit Panel
Develop Research Scope
Pre-test
Meeting/Logistics Planning
Conduct Session
Prepare/Deliver Recap Document
Subtotal
Marketing Plan
Development Market Analysis
Competitive Review
Pricing Plan
Product Development Timetable
Marketing/Sales/Distribution Plan
Budgets/Financials
Final Document Preparation
Subtotal
Total Hours
Avg Hourly Rates
Subtotal - Direct
Research
Subtotal - Marketing
Plan Dev.
Total
* Confidential Treatment Requested
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