EXHIBIT 10.12
SYSTEM AGREEMENT
THIS AGREEMENT is made as of the 27 day of January, 1999.
BETWEEN:
SYSTEMS XCELLENCE USA, INC.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(hereinafter referred to as "Supplier")
OF THE FIRST PART
and
PROVANTAGE, INC.
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(hereinafter referred to as "Customer")
OF THE SECOND PART
IN CONSIDERATION of the mutual covenants and promises hereinafter
contained, the parties hereto agree as follows:
PART I - DEFINITIONS
1. INTERPRETATION
1.1 In this Agreement the terms below are defined as follows:
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(a) "Agreement" means this Master Agreement, the Proposal from Supplier dated
November 20, 1998 (other than the provisions entitled "Staffing
Requirements", "Environment" and "Project Plan"), each Addendum that is
executed by authorized representatives of the Parties and attached hereto,
and all Schedules and other documents expressly incorporated by reference
in this Master Agreement or any such Addendum. "Agreement" also includes
any amendments to the foregoing documents agreed to in writing by
authorized representatives of the Parties.
(b) "Business Days" means days other than Saturday, Sunday or holidays at the
location in which the Supplier's principal office is located, as set forth
on the first page of this Agreement.
(c) "Deficiency" means any material non-conformity of the Programs to the
Software Specifications, but does not include any non-conformity caused by:
(i) any operator error or neglect, misuse or abuse of the System;
(ii) any deficiency of the Designated Machine or of any software or
equipment with which the Programs are used; or
(iii) the use of the programs on computer equipment other than the
Designated Machine.
"Deficiencies" refers to more than one (1) Deficiency.
(d) "Designated Machine" means the computer hardware and operating system
software on which the Programs may be used, as described by type and model
number set forth in any Software Addendum executed by the Parties
hereunder.
(e) "Documentation" means the Software Documentation.
(f) "Master Agreement" means the Articles of this document entitled "System
Agreement".
(9) "Operating Site" means the address at which the Programs are installed in
the Designated Machine for use by Customer, as set forth in the Software
Addendum.
(h) "Parties" means Supplier and Customer.
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(i) "Professional Services" means the various services to be provided by
Supplier to Customer, as set forth in any Professional Services Addendum
executed by the Parties from time to time, which shall be in the form
attached hereto as Addendum "B".
(j) "Programs" means the computer programs to be provided by Supplier to
Customer, as set forth in any Software Addendum executed by the Parties
from time to time, which shall be in the form attached hereto as Addendum
"A". "Programs" also means any new versions, releases, modifications or
enhancements to such computer programs.
(k) "Software Documentation" means the Software Specifications, and any user's
manual or other documentation delivered by Supplier to Customer with the
Programs pursuant to any Software Addendum, as deemed appropriate by
Supplier, together with all revisions, modifications or enhancements to
such documentation.
(l) "Software Materials" means the Programs and the Software Documentation,
collectively.
(m) "Software Support Services" means the services relating to the maintenance
and support of the Programs to be provided by Supplier to Customer, as set
forth in any Software Support Addendum executed by the Parties from time to
time, which shall be in the form attached hereto as Addendum "C".
(n) "Software Specifications" means any documentation describing the features
and functionality of the Programs provided by Supplier to Customer pursuant
to any Software Addendum, and all revisions, enhancements and modifications
to the same provided by Supplier to Customer from time to time.
(o) "Transaction" shall mean the acceptance by the applicable Programs of a
valid single NCPDP pharmacy transaction involving a pharmacy claim or
reversal. If the Programs are used for other purposes in the future, the
parties will agree in advance on the meaning of a "Transaction" with
respect to such other uses. A transaction that does not pass the
Transaction Conformance Check by the Program will not be considered as a
Transaction.
(p) "Transaction Conformance Check" means the check that is performed on the
data stream received at the communications port(s) before allowing entrance
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into the PBM complex for further processing. This check will reject
transactions that are incorrect in structure or length.
1.2 This Master Agreement sets out the general terms and conditions governing
the provision by Supplier to Customer of any items of Software,
Professional Services and Software Support Services. The specific items of
Software, Professional Services and Software Support Services to be
provided by Supplier to Customer, and any additional terms and conditions
governing the provision of such items, shall be as set forth in the
applicable Addendum which may be executed by the Parties from time to time.
Each Addendum, when executed by the Parties, shall form an integral part of
this Agreement and shall be binding on the Parties.
Addendum "A" - Software Addendum
Addendum "B" - Professional Services Addendum
Addendum "C" - Software Support Addendum
PART II - SOFTWARE LICENSE TERMS
2. LICENSE TERMS
2.1 Supplier hereby grants to Customer, and Customer accepts, a non-
transferable and non-exclusive perpetual license to use the Software
Materials in the United States of America in accordance with the terms of
this Agreement. Customer shall be entitled to use the Programs on a site
license basis only for production, development, testing and fail-over
purposes solely in connection with its internal business. Customer is
prohibited from distributing or transferring possession of the Software
Materials to any other person. Customer shall be entitled to use the
Software Documentation in support of its use of the Programs. Customer
acknowledges and Supplier warrants that, subject to its right to use the
Software Materials in accordance with the provisions of this Agreement,
Supplier or its third party suppliers own all title, copyright, trade-▇▇▇▇,
trade secret, patent, and other rights in the Software Materials.
2.2 Customer shall be entitled to make a single copy of the Programs solely for
purposes of off-site storage for backup purposes. Except for the foregoing,
Customer shall not copy, or permit any other person to copy, the Programs.
2.3 Except as expressly permitted by Supplier (which permission may be withheld
at Supplier's discretion), Customer shall not copy, nor permit any other
person to copy, the Software Documentation.
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2.4 Customer may only change the Operating Site with Supplier's prior written
consent, which consent shall not be unreasonably withheld.
2.5 Customer shall not alter or remove any trade-marks or any trade-▇▇▇▇,
copyright, or other notices from any portion of the Software Materials.
Customer shall include facsimiles of all such notices and trade-marks on
any copy of the Programs made by Customer as permitted under this
Agreement, and if Supplier consents to the copying of the Software
Documentation, on all copies of such Documentation.
2.6 Customer shall not, nor permit any other person to, modify, adapt,
disassemble, decompile, or reverse engineer the Programs, or modify or
adapt any of the Software Documentation. Customer shall be permitted to
copy reasonable extracts from the Software Documentation to be incorporated
in Customer's requirements, design and user manuals to be used solely for
Customer's internal purposes.
2.7 The license granted hereunder entitles Customer to use the Programs on a
site license basis for production, development, testing and fail-over
purposes on Designated Machines of the model and type described in the
Software Addendum, having the serial number therein set forth. Customer may
transfer the Programs to be used for production, development, testing and
fail-over purposes to another computer(s) of the same model and type as
that set forth in the Software Addendum, whereupon such other computer(s)
shall become the Designated Machine.
2.8 The warranties set forth in Article 9 apply only in respect of Customer's
use of the Programs on the original Designated Machine and Customer
acknowledges that Supplier makes no representation or warranty that the
Programs will be capable of being used on any computer other than the
original Designated Machine.
3. LICENSE FEES
3.1 Customer agrees to pay to Supplier the license fee specified in the
Software Addendum (the "License Fee") for the rights to use the Software
Materials granted under this Agreement. The License Fee shall be payable in
accordance with the payment schedule set forth in the Software Addendum
(the "Software Payment Schedules").
3.2 Supplier shall not be responsible to provide any services for the
implementation, installation, testing or support of the Programs, or
related in any other manner to the Software Materials, unless Supplier has
agreed to provide such services in accordance with the Professional
Services Addendum or the Software Support Addendum. With respect to any
such services, Customer shall pay Supplier the applicable fees set forth in
the Professional Services Addendum or the Software Support Addendum.
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4. DELIVERY AND INSTALLATION OF PROGRAMS
4.1 At its expense, Supplier shall deliver the Software Materials to the
Operating Site on or before the date scheduled for delivery, as set forth
in the Software Addendum.
4.2 As indicated in the Software Addendum, Supplier is responsible for
installation and all services relating thereto shall be provided pursuant
to the Professional Services Addendum. If Supplier provides Customer with
services for the installation of the Programs, the Installation Date shall
be the date on which Supplier notifies Customer in writing that the
Programs are operational on the Designated Machine.
4.3 Customer shall make the Operating Site and the Designated Machine available
to permit the delivery and installation of the Programs. Customer shall be
responsible for ensuring that the Operating Site and the Designated Machine
meet all requirements set forth in any applicable Documentation and in any
documentation provided by the supplier of the Designated Machine, as may be
required for the proper use and operation of the Programs on the Designated
Machine.
5. TESTING AND SUPPORT
5.1 For a period commencing on the Installation Date and continuing until the
earlier of:
(i) the expiry of three hundred sixty-five (365) days following the
Installation Date; or
(ii) the expiry of one hundred eighty (180) days following the processing
of the first Transaction upon commencement in production use of the
Programs,
Customer shall be entitled to use the Programs for purposes of determining
whether the Programs contain any Deficiencies. Unless Customer provides
written notice to Supplier of any Deficiencies prior to the expiration of
such period, the Programs shall be deemed to be free of any Deficiencies.
5.2 Upon receipt by Supplier, within the period referred to in section 5.1
above, of any notice of Deficiencies, Supplier shall correct the
Deficiencies as soon as reasonably practicable. Customer shall review all
corrections and modifications to the Programs made by Supplier, and if any
Deficiencies remain in the Software, Supplier shall correct the same during
the period referred to in section 5.1 above.
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5.3 Customer acknowledges that the Programs may contain minor errors and
deficiencies which are not corrected during the period referred to in
section 5.1 above, but Supplier shall use reasonable efforts to correct
such errors or deficiencies as part of the Software Support Services to be
provided pursuant to the Software Support Addendum.
5.4 Customer acknowledges that any use to be made of the Programs pursuant to
this Article 5 shall be solely for purposes of determining whether the
Programs comply with the Specifications and shall not be for purposes of
determining whether the Programs meet any additional requirements of
Customer (including any requirements of compatibility with other products
or performance standards of the Programs when used alone or with any other
products).
5.5 In the case of any dispute between the parties as to whether the Programs
contain any Deficiencies, or whether any Deficiencies have been corrected
by Supplier, such dispute shall be resolved in accordance with section 15.9
below.
PART III - PROFESSIONAL SERVICES
6. PROFESSIONAL SERVICES
6.1 Supplier shall provide to Customer, and Customer shall procure from
Supplier, the professional services (the "Professional Services") described
in the Professional Services Addendum, upon the terms and conditions
contained in this Part III.
6.2 Customer shall provide such cooperation, information and assistance as may
be reasonably requested by Supplier to enable Supplier to perform the
Professional Services, and in particular, shall provide the items referred
to in the Professional Services Addendum.
6.3 Provided Supplier adequately performs the Professional Services, Customer
shall pay to Supplier the charges set forth in the Professional Services
Addendum at the times and in the manner set forth in the Payment Schedule
which is incorporated in and forms part of the Professional Services
Addendum.
6.4 Any services which have been requested in writing by Customer and which
Supplier is willing and able to provide, and which are not specifically
described in the Professional Services Addendum, will be initially
estimated for Customer, performed by Supplier and invoiced by Supplier, at
its then prevailing time and materials rates. Any such additional services
shall be deemed to form part of the Professional Services and shall be
governed by the terms and conditions of this Agreement.
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6.5 Supplier shall perform its obligations under the Professional Services
Addendum using qualified personnel of its choice. All Supplier personnel
shall remain under the supervision, management and control of Supplier.
Customer acknowledges that such personnel may provide similar services to
other customers of Supplier.
PART IV - SOFTWARE SUPPORT
7. SOFTWARE SUPPORT SERVICES
7.1 Supplier shall provide to Customer the various services (collectively the
"Software Support Services") set forth in the Software Support Addendum on
the terms and conditions set forth in such Schedule and in respect of the
items of Programs described in such Addendum (hereinafter referred to in
this Article 7 as the "Supported Programs").
7.2 Customer acknowledges that the Software Support Services shall be performed
either by Supplier or by such other person to whom Supplier may subcontract
the performance of such tasks.
7.3 Customer acknowledges that the Support Fee (as hereinafter defined) does
not entitle Customer to receive any services in respect of any matters set
forth under the heading "Exclusions" in the Maintenance Program described
in the Software Support Addendum (the "Maintenance Program") or any matters
which are provided by Supplier at any extra charge, as set forth in the
Maintenance Program. If Customer requests, and Supplier is willing and able
to provide, services in respect of any such matters, Supplier will estimate
the charge for the services and upon approval by the Customer, Supplier
shall perform such services and, Customer shall pay Supplier at its
standard hourly rates for all such services.
7.4 Customer shall provide, at its expense, a data line and terminal, and make
arrangements as may be necessary to enable Supplier to establish terminal
and file transfer access with Customer's Designated Machine in connection
with the provision of the Software Support Services hereunder. Supplier
will work with Customer to install access equipment with the intent of not
compromising Customer's security.
7.5 Customer shall gather all necessary information and data in sufficient
quantities to provide adequate testing of the Software in a manner and
format and at such times as Supplier may reasonably request in connection
with carrying out the Software Support Services.
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7.6 Customer shall make all reasonably necessary arrangements to enable
Supplier to obtain access to the Designated Machine to permit Supplier to
provide the Software Support Services.
7.7 Customer shall provide a written copy of the identical command sequence
demonstrating any failure in the Supported Programs if requested by
Supplier.
7.8 Software Support Services will be provided only during the hours set forth
in the Maintenance Program.
7.9 Each party shall designate at least one (1) employee or agent who shall
serve as the contact and who will be responsible for handling all technical
and maintenance communications between Customer and Supplier. The contact
shall be reasonably available for consultation at any time that Supplier is
providing Software Support Services or other services under this Agreement.
Both parties shall follow the procedures set forth in the Maintenance
Program with respect to all requests for Software Support Services or other
services made by Customer.
7.10 Customer shall pay to Supplier the monthly support fee set forth in the
Software Support Addendum for the Software Support Services (the "Support
Fee"). The Support Fee shall be payable quarterly in advance.
PART V - GENERAL TERMS AND CONDITIONS
8. PRICES AND PAYMENT
8.1 All invoices issued in accordance with the Payment Schedule with respect to
any Addendum are due and payable upon receipt. If the Customer fails to pay
any charges within forty five (45) days of receipt of invoice, then the
Customer agrees to pay a late it payment charge of eighteen percent (18%)
per annum on the past due balance or the maximum amount permitted by law.
8.2 In addition to any amounts set forth in the Payment Schedule for any
Addendum, Customer shall reimburse Supplier for ail reasonable travel,
accommodation and other expenses incurred by Supplier in the course of
performing its obligations under this Agreement and approved in advance by
Customer.
8.3 Customer is responsible for all sales, goods and services, use, excise or
other taxes, tariffs, duties or assessments, including interest and
penalties, levied or imposed at any time by any governmental authority
arising from or related to any transactions under the net this Agreement,
including any Addendum, other than any taxes based on the net
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income of the Supplier. If Supplier is required to collect any of the
foregoing taxes, tariffs, duties or assessments, Supplier shall add the
same to any invoices and Customer shall immediately pay the same to
Supplier. If Customer is required under any applicable law to deduct from
the amounts to be paid to Supplier pursuant to this Agreement any amount on
account of withholding taxes or any other taxes or levies of any kind,
Customer shall pay all such additional amounts so that the net amounts
received by Supplier are the amounts specified herein.
9. WARRANTY
9.1 Supplier and Customer represent and warrant to each other that neither the
execution of this Agreement nor the performance of its obligations
hereunder will breach or result in any default under its Articles, by-laws,
or other organization documents, or under any agreement or other legally
binding instrument, license or permit to which it is a party or by which it
may be bound.
9.2 Supplier warrants that it has the right to grant to Customer the right and
license to use the Software Materials set forth herein.
9.3 Supplier warrants that as of the Installation Date of the Programs, as
determined pursuant to Article 4 above, and continuing for the period set
forth in section 5.1 above, the Programs shall be free of any Deficiencies.
Supplier's sole liability and obligation in respect of such warranty shall
be to correct the Deficiencies in accordance with the provisions of Article
5 above, failing which Customer shall be entitled at its option to
terminate this Agreement in accordance with the provisions of Article 14
below, and/or to recover damages against Supplier, subject to the
provisions of Article 10 below.
9.4 Supplier warrants that the Professional Services and the Software Support
Services shall be provided by skilled personnel and shall be performed with
due care in accordance with industry standards. Supplier's sole liability
and obligation in respect of such warranty shall be to re-perform any
services for which Supplier has been in breach of such warranty, provided
that Supplier has received notice of such breach within ninety (90) days of
the occurrence, failing which Customer shall be entitled to receive a
refund of any fees paid in respect of any services for which Supplier is in
default.
10. LIABILITY
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10.1 Subject to Customer's obligations to pay to Supplier all amounts due and
owing hereunder, in no event shall either party, or its employees, agents,
suppliers or subcontractors, be liable for any loss of profits, or any
special, indirect, incidental, or consequential damages hereunder, whether
arising in contract (including fundamental breach), tort (including
negligence) or otherwise with respect to any claim arising out of or in
connection with this Agreement. Each party (the "indemnifying party")
further agrees that the other party and its employees, agents, suppliers or
subcontractors (collectively the "indemnified party") will not be liable
for any claim against the indemnifying party made by any third party
(except for any claim arising from the negligence or willful misconduct of
the indemnified party).
10.2 Each of the parties agrees that the other party's liability for any claims
made in connection with this Agreement, whether arising in contract
(including fundamental breach), tort (including negligence) or otherwise,
shall be limited to such direct money damages as are actually incurred by
the injured party and shall not in the aggregate exceed the amounts paid or
payable by Customer to Supplier under the terms of this Agreement on
account of the License Fees for the Programs and the Software Support Fees.
10.3 The express warranties contained in this Agreement by Supplier are in lieu
of, and Supplier expressly disclaims, any and all other representations,
warranties or conditions with respect to the subject matter hereof, whether
express or implied, past or present, including without limitation, any
implied warranties or conditions of merchantability or fitness for a
particular purpose, or of quality, productiveness or accuracy.
11. INDEMNIFICATION
11.1 Subject to section 11.2 hereof, Supplier will defend any claims that the
Software Materials in the form supplied by Supplier infringes any third
party's copyright or patent rights or other intellectual property rights
enforceable in the United States of America, and will indemnify Customer
against any loss, costs or expenses (including attorney's fees), and
damages awarded or settlement entered into, in connection with any such
claim, provided Customer gives Supplier reasonable written notice and
control of the defense of any such claim and does not settle any such claim
without Supplier's consent, and provided further that Customer cooperates
with Supplier in the defense of any such claim.
11.2 If Customer is enjoined by an order of a court of competent jurisdiction
from using the Software Materials, Supplier at its option and expense,
shall do one of the following: (1) procure for Customer the right to
continue using the software.
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Materials; or (2) replace or modify the Software Materials so that they
become non-infringing.
11.3 Sections 11.1 and 11.2 above set forth Supplier's sole obligation, and
Customer's sole remedy, for any claim for infringement of any third
person's proprietary or other rights. Supplier's obligations hereunder with
respect to infringement of any third party's rights shall not apply where
such claims arise from any alteration made to the Software Materials by
any person other than Supplier, or from the use of the Software Materials
on any computer other than the Designated Machine or in combination with
software or hardware not supplied by Supplier, if such claim would not have
arisen except for such alteration, use or combination.
12. CONFIDENTIALITY
12.1 Customer acknowledges that:
(a) the Software Materials embody substantial creative efforts, and contain
confidential information, ideas and expressions; and
(b) all proprietary rights, including all intellectual property rights, in
the Software Materials belong exclusively to Supplier.
12.2 Disclosure of, and access to, the Software Materials by Customer's
employees and consultants is permitted on a need to know basis for purposes
consistent with the use of the Software Materials as permitted under this
Agreement. Customer agrees to take all necessary steps to ensure that
Customer's employees and consultants are prohibited from any unauthorized
use, copying or disclosure of the Software Materials. Without limiting the
foregoing, Customer shall cause any employees or consultants of Customer to
whom any of the Software Materials are disclosed from time to time, to
execute such agreements as may be reasonably required by Supplier to
protect the proprietary rights of Supplier or any third party in the
Software Materials.
12.3 Except as authorized hereunder, Customer shall not use or disclose or
otherwise permit any entity any manner of access to the Software Materials.
Customer agrees to take any and all actions, including legal action, which
may be necessary or desirable to ensure the continued confidentiality and
protection of the Software Materials and to prevent unauthorized access to,
copying or use of the Software Materials by any entity.
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12.4 Customer agrees to promptly notify Supplier, in writing, of the
circumstances surrounding any unauthorized knowledge, possession, copying
or use of the Software Materials which comes to Customer's attention.
12.5 Customer acknowledges that any unauthorized use, copying or disclosure of
the Software Materials may diminish substantially the value to Supplier or
to its suppliers of the copyright, proprietary rights, and/or trade secret
interests that are embodied in the Software Materials. If Customer breaches
any of its obligations with respect to limited use or confidentiality of
the Software Materials, Supplier will be entitled to all remedies available
at law or in equity to protect such party's interests therein, including,
but not limited to, injunctive relief as well as money damages.
12.6 The obligations of this Article 12 shall not apply to restrict the
disclosure by Customer of any confidential information contained in the
Software Materials which Customer can demonstrate:
(a) is or becomes available to the public through no breach of this
Agreement;
(b) was previously known by Customer without any obligation to hold it in
confidence;
(c) is received from a third party free to disclose such information
without restriction;
(d) is independently developed by Customer without the use of confidential
information of Supplier;
(e) is approved for release by written authorization of Supplier, but only
to the extent of and subject to such conditions as may be imposed in
such written authorization;
(f) is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
(g) is disclosed in response to a valid order of a court or other
governmental body of the United States or any political subdivisions
thereof, but only to the extent of and for the purposes of such order;
provided, however, that Customer shall first notify Supplier of the
order and permit Supplier to seek an appropriate protective order.
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12.7 (a) Supplier acknowledges that Customer may provide Supplier with, or
Supplier may obtain access to, certain confidential information
concerning Customer's clients, members, finances, operations, products
and services ("Customer Confidential Information").
(b) Disclosure of and access to the Customer Confidential Information by
Supplier's employees and consultants is permitted on a need to know
basis for purposes consistent with the performance by Supplier of its
obligations and the exercise by Supplier of its rights under this
Agreement. Supplier agrees to take all necessary steps to ensure that
Supplier's employees and consultants are prohibited from any
unauthorized use, copying or disclosure of the Customer Confidential
Information. Without limiting the foregoing, Supplier shall cause any
employees or consultants of Supplier to whom any of the Customer
Confidential Information is disclosed from time to time, to execute
such agreements as may be reasonably required by Customer to protect
the proprietary rights of Customer or any third party in the Customer
Confidential Information.
(c) Except as authorized by Customer, Supplier shall not use or disclose
or otherwise permit any entity any manner of access to the Customer
Confidential Information. Supplier agrees to take any and all actions,
including legal action, which may be necessary or desirable to ensure
the continued confidentiality and protection of the Customer
Confidential Information and to prevent unauthorized access to,
copying or use of the Customer Confidential Information by any entity.
(d) Supplier agrees to promptly notify Customer in writing of the
circumstances surrounding any unauthorized knowledge, possession,
copying or use of the Customer Confidential Information which comes to
Supplier's attention.
(e) Supplier acknowledges that any unauthorized use, copying or disclosure
of the Customer Confidential Information may diminish substantially
the value to Customer or to its suppliers of the copyright,
proprietary rights, and/or trade secret interests that are embodied in
the Customer Confidential Information. If Supplier breaches any of its
obligations with respect to limited use or confidentiality of the
Customer Confidential Information, Customer will be entitled, to all
remedies available at law or in equity to protect such party's
interests therein, including but not limited to injunctive relief as
well as money damages.
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(f) The obligations of Supplier under this section 12.7 shall not restrict
the disclosure by Supplier of any confidential information contained in
the Customer Confidential Information which Supplier can demonstrate:
(i) is or becomes available to the public through no breach of this
Agreement;
(ii) was previously known by Supplier without any obligation to hold
it in confidence;
(iii) is received from a third party free to disclose such information
without restriction;
(iv) is independently developed by Supplier without the use of
confidential information of Customer;
(v) is approved for release by written authorization of Customer, but
only to the extent of and subject to such conditions as may be
imposed in such written authorization;
(vi) is required by law or regulation to be disclosed, but only to the
extent and for the purposes of such required disclosure; or
(vii) is disclosed in response to a valid order of a court or other
governmental body of the United States or any political
subdivision thereof, but only to the extent of and for the
purposes of such order; p . provided however, that Supplier shall
first notify Customer of the order and permit Customer to seek an
appropriate protective order.
12.8 The provisions of this Article 12 hereof shall survive the termination of
this Agreement.
13. INTELLECTUAL AND INDUSTRIAL PROPERTY
13.1 Except as agreed to by the parties for Unique/Custom Requests, Customer
acknowledges that any invention, discovery or improvement involving ideas,
designs, methods or techniques, including computer techniques, conceived by
Supplier's personnel in connection with this Agreement shall belong to
Supplier. Customer shall have a non-exclusive, non-transferable license to
use any such inventions, discoveries and improvements which are
incorporated into any deliverables provided to Customer under this
Agreement, and the same shall be deemed to form part of the Software
Materials and Supplier's Confidential Information for purposes of this
Agreement.
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13.2 Customer acknowledges that Supplier retains the exclusive ownership of all
know-how, technical development tools, programs, concepts and materials
relating thereto (the "Supplier Tools") used in the provision of any of the
Professional Services or Software Support Services hereunder. Customer
acknowledges that the Supplier Tools constitute confidential, valuable
proprietary information and trade secrets of Supplier, and shall be deemed
to form part of Supplier's Confidential Information for purposes of this
Agreement. Customer agrees not to use, copy, disclose or otherwise make
available to any other person any Supplier Tools which may come into its
possession, knowledge or control, and shall take all necessary actions by
agreement, instruction or otherwise in order to prevent any unauthorized
disclosure, copying or use by any other person of the Supplier Tools. Upon
the termination of this Agreement for any reason, Customer shall
immediately return to Supplier all Supplier Tools in its possession or
control and shall within ten (10) days of termination certify in writing to
Supplier that it has returned the Supplier Tools to Supplier.
13.3 If Customer requests Supplier to develop certain custom product features
which are unique to Customer and for which Customer pays Supplier the full
costs of any custom development work, Supplier shall not utilize the same
as part of any product licensed to any other customer, except on such terms
as are mutually agreed by Supplier and Customer. Customer shall notify
Supplier prior to the commencement of any custom software development that
such development work is to be carried out in accordance with the
provisions of this section 13.3, and the parties shall agree on the terms
and conditions concerning such development, including any rights of either
party to market or license the deliverables to any third party.
14. TERMINATION
14.1 Either party may terminate this Agreement by notice to the other party,
effective immediately:
(a) if the other party becomes insolvent or voluntarily or involuntarily
bankrupt; if an involuntary petition in bankruptcy against the other
party is not dismissed within ninety (90) calendar days of filing; if
a receiver, assignee or other liquidating officer is appointed for all
or substantially all of the other party's business; if the other party
makes an assignment for the benefit of creditors; or if the other
party ceases to carry on business in the normal course; or
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(b) if the other party is in breach of any other provision of this
Agreement which is not cured within sixty (60) days following notice
from the non-defaulting party.
In addition, at any time following the date on which Customer has made all
payments to Supplier set forth in the Software Payment Schedule, Customer
shall be entitled at its option to terminate this Agreement without cause
on ninety (90) days' written notice to Supplier, provided that upon the
exercise of such right of termination, Customer shall not be entitled to
receive a refund of any amounts already paid to Supplier, and Customer
shall remain obligated to make any payments due and owing to Supplier at
any time up to the date of termination.
14.2 In the event of termination of this Agreement:
(a) Customer will immediately discontinue all use of the Software
Materials, provided, however, that so long as Customer is not at the
relevant time in continuing breach of this Agreement, and as long as
Customer continues to make all payments due and owing to Supplier,
Customer shall be entitled at its option to continue to use the
Software Materials and to receive Software Support Services for the
Programs for a period of up to nine (9) months after the effective
date of termination of this Agreement; and
(b) within ten (10) days following the date on which Customer is no longer
entitled to use the Software Materials, Customer will provide Supplier
with written certification that Customer has:
(i) discontinued all use of the Software Materials; and
(ii) returned to Supplier the copy of the Software Materials
provided by Supplier; or
(iii) destroyed or returned to Supplier all other copies of the
Software Materials in Customer's possession or control, and
(c) if such termination occurs as a result of any failure by Supplier to
correct any Deficiencies within the period referred to in section 9.3
above, Customer shall not be obligated to make any further payment on
account of the License Fee which is due and payable at any time after
the date of termination; or
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(d) if such termination occurs at any time after the period referred to in
paragraph 14.1(c) above as a result of any default by Supplier,
Supplier shall refund to Customer a pro rata portion of the Support
Fee paid in respect of Software Support Services to be provided after
the date of termination.
14.3 Except as set forth in section 14.2 above, termination of this Agreement
pursuant to paragraphs 14.1(a) or (b) above shall not affect Customer's
obligation to pay the License Fee, the Support Fee or any other amounts
payable at the date of termination under this Agreement. Termination of
this Agreement shall not affect any right or remedy to which either party
would otherwise be entitled as a result of the occurrence of the default
giving rise to the termination of this Agreement.
15. GENERAL
15.1 Except as expressly permitted hereunder, neither party shall assign this
Agreement, or assign, transfer or sublicense the Software Materials or any
rights therein granted under this Agreement, to any person or entity, in
whole or in part, without the express written consent of the other party.
15.2 Should any provision of this Agreement be found to be invalid by a court of
competent jurisdiction, that provision shall be deemed severed and the
remainder of this Agreement shall remain in full force and effect.
15.3 The laws of the State of Wisconsin and the laws of the United States of
America applicable therein shall govern as to the interpretation, validity
and effect of this Agreement.
15.4 Any terms which by their nature are intended to survive the termination of
this Agreement shall continue in full force and effect after termination,
which terms shall include, but not be limited to, any terms dealing with
confidentiality, limitation of liability, indemnification or proprietary
rights.
15.5 This Agreement, including the provisions of the Proposal referred to in
section 1.1 (a) above, all Addenda and Schedules, and the Confidentiality
Agreement dated September 11, 1998, constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties hereto, and there are
no warranties, representations or other agreements between the parties
hereto in connection with the subject matter hereof except as specifically
set forth herein. This Agreement may be changed only by written amendment
signed by both parties.
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15.6 No provision of this Agreement shall be deemed to be waived and no breach
shall be deemed to be excused unless such waiver or consent is in writing
and signed by the party said to have waived or consented. No consent by
either party to, or waiver of, a breach of any provision by the other party
shall constitute consent to, or waiver of, any different or subsequent
breach.
15.7 Any notice, document or other communication required or permitted to be
given hereunder shall be in writing and shall be sufficiently given if sent
by prepaid mail, if delivered personally, or if sent by telex or facsimile
transmission to the address of the other party specified on the face of
this Agreement. Any such notice, if mailed, shall be deemed to have been
given on the 5th business day following such mailing, or if delivered
personally, or sent by telex or facsimile transmission, shall be deemed to
be given on the first business day following such delivery or transmission,
provided that in the event of a disruption in postal service any notice so
mailed shall be deemed to have been delivered on the 5th business day
following the resumption of regular postal service. Each of the parties
hereto shall be entitled to specify a different address for purposes of
this section only, by giving notice in accordance with the terms hereof.
15.8 Each of the parties is an independent contractor in relation to the other,
and is not the other's agent, partner, franchisee, joint venture partner or
employee and the parties may not represent themselves otherwise.
15.9 Any dispute or claim arising out of or relating to this Agreement shall be
settled by arbitration in accordance with the Rules for the Conduct of
Arbitration of the American Arbitration Association (the "Rules") in effect
at the date of commencement of such arbitration, by three (3) arbitrators.
If practicable, the arbitrator shall be appointed from a list of no more
than ten (10) persons provided to the parties by the American Arbitration
Association, but if the parties are unable to agree on an arbitrator within
ten (10) days from the date on which either party requests the appointment
of an arbitrator, either party may request the American Arbitration
Association to appoint such person as soon as practicable. The arbitration
will be final and binding. Each of the parties shall cooperate with the
arbitrator and shall provide him with all information in their possession
or under their control necessary or relevant to the matter being
determined. The parties shall use their best efforts to cause any
arbitration hearing that may be held hereunder to be completed as soon as
practicable. The arbitrator shall be required to make his award as soon as
possible, and if at all practicable, within five (5) days after the
conclusion of the arbitration hearing. Disputes involving more than two (2)
parties shall be settled by one (1) arbitration, as determined by the
arbitration procedures adopted in this clause. Where by this clause any
dispute or difference is to be referred to arbitration, the making of a
final award.
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shall be a condition precedent to any right of action by either party
against the other. Judgment upon an award, including any interim award,
rendered by the arbitrator may be entered in any Court having
jurisdiction thereof. The arbitrator may determine all questions of law
and jurisdiction including questions as to whether the dispute is able to
be arbitrated, and has the right to grant permanent and interim damages
or injunctive relief, and shall have the discretion to award costs
including reasonable legal fees, interest and costs of the arbitration.
15.10 The parties hereby confirm their express wish that this Agreement and all
documents relating thereto be drawn up in English only.
15.11 This Agreement shall ensure to the benefit of and be binding upon the
heirs, executors, administrators, successors and permitted assigns of the
respective parties hereto.
15.12 The insertion of headings herein and the division of this Agreement into
sections are for convenience of reference only and shall not affect the
interpretation thereof.
15.13 Neither party hereto shall be liable to the other party for any delay or
failure to perform its obligations hereunder due to strikes, labour
disputes, riots, storms, floods, explosions, acts of God, acts of any
governmental authority, war or any other cause or causes which are beyond
the reasonable control of such party. The parties hereto shall use their
best efforts during the term of this Agreement to avoid or, if
unavoidable, minimize the effects of any force majeure upon the
performance of their respective obligations under this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
SYSTEMS XCELLENCE USA, INC. PROVANTAGE, INC.
By: /s/ [illegible] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: /s/ [illegible] Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: PRES/CEO Title: EVP & COO
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By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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