MEDPLUS, INC. SOFTWARE LICENSE
AND DATABASE MAINTENANCE AGREEMENT
Agreement No. Q993001
This Agreement is made effective as of December 9, 1999
("Effective Date") by and between MedPlus, Inc. (hereinafter
"MedPlus"), an Ohio corporation with its principal place of
business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇. ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and Quest Diagnostics Incorporated
(hereinafter "Quest Diagnostics," as defined below).
W I T N E S S E T H:
WHEREAS, Quest Diagnostics is the owner and operator of
clinical laboratories which transmit and receive Laboratory Orders
and Laboratory Results Reports (as defined below) to and from
Quest Diagnostics' customers; and
WHEREAS, MedPlus is a healthcare technology company which,
as part of its business, owns and operates the ChartMaxx[TM]
System, an electronic patient record system, including the
ChartMaxx Data Capture[TM] Software, which provides an interface
mechanism to the ChartMaxx System, and the ChartMaxx Web
Client[TM] Software, which allows customers to access the
ChartMaxx System via the Internet; and
WHEREAS, Quest Diagnostics desires to license the ChartMaxx
Data Capture Software and the ChartMaxx Web Client Software from
MedPlus to facilitate the electronic transmission of Laboratory
Orders from Providers to Quest Diagnostics, and of Laboratory
Results Reports from Quest Diagnostics to Providers, and to allow
Quest Diagnostics to view such Orders and Reports via the Internet;
and
WHEREAS, Quest Diagnostics desires to use the ChartMaxx
System to receive Laboratory Orders from Providers and to transmit
Laboratory Results Reports to Providers for their own patients.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties agree
as follows:
A. GENERAL DEFINITIONS
The following terms shall be defined herein as follows:
1. "Applicable Law(s)" means any statute, law, ordinance,
regulation, requirement, order or rule of any federal, state,
local government or other governmental agency or body or of any
other type of regulatory body, or any governmental or
administrative interpretation of any thereof, including, without
limitation, (i) requirements imposed by any governmental or
regulatory body which must be satisfied to qualify for Medicare,
Medicaid or other health care program reimbursements, and (ii) any
and all federal, state and local health care laws, including but
not limited to, those laws relating to or covering the methods and
ways in which clinical laboratory electronic data information
services and other related or incidental services or benefits, if
any, are provided to the providers, the federal Physician Self-
Referral Law, 42 U.S.C. Section 1395bb, and the regulations
promulgated thereunder (together, the "▇▇▇▇▇ Law"), similar state
physician self-referral laws and regulations (together with the
▇▇▇▇▇ Law, the "Self-Referral Laws"), the Federal Health Care
Program Anti-kickback Law and regulations promulgated thereunder
(the "Federal Anti-kickback Law"), and similar state anti-kickback
laws and regulations (together with the Federal Anti-kickback Law,
the "Anti-kickback Laws"), the Clinical Laboratory Improvements
Act of 1967, as amended, the Health Insurance Portability and
Accountability Act of 1996, as amended, and regulations (proposed
or final) promulgated thereunder, the HCFA Internet Security
Policy of 1998, all state and local statutes addressing privacy
and security of healthcare information, and the Balanced Budget
Act of 1997, P.L. 105-23, as amended, and regulations promulgated
thereunder.
2. "ChartMaxx Data Capture Software" means that portion of
the ChartMaxx Software that allows Quest Diagnostics to transmit
data to the Database for access by Providers, as more specifically
described on Exhibit A hereto.
3. "ChartMaxx Software" means all of the software utilized
by MedPlus in operating its ChartMaxx electronic patient record
system.
4. "ChartMaxx System" means the ChartMaxx electronic
patient record system software licensed by MedPlus to entities in
the healthcare industry, including, but not limited to, those
versions of MedPlus' proprietary software, the ChartMaxx Software,
the ChartMaxx Data Capture Software and the Web Client Software,
and user manuals (including any defect corrections, releases,
revisions, enhancements, and updates thereto), used to transmit
Laboratory Orders and Laboratory Results Reports.
5. "Computer System(s)" means any computer hardware
configuration on which Quest Diagnostics has elected to install
and/or execute the Licensed Software (as defined below) from time
to time, provided that such hardware configuration has a central
processing unit capable of running the Licensed Software,
including but not limited to any encryption software embedded
therein.
6. "Confidential Information" shall have the meaning
accorded to it in this Agreement.
7. "Database" means the electronic patient record,
maintained by MedPlus, which contains the Laboratory Orders and
Laboratory Result Reports (as defined below) supplied to the
Provider electronically by Quest Diagnostics for access by
authorized Providers.
8. "Documentation" means documentation relating to or
describing the Software including, but not limited to, user
manuals now or hereafter provided by MedPlus or by third parties
through MedPlus.
9. "Illicit Code" means any computer instructions commonly
known as computer viruses, anomalies or any other computer
instructions which interfere with or prevent Quest Diagnostics
from using the Software as contemplated by this Agreement, but
does not include errors or bugs in the Software.
10. "Laboratory Order" shall mean a single order from a
Provider for one or more laboratory tests for a single patient
that meets the then current Transaction Specifications and is
successfully transmitted to Quest Diagnostics.
11. "Laboratory Results Report" shall mean a partial or
final results report, originated by Quest Diagnostics, for a
single Laboratory Order that meets the then current Transaction
Specifications and is transmitted to the Provider via the
Database.
12. "Licensed Software" shall mean the ChartMaxx Data
Capture Software and Web Client Software as herein defined.
13. "Provider" means any physician, clinic, service center
or other entity or individual that is or services a then current
or future Quest Diagnostics customer who (i) has been granted a
license to use the Web Client Software, and (ii) has received all
necessary patient authorizations to access the Laboratory Results
Reports.
14. "Quest Diagnostics Incorporated" or "Quest Diagnostics"
means Quest Diagnostics Incorporated, a Delaware corporation, with
its principal place of business located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and all of its affiliates,
subsidiaries and parent entities, and joint venture entities in
which Quest Diagnostics is a partner or member.
15. "Site" means each discrete laboratory system of Quest
Diagnostics.
16. "Software" means the ChartMaxx Software (which includes
the ChartMaxx Data Capture Software), the Web Client Software and
the Interfaces (as defined in Section D1(d)), and any revisions,
modifications, enhancements or updates thereto.
17. "Transaction" shall mean a successfully, accurately and
fully completed transmission between Quest Diagnostics and
ChartMaxx, of (i) a single Laboratory Order; or (ii) all
Laboratory Results Reports that arise in connection with a single
laboratory order (including retransmissions), whether such order
is transmitted via the Database or by any other method.
18. "Transaction Specifications" shall mean those certain
documents and other related materials, as updated from time to
time, developed and maintained by Quest Diagnostics, which
describe in detail all of the required formats, data fields, code
sets, protocols and other transaction specifications required to
send successfully and receive Transactions to and from Quest
Diagnostics, via the Database and the Licensed Software.
19. "Web Client Software" means the executable code of the
software supplied by MedPlus that is required to access the
Database remotely via the Internet, but shall not include any
software (which at times may be supplied with the Web Client
Software for Quest Diagnostics' convenience) that is required to
access the Internet in general, as more specifically described on
Exhibit A hereto.
B. SOFTWARE LICENSE TERMS AND CONDITIONS
1. The Licensed Software License Grant/Fee. In exchange for a
license fee and certain transaction fees, as more specifically
described on Exhibit B hereto, MedPlus hereby furnishes to Quest
Diagnostics the Licensed Software and Documentation, to use for
the limited purpose of processing Laboratory Orders and Laboratory
Results Reports under the terms and conditions of this Agreement,
under a non-exclusive and, except as otherwise provided herein,
non-transferable license.
2. Installation and Use of the Licensed Software. At no
additional charge, MedPlus shall provide installation,
configuration and implementation services with respect to the
Licensed Software at the Sites.
3. Proprietary Rights in the Licensed Software. No title to or
ownership in the Licensed Software or the Documentation
(collectively the "MedPlus Products") is transferred to Quest
Diagnostics hereby. Title to and all applicable rights in
patents, copyrights and trade secrets, if any, in the MedPlus
Products, including but not limited to the format of screens and
reports associated with the MedPlus Products, shall remain in
MedPlus or third parties from whom MedPlus has obtained rights to
license the MedPlus Products, which third parties shall be
considered third party beneficiaries of the license agreement
contained herein. Except as otherwise permitted in writing by
MedPlus, Quest Diagnostics shall not provide, or otherwise make
available, the MedPlus Products or copies thereof to any third
party. In no event may the Licensed Software be reverse compiled,
disassembled or otherwise reverse engineered.
4. Copies of Licensed Software /Documentation. Quest
Diagnostics may make sufficient copies of the Licensed Software
for archival and for back-up purposes. Quest Diagnostics may make
additional copies of the Documentation solely for Quest
Diagnostics' internal use. All copies of the Licensed Software
and/or Documentation must include MedPlus' copyright notice and
other proprietary notices and legends as indicated thereon and
shall be subject to the terms and conditions of this Agreement.
5. Permitted Disclosure. Nothing in this Agreement shall
prohibit (i) disclosure of Licensed Software to any third party
(such as an independent contract programmer) who is obligated to
protect as confidential the Licensed Software and MedPlus' or any
third party's proprietary rights therein who is under contract to
Quest Diagnostics for the purpose of assisting Quest Diagnostics
in the customization, maintenance or other use of the Licensed
Software in a manner not prohibited by this Agreement, or (ii)
delivery of copies of the Licensed Software to any third party
disaster recovery firm engaged by Quest Diagnostics, in each case
so long as the applicable third party is informed of and bound by
an obligation to use the Licensed Software under the terms of this
Agreement.
6. Customization. During the Term, MedPlus shall distribute to
Quest Diagnostics, at no charge, those enhancements to specific
applications included in the Licensed Software which are released
by MedPlus for general commercial availability to other similar
licensees. ("Applications" are collections of related features
and/or functions integrated into executable programs that are
accessible from the ChartMaxx System main menu). Any
customization or enhancements paid for by Quest Diagnostics, shall
be owned by Quest Diagnostics and cannot be used by anyone other
than Quest Diagnostics, for any purpose, without the prior written
consent of Quest Diagnostics.
7. Software Warranty. MedPlus represents and warrants to Quest
Diagnostics that MedPlus has the right, or has been granted the
right by a third party who has the right, title and interest in
the Licensed Software, to license the Licensed Software to Quest
Diagnostics in accordance with terms and provisions of this
Agreement free from any lien, claim or encumbrance. In addition,
during the Term of this Agreement, MedPlus will use commercially
reasonable efforts to ensure that the Software is free from
Illicit Code. Furthermore, MedPlus warrants that for the Term of
this Agreement, the Software will perform in accordance with the
Documentation, Performance Standards, Transaction Specifications
and any other functional specifications (collectively, the
"Specifications"). MedPlus also warrants that the ChartMaxx System
shall be able to accurately process date data (including but not
limited to, calculating, comparing and sequencing) from, into and
between the twentieth and twenty-first centuries, including leap
year calculations, when used in accordance with the Documentation,
provided that all products used in combination with the ChartMaxx
System properly exchange date data with it (the "Y2K Compliance
Warranty"). If the Software does not perform in accordance with
these Warranties, then with respect to any defect or variation as
to which MedPlus is notified by Quest Diagnostics and/or any
Provider, MedPlus shall, at its option, and its sole cost, either
(i) correct such defect or variation so as to cause the Software
to perform in the manner set forth in the Specifications and as
warranted herein, or (ii) replace the Software with functionally
equivalent software. MedPlus shall reimburse Quest Diagnostics
for all incremental costs reasonably incurred by Quest Diagnostics
as a result of such defect or variation, to enable Quest
Diagnostics to maintain the same service levels for its customers.
Notwithstanding the foregoing, if MedPlus is unable to complete
either item (i) or (ii) above within the earlier of ninety (90)
days of (a) its receipt of written notice from Quest Diagnostics
and/or any Provider of the defect or variation, or, (b) MedPlus'
actual knowledge of the defect or variation, then MedPlus shall
refund to Quest Diagnostics all monies paid by Quest Diagnostics
to MedPlus pursuant hereto, excluding Transaction Fees (as defined
in Section E(3) below), plus, all incremental costs reasonably
incurred by Quest Diagnostics in switching to another system,
including but not limited to the difference in the amount of the
Integration Services Fee, if greater; the cost of receiving
Laboratory Orders and transmitting Laboratory Results Reports via
an alternative method, until the new system is up and running; the
difference in the Transaction Fees, if greater (a) for the
duration of the Initial Term, plus the transition period specified
in Section F3(e) hereof , or for one year, whichever is greater,
or (b) for the duration of the then-current Renewal Term, plus the
transition period specified in Section F3(e) hereof, whichever is
applicable, less any undisputed fees then due and owing by Quest
Diagnostics. Thereafter, Quest Diagnostics shall have no further
obligation hereunder.
This Warranty shall apply provided that: (i) the Software has not
been modified by Quest Diagnostics, its employees or agents, or as
a result of some act or omission of Quest Diagnostics, its
employees or agents, unless authorized in writing by MedPlus; (ii)
the Computer System on which the Software has been installed has
not been modified by Quest Diagnostics, its employees or agents,
or as a result of some act of omission of Quest Diagnostics, its
employees or agents, in any way that impairs the functioning of
the Software; and (iii) the Software and the Computer System on
which it has been installed have been maintained according to
procedures reasonably recommended by the relevant hardware
manufacturer(s) and/or by MedPlus, as evidenced by a writing to
Quest Diagnostics.
THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, WHICH WARRANTIES ARE HEREBY DISCLAIMED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8. Patent and Copyright Indemnification as to Software.
Notwithstanding anything herein to the contrary, MedPlus shall
protect, indemnify, hold harmless and defend any action, suit or
proceeding brought against Quest Diagnostics insofar as it is
based on a claim that the Software or the use thereof by Quest
Diagnostics in accordance with this Agreement, infringes any
patent, copyright, or any other intellectual property of a third
party ("Infringement"), provided that MedPlus is promptly notified
by Quest Diagnostics of the action and given full authority,
information and assistance (at MedPlus' expense) for the defense
of the action. MedPlus shall pay all damages and costs awarded
therein against Quest Diagnostics, but shall not be responsible
for any compromise made without its written consent. In the event
that the Software or the use thereof by Quest Diagnostics in
accordance with this Agreement, is held to constitute an
Infringement, or in the reasonable opinion of counsel for Quest
Diagnostics constitutes Infringement, MedPlus shall have the
obligation to, at its option and expense, and at no cost to Quest
Diagnostics (i) modify such software without impairing in any
material respect the functionality or performance thereof so that
it does not constitute an Infringement, (ii) procure for Quest
Diagnostics the right to continue to use such software, or (iii)
replace such software with an equally suitable, non-infringing
product. If Quest Diagnostics is enjoined from use of the
Software as a result of an Infringement, then MedPlus shall
reimburse Quest Diagnostics for all incremental costs reasonably
incurred by Quest Diagnostics as a result of such defect or
variation, to enable Quest Diagnostics to maintain the same
service levels for its customers. If none of the foregoing
alternatives, (i), (ii) or (iii) above, is available to MedPlus,
then MedPlus shall refund all amounts paid by Quest Diagnostics to
MedPlus pursuant to this Agreement, excluding Transaction Fees (as
defined below), plus, all incremental cost reasonably incurred by
Quest Diagnostics in switching to another system, including but
not limited to, the difference in the amount of the Integration
Services Fee, if greater; the cost of receiving Laboratory Orders
and transmitting Laboratory Results Reports via an alternative
method, until the new system is up and running; the difference in
the Transaction Fees, if greater (a) for the duration of the
Initial Term, plus the transition period specified in Section
F3(e) hereof , or for one year, whichever is greater, or (b) for
the duration of the then-current Renewal Term, plus the transition
period specified in Section F3(e) hereof, whichever is
applicable), less any undisputed fees then due and owing by Quest
Diagnostics. Thereafter, Quest Diagnostics shall have no further
obligations hereunder. MedPlus' commitment hereunder shall not
extend to any infringement or claim thereof which is based upon
the unauthorized combination by Quest Diagnostics, its employees
or agents of the Software with products or services not supplied
by MedPlus.
9. Use of Licensed Software. Quest Diagnostics acknowledges and
agrees that the Licensed Software is designed merely to assist
Quest Diagnostics and its agents in the performance of their
professional activities and is not intended to replace the
professional skill and judgment of Quest Diagnostics and/or its
agents and/or clients. Except as specifically described in any
exhibits hereto, Quest Diagnostics agrees to be solely responsible
for Quest Diagnostics' design, repair and configuration of Quest
Diagnostics' equipment, machinery, systems and/or products and for
the input of Laboratory Results Reports into the Database through
the use of the Licensed Software. Quest Diagnostics understands
the crucial nature of all backup procedures and the importance of
maintaining copies of all Laboratory Orders and Laboratory Results
Reports so that its inability to access the Database for any
reason whatsoever will not prevent Providers or others who require
access to the Laboratory Orders and Laboratory Result Reports from
obtaining such access.
10. Patient Data.
Each party agrees that patient clinical information, Laboratory
Orders, Laboratory Results Reports, and all patient-related
information, including any derivatives resulting from the
manipulation or compilation thereof ("Patient Data") are
Confidential Information (as defined herein) and each party agrees
it will not disclose or utilize individual laboratory test
information or other Patient Data in any way that would violate
any patient confidentiality obligations or any Applicable Laws, as
defined above. Without limiting MedPlus' obligations regarding
Confidential Information which may be otherwise provided for in
this Agreement, MedPlus shall be responsible to ensure the
confidentiality and security of Patient Data transmitted or
otherwise available to MedPlus in any form, manner, on any media,
and in any format now known or hereafter developed, in accordance
with all Applicable Laws governing such Patient Data now or in the
future, including those to prevent anyone other than the sender
and addressee of each Transaction or their respective authorized
employees from monitoring, using, gaining access to or learning
the import or contents of any Transaction. Notwithstanding the
foregoing, but subject to the restrictions of the foregoing, the
parties recognize that MedPlus, its employees and agents and
permitted assigns, who have a need to know, will have access to
the Patient Data for the sole purpose of performing MedPlus'
obligations under this Agreement.
All Patient Data associated with Laboratory Orders, Laboratory
Results Reports, and all information contained in Transactions
("Quest Diagnostics Patient Data"), shall be owned by Quest
Diagnostics and not by MedPlus. Except as otherwise specifically
contemplated by this Agreement, MedPlus shall not aggregate,
integrate, compile, regenerate, merge, manipulate or otherwise use
the Quest Diagnostics Patient Data for any purposes, including to
derive revenue therefrom, and shall not provide the Quest
Diagnostics Patient Data to any other person or entity, other than
as specifically required or allowed under the terms of this
Agreement to perform the services hereunder, without the prior
written consent of Quest Diagnostics. MedPlus agrees that Quest
Diagnostics Patient Data cannot be aggregated for any third party,
including but not limited to any Provider, or among different
customers of MedPlus or other health care providers, payors or
laboratory service providers for any purpose, without Quest
Diagnostics' prior written consent.
If MedPlus is served with a warrant, subpoena, order or request
from a court of competent jurisdiction, administrative agency or
other governmental body or any other entity or person for any
Quest Diagnostics Patient Data, records, or files of information
transmitted through, and to, the ChartMaxx System, MedPlus will as
soon as practicable, and not in violation of law, deliver to Quest
Diagnostics a copy of such warrant, subpoena, order or request and
will not, without Quest Diagnostics' proper written consent, which
shall not be unreasonably withheld or delayed, accede to the same
unless upon the advice of counsel it reasonably believes that it
is required to do so under applicable law.
Without limiting the foregoing, MedPlus agrees that it shall limit
the MedPlus employees, agents and contractors who have access to
any Patient Data, including without limitation, Laboratory Orders
or Laboratory Results Reports, if any, to only those "need to
know" employees, agents and contractors of MedPlus as are required
to perform the services hereunder in accordance with the highest
level of professionalism and MedPlus' established and maintained
security measures, which shall be subject reasonably to audit from
time to time by Quest Diagnostics.
11. Confidential Information of the Parties.
Without limiting the foregoing, and in addition to the Patient
Data provisions stated above, any and all trade secrets, if any,
and confidential information and all physical embodiments thereof
("Confidential Information") received by either party (the
"Receiving Party") from the other party (the "Disclosing Party")
during the term of this Agreement are confidential to and are and
will remain the sole and exclusive property of the Disclosing
Party. Confidential Information shall also include all other
forms of information designated as Confidential Information in
this Agreement. With respect to Quest Diagnostics, the Quest
Diagnostics Confidential Information may include, without
limitation, knowledge, information and material concerning Quest
Diagnostics, including its products, services, data processing
systems, equipment, software, supplies and services, and
proprietary information concerning Quest Diagnostics and the names
and addresses of Providers. With respect to MedPlus, the MedPlus
Confidential Information may include, without limitation,
knowledge, information and material concerning the Software,
related source code, computer programs and screens and proprietary
information concerning MedPlus, its affiliated companies and their
respective products and services.
At all times, both during the term of this Agreement and after its
termination, the Receiving Party shall hold all Confidential
Information of the Disclosing Party in confidence, and will not
use, copy or disclose such Confidential Information or cause any
of such Confidential Information to lose its character as
Confidential Information. At all times during the term of this
Agreement and for a period of eighteen (18) months following the
termination of this Agreement (except where a longer period is
required pursuant to this Agreement or Applicable Laws), the
Receiving Party shall hold the Confidential Information of the
Disclosing Party in confidence, and will not use, copy or disclose
such Confidential Information or cause any of such Confidential
Information to lose its character or cease to qualify as
Confidential Information.
Confidential Information shall be maintained under secure
conditions by the Receiving Party, using reasonable security
measures and in any event (i) not less than the same security
measures used by the Receiving Party for the protection of its own
Confidential Information of a similar kind, and (ii) any specific
security measures required by this Agreement or by Applicable
Laws. Within thirty (30) days after termination of this Agreement,
the Receiving Party shall deliver to the Disclosing Party all of
the Disclosing Party's Confidential Information then in the
custody, control or possession of the Receiving Party.
If the Receiving Party is ordered by a court of competent
jurisdiction, administrative agency, or other governmental body to
disclose Confidential Information, or it if is served with or
otherwise becomes aware of a motion or similar request that such
an order be issued, then the Receiving Party will not be liable to
the Disclosing Party for disclosure of Confidential Information or
Confidential Information required by such order if the Receiving
Party provides reasonable prior written notice of such disclosure
and reasonably cooperates with the efforts of the Disclosing
Party, at the Disclosing Party's expense, to protect the
confidentiality of such Confidential Information.
Confidential Information shall exclude information that (i) was
known to the Receiving Party prior to its first receipt from the
Disclosing Party; or (ii) at any time becomes a matter of public
knowledge without any fault of the Receiving Party; or (iii) is at
any time lawfully received by the Receiving Party from a third
party under circumstances permitting its disclosure to others; or
(iv) is independently developed by the Receiving Party as evidenced
by the Receiving Party's records; or (v) is at any time furnished
to a third party by the Disclosing Party without restriction on use
or disclosure; or (vi) is disclosed pursuant to a lawful
requirement or request of a government agency, subject to the
express provisions of this Agreement; or (vii) is approved for
release by written authorization of the Disclosing Party. The
Receiving Party shall bear the burden of showing that any of the
foregoing exclusions applies to any information or materials.
Each party will cooperate with the other in the protection of
Confidential Information. Each party acknowledges and agrees that
in the event of a material breach of these obligations of
confidentiality, the non-breaching party will suffer irreparable
harm and injury, which may not be adequately compensated by
monetary damages. Accordingly, in the event of a material breach
or threatened breach, the non-breaching party shall be entitled to
seek preliminary and final injunctive relief and any other
equitable remedies it may have. Such remedies shall be in addition
to and not in limitation of any and all other remedies, which such
party, may have at law. Notwithstanding anything contained herein
to the contrary, both parties agree that the other party may
disclose relevant terms of this Agreement to third parties with a
business need to know; provided that such party has obtained the
other party's prior written consent as to (i) the identity of the
disclosee and (ii) the scope of the disclosure, and has entered
into a confidentiality agreement with such third party in a form
acceptable to the other party and the other party is made a third
party beneficiary thereof. For purposes hereof, both parties
agree that the Confidentiality Agreement attached hereto as
Exhibit D is acceptable and that MedPlus may disclose to the party
indicated on Exhibit I relevant terms hereof, including but not
limited to pricing if in fact directly relevant to its
negotiations with such party.
12. Export/Limitations on Dangerous Application. Quest
Diagnostics acknowledges that the Software provided hereunder is
subject to export and import controls and agrees that Quest
Diagnostics will not export the Licensed Software, directly or
indirectly (unless by MedPlus, on Quest Diagnostics' behalf),
separately or as part of a system, without Quest Diagnostics, at
its own cost, first obtaining all licenses from any applicable
government agency of the United States, including but not limited
to the United States Department of Commerce and any other
appropriate agency of the United States Government as may be
required by law. In addition, Quest Diagnostics acknowledges that
the Software is not developed or licensed for use in any nuclear,
aviation, mass transit or medically diagnostic application or in
any other inherently dangerous application and neither MedPlus nor
any third party vendor whose software is contained therein shall
be liable for any damages resulting from such uses.
13. MedPlus Provider Agreements.
(a) MedPlus represents and warrants that it shall use its
best efforts to enter into Web Client Software License or other
applicable agreements with each Provider, which agreements will
include terms and conditions substantially similar to the
following: (i) Each party shall be liable for its own acts and
omissions; and (ii) MedPlus shall represent and warrant that it
will repair or replace any software that fails to operate in
accordance with the applicable specifications and if neither of
those options is possible, refund to the Provider the price
thereof as depreciated or amortized by an equal annual amount over
the lifetime of the software as established by MedPlus provided
that: (i) the software has not been modified by anyone other than
MedPlus or someone authorized, in writing, by MedPlus; (ii) the
Computer System has not been modified in any way that impairs the
functioning of the software; (iii) the software and the Computer
System have been maintained according to procedures recommended by
the relevant hardware manufacturer(s) and/or by MedPlus; and (iv)
all undisputed fees due MedPlus under the Web Client Software
License agreement have been paid.
(b) MedPlus represents and warrants that it will require the
Providers to represent and warrant that they obtain patient
authorization for any and all access to Laboratory Results Reports
and for transmission of Laboratory Orders and receipt of
Laboratory Results Reports via the ChartMaxx System.
C. LICENSED SOFTWARE MAINTENANCE AND SUPPORT TERMS AND
CONDITIONS. MedPlus shall provide, and Quest Diagnostics agrees to
accept, maintenance and support services for the Licensed Software
as more specifically described in the Service and Support
Standards attached as Exhibit C hereto.
D. THE DATABASE
1. MedPlus' Obligations. In exchange for the consideration
described on Exhibit B hereto and Quest Diagnostics' agreement to
use the ChartMaxx System to provide the Laboratory Orders and
Laboratory Results Report as described herein, MedPlus will
maintain the Database so that Quest Diagnostics and the Providers
can have means of access to the Laboratory Orders and Laboratory
Results Reports. Specifically, MedPlus will:
(a) install, configure, staff and maintain all necessary
ChartMaxx System server hardware and software, including all
embedded third party tools, at MedPlus' corporate headquarters in
Cincinnati, Ohio or at a location chosen by MedPlus in its sole,
reasonable discretion;
(b) coordinate and arrange for a secure results communication
connection between Quest Diagnostics and the ChartMaxx System, the
ChartMaxx System and the Providers, for the purpose of
transmitting Laboratory Orders and Laboratory Results Reports.
Quest Diagnostics acknowledges that a 128-bit encryption
algorithm, or greater, is sufficient security, as of the Effective
Date, for purposes of communication via the Internet. MedPlus
acknowledges that in the future when communication is made via the
Internet, a 128-bit encryption algorithm may no longer provide a
sufficient level of security. Accordingly, MedPlus agrees to
conduct periodic reviews to ensure that the encryption level used
to transmit Laboratory Orders and Laboratory Results Reports via
the Internet meets with Quest Diagnostics' security standards.
Within sixty (60) days of its receipt of written notice from Quest
Diagnostics that the encryption level then being used by MedPlus
or its assigns to transmit Laboratory Orders and Laboratory
Results Reports via the Internet does not provide a sufficient
level of security, subject to the capabilities of then-current
commercially available Web-browser and Web server technology,
MedPlus shall modify the encryption level as requested by Quest
Diagnostics;
(c) develop a local site implementation plan for each Site (an
"Implementation Plan") and provide Quest Diagnostics with a
Statement of Work for such Site;
(d) configure appropriate report format interfaces, followed by a
discrete lab interface for each Site (the "Interfaces"),
fulfilling all legal and regulatory requirements as provided to
MedPlus by Quest Diagnostics from time to time;
(e) ensure that an MPI function is integrated into the ChartMaxx
System so that patients may be uniquely identified based on a core
set of patient demographics specifically supplied by Quest
Diagnostics with each lab result as available;
(f) license the Web Client Software to the Providers, at their
cost, so that they can access the Database with respect to their
patients only via the Internet, and, at Quest Diagnostics' request
and expense, install the Web Client Software on the Providers'
office systems;
(g) provide training services with respect to the Software as
requested from time to time by Quest Diagnostics;
(h) maintain a toll-free number for telephone support with
respect to the Software and the Database;
(i) subject to the capabilities of each Site, develop, install
and maintain test ordering logic to include billing information.
Programming must be done in accordance with the order entry rules
of Quest Diagnostics and maintained with regular updates;
(j) subject to capabilities of each Site, maintain all tables and
files associated with the products that are not provided by the
Quest Diagnostics data feeds. These would include, but are not
limited to, insurance tables, billing edits, limited coverages
tests, and test code mapping;
(k) certify to Quest Diagnostics, on an annual basis and in a
format to be mutually agreed upon by the parties, as to the
content of the Database, the form of the reports transmitted by
MedPlus to the Providers and the ability of Quest Diagnostics to
do quality assurance testing of the Database. The documentation
and Records that substantiate the certifications shall all be
subject to Quest Diagnostics' audit rights contained in Section G6
hereto; and
(l) work with Quest Diagnostics to negotiate in good faith the
terms pursuant to which Quest Diagnostics may be trained with
respect to providing, and may provide; support services to
Providers for the ChartMaxx System.
2. Quest Diagnostics' Obligations. To ensure proper operation of
the Database, and in consideration of MedPlus' continued
maintenance of the Database, Quest Diagnostics will:
(a) provide local technical and systems support at each Site to
assist in establishing a data communications interface between the
Quest Diagnostics laboratory system(s) and the ChartMaxx System;
(b) as soon as commercially practicable, the parties mutually
agree to develop a reporting methodology, pursuant to which Quest
Diagnostics will, on no less than a monthly basis, provide to
MedPlus a written listing (via e-mail, facsimile, etc.) of the
Laboratory Orders and Laboratory Results Reports sent to MedPlus
during such reporting period, so that MedPlus may reconcile its
electronic records;
(c) provide technical contacts and sample data so MedPlus can
design and implement the lab results interface;
(d) provide Transaction Specifications; and
(e) use commercially reasonable efforts to comply with requests
that it receives from Providers to use the ChartMaxx System for
the transmission of Laboratory Orders and Laboratory Results
Reports.
3. Each Party's Obligations. Each party hereto shall be
responsible for its own access to the Internet (or such other
telecommunication network, as necessary) and costs associated
therewith
E. PRICING AND PAYMENT TERMS.
1. General Payment Terms. Quest Diagnostics shall pay all
undisputed fees, costs and all other amounts payable pursuant to
this Agreement as described on Exhibit B hereto, and in no event
later than forty-five (45) days from the date of receipt of
invoice. Following the first two years of the Term, Consulting
Services and Support Fees (as described in Section C of Exhibit B)
may be increased annually by MedPlus; however, in no event shall
the percentage of any such increase over the preceding year exceed
the rise in Consumer Price Index average for such year. All
amounts indicated herein are in U.S. dollars. In the event an
error in payment is made by Quest Diagnostics hereunder, Quest
Diagnostics reserves the right to adjust later payments to MedPlus
to compensate for the error, notwithstanding the fact that later
payments might be unrelated to those products and/or services for
which the erroneous payment was made. In the event that Quest
Diagnostics withholds payment for fees, on the basis they are
disputed, and it is later determined by the mutual consent of the
parties or by a court of competent jurisdiction that the fees were
withheld in error, then Quest Diagnostics shall pay the fees no
longer subject to dispute, plus interest on such amount,
calculated at the Prime Rate in effect, from time to time, as
listed in the Money Rates section of the Wall Street Journal.
2. Tax Liability. Fees herein include any and all federal,
state or local sales, use, excise or similar taxes or governmental
charges or assessments that may be levied on either party as a
result of this Agreement or any Transactions arising out of it.
3. Transaction Fees. Quest Diagnostics shall pay MedPlus
Transaction Fees in accordance with Exhibit B.
4. Most Favored Nations Pricing. The pricing structure
included herein specifically applies to the initial installation
in Denver, Colorado. With respect to any further installations of
the Licensed Software for Quest Diagnostics, MedPlus represents
and warrants that the all fees and amounts charged under this
Agreement shall never be greater than those fees and amounts
charged by MedPlus, or its successors, to any other clinical
laboratory for the same or similar products and/or services, as
follows:
(a) In the event that MedPlus enters into an agreement with
another clinical laboratory which agreement provides Transaction
Fees that are lower or more favorable than those under this
Agreement, MedPlus shall adjust any less-favorable Transaction
Fees under this Agreement to equal the Effective Rate of the
Transaction Fees in such other agreement, as of the date such fees
under such other agreement become effective, For purposes hereof,
the "Effective Rate" of such other agreement shall equal the
quotient of the transaction fees charged to such other laboratory
on a particular invoice divided by the total amount of
transactions indicated on such invoice. Notwithstanding the
foregoing, in the event that the transaction fees under the other
agreement are bundled with other fees or amounts, then the parties
shall choose a commercially reasonable approach to adjust the
Effective Rate.
(b) In the event that MedPlus enters into an agreement with
another clinical laboratory which agreement provides any fees or
amounts (other than Transaction Fees) that are lower or more
favorable than those under this Agreement, MedPlus shall adjust
any such less-favorable fees or amounts under this Agreement to
equal the fees or amounts under such other agreement.
Notwithstanding the foregoing, in the event that any fees or
amounts under the other agreement are bundled, then the parties
shall choose a commercially reasonable approach to unbundle them
and make the appropriate adjustments.
(c) Within sixty (60) days of the beginning of each calendar
year of the Term, MedPlus will certify in writing to Quest
Diagnostics that MedPlus is in compliance with the provisions of
this Section.
(d) In the event that MedPlus fails to automatically begin
charging Quest Diagnostics lower fees as provided in this Section,
then, as soon as MedPlus has been notified of such failure or has
become aware of such failure, it will pay to Quest Diagnostics the
difference between the actual fees charged to Quest Diagnostics
and the Effective Rate of fees that should have been charged to
Quest Diagnostics, retroactive to the effective date of the
lowered fees, plus interest on such amount, calculated at the
Prime Rate in effect, from time to time, as listed in the Money
Rates section of the Wall Street Journal.
5. Specific Payment Terms. Quest Diagnostics shall pay
MedPlus only for Transactions completed, as follows:
(a) Quest Diagnostics will not owe any fee to MedPlus for
any Transactions (i) not in accordance with the Performance
Standards or (ii) that did not meet the Transaction
Specifications.
(b) Quest Diagnostics will owe a Transaction fee to MedPlus
for any Transaction rejected solely by Quest Diagnostics as a
result of Quest Diagnostics own act or omission, so long as the
Transaction meets the Performance Standards and the Transaction
Specifications.
(c) MedPlus will provide reports and invoices in hard
copy, to Quest Diagnostics for all deliverables under this
Agreement at the end of each calendar month and shall provide all
supporting documentation (transaction detail) to Quest Diagnostics
in electronic format with the level of detail agreed to by the
parties from time to time.
(d) Quest Diagnostics will use commercially reasonable
efforts to provide written notice to MedPlus of any disputed
amounts within ninety (90) days of Quest Diagnostics receipt of
MedPlus' invoice.
6. Expenses. MedPlus shall be responsible for all ordinary
and reasonable expenses that it may incur in connection with this
Agreement, including any Addenda and/or Exhibits attached hereto.
Quest Diagnostics agrees, however, to reimburse MedPlus for any
extraordinary expenses previously approved in writing by Quest
Diagnostics.
F. TERM AND TERMINATION.
1. Term of Agreement. The term of this Agreement shall commence
upon the Effective Date and shall continue for five years unless
otherwise terminated as provided herein (the "Initial Term").
Thereafter, this Agreement will automatically renew for additional
one-year terms (any such terms shall be referred to as "Renewal
Terms") (the Initial Term and any Renewal Term and the transition
period referred to in Section F3(e) shall be referred to
collectively as the "Term") unless earlier terminated as provided
herein.
2. Term of Licenses. The term of any software license granted
hereunder shall commence on the date on which such software is
delivered to Quest Diagnostics and shall continue until expiration
of the Term.
3. Termination of Agreement
(a) Either party may terminate this Agreement, with or without
cause, at the end of the Initial or any Renewal Term by written
notice received by the other party no less than ninety (90) days
prior to the end of the then-current term.
(b) If one party breaches any material provision of this
Agreement, the non-breaching party may terminate this Agreement,
provided that the non-breaching party has given written notice to
the other party of the breach and afforded a thirty (30) day cure
period. Failure of MedPlus to meet the Performance Standards set
forth on Exhibit F, to respond to and/or resolve a Category One
problem as defined on Exhibit C or a breach of the Y2K Compliance
Warranty that results in a Category One problem as defined on
Exhibit C or an alteration of the contents of a Laboratory Order
or a Laboratory Results Report shall be deemed a breach of a
material provision of this Agreement. Notwithstanding the
foregoing, the breaching party shall reimburse the non-breaching
party for all incremental costs reasonably incurred by the non-
breaching party as a result of such breach, regardless of whether
or not the breach is cured within the thirty (30) day cure period.
In the event that MedPlus is the breaching party and MedPlus is
unable to cure such breach within the thirty (30) day cure period,
then Quest Diagnostics shall have the right to avail itself of the
remedies contained in Section B7 hereto, as applicable to the
relevant Site(s), only.
(c) If one party breaches any other provision of this Agreement,
the non-breaching party may terminate this Agreement, provided
that the non-breaching party has given written notice to the other
party of the breach and afforded a sixty (60) day cure period.
Notwithstanding the foregoing, the breaching party shall reimburse
the non-breaching party for all incremental costs reasonably
incurred by the non-breaching party as a result of such breach,
regardless of whether or not the breach is cured with the sixty
(60) day cure period. In the event that MedPlus is the breaching
party and MedPlus is unable to cure such breach within the sixty
(60) day cure period, then Quest Diagnostics shall have the right
to avail itself of the remedies contained in Section B7 hereto, as
applicable to the relevant Site(s), only.
(d) Quest Diagnostics may terminate this Agreement with
respect to a particular Site on five (5) days notice if, as a
result of an act or omission of MedPlus, the initial
implementation of the Interface at such Site is not completed
within thirty (30) days of the scheduled due date as mutually
agreed by the parties and as specified in the Performance
Standards. Within thirty (30) days of the date of the notice of
termination herein, MedPlus shall refund to Quest Diagnostics all
amounts paid by Quest Diagnostics pursuant to this Agreement for
the Integration Services Fee for such Site and Quest Diagnostics
will have no further obligation to make any further payments
pursuant to this Agreement, for the particular Site.
(e) Notwithstanding anything in this Agreement to the
contrary, upon termination of this Agreement, MedPlus will
continue to process Transactions for a period of no less than one
hundred twenty (120) days after the date of termination. For each
such Transaction, Quest Diagnostics agrees to pay MedPlus the fees
then in effect on the date of termination. In addition, during
such one hundred twenty (120) day period, the parties shall
effect, and shall cooperate with each other in effecting, the
orderly and reasonable removal of MedPlus for transmission of
Laboratory Orders and/or Laboratory Results Reports in the manner
that is least disruptive to such Providers and which allows
connectivity between Quest Diagnostics and its Providers to
continue uninterrupted. The parties shall jointly develop a
removal plan, which will provide a reasonable level of support
consistent with Exhibit C of this Agreement to transition Quest
Diagnostics off of ChartMaxx. In addition to, and in furtherance
of, the foregoing, MedPlus will continue to provide Quest
Diagnostics with access to any and all software and equipment used
for connectivity, which is necessary to process Transactions
during such transition period.
4. Disposition of Licensed Software upon Termination.
Quest Diagnostics agrees, upon expiration of the Term, to return
to MedPlus within 60 days or destroy the Licensed Software and
Documentation, and copies thereof. Upon request by MedPlus, Quest
Diagnostics agrees to certify in writing as to such destruction or
return.
5. Source Code Escrow. MedPlus shall place in escrow, and
will regularly update (at least as often as each update, revision,
modification, enhancement and/or new version occurs), one
electronic copy of the Software source code and Documentation in
accordance with the Escrow Agreement attached hereto as Exhibit G,
of which Quest Diagnostics shall be a third party beneficiary. In
addition to the events triggering release of the Software source
code and Documentation specified in Exhibit G hereto, Quest
Diagnostics shall be entitled to release of the Software source
code and Documentation upon the occurrence of any of the
following: (i) MedPlus has a decree entered against it by a court
of competent jurisdiction appointing a receiver, liquidator,
trustee, or assignee in bankruptcy or in insolvency covering all
or substantially all of MedPlus' property or providing for the
liquidation of MedPlus' property or business affairs, (ii) MedPlus
has ceased it ongoing business operations in the ordinary course,
or has ceased the sale, licensing, maintenance or other support of
the Software, or (iii) the occurrence of any other event or
circumstance which demonstrates MedPlus' inability or
unwillingness to fulfill its obligations to Quest Diagnostics
under this Agreement, including, without limitation, the
correction of defects in the Software.
G. MISCELLANEOUS.
1. Limitations on Database Content. MedPlus agrees that,
unless otherwise authorized in writing by Quest Diagnostics, it
will not store any laboratory data in the Database, or transmit
Laboratory Orders or Laboratory Results Reports to or from any
Clinical Laboratory via the Database, other than Quest
Diagnostics. Notwithstanding the foregoing, MedPlus may transmit
only Laboratory Results Reports to any Clinical Laboratory whose
primary purpose is to provide diagnostic services for the
prevention, diagnosis and treatment of disease and other medical
conditions for hospital-based patients. For purposes of this
Section, Clinical Laboratory shall mean any clinical laboratory
that provides diagnostic services for the prevention, diagnosis
and treatment of disease and other medical conditions.
2. ChartMaxx Reseller Agreement. MedPlus agrees
that Quest Diagnostics shall have the right to resell the
ChartMaxx System under its brand name, and on terms at least as
favorable as those provided to MedPlus' then-current ChartMaxx
System resellers. At Quest Diagnostics' request, the parties
shall negotiate in good faith to define the terms of such
agreement.
3. Limitation to Actual Damages/Indemnification. Unless
otherwise specifically provided herein, in no event shall either
party be liable to the other for lost profits, consequential,
exemplary, special, indirect, incidental, or punitive damages,
howsoever arising from its performance hereunder and any permitted
liability, regardless of the form or forum, shall not exceed the
limits of insurance coverage contained in Exhibit H. MedPlus and
Quest Diagnostics shall each indemnify, defend and save the other
harmless from and against any and all losses, claims, suits,
damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees) based upon, arising out of or
attributable to any acts or omissions arising from such party's
performance hereunder or otherwise related to this Agreement.
This provision shall survive termination of this Agreement.
4. Insurance. MedPlus agrees to maintain general and
professional liability insurance in the amount of its policy
coverage, which is $15,000,000 per occurrence and $16,000,000 and
$17,000,000, respectively, to cover the acts and omissions of its
employees, agents and representatives for services rendered
pursuant to this Agreement.
Attached hereto, as Exhibit H, is a current and valid Certificate
of Insurance relating to the extent of general and professional
liability coverage and naming Quest Diagnostics as an additional
insured. MedPlus agrees to keep and to maintain said insurance
coverage in full force and effect during the Term of this
Agreement. Any modification or alteration in such coverage, by
MedPlus, which shall have a material effect on this Section shall
be promptly communicated to Quest Diagnostics.
Both parties agree to re-review the scope of MedPlus' insurance
coverage one year after the Effective Date of this Agreement, and
each year thereafter, in order to determine whether the
Transaction level warrants an increase in the amount of such
coverage. In the event that the insurance coverage levels are
increased by MedPlus at any time during the Term of this
Agreement, the indemnification caps contained in Section G3 hereto
shall be increased, accordingly.
5. Compliance With Laws. Each party accepts full responsibility
for, and will comply with all Applicable Law(s) and industry
practices in connection with their respective rights and
obligations under this Agreement.
(a) In furtherance and not in limitation of the foregoing,
Quest Diagnostics and MedPlus will, from time to time, agree upon
certain principles, activities, agreements, standard operating
procedures and/or actions (the "SOPs") that one or both parties,
as applicable, will follow or undertake to help Quest Diagnostics
and/or MedPlus assure its compliance with Applicable Laws and each
party will follow any such SOPs applicable to it in the course of
conducting its respective business.
(b) MedPlus represents and warrants that in the event that
an issue arises, in Quest Diagnostics' reasonable judgment, with
respect to compliance with this Section, MedPlus will promptly
address such issue and take action to remedy any such issue to the
reasonable satisfaction of Quest Diagnostics.
(c) Each party agrees that it will notify the other party
of any proposed changes in the notifying party's business
practices with respect to electronic data interchange or the
provision of network services, as the case may be, that are likely
to affect either party or any Provider a reasonable period prior
to the proposed implementation of such change or changes and will
provide the other party with a reasonable opportunity to review
those proposed changes for compliance with this Section prior to
implementation. If either party objects to any such proposed
changes based on an issue relating to this Section, both parties
will work together in good faith to attempt to reach a mutually
satisfactory resolution of those issues before such change or
changes are implemented.
(d) To the extent reasonably necessary to permit Quest
Diagnostics to comply with the Applicable Laws described in this
Section, Quest Diagnostics shall have Audit Rights (as defined in
Section G6(d)) exercisable from time to time in Quest Diagnostics'
discretion, but not more often than once every calendar year, with
respect to all of MedPlus' records, books, and other materials
that relate to any compliance issues covered by this Section in
order for Quest Diagnostics to determine MedPlus' fulfillment of
its obligations hereunder or under any separately agreed upon
SOPs. When MedPlus enters into agreements with Providers, MedPlus
will use commercially reasonable efforts to secure the right for
MedPlus and for Quest Diagnostics to audit such Provider's books
and records, and other materials and/or to inspect the Provider's
premises to assure that any compliance requirements established
with such Provider are being satisfied, and, upon request from
Quest Diagnostics, MedPlus will permit Quest Diagnostics to
exercise such rights.
(e) Effect of Regulatory Changes. In the event
any Applicable Law or any Medicare and/or Medicaid payment
policies, or any rules or policies of any third-party payor at any
time during the term of this Agreement is modified, implemented,
threatened to be implemented, or determined by the parties to
prohibit, restrict or in any way have a materially adverse effect
on the ability of either party to engage in any commercial
activity on terms at least as favorable to that party as those
reasonably attributable as of the date hereof by virtue of the
existence of this Agreement (collectively "Regulatory Changes" and
individually a "Regulatory Change"), then the parties to this
Agreement shall negotiate in good faith to amend this Agreement to
address any issues raised by such Regulatory Changes. If the
parties cannot agree on an amendment to this Agreement to address
such Regulatory Change(s), and one party will be at risk of
substantial damage to its overall business as a result of the
impact of such Regulatory Changes on its obligations hereunder,
then that party may terminate this Agreement upon ninety (90) days
written notice to the other party hereto.
6. Records and Audit Rights.
(a) MedPlus shall maintain accurate and complete records
of all of the following (collectively "Records"): (i) All
transmissions and Transactions between Providers and Quest
Diagnostics; (ii) licenses under this Agreement; (iii) all other
deliverables under this Agreement; (iv) all of the monies charged
by MedPlus to Quest Diagnostics, Providers and others under this
Agreement, including those applicable to the Most Favored Nation
Pricing contained in Section E4 herein; (v) all records and
documents relating to the Internet service provider; and (vi) all
design documents, source code, flow charts and other technical
documentation for the ChartMaxx System, and all other deliverables
under this Agreement. All Records shall be considered
Confidential Information (as defined herein).
(b) MedPlus shall maintain all records in accordance with
both accepted information storage practices and record retention
periods in the clinical laboratories industry and in compliance
with Applicable Laws, but in no event for less than six (6) years
or such longer period as may be required by Applicable Laws or
Quest Diagnostics policies as may be adopted from time to time.
(c) In accordance with written guidelines and instructions
provided from time to time to MedPlus by Quest Diagnostics, and in
accordance with prudent business practice, MedPlus shall maintain
the Records with a system of audit trails and controls sufficient
to allow Quest Diagnostics to audit such Records under this
Agreement and to assure satisfaction of any requirements imposed
on Quest Diagnostics by Quest Diagnostics' external auditors, as
well as by government officials enforcing Applicable Laws as to
both Quest Diagnostics and MedPlus.
(d) "Audit Rights" means the rights of Quest Diagnostics
and its representatives to examine the Records of MedPlus that
relate to the subject matter of this Agreement, including without
limitation the right to:
(1) examine MedPlus' Records, including without limitations
all books and systems of account, records,
reports, technical documentation, and other papers, except to the
extent that such action would, in the reasonable opinion of
MedPlus' counsel, constitute a waiver of the attorney-client
privilege or if such Records constitute work-product; and
(2) make copies and take extracts from any thereof; and
(3) to the extent reasonably necessary, and upon prior
written notice to MedPlus, discuss the affairs, finances and
accounts of MedPlus with MedPlus' officers and independent
certified public accountants (and by this provision MedPlus hereby
authorizes its certified public accountants to discuss with Quest
Diagnostics auditor and its representatives, the finances and
accounts of MedPlus as part of any audit relevant to this
Agreement); and
(4) visit MedPlus' premises and inspect MedPlus' Records,
at reasonable times and on reasonable notice,
during normal business hours; and
(5) in addition to the grant of Audit Rights pursuant to
this Agreement, Quest Diagnostics shall have the
right to have any of its agents or employees to audit, in
accordance with the Audit Rights, the Records of MedPlus relating
to such Transactions, Software, Basic Support services and other
deliverables under this Agreement to examine or determine the
proper amounts which should have been billed, the amounts that
were billed, and the amounts paid under this Agreement, by Quest
Diagnostics, Providers or others.
(e) In any exercise of Audit Rights hereunder, including
without limitation pursuant to the compliance provisions Quest
Diagnostics shall give MedPlus fourteen (14) calendar days' prior
notice of any such audit, and shall abide by reasonable MedPlus
security and confidentiality procedures during the audit. MedPlus
and Quest Diagnostics agree that any security and confidentiality
procedures, which unduly burden, delay or interfere with Quest
Diagnostics' Audit Rights, shall be deemed to be unreasonable for
the purposes of this Agreement. MedPlus agrees to make a good
faith attempt to obtain access to any third party's books and
records that are directly pertinent to MedPlus' performance under
this Agreement and that are subject to confidentiality between
MedPlus and such third parties. Quest Diagnostics and MedPlus
shall each bear their own costs associated with such audit. If
the audit reveals an overpayment by Quest Diagnostics to MedPlus,
MedPlus shall promptly refund such overpayment to Quest
Diagnostics. If the audit reveals an underpayment by Quest
Diagnostics, Quest Diagnostics shall promptly pay to MedPlus the
amount of such underpayment.
7. Assignment/Delegation/Subcontracting. This Agreement is not
assignable or otherwise transferable in whole or in part (by
operation of law or otherwise) by either party without the prior
written consent of the other party hereto, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the
foregoing, Quest Diagnostics shall be entitled to assign this
Agreement and its rights hereunder to a Quest Diagnostics
Affiliate upon notice to MedPlus. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the
parties and their permitted successors and assigns. Each party
reserves the right to terminate this Agreement after a change in
the direct or indirect controlling interest of the other party, if
the controlling interest is held by a competitor of the non-
assigning party, or if, in the non-assigning party's reasonable
discretion, the change adversely affects the non-assigning party's
rights, goodwill, client relationships, proprietary information or
competitive position in a material respect. In the event that
MedPlus merges with, acquires, or is acquired by another company
with which Quest Diagnostics has an agreement for products and/or
services similar to those provided hereunder, Quest Diagnostics at
its discretion shall have the option of choosing to continue the
terms and conditions of this Agreement for the benefit of all
Providers under this Agreement. With respect to any permitted
assignment or other permitted transfer, the parties agree that
they shall otherwise remain bound to the terms and conditions of
this Agreement, and any assignor or transferee shall remain bound
by all the terms and conditions of this Agreement, including,
without limitation, the confidentiality, compliance with laws and
patient data provisions of this Agreement. Any attempted
assignment or other transfer not in compliance with the terms of
this Section shall be void and shall be deemed a material breach
of this Agreement. In addition, except as provided on Exhibit I,
MedPlus may not delegate or otherwise subcontract any of its
material obligations hereunder without the prior written consent
of Quest Diagnostics, which consent may not be unreasonably
withheld. Notwithstanding anything herein to the contrary, in the
event that there shall be a permitted assignment, delegation or
subcontract pursuant to the terms of this Agreement, unless all of
a party's obligations hereunder are assigned in accordance
herewith, the original party to this Agreement shall remain
primarily liable under the terms of this Agreement. The parties
expressly agree that MedPlus may continue in the ordinary course
of its business to subcontract certain software development
projects related to the ChartMaxx System.
8. Amendment. No waiver, alteration or modification of any of
the provisions of this Agreement shall be binding unless in
writing and signed by a duly authorized representative of the
party to be bound thereby.
9. Notices. All notices will have been properly given hereunder
when delivered in person or mailed via certified mail, return
receipt requested, or via nationally recognized overnight courier
to the addresses indicated in the first paragraph hereof. Notices
shall be sent to the following addresses:
If to Quest Diagnostics: Quest Diagnostics Incorporated
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Attn: President, Quest
Diagnostics Ventures
Attn: Chief Information Officer
with a copy to: Quest Diagnostics Incorporated
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▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to MedPlus: MedPlus, Inc.
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▇▇▇. ▇▇▇
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Attn: General Counsel
10. Corporate Authority/Resources. Each of the parties
hereby warrants and represents that it has full corporate power
and authority to enter into this Agreement without the consent of
any other person, organization or other entity and that this
Agreement represents the valid and binding agreement of such party
enforceable in accordance with its terms as executed by the party
signing below on its behalf.
11. Severability. The invalidity in whole or in part of
any provision of this Agreement shall not affect the validity of
any other provision. In the event that a court of competent
jurisdiction determines that any part or provision of this
Agreement is unlawful or unenforceable, then such part or
provision shall be revised as appropriate to make it lawful and
enforceable.
12. Survival. Notwithstanding any termination or expiration
of this Agreement, the provisions of this Agreement, which by
their nature or context are intended or required to survive such
expiration or termination, shall survive and remain in full force
and effect in accordance with their terms.
13. Choice of Law. The rights and obligations of the
parties hereto shall be construed under and be governed in all
respects by the internal laws of the State of Ohio excluding any
provisions of law governing conflicts of law.
14. Entire Agreement. This Agreement, along with all
Exhibits and addenda hereto, contains the entire agreement between
the parties with respect to the subject matter hereof. All
previous and collateral agreements, representations, warranties
and promises regarding the subject matter hereof are superseded by
this Agreement. Any representation, promise or condition not
incorporated in this Agreement shall not be binding on either
party.
15. Uncontrollable Circumstances. If the performance of
any part of this Agreement by MedPlus or Quest Diagnostics is
prevented or delayed by acts of civil or military authority,
flood, fire, epidemic, war or riot, or other acts beyond the
reasonable control of either party, the party affected shall be
excused from such performance only during the continuance of any
such event. Breach of the Y2K Compliance Warranty by MedPlus
shall not be considered a force majeure.
16. Independent Contractor. It is understood that
MedPlus' and its agents' services hereunder are to be rendered in
the capacity of an independent contractor of Quest Diagnostics,
and that neither MedPlus nor its agents are in any respect or
under any circumstances employees of Quest Diagnostics. Neither
party has authority to enter into contracts or assume any
obligations for or on behalf of the other party or to make any
warranties or representations for or on behalf of the other party.
17. Disclosure of Customer Status/Public Representations.
During the License Term and thereafter, MedPlus shall not
represent itself to be owned or controlled by Quest Diagnostics or
as authorized to represent Quest Diagnostics or to obligate Quest
Diagnostics with respect to any matters not expressly provided
herein. MedPlus may represent to the general public or to any
person that it is an independent contractor affiliated with Quest
Diagnostics, and shall do so if reasonably necessary to clarify
any misunderstanding by the general public of the relationship of
the parties. However, neither party, its employees, agents and/or
representatives shall originate any publicity, news release, or
other public announcement, whether written or oral, relating to
the terms to performance hereof, without the prior written
approval of the other party hereto. Additionally, neither party
shall use the name, trademarks, service marks or logos of the
other party, without the prior written consent of such party.
Notwithstanding anything herein to the contrary, Quest Diagnostics
agrees to use its best efforts to work with MedPlus within two
weeks following the effective date to approve a press release
regarding the general nature of this Agreement, and that at any
time MedPlus may disclose to third parties the fact that Quest
Diagnostics is a client or customer of MedPlus.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed as of the Effective Date.
QUEST DIAGNOSTICS INCORPORATED MEDPLUS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. Present II
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. Present II
Title: President Ventures Title: Chief Operating Officer