MASTER SERVICES AGREEMENT
BETWEEN
CLIENT
AND
METALOGICS, INC.
________, 1998
CONSULTING AGREEMENT
BETWEEN
CLIENT
AND
METALOGICS, INC.
THIS AGREEMENT is made as this _______ day of ______, 1998, by and among
Metalogics, Inc., a for profit corporation incorporated under the laws of the
State of Delaware with its principal office at Riverview Historical Plaza ▇▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (referred to hereafter as "Metalogics" or
Consultant") and Client a not-for-profit corporation incorporated under the laws
of the State of ______________, with an office at _____________
_______________________________________________________________________________
THEREFORE, in consideration of the promises and covenants contained in
this Agreement, and for good and valuable consideration, Client and Consultant,
intending to be legally bound, agree as follows:
1. DEFINITIONS
1.1. Affiliate(s). For purposes of this Agreement, the term(s)
"Affiliate(s)" shall mean any entity controlling, controlled by (directly or
indirectly) or under common control with Client, whether by means of shares,
limited liability interests, or memberships interests which are owned or held,
including, but not limited to, any not-for-profit entity of which Client is the
sole, direct or indirect, voting member or shareholder, and any professional
entity the majority equity, membership or voting interest of which is owned,
directly or indirectly, by physicians or other health care professionals who are
employees of Client or another Affiliate by virtue of their employment status.
1.2. Component. For purposes of this Agreement, the term "Component"
shall mean any part of any information system, biomedical or computer equipment,
or embedded device which Consultant modifies, enhances, or replaces in
connection with the Services provided hereunder.
1.3. Confidential Information. For purposes of this Agreement,
"Confidential Information" shall mean (i) either party's product plans, designs,
costs, prices and names, non-published financial information, marketing plans,
business opportunities, clients, suppliers, personnel, inventions, past, present
and future research and development, intellectual property, know-how, trade
secrets, or any other proprietary information; (ii) any information designated
by the disclosing party as confidential in writing or, if disclosed orally,
designated as confidential at the time of disclosure and reduced to writing and
designated as confidential in writing within thirty (30) days; and (iii) the
terms and conditions of this Agreement; provided, however that "Confidential
Information" will not include information that: (a) is or becomes generally
known or available by publication, commercial use or otherwise through no fault
of the receiving party; (b) is known and has been reduced to tangible form by
the receiving party at the time of disclosure and is not subject to restriction;
(c) is independently developed by the receiving party without use of the
disclosing party's Confidential Information; (d) is lawfully obtained from a
third party who has the right to make such disclosure; (e) is released for
publication by the disclosing party in writing; or (f) is required to be
disclosed pursuant to law or court order. Client acknowledges that Consultant's
Confidential Information includes the pricing and terms of this Agreement,
Consultant's physical security system, access control system and documentation
manuals. Consultant specifically acknowledges that Client Confidential
Information includes all information identifying any of the patients and
residents of, or the care rendered thereto by, Client and any of its Affiliates,
and that Consultant and the Consultant Personnel (as defined in Section ___
hereof) shall hold all such information strictly confidential.
1.4. Consultant Personnel. For purposes of this Agreement, the term
"Consultant Personnel" shall mean all employees, agents, independent
contractors, and subcontractors of Metalogics.
1.5. Designated Affiliates. For purposes of this Agreement, the term
"Designated Affiliate" shall mean any Affiliate which desires to obtain the
Services (as defined in Section ___ hereof) under this Agreement. A list of
Designated Affiliates, as of the date of this Agreement, which list is subject
to modification by Client during the term of this Agreement, is attached hereto
as Exhibit ___. Client may, from time to time, add additional Affiliates to the
scope of this Agreement, any increased costs attributable thereto shall be
discussed and negotiated by the parties at the time that the additional
Affiliate is designated but shall in no event be greater than the per-bed costs
set forth in the Proposal.
1.6. Proposal. For purposes of this Agreement, the term "Proposal" shall
mean the document prepared by Metalogics, entitled "Proposal to Client for a
Year 2000 Compliance Inventory, Assessment, Remediation Planning, and
Remediation", dated [__________], and attached hereto at Exhibit __.
1.7. Technology. For purposes of this Agreement, "Technology" shall mean
the information systems (including hardware, software, interfaces, and
networks), computers, biomedical equipment and other equipment (including, but
not limited to, all biomedical and other equipment which contains embedded
computer chips) owned, leased or licensed by Client and the Designated
Affiliates.
1.8. Work Product. For purposes of this Agreement, "Work Product" shall
mean the result(s) of all Services performed hereunder, including without
limitation, the inventory of the Technology, the "PRA" as described in the
Proposal, the development, modification, and remediation of the Technology; any
Components developed in connection with the Services; all documentation
developed as a deliverable in connection with the performance of the Services;
results of inventory or analysis performed by Consultant, including without
limitation comparison with any proprietary database of Consultant; any
deliverables prepared pursuant to this Agreement (whether or not such
deliverables are completed); and all modifications, revisions, copies, partial
copies, translations, and derivative works thereof.
1.9. Year 2000 Compliant. For purposes of this Agreement, "Year 2000
Compliant" shall mean that the Technology is capable of storing, retrieving,
interfacing, manipulating and processing completely and accurately dates, times
and all data related thereto or affected thereby independent of the century
year, or any leap year regardless of the format or separators used to express
such dates and regardless of whether such dates are read from an internal clock
of the Technology or entered by a user or otherwise. The parties agree that the
preferred method of achieving Year 2000 Compliance shall be compliance with
DICOM 3.0 and ISO 8601 standards and the HL7 interface standards (i.e., the
Technology shall use four digit annual date codes).
1.10. Probability Risk Assessment (PRA). For purposes of this Agreement,
"Probability Risk Assessment (PRA)" shall mean a process used to determine
acceptable levels of risk that identifies the probability and consequence of
failure. This process is used to develop remediation strategies that are
mutually agreeable between Metalogics and Client.
1.11. Remediation. For purposes of this Agreement, "Remediation" shall
mean the mutually agreed to, prioritized actions taken in response to issues
identified as a result of the Probability Risk Assessment. These actions
include: Upgrade (of existing hardware/software), Replacement (with a compliant
product), Conversion (for software), or replacement of chips (for firmware),
replace the system with manual procedures, or develop a coexistence plan to
tolerate the errors and correct them as necessary (mitigation).
1.12. Failure Modes Effects Analysis (FMEA). For purposes of this
Agreement, "Failure Modes Effects Analysis (FMEA)" shall mean an engineering
process used to determine the kinds of ways that a system can fail, and the
possible effects of each type of failure.
1.13. Data Structure Audit. For purposes of this Agreement, "Data
Structure Audit" shall mean an engineering review of the source data structure,
(data types, and field widths) to determine if the date structure is Y2K
compliant.
1.14. Millennium Database. For purposes of this Agreement, "Millennium
Database" shall mean a Metalogics, Inc. database that contains configuration
data and Y2K status information relative to software, hardware, biomedical
devices, and embedded devices.
2. SERVICES AND SCOPE OF WORK
2.1. Consulting and Remediation Services. Consultant agrees to provide
to Client, and the Designated Affiliates (as Client may designate from time to
time) consulting, testing, remediation, and related services to render the
Technology Year 2000 Compliant including, but not limited to, a complete
inventory, assessment as to the current Year 2000 compliance of the Technology,
and remediation of any noncompliant Technology identified in a list prepared in
accordance with this Agreement and amended by the parties from time to time, as
well as unit and integrated testing of any Technology for Year 2000 Compliance,
all as more fully set forth below in this Master Services Agreement ("MSA"), the
Exhibits hereto and on such schedules as are executed from time to time by all
parties and attached hereto (the "Schedules") (such services, collectively, the
"Services").
2.2. Schedules. All Services will be performed, and all Work Product
delivered, in accordance with the applicable Schedule(s). Each Schedule shall
contain a Statement of Scope of Work in substantially the format set forth as
Exhibit ___ hereto (the "Statement"). (This MSA, the Exhibits attached hereto,
and all Schedules are referred to collectively as the "Agreement".) If there is
any inconsistency between this MSA and any Exhibit or Schedule, this MSA shall
control.
2.3. Access and Cooperation. Client warrants that it will provide during
regular business hours, or as may otherwise be reasonably required, to
Consultant (a) access to office accommodations, facilities, equipment, and
relevant computer programs (collectively "Access"), and (b) assistance,
cooperation, complete and accurate information and data from its officers,
agents and employees (collectively "Cooperation"). Client agrees that such
Access and Cooperation are essential to performance of any services by
Consultant and that Consultant shall not be held liable for any deficiency in
performing services if such deficiency results from Client failure to provide
full Access and Cooperation.
2.4. Timely Performance. Consultant shall perform the Services according
to the timetable set forth in Exhibit ___ [or in a revised draft of the
Proposal] or in the applicable Schedule. The parties agree that it is their
mutual intention to render the Technology Year 2000 Compliant as soon as
possible, with priority given to that Technology which Client identifies as
being critical by January 1, 1999, and to devote such resources as are necessary
to reasonably achieve that timetable. Consultant acknowledges that Client's
ability to anticipate and resolve problems in a timely manner is crucial to
successful Year 2000 compliance and remediation and agrees to notify Client
promptly if, at any time, Consultant becomes aware that it may not be able to
meet any milestone or time requirement described in this Agreement, in a
Schedule or otherwise identified by the parties, on time or that additional
resources of Client are required to meet a particular milestone. At such time,
Consultant shall advise Client of the reason for the delay, the estimated delay
involved, and any additional Client resources needed to achieve the milestone.
Consultant shall use best efforts to rectify any slippage in the applicable
timetable which are not solely due to the fault of Client or an Affiliate. In
the event of slippage in the timetable as a result of shared fault, the parties
shall use their best efforts to jointly rectify the problem. Such efforts by
Consultant shall include (without limitation) making additional Consultant
Personnel available and/or the Consultant Personnel available outside of normal
business hours at daily rates no greater than those set forth in the Schedule.
Consultant agrees to cause the Consultant Personnel to participate in periodic
meetings to assess the status of the Services, their completion, and the ability
to achieve the milestones contained in the applicable Exhibits and Schedules.
2.5. Preparation of Inventory. Promptly following execution of this
Agreement Client will provide Consultant with a copy of the information system
inventory which Client has gathered detailing the Year 2000 compliance status of
certain of the information system Technology for certain of the Client's
Affiliates. Consultant will promptly continue and complete a full inventory of
all of the Technology requiring correction, mitigation, or remediation in order
to render the Technology Year 2000 Compliant. In addition, Consultant shall
prepare a detailed work plan which will list all activities needed to prioritize
and remediate the Year 2000 problem with regard to the Technology and all data
transmitted, stored, or manipulated by means of the Technology. Such work plan
will be attached hereto as Schedule ___.
2.6. Prioritization of Tasks. Consultant acknowledges that Client has
advised Consultant that Client has only limited resources to assign to Year 2000
compliance review and remediation. In identifying those activities which the
parties deem to be of critical importance (using the PRA and FMEA methodology
described in the Proposal), they shall take into account the safety impact any
failure to make an item of Technology Year 2000 compliant may have on the
patients and staff of Client and its Affiliates. Notwithstanding any other
provision of this Agreement, Client shall have the right to determine, in its
sole discretion, the priority to be assigned to the analysis and/or remediation
of any item of Technology or Component thereof.
2.7. Change Control Procedure. From time to time during the performance
of the Services, Client [or a Designated Affiliate] may request in writing
adjustments to the scope of the Services. To the extent that such adjustments
can, in the reasonable business judgment of Consultant, be performed without an
increase in resources or fees, there will be no additional fees payable by
Client. Should the adjustments made by Client alter the scope of Services as
agreed to by both parties such that the Consultant determines, in the exercise
of its reasonable business judgment, the adjustments require an increase in
resources, the parties shall negotiate and agree to an appropriate adjustment in
the total compensation payable to the Consultant under the Agreement. The
parties agree that such compensation shall be at least as low as the most
favored rate that Consultant makes available to any other customer.
3. ACCEPTANCE TESTING PROCEDURE
3.1. Acceptance by Client. All Services, Work Product, and Components
will be subject to Client's review and acceptance, as determined by the criteria
set forth in the applicable Schedule(s). Client shall have the right to inspect
the work-in-progress from time to time and upon request Consultant shall provide
Client with written status reports regarding the Work.
3.2. Testing Equipment. ___________ shall make available resources at
____________ New Jersey facilities for the unit and integrated testing of the
Technology, as generally described in the Proposal and particularly described in
a Schedule, at no costs other than those set forth in the Proposal and any
applicable Schedule. In order to assure the accuracy of such testing with
respect to any particular item of Technology or Component thereof, __________
will replicate the Client's configuration and environment applicable to such
Technology. In the event that Client requires equipment or facilities outside
Client's or its Affiliates' premises for testing any Technology pursuant to this
Agreement, ___________ shall make its facilities and equipment available to
Client and Consultant for such testing. In the event that Client needs to obtain
additional equipment at one of its sites, either for testing of certain of its
Technology or to perform the function of the Technology while the Year 2000
issues relating to such Technology are either being tested or remediated,
___________ will make available to Client the appropriate equipment for such
function at the fees set forth in the Proposal and any applicable Schedule. Any
costs related thereto shall be billed to the entity identified in the applicable
Schedule.
3.3. Test Schedule. Within ___ days of the date of this Agreement;
Consultant shall deliver to Client a test schedule designed to identify when
such unit and integrated testing of the Technology shall occur in order to meet
the time frames identified by the parties. ____________ guarantees that it shall
make available to Client testing resources (including equipment and staff)
necessary to perform the testing identified in the Schedule at the identified
times.
3.4. Acceptance Criteria. The acceptance criteria for the relevant
remediated Year 2000 Compliant Technology ("Acceptance Criteria") shall be
included in each Schedule and shall demonstrate to Client's (or the
applicable Designated Affiliate's) sole reasonable satisfaction that, with
respect to such remediated Technology: (1) all of the functions of the
remediated Technology set forth in the applicable Schedule have been provided
and the remediated Technology is Year 2000 Compliant; (2) all performance
standards for the remediated Technology set forth in the applicable Schedule
have been met or exceeded; and (3) volume and capacity testing for the
remediated Technology meets or exceeds the requirements of _____________ or the
applicable Designated Affiliate.
3.5. Failure to Meet Acceptance Criteria. If any remediated Technology
failure to meet the Acceptance Criteria within the time set forth in the
applicable Schedule, Client shall give Consultant written notice thereof.
Consultant shall cooperate with Client in identifying the deficiency, and shall
correct such deficiency at no additional cost to Client unless such deficiency
was caused solely by Client's act or omission. Upon completion of the corrective
action by Consultant, the acceptance test will be repeated until the remediated
Technology successfully meets the relevant Acceptance Criteria.
3.6. Final Acceptance. When the remediated Technology has successfully
satisfied the Acceptance Criteria, Client shall give Consultant written notice
thereof. At the completion of acceptance testing, the remediated Technology
shall operate in a production environment for a period of at least ninety (90)
days in full compliance with the Acceptance Criteria. Acknowledgment by Client
of the successful completion of such ninety (90) day period shall be deemed
"Final Acceptance" of that portion of the remediated Technology.
4. COMPENSATION AND PAYMENT
4.1. Invoices. Consultant shall perform the Services described in the
Schedules, and be compensated for the Services in accordance with the Schedules.
All invoices provided by Consultant shall be submitted according to the
following:
(a) Each Schedule shall have a designated total fee (the "Schedule
Fee"). The Schedule Fee will be reduced by ten percent (such percentage to be
known as the "Holdback") and divided by the number of months that it takes to
complete the Services described in the Schedule. The resulting figure will be
known as the "Monthly Fee". Consultant will invoice Client or the Affiliate
designated in the Schedule, for the preceding month's Monthly Fee on the __ day
of each month. The final 10% Holdback will be invoiced at the completion and
Client's Final Acceptance of the remediated Technology described in the
Schedule.
(b) The first Monthly Fee for the first Schedule will be invoiced
simultaneously with the execution of this Agreement; and the first Monthly Fee
for each subsequent Schedule will be invoiced simultaneously with the execution
of such Schedule.
(c) All invoices other than the initial invoice (which is due upon
execution of this Agreement) will be due within forty-five days of Client's
receipt of the invoice. All expenses will be invoiced in the month after they
are incurred and will be supported by appropriate documentation. Upon request of
Client, Consultant shall provide supporting documentation of any other item with
respect to any invoice submitted to Client.
4.2. Right to Withhold Payment. In the event that Consultant fails to
meet any milestone set forth in a Schedule for a month, or fails to meet any
milestone designated by Client in that Schedule as a critical milestone, and
such failure by Consultant is due to circumstances within the control of
Consultant or the Consultant Personnel, Client may withhold payment for that
invoice until such milestone is met. The remedies of Client under this Section
___ shall be in addition to, and not in lieu of, any other remedies available to
it under this Agreement.
4.3 Billing Address. Unless otherwise specified in a Schedule,
Consultant will send all invoices to: [CLIENT ADDRESS]
5. RESOURCES
5.1. Consultant Personnel. Consultant shall assign to Client sufficient
experienced and qualified personnel to provide the Services described in this
Agreement. Consultant represents that the Consultant Personnel assigned to
perform any Services under this Agreement shall have the proper skill, training
and background so as to be able to perform their assignments and
responsibilities in a timely, competent and professional manner.
Client may designate as Key Consultant Personnel the Consultant
Personnel listed on Schedule __ to this MSA and in any other Schedule mutually
agreed upon by the parties with regard to any of the Services. Each of the Key
Consultant Personnel shall be dedicated to the Services for which he or she has
been designated in the applicable Schedule. If reassignment or replacement of
any Key Consultant Personnel would materially disrupt the performance of the
Services, Consultant shall not reassign or replace such Key Consultant Personnel
until the completion of the Services to which Key Consultant Personnel is
assigned. Should any Key Consultant Person leave the employ of, or otherwise
become unavailable, Metalogics shall, in consultation with Client, replace such
person.
5.2. Compliance with Client Policies. Consultant shall cause all
Consultant Personnel who are present on the premises of Client or any of its
Affiliates to adhere to all security, confidentiality and other policies of the
relevant entity. Client may at any time remove any of Consultant's personnel
from the premises of Client or any of its Affiliates upon Client's determination
that such personnel may have violated any such policy or obligation imposed
thereunder (i.e., confidentiality) or that such person(s) may in any way pose a
threat of disruption to the patients, visitors, employees of Client or any of
its Affiliates or to any Technology or other equipment utilized by Client or its
Affiliates in the operation of their business. If Client so removes any of
Consultant's personnel from its premises or the project, Client shall promptly
advise Consultant and inform Consultant of the basis of such action.
5.3. Equipment and Facilities. At the request of Client, and as
provided below and in the Proposal, Consultant will provide and make available
to Client all equipment needed to conduct any unit or integrated testing,
at a cost no greater than the charges set forth in the Proposal. Such equipment
shall include, without limitation, computer hardware and software and
telecommunications and networking equipment.
5.4. Subcontractors. Consultant may not subcontract any Services to be
performed hereunder without the express prior written consent of Client in each
instance. Any permitted subcontract shall include (1) a representation that all
subcontractor personnel are employees of such subcontractor for tax purposes;
(2) the right for Consultant to terminate such subcontract upon request by
Client if any deficiency in such subcontractor's performance is not corrected to
the reasonable satisfaction of Client within 30 days of notice thereof; (3) a
provision requiring such subcontractor to protect the Confidential Information
(as defined in Section ___ hereof) of Client in the manner set forth in Section
___ hereof; (4) assignment of all rights in any work product, deliverables,
software, documentation, or other materials provided by such subcontractor, in
accordance with Section ___ hereof; and (5) any other terms specified by Client.
Consultant shall be solely responsible for all payments to its or their
subcontractors. Any subcontractor's performance or failure to perform hereunder
shall not release Consultant from its obligations under this Agreement, and
Consultant shall remain fully responsible for obligations performed by any
subcontractor to the same extent as if such obligations were performed by
Consultant.
6. OWNERSHIP
6.1. Improvement and Modifications. Except as may be otherwise provided
herein or in any particular Schedule(s), all Work Product produced or developed
by Consultant under this Agreement, shall be and remain the sole and exclusive
property of Client or the applicable Affiliate. Subject to the provisions
hereof, all applicable intellectual property rights, including without
limitation copyrights, shall vest in Client, and neither Consultant nor any
Consultant Personnel shall have any proprietary interest in the Work Product.
Upon the written request of Client, Consultant shall provide to Client all
copies of the Work Product. Client shall have the right to register the Work
Product and any portion thereof in its own name under the copyright law of any
jurisdiction, and Consultant shall perform, and cause all Consultant Personnel
to perform, all acts necessary to assist Client in connection with such
registration. All processes, methodologies, technologies or algorithms
(collectively "Processes") used by Consultant in implementing improvements and
modifications to Client's software, including any improvements and modifications
to the Processes used by Consultant developed under this Agreement, shall be the
exclusive property of Consultant. Upon request of Client, or termination of this
Agreement for any reason whatsoever, Consultant shall provide Client with all
reports prepared though the date of termination.
6.2. Consultant Tools: Consultant Software: Consultant hereby grants to
Client and the Affiliates a non-exclusive, transferable subject to the
provisions of paragraph 14.1 hereof, royalty-free, irrevocable, perpetual
license to use, modify, and maintain (i) any software development tools,
know-how, methodologies, processes, technologies, or algorithms used by
Consultant in developing the Work Product or Components or otherwise performing
the Services hereunder ("Consultant Tools"), and (ii) any proprietary software
programs or other software code owned by Consultant and incorporated into any
Components or Work Product or otherwise used in performing the Services
hereunder (the "Consultant Software"), in the form in which such Consultant Tool
or Consultant Software is provided to Client. A preliminary list of Consultant
Software is attached as Exhibit ___.
6.3. Third Party Intellectual Property. If Consultant believes that it
is necessary or desirable to incorporate any work embodying the intellectual
property of a third party ("Third Party Intellectual Property") in the Services,
Consultant will advise Client of the need or desirability of incorporating such
Third Party Intellectual Property in the Services and, except as may be
otherwise provided in the applicable Schedule, shall obtain all appropriate
consents. Unless otherwise provided by Client, Consultant shall procure on
behalf of Client and any Designated Affiliate a non-exclusive, fully assignable
and transferable, royalty-free, irrevocable, perpetual license to use, modify,
and maintain such Third Party Intellectual Property.
6.4. Consistency with Other Provisions. Nothing herein shall alter the
Parties obligations under Section 13 of the Agreement.
7. INDEPENDENT CONTRACTOR STATUS
It is expressly agreed and understood that Consultant, including all Consultant
Personnel, will perform services under this Agreement as an independent
contractor for Client and the Designated Affiliates, and neither Consultant nor
any Consultant Personnel is or will be an employee or agent of Client or any
Affiliate. All liability to the persons actually providing services under this
Agreement or related to the providing of such services, including but not
limited to, payment of wages or other compensation, withholding of taxes and
similar charges related to such wages or other compensation, and worker's
compensation, shall be the sole responsibility of Consultant, and Consultant
shall indemnify, defend and hold harmless Client and its Affiliates (together
with their directors, officers and employees) from and against any and all
claims relating thereto.
8. TERM AND PERIOD OF PERFORMANCE
This Agreement shall commence on the date as indicated on the first Schedule
attached to this Agreement and, unless terminated earlier pursuant to Section __
below, shall continue in full force and effect thereafter until satisfactory
completion of the Services provided for in this Agreement and in all Schedules
is achieved, based on the Acceptance Criteria set forth in attached Schedules.
9. TERMINATION
9.1. Termination Events. Either party may, by written notice as set
forth below, terminate this Agreement without further obligation due to a
material default by the other party. Any default(s) will be stated in the notice
of termination. The notified party will have thirty (30) days from receipt of
the written notice of Termination to remedy the specific default(s). Failure to
cure the default(s) within this time period will give cause for immediate
termination. Upon the occurrence of a Client default, Client will
be liable for all bona fide undisputed amounts due as of the date of
termination, and the same will become immediately due and payable. Consultant
specifically disclaims any right to terminate this Agreement for any reason
other than cause or mutual agreement by the parties.
9.2. Actions Upon Termination. Upon receipt of a notice of termination
or as otherwise requested by Client, Consultant shall (1) transfer title to all
finished and unfinished Work Product produced in connection with the Services,
and deliver such Work Product to Client and/or any Designated Affiliate(s); (2)
return all copies of Confidential Information of Client or the Affiliates. In
the event of a material default by Client resulting in the termination of this
Agreement, Client shall return to Consultant the Consultant Software together
with all copies thereof.
10. WARRANTIES
10.1. Warranties by Consultant. Consultant represents, warrants and
agrees that
(a) it has the right to enter into this Agreement, and that there is no
agreement or restriction which would interfere with or prevent Consultant from
entering into this Agreement or rendering the Services or performing the other
obligations contemplated hereunder;
(b) all Services provided hereunder shall be provided in a competent,
professional and workmanlike manner to remediate Client's Year 2000
problems;
(c) the Technology for which Consultant provides remediation Services
hereunder shall, upon completion of such remediation Services, be Year 2000
Compliant as agreed by the parties in the applicable Schedule;
(d) Consultant shall comply fully with all applicable laws, rules, and
regulations applicable to the Services, including without limitation obtaining
at Consultant's own expense any necessary permits;
(e) at the time of delivery to Client or any Designated
Affiliate, each item of Work Product and each Component shall be free and clear
of threats known as software and hardware viruses, time bombs, logic bombs,
Trojan horses, worms, or other malicious computer instructions, intentional
devices or techniques which may cause the Technology to become erased, damaged,
inoperable, or other incapable of being used in the manner to which it is
intended, or which would permit unauthorized access to the Technology
(collectively, "Disabling Devices"), and no Consultant Personnel, shall, during
the term of this Agreement, introduce into the Technology any Disabling Device;
(f) none of the Services, Work Product, or Components will have been
developed or will be performed or delivered (as applicable) in violation of any
intellectual property right or contractual right of any third party, including
without limitation patent, copyright, trademark, or trade secret of any third
party;
(g) no Consultant Personnel is a party to a contract or agreement that
contains any restraint on Consultant's present or future services that has or
will have any material effect on Client or on such Consultant Personnel's
performance of the Services hereunder; and
(h) in addition to the warranties set forth in this Agreement,
Consultant hereby assigns to Client, and Client shall have the benefit of, all
manufacturers' or suppliers' warranties, representations, service agreements,
and indemnities ("Third Party Warranties"), if any, with respect to any third
party product, to the extent assignable by Consultant; and to the extent that
such Third Party Warranties are not assignable, Consultant agrees to take all
reasonable actions to enforce such Third Party Warranties on Client's or any
Designated Affiliate's behalf.
10.2. Warranty Period. Until January 31, 2001, Consultant will, at no
charge to Client, furnish such materials and services as shall be necessary to
correct any noncompliance of the Technology with the representations and
warranties set forth in this Agreement, including without limitation any Exhibit
or Schedule hereto.
10.3. Disclaimer of Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT (INCLUDING WITHOUT LIMITATION THE EXHIBITS AND SCHEDULES HERETO),
CONSULTANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
11. INDEMNIFICATION
11.1. By Client. Client agrees to indemnify, defend, and hold harmless
Metalogics, and its respective officers, directors, agents, and employees, from
and against any losses, liabilities, claims or expenses (including reasonable
attorney's fees and legal costs) incurred by them and arising out of or relating
to intentional or reckless conduct of Client which directly results in personal
injury, death or tangible property damage (including theft) .
11.2. By Consultant. Metalogics agrees to indemnify, defend and hold
harmless Client, its Affiliates, and Client's and its Affiliates' officers,
directors, agents, employees, from and against any losses, liabilities, claims
or expenses (including reasonable attorney's fees and legal costs) incurred by
them and arising out of or relating to
(a)intentional or reckless conduct of Consultant or Consultant Personnel
(including, but not limited to, the introduction of any computer virus into any
of Client's Resources by Consultant or any Consultant Personnel) in
connection with performance under this Agreement, which directly results in
personal injury, death or tangible property damage (including theft) caused by
Consultant or Consultant's personnel or subcontractors; or
(b)that this Agreement or the use, reproduction or distribution of any
Work Product or remediated Technology provided hereunder infringes any patent,
copyright, trade secret, or trademark, or violates the proprietary or
contractual rights of any third party. The foregoing warranty and indemnity
shall not apply to the extent, if any, that such violation or infringement was
embodied in the unmodified Client code, documentation or other materials
provided by Client to the Consultant and utilized by Consultant in preparing the
Work Product or remediating the Technology.
11.3. Remedies for Infringement. In the event that Client or any
Affiliate is enjoined from using any item of Work Product or any remediated
Technology, Consultant shall, at its option (1) procure for Client or such
Affiliate the right to use the Work Product or Technology without any
obligations, payment or liability; (2) replace such Work Product or Technology
with materials of at least equivalent functionality and Year 2000 Compliance
status. If neither of the foregoing remedies is available to Consultant, Client
shall receive a refund of all fees paid in connection with the infringing Work
Product or remediated Technology. The remedies of Client set forth in this
Section ___ are in addition to, and not in lieu of, any other remedies available
to Client at law or equity.
12. LIMITATION ON LIABILITY
Except for the parties' indemnity obligations hereunder, or in the event
of a material and willful breach of confidentiality, the parties' liability to
each other for any losses or damages, direct or indirect, arising out of this
Agreement, will not in any event exceed the aggregate amounts payable by
Client and its Affiliates under this Agreement. EXCEPT FOR THE PARTIES'
INDEMNITY OBLIGATIONS HEREUNDER, OR IN THE EVENT OF A MATERIAL AND WILLFUL
BREACH OF CONFIDENTIALITY, NEITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL,
EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
13. CONFIDENTIALITY
13.1. Use of Confidential Information. The parties acknowledge that they
shall only use the Confidential Information learned under this Agreement to
perform under this Agreement. They shall each take reasonable steps to protect
the Confidential Information of the other party, and except as required to
perform hereunder or as may be authorized by the other party in writing, shall
not, except as required by law or legal process, transfer, license, lease, sell,
copy, include in any database or compilation of information, or otherwise
disclose to any third person(s) or make available any such Confidential
Information or use such Confidential Information for any unauthorized purpose,
or knowingly permit any other entity or individual to make such a disclosure.
13.2. Non-Disclosure Agreements. Consultant and Client will each
exercise the same standard of care to protect the Confidential Information of
the other party as is used to protect its own proprietary or confidential data
from unauthorized disclosures, but in no event less than reasonable care.
Consultant will cause all Consultant Personnel assigned to provide Services to
Client or any Affiliate to execute a confidentiality and non-disclosure
agreement at least as restrictive as Consultant's obligations set forth in
Section ___ hereof with regard to the Confidential Data of Client and each of
its Affiliates. At the request of Client or any Affiliates, Consultant will
provide Client or such Affiliate with copies of confidentiality agreements or
statements signed by the Consultant Personnel, acknowledging their
confidentiality obligations.
13.3. Required Disclosure. In the event that either party is served with
legal process to disclose any Confidential Information of the other party, the
party which was served will promptly advise the other party of the service, and
assist the other party in contesting any such disclosure.
13.4. Injunctive Relief. Consultant acknowledges that disclosure or
improper use of any Confidential Information of Client or any Affiliate will
give rise to irreparable injury to Client and/or such Affiliate, inadequately
compensable in damages. Accordingly, Client or such Affiliate may seek and
obtain injunctive relief against the breach or threatened breach of this Article
11, in addition to any other remedies available at law or equity.
14. MISCELLANEOUS
14.1. Assignment. Any party may assign this Agreement or any of its
rights or obligations to a successor pursuant to a merger, consolidation or sale
of all or substantially all of its assets, upon notice to the other Parties to
this Agreement. Without limitation of the foregoing, Client may assign this
Agreement or any of its rights or obligations to one of its Affiliates upon
notice to the other Parties to this Agreement. Any other assignment shall be
void, unless made with the permission of Client in the case of Metalogics, or
Metalogics in the case of Client, which permission shall not be unreasonably
withheld. Metalogics specifically assumes and shall maintain complete
responsibility for all services rendered hereunder.
14.2. Waiver. The waiver by either party of a breach of any provision in
this Agreement will not be construed as a waiver of any subsequent breach.
14.3. Governing Law and Venue. This Agreement will be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflict of laws provisions. Each Party agrees that the sole jurisdiction
and venue for any litigation arising out of this Agreement shall be an
appropriate federal or state court located in Nassau County, New York.
14.4. Notices. All notices provided hereunder shall be in writing and
effective upon receipt and shall be deemed duly given or made if delivered in
person or sent by U.S. registered mail, return receipt requested, postage
prepaid or by reputable overnight carrier, addressed to the party for which it
is intended at its address as follows:
If to Client or any Affiliate: [CLIENT ADDRESS]
If to Metalogics:
Metalogics, Inc.
Riverview ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
14.5. Records Retention. Consultant and organizations related to
Consultant providing services to or on behalf of Client or any individual
Affiliate of Client valued at $10,000 or more in any 12 month period shall, in
accordance with 42 CFR Part 420 (as the same may be amended from time to time),
until four (4) years after the termination of the services rendered under this
Agreement, (i) retain all such books and records as are necessary to verify the
nature and extent of the costs of the services provided under this Agreement,
and (ii) comply with any request by the Comptroller General of the United
States, the Secretary of Health and Human Services, and their duly authorized
representatives for access to contracts, agreements, books, documents and
records necessary to verify the cost of the services provided hereunder. In the
event that Consultant or an organization related to Consultant shall receive a
request described in clause (ii) of the preceding sentence, Consultant shall
promptly notify Client thereof.
14.6. No Third Party Beneficiaries. Except for the Designated
Affiliates, no third party is intended to be, or will be construed to be, a
beneficiary of any provision of this Agreement nor have any right to enforce any
of its provisions or to pursue any remedy for its breach.
14.7. Severability. If any provision of this Agreement is held invalid,
illegal or unenforceable, the remaining provisions will remain unimpaired and
that provision will be replaced by a mutually acceptable valid, legal and
enforceable provision that is closest to the original intent of the parties.
14.8. Survival. Any provision of this Agreement which by its nature
would continue beyond a termination of this Agreement will survive any
termination, including, but not limited to, the parties' obligations under
Article 1 (Definitions), Section ___ (Acts Upon Termination), Article ___
(Warranties), Article ___ (Indemnification), Article ___(Confidentiality), and
Article ___ (Miscellaneous).
14.9. Force Majeure. Consultant will not be considered in default under
this Agreement due to any failure in its performance due to causes beyond its
control nor shall Client be responsible or liable for failure to perform
attributable to any cause or contingency beyond its reasonable control,
including without limitation; act of God; act or omission of civil or military
authority; fire; flood; tempest; epidemic; earthquake; volcanic activity;
quarantine restriction; labor dispute (e.g., lockout, strike or work stoppage or
slowdown); embargo; war; political strife; delay in transportation; scarcity or
inability to obtain raw materials or energy; compliance with any regulation or
directive of any national, state or local government, or any department or
agency thereof; or any other cause which by the exercise of reasonable diligence
such party is unable to overcome (each, a force majeure event); provided,
however that the affected party shall promptly notify the other party of the
occurrence of any such force majeure event, as well as the anticipated timing
that it expects the event to exist. The affect party(ies) shall resume
performance promptly upon the cessation of the force majeure event.
14.10. Entire Agreement. This Agreement, including the Schedules hereto,
contains the entire agreement between the parties and supersedes all other oral
or written agreements or understandings between the parties concerning the
Services. This Agreement may not be modified unless in writing and signed by the
party against whom enforcement of the modification is sought.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as the day,
month, and year first above written.
METALOGICS, INC. CLIENT
BY:_____________________________ BY:____________________________
TITLE:__________________________ TITLE:_________________________
SCHEDULE ATTACHMENT
TO THE
CONSULTING AGREEMENT
BETWEEN
CLIENT
AND
METALOGICS, INC.
SCHEDULE NO.____
Date:
STATEMENT OF SCOPE OF WORK
In accordance with the terms and conditions of the Agreement between Metalogics
Inc., and Client dated_________________, the following Statement of Scope of
Work ("Statement") as specified is agreed to by the parties as follows:
Scope
Tasks
Deliverables
Documentation
Acceptance Criteria
Schedule of Performance
Compensation Rates (if Services in addition to those set forth in the Proposal
are provided)
Equipment, if any, necessary to provide the Services
AGREED TO:
Metalogics, Inc. Client
BY:____________________________ BY:____________________________
TITLE:__________________________ TITLE:_________________________