CADUCEUS MATERIALS MANAGEMENT SYSTEM
LICENSE AGREEMENT
This CADUCEUS MATERIALS MANAGEMENT INFORMATION SYSTEM LICENSE AGREEMENT (the “License”) is made and entered into the _____day of __________________, 2011 (the “Effective Date”), by and between Caduceus Systems LLC, a Texas corporation, hereafter called “Caduceus”, with its principal place of business located at 11211 Taylor Draper Lane, Suite 107, Austin, Texas 78759 and San Mateo Medical Center, hereafter called “Customer” with its principal place of business at 222 West 39th Avenue, San Mateo, California 94403.
WHEREAS, Customer desires to license from Caduceus the proprietary software system known as the Caduceus Materials Management Information System; hereafter called “Caduceus MMIS”, and
WHEREAS, Caduceus has agreed to license the Caduceus MMIS System to Customer, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein, Caduceus and Customer agree to the terms and conditions as set forth in this Agreement, including the following Exhibits:
Exhibit A - Caduceus MMIS System License Schedule
Exhibit B - License Fees
Exhibit C - Implementation and Consulting Services
Exhibit D - Product Support Exhibit
Exhibit E - Customer Interfaces
Exhibit F – Hardware
Exhibit G - Corporate Compliance SMMC Code of Conduct (Third Parties)
ARTICLE I
DEFINITIONS
1.1 Current Release shall mean, at any time, the Caduceus MMIS System as described in the Caduceus MMIS System Specifications in effect on the date of the most recent major, formal software release (e.g., Version 3.9). Current Release does not include modifications made by Caduceus pursuant to an agreement between Caduceus and Customer, modifications made by Customer to the Caduceus MMIS System, or Optional Applications Software as defined herein.
1.2 Caduceus MMIS Base System shall mean Version 3.9 of the Caduceus MMIS System and related documentation as described in Exhibit A of this License.
1.3 Caduceus MMIS shall mean the Caduceus MMIS Base System, together with any and all future System Releases, Program Temporary Fix (PTF’s) and modifications that may be acquired in the future by Customer through a product support agreement or other agreement between Caduceus and Customer.
1.4 Caduceus MMIS System Specifications shall mean the documentation of the Caduceus MMIS System on file at Caduceus’ offices in Austin, Texas, and which is delivered to Customer in Exhibit A. The Caduceus MMIS System Specifications also include the minimum hardware and software configuration recommended by Caduceus for the operation of the Caduceus MMIS System.
1.5 License shall mean this Caduceus MMIS License between Caduceus and Customer.
1.6 Program Temporary Fix (PTF) shall mean the program and/or documentation changes and associated installation instructions which at Customer’s request are made available to Customer at no charge in advance of the next System Release to correct a specific problem reported by Customer during the term of this License.
1.7 System Release shall mean a collection of program and documentation changes (revisions, deletions and/or additions) and associated installation instructions which are periodically made available to Customer for the purpose of updating a Current Release to produce a new Current Release.
1.8 Delivery shall mean the Caduceus MMIS Base System source code, executable objects, supporting Database and quality assurance environment have been loaded onto Customer's Microsoft Server 2003 and Customer’s SQL Server (2000 or higher) computer system, on which quality assurance testing will occur, and a Caduceus specialist has performed verification tests to verify that the system is properly installed and working. Customer shall cooperate with Caduceus to assure that Delivery is accomplished as soon as reasonably practicable after the Effective Date.
ARTICLE II
CADUCEUS MMIS SYSTEM LICENSE
2.1 Term. The License granted in this Article 2 shall be for perpetual term commencing as of the Effective Date of this License, and continuing on a perpetual basis or until this License is terminated as provided herein.
2.2 Grant of Limited Use License. Subject to all of the terms and conditions of this License, Caduceus hereby grants to Customer, and Customer hereby accepts, a nonexclusive and non-transferable license to use the software listed in Exhibit A of this License (the “Licensed Software”) for the term stated above. This License authorizes the use of the Licensed Software solely for the purpose of processing internal data related to material management and supply-related processes now or hereafter utilized by Customer. Customer is hereby authorized to use the licensed software at the following locations:
2.2.a San Mateo Medical Center Main Campus; and
2.2.b The North County Clinics consisting of the Daly City Clinic, Daly City Youth Health Center and the South San Francisco Clinic; and
2..2.c The Mid-County Clinics consisting of the Main Campus Clinics, the Ron Robinson Senior Care Center and the Coastside Clinic; and
2.2.d The South County Clinics consisting of the Fair Oaks Clinic, the Fair Oaks Children’s Clinic, the Sequoia Teen Wellness Center, the Willow Clinic and Methadone Clinic.
Customer may not use the Licensed Software for any purpose other than those expressly authorized hereunder. The uses that Customer shall not make of the Licensed Software include, but are not limited to: (i) using the Licensed Software to provide processing services to any third persons; (ii) using the Licensed Software to process the data of other third parties except those expressly identified herein; (iii) making copies of the Licensed Software for distribution to third parties; (iv) reverse-engineering or decompiling the Licensed Software for the purpose of designing, or developing for distribution, license or sale to third parties a software system competitive with the Licensed Software; and (v) sublicensing or reselling the Licensed Software or any license rights granted hereunder.
No transfer of title to the Licensed Software is affected by this License, and Caduceus shall retain sole and exclusive title to the Licensed Software and all modifications thereto and all intellectual property rights associated therewith.
This License is limited to use of the Licensed Software by Customer for processing of the internal data and files for support of material management processes and other inventory related processing activities that are directly related to Customer and for operation on computing server hardware that resides in a location that is occupied by Customer.
Notwithstanding the foregoing, Customer is authorized to: (i) make one or more copies of the Licensed Software for development, backup (including disaster recovery) and test purposes, training and (ii) use such copies on the Customer's computer(s), but only for such purposes.
2.3 Sublicensing and Assignment. This License may not be sublicensed, assigned or otherwise conveyed by Customer to any other person, firm or organization without the prior written consent of Caduceus.
2.4 License Fees. Customer shall pay to Caduceus the license fees referenced on Exhibit B for the Licensed Software. Payments shall be made by Customer as set forth in Exhibit B
2.5 Modification and Translation of the Licensed Software. Caduceus shall have the sole and exclusive right to design and develop any derivative works from the Licensed Software. Any and all derivative works made from the Licensed Software, including any and all intellectual property rights associated therewith, shall be the sole and exclusive property of Caduceus. Customer shall have the right to design and develop modifications and enhancements to the Licensed Software to be used by Customer solely for the purposes authorized in Section 2.2 above. Customer acknowledges and agrees that Caduceus shall be the sole and exclusive owner of any modifications or enhancements made to the Licensed Software by Customer hereunder, but Customer shall have a non-exclusive, non-transferable and royalty-free license to use any such modifications or enhancements for the term of this License, subject to the terms of this License. In the event that Customer engages Caduceus to create a modification to, or enhancement of, or derivative work from, the Licensed Software, the resulting modification, enhancement or derivative work (including any and all intellectual property rights associated therewith) shall be the sole and exclusive property of Caduceus; provided, however, that Customer shall have a non-exclusive, non-transferable and royalty-free license to use such modification, enhancement or derivative work for the term of this License, subject to the terms of this License. Customer is not authorized to translate the Licensed Software for use in computer environments other than the Microsoft Server environment in which the Licensed Software was designed by Caduceus to operate.
2.6 Use of Source Code and Other Proprietary Materials by Customer. Following execution of this License by Caduceus and Customer, Caduceus shall deliver to Customer a copy of the Caduceus MMIS Base System source code and other confidential and proprietary documentation of Caduceus concerning the Licensed Software (collectively, the “Source Materials”). Customer shall be permitted to use the Source Materials in order to operate the Licensed Software, or for any other purpose for which Customer has been licensed to use the Licensed Software. Customer shall not be permitted to use the Source Materials for any purpose for which Customer is not licensed to use the Licensed Software. Customer represents and warrants to Caduceus that it will establish and maintain reasonable procedures to protect the Source Materials from unauthorized disclosure or use. Customer shall not disclose the Source Materials to any third persons without the advance written consent of Caduceus.
2.7 Infringement. Caduceus represents and warrants that Caduceus is the sole owner of the Caduceus MMIS System. Caduceus also represents and warrants that it has the right to license the Caduceus MMIS System and that this License does not and will not infringe upon any United States copyrights, United States patent or other proprietary interest of any person, firm or organization.
2.7.1 Notice of Claim. If any action, claim or suit is threatened, brought or made against Customer based upon infringement of a United States copyright, United States patent, or other proprietary right under the laws of the United States, in connection with the use of the Caduceus MMIS System by Customer, Customer will promptly notify Caduceus in writing of such action, claim or suit and the failure to so notify shall relieve Caduceus of its obligations hereunder.
2.7.2 Defense. Caduceus shall at Caduceus’ expense take charge of the defense of any infringement action through attorneys of Caduceus’ selection. If any infringement action is instituted against Caduceus and Customer jointly, Caduceus will at its expense defend such action on behalf of both parties. Customer will cooperate in such defense as reasonably requested by Caduceus. Customer will have the right to participate in the defense of such action, at Customer’s expense, and/or take its own position in any litigation. If Caduceus appeals an adverse decision it will obtain judicial relief for Customer or post a bond protecting Customer from liability for judgment on the adverse decision pending the final determination of the appeal. Caduceus will pay in full any settlement negotiated by Caduceus relating to a claim under this Section 2.9, which settlement shall provide a full release of Customer from all claims. Caduceus will indemnify and hold harmless Customer of and from all costs and expenses of litigation hereunder, as well as the amount of any adverse judgment rendered against Customer as a result of a finding of infringement in favor of any third party as a result of Customer’s use of the Licensed Software.
2.7.3 Remedial Action. If Caduceus anticipates an action, claim or suit for such infringement, or if such an action, claim or suit has been made and the Caduceus MMIS System, or any part of thereof, has been held to constitute an infringement and the use of the Caduceus MMIS System or any part of it is enjoined, Caduceus will, at its expense, either: (i) obtain for the Customer the right to continue to use the Caduceus MMIS System, or (ii) replace the Caduceus MMIS System, or part of the Caduceus MMIS System, with a non-infringing functionally equivalent substitute reasonably acceptable to Customer, or (iii) modify the Caduceus MMIS System so as to be non-infringing, functionally equivalent and reasonably acceptable to Customer.
A replacement or partial replacement of, or a modification to, the Caduceus MMIS System shall be acceptable to Customer if Customer remains able to process its business in substantially the same manner as before such replacement, partial replacement or modification, and the effect of such replacement, partial replacement or modification is not to require the expenditure of substantial additional effort by Customer in the day to day conduct of Customer's business.
If, however, Caduceus is unable, despite reasonable efforts, to affect any of these options, Customer may then terminate the License granted herein by notifying Caduceus in writing at least ninety (90) days before the effective date of such termination. In the event of such termination, Customer shall:
i. return the Caduceus MMIS System and all Source Materials to Caduceus; and
ii. be relieved of any further obligation to pay license fees to Caduceus hereunder.
In any event, Caduceus agrees to provide Customer with reasonable transition assistance should the License be terminated for patent or copyright infringement.
2.7.4 Limitation of Liability for Infringement. Caduceus will have no liability for any claim of infringement of copyright, patent or proprietary interest to the extent such claim is based on either (i) use of any version other than the unmodified version of the Caduceus MMIS System, except as modified by enhancements and pre-release enhancements provided by Caduceus which become part of the base system at a later date if infringement could have been avoided by use of such unmodified version; or (ii) use or combination of the Caduceus MMIS System with other than Caduceus provided or approved programs, if infringement could have been avoided by not using the Caduceus MMIS in combination with other than such programs.
2.8 Customer's Obligations Upon Termination. Upon termination of this License for any reason whatsoever, Customer agrees to return to Caduceus the Licensed Software and all Source Materials, including all copies of source code, object code, documentation, programs and other materials delivered by Caduceus under this License, and to certify to Caduceus in writing within ten (10) days after termination that Customer has not retained any copies of those items. Following any such termination, Customer agrees to cease and permanently refrain from any and all use whatsoever of the Licensed Software, and all Source Materials and any other information supplied by Caduceus pursuant to this License.
2.9 Special Warranty and Limitation of Liability.
2.9.1 Special Warranty. Caduceus warrants that for 180 days following Certification Testing, the Caduceus MMIS Base System will substantially conform in all material respects to the Caduceus MMIS System Specifications. During the 180 day warranty period, Customer may request the services of Caduceus to analyze any apparent failure of the Caduceus MMIS Base System to conform to the Caduceus MMIS System Specifications. Any failure to conform must be
eported to Caduceus on a System Discrepancy Report in the format specified by Caduceus. Customer’s sole and exclusive remedy for any breach of this warranty shall be to require Caduceus to cause the Caduceus MMIS Base System to conform to the applicable System Specifications.
CADUCEUS’ LIABILITY FOR BREACH OF THE WARRANTY PROVIDED IN THIS SECTION IS LIMITED TO THE REMEDIES SET FORTH HEREIN. THE WARRANTY PROVIDED HEREIN IS IN LIEU OF ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CADUCEUS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION HEREIN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CADUCEUS SPECIFICALLY DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE WILL PROCESS ANY OF CUSTOMERS BUSINESS OR ACHIEVE ANY RESULT NOT STATED IN THE APPLICABLE STANDARDS. CUSTOMER HAS FORMED ITS OWN JUDGMENT REGARDING THE SUITABILITY OF THE LICENSED SOFTWARE FOR CUSTOMER'S NEEDS.
2.10 Limitation of Liability. Caduceus’ liability to customer under this license, and customer's exclusive remedy for any loss, damage or injury, regardless of the nature thereof shall not exceed, and shall be limited to, the payments made by customer to Caduceus under the terms of this agreement. Caduceus will not be liable for any other damages hereunder, including, but not limited to, incidental damages, loss of profits and other consequential damages and any claims or demands against customer by any other party, even if Caduceus has been advised of the possibility of such damage.
ARTICLE III
TERMINATION
3.1 Termination for Cause. In the event that Customer breaches the terms of this License by making any unauthorized use of the Licensed Software or engaging in any other conduct which could impair Caduceus’ copyrights and intellectual property rights in the Licensed Software, then Caduceus shall have the right to terminate this License without notice immediately and require Customer to return to Caduceus the Licensed Software, all Source Materials, and all source code, object code and documentation. In the event of any other kind of material breach of this License by either party hereto (except for nonpayment by Customer which is controlled by Section 3.2 of this License), and the breaching party fails to substantially cure such breach within ninety (90) days after its receipt of a written notice specifying the details of the breach or, with respect to any material breach which cannot reasonably be cured within ninety days, should the breaching party fail to proceed within ninety days to commence curing the breach and thereafter to proceed with all due diligence to cure the breach, the party not in breach of this License may terminate this License by giving prompt written notice of termination.
3.2 Termination for Nonpayment. In the event that Customer fails to pay all amounts due Caduceus in accordance with the terms of this License, Caduceus may terminate this License upon ten (10) days written notice to Customer.
3.3 Termination Due To Insolvency. In the event either party to this License becomes or is declared insolvent, becomes subject to a voluntary or involuntary bankruptcy or similar proceeding, or makes an assignment for the benefit of all or substantially all of its creditors, then in such event the other party to this License may terminate this License by giving written notice thereof to such party which notice shall specify the date of termination.
3.5 Bankruptcy of Caduceus. In the event that Caduceus becomes subject to bankruptcy proceedings, this License shall continue in full force and effect, and Customer shall continue to enjoy all License rights granted herein subject to Customer’s continued compliance with all of the terms and conditions of this License. Caduceus acknowledges that if Caduceus as a debtor-in-possession (or a trustee in bankruptcy in a case under the United States bankruptcy code) rejects this Agreement or any agreement supplementary hereto, Customer may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the bankruptcy code. Upon written request of the Customer to Caduceus or the bankruptcy trustee, Caduceus or such bankruptcy trustee shall not interfere with the rights of Customer as provided in this Agreement or any agreement supplementary hereto to obtain the Source Materials from Caduceus or the bankruptcy trustee and shall, if requested, cause a copy of the Source Materials to be made available to Customer at no additional charge.
3.6 Customer Termination Option. This agreement may be terminated by Customer without a requirement of good cause upon Customer providing Caduceus thirty (30) day written notice in advance of Customer’s intent to terminate the agreement. If Customer elects to terminate the agreement, all fees as set forth in Exhibit B for the licensed software and for services that have been provided to Customer by Caduceus as of the termination date will be paid by Customer.
3.7 Availability of Funds The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Caduceus as soon as is reasonably possible after the County learns of said unavailability of outside funding. If Customer elects to terminate the agreement, all fees as set forth in Exhibit B for the licensed software and for services that have been provided to Customer by Caduceus as of the termination date will be paid by Customer.
ARTICLE IV
OWNERSHIP OF PROGRAMS, CONFIDENTIALITY
AND AUDIT RIGHTS
4.1 Acknowledgment of Intellectual Property Rights and Trade Secrets. Customer acknowledges that the Licensed Software (including, without limitation, any modifications thereto and any work product of Caduceus which is related to the Caduceus MMIS System) is a commercially valuable proprietary product of Caduceus, the design and development of which has involved the expenditure of substantial amounts of money and the use of skilled development experts over a long period of time and which affords Caduceus a commercial advantage over its competitors, and that loss of this competitive advantage due to unauthorized disclosure or use of such proprietary information would cause great injury and harm to Caduceus. Customer acknowledges that the Licensed Software (specifically including, but not limited to, the design, programming techniques, flow charts, source code and documentation thereof) constitute intellectual property and TRADE SECRETS, disclosed to Customer on the basis of the confidential relationship between Customer and Caduceus under this License, to be used only as may be expressly permitted by the terms and conditions of this License, and that the restrictions imposed upon Customer by this Section 4.1 are necessary to protect the secrecy of such proprietary information and prevent the occurrence of such injury and harm to Caduceus.
Customer covenants that it will not, without the prior written consent of Caduceus, disclose, divulge, publish to others or employ to its own advantage, other than as herein provided, the Licensed Software or any proprietary information of Caduceus relating thereto and that it will reveal the same only to those of its employees, employees of Customer’s affiliates, attorneys or auditors who require it for the purpose of Customer’s use of the Licensed Software hereunder and only if such employees, attorneys or auditors are subject to use and disclosure restrictions as complete as those assumed by Customer hereunder.
Caduceus will provide (1) copy of the documentation of the Caduceus MMIS System in electronic media format without charge. Customer may modify and make necessary working copies of any documentation, but shall protect that portion of such documentation created by Caduceus with the same necessary restrictions and care as otherwise identified in this License.
The obligations of Customer in this Section 4.1 shall survive any termination of this License.
4.2 Confidentiality. Caduceus and Customer agree that all proprietary information in whatever form delivered by one party to the other shall be deemed of proprietary and trade secret status and shall be held in strict confidence and shall be used only for purposes of this License. No such information shall be disclosed by the recipient party, its agents or employees without the prior written consent of the other party, except as may be necessary to enforce this License or by reason of legal, accounting or regulatory requirements beyond the reasonable control of the recipient party. The provisions of this Section shall survive termination of this License for any reason.
ARTICLE V
MISCELLANEOUS
5.1 Taxes. Customer shall be solely responsible for all state, local or federal taxes, however designated, levied or based on any fees payable hereunder, including but not limited to state and local privilege and excise taxes based on gross revenue, and any sales taxes or amounts in lieu thereof, paid or payable by Caduceus in respect of the foregoing. Customer shall pay any such taxes to Caduceus no later than fifteen (15) days after Customer’s receipt of invoice from Caduceus. Customer hereby indemnifies and holds Caduceus harmless from and against the payment of any and all sales or similar taxes, including any penalties or interest thereon. Caduceus will inform Customer of any audit by any governmental authority regarding such taxes, will allow Customer to control any challenge to, settlement of or payment of any amounts deemed payable by such government authority as a result of such audit or inquiry, and will cooperate with all reasonable requests by Customer for Caduceus to assist in challenging, settling and paying such amounts. Customer’s obligations pursuant to this Section 5.1 shall survive any termination or expiration of this License.
5.2 Excused Performance. Caduceus shall be excused from performance, and shall have no liability, for any period and to the extent that Caduceus is prevented, hindered or delayed from performing any services or other obligations under this License, in whole or in part, as a result of acts, omissions or events beyond the reasonable control of Caduceus, including by way of illustration and not limitation, acts or omissions of Customer, failure or malfunction of computer or telecommunications hardware, equipment or software, breach or other nonperformance by third party vendors and suppliers, strikes or labor disputes, riots, war, fire, acts of God or governmental regulations.
5.3 Employees. Customer acknowledges that Caduceus’ success is largely dependent on the performance of its personnel and that, therefore, Caduceus expends substantial resources in connection with employment and training. Accordingly, Customer shall not hire or retain, either as an employee or as an independent contractor, any person who was a Restricted Employee of Caduceus at any time during the twelve (12) months preceding such hiring or retention, without obtaining the advance written consent of Caduceus. A Restricted Employee of Caduceus is any employee except a member of the clerical staff. This undertaking by both parties shall be deemed an essential element of this Agreement and shall survive its termination.
5.4 No Waiver. No failure of either party to exercise any power or right given either party hereunder or to insist upon strict compliance by either party with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of either party’s right to demand exact compliance with the terms hereof.
5.5 Rights Cumulative. All rights, powers, and privileges conferred hereunder upon the parties shall be cumulative and shall not restrict those given by law.
5.6 Singular Includes Plural. The singular of any word in this License includes the plural.
5.7 Notices. Whenever under this License one party is required or permitted to give notice to the other, such notice shall be deemed given when delivered in hand or three (3) business days after the date mailed by United States mail, certified mail, return receipt requested, postage prepaid, and addressed as follows:
In the case of Caduceus:
Caduceus Systems, LLC
11211 Taylor Draper Lane
Suite 107
Austin, TX 78759
Attention: Ed Lane, President
Phone: 512-346-4164 extension 228
Facsimile: 512-346-7698
In the case of Customer:
San Mateo Medical Center
222 West 39th Avenue
San Mateo, California 94403
Attention: John Thomas, Chief Operations Officer
Phone: 650-573-2542
Facsimile: 650-573-2267
Either party may change its address for notification purposes by giving the other three (3) days prior written notice of the new address and the date upon which it will become effective.
5.8 Dispute Resolution. This Section 5.8 governs any dispute, disagreement, claim or controversy between Customer and Caduceus arising from or related to this Agreement (a “Disputed Matter”). All Disputed Matters shall be submitted to the following dispute resolution process:
(a) Internal Escalation. First, the Disputed Matter shall be referred jointly to senior executives of each of the parties. If such executives do not agree upon a resolution within ten (10) business days after referral of the matter to them, the complaining party shall proceed to the next stage of this dispute resolution procedure.
(b) Mediation. Either party may, upon written notice and within ten (10) business days after the conclusion of the internal escalation procedure, elect to have the Disputed Matter referred to non-binding mediation before a single impartial mediator to be jointly agreed upon by the parties. The mediation hearing shall be attended by executives of both parties possessing authority to resolve the Dispute Matter, and shall be conducted no more than thirty (30) business days after a party serves a written notice of an intention to mediate. Customer and Caduceus shall share equally all costs of such mediation. If the Disputed Matter cannot be resolved at mediation, the complaining party shall proceed to the next stage of this dispute resolution procedure.
(c) Arbitration. In the event that a Disputed Matter has not been resolved through mediation, the complaining party shall submit the Disputed Matter to binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). The arbitration panel shall have the authority to render any award or remedy allowed by law. The arbitration panel shall consist of three neutral arbitrators selected from the AAA’s Panel of Arbitrators, and the arbitration hearing shall be conducted in Austin, Texas or the city of Customer’s principal place of business as selected by the party against whom arbitration proceedings are commenced. The parties shall diligently attempt to schedule the arbitration hearing for a time within one hundred and twenty (120) days after the demand for arbitration hereunder has been issued. Following the hearing, the arbitrators shall issue a written decision specifying the basis of their decision, and the award made, if any. The cost of the arbitration proceeding shall be shared equally by the parties, but the prevailing party in any arbitration proceeding shall be entitled to recover its reasonable and necessary attorneys’ fees and expenses incurred in connection with the arbitration. Provided that Customer continues to timely pay Caduceus all charges assessed by Caduceus under this Agreement, Caduceus shall continue to provide services to Customer during the pendency of any Disputed Matter before arbitration.
(d) Injunctive Relief Pending Arbitration. Notwithstanding the foregoing, however, it is agreed that any breach of this agreement by Customer making any unauthorized use of the licensed software or engaging in any other conduct which could impair Caduceus’ copyrights or intellectual property rights in the licensed software will cause immediate and irreparable harm to Caduceus. In the event of any such breach by Customer, Caduceus shall be entitled to pursue immediate and interim injunctive relief from any court of competent jurisdiction to restrain such unauthorized use or conduct, and obtain other injunctive relief as may be necessary to protect Caduceus’s copyrights and intellectual property rights.
5.9 Relationship of Parties. In licensing the Licensed Software to Customer, Caduceus is acting only as an independent software licensor. Except as expressly set forth in this License, Caduceus does not undertake by this License or otherwise to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer’s business or operations. This License shall not be deemed to create a partnership, joint venture or fiduciary relationship between the parties. Caduceus agrees and understands that it will perform the work and services described in this agreement and the exhibits to this agreement as an independent contractor, that Caduceus is not an employee of Customer, and that Caduceus does not acquire the rights, privileges, powers or advantages of Customer’s employees.
5.10 Severability. In the event any provision of this License is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions of this License shall not be affected and, in lieu of such invalid or unenforceable provision, there shall be added automatically as part of this License one or more provisions as similar in terms as may be valid and enforceable under applicable law.
5.11 Entire Agreement. This License constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous representations, understandings or agreements, whether oral or written, relating to the subject matter hereof. All prior or contemporaneous representations, understandings or agreements, whether oral or written, that are not expressly set forth within the four corners of this License are hereby deemed waived, superseded and abandoned.
5.12 Amendments. No amendment or modification of this License will be binding on either of the parties to this License unless such Amendment is contained in a written document which expresses an intention to amend this License and is executed by both the parties.
5.13 Counterparts. This License may be executed in several counterparts all of which taken together shall constitute one single agreement between the parties.
5.14 Headings. The article and section headings included in this License are for reference and convenience only and shall not enter into the interpretation of this License.
5.15 Governing Law and Venue. This License shall be governed and construed in accordance with the laws of the State of California. All suits concerning any and all matters related to or arising under or by virtue of this License shall commence either in the San Mateo County Superior Court or in the United States District Court for the Northern District of California.
5.16 Assignability and Subcontracting. Caduceus shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by Caduceus under this Agreement without the prior written consent of Customer. Any such assignment or subcontract without Customer’s prior written consent shall give Customer the right to automatically and immediately terminate this Agreement.
5.17 Currency. All monetary amounts stated in this License are stated in United States Dollars, and all amounts due hereunder shall be paid by Customer in United States Dollars.
5.18 Terms Confidential. The terms and conditions of this License are confidential and shall be treated as such by Customer. Customer will not disclose the terms of this License to third parties, including the amount of fees to be paid hereunder, except as may be required for the filing of reports and forms with governmental agencies under applicable statutes and regulations.
5.19 Insurance. Caduceus shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by Customer, and Caduceus shall use diligence to obtain such insurance and to obtain such approval. Caduceus shall furnish Customer with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the coverage to include the contractual liability assumed by the Caduceus pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to Customer of any pending change in the limits of liability or of any cancellation or modification of the policy.
5.19.1 Worker's Compensation and Employer's Liability Insurance. Caduceus shall have in effect during the entire life of this Agreement Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, Caduceus certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and will comply with such provisions before commencing the performance of the work of this Agreement.
5.19.2 Liability Insurance. Caduceus shall maintain such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him/her while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from Caduceus’ operations under this Agreement, whether such operations be by Caduceus or by any sub-contractor hired by Caduceus or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.
5.19.2.a Such insurance shall include:
Comprehensive General Liability…..$1,000,000
Motor Vehicle Liability Insurance…..$1,000,000
Professional Liability…………...……$1,000,000
In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, Customer at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.
5.20 Compliance with laws; payment of Permits/Licenses. All services to be performed by Caduceus pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Federal Regulations promulgated thereunder, and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations. In the event of a conflict between the terms of this Agreement and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement. Caduceus will timely and accurately complete, sign, and submit all necessary documentation of compliance.
5.21 Non-Discrimination and Other Requirements
5.21.a Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with § 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.
5.21.b. General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Agreement.
5.21.c. Equal employment opportunity. Caduceus shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Caduceus’ equal employment policies shall be made available to Customer upon request.
5.21.d. Violation of Non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject Caduceus to penalties, to be determined by the County Manager, including but not limited to
i) termination of this Agreement;
ii) disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;
iii) liquidated damages of $2,500 per violation;
IV) imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.
To effectuate the provisions of this section, Customer shall have the authority to examine Caducues’ employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Caduceus under this agreement or any other contract between Caduceus and Customer
Caduceus shall report to the County Manager of San Mateo, California the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Caduceus that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Caduceus shall provide Customer with a copy of their response to the Complaint when filed.
5.22 Retention of Records, Right to Monitor and Audit.
5.22.a Caduceus shall maintain all required records for three (3) years after the COUNTY makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California.
5.22.b Reporting and Record Keeping: Caduceus shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by San Mateo County.
5.22.c Caduceus agrees to provide to the County of San Mateo, to any Federal or State department having monitoring or review authority, to the County of San Mateo’s authorized representatives, and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness and timeliness of services performed.
5.23 Payments. In consideration of the goods and services provided by Caduceus in accordance with all terms, conditions and specifications set forth herein and in the attached Exhibits, County shall make payment to Caduceus based on the rates and in the manner specified in those Exhibits. In no event shall the County’s total fiscal obligation under this Agreement, including all Exhibits hereto, exceed FOUR-HUNDRED FIVE THOUSAND DOLLARS [$405,000].
IN WITNESS WHEREOF, the parties hereto, each acting under due and proper authority, have executed this License on the dates indicated below.
|
CADUCEUS CADUCEUS SYSTEMS, LLC 11211 Taylor Draper Lane Suite 107 Austin, Texas 78759 __________________________________ Signature - Authorized Officer
Name: ____________________________
Title: ____________________________ Date: ____________________________ |
CUSTOMER COUNTY OF SAN MATEO SAN MATEO MEDICAL CENTER 222 West 39th Avenue San Mateo, California 94403 ___________________________________ Signature - President, Board of Supervisors, Name: ____________________________ Date ____________________________ ATTEST: ___________________________________ Signature - Clerk of Said Board Name: ____________________________ Date ____________________________ |
EXHIBIT A
CADUCEUS MMIS SYSTEM
LICENSE SCHEDULE
Customer is licensing the Caduceus System known as the Caduceus Materials Management Information System, Release Number 3.9 as described in the following documentation.
• Caduceus MMIS User Introduction Manual
• Caduceus MMIS Technical Guide and Operations Manual
• A copy of the Enterprise Server source code for the Caduceus MMIS System
EXHIBIT B
LICENSE FEES
Software License Fee
Caduceus MMIS Base System $ 94,000.00
In addition to the above-listed software, Caduceus grants to Customer a non-exclusive, non-transferable and perpetual license to use: (i) any System Releases or PTF’s for the above-listed software legally obtained by Customer from Caduceus pursuant to a product support or other agreement entered into by Caduceus and Customer; and (ii) any modifications made by Caduceus for Customer to the above-listed software. Customer shall be entitled to use such additional software items at no additional license fee.
License Fee Payment Terms
Customer agrees that the license fee stated above is due and payable according to the following schedule:
(i) An initial payment equal to fifty percent (50%) of the license fee, an amount of $47,000.00 is due upon execution of this Agreement; and
(ii) A second payment of $37,600.00 or forty percent (40%) of the license fee is due upon the delivery of the Caduceus MMIS to Customer; and
(iii) A third payment of $9,400.00 or ten percent (10%) of the license fee is due upon the successful completion of certification and acceptance testing and first production use of the System.
Mobile Computing and Automatic Identification and Data Collection Devices
The license fee stated above entitles Customer to operate user dialogues provided by Caduceus on an unlimited number of mobile computing and scanning devices provided that: (1) such devices have been certified as being acceptable for use in conjunction with the Caduceus MMIS by Caduceus; and (2) such devices are procured through Caduceus or, if procured through a source other than Caduceus, Customer agrees to pay Caduceus a one-time fee of $150.00 for each device used by Customer with the system.
EXHIBIT C
IMPLEMENTATION AND CONSULTING SERVICES
1.1 Consulting Services Provided by Caduceus. Caduceus will provide the following types of consulting services, (“Consulting Services”), in connection with the implementation of the Caduceus MMIS System at Customer’s facility:
(a) Project initiation and planning review
(b) Caduceus MMIS base system installation and orientation
(c) Caduceus MMIS training
(d) Integration Services - Interfaces to Customer’s existing systems.
(e) Conversion Assistance
(f) Project Management
(g) Design and development of modifications, interfaces, and enhancements to the Caduceus MMIS Base System, including but not limited to, those as set forth in Exhibit E.
(h) Testing and certification assistance
1.2 Customer Responsibilities. Caduceus’ obligation to perform the Consulting Services described in this Agreement is expressly conditioned upon timely performance by Customer of the following Customer obligations:
1.2.1 Cooperation. Customer will cooperate with Caduceus as may be reasonably necessary to enable Caduceus to properly perform its obligations under this Agreement.
1.2.2 Designation of Project Director. Customer will assign a Project Director who will be responsible for supervision of Customer’s activities and coordination of Customer’s efforts with the activities of Caduceus personnel.
1.2.3 Customer Training. Customer personnel will cooperate with Caduceus personnel in all training and educational activities prescribed by Caduceus. Customer will designate in-house training resources to be trained by Caduceus and that will be responsible for end-user training throughout Customer’s facility.
1.2.4 Project Deadlines. Each party will assume full responsibility for meeting due dates set forth in any plan that requires the other party’s response.
1.2.5 Access to Personnel and Materials. Customer will provide reasonable access to personnel, materials, workspace, forms, terminals and telephone service and will take all other action reasonably required for the installation of the Caduceus MMIS System. Such requirements will be provided by Customer at such reasonable times as will permit Caduceus to provide the installation assistance required of Caduceus under this Agreement. Customer will timely acquire all materials and equipment necessary to enable Caduceus to satisfy project deadlines.
1.2.6 Specification of Functional Requirements. Customer will develop, with Caduceus, written detailed functional requirements in accordance with the Caduceus MMIS System Documentation for any modifications of programs utilized.
1.3 Acceptance Testing/Enhancements/Interfaces/Modifications. Acceptance by Customer of the enhancements, interfaces, and modifications, including any that are as yet undefined, shall be in accordance with the following process: During the acceptance period, which
shall be defined as thirty (30) days from completion of the last enhancement, interface, or
modification, Customer may accept the enhancements, interfaces, or modifications, or shall have the ability to provide Caduceus with a comprehensive list of any alleged failures identified by Customer (notice of alleged failure). If Customer does not provide Caduceus with written notice of alleged failures prior to end of the acceptance period, the enhancements shall be deemed to have been accepted by Customer. Failures shall include a failure of the enhancements, interfaces, or modifications to perform in accordance with the specifications and Caduceus MMIS System Documentation or failure to perform in accordance with the warranties as set forth herein. Caduceus and Customer shall cooperate to resolve the alleged failure under the following conditions: Caduceus shall have sixty (60) days from receipt of a written notice from Customer of an alleged failure to respond and provide a correction or other mutually acceptable plan and timing for correcting the alleged failure (“Cure Period”). Upon delivery of the revisions for correcting the failure to Customer, Customer shall have an additional thirty (30) days to provide Caduceus with any notification of alleged discrepancies not corrected by Caduceus, and Caduceus shall provide such remedies as are needed to correct the failure.
1.3.1 Failed Acceptance. If Customer determines that there is an Error in the Software Programs, Customer shall immediately notify Caduceus in writing of the error, which shall include e-mail. Such written notification shall include a description of the error and the circumstance under which the error occurred. Minor discrepancies which may be corrected during the Acceptance period shall not be cause for reporting an error. Caduceus shall recreate and isolate the error, write, test, deliver and install the new code to resolve the error within a reasonable period of time (“Resolution Cycle”). The Acceptance period shall be extended for the same number of days from Caduceus’ receipt of the written notification to the installation of the new code. However the Software Programs must function for one week after resolution of an error in order for Acceptance to be obtained.
1.4 Fees for Consulting Services
1.4.1 Fees. Customer shall pay Caduceus a fee of $125.00 per hour for professional services provided to Customer by Caduceus’ personnel. The scope of service that Caduceus will provide to Customer is estimated to comprise 584 hours of professional services. The estimated total of hourly fees for implementation and consulting services is $73,000.00. Caduceus Systems estimates that the elapsed timeframe for the involvement of its Consulting Services will be approximately Five (5) months. The hourly rate of $125.00 represents a discount from the schedule of time and materials rates generally available from Caduceus and Caduceus agrees to extend this discounted rate to Customer until completion of the implementation and production use of the system has commenced. Fees will be invoiced to Customer at the beginning of each month for services provided during the previous month. Caduceus will provide Customer with a report to accompany each invoice that identifies the number of hours of service provided, the specific Caduceus resource and the project task.
1.4.2 Travel and Living Expenses. Customer agrees to reimburse Caduceus for all reasonable travel and living expenses incurred by Caduceus when Caduceus personnel provide services on-site at Customer’s location as follows:
1.4.3 (1) Meals, ground transportation, and incidental living expenses for Caduceus’ employees and agents working at Customer’s facilities.
(2) Hotel expenses for lodging at hotels to be approved by both Customer and Caduceus.
(3) Travel to and from Customer’s facilities by Caduceus personnel originating in Austin, Texas, at the lowest airfare available at the time of booking.
(4) Caduceus shall submit invoices for payment to Customer with appropriate documentation, including receipts, for travel and living expenses.
1.4.4 Payment Terms for Implementation and Consulting Services. Customer agrees to pay the estimated total of $73,000.00 for implementation and consulting services according to the following schedule:
1.4.4.1 An amount of $36,500 will be paid upon the start of project activities; and
1.4.4.2 An amount of $36,500 will be paid upon successful completion of acceptance testing and go-live use of the system. Go-live use shall mean the time the system is first used for daily or production purposes to process live data by Customer; and
1.4.4.3 Travel and living reimbursement expenses will be paid by Customer at the time of invoicing. Caduceus will invoice Customer monthly in arrears at the beginning of each month for travel and living expenses, to the satisfaction of the Customer, incurred during the prior month. Such invoices will contain documentation for travel and living expenses. Invoiced amounts shall be due and payable by Customer within fifteen (15) days after receipt.
1.4.4.4 In the event that implementation and consulting services are provided by Caduceus to Customer in excess of the estimated 584 hours as described in Paragraph 1.4.5 herein, the fees for such services will be billed to Customer at the beginning of the month for the prior 30 day period when the estimate was exceeded. All invoices for services will include documentation which shows the individual who performed the service, the tasks that the individual performed and the number of hours worked to complete the task. Any fees for services in excess of 584 hours will be approved by Customer before the work is performed. Any work in excess of 584 hours that is authorized by Customer will be billed at the hourly rate of $125 per hour until the successful completion of acceptance testing and go-live use of the system has commenced. In the event that implementation and consulting services are provided by Caduceus to Customer at a total amount less than the estimated 584 hours described in Paragraph 1.4.5 herein, Caduceus will refund to customer a portion of the amount already paid under Paragraph 1.4.4.2 using the following formula or, if the payment has not yet been made under Paragraph 1.4.4.2, will accept a reduction to the amount listed in Paragraph 1.4.4.2 based on the same formula:
Refund/
reduction = (548 hours – total hours of implementation/consulting services) x $125/hour
amount
1.4.5 Description of Estimated Hours for Implementation. The following table shows the estimated hours necessary for implementation project completion for Caduceus’ personnel and Customer personnel:
1.4.5.1 Estimated Implementation Hours for Customer |
|||
Project Tasks/Activity Estimates |
Caduceus’ Staff Estimated Hours |
Customer’s Staff Estimated Hours | |
Project Planning |
10 |
58 | |
Data Conversion Analysis, Design and Development |
102 |
410 | |
Process Redesign and System Set-up |
132 |
204 | |
User Training |
160 |
570 | |
Operations Readiness Assessment and Go-Live Activities |
120 |
54 | |
Project Management |
30 |
320 | |
TOTAL Estimated Hours |
584 |
1756 | |
Note: All hours are estimates based on pre-project plan assumptions. | |||
1.4.6 Reimbursable Travel Expenses. Customer agrees to reimburse Caduceus for reasonable and customary travel and living expenses for Caduceus personnel to travel to Customer’s facility in San Mateo, California to perform services on-site at Customer’s facility. Expenses for airfare, ground transportation, hotel, meals and living will be invoiced at the beginning of each month throughout the implementation project for expenses incurred during the previous month and invoices for these expenses will be accompanied by receipts and substantiating documentation for the expenses.
1.4.6.1 Caduceus agrees that reimbursable travel expenses will not exceed $20,000.00 if Customer’s implementation project is completed according to the preliminary implementation project plan provided by Caduceus. Caduceus has estimated in the preliminary project plan that the travel and living expenses necessary to execute the plan will consist of the following:
(i) Eight (8) round-trip airfares between Austin, Texas and San Francisco, California, and
(ii) Auto rentals in California for a period of 40 days, and
(iii) Forty (40) person days of per diem, parking and meal expenses, and
(iv) Thirty-two (32) person nights of hotel expenses.
1.4.6.2 In the event that (i) Customer and Caduceus mutually agree to change the preliminary project plan or the services to be provided on-site at Customer’s facility by Caduceus personnel, and (ii) any such mutually agreed upon change results in additional travel and living expenses beyond those included in the preliminary project plan, then Customer agrees to reimburse Caduceus for such travel expenses even if such travel expense exceeds $20,000.00 in aggregate. Customer and Caduceus agree that a change order must be executed by both parties that acknowledges and authorizes such a change before the services are provided or the travel expense that results from the change is incurred by either party.
EXHIBIT D
CADUCEUS MATERIALS MANAGEMENT
INFORMATION SYSTEM
This PRODUCT SUPPORT EXHIBIT (the “Exhibit”) will become effective at the end of the Warranty Period as defined in Paragraph 2.9.1 of the License Agreement. (the “Effective Date”).
ARTICLE I
DEFINITIONS
In addition to the definitions in the License Agreement, the following exhibits shall apply:
1.0 New System Version shall mean a System Release of such magnitude that, under the principles set forth in Section 2.1(c), a payment by Customer is necessary in order for Customer to receive a System Release.
1.1 Non-Caduceus Error shall mean:
(i) use of the Caduceus MMIS System by Customer other than as specified in the Caduceus MMIS System Specifications;
(ii) incorrect or incomplete data or input provided for the Caduceus MMIS System by the Customer;
(iii) use with the Caduceus MMIS System of any modification made by Customer that causes the Caduceus MMIS System to fail to conform to applicable Caduceus MMIS System Specifications;
(iv) any failure of the Caduceus MMIS System which could have been avoided through Customer’s updating of the Caduceus MMIS System to the level of the Current Release within 180 days of the availability of the Current Release;
(v) use by Customer of devices which are not compatible with those specified for the Current Release;
(vi) any failure of the Caduceus MMIS System caused by usage of the Caduceus MMIS System with versions or releases of operating system or systems software other than those provided for in the applicable Caduceus MMIS System Specifications; or
(vii) any other failure of the Caduceus MMIS System to conform to applicable Caduceus MMIS System Specifications which is not caused by Caduceus.
1.2 Optional Applications Software shall mean software for which Caduceus customarily charges a separate license fee. Optional Applications Software requires separate inclusion in and by amendment to the License and to this Exhibit in order to be subject to the services provided by this Exhibit.
1.3 Previous Release shall mean, at any time, the Caduceus MMIS System as it existed immediately before the most recent System Release.
1.4 Time and Materials Basis and Time and Material Rates shall mean the terms and conditions or the rates, as the case may be, set forth in Attachment A hereto, as amended from time to time in accordance with the terms thereof.
ARTICLE II
PRODUCT SUPPORT SERVICES
2.1 Product Support Services Provided By Caduceus. Caduceus will provide the following product support services:
a. Diagnosis and Correction of Problems
If, during the term of this Exhibit, Customer encounters a problem in the usage of Current Release or the Previous Release, Customer may notify Caduceus, using a Program Problem Report in the format specified by Caduceus.
If the problem represents non-conformity to Caduceus MMIS System Specifications and is not a Non-Caduceus Error, then Caduceus, within a reasonable time and without further charge, will make such modifications as are required to correct the problem. These modifications will be included in the next available System Release. If the problem materially affects Customer’s use of the Current Release or the Previous Release, Caduceus will, upon request, furnish the modifications as a Program Temporary Fix (PTF).
For Critical Errors, Caduceus will apply immediate and constant attention to the problem until it is resolved. In addition, where necessary and practical, Caduceus will devise a viable “work around” while proceeding as soon as practicable to implement a permanent correction. Customer agrees to supply to Caduceus data and assistance as may reasonably be required to correct such failure to conform. As used herein, the term “Critical Error” shall mean a malfunction or error in the Caduceus MMIS which critically impacts or severely restricts the ability of Customer to use the Caduceus MMIS System to process Customer’s work in a timely and accurate manner, as opposed to malfunctions which render the program usable with some functions impaired where such functions are not critical to Customer’s business operations.
If a Non-Caduceus Error causes the problem, then Customer will pay Caduceus on a Time and Materials Basis for the services rendered by Caduceus in analyzing the problem. Customer may request the services of Caduceus to correct a Non-Caduceus Error, and Caduceus will use its best efforts to correct any such error. If Caduceus provides such services to correct a Non-Caduceus Error, Customer will pay for them on a Time and Materials Basis at the rates set forth in Attachment A, or the then-applicable rates in effect.
Customer and Caduceus acknowledge that, under the terms of Customer’s License of the Caduceus MMIS System, certain modifications may have been made to Customer’s version of the Caduceus MMIS that are peculiar to Customer’s needs and/or have not been included by Caduceus in its Caduceus MMIS Base System (a “Modification”). In the event that: (i) a problem is caused by a failure of any Modification to work properly with a new release of the Caduceus MMIS System being used by Customer; and (ii) the particular Modification in issue has not been included by Caduceus in the Caduceus MMIS Base System for that release; then any necessary analysis and corrective work necessary to cause the Modification to operate within the new Caduceus MMIS System release will be charged by Caduceus to Customer on a Time and Materials Basis at the rates set forth in Exhibit A, or the then-applicable rates in effect.
b. Regular Enhancements
Caduceus will provide Customer with updates, releases and enhancements to the Caduceus MMIS System normally provided its customers under its Product Support Program. Customer will have a non-exclusive license to use such
updates, releases and enhancements under the License subject to the terms and
conditions of the License. Installation of updates, releases and enhancements will
be the responsibility of Customer. Customer acknowledges that each System Release must be installed in appropriate sequence. Any failure of the Current Release or the Previous Release to conform to Caduceus MMIS System Specifications caused by Customer’s failure to so install will be deemed to be Non-Caduceus Error.
c. Product Support Program
Caduceus intends to enhance the Caduceus MMIS System as reasonably desired by Caduceus' customers, to the extent such enhancements can reasonably be funded by Caduceus’ Product Support Revenues. To that end, Caduceus will consider the needs and desires of each customer in allocating Product Support resources. Enhancements to the Caduceus MMIS may be proposed by either Caduceus or a customer. With respect to each proposed enhancement, Caduceus reserves the right to determine whether such enhancement is feasible and whether the enhancement can reasonably be funded by Caduceus’ Product Support revenues. Caduceus will periodically notify Customer of the enhancements which have been proposed, the order and time in which Caduceus expects to implement them and the amount which Caduceus has determined can reasonably be funded by Caduceus’ Product Support revenues. Caduceus will seek Customer’s input on the enhancement schedule. If the enhancement cannot be funded by Caduceus’ Product Support revenues, Caduceus may elect to make the enhancement available as a New System Version or as Optional Applications Software.
d. Support for Regulatory Changes
Caduceus intends that the Caduceus MMIS will conform to new laws and regulations which are of general applicability throughout the United States and the State of California healthcare industry as they affect functions supported by the Caduceus MMIS System, and subject to Section 2.1(c), Caduceus will use its best efforts to assure that the Caduceus MMIS System enables Customer to comply with such laws and regulations; provided, however, Caduceus’ obligations hereunder shall apply only to new laws, new regulations and interpretations of existing and new laws and regulations of which Caduceus is aware or which are brought to Caduceus’ attention by Customer or other customers of Caduceus; and, provided further, with respect to interpretations of laws or regulations, Caduceus’ only obligation will be to implement Caduceus’ interpretations of the same.
e. Support of Operations System Software Releases
Caduceus intends that the Caduceus MMIS will operate under the current and future releases of the Operating System software furnished by the manufacturer for use and any updated versions of such releases or any new releases which will be supported by its manufacturer and used by Customer, provided that the manufacturer continues full upward compatibility with respect to the Operating System. Caduceus recognizes the potential for change in Operating System Software support levels over the term of this Exhibit. Caduceus will notify Customer of any change in Operating System Software support.
Within the terms of the Product Support Program described in Section 2.1(c), Caduceus will use its best efforts to provide Customer any Program Temporary Fixes (PTF’s) required to enable the Current Release to operate under new Operating System Software releases within a period of twelve months following their general release. If this Exhibit is still in effect at the time of the next available System Release, then these PTF’s will be made part of such System Release.
f. Telephone Consultation and Help Desk
Caduceus will make available to Customer reasonable telephone consultation to assist in the implementation and/or utilization of the Current Release or the Previous Release. Caduceus will provide Help Desk support to Customer’s employees during a period of Monday through Friday (excluding holidays) for a ten (10) hour contiguous period between 8:00 am and 8:00 pm Central Standard Time. Help desk and telephone support services provided to Customer under this exhibit will be limited to a maximum of twelve (12) hours per calendar month. In the event that the telephone consultation requested by Customer exceeds 12 hours in a calendar month, then Caduceus will notify Customer of the terms and conditions under which the consultation requested by Customer will be provided.
g. System Documentation
In conjunction with System Releases, New System Versions and Optional Applications Software, Caduceus will provide at no extra charge one (1) copy of updates to the documentation for the Current Release.
h. Special Programming Services
Should Caduceus become involved in any resolution of a Non-Caduceus Error, or upon other requests by Customer, Caduceus may from time to time make programming services available to Customer. Customer will pay Caduceus for these services on a Time and Materials Basis at the rates set forth in Attachment A, or the then-applicable rates in effect, with a one (1) hour minimum charge for services provided from Caduceus’ offices and an eight (8) hour minimum charge for each day services are performed at Customer’s site.
i. Support Caduceus MMIS System Releases
Caduceus will provide support for the Current Release and the Previous Release. Caduceus will use reasonable efforts to support earlier revision levels on a Time and Materials Basis at the rates set forth in Attachment A or the then-applicable rates in effect.
2.2 Lapse in Coverage. Caduceus reserves the right to refuse to execute, or to specify the terms under which Caduceus will execute, a Product Support Exhibit with Customer if there is any period of time under the License during which there is no Product Support Exhibit in full force and effect between Caduceus and the Customer.
2.3 Other Caduceus Obligations. Caduceus assumes no obligations or liabilities to Customer except as expressly provided in this Exhibit.
ARTICLE III
CUSTOMER RESPONSIBILITIES
3.1 License of Caduceus MMIS System. During the term of this Exhibit, Customer shall maintain in force a license from Caduceus of the proprietary software system known as the Caduceus MMIS pursuant to the software License Agreement between Customer and Caduceus which has been executed contemporaneously with this Exhibit (the “License”). Any breach by Customer of its obligations under the terms of the License shall also constitute a breach of this Exhibit, entitling Caduceus to terminate this Exhibit or pursue any other remedies available to Caduceus.
3.2 Cooperation. Customer will cooperate with Caduceus as may be reasonably necessary to enable Caduceus to properly perform its obligations under this Exhibit.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Exhibit shall commence on the beginning of the month immediately following expiration of the one hundred eighty (180) day warranty as specified in the License Agreement and continue in force for each month until the end of the calendar year (hereafter called the “Initial Product Support Period”). At the end of the Initial Product Support Period, this Exhibit will continue on an annual basis for one (1) full year.
4.2 Termination for Cause. In the event that either party to this Exhibit shall be in material breach of this Exhibit and the breaching party fails to substantially cure such breach within
ninety (90) days after its receipt of a written notice specifying the details of the breach or, with respect to any material breach which cannot reasonably be cured within ninety days, should the breaching party fail to proceed within ninety days to commence curing the breach and thereafter to proceed with all due diligence to cure the breach, the party not in breach of this Exhibit may terminate this Exhibit by giving prompt written notice of termination.
4.3 Termination for Nonpayment. In the event Customer fails to pay all amounts due Caduceus in accordance with the terms of this Exhibit, Caduceus may terminate this Exhibit upon ten (10) days written notice to Customer.
4.4 Lapse in Coverage Due to Non-Payment by Customer. If Customer fails to make its payments for the product support services described in this Exhibit, or causes its subscription to expire, Customer will the right to continue using the System at its own risk, without benefit of upgrades or support, and agrees that Caduceus shall not be liable or responsible for any errors or problems with the System and/or its associated third-party data from that time forward.
ARTICLE V
CADUCEUS CHARGES
5.1 Product Support Fees. On the first day of the first month of the Initial Product Support Period, and continuing on the first of each month of the Initial Product Support Period thereafter, Customer will pay to Caduceus a product support fee of $2,000.00. On January 1st of the first full calendar year following the Initial Product Support Period, Customer agrees to pay an annual fee of $24,000.00.
5.2 Charges for Services on a Time and Materials Basis. Caduceus will invoice Customer monthly in arrears for services provided to Customer on a Time and Materials Basis, if any, provided during the applicable month. Invoiced amounts shall be due and payable by Customer within fifteen (15) days after the Customer’s receipt. Any amounts remaining unpaid for more than thirty (30) days after the applicable invoice date shall bear interest at the rate of 1.5% per month (but in no event to exceed the highest applicable lawful rate of interest).
5.3 Custom Modifications Developed for Customer by Caduceus. If Customer elects to procure services from Caduceus to analyze, design, develop, test and install customized or modified programming logic, Caduceus will evaluate whether the specific modification, when completed, will be eligible for inclusion into the base version of the System. Caduceus agrees to inform Customer, prior to developing a modification specific to Customer, if the modification will be supported as a base system capability or whether additional charges may apply to retrofit the modification to future releases of the System.
ATTACHMENT A TO THE PRODUCT SUPPORT EXHIBIT
TIME AND MATERIALS RATES
The following rates shall apply to any and all services performed by Caduceus that are to be provided on a Time and Materials Basis:
1. Time and Materials Rates for Professional Personnel:
PROJECT EXECUTIVE $165 PER HOUR
PROJECT MANAGER
SENIOR USER CONSULTANT $150 PER HOUR
SYSTEMS ARCHITECT
CONVERSION SPECIALIST
DATA LOAD SPECIALIST
SENIOR TECHNICAL CONSULTANT
BUSINESS AND PROCESS ANALYST
HARDWARE SPECIALIST
USER CONSULTANT $135 PER HOUR
SYSTEMS ANALYST,
C++ PROGRAMMER
_______________________________________________________________________________
DOCUMENTATION SPECIALIST $125 PER HOUR
2. The above-listed rates may be changed by Caduceus upon sixty (60) days advance written Notice by Caduceus to Customer.
3. Time and Materials Rates for Travel Expenses: Customer will pay Caduceus for all reasonable travel, lodging and subsistence expenses incurred by Caduceus’ personnel while traveling pursuant to this Exhibit. Customer is responsible for all travel, lodging and subsistence expenses of Customer’s own employees.
Reasonable travel time incurred by Caduceus personnel pursuant to this Exhibit to and from Customer’s work site will be invoiced at ½ such person’s standard hourly rate.
EXHIBIT E
CUSTOMER INTERFACES
1.1 Interfaces to be provided by Caduceus. The estimates included in Exhibit C, Paragraph 1.4.1 include the development and implementation of a bi-directional electronic interface between the Caduceus MMIS and Customer’s existing ADT system which will be provided by Caduceus using the HL/7 standard format at no additional charge. The interface will import the required patient identification information to the Caduceus MMIS from Customer’s ADT system and export patient supply charges from the Caduceus MMIS to Customer’s patient billing system.
1.2 Interfaces for General Ledger and Accounts Payable Systems. The following interfaces will be completed as part of a second phase of the implementation project to be called Phase 2. Phase 2 will not commence until the successful completion of acceptance testing and go-live use of the system. At such time, the interfaces described in Paragraphs 1.2.1 and 1.2.2 will be completed by Caduceus as described herein and will be done at the sole election of Customer.
1.2.1 Interface for General Ledger System. An interface to Customer’s specific Sunguard Data Systems IFAS General Ledger System will be provided by Caduceus. Customer agrees that the fee for this interface will be $10,000.00
1.2.2 Interface for Accounts Payable System. An interface to Customer’s specific Sunguard Data Systems IFAS Accounts Payable System will be provided by Caduceus. Customer agrees that the fee for this interface will be $10,000.00
1.3 Payment Terms for Interfaces. The fees for the interfaces to Customer’s General Ledger and Accounts Payable Systems as described above will be payable upon the successful completion of Customer’s acceptance testing.
1.4 Additional Interfaces. In addition to the interfaces described in Paragraphs 1.1, 1.2 and 1.3 above, Caduceus will provide additional interfaces as desired by Customer for a fixed price fee of $10,000.00 per interface.
EXHIBIT F
HARDWARE
1.1 Motorola Symbol MC55 Wireless Scanner Device Purchase
Customer hereby authorizes the purchase of the following hardware for use in conjunction with the System in the quantities stated and for the prices stated herein. Customer acknowledges that the hardware is manufactured by Motorola and that Caduceus is acting as a reseller of Motorola products and that the warranty provided to Customer for this equipment is provided by the Motorola Corporation. The Motorola hardware to be provided to Customer is as follows:
ITEM NUMBER QUANTITY PRICE EACH EXTENDED PRICE
=======================================================================
SYM-MC5574P7CDUQRA9W 5 $1,561.00 $7,805.00
Symbol Wireless Scanner
SYM-BTRYMC55EAB00 5 $40.00 $200.00
Battery for MC55 Scanner
SYM-CRD5500100UR 5 $136.46 $682.30
MC55 DESKTOP CRADLE KIT
SYM-256859601R 1 no charge 0.00
USB Cable
Total For Five (5) Motorola Symbol MC55 Wireless Scanners ……….. $8,687.30
1.2 Maintenance for Motorola MC55 Scanner Devices
The three (3) year maintenance program for the MC55 devices will be provided by the Motorola Corporation according to the following:
ITEM NUMBER QUANTITY PRICE EACH EXTENDED PRICE
=======================================================================
SYM-SSBMC55XX30 5 $209.00 $1,045.00
3 Year Service-From-the-Start
Service Center Maintenance Coverage
Bronze Level Maintenance
1.3 Wavelink Communications Software
Wavelink is third party software that is used to facilitate communications between the MC55 scanning devices and the server and is used in conjunction with the System. Customer acknowledges that Caduceus is acting as a reseller for Wavelink and that warranty and maintenance services for the Wavelink product are provided by the Wavelink Corporation.
ITEM NUMBER QUANTITY PRICE EACH EXTENDED PRICE
=======================================================================
WAV-110LISTCS30 1 $189.00 $189.00
WAVELINK STUDIO COM SERVER
(Includes one client license)
WAV-110LISTCU30 4 189.00 $756.00
STUDIO COM CLIENT
(additional user license)
Total license for Wavelink Software……………… $945.00
1.4 Wavelink Communications Software Annual Maintenance
ITEM NUMBER QUANTITY PRICE EACH EXTENDED PRICE
=======================================================================
WAV-110MASTCS30 1 $39.00 $39.00
STUDIO COM SERVER
WAV-110MASTCU30 4 $39.00 $156.00
WAVELINK STUDIO COM CLIENT
(additional User License Maintenance)
Total annual maintenance for Wavelink ……………….. $195.00
2.1 Required Enterprise and Database Server Hardware
Customer will provide a server for use by the System and such server is where the Database and Enterprise components of the Caduceus MMIS will reside for processing purposes. The server will be compatible with Microsoft Server 2003 OS software, or a more recent version, and will have available capacity of not less than the configuration shown in the following table. The server can be configured and operated as a dedicated server or operate as a virtual server.
2.1.1 Database and Enterprise Server Configuration | |
Processors |
4 Processor Cores |
Disk |
RAID |
Memory |
8 GB |
Other |
CD ROM |
Disk |
320 GB |
Other |
CD ROM, XGA Graphics Card (or greater) |
2.2 RF Server Component
In addition to the Enterprise and Database components of the System, another component called the RF Server (Radio Frequency) is a part of the Caduceus MMIS. With sufficient capacity available, this RF Server component can be operated on any of the following: (i) using virtualization on an existing server, or (ii) on a desktop equivalent server, or (iii) on the same server as is specified above for the Database and Enterprise components. The RF Server will have available capacity of not less than the configuration shown in the following table:
Remote Radio Frequency Terminal Server Configuration (For connectivity of wireless devices) | |
Processors |
2 Processor Cores |
Disk |
80 Gig |
Memory |
4 GB |
Other |
XGA or greater, CD ROM |
3.1 Wireless Network
The Caduceus MMIS will use Customer’s existing 802.11(X) Wireless Local Area Network (WLAN). The WLAN infrastructure is to be provided by Customer and the expense of installing and operating the WLAN are Customer’s responsibility and, as such, are outside the scope of this Agreement.