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Legend:
Places in this exhibit where four (4) consecutive asterisks ("****")
appear indicates that a confidential portion of this document has been omitted
in such location. PracticeWorks has filed a request for confidential treatment
with respect to such information, and such information has been filed separately
with the Securities and Exchange Commission.
Exhibit 10.12
[DELL LOGO]
PURCHASE AND MARKETING AGREEMENT
Between
Dell Marketing L.P. InfoCure Corp.
One Dell Way Corporate Headquarters
Round Rock, TX 78682 1765 The Exchange, Suite 500
"Dell" and Atlanta, GA 30339
"Customer"
Customer No. ___________________
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A. INTRODUCTION
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This Purchase and Marketing Agreement (including attachments and the Terms and
Conditions of our service programs, if applicable) (the "Agreement") is between
Dell Marketing L.P. and Customer for (i) the purchase and sale, in the United
States only, of computer hardware and related products, including
software-licensing arrangements specified in this Agreement ("Products") and
services for the Products ("Services"), and (ii) the marketing of Products with
Customer's proprietary software to physicians in the United States in accordance
with the program described in Attachment C ("Physicians Program"). When Dell
refers to "Customer" in this Agreement, Dell means the Customer identified
above. The date on which Dell signs this Agreement is the effective date.
This Agreement runs for an initial one-year term, and it will thereafter renew
automatically for successive one-year terms. Either party may terminate this
Agreement sooner as provided for in the "Termination" section below.
Customer has the option to take advantage of various programs related to the
Customer's purchase of Products and Services from Dell. Customer may take
advantage of the various programs by issuing a purchase order to Dell. Once Dell
accepts the purchase order or does not reject it, the programs will become a
part of this Agreement, along with the "Terms and Conditions" (see "Available
Service Options" below) to which they relate.
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B. HOW TO BUY PRODUCTS
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1. OBTAINING QUOTES. Customer may request a quote for its purchases
on-line from its Premier Pages site or directly from its sales
representative. Dell's written quotes are binding on Dell for thirty
days from the date issued or as otherwise agreed to in writing by the
parties. If, however, there are shortages in materials, increases in
the cost of manufacturing materials or components or other factors
beyond the reasonable control of Dell, Dell may revise the quotes and
increase the price(s) of the Products and Services.
2. ORDERING AND DELIVERY OF PRODUCTS.
(a) Ordering Products. Customer may place an order for Products
and Services by telephone or in writing. Telephone orders must
be confirmed in writing; written orders and telephone order
confirmations may be sent by facsimile. Customer may also
place an order electronically by participating in the
Web-Based Order" program below. Orders will be binding on both
Dell and Customer, unless Dell has notified Customer prior to
its placement, in writing or orally, that Dell is not
accepting the order. Except for order specific terms such as
quantity and pricing, this Agreement will exclusively control
the terms and conditions of all orders Customer places. No
other terms and conditions such as those appearing on or
embedded in orders, confirmations, order acknowledgements or
other communications will be binding.
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(b) Canceling or Changing Orders. Customer may change or cancel an
order until the time Dell begins to manufacture it.
(c) Shipping Dates, Title and Inspection. When Dell accepts an
order, Dell will provide Customer with an estimated ship
date(s) for all Products ordered. Title to the Products,
except software that is subject to licensing agreements (see
"Software" below), passes from Dell to Customer when Dell
ships the Products from its manufacturing location. If
Customer is not satisfied with the Products, it has the right
to return them under the then current "Total Satisfaction"
policies described below.
(d) Web-Based Order Program. Customer may place its orders on-line
through its Premier Pages web site under the Web-Based Order
program. If Customer elects to participate in this program,
Dell will issue user names and passwords (the "Purchase
Codes") to Customer's designated contact person for placing
orders electronically. The names and passwords, which Dell may
revise from time to time, will allow Customer to access its
Premier Pages web site and place online orders. Customer
agrees to keep the Purchasing Codes confidential and control
their use. Customer also agrees that Dell is not responsible
for, and hereby waives, any cause of action against Dell for
Customer's misuse of the Purchase Codes. Dell will deactivate
Customer's Purchase Codes, upon Customer's request. If
electronic orders are placed using the Purchase Codes,
Customer agrees that it will be responsible for full payment
of any Products or Services ordered electronically using this
Web-Based Order program. When Products or Services are ordered
through the use of Purchase Codes, all of the terms and
conditions of this Agreement apply, including but not limited
to those related to order confirmation and limitation of
liability.
3. PRICING AND OTHER CHARGES.
(a) Pricing. This Agreement allows Customer to purchase Products
from Dell under two pricing programs at a discount off
standard list price or special pricing. Customer may meet
Dell's requirements for both programs, but Customer cannot
combine the programs for a single Product purchase. Pricing
related to the Physicians Program is described in Attachment
C.
(b) Discounts Off Standard List Price. Customer's discounts are
listed in Attachment A and are based on Customer's commitment
to purchase its exclusive internal hardware requirements from
Dell. With thirty days' notice, Dell may adjust Customer's
discounts if Customer's annual purchases do not meet that
commitment. If Customer orders Products under the new
discounts, those orders are Customer's acceptance of the new
discounts for purchases going forward.
(c) Special Pricing. During the term of this Agreement, Dell may
offer to Customer special pricing on a limited number of
configurations for a limited period of time. Special pricing
is available based on Customer's commitment to purchase a
certain quantity of the designated configurations. Add-ons or
modifications to the designated configurations will be priced
at the discount under the Discounts Off Standard List Price
provided for in Attachment A.
(d) How Dell Calculates Customer's Discounts. The discount rates
are a percentage reduction off of Dell's then-current standard
list prices for Products and are calculated before shipping
and handling charges are added. All standard list prices are
in U.S. dollars and will change from time-to-time. Customer's
discounts are not available for special Products promotions
and cannot be combined with other offers.
(e) Sales and Other Transaction Taxes. Except for taxes imposed on
the net income of Dell, Customer is responsible for and agrees
to pay all sales, value added and other transactional taxes
associated with the sale of Products and Services, unless
Customer provides to Dell a valid tax exemption certificate.
(f) Shipping and Handling Options and Pricing. Customer may select
from one of the two following shipping options: (1) Customer
may direct Dell to ship Products using Dell's designated
carrier or (2) Customer may designate another carrier. If
Customer directs Dell to ship by using Dell's designated
carrier, Dell will invoice Customer for shipping and handling
costs, and Dell will bear the risk of loss of or any damage to
the Products during shipping. If Customer directs Dell to ship
by using Customer's designated carrier, Dell will ship
Products via Customer's carrier, freight collect or freight
prepaid by Customer, and Customer will bear the risk of loss
of or any damage to the Products during shipping.
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4. INVOICING/PAYMENT.
(a) Invoice. Dell will send invoices to Customer for Products or
Services Customer purchases when or shortly after the Products
are shipped.
(b) Payment Terms. Customer's payment terms will be net thirty
days from the invoice date, subject to continuing credit
approval. For invoices not paid within thirty days of the
invoice date, a late penalty charge of one percent (1%) per
month (pro-rated daily) will be applied against undisputed
overdue amounts. If amounts are overdue, Dell may, without
waiving any other rights and remedies to which Dell may be
entitled, decide not to accept additional orders from
Customer, terminate this Agreement, refuse to ship ordered
Products and/or seek collection from Customer of all amounts
due, including reasonable legal fees and costs of collection.
5. PRODUCT SPECIFICATION. Dell has not tested or certified its Products
for use in high risk applications including medical life support,
nuclear power, mass and air transportation control or any other
potentially life critical uses. Customer understands and agrees that
Dell makes no assurances that the Products are suitable for any
high-risk uses. Dell continually upgrades and revises its Product lines
to provide Dell customers with the new Product offerings. Dell may
revise or discontinue Product offerings at any time without prior
notice to its customers. This constant Product re-engineering may occur
between the time Customer orders Products and when Dell ships those
Products to Customer. As a result, Products shipped to Customer may
display minor differences from the Products Customer ordered, but they
will meet or exceed all material specifications of the Products
Customer ordered. In addition, Dell will meet with Customer quarterly
to discuss product roadmaps on the configurations for which Customer
receives special pricing.
6. AFFILIATES. Customer, its corporate parent(s), and their subsidiaries
and affiliates that are majority-owned by them or are under the voting
control of any of them (referred to as "Affiliate" or "Affiliates") may
order Products under this Agreement. Customer agrees to make all
Affiliates aware of the terms and conditions of this Agreement and that
by submitting an order each respective Affiliate agrees to be bound by
such terms and conditions. Dell, in its sole discretion, may
discontinue selling Products under this Agreement to any Affiliate or
may require additional payment conditions for any Affiliate. Each
Affiliate must agree that it is buying for its own use, and not for
resale.
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C. AVAILABLE SERVICE OPTIONS
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Dell will provide general service and support, to Customer in the United States,
in accordance with the service and support policies and conditions available at
the time Customer purchases the Products.
For an additional charge, Customer may customize its service and support by
selecting from optional service programs available from Dell. Examples of some
of current service programs available from Dell are listed below. For
information about those and other optional service programs, Customer may
contact its sales representative or visit Dell's web site at www.dell.com.
<TABLE>
<S> <C>
ON-SITE SERVICE FOR NOTEBOOKS, DESKTOPS, INSTALLATION SERVICES FOR NOTEBOOKS, DESKTOPS
WORKSTATIONS AND SERVERS AND WORKSTATIONS
- Four-Hour On-Site Service - Basic
- Next Business Day On-Site Service - Classic
- Comprehensive
INSTALLATION SERVICES FOR SERVERS CUSTOM SERVICES
CONSULTING SERVICES
</TABLE>
Customer may select any of the service programs by issuing a purchase order to
Dell. Submission of a purchase order for service programs is Customer's
acknowledgement, acceptance and agreement to be bound by the then-current terms
and conditions for the service programs ("Terms and Conditions") that are listed
on our web site at http://support.dell.com/support/scontracts/ or provided by
Customer's sales representative.
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Once Dell has either accepted the purchase order or not rejected it, Dell will
provide the services in accordance with the Terms and Conditions. The Terms and
Conditions are in addition to the terms and conditions of this Agreement, which
continues to control purchases of Products and Services by Customer. The Terms
and Conditions of our service program may be revised from time to time at Dell's
discretion, but Customer's service program will be governed by the Terms and
Conditions in effect at the time of Customer's purchase. Dell will invoice and
Customer agrees to pay the charges for the additional service programs Customer
selected as Products and Services are purchased under this Agreement.
Dell may change its general service and support levels and programs at any time
without notice, and Dell makes no guarantee of what services Dell will offer
customers during the life of the Products Customer purchases. The service
program in place at the time of purchase is the program that will apply to the
Services purchased.
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D. ADDITIONAL OFFERINGS AVAILABLE TO CUSTOMER
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Dell also provides the following options to Customer in the United States in
accordance the policies and conditions available at the time Customer purchases
the Products. Dell may, however, change these options or their terms and
conditions at any time without notice.
1. DELLPLUS FACTORY INTEGRATION SERVICES. Customer may purchase factory
integration services. Dell will provide factor integration services to
Customer upon the terms and conditions set forth in Attachment B.
2. EMPLOYEE PURCHASE PROGRAM. Under this program, Customer may extend to
its employees certain purchasing rights, including the right to
purchase selected configurations of Dell's products at a discount. To
participate in this program, please contact Customer's sales
representative. Purchases by Customer's employees under this program
will count toward Customer's annual purchase commitment, but Customer's
employees must pay for Products and Services in accordance with Dell's
terms and conditions for sales to individuals.
3. PREMIER PAGES SERVICE. The Premier Pages service is Customer's on-line
connection to Dell. Working with the Customer, Dell can customize a
site for Customer and its authorized employees to access. To establish
Customer's customized Premier Pages site, please contact Customer's
sales representative.
4. PRODUCT EVALUATION OPPORTUNITIES. Customer may evaluate or demo certain
Products under Dell's Product Evaluation program. The terms and
conditions under which Customer may evaluate or demo certain Products
are located at http://support.dell.com/support/scontracts/pea.htm.
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E. ABOUT DELL'S PROGRAMS AND POLICIES
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In addition to the terms in this Agreement, Customer may also benefit from the
programs and policies listed below. The current terms and conditions of Dell's
limited warranties and return policies are available at
http://www.dell.com/policy/legal/termsofsale.htm, although the exact terms and
conditions may be revised from time to time at Dell's discretion. The offering
in place at the time of purchase is the offering that will apply to the Products
purchased.
<TABLE>
<S> <C> <C> <C>
- One Year Limited and Three Years - Total Satisfaction Policy and Limited Warranty for DellWare
Limited Warranty on Dell-branded Products and other third party products factory integrated into
hardware Products Products under DellPlus Factory Integration Services
- 30 Days Total Satisfaction Policy for
Dell-branded hardware Products
</TABLE>
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F. ABOUT OUR RELATIONSHIP UNDER THIS AGREEMENT
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1. COMPLIANCE/EXPORT RESTRICTIONS. Dell and Customer agree to comply with
all applicable laws related to the use and manufacture of Products.
Customer agrees to comply with all applicable export laws, regulations
and orders. In addition, each party agrees to indemnify, defend and hold
the other harmless from any claims, demands or causes of action
("Claim") against the other due to the indemnifying party's violation or
alleged violation of the applicable export laws, regulations and orders.
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2. SOFTWARE. Dell distributes software with its hardware Products.
Customer agrees and understands that Dell provides this software to
Customer subject to the license agreement shipped with the software or
in a separate agreement between Customer and the software licensor.
Customer agrees that it is bound to and will abide by each such license
agreement.
3. WARRANTY DISCLAIMERS.
DELL DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES ON SERVICES OR
PRODUCTS EXCEPT THOSE INCLUDED IN THE LIMITED WARRANTY STATEMENTS
SHIPPED WITH PRODUCTS. THOSE LIMITED WARRANTY STATEMENTS ARE THE
EXCLUSIVE CONTROLLING TERMS AND CONDITIONS OF THE LIMITED WARRANTIES
FOR PRODUCTS, AND THERE ARE NO WARRANTIES FOR SERVICES. NOTHING IN THIS
AGREEMENT OR ANY OTHER WRITTEN DOCUMENTATION OR ANY ORAL COMMUNICATIONS
WITH CUSTOMER MAY ALTER THE TERMS AND CONDITIONS OF DELL'S LIMITED
WARRANTY STATEMENTS OR DELL'S DISCLAIMER OF WARRANTY FOR SERVICES. DELL
MAY, IN ITS SOLE DISCRETION, REVISE ITS LIMITED WARRANTIES FROM TIME TO
TIME. NO CHANGE IN LIMITED WARRANTIES WILL AFFECT PRODUCTS ALREADY
ORDERED BY CUSTOMER. IF CUSTOMER HAS NOT TIMELY PAID DELL FOR PRODUCTS
OR SERVICES, DELL MAY, IN ITS SOLE DISCRETION, DISCONTINUE PROVIDING
WARRANTY, SERVICE AND TECHNICAL SUPPORT FOR THE UNPAID PRODUCT OR
SERVICES. DELL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. ANY WARRANTY PROVIDED ON SOFTWARE
OR A DELLWARE PRODUCT IS PROVIDED BY THE PUBLISHER OR ORIGINAL
MANUFACTURER AND MAY VARY FROM PRODUCT TO PRODUCT.
4. DELL'S INDEMNITY FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS. Dell will indemnify Customer from any third party claim that a
Dell-branded hardware Product infringes on another person's or
company's patent, copyright, trade secret or other intellectual
property right in the United States as specified in this Section. This
indemnity does not cover and specifically excludes (a) intellectual
property rights recognized in countries and jurisdictions other than
the United States; and (b) claims relating to DellWare products,
Products of other manufacturers distributed to Customer by Dell, and
software. Dell has no obligation under this Section for any claim
resulting or arising from Customer's unauthorized modification of a
Product or from any combination, operation or use of the Products with
systems other than those provided by Dell to the extent that the claim
is caused by such modification, combination, operation or use of the
Products. Dell's duty to indemnify under this Section is contingent
upon Dell receiving prompt notice of a claim and Dell's right to solely
control resolution of a claim. Customer's sole remedy for an
indemnified claim under this Section is as follows: Dell will, at its
expense and in its discretion either (a) resolve the claim in a way
that permits Customer's continued ownership and use of the affected
Product, (b) provide a comparable, non-infringing replacement at no
cost to Customer, or (c) accept return of the Product freight collect
and provide a reasonable depreciated refund. This Section is the
exclusive statement of Dell's liability and responsibility for
indemnifying Customer and nothing in this Agreement or elsewhere will
obligate Dell to provide any greater indemnity to Customer.
5. LIMITATION OF LIABILITY. DELL AND CUSTOMER EACH EXPRESSLY AGREE AND
UNDERSTAND THAT THE OTHER PARTY WILL NOT HAVE ANY LIABILITY BEYOND THE
REMEDIES SET FORTH IN THIS AGREEMENT, INCLUDING ANY LIABILITY FOR
PRODUCTS NOT BEING AVAILABLE FOR USE, FOR LOSS OR CORRUPTED DATA OR
SOFTWARE, PERSONAL INJURY, DEATH OR OTHER LOSS DUE TO PRODUCT FAILURE
OR ANY LIABILITY FOR ANY AND ALL INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
PURCHASE, USE OR PERFORMANCE OF PRODUCTS OR SERVICES, EVEN IF THE PARTY
HAS BEEN ADVISED OF THEIR POSSIBILITY. THIS LIMITATION OF LIABILITY
APPLIES BOTH TO PRODUCTS AND SERVICES CUSTOMER PURCHASES UNDER THIS
AGREEMENT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER AGREES
THAT DELL'S, INCLUDING DELL'S AFFILIATES, OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS, LIABILITY RELATED TO OR ARISING OUT OF THE
PURCHASE OF PRODUCTS OR SERVICES PURSUANT TO THIS AGREEMENT IS STRICTLY
LIMITED TO THE TOTAL DOLLAR AMOUNT OF PRODUCTS AND SERVICES PURCHASED
AND PAID FOR BY CUSTOMER PURSUANT TO THIS
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AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE DELL
IS NOTIFIED BY CUSTOMER OF ANY CLAIM OF LIABILITY.
6. CONFIDENTIALITY AND NON-DISCLOSURE. If a separate, written
nondisclosure agreement exists between Dell and Customer, such
agreement will control and will apply according to its terms and
conditions to all confidential information the parties exchange with
each other. If no separate written nondisclosure agreement exists
between Dell and Customer, the terms listed in Attachment D will apply
to the confidential information the parties exchange with each other.
7. TERMINATION.
(a) Notice of Termination. Either party may terminate this
Agreement at any time for any reason (with or without cause)
by providing at least thirty days' prior written notice. If
either party breaches its obligations under this Agreement,
the other party may terminate this Agreement by providing ten
days' prior written notice.
(b) Effect of Termination. If either party gives notices of
termination, Dell may, but will not be obligated to, accept
orders from Customer. The terms and conditions of this
Agreement will control the acceptance and shipment of any
orders before termination.
8. NOTICES. To give notice under this Agreement, the notice must be in
writing and will be effective when delivered to the other party at the
addresses listed at the beginning of this Agreement. For notices to
Dell, Customer will send a copy to Dell Marketing L.P., Attn: Contracts
Manager, One Dell Way, RR 3, Box 14, Round Rock, TX 78682. Any change
of address must be sent to the other party in writing.
9. MISCELLANEOUS.
(a) General Assignments and Assignment for Third Party Leasing.
Either party without the express written consent of the other
may not assign this Agreement, except that no consent shall be
required for any assignments by Dell to its affiliates or
subsidiaries. With Dell's prior approval, for the purpose of
leasing Products, Customer may assign its rights to purchase
Products under this Agreement to a third party on the terms
listed in the Revocable Assignment for Third Party Leasing.
Customer may obtain the Revocable Assignment for Third Party
Leasing from its sales representative.
(b) Independence of Parties. No provision of this Agreement will
or shall be deemed to create a partnership, joint venture or
other combination between Dell and Customer.
(c) Entire Agreement. This Agreement (with attachments and Terms
and Conditions of our service programs that are material terms
of this Agreement, if applicable) is the entire agreement
between Dell and Customer with respect to its subject matter
and supersedes all prior verbal and written understandings,
communications or agreements between Dell and Customer. No
amendment to or modification of this Agreement, in whole or
part, will be valid or binding unless it is in writing and
executed by authorized representatives of both parties.
(d) Severability. If any provision of this Agreement is void or
unenforceable, the remainder of this Agreement will remain in
full force and will not be terminated.
(e) Events Beyond Either Party's Control. Neither party will be
liable for any delays resulting from circumstances or causes
beyond the party's reasonable control.
(f) Governing Law. The laws of the State of Texas govern this
Agreement.
DELL MARKETING L.P. INFOCURE CORP.
/s/ Teresa M. Shappell /s/ Frederick L. Fine
By: Teresa M. Shappell By: Frederick L. Fine
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Title: General Manager, Dell Healthcare Title: President
Date: August 1, 2000 Date: August 1, 2000
ATTACHMENT A
TO THE PURCHASE AND MARKETING AGREEMENT (THE "AGREEMENT')
DISCOUNT SCHEDULE
<TABLE>
<CAPTION>
PRODUCT CATEGORY* DISCOUNT* PRODUCT DESCRIPTION
----------------- --------- -------------------
<S> <C> <C>
A **** Peripherals, OptiPlex Systems not listed in Category H,
Workstations, Latitude CPi, Latitude CPiA, Latitude CPx,
Latitude CS, Latitude LS, PowerEdge, PowerVault,
PowerApps, Customer kits on Dell stocked accessories &
options
H **** Optiplex GX100
N **** Future Products to be Determined
O **** Directline Service; Dell Open Manage FC
storage software support; 4-hr Service for
Servers/Storage (all yrs.)
L **** Selected application software, non-stocked peripherals
and accessories*
</TABLE>
* Product categories and discount levels are subject to change by Dell at
any time if Dell changes categories for its customers generally.
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ATTACHMENT B
TO THE PURCHASE AND MARKETING AGREEMENT (THE "AGREEMENT")
DELLPLUS FACTORY INTEGRATION SERVICES
Dell will provide factory integration services to Customer on the following
terms and conditions:
DELLPLUS SERVICES PURCHASED. This Attachment shall apply each time Customer
engages Dell to provide DellPlus Integration Services as more fully set forth,
in each case, on the Technical Specification document to be executed by Customer
for each DellPlus Configuration. DellPlus Integration services may include:
1. Installation or integration of Customer's custom software image, which
may include industry standard and/or custom software (in each case, a "DellPlus
Configuration");
2. Installation or integration of a pre-configured bundle of third party
hardware and/or software, in a Dell system ("Order Ready"), and
3. Asset tagging hardware integration or other system integration
services.
TECHNICAL SPECIFICATIONS. Dell may, at Customer's request, deliver to Customer a
"DellPlus Configuration", defined as products which include either (i) DellPlus
Services or (ii) Order Ready bundles for a per-system fee to be determined
between the parties. Customer is responsible for determining Customer technical
specifications for each DellPlus Configuration and for ensuring that those
technical specifications are properly documented to Dell in a verified and
signed "Technical Specification" form. Dell is not responsible for the operation
or suitability of any DellPlus Configuration or for any revision or engineering
changes in any third party products included in a DellPlus Configuration.
Customer acknowledges that the DellPlus Configurations are of Customer's
choosing. Customer is responsible for ensuring that all technical specifications
are properly documented to Dell in a verified and signed "Technical
Specification" form. Dell shall be entitled to rely on the Technical
Specification form. Dell is not responsible for liability or damage arising from
the installation of a DellPlus Configuration performed in accordance with the
Technical Specification form and Customer's instructions. If Dell is of the
reasonable view that the proposed DellPlus Configuration is not technically
feasible, Dell reserves the right to refuse to proceed with the development of
the configuration at any time.
SOFTWARE INSTALLATION. Customer will provide to Dell any custom software to be
installed in a DellPlus Configuration and Customer authorizes Dell to copy,
install and modify, if necessary, all software to be installed in any DellPlus
Configuration or to be recorded in electronic media for subsequent
re-installation of backup. Customer grants to Dell a non-exclusive,
royalty-free, right and license to reproduce, install on Dell Hardware products
and distribute the custom software image in conjunction with sales of Dell
hardware products to Customer and end-users pursuant to the Physician Program
described in Attachment C to this Agreement. Customer represents and warrants
that it has the right to authorize and grant this license to Dell to make
copies, alterations, modifications or adjustments to any software included in a
custom software image for purposes of installation of the DellPlus
Configuration. Customer warrants to Dell that it has obtained the right to
authorize Dell to copy and install any software included in an Order Ready
Configuration. Customer further represents and warrants to Dell and the end
users in the Physicians Program that any of the Software that is proprietary to
Customer does not infringe on any U.S. patent, copyright, trademark, or trade
secret of any third party.
EXPORT. Customer acknowledges that the DellPlus Configurations licensed or sold
hereunder are subject to the export control laws and regulations of the USA or
those of other countries from which they were supplied and in which they are
used. Customer further represents and warrants the facts set forth on the
Technical Specification form or any technical specification sheet or other
document provided by Customer. Customer recognizes that Dell will rely on such
documents if Customer exports products for Customer. Customer is solely
responsible for obtaining any specific licenses relating to the export of
DellPlus Configurations if a license is needed. Dell's acceptance of any order
for a DellPlus Configuration is contingent upon the issuance of any applicable
export license required by the United States Government; Dell is not liable for
delays or failure to deliver a product resulting from Customer's failure to
obtain such license.
INDEMNIFICATION. Customer agrees to indemnify and hold Dell harmless from any
and all liability, damages, claims or proceedings arising out of (i) Customer's
failure to obtain the appropriate license or other intellectual property rights
to support the installation of the DellPlus Configuration or Order Ready
Configuration, including the right to make any copies or reproductions of the
software provided by Customer; or (ii) any inaccurate representations regarding
the existence of an export license or the eligibility for export of software
without a license or (iii) the software image provided to Dell by Customer.
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ATTACHMENT C
TO THE PURCHASE AND MARKETING AGREEMENT (THE "AGREEMENT')
PHYSICIAN MARKETING PROGRAM
Dell Marketing L.P. ("Dell") and InfoCure Corp. ("Company") agree that
the following terms and conditions will apply to Dell's participation as
exclusive computer hardware supplier in the Company's program ("Physicians
Program") to provide physicians and dentists with a computer hardware package
that includes Dell-branded hardware and the Company's proprietary software
image, which image will be provided to Dell from the Company and loaded pursuant
to the Dell's DellPlus Factory Integrated Services. The Program will offer
physicians in the United States ("Buyers") the opportunity to purchase (or to
have purchased on Buyer's behalf for Buyer to lease) computer hardware loaded
with Company's image ("Products") from Dell. In lieu of a direct purchase, Dell
Financial Services L.P., a separate legal entity from Dell, will provide a
leasing option to qualified Buyers, as determined exclusively by Dell Financial
Services L.P.
1. SCOPE AND TERMINATION
1.1 This Agreement covers Buyers in the United States only. Dell and
Company shall use good faith efforts to promptly agree on mutual terms for
expansion of the Physician Program to the United Kingdom, Europe, and Australia.
1.2 Each party may terminate their participation in the Physicians Program
in the manner set forth in Section E7 of the Agreement. Upon termination,
neither party will have any claim for any incidental, indirect, special or
consequential damages against the other arising out of or in connection with the
investment it may have made in the relationship established under the Agreement.
2. PRICES; STANDARD CONFIGURATIONS
2.1 Dell and Company will agree on standard configurations for inclusion in
the Program ("Program Configurations"), the price to be paid by Buyers (or by
Dell Financial Services L.P. on behalf of the Buyers) will be fixed for 90 days
for the Program Configurations. If Dell increases its prices generally to
customers due to shortages of manufacturing materials or components, or to other
factors beyond the control of Dell, then Dell may increase the prices of Program
Configurations with 30 days notice to Company. Any fixed price for the Program
Configurations will be less than the then published list price on www.dell.com.
On a quarterly basis or such other time requested by Company, Dell and Company
will meet to discuss the Products offered in the Program.
2.2 Dell and Company agree that Program Configurations are the Products
that will be promoted for the Program. At Company's request, Dell will consider
adding or changing the Program Configurations. If a Buyer contacts Dell through
the Program and requests pricing on Products other than the Program
Configurations, Dell may (but is not obligated) to offer discounted pricing to
such Buyer, and the discount, if any, for such other Products will depend on the
Product and quantity ordered.
2.3 The pricing offered herein and Dell's participation in the Program is
conditioned upon (i) Dell being the only provider of computer hardware,
software, and peripherals recommended by Company to the Buyers for the Intel
platform, and (ii) Company's exclusive purchase of Dell's hardware for its
future internal hardware needs.
2.4 The terms and conditions of each sale to the Buyers (or Dell Financial
Services L.P. to lease to Buyers) will be governed by Dell's standard terms and
conditions.
3. PRODUCTS
3.1 Dell's policy is one of on-going product update and revision. Dell may
revise and discontinue Products and services at any time, without notice,
including the Program Configurations. The Products shipped pursuant to the
Program will meet or exceed the material specifications of Products ordered;
however, minor differences between Products as shipped and Products as described
in a specification sheet or catalog are possible. The parts and assemblies used
in building the Products sold under the Program are selected from new and
equivalent to new parts and assemblies in accordance with industry practices.
<PAGE> 10
3.2 The Products and services to be included in the Program shall be
mutually agreed by Dell and Company. Company acknowledges that a Buyer may
request additional product information and services and Dell, at its sole
discretion, may provide a Buyer with such additional information about, and
sell, such products and services that are not approved for the Program by
Company. Once Dell establishes an account for a Buyer, the Company will be
entitled to Marketing Fee as provided herein on any subsequent purchases by that
Buyer under that account number, including purchases of goods and services
outside of the Program Configurations. Dell reserves the right to limit the
Marketing Fee for such subsequent purchases outside of the Program
Configurations upon thirty (30) days written notice to Company.
4. COMPANY CUSTOM SOFTWARE IMAGE
4.1 The Products sold pursuant to the Program will include the Company's
custom ASP, server-based, and/or licensed software (the "Image"), which Image is
proprietary to Company or Company's licensor. Dell will install the Image
pursuant to this Agreement (Attachment B). Dell will hold any Company
proprietary software in confidence for Company and not use it except as
necessary to perform Dell's obligations under this Agreement to load on Program
Configuration for Buyers.
4.2 Company will bill and collect any fees related to the use of the Image
by the Buyers. Except for the charge for installation of the Image, Dell has no
responsibility to collect any fees from the Buyers related to the Image included
on the Program Configuration. Neither Dell or any employee of Dell has authority
to determine or set Company pricing for the Image.
4.3 Company is responsible for providing technical support to the Buyers
for the Image. Company shall establish and maintain support services for Buyers
for its Image. Company is responsible for determining its technical
specifications for installing the Image on the Standard Configuration and for
ensuring that those technical specifications are properly documented to Dell in
a verified and signed "Technical Specification" form. Dell is not responsible
for the operation (except as provided in Attachment B of this Agreement) or
suitability of the Image on the Program Configuration. Company represents and
warrants that the Image is suitable for the intended purpose Company represents
to Buyers.
5. COMPANY'S MARKETING EFFORTS AND ORDER PROCESS
5.1 At its expense, Company will use commercially reasonable efforts to
market the Program to Buyers. Dell hereby appoints Company to market Products in
accordance with the terms of this Agreement. Specifically, Company agrees that
it will only market the Products with Company's proprietary software. Company
may not use distributors, third party sales agents, or other remarketers to sell
the Products without Dell's prior written approval of each such distributor,
third party sales agent, or other remarketer.
5.2 Marketing/Order Process. Whenever commercially reasonable, Company
will endeavor to provide Dell with a list of prospective Buyers at least ten
(10) days prior to Company contacting the Buyer to market Dell hardware under
the Physician Program. Dell acknowledges it may not always receive advance
notice of the prospects and will still endeavor to provide prompt processing of
the Buyers. Dell will set up customer accounts for the Buyers. Company's sales
team will offer Buyer the Program Configurations. For Buyers that elect to buy,
Company's sales team will complete Dell's PO Bundle for approval by the Buyer
and then submit it to a dedicated Dell e-mail address for the Physician Program.
Dell will immediately enter the Order (adding the Dell customer number for the
Buyer and generating an Order number). Dell will forward the Order to Dell
Financial Services L.P. for its review and approval. If Dell Financial Services
L.P. elects to lease to the Buyer (at Dell Financial Services L.P.'s sole
discretion) and receives its required documentation, Dell Financial Services
L.P. will authorize Dell to release the Order for production. Company and Dell
acknowledge that the goal is to make the order process as simple as possible for
the Buyers. If Dell does not have advance notification to establish a customer
account or the Order is not completed or submitted properly, the ability to
expedite the Order process and track the Marketing Fee (defined below) will be
impaired. Dell and Company agree to work together to mutually agree and develop
the order process related to the Physician Program.
5.3 Except as provided herein, Dell may appoint other resellers or
remarketers to sell or may directly market Products (excluding the Image) to
anyone, including without limitation, Buyers. Dell will not market or sell or
distribute Company's image or proprietary software except through the Company
and the Physician Program and Dell will not use Buyer information provided by
Company for any purpose except for facilitating Company's Physician Program
<PAGE> 11
and order process. Dell may market (directly or through third party agents) the
Products and/or other products and services to Buyers at any price Dell chooses
without any obligation or liability to Company provided the marketing does not
use any information (including, without limitation, the Buyer information)
provided by Company. Dell reserves the right to change its distribution channels
for Products and add or terminate other distributors, third party sales agents
or other remarketers, including distributors, third party sales agents and other
remarketers who may compete with Company. This Agreement does not guarantee that
Company will make any sales of the Products.
5.4 Recordkeeping/Document Delivery. Company agrees to provide Dell with
fifteen (15) days prior written notice of any material change related to
Company's business, which materially alters Company's plans for marketing the
Products to its customers. Company will provide all its end users with warranty
statements, registration cards, Software license agreements and other materials
related to the Image.
5.5 Relationship of the Parties. Dell and Company are independent
contractors. Neither Party will make any warranties or representations or assume
any obligations on the other Party's behalf. Neither Party is nor will claim to
be a legal representative, partner, franchisee, agent or employee of the other
Party except as specifically stated in this Agreement. Each Party is responsible
for the direction and compensation, and is liable for the actions of, its
employees.
6. PUBLIC RELEASE OF INFORMATION, TRADEMARKS AND ADVERTISING
6.1 Public Release of Information. Neither Party may publicly release any
information relating to this Agreement, including the existence of this
Agreement, without first receiving the prior written approval of the other
Party. Relative to Dell, such prior written approval must be obtained from
Dell's public relations department. No other department within Dell is
authorized to consent to public releases of information.
6.2 Advertising. Dell must approve all of Company's advertisements
concerning the Products or this Agreement. Dell may reject and disallow
Company's use of any advertising or publicity relative to the Products or this
Agreement that Dell finds, in Dell's sole discretion, to be inaccurate,
objectionable or misleading. Company, at Company's expense, will correct, change
or withdraw any such advertising or publicity rejected by Dell. The parties will
work together to streamline the advertising approval process with Dell providing
trademark usage guides and pre-approved advertising templates for Company's use.
6.3 Trademarks. Dell hereby grants Company the limited right to use Dell
trademarks and trade names for the limited purpose of marketing the Products to
Buyers. Company acquires no ownership rights in Dell trademarks or trade names
and the limited rights granted to Company under this Section end immediately
upon termination of this Agreement for any reason.
7. DELL'S MARKETING MATERIALS
At its discretion, Dell may provide Company with marketing materials and
information regarding the Products offered through the Program for distribution
at Company expense by Company to Buyers. At its expense, Company will use
reasonable efforts to market the Program to Buyers. Unless otherwise agreed to
in writing, Dell will not prepare any special marketing materials related to the
Program and Company.
8. MARKETING FEES
8.1 For orders that are placed through Company by Buyers in accordance with
this Agreement, Dell will pay a marketing fee ("Marketing Fee") in accordance
with this Agreement. Dell will pay on a quarterly basis, a Marketing Fee in the
amount of **** for Servers and **** for all other lines of business ("Marketing
Fee") based on the total dollar value of Qualifying Purchases (as defined
herein) during Dell's preceding fiscal quarter. Qualifying Purchases are all
purchases by Buyers (or on Buyers behalf by Dell Financial Services L.P.) made
via Company less shipping, handling, tax, returns and credits, and which
purchases are paid for during the prior fiscal quarter.
<PAGE> 12
8.2 Forty-five days after the end of each of Dell's fiscal quarters (April
30, July 31, October 31, January 31) during the term of this Agreement, Dell
will provide Company with a report, in a format to be defined by Dell, listing
Qualifying Purchases made during such prior fiscal quarter and will pay the
Marketing Fee on such amounts to Company at the address specified by Company.
8.3 Company agrees to notify each actual or prospective Buyer, where
necessary or required by law, of the potential payments that may be made to
Company by Dell prior to the time that such actual or prospective Buyer places
its order with Dell.
9. LIMITATION OF LIABILITY
BOTH PARTIES EXPRESSLY AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE OR
RESPONSIBLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS
AND DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF CORRUPTED DATA OR SOFTWARE,
EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OF OR SHOULD HAVE KNOWN OF THE
POSSIBILITY THEREOF. THE PARTIES EXPRESSLY WAIVE ANY CLAIMS DESCRIBED IN THIS
SECTION. COMPANY FURTHER AGREES THAT IT SHALL INCLUDE IN ALL AGREEMENTS SELLING,
LEASING, OR TRANSFERRING OWNERSHIP OF THE PRODUCTS, A PROVISION SIMILAR TO THE
ABOVE DISCLAIMING AS TO DELL LIABILITY FOR INCIDENTAL, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES. DELL WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING
FROM THE USE OF THE PRODUCTS IN ANY HIGH-RISK ACTIVITY, INCLUDING, BUT NOT
LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR
WEAPONS SYSTEMS.
10. INDEMNIFICATION
10.1 Indemnity from Dell to Company.. Dell will indemnify Company from any
third party claim, demand, cause of action, debt or liability (including
attorneys' fees and expenses) that (a) Dell-branded hardware infringe,
misappropriate or otherwise violate any Intellectual Property rights of a third
party in the United States or that (b) Dell breached its agreement, its warranty
for Dell-Branded hardware or Dell provided services or otherwise arising out of
Dell's acts or omissions (an "Dell Indemnified Claim"). Dell will not indemnify
Company or bear any responsibility for any claim, demand, cause of action, debt
or liability based, in whole or part, upon Company's modification of the
Products or from any combination, operation or use of the Products with other
products or services. Dell's duty to indemnify under this Section is contingent
upon Dell receiving prompt notice of an Indemnified Claim and Dell's right to
solely control resolution of the Indemnified Claim. Company's sole remedy for a
Dell Indemnified Claim based on Infringement is as follows: Dell will, at its
expense and in its discretion, either (a) resolve the Indemnified Claim in a way
that permits continued ownership and use of the affected Product; (b) provide a
comparable non-infringing replacement Product at no cost to Company; or (c)
accept return of the Product freight collect and provide a reasonable
depreciated refund for the Product.
10.2 Indemnity from Company to Dell. Company will indemnify Dell from any
third party claim, demand, cause of action, debt or liability (including
attorneys' fees and expenses) that (a) Company's Image infringe, misappropriate
or otherwise violate any Intellectual Property rights of a third party in the
United States or that (b) Company breached its agreement, its warranty for the
Image or Company provided services or otherwise arising out of Company's acts or
omissions (an "Company Indemnified Claim"). Company will not indemnify Dell or
bear any responsibility for any claim, demand, cause of action, debt or
liability based, in whole or part, upon Dell's unauthorized modification or use
of Image. Company's duty to indemnify under this Section is contingent upon Dell
receiving prompt notice of a Company Indemnified Claim and Company's right to
solely control resolution of the Company Indemnified Claim. Company's sole
remedy for a Company Indemnified Claim based on Infringement is as follows:
Company will, at its expense and in its discretion, either (a) resolve the
Indemnified Claim in a way that permits continued ownership and use of the
affected Product; (b) provide a comparable non-infringing replacement Product at
no cost to Company; or (c) accept return of the Product freight collect and
provide a reasonable depreciated refund for the Product.
<PAGE> 13
ATTACHMENT D
TO THE PURCHASE AND MARKETING AGREEMENT (THE "AGREEMENT")
CONFIDENTIAL INFORMATION
For purposes of this Attachment D, "party" or "parties" shall mean Dell Computer
Corporation and Customer, including their respective subsidiaries and affiliates
who are providing information under this Agreement. The parties agree to
maintain confidential information as follows:
1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties understand
and agree that confidential information is any and all current
and future Product and/or Services information, roadmap,
technical or financial information, customer names, addresses
and related data, contracts, practices, procedures and other
business information, including software reports, strategies,
plans, documents, drawings, machines, tools, models, patent
disclosures, samples, materials and requests for proposals
that may be disclosed between the parties, whether written,
oral, electronic or otherwise, however and wherever acquired
("Confidential Information"). Confidential Information
excludes any information which would otherwise fall in the
definitions above, but which was (a) known to the recipient of
the information ("Recipient") before receipt from the
disclosing party; (b) publicly available through no fault of
Recipient; (c) rightly received by Recipient from a third
party without a duty of confidentiality; (d) disclosed by
disclosing party to a third party without a duty of
confidentiality on the third party; (e) independently
developed by Recipient without breach of this or any other
confidentiality agreement; or (f) disclosed by Recipient after
prior written approval from the disclosing party.
2. OBLIGATIONS OF CONFIDENTIALITY AND REMEDIES. Recipient agrees
to protect the disclosing party's Confidential Information
with the same degree of care, but no less than a reasonable
degree of care, as Recipient uses with respect to its own
Confidential Information. Neither party has any obligation to
exchange Confidential Information. Both parties acknowledge
and agree that the disclosure of the other party's
Confidential Information could cause irreparable harm.
Therefore, an injured party is entitled to applicable
equitable relief, including injunctions, in addition to other
remedies, for such wrongful disclosure of Confidential
Information. In addition, disclosure of Confidential
Information required by a government body or court of law is
not a violation of this Section if the Recipient gives prompt
notice of the required disclosure to the disclosing party.
3. TERM OF CONFIDENTIALITY OBLIGATIONS. Recipient's duty to
protect Confidential Information expires three (3) years from
the date of disclosure of the particular Confidential
Information, except for trade secrets, including without
limitation, Customer's Buyer lists and Customer-provided Buyer
information, which the Recipient shall have a duty to keep
confidential for so long as such information remains a trade
secret under applicable law.
4. COOPERATION REGARDING PUBLIC RELEASE OF INFORMATION. Both
parties agree to cooperate with each other in the release of
information, whether confidential or otherwise, relating to
the Agreement. Each party may mention the other party's name
in press releases or other public releases of information as
long as they have first obtained the other party's permission,
in writing, prior to the release of the information.
5. NO WARRANTIES ON CONFIDENTIAL INFORMATION. Neither party
warrants or guarantees the accuracy of any Confidential
Information transferred between the parties.
