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EXHIBIT 10.13
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
AGREEMENT
This Agreement is made on the date specified in Item 1 of Schedule 1.
Between:
TRIPLE G CORPORATION a company carrying on business at 2900 John St., Suite
#300, Markham, Ontario, Canada, L3R 5G3 ("Triple G")
And: Specialty Laboratories
THE PERSON SPECIFIED in Item 2 of Schedule 1 ("Customer")
In consideration of the mutual covenants and agreements contained herein, Triple
G and the Customer agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS. These words have the following meanings in this Agreement
unless expressly stated otherwise herein:
ADDITIONAL LICENSEE means a hospital or other healthcare institution
which is permitted to use the Application Software and Run-Time
Software in accordance with Section 2.6 hereof.
ADDITIONAL LICENSE FEE means the amount payable by Customer to Triple G
in respect of each Additional Licensee, which fee is described in
Schedule 1, Item 12.
AFFILIATE means an entity that is controlled by, controls, is under
common control with another entity.
AGREED MODIFICATIONS means the modifications to the Application
Software or other programming set out in Schedule 3 hereof.
AGREEMENT means this Agreement between Triple G and Customer, including
the Exhibits and Schedules hereto, as amended from time to time in
accordance with the terms hereof.
APPLICATION SOFTWARE means the "Ultra" integrated pathology laboratory
management system software comprising the software modules specified in
Item 2 of Schedule 2 and including all modifications, enhancements or
adaptations to such software by whomever made and any New Release or
New Module of such software provided to the Customer by Triple G.
APPROVED CONTRACTOR means a third party contractor engaged by Customer
to modify the Source Code who has been approved in writing by Triple G
and who has executed a Contractor Agreement.
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APPROVED PURPOSES means the sole purpose of carrying out the internal
business of the medical laboratory of the Customer or an approved
Additional Licensee.
BILLING AND ACCOUNTS RECEIVABLE SYSTEM means those portions of the
Application Software utilized in carrying out the billing and accounts
receivable activities of Customer.
CLINICAL LABORATORY INFORMATION SYSTEM means those portions of the
Application Software utilized in carrying out the clinical laboratory
activities of Customer.
CLINICAL TRIALS LABORATORY INFORMATION MANAGEMENT SYSTEM means those
portions of the Application Software utilized in carrying out the
clinical trial activities of Customer.
COMMENCEMENT DATE means the date specified in Item 3 of Schedule 1.
CONCLUSION OF TESTING means:
(a) as to the Clinical Laboratory Information System, the date on
which Customer determines that operation of the applicable portions of
the Application Software conforms substantially with their
documentation and specifications. Conclusion of Testing of the
Clinical Laboratory Information System shall constitute an
acknowledgment that Customer is satisfied with the operation of the
Application Software as to the Clinical Laboratory Information System
and desires to commence Live Use of the Software.
(b) as to the Clinical Trials Laboratory Information Management
System, the date on which Customer determines that operation of the
applicable portions of the Application Software conforms substantially
with their documentation and specifications. Conclusion of Testing of
the Clinical Trials Laboratory Information Management System shall
constitute an acknowledgment that Customer is satisfied with the
operation of the Application Software as to the Clinical Trials
Laboratory Information Management System and desires to commence Live
Use of the Software.
(c) as to the Billing and Accounts Receivable System, the date on
which the Customer determines that the operation of the applicable
portions of the Application Software conforms substantially with their
documentation and specifications. Conclusion of Testing of the Billing
and Accounts Receivable System shall constitute an acknowledgment that
Customer is satisfied with the operation of the Application Software
as to the Billing and Accounts Receivable System and desires to
commence Live Use of the Software.
Any work Customer requests Triple G to perform prior to the Conclusion
of testing may be performed by Triple G at the Programming Rates.
CONFIDENTIAL INFORMATION OF CUSTOMER means Customer's confidential
business information and trade secrets, including but not limited to,
test methodologies and specifications, patient data and records,
financial information, customer names, pricing information, marketing
information and business plans, which are:
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(a) not in the public domain; or if part of the public domain, became
part of the public domain as a result of an unauthorized disclosure, or
otherwise by reason of a breach of confidence; and
(b) not in the possession of Triple G prior to disclosure by
Customer.
CONFIDENTIAL INFORMATION OF TRIPLE G means the information and know-how
in or relating to the Software or the Materials, including but not
limited to: source and object codes; data, designs and know-how
relating to the development, creation, use, operation, performance,
manufacture, reproduction or maintenance of the Software; or
flow-charts, logic diagrams, or data base schema, disclosed by Triple G
to the Customer under or in connection with this Agreement, which is:
(a) not in the public domain; or if part of the public domain, became
part of the public domain as a result of an unauthorized disclosure, or
otherwise by reason of a breach of confidence; and
(b) not in the possession of the Customer prior to its disclosure by
Triple G.
CONTRACTOR AGREEMENT means an agreement substantially in the form
attached as Schedule 4 which must be executed by each Approved
Contractor before it is permitted to access or modify the Source Code
or Application Software.
CPI means the U.S. Bureau of Labor Statistics Consumer Price Index
(U.S. Cities Average).
DEFAULT RATE means the interest rate set at 1.5 percent per month.
DESIGNATED SITE means the location or locations at which the server(s)
running the Software may be located as set forth in Item 4 of Schedule
1 or otherwise consented to in writing by Triple G.
DEVELOPMENT CPU means the computer specified as being the "Development
CPU" in Item 1 of Schedule 2 unless no computer is specified in which
case Development CPU means the Run-Time CPU.
DEVELOPMENT SOFTWARE means certain software owned by Unify and
delivered by Triple G hereunder which enables the Application Software
to be used and operated and is necessary to modify the Application
Software.
EMERGENCY CPU means any single computer which is designated by Customer
as the "Emergency CPU" subject only to the applicable limitations of
Clause 2.3(e).
FDA means the U.S. Food and Drug Administration.
HARDWARE LOCK means an electrical device which may be supplied by
Triple G which may be connected to a computer to enable the Interface
Software to operate on that computer.
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INCREMENTAL USER LICENSE FEE means the amount payable by Customer in
respect of the increase of the User Limits for the Software, as
specified in Item 10 of Schedule 1.
INSTRUMENT INTERFACE SOFTWARE means certain software which, when
operating on a computer to which a Hardware Lock may be connected,
allows the Application Software to interface with instruments specified
in Item 4 of Schedule 2. The Interface Software includes one or more
"Instrument Interfaces", each of which enables the Software to
interface to a single uni-directional or bi-directional instrument.
LICENSE CPU means the Run-Time CPU and the Development CPU.
LICENSE FEE INSTALLMENTS means the amounts specified in Item 6 of
Schedule 1 and License Fee Installment means any one of them.
LICENSE DATE means the date upon which Triple G receives payment of the
License Fee Installments 3(a) in Item 6 of Schedule 1.
LIVE USE means use by Customer of the Software to process actual data
for Approved Purposes, and not for testing purposes or in connection
with the transition from the Customer's prior system to the Software.
MATERIALS means the user documentation and materials relating to the
Software provided by Triple G to the Customer including but not limited
to the guides specified in Item 5 of Schedule 2.
MONTHLY FEE means the monthly license and support and update fee
specified in Item 7 of Schedule 1 as varied in accordance with this
Agreement.
NEW MODULE means any additional software module generally released by
Triple G which is comparable with the Application Software.
NEW RELEASE means a new version of a module of the Application Software
generally released by Triple G after the execution of this Agreement.
PRESCRIBED TERMS means terms, conditions and warranties implied by law
and to some contracts for the supply of goods or services which the law
expressly provides:
(a) may not be excluded, restricted or modified; or
(b) may be excluded, restricted or modified only to a limited extent.
PROGRAMMING RATE means the rate in dollars per hour applicable from
time to time at which Triple G provides programming, installation,
configuration, training, development and other services. The
programming rate at the date of this Agreement is specified in Item 9
of Schedule 1.
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REMOTE SITE means a location, other than a Designated Site, which: (a)
is owned or controlled by Customer, an Approved Contractor or an
Additional Licensee; or (b) is a place of operation of a client of
Customer or an Additional Licensee to whom Customer or Additional
Licensee is providing services within the scope of the Agreement's
Approved Purposes, from which remote access to the Software is
permitted. For purposes of this definition, a Remote Site may be
anywhere in the world.
RENEGOTIATION PERIOD means the period commencing on the License Date
and continuing for the period specified in Item 5 of Schedule 1 and
each successive period of that duration.
RUN-TIME CPU means the computer specified as being "Run-Time CPU" in
Item 1 of Schedule 2.
RUN-TIME SOFTWARE means certain software owned by Unify and delivered
by Triple G hereunder which enables the Application Software to be used
and operated.
SOFTWARE means the Application Software, the Instrument Interface
Software, the System Interface Software, the Voice Software, the
Development Software, the Run-Time Software and the Source Code.
SOURCE CODE means the source code of the Application Software.
SYSTEM INTERFACE SOFTWARE means certain software described in Item 13
of Schedule 1 which permits the Software to interface with one or more
other systems.
THIRD PARTY SOFTWARE means all software provided by Triple G under this
Agreement which is not owned by Triple G, including the Unify Software
and certain portions of the Voice Software.
TRIPLE G SOFTWARE means all software provided by Triple G under this
Agreement which is owned by Triple G, including the Application
Software, the Instrument Interface Software, the System Interface
Software and certain portions of the Voice Software.
UNIFY means Unify Corporation of 3901 Lennane Drive, Sacramento,
California 95834-1922, United States of America.
UNIFY FEES means any and all fees levied by Unify from time to time in
relation to the Run-Time Software or the Development Software. The
applicable fees at the date of this Agreement are specified in Item 8
of Schedule 1.
UNIFY SOFTWARE means the Development Software and the Run-Time
Software.
USER LIMIT means:
(a) in respect of the Application Software, the maximum number of
concurrent users specified in Item 3 of Schedule 2;
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(b) in respect of the Run-Time Software, the maximum number of
concurrent users specified in Item 8 of Schedule 1; and
(c) in respect of the Development Software, the maximum number of
concurrent users specified in Item 8 of Schedule 1;
as each may be increased as described in Clause 2.4 and upon the
payment of the Incremental User License Fee.
VOICE SOFTWARE means certain voice recognition software that operates
in conjunction with the Application Software and is specified in Item
14 of Schedule 1.
1.2 MISCELLANEOUS. In this Agreement unless otherwise specified:
(a) a reference to this Agreement or another instrument includes any
amendment of either of them;
(b) the singular includes the plural and vice versa;
(c) a reference to one gender includes all genders;
(d) the word person includes a corporation, partnership, individual,
unincorporated association or other entity; and
(e) a reference to anything is a reference to the whole or any part
of it and a reference to a group of persons is a reference to any one
or more of them.
1.3 HEADINGS. Headings are inserted for convenience and do not affect the
interpretation of this Agreement.
1.4 MULTIPLE PARTIES. If the Customer or any Additional Licensee consists
of two or more persons, an agreement, obligation, representation or
warranty on the part of the Customer or Additional Licensee binds each
of those persons jointly and severally.
2. LICENSE
2.1 USE LICENSE. Triple G grants to the Customer, and the Customer accepts,
a personal, non-exclusive and non-transferable license to use the
Software for Approved Purposes during the term of this Agreement,
subject to its compliance with all terms and conditions of this
Agreement.
2.2 MATERIALS. Triple G grants to the Customer, and the Customer accepts, a
personal, non-exclusive and non-transferable license to use the
Materials at the Designated Site in connection with the use of the
Software as permitted hereby.
2.3 CPU LIMITATION. Subject to the remote access privileges set forth in
Clause 2.7, Customer and Additional Licensees shall use the Software
only at the Designated Site(s) on the following CPU's:
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(a) the Application Software, Voice Software and System Interface
Software on the Run-Time CPU and the Development CPU;
(b) the Instrument Interface Software on computer equipment with
Hardware Locks;
(c) the Run-Time Software on the Run-Time Software;
(d) the Development Software on the Development CPU; and
(e) all Software on the Emergency CPU during the occurrence of (and
only until the resolution of) an emergency situation beyond the control
of Customer or the Additional Licensee which makes it impossible or
impractical to use the Software on the Run-Time CPU or the Development
CPU.
Additional Licensees shall be subject to the same restrictions as
Customer with respect to the CPUs on which their use of the Software is
permitted. The Customer and Additional Licensees shall operate and keep
the servers running the Software only at Designated Sites.
2.4 USER LIMIT. The Customer must ensure that the maximum number of users
that can simultaneously use or have access to the Application Software,
the Run-Time Software or the Development Software (whether at
Customer's or Additional Licensee's Designated Sites or Remote Sites)
cannot and does not exceed the User Limit of the Application Software,
Run-Time Software or Development Software (as the case may be). The
User Limit of the Application Software, Run-Time Software or
Development Software may be increased by agreement between the parties
and payment by the Customer to Triple G of the Incremental User License
Fee.
2.5 MODIFICATIONS; APPROVED CONTRACTORS.
(a) Triple G grants the Customer, and the Customer accepts, a
non-exclusive and non-transferable license to use and modify the Source
Code for Approved Purposes at the Designated Site during the term of
this Agreement, subject to its compliance with all terms and conditions
of this Agreement, and to compile and operate the modified Source Code.
Additional Licensees shall not have the right to access or modify the
Source Code. Such modifications shall be deemed to constitute
"Application Software" and "Source Code" for purposes of this
Agreement.
(b) Source Code modifications may be developed by Customer, Triple G
(on terms to be agreed), or an Approved Contractor (in accordance with
the applicable Contractor Agreement). Customer shall have the right to
grant to Approved Contractors sublicenses of its rights (i) to modify,
enhance and create derivative works of the Source Code and Application
Software on Customer's behalf and (ii) to use the Run-Time Software,
Development Software and Instrument Interface Software solely in
connection with the development and testing of such modifications. Such
sublicenses shall be subject to all restrictions on Customer's
utilization of the Software, including but not limited to the
restrictions contained in Clauses 2.1, 2.3, 2.8(d), 3.1, 3.2, 7.1, 8,
9, 10, 11.4, 12 and 14. Customer shall be fully responsible for each
Approved Contractor's compliance with the
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applicable provisions of this Agreement and all provisions of the
Contractor Agreement. Triple G shall have the right to terminate any
Approved Contractor sublicense granted by Customer upon notice to
Customer and the Approved Contractor if the Approved Contractor is in
violation of any provision of the Contractor Agreement or any
provision of this Agreement applicable to it.
(c) Customer shall promptly deliver to Triple G (or cause Approved
Contractors to deliver to Triple G) all modifications to the Source
Code and Application Software developed by Customer and Approved
Contractors, including all executable object code, source code listings
and files, libraries, source code commenting, programmers' notes, flow
charts and other explanatory materials.
2.6 ADDITIONAL LICENSEES.
(a) Customer shall have the right to designate one or more Additional
Licensees during the term of this Agreement. In order to exercise such
right, Customer shall first notify Triple G of the identity of the
proposed Additional Licensee, the number of users at the entity who
will be using the Application Software; the nature of the use the
entity will make of the Application Software and such other information
as is reasonably requested by Triple G. If the entity is not an
Affiliate of Customer, then Triple G shall have the right to approve or
reject the treatment of such entity as an Additional Licensee and such
approval by Triple G shall not be withheld except on reasonable grounds
(it being agreed that Triple G shall have reasonable grounds to reject
any potential Additional Licensee which is or is reasonably likely to
become a competitor of Triple G). Customer shall not permit the
Application Software to be used by or for the benefit of any such
non-Affiliate entity until Triple G has notified Customer that such
entity has been approved as an Additional Licensee. Triple G shall have
the right to require that any Additional Licensee execute an agreement
with Triple G relating to the use, confidentiality and other matters
associated with the Application Software. It shall be Customer's sole
responsibility to inform Additional Licensees of their responsibilities
under this Agreement, as it may be amended from time to time.
(b) Upon Customer's payment of the Additional Licensee Fee, Customer
shall have the following additional rights:
(i) to use the Application Software and Run-Time Software
for the Additional Licensee for Approved Purposes of such
Additional Licensee; and
(ii) to grant such Additional Licensee a sublicense to use
one copy of the Software (excluding the Development Software
and the Source Code) in object code form for Approved
Purposes at a site agreed upon in writing by Triple G,
subject to all of Customer's restrictions on such use
contained in this Agreement.
(c) Customer shall pay to Triple G the Additional Licensee Fee for
each Additional Licensee upon the commencement of such entity's status
as an Additional Licensee. In addition, Customer shall pay any
Incremental User License Fees required as a result of
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the addition of users at the Additional Licensee and such other fees
as are required herein with respect to the Additional Licensee.
2.7 REMOTE ACCESS.
(a) Customer, Additional Licensees and Approved Contractors shall
have the right to access and use the Software from Remote Sites for
Approved Purposes in accordance with the licenses granted herein,
including, to the extent permitted by Section 2.5, for Source Code
modification.
(b) Subject to the use restrictions set forth herein, Customer and
Additional Licensees may permit any individuals to access and use the
Application Software and Run-Time Software from Remote Sites, using
remote enquiry modules provided by Triple G, solely for the purposes of
making database enquiries, to perform remote test order entry, and to
perform remote test result retrieval, each in connection with
Customer's or Additional Licensee's Approved Purposes. No other actions
shall be performed from any Remote Site.
2.8 COPIES. Customer, Additional Licensees and Approved Contracts shall not
copy the Software or Materials, except that:
(a) a transient copy of the Software may be made in a computer's memory
incident to running the Software as permitted herein, provided that
such copy is erased when the software is not being run;
(b) one copy of the Software may be stored on the CPUs designated in
Clause 2.3 at each Designated Site, provided that such copies are
protected by appropriate security mechanisms and access to them is
limited to appropriate systems personnel of Customer.
(c) one copy of the Software (excluding the Development Software and
Source Code) may be stored by Customer and each Additional Licensee at
a secure location for disaster-recovery purposes, provided that such
additional copy shall not be used unless the original copy of the
applicable Software becomes inoperative. Customer shall notify Triple G
if it desires to use such disaster-recovery copy of the Software.
(d) one copy of the Source Code and Application Software may be made by
Customer or its Approved Contractor purposes of modifying and testing
the Source Code in accordance with the other provisions of this
Agreement.
Additional copies of the Materials may be obtained from Triple G at its
then-current rates. Triple G may provide additional copies of the
Source Code and Development Software to Customer at Triple G's
discretion, upon Customer's payment of fees to be determined by Triple
G.
2.9 SUBLICENSING. Customer shall have no right to sublicense its rights
hereunder except to Approved Contractors as set forth in Clause 2.5,
and to Additional Licensees as set forth in Clause 2.6.
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2.10 SUPPORT LICENSE. In the event that Triple G breaches its obligation to
provide maintenance and support to the Customer pursuant to this
Agreement as a result of Triple G's elimination or "critical reduction"
(for at least ninety (90) days) of support operations, personnel and
facilities in North America, then the licenses granted to Customer in
Sections 2.1 and 2.2 of this Agreement shall be deemed to be fully
paid-up with respect to the Triple G Software, and Customer shall be
relieved of all further obligations to pay Monthly Fees to Triple G in
respect of the Triple G Software, and Triple G shall be relieved of all
further obligations to provide maintenance and support services to
Customer. For purposes of this section, "Critical reduction" means
reduction of staffing to fewer than five (5) full-time personnel. All
other provisions of this Agreement, including all license restrictions,
shall remain in full force and effect. Reasonably promptly following
such elimination or critical reduction, Triple G shall provide to
Customer one copy of Triple G's programming notes, diagrams, flow
charts, instructions and documentation as would assist Customer in the
maintenance and support of the Triple G Software as are then in Triple
G's possession ("Support Materials"). Such Support Materials shall
constitute Confidential Information of Triple G and shall be considered
"Materials" for purposes of the restrictions thereon contained in this
Agreement.
3. CUSTOMER OBLIGATIONS
3.1 The Customer must not allow or cause any other person, including
Additional Licensees and Approved Contractors, without the prior
written consent of Triple G, to:
(a) install, use or operate, or attempt to install, use or operate,
the Application Software on any computer other than the Run-Time CPU,
the Development CPU or, in accordance with Clause 2.3(e), the
Emergency CPU;
(b) install, use or operate, or attempt to install, use or operate,
the Run-Time Software on any computer other than the Run-Time CPU or,
in accordance with Clause 2.3(e), the Emergency CPU;
(c) install, use or operate, or attempt to install, use or operate,
the Development Software on any computer other than the Development
CPU or, in accordance with Clause 2.3(e), the Emergency CPU;
(d) install, use or operate, or attempt to install, use or operate,
the Instrument Interface Software on any computer other than a
computer that is equipped with a Hardware Lock;
(e) directly or indirectly reverse assemble, reverse compile or
reverse engineer all or any part of the Software;
(f) except as provided in Clause 2.5, modify, enhance or adapt any
part of the Software; or
(g) alter, change, remove or obscure any notices or other indications
(including copyright notices) as to the ownership of the Software of
the Materials.
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3.2 The Customer and Additional Licenses and Approved Contractors:
(a) must ensure that the Software and the Materials are protected at
all times from misuse, damage or destruction by any person;
(b) must not permit any unauthorized person to use or copy the
Software or the Materials;
(c) must not permit any unauthorized person to have access to the
places where the Software and the Materials are reproduced or stored;
(d) must not make or assist any person to make any unauthorized use
of the Software or the Materials;
(e) must ensure that any employee or other person who acquires access
to the Software or Material does not make any unauthorized use thereof;
(f) must immediately provide Triple G with any and all details of
which the Customer becomes aware of any unauthorized copying or use of
the Software, the Software Documentation, or the Materials; and
(g) must not, directly or indirectly, export, re-export or transship
the Software or Materials from the United States or any other country
in violation of United States and all other applicable laws, rules and
regulations, and Customer must obtain the prior written consent of
Triple G prior to any such export, re-export or transshipment.
3.3 The Customer is solely responsible for:
(a) the purchase, configuration, operation and maintenance of
adequate computer hardware, peripherals, electrical and mechanical
components, communications equipment and medical or other instruments;
(b) the acquisition of adequate communications services;
(c) the interconnection of all peripheral devices (other than the
instruments specified in Item 4 of Schedule 2) with the Licensed CPUs
and the Software including, without limitation, establishment and
maintenance of adequate data flow control between all printers and the
Software; and
(d) any and all taxes, fees and charges levied or imposed in relation
to this Agreement unless otherwise expressly indicated in Schedule 1,
all fees therein set forth are exclusive of any taxes that may be
levied or imposed in connection with this Agreement.
4. INSTALLATION AND OPERATION OF THE SOFTWARE
4.1 INSTALLATION AND DELIVERIES. Following the execution of this Agreement,
Triple G shall:
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(a) install the Application Software and the Run-Time Software on
Customer's Run-Time CPU; and
(b) install the Application Software and the Development Software on
Customer's Development CPU;
(c) install the System Interface Software, Voice Software, Instrument
Interface Software and the Hardware Locks on customer's relevant
computers;
(d) provide the Customer with one copy of the Source Code; and
(e) carry out the Agreed Modifications (if any) in accordance with
the schedule and plan set forth in Schedule 3.
4.2 INSTALLATION AND TRAINING.
(a) Triple G shall use reasonable efforts to complete installation of
the applicable items of Software referred to in Clauses 4.1(a), (b) and
(c) above as soon as reasonably practicable after the execution of this
Agreement. The Customer shall provide Triple G with such assistance as
Triple G may request in relation to the installation of such items of
Software.
(b) Triple G shall provide training to Customer in the use of the
Software for Approved Purposes in amounts as agreed by Triple G and
Customer.
(c) Triple G shall install the Application Software and Run-Time
Software on the computers of any Additional Licenses commencing a
reasonable time after Triple G's receipt of the Additional Licensee Fee
and shall provide training to any Additional Licensees in the use of
the Software for Approved Purposes in amounts as agreed by Triple G and
such Additional Licensees.
4.3 TESTING. Triple G shall, upon substantial completion of the
installation of the applicable items of Software, in conjunction with
the Customer, commence testing the operation of the Application
Software as to the Clinical Laboratory Information System, Clinical
Trials Laboratory Information Management System, and Billing and
Accounts Receivable System. Triple G shall continue to install,
configure and, in conjunction with the Customer, test the Application
Software until the Conclusion of Testing on the Clinical Laboratory
Information System, Clinical Trials Laboratory Information Management
System, and Billing and Accounts Receivable System.
4.4 THIRD PARTY WARRANTIES.
(a) Triple G hereby warrants that it has the unencumbered right to
grant to Customer the rights to the Third Party Software granted
hereunder.
(b) Unify has warranted to Triple G that the Development Software and
the Run-Time Software will perform substantially in accordance with
Unify's applicable end user documentation. Triple G is authorized to
and hereby does extend this warranty to the
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Customer. Other Third Party Software provided with the Software may
include warranties from the manufacturers of such Third Party
Software.
(c) Triple G makes no warranties in relation to the Third Party
Software other than those contained in this Clause 4.5.
4.5 INSTRUMENT INTERFACE SOFTWARE. Instrument Interfaces may be licensed by
Customer for use by Customer or Additional Licensees at the rates set
forth in Item 11 of Schedule 1. Payments in respect of Instrument
Interface Software shall be payable by Customer as follows: [***]*.
Monthly Fees for Instrumental Interface Software are payable commencing
upon Live Use of the Instrument Interface Software. Customer shall pay
for any installation or other services provided by Triple G at the
request of Customer in respect of the implementation of any upgrades to
the Instrument Interface Software at the Programming Rate.
5. CHARGES AND PAYMENT
5.1 REQUIRED PAYMENTS. The Customer shall pay to Triple G:
(a) the License Fee Installments in the manner specified in Item 6
of Schedule 1;
(b) the Monthly Fee in respect of each calendar month commencing on
installation of the Application Software;
(c) the Instrument Interface License and Maintenance Fees for all
Instrument Interface Software, in the manner and amounts specified in
Item 11 of Schedule 1 and Clause 4.6 above;
(d) all Unify Fees;
(e) the Additional Licensee Fee for all Additional Licensees, and all
associated Incremental User License Fees;
(f) the Incremental User License Fees for all users to which such
fees are applicable;
(g) the then current Programming Rate in respect of each hour,
excluding travel time, during which a Triple G employee or contractor
provides programming, installation, configuration, training or other
services for Customer or any Additional Licensee including but not
limited to all such services described in Clauses 4.1, 4.2 and 4.3;
(h) all travel, accommodation and out of pocket expenses reasonably
incurred by Triple G in connection with the performance of its
obligations under this Agreement, in accordance with Item 9 of Schedule
1; and
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* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
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(i) the amounts set forth in Items 13 and 14 of Schedule 1 with
respect to the System Interface Software and the Voice Software.
5.2 PAYMENT TERMS. The Customer shall pay to Triple G all amounts owed to
Triple G pursuant to this Clause 5 within 30 days of receipt of an
invoice in respect of that amount from Triple G except for the first
License Fee Installments, which shall be payable at the times set forth
in Item 6 of Schedule 1. For the avoidance of doubt, the Customer
acknowledges that it cannot commence Live Use of the Software until the
third License Fee Installment has been paid to Triple G. All amounts
set forth in this Agreement are denominated in, and shall be paid in,
United States Dollars.
5.3 OVERDUE AMOUNTS. The Customer agrees to pay interest on any amount
payable by it under this Agreement from when it becomes due for payment
during the period that it remains unpaid. Interest is payable at the
Default Rate. Interest payable under this Clause 5.3 may be capitalized
by Triple G on the first day of each calendar month. Interest is
payable on capitalized interest in the manner referred to in this
Clause 5.3. In addition, except in case of breach or other default by
Triple G of this Agreement, the Customer shall reimburse Triple G for
all costs and expenses incurred by Triple G in connection with the
collection of overdue amounts, including attorneys' fees.
5.4 ADJUSTMENT. For [***]* years running from the date of payment by
Customer of the first Monthly Fee, the Monthly Fee shall not be
adjusted apart from increases prescribed elsewhere in this Agreement.
At the commencement of the [***]* after payment of the first Monthly
Fee, and annually thereafter through the term of this Agreement, the
Monthly Fee (including all increases, including but not limited to
those arising from the addition of Users, Instrument Interfaces and
Additional Licensees) shall be adjusted to an amount equal to the
Monthly Fee multiplied by the following fraction:
[***]*
[***]*
5.5 RENEGOTIATION PERIOD. Upon the expiration of each Renegotiation Period,
the parties shall meet and discuss in good faith varying by mutual
agreement the amount of the Monthly Fee.
5.6 UNIFY FEES. If at any time of this Agreement, Unify's fees and charges
to Triple G increase from those applicable at the date of this
Agreement, the Unify Fees shall be increased by a corresponding amount.
Customer agrees that it will make all its future purchases of Unify
software or licenses through Triple G at Unify's published list prices.
5.7 [***]*
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COMMISSION.
<PAGE>
6. SOFTWARE UPDATES AND MAINTENANCE
6.1 MAINTENANCE SERVICES. In consideration of payment of the Monthly Fee,
Triple G shall:
(a) provide the Customer with twenty-four hours, seven days per week
telephone access to software engineers for emergency queries relating
to the Application Software, Instrument Interface Software, Systems
Interface Software and Voice Software, where such Software has become
wholly or substantially inoperative;
(b) provide the Customer with on-site maintenance or service
assistance within twenty-four (24) hours of being notified that the
Application Software has become wholly or substantially inoperative,
provided that the problem cannot be resolved remotely;
(c) notify the Customer of all New Releases and New Modules released
by Triple G after the execution of this Agreement;
(d) offer to install any New Release at the Programming Rate and
license the Customer to use and operate that New Release free of charge
(subject to Clause 6.4 below); and
(e) offer to install, and license the Customer to use and operate,
any New Module at prices and on terms and conditions determined by
Triple G.
6.2 NEW MODULE FEES. The Customer acknowledges that Triple G may require,
as a condition of the supply by Triple G of a New Module, that the
Customer agree to an increase in the Monthly Fee.
6.3 NEW RELEASES.
(a) Subject to the provisions of Clause 6.3(b), the Customer agrees
to accept all New Releases offered by Triple G. The Customer
acknowledges that the support described in Section 6.1 will only apply
to the most current release of the Software.
(b) Notwithstanding the foregoing, in the event that Triple G
releases a New Release of the Application Software that is intended to
be used with database software other than the Unify Software (e.g.
Oracle) (the "New Database Release"), Triple G will offer such New
Database Release to Customer without any license fee, other than any
third party charges associated with such New Database Release.
Customer shall have the option to accept the New Database Release with
or without an underlying third party database license. Notwithstanding
the foregoing, any installation or training services provided by
Triple G with respect to the new Database Release shall be paid by the
Customer at the Programming Rate.
<PAGE>
6.4 UNIFY MAINTENANCE. Triple G acknowledges that it will be Customer's
primary point of contact for service questions relating to the Unify
Software. Triple G will duly communicate Customer's questions and
problems to Unify and will work with Unify to resolve Customer's
problems.
6.5 SOFTWARE VALIDATION. Triple G shall, at the Programming Rate,
(a) work with Customer to assure that the Triple G Software complies
with all FDA requirements and guidelines applicable to customer's use
of the Triple G Software for Approved Purposes; and
(b) work with Customer to obtain all approvals, clearance or
validations required by the FDA, if any, applicable to Customer's use
of the Triple G Software for Approved Purposes.
7. INTELLECTUAL PROPERTY
7.1 TRIPLE G OWNERSHIP. The Customer acknowledges and agrees that all
patent, copyright, trademark and trade secret rights and all other
intellectual and industrial property rights anywhere in the world,
including moral rights, and all applications, divisional applications,
registrations and continuations thereof, and all associated goodwill
(present or future) in and to the Application Software, the Instrument
Interface Software, the System Interface Software, the Source Code, any
other Triple G Software and the Materials and all modifications,
enhancements or adaptations of such Software or Materials, whether made
or delivered by Triple G, Customer, Additional Licensees, Approved
Contractors or any other person or entity, are and shall be owned by
and vested in Triple G. To the extent that Customer has or obtains in
the future any ownership interest in or to such Software or Materials,
Customer hereby irrevocably assigns all its right, title and interest
in and to such Software and Materials to Triple G. The Customer agrees,
at its expense, to do all things (including executing assignments and
other documents) to give effect to this Clause 7.1.
7.2 CUSTOMER DATA. Triple G acknowledges and agrees that the use of the
Software by the Customer to enter, store or manipulate information does
not confer upon Triple G any rights subsisting in that information, and
any such rights are and shall be owned by, and vested in, the Customer.
7.3 AUTHORITY. Triple G warrants that to the best of its knowledge Triple G
has the right and authority to grant the licenses and rights granted
under this Agreement.
7.4 INTELLECTUAL PROPERTY INDEMNIFICATION.
(a) Notwithstanding the limitations set forth in Clause 9, Triple G
shall indemnify, defend and hold Customer harmless against any damages,
settlements, costs and expenses (including reasonable attorneys' fees)
arising from any third party legal action alleging that the Triple G
Software infringes any valid United States patent, copyright, trademark
or trade secret existing or issued at the Commencement Date. Customer
shall promptly
<PAGE>
notify Triple G of the filing of any such action within five (5)
business days after Customer becomes aware of such action. Triple G
shall have sole control of the defense of any such action and all
negotiations for its settlement or compromise. Customer shall
reasonably cooperate with Triple G in the defense of such action, and
may be represented, at Customer's expense, by counsel of Customer's
selection.
(b) In the event that a final injunction is obtained against
Customer's use of the Triple G Software by reason of infringement of a
valid United States patent, copyright or trademark existing or issued
as of the Commencement Date, or if in Triple G's opinion the Triple G
Software is likely to become the subject of a successful claim of such
infringement, Triple G shall, at its option and expense, (i) procure
for customer the right to continue using such Triple G Software as
provided in this Agreement, (ii) replace or modify such Triple G
Software so that it becomes non-infringing (so long as its
functionality is essentially unchanged), or (iii) if the preceding
Clauses (i) and (ii) are not reasonably practicable, terminate this
Agreement and the rights granted hereunder and refund to Customer the
License Fees paid by Customer hereunder, provided that the amount of
the License Fees to be refunded shall be depreciated on a
straight-line basis for the five (5) year period beginning at the
Conclusion of Testing to reflect Customer's beneficial use of the
Software during such period.
(c) The provisions of Section 7.4(a) notwithstanding, Triple G shall
not have any liability to Customer under this Clause 7 to the extent
that any claim is based upon (i) use of the Triple G Software in
conjunction with any data, equipment or software not provided by Triple
G, where the Triple G Software would not itself be infringing or
otherwise the subject of the claim, (ii) use of the Software improperly
or in a manner not described in its documentation, (iii) any
modification to the Software made by Customer, Additional Licensees,
Approved Contractors or any other person or entity other than Triple G,
(iv) Triple G's compliance with the specific instructions of Customer,
an Additional Licensee or an Approved Contractor, or (v) any claim
relating to infringement by the Third Party Software. Customer shall
indemnify, defend and hold Triple G harmless from and against any
claims described in Clauses (i) to (iv) of this Clause 7.4(c).
8. CUSTOMER'S OBLIGATIONS TO UNIFY
8.1 The Customer acknowledges that the intellectual property rights
subsisting in the Unify Software are owned by Unify (or the Unify
Licensors, as defined below) and not Triple G. The Customer agrees that
all right, title and interest in and to the Unify Software shall remain
vested in Unify at all times. Nothing in this Agreement shall be deemed
to convey any ownership rights in the Development Software or the
Run-Time Software to any other entity or to restrict Unify's rights to
grant licenses, sublicenses, or distribution rights for the Development
Software or the Run-Time Software.
8.2 The Customer shall not reproduce, distribute or use any of Unify's
trademarks or trade names without the prior approval of Unify. All
proprietary markings shall be in the form, location and quantity
specified by Unify. Upon termination of this Agreement, the Customer
shall have no further right to use any such trade marks or trade names.
<PAGE>
8.3 The Customer will not at any time do, permit or cause to be done any
act or thing which could tend to impair Unify's rights in the
Development Software or the Run-Time Software or Unify's trademarks or
trade names.
8.4 The Development Software and the Run-Time Software and other related
materials contain valuable and confidential information which is
proprietary to Unify. The Customer agrees to take every reasonable
precaution to prevent the theft, unauthorized distribution, use or
disclosure thereof.
8.5 The Customer shall not translate or make derivative works of the
Development Software or the Run-Time Software. Furthermore, the
Customer shall not disassemble, decompile, apply any procedure to the
Development Software or the Run-Time Software, including reverse
engineering or any similar process, in order to ascertain, derive
and/or appropriate for any reason or purpose, the source code or source
listings for the Development Software or the Run-Time Software or any
trade secret information or process contained in the Development
Software or the Run-Time Software.
8.6 The Customer agrees with Triple G and Unify that, to enforce its rights
and the restrictions relating to the use of the Development Software or
the Run-Time Software, Unify may incorporate technical restrictions or
limitations into the Development Software or the Run-Time Software
without any obligation to notify the Customer. Such restrictions and
limitations will not affect the Customer's rightful use of the
Development Software or the Run-Time Software.
8.7 Certain portions of the Development Software or Run-Time Software may
be licensed by Unify from third parties ("Unify Licensors"). Customer
agrees that Unify and the Unify Licensors are intended third party
beneficiaries of this Agreement, and shall have the right to directly
enforce their rights against Customer and its Additional Licensees in
the event of a breach of the licenses relating to the Development
Software and Run-Time Software, as applicable. CUSTOMER AGREES THAT
NEITHER IT NOR ITS ADDITIONAL LICENSEES SHALL LOOK TO UNIFY OR THE
UNIFY LICENSORS FOR ANY DAMAGES OR OTHER REMEDIES RELATING TO THE
DEVELOPMENT SOFTWARE OR RUN-TIME SOFTWARE, AND THAT UNIFY AND THE UNIFY
LICENSORS SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ADDITIONAL
LICENSEES.
9. LIMITATION OF LIABILITY
9.1 GENERAL STATEMENT. The Customer acknowledges that:
(a) as Triple G does not have control over the Software (as a result
of the grant to the Customer of the right to modify the Application
Software pursuant to Clause 2.5) or the precise manner of use of the
Software by the Customer, it is necessary for Triple G to limit its
liability in relation to the Software in accordance with this Clause
9; and
(b) the License Fee Installments, the Monthly Fee and all other fees
and charges under this Agreement are set based on the application of
this Clause 9.
<PAGE>
9.2 WARRANTY. Subject to the provisions of this Section, Triple G warrants
that the Triple G Software will perform substantially in accordance
with Triple G's applicable end user documentation. Customer agrees that
its sole remedy for any failure of the Application Software or
Interface Software to perform substantially in accordance with Triple
G's applicable end user documentation shall be Triple G's performance
of the maintenance services described in Clause 6.1 hereof.
9.3 DISCLAIMER OF WARRANTY. Except as provided by Prescribed Terms (if any)
or as expressly set out in this Agreement, Triple G makes no
warranties, representations, conditions, or covenants in relation to
the Software or the Materials. TRIPLE G HEREBY DISCLAIMS ANY AND ALL
OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR COVENANTS, WHETHER
EXPRESSED, IMPLIED OR STATUTORY (INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE).
9.4 EXCLUSION OF DAMAGES. Except as provided in Clause 9.9, IN NO EVENT
SHALL TRIPLE G BE LIABLE FOR LOSS OF USE, DATA OR PROFITS, OR FOR ANY
SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, REGARDLESS OF
THE FORM OF THE ACTION (BREACH OF CONTRACT, TORT OR OTHERWISE), EVEN IF
TRIPLE G HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.5 LIMITATION OF LIABILITY. Except as provided in Clause 9.9, IN NO EVENT
SHALL TRIPLE G'S AGGREGATE LIABILITY TO THE CUSTOMER FOR ANY CAUSE,
REGARDLESS OF THE FORM OF THE ACTION (BREACH OF CONTRACT, TORT OR
OTHERWISE) EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO TRIPLE G
HEREUNDER.
9.6 NO THIRD PARTY LIABILITY. Customer and its Additional Licensees agree
and acknowledge that, except when required by Prescribed Terms or by
Clause 9.9, TRIPLE G SHALL HAVE NO LIABILITY OF ANY KIND TO ANY THIRD
PARTY OR TO ANY ADDITIONAL LICENSEE.
9.7 INDEMNITY BY CUSTOMER AND ADDITIONAL LICENSEES. The Customer shall
indemnify, defend and hold Triple G and its officers, directors,
agents, employees and contractors and sub-contractors, harmless from
and against all loss, expense (including attorneys' fees) and damage of
any kind whatsoever (including indirect, special or consequential loss
or damage) arising directly or indirectly from (a) any breach of any of
the terms or conditions of this Agreement by the Customer or any
Additional Licensee, or a breach by an Approved Contractor or its
Contractor Agreement, (b) any claim or action against Triple G arising
directly or indirectly out of any negligence or willful act of the
Customer, an Additional Licensee, an Approved Contractor, or any of
their officers, directors, agents, employees, contractors, or
sub-contractors, (c) any claim made against Customer or Triple G by any
third party (including any Additional Licensee or Approved Contractor)
as a result of the use of the Software by Customer or such Additional
<PAGE>
Licensee or the relationship between Customer and such third party, and
(d) any claim relating to the death or injury or any person in
connection with the treatment or diagnosis of such person by Customer,
any Additional Licensee or any of their employees, agents, contractors
or sub-contractors. To the extent that Customer is financially unable
to satisfy its obligations to Triple G under this Section 9.7 (as a
result of its insolvency, bankruptcy or any other condition), the
Additional Licensees of Customer shall be jointly and severally liable
for the unsatisfied portions of such obligations.
9.8 PRESCRIBED TERMS. Where a Prescribed Term is implied into this
Agreement the liability of Triple G to the Customer for a breach
thereof is, at the option of Triple G, limited where the Prescribed
Terms permit such a limitation:
(a) in the case of goods - to the repair or replacement of the goods
or the cost of repairing or replacing the goods; or
(b) in the case of services - to the re-supply of those services of
the payment of the costs of re-supplying those services.
9.9 INDEMNITY BY TRIPLE G. Triple G shall indemnify, defend and hold
Customer and its officers, directors, agents, employees and contractors
and sub-contractors, harmless from and against all loss, expense
including attorneys' fees) and damage of any kind whatsoever (including
indirect, special or consequential loss or damage) arising directly or
indirectly from any claim or action against Customer arising directly
or indirectly out of any gross negligence or willful misconduct of
Triple G or any of its officers, directors, agents, employees,
contractors or sub-contractors.
9.10 SPECIAL VOICE SOFTWARE ACKNOWLEDGMENT. CUSTOMER ACKNOWLEDGES THAT
SPEECH RECOGNITION IS A STATISTICAL PROCESS AND THAT ERRORS ARE
INHERENT IN THE PROCESS OF SPEECH RECOGNITION.
10. CONFIDENTIALITY
10.1 Each party shall hold the Confidential Information of the other party
secret, and shall protect and preserve the confidential nature and
secrecy of such Confidential Information. Each party will not during
the term of this Agreement and for a period of five (5) years
thereafter (except in the case of Source Code, as to which there shall
be no limitation), without the other party's prior written consent:
(a) disclose or communicate to any third person all or any of the
other party's Confidential Information except as permitted by this
Agreement;
(b) permit unauthorized persons to have access to the places where
the other party's Confidential Information is reproduced or stored; or
<PAGE>
(c) make, or assist any person to make, any use of the other party's
Confidential Information not authorized by this Agreement, and shall
use its best efforts to ensure that any employee or other person who
acquires the other party's Confidential Information shall not make any
unauthorized use thereof.
10.2 The receiving party shall:
(a) take all reasonable steps required by the other party to enforce
any obligation of confidence imposed or required to be imposed by this
Agreement; and
(b) ensure that employees, agents, contractors, and other persons
under the control or direction of the receiving party will be under
and will comply with obligations similar to the obligations imposed on
such party under this Clause 10.
10.3 Notwithstanding the foregoing, Customer may disclose Confidential
Information of Triple G to:
(a) an Approved Contractor, in accordance with the other provisions
of this Agreement; and
(b) its legal counsel or other professional advisors in relation to
interpreting its rights under this Agreement.
Customer may disclose the Application Software and Run-Time Software to
Additional Licensees; but Customer shall not disclose any other
Confidential Information of Triple G to any Additional Licensee,
including but not limited to the Source Code or Development Software.
11. TERM AND TERMINATION
11.1 TERM. This Agreement commences (or shall be deemed to commence) on the
Commencement Date and will remain in force until terminated in
accordance with this Clause 11.
11.2 TERMINATION BY TRIPLE G. Triple G may (without prejudice to any other
right or remedy) terminate this Agreement at any time upon notice in
writing to the Customer if:
(a) the Customer fails to pay when due any sum payable under this
Agreement within thirty (30) days of the date due;
(b) the Customer or any Additional Licensee is in material breach of
any other obligation under this Agreement and does not cure such breach
within sixty (60) days of being requested by Triple G to do so;
(c) the Customer or an Additional Licensee becomes bankrupt or
insolvent, files a petition in bankruptcy, goes or is put into
liquidation or dissolution (other than by way of reconstruction or
merger), administration, or discontinues business; or
<PAGE>
(d) the Customer or an Additional Licensee makes an assignment or
composition with its creditors generally, has a receiver, a secured
creditor or other custodian appointed to or take in possession of all
or a substantial part of its assets, or otherwise seeks to take
advantage of any bankruptcy or insolvency laws.
11.3 TERMINATION BY CUSTOMER.
(a) The Customer may terminate this Agreement with or without cause
by giving Triple G at least ninety (90) days notice in writing, but
such termination shall not affect any obligation of Customer to make
any payment to Triple G that comes due prior to the end of such ninety
day termination notice period.
(b) The Customer may terminate this Agreement at any time upon notice
in writing to Triple G if Triple G is in material breach of an
obligation under this Agreement and does not rectify such breach within
sixty (60) days of being requested by Customer to do so.
11.4 EFFECTS OF TERMINATION. Upon termination of this Agreement for any
reason the Customer and all Additional Licensees and Approved
Contractors must:
(a) immediately cease to use the Software and the Materials; and
(b) erase, destroy or procure the return to Triple G of all
reproductions (in any material form) or embodiments of the Software,
the Materials and the Confidential Information in their possession or
control; and
(c) provide Triple G with a certificate executed by an executive
officer of the Customer declaring that the Customer and the Additional
Licensees have complied with their obligations under sub-Clauses
11.4(a) and (b).
11.5 SURVIVAL. Expiration or termination of this Agreement for any reason
does not affect the rights and obligations of the parties under Clauses
5.3, 7.1, 7.4, 8, 9, 10, 11.4, 12, and 14.
12. TRIPLE G EMPLOYEES
The Customer acknowledges that Triple G's employees and contractors are
critical to Triple G's business and the servicing of Triple G's
customers. The Customer and Additional Licensees must not during the
term of this Agreement and for period of [***]* thereafter:
(a) employ or otherwise engage any employee or contractor of Triple G
during their employment or contract with Triple G;
(b) attempt to induce any Triple G employee or contractor to
terminate (lawfully or otherwise) their employment or contract with
Triple G; or
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COMMISSION.
<PAGE>
(c) employ or otherwise engage any former employee or former
contractor of Triple G during the [***]* immediately following the
expiration or termination of that employee's or contractor's
employment or contract.
13. DISPUTE RESOLUTION
13.1 If a dispute arises between the parties in connection with this
Agreement, the parties undertake in good faith to use all reasonable
efforts to settle the dispute by negotiation or mediation (but not
arbitration) without first resorting to litigation (except where urgent
injunctive relief is claimed).
13.2 If the Customer disputes its liability to pay any amount to Triple G
under this Agreement, the Customer must either:
(a) pay the amount to Triple G in accordance with this Agreement; or
(b) pay the amount into an escrow account with a bank nominated by
Triple G (with representatives of the Customer and Triple G as joint
signatories) pending settlement or determination of the dispute. The
amount and any interest earned on it must be paid out of the escrow
account in accordance with the terms of that settlement or
determination. The expenses of administering such escrow account shall
be paid by Customer.
13.3 Because unauthorized use, disclosure or transfer of the Software or
Materials will diminish substantially the value of such Software or
Materials and irrevocably harm Triple G, if Customer, an Additional
Licensee or Approved Contractor materially breaches the provisions of
Clauses 2, 3 or 7 of this Agreement, Triple G shall be entitled to
injunctive and/or other equitable relief, in addition to other remedies
afforded by law, to prevent a breach of such sections of this
Agreement.
14. GENERAL
14.1 NO ASSIGNMENT. The Customer acknowledges that the rights granted to
Customer hereunder are personal in nature and relate to the valuable
intellectual property and trade secrets of Triple G; and the Customer
agrees that it shall not assign or purport to assign any of its rights
under this Agreement without the prior written consent of Triple G, and
that any attempted assignment without Triple G's consent shall be void
and of no effect. In addition, no Additional Licensee shall assign or
purport to assign any of its rights under this Agreement without the
prior written consent of Triple G, and that any attempted assignment
without Triple G's consent shall be void and of no effect. For purposes
of this Clause 14.1, any change in control of Customer or an Additional
Licensee or any merger or combination of Customer or an Additional
Licensee with a non-Affiliate shall be deemed to constitute an
assignment.
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<PAGE>
14.2 GOVERNING LAW. This Agreement is governed by the laws of the State of
New York, without reference to its choice of law rules, and
specifically excluding any application of the United Nations Convention
on Contracts for the International Sale of Goods.
14.3 INDEPENDENT CONTRACTOR. Triple G and Customer are independent
contractors. Nothing in this Agreement makes either of them the agent,
joint venturer, partner, employer or employee of the other.
14.4 NOTICES. Any notice or other communication in connection with this
Agreement must be in writing by registered mail, return receipt
requested, overnight delivery service (such as Federal Express), or
telecopy (fax) addressed to:
In the case of Triple G: with a copy to:
Triple G Corporation Hale and Dorr
2900 John Street, Suite 300 60 State Street
Markham, Ontario Boston, Massachusetts
CANADA L3R 5G3 USA 02109
Fax: (904) 305-0046 Fax: (617) 526-5000
Attn: Chief Operating Officer Attn: Jorge L. Contreras, Esq.
In the case of the Customer - the address specified in Item 1 of
Schedule 1.
All notices given hereunder will be deemed to be received:
(a) in the case of registered mail, on the 3rd day after mailing;
(b) in the case of overnight delivery, on the day after deposit with
the delivery service; and
(c) in the case of a fax, on production of a transmission report by
the machine by which the fax was sent in its entirety to the fax
number of the recipient.
14.5 SEVERABILITY. If the whole or any part of a provision of this Agreement
is void, unenforceable or illegal in a jurisdiction it is severed for
that jurisdiction. The remainder of this Agreement has full force and
effect and the validity or enforceability of that provision in any
other jurisdiction is not affected. This Clause has no effect if the
severance alters the basic nature of this Agreement or is contrary to
public policy.
14.6 ENTIRE AGREEMENT. The Agreement, together with the Schedules hereto,
constitutes the entire understanding between the parties with respect
to the subject matter hereof, and supersedes all prior agreements,
written or oral.
14.7 AMENDMENT. This Agreement shall not be deemed or construed to be
modified, amended or waived, in whole or in part, except by written
agreement signed by Customer and Triple G. Any amendment to this
Agreement signed by both Customer and Triple G shall
<PAGE>
be automatically binding upon all Additional Licensees, whether or not
they have been notified of such amendment.
14.8 NO WAIVER. No delay or omission on the part of either party to this
Agreement in requiring performance by the other party or in exercising
any right hereunder shall operate as a waiver of any provision hereof
or of any right or rights hereunder; and the waiver, omission or delay
in requiring performance or exercising any right hereunder on any one
occasion shall not be construed as a bar to or waiver of such
performance or right, or of any right or remedy under this Agreement,
on any future occasion.
14.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
14.10 FORCE MAJEURE. Neither party may be liable in any respect for failures
to perform hereunder due wholly or substantially to the elements, acts
of God, labor disputes, acts of terrorism, acts of civil or military
authority, fires, floods, epidemics, quarantine restrictions, armed
hostilities, riots and other unavoidable natural disasters beyond the
control of the parties.
EXECUTED as an agreement under seal.
TRIPLE G CORPORATION SPECIALTY LABORATORIES, INC.
By: /s/ LEE GREEN By: /s/ PAUL F. BEYER
------------------- ------------------------
Printed Name: Lee Green Printed Name: Paul F. Beyer
Title: President Title: President
<PAGE>
SCHEDULE 1
ITEM 1
Date Agreement signed: AUGUST 26, 1996
ITEM 2
Customer's Name: Specialty Laboratories, Inc.
Customer's Address: 2211 Michigan Avenue
Santa Monica, California 90404-3900
Customer's Contact: Chief Financial Officer
ITEM 3
Commencement Date: AUGUST 26, 1996
(date on which Agreement takes effect)
ITEM 4
Designated Site: 2211 Michigan Avenue
Santa Monica, California 90404-3900
If Customer moves its principal
business operations during the term of
the Agreement, then such new location
shall replace the foregoing site as the
Designated Site, provided that customer
notifies Triple G in writing of such
new location.
ITEM 5
Renegotiation Period: [***]*
ITEM 6
License Fee Installments:
<TABLE>
<CAPTION>
NO. AMOUNT WHEN PAYABLE
<S> <C> <C>
1 [***]* upon execution of this Agreement
2 [***]* upon installation of the Software
3(a) [***]* At the Conclusion of Testing of
the Clinical Trials Laboratory
Information Management System and prior
to Live Use of the Software on the
Clinical Trials Laboratory Information
Management System.
3(b) [***]* At the Conclusion of Testing of
the Billing and Accounts Receivable
System and prior to Live Use of the
Software on the Billing and Accounts
Receivable System.
4 [***]* Thirty (30) days following Live Use of
the Software on the Clinical
Laboratory Information System.
</TABLE>
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<PAGE>
ITEM 7
Monthly License, Support and [***]*
Update Fee:
ITEM 8
Unify Fees (Assumes Sun 3000 4 processor 256 user license):
<TABLE>
<CAPTION>
DESCRIPTION AMOUNT*
----------- -------
<S> <C>
Unify Accell Development License (Class 12) [***]*
Unify Annual Premium Support [***]*
</TABLE>
The foregoing amounts are payable by Customer upon delivery of the Software.
* Or Unify's then-current list prices if the hardware selected by Customer is
not that listed above.
ITEM 9
Programming, Installation and Training [***]*
Rate: (Does not include travel,
accommodation or out of pocket
expenses)
Travel time shall not be billable.
ITEM 10 - INCREMENTAL USER LICENSE FEE
[***]* per User, in 8-user blocks. Monthly License, Support and Update fee
increases [***]* per 8 users. A corresponding Unify upgrade may be required.
ITEM 11 - INSTRUMENT INTERFACE LICENSE AND MAINTENANCE FEES:
The following amounts shall be payable in respect of each Instrument Interface
licensed to Customer or Additional Licensees:
[***]* per bi-directional instrument, and [***]* increase in the
Monthly License, Support and Update fee.
[***]* per uni-directional instrument, and [***]* increase in the
Monthly License, Support and Update fee.
ITEM 12 - ADDITIONAL LICENSEE FEE:
Ultra License Fee for first 8 users [***]*
Additional Monthly License, Support and Update Fee [***]*
ITEM 13 - SYSTEM TO SYSTEM SOFTWARE INTERFACE FEES:
<TABLE>
<CAPTION>
Increase in:
License Fee Monthly License, Support
and Update Fee
<S> <C> <C>
Results Reporting to Datagate [***]* [***]*
Order Entry from Datagate [***]* [***]*
Order Entry from PC Workstation/Results to PC
Workstation [***]* [***]*
Order Entry from ClinScan/Results to ClinScan [***]* [***]*
-----------------------------
</TABLE>
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
ITEM 14 - VOICE MICROBIOLOGY SOFTWARE LICENSE FEES:
First 3 users [***]*
4-user pack [***]*
8-user pack [***]*
16-user pack [***]*
There is an increase in the Monthly License, Support and Update Fee equal
to[***]* per user of the VOICE Microbiology Software. The above rates exclude
all hardware (other than Voice Card and headset) necessary to run the Voice
Microbiology Software.
-------------------------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
SCHEDULE 2
SOFTWARE DETAILS
ITEM 1
Licensed CPUs:
<TABLE>
<S> <C>
Run Time CPU Sun 3000 4 processor
Development CPU Sun 3000 4 processor
</TABLE>
ITEM 2
Application Software Modules:
Specimen Handling
Patient Entry
Chemistry
Hematology
Anatomic Pathology
Patient Result Reporting
Cytology
Micro Biology-Voice Activated
Reference Testing
Patient Result Enquiry
Management Reporting
Satellite Laboratory System
Ultra Tracking
Expediting System
Security
Interpretive Diagnostic Reporting
Validation and Approval
Amendments
Billing and Accounts Receivable
ITEM 3
Application Software User Limits: 150 Ultra users (except
Accounts Receivable users)
24 Accounts Receivable users
ITEM 4
Instrument Interfaces:
To be added by mutual agreement of the parties, at the rates set forth
in Item 11 of Schedule 1
ITEM 5
<TABLE>
<CAPTION>
Documentation:
DOCUMENTATION No. of Copies
-------------- TO BE PROVIDED
--------------
<S> <C>
All ULTRA Documentation 1
All Unify Documentation 1
</TABLE>
<PAGE>
AMENDMENT TO AGREEMENT
Whereas Triple G Corporation and Specialty Laboratories, Inc. entered into an
Agreement dated August 26, 1998 for the license of ULTRA and the related
provision of services (the "Agreement").
Now therefore, the parties have agreed to amend certain terms of the Agreement
as follows:
INCREASED USE LICENSE
The parties agree to replace Schedule 2, item 3 with the following:
"Application Software User Limits: 256 ULTRA and A/R users"
INSTRUMENT INTERFACES
The parties agree to replace Schedule 1, item 11 with the following:
"The following License amounts shall be payable in respect to each instrument:
- [***]* per bi-directional instrument and [***]* per month increase in
the monthly License, Support and Update Fee.
- [***]* per uni-directional instrument and [***] per month increase in
the monthly License, Support and Update Fee.
Notwithstanding the above, Instrument Interfaces that are operational as of
October 22, 1998 to a maximum of 24 uni-directional or bi-directional interfaces
shall be deemed to have been included in the license fees that have been paid to
date and included in the Monthly License, Support and Update Fees."
SOFTWARE MAINTENANCE FEES
The parties agree to replace Schedule 1, Item 7 with the following:
"MONTHLY LICENSE, SUPPORT AND UPDATE FEE - [***]*"
[***]*
Agreed to by:
---------------------------------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
Triple G Corporation Specialty Laboratories, Inc.
By: By: /s/
------------------------------------ ---------------------------------
F. Lee Green
Chairman & CEO Name: Bart E. Thielen
-------------------------------
Title: V.P. Finance
------------------------------
Date: Date: 10/23/98
---------------------------------- -------------------------------
<PAGE>
AMENDMENT TO AGREEMENT
Whereas Triple G Corporation ("Triple G") and Specialty Laboratories, Inc.,
("Specialty") entered into a Software License Agreement dated August 26, 1966
(the "License") and as amended on October 23, 1998, for the license of ULTRA and
related provision of services (known collectively as the "Agreement").
Now therefor the parties have agreed to amend certain terms of the Agreement to
be effective July 1 1999, as follows:
GENERAL
A. The Renegotiation Period identified in Schedule 1, item 5 of the License
shall expire on December 31st, 2001.
B. Paragraph 12 of the License shall be replaced with the following:
"12. EMPLOYEES
Each party acknowledges that the other party's employees and contractors are
critical to its business and the servicing of its customers. Neither party
shall, during the term of this Agreement and for a period of [***]* thereafter:
(a) employ or otherwise engage any employee or contractor of the other party
during their employment or contract with such party;
(b) attempt to induce any employee or contractor of the other party to
terminate (lawfully or otherwise) their employment or contract with such party;
or
(c) employ or otherwise engage any former employee or former contractor of the
other party during the [***]* immediately following the expiration or
termination of that employee's or contractor's employment or contract."
C. CHANGE PARAGRAPH 5.6 OF THE LICENSE TO THE FOLLOWING:
"IF AT ANY TIME DURING THE TERM OF THIS AGREEMENT, UNIFY'S FEES AND CHARGES TO
TRIPLE G INCREASE FROM THOSE APPLICABLE AT THE DATE OF THIS AGREEMENT, THE UNIFY
FEES SHALL BE INCREASED BY A CORRESPONDING AMOUNT. CUSTOMER AGREES THAT IT WILL
MAKE ALL ITS FUTURE PURCHASES OF UNIFY SOFTWARE OR LICENSES THROUGH TRIPLE G AT
FEES THAT TRIPLE G CHARGES ALL OF ITS SIMILAR CUSTOMERS.
"ALL UNIFY SUPPORTS WILL BE PROVIDED UNDER THE TERMS AND CONDITIONS OF THE THEN
CURRENT UNIFY SUPPORT AGREEMENT AND SHALL INCLUDE ITEMS SUCH AS THE FOLLOWING:
- 24/7 SUPPORT OF UNIFY PRODUCTS TO TRIPLE G THAT ARE LICENSED FOR THE
CUSTOMER'S SYSTEM; AND
- UPDATES, FIXES AND ENHANCEMENTS TO THE LICENSED UNIFY PRODUCTS."
---------------------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
D. The amounts due under this Amendment for services provided during the
period from July 1, 1999 to November 26th, 1999, including the December, 1999
Monthly Fee, and one prepaid block as per Section 6.1(a)(1) (see below) are
[***]*. These amounts are detailed in the attachment to this Amendment and are
payable in full upon the execution of this Amendment. Triple G will reduce this
by [***]* to a total of [***]* if payments and the executed amendment are
received by Triple G by December 30th 1999.
The remainder of service fees that are due for November and December will be
billed upon month end.
E. All other terms of the Agreement shall apply.
SOFTWARE MAINTENANCE FEES AND SERVICES
A. THE PARTIES AGREE TO REPLACE SCHEDULE 1, ITEM 7 WITH THE FOLLOWING:
"MONTHLY LICENSE, SUPPORT AND UPDATE FEE - [***]*"
B. THE PARTIES AGREE TO REPLACE SECTION 6.1(A) - "MAINTENANCE SERVICES" WITH
THE FOLLOWING:
"THE PARTIES AGREE THAT FOR THE PAYMENT OF THE ULTRA MONTHLY FEE, SPECIALTY
SHALL BE ENTITLED TO RECEIVE THE FOLLOWING SERVICES UNDER THE FOLLOWING
CONDITIONS:
1. TRIPLE G SHALL PROVIDE A MAXIMUM OF [***]* HELPDESK HOURS PER MONTH ON A
NON-CUMULATIVE BASIS. THIS SHALL INCLUDE ALL SUPPORT SERVICES PROVIDED BY TRIPLE
G STAFF AND CONTRACTORS SUCH AS HELPDESK ADMINISTRATION, ACCOUNT MANAGEMENT, BUG
FIXES, PRODUCTION DOWN, INQUIRIES ETC. PROVIDED THAT THEY ARE PREPAID IN BLOCKS
OF [***]*, ALL SERVICES IN EXCESS OF [***]* HELPDESK HOURS SHALL BE BILLED AT
[***]* FOR ANY LIS SUPPORT AND[***]* FOR ANY ACCOUNTS RECEIVABLE SUPPORT. IF THE
SUPPORT SERVICES ARE NOT PREPAID, THE RATE TO BE CHARGED WILL BE AT THE THEN
CURRENT HOURLY RATES. ON A MONTHLY BASIS, TRIPLE G WILL DECREMENT THE PREPAID
BLOCKS FOR THE EXCESS HOURS AND FEES AND FORWARD DETAILS OF THE SAME; AND
REQUEST PAYMENT OF ADDITIONAL BLOCKS AS REQUIRED.
2. SPECIALTY SHALL DESIGNATE NO MORE THAN TWO AUTHORIZED CONTACTS; SUCH
CONTACTS TO BE THE ONLY STAFF AUTHORIZED TO REQUEST SUPPORT SERVICES FROM TRIPLE
G CORPORATION.
3. TRIPLE G WILL PROVIDE SPECIALTY WITH TWENTY FOUR HOUR, SEVEN DAY PER WEEK
TELEPHONE ACCESS TO TRIPLE G SUPPORT STAFF, FOR EMERGENCY SUPPORT SERVICES, AS
GOVERNED BY THE TERMS OF THIS AMENDMENT AND BY TRIPLE G'S THEN CURRENT SUPPORT
POLICY, INCLUDED HEREIN AS ATTACHMENT 1.0.
4. FIXED PRICE ENHANCEMENT REQUESTS FOR ACCOUNTS RECEIVABLE WILL BE
CALCULATED AT [***]* PER HOUR FOR THOSE ENHANCEMENTS DEEMED TO BE GENERAL US
BILLING/AR MARKET REQUIREMENTS. THIS WILL BE SHOWN AT THE TIME OF QUOTATION AND
APPROVAL. ALL WORK IN PROVIDING AN ESTIMATE WILL BE
---------------------
* PORTIONS OF THIS PAGE HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION.
<PAGE>
BILLABLE AT THE RATES SHOWN. IF THE QUOTATION IS ACCEPTED THE TIME FOR
ESTIMATION WILL BE INCLUDED IN THE QUOTATION. ALL OTHER ENHANCEMENTS SHALL BE AT
THE THEN CURRENT HOURLY RATE. ALL ENHANCEMENTS SHALL INCLUDE A 60-DAY WARRANTY
PERIOD.
5. THE MONTHLY FEE SHALL BE ADJUSTED TO REFLECT ANY ADDITIONAL PURCHASE OR
LICENSES.
6. ALL TRIPLE G TRAVEL AND EXPENSES WILL BE IN ACCORDANCE WITH THE THEN
CURRENT SPECIALTY TRAVEL POLICY, PROVIDED THAT THIS HAS BEEN COMMUNICATED IN
WRITING TO TRIPLE G AND TRIPLE G HAS AGREED ON THE TERMS. TRIPLE G AND SPECIALTY
MAY AGREE TO OTHER MUTUALLY ACCEPTABLE TERMS."
AGREED TO BY:
TRIPLE G CORPORATION SPECIALTY LABORATORIES INC.
BY: /s/ BY: /s/
--------------------------------------- ---------------------------
DATE: DEC 31 99 DATE: 12/21/99
------------------------------------- --------------------------
