Exhibit 10.13
Medic Purchase
Agreement
for
Medical Group Services,
Inc.
October 16, 2000
Proposal Valid Through
November 15, 2000
Prepared By:
Gregor Treanor
Territory Manager
Confidential
Information
Property of Medic Computer
Systems, Inc.
This Master Agreement
(“Agreement”) is made this
day of
, 2000, between Medic Computer Systems, LLC, having its principal
offices at 8529 Six Forks Road, Raleigh, North Carolina 27615
(“Medic”) and Medical Group Services, Inc.,
having its principal offices at 6800 North Dale Mabry Highway
Suite 100 Tampa, FL 33614 (“Client”)
1. Definitions
Unless the context otherwise
requires, the following definitions shall apply:
“Designated
Location” shall
mean the Client’s premises at which the System is to be
installed and operated.
“Hardware”
shall mean the computer and any
ancillary equipment to be supplied by Medic as identified in the
Schedule.
“Maintenance”
means the Software maintenance.
Hardware maintenance, and Operating System and Third Party Software
maintenance, as each is defined herein.
“Operating
System” shall mean
the third party foundation software required to communicate with
the Hardware and to be supplied by Medic as identified in the
Schedule.
“Price”
means the amount to be paid by
client for the System and Services as identified in the
Schedule.
“Schedule”
means the schedule or schedules
hereto, and/or subsequently added by consent of the parties, which
identify the elements of the System to be provided and the Services
to be performed by Medic under this Agreement.
“Services”
means those services specifically
identified in the Schedule to be performed by or on behalf of
Medic, including but not limited to training, maintenance,
Implementation services, and conversion,
“Software”
shall mean the Medic proprietary
application software and its accompanying documentation as
identified in the Schedule.
“System”
shall mean the Software, Hardware,
Operating System, and Third Party Software
“Third Party
Software” shall
mean proprietary application software owned by third parties to be
supplied by Medic as identified in the Schedule.
“Third Party
Vendors” shall mean
all third parties whose software is licensed to Client or whose
Hardware is re-sold to Client as set forth in the
Schedule.
2. Software
License
In accordance with the terms herein,
Medic grants to Client, and Client accepts from Medic, a personal,
nonexclusive and nontransferable license to use the Software for
the number of concurrent users, and if applicable user sessions,
set forth in the Schedule unless and until terminated hereunder.
Client shall be entitled to license additional concurrent users at
Medic’s then prevailing rates by written agreement of the
parties. All modifications, enhancements, and updates to the
Software provided by Medic shall become part of the Software and be
subject to the terms and conditions herein.
The Software shall be used only for
Client’s internal business needs and is only licensed on a
single central processing unit, as identified in the Schedule
(“CPU”), at the Designated Location. Client may use the
Software in combination with a different central processing unit
upon a written agreement of the parties which shall Include payment
of an additional license fee at Medic’s then prevailing rate.
Client shall not permit any third party to use the Software or
grant a sublicense for the use of the Software. Violating of any
provision of this paragraph shall entitle Medic to terminate this
Agreement and the Software license granted hereunder.
3. Copies
The Software license granted herein
includes the right to copy the object code only in non-printed,
machine readable form in whole or part as necessary for
Client’s authorized use hereunder, including the making of
back-up copies. In order to protect the trade secrets and
copyrights in the Software, Operating System and Third Party
Software. Client agrees to reproduce and incorporate all copyright
notices in any authorized copies, compilations, modifications or
partial copies. Violation of any provision of this paragraph shall
entitle Medic to immediately terminate this Agreement and the
Software, Operating System and Third Party Software licenses
granted hereunder.
4. Operating System and Third
Party Software License.
The Client acknowledges that its use
of the Operating System and/or Third Party Software may be subject
to additional licensing terms from the relevant third party, and
that the Client is authorized to use the Operating System and Third
Party Software subject to the terms of this Agreement and such
additional licensing terms.
5. Hardware
Client agrees to purchase the
Hardware from Medic subject to the terms of this Agreement or any
third party agreement executed herewith.
6. Services
Client agrees to accept and Medic
agrees to perform the Services subject to the terms of this
Agreement.
7. Price and
Payment
Client shall pay Medic an initial
non-refundable payment of twenty-five percent (25%) of the
Price upon the execution of this Agreement and the remaining 75% of
the Price upon the Initial installation of the System at the
Designated Location. In addition to the Price, Client shall pay,
upon receipt of Medic’s invoice therefore, (i) all
reasonable transportation charges, insurance, and such other
reasonable charges not included in the Price, and (ii) all
taxes (including, but not limited to, sales, use, privilege, ad
valorem and excise taxes) and customs duties paid or payable by
Medic, however designated, leveled or based on amounts payable to
Medic under this Agreement, excluding only taxes based on
Medic’s Income.
In event that Client is leasing the
System,
Client shall pay Medic an initial
non-refundable payment as indicated on the Schedule upon the
execution of this Agreement and shall procure that Medic is paid
the remaining portion of the Price the initial installation of the
System at the Designated Location.
All payments hereunder shall be made
in United States Dollars. Unless otherwise stated herein, all
invoices shall be due and payable within thirty (30) days of
date of invoice. On any invoice not paid within thirty
(30) days, Medic may assess a Client shall pay a service
charge accruing thereafter until the date of payment equal to the
lesser of (i) the rate of one and one-half percent
(1.5%) per month, or (ii) the maximum lawful interest
rate applicable.
In the event Client’s account
is in arrears for more than sixty (60) days for ANY reason,
Medic shall be entitled to immediately place Client on support
hold. No services, including EDI Services and Maintenance, will be
provided while Client is on support hold, although Maintenance fees
shall continue to accrue. Client shall remain on support hold until
Client’s account is paid current.
8. Delivery and
Installation.
Delivery of the System shall be made
F.O.B. to the Designated Location. The carrier, method of shipment
and other matters relating to shipment shall be determined by
Medic. Medic shall have no liability for delays in delivery of the
System. Client agrees to have the site adequately and properly
prepared, in accordance with the provided manufacturer’s
instructions, prior to delivery of the System. Installation shall
be deemed complete upon delivery and the initial set-up of the
System at the Designated Location.
9. Substitutions
Medic may, at its sole option and
prior to delivery to Client, substitute System components with
similar components of equal or better performance and
functionality, if reasonable under the circumstances.
10. Title to and Security
Interest in the Hardware.
Title to the Hardware shall pass to
Client upon Medic’s receipt of payment in full for such
Hardware. Pursuant to the Uniform Commercial Code, Medic reserves
and Client grants to Medic a purchase money security interest in
the Hardware, including all additions thereto, replacements and
substitutions thereof and any proceeds from the sale or disposal
thereof, until Client receives title thereto. Client shall execute,
upon presentation by Medic, any documentation required to perfect
Medic’s security interest in the Hardware. Any attempt by
Client to sell, assign, mortgage or otherwise encumber or convey
the Hardware prior to receiving title thereto shall be a material
breach under this Agreement entitling Medic terminate this
Agreement and the Software license granted hereunder.
11. Title to
Software.
The Software, Third Party Software,
Operating System, all programs developed by Medic for the Client
hereunder, and all copies thereof are proprietary to Medic or the
respective third party and title thereto remains with Medic or such
third party. All applicable rights to patents, copyrights,
trademarks and trade secrets in the Software, Third Party Software,
Operating System or any programs developed at Client’s
request are and shall remain in Medic or the respective third
party. Client shall not modify, reverse assemble or decompile, in
whole or part, the Software, Third Party Software or Operating
System. Client shall not sell, license, transfer, publish,
disclose, display or otherwise make available the Software, Third
Party Software or Operating System or copies thereof to others.
Client agrees to secure and protect the Software, Third Party
Software and Operating System and copies thereof in a manner
consistent with the maintenance of Medic’s and/or the third
party’s rights therein and to take appropriate action by
instruction or agreement with its employees or consultants who are
permitted access to the Software, Third Party Software or Operating
System to satisfy its obligations hereunder. Violation of any
provision of this paragraph shall entitle Medic to terminate this
Agreement and licenses granted hereunder.
12.
Confidentiality
Each part acknowledges that it will
be exposed to Confidential Information of the other party to the
third parties without the prior written consent of said other
party. The receiving party may disclose Confidential Information of
the other party to the receiving party’s employees and/or
authorized agents only on a need to know basis. The receiving party
shall inform its employees and agents, by way of policy and
agreement, that they are bound by the aforementioned obligations of
confidentiality. In addition, each party shall only be entitled to
use Confidential Information for the purpose intended
hereunder.
“Confidential
Information” means (i) the terms and conditions of this
Agreement, and (ii) any other information that the disclosing
party desires to protect against unrestricted disclosure by the
receiving party and that (A) is disclosed in tangible form, is
marked in writing as “confidential” or with a similar
designation, (B) if disclosed orally or visually, is
designated orally at the time of disclosure as
“confidential,” or (C) with respect to
Confidential Information of Client, is information maintained on
the System. Confidential Information will not include any
information that (1) is already in the possession of the
receiving party without obligation of confidence, (2) is
independently developed by the receiving party, (3) is or
becomes publicly available without breach of this Agreement,
(4) is rightfully received by the receiving party without
obligation of confidence, (5) is released for public
disclosure by disclosing party, or (6) is commingled with
other third party information for statistical purposes.
13. Performance of
Services
Medic shall exercise reasonable
skill and care in the provision and performance of Services under
this
Agreement but shall have no liability for any
delay in the provision or performance of such Services. Medic makes
no representations as to the effectiveness of its Services or the
ability of such Services to meet Client’s individual
needs.
14. Maintenance of
Software
Medic agrees to provide Software
maintenance, to the extent it is itemized in the Schedule and
subject to Client’s payment of the applicable maintenance
fees, as follows:
(a) 1-800 Helpdesk support during
Medic’s standard Helpdesk hours, with Medic recognized
holidays excluded. Any beeper service provided by Medic is billable
at Medic’s then prevailing rates. “Helpdesk
support” is defined as reasonable telephone support for he
Software, which ranges from addressing simple application questions
to providing in-depth technical assistance. Helpdesk support does
not provide unlimited training to Client. Rather, Client shall be
responsible for ensuring that key personnel attend Software
training and that new staff additions are subsequently trained on
the proper use of the Software. Software maintenance shall commence
on the initial installation of the Software at the Designated
Location.
(b) Medic shall, in its sole
discretion, provide periodic releases of the Software which include
enhancements, corrections, and/or state and nationa
