10.49
Medical Information Technology, Inc.
Health Care Information System Software Agreement
AGREEMENT made this
31st of March,
2006 by and
between MEDICAL INFORMATION
TECHNOLOGY, INC., a
corporation duly
organized and existing
under the laws of
the Commonwealth of Massachusetts and having its principal place of
business at
MEDITECH Circle, Westwood, Massachusetts 02090 (hereinafter called
MEDITECH) and
PHC Inc. d/b/a!
Pioneer Behavioral
Health, a corporation duly organized and
existing under the
laws of the
Commonwealth of
Massachusetts
and having its
principal place of business at 200 Lake Street, Peabody, MA 01960 (hereinafter
called Customer).
WHEREAS MEDITECH has
developed and continues to enhance a version
of computer
software designed to
operate in a "client-server" environment, which version,
together with
any physical embodiment thereof and related documentation
(incorporated in this
Agreement as Exhibits II through V), are together
hereinafter called
LICENSED SOFTWARE,
and WHEREAS
Customer desires to
obtain
from MEDITECH the right to use such LICENSED SOFTWARE in its operations at the
facility(ies) listed in Article II, .
NOW THEREFORE, the
parties hereto hereby agree as follows:
ARTICLE I - GENERAL TERMS & CONDITIONS
A. RESPONSIBILITIES
AND WARRANTlES OF MEDITECH
1.
MEDITECH
agrees to deliver, implement and service the LICENSED
SOFTWARE all as more fully described in this Agreement. Subject to
the
terms and conditions
hereof and upon
payment in full to
MEDITECH of
the license
and implementation fees for each line item of
LICENSED
SOFTWARE listed in
Article II, MEDITECH
hereby grants to
Customer a
non-exclusive,
perpetual license to use each such line item. MEDITECH
warrants that the LICENSED SOFTWARE shall have capabilities equal to
the capabilities
described in Exhibits
II through V and will operate
in substantial
conformity with such
descriptions
when delivered to
Customer and
installed on Customer's MEDITECH-approved
computer
network (the
major components of which are recited on Exhibit I
hereof).
2.
MEDITECH
warrants to Customer
that it is the developer and sole owner
of the LICENSED
SOFTWARE. In the event
of any suit or claim
against
Customer by any third
party for damages and/or injunctive relief
contesting ownership
of the LICENSED SOFTWARE by MEDITECH and/or
Customer's rights
under this Agreement,
MEDITECH agrees at its own
expense to
defend Customer against such suit or claim and to hold
Customer harmless
from the expenses of such defense and from any
court-awarded
judgments resulting
from such suit or claim, provided
that Customer furnishes written notice to MEDITECH of the
commencement
of such suit or the
presentation of such
claim within
fifteen (15)
days of notice thereof to Customer. Further, if, because of such
suit
or claim, the LICENSED
SOFTWARE is held to constitute an infringement
of any United
States copyright or patent and use of the LICENSED
SOFTWARE by Customer is thereby enjoined, MEDITECH shall, at its own
expense, either
procure for Customer
the right to continue using the
LICENSED SOFTWARE or
replace the same with a non-infringing product,
substantially
conforming to that described herein, or modify the same
so that it shall be non-infringing, provided that the service
described in Article
IV has not been
terminated.
3.
MEDITECH
acknowledges
that certain material
which will come into its
possession or knowledge in connection with this Agreement includes
confidential or
proprietary
information
of Customer or
Customer's
patients (hereinafter called" Protected Information"), disclosure of
which to third parties may be damaging to Customer. MEDITECH agrees
to
hold all Protected Information in confidence, to use it only in
connection with
performance
under this Agreement
and to disclose it
only to those of its employees that require access thereto for such
performance or as may
otherwise be required by law. In addition,
MEDITECH shall use
appropriate
safeguards
to prevent
other use or
disclosure of
Protected Information and shall promptly report to
Customer any other use or disclosure of Protected Information of
which
it becomes aware.
MEDITECH shall ensure
that any agents of MEDITECH,
including but not
limited to subcontractors, to whom it provides
Protected Information agree to the same restrictions and conditions
as
apply to MEDITECH with respect to such Protected Information. Upon
the
written request of the
United States
Department of Health
and Human
Services, MEDITECH
shall make its internal practices, books and
records relating to
the use and disclosure
of Protected
Information
provided to MEDITECH by Customer available to the Secretary of
Health
and Human Services (or his or her designee or duly authorized
representative), at
MEDITECH' s
Massachusetts facility
and at times
convenient for
MEDITECH, to the extent required for determining
compliance with
Federal privacy and security regulations. Upon
Customer's written
request MEDITECH shall return to Customer (when
reasonably possible) or destroy any Protected Information.
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<PAGE>
B.
RESPONSIBILITIES OF CUSTOMER
1.
Customer
shall pay to MEDITECH
the line item fee
(license fee plus
implementation fee)
for each line item of LICENSED SOFTWARE as
follows:
10% due upon execution of this Agreement
40% due upon software delivery
40% due 90 days following software delivery
10% due 180 days following software delivery
Each payment
for each line item
will be separately
due and payable
without regard to other line items.
In the event a payment due MEDITECH under this Paragraph is
delinquent
for a period of sixty
(60) days from its due date, and MEDITECH so
notifies Customer in writing, and the delinquency is not cured
within
thirty (30) days
thereafter, then,
upon MEDITECH' s
written notice,
Customer will cease to
use the LICENSED
SOFTWARE until such
time as
all payments
then due are
paid. Such cessation of use shall not
relieve Customer of
any obligations under
this Agreement,
including
the obligation to make all payments specified herein.
2.
During
the period in which MEDITECH makes available the service
described in Article
IV, Customer
will pay to MEDITECH
the monthly
service fees stated in Article II. These fees will commence upon the
attainment of Live
Status for each line
item of LICENSED
SOFTWARE.
"Live Status" is
defined for each line item as the date on which such
line item is used
in Customer's daily operations utilizing real
patient/hospital data.
Thirty-six (36) months
after the date of this
Agreement these
fees may be
increased by MEDITECH at any time by
providing thirty
(30) days written notice of such increase to
Customer. Any
increases shall be limited to six percent (6%)
cumulative per year during the 24-month period following the initial
36-month period recited herein. Service fee invoices are issued on
the
first of each month in which the service is to be made available,
with
payment terms of net
fifteen (15) days. If payment of any service fee
invoice is delinquent
for a period of
forty-five (45) days
from its
due date, MEDITECH's obligations stated in Article IV may be
suspended
until all delinquencies have been cured to the satisfaction of
MEDITECH.
3.
Customer
agrees to limit access
to the LICENSED
SOFTWARE to those of
its staff and employees who must have access thereto to properly use
the same in Customer's operations. Further, Customer agrees to
notify
MEDITECH promptly and fully in writing of the circumstances
concerning
any possession, use or
study of the LICENSED
SOFTWARE by any person,
corporation or
other entity (other than Customer's staff and
employees) including,
but not limited to, the name(s) and address(es)
of such person(s),
corporation(s), or other entities. Customer agrees
that it will not, at any time, without written permission of
MEDITECH,
copy, duplicate,
or permit others to copy or duplicate the
LICENSED
SOFTWARE, except to
the extent required
for the creation of backup
copies of the LICENSED SOFTWARE as described in Exhibits II through
V.
4.
Customer
acknowledges
that certain material
which will come into its
possession or knowledge in connection with this Agreement includes
confidential or
proprietary
information
of MEDITECH (including,
without limitation,
the terms and conditions of this Agreement),
disclosure of which to
third parties may be
damaging to MEDITECH.
Customer agrees to
hold all such material
in confidence,
to use it
only in connection
with performance under this Agreement and to
release it only to those persons that require access thereto for such
performance or as may
otherwise be required by law. In addition,
Customer shall use
appropriate
safeguards
to prevent
other use or
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<PAGE>
disclosure of confidential or proprietary information of MEDITECH and
shall promptly report
to MEDITECH any other use or disclosure of such
information of which it becomes aware.
5.
If customer is a
tax-exempt
entity, then, upon execution of this
Agreement, Customer will provide to MEDITECH a copy of its current
tax
exemption certificate
for each applicable
taxing authority which has
approved Customer's tax-exempt status. If Customer is not a
tax-exempt
entity, Customer
acknowledges
that it (and not
MEDITECH) shall be
responsible for the payment of any and all taxes (including, but not
limited to, sales,
use, and excise taxes)
imposed by the
applicable
taxing authorities to which Customer is subject.
6.
Not later than
sixty (60) days prior
to the earliest
delivery date
listed in Article
II, Customer will install and connect to its
computer network, at
Customer's expense, a
minimum of one BRI (ISDN)
line (or other
MEDITECH-approved
connectivity solution) as well as a
separate telephone
line (equipped with an RAS modem for emergency use
only), in conformity with MEDITECH' s specifications, and will
provide
MEDITECH with access thereto for the resolution of system
problems in
accordance with
the applicable sections of Article III and IV.
Customer shall maintain such ISDN service (or other MEDITECH-approved
connectivity solution)
and provide MEDITECH with access thereto until
such time as the service described in Article IV is terminated for
all
line items of LICENSED SOFTWARE.
C. RESTRICTIONS
ON TRANSFER
The
LICENSED SOFTWARE shall at all times remain the
property of MEDITECH
and
the license of use granted herein specifically excludes any right of
reproduction, sale,
lease, sublicense, or other transfer or disposition of
the
LICENSED SOFTWARE by Customer except as otherwise expressly stated
herein. The rights
granted hereunder are
granted to Customer only and are
not
assignable to any
other person,
corporation or entity,
except that,
upon
the transfer
by sale, merger, or corporate re-organization, of
substantially all of
the assets of Customer
to a successor
organization,
this
Agreement and the rights and obligations of Customer hereunder may be
assigned to such successor. Customer agrees to notify MEDITECH
promptly in
writing of the transfer to such successor and of the assumption by such
successor of Customer's obligations and responsibilities as described in
this
Agreement.
D. LIMITATION OF LIABILITY
Customer acknowledges
that the LICENSED SOFTWARE provided by MEDITECH
constitutes part of a hospital information system to be used by Customer,
its
staff and employees in the performance of their professional
responsibilities and
is in no way intended to replace their professional
skill and judgement.
Customer agrees that it is solely responsible for the
care
of its patients
and that the use of
the LICENSED
SOFTWARE for any
purpose related to
such care cannot in any way be controlled by MEDITECH.
Customer is responsible for verifying the accuracy and completeness of any
medical or other similar information contained in, entered into, or
used in
connection with the
LICENSED SOFTWARE.
Customer agrees to hold MEDITECH
harmless from any
liability arising from
improper or flawed
operation or
use
of the LICENSED
SOFTWARE. In no event
will MEDITECH be liable for any
consequential damages, lost profits or lost revenues sustained by
Customer,
or
for any suit or claim or demand against Customer by any other party,
except as stated in Artic
