HomeMy WebLinkAbout951741.tiffPUBLIC HEALTH SOFTWARE
S Y S T E M S
July 27, 1995
Mr. Brad Keil
Weld County Government
915 10th Street
Greeley, CO 80631
Dear Brad,
Enclosed is your copy of the executed contract. In reviewing the support
contract, please notice that the effective date is November 1, 1995 through
October 31, 1996.
Public Health Software Systems is excited about this project. We are looking
forward to a successful implementation for Weld County. We will be contacting
you soon to discuss project planning with a target date of early November for
implementation.
Brad, thank you for your efforts as project manager. If you have any questions,
please don't hesitate to give me a call.
Sincerely,
Cathy Taylor
Marketing Account Manager
Enclosure
Public Health Software Systems, LLC
One Meca Way • Norcross, GA 30093
(404) 564-5570 • Fax (404) 564-5574
951741
bPOCO 6
MULTI -SITE SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT (hereinafter referred to as "Agreement") made this 77th day of
T„� Y 1995, between Public Health Software Systems, LLC , a Deleware company
with its principal offices located at One Meca Way, Norcross, Georgia 30093 (hereinafter
referred to as "PHSS"), and the Weld County Government (hereinafter referred to as "WCG").
WITNESSETH:
WHEREAS, PHSS has over the course of several years developed and enhanced at
considerable expense certain proprietary Software (as that term is defined under this Agreement)
which, when used with Equipment (as that term is defined under this Agreement), functions as a
fully on-line Public Health Client Information System; and
WHEREAS, WCG wishes to obtain a license to use the Software; and
WHEREAS, PHSS is willing to license the use of such Software in executable object
code to the WCG sites solely upon the terms and conditions set forth in this Agreement, with the
understanding that WCG shall thereby enter into a confidential relationship with PHSS with
respect to the subject matter of the Software; and
WHEREAS, the respective parties hereto warrant that they have full authority to enter
into this Agreement; and
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
promises contained herein, PHSS and WCG do hereby mutually covenant and agree as follows;
TERM
2.1 The WCG shall have a perpetual license commencing on the date of execution of this
Agreement to use the Software subject to earlier termination as provided in Paragraph 16
hereof.
CONTENTS OF THE AGREEMENT
3.1 This agreement constitutes the entire agreement and understanding between the parties
in reference to the subject matter of this Agreement. Any and all discussions,
promises, representations, or understandings related to the subject matter of this
Agreement, whether written or oral, shall be void and without effect to the extent not
expressly set forth herein.
3.2 This Agreement, as hereinabove defined, shall be known and designated as the PHSS and
WCG Multi -Site Software License Agreement.
EQUIPMENT DEFINITION
4.1 The required configuration of computer hardware and associated peripheral devices
with respect to which (a) the Software is licensed for use by WCG at its principal place
of business and (b) upon or in which PHSS is obligated to install the Software and
shall hereinafter be referred to as "Equipment".
SOFTWARE DEFINITION
5.1 As used herein, the term "Software" shall refer to (a) PHSS's proprietary computer
program written in the computer language "Progress" and which functions as an fully on-
line public health client encounter system which PHSS markets under the tradename
"ACCLAIM" as described in (Exhibit "A").
MULTI -SITE LICENSE
6.1 PHSS grants to WCG a non-exclusive, non -transferable multi -site license to use the
-Software as herein defined in connection with the Equipment as herein defined for the
purpose of data processing, subject to the following conditions and limitations:
(a) WCG shall use the Software only in connection with Equipment physically
located at WCG's Public Health facility sites and only for use by employees of
the WCG and community health centers or other locations which are under
contract with WCG to provide WCG services.
(b) WCG shall use the Software only on the physical number of workstations the
software is licensed for and as defined in Exhibit "B" ACCLAIM price quotation.
(c) At the WCG CPU facility site licensed hereunder WCG shall not copy, reproduce,
or duplicate the Software or any documentation relating thereto by any means whatsoever
-except for archive or emergency restart purposes, without having first obtained PHSS's
written consent. Notwithstanding the foregoing, any duplication of the Software or any
documentation relating thereto shall be deemed unauthorized and shall constitute a breach
of this Agreement, unless all PHSS copyright, trademark, and proprietary notices
contained upon or within the original Software or documentation are incorporated therein.
(d) WCG shall not transfer the Software to Equipment other than that upon or in
which the Software was originally installed by PHSS or specifically authorized (in
writing) by PHSS by any means whatsoever except in the event that such Equipment
malfunctions and becomes inoperative, in which case WCG is permitted to transfer the
Software to other Equipment physically located at WCG's facility site only for the
duration of such Equipment malfunction, following which the Software shall have
transferred back to the original Equipment and all use of the Software in connection with
such other Equipment shall cease.
(e) WCG shall not permit or suffer the use of the Software by any other person,
firm, or corporation.
(f) WCG shall not modify or suffer the modification of the Software by any
person, firm or corporation, whether or not an Affiliated Company, parent, or
subsidiary of WCG , nor shall WCG otherwise disclose the contents of the Software to
any person, firm, or corporation other than employees of WCG who are as a normal
course of business, specifically related to WCG's otherwise authorized use of the
Software.
WARRANTIES AND LIMITATION OF LIABILITY
7.1 THSS warrants (a) that is has full and unrestricted ownership rights to the Software or is a
valid licensee of computer programs incorporated therein and has the right to enter into
-this Agreement; and (b) that WCG's use of the Software solely in accordance with the
-terms of this Agreement will not in and of itself infringe or violate any third party's rights
under any patent, copyright, trademark, or trade secret; and (c) the Software's free of
errors, defects in design, materials, and workmanship with its sole remedy being as
provided in 7.2.
7.2 For so long as WCG is paying PHSS Software support pursuant to the PHSS Support
Contract, a copy of which is contained herein as Exhibit "C" hereof, PHSS will correct all
verified errors of its original and unmodified Software licensed hereunder at no cost to
WCG. PHSS's warranty to correct verified errors of unmodified Software during the
term of this Agreement shall be subject to WCG making the entire hardware and software
system available for PHSS for inspection and correction during normal working hours.
At all times after installation, WCG assumes exclusive responsibility for the supervision,
management and control of the use of the licensed Software, including without limitation;
assuring proper machine configuration, Software installation, audit controls and operating
methods; establishing adequate back-up plans based on alternate procedures and/or based
on access to qualified programming personnel to diagnose, patch and repair licensed
Software defect; and implementing sufficient procedures and checkpoints to satisfy its
requirements for security and accuracy of input and output as well as restart and recovery
in the event of malfunction.
7.3 THE FOREGOING WARRANTIES CONTAINED IN PARAGRAPHS 7.1 AND 7.2
ARE IN LIEU OF ALL WARRANTIES INCLUDING, WITHOUT LIMITATION,
THOSE OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE,
EXPRESS OR IMPLIED. PHSS SHALL NOT BE LIABLE FOR DAMAGES,
INCLUDING, WITHOUT LIMITATION, SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES OCCURRING OR ARISING OUT OF OR IN
CONNECTION WITH USE OF THE LICENSED RIGHTS HEREUNDER.
SIMILARLY, PHSS SHALL NOT BE LIABLE OR DEEMED TO BE IN
DEFAULT FOR ANY DELAY OR FAILURE IN PERFORMANCE OF THE
SOFTWARE LICENSED HEREUNDER OR FAILURE IN PERFORMANCE OF
THIS AGREEMENT OR INTERRUPTION IN SERVICE RESULTING DIRECTORY
OR INDIRECTLY FORM HARDWARE MALFUNCTION, WCG MODIFICATION
OF SOFTWARE, DEVIATION FROM PHSS INSTRUCTION DOCUMENTATION,
ACTS OF GOD, CIVIL OR MILITARY AUTHORITY, ACTS OF PUBLIC ENEMY,
WAR, FIRES, EXPLOSIONS, EARTHQUAKES, FLOODS, THE ELEMENTS,
STRIKES, LABOR DISPUTES, SHORTAGES OF SUITABLE PARTS OR
MATERIALS OR LABOR SUPPLIED BY OTHERS OR ANY OTHER
CAUSES BEYOND THE CONTROL OF PHSS. WCG'S REMEDIES IN THIS
AGREEMENT ARE EXCLUSIVE.
7.4 In the event any PHSS Software furnished hereunder is inPHSS's opinion likely to, or
_does, become the subject of a claim of infringement of a copyright, patent, trade secret or
third -party license, PHSS shall at its option and expense, either procure for WCG the
-right to continue using the PHSS Software or modify to make it non infringing or replace
it with a non -infringing program, which may, at PHSS's option, come under this same
Agreement. If in PHSS's opinion none of the foregoing alternatives is reasonably
available to PHSS, then PHSS may terminate the -License of PHSS's Software upon
ninety (90) days' written notice to WCG and refund the WCG the license fees paid for the
use of the Software. If the PHSS Software is the subject of a claim of patent, copyright,
-trade secret or third -party license infringement, WCG may notify PHSS in writing during
-the one -month period after PHSS's notice of termination that WCG elects to continue to
be licensed with respect to the PHSS Software until there has been an injunction or the
claim has been withdrawn.
7.5 PHSS agrees that it will, at its own expense, defend any suit or claim instituted against
WCG and indemnify and hold harmless WCG from any claim, liability, damage,
expense or award of damages and costs made against WCG by a final judgement of a
Court of competent jurisdiction in any such suit insofar as same are based on a claim that
the items licensed hereunder constitute an infringement of any patent, copyright, trade
secret or third -party license, provided WCGgives prompt notice in writing of the
institution of such suit or claim and permits PHSS shall have control of the defense of
any such suit including appeals, and all negotiations thereof, including the right to effect
a settlement or compromise.
7.6 PARAGRAPH 7.5 STATES THE ENTIRE LIABILITY OF PHSS WITH -RESPECT TO
THE INFRINGEMENT OF ANY COPYRIGHT,PATENT, TRADE SECRET OR
THIRD -PARTY LICENSE BY THE PHSS SOFTWARE OR ANY PARTS THEREOF.
7 7 WCG agrees that it shall be obligated to mitigate its damages resulting or arising from
any Software defect which results, in whole or inpart, in a loss of WCG's data. WCG
shall, at each CPU facility site licensed hereunder, on a weekly basis, make a "mirror
image" backup of its data and such backup storage medium shall be maintained by WCG
in secure location. PHSSshal1 not be liable to WCG for damages resulting or arising
from any defect in -the Software to be developed hereunder which results, in whole or in
part, in the loss of WCG's data which cannot be readily regenerated due, in whole or in
part, to WCG's failure to maintain such weekly "minor image" backup of its data.
7.9 PHSS assumes no responsibility for the -operating environment in which PHSS
Software is to function.
7.10 WITH RESPECT TO ALL EQUIPMENT, WCG AGREES THAT ITS SOLE
REMEDY IN CASE OF ANYDEFECTS SHALL BE SUCH REMEDY AS IS
AFFORDED BY THE EQUIPMENT MANUFACTURER'S WARRANTY OF THE
EQUIPMENT, OR SUCH OTHER REMEDY AGAINST THE EQUIPMENT
MANUFACTURER AS IT MAY HAVE UNDER ANY PROVISION OF
CONTRACT OR LAW. PHSS DISCLAIMS ALL WARRANTIES,EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, OF FITNESS OR ADEQUACY FOR ANY
PARTICULAR PURPOSE OR USE, OR QUALITY, OF PRODUCTIVENESS OR OF
CAPACITY, WITH RESPECT TO ANY SUCH EQUIPMENT, IN NO EVENT
SHALL PHSS BE LIABLE TO WCG FOR LOSS OF PROFITS, CONSEQUENTIAL,
INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, ARISING OUT OF TORT,
BREACH OF WARRANTY OR ANY OTHER BREACH OF CONTRACT,
REPRESENTATIONS OR OBLIGATIONS WITH RESPECT TO SUCH
EQUIPMENT, PRODUCTS AND SERVICES.
7.11 PHSS warrants that services provided under this Agreement shall be performed in
a good and workmanlike manner. PHSS further warrants that:
(a) the Software as furnished shall properly execute on the equipment specified in
attached Schedule A;
(b) the Software will perform together with the equipment as an integrated system,
and will conform to and perform all functions and -features described in this
Agreement;
(c) the Software is fit for use by personnel to store data and generate reports.
OWNERSHIP
8.1 Notwithstanding any other provision of this Agreement to the contrary, it is hereby
agreed that this Agreement constitutes only a license for the use of -the Software by
WCG and that nothing contained herein shall operate to convey to WCG any title to
or ownership interest of any kind or nature whatsoever in the Software or any PHSS
Proprietary Information. All materials which would disclose all or any _portion of the
content of the Software or anyPHSS Proprietary Information shall be returned to-PHSS
by WCG upon termination of this Agreement. Notwithstanding anything to -the contrary
contained herein,-PHSS expressly reserves to itself any and all copyright and/or industrial
property rights in and to the licensed Software arising under the laws of the -United States
or any foreign jurisdiction, except that nothing herein is intended or shall be construed as
constituting or permitting a publication or disclosure of the licensed Software underthe
copyright and/or industrial property laws of the United States or any foreign jurisdiction.
NO OFFICER, EMPLOYEE, OR AGENT OF PHSS IS CAPABLE OF
TRANSFERRING OR AUTHORIZING THE TRANSFER OF ANY OWNERSHIP
INTEREST IN OR TO THE SOFTWARE OR PHSS PROPRIETARY
INFORMATION OR ANY PORTION THEREOF,TO ANY PERSON, FIRM,
CORPORATION, OR GOVERNMENTAL AUTHORITY WITHOUT THE EXPRESS
PRIOR WRITTEN CONSENT OF PHSS'S BOARD OF DIRECTORS.
8.2 Unless WCG and PHSS shall otherwise agree in a writing signed by both WCG and
PHSS, any modifications, improvements, enhancements to the Software which are
developed by PHSS shall be considered the sole property of PHSS regardless of
whether any such modification, improvement, and/or enhancement to the Software is
developed at the request of a WCG.
8.3 WCG shall not subject or suffer the subjection of the Software or any PHSS
Proprietary Information to any form of attachment, sequestration, _claim lien, or
encumbrance of whatsoever kind or nature _other than those imposed thereon by PHSS.
Any voluntary or involuntary act of WCG purporting to create any such attachment,
sequestration, claim, lien, or encumbrance shall be void and without effect.
CONFIDENTIALITY
9.1 This Agreement has been entered into by PHSS in express reliance upon WCG's
representation to PHSS that WCG shall, and by these presents WCG hereby does agree to
treat the pricing of the Software andany written material or electronic storage media,
including, but no limited to, magnetic tapes or disks, training materials, or _other materials
which describe the nature, operation, or use of the Software, including the contents
thereof, which are received by WCG from PHSS pursuant to or in connection with this
Agreement and which have been physically marked or otherwise designated by PHSS
as "Proprietary" and/or "Confidential" (collectively referred to in this agreement as
"PHSS Proprietary Information") as strictly confidential and as a PHSS trade secret,
unless required by WCG or other governing agency.
9.2 Without limiting -the generality of the foregoing or any other prevision of this
Agreement relating to WCG's confidentiality obligations, WCG shall, upon the receipt
of any such PHSS Proprietary Information, and during and subsequent to the term of this
Agreement, prevent the disclosure of anyPHSS Proprietaryinformation to any person,
firm, or corporation (other than employees of WCG or independent contractors
employed by WCG for purposes specifically related to WCG's authorized use of the
S_oftware); WCG shall not permit any PHSS Proprietary -Information to be copied,
reproduced, or duplicated by any means or under any circumstances whatsoever,
including, but not by way of limitation, any transfer of the Software to any form of
electronic storage medium other than that upon or in which the Software was first
installed by PHSS at-WCG's facility site, except to the extent otherwise_expressly
provided under -Paragraph 6.1 of this Agreement; WCG shall not discharge its duties
under this Agreement at any time with any less care than that employed by WCG in
protecting the _confidentiality of WCG's own -trade secrets or proprietary information;
WCG shall take appropriate action, by instructions, agreement, or otherwise, with any
persons permitted access to PHSS proprietary Information so as to_enable the WCG to
satisfy WCG's confidentiality obligations under this Agreement.
9.3 Notwithstanding the foregoing, WCG's confidentiality obligations hereunder with respect
to PHSS Proprietary -Information do not extend to information which:
(a) becomes publicly available without fault of WCG and without the fault of any
person, firm or corporation having apparent authority to act for WCG;
(b) is rightfully obtained by WCG from a thirdgarty without restriction as to
disclosure;
(c) is shown by written record to be developed -by WCG, independently of
PHSS;
(d) is shown by written record to have been known or available to WCG without
restriction as to disclosure at the time or receipt fromPHSS's; or
(e) is generally furnished to others by PHSS without restriction on disclosure.
9.4 WCGacknowledges that PHSS shallbeontitled to preliminary injunctive relief in order
to enforce the provisions of this Agreement relating to theaonfidentiality ofPHSS
Proprietary Information in addition to and not by way of limitation upon any other legal
or equitable remedies available to PHSS under the circumstances.
9.5 PHSS acknowledges that during the course of the negotiations and after the
contracting of this Agreement, WCG may disclose WCG's trade secrets and
proprietary information concerning its business practices which it considers a valuable
WCG asset and that such proprietary information and trade secrets may include but is
not limited to customer lists, pricing information and information to be processed using
the Software, notthe structure of such data, i.e. the form of the program exclusive of any
WCG data. PHSS furtheragrees to use such informationsolely for the benefit of WCG
and not to disclose any WCG information or the contents of this agreement to third
parties without the written consent of WCG.
WCG'SRESPONSIBILITIES
10.1 WCG shall designate at each WCG facility site one employee to act as liaison with
PHSS. WCG shall be solely responsible for the installation of theEquipment and the
preparation of the Equipment and CPU facilitysite for Software installation by PHSS.
The WCG facility site shallbe prepared for Equipment installation by: (a) determining
distances from CPU's to terminals and printers; (b) providing sufficient cabling; (c)
causing cabling to be run_from CPU's to the location of terminals and printers, especially
if they are in different rooms; (d) causings properly licensed electrician to install
appropriate electrical connections as specified by PHSS, equipment manufacturer's
specifications and local building codes; (e) causing the installation of -a private telephone
line near the CPU for TWX and UCS transmissions as well as for remote connections
with PHSS; and (f) causing a telephone handset to be installed near the console terminal
for voice consultation with PHSS personnel when required.
SOFTWARE INSTALLATION
PHSS will install at one site licensed hereunder a copy of -the Software incxecutable
form within ninety (90) days of the date it is notified by WCG that the Equipment as been
installed in conformity with -Paragraph 10 hereof.
PAYMENT
12.1 For the license of the Softwareat the WCG CPU facility sites, and upon the
execution of this Agreement, WCGshall pay PHSS-the amounts and according to the
schedule setforth in the attached Exhibit "B" "ACCLAIM Price Quotation".
TRAINING
13.1 PHSS shall provide -.raining to WCG's personnel in the use of the Software
licensed under this Agreement in accordance with the terms of the attached Exhibit
"B" "ACCLAIM -Price Quotation". In consideration for such training services, upon the
execution of -the Agreement, WCG shall pay PINS the amounts set forth in the
attached Exhibit "B" "ACCLAIM" Price Quotation".
SOFTWARE SUPPORT
14.1 During the term of the site license of the Software, PHSS shall offer software support for
the central state site licensed to use the Software hereunder. In return therefore, WCG
shall pay to PHSS the sum of 15% of the -total license cost per month, -payable in monthly
amounts. "Software support" shall, for the purposes of this Agreement, include on-line
computer to computer support via modem, all enhancements and updates to the Software
that PHS-S shall -from time to time distribute to current licensees of the Software.
14.2 In addition, "software support" shall include telephone assistance for the central site at
PHSS's principal -place of business in Atlanta, Georgia Monday through Fridaytluring
PHSS's normal business hours of 8:30 a.m. to 5:30 p.m. Eastern Standard Time. With
response time of 8 working hours.
S OFTWAREDOCUMENTATION
15.1 PHSS agrees to supply User Documentation, containing complete and accurate
descriptions of programd'unctions, features, terminology, and operations,as well as all
formats, tables and dictionaries for data and files necessary for software operation by
WCG. The User Documentation willprovide a step-by-step tutorial sufficient for
illustrating and explaining -the operation of the system. The User Documentation is to
be written at such a level that it is understandable by a User with basiccomputer skills.
TERMINATION AND DEFAULT
16.1 WCG's failure to pay to PH -SS any license fees or software support fees when due
hereunder, or WCG's failure to adhere to any of -the terms and conditions of this
Agreement, or WCG's failure to perform any of its obligations hereunder shall
constitutea breach of this Agreement and an event of default hereunder which shall
give PHS-S the right (in addition to, and not by way of limitation upon-PIISS's_rights
to obtain any other legal orgquitable relief available to PHSS under the circumstances) to
terminate this Agreement in the event any such default remains uncured for more than
thirty (30) days following receipt of written notice thereof from -PISS. Receipt of any
such notice shall be deemed to occur on the fifth (5th) business day following the mailing
of any such notice by certified first class mail to WCG's address set forth in paragraph
24.1 of this Agreement.
16.2 Upon termination of this Agreement, the license granted to WCG under this
Agreement shall -terminate and WCG shall immediately pay to PHSSany-hen
outstanding license fees or other amounts owed to PHSS and WCG shall (a) return to
PHSS management control by physical delivery each and every item of PHSS
Proprietary Information furnished to WCG pursuant to, arising out of, or in
connection with this Agreement, (b) delete by total erasure or destruction anyPH-SS
Proprietary Information embodies on or in any -disk or other form of electronicstorage
media located upon WCGIs premises or under the supervision, control of custody of
WCG, (c) warrant to PHSS that no PHSS-Proprietary Information has been retained
by WCG inany form whatsoever and (cl) take appropriate action by instructions,
agreement, or otherwise to ensure that every Employee of WCG who shall have had
access tOPHS-S Proprietary Informationtluring theeourse of his or her -employment
with WCG complies with thesubstance of this provision. Notwithstanding the
foregoing, WCG, shall have the right to transfer its data to another system, and WCG
retains the right to its data.
16.3 WCG shall have the rightat any time after July 1, 1993, upon sixty (30) daysprior
written notice -to PHSS, to terminate this Agreement as to any or all of the following:
software license or support.
BUSINESS TERMINATION
17.1 In theevent that either party shall cease conducting business in the normal course,
become insolvent, make a general assignment for the benefit ofereditors, suffer or
permit -the appointment of a receiver for its business or assets, or shall avail itself of,
or become subject to, any proceeding under -the Bankruptcy Reform Act (other thanes
proceeding_under Chapter 11 of Title 11 of such Act) or any other stature of any
governing authority relating to insolvency or -the protection of rights ofereditors, then,
at the option of the other party, this Agreement shallbesleemed to have terminated
and the provisions of Paragraphs 16.1 and 16.2 of this Agreement, as applicable,shall
then apply. This Paragraph 17.1 will not beeonstrued to modify any part or all of
Paragraphs 9.1 and 9.2 of -this Agreement.
NON -SOLICITATION
18.1 For a period of two years after the date of this Agreement neither WCG nor PHSS
shall solicit or accept foremployuient the employees of the other.
INDEPENl)INT CONTRACTOR
19.1 In performing its covenants to WCG under the terms of this Agreement, PHSS shall at
all times be deemed to be an independent contractor and shall not at any time, make any
commitments or incur any expenses in -the name of WCG. PHSS shall have the
complete responsibility of the acts of its employees, the payment of their compensation
and the insurance coverage in the amounts and kind required by law.
SUCCESSORS IN INTEREST
20.1 All covenants, stipulations, and promises in this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors in interest,
assignees, and legal representatives, Neither party shall have the right to assign or
otherwise transfer its rights or obligations under this Agreement without the prior written
consent of the other party; provided, however, that a successor in interest to a party by
merger, by operation of Law, or by assignment, purchase, or otherwise, of the entire
business of either party, shall acquire all the rights and be subject to all the obligations of
such party hereunder, without the necessity of obtaining such prior written consent.
CONSTRUCTION
21.1 Whenever possible, each provision of this Agreement shall be interpreted in such manner
as to-beaffective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or be invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement. The singular
and plural forms of words used in this Agreement may be used interchangeably to
conform to the factual situation described. headings used in this Agreement are included
solely for purposes of reference, and are to be ignored in the construction thereof.
MODIFICATIONS, AMENDMENTS, AND WAIVERS
22.1 No modifications, amendments, or waivers of any of the provisions or terms of this
Agreement shall be effective unless the same shall be made in a writing and manually
signed by an officer of PHSS and a duly authorized representative of WCG which
shall be conspicuously marked as follows: "Modification to PHSS and WCG Site
Software License Agreement."
NON -WAIVER
23.1 No delay or failure of either party in exercising any right hereunder, and no partial or
single exercise thereof, shall be deemed to constitute a waiver of such right or any
other rights hereunder. Any:onsent by either party to, or waiver of, a breach by the
other, whether _express or implied, shall not constitute a consent to, waiver of, or excuse
for any other difference or subsequent breach.
NOTICES
24.1 All notices, requests, and demands given to or made upon either party shall be in writing
and be delivered or mailed to the other party at its address as specified below:
Public Health Software Systems, LLC
One Meca Way
Norcross, Georgia 30093
Attn: Jeffrey L. Cronon
Weld County Government
915 10th Street
Greely, CO 80631
ATTN: Brad Keil
Either party may designate a changed address by giving appropriate written notice to
the other party.
TAXES
25.1 The license fees payable to PHSS under the terms of this Agreement are net of and shall
not be reduced by any use tax, sales tax, property tax imposed upon or with respect to this
license, import tax, duty, export fee, withholding tax, gross receipts tax, turn -over tax,
value-added tax, or other tax or charge of alike or similar nature, other than a tax upon
PHSS's net business income, to which such license fee, PHSS or WCG shall be subject
to under the laws administrative practice of any governmental jurisdiction. WCG agrees
to report and pay any such tax or charge imposed upon WCG or upon the license fees
due PHSS hereunder and hold PHSS harmless therefrom. WCG agrees to reimburse
PHSS for any such tax or charge referred to above to which PHSS may become subject
upon presentation of PHSS's invoice with respect thereto.
GOVERNING LAW
26.1 This Agreement shall be governed,construed, and enforced in accordance with the
laws of the State of Georgia of the United States of America.
SURVIVAL BEYOND COMPLETION
27.1 The parties' respective obligations, representations, and warranties under this
Agreement shall survive the installation of the Software and the payment of license
fees and other charges hereunder.
ARBITRATION
28.1 Any dispute arising out of this Agreement shall be submitted to the American
Arbitration Association under its rules then in force. Both parties shall be bound by
the arbitrator's decision, and judgement upon such decision may be entered in any federal
or state court of competent jurisdiction pursuant to the Uniform Arbitration Act and
Sections 8.01-577&578 in force in the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
undersigned duly authorized representatives.
Weld County Government
BY' .L.Jr
Dale K. Hall
TITLE: Chairman of the Board
ATTEST:
ecretary
Public Health Software Systems, LLC
ATTEST: / v
Secretary
EXHIBIT "A"
System Description
This document details the main -features of the ACCLAIM system for use at The WCG.
PHSS's fourth generation system, marketed under the name 'ACCLAIM', is written in the 4GL
language Progress, version 7.3. The Progress language (and CASE tools) support and run on over
200 different hardware platforms in the native operating system of the platform and in a true
client/server architecture. It is truly a hardware independent solution.
PHSS's own internal development platform, and the initial targeted platform, is the LAN
environment running Microsoft Windows NT as the LAN operating system and the Progress
SQL Server and Microsoft SQL Server as the database server packages. The client side of
operations is a true graphical user interface (GUI) operating inside of Microsoft Windows for
Workgroups.
The ACCLAIM system provides the best and most flexible solution available today. ACCLAIM
provides the ease of use of the GUI, while executing in a true client/server manner. This
architecture allows health departments to build truly scaleable hardware solutions and maintain
optimal system performance in peak usage periods. The development tools and targeted
platforms represent the industry standards and use the premier products available today for
Windows client/serversystems.
The current ACCLAIM version developed for the Wichita/Sedgwick County Health Department
features the following modules:
1. Client Register
2. Program Eligibility/Enrollment
3. Appointment Scheduling
4. Encounter Processing
5. Guarantor Maintenance
6. Patient Billing
7. Third Party Billing
8. Reporting
9. Family Profile
07/21/95
REVISED -ACCLAIM PRICE ESTIMATE
11:31 AM
EXHIBIT B
Pricing/Module
25 User Total
1995 $
1996 $
Client Register
_ $12,825.00
Advance Apyt. Sched.
$10,125.00
Install
Encounter Processing
• $16,200.00
25 -user
Eligibility/Registration
$8,775.00
license
in 1995.
Patient Billing
$12,825.00
Medicaid Billing
$10,125.00
-• •
.
Lab (not required in Nursing) _
$0.00
Reporting
$12,825.00
$0.00
Immunizationno charge)
(LESS DISCOUNT)
($6,520.00)
$70,680.00
_
$6,500.00
SUBTOTAL
$77,180.00
Required Services
Annual Support (15% of total)
$11.577.00
$10602.00
$975.00
$5,000.00
$0.00
ACCLAIM Training (1 person, 5days)
$5,900.00
$5,000.00
$0.00
Implementation_(1 person, 5days)
$5,000.00
SUBTOTAL
$21,577.00
$20602.00
$975.00
Customization
#1 Confirm Deletes (40.5hrs) N/C
$0.00
$090
$0.00
#2 Security (20hrs)
$2,500.00
$0.00
$2,500.00
#3 PCP Restrictions (20hrs)
$2,500.00
$2,500.00
$0.00
#4 Recordlab results (15hrs)
$1,875.00
$1,875.00'
$0.00
#5 Clinic Appt. Restrictions (18hrs)
$2,250.00
$9.00
$2,250.00
#6 Print Drug Labels (12hrs)
$1,500.00
$0:00
$1,500.00
#7 Shots for Tots Intrf. & scan. (58hrs)
$7,250.00
$0.00
$7,250.00
#8 Autodialer (NC)
$0.00
$0.00
$0.00
$0:00
_ _
$0.00
#9 Allow $0 procedure (NC)
$0.00
#10 Handle donations (16hrs)
L $2,000.00
$2,000.00
$0.00
_ _
#11 $25 Fee Accounting (18hrs)
$2,250.00
$0:00
$2,250.00
#12 Remote Clinics (80hrs)
I $10,000.00
$0.00
$10,000.00
#13 Billing/State Reports(To be determined)
$12,000.00
$0:00
$12,000.00
I $2,500:00
$0:00
#14 Banner interface (20hrs)
$27500.00
#15 Monthly Clinic_Calendar (26hrs)
$5,00090
$0.00
$5,000.00
SUBTOTAL
$51,625.00,
$8,875.00
$42,750.00
Additional Services
$0.00
$8,000.00
JAD Facilitation 250/hr (2 people,-4days)
$8,000.00
$0.00
$0.00
$0.00
Project Management $125/hr
$5,000.00
15,000.00
50.00
Data Conversion $125/hr (4ohrs)
Per Diem$11o/Day(18days)
$1,980.00
$1,100.00
$880.00
$1,250.00
$1,250.00
Airfare (4 round trips)
$2,500.00
$7,350.00
$10,130.00
SUBTOTAL
$17,480.00
$167,862.00
$107,507.00
$60,355.00
APPLICATION SUBTOTAL
Progress Database
Progress Database License
$4,230.00
$4,230.00
$0.00
Progress Report Generates 1 user
$500.00
$500.00
$0.00
Progress Client Networking License
$1,700.00
$1,700.00
$0.00
_
$0.00
-$750.00
ProgressSingleilser Database (3 notbok)
$750.00
Progress Annual Support (15%)'
$1,078.00
$965.00, $113.00
57,395.00
$8.63.00
SUBTOTAL $8,258.00
(` Annual Charge)
PHSS TOTAL
$176,120.00
$114,902.00
$61,218.00
EXHIBIT "C"
CONTRACT BETWEEN
PUBLIC HEALTH SOFTWARE SYSTEMS, LLC
AND
WELD COUNTY GOVERNMENT
This contract made and entered into this 27th day of ,Tai y , 1995, by and between Weld
County Government (hereinafter referred to as the "WCG") and Public Health Software Systems,
LLC, hereinafter referred to as the Contractor.
Whereas, the WCG has a need for and desires to support computer programs of the WCG's
ACCLAIM Public Health Encounter System
ARTICLE I: DEFINITIONS
For the purposes of this Agreement, the following definitions shall apply to the respective
capitalized terms:
1.1 "Program." The computer software programs operating under the trademark
name of ACCLAIM, including any extracts from such software, derivative works of such
software, collective works constituting such software (such as subsequent Releases), and
documentation to the extent offered to WCG under this Agreement.
1.2 "Agreement Term." A period of 12 months, commencing on
November 1 , 1995.
1.3 "Error." Any failure of the Program to conform in all material respects to the
functional specifications for the Program published from time to time by Contractor. However,
any nonconformity resulting from WCG's misuse or improper use of the Program or combining
or merging the Program with any hardware or software not authorized to be so combined or
merged by the Contractor, shall not be considered an Error.
1.4 "Error Correction." Either a software modification or addition that, when made
or added to the Program, established material conformity of the Program to the functional
specifications, or a procedure or routine that, when observed in the regular operation of the
Program, eliminates the practical adverse effect on WCG of such nonconformity.
1.5 "Enhancement." Any modification or addition that, when made or added to the
Program, materially changes its utility, efficiency, functional capability, or application, but does
not constitute solely an Error Correction. Enhancements may be designated by Contractor as a
minor or major, depending on Contractor's assessment of their value and of the function added to
the pre-existing Program.
1.6 "Normal Working Hours." The hours between 8:30 a.m. and 5:30 p.m. (E.S.T.)
on the days Monday through Friday, excluding regularly scheduled holidays of Contractor.
1.7 "Releases." New versions of the Program, which new versions may include both
Error Corrections and Enhancements.
Now, Therefore, for and in consideration of the premises and mutual covenants hereinafter, it is
agreed as follows:
ARTICLE II: SUPPORT
During the Agreement Term, Contractor shall be responsible for using all reasonable diligence in
correcting verifiable and reproducible Errors in the program when reported to the Contractor. In
an effort to preserve the continuity of the programs, the Contractor will not be responsible for
correcting Errors in any version of the programs other than the most recent Releases of these
programs. The WCG will be given a 90 day grace period to allow time to acquire the latest
version of the program.
Contractor agrees to provide support services on site, by telephone and/or computer
telecommunications during Normal Working Hours for the duration of this contract.
Contractor agrees that they will not come on site unless approved by the Program Manager.
Contractor agrees to notify Program Manager that he has been called by someone else and
services will be billed for.
Contractor agrees that first response will be within eight (8) Normal Working Hours when
notified of problem from Program Manager.
ARTICLE III: The WCG Agrees:
To purchase, install, and properly configure PC Close Up Customer, or Cosession, and a modem.
Contractor recommends Hayes 14,400 BAUD external modem.
To reimburse Contractor for services provided to the WCG when Contractor properly submits
invoice(s) to the WCG.
ARTICLE IV: FEES AND CHARGES
Customer shall pay -the Contractor it's fees and charges based on the rate schedule set forth in
Exhibit "B". The maximum_reimbursement to the Contractor by the WCG will be $10,602.00
annually for the duration of the contract.
The maximum reimbursement to the Contractor by the WCG during the term of this agreement
for onsite services will not exceed $125.00 per hour and $110.00 per -day for room and meals.
Mileage will be billed separately at a rate of $.27Ter mile and airfare or car rentals will be billed
as incurred.
Contractor shall bill the WCG monthly for support and expenses. Invoices shall be payable upon
receipt. Billing rates will be renegotiated at the end of this contract period.
ARTICLE V: Alteration or Modification
No modification or alteration of this contract will be valid or effective unless such modification
is made in writing, signed by both parties and is affixed to this contract as an amendment.
ARTICLE VI: Terms of Contract
This contract is effective November 1 , 1995 and will terminate oetober T1
1996 unless the WCG agrees to extend this contract for the optional time period.
ARTICLE VII: Cancellation of Contract
This contract may be canceled by either party by giving the other party at least 30 days notice, by
certified mail, of it's intentions. If termination is effective under this article, payment to the
Contractor by the WCG will be made based on the numbers of work hours and expenses
Contractor has invoiced the WCG.
Agreed to and signed this 77th day of Ju] y , 1995.
Weld County Governme9t
BY:
TITLE:Chai�rinan of the Board, Weld
ATTEST:
Public Health Software Systems, LLC
BY:
TITLE:
ATTEST:
President
Govevnment
Date: drily 27, 1995
"EXHIBIT D"
Rate and Charges Schedule
Mileage
Travel Expenses (Airfare)
Travel Per Diem
Extended Support (Non -Error Correction)
ACCLAIM Annual Support (15% License Fee)
As Incurred
As Incurred
$110.00/Day
$125.00/Hour
$10,602.00
Note that when travel is necessary, Customer agrees to pay extended support for all time spent in
non -error correction services and travel.
Note that invoices in excess of 30 days old will be billed an additional 1.5% interest charge, per
month, on the outstanding balance.
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