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EXHIBIT 10.1
COMPUTER SERVICES AGREEMENT
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BETWEEN
<>
<>
<>
AND
MCS, INCORPORATED
400 PENN CENTER BOULEVARD
PITTSBURGH, PENNSYLVANIA 15235
[DATE]
CUSTOMER CONTACT: TELEPHONE NUMBER:
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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TABLE OF CONTENTS
I. MESTAMED SYSTEM
II. SOFTWARE LICENSE
III. SUPPORT SERVICE CONTRACT
IV. TERMS AND CONDITIONS
V. AGREEMENT
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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MESTAMED SYSTEM
Included with the MestaMed software system are:
* Getting Started with MestaMed - Installation Guide
* Comprehensive User Manual
* Software Installation
The User Manual and Installation Guide contain the necessary information to
assist your staff in building your database. Step-by-step procedures, as well as
complete file descriptions and input worksheets permit an organized approach to
system implementation. Your staff participates in periodic progress reviews and
question and answer sessions that are initiated by the MestaMed Educational
Services Department. These sessions are designed to complement our normal
support services by providing regularly scheduled, dedicated telephone support,
in a conference call format to your staff.
The operational phase of training takes place at your facility. All operational
features of MestaMed are reviewed.
Travel expenses and telephone connect charges in conjunction with our software
support services and training will be invoiced at cost.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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SAMPLE MESTAMED SYSTEM QUOTATION
- - UNIX Operating System License - 5 Users
Synergex Run Time License - 4 Users
- - MestaMed Software Module - 3 User License
- HME Software License
. Equipment Order Processing
. Rental Equipment System
- Billing and Accounts Receivable Module
- Claims Management Module
- Supporting Document Control Module
- Inventory Management Module
- Management Reporting Module
- User Security System
LAYERED PRODUCTS
- - Med-Write Plus Report Writer Software License
ECS Module - DMERC Region D Cigna Software License
ECS Module - CA
Medi-Cal (DME)
HARDWARE
MestaMed UNIX 450 System including:
Pentium II 450 Mhz Processor
96 MB MOS Memory
4.3 GB SCSI Disk Drive
4/8 GB QIC SCSI Tape Drive
Color Monitor and Keyboard
18 Line Interface Units
1 - 333 CPS Printer with Stand
Video Terminal
Three (3) 100 foot cables/ (from PC to Digiboard) 9F connectors
High Speed Software Support Modem
5 Tape Cartridges
One Year On-Site Hardware Warranty
- - One Year Software Support Services
- 800 Number Telephone Support
- MestaMed Software Updates
- - MestaMed Services
- Getting Started Training Module for HME
Installation Planning
Master File Data Base Requirements
- 5 Days On-Site Services - Weekday - Support Analyst
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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SAMPLE MESTAMED SYSTEM QUOTATION (CONTINUED)
- - Software Installation
Sub-Total
Less Packaged System Allowance
Less September Discount
TOTAL
MISCELLANEOUS CHARGES
Freight/In-Transit Insurance
Sales Tax (if applicable)
Travel Expenses Associated with On-Site Training
Telephone connect charges in conjunction with our software support
services and training will be invoiced at cost.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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SOFTWARE LICENSE
1. LICENSE
MCS Inc. (hereinafter called MCS), by its acceptance hereof, does
hereby grant to a Licensee a paid up, non-exclusive and
non-transferrable license, subject to the terms and conditions and
premises herein set forth, to use computer software programs which are
either proprietary products of MCS or of a Third Party for which MCS is
a licensed distributor. Software program titles and the proprietary
status of each are clearly defined in Section 1a and all software is
hereinafter collectively referred to as "Licensed Software," having the
characteristics and capabilities as described herein.
a. Licensed Software
-MestaMed/HME
-Synergex Run Time License
(Copyright 1978, 1981, 1984, 1985, 1986, an
unpublished work of Digital Information Systems
Corporation (DISC). All rights reserved.
-UNIX Operating System - from Santa Cruz Operations, Inc.
(SCO)Registered trademark of Microsoft Corporation.
-Med-Write Plus Report Writer Software License
-ECS Module - DMERC Region D Cigna Software License
-ECS Module - CA Medi-Cal (DME)
2. DEFINITIONS
The term "Software" as used in this Agreement is defined as the
totality of the processes and routines used in processing the kind of
information to which the Licensed Software refers. The term "Licensee"
for purposes of this Agreement is: a company, firm or individual whose
business is not the sale or production of computer software, nor one in
the business of consulting others regarding computers or computer
software, nor one whose intention it is to resell, trade or barter in
software, but one whose only purpose in obtaining a license for the
Software is for its own in-house use.
3. TERM
This License shall be in effect from the date of MCS's acceptance of
this Agreement and shall remain in force until Licensee discontinues
use of the Licensed Software or the License is otherwise terminated as
provided herein.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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4. SCOPE OF LICENSE
In implementation of this License, MCS shall furnish Licensee with a
copy of the Licensed Software on machine readable media and with
associated user instructions and reference documentation; all of which
material shall be marked with a trade secret notation such as: "The
information herein are trade secrets and proprietary properties of MCS
or the specified Third Party." Licensee understands and agrees that any
revisions or updates to the Licensed Software which MCS or the
specified Third Party may from time to time furnish Licensee (whether
or not additional fees are charged for such revisions or upgrades) also
fall within the scope of this License.
5. LICENSE RIGHTS GRANTED
For the fee, Licensee has the following rights:
(1) To exercise the processes of the Licensed Software in
conjunction with its own in-house administration and
accounting on one specifically designated CPU. The Software
License granted herein cannot be transferred by Licensee to a
new or additional CPU. A new and separate License is required
from MCS for each additional CPU.
(2) To make backup copies of Licensed Software as needed
to implement item 1 only, provided that such copies made
include the same trade secrets and proprietary property
notices that appear on the materials Licensee receives from
MCS, DISC and SCO.
6. COVENANTS OF LICENSE
Licensee covenants and agrees as follows:
(1) That by acceptance of the License, Licensee
acknowledges that Licensed Software constitutes trade secrets
and proprietary property and agrees to include on any copies
made of the materials furnished the same notices or legends
that appear on the materials Licensee receives, and to protect
those materials and the information they contain from
transfer, disclosure or use by any other person without the
express authorization of MCS, DISC and SCO.
(2) That the license merely authorizes Licensee to
exercise or practice the processes of the Licensed Software on
the CPU prepared by MCS, and particularly does not authorize
Licensee to grant licenses for, assign or transfer in any
manner the Licensed Software to any other person.
7. TITLE TO SOFTWARE - MCS
Licensee understands and agrees that all proprietary rights in MCS
Licensed Software shall at all times remain with MCS, and that no
proprietary rights are hereby transferred to Licensee. The software
includes machine readable binaries, and reference documentations.
Further, Licensee agrees that the programs will not be used to provide
a data processing service to any other person or company without the
express written consent of MCS.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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8. TITLE TO SOFTWARE - THIRD PARTY
Licensee understands and agrees that all proprietary rights to the
specified Third Party Software shall remain the sole property of that
Third Party. Licensee has a non-exclusive license to use the Licensed
Software. The right to use the Licensed Software is limited to one
machine located on customer's premises and may only be used to process
the customer's own data. Customer will safeguard and keep confidential
all programs and will not permit them to be copied, loaned or otherwise
made available to any other person or organization. The software
includes machine readable (binaries) and reference documentation.
Further, Licensee agrees that the programs will not be used to provide
a data processing service to any other person or company without the
express written consent of the Third Party.
9. CONDITIONS OF LICENSE
Licensee is responsible for the supervision, management and control of
their exercise of the processes of the Licensed Software, including,
without limitation, providing all reasonable check points, control
techniques, and other measures for detecting promptly and minimizing
the effects of any errors, failures or interruptions that might occur
in the use or exercise of the Licensed Software.
Except as provided otherwise in this Agreement, Licensee agrees: to not
reveal any information contained in the Licensed Software, or any part
thereof, or provide any copies thereof, in any form, to any third
party; to take all reasonable precautions to hold in confidence the
design and documentation of the Licensed Software; to not assign or
otherwise transfer same, by operation of law or otherwise, in whole or
in part, directly or indirectly, including but not limited to any joint
venture or combination arrangement between Licensees; to not exhibit,
donate, barter, loan or otherwise communicate said Licensed Software to
any other firm or person without the express written consent of MCS.
Licensee also agrees to take all appropriate action by instruction,
agreement or otherwise with its employees or other persons permitted
access to the Licensed Software to satisfy its obligations under this
Agreement with respect to use, protection and security of the Licensed
Software. From time to time, MCS may inquire concerning Licensee's
compliance and may require Licensee to take responsible protective
measures.
10. TERMINATION OF LICENSEE AND REMEDIES OF MCS, DISC AND SCO
MCS may terminate this License effective on a specified date if
Licensee neglects or fails to perform or observe any of the terms or
obligations set forth by this Agreement. In such event, Licensee shall
return all Software to MCS and make no further use of it. In the event
this License Agreement is terminated, Licensee agrees to provide MCS
with a signed and dated notice that Licensee has destroyed all of its
copies of the Licensed Software. Such notices must be received by MCS
within fifteen (15) calendar days following notice of termination.
In the event Licensee becomes insolvent or voluntarily or involuntarily
bankrupt, or if a receiver, assignee or other liquidating officer is
appointed for all or substantially all of the business of Licensee or
if Licensee makes an assignment for the benefit of creditors, then MCS
at its option may immediately terminate this License by notice to
Licensee to that effect. In no event shall this License be assigned or
assignable by operation of law or by voluntary or involuntary
bankruptcy proceedings or otherwise, and in no event shall this License
or any rights or privileges hereunder be an asset of Licensee under any
bankruptcy, insolvency or reorganization proceedings.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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Since unauthorized transfer of the Licensed Software or any information
contained therein will diminish substantially the value to MCS of the
trade secrets and proprietary properties that are the subject of this
License, if Licensee breaches any of its obligations with respect to
non-disclosure of the Licensed Software, or if such a breach is likely
to occur, MCS shall be entitled to equitable relief (including orders
for specific performance and injunctions) as well as money damages.
The rights and remedies of MCS set forth in this Agreement are not
exclusive and are in addition to any other rights and remedies provided
by statute, at law or equity, including injunctive relief.
11. LIMITATIONS OF LIABILITIES
Except as expressly provided otherwise in this Agreement, MCS shall not
be liable for any loss or damage claimed to have resulted from the use
of the Licensed Software or claimed to be related in any way to the
Licensed Software regardless of the form of action, and Licensee shall
indemnify MCS for and hold MCS harmless for any loss, cost or expense
suffered or incurred if any such claims are made. In no event shall MCS
be held liable for any special, indirect, or consequential damages in
any way resulting from the use of the Licensed Software by Licensee.
MCS's liability for damages regardless of the form of action, shall not
exceed the total amount paid for the Licensed Software.
12. DIGITAL EQUIPMENT SOFTWARE AND HARDWARE
Warranties respecting products and software supplied by MCS which are
made or licensed by Digital Equipment Corporation are set forth in the
latter company's Standard Terms and Conditions. MCS disclaims all
warranties respecting Digital Equipment Corporation's products and
software including all implied warranties of merchantability and
fitness.
13 CONFIDENTIAL INFORMATION/DATA
MCS will exercise a reasonable degree of care, consistent with good
industry practices, to maintain confidential all information furnished
by Customer. Business and financial information (e.g., actual printed
reports) deemed to be confidential in nature which may be revealed by
Customer to MCS under this Agreement shall not be disclosed to third
parties.
14. GENERAL
No waiver of right, obligation or default shall be implied, but must be
in writing, signed by the party against whom the waiver is sought to be
enforced. One or more waivers of any right, obligation or default shall
not be construed as a waiver of any right, obligation or default.
Any provision or provisions of this Agreement which shall prove to be
invalid, void or illegal shall in no way offset, impair or invalidate
any other provision, and the remaining provisions hereof shall remain
in full force and effect.
This Agreement supersedes all prior agreements and understandings
between the parties and may not be changed or modified except by a
writing signed by the parties.
Licensee may not assign this Agreement or the License without the
express written consent of MCS.
This Agreement shall be governed by the Laws of the State of
Pennsylvania. If MCS is required to engage in any proceedings, legal or
otherwise, to enforce its rights under this Agreement, MCS shall be
entitled to recover from Licensee, in addition to any other sums due,
the reasonable attorney's fee, costs and necessary disbursements
involved in said proceedings.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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MESTAMED SUPPORT SERVICE CONTRACT
The MestaMed System is a product requiring long-term commitment and on-going
support. An annual contract is available to provide our customers with such
support on an equitable and reasonable basis, and at a fixed annual cost which
could be budgeted with assurance. Basically, the services covered under this
annual contract relate to:
1. Software Support Services
2. Software Upgrades
3. Peripheral Upgrades
4. Documentation
5. Consulting Services
6. Back-Up
7. Telephone and Fax Support Service
8. Extended Hours Service
9. Holiday Support Service
EXACTLY WHAT SERVICES ARE PROVIDED?
The MestaMed Support Service Contract encompasses the following basic services:
1. SOFTWARE SUPPORT SERVICES
The MestaMed software license comes with a defined warranty period during which
any user-discovered program errors are treated by MCS at no charge for labor.
Treatment involves providing a quick correction for the problem if at all
possible, or at worst providing some "workaround" procedure to be employed until
the problem can be corrected in a future release of the System.
2. SOFTWARE UPGRADES
The MestaMed System is dynamically changing over time as industry standards,
practices, and equipment change, and as new and better software ideas and
techniques are implemented. All such upgrades are automatically delivered to
MestaMed Users under contract. Charges are restricted to handling costs (media,
shipping, travel, computer connect time, etc.) and labor if on-site service is
required. Often a new release can be installed remotely with only some telephone
assistance required, and in such cases there are no labor charges.
3. PERIPHERAL UPGRADES
As your needs expand you may be required to add terminals, printers, disk drives
and other equipment. MCS will provide operating system modifications, disk file
re-allocations and ongoing support service without additional fees for all
add-on peripherals purchased from MCS.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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4. DOCUMENTATION
From time to time new or revised system documentation will be delivered at no
charge other than shipping expense to MestaMed Support Service Contract
Accounts. During interim periods, errata notices, addendums, and replacement
pages will be provided.
5. CONSULTING SERVICES
MCS will upon request make appropriate personnel available to MestaMed Support
Service Contract Accounts for purposes of consultation, and special-purpose
programming services that relate directly to the MestaMed System.
6. BACKUP
MCS maintains on its premises copies of all MestaMed System software. In the
event of a customer problem, we are able to recreate the MestaMed system exactly
(within the limitation that may be imposed by individual computer hardware
differences) in order to attempt to replicate and solve the problem. In the
event of a media or computer catastrophe at the customer site, we are able to
replace the MestaMed software system.
7. TELEPHONE AND FAX SUPPORT SERVICE
MestaMed contract customers may contact MCS in search of assistance with day to
day system or operational problems. In many cases, this type of assistance
relates to questions of "how to" handle a given situation or obtain a certain
result. "How to" types of questions are discouraged when the answer is readily
available in our User Guide manuals, but they are handled nonetheless. With very
few exceptions, competent and capable staff personnel are at all times in the
office or on call to handle telephone calls. Fax transmission of examples of
problems or concerns are encouraged in that they improve MCS' understanding and
thus expedite service. Within reason, there is no limit to the number of times a
customer may contact the support service group, although we much prefer written
requests when time is not of the essence. The MestaMed Support Service Contract
includes telephone and fax support Monday through Friday, from 8:30 a.m. to 5:00
p.m. (your time zone), except holidays.
8. EXTENDED HOURS OF SERVICE
MestaMed contract customers may also use the extended hours support. This
extended hour service is available as follows (except holidays):
5:00 P.M. TO 8:00 P.M. (YOUR TIME ZONE), MONDAY THROUGH FRIDAY
9:00 A.M. TO 3:00 P.M. (MCS TIME ZONE), SATURDAY
MCS support personnel have terminal and modem connections at their homes and are
accessed by our answering service paging system for extended hours support.
This support is only available for "EMERGENCY" situations and is billable per
your use at $50.00 per half hour increments (minimum charge is one-half hour).
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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9. HOLIDAY SUPPORT SERVICE
MCS offers to its customers Holiday Support Service. This service will be
provided on the days listed on the attached schedule.
This service is only available for "EMERGENCY" situations and is billable per
your use at $60 per half hour increments (minimum charge is one-half hour).
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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MCS 1999 HOLIDAY SCHEDULE
HOLIDAY DATE/DAY
New Year's Day (1999) January 1 Friday
Good Friday April 2 Friday
Memorial Day (Observed) May 31 Monday
Independence Day (Observed) July 5 Monday
Labor Day September 6 Monday
Thanksgiving Day November 25 Thursday
Day after Thanksgiving November 26 Friday
Christmas Eve December 24 Friday
Christmas Day December 27 Monday
New Year's Day 2000 (Observed) December 31 Friday
MCS HOLIDAY SUPPORT SCHEDULE FOR 1999
HOURS OF
BEEPER SERVICE
(EASTERN TIME)
---------------
EASTER Thursday, April 1 5:00p to 8:00p
Friday, April 2 8:30a to 3:00p
Saturday, April 3 9:00a to 3:00p
MEMORIAL DAY Friday, May 28 5:00p to 8:00p
Saturday, May 29 9:00a to 3:00p
Monday, May 31 Closed for the Holiday
INDEPENDENCE Friday, July 2 5:00p to 8:00p
DAY Saturday, July 3 9:00a to 3:00p
Monday, July 5 8:30a to 3:00p
LABOR DAY Friday, September 3 5:00p to 8:00p
Saturday, September 4 9:00a to 3:00p
Monday, September 6 Closed for the Holiday
THANKSGIVING Wednesday, November 24 5:00p to 8:00p
Thursday, November 25 Closed for the Holiday
Friday, November 26 8:30a to 3:00p
Saturday, November 27 9:00a to 3:00p
CHRISTMAS Thursday, December 23 5:00p to 8:00p
Friday, December 24 8:30a to 3:00p
Saturday, December 25 Closed for the Holiday
Monday, December 27 8:30a to 3:00p
NEW YEAR Friday, December 31 8:30a to 3:00p
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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TERMS AND CONDITIONS
This quotation shall remain firm for thirty (30) days from the date hereof,
unless modified in writing by MCS prior to MCS's acceptance and is subject to
credit approval. This quotation supersedes all previous quotations, and all
previous quotations are null and void.
A valid contract binding upon both parties will become effective as of the date
the MCS agreement is signed by both parties.
The payment schedule is as follows:
Primary Application and Computer:
1. 20% upon execution of Agreement.
2. 80% upon delivery of computer hardware and initiation of training
for building your database.
Optional Software:
Optional Application Software Products will be invoiced in full in the
month of installation.
If Customer financing is arranged via a Leasing Company, MCS will require a 20%
deposit and a Purchase Order from the Leasing Company. Upon installation of the
computer, MCS will invoice the Leasing Company Purchase Order. Upon receipt of
payment, MCS will remit (i.e., return) to the Customer the 20% downpayment.
Terms are net thirty (30) days, except for deposit requirements. A late charge
of one and one-half (1-1/2) percent will be added to those amounts thirty days
past due. Travel expense incurred by MCS support personnel, during installation,
will be invoiced monthly at cost.
Customer hereby grants MCS a security interest in the Products as security for
its obligations hereunder until paid for and will execute any document required
to perfect this security interest.
If Customer requests to cancel any order or portion thereof or requests a
rescheduling of scheduled equipment and such request is accepted by MCS,
Customer agrees to pay MCS cancellation/rescheduling charges equal to
twenty-five (25) percent of the proposed system.
Customer's acceptance of the computer system shall occur upon delivery of
computer hardware and initial training on the Primary Software System by MCS
personnel.
All hardware maintenance is purchased from and provided by the hardware vendor.
Systems and programming charges for the optional customer programming services
will be invoiced monthly. Our current billing rate is $90 per hour. MCS reserves
the right to change this rate only upon thirty (30) days prior written notice.
In no event will MCS be liable for special, indirect or consequential damages.
Customer, MCS and their respective affiliates during the term of this Agreement
will not knowingly solicit for employment or hire any employee or former
employee of the other party without the prior written consent of the other
party.
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT
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AGREEMENT
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This Agreement shall be governed by the Laws of the Commonwealth of
Pennsylvania and constitutes the entire agreement between Customer and MCS. Any
modifications of this Agreement shall be made by mutual agreement and supported
by written amendments signed by duly authorized representatives of Customer and
MCS.
Neither Customer nor MCS shall assign this Agreement, nor any parts,
performance or rights hereunder, without the prior written consent of the other.
In Witness thereof, this Agreement and License is made and entered into
as of the _______ day of ______________, 1999, by and between <> and MCS,
INCORPORATED.
<> MCS, INCORPORATED
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NAME NAME
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TITLE TITLE
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SAMPLE MESTAMED COMPUTER SERVICES AGREEMENT