EXHIBIT 10.32
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BRIDGELINE
Quality Internet Solutions
MASTER SERVICES AGREEMENT
THIS AGREEMENT, made and entered into this 1 day of July 2004, between
Bridgeline Software, Inc. ("BRIDGELINE") a Delaware Corporation, having its
principal place of business at 130 New Boston Street, Woburn, MA 01801 and John
Hancock Life Insurance Co. ("Customer") having its principal place of business
at John Hancock Place, Boston, MA 02116.
In consideration of the mutual promises contained herein, the parties agree as
follows:
SECTION 1 - TERM OF AGREEMENT
This Agreement will commence on the day first above written and remain in full
force until terminated as provided for in Section 18 of this Agreement.
SECTION 2 - DUTIES OF THE PARTIES
During the term of the Agreement BRIDGELINE agrees to provide consultative
services ("Services") and deliver software and documentation ("Deliverables") to
Customer, which Customer may authorize, from time to time, by the execution of a
Statement of Work as described in this Agreement. BRIDGELINE shall not be
obligated to provide Services or Deliverables, and Customer shall not be liable
to pay for such, until a Statement of Work or other written authorization has
been executed in accordance with this Agreement.
SECTION 3 - STATEMENT OF WORK(S)
The following procedure will be followed to initiate and activate a Statement of
Work under this Agreement:
BRIDGELINE or Customer, which may include Customer's
affiliates (affiliates shall mean any entity directly or
indirectly controlling, controlled by or under common control
with Customer),shall prepare a Statement of Work and submit
such form in duplicate to the other party for approval. Each
Statement of Work shall define (i) the specific Services
and/or Deliverables authorized by the Customer, (ii) the
schedule or term of the engagement, (iii) the applicable rates
and charges therefor, and (iv) other appropriate terms and
conditions as warranted. Each Statement of Work shall specify
the appropriate financial terms and conditions applicable to
that Statement of Work (including whether work is to be
performed on a Time and Materials or a Fixed Price basis). If
the Statement of Work specifies that the Services or
Deliverables are to be performed on a Time and Materials
basis, BRIDGELINE will notify Customer as soon as practicable
if it appears that an estimate(s) will not be sufficient to
complete the work under the
Statement of Work. BRIDGELINE shall not incur charges in
excess of one hundred and ten percent (110%) of the total cost
estimated until an amendment to the Statement of Work is
approved in writing by Customer. Any changes requested by
Customer in the work agreed to in a fixed price Statement of
Work or changes in delivery dates which cause BRIDGELINE to
incur additional expense shall be paid by Customer. For Web
based solutions, each Statement of Work shall detail the fixed
number of Web Pages to be provided. Additional Web Pages
requested by Customer shall result in additional charges to
Customer at the rate specified in the Statement of Work.
BRIDGELINE will submit written notification of all changes to
Customer for approval prior to invoicing. BRIDGELINE or
Customer, upon its acceptance, shall execute the Statement of
Work and return one fully executed copy to the other Party.
SECTION 4 - CONFLICT IN DOCUMENTS
Statement of Work(s) shall be governed by the terms and conditions of this
Agreement, provided, however, that should the terms within the Statement of
Work(s) conflict with the terms of this Agreement, the terms outlined within a
specific Statement of Work shall govern as applied to the work authorized
therein. All delivery dates referred to in Statement of Work(s) are predicated
on BRIDGELINE receiving content and other deliverables from the Customer in a
timely manner as requested by BRIDGELINE during the course of the project.
Should the Customer not deliver content or other deliverables in a timely
manner, BRIDGELINE shall not incur any liability to Customer as a result of such
delay and may alter delivery dates or assess additional charges as provided for
in the Statement of Work(s).
SECTION 5 - CONFIDENTIALITY
A. BRIDGELINE and its employees will treat as confidential all Customer business
plans, technical data, trade secrets, plans for products or services, customer
or supplier lists, marketing plans, software, hardware, financial documents (and
any similar information not available to the public) furnished by Customer under
this Agreement ("Confidential Information"). For the term of this Agreement and
for a period of twenty -four (24) months thereafter such information shall not
be disclosed to third parties by BRIDGELINE or its employees without Customer's
prior approval. Notwithstanding the foregoing, Confidential Information shall
not include information that (i) is or becomes generally known to the public not
as a result of a disclosure by BRIDGELINE; (ii) is rightfully in the possession
of BRIDGELINE prior to disclosure by Customer; (iii) is received by BRIDGELINE
in good faith and from a third party not known by BRIDGELINE to be under a
confidential obligation to Customer, or (iv) is independently developed by or
for BRIDGELINE without use or reference to the confidential information.
B. Customer and its employees will treat as confidential all BRIDGELINE business
plans, financial documents, customer listings, developmental processes and
methodologies (and any similar information not available to the public)
incorporated within or utilized in the development of any Deliverables and/or
work product ("Confidential Information"). For the term of this Agreement and
for a period of twenty -four (24) months thereafter Customer shall not disclose
to third parties any such Confidential Information without BRIDGELINE's prior
approval. Notwithstanding the foregoing, Confidential Information shall not
include information that (i) is or becomes generally known to the public not as
a result of a disclosure by Customer; (ii) is rightfully in the possession of
Customer prior to disclosure by BRIDGELINE; (iii) is received by Customer in
good faith and from a third party not known by Customer to be under a
confidential obligation to BRIDGELINE; or (iv) is independently developed by or
for Customer without use or reference to the confidential information.
C. Both parties agree that, except as may be required by applicable law or
regulation, they shall not disclose in advertising, publicity, or otherwise the
terms and conditions of this Agreement without prior written consent of the
other party.
SECTION 6 - ACCEPTANCE
A. SERVICES - Services shall at all times be subject to Customer's reasonable
satisfaction and approval. Customer shall notify BRIDGELINE when a determination
is made that such Services are unsatisfactory and shall not be required to pay
for any Services performed after such notification. BRIDGELINE and Customer
shall mutually review the Services performed prior to the notification to
determine the amount Customer shall be obligated to pay for the work performed
satisfactorily (based upon the fees stipulated in the applicable Statement of
Work).
B. DELIVERABLE(S) - Upon completion, BRIDGELINE shall notify Customer that a
Deliverable is ready for Customer Review. Within fifteen (15) business days
("Acceptance Period") of such notice, Customer shall inspect such Deliverable to
verify conformity to the applicable specifications. In the event Customer
determines during the Acceptance Period for a Deliverable that such Deliverable
does not reasonably conform to the applicable specifications, Customer shall
notify BRIDGELINE of such determination in a written notice setting forth a
description of the nonconformities exhibited by such Deliverable (a "Rejection
Notice"). Upon BRIDGELINE's receipt of a Rejection Notice, the parties shall
meet and confer to agree in good faith upon the timing schedule and other
commercially reasonable terms by which BRIDGELINE shall remedy such
nonconformities. If the parties are unable to mutually agree to the terms by
which BRIDGELINE shall remedy such conformity, Customer shall have the right to
terminate the applicable Statement of Work pursuant to Section 18 of this
Agreement. Should Customer exercise its right to terminate the applicable
Statement of Work, Customer shall have no further liability under the terminated
Statement of Work, except that Customer shall pay BRIDGELINE any balance due for
conforming Deliverables previously accepted and for services performed up to the
date of termination. Otherwise, upon BRIDGELINE's completion of such remedy,
BRIDGELINE shall redeliver the applicable Deliverable for Customer's
re-evaluation as set forth herein. The foregoing procedure shall be repeated
until Customer accepts the deliverable or terminates the applicable Statement of
Work. In the event Customer informs BR IDGELINE that a Deliverable is
acceptable, or if Customer otherwise fails to deliver a Rejection Notice during
the applicable Acceptance Period, then such Deliverable shall thereupon be
deemed accepted.
SECTION 7 - TAXES
In the event any foreign, federal, state, or local taxes are assessed on any
Services or Deliverables produced under this Agreement Customer shall reimburse
BRIDGELINE
accordingly, provided, however, that Customer shall not be responsible for taxes
assessed on BRIDGELINE income.
SECTION 8 - INSURANCE
BRIDGELINE agrees to carry the following insurance coverage during the term of
this Agreement:
A. Workers compensation as required by the laws of the jurisdiction in which the
work is being performed.
B. Comprehensive general liability and property damage insurance with combined
bodily injury and property damage limit of $1,000,000 for each occurrence.
C. Employer's Liability - $500,000 each accident; $500,000 disease policy limit;
$500,000 disease each employee.
D. Upon request, BRIDGELINE shall furnish Customer a Certificate of Insurance
evidencing such coverage and, where applicable, naming Customer as an additional
insured as its interests may appear. Nothing in this Section shall be deemed to
limit BRIDGELINE'S responsibility to the amounts stated above or to any limits
of BRIDGELINE'S insurance policies.
SECTION 9 - OWNERSHIP OF WORK PRODUCT
A. All content (including without limitation, trademarks, artwork, logos,
graphics, video, text, data, and other materials) provided by Customer to
BRIDGELINE in connection with this Agreement shall remain the sole and exclusive
property of Customer.
B. Except as set forth in Section 9.C of this Agreement, BRIDGELINE hereby
assigns to Customer the rights, title, and interest in and to any Deliverable(s)
developed under this Agreement, and a perpetual, royalty-free license to all
source programming code and intellectual property incorporated in the
deliverable, which remains the sole property of BRIDGELINE. However, such
assignment of property rights shall be subject to Customer completing its
payment obligations under this Agreement.
C. "BRIDGELINE Material" - Software, documentation, or other work product owned,
developed, or licensed by BRIDGELINE prior to this Agreement or developed
outside of this Agreement and used and/or modified by BRIDGELINE to fulfill its
obligations under this Agreement will remain the sole and exclusive property of
BRIDGELINE. In addition, BRIDGELINE shall retain the sole ownership and rights
in its proprietary design techniques (including without limitation the
intermediate design files), its methodologies, and its developmental processes
(including without limitation the ownership of intermediate work product).
D. To the extent that any Deliverable(s) embodies or reflects rights that
BRIDGELINE owns pursuant to Section 9.C, BRIDGELINE hereby grants to Customer an
irrevocable, perpetual,
non-exclusive, worldwide, fully paid up, royalty-free license for the use, copy,
display, reproduction, and performance of such BRIDGELINE Material for
Customer's internal business use only. Customer agrees not to resell any
Deliverable or portion of a Deliverable that includes such licensed material.
Such license is subject to Customer completing its payment obligations under
this Agreement.
E. Upon termination or expiration of this Agreement all non-licensed software,
documentation or materials belonging to BRIDGELINE or Customer shall be returned
to the respective owner thereof within ten (10) days notice and the non-owning
party shall retain no copies unless the respective owner consents in writing
thereto.
SECTION 10 - WARRANTY
A. BRIDGELINE warrants that the Deliverables developed under this Agreement and
any Statement of Work(s) will be performed in a workmanlike manner consistent
with industry standards and practice.
B. BRIDGELINE warrants that for a period of thirty (30) days from Acceptance the
Deliverables shall perform according to the written functional specifications as
defend within the Statement of Work and other project documentation. BRIDGELINE
shall use reasonable efforts to correct all errors, defects, or malfunctions in
any Deliverable discovered by Customer, and reported in writing to BRIDGELINE,
within thirty (30) days of Acceptance. The following exceptions shall apply:
1) Should BRIDGELINE expend effort to correct a deficiency that
Customer and BRIDGELINE mutually agree was not the fault of BRIDGELINE
then Customer shall reimburse BRIDGELINE at time and material rates.
2) If BRIDGELINE identifies that an error, defect, or malfunction is
the result of an alteration made by Customer (or another party at the
direction of Customer) then Customer shall reimburse BRIDGELINE at time
and material rates for all efforts expended to identify and/or correct
such error, defect, or malfunction.
C. UNLESS OTHERWISE INCLUDED IN A STATEMENT OF WORK, THE FOREGOING WARRANTIES
ARE IN LIEU OF ALL OTHER WARRANTIES (STATUATORY, EXPRESS, OR IMPLIED) INCLUDING
WITHOUT LIMITATION THOSE CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
SECTION 11 - INDEMNITY PROVISIONS
A. Customer agrees to indemnify and hold BRIDGELINE harmless from and against
any and all claims, actions, demands, losses, and causes of action arising from
patent, trademark, copyright, or similar intellectual property infringement
related to Customer provided content.
B. BRIDGELINE agrees to indemnify and hold Customer harmless from any and all
claims, actions, demands, losses, and causes of action arising from willful
misconduct or grossly
negligent acts and omissions on the part of BRIDGELINE (except in the case of
concurrent negligence in which case BRIDGELINE shall only be responsible for the
percentage of the loss attributable to BRIDGELINE).
C. BRIDGELINE agrees to indemnify and hold Customer harmless from and against
any and all claims, actions, demands, losses, and causes of action arising from
patent, trademark, copyright, or similar intellectual property infringement
related to BRIDGELINE Material or provided content.
SECTION 12 - CONSEQUENTIAL DAMAGES
Neither party hereto shall be liable to the other party for any indirect,
incidental, consequential, special, or exemplary damages arising from or related
to this agreement (even if such party has been advised of the possibility of
such damages) such as, but not limited to, loss of revenue or anticipated
profits or lost business.
SECTION 13 - PUBLICITY
BRIDGELINE may not include Customer's name and general case study information
within BRIDGELINE marketing material unless it has obtained Customer's prior
written approval. Customer shall provide BRIDGELINE an opportunity to place the
BRIDGELINE logo on the Deliverables.
SECTION 14 - INVOICES AND PAYMENTS
A. If invoicing and payment terms are defined within the specific Statement of
Work(s), they shall prevail over Section 14.B of this Agreement.
B. For all services, fees, expense amounts and reimbursements as described in
this Agreement, BRIDGELINE shall prepare and submit invoices to Customer as
required, but not more than monthly. Customer invoices are due and payable to
BRIDGELINE within thirty (30) days of receipt.
SECTION 15 - EMPLOYEE ROTATION
BRIDGELINE reserves the right to replace a BRIDGELINE employee upon prior
written notice to Customer at any installation of Customer during the
performance of any Statement of Work(s) provided that such replacement employee
shall possess the training, skills and level of competence required to perform
assigned duties as defined in the Statement of Work.
SECTION 16 - EXPENSES
Customer shall reimburse BRIDGELINE for actual, out-of-pocket, reasonable,
expenses only when agreed to in a Statement of Work. Such expenses will be
limited to third party software, documentation reproduction costs and travel
(airlines, shuttle service, taxi, bus, car rental, gas, parking), lodging and
meals. No other expenses will be reimbursed. If expenses are agreed to be
reimbursed, the applicable Statement of Work shall include an estimate of the
expenses for such Statement of Work as well as the term, "not to exceed an
amount equal to ten percent (10%) of the aggregate fees under the applicable
Statement of Work." Receipts must be supplied for all reimbursable expenses and
shall be maintained by BRIDGELINE for at least one year and be presented to
Customer upon request.
SECTION 17 - NOTICES
Any notices provided for in this Agreement shall be given in writing and
transmitted by (i) personal delivery, (ii) prepaid first class registered or
certified mail, or (iii) nationally recognized overnight courier. Such notice s
shall be addressed as follows:
BRIDGELINE: Bridgeline Software, Inc. Customer: John Hancock Life Insurance Co.
130 New Boston Street 197 Clarendon Street - C08
Woburn, MA 01801 Boston, MA 02116
Email: cebula@bridge-line.com Attn: Julie Clark
With copy to:
John Hancock Life Insurance Co.
380 Stuart St. - S08
Boston, MA 02116
Attn: Purchasing Contract Manager
SECTION 18 - TERMINATION OF THE AGREEMENT
A. No Work Issued - In the event Customer does not execute one (1) or more
Statement of Work(s) pursuant to Section 3 of this Agreement within six (6)
months of the date first written above this Agreement shall automatically
terminate.
B. Termination for Breach - If either party should materially or repeatedly fail
to fulfill its obligations under this Agreement or any Statement of Work (a
"breach"), the other party, without liability therefor, may terminate this
Agreement, and all outstanding Statement of Work(s), in whole or in part, at any
time as of which such breach occurs or persists, by giving the breaching party
written notice of such breach and the intention of such other party to terminate
this Agreement. The breaching party will have thirty (30) days from receipt of
such notification to cure such breach. The failure to cure such breach as stated
in the preceding sentence may result in the termination of this Agreement and
each Statement of Work as of the end of such period without prejudice to any
other rights the parties may have.
C. Termination for Convenience -Either party may terminate this Agreement or any
Statement of Work for its convenience with thirty (30) days prior written
notice. In the event either party terminates this Agreement or any Statement of
Work for its convenience, Customer will notify BRIDGELINE as to what Services,
yet to be completed under such Statement of Work(s), shall be completed or not
completed. Customer shall pay BRIDGELINE, pursuant to the invoice and payment
provisions contained in this Agreement, for (i) all time and materials fees that
are completed prior to and accepted prior to or accepted after the termination
for convenience notice is provided; (ii) all time and materials fees that, per
Customer's request, are completed and accepted subsequent to provision of the
termination for convenience notice; (iii) all expenses incurred prior to
provision of the termination for convenience notice or subsequent to provision
of the termination for convenience notice if incurred as per Customer's request
so long as such
expenses are incurred as permitted under this Agreement; (iv) any fixed fee
Deliverable-based payments yet to be paid for Deliverables that are received
prior to and accepted prior to or accepted after provision of the termination
for convenience notice; (v) any fixed fee Deliverable-based payments for
Deliverables that, per Customer's request, are completed, received and accepted
after provision of the termination for convenience notice; and (vi) a prorated
fixed fee Deliverable-based payment for any Deliverable not received by Customer
prior to provision of the termination for convenience notice and which Customer
requests BRIDGELINE immediately cease work on, such pro-rated amount to be
mutually agreed upon by the parties based on the total fee for such Deliverable
and the documented percentage of work completed by BRIDGELINE prior to provision
of the termination of convenience notice.
D. Statement of Work(s) Complete - Unless separately agreed to in writing, this
Agreement will automatically terminate one (1) year after the completion of all
Statement of Work(s) issued hereunder.
SECTION 19 - GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts, excluding its conflicts of laws provisions.
SECTION 20 - STATUTE OF LIMITATIONS
No action, regardless of form, arising out of the transactions under this
Agreement may be brought by either party more than one (1) year after the cause
of action has been discovered except that an action for nonpayment for services
which, as provided herein, may be brought within two (2) years after the date of
last payment or date of last work performed, whichever shall occur later.
SECTION 21 - ENTIRE AGREEMENT/INCORPORATION OF STATEMENT OF WORK(S)
It is expressly agreed that this Agreement embodies the entire understanding of
the parties in relation to its subject matter, and that no other agreement or
understanding, verbal or otherwise, relative to its subject matter exist or
survive between the parties at the time of execution of this Agreement provided,
however, that the Statement of Work(s) are incorporated in this Agreement by
reference with the same effect as if each had been reproduced in its entirety.
SECTION 22 - INDEPENDENT CONTRACTOR
Customer acknowledges and agrees that all Services performed by BRIDGELINE
pursuant to this Agreement including, without limitation, the creation,
development, and delivery of Deliverables, are or will be performed by
BRIDGELINE as an independent contractor. BRIDGELINE may use subcontractors in
its performance of Services under this Agreement.
SECTION 23 - BACKGROUND CHECKS
BRIDGELINE warrants to Customer that it has done a background check for each
employee or subcontractor who provides Services to Customer on-site at a
Customer location within one (1) year prior to such employee's or
subcontractor's engagement on-site at a Customer location and to the best of its
knowledge, that such employee or subcontractor has not had a felony conviction
in the past seven (7) years or any misdemeanor conviction in the past seven (7)
years concerning bodily harm or theft of any intellectual or personal property.
SECTION 24 - NON-SOLICITATION
Customer agrees not to knowingly solicit for hire or for subcontract services or
to offer employment to any employee, former employee, or subcontractor of
BRIDGELINE ("BRIDGELINE Personnel") who has been actively involved in the
provision of Services under this Agreement for a period of one (1) year from the
date the BRIDGELINE personnel last performed Services hereunder without the
prior written consent of BRIDGELINE.
SECTION 25 - HEADINGS
The Section headings provided in this document are for reference purposes only
and shall not govern the provisions listed within this Agreement.
SECTION 26 - ASSIGNMENT
Except as provided below, this Agreement shall not be assigned by either party
without the express written consent of the other party. Notwithstanding the
foregoing, either party may assign this Agreement, without the consent of the
other, to an entity that has acquired all or substantially all of that party's
assets as successor to the business and this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
SECTION 27 - WAIVER
The failure of either party to partially or fully exercise any right or the
waiver by either party of any breach shall not prevent a subsequent exercise of
such right or be deemed a waiver of any subsequent breach of the same or any
other term of this Agreement.
SECTION 28 - SEVERABILITY
Each Section, paragraph, and provision is severable from the Agreement, and if
one or more provisions or parts are declared invalid, the remaining provisions
shall nevertheless remain in full force and effect.
SECTION 29 - DISPUTE RESOLUTION
In the event of any dispute, controversy, or claim of any kind or nature arising
under or in connection with this Agreement (a "Dispute"), then upon the written
request of either party, the appropriate level contacts of each party will meet
for the purpose of endeavoring to resolve the Dispute. The designated contacts
will meet as often as the parties reasonably deem necessary in order to gather
and furnish to the other all information with respect to the matter in issue
which the parties believe to be appropriate in connection with resolution. Such
contacts will discuss the Dispute and will negotiate in good faith in an effort
to resolve the Dispute without the necessity of any formal proceeding relating
thereto. The specific format for such discussions will be left to the discretion
of the contacts but may include the preparation of agreed upon statements of
fact or written statements of position furnished to the other party. No legal
proceedings for the resolution of the Dispute may be commenced until the earlier
to occur of (i) a good faith conclusion by the designated contacts that amicable
resolution through continued negotiation of the matter in issue does not appear
likely, or (ii) the 30th day after the initial request to negotiate the Dispute.
SECTION 30 - FORCE MAJEURE
Neither party shall be liable for any failure to perform its obligations under
this Agreement if prevented from doing so by a cause or causes beyond its
control. Without limiting the foregoing, such causes include acts of God, or the
public enemy, fires, foods, storm, earthquakes, riots, strikes, lockouts, wars
or war operations, restraints of government or other cause or causes which could
not with reasonable diligence be controlled or prevented by the party.
SECTION 31 - LIMITATION OF LIABILITY
Except for liability arising from Sections 5, 9 and/or 11 , to the fullest
extent permitted by applicable law, the total aggregate liability of either
party to the other, and its subcontractors, collectively, regardless of whether
such liability is based on breach of contract, tort, strict liability, breach of
warranties, failure of essential purpose or otherwise, under this Agreement or
any Statement of Work shall be limited to the fees paid by Customer to
BRIDGELINE pursuant to the Statement of Work under which any such liability
arises. Notwithstanding the above, the maximum liability of either party arising
from Sections 5, 9 and 11 shall not exceed $1,000,000.
SECTION 32 - SURVIVAL OF PROVISIONS
The terms and provisions provided in Sections 5, 9, 11, 12, 14, 18, 20, 24, 31,
and this Section 32 shall survive the termination of the Agreement.
BRIDGELINE SOFTWARE, INC. JOHN HANCOCK LIFE INSURANCE CO.
By: /S/ THOMAS L. MASSIE By: /S/ WILLIAM PALMER
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Print Name: Thomas L. Massie Print Name: William Palmer
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Title: President & CEO Title: Senior Vice President
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Date: 7-13-2004 Date: 7-20-2004
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AMENDMENT NO. 1
This Amendment No. 1 ("Amendment") hereby amends and is made a part of the
Master Services Agreement ("Agreement") between Bridgeline Software, Inc.
("Bridgeline") and John Hancock Life Insurance Co. ("Customer") dated July 1,
2004.
WHEREAS, Bridgeline and Customer desire to amend the terms and conditions of the
Agreement,
NOW, THEREFORE, the Agreement is amended, modified, or supplemented as follows:
1. DEFINITIONS: Capitalized terms that are used but not defined in this
Amendment shall have the same meaning as in the Agreement.
2. SECTION 5 -CONFIDENTIALITY: The following is added as Paragraph D. of this
Section:
In the course of performing its duties and obligations under this
Agreement, it may be necessary for Customer to disclose to Bridgeline
nonpublic personal financial and/or nonpublic personal health information
about its consumers and customers. Title V of the Gramm-Leach-Bliley Act of
1999 (Public Law 106-102) and its implementing legislation and regulations
limit the redisclosure and reuse of such information. Bridgeline may
disclose Customer's consumers' and customers' nonpublic personal
information in the ordinary course of business to carry out the purposes
for which the information is disclosed, provided such disclosure is in
compliance with (and not in violation of) (i) Title V of the
Gramm-Leach-Bliley Act and its implementing regulations, as the same may be
amended from time to time, and (ii) other applicable federal and state laws
and regulations regarding privacy. Bridgeline agrees that it will not
redisclose or use this nonpublic personal information except as necessary
to carry out the terms of this Agreement or as necessary to effect,
administer, or enforce a transaction that the appropriate consumer or
customer requests or authorizes. Bridgeline may redisclose such nonpublic
personal information to another person or entity only if the disclosure
could be lawfully made directly to that person or entity by Customer. In
the event that there is a question about whether redisclosure of nonpublic
personal information is permissible, Bridgeline shall consult with Customer
prior to making that disclosure. Bridgeline will implement appropriate
measures to ensure the security and integrity of all nonpublic personal
information from any anticipated threats or hazards and from unauthorized
access or use. Bridgeline will indemnify Customer for all costs and/or
damages awarded against it as a result of an improper disclosure by
Bridgeline.
Except as modified herein, the terms and conditions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
John Hancock Life Insurance Company Bridgeline Software, Inc.
By: /S/ SUSAN P. YARDLEY By: /S/ GARY M. CEBULA
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Name: Susan P. Yardley Name: Gary M. Cebula
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Title: AVP Title CFO
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Date: 3/28/2005 Date: 3/10/05
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HIPAA BUSINESS ASSOCIATE ADDENDUM
This HIPAA Business Associate Addendum ("Addendum") is entered into as of
March 7, 2005 (the "Effective Date"), and when fully executed by both parties
becomes incorporated by reference into that certain Master Services Agreement
("Underlying Agreement") by and between Bridgeline Software. Inc. ("Business
Associate'), and John Hancock Life Insurance Company ("John Hancock") dated July
1, 2004 as the same may have been previously amended. This Addendum is entered
into for the purpose of complying with the Privacy Rule under the Health
Insurance Portability and Accountability Act of 1996, 45 CFR Parts 160 and 164,
as the same may be amended from time to time.
1. DEFINITIONS
The following terms shall have the following meanings.
(a) "Individual" shall mean a person who is the subject of
Protected Health Information, and shall include a person who
qualifies as a personal representative of such person in
accordance with the Privacy Rule.
(b) "Privacy Rule" shall mean the "Standards for Privacy of
Individually Identifiable Health Information" at 45 CFR part
160 and part 164, subparts A and B, as amended from time to
time.
(c) "Protected Health Information" shall mean individually
identifiable information, including demographic information,
that relates to (i) the past, present or future physical,
mental, or behavioral health or condition of an Individual,
(II) the provision of health care to an Individual, or (iii)
the payment for the provision of health care to an Individual,
limited to the information created or received by Business
Associate from or on behalf of John Hancock.
2. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE
Except as otherwise limited in this Addendum, Business Associate may
use or disclose Protected Health Information to perform functions, activities,
or services for, or on behalf of John Hancock as specified in the Underlying
Agreement, provided that such use or disclosure would not violate the Privacy
Rule if performed by John Hancock.
3. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE
(a) Business Associate agrees to not use or further disclose
Protected Health Information other than as permitted or
required by this Addendum or as required by law.
(b) Business Associate agrees to use appropriate safeguards to
prevent use or disclosure of the Protected Health Information
other than as provided for by this Addendum
(c) Business Associate agrees to mitigate, to the extent
practicable, any harmful effect that is known to Business
Associate of a use or disclosure of Protected Health
Information by Business Associate in violation of the
requirements of this Addendum.
(d) Business Associate agrees to report to John Hancock any use or
disclosure of the Protected Health Information not provided
for by this Addendum.
(e) Business Associate shall require its agent, including
subcontractors, to whom it provides Protected Health
Information to comply with the same restrictions and
conditions that apply to Business Associate under this
Addendum.
(f) At John Hancock's request, Business Associate agrees to
provide access to Protected Health information to John Hancock
or, as directed by John Hancock, to an Individual in order to
satisfy John Hancock's obligation to provide Individuals with
a right of access to their Protected Health Information.
(g) At John Hancock's request, Business Associate agrees to make
an amendment to Protected Health Information in its
possession.
(h) Business Associate agrees to make its internal practices,
books, and records relating to the use and disclosure of
Protected Health Information available to John Hancock or, at
John Hancock's request, to the United States Secretary of
Health and Human Services, for purposes of the Secretary
determining John Hancock's compliance with the Privacy Rule.
(i) Business Associate agrees to document its disclosures of
Protected Health Information and, at John Hancock's request,
to provide Information related to such disclosures to John
Hancock for purposes of responding to a request by an
Individual for an accounting of disclosures of Protected
Health Information.
4 OBLIGATIONS OF JOHN HANCOCK
(a) John Hancock shall provide Business Associate with any changes
in, or revocation of, permission by an Individual to John
Hancock to use or disclose Protected Health Information, if
such changes affect Business Associate's permitted or required
uses and disclosures.
(b) John Hancock shall notify Business Associate of any
restriction to the use or disclosure of Protected Health
Information that John Hancock has agreed to in accordance with
the Privacy Rule.
5. PERMISSIBLE REQUEST BY JOHN HANCOCK
John Hancock shall not request Business Associate to use or disclose
Protected Health Information in any manner that would not be permissible under
the Privacy Rule if done by John Hancock except for use or disclosure for data
aggregation or management and administrative activities if permitted by the
Underlying Agreement.
6. TERM AND TERMINATION
(a) Term. The Term of this Addendum shall be commence as of the
Effective Date, and shall terminate when all of the Protected
Health Information is destroyed or returned to John Hancock,
or, if it is infeasible to return or destroy Protected Health
Information, protections are extended to such information, in
accordance with Section 6(c) of this Addendum.
(b) Effect of Termination of Underlying Agreement. Termination of
the Underlying Agreement shall not terminate this Addendum
unless and until the termination provisions of Section 6(a)
above have been satisfied.
(c) Effect of Termination.
(1) Except as provided in paragraph (2) of this section
6(c), upon termination of the Underlying Agreement,
Business Associate shall return or destroy all
Protected Health Information received from John
Hancock, or created or received by Business Associate
on behalf of John Hancock. This provision shall also
apply to Protected Health Information that is in the
possession of subcontractors or agents of Business
Associate. Business Associate shall retain no copies
of the Protected Health Information.
(2) In the event that Business Associate determines that
returning or destroying the Protected Health
Information is infeasible, Business Associate shall
provide to John Hancock notification of the
conditions that make return or destruction
infeasible. Upon mutual agreement of the Parties that
return or destruction of Protected Health Information
is infeasible, Business Associate shall extend the
protections of this Addendum to such Protected Health
Information and limit further uses and disclosures of
such Protected Health Information to those purposes
that make the return or destruction infeasible, for
so long as Business Associate maintains such
Protected Health Information.
7. BREACH
Any breach of this Addendum by Business Associate shall constitute a
valid basis for immediate termination of the Underlying Agreement by John
Hancock, notwithstanding any contrary provision in the Underlying Agreement. In
addition, Business Associate shall indemnify and hold harmless John Hancock from
any liability for damages, fines, costs, expenses and attorneys' fees, that
results or arises from Business Associate's use or disclosure of Protected
Health Information other than as authorized by this Addendum.
8. MISCELLANEOUS
(a) Amendment. The Parties agree to take such action as is
necessary to amend this Addendum from time to time as is
necessary for John Hancock to comply with the requirements of
the Privacy Rule and the Health Insurance Portability and
Accountability Act, Public Law 104-191.
(b) Additional Obligations. The obligations set forth in this
Addendum are in addition to, and are not intended to replace,
any confidentiality obligations set forth in the Underlying
Agreement.
(c) Interpretation. Any ambiguity in this Addendum shall be
resolved in favor of a meaning that permits John Hancock to
comply with the Privacy Rule.
Except as otherwise provided for herein the reruns and conditions of the
Underlying Agreement remain in full force in effect.
John Hancock Life Insurance Company Bridgeline Software, Inc.
("John Hancock") ("Business Associate")
By: /S/ SUSAN P. YARDLEY By: /S/ GARY M. CEBULA
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Susan P. Yardley (Print) GARY M. CEBULA (Print)
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AVP (Title) CFO (Title)
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3/28/2005 (Date) 3/10/05 (Date)
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