HomeMy WebLinkAboutCircle H Software; 2006-12-12;TERMS AND CONDITIONS AGREEMENT
This Agreement (the "Agreement") is entered into as of this 12th day of December 2006
(the "Effective Date"), by and between Circle H Software, a California corporation, with an
address of 14500 Surrey Place, Pine Grove, California ("Licensor"') and Carlsbad Fire
Department with an address of 2560 Orion Way, Carlsbad, CA 92010 ("Licensee"), with
reference to the following facts and circumstances:
NOW THEREFORE, in consideration of the mutual promises contained herein, the
parties agree as follows:
I. GRANT OF LICENSE
Licensor hereby grants to Licensee, in consideration of the payments described in Section VI.
below and other performance under this Agreement, a nonexclusive, revocable license, without
right of sublicense, to use the Software in Carlsbad Fire Department, California, for a period of 1
year(s), with rights of renewal included in the annual support charges, solely on the Licensee's
pre-hospital and fire department system and subject to the terms and conditions of this
Agreement.
II. SOFTWARE SYSTEM; SUPPORT SERVICES
To facilitate Licensee's use of the Software under the license granted herein, Licensor shall
provide Licensee with a system comprising a copy of the Software and equipment required to
operate the Software, which system is described in Exhibit A, attached hereto and incorporated
herein (the "Software System"). Licensor also shall provide Licensee with the technical support
services described in Exhibit B (SOW document section 11, Support Policy), attached hereto and
incorporated herein (the "Support Services").
III. OWNERSHIP
Licensee acknowledges and agrees that Licensor retains ownership of the Software, its
underlying concepts, code, designs and ideas, all applicable copyrights, trade secrets, patents and
other intellectual and proprietary rights embodied in the Software and its related documentation,
materials, manuals and forms (hereinafter referred to collectively as the "Proprietary Materials")
and that Licensee's rights are limited to those expressly granted herein. Furthermore, Licensee
acknowledges and agrees that it may not develop competing or derivative products utilizing the
Proprietary Materials without Licensor's written consent. Such prohibition does not preclude
Licensee from modifying any Software to make it compatible with (i.e., "porting" it to) computer
equipment or operating systems other than those for which such software was originally
designed.
IV. SCOPE OF RIGHTS
Licensor acknowledges and agrees that the ownership rights it is retaining to the Proprietary
Materials are limited by the license granted to Licensee.
V. CONFIDENTIALITY
A. Licensee acknowledges and agrees that the Proprietary Materials and all copies thereof
and all ideas, concepts, methods, know-how, structures, techniques, inventions, developments,
discoveries and proprietary data or programs embodied therein that may be disclosed to Licensee
and other information identified in writing as proprietary by Licensor constitute valuable
confidential and trade secret or proprietary information (collectively, the "Confidential
Information"). Licensee agrees to use best efforts not to allow the Confidential Information to be
used, disclosed or reproduced except as permitted under this Agreement except that such
disclosure shall be permitted to an employee of Licensee requiring access to the Proprietary
Information in the course of his or her employment, subject to Licensee obtaining the employee's
agreement to abide by the provisions of this Section V.
B. Nothing in this Section V shall restrict Licensee regarding Confidential Information
that (i) Licensee rightfully possessed before it received such information from Licensor; (ii)
subsequently becomes publicly available through no fault of Licensee; (iii) Licensee develops
independently; or (iv) is subsequently furnished rightfully to Licensee by a third party without
restrictions on use or disclosure.
VI. CONSIDERATION
A. Licensee shall pay Licensor $10,000 for training, handheld customization and web
based server set up and then $5,000 per transporting unit for a designated 3 transporting units
upon completion of the project as defined in the Statement of Work item 3 Project Completeness.
Fifty percent (90%) will be due thirty days after the signing of the agreement. The remaining
10% will be due 30 days after system implementation.
B. Licensor, if requested, can also provide six (6) pre-loaded ipaq hx 4700 handhelds
with screen protectors, magnesium cases, SD cards for backup of completed calls at $750 a piece
for a total hardware cost of $4,500.
C. In addition to the payment described in Section VI.A.above. Licensee shall pay a
(20%) maintenance fee for technical support, and web server repository services as
mentioned in the statement of work (SOW). Initially this shall be $5,000 of the initial
$25,000 cost for the $10,000 licensing fee and three transporting units at $5,000
each. Each additional transporting unit will have an additional $5,000 fee added
with 20% maintenance fee per year. If transporting units are deleted, said reductions
will be reflected in the yearly maintenance. Maintenance fees are to be free for the
first year. Maintenance fees will be due on an annual basis. Maintenance fees are
due within 30 days of invoice.
D. This contract will automatically renew annually unless either party gives written
thirty-day (30) advance notice of intended non-renewal
E. Carlsbad Fire will own all data collected that is held in either the PDA's, third party
billing entity or Circle H Software's owned or leased data storage system. No data
may be released to any firm, organization, person or other similar entity without the
express written authorization of Carlsbad Fire Department.
F. The Licensor, his/her employees, heirs, assigns, sub-contractors(s) or other business
associates shall agree to be bound by the current HIPAA (standard and electronic)
rules, regulations and guidelines in the transactions incurred with the District.
Licensor shall execute a standard business agreement with Carlsbad Fire Department
within 30 days of executing this contract.
G. BLS Data Collection Module: Licensor agrees to produce an integrated BLS Data
Collection Module. Said module will be used exclusively for the intake of data,
demographics, coding and descriptors that maximize revenue from Medicare and
Medical, Senior HMO and standard insurance carriers.
H. Peer Review QA Program: Licensor shall assist in developing a peer-driven
Quality Assurance Program that can be accessed off the data server by EMT field
personnel on a daily basis. Said audit program parameters shall include, but not be
limited to: Trauma, Chest Pain, Altered LOG, Respiratory Emergency and a General
Audit. Said data fields have been supplied by Carlsbad Fire Department to the
Licensor for inclusion into Peer Review Process. From time-to-time, the Licensor, in
consultation with Carlsbad Fire Department program manager(s) shall modify these
data fields.
I. Wittman Billing Interface: Licensor shall within 60 days of request by Licensee,
complete the necessary interface to seamlessly pass data from field retrieval devices
through the Licensor's data intake/storage system to Sanitas billing system used by
Wittman Billing.
J. Paperless Data Storage: Licensor agrees to store the data that is received into its
data repository for a period of one (1) year. Said stored data shall be sent to Carlsbad
Fire Department on an annual basis for each fiscal year. Data shall be sent no later
than ten (10) days at the close of each fiscal year.
K. Exportable Supply Data: Licensor will provide Carlsbad Fire Department with an
interface where they can provide export supply data during a desired date range in a
format that can be imported into an Access or Excel database
L. Forms The Licensor agrees to have the ability to display any forms for digital
signature that Carlsbad Fire Department requires including internal forms that are
approved by the County, Wittman Billing and Carlsbad Fire Department: AMA, First
Responder, Pre-authorization for treatment/transport, HIPAA Privacy Notice in
English and Spanish if requested. The content and accuracy of these forms are the
responsibility of Carlsbad Fire Department. The Licensor requires that these forms
are sent in an electronic format to be directly cut and pasted into the system.
Carlsbad Fire Department is responsible for checking the final accuracy of the
process
M. Back up of Completed calls FieldSaver will provide a SD data chip that will be
used as a back up of all completed calls by Carlsbad Fire Department personnel. All
data for each PDA shall be stored on these SD chips. Only non-completed data will
be lost if the unit is damaged or broken. This feature will demand that all handhelds
have similar Operating systems and file structure.
N. Web-X Demo: FieldSaver shall provide an on-line tutorial, Power Point, or other
such field training modules for Carlsbad Fire Department to use.
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O. Training: The Licensor will provide two train the trainer sessions at an agreed upon
time by both parties.
VII. INDEMNIFICATION
The Licensor at its own expense shall defend any action brought against the Licensee party based
on a claim that any action or omission by the indemnifying party infringed a patent, copyright,
trade secret or other proprietary right of any other person or entity. The indemnifying party shall
pay all resulting damages and reasonable attorneys' fees.
A. Each party shall carry insurance to cover activities under this agreement in limits of
not less than One Million dollars ($1,000,000) per incident and Three Million dollars
($3,000,000) combined. Each party shall name the other as additional insured under
said policy.
IX. LIMITATION OF LIABILITY
A. Licensor's liability for any claim, regardless of the form of the cause of action,
whether in contract or tort, including negligence, shall not exceed an amount equal to the total
payments payable by Licensee during the twelve (12) months preceding the resolution of the
claim. LICENSOR SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO
LICENSEE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR
SPECIAL DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
B. Licensee's liability for any claim, regardless of the form of the cause of action,
whether in contract or tort, including negligence, shall not exceed the amount equal to the total
payments payable by Licensee during the twelve (12) months preceding the claim. Licensee shall
not under any circumstances be liable to Licensor for consequential, exemplary, incidental,
indirect or special damages even if Licensee has been advised of the possibility of such damages.
X. BANKRUPTCY
In the event Licensor files a petition for protection under the Bankruptcy Code of
the United States, or an involuntary petition in bankruptcy is filed against Licensor and is not
dismissed within sixty (60) days thereafter (collectively "Bankruptcy Events"), Licensor and
Licensee acknowledge and agree that this Agreement is an executory contract within the meaning
of 11 U.S.C. 365(n) and Licensee shall have the right to obtain the source code for the Software
System then in use by Licensee under this Agreement from Licensor or the Bankruptcy Trustee.
After Licensee has received the source code due to a Bankruptcy Event, Licensee's rights shall
not exceed the scope of rights granted in Sections I, III, and X herein, except that Licensee with a
current technical support agreement may use the source code to create derivative works solely for
use on the Licensee's pre-hospital Emergency Medical Services. Except for such use, Licensee
shall not reproduce, distribute, or create derivative works of the Software System. Licensee
acknowledges and agrees that receipt of the source code after a Bankruptcy Event does not
convey ownership of the source code or Software System to Licensee.
XI. GENERAL
A. Force Majeure: Neither party shall be responsible for delays or failure to perform
under this Agreement due to causes beyond the reasonable control and without fault or
negligence of such party.
B. Notices: All notices and requests required under this Agreement shall be given or
made upon the respective parties in writing and shall be deemed as given as of the day it is
deposited in the U.S. mails, postage pre-paid, certified or registered, return receipt requested, and
addressed as follows:
To Licensor:
Circle H Software
14500 Surrey Place
Pine Grove, California 95665
To Licensee:
Carlsbad Fire Department
2560 Orion Way
Carlsbad, California. 92010
C. Successors and Assigns: Licensor may assign its rights, subject to the limitations set
forth in Section IV. above, to any person or entity that agrees in writing to be bound by this
Agreement after advanced written notice to the licensee. Licensee shall not assign its rights to
any person or entity without the advance written consent of Licensor which shall not be
unreasonably withheld. Licensor and Licensee each binds itself and its successors,
representatives, and permitted assigns to the other party to this Agreement and to the successors,
representatives and permitted assigns of such other party, in respect to all covenants of this
Agreement. Nothing herein shall be construed as creating any personal liability on the part of
any officer, employee or agent of either party hereto, nor shall be construed as giving any rights
or benefits to anyone other than Licensor and Licensee.
D. Captions: The captions used herein are for the convenience of the parties, and shall not
be considered in interpreting the Agreement.
E. Partial Invalidity: If anything in this Agreement shall be found to be illegal or
unenforceable then, notwithstanding such finding, this Agreement shall remain in full force and
effect and any illegal or unenforceable term or provision shall be deemed stricken or shall be
replaced with a legal and enforceable one approximating the same intent.
F. All Amendments in Writing: No amendment to this Agreement shall be effective
unless it is in writing and signed by duly authorized representatives of both parties.
G. Mediation of Disputes Related to this Agreement. In the event any disputes arise
between the parties regarding the subject matter of this Agreement, the parties agree that such
disputes shall be resolved through mediation as provided in this paragraph. Any party may
initiate mediation of a dispute related to this Agreement by sending, via Certified Mail, return
receipt requested, written notice of the dispute to the other party or parties, which notice shall
identify the subject matter of and factual basis for the dispute and state the party's election to
proceed with mediation of the dispute. Within twenty (20) days of the date of mailing of the
Notice of Dispute, the parties shall meet and confer and agree upon a mediator or arbitrator.
Meetings and hearings of the mediator or arbitrator shall take place in the Community of
Carlsbad California, or in such other place as the parties shall agree upon in writing. All
meetings and hearings will be private unless the parties otherwise agree in writing. Any party
may be represented at any meeting or hearing by legal counsel. The mediation shall proceed in
accordance with the rules of the American Arbitration Association, or such other rules on which
the parties shall agree upon in writing.
H. Counterparts: This Agreement maybe executed in several counterparts, each of which
shall be an original and all of which when taken together will constitute one agreement between
the parties.
I. Governing Law: This Agreement and performance shall be governed by the laws of the
State of California without taking into account its laws or rules relating to conflicts of laws.
J. Attorneys' Fees: If legal action is required to enforce the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees and costs of suit incurred therein.
K. Non-Waiver: The waiver or failure of Licensor or Licensee to exercise in any respect
any right provided for herein shall not be deemed a waiver of any further right.
L. No Joint Venture: No agency, employment, partnership or joint venture relationship is
created between the parties. Neither party is an affiliate of the other and no claims or
representations will be made by either party, which would create an apparent agency,
employment, partnership or joint venture relationship with the other. Neither party has the
authority to act for, create debts or obligations for, or bind the other, nor is either party
responsible for the obligations and debts of the other. The only relationship between the parties is
that of independent contractors.
M. Entire Agreement: This is the complete and exclusive statement of the Agreement
between the parties and supersedes any and all prior or contemporaneous oral or written
agreements, representations, understandings or communications relating to the subject matter of
the Agreement. This Agreement may not be modified or altered except by written instrument
duly executed by both parties.
IN WITNESS WHEREOF, the parties have signed this Agreement the date and year first
written above by their duly authorized representative.
CIRCLE &«OFWARE (LICENSOR)
Drew D. Hood M.D., CEO
North County Fir ction District (LICENSEE)
ivin Crawford, Carlsbad Fire Department Fire Chief
EXHIBIT "A"
Software System
One (1) copy of the most current FieldSaver Software,
One (1) copy of FieldSaver Upload, most current version
Access to FieldSaver Server and Data Repository system
Support Services per Statement of Work Document
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