BACKGROUND

Client is a healthcare organization providing care to its patients.  IMO has developed an enhancement product known as IMO® Problem ÍITÐ which incorporates linkages to and data from the National Library of Medicine’s MeSH database, UMLS and SNOMED® CT. Client and IMO (collectively “The Parties”) desire to enter into a non-exclusive relationship whereby Client will license IMO’s intellectual property, described in Exhibit A, (the "Service") to use as an integral part of Client’s eClinicalWorks’ Electronic Medical Record ("EMR") solution on end-users' computer systems (the "Integrated Service") and make available the Integrated Service to its client end-users ("End-Users"). Client acknowledges that the current implementation level of the Service within the eClinicalWorks EMR solution is limited to the Service ICD maps.

Client has supplied certain registration information through www.e-imo.com (the “IMO ONLINE website”), thereby signifying its intent to be bound by the terms of this Agreement. Client also acknowledges and agrees to be bound by the IMO ONLINE Terms and Conditions of Use and the IMO ONLINE Privacy Policy. In consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1.         DEFINITIONS

            Service- The Service is defined as the IMO® Problem ÍITÐ portal described in Exhibit A to be incorporated into the Integrated Service.

            Integrated Service – The Integrated Service is defined as the eClinicalWorks EMR solution in which the Service is implemented.

            End-User – The End-User is defined as any person authorized by Client to use the Integrated Service.

            Provider – Provider is defined as any applicable End-User authorized by Client under the terms of a "Provider License" as defined by the eClinicalWorks EMR solution.

2.         TERM

The initial three (3) year term ("Initial Term") of this Agreement will commence on the Effective Date and will automatically renew for successive one (1) year periods thereafter ("Renewal Terms"), unless prior written notice not to renew is provided by either party not less than ninety (90) days prior to the end of the then current term.  Payment for the Initial and Renewal Terms shall be made in accordance with the specifications outlined in Schedule I.  Notice to IMO shall be provided at the address shown in Section 14.J.   Notice to Client shall be provided to the most recent registration address supplied by Client through the IMO ONLINE website.  The Initial Term and any Renewal Terms are referred to herein as the "Term."  

3.         LICENSE GRANT

IMO hereby grants to Client a non-exclusive, non-transferable license to use the Service worldwide (except where specifically noted) during the Term of this Agreement in the manner contemplated by this Agreement; provided, Client assumes all responsibility to assure that the Service is appropriate for the systems and uses to which it is put.  This license shall include the right to: (i) copy the Service for use and distribution by Client to End-Users, solely as permitted by this Agreement; (ii) use the Service for internal purposes in a non-clinical setting for backup, archival, support, testing, training and demonstration purposes; (iii) install the Service for Client’s End-Users; (iv) license/sublicense the Service to Client's End-Users; (v) market and demonstrate the Service to End-Users or potential End-Users; and (vi) advise End-Users or potential End-Users to the availability of the Service.

The Service is for use by Client and its End-Users only as contemplated by this Agreement.  Client shall not, other than as specifically contemplated by this Agreement, cause or permit others to copy, duplicate, redistribute, loan, rent, retransmit, publish, license or sublicense or otherwise transfer, or commercially exploit, the Service or the Integrated Service, in whole or part.  Client shall not prepare derivative works or incorporate the Service, in whole or part, in any other system or work or reverse engineer, decompile, disassemble, decrypt, translate, alter, adapt or modify the Service or the Integrated Service, in whole or part, other than as is specifically contemplated by this Agreement.

4.         RESPONSIBILITIES

            Subject to the terms and conditions stated herein, Client will comply with the provisions of this Section 4:

A.      Demonstrate, train, and support the Integrated Service to Client End-Users during the term of this Agreement at its own expense.

B.      If applicable, identify IMO as the source and copyright holder of the Service.  Further, Client agrees not to obscure the IMO copyright notice in any instance.

C.      Receive Regulatory Updates (updates released by an applicable regulatory body) from a third party and apply these Regulatory Updates to its internal databases on or before the date the regulatory code sets become effective (i.e. April 1 and October 1).  Client is responsible for ensuring that the information in its internal databases matches the regulatory code set version of the Service, which IMO automatically updates for each Regulatory Update.

D.      Provide timely payment of all fees as per Schedules I of this Agreement.

E.      Provide End-User documentation for the Integrated Service.

F.       Provide IMO with the total number of Providers of the Integrated Service and any updated contact information as requested by this Agreement on a quarterly basis, either through direct communication with IMO or through the IMO ONLINE website.

G.      Be responsible for all third-party license fees for software necessary to run the Integrated Service except those fees that are provided as part of the Service.

H.      Client will establish the appropriate firewalls and security systems, such that the Service is accessed only by defined End-Users and is not used in an unauthorized manner.

5.         USE OF NAME

            Except for inclusion in IMO’s official customer list, IMO may not use Client’s name, trade names, trademarks, or service-marks in any public announcement, news release, advertising or promotional literature without Client’s express, prior written consent. 

6.         INDEMNIFICATION

Client shall defend, indemnify, and hold IMO and its officers, directors, parent company and agents harmless from any claims, liabilities, obligations, judgments, causes of actions, costs and expenses (including reasonable attorney’s fees) arising out of (i) use of the Service by End-Users, (ii) the performance of this Agreement by Client or any of its agents, employees, or resellers, or (iii) Client's negligence; provided, the foregoing indemnity shall not apply to claims covered under sections 9A, 9B or caused by IMO’s gross negligence. IMO shall provide reasonable notice of any claim to Client and permit Client to control the defense of any claim.

7.         OWNERSHIP AND USE

This Agreement pertains to the license of rights to use the Service, and does not provide for the sale or other transfer of title.  IMO has and shall have exclusive title to and ownership of all of its products, including the Service and of all of its sub-parts and components, and of all updates, modifications, alterations, customizations, derivative works, revisions or enhancements thereof, and of all software, source code, and trade secrets, and proprietary research, equations, screens, techniques, methodology, analysis, programming or know-how thereof. This shall include any modifications, alterations, customizations, derivative works, revisions or enhancements made to the Service by IMO as part of this Agreement. It is anticipated that Client may provide additional requests for terms to be added to the Service. These additions, if approved by IMO for inclusion in the Service, will be considered part of the derivative work and shall be owned by IMO with all rights assigned by Client to IMO. Client shall not be charged for this regular inclusion of term requests. Client will have a perpetual, non-exclusive license to use, display or modify these additional terms without the additional IMO content.

8.             AUDITING

IMO’s independent auditors, reasonably agreeable to Client, will be permitted to review the number of Providers reported by Client at IMO’s expense upon reasonable advance notice to Client during regular business hours, not to exceed one (1) audit per year. If an audit uncovers a discrepancy of more than 10% in favor of IMO, Client shall reimburse IMO for the reasonable costs of the audit.

9.             INTELLECTUAL PROPERTY INDEMNITY, WARRANTY DISCLAIMER AND LIABILITY LIMITATION

 

A.      Intellectual Property Indemnity

           

                        IMO will defend, indemnify and hold Client harmless against third party claims, costs, liabilities, judgments, attorneys’ fees, settlements, and penalties brought against Client to the extent based on an allegation that the use of the Service under this Agreement infringes on a United States patent, trademark or copyright of a third party, if IMO is notified promptly by Client in writing of any such action or allegation of infringement, and if IMO shall have sole control of the defense of any such action and all negotiations for its settlement or compromise (provided that Client will not be liable under any settlement agreement unless Client consents thereto).  IMO shall not have any obligation to Client to the extent the alleged infringement claim is (i) based on information incorporated into the Service by Client or (ii) the result of a modification or addition to the Service made by Client or (iii) based upon the use of the Service in combination with any program or equipment or any part thereof not furnished or approved by IMO. 

 

B.        Technical Warranty

 

IMO represents that it has not included in the Service any disabling devices such as devices that result in the electronic recapture of programming, undocumented functions, passwords, keys, security devices or trap doors, and any computer viruses.  In the event that any computer instruction (including, but not limited to, computer instructions commonly referred to as trojan horses, anomalies, worms, self-destruct mechanisms, or time/logic bombs) is, or is believed to be, embedded in the Service by IMO or at IMO’s direction, IMO agrees to promptly inform Client of such fact or belief, cooperate with Client, and both parties will use their reasonable efforts to remove the instructions and mitigate against its effects.

 

IMO represents and warrants that upon the Effective Date and extending for as long as Client remains continuously on support, the Service will, without material error, perform the functions set forth on Exhibit A when operated in accordance with the documentation and in the environment for which IMO designed the Service to operate. In the event of a breach of this warranty, IMO will repair, replace, or pay for the cost of replacing the failing item of the Service so that it does perform in accordance with such warranty.  This warranty shall not apply if Client or End-Users fail to use the Service according to professional standards.  CLIENT’S RIGHTS UNDER THIS SUBPARAGRAPH CONSTITUTE ITS SOLE AND EXCLUSIVE REMEDY AND IMO’S SOLE AND EXCLUSIVE OBLIGATIONS WITH RESPECT TO ANY BREACH OF THIS WARRANTY.

 

C.        Warranty Disclaimer

 

CLIENT ACKNOWLEDGES THAT EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 9A AND 9B, THE SERVICE IS PROVIDED ON AN "AS IS" BASIS AND IMO MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR NATURE OF THE DATA FROM WHICH THE SERVICE IS COMPILED, THE MERCHANTABILITY AND FITNESS OF THE SERVICE FOR CLIENT’S PARTICULAR PURPOSE, OR THE COMPATIBILITY OF THE SERVICE WITH CLIENT’S HARDWARE AND SYSTEMS.

 

IN ADDITION, WITHOUT LIMITING THE FOREGOING, THE SERVICE HAS BEEN DESIGNED FOR USE IN THE UNITED STATES ONLY AND COVERS DRUG PRODUCTS USED IN PRACTICE IN THE UNITED STATES. IMO PROVIDES NO CLINICAL INFORMATION OR CHECKS FOR DRUGS NOT AVAILABLE FOR SALE IN THE UNITED STATES. CLINICAL PRACTICE PATTERNS OUTSIDE THE UNITED STATES MAY DIFFER SUBSTANTIALLY FROM INFORMATION SUPPLIED BY THE SERVICE. CLIENT ACKNOWLEDGES THAT IMO DOES NOT PROVIDE MEDICAL SERVICES TO PATIENTS AND IS NOT ENGAGED IN THE PRACTICE OF MEDICINE. CLIENT FURTHER ACKNOWLEDGES THAT ANY END-USER'S USE OF THE SOFTWARE DOES NOT ABSOLVE THAT END-USER OF HIS/HER OBLIGATION TO EXERCISE INDEPENDENT MEDICAL JUDGMENT IN RENDERING HEALTH CARE SERVICES TO PATIENTS. CLIENT ACKNOWLEDGES THAT THE PROFESSIONAL DUTY TO THE PATIENT IN PROVIDING HEALTHCARE SERVICES LIES WITH THE END-USER PROVIDING THE SERVICES, NOT WITH IMO.

 

D.        Limitation of Damages

                                   

IN NO CASE SHALL IMO OR CLIENT BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE FORESEEABLE, AND IRRESPECTIVE OF THE THEORY OR CAUSE OF ACTION UPON WHICH THE DAMAGES MIGHT BE BASED. EXCEPT FOR VIOLATIONS OF SECTION 9A OR VIOLATIONS OF CONFIDENTIALITY, EACH PARTY'S MAXIMUM LIABILITY TO THE OTHER SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY CLIENT TO IMO.

10.      FORCE MAJEURE

Except for obligations to pay money, neither Client nor IMO shall have the responsibility for any delay or failure of performance resulting from causes beyond its reasonable control and without its fault or negligence.  In such event, the delayed party shall perform its obligations hereunder within a reasonable time after the cause of the delay or failure has been remedied. 

11.      TERMINATION

 

A.      The Term shall be as set forth in Section 2 herein.  Either party may terminate this Agreement upon written notice to the other in the event the other party breaches this Agreement and fails to cure such breach within thirty (30) days after written notification of such breach by the nonbreaching party. Upon termination of this Agreement for Client breach or failure to renew, Client shall, within ten (10) business days, return to IMO all documents, software and other materials or deliverables (including all copies of manuals and demo products) received from IMO or containing any of IMO’s products or trade secrets, in whole or in part (and all copies thereof).

B.         In the event that IMO becomes bankrupt, winds up, goes into receivership, or has a trustee appointed to dissolve its assets, Client may terminate this Agreement immediately, and is entitled to use the Service for the remainder of the term, in the manner laid out in the Agreement, without additional charge. Client would not be entitled to Updates, and all confidentiality and ownership clauses will survive termination.

 

12.          DISPUTES

 

In the event of any dispute under this Agreement the prevailing party shall be entitled to recover its costs of litigation including its reasonable attorneys’ fees.

13.      CONFIDENTIALITY

 

A.            Each party hereto shall hold, and cause its respective officers, directors, employees, stockholders, parent entities, permitted consultants and advisors (collectively, "Party Representatives") to hold, in strict confidence all written documents and information concerning the other party furnished to it by the other party or its Party Representatives in connection with The Parties' respective duties and obligations contemplated by this Agreement, except to the extent that such information can be shown to have been (i)  in the receiving party's possession or was known by the receiving party prior to its receipt from the party to whom the confidential information relates, (ii) in the public domain through no fault of such party, (iii) later lawfully acquired by the party from a source already in legitimate possession of such information, said source being other than the party to whom it relates, or (iv) independently developed by or for the receiving party without any use of the confidential information of the disclosing party. Neither party shall release or disclose to any other person or entity, or otherwise use, such information except strictly in connection with The Parties' duties and obligations contemplated hereby.  Each party shall notify the other promptly concerning any law or order or other governmental agency having authority to require disclosure of such confidential information, so that the disclosing party can take appropriate action to protect such confidential information. Each party’s obligations under this Section 13 shall survive the termination and/or the full performance of this Agreement.

B.            The fact that either party has entered into agreements, including this Agreement, concerning the use or license of any of its products shall not be deemed to place any confidential information or trade secret of that party in the public domain or to cause the same to be considered to be public knowledge.  The Parties acknowledge that nothing in this Section 13 shall prohibit The Parties from disclosing the Integrated Service, associated End-User documentation and sales and marketing materials to End-Users of the Integrated Service as contemplated by this Agreement.

14.      GENERAL

A.        If any provision of this Agreement shall be deemed by a court of competent jurisdiction to be unenforceable or illegal, then such unenforceable or illegal provision shall be deemed stricken (but only to the extent that, and in the locations where, such prohibition shall be applicable).  The remaining terms and provisions of this Agreement shall remain in full force and effect provided that The Parties agree that the Agreement can continue to be performed in furtherance of The Parties’ objectives. 

B.        This Agreement constitutes the entire agreement of Client and IMO with respect to the subject matter hereof and supersedes and terminates all other prior and contemporaneous agreements and understandings regarding the subject matter hereof, except with respect to obligations that survive the termination hereof.  No provision of this Agreement may be terminated, modified or waived unless such termination, modification or waiver is set forth in a writing executed by authorized representatives of Client and IMO.

C.        This Agreement and the license issued hereunder shall be binding upon and inure to the benefit of The Parties, their respective successors and/or permitted assigns. 

D.        This Agreement shall in all respects be governed by, construed, and interpreted in accordance with the laws of the State of Illinois without regard to its conflict of law principles.

E.        Each party represents and warrants that it is not subject to, and will not assume (i) any obligation inconsistent with its obligations hereunder and (ii) any restriction which is violated by any disclosure of information it makes or receives hereunder.

F.        Each party warrants and affirms that the person signing this Agreement on behalf of that party is duly authorized and empowered by that party to do so, and that such person has the right and the authority to bind that party to this Agreement.

G.            The section headings throughout this Agreement are for convenient reference only, and shall in no way be deemed to limit, modify, or add to the interpretation, construction or meaning or any provision of this Agreement.

H.            In performing their obligations hereunder, The Parties are acting as separate and independent entities and neither party is an agent or employee of the other party.  This Agreement shall not be interpreted so as to cause either party to be responsible to any third party for the acts, omissions or products of the other party.

I.               All notices and communications required or permitted under this Agreement shall be in writing and any communication or delivery hereunder shall be deemed to have been duly made if mailed by registered or certified mail, postage prepaid, sent by nationally recognized overnight delivery, or by telecopy, addressed as follows:

                        If to Client:

___________________________

___________________________

___________________________

Attn:  ______________________

Fax:   ______________________

Phone: _____________________

 

If to IMO, Inc.:

Intelligent Medical Objects, Inc.

60 Revere Drive, Suite 360

Northbrook, IL 60062

Attn.:  CEO

With copy to: Contracts Administrator

Fax:                                (847) 272-7968

Phone:   (847) 272-1242

Either party may, by written notice so delivered to the other, change the address to which delivery shall thereafter be made.

 

J.              Client agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Service, nor any direct product thereof, are (a) exported, directly or indirectly, in violation of Export Laws; or (b) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

 

K.            IMO agrees to maintain insurance throughout the term of this Agreement which is ordinary and reasonable for an organization in the industry.

 

L.             No termination of this Agreement shall in any way affect or impair the powers, obligations, duties, rights, indemnities, liabilities, covenants, warranties, and/or representations of The Parties with respect to times and/or events occurring prior to such termination, including the obligation to make payments that arose prior to the termination date but will not be paid until after the termination date.

 

M.           During the Agreement Term and for a period of one year thereafter, Client will not solicit, i.e., offer to employ, IMO's employees. This provision will not prevent or apply to a general solicitation made by Client in a newspaper, through the Internet, or in other similar media.

 

EXHIBIT A

LICENSED CONTENT – "The Service"

 

IMO® Vocabulary Portal

The IMO® Vocabulary Portal is a web-technology based enhanced terminology service that provides standardized administrative and reference codes based on user search term entry. The portal provides an intelligent front end to the popular IMO® Problem ÍITЙ knowledge database. The portal can be accessed over the Internet or from a local LAN depending on the application and required response time. The portal will provide coding from such standards including, but not limited to, ICD-9-CM, SNOMED® CT and HCPCS.

 

IMO® Problem ÍITЙ

IMO® Problem ÍITЙ is a clinical diagnosis and problem list vocabulary containing specialized terms for clinicians, coders, and patients. Each term in the IMO® Problem ÍITЙ dictionary has a link to the then-effective diagnosis coding system (e.g. in the United States, ICD-9-CM through September 30, 2013 and ICD-10-CM on and after October 1, 2013, as such dates may be officially changed by the U.S. Department for Health and Human Services or such other applicable regulatory body). The 2011 version contains approximately 195,000 terms and concepts, representing more than 17,000 ICD-9-CM codes. IMO® Problem ÍITЙ contains the expressions that clinicians want to use for documenting encounter diagnoses, problem lists, and past medical history. These characteristics represent a significant improvement over other ICD-9 based vocabularies. IMO’s diagnosis and problem terminology also contains maps to SNOMED® CT, MeSH, and the UMLS whenever possible, and is represented in both hierarchical and semantic classifications. The patient friendly terms are designed for use in patient health records to help patients understand their conditions better and participate in their own health care.

 

Licensed Use

 

Client may implement the Service into Client’s eClinicalWorks’ Electronic Medical Record (“EMR”) solution for use by Client’s End-Users. Client acknowledges that the current implementation level of the Service within the eClinicalWorks EMR solution is limited to the Service ICD maps.

 

 

 

SCHEDULE I

 FEES AND PAYMENTS

 

1.             FEES

 

 

A.                  Provider License Fees

 

Client will pay a license fee of $65.00 per Provider per year to IMO for the use of the Service by Client Providers. 

 

Client current Provider count as of the Effective Date of the Agreement will be provided by eClinicalWorks and will be displayed at the time of determining method of payment and/or payment for the Service.

 

B.                  IMO has the option to change the Client fee schedule once annually with ninety (90) days prior written notice to Client.  IMO agrees that any such increase in the Client fee schedule shall not exceed five (5) percent or the CPI whichever is greater.  As used in this paragraph, "CPI" means the Consumer Price Index for All Urban Consumers, U.S. City Average, for All Items as published by the Bureau of Labor Statistics of the Department of Labor. 

 

2.             PAYMENTS

 

 

A.                  Within fifteen (15) days after the end of each calendar quarter, Client will provide IMO with an aggregate number of Providers of the Integrated Service through the IMO ONLINE website or via e-mail to accounting@imo-online.com. IMO will invoice Client the Provider License Fees for each reported Provider, which fees are payable by Client within thirty (30) days.

 

B.                  Any consulting service hours or travel related expenses will be billed monthly and are due upon receipt.

 

C.                  Client will be invoiced for any appropriate sales tax for the State of Illinois unless tax exempt and a tax ID number is provided to IMO.  If Client is required to pay a use tax in a state other than Illinois, Client must accrue and pay this tax according to Client’s state’s requirements.

 

D.                  If payments are overdue by more than thirty (30) days, an interest fee of 1.5% per month (18% annual) will be applied to the invoice.

 

3.             DEFINITIONS OF CONTACTS

 

Client Physician Champion - Client’s Chief Medical Information Officer (CMIO).

Client Primary Clinical Contact - The point person for IMO to contact regarding clinical content matters.  This is often the same person as the physician champion but may be different.

Client Primary Technical Contact - The point person for IMO to contact regarding technical matters for Client’s eClinicalWorks system.

Project Manager – The person responsible for managing newly signed clients through the entire 8-12 week Implementation Process.

Strategic Account Manager (SAM) – The point person for IMO to contact from the moment Client is live with IMO throughout the life of the Agreement.

Vocabulary Maintenance Website Coordinator (VMWC) - The person responsible to send IMO term requests.  IMO will grant access to IMO’s web-based Term Request site where the VMWC can make term requests for new (or ask questions about existing) terms and mappings.  The VMWC can also check on the status of the request in real-time and interact with both the IMO knowledge staff as well as the AHIMA staff whom IMO has partnered with to review and analyze IMO’s maps to ICD-9-CM and ICD-10-CM.