{"id":42172,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/consulting-agreement-healthaxis-inc-and-diamondcluster.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"consulting-agreement-healthaxis-inc-and-diamondcluster","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/consulting-agreement-healthaxis-inc-and-diamondcluster.html","title":{"rendered":"Consulting Agreement &#8211; Healthaxis Inc. and DiamondCluster International North America Inc."},"content":{"rendered":"<pre>               DiamondCluster International North America Inc.\n               Suite 3000 John Hancock Center\n               875 North Michigan Ave. Chicago, IL 60611\n               T 312 255 5000  F 312 255 6000\n               www.DiamondCluster.com\n\n\n               [LOGO] DIAMONDCLUSTER\n\n\n               Mr. Jamie McLane\n               Chairman President &amp; CEO\n               Healthaxis, Inc.\n               5215 N. O'Connor Blvd.\n               Suite 800\n               Irving, TX 75039\n\n               January 3, 2002\n\nBarcelona\n               Dear Jamie,\n\nBoston         Thank you for the opportunity for Diamond Cluster International\n               North America Inc. (\"DCI\") to work with Healthaxis (\"HAXS\") and\n               its senior management team to rapidly identify strategic growth\nChicago        options for the company in preparation for the February 27th\n               board meeting.\n\nDusseldorf     PROJECT SCOPE &amp; APPROACH\n\n               To that end, the goal of the project is to perform an 8 week\nLisboa         rapid strategic assessment of each business unit to determine its\n               long-term growth potential and fit with Healthaxis business\n               objectives (2002 - 2004) and develop action plans to improve\nLondon         near-term operating performance, and move toward achievement of\n               its 3 year goals. To achieve this, the DCI team will focus on the\n               following: (SEE PROJECT OVERVIEW DOCUMENT FOR DETAILS)\nMadrid\n                  1.   ASSESS THE STRATEGIC POSITIONING AND LONG-TERM (36\n                       MONTHS) GROWTH POTENTIAL OF EACH BUSINESS UNIT\nMunchen\n                          a.  Analyze market attractiveness, buyer needs and\n                              competitive assessment\nNew York                  b.  Determine market positioning and value proposition\n                          c.  Determine investment requirements to realize \n                              identified growth options\nParis\n                  2.   DEVELOP STRATEGIC AND TACTICAL IMPERATIVES, I.E., \n                       ROADMAP, TO EXPLOIT IDENTIFIED OPPORTUNITIES\nSan Francisco\n                          a.  Strategic plan and business case development\n                          b.  Near-term action plans\nSao Paulo\n                  3.   IDENTIFY OPPORTUNITIES TO LEVERAGE ALLIANCES, \n                       PARTNERSHIPS AND MERGER OPPORTUNITIES IN AN EFFORT TO \n                       ACHIEVE 3 YEARS OBJECTIVES (DOES NOT INCLUDE DETAILED \n                       ANALYSIS OF OPPORTUNITIES)\n\n                  4.   ASSESS ORGANIZATIONS ABILITY TO EXECUTE \"OUT OF THE BOX\"\n\n                          a.  Identify pivotal jobs and skills analysis\n                          b.  Determine skills gaps and development needs\n\n\n\n\n\nJanuary 3, 2002\nPage 2 of 6\n\n[LOGO] DIAMONDCLUSTER\n\n\n\n\nTIMING AND DELIVERABLES\n\nThe project has been structured and staffed, as outlined in the attached\ndocument, to be completed in approximately 8 weeks starting from January 7th\n2002. The planned deliverables are outlined in the attached document. However, a\ndetailed work plan to include final deliverables that are mutually agreed upon\nwill be provided by the end of the first week.\n\nENGAGEMENT TEAM AND ARRANGEMENT\n\nWe firmly believe that a full-time multi-disciplinary team yields the best\nresults and will draw upon consultants in our strategy, technology and\noperations groups. I will take ultimate responsibility for the quality of our\nwork. John Smith will direct the DCI team day-to-day. The balance of the team\nwill consist of a project manager and two associates. Furthermore, the staffing\nand pricing assumes that HAXS provides dedicated resources to support the\nproject to include the business unit heads and staff, as well as finance support\nfor modeling and business case development.\n\nOur professional fees for this type of effort typically range between $750,000\nand $900,000. However, DiamondCluster will reduce its professional fees to\n$300,000 and reimbursement of actual out-of-pocket expenses incurred during the\nproject. Payment terms of fees will be billed monthly at the beginning of the\nmonth and due upon receipt of invoice.\n\n                                 ***************\n\nJamie, I know I speak for the entire DiamondCluster team when I say we are very\nexcited and committed to building a great relationship with HAXS. I look forward\nto the approval of our proposal, as we are eager and prepared immediately\nkick-off the project on Monday January 7th, 2002.\n\nSincerely yours,\n\n\n\/s\/ Greg Ross\n------------------------------------------------\nGreg Ross,\nVice President\nDiamondCluster International North America, Inc.\n\nAccepted to and agreed upon:\n\nBy:         _________________________\nPrinted:    _________________________\nTitle:      _________________________\nDate:       _________________________\n\n\n\n\n\nJanuary 3, 2002\nPage 3 of 6\n\n[LOGO] DIAMONDCLUSTER\n\n\n               APPENDIX -- DCI'S TERMS AND CONDITIONS OF SERVICES\n\nCONFIDENTIALITY\n---------------\n\nDCI acknowledges that during the Project it may learn and use certain of\nClient's confidential information and thus will use reasonable efforts to\nprevent third parties from learning about such information. Likewise, Client\nwill use reasonable efforts to prevent third parties from learning about DCI's\nconfidential and proprietary information, which includes without limitation\nDCI's methodology, processes, programs and know-how. These obligations do not\napply to information or materials that: 1) are or become generally known by\nthird parties other than as a result of an act or omission by the receiving\nparty; 2) were already independently known by the receiving party prior to\nreceiving them from the disclosing party; 3) are developed independently by the\nreceiving party; or 4) are required by law or a governmental agency to be\ndisclosed, provided the receiving party promptly notifies the disclosing party\nof such requirement so that the disclosing party can seek to obtain a protective\norder or similar remedy. DCI will act as an independent contractor on the\nProject, and, unless otherwise specifically agreed to by the parties, neither\nDCI nor Client shall act as the agent or joint venturer of the other.\n\nPROPRIETARY RIGHTS\n------------------\n\nExcept for previously developed ideas, concepts, know-how, knowledge,\ntechniques, tools, approaches, and methodologies proprietary to DCI, as well as\nany open source coding or software, which may be reflected in the deliverables,\nClient shall have title to, ownership of, and all proprietary rights in the\ndeliverables provided by DCI in connection with the Project, including all\nwork-in-progress; provided, however, that title to any such proprietary rights\nshall not pass until Client's payment to DCI therefor. At Client's request, DCI\nwill execute such documents as may be necessary to protect Client's rights in\nany work.\n\nNothing contained herein shall be construed as limiting DCI's rights to use or\nmarket in the conduct of DCI's business, without obligation of any kind other\nthan DCI's obligations of confidentiality to Client, any such pre-existing\nmaterials or any general ideas, concepts, know-how, knowledge, techniques,\ntools, approaches and methodologies or other residual values possessed or known\nto DCI or learned or developed during the provision of services. Client agrees\nDCI may retain archival copies of any and all deliverables developed by DCI for\nClient pursuant to the Project.\n\nLIMITATION ON LIABILITY\n-----------------------\n\nDCI warrants that the services described in this proposal will be provided in a\nprofessional manner. Other than this warranty, DCI makes and Client receives no\nexpress or implied warranties, including without limitation any express or\nimplied warranties of \n\n\n\nJanuary 3, 2002\nPage 4 of 6\n\n[LOGO] DIAMONDCLUSTER\n\n\n\nmerchantability or fitness for a particular purpose. Client understands and\nagrees that any liability of DCI regarding the Project shall be limited to the\namount of fees actually received by DCI in connection with the Project, and\nshall not include any special, incidental, consequential or punitive damages,\nany damages based on injury to person or property, or any lost sales or profits.\n\nDISPUTE RESOLUTION\n------------------\n\nDCI and you both agree that any dispute concerning the services that cannot be\nresolved first by DCI's and Client's respective chief executive officers or\nother agreed-upon officers shall be arbitrated in accordance with the commercial\nrules of the American Arbitration Association, and any award shall be final and\nenforceable by a court.\n\nCANCELLATION  \n------------  \n\nEither Client or DCI may terminate this Agreement by giving the other no less\nthan thirty (30) days advance written notice of termination, in which case this\nAgreement shall terminate on the effective date specified in such notice (which\ndate shall not be less than thirty (30) days from the date of notice). Either\nparty may cancel this Agreement immediately, in whole or in part, for material\ndefault, material breach, insolvency, bankruptcy, and inability to pay debts, or\nsimilar financial circumstances by the other. In the event of any such\ntermination, DCI shall invoice the Client for any amounts due and payable for\nservices rendered to Client prior to the effective date of termination and\nClient shall pay such invoice within ten (10) days of Client's receipt thereof.\nUpon payment of such invoice, DCI shall deliver to Client all work completed up\nto the effective date of such termination and neither party shall have any\nfurther obligation or liability to the other.\n\nOFFICE ACCOMODATIONS AND COOPERATION\n------------------------------------\n\nDCI's regular workday is eight hours per day. DCI personnel will generally work\nfour days on-site and one day off-site and will not be required to work on DCI\nholidays. In addition, from time to time, DCI personnel will be required to\nparticipate in firm or region wide training sessions. When DCI personnel perform\nservices at Client's premises, Client will provide reasonable office\naccommodations and services, including without limitation office and storage\nspace, reasonable use of computers, telephone facilities, documentation, and\nother related material and equipment as reasonably requested by DCI. Client\nshall also furnish DCI with all the data and information required by DCI for the\nProject, as well as reasonable access to key personnel.\n\nNON-SOLICITATION\n----------------\n\nDuring the term of this arrangement and for a period of one year thereafter,\nneither party will directly or indirectly solicit for employment, employ,\nconsult with, or otherwise retain \n\n\n\n\nJanuary 3, 2002\nPage 5 of 6\n\n[LOGO] DIAMONDCLUSTER\n\n\n\n\nthe services of any of the employees who are in any manner connected with the\nservices as set forth in this proposal.\n\nUSE OF CLIENT NAME\n------------------\n\nNotwithstanding anything herein (or in any other agreement) to the contrary, DCI\nshall have the right, upon Client's acceptance of the work hereunder, to\nreference Client and the general nature of the work on DCI's web site and in\npresentations to prospects, clients or investors. DCI shall also have the right,\nfrom time to time, to create case studies, presentations, articles, and the like\nrelated to the work (\"Materials\") and, upon Client's review and approval of the\nMaterial's content, to utilize the Materials in public speaking engagements,\npublications, and other similar uses. In no event will DCI utilize the Materials\nor these rights in any way which: 1) misrepresents DCI's contribution; 2)\ndamages or disadvantages Client's competitive position; or 3) violates DCI's\nobligations of confidentiality to Client hereunder or in any other document.\n\nINVOICES\n--------\n\nInvoices for fees will be submitted at the beginning of each month and will be\ndue and payable within ten days. Client agrees to submit payments to DCI for\nsuch invoices via electronic funds transfer to DCI's Account Number 18074324 at\nAmerican National Bank, ABA # 071000770. Expenses (as further described below)\nwill be billed in arrears. For late payments, interest will be charged at the\nrate of two percentage points over the then-current prime rate of interest as\nannounced at Bank One, calculated from the date when payment becomes overdue\nuntil payment is made. Upon 30 days prior written notice, but no more than once\nevery three months, DCI may increase its fee rates for services provided.\n\nEXPENSES, SEAT CHARGE AND TAXES\n-------------------------------\n\nClient will reimburse DCI for all reasonable out-of-pocket expenses incurred by\nDCI in connection with the provision of services, including without limitation\ntravel, living, meals, long-distance telephone, postage and express mail\nexpenses.\n\nIn the event Client uses a DCI Solutions Center to build and\/or launch eBusiness\nsolutions in connection with the Project, a seat charge for space, services,\ntolls and other facilities and support will be invoiced monthly at the rate of\n$3,000 per team member. Clients using such services on a part-time basis will be\ncharged on a pro rata basis. Client and DCI shall mutually agree on the number\nof DCI Solutions Center team members needed for the Project. In addition to\naccess to designated sections of the facilities, the infrastructure components\nof the seat charge also include network access, use of development servers for\nthe creation o a demo\/prototype, developer workstations for 60% of paid seats,\naccess to approximately 100GB of disk space, nightly backup of up to two\ndevelopment servers per project, rack space for holding two development servers,\nsecurity (setup of a single virtual \n\n\n\nJanuary 3, 2002\nPage 6 of 6\n\n[LOGO] DIAMONDCLUSTER\n\n\n\n\nprivate network), printers, fax machine and scanners and help desk access. The\nseat charge also includes use of software components, including project\nmanagement tools, environment management\/source control, testing (both\nfunctional and performance), database access for the creation of a\ndemo\/prototype, and access to experts in various eCommerce applications. The\nseat charge does not cover the following expenses, which expenses will be\ncharged separately: individual reception or administrative assistant, use of\ndevelopment servers or database access after the completion of the prototype,\ndeveloper workstations for greater than 60% of seats, backup of more then two\nservers, more than one virtual private network.\n\nClient will be responsible for any local, state, federal or other taxes or\nassessments that might apply to the provision of services by DCI.\n\nENTIRE AGREEMENT\n----------------\n\nThe foregoing letter and these Terms and Conditions constitute the parties'\nentire agreement with respect to the subject matter contained herein, and\nsupersede all other prior written or oral agreements and undertakings with\nrespect to such subject matter. The scope of this arrangement may be changed\nonly by mutual agreement.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7316,7749],"corporate_contracts_industries":[9510,9505],"corporate_contracts_types":[9613,9620],"class_list":["post-42172","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-diamondcluster-international-inc","corporate_contracts_companies-healthaxis-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-services__management","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42172","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42172"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42172"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42172"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42172"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}