{"id":42771,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/service-agreement-empower-health-corp-and-superior-consultant.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"service-agreement-empower-health-corp-and-superior-consultant","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/service-agreement-empower-health-corp-and-superior-consultant.html","title":{"rendered":"Service Agreement &#8211; Empower Health Corp. and Superior Consultant Inc."},"content":{"rendered":"<pre>\n                               SERVICE AGREEMENT\n\nThis service agreement is entered into this 29th day of April, 1998 between\nEmpower Health Corporation a Texas corporation (\"Empower\") and Superior\nConsultant, Inc., a Michigan corporation, 4000 Town Center Drive, Suite 1100,\nSouthfield, Michigan 48075 as Seller, (\"Superior\")\n\n                                   RECITALS\n                                   --------\n                                        \n     A.  Empower develops and markets an integrated suite of Internet enabled,\nconsumer oriented software applications and services to its clients, including\nconsumers, hospitals, health plans, pharmaceutical companies, and other health\ncare organizations. Such products and services include but are not limited to\nDr. Koop's Personal Medical Record SystemTM (Electronic Medical Record, Medical\nExpense Manager, Personal information Manager, integrated Disease Management\napplets), Dr. Koop's CommunityTM, Internet media to which Empower has legal\nrights, electronic commerce and electronic data interchange services, other\nproprietary software, system training, and advertising and promotional services\n(the \"Empower Software and Related Services\").\n\n     B.  Superior provides management consulting, information technology\nservices and outsourcing services to healthcare constituents, including IDNs,\nhospitals, health plans, employers, physician organizations, software and\nhardware vendors, and other healthcare clients, Such consulting services\ninclude, but are not limited to, information systems planning, information\nsystems audits, systems integration and interfaces, product design, development\nand implementation, management consulting, process refinement and reengineering,\nphysician services, patient accounting and financial management consulting,\nnursing management consulting and reengineering, nursing informatics and total\nquality management (TQM\/CQI) assistance (the \"Superior Services\").\n\n     C.  To attain mutual goals of Empower and Superior, the parties believe it\nwill be beneficial to pursue a business relationship encompassing joint\nmarketing and services, whereby the products and services of both firms will\nultimately benefit the client (the \"Joint Client\"). Accordingly, to serve the\nneeds of clients of Empower and Superior, Empower and Superior agree to work\ntogether with either Empower or Superior clients, in a Subcontract or Co-bid\nSituation, under the terms and conditions as set forth below.\n\nNOW THEREFORE, in consideration of the mutual obligations in this Agreement,\nEmpower and Superior agree as follows:\n\n1.  ROLES AND RELATIONS OF PARTIES\n    ------------------------------\n\n(a)  Superior Services to Empower\n     ----------------------------\n\n     Under the terms of this Agreement, Superior is appointed the exclusive\n     international consulting and information technology services provider to\n     Empower and its subsidiaries and affiliates, throughout the term of this\n     Agreement. These services include, without limitation, strategic planning,\n     reengineering, process improvement, installation, implementation, custom\n     programming, systems integration and related services incidental to\n     Empowers need to design, develop and maintain products and services and to\n     assist in the acquisition and implementation by clients or agents of\n     Empower such software and related services. In connection therewith,\n     Superior will provide its systems consultants,\n\n                                    Page 1\n\n \n     project managers, management consultants and technical personnel to furnish\n     services in accordance with the terms and conditions stated in this\n     Agreement. Except as expressly provided herein, all services shall be\n     provided pursuant to Supplemental Services Agreements (\"SSAs\")  which are\n     agreed to between the parties. It is anticipated that personnel provided by\n     Superior will assist, as specified in a series of SSAs, in the development,\n     installation, implementation and customization, functional and technical-\n     specifications, project planning, feasibility analysis for delivery of\n     function, project monitoring and progress reporting, development of test\n     plans, testing, and other related activities as requested by Empower as\n     developed in project work plans.\n\n(b)  Superior Services to Clients and Customers of Empower\n     -----------------------------------------------------\n\n     Consulting services by Superior contemplated hereunder, may be provided\n     directly to Empower or Superior may, as a subcontractor;, where Empower is\n     the prime contractor, provide such services directly to clients and or\n     customers of Empower. Further, Superior may, through service agreements\n     negotiated and executed directly between Superior and clients and customers\n     of Empower, perform consulting services to such clients and customers of\n     Empower in connection with the installation, implementation or other\n     consulting needs associated with the acquisition of Empower software and\n     related services by such customer.\n\n(c)  Minimum Amount of Services to be Purchased by Empower\n     -----------------------------------------------------\n\n     Empower agrees to purchase herewith from Superior Services resulting in not\n     less than Three Million ($3,000,000) Dollars in recognized revenue to\n     Superior, excluding expenses, within the first twelve (12) months from the\n     date of this Agreement. Superior agrees to provide services to Empower and,\n     if as a subcontractor, to its agents or clients pursuant to SSAs that will\n     be negotiated between Empower and Superior. Revenue recognized by Superior\n     in connection with the performance of services directly for clients of\n     Empower (whether Superior is acting as a subcontractor to Empower or by\n     separate agreement with the client) and where such services are performed\n     in connection with the use, acquisition, or installation and implementation\n     of Empower products by such client, will be credited toward the above\n     stated minimum services requirement. Empower agrees to authorize SSAs\n     hereunder that, together with Superior Services performed under direct\n     agreements with clients in connection with the installation, implementation\n     and\/or support of Empower Products and Services, comprise Three Million\n     ($3,000,000) Dollars in professional fees to Superior, exclusive of\n     reimbursable expenses, in a timely manner so as to permit performance by\n     Superior within the twelve (12) month period following execution of this\n     Agreement. Superior agrees to use commercially reasonable efforts to\n     perform all SSAs in a timely manner, and in any event, Empower shall not in\n     any way be penalized by the failure of Superior to recognize $3 Million\n     Dollars in revenue during the first twelve months of this Agreement to the\n     extent that such failure is a result of Superior's failure to timely\n     perform such services, provided however, that Superior, in the performance\n     of services, shall in no event be required to perform more than 1000 person\n     hours of services in any given week.\n\n(d)  Joint Marketing Activities\n     --------------------------\n\n     The parties shall undertake a joint marketing effort as set forth in this\n     Agreement. Each party agrees to be responsible for its own marketing\n     expenses incurred during marketing activities hereunder, unless other\n     arrangements to in writing between, the parties. Either\n\n                                    Page 2\n\n \n     party may introduce the other party to a client or prospect who may have a\n     desire for the products or services of the party; or furnish the other\n     party information respecting such introduction or business opportunity\n     shall be deemed confidential and introducing party. Each party hereto\n     agrees that the receiving party's use of such information shall be limited\n     to the pursuit and development of business opportunities with such client\n     or prospect and shall not be disclosed to any third party and further, such\n     information shall be subject to the restrictions imposed in Section 6 of\n     this Agreement.\n\n(e)  Independent Contractors\n     -----------------------\n\n     The relationship between Empower and Superior shall be that of independent\n     contractors only. No agency relationship between Empower and Superior. is\n     created by this Agreement. Neither party shall have the right or authority\n     to act on behalf of the other or represent that it has such right or\n     authority. Each party shall be responsible for its own tax obligations\n     arising in connection with the performance of this Agreement.\n\n(f)  Revenue sharing -- Empower Software and Related Services.\n     ---------------------------------------------------------\n\n     Unless otherwise specified in an SSA executed by authorized representatives\n     of both Superior and Empower, Superior will be entitled to one-hundred\n     percent of service related revenues derived from clients for the services\n     it renders and Empower will be entitled to one-hundred percent of Empower\n     software license revenues derived from Clients for its software licenses.\n\n(g)  Revenue sharing -- Other Services.\n     ----------------------------------\n\n     Superior and Empower intend to share revenues derived from other services\n     to be provided, such as electronic commerce transaction related fees,\n     advertising revenues, etc. Recognizing that the precise nature of work and\n     consequently the fee sharing arrangements are difficult to accurately\n     predict, Superior and Empower will specify the fee sharing arrangements\n     either in SSAs or by a written amendment to this Agreement, signed by\n     authorized representatives of both parties.\n\n(h)  Empower Software Development Services\n     -------------------------------------\n\n     To the extent Empower determines it advantageous to utilize contractors or\n     consultants instead of its employees for product strategy and planning,\n     software development, training, or any other related services not otherwise\n     covered by this Agreement, the parties agree that Superior will be\n     exclusive supplier of such services to Empower or its affiliates, unless\n     Superior cannot provide such services, either because of a lack of know how\n     or resources, or Superior refuses to provide such services, or because a\n     client does not want Superior to perform such services. In particular, it\n     is understood that Empower may seek internet content provider services from\n     contractors other than Superior.\n\n2. Term of Service Agreement\n   -------------------------\n\n   (a) The term of this Service Agreement will commence on May 1, 1998 and\n   terminate on May 1, 2003. This Agreement can be extended upon written\n   agreement between Empower and Superior.\n\n                                    Page 3\n\n \n   (b) This Agreement may only be terminated for reason of material breach. In\n   the event of material breach by a party, the other shall provide written\n   notice of such material breach which shall specify in detail the acts or\n   omissions claimed to constitute the breach. The party claimed to be in breach\n   shall then have sixty (60) days within which to cure the claimed breach. In\n   the event such party shall fail, within the sixty (60) day period to cure the\n   breach or to provide a reasonable program to accomplish such cure, the party\n   claiming breach shall thereupon be entitled to payment for all fees and\n   expense reimbursement incurred prior to the effective date of termination.\n\n   (c) Should Empower terminate this Agreement prior to utilizing at least Three\n   Million ($3,000,000) Dollars of Superior Services under this Agreement,\n   Empower hereby agrees to remit to Superior within 30 days of termination, the\n   difference between $3 Million Dollars and the actual revenues recognized by\n   Superior in connection with services provided to Empower, and for Empower\n   clients, as provided in Section J (c), above, pursuant to this Agreement.\n\n3.  SUPPLEMENTAL SERVICE AGREEMENTS\n    -------------------------------\n\nSuperior and Empower shall prepare SSAs to define and authorize various segments\nof work, To the extent of any conflict or inconsistency between the terms and\nconditions of an SSA and the terms and conditions of this Agreement, the terms\nand conditions of the SSA will control. Each SSA shall:\n\n   (a)  Be in writing and signed by both parties.\n\n   (b)  Refer specifically to this Agreement\n\n   (c)  Designate the date as of which the provisions of the SSA will be\n        effective and, if applicable, the term or period of time during which\n        Superior will perform, services, provide resources or otherwise\n        discharge its obligations as specified in the SSA.\n\n   (d)  Describe the assistance to be rendered and\/or the services to be\n        performed, and\/or resources to be provided, and\/or applicable\n        deliverables and\/or obligations to be discharged by Superior pursuant to\n        the SSA.\n\n   (e)  Describe any additional obligations of Empower and Superior related to\n        the SSA, including any facilities, equipment, personnel and tasks or\n        other support to be provided or performed.\n\n   (f)  Specify any other terms and conditions appropriate to the services to be\n        performed and the obligations of the parties.\n\n   (g)  Specify the testing procedures and\/or acceptance criteria to be applied\n        to any deliverable that may be called for under the SSA.\n\n   (h)  The basis and procedure for computation billing and payment of\n        professional fees and expenses (e.g., hourly rate or fixed fee).\n\n                                    Page 4\n\n \n   (i)  SSAs for work performed on an hourly basis should include, in addition\n        to the information described above, the Superior personnel\n        classifications who will render the services, their respective hourly\n        rates, and the starting and closing dates for performance.\n\n   (j)  SSAs for work performed on a fixed-fee basis should include, in addition\n        to the information set forth above, a list of tasks to be completed, a\n        set of milestones specifying the date by which, each portion of the work\n        specified in the SSA will be completed, payment schedule and acceptance\n        criteria.\n\n   (k)  For assignments involving computer program development, a functional\n        specification, an operational narrative and a matrix of conditions to be\n        tested may also be included.\n\nSSAs may be amended by mutual agreement of the parties, in writing and signed by\nboth parties.\n\n4. PROJECT ORGANIZATION\n   --------------------\n\nEach Project shall be organized and staffed by Superior as set forth in the\nmutually agreed upon SSA.\n\nSuperior shall assign an Engagement Manager, who shall be a senior executive or\nmanager of Superior and who, acting on behalf of Superior, shall have\nresponsibility for ensuring that Superior performs its obligations under this\nAgreement and the SSAs.\n\nEmpower shall designate an employee of sufficient management rank as Empower's\nProject Liaison, who shall represent Empower and have responsibility for\nensuring that Empower performs its obligations under this Service Agreement and\nthe SSAs.\n\nThe Engagement Manager and Empower's Project Liaison will hold joint\nresponsibility for planning status meetings and will discuss issues as they\narise. Formal telephone or personal meetings between the Engagement Manager and\nEmpower's Project Liaison will be scheduled as deemed appropriate.\n\nBoth parties recognize that certain SSAs may require periodic adjustments to\neither party's staffing and\/or fees. If such adjustments are necessary, both\nparties will use their best efforts to accommodate such adjustments as they\narise. Any adjustments must be agreed to by both parties.\n\n5. EMPOWER SUPPORT\n   ---------------\n\nEmpower will provide support to Superior as follows:\n\n(a) Empower will provide access to its staff for interviews as reasonably\n    required by any project plan. Empower's data processing department will\n    provide orientation to shop standards, technical support, reasonable\n    training on system and program development software required to provide\n    services, appropriate technical manuals, computer terminals and other\n    support normally associated with computer program development and necessary\n    for performance of services as set forth in this Agreement and associated\n    SSAs. Empower will\n\n                                    Page 5\n\n \n     also provide to Superior, documentation which Empower has-in its possession\n     of procedures, system instruction manuals internal documentation.\n\n(b)  When service is performed at Empower, Empower will provide a reasonable\n     work environment and secretarial assistance to the extent reasonably\n     necessary for Superior's personnel to render service under this Agreement.\n\n(c)  Empower will provide Superior's personnel access to computer facilities\n     reasonably required to provide service under this Agreement on a 24-hour\n     per day, seven day per week basis, with the exception of normal system\n     downtime for system maintenance and file backup. Access may be physical\n     entry to the facility or via telecommunications, as dictated by the needs\n     of the Project.\n\n(d)  Empower's system will provide computer operations and system software\n     staffing reasonably necessary for the work contemplated.\n\n(e)  Empower shall be responsible for protection of electronically stored data\n     in its electronic data processing systems, by means of data backup no less\n     than once each day, security devices and procedures designed to prevent\n     unauthorized access or damage to databases.\n\nWhere Superior performs services hereunder to Empower clients as subcontractor\nto Empower, Empower shall use its best efforts to ensure that Empower client, as\nnecessary and appropriate, provides the above described support to Superior in\nthe performance of its services.\n\n6.   NON-DISCLOSURE\n     --------------\n\n(a)  Superior shall treat as confidential and proprietary and not disclose\n     directly or indirectly to anyone, or use for Superior's personal benefit or\n     the benefit of any client of Superior, except as expressly provided herein,\n     any Proprietary information of Empower except as authorized in writing by\n     an executive officer of Empower. Further, Superior covenants, warrants and\n     agrees that it will not, except as contemplated in the preceding sentence,\n     remove from premises of Empower, its affiliates or the sites of Licensees\n     of Empower, any Proprietary information of Empower, and will not copy in\n     any form, either magnetically or by facsimile, any Proprietary information.\n\n(b)  For purposes hereof, Proprietary Information of Empower shall mean and\n     include all software programs belonging to Empower, its affiliates and\n     Licensors and Licensees, whether in written or on magnetic media, and all\n     design documentation, procedures manuals, program listings, source codes,\n     working papers and other documentation, methodologies reduced to writing\n     and information related to the foregoing that has been reduced to writing.\n     Proprietary Information shall also include personal, financial and\/or\n     medical information regarding Empower's patients and staff.\n\n(c)  Empower agrees that it will, prior to disclosure to Superior, identify each\n     item of Proprietary Information as such, in writing. In the event that any\n     material so identified to Superior is not, in Superior's view, legitimate\n     Proprietary information belonging to Empower, Superior shall so advise\n     Empower and may decline to accept possession of such material.\n\n(d)  From time to time in the performance of Superior Services, Superior may\n     disclose Superior Confidential Information to Empower. Superior will\n     identify all Superior Confidential\n\n                                    Page 6\n\n \n     Information as such in writing at the time of disclosure. Empower shall\n     treat as confidential and proprietary and not disclose directly or\n     indirectly to anyone, or use for Empower's personal benefit or the benefit\n     or the benefit of and client of Empower, except as provided herein, and\n     Superior Confidential Information, except as authorized in writing by an\n     Executive Officer of Superior. Empower shall employ reasonable measures to\n     protect the confidentiality of Superior Confidential Information, such\n     measures being not less than equal to those employed by Empower to protect\n     its own proprietary information.\n\n7. OWNERSHIP\n   ---------\n\n(a)  All work product, documentation, computer programs, source code, or\n     software products (\"Work Products\") that are developed, discovered,\n     conceived or introduced by either party, either independently or in\n     conjunction with personnel of a Joint Client or of each other, in the\n     course of providing services under this Agreement, shall be the property of\n     both parties unless expressly otherwise provided by the terms of the\n     applicable EL, or contract with the Joint Client.\n\n(b). All designs, procedures, methods, and innovations (\"Innovations\") that are\n     developed, discovered, conceived, or introduced by either party, either\n     independently or in conjunction with personnel of a Joint Client or of each\n     other, in the course of providing services under this Agreement, shall be\n     the property of Superior, unless expressly otherwise provided by the terms\n     of the applicable EL, or contract with the Joint Client.\n\nThis Section shall survive termination or expiration of this Agreement. Empower\nshall be responsible for compliance by its Subsidiaries and affiliates, with the\nprovisions of Section 6 and 7 of this Agreement.\n\n8.   PROFESSIONAL FEES\n     -----------------\n\nProfessional fees for some SSAs will be paid on an hourly rate basis, and for\nother SSAs will be paid at predetermined fixed fees for such assignments, all as\nset forth in each SSA.\n\n8.1  HOURLY RATE FEES\n     ----------------\n\nWork that requires investigation, research and analysis may be paid on an hourly\nrate basis, as provided in an SSA. Examples include specification work, project\ncoordination, project  management, analysis and estimation of software\ndevelopment tasks and some design work.\n\nHourly rate fees will be computed based upon actual time devoted to servicing\nEmpower, including travel time. Travel time is measured from the time Superior's\npersonnel leave Superior's office or their home until arrival at the work site\nor hotel, and vice versa.\n\nRates for hourly professional fees will adhere to the schedule below during the\nfirst twelve months of this Agreement. Rates thereafter may be adjusted subject\nto a maximum 10% annual increase, or the annual rise in the national consumer\nprice index, whichever is greater.\n\n                                    Page 7\n\n \n                  FEE SCHEDULE FOR HOURLY RATES BASIS PAYMENTS\n                  --------------------------------------------\n\n\n \n     Work or Personnel Classification                Hourly Rate Fees\n                                                  \n     Advisory Board Members                           $450\n \n     Corporate Officers and Senior Group Directors    $375\n \n     Executive Management Consultant                  $325\n \n     Engagement Manager                               $190 \/ $325\n     Y2K Engagement Manager                           $230\n \n     Project Manager                                  $185 \/ $275\n     Y2K Project Management                           $200\n \n     Senior Management Consultant                     $185 \/ $275\n\n     Management Consultant                            $175 \/ $195\n\n     Senior Technical Advisor                         $160\n\n     Technical Advisor                                $145\n\n     Senior Systems Consultant                        $145\n\n     Systems Consultant                               $130\n\n     Management Analyst                               $125\n\n\nEach biweekly billing for hourly rate assignments shall include a list of each\nhourly rate SSA worked on and, for each such SSA, a list of the personnel\nperforming services, the job classifications and hourly rate charged for each.\n\nSuperior shall maintain time records for all Superior personnel assigned to the\nProject which shall indicate the name of the individual, job title, date, number\nof hours worked, and the task worked on. Such records shall be made available to\nEmpower upon Empower's request.\n\n8.2  FIXED-FEE ASSIGNMENTS\n     ---------------------\n\nTechnically-oriented work for which a specific result can be defined may be paid\non predetermined fixed-fee basis as set forth in each SSA. Examples include\ncoding and testing of computer programs.\n\n9.   REIMBURSABLE EXPENSES\n     ---------------------\n\nIn addition to, and distinct from, professional fees as described above, Empower\nwill also reimburse Superior for all reasonable travel and Project expenses\naccording to the guidelines set forth below.\n\n                                    Page 8\n\n \n  (a)       Travel by personal automobile, reimbursable at a rate no greater\n            than the allowable mileage, deduction as specified by the IRS.\n\n  (b)       Travel by commercial carrier.\n\n  (c)       Hotel\/motel accommodations.\n\n  (d)       Automobile rental and fuel expense, or use of Empower vehicles in\n            lieu of reimbursement.\n\n  (e)       Miscellaneous required travel expense such as parking, taxis, etc.\n\n  (f)       Telephone charges, Cog., remote program development work, phone\n            conferences, fax transmissions, etc.\n\n  (g)       Copying, postage and shipping.\n\n  (h)       Meals (or $___ per day meal allowance for each full day in Empower's\n            Metropolitan area. $___ for arrival and departure days).\n\n  (i)       All other expenses incurred by Superior and\/or Superior's personnel\n            solely and directly as a result of performing services for Empower\n            under this Agreement.\n\n  (j)       Administrative time and materials.\n\n  Items (b), (c), (d), (e), (f), (g), (h) and (i)are reimbursable on an\n  \"incurred cost\" basis.\n\nSuperior will use its best efforts to ensure that costs are reasonably\nconsistent with industry custom for consulting personnel, e.g., coach rate for\ncommercial carriers when available, standard size rental automobile when\navailable, etc.\n\n10.  INVOICING AND PAYMENT SCHEDULE\n     ------------------------------\n\nInvoices for hourly fee assignments will be rendered biweekly for services\nrendered in each biweekly period. Billing periods begin on Sundays and end on\nthe second Saturday following.\n\nInvoices for fixed fee assignments will be rendered in accordance with the terms\nof this Agreement and the payment and milestone schedule set forth in the\napplicable SSA. No more than 90% of the fixed fee will be invoiced prior to\nacceptance of the assignment by Empower, with an invoice for the remaining\nportion rendered when the assignment is accepted by Empower.\n\nIn the event that, after execution of an SSA and prior to commencement of work\nby Superior on the assignment, Empower decides, for any reason, not to proceed\nwith the assignment then Superior shall credit Empower with any amounts received\nby Superior in connection with that SSA.\n\nInvoices for reimbursable expenses will be rendered biweekly for expenses\nincurred in each biweekly period. Billing periods begin on Sundays and end on\nthe second Saturday following.\n\n                                    Page 9\n\n \nInvoices for hourly compensation for terminated fixed fee SSAs will be rendered\nwithin two (2) weeks following termination, and will include documentation.\n\nPayment is due in full upon rendering of invoice. If payment is not received by\nSuperior within thirty (30) days after payment is due, interest on the amount\nowing will accrue at the rate of 1-12% per month, or the maximum interest rate\nallowed by law, whichever is less, until the-amount owing is paid in full. In\nthe event that collection efforts are required, Empower agrees to pay Superior\nthe reasonable cost and expenses of collection, including attorneys' fees.\n\n11.   ACCEPTANCE TESTING\n      ------------------\n\n11.1  This section applies to Fixed-fee assignments. Superior will notify\nEmpower when an assignment is complete. Empower will then have a number of days,\nspecified in the SSA, to perform acceptance testing and either accept the\nassignment as complete or describe in good faith to Superior the reasons for\nrejection. In the event the assignment fails acceptance testing as defined in\nthe SSA, Superior shall thereafter have a number of days, specified in the SSA,\nwithin which to modify, correct or replace the assignment. Superior shall then\nresubmit the assignment to Empower for further acceptance testing (for a number\nof days specified in the SSA). Assignments will be deemed to have passed the\nacceptance test if, (a) Empower signs off on the SSA assignment as accepted, or\n(b) by the end of the acceptance period Empower has not met its testing\nobligations, or (c) if Empower, at any time, places the assignment function into\nproduction.\n\n11.2  Following written notification by Superior that an assignment is complete\nand ready for acceptance testing, Empower shall, within the schedule provided in\nthe SSA, fully complete all acceptance tests set forth in SSA. Upon completion\nof acceptance testing, Empower shall notify Superior, in writing, that (1) the\nassignment has passed acceptance testing, or (2) identify all areas in which\nEmpower claims the assignment has failed acceptance testing. Further, as to each\ntesting step or criterion identified in each SSA, Empower shall state that (1)\nthe assignment has passed, or (2) it has failed, or (3) it could not be tested\ndue to the failure of a dependent component, in instances where Empower has\nnotified Superior of failures in acceptance testing, and Superior agrees that\nthe assignment has failed acceptance testing, Superior shall use its best\nefforts to remedy all deficiencies identified by Empower and shall continue to\ndo so until the assignment passes Acceptance Testing. in instances where Empower\nhas notified Superior of failures in acceptance testing, but Superior does not\nagree that acceptance tests have been failed, then Superior shall not be\nobligated to continue working on the assignment.\n\n12.   SUPERIOR'S PERSONNEL\n      --------------------\n\nIt is expressly understood that personnel provided by Superior for the purpose\nof performing services under this Agreement are the employees or subcontractors\nof Superior, and under no circumstances will be considered employees of Empower.\nSuperior will be responsible for any and all applicable payroll and employment\ntaxes and employee insurance, and Empower will have no liability therefore.\n\nUpon the request of Empower and for good cause, Superior shall immediately\nremove from the project any Superior personnel. Superior shall thereafter have a\nreasonable time to replace such person so removed.\n\n                                    Page 10\n\n \nServices performed under (the terms of this Agreement will be performed at\nEmpower's offices, Superiors offices or at other locations\n\n13. BILATERAL NO-HIRE AGREEMENT\n    ---------------------------\n\nWithout the written consent of the other party, Empower and Superior each agree\nto refrain from conducting employment discussions with the other party's\nemployees, agents and subcontractors from the time an agent, employee or\nsubcontractor is introduced, until twelve (12) months after the date the agent,\nemployee or subcontractor of the other party was last involved n any activity\nrelated to this Agreement.\n\nShould either party wish to engage in employment discussions with an agent,\nemployee or subcontractor of the other party, prior written approval must be\nobtained from the other party's employees the event that these employment\ndiscussions result in the hiring or retention of services of an agent, employee\nor subcontractor of a party to this Agreement by the other party, either\ndirectly or through a third party, the party hiring or retaining the other's\nagent, employee or subcontractor will pay a fee to the other party, in\nconsideration for the other party's expense in replacing its personnel, as well\nas for lost revenue opportunities. In the event either party hires or retains\nthe services of an agent, employee or subcontractor of the other party, the fee\nto be paid will be one third (1i3) the amount of the annual salary of the\nindividual hired, due and payable on the first day of employment or of\nperforming services.\n\n14. LIMITATION OF LIABILITY\n    -----------------------\n\n(a)  ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PROVIDED WITHOUT WARRANTY,\n     AND THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR\n     PURPOSE. IN THE EVENT OF SUPERIOR'S MATERIAL BREACH OF THIS SERVICE\n     AGREEMENT, EMPOWER MAY CANCEL THE AGREEMENT WHICH SHALL BE EMPOWER'S SOLE\n     AND EXCLUSIVE REMEDY. SUPERIOR WILL NOT BE LIABLE FOR ANY GENERAL, SPECIAL,\n     INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR LOSS, DAMAGE OR EXPENSE INCLUDING\n     BUT NOT LIMITED TO LOST PROFITS OR GOODWILL, AND COSTS OF RECOVERING,\n     REPROGRAMMING OR REPRODUCING ANY PROGRAM OR DATA.\n\n(b)  Superior shall not be liable for any loss, claims or damages arising out of\n     the failure or degraded performance of any hardware, software or computer,\n     or other system, or microprocessor, on or about January 1, 2000, or at any\n     other time, in connection with any so called Year 2000 problem. In no event\n     shall Superior be liable for any loss, claims or damages of any nature,\n     whether arising out of claimed breach of contract, tort, strict liability,\n     breach of warranty or any other cause of. action or theory of recovery\n     whatsoever, for any amounts in excess of $200,000.\n\n15. INDEMNIFICATION\n    ---------------\n\n(a)  Superior and Empower shall each indemnify, defend and hold harmless the\n     other from and against any third party claims for loss, damage, expense\n     (Including attorneys fees) liability and claims for death or personal\n     injury or physical damage to property caused by the negligent acts or\n     omissions of the other party, its employees, agents or subcontractors.\n\n                                    Page 11\n\n \n     provided however that any loss or destruction of electronically or\n     magnetically stored information shall not be deemed an injury to any person\n     or physical damage property.\n\n(b)  No portion of any software written and developed by Superior and delivered\n     infringe upon any patent, copyright, trade secret or other proprietary\n     right of a third-party, and Superior agrees to indemnify, defend and hold\n     Empower harmless from and against any third party liabilities, suits,\n     causes'-of action, claims or expense (including attorneys' fees) arising\n     from any breach or claimed breach of this warranty.\n\n     In the event that any order of a Court of competent jurisdiction shall\n     prevent Empower from using all or any part of such software, Superior, at\n     Superior's sole option, shall either (a) obtain for Empower, at Superior's\n     expense, the right for Empower to continue using all of such software,\n     including the alleged infringing portion, or (b) replace such infringing\n     portion of such software with a non-infringing portion or modify such\n     software to make it non-infringing, provided that after such replacement or\n     modification by Superior such software continues to perform its specified\n     functions, or (c) refund to Empower all amounts paid under the SSA pursuant\n     to which such software was supplied and under all other SSAs the use of\n     which are adversely affected by Empower's inability to use such software.\n\n(c)  Each party shall promptly, and in writing, notify the other party of any\n     such claim made against it by any third party, and shall take action as may\n     be necessary to avoid default or other adverse consequences until such time\n     as the other party has a reasonable opportunity to assume the defense of\n     the claim.\n\n     In any claim wherein Superior shall have an obligation to defend under this\n     Section, Superior shall have the right to select counsel and to control\n     such defense. Empower shall provide cooperation and participation of its\n     personnel as required for such defense.\n\n(d)  The warranties and remedies set forth above am exclusive and in lieu of all\n     others, oral or written, express or implied.\n\nThis Section 15 shall survive termination or expiration of this Service\nAgreement.\n\n16. SUPERIOR'S BUSINESS\n    -------------------\n\nAs a further condition of this Agreement, Empower expressly recognizes that\nSuperior has been, and is, in the business of providing services to its\nhealthcare industry clients, which services include, but are not limited to, the\nstrategic and operational consulting, design, development, installation,\nimplementation, enhancement, maintenance, training and support of information\nmanagement systems and services of various clients and vendors, including\nSuperior itself. It is further understood that Empower's information management\nsystems can, are and will be directly competitive with the business, services\nand information systems of other clients and vendors for whom Superior provides\nservices Except as expressly provided herein, it is understood and agreed that:\n1) Superior retains the right to continue to provide the same type of services,\nand any other services, to any other client, including competitors of Empower\nand customers of Empower; 2) Superior retains the right to carry on and expand\nits business including without limitation, that part of its business involved\nwith the strategic and operational consulting and design, development,\ninstallation, implementation, enhancement, maintenance, training and support of\ninformation management systems and services that are similar to or in\ncompetition with those of Empower, for\n\n                                    Page 12\n\n \nSuperior's present and future clients. Nothing in this Agreement shall be deemed\nin any way to prevent, restrict, or limit Superior in providing strategic and\noperational consulting and design, development, installation, implementation,\nenhancement, maintenance, training and support of information management systems\nor services that are similar: to or in competition with those of Empower, nor to\nrestrict or limit Superior's use of its expertise and technical skills,\nincluding enhancements of such expertise and skills that may result from its\nengagement by Empower provided Superior maintains its obligations of\nnondisclosure of Proprietary Information under Paragraph 6.\n\nEmpower acknowledges that Superior retains the right to exercise its skills and\nexpertise and to form and express opinions to its clients that may be based upon\nexperience gained under this Agreement, including exposure to Proprietary\nInformation.\n\n17.  FORCE MAJEURE\n     -------------\n\nNeither party shall be responsible for any delay or failure in performance at\nany time during the term of this Agreement, caused by flood, riot, insurrection,\nfire, earthquake, strike, explosion, war, act of God, Year 2000 failures, the\ndeath of, or incapacitating illness or injury to, identified personnel of\nSuperior or any other force or cause beyond the control of the party claiming\nthe protection of this paragraph. of any force majeure condition occurs, the\nparty whose performance fails or is substantially delayed (the \"Delaying Party\")\nbecause of such force majeure condition shall give immediate notice to the other\nparty (the \"Non-Delaying Party\"), and the protection of this paragraph shall\nonly begin upon receipt of such notice.\n\n18.  TAXES\n     -----\n\nEmpower, shall be responsible for the payment of, or reimbursement to, Superior\nor any other entity of any charges or taxes with the exception of income and\npayroll taxes, which may hereinafter be imposed or levied with respect to\nproducts or services delivered by Superior-under this Agreement.\n\n19.  ASSIGNMENT\n     ----------\n\nSuperior shall not assign its obligation to perform services under this\nAgreement, except to its subsidiaries and affiliates, without Empower's prior\nwritten consent. Empower shall not assign its obligations under this Agreement,\nexcept to its subsidiaries and affiliates, without Superior's prior written\nconsent. Any such purported assignment without prior consent shall be void.\nRequests for such assignment may not be unreasonably withheld.\n\n20.  COMPLIANCE WITH LAW\n     -------------------\n\nIn compliance with Medicare Regulation 42 C.F.R. Section 420.302 and Section\n1861(V)(1)(I) of the Social Security Act, Superior agrees to grant access to the\nController General of the United States, the Department of Health and Human\nServices and their duly authorized representatives, to the contractor's and its\nsubcontractor's and related organization's contracts, books, documents and\nrecords until the expiration of four (4) years after the services are furnished\nunder this Agreement or subcontract, or such longer period as required by\nEmpower.\n\n                                    Page 13\n\n \nNotwithstanding any other provision, Empower remains responsible for ensuring\nthat any services provided under this Agreement comply with all Federal, state,\nand local statutes, rules and regulations. This statement is inclined for\npurposes of compliance with regulations and does not   in any manner relieve\nSuperior of obligations or duties set forth in this Agreement and as provided by\nlaw.\n\n21.  NOTICES\n     -------\n\nAny notices to be given under this Agreement shall be given in writing, either\nby hand delivery, personally, to Superior's Engagement Manager or Empowers\nProject Liaison, respectively, or by certified mail, return receipt requested as\nfollows:\n\nIf to               Superior:  Superior Consultant Company, Inc.\n                    4000 Town Center Drive, Suite 1100\n                    Southfield, Michigan 48075\n                    Attn: Richard D. Helppie\n                    With copies to Joel French and Richard Saslow at the \n                    above address\n\nIf to Empower:      Empower Health Corporation\n                    4008 River Place Blvd.\n                    Austin, TX 78730\n                    Attn: Donald W. Hackett\n\nNotice by either party of a change in its address for purposes of this section\nshall be in writing.\n\n22.  CHOICE OF LAW AND FORUM\n     -----------------------\n\nThis Agreement will be governed by and interpreted in accordance with the haws\nof the\nState of Michigan.\n\n23.  COMPLETE AGREEMENT\n     ------------------\n\nThis Agreement sets forth the full and complete agreement of the parties, and\nboth parties warrant that there have been no promises, obligations or\nundertakings, oral or written, other than those herein set forth. No\nmodification of the terms of this Agreement shall be effective unless in writing\nand signed by both parties.\n\n24.  CAPTIONS AND HEADINGS\n     ---------------------\n\nThe Captions and Headings throughout this Agreement are for convenience and\nreference only, and the words contained therein shall in no way be held or\ndeemed to define, limit, describe, explain, modify, amplify, or add to the\ninterpretation, construction, or meaning of any provision of or the scope or\nintent of this Agreement, nor in any way affect the agreement.\n\n                                    Page 14\n\n \n25.  SAVING CLAUSE\n     -------------\n\nIn the event that any section or clause contained in, this Agreement is found to\nbe invalid by a court of competent jurisdiction, the remaining sections and\nclauses shall remain in full force and effect.\n\n26. AUTHORIZED SIGNATURES\n    ---------------------\nAcknowledged and accepted, for Donald W. Hackett (Empower)\n                               -----------------\n     \nBy \/s\/ Donald W. Hackett        President\/CEO            4\/30\/98\n   ---------------------        -----------------        -----------  \nSignature                       Title                    Date\n \nAcknowledged and accepted, for Superior Consultant Company, Inc.\n \nBy James T. House               CFO                      4\/30\/98\n   --------------------         --------------------     -----------\n   Signature                    Title                    Date\n\n                                    Page 15\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7359],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9613,9620],"class_list":["post-42771","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-drkoopcom-inc","corporate_contracts_industries-health__misc","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\/42771","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=42771"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42771"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42771"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42771"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}