Agreement- Wellsource to CHP
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Memorandum
To:
Jeff Walker, Risk Management Director
From:
,
Lyn M. Wood, C.P.M. ~'+
Contract Specialist \.~
November 26, 2008
Date:
Subject:
Assignment and Ass'\Jmption Agreement - Wellsource to CHP
Attached are 3 fully executed copies of the subject. Please feel free to send Wellsource and CHP copies for
their files.
. (; .
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DATE REel i0.O
NO\! 3 0 2008
RISK w-AAGE.MEMl
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ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Agreement") is among COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS ("Assigning Party"), COMMUNITY HEALTH
PARTNERS ("Assuming Party"), and WELLSOURCE, INC. ("Consenting Party").
RECITALS
A. Assigning Party has rights and obligations under the Consenting Party's Personal
WelIness Profile™ desktop license agreement and corresponding documentation (the
"Contracts"), attached as Schedule A.
B. With the consent of the Consenting Party, Assigning Party desires to assign Assigning
Party's rights under the Contracts to Assuming Party, and Assuming Party desires to
assume Assigning Party's obligations under the Contracts.
AGREEMENT
SECTION 1
ASSIGNMENT AND ASSUMPTION
1.1 Assignment. Assigning Party assigns and transfers to Assuming Party all of Assigning
Party's rights under the Contracts.
1.2 Assumption. Assuming Party assumes all of Assigning Party's obligations under the
Contracts arising on or after the date of this Agreement.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF ASSIGNING PARTY
Assigning Party assigns the Contracts to Assuming Party subject to the representations,
warranties, disclaimers, and other terms and conditions in the Purchase Agreement.
SECTION 3
GENERAL
3. I Binding Effect. This Agreement will be binding on the parties and their respective
heirs, personal representatives, successors, and permitted assigns, and will inure to their
benefit.
3.2 Severability. If a provision ofthis Agreement is determined to be unenforceable in
any respect, the enforceability of the provision in any other respect and of the
remaining provisions of this Agreement will not be impaired.
3.3 Further Assurances. The parties will sign other documents and take other actions
reasonably necessary to further effect and evidence this Agreement.
3.4 Attachments. Any exhibits, schedules, and other attachments referenced in this
Agreement are part of this Agreement.
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3.5 Entire Agreement. This Agreement and the Contracts contain the entire
understanding of the parties regarding the subject matter of this Agreement and
supersede all prior and contemporaneous negotiations and agreements, whether written
or oral, between the parties with respect to the subject matter ofthis Agreement.
3.6 Signatures. This Agreement may be signed in counterparts. A fax transmission of a
signature page will be considered an original signature page. At the request of a party,
the other party will confirm a fax-transmitted signature page by delivering an original
signature page to the requesting party.
Dated effective: September I 7, 2008
AssIgnIng Party:
COLLIER COUNTY BOARD OF COUNTY
COMMISSIONERS
arm & legal sufficiency
~j)lI1 tJ ' Glff
By: S~hen Y. Carnell
Its: Purchasing/General Services
Director
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AssumIng Party:
COMMUNITY HEALTH PARTNERS
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Consenting Party:
WELL SOURCE, INC.
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By: Heather R. Tourville, JD
Its: Chief Operating Officer and General Counsel
2 - ASSIGNMENT AND ASSUMPTION AGREEMENT
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SCHEDULE 1
WeIIsource Personal WeIIness Prome Desktop License Agreement
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Wellsource, Inc. Single Site Software License Agreement
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING
THE ACCOMPANYING SOFTWARE PACKAGE. OPENING THE SOFTWARE PACKAGE
INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS LICENSE,
UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF
YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, RETURN THE UNOPENED
PACKAGE TO WELLSOURCE, INC. WITHIN THIRTY (30) DAYS OF THE DATE OF
PURCHASE AND YOUR PURCHASE PRICE WILL BE REFUNDED.
I. LICENSEE:
a. Acknowledges that the Software contained in the accompanying package (the "Software")
and the underlying ideas, algorithms. concepts, procedures, processes, principles, and
methods of operation are confidential and contain trade secrets, and Licensee shall use its
best efforts to maintain their confidentiality.
b. May use the Software on a single terminal connected to a single computer, or on a single
network server in which case only one workstation conneeted to the network shall use the
Software. Licensee may not use or allow the Software to be used on more than one
operational computer terminal at the same time. The Licensee also may not allow the
Software to residc on the hard or optical drives or any other computer-related media storage
device of more than one operational computer at the same time.
e. Is prohibited from using the Software to process reports for program participants who
reside outside of Licensee's metropolitan area and surrounding suburbs, unless Licensor's
prior written consent is obtained.
d. May not transfer this License together with the Software and rclated user manuals to any
other party.
e. May not reverse engineer, decompile, disassemble, or otherwise adapt or modify the
Software.
f. Agrees to purchase all necessary printed support materials for the Software, including
questionnaires, from Wellsource, Inc.
g. MAY NOT USE, COPY, OR MODIFY THE SOFTWARE OR USER MANUALS OR
ANY COPIES EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE.
2. COPYRIGHT. Licensee acknowledges that all intellectual property rights in the Software
are owned by Licensor. The Software and user manuals are copyrighted and may not be copied
except as specifically allowcd by this Liccnsc for backup and archival purposes and to load the
Software into the computer as part of executing the Software. All other copies of the Software
and related user manuals are in violation of this License. This copyright protection claim also
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includes all forms and matters of copyrightable material and information now allowed by
statutory or common law or hereinafter granted, including, without limitation, material generated
from the Software programs that are displayed on the screen such as icons and screen displays.
3. COPYRIGHT INFRINGEMENT. Licensor represents that to the best of its knowledge, the
material contained in this Software program does not violate any copyright law. All material has
been originally researched and developed by Licensor's staff, or permission has been obtained
and credit given if copyrighted material is incorporated into any Software program. In the
unlikely event that the Software is held to constitute an infringement or a trade secret or
violation of a proprietary right and its use is enjoined, Licensor shall, at its own expense and at
its sole option, either: (i) procure for Licensee the right to continue using the Software, (ii)
replace the Software with a non-infringing program, (iii) modify the Software so that it becomes
non-infringing, or (iv) accept the return of the Software and reimburse the Licensee the purchase
price less a prorated usage charge. Notwithstanding anything to the contrary in this paragraph,
Licensor shall have no liability to Licensee if the alleged infringement arises from Licensee's (a)
use of other than a current, unaltered version of the Software, or (b) combination of the Software
with non-Licensor supplied programs or data.
4. LIMITED WARRANTY.
a. What Is Covered: Licensor warrants to the Licensee that the magnetic media on which
the enclosed Software is recorded are free from defects in material and workmanship
under normal use. Licensor further warrants that the Software will perform substantially
in accordance with the user manuals accompanying the Software, and the user manuals
are substantially free of material errors.
b. For How LORI!: The warranty covering the magnetic media and the Software and
user manuals is made for one (I) year from the date of the original delivery to Licensee.
e. What Licensor Will Do: Licensor will replace any magnetic media that proves
defective in materials or workmanship on an exchange basis without charge. Licensor
will, at its sole option, either replace or correct any Software that does not perform
substantially in accordance with the user manuals with a corrected copy of the Software
without charge. Licensor will correct material errors in the user manuals without charge
by providing addenda or substitute pages. Any replacement Software or user manuals
will be warranted for the remainder of the original warranty period or thirty (30) days,
whichever is longer. If Licensor is unable to replace defective media or if Licensor is
unable to provide corrected Software or corrected user manuals within a reasonable time,
Licensor will, at its sole and exclusive option, either replace the Software with a
functionally equivalent program without charge or refund the fees paid for licensing the
Software upon return of the same. THESE ARE YOUR SOLE AND EXCLUSIVE
REMEDIES FOR ANY BREACH OF WARRANTY.
d. What Licensor Will Not Do: Licensor does not warrant that the Software will meet your
requirements or that the operation of the Software will be uninterrupted or error-free. It is
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Licensee's responsibility to test the Software upon receipt and verifY that its operation is
satisfactory. Good data processing procedure requires that Liccnsee thoroughly test the
Software with sample test data. The warranty docs not cover any media or user manuals
that have been subjected to damage or abuse by Licensee, nor does the warranty cover
any Software that has been altered or changed in any way by anyone other than Licensor.
Licensor is not responsible for problems caused by changes in the operating
characteristics of computer hardware or computer operating systems that arc made after
the release of the Software, nor for problems in the interaction of Licensor's Software
with non-Licensor software.
e. Software Maintenanee Agreement: A Software maintenance agreement, renewable
annually, may be purchased to extend the life of the warranty for additional years. The
maintenance agreement: (i) provides for Software support by phone to address questions,
bugs and corrections, (ii) entitles Licensee to Software upgrades, and (iii) provides
scientific norm updates to Licensee without charge (features or platform upgrades may
carry additional charges).
f. Return of Defective Item: Licensee must return the defective item, shipping prepaid, to
Licensor for replacemcnt.
g. Disclaimer of Other Warranties: LICENSEE AGREES THAT THE FOREGOING
LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OF LICENSOR
AND LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY, OF FITNESS OR ADEQUACY FOR ANY PARTICULAR
PURPOSE OR USE, OF QUALITY OR PRODUCTIVENESS, OR OF CAPACITY.
5. OWNERSHIP. Liccnsor is, and shall remain, the sole and exclusive owner of the magnetic
media, the Software, any copies of the Software, and the user manuals. Licensor has all
proprietary rights in the Software and user manuals, including but not limited to all processes,
ideas, and data supplied by Licensor to Licensee. Any backup and archival copies made by
Licensee shall be the sole and exclusive property of Licensor.
6. TERMINATION OF LICENSE. Licensor may canecl this License, at its sole discretion,
for Licensee's violation of its terms. In addition, Licensor may seek any legal or equitable
remedy available against Licensee for any violation of the terms of this License. Upon
termination of this License, Licensee shall either destroy or return the Software and user manuals
and all copies of the same to Licensor, at Licensor's sole option. Such termination by Licensor
shall not be considered a breach of this License.
7. LIMITATION OF REMEDIES AND LIABILITY. NEITHER LICENSOR NOR ANYONE
ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY
OF THE SOFTWARE OR USER MANUALS SHALL BE LIABLE TO LICENSEE, ITS
PARTICIPANTS, OR OTHER THIRD PARTIES FOR DAMAGES OF ANY KIND,
INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF
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ANTICIPATED BENEFITS, BUSINESS INTERRUPTION LOSS, LOSS OF BUSINESS
INFORMATION, INJURY TO LICENSEE'S PARTICIPANTS IN THEIR PARTICIPATION OF
THESE PROGRAMS OR IN THEIR FAILURE TO FULFILL THE PROGRAM
RECOMMENDATIONS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN ANY WAY RELATED TO (1) THIS AGREEMENT; (II) THE
PERFORMANCE OF THIS AGREEMENT; OR (III) THE USE OF OR INABILITY TO USE
THE SOFTWARE, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT
TORT, OR UNDER ANY WARRANTY, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE AND LICENSEE'S
PARTICIPANTS AGREE AND ACKNOWLEDGE THAT THE SOFTWARE
RECOMMENDATIONS CANNOT REPLACE THE ADVICE OF A MEDICAL
PROFESSIONAL AND THAT THE SOFTWARE RECOMMENDATIONS ARE INTENDED
FOR GENERAL HEALTH EDUCATIONAL PURPOSES ONLY. LICENSEE AND
LICENSEE'S PARTICIPANTS SHOULD NOT RELY UPON THE SOFTWARE OUTPUT FOR
DIAGNOSIS OR TREATMENT, AND IN NO EVENT SHALL LICENSOR BE LIABLE FOR
ANY DAMAGES OR CLAIMS RELATED TO LICENSEE'S OR ITS PARTICIPANTS'
RELIANCE ON THE SOFTWARE OUTPUT FOR SUCH PURPOSES. IN NO EVENT SHALL
LICENSOR BE LIABLE FOR ANY DAMAGES OR CLAIMS RELATED TO LICENSEE'S
COLLECTION, USE, OR DISSEMINATION OF PERSONAL INFORMATION OF
PARTICIPANTS. NOTHWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT, LICENSOR'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT
EXCEED THE FEES PAID TO IT BY LICENSEE FOR USE OF THE SOFTWARE. Some states
do not allow limitations on how long an implied warranty lasts and some states do not allow the
exclusions or limitations of incidental or consequential damages, so the above limitations or
exclusions may not apply to you.
8. NO OTHER AGREEMENTS. This License contains the entire agreement between the parties
with respect to the subject matter covered by this License. No other agreement, statement, or
promise made by either party, or an employee, officer, or agent of the party, which is not contained
in this License shall be binding or valid unless executed in writing. The agents, employees,
distributors, and dealers of Licensor are not authorized to modify this License nor to makc
statements, representations, or terms binding on Licensor. Accordingly, any statements,
representations, or terms not made or given directly and expressly by Licensor, whether oral or
written, are not binding on Licensor.
9. GENERAL. Licensor and Licensee agree to abide by all applicable laws. If any portion of
this License shall be held invalid or unenforceable, the remainder shall not be affected. It is
agreed that the laws of the state of Oregon shall govern without reference to the place of
execution or performance, and the parties agree to submit to the courts ofthe state of Oregon. No
action for any breach of the above warranties may be commenced more than one (1) year
following the expiration date of the above warranties.
Neither party shall be liable nor deemed to be in default for any delay or failure in performance
under this License or other interruption of service or employment deemed resuIting, directly or
indireetIy, from Acts of God, civil or military authority, acts of public enemy, war, terrorism,
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accidents, fires, explosions, earthquakes, flood, failure of transportation, strikes or other work
interruptions by either party's employees, or any similar or dissimilar cause beyond the
reasonable control of either party. .
This License may be assigned by either party with the written consent of the other party, which
consent shall not be unreasonably withheld.
Licensee will be solely responsible for any applicable sales, use, real or personal property,
franchise, or other like taxes based on the fees or use of the Software, subject to exceptions
allowed under state and federal laws applicable to Licensee. If Licensee is claiming tax-exempt
status, Licensee accepts all liability and agrees to indemnifY Licensor for all taxes paid and all
costs incurred, including attomeys fees, if a taxing authority requires that Licensor remit tax
based on the fees covered by this License.
LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS LICENSE,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
LICENSEE ALSO AGREES THAT ITS USE OF THE SOFTWARE ACKNOWLEDGES THAT
LICENSEE AGREES TO THE TERMS AND CONDITIONS OF THIS LICENSE. LICENSEE
FURTHER AGREES THAT THE LICENSE IS A COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR AND THAT
IT SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS,
NEGOTIATIONS, DISCUSSIONS, AND PROPOSALS, ORAL OR WRITTEN, AND ANY
AND ALL OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS
LICENSE.
Licensor:
Wellsouree, Inc.
15431 SE 82nd Drive
Clackamas, Oregon 97015
04-26-05
6.- SCHEDULE I: CONTRACTS