Recitals

Whereas, Consultant is in the business of providing Client with access to Consultant’s proprietary databases, correlation and mapping software concerning the healthcare industry in the United States including, but not limited to patient usage data, psychographic and demographic correlation to patient data, physician contact databases and medical services locations, including such training, reporting and other services necessary to access such databases and generate reports from such databases (herein collectively referred to  as the “Services”)

Whereas, Client desires to obtain all or some portion of such Services from Consultant as more particularly set forth in this Agreement;

Now, therefore, in consideration of the mutual covenants contained herein, Client and Consultant agree as follows:

Section 1
SCOPE OF SERVICES

1.1       Services.  Consultant agrees to provide to Client the consulting Services described in one or more service work orders  as may be executed from time-to-time by the parties,  the form of which is attached hereto as Exhibit A and incorporated herein (each, a "Statement of Work").

1.2       Revisions.  Any revisions to the scope of the Services, whether occurring by reason of an increase or decrease in Consultant’s cost projection for performing the Services, the time required for performing the Services, or for any other reason, shall be made only by an amendment to the appropriate Statement of Work executed by an authorized representative of both parties.

1.3       Conduct of Services. Consultant warrants that the Services to be provided to Client will be performed in a good and workmanlike manner, will be of a quality conforming to industry standards and will be performed by employees who are qualified to perform the Services.  Consultant further warrants that in the course of performing the Services hereunder, neither the Services nor any Work Product (as defined below) will violate or infringe any proprietary rights of a third party, including, without limitation, any patent, trademark, copyright or confidential relationship.  If any Services or any Work Product violates or infringes any proprietary rights of a third party, including, without limitation, any patent, trademark, copyright or confidential relationship, (in addition to any other rights or remedies that Client may have in this Agreement or otherwise) Consultant will have twenty (20) days to provide to Client an acceptable solution that allows Client to continue utilizing the Services, Work Product or an alternative acceptable to Client.  As used herein, "Work Product" will mean all products, documents, code, technology, ideas, inventions, improvements, discoveries, designs, charts, drawings, working papers, programs, manuals, and data delivered to Client in connection with this Agreement or any part thereof, whether created by Consultant or a third party before or after the Effective Date. 

1.4       Responsibilities.  In connection with the provision of Services, Consultant and Client shall each perform the tasks and assume the responsibilities specified in the applicable Statements of Work.  Client understands that Consultant’s performance is dependent on Client’s timely and effective performance of Client’s responsibilities under such Statements of Work and timely decisions and approvals by Client.  When specified in the Statement of Work, Client will supply on-site Consultant personnel with necessary office space, desks, storage and any other normal office equipment support, including computer resources, telephone service, copying and general office supplies as reasonable and necessary in connection with Consultant’s performance of the Services and as specified in the Statement of Work.

1.5       Party Representatives.  Consultant’s representative shall be Lee C. Roberts or such other person as may be subsequently designated by Consultant by providing written notice to Client.  Client shall designate a representative during the registration process. 

2.1       Term.  Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement is one (1) year from the Effective Date and shall renew automatically for successive three (1)-year renewal terms unless either party delivers to the other party written notice of its intention not to renew this Agreement at least sixty (60) days prior to the last day of the initial term or any subsequent renewal term, as the case may be.

2.2       Termination.  Either party may terminate this Agreement or any Statement of Work, in whole or in part, if the other party breaches, in any material respect, any of its duties or obligations under this Agreement or any Statement of Work and fails to cure such breach within thirty (30) days after written notice from the non-defaulting party to the defaulting partyspecifying such default and the actions necessary to cure same in reasonable detail.  As long as the defaulting party is diligently pursuing the cure of such default using all commercially reasonable efforts, the non-defaulting party shall not have the right to terminate this Agreement. If the non-defaulting party  terminates this Agreement or any particular Statement of Work in part, the charges payable under this Agreement or any Statement of Work will be equitably adjusted under the circumstances and shall be prorated to the day prior to the effective date of termination.

2.3       Remaining Payments.  Within thirty (30)days of termination of this Agreement for any reason, Consultant shall submit to Client an itemized invoice for any fees or expenses theretofore accrued under this Agreement, and such invoice shall be due and payable in full within fifteen (15) days of delivery of such invoice.

3.1       Fees.  In consideration of the Services to be performed by Consultant, Client shall pay Consultant the compensation in the amount and manner set forth in the Statement(s) of Work (the "Fees").

3.2       Reimbursement of Expenses.  In addition to the Fees, Client shall reimburse Consultant its actual out-of-pocket expenses reasonably incurred by Consultant in furtherance of its performance under the Statement of Work ("Expenses").  Consultant agrees to adhere to Client’s expense policy standards to the extent such policy is made available to Consultant, provide Client with copies of such receipts, and/or provide Client with access to such ledgers, and other records as may be reasonably appropriate for Client or its accountants to verify the amount and nature of any Expenses.

3.3       Invoice and Payment.  Consultant will charge the client’s Credit Credit for Fees in accordance with the schedule specified in the Statement(s) of Work. 

4.1       Independent Contractor Basis.  In connection with this Agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other.  Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.

4.2       Employment Taxes.  In the event Consultant acts as the employer of any person or persons assigned to perform services hereunder, Consultant will:  (i) maintain all necessary personnel and payroll records for its employees assigned to Client, (ii) compute their wages and withhold applicable Federal, State, and local taxes and Federal Social Security taxes, (iii) remit employee withholdings to the proper governmental authorities and make employer contributions for Federal FICA and Federal and State unemployment insurance payments, (iv) pay net wages and fringe benefits, if any, directly to its employees, (v) provide for liability, fidelity, and Workers’ Compensation insurance coverage in the amounts as hereinafter set forth, and (vi) at the request of Client for any reasonable reason, remove any of its employees assigned to Client; provided, that this arrangement shall in no way effect the right of the Consultant, in its sole discretion as employer, to hire, assign, reassign, and/or terminate its own employees. 

4.3       Subcontractors.  In the event Consultant decides to provide an independent contractor to provide Services hereunder, Consultant agrees to indemnify, defend and hold harmless Client from any claim, suit, cause of action, demand, loss, damage, cost or expense (including legal fees) which may arise in any manner from a finding of any governmental authority that the independent contractor is an employee or joint employee of Consultant and/or Client.  Client will notify Contractor within a reasonable time of any investigation that may be instituted by a governmental authority concerning the status of any independent contractor placed by Consultant. 

5.1       Restrictions.  During the term of this Agreement, each party may be given access to information that relates to the other’s past, present, and future research, development, business activities, products, Client and vendor data, Services, and technical knowledge, and other similar information that is considered confidential and proprietary (“Confidential Information”).  In connection therewith, the following subsections shall apply:

6.1       Indemnification of Consultant.  Client agrees to indemnify, defend and hold harmless, Consultant and its owners, officers, partners, directors, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all reasonable expenses of litigation, court costs and attorney’s fees based on any third party claim that any documents or specifications provided by Client to Consultant  infringe any copyright, patent or other intellectual property right of a third party.  Client expressly disclaims all other representations, covenants, liabilities and warranties (express or implied) related to the documents or specifications or Consultant's implementation of such documents or specifications.  As further defined, Client holds Consultant harmless from penalties resulting from implementation failure resulting from use of documentation given by Client.

6.2       Indemnification of Client.  Consultant agrees to indemnify, defend and hold harmless, Client and its owners, officers, partners, directors, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs and attorneys' fees (a) related to bodily injury or death of any person or damages to real and/or tangible property incurred by any third party resulting from the grossly negligent or willful misconduct of Consultant or its agents, or (b) based on a claim that any Work Product, Pre-existing Works or Services (or access or use of any of the forgoing) provided by Consultant or its agents under this Agreement infringes any copyright, patent or other intellectual property right of a third party. 

6.3       Indemnification Obligations.  The party being indemnified ("Indemnified Party") agrees to promptly notify the party with the indemnity obligation ("Indemnifying Party") in writing of a claim or suit and provide reasonable cooperation (at the Indemnifying Party’s expense for out-of-pocket expenses) and the full authority to defend or settle the claim or suit.

7.1       Staffing.  The parties shall consult and mutually agree on staffing for the Services.  Consultant will not replace or reassign such personnel or subcontractors during the term hereof without first consulting with Client and implementing mutually agreeable staffing solutions.

7.2       Removal of Client Personnel.  If, in its reasonable opinion, Client determines that the general conduct of Consultant personnel or subcontractors is inconsistent with any terms of this Agreement or the normal business practices of Client, or for any other lawful reason, Client shall have the right to request that Consultant remove  such Consultant personnel or subcontractors that are performing the Services under the Agreement upon three (3) days prior written notice to Consultant.

7.3       On-Site Services.  If Services are provided by Consultant on Client's property, Consultant warrants that none of the individuals placed at Client's property have been convicted of a felony as an adult within the seven (7) years prior to their assignment at Client.  Consultant agrees that Client will not be responsible for loss of or damage to any personal property located on Client premises belonging to Consultant.

7.4       Non-Solicitation.  Each party agrees that without prior written approval of the other party, neither party will attempt to Recruit an employee of the other party during either (i) the performance of Services defined in Statements of Work for which the employee of either party is associated, or (ii) for a period of one (1) year after completion of Services described in the Statement of Work.  For purposes of this Agreement, “Recruit” means a personal contact (either directly or through a third party) initiated for the purposes of convincing such person to leave employment of one party and joint the other party as an employee, consultant or business partner.  Recruit does not mean the initiation of a general job posting, any communication independently initiated by the employee of the other party, or a party receiving a candidate who is, without the recruiting party’s involvement, presented to the recruiting party by an independent recruiting firm. 

Except for: (i) any obligations of indemnification, (ii) claims of copyright infringement, patent infringement or violation of any other intellectual property rights of the other party, or (iii) any breach of Section 4.3 or 5:

The allocations of liability in this Section 9 represent the agreed and bargained-for understanding of the parties and Consultant’s compensation for the Services reflects such allocations.

Consultant Warranties.  In addition to the warranties in Section 1.3, Consultant represents and warrants that:

10.1     Taxes.  For services rendered as IT Services, there shall be added to all invoices any applicable taxes payable by Client under this Agreement, including without limitation state and local privilege, excise, sales, and use taxes, but excluding taxes based upon the net income of Consultant and any state, federal or local taxes relating to employees and independent contractors of Consultant.  Consultant will be responsible for any taxes not invoiced to Client at the time the Services are performed. 

10.2     Force Majeure. Consultant shall not be liable to Client for any failure or delay caused by events that Consultant has no influence or control. 

10.3     Dispute Resolution and Governing Law.  The parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement by negotiation.  If the parties are unable to resolve the dispute by negotiation, either party shall have the right to submit the dispute to binding arbitration (“Arbitration”).  Such Arbitration shall be conducted in Dallas, Texas under the rules of the American Arbitration Association’s Commercial Arbitration Rules.  The arbitrator will be selected by agreement of the parties.  If the parties cannot agree on an arbitrator, an arbitrator will be designated by the American Arbitration Association.  The arbitrator shall have the authority to award compensatory damages only.  The award rendered by the arbitrator shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction.  Other than those matters involving injunctive relief as a remedy, including during a pending Arbitration, or any action necessary to enforce the award of the arbitrators, the provisions of this paragraph shall be a complete defense to any suit, action or other proceeding instituted in any court with respect to any dispute, controversy or claim arising out of or related to this Agreement, or the creation, validity, interpretation, breach or termination of this Agreement.  Each party shall be responsible for its own expenses, including legal fees, incurred in the course of the Arbitration.  The fees of the arbitrator shall be divided evenly between the parties.  The provisions of this paragraph will not prevent either party from seeking (i) equitable relief regarding the other party’s breach of its confidentiality provisions of the Agreement or (ii) specific performance of the other party’s material breach of its obligations under this Agreement.  Both parties agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their responsibilities under this Agreement that are not affected by the dispute.  This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Texas as they apply to a contract entered into and performed in that State.

10.4     Notices.  All notices required or permitted hereunder shall be in writing addressed to the respective parties as set forth herein, unless another address shall have been designated, and shall be delivered by hand or by registered or certified mail, postage prepaid. 

If to Consultant:
Montecito Research & Analytics, LLC
Attn: Lee C. Roberts
5215 N. O’Connor Blvd., Suite 1820
Irving, Texas 75039

10.5     Survival.  Sections 4, 5, 6, 7, 8. 9 and 11 will survive the termination or expiration of this Agreement for any reason.