INTERSYSTEMS CORPORATION

EX-10.28 3 dex1028.htm EXHIBIT 10.28 EXHIBIT 10.28

Exhibit 10.28

VALUE ADDED REMARKETING

AGREEMENT

Table of Contents


Section		Page
RECITALS

Section 1	Definitions	1

Section 2	License	4

Section 3	Services	5

Section 4	Responsibilities of The VAR	6

Section 5	Charges for License and Services	7

Section 6	Representations and Warranties of Inter-Systems	9

Section 7	Limitation of Liability	10

Section 8	Term and Termination	11

Section 9	Proprietary Rights And Confidentiality	13

Section 10	Indemnification	16

Section 11	Maintenance and Support	18

Section 12	Representations and Warranties of the VAR	18

Section 13	Financial Information And Reports	19

Section 14	Government Requirement And Approvals	19

Section 15	Approvals	22


Section		Page
Section 16	Construction	22

Section 17	Benefit and Assignment	22

Section 18	Remedies and Jurisdiction	23

Section 19	Notices	24

Section 20	Scope of Agreement	25

Section 21	Relationship	25

Section 22	Severability	25

Exhibit A	Required Provisions for Sublicense Agreement

Exhibit B	Request for Approval

Exhibit C	Master Maintenance Agreement

Schedule A	Disclosure Schedule

VALUE ADDED REMARKETING AGREEMENT

AGREEMENT made this 26th day of June, 1989, by and between INTERSYSTEMS CORPORATION, a Massachusetts corporation with its principal place of business in Cambridge, Massachusetts (“InterSystems”) and THE COMPUCARE COMPANY, a Delaware corporation with its principal place of business in Reston, Virginia (which, together with its Affiliates, is referred to herein as the “VAR”).

RECITALS

1. InterSystems owns and/or has the right to sublicense and otherwise use for commercial purposes the Licensed Software (as hereinafter defined).

2. The VAR desires to combine the Licensed Software with certain other computer hardware and/or software to create an integrated package to be sold and/or licensed by the VAR to end users.

3. InterSystems has agreed to permit the VAR to use the Licensed Software upon the terms and conditions hereinafter set forth.

IN CONSIDERATION of the mutual covenants and conditions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

Capitalized terms used herein and not otherwise defined shall have the following meanings:

“Affiliate” means, as to a specified Person, (i) any Entity controlling, controlled by or under common control with such Person, or (ii) any surviving or acquiring Entity resulting from a merger, consolidation, or other business combination or acquisition involving such Person. For purposes of this definition the term “control” shall mean the power to control the operations and policies of such Entity, whether by ownership of voting stock or other securities or interests, by contract or otherwise.

“Agreement” means this Agreement, including all Exhibits and Schedules attached hereto or incorporated herein by reference, as it may be amended from time to time.

“Applicable Specifications” means, in the case of any Licensed Software, the functional, performance and operational characteristics of such Licensed Software as set forth in the System Documentation.

“Bankruptcy” means, as to a specified Person:

(a) The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of his property, or ordering the winding-up or liquidation of his affairs and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or

(b) the commencement by such Person of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or the consent by him or it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of such Person or for any substantial part of his or its property, or the making by him or it of any assignment for the benefit of creditors, or the taking of action by such Person in furtherance of any of the foregoing.

“Competitor” has the meaning set forth in Section 17(c) hereof.

“Computer” means one or more closely coupled central processing units sharing a common memory.

“Effective Date” means the date of this Agreement as set forth in the heading.

“Enhancements” means improvements and updates to the Licensed Software which relate to operating performance but do not change the basic function of the Licensed Software, are intended for general commercial use in connection with the Licensed Software and which are part of the standard InterSystems enhancement package for such Licensed Software. The term “Enhancements” shall not include (a) new products or (b) upgrades in existing software which increase the assigned number of jobs which such software is permitted to run.

“Entity” means any general partnership, limited partnership, corporation, joint venture, trust, business trust, cooperative or association.

“Hardware” means the computer hardware and related items described in Schedule A.

“Installation Site” means the site of the installation of the Hardware and Licensed Software.

“License” means each license granted to the VAR hereunder to use the Licensed Software for its own internal purposes.

“License Fees” has the meaning set forth in Section 5(a) hereof.

“Licensed Software” means the computer programs (Object Code version only unless otherwise specified) to be licensed by InterSystems to the VAR hereunder, which are more fully described in Schedule B, together with any Enhancements and related items which InterSystems may announce while the Agreement is in effect.

“Master Maintenance Agreement” means the Master Maintenance Agreement of even date herewith by and between the VAR and InterSystems, a copy of which is attached hereto as Exhibit C.

“Object Code” means computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without disassembly, decompilation or reverse engineering.

“Person” means any individual or Entity, and the heirs, executors, administrators, legal representatives, successors and assigns of such Person where the context so admits; and, unless the context otherwise requires, the singular shall include the plural, and the masculine gender shall include the feminine and the neuter and vice versa.

“Products” means the data processing equipment, programs and services sold, leased, licensed or otherwise furnished by the VAR’s to Users in the ordinary course of the VAR’s business.

“Services” means those services, including, without limitation, personnel, support, training, maintenance and development services, to be provided by InterSystems to the VAR from time to time in accordance with the terms and conditions of this Agreement.

“Software Installation Date” means the date on which the Licensed Software has been installed at the Installation Site and is operational. The Software Installation Date will be deemed to occur within seven (7) days after delivery by InterSystems to the VAR or by the VAR to the User, as the case may be, unless InterSystems is notified to the contrary by the VAR.

“Software Warranty Period” means the thirty (30) day period commencing on the Software Installation Date.

“Sublicense” means a sublicense granted by the VAR to a User pursuant to a Sublicense Agreement.

“Sublicense Agreement” means each agreement between the VAR and a User relating to a Sublicense of the Licensed Software. Each Sublicense Agreement shall be substantially in the form attached hereto as Exhibit A, which form is hereby approved by InterSystems.

“System Documentation” means the documentation, reference manuals, user guides and other standard visually readable materials relating to the Licensed Software furnished by InterSystems to the VAR in connection with the rights granted by InterSystems to the VAR hereunder, as more fully described in Schedule C.

“Term” has the meaning set forth in Section 8.

“User” means any end user who purchases, leases or licenses Products from the VAR which incorporate a Sublicense of the Licensed Software.

2. License.

(a) Subject to the terms and conditions hereinafter set forth, InterSystems hereby grants to the VAR, during the Term, the nonexclusive right, in connection with the Hardware, to sublicense the Licensed Software to Users who purchase, lease or license Products from the VAR. Subject to the provisions of Section 2(b) below, InterSystems also grants to the VAR the right to use the Licensed Software internally for its own purposes.

(b) In the event that the VAR desires to use the Licensed Software for its own internal purposes, the VAR shall obtain and InterSystems shall grant a separate License from InterSystems for each Computer on which the Licensed Software will be used. Each such License shall incorporate the terms and conditions set forth in this Agreement.

sublicensing or otherwise granting to a User the right to use the Licensed Software on a Computer for which a License or Sublicense has not already been granted and is not in force pursuant to the terms hereof, the VAR shall submit to InterSystems a request for approval substantially in the form attached hereto and made a part hereof as Exhibit B. InterSystems shall notify the VAR by telephone of the approval or disapproval of InterSystems to any Sublicense or any similar transaction within two (2) business days of the receipt of such request for approval and shall confirm such approval or disapproval within five (5) business days of such receipt by notice in the manner provided in Section 19.

(d) InterSystems shall have the right to discontinue the licensing or availability of any or all of the Licensed Software and related Services upon eighteen (18) months prior written notice to the VAR.

3. Services.

(a) In connection with the rights granted to the VAR hereunder, InterSystems agrees to perform the following Services to the VAR:

(i) InterSystems shall advise the VAR of the facilities necessary for the installation and operation of the Licensed Software. In addition, InterSystems shall provide up to four (4) hours of free installation assistance and support to the VAR for each of the first five installations of Products by the VAR pursuant to this Agreement. Such free support shall be provided only from 8:30 A.M. E.S.T. to 8:30 P.M. E.S.T. on Mondays through Fridays. Installation support services furnished by InterSystems at all other times shall be billed to the VAR at the then prevailing charges of InterSystems for such services.

(ii) InterSystems shall supply training to the VAR’s employees in the operation and use of the Licensed Software to the extent set forth in Schedule D.

(iii) To the extent specified in Schedule C, InterSystems shall provide manuals and other System Documentation necessary for the effective operation and use of the Licensed Software.

(iv) Subject to the provisions of Section 6 of this Agreement, InterSystems shall use reasonable efforts to correct errors in the Licensed Software which are brought to its attention during the Software Warranty Period.

(v) InterSystems shall provide maintenance of the Licensed Software in the manner and to the extent provided in the Master Maintenance Agreement.

(b) Additional services may be ordered by the VAR in writing under this Agreement at any time. Such additional services, if approved by InterSystems, will be provided at the then prevailing terms, conditions and charges of InterSystems therefor.

(c) InterSystems shall, to the extent consistent with good business practices, use reasonable efforts to modify and update the Licensed Software and System Documentation to respond to market needs identified by the VAR and disclosed in writing to InterSystems. Without limiting the generality of the foregoing, InterSystems shall use its best commercially reasonable efforts to insure that the Licensed Software and System Documentation are and remain compatible with the Data General MV series.

4. Responsibilities of the VAR.

(a) Except as otherwise specifically provided herein, the VAR shall be exclusively responsible for the supervision, management, and control of its use of the Licensed Software, and/or other materials furnished hereunder, including, but not limited to (i) assuring proper Hardware configuration, audit controls and operating methods; (ii) establishing adequate backup plans, based on alternate procedures, and (iii) implementing sufficient procedures and checkpoints to satisfy its requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction.

(b) The VAR shall have sole responsibility for the installation and demonstration of the Licensed Software to Users. Without limiting the generality of the foregoing, the VAR shall:

(i) advise teach User of the facilities necessary for the installation, demonstration and operation of the Licensed Software;

(ii) to the extent specified in the applicable Sublicense Agreement, supply training to designated personnel of each User in the operation and use of the Licensed Software; and

(iii) to the extent specified in the applicable Sublicense Agreement, provide manuals and other System Documentation necessary for the effective operation and use of the Licensed Software.

(c) The VAR shall not grant to any User the right to use the Licensed Software, whether in connection with the sale, lease or license of Products or otherwise, without complying with all provisions of this Agreement and requiring such User to execute a Sublicense Agreement.

(d) All authorized copies of the Licensed Software or System Documentation shall include proprietary, copyright and/or trade secret legends, in the same form and location as any legends appearing on the original from which the copies are made, or in any other form and location specified by InterSystems from time to time in writing. Should the VAR fail to so include any such legends, such failure shall be deemed to be a material breach of this Agreement.

(e) The VAR shall not use the name “InterSystems” or any variant thereof in any advertising or marketing materials relating to the Products without the prior written consent of InterSystems.

(f) In consideration of the benefits of this Agreement, including, without limitation, the discounts granted to the VAR with respect to the Licensed Software, the VAR covenants and agrees as follows:

(i) It will add significant value to, and enhance the functionality and/or capabilities of the Licensed Software with other application-specific software and computer equipment to produce the Products, and will offer the Products and related services, including, without limitation, training, installation assistance and other forms of customer support, on a turnkey or facilities management basis.

(ii) It will market the Licensed Software solely as part of the Products.

(iii) Except as otherwise provided in Section 2(b), the Products will be marketed by the VAR for its own account in the ordinary course of its business solely to Users who are not Affiliates of the VAR.

5. Charges for License and Services.

(a) In consideration of the rights and Licenses granted and certain of the Services furnished by InterSystems hereunder, the VAR shall pay to InterSystems, with respect to each License granted to the VAR or Sublicense granted by the VAR to a User hereunder, the charges enumerated in Schedule A (the “License Fees”) in accordance with the terms and conditions set forth in Schedule A. The License Fees shall be in addition to, and not in lieu of the fees payable pursuant to the Master Maintenance Agreement.

(b) In the event that the Licensed Software is deemed to be subject to sales or use taxes in any jurisdiction where the Products are marketed, the VAR will use its best efforts to acquire, prior to marketing the Licensed Software as part of the Products in such jurisdiction, a valid resale exemption certificate issued by the taxing authorities in such jurisdiction where such certificate is required as a condition for the avoidance of such sales or use taxes by InterSystems. The VAR will furnish a copy of any such resale exemption certificate to InterSystems and will promptly notify InterSystems of any additions, deletions or changes to any such certificate.

(c) Subject to the provisions of Section 5(b) above, any federal, state or local excise, sales, use or other taxes imposed in respect of any License or Sublicense granted or services performed hereunder or otherwise arising out of this Agreement or the Master Maintenance Agreement (other than taxes based on the net income of InterSystems), shall, unless otherwise required by law, be added to and paid as part of the charges specified in Section 5(a) above. In the event that InterSystems is required to pay any such tax, the VAR shall promptly reimburse InterSystems for the same upon presentation of evidence of such payment.

(d) In addition to the sums specified in paragraphs (a) through (c) above, the VAR agrees to reimburse InterSystems for all reasonable travel costs and other expenses incurred by InterSystems (other than costs and expenses incurred by InterSystems during the Software Warranty Period in connection with the performance of its obligations under Section 6(b) to correct errors in Licensed Software) in connection with Services performed by InterSystems at any Installation Site, and for all reasonable telephone charges incurred by InterSystems in connection with services performed pursuant to this Agreement. Invoices listing such costs and expenses shall be submitted at reasonable intervals by InterSystems and shall be payable upon receipt by the VAR.

(e) The fees and charges provided for or referred to in this Agreement may be revised by InterSystems at any time or from time to time during the Term hereof upon ninety (90) days prior written notice to the VAR. Any revisions of such fees shall be applied only to transactions (whether Sublicenses or VAR use of the Licensed Software) occurring after the effective date thereof. In no event shall InterSystems revise fees charged to the VAR in a manner inconsistent with the revision of fees charged to other private sector value added remarketers of InterSystems who license substantially the same amount of Licensed Software from InterSystems as does the VAR.

6. Representations and Warranties of InterSystems

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, INTERSYSTEMS SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION, MERCHANTABILITY, TITLE, DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE OF THE LICENSED SOFTWARE OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE.

(a) InterSystems hereby represents and warrants as follows:

(i) InterSystems has (A) valid title to the Licensed Software, free of all liens, encumbrances, restrictions and claims of others, or (B) the right to license the same to the VAR.

(ii) Any Services performed hereunder or under the Master Maintenance Agreement shall be performed by highly skilled personnel qualified to perform such Services and such Services shall be performed in a professional and workmanlike manner in accordance with the then prevailing standards of the computer services industry.

(iii) The Licensed Software and its use does not and will not violate or infringe upon any patent, copyright, trade secret or other property right (whether conferred by statute, code, common law, or otherwise) of any other Person that is valid or enforceable in the United States or in any country in which the VAR now maintains or hereafter maintains any office, property or data processing services.

(iv) The Licensed Software, as delivered by InterSystems, is free from defects in manufacture and materials and shall operate substantially in conformance with the Applicable Specifications relating to such Licensed Software during the Software Warranty Period.

(v) InterSystems is a corporate duly organized and existing in good standing under the laws of the Commonwealth of Massachusetts.

(vi) InterSystems has full power, authority and legal right to enter into and perform this Agreement, and all other documents in connection

herewith, and the execution, delivery and performance of such documents have been duly authorized, do not violate any judgment, order, law or regulation applicable to InterSystems or any provision of its certificate or incorporation or bylaws, or constitute a default under, or result in the creation of any lien, charge, encumbrance or security or instrument to which InterSystems is a party or by which InterSystems or its assets may be bound or affected.

(vii) This Agreement, and all other documents executed in connection herewith, have been duly entered into and delivered and constitute legal, valid and binding obligations of InterSystems enforceable in accordance with respective terms thereof.

(b) During the Software Warranty Period, InterSystems shall use its best efforts, at no charge to the VAR, to correct any errors in the Licensed Software of which InterSystems is notified in writing by the VAR. InterSystems also shall use reasonable efforts to correct any database errors which arise during the Software Warranty Period and which are attributable to errors or defects in the Licensed Software. The VAR shall assist InterSystems in identifying the circumstances in which any such errors are discovered by the VAR and, if requested by InterSystems, shall document the existence of the same. In no event shall InterSystems have any responsibility to correct any database errors or any errors or damages caused by or arising out of Hardware defects or input errors or resulting from changes to or modifications of the Licensed Software made by the VAR or any User without the express written approval of InterSystems. If any errors are determined to have arisen by reason of the errors or negligence, of the VAR or any User, including, without limitation, changes or modifications of the type described in the preceding sentence or the failure to use and operate the Licensed Software in accordance with the System Documentation, the VAR shall compensate InterSystems for any services performed to correct such problem at InterSystems’ then current rates for such services and shall reimburse InterSystems for all expenses incurred in connection with the performance of such services.

7. Limitation of Liability.

(a) The parties hereto may recover direct damages against each other up to the limits set forth below.

(b) Except for InterSystems’ indemnification responsibilities under Section 10(b) with respect to a breach of the warranty set forth in Section 6(a) (iii), or in the case of personal injury or damage to property caused solely by a party’s gross negligence or willful misconduct or damages which result from a

party’s failure to perform its confidentiality and nondisclosure obligations hereunder, each party’s maximum liability to the other with respect to the transactions contemplated by this Agreement, regardless of the form of action, shall be limited to an amount equal to the total charges paid by the VAR under this Agreement. In no event will InterSystems be liable to the VAR for any damage, loss or expense arising from the performance or nonperformance of Products (or components of Products) other than the Licensed Software.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Term and Termination.

(a) The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the first to occur of the following:

(i) The date which is twenty (20) years from the Effective Date;

(ii) At the option of InterSystems, upon written notice to the VAR, if the VAR shall fail to make any payment of the charges referred to in Section 5 or any other provision hereof when the same shall become due and payable and such failure shall continue for a period of sixty (60) days after notice thereof from InterSystems to the VAR; provided however, that if such failure results from a dispute between InterSystems and the VAR as to whether such charges are due and the VAR is engaged in good faith negotiations with InterSystems to resolve such dispute, and provided further that the VAR continues to make all payments and charges which are not the subject of such dispute when the same are due and payable, such grace period shall be extended for an additional one hundred twenty (120) days beyond such sixty (60) day period;

(iii) At the option of either party (the “non-Defaulting Party”), upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party shall fail in any material respect to perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder, and such failure shall continue unremedied for a period of thirty (30) days after written notice thereof by the Non-Defaulting Party to the Defaulting Party;

(iv) At the option of either party, upon written notice to the other party, if any representation or warranty of the other party contained herein shall prove to be false in any material respect;

(v) At the option of either party, upon written notice to the other party, upon the Bankruptcy of such other party;

(vi) At the option of InterSystems, upon written notice to the VAR, upon the circumstances described in Section 10(d) below; and

(vii) At the option of either party, upon written notice to the other party, upon the circumstances described in Section 14(b) or 17(b) below.

(b) In the event of the termination of this Agreement for any reason, and in addition to any other rights or remedies available to the parties:

(i) The VAR shall be liable for all unpaid License Fees or other charges due for the Licensed Software furnished and/or Services performed by InterSystems prior to the date of termination.

(ii) In the case of any Licensed Software which the VAR has licensed for its own use pursuant to the provisions of Section 2(b) of this Agreement and which the VAR desires to continue to use following the termination of this Agreement, InterSystems shall continue to license the same to the VAR following such termination upon the execution and delivery by the VAR of InterSystems’ then standard end user license agreement, which shall permit the VAR, without the payment of any additional License Fees, to use the Licensed Software for the unexpired term of the License originally executed with respect thereto. Notwithstanding the foregoing, InterSystems shall have no obligation to enter into any such end user license agreement or otherwise to continue or extend any such License for internal use if this Agreement has been terminated by InterSystems as a result of a default by the VAR with respect to its obligations under Sections 4(c), 4(d), 4(e), 9 or 17 hereof.

(iii) Subject to the provisions of Section 8(b) (ii) above, the VAR shall promptly return to InterSystems (or, at the request of InterSystems, shall destroy) the original and all copies, in whole or in part, in any form,

including partial copies or modifications, of the Licensed Software, System Documentation and any related materials furnished by InterSystems to the VAR hereunder which are then in the possession of or under the control of the VAR.

(iv) All Sublicense Agreements relating to the use of the Licensed Software between the VAR and Users (other than Affiliates of the VAR, to the extent permitted hereunder) executed prior to the effective date of such termination shall remain in full force and effect, provided that all payments required to be made to InterSystems in connection therewith continue to be made and that such Sublicense Agreements have not otherwise been terminated in accordance with their terms. Notwithstanding anything to the contrary contained herein, and subject to the preceding sentence, all obligations of the parties hereunder or under the Master Maintenance Agreement with respect to such Sublicense Agreements shall remain in full force and effect.

(v) Without limiting the generality of the provisions of Section 8(b) (iv) above, the provisions of Sections 7, 9 and 18 shall survive any termination of this Agreement.

9. Proprietary Rights and Confidentiality.

(a) The parties agree that the Licensed Software and related materials (including, without limitation, the System Documentation) furnished by InterSystems to the VAR hereunder have been developed by InterSystems as a trade secret at InterSystems’ expense and are, and shall remain, the sole property of InterSystems. Except as may be expressly provided in writing, InterSystems reserves to itself any and all property rights in and to all programs and systems developed by InterSystems for the VAR or any User arising out of work done by InterSystems on such programs and systems, regardless of fees or charges paid by the VAR. No right to print or copy, in whole or in part, any such Licensed Software, System Documentation or related materials is granted hereunder except as herein expressly provided.

(b) Except as expressly provided in this Agreement, the VAR agrees not to (i) decompile, disassemble or reverse engineer the Licensed Software or (ii) use or disclose or divulge to others any data or information relating to the Licensed Software and/or the technology, ideas, concepts, know-how and techniques embodied therein. Such obligation of confidentiality and nonuse shall

not be deemed to include disclosure or other use of such data or information to the extent that the same:

(i) is or becomes publicly known within the public domain (other than by acts attributable to the VAR or any of its officers, agents, shareholders, employees or representatives);

(ii) was known to the VAR prior to InterSystems’ disclosure thereof (other than through the business dealings of the VAR with InterSystems or any customer of InterSystems); or

(iii) has been or hereafter is independently conceived by the VAR.

(c) Information shall not be deemed to be in the public domain by reason of the general licensing and other commercial disposition of the Licensed Software by InterSystems in the ordinary course of its business. The existence of a copyright notice shall not cause, or be deemed or construed as causing, the Licensed Software or System Documentation to be a published copyright work or to be in the public domain.

(d) Nothing contained in this Section 9 shall prohibit the VAR or any of its officers, agents, shareholders, employees or representatives from:

(i) using his or its general technical skills when not otherwise inconsistent with the terms hereof; or

(ii) disclosing data or information pursuant to any enforceable administrative or judicial order, provided, however, that such data or information shall not be deemed to be in the public domain solely by reason of such order.

(e) The VAR further agrees:

(i) except for making one copy for back-up security purposes, not to copy, reproduce or duplicate, or allow to be copied, reproduced or duplicated, in whole or in part, the Licensed Software, System Documentation or any related materials furnished by InterSystems to the VAR hereunder without the prior written consent of InterSystems;

(ii) not to provide or otherwise make available any Licensed Software, System Documentation or related materials in any form to any other Person or organization; without the prior written consent of InterSystems; and

(iii) that it will take appropriate action with its officers, agents, shareholders, employees or representatives, by instruction, agreement or otherwise, to satisfy its obligations under this Agreement with respect to use, copying, modification, and protection and security of the Licensed Software, System Documentation and related materials. Without limiting the generality of the foregoing, the VAR shall in any event devote the same degree of care to protecting the Licensed Software and System Documentation as it devotes to the protection of its own confidential and proprietary information.

(f) In the event of any breach or threatened breach of the provisions of this Section 9, InterSystems shall, in addition to all other rights and remedies available to it at law or in equity, be entitled to a temporary or permanent decree or order restraining and enjoining such breach and the VAR shall not plead in defense thereto that there would be an adequate remedy at law, it being hereby expressly acknowledged and understood that damages at law will be an inadequate remedy in the event of such a breach or threatened breach.

(g) If, having complied with the foregoing provisions of this Section 9, the VAR has actual notice of any unauthorized possession, use or knowledge of any part of the Licensed Software or physical embodiment thereof, or of the System Documentation any other information made available pursuant to this Agreement by anyone else other than Persons authorized by this Agreement to have such possession, use or knowledge, the VAR agrees to notify InterSystems promptly of the circumstances surrounding such unauthorized possession, use or knowledge.

(h) InterSystems will not use or disclose to any other Person any confidential information or data relating to the business operations, practices, computer systems or methodologies of the VAR (which is identified as proprietary or confidential by a conspicuous legend or other markings or which would normally be deemed to be proprietary under then prevailing industry standards) to which InterSystems is exposed in the course of the installation or maintenance of the Licensed Software, and will take appropriate action, by instruction, agreement or otherwise, with its employees, agents and representatives, to insure that such obligations of confidentiality and nondisclosure are respected and satisfied.

10. Indemnification.

(a) Subject to the limitation of liability provisions contained in Section 7 above, the VAR shall, and hereby agrees to, indemnify, defend and hold harmless InterSystems, its officers, employees, agents and representatives, from and against any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and expenses) arising out of the defense of any claim arising from or based upon: (i) a breach by the VAR of any of its representations or warranties hereunder; or (ii) a claim or demand by a User or any other Person relating to the Products marketed by the VAR other than the Licensed Software and System Documentation.

(b) Subject to the limitation of liability provisions contained in Section 7 above, InterSystems shall, and hereby agrees to, indemnify, defend and hold harmless the VAR, its officers, employees, agents and representatives, from and against any and all claims, actions, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorney’s fees and expenses) arising out of the defense of any claim arising from or based upon (i) a breach by InterSystems of any of its representations or warranties hereunder; or (ii) a claim or demand by a User or any other Person which relates to the Licensed Software and/or System Documentation, and not to other Products (or components of Products) marketed by the VAR, or Services provided by InterSystems hereunder in connection with the Licensed Software and/or System Documentation, and not in connection with other Products (or components of Products) marked by the VAR.

(c) (i) The indemnities specified in Sections 10(a) and 10(b) above shall not apply to a specific claim, action, or allegation of infringement unless the party entitled to indemnification (the “Indemnitee”) shall have provided written notice of such claim, action, or allegation to the other party (the “Indemnitor”) as soon as practicable, and shall have granted the Indemnitor full opportunity to control the response thereto and the defense thereof, including without limitation any agreement relating to the settlement thereof; provided, however, that the Indemnitee shall have the right to monitor, at its expense, the Indemnitor’s defense of any such claim, action, or allegation and, if necessary to preclude a default judgment or other loss of rights, to file pleadings on its behalf in the event the Indemnitor fails to fulfill its obligation to defend the Indemnitee pursuant to this Section 10.

(ii) In the case of a claim based on a breach of the representation and warranty contained in Section 6(a) (iii) above, the indemnity specified in

Section 10 (b) shall not apply to any claim, action, or allegation of infringement to the extent that the claim, action, or allegation (or any judgment or order related thereto) is based upon: (a) the use by the VAR or any User of the Licensed Software in combination with other hardware or software not supplied, distributed or approved by InterSystems; (B) the modification or alteration by the VAR or any User of the Licensed Software in a manner that is not approved by InterSystems; or (C) the failure by the VAR or a User to implement a release or engineering change order for the Licensed Software, issued by InterSystems (which release or change order does not preclude the Licensed Software from meeting the standards specified in Section 6(b)).

(d) (i) In the event that the Licensed Software (or any component or part thereof) becomes the subject of any claim, action, or allegation of the type specified in Section 6(a) (ii), InterSystems shall promptly use all reasonable efforts at its expense: (A) to procure for the VAR or the User, as the case may be, the right to continue using the Licensed Software (or the applicable component or part thereof); or (b) if such continued use cannot be so procured, to modify it to become noninfringing; or (C) if such modification cannot be so implemented, to provide substitute hardware, software, or other products, components, or parts of similar capability acceptable to and approved by the VAR or the User, as the case may be, (which approval shall not be unreasonably withheld or delayed). In the event InterSystems is not reasonably able to comply with clauses (A) or (B) of this Section 10(d) (i), and if InterSystems is acting similarly with respect to other customers similarly situated, InterSystems shall have the right to terminate this Agreement upon thirty (30) days prior notice to the VAR, in which event InterSystems shall refund or give credit, or both, to the VAR for the License Fees theretofore paid by the VAR in respect of the infringing Licensed Software.

(ii) Each Sublicense Agreement shall contain a provision incorporating the terms of this Section 10 with respect to a claim that the Licensed Software (or any component or part thereof) violates the proprietary rights of any other Person and providing that such Sublicense Agreement may be terminated by the VAR under the circumstances described in Section 10(d) (i) above.

(e) The sole and exclusive remedy of the VAR in the event of any claim, action, or allegation of the type specified based on a breach of the representation and warranty contained in Section 6(a) (iii) above shall be the remedies and rights provided in paragraphs (b) through (d) of this Section 10.

THE FOREGOING STATES THE ENTIRE OBLIGATION OF INTERSYSTEMS WITH RESPECT TO THE INFRINGEMENT OF PATENTS, COPYRIGHTS AND OTHER PROPRIETARY RIGHTS.

11. Maintenance and Support.

(a) InterSystems shall provide to the VAR maintenance and support services relating to the Licensed Software upon the terms and conditions set forth in the Master Maintenance Agreement.

(b) If requested by a User, InterSystems may (but shall not be obligated to) provide maintenance and support directly to such User, provided that such User executes and delivers a Maintenance Agreement substantially in the form attached hereto as Exhibit C, and provided further that, in the case of any User, such User (A) is, in the sole discretion of InterSystems, an acceptable credit risk, and (B) is not a Competitor of InterSystems (as defined in Section 17).

(c) The VAR shall have the obligation to provide maintenance and support with respect to the Licensed Software to any User which does not request InterSystems to provide such maintenance and support directly.

12. Representations and Warranties of the VAR.

In order to induce InterSystems to enter into this Agreement, the VAR hereby represents and warrants as follows:

(a) The VAR is a corporation duly organized and existing in good standing under the laws of the State of Delaware.

(b) The VAR has full power, authority and legal right to enter into and perform this Agreement, and all other documents in connection herewith, and the execution, delivery and performance of such documents have been duly authorized, do not violate any judgment, order, law or regulation applicable to the VAR or any provision of the VAR’s certificate of incorporation or by-laws, or constitute a default under, or result in the creation of any lien, charge, encumbrance or security interest upon any assets of the VAR under, any agreement or instrument to which the VAR is a party or by which the VAR or its assets may be bound or affected.

(c) This Agreement, and all other documents executed in connection herewith, have been duly entered into and delivered and constitute legal, valid and binding obligations of the VAR enforceable in accordance with the respective terms thereof.

(d) The VAR has not and will not, directly or indirectly, create, incur, assume or suffer to exist any lien, charge, encumbrance, claim or security interest on or with respect to the Licensed Software, title thereto or any interest therein.

13. Financial Information and Reports.

(a) The VAR shall furnish to InterSystems semi-annually a statement identifying each Sublicense Agreement executed by the VAR, together with any use of the Licensed Software by the VAR or its Affiliates, that occurred during the period in question, and identifying the request for approval relating to each such Sublicense Agreement or other use, accompanied by a letter from a duly authorized officer of the VAR certifying that such statement is true and correct.

(b) The VAR will at all times give InterSystems or its agents or representatives reasonable access to its premises and will permit the examination, copying, and extracting from its books and records and will from time to time furnish and make available to InterSystems all such information as InterSystems may reasonably request in order to verify the reports and payments due hereunder. InterSystems agrees that, during the period of this Agreement and at any time thereafter, InterSystems will not disclose any such information or data to any third person or to any of InterSystems’ officers, employees or agents not involved in or responsible for the performance of this obligation. In the event that the VAR reasonably believes (and so notifies InterSystems) that any such examination, copying and/or extracting from its books and records would result in the unacceptable disclosure of confidential or proprietary information of the VAR, a mutually acceptable third party, which shall be nationally recognized accounting firm, shall be designated by InterSystems and the VAR. Such mutually acceptable third party shall render a certification as to the matter in question. The costs of obtaining any such certification shall be borne equally by the parties. Any such accounting firm shall be required to execute a nondisclosure agreement in form and substance reasonably acceptable to the VAR prior to any such examination and related actions.

(c) The VAR will permit InterSystems to examine copies of Subcontracts executed with Users in order to enable InterSystems to verify that such Subcontracts comply with the provisions of this Agreement.

14. Government Requirements and Approvals.

(a) This Agreement is subject to all present and future regulations and restrictions of the governments of the United States or any other country and the agencies thereof and the parties herein agree that they will not ship or divert for use in encumbrance, claim or security interest on or with respect to the Licensed Software, title thereto or any interest therein.

13. Financial Information and Reports.

(b) The VAR will at all times give InterSystems or its agents or representatives reasonable access to its premises and will permit the examination, copying, and extracting from its books and records and will from time to time furnish and make available to InterSystems all such information as InterSystems may reasonably request in order to verify the reports and payments due hereunder. InterSystems agrees that, during the period of this Agreement and at any time thereafter, InterSystems will not disclose any such information or data to any third person or to any of InterSystems’ officers, employees or agents not involved in or responsible for the performance of this obligation. In the event that the VAR reasonably believes (and so notifies InterSystems) that any such examination, copying and/or extracting from its books and records would result in the unacceptable disclosure of confidential or proprietary information of the VAR, a mutually acceptable third party, which shall be a nationally recognized accounting firm, shall be designated by InterSystems and the VAR. Such mutually acceptable third party shall render a certification as to the matter in question. The costs of obtaining any such certification shall be borne equally by the parties. Any such accounting firm shall be required to execute a nondisclosure agreement in form and substance reasonably acceptable to the VAR prior to any such examination and related actions.

14. Government Requirements and Approvals.

use in an:/ country or countries any of the Licensed Software or technical data with respect thereto in contravention of the laws and regulations of such governments and the departments and agencies thereof, or knowingly cause or permit such shipping or diversion without the prior written approval of such government(s). Each party shall prepare and submit and shall use it’s best efforts to obtain all required governmental approvals to the execution and delivery of this Agreement and to the actions contemplated hereby. Without limiting the generality of the foregoing, the VAR acknowledges that its exportation of the Licensed Software and System Documentation may be subject to the compliance with the United States Export Administration Act of 1979, as amended, and rules and regulations promulgated from time to time thereunder (collectively, the “Act”), which restrict the export and re-export of certain products and technical data. The VAR warrants and represents that it will not export or re-export outside the United States the Licensed Software and System Documentation, whether directly or indirectly, and will not cause, approve or otherwise intentionally facilitate other such agents, subsequent purchasers, licensees or any other third parties in so doing without obtaining required licenses under the Act. The VAR agrees to indemnify InterSystems against any claim, losses, liability or damage suffered or incurred by InterSystems arising out of or relating to any intentional violation by the VAR of any of the provisions or covenants contained in this Section; provided, however, that the foregoing indemnity shall not apply if the VAR reasonably relies on information supplied to it by InterSystems with respect to export licenses and provided further that InterSystems complies with the provisions of Section 10(c) in the event of any such claim, losses, liability or damages. Both parties shall immediately notify the other party in writing of any governmental consent it receives for such export, upon receipt of any such governmental consent.

(b) In the event that any material provision, term, condition, or object of this Agreement may be in conflict with any law, measure, ruling, court judgment (by consent or otherwise), or regulation of the government of the United States of America or any other country in which the VAR conducts business, or any department thereof, and the legal counsel of either party shall advise that in its considered opinion such conflict, or a reasonable possibility of such conflict exists, then either party may propose to the other appropriate modifications of this Agreement to avoid such conflict. In such case, if an agreement of modification is not reached within sixty (60) days, the party making such proposal, after thirty (30) days written notice to the other party, may terminate this Agreement in its entirety, as of a date subsequent to such thirty (30) days, and which shall be specified in said notice, and, subject to the provisions of Section 8, neither party shall have any further rights, obligations or remedies hereunder.

15. Approvals.

Whenever either party under this Agreement shall be required to secure the approval or consent of the other party, such approval or consent shall not be unreasonably withheld or delayed.

16. Construction.

This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts.

17. Benefit and Assignment.

(a) Except as provided in Sections 17(b) and 17(c) below, this Agreement shall be binding upon and inure to the benefit of the legal representatives, successors and assigns of InterSystems and the Customer.

(b) Notwithstanding the provisions of Section 17(a) above, neither party (the “Assigning Party”) shall have the right, without the prior written consent of the other party (the “Nonassigning Party”), to assign or transfer, voluntarily or involuntarily, by operation of law or otherwise, this Agreement, or its rights and obligations hereunder, to a Competitor of the Nonassigning Party (as defined in Section 17(c) below). If the Nonassigning Party does not consent to any such assignment or transfer to a Competitor, the Assigning Party shall have the option, upon thirty (30) days prior written notice to the Nonassigning Party, to terminate this Agreement.

(c) For purposes of this Agreement, the term “Competitor” shall mean, with respect to a specific party, a Person engaged in the same or a substantially similar line of business as such party and who is not an Affiliate of such party.

(d) Any dispute with respect to the issue of whether a specified Person is a “Competitor” for purposes of this Section 17 shall be referred immediately to, and settled by, binding arbitration in accordance with the rules of the American Arbitration Association. InterSystems and the VAR each shall select one arbitrator and a third arbitrator will be selected by the two arbitrators selected by the parties. Each arbitrator so selected shall be generally familiar with the computer industry. If the two arbitrators selected by the parties are unable to select a third arbitrator within ten (10) days of the filing of the demand or

submission for arbitration, the parties will consent to the selection of the third arbitrator by the Boston, Massachusetts office of the American Arbitration Association. Unless otherwise agreed to by the parties, arbitration will take place at Boston, Massachusetts. At the request of either party, arbitration proceedings will be conducted in the utmost secrecy; in such case all document, testimony and records will be received, heard, and maintained by the arbitrators in secrecy under seal, available for inspection only of the parties and their respective attorneys and experts, who will agree, in advance in writing, to receive all such information confidentially and to maintain such information in secrecy until such information will be come generally known. The parties shall use their best efforts to consummate any arbitration proceedings within sixty (60) days following the commencement of such proceedings. Judgment upon the award may be entered in any court having jurisdiction thereof.

18. Remedies and Jurisdiction.

(a) Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. No delay by InterSystems or the VAR in exercising any of its rights or remedies hereunder upon, a breach by the other party shall be deemed to be a waiver of such rights or remedies. No express or implied waiver by either party of any breach by the other party hereunder shall in any way be, or be construed to be, a waiver of any future or subsequent breach.

(b) The VAR hereby irrevocably consents and agrees that any action or proceeding against the VAR for the purpose of enforcing the rights of InterSystems hereunder, may be instituted in the Superior Court of Suffolk County, Massachusetts, and hereby irrevocably waives any objection which the VAR may now have or hereafter may have to the venue of any such action or proceeding, and irrevocably submits to the jurisdiction of such court in any such action or proceeding. The VAR hereby irrevocably authorizes, appoints and designates CT Corporation System (such firm and any successor thereto being herein called the “Agent”) as the agent of the VAR upon whom summons and/or legal process in any such action or proceeding may be served. The VAR hereby directs the Agent promptly to notify the VAR of its receipt of any such summons and/or legal process by notice in the manner provided in Section 19, and to forward any and all such summons and/or legal process to the VAR in the manner provided in Section 19. The VAR further irrevocably consents and agrees that the service of any such summons and/or legal process upon the Agent designated above, and the mailing of a copy of such summons and/or

legal process by the Person instituting such action or proceeding to the VAR in the manner provided in Section 19, shall in every respect constitute sufficient and effective service of process upon the VAR in any such legal action or proceeding in such court. The VAR agrees to take any and all action necessary to continue such designation and appointment of the Agent as the Agent of the VAR for such service of process in full force and effect. Should the Agent become unable or unwilling to serve in such capacity for any reason, the VAR, upon request by such capacity for any reason, the VAR, upon request by InterSystems, shall forthwith designate a new Agent in Suffolk County, Massachusetts, for the purposes of this paragraph. The VAR further agrees that final judgment against the VAR in any such legal action or proceeding shall be conclusive and may be enforced in any other jurisdiction within or outside the United States of America, by suit on such judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and of the amount of the obligations of the VAR thereunder.

19. Notices.

All notices required or permitted to be given or delivered to any party hereunder shall be in writing, and shall be deemed to be given when delivered by hand, transmitted by telex or telecopier or other similar facsimile transmission, or when deposited in the United States mail, certified and postage prepaid, to the parties at the following addresses, or such other address as either party shall hereafter furnish to the other in writing:


INTERSYSTEMS:		INTERSYSTEMS CORPORATION
		One Memorial Drive Cambridge, MA 02142 Attention: Phillip T. Ragon, President

		with a copy to: William F. Machen, Esq. Sherburne, Powers & Needham One Beacon Street Boston, MA 02108

VAR:		THE COMPUCARE COMPANY
		12355 Sunrise Valley Drive Reston, VA 22091 Attention:


		with a copy to:
		M. Gary LaFever, Esq.
		Hogan & Hartson
		8300 Greensboro Drive
		McLean, VA 22102

20. Scope of Agreement.

This document, together with the Schedules and Exhibits attached hereto, all of which shall operate as a single, integrated contract, constitutes the entire Agreement between the parties, and no representation, condition, understanding or agreement of any kind shall be binding on the parties unless incorporated herein. In the event of a conflict between the terms of this Agreement and the terms of any purchase order or similar document executed in connection herewith, the terms of this Agreement as so defined shall govern. This Agreement may not be modified or amended except by an agreement in writing signed by the party against whom the enforcement of any modification or change is being sought.

21. Relationship.

The relationship between InterSystems and the VAR under this Agreement is intended to be that of licensor and licensee. Nothing in this Agreement is intended to be construed so as to constitute InterSystems and the VAR as partners or joint venturers, or either party hereto as the employee or agent of the other party hereto, or the employees or agents of either party hereto as employees or agents of the other party hereto. Except as expressly set forth herein, neither party hereto has any express or implied right or authority under this Agreement to assume or create any obligations in behalf of or in the name of the other party hereto or to bind the other party hereto to any contract, agreement or undertaking with any third party.

22. Severability.

In the event that any provision of this Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful, or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be unlawful, invalid or unenforceable shall not be affected thereby, and each remaining provision of this Agreement shall continue to be valid and may be enforced to the fullest extent permitted by law.

IN WITNESS WHEREOF, the parties have executed this Agreement under seal as of the day, month and year set forth above.


INTERSYSTEMS:		INTERSYSTEMS CORPORATION

		By:

VAR:		THE COMPUCARE COMPANY

		By:

EXHIBIT A TO VAR AGREEMENT

Any Sublicense Agreement between the VAR and a User shall contain the following terms and conditions:

1. No Representations or Warranties.

INTERSYSTEMS MAKES AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONDITION, MERCHANTABILITY, TITLE, DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE OF THE LICENSED SOFTWARE OR ANY OTHER REPRESENTATION OR WARRANTY WATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED SOFTWARE.

2. Limitation of Liability.

InterSystems shall have no liability of any kind to the User, whether direct or indirect, for any loss or damage suffered by the User or its employees, agents or representatives, or customers or patients using the facilities or retaining the services of the Users, as a result of or arising out of the Licensed Software.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL INTERSYSTEMS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF INTERSYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

3. Proprietary Rights and Confidentiality.

(a) The Licensed Software and related materials (including, without limitation, the System Documentation) have been developed by InterSystems as a trade secret at InterSystems’ expense and are, and shall remain, the sole property of InterSystems. No right to print or copy, in whole or in part, any such Licensed Software, System Documentation or related materials is granted hereunder except as herein expressly provided.

(b) Except as expressly provided in this Agreement, the User agrees not to (i) decompile, disassemble or reverse engineer the Licensed Software or (ii) use or disclose or divulge to others any data or information relating to the Licensed Software and/or the technology, ideas, concepts, know-how and techniques embodied therein. Such obligation of confidentiality and nonuse shall not be deemed to include disclosure or other use of such data or information to the extent that the User can prove the same:

(i) is or becomes publicly known with the public domain (other than by acts attributable to the User or any of its officers, agent, shareholders, employees or representatives);

(ii) was known to the User prior to InterSystems’ disclosure thereof (other than through the business dealings of the User with InterSystems or any customer of InterSystems); or

(iii) has been or hereafter is independently conceived by any officer, agent, shareholder, employee or representative of the User, which or who has not had access to such information from InterSystems or any of its customers.

Information shall not be deemed to be in the public domain by reason of the general licensing and other commercial disposition of the Licensed Software by InterSystems in the ordinary course of its business. The existence of a copyright notice shall not cause, or be deemed or construed as causing, the Licensed Software or System Documentation to be published copyright work or to be in the public domain.

(c) Nothing contained in this Section shall prohibit the User or any of its officers, agents, shareholders, employees or representatives from:

(i) using his or its general technical skill when not otherwise inconsistent with the terms hereof; or

(ii) disclosing data or information pursuant to any enforceable administrative or judicial order, provided, however, that the User first notifies InterSystems of the entry or existence of such order and of the User’s intention to comply with its terms. Data or information shall not be deemed to be in the public domain solely by reason of any such order.

(d) The User further agrees:

(i) except for back-up security purposes, not to copy, reproduce or duplicate, or allow to be copied, reproduced or duplicated, in whole or in part, the Licensed Software, System Documentation or any related materials without the prior written consent of InterSystems; and

(ii) not to provide or otherwise make available any Licensed Software, System Documentation or related materials in any form to any other Person or organization, without the prior written consent of InterSystems; and

(iii) that it will take appropriate action with its officers, agents, shareholders, employees or representatives, by instruction, agreement or otherwise, to satisfy its obligations under this Agreement with respect to use, copying, modification, and protection and security of the Licensed Software, System Documentation and related materials. Without limiting the generality of the foregoing, the Customer shall in any event devote the same degree of care to protecting the Licensed Software and System Documentation as it devotes to the protection of its own confidential and proprietary information.

(e) In the event of any breach or threatened breach of the provisions of this Section, InterSystems shall, in addition to all other rights and remedies available to it at law or in equity, be entitled to a temporary or permanent decree or order restraining and enjoining such breach and the User shall not plead in defense thereto that there would be an adequate remedy at law, it being hereby expressly acknowledged and understood that damages at law will be an inadequate remedy in the event of such a breach or threatened breach.

(f) If, having complied with the foregoing provisions of this Section, the User has actual notice of any unauthorized possession, use or knowledge of any part of the Licensed Software or physical embodiment thereof, or of the System Documentation any other information made available pursuant to this Agreement by anyone else other than Persons authorized by this Agreement to have such possession, use or knowledge, the User agrees to notify InterSystems promptly of the circumstances surrounding such unauthorized possession, use or knowledge.

(g) The user shall not remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Licensed Software or any related materials or System Documentation in the User’s possession.

NOTE: Capitalized terms used above shall have the definitions contained in the VAR Agreement. Other terms used in the VAR’s standard Software License Agreement may be substituted for adversely affect the substance, scope, intent or enforceability of the foregoing provisions.

EXHIBIT B

REQUEST FOR APPROVAL

Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Distribution Agreement dated , 19 by and between INTERSYSTEMS CORPORATION and (the “VAR”).


To:		InterSystems Corporation
		One Memorial Drive
		Cambridge, MA 02142
		FAX: (617) 494-1631

From:

The undersigned hereby intends to:


¨		Use the Licensed Software for its own purposes (or in connection with the business and operations of an Affiliate) on a CPU located at:
		______________________________________________________________________________________________________________________
		______________________________________________________________________________________________________________________
		______________________________________________________________________________________________________________________
		______________________________________________________________________________________________________________________


¨		Sublicense the Licensed Software to the User whose name is set forth below:
		______________________________________________________________________________________________________________________
		______________________________________________________________________________________________________________________
		______________________________________________________________________________________________________________________
		______________________________________________________________________________________________________________________

Delivery Date to VAR: Installation Date at Users Site:

Licensed Software Configuration


		Concurrent Processes

¨	M/SQL	_________

¨	M/PACT Full Function	_________

¨	M/PACT Application Specific	_________

¨	M/WINDOWS Full Function	_________

¨	M/NET	_________

¨	M/PACT VAR Master System	_________

¨	M/WINDOWS VAR Master System	_________

Licensed Computer

Manufacturer: Model #:

Serial #: # of Disk Controllers & Type:

Operating System: Version:

Distribution Medium


¨	Key only	¨	Magnetic reel tape (density )
¨	Diskette (type	¨	Cartridge tape (type )

Payment Terms

( ) U.S. Dollars due and payable upon installation of the Licensed Software.

( ) U.S. Dollars per month for maintenance, commencing 30 days after installation.

It is hereby requested that ISC approve the disposition of the Licensed Program(s) for the purposes set forth above.


Requestor ( )		Approval (InterSystems)

By		By
Dated		Dated

EXHIBIT C

MASTER MAINTENANCE AGREEMENT

AGREEMENT executed as of the 26^th day of June, 1989, by and between INTERSYSTEMS CORPORATION, a Massachusetts corporation with its principal place of business in Cambridge, Massachusetts (“InterSystems”) and the VAR (as hereinafter defined).

RECITALS

1. InterSystems and the VAR have entered into a value added remarketing agreement (the “VAR Agreement”) pursuant to which InterSystems has granted to the VAR the right to use and sublicense certain computer software (the “Licensed Software”).

2. The VAR desires InterSystems to maintain, and InterSystems has agreed to maintain, the Licensed Software upon the terms and conditions hereinafter provided.

NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

Capitalized terms used herein and not otherwise defined shall have the following meanings:

“Affiliate” means, as to a specified Person, (i) any Entity controlling, controlled by or under common control with such Person, or (ii) any surviving or acquiring Entity resulting from a merger, consolidation, or other business combination or acquisition involving such Person. In the case of the Customer, the term “Affiliate” also shall include a facility, whether or not constituting an Entity, which is owned or managed by the Customer.

“Agreement” means this Agreement, as it may be amended from time to time.

“Contract Year” shall mean each twelve (12) month period during the term hereof.

“Effective Date” means the date of this Agreement.

“Enhancements” means improvements and updates to the Licensed Software which relate to operating performance but do not change the basic function of the Licensed Software and which are part of the standard InterSystems enhancement package for such Licensed Software. The term “Enhancements” shall not include (a) new products or (b) upgrades in existing software which increase the assigned number of jobs which such software is permitted to run.

“Entity” means any general partnership, limited partnership, corporation, joint venture, trust, business trust, cooperative or association.

“Initial Contract Period” shall have the meaning set forth in Section 4(a).

“Installation Site” means the site of the installation of the Hardware and Licensed Software.

“Licensed Software” shall have the meaning set forth in the VAR Agreement.

“Products” shall have the meaning set forth in the VAR Agreement.

“Services” means the maintenance and support services to be provided by InterSystems to the VAR or to Users pursuant to the terms of this Agreement.

“User” shall have the meaning set forth in the VAR Agreement.

“VAR” means, the Compucare Company, a Delaware corporation with its principal place of business in Reston, Virginia. Except as otherwise specifically provided herein or unless the context otherwise requires, the term “VAR” also shall include Affiliates of the VAR who are granted rights to use or sublicense the Licensed Software or who receive Services from InterSystems hereunder or under the VAR Agreement.

2. Maintenance Services.

In consideration of the payments to be provided by the VAR hereunder, InterSystems shall, during the term of this Agreement, provide the following Services:

(a) InterSystems shall promptly provide corrections, modifications or additions to the Licensed Software in the event that the VAR notifies InterSystems of any errors in the Licensed Software. The VAR shall assist InterSystems in identifying the circumstances in which any such errors are discovered and, if requested by InterSystems, shall document the existence of the same. If InterSystems in its reasonable judgment determines that any error reported by the VAR is uncorrectable or would require an inordinate amount of time and money to correct, the obligation of InterSystems to make corrections contained in this Section 2(a) shall not apply to such error. In such a case, where the error prevents the VAR or a User, as the case may be, from successfully using the Licensed Software for its intended purpose and where no application-level change to avoid the error is reasonably available to the VAR, the VAR may (i) continue to use the Licensed Software as is or (ii) cease to use the Licensed Software and return it to InterSystems for a partial license fee refund. Such refund will be calculated based on a seven (7) year useful life commencing on the Software Installation Date, and the original license fee paid will be pro rated to reflect the portion of a useful life remaining after the Licensed Software is returned. In no event shall InterSystems have any responsibility to correct any database errors or any errors or damages caused by or arising out of hardware defects or input errors or resulting from VAR or User changes without the express written approval of InterSystems. If any errors are determined to have arisen by reason of the errors or negligence of the VAR or any User, including, without limitation, changes or modifications of the type described in the preceding sentence or the failure to use and operate the Licensed Software in accordance with the System Documentation, the Customer shall compensate InterSystems for any services performed by InterSystems at the VAR’s request to correct such problem at InterSystems’ the current rates for such services and shall reimburse InterSystems for all reasonable travel expenses incurred in connection with the performance of such services.

(b) InterSystems shall, from time to time during the term of this Agreement, furnish to the VAR Enhancements which are, in the reasonable judgment of InterSystems, compatible with the Products marketed by the VAR which incorporate the Licensed Software.

(c) InterSystems will provide remote or, if and to the extent deemed necessary by InterSystems in its reasonable judgment, on-site customer service support and consultation during the normal business hours of InterSystems.

(d) InterSystems may (but shall not be obligated to) provide technical, operational or other assistance or consulting services to the Customer in addition to the Services described above at InterSystems’ standard rates then in effect.

(e) InterSystems will not knowingly attempt to persuade Users who receive maintenance services for the Licensed Software from the VAR to contract directly with InterSystems for such maintenance services. However, this provision shall not prevent InterSystems from generally advertising or promoting its products and services. In the event that any User requests that InterSystems provide direct maintenance services, InterSystems shall so notify the VAR and shall cooperate reasonably with the VAR in recommending that such User continue to receive maintenance services from the VAR. If, despite such recommendation, the User continues to request direct maintenance services from InterSystems, then InterSystems shall have the right, in its sole discretion, to provide such services directly to the User.

(f) InterSystems may cease offering maintenance services with respect to any Licensed Software by giving written notice to the VAR not less than three (3) years prior to the date when such cessation of maintenance is to become effective.

3. Fees and Charges.

(a) In consideration of the Services described in Section 2 above, the VAR shall pay to InterSystems, commencing on the date of this Agreement and continuing thereafter so long as the obligations of the parties under this Agreement remain in effect, monthly service fees in the amounts specified in Schedule A attached hereto. Such fees shall be payable monthly in advance. InterSystems may increase or decrease the monthly service fees at any time or from time to time by giving written notice of such increase or decrease to the VAR not less than sixty (60) days prior to the date which such increase or decrease is to take effect. The service fees charged hereunder shall not be substantially in excess of those charged in standard transactions to other United States private sector value added remarketers who license substantially the same amount of Licensed Software from InterSystems as does the VAR.

(b) In addition to the sums specified in Section 3(a) above, the VAR agrees to reimburse InterSystems for all reasonable travel costs and other expenses incurred by InterSystems in connection with Services performed at the Installation Site, and for all

reasonable telephone charges incurred by InterSystems in connection with Services performed pursuant to this Agreement, provided that InterSystems has notified the VAR in advance of the intention of InterSystems to incur such costs or expenses and the VAR has approved the same. Invoices listing such costs and expenses, together with supporting receipts where required, shall be submitted at reasonable intervals by InterSystems and shall be payable within thirty (30) days after receipt by the VAR. The provisions of this Section 3(b) shall not apply to costs and expenses incurred by InterSystems in correcting errors in the Licensed Software pursuant to Section 2(a) hereof.

(c) In the event that the VAR desires reinstatement of the Services provided hereunder following a termination of this Agreement pursuant to Section 4 below by reason of an Event of Default, the VAR shall pay, in addition to the fees and charges set forth above, (i) a reinstatement fee in an amount equal to the then current monthly maintenance fee multiplied by the greater of (A) the number of months between the date of termination and the date of reinstatement (pro rated for partial months) or (B) six, and (ii) one additional month’s maintenance fee as an advance against the payments due in respect of the reinstated Services. In addition, the VAR shall be required to pay any unpaid monthly maintenance fees allocable to the period prior to termination. The reinstatement fee referred to in clause (i) of this Section 3(c) is intended to compensate InterSystems for research and development costs and services incurred by InterSystems in upgrading and improving the Licensed Software during the period between the termination and reinstatement of this Agreement.

(d) Any federal, state or local excise, sales, use or other taxes (other than taxes based upon the net income of InterSystems) imposed in respect of any Services performed shall unless otherwise required by law, be added to and paid as part of the service fees specified in Section 3(a) above. In the event that InterSystems is required to pay any such tax (other than taxes based upon the net income of InterSystems), the VAR shall promptly reimburse InterSystems for the same upon presentation of evidence of such payment.

4. Term and Termination.

(a) This Agreement shall be effective from and after the Effective Date and shall remain in full force and effect for a term of twenty (20) years (the “Initial Contract Period”) from the Effective Date, unless renewed or extended as hereinafter provided or sooner terminated in accordance with the provisions of this Section 4.

(b) Subsequent to the Initial Contract Period this Agreement shall be automatically renewed from year to year unless either party shall notify the other, not less than ninety (90) days prior to the end of any Contract Year, that it does not intend to renew, in which event this Agreement shall terminate and, except as specifically provided herein, neither party shall have any further rights or obligations hereunder.

(i) The receipt of notice from either party of its intention not to renew pursuant to and in accordance with Section 4(b) hereof:

(ii) At the option of either party (referred to in this Section 4 as the “Nondefaulting Party”) upon written notice to the other party (referred to in this Section 4 as the “Defaulting Party”), after the occurrence of an Event of Default (as defined in Section 4(d) below) by the Defaulting Party;

(iii) Upon termination of the VAR Agreement for any reason; or

(iv) At the option of the VAR, thirty (30) days after notice of any increase in the monthly service fees pursuant to Section 3(a), provided that the VAR notified InterSystems of its intention to so terminate within seven (7) days of the VAR’s receipt from InterSystems of such notice of an increase.

(d) The following events shall constitute Events of Default:

(i) The VAR shall fail to make any payment of the charges referred to in Section 3 when the same shall become due and payable and such failure shall continue for a period of fifteen (15) days after notice thereof from InterSystems to the Customer..

(ii) Either party (the “Defaulting Party”) shall fail in any material respect to perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder, and such failure shall continue unremedied for a period of thirty (30) days after receipt of written notice thereof by the other party (the “Nondefaulting Party”) to the Defaulting Party.

(e) In addition to, or as an alternative to, terminating this Agreement if an Event of Default occurs, the Nondefaulting Party may, at its sole option, (i) proceed to pursue any and all available legal or equitable remedies against the Defaulting Party and/or (ii) without being under any obligation whatsoever to do so, negotiate a settlement with the Defaulting Party providing for extensions of time of payment or performance by the Defaulting Party on such terms as may be acceptable to the Nondefaulting Party and the Defaulting Party.

5. Construction.

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.

6. Benefit and Assignment.

(a) Except as provided in Sections 6(b) and 6(c) below, this Agreement shall be binding upon and inure to the benefit of the legal representatives, successors and assigns of InterSystems and the VAR.

(b) Notwithstanding the provisions of Section 6(a) above, neither party (the “Assigning Party”) shall have the right, without the prior written consent of the other party (the “Nonassigning Party”), to assign or transfer, voluntarily or involuntarily, by operation of law or otherwise, this Agreement, or its rights and obligations hereunder, to a Competitor of the Nonassigning Party (as defined in Section 6(c) below). If the Nonassigning Party does not consent to any such assignment or transfer to a Competitor, the Assigning Party shall have the option, upon thirty (30) days prior written notice to the Nonassigning Party, to terminate this Agreement.

(c) For purposes of this Agreement, the term “Competitor” shall mean, with respect to a specified party, a Person engaged in the same or a substantially similar line of business as such party and who is not an Affiliate of such party.

(d) Any dispute with respect to the issue of whether a specified Person is a “Competitor” for purposes of this Section 6 shall be referred immediately to, and settled by, binding arbitration in accordance with the rules of the American Arbitration Association. InterSystems and the VAR each shall select on arbitrator and a third arbitrator will be selected by the two arbitrators selected by the parties. Each arbitrator so selected shall be generally familiar with the computer industry. If the two arbitrators selected by the parties are unable to select a third arbitrator within ten (10) days of the filing of the demand or submission for arbitration, the parties will consent to the selection of the third arbitrator by the Boston, Massachusetts office of the American Arbitration Association. Unless otherwise agreed to by the parties, arbitration will take place at Boston, Massachusetts. At the request of either party, arbitration proceedings will be conducted in the utmost secrecy; in such case all document, testimony and records will be received, heard, and maintained by the arbitrators in secrecy under seal, available for inspection only of the parties and their respective attorneys and experts,

who will agree, in advance in writing, to receive all such information confidentially and to maintain such information in secrecy until such information will become generally known. The parties shall use their best efforts to consummate any arbitration proceedings within sixty (60) days following the commencement of such proceedings. Judgment upon the award may be entered in any court having jurisdiction thereof.

7. Remedies.

No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. No delay by InterSystems or the VAR in exercising any of its rights or remedies hereunder upon a breach by the other party shall be deemed to be a waiver of such rights or remedies. No express or implied waiver by either party of any breach by the other party hereunder shall in any way be or be construed to be a waiver of any future or subsequent breach.

8. Notices.


INTERSYSTEMS:		INTERSYSTEMS CORPORATION
		One Memorial Drive
		Cambridge, MA 02142
		Attention: Phillip T. Ragon, President


		with a copy to:
		William F. Machen, Esq.
		Sherburne, Powers & Needham
		One Beacon Street
		Boston, MA 02108

VAR:		THE COMPUCARE COMPANY
		12355 Sunrise Valley Drive
		Reston, VA 22091
		Attention:

		with a copy to:
		H. Gary LaFever, Esq.
		Hogan & Hartson
		8300 Greensboro Drive
		McLean, VA 22102

9. Scope of Agreement.

This document constitutes the entire Master Maintenance Agreement between the parties, and no representation, condition, understanding or agreement of any kind shall be binding on the parties unless incorporated herein. In the event of a conflict between the terms of this Agreement and the terms of any purchase order or similar document executed in connection herewith, the terms of this Agreement as so defined shall govern. This Agreement may not be modified or amended except by an agreement in writing signed by the party against whom the enforcement of any modification or change is being sought.

10. Severability.

In the event that any provision of this Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful, or unenforceable to any extent, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be unlawful, invalid or unenforceable, shall not be affected thereby, and each remaining provision of this Agreement shall continue to be valid and may be enforced to the fullest extent permitted by law.

11. Use of Name.

Neither party shall use the name of the other party in any advertising, promotional or other materials, or disclose the terms of this Agreement to any other Person, without the consent of the other party or as required by law.

IN WITNESS WHEREOF, the parties have executed this Agreement under seal as of the day, month and year set forth above.



INTERSYSTEMS:		INTERSYSTEMS CORPORATION

		By:

VAR:		THE COMPUCARE COMPANY

		By:

SCHEDULE A

M/SQL Software Products

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