Application Service Provider Agreement

Exhibit 10.1


EXALT SOLUTIONS, INC. APPLICATION SERVICE PROVIDER AGREEMENT

THIS AGREEMENT is by and between eXalt Solutions, Inc., a Massachusetts corporation, with offices at 98 Kinnaird St., Suite B, Cambridge, MA 02139 (" eXalt" ) and the following Customer:


Customer:

Source Atlantic Inc., as incorporated in STATE OR

COMMONWEALTH OF Delaware

Customer Address: 55 Accord Park Dr Rockland, Ma

Attention: Chris Sanborn

Tel: 781-871-8500

Facsimile: 781-871-1059

E-mail: c.Sanborn@sourceatlantic.com


eXalt agrees to provide to Customer application services and hosting services, including server networking and hardware, for the modules of proprietary software set forth on Schedule A , subject to the attached Terms and Conditions of this Agreement:


Executed under seal as of 16 May 2003 (the " Effective Date" ).


EXALT SOLUTIONS, INC.

CUSTOMER:

Source Atlantic Inc By:

/s/ By:

/s/

Name: Leslie Swanson

Name: Chris Sanborn

Title: President

Title: Vice President Operations


1

MASTER TERMS AND CONDITIONS


ARTICLE I DEFINITIONS.

1.1" Application Service Provided Content" shall mean the Customer Content as augmented by the eXalt Matter, generated through the use of the Software.

1.2" Application Services" shall mean the Application Services described on Schedule A , as such Schedule A may be amended from time to time upon the mutual written agreement of the parties hereto, and the Application Service Provided Content. Customer may elect additional Application Services during the Term through the parties' execution of an additional or amended Schedule A .

1.3" Authorized Syndication" shall mean the downloading or exporting of " Machine Readable Content for Syndication" from the eXalt repository, using the Syndication Module, by licensed users authorized by Customer. Such Authorized Syndication users shall be subject to a license agreement consistent with the terms attached hereto as Exhibit 1 to Schedule H . Authorized Syndication is not meant to include the downloading or exporting of any incidental excerpts which occur through the normal permitted use of the Bill of Materials and/or Catalogue Modules.

1.4" Brand Features" shall mean the trademarks, service marks, logos and other distinctive brand features of eXalt or Customer, as applicable. 1.5" Customer Content" shall mean, collectively all text, data, images, sounds, photographs, illustrations, graphics, programs, code and other materials, that are purchased or otherwise owned by Customer or that are developed by Customer or on behalf of Customer by any third party other than eXalt, whether prior to or during the term of the Agreement and (a) that are (i) provided by Customer to eXalt in accordance with the terms of Schedule H , as the same may be amended from time to time, or (ii) collected by eXalt in connection with the Application Services, and (b) reside in the eXalt repository. 1.6" Error" means any error, problem, or defect resulting from an incorrect functioning of Application Services, if such an error, problem, or defect causes the Application Services to materially fail to meet their applicable specifications as provided in this Agreement.

1.7" eXalt Matter" shall mean, collectively, all materials, domain name(s) and similar information, data and materials collected and/or owned by eXalt, which is accessible or available through the Application Services, including without limitation rules, relationships and indices pertaining to, and augmentation of, Customer Content, but not including the underlying Customer Content. 1.8" Intellectual Property Rights" shall mean all rights in and to trade secrets, patents, copyrights, trademarks, know-how, and similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.

1.9" Machine Readable Content" means the Customer Content, or any portion thereof, in machine readable format. 1.10" Software" shall mean the software/code underlying the Application Services, including any eXalt technology or technology licensed by eXalt from third parties used to develop, operate, maintain and enhance such Software, including content presentation technology, tools, security technology, authorization scripts, and technology containing any of the foregoing.

ARTICLE II EXALT OBLIGATIONS. 2.1 Content : eXalt shall customize the Customer Content, which when used in conjunction with the Software and the eXalt Matter, shall produce the Application Service Provided Content, pursuant to the specifications and/or other requirements attached hereto as Schedule C .


2 2.2 Project Manager : eXalt and Customer shall each select one (1)-program manager who will be responsible for directing and overseeing all activities regarding this Agreement and for transmitting and receiving all communications regarding this Agreement on behalf of its respective party. Each party may change its designated program manager at any time effective upon providing written notice to the other party.

2.3" Go Live" Procedures eXalt shall make available the ability for Customer to view and review the Application Services prior to going live with the Customer' s site. During such review period, Customer and eXalt will determine mutually acceptable performance levels for the Application Services in accordance with the criteria set forth in Schedule D . Within fourteen (14) days after making the ability to view the Application Services available, Customer may provide eXalt with a written list of desired reasonable modifications to the viewer experience, in accordance with the established criteria. eXalt will use commercially reasonable efforts to make the requested modifications and shall make the modified site available to the Customer within a commercially reasonable period of time given the number and complexity of the modifications. 2.4 Software and Hosting Services : eXalt will provide access to the Application Services via the Internet to Customer and Authorized Syndications. eXalt may elect to host the Software or, alternatively, subcontract for such services with third party application hosting providers (" third party provider" ) in its discretion. In the event that eXalt subcontracts with a third party application hosting provider, such provider' s terms and conditions of service are attached as Schedule E . Customer acknowledges that it has read such terms and conditions of service and agrees to be bound thereby, to the extent that such terms and conditions are applicable to Customer. In the event that eXalt elects to change its third party provider, eXalt shall use commercially reasonable efforts to find a third party provider that shall continue to provide comparable services and shall notify Customer of such third party provider' s terms and conditions. Customer shall review and to the extent reasonable, agree to be bound to any new or additional terms. eXalt shall use commercially reasonable efforts to provide up-to-date virus scanning software, to safeguard passwords, to use and maintain firewalls, and to maintain the Application Services in a secure environment. Subject to the performance level criteria described in Schedule D , eXalt does not warrant that any hosting service or the server that makes it available are free of viruses or other harmful components or that Customer, end users and other third parties will have uninterrupted access to such server. Whether or not eXalt provides such services directly, eXalt and its third party providers do not and cannot control the flow of data to or from servers to other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third party providers. At times, actions or inactions caused by these third party providers can produce situations in which availability of hosting services may be impaired or disrupted. In addition, Customer agrees that neither eXalt nor its suppliers shall, under any circumstances, be held responsible or liable for situations where the data stored or communicated through the Application Services are accessed by third parties through illegal or illicit means including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws which may exist. Although eXalt will not systematically monitor content which is submitted by third parties to, stored on or distributed via any hosting service, eXalt reserves the right, in its reasonable discretion, to edit or delete any information or other content regardless of whether use of such material is otherwise permitted under applicable law or this Agreement. eXalt disclaims any and all liability resulting from or related to such events described in this Section 2.4. In the event of service outages at the Credit Threshold level determined in accordance with Schedule D , eXalt shall appropriately credit Customer' s account as more fully set forth in Schedule D . Such credits shall be Customer' s exclusive remedy with respect to outages. THIS SECTION 2.4 STATES EXALT' S AND ITS SUPPLIERS' ENTIRE LIABILITY AND CUSTOMER' S EXCLUSIVE REMEDY FOR SERVICE OUTAGES.

2.5 Maintenance and Support . In addition to the license granted by eXalt to Customer pursuant to Section 3.2 of this Agreement, eXalt will provide maintenance and support services for the Application Services in accordance with Schedule F and this Section 2.5. When Customer suspects an Error in the Application Services, it shall submit a listing of output and such data as required to reproduce operating conditions similar to those present when the suspected Error occurred. eXalt will use commercially reasonable efforts to address any Application Services Errors resulting from and replicated in the Application Services during the term of this Agreement. If the corrections are necessary due to Customer Content, Third-party Content (as defined in 5.2) or as a result of a Customer' s requested changes in the operating environment, then upon Customer' s request, eXalt may provide corrections at eXalt' s then prevailing rates.


3 2.6 Software Enhancements . eXalt shall perform the Software enhancements for Customer as described in Exhibit I, Software Enhancements, Scope of Service. Changes to the Scope of Services may only be made in writing executed by both parties.

2.7 Custom Modifications . Any custom modifications to the Software which Customer may request are beyond the scope of this Agreement and shall be subject to eXalt' s standard terms and conditions then in effect and a separate written agreement between the parties.


ARTICLE III LICENSE; OWNERSHIP

3.1 Use of Application Services . The access to and use of the Application Services by the Customer shall be subject to this Agreement, and to privacy policies, which privacy policies may be amended by eXalt, from time to time, in eXalt' s sole and reasonable discretion. The privacy policy of eXalt shall be comparable to policies of similar types of companies providing similar services and as such shall not unreasonably restrict the use of the Application Services. In the event of amendment of any such privacy policies, eXalt will use commercially reasonable efforts to notify Customer in advance of such modifications or, if not commercially reasonable, notify Customer promptly following such modifications.

3.2 Grant of License by eXalt . Subject to the terms herein, eXalt hereby grants Customer for the term of this Agreement, a non-exclusive, non-transferable license to (i) use the Application Services, via the Internet, to produce, cache, display and transmit the Application Service Provided Content, (ii) use and modify the Machine Readable Content, for the purpose of updating the data repository, and (iii) copy, download, and export any incidental excerpts of the Application Service Provided Content which occur through the normal permitted use of the Customer Content, such as print, CD ROM or Website development. Except as specifically stated within this section 3.2, or as required in the event of a release of the source code and related materials, for the limited purpose of Customer' s internal support from escrow under Section 3.5 of this Agreement to Customer, Customer may not modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Application Services or Software or any other work found at, aggregated at, contained on, distributed through, linked to or from, downloaded to or from or in any other manner accessed from the Application Services; copy (including copying onto a bulletin board or similar system) the Application Services, Software or eXalt Matter; rent, lease, grant a security interest in, or otherwise transfer rights to the Application Services, Software or eXalt Matter or remove any proprietary notices or labels from the Application Services, Software or eXalt Matter. The parties acknowledge and agree that the Software Enhancements to the Planning and Budgeting Modules that eXalt shall provide pursuant to Section 2.6 shall be licensed in accordance with the license to Customer for the Application Services. eXalt further agrees that the Software Enhancements created solely for the Planning and Budgeting Modules shall not be licensed by eXalt to any hospitals, or to any architects, general contractors or group purchasing organizations that derive the majority of their revenue from the capital equipment planning, procurement, forecasting, cost estimation, design and development as it applies to purchases of capital equipment by hospitals (" Competing Entities" ) for a period of time equal to the shorter of three years from the Effective Date of this Agreement or the termination of this Agreement pursuant to Article X. The foregoing exclusion shall not prevent eXalt from (i) licensing to such Competing Entities the Software or providing similar Application Services to such Competing Entities, so long as the Software Enhancements are not included; (ii) from marketing and selling subscription agreements to any Competing Entity or (iii) from licensing the Software Enhancements to distributors.

3.3 Grant of License by Customer . Subject to the terms and conditions of this Agreement, Customer hereby grants to eXalt: (i) a non-transferable (except as provided herein), non-exclusive, worldwide, royalty-free license to use and modify the Customer Content solely in connection with the provision of the Application Services and any necessary activities related thereto, and to sublicense the Customer Content as part of the Application Service Provided Content; and (ii) for the term of this Agreement, a non-transferable (except as provided herein) non-exclusive, worldwide, royalty-free license to use, reproduce and display the Customer Brand Features in connection with the provision of the Application Services; provided, however, that all such use, reproduction and/or display of Customer Brand Features are in accordance with reasonable trademark guidelines and restrictions specified by Customer. Exalt will immediately discontinue use of Customer' s Brand Features upon: any expiration of termination of the Agreement.


4 3.4 Syndication . During the Term of this Agreement, eXalt shall have the non-exclusive right to publish or distribute and the exclusive right to syndicate Customer Content through the Internet, and Customer shall not permit any other person to so syndicate such Customer Content, on the Internet. Customer shall not itself distribute the Machine Readable Content nor grant to any other entity the right to distribute the Machine Readable ...