AGREEMENT BETWEEN VEMICS INC AND THE PULMONARY HYPERTENSION ASSOCIATION
Exhibit 10.23
BETWEEN
VEMICS
INC
AND
THE
PULMONARY HYPERTENSION ASSOCIATION
This
AGREEMENT, consisting of the terms and conditions set forth below and the
attached exhibits, each of which is incorporated into and made a part hereof by
this reference ( ''Agreement''), is entered into as of June 28, 2007, (the
''Effective Date''), by and between Vemics, Inc a Nevada corporation
(''VEMICS''), having its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and The Pulmonary Hypertension Association, Inc (
The Association), a Florida non-profit corporation having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
BACKGROUND
VEMICS
and The ASSOCIATION are both involved in serving the medical community with
certain educational and other complementary services. VEMICS provides
connectivity for distribution of information and knowledge over its iMedicor
Portal and other technology platform(s) and interface connections; and The
ASSOCIATION provides community to its membership, connectivity to its membership
base, access to content and presenters of clinically relevant information for
medical professional, The Associations, societies and accreditation
bodies, companies and other entities that would be interested in
utilizing The ASSOCIATION’S services and access to its membership as approved by
its Board of Directors. The parties will work together to introduce The
ASSOCIATION’S medical membership to the iMedicor Portal which will allow members
to exchange HIPPA compliant medical records, invite their community into the
Portal for collaboration, referrals and consults. The iMedicor portal will also
offer additional services such as, but not limited to access to CME and CEU
accredited educational programs, offered in a variety of formats, e-prescribing
services, and a variety of educational resources, The Vemics Live Access visual
communication service and the NuScribe voice recognition transcription service.
The basic iMedicor service of HIPPA compliant electronic transfer of medical
records, community, referrals and consultations will be a free service to The
ASSOCIATION’S medical membership. Upgrades to additional services such as the
LiveAccess and the Transcription service will be available at a modest premium
(expected to be priced at approximately $100.00). The combined iMedicor Portal
services will provide a unique, electronic, internet based communications system
solution for delivery of HIPPA compliant transfer of medical records and
reports, access to educational / training content and consultation,
collaboration and business meetings.
The
definition of the Education / Medical Market, for the purposes of this
Agreement, is specifically intended to include those individuals and/or
organizations, professional societies, physicians, allied health care
professionals, caregivers, teachers, students and families involved in the care
and development of people seeking treatment, advice or other services within the
field of pulmonary hypertension. (Hereinafter referred to as “Medical
Market”).
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, VEMICS and The ASSOCIATION agree
as follows:
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TERMS
AND CONDITIONS
1.
Appointment; Territory; Limitations; Relationship of Parties
(a)
Appointment
Subject
to all of the terms and conditions in this Agreement, VEMICS hereby appoints The
ASSOCIATION to act, during the term of this Agreement, as its non-exclusive
global representative authorized to offer the iMedicor Portal and any other
VEMICS' Products and Services (the ''VEMICS Services'') as approved by The
ASSOCIATION’S Board of Directors to the membership of The ASSOCIATION (''The
ASSOCIATION Membership'') specifically in the Medical Market (as defined
herein). The ASSOCIATION hereby accepts said appointment.
(b)
Territory
The
ASSOCIATION shall be authorized to offer the iMedicor Portal and other approved
VEMICS Services globally.
(c)
No Restrictions on a Party's Activities
Each
party acknowledges that this Agreement is non-exclusive and, except as expressly
set forth in section 1(f) of this Agreement, nothing in this Agreement shall
limit in any manner any party's marketing, distribution or revenue generating
activities.
(d)
Freedom of Action; Certain Restrictions
Except
as provided in section 1(f) of this Agreement, each party may directly or
indirectly (through The ASSOCIATION or otherwise) market, sell, offer or provide
any of its respective products or services to any customer within the Territory
and during or after the Term.
(e)
No Agency
VEMICS
and The ASSOCIATION each acknowledge and agree that the relationship established
by this Agreement is that of independent contractors, and nothing contained in
this Agreement shall be construed to: (i) give either party the power to direct
or control the day-to-day activities of the other; (ii) deem the parties to be
acting as co-owners or otherwise as participants in a joint ownership
undertaking; or (iii) permit either party or any of either party's officers,
directors, employees, agents or representatives to create or assume any
obligation on behalf or for the account of the other party for any purpose
whatsoever.
(f)
Mutual Non- Exclusivity
Vemics
hereby grants The ASSOCIATION the non-exclusive right to offer its products and
services globally to its membership specifically and limited to the Medical
Market as defined herein.
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2.
License Grant; Restrictions; Customer Agreements
(a)
License Grant
Subject
to all terms and conditions of this Agreement, VEMICS hereby grants to The
ASSOCIATION during the Term of this Agreement the
non-exclusive, nontransferable right and license to offer its
iMedicor service to The ASSOCIATION'S membership together with all related
software (the ''Software'') and other intellectual property, and documentation
(the ''Documentation'') that are necessary or appropriate to enable The
ASSOCIATION to provide VEMICS Services (the VEMICS Software and such other
intellectual property and the Documentation are collectively sometimes referred
to as ''VEMICS Intellectual Property'') to The ASSOCIATION’S
membership.
(b)
License Restrictions
The
ASSOCIATION shall not appoint any other person, firm, or entity as a
sub-distributor or agent for VEMICS Services without obtaining advance written
approval from VEMICS. The ASSOCIATION shall not, for itself, for any affiliate
of The ASSOCIATION or for any third party: sell, sublicense, assign, or transfer
the Software or any Documentation, except as permitted under this
Agreement. Furthermore, The ASSOCIATION agrees that is shall not
decompile, disassemble, or reverse engineer the VEMICS
Software.
(c)
Membership Terms and Conditions; Right of VEMICS to Restrict
Content
All
use of VEMICS Services by The ASSOCIATION will be subject to the execution and
delivery by each of The ASSOCIATION medical membership of a written, binding
agreement that contains, at a minimum, the relevant terms and conditions set
forth in this Agreement transaction and the VEMICS Standard Terms and Conditions
as well as no terms or conditions that are inconsistent with the terms or
conditions contained in this Agreement (the ''Membership Agreement''). This
documentation occurs upon individual registration at the iMedicor Portal site
the first time The ASSOCIATION’S member attempts to use the portal.
Notwithstanding any registration of a prospective member, if VEMICS subsequently
becomes aware that the content of any of The ASSOCIATION'S members is illegal it
shall notify The ASSOCIATION thereof and unless the illegal content is removed
within Five (5) business days after such notice, VEMICS may take steps to
prevent such illegal content from being routed to, passed through or stored on
or utilized within VEMICS' network. VEMICS shall promptly notify The ASSOCIATION
and the applicable member of such removal of any of The ASSOCIATION’S membership
content pursuant to the foregoing provisions.
3. Marketing Efforts; Promotional
Materials
(a) Efforts
The
ASSOCIATION shall use its best reasonable commercial efforts to: (i) offer and
support VEMICS Services, specifically the iMedicor Portal site to its membership
in the Territory; (ii) dedicate adequate resources, financial and otherwise, and
maintain facilities and staff, to market, resell and support VEMICS Services in
accordance with The ASSOCIATION'S obligations under this Agreement, in a timely,
diligent and professional manner using competent personnel; (iii) keep VEMICS
informed as to any problems encountered by The ASSOCIATION'S membership or by
The ASSOCIATION with the VEMICS Services or any VEMICS Intellectual Property,
and Vemics will communicate to The ASSOCIATION any resolution or proposed
resolutions relating to such problems. All information concerning The
ASSOCIATION'S Membership shall be deemed Confidential Information of The
ASSOCIATION in accordance with the provisions of Section 10 of this
Agreement.
(c)
Promotional Materials; Marketing
VEMICS
will provide The ASSOCIATION with a reasonable amount of sales and marketing
literature relating to the VEMICS Services specifically the iMedicor Portal
site. The exact form and quantity of such literature will be determined jointly
by VEMICS and The ASSOCIATION and be based upon the needs and dictates each of
specific project requirements. The ASSOCIATION shall adhere to VEMICS'
Guidelines, Rules and Procedures then in effect, and The ASSOCIATION shall not
make any representations or statements regarding VEMICS Services other than
those contained in the sales and marketing literature and promotional materials
provided to The ASSOCIATION by VEMICS, without the prior written approval of
VEMICS. Upon reasonable advance notice from VEMICS, The ASSOCIATION shall
discontinue use of any marketing literature or promotional materials that VEMICS
or The ASSOCIATION no longer deems acceptable.
(d)
Quality Control
Each
party acknowledges the importance of upholding the good reputation of the other
party and its respective products and services. Accordingly, each party agrees
that it will maintain at all times during the Term of this Agreement the highest
quality controls, business practices and ethics in performing its obligations
and exercising its rights under this Agreement and will comply with all
applicable laws and regulations.
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(e)
Publicity
On or
about the Effective Date, the parties agree to issue a joint press release
announcing the relationship contemplated by this Agreement. The press release
shall be subject to the written approval of each party, which approval shall not
be unreasonably withheld or delayed. During the term of this Agreement, subject
to the restrictions contained in Section 5 below, each party may post on its web
site the other party's logo and/or a hyperlink to the other party's web site, to
use the other party's name in connection with proposals to other prospective
customers and otherwise refer to the other party and the co-branded service
offering contemplated herein in print or electronic form for marketing or
reference purposes.
(f)
Customers / Members
Subject
to VEMICS obtaining specific advance written consent from The ASSOCIATION’S
membership, VEMICS shall be entitled to reference The ASSOCIATION'S Membership,
in general, not specific (names addresses etc) on VEMICS' web site and in
marketing materials as a VEMICS Services client. All data pertaining to any of
The ASSOCIATION’S membership shall be deemed Confidential Information in
accordance with the provisions of Section 10 of this Agreement. In addition, no
party shall use any data pertaining to any of The ASSOCIATION’S membership in a
manner that is inconsistent with VEMICS' published privacy policy, the
applicable Customer Agreement, or applicable legal
requirements.
The
ASSOCIATION membership shall be such medical professional who are members or
associates of The ASSOCIATION at the time of the signing of this Agreement and
those customers that are introduced to the VEMICS System (specifically iMedicor)
solely by The ASSOCIATION efforts as the result of this
Agreement. VEMICS customers shall be such customers who are customers
of VEMICS at the time of the signing of this Agreement and those customers that
are introduced to the VEMICS System solely by VEMICS efforts as the result of
this Agreement. In the event that a Customer is presently and/or in the future a
customer or member of both parties to this Agreement, as defined herein, then
they shall remain deemed jointly Customers or members of both The ASSOCIATION
and VEMICS.
4.
The ASSOCIATION Use of LiveAccess, Personnel Training; Customer
Support
(a)
Use of the LiveAccess System
As
part of this agreement, Vemics will offer The ASSOCIATION up to 27 concurrent
users in its LiveAccess Visual Communications System at no cost to The
ASSOCIATION. The use of this system is to familiarize The ASSOCIATION’S Board of
Directors, Executive Committees and other Committees with the LiveAccess System.
This offer includes 27 Kits (Camera, Microphone and Headset with Microphone) and
unlimited use of the system for one year and customization of the server to
reflect The ASSOCIATION’S look, feel and logo. After the one year anniversary
Vemics, at its sole discretion can continue the current offer or offer the
continued service to The ASSOCIATION for a fee not to exceed $299.00 per license
initial fee plus $100.00 per month for unlimited use per
license.
(b) Training
VEMICS
shall provide to The ASSOCIATION’S designated authorized users of the LiveAccess
System, at VEMICS' training facility, or, on-line, or, if VEMICS elects, at The
ASSOCIATION’S facilities: (i) a reasonably sufficient number of training
sessions and source training material to reasonably enable The ASSOCIATION'S
authorized users and support staff to become knowledgeable about the
capabilities and operation of, and support for, the VEMICS LiveAccess Service.
Such training to include, at The ASSOCIATION'S request, a reasonable number of
joint VEMICS/The ASSOCIATION on-site calls, and (ii) technical consulting
services and training to reasonably ensure that The ASSOCIATION has the internal
capability to, among other things, use the service to The ASSOCIATION'S
authorized users. Each party shall be responsible for the travel, lodging and
meal expenses of its employees who attend any training session, if
required.
(b)
Customer Support
VEMICS
will provide technical support to The ASSOCIATION and their customers to
whatever extent is required to successfully deploy the LiveAccess System for its
internal use. VEMICS shall provide technical support directly to any of The
ASSOCIATION’S authorized users in accordance with VEMICS' standard technical
support terms and conditions.
5.
Content Responsibility; Intellectual Property Rights
(a)
Customer Content
In the
event that The ASSOCIATION becomes aware of any of The ASSOCIATION’S Member
Content (the ''Member Content'') that is being placed on and/or is utilizing the
VEMICS Service: (a) violates or infringes upon the intellectual property or
other rights of any third party, (b) distributes any libelous, defamatory,
pornographic or obscene material, or (c) violates any laws or regulations
applicable to such Member Content, The ASSOCIATION shall notify the applicable
member of the violation and request that such member remove such Member Content
so that it will not be routed to or pass through VEMICS' network. If such member
fails to comply with The ASSOCIATION’S request within a reasonable period of
time, The ASSOCIATION shall notify VEMICS of the
non-compliance. VEMICS may then remove such Member Content pursuant
to and in manner set forth in the Membership Agreement. The ASSOCIATION’S
Membership shall be solely responsible for maintaining the availability of the
member computer and network systems, the connectivity of such computers and
network systems to the Internet, and all Member Content, IP addresses, domain
names, hyperlinks, databases, applications and other resources necessary for The
ASSOCIATION’S Membership to access the VEMICS Services.
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(b)
The ASSOCIATION’S Content
(i)
The ASSOCIATION’S Conditions of
Use: The ASSOCIATION shall be solely and exclusively responsible for (1)
all The ASSOCIATION’S content and activity; (2) obtaining legal written
permission from the right holder to display and/or utilize any material on the
Vemics System or through its other services (specifically iMedicor Portal); and
(3) ensuring that The ASSOCIATION content of the web site does not violate the
laws of the jurisdiction where the content is displayed. The ASSOCIATION
furthermore hereby agrees to comply with the requirements of the Communications
Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA), and shall
require its subscribers in writing to so comply.
(ii)
Limitations on The ASSOCIATION
Content
The
ASSOCIATION shall not intentionally place or cause to be placed on the Vemics
System unacceptable material or activity which includes, but is not limited
to:
(A)
defamatory or other tortuous activity;
(B)
criminal activity, including but not limited to theft of trade secrets, fraud,
child pornography, trafficking in obscene material, violation of US export
provisions, drug dealing, gambling, harassment, stalking, spamming, hacking,
sending of viruses or other harmful files, or illegal posting of computer
passwords or computer code for the purpose of circumventing copyright security
measures;
(C)
infringing activity including, but not limited to, the unauthorized display of
confidential, secret, or other proprietary material, trademark infringement,
copyright infringement, or patent infringement.
(iii) Compliance with Lawful Authorities:
VEMICS will comply with all subpoenas and court orders that appear to be
lawful and valid, including subpoenas and court orders requesting information
about The ASSOCIATION or its use of the Service, without prior notice to The
ASSOCIATION. VEMICS reserves the right to report activity that it believes to be
potentially criminal to the appropriate law enforcement
agencies.
(iv)
Indemnification against Third
Party Claims:
(A) The ASSOCIATION agrees to
defend, indemnify, and hold harmless VEMICS, its affiliates and the respective
officers, directors, employees, and agents, from and against all actions, third
party civil or criminal claims, liabilities, losses, damages and expenses,
including but not limited to reasonable attorneys' fees, arising out of or
relating to the use of the VEMICS System material supplied by The ASSOCIATION
for use on the VEMICS System or, arising out of or relating to any content
provided by The ASSOCIATION or by The ASSOCIATION'S use of VEMICS's services.
Such indemnification shall operate whether or not VEMICS has been put on notice
of a claim.
(B) VEMICS agrees to defend,
indemnify, and hold harmless The ASSOCIATION, its affiliates and its and their
respective officers, directors, employees, and agents, from and against all
actions, third party civil or criminal claims, liabilities, losses, damages and
expenses, including but not limited to reasonable attorneys' fees, arising out
of or relating to the use of the VEMICS System supplied by VEMICS. Such
indemnification shall operate whether or not The ASSOCIATION has been put on
notice of a claim.
(c)
Intellectual Property and VEMICS Services
As
between VEMICS and The ASSOCIATION or any Member of The ASSOCIATION’S, VEMICS
shall own all right, title and interest in and to the Intellectual Property and
VEMICS Services. The ASSOCIATION acknowledges that the Software, Documentation,
and VEMICS Services includes proprietary information and trade secrets which are
the sole and exclusive property of VEMICS or its licensors and that the
Software, Documentation and VEMICS Services are or may be protected by patent,
copyright, trade secret and/or similar laws and certain international treaty
provisions. The following shall not, however, be considered to be proprietary
information and trade secrets belonging to VEMICS: (i) information which is
publicly known or which becomes publicly known through no fault of The
ASSOCIATION’S; (ii) information which is lawfully obtained by The ASSOCIATION
from a third party; and (iii) information which is the lawful possession of The
ASSOCIATION prior to such information having been initially disclosed by VEMICS
pursuant to this Agreement. This Agreement does not transfer or convey to The
ASSOCIATION or any of The ASSOCIATION’S Members or any third party any right,
title or interest in or to the Intellectual Property of VEMICS Services or any
associated intellectual property rights, but only a limited right of use which
is revocable in accordance with the terms of this Agreement and any Membership
Agreement. Nor does this Agreement transfer any ownership or copyright interest
in any intellectual property owned by The ASSOCIATION to VEMICS except as
provided for in this Agreement.
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6.
Marks; Usage Restrictions
Either
party's use, display or reference to the other party's proprietary indicia,
trademarks, service marks, trade names, logos, symbols and/or brand names
(collectively ''Marks'') shall be subject to the advance written approval of
that party, which approval shall not be unreasonably withheld. Neither party may
remove, destroy or alter the other party's Marks. Each party agrees that it
shall not challenge or assist others in challenging the rights of the other
party or its suppliers or licensors in the Marks or the registration of the
Marks, or attempt to register any trademarks, service marks, trade names, logos,
symbols, brand names or other proprietary indicia confusingly similar to the
Marks. All use of a party's Marks, including but not limited to use of any
co-branded logo comprised of each party's Marks, shall be subject to such
party's logo and trademark usage guide, as provided to the other party and as
the same may be updated from time to time. Neither party grants any rights in
the Marks or in any other trademark, trade name, service ▇▇▇▇, business name or
goodwill of the other except as expressly permitted hereunder or by separate
written agreement of the parties.
7.
Fees; Pricing; Credits and Payment Terms
(a)
Prices; Fees
VEMICS'
and The ASSOCIATION, together, agree that any project both parties undertake
that results in generation of revenue will be agreed to in advance in terms of
scope of work, time lines, deliverables, designated activities and financial
considerations, royalties and any other fees identified as an amendment to this
agreement on an individual basis.
8.
Representations and Warranties
(a)
VEMICS's Representations and Warranties
VEMICS
represents and warrants that: (i) VEMICS and its licensors now and will
throughout the Term, own or possess the necessary rights, title and licenses in
and to the Intellectual Property and to operate the VEMICS Products and/or
Services, (ii) VEMICS has and will have throughout the Term the right to enter
into this Agreement and to perform its obligations hereunder, (iii) VEMICS has
obtained any and all consents, approvals and other authorizations necessary for
the performance of its obligations hereunder, (iv) the Intellectual Property and
the VEMICS Products and/or Services do not and will not throughout the Term
violate or infringe upon the intellectual property or other legal rights of any
other party, (v) the operation of the VEMICS Products and/or Services is and
will be throughout the Term in compliance with all applicable, material laws,
rules and regulations of all relevant governmental authorities, and (vi) the
VEMICS Products and/or Services will be operated throughout the Term
substantially in conformity with its specifications.
(b) The ASSOCIATION’s Representations and
Warranties
The
ASSOCIATION represents and warrants that: (i) The ASSOCIATION has and will have
throughout the Term the right to enter into this Agreement and to perform its
obligations hereunder, and (ii) The ASSOCIATION has obtained any and all
consents, approvals and other authorizations necessary for the performance of
its obligations hereunder.
(c)
Warranty Disclaimer
EXCEPT
AS SPECIFICALLY PROVIDED IN THIS SECTION 8, BOTH PARTIES EXPRESSLY DISCLAIM ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY
LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NEITHER PARTY SHALL MAKE
ANY REPRESENTATIONS OR WARRANTIES ON THE OTHER'S BEHALF WITHOUT SUCH OTHER
PARTY'S EXPRESS WRITTEN CONSENT.
9.
Confidential Information.
(a)
"Confidential Information" as used in this Agreement shall mean any and all
technical and non-technical information including but not limited to patent,
copyright, trade secret, and proprietary information, techniques, sketches,
drawings, models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programs, software source documents, and formulae related
to the current, future, and proposed products and services of each of the
parties and it’s affiliates, and includes, without limitation, each of the
parties and their affiliates information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing, customer
lists, business forecasts, sales and merchandising, and marketing plans and
information. "Confidential Information" also includes proprietary or
confidential information of any third party that may disclose such information
to either party in the course of the other party's business. All Confidential
Information disclosed both orally and in writing by the disclosing party
("Discloser") will be considered Confidential Information by the receiving party
("Recipient") and subject to terms of this Agreement, even if such information
is not conspicuously designated as "Confidential" or even when provided orally
and not identified as confidential at the time of disclosure.
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(b) Recipient
hereby agrees that it will not make use of, disseminate, or in any way disclose
any Confidential Information of the Discloser to any person, firm, or business,
except to the extent necessary for negotiations, discussions, and consultations
with personnel and/or authorized representatives of the Discloser, any purpose
of the Discloser authorized by this agreement and any purpose the Discloser may
hereafter authorize in writing. Recipient hereby also agrees that it will use
the Confidential Information disclosed by Discloser for informational purposes
only. Recipient hereby further agrees that it shall not use the Confidential
Information of Discloser in the production and/or the providing of any products
and/or services now or in anytime in the future, other than permitted under this
Agreement.
(c)
Recipient agrees that it shall treat all Confidential Information of Discloser
with the same degree of care as it accords to its own Confidential Information,
and Recipient represents that it exercises reasonable care to protect its own
Confidential Information.
(d)
Recipient hereby agrees that it shall disclose Confidential Information of the
Company only to those of its officer(s), manager(s), and/or employee(s) who need
to know such information and certifies that such officer(s), manager(s), and/or
employee(s) have previously agreed, either as a condition of employment or in
order to obtain the Confidential Information, to be bound by terms and
conditions substantially similar to those of this Agreement.
(e)
Recipient will immediately give notice to Discloser of any unauthorized use or
disclosure of the Confidential Information. Recipient agrees to assist Discloser
in remedying any such unauthorized use or disclosure of the Confidential
Information.
(f)
Upon the request of the Discloser and/or termination of this Agreement, the
Recipient will promptly return all confidential information furnished hereunder
and all copies thereof.
(g)
Employees. During the term of this Agreement and for a period of two (2) years
thereafter, The ASSOCIATION will not directly or indirectly: (a) solicit or
encourage any employee of VEMICS to leave the employ of VEMICS; or (b) hire any
employee who has left the employ of VEMICS if the hiring is proposed to occur
within one year after the termination of the employee's employment with VEMICS.
In addition, during the term of this Agreement and for a period of two (2) years
thereafter, VEMICS will not directly or indirectly: (a) solicit or encourage any
employee of The ASSOCIATION to leave the employ of The ASSOCIATION; or (b) hire
any employee who has left the employ of The ASSOCIATION if the hiring is
proposed to occur within one year after the termination of the employee's
employment with The ASSOCIATION; (c) solicit the medical membership of the The
Association for any reason.
(h)
Consultants. During the term of this Agreement and for a period of two (2) years
thereafter, The ASSOCIATION will not directly or indirectly solicit or encourage
any consultant then under contract with the VEMICS to cease work for VEMICS.
During the term of this Agreement and for a period of two (2) years thereafter,
VEMICS will not directly or indirectly solicit or encourage any consultant then
under contract with The ASSOCIATION to cease work for The
ASSOCIATION.
(i) Clients. For
a period of two (2) years after the termination of this
Agreement, For a period of two (2) years after the termination of
this Agreement, Vemics will not directly or indirectly solicit any customer
introduced by The ASSOCIATION. For purposes of this Agreement, VEMICS Customers
shall not include those Companies and/or Individuals that The ASSOCIATION had a
documented business relationship with prior to the inception of this Agreement
and/or Customers that were not introduced to The ASSOCIATION by VEMICS. In
addition, for purposes of this Agreement, The ASSOCIATION Customers shall not
include those Companies and/or Individuals that VEMICS had a documented business
relationship with prior to the inception of this Agreement and/or Customers that
were not introduced to VEMICS by The ASSOCIATION.
(j)
Remedies. In the event of a breach or a threatened breach of any of the
Provisions and/or Covenants set forth in this Section 9 of the Agreement above
(the ''Covenants''), the non-breaching party will, in addition to the remedies
provided by law, have:
(1)
the right and remedy to have the Covenants specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any material
breach of any of the Covenants will cause irreparable injury to the
non-breaching party and that money damages will not provide an adequate remedy
to the non-breaching party; and
(2)
the right and remedy to require a person to account for and pay over to the
non-breaching party all compensation, profits, moneys, accruals, increments or
other benefits (collectively the ''Benefits'') derived or received by the
Breaching Party as a result of any transactions constituting a breach of any of
the Covenants, and Breaching Party hereby agrees to account for and pay over the
Benefits to the non-breaching party.
(k)
The obligations of the parties set forth in this paragraph 10 of this Agreement
shall survive the termination of this agreement.
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10.
Term and Termination
(a)
Term; Initial Term; Renewals
This
Agreement shall become effective as of the Effective Date and remain in full
force and effect for a period of six (6) months. , (the ''Initial Term''). At
any time pior to the expiration of the Initial Term, this Agreement
may be renewed by The Association for a one year additional
term (''Renewal Term''). The Initial Term, together with
any and all Renewal Terms, is sometimes collectively referred to as the
''Term.''
(b)
Termination Upon Default
Either
party may terminate this Agreement in the event that the other party materially
breaches the terms of the Agreement or defaults in performing any obligation
under this Agreement and such breach or default continues unremedied for a
period of 30 days following written notice of default.
(c)
Termination Upon Insolvency
This
Agreement shall terminate, effective upon delivery of written notice by a party:
(i) upon the institution of insolvency, receivership or bankruptcy proceedings
or any other proceedings for the settlement of debts of the other party; (ii)
upon the making of a general assignment for the benefit of creditors by the
other party; or (iii) upon the dissolution of the other party.
(d)
Effect of Termination
Except
for the provisions in Sections 8, 9 and 12 herein, all rights
and obligations of the parties shall cease upon termination of this Agreement.
The term of any license or rights granted hereunder shall expire upon expiration
or termination of this Agreement and all kits that have not been paid for will
either be returned or paid for at such time.
11. Jurisdiction
Disputes
(a)
This Agreement shall be governed by the laws of the State of New
York.
(b)
All disputes hereunder shall be resolved in the applicable state or federal
courts in the County of Rockland in the State of New York. The parties consent
to the jurisdiction of such courts, agree to accept service of process by mail,
and waive any jurisdictional or venue defenses otherwise
available.
12.
General Indemnification
(a)
Limited Covenant to Defend Infringement Claims by Third
Parties.
Each
party (the ''Indemnitor''), at its own expense and subject to the terms and
conditions of this Section 12, will (i) defend claims brought against the other
party, its permitted assignees and licensees, agents, officers and employees
(the ''Indemnitee'') by third parties (other than affiliates of the Indemnitee)
that, if true, would constitute a breach by the Indemnitor of its
representations and warranties set forth in this Agreement, and (ii) will
indemnify and hold the Indemnitee harmless from and against any damages to real
or tangible personal property and/or bodily injury to persons, including death,
resulting from the negligence or willful misconduct of the employees or agents
of the Indemnitor.
(i)
Right to Replace
If a
claim of infringement under this Section occurs, or if Indemnitor determines
that a claim is likely to occur, Indemnitor will have the right, in its sole
discretion, to either: (i) procure for Indemnitee and its Customers the right or
license to continue to use the Software free of the infringement claim; or (ii)
replace or modify the Software to make it non-infringing provided that the
replacement software substantially conforms to Indemnitor's then-current
specification for the Software. If these remedies are not reasonably available
to Indemnitor, Indemnitor may, at its option, terminate this Agreement without
liability, other than liability that may arise under Section 12(b), and
Indemnitor shall return any fees paid by Indemnitee in respect of Indemnitor
Services not provided.
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(ii)
Limitations
Despite
the provisions of this Section 12, Indemnitor has no obligation with respect to
any claim of infringement that is based upon or arises out of: (i) any
modification to the Software if the modification was not made by or at the
written direction of Indemnitor; or (ii) the use or combination of the Software
with any hardware, software, products, data or other materials not specified or
provided by Indemnitor; or (iii) Indemnitee’s or any Customer's use of the
Indemnitor Services other than in accordance with the Software documentation or
Indemnitor’s written directions or policies.
(b)
Conditions for Defense.
To be
entitled to defense by the Indemnitor against a third-party infringement
claim:
(i)
Indemnitee shall advise Indemnitor of the claim as contemplated by Section (d);
and
(ii)
Indemnitor shall have the sole right to control the defense or settlement of the
claim, in litigation or otherwise, provided that Indemnitor will not enter into
a settlement on behalf of Indemnitee without Indemnitee's prior written
approval, such approval not to be unreasonably withheld.
(c)
Expenses and Monetary Awards.
If a
third-party claim, of which Indemnitor was notified and which Indemnitor has a
duty to defend in accordance with this Section 12, is brought, and if such claim
is sustained in a final judgment from which no further appeal is taken or
possible, then Indemnitor will pay or otherwise satisfy any monetary award
entered against Indemnitee as part of such final judgment to the extent such
award is adjudged in such final judgment to arise from such infringement,
without regard to limitation of liability set forth in Section
11.
(d)
Notices.
An
Indemnitee seeking to be defended against a claim under this Section 12, shall
notify the Indemnitor within thirty (30) days of the assertion of any claim(s)
or discovery of any fact upon which the Indemnitee intends to base a claim for
defense or indemnification. The Indemnitee's failure to so notify the Indemnitor
will not relieve the Indemnitor from any liability under this Agreement to the
Indemnitee with respect to defense or indemnity with respect to such claim(s),
except to the extent the Indemnitor demonstrates that the defense of such claim
was prejudiced by the failure to so notify.
(e)
Counsel.
If the
Indemnitor defends the Indemnitee in a lawsuit, arbitration, negotiation, or
other proceeding concerning a claim pursuant to this Section 12, then the
Indemnitee may engage separate counsel, at the Indemnitee's expense, to monitor
and advise the Indemnitee about the status and progress of the
matter.
(f)
Exceptions to Duties to Defend and Indemnify.
Except
as may be otherwise expressly provided in this Agreement, neither party will be
required to defend or indemnify the other party with respect to losses, damages
or expenses finally adjudged to have been caused by the indemnified party's own
negligence or willful misconduct.
13.
Limitation of Liability and Damages; Insurance
(a)
Limitation of Liability
EXCEPT
FOR LIABILITY ARISING OUT OF A PARTY'S INDEMNIFICATION OBLIGATIONS WITH RESPECT
TO THIRD PARTY CLAIMS AND A BREACH OF THE PROVISIONS OF THIS AGREEMENT RELATING
TO CONFIDENTIAL INFORMATION AND TRADE SECRETS, EACH PARTY AGREES THAT IN NO
EVENT WILL THE OTHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE, UNDER ANY
THEORY OF LIABILITY, HOWEVER ARISING, FOR ANY COSTS OF COVER OR FOR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING ANY LOSS OF
USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS
INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY
DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR
REMEDY.
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(b)
Limitation of Damages
EXCEPT
FOR LIABILITY ARISING OUT OF A PARTY'S INDEMNIFICATION OBLIGATIONS WITH RESPECT
TO THIRD PARTY CLAIMS AND A BREACH OF THE PROVISIONS OF THIS AGREEMENT RELATING
TO CONFIDENTIAL INFORMATION AND TRADE SECRETS, IF THERE SHALL BE ANY LIABILITY
OF ONE PARTY TO THE OTHER THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO THIS
AGREEMENT, EACH PARTY'S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES
OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EITHER
JOINTLY OR SEVERALLY, SHALL NOT EXCEED TEN THOUSAND DOLLARS ($10,000.00). EACH
PARTY ACKNOWLEDGES THAT THE OTHER IS NOT AN INSURER; THAT THE PAYMENTS MADE
HEREUNDER ARE BASED SOLELY ON THE VALUE OF THE SERVICES AND ARE NOT SUFFICIENT
TO WARRANT ASSUMING ANY RISK OF CONSEQUENTIAL OR OTHER DAMAGES DUE TO NEGLIGENCE
OR FAILURE TO PERFORM. DUE TO THE NATURE OF THE SERVICES TO BE PERFORMED, IT IS
IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH
MAY RESULT (PROXIMATELY OR OTHERWISE) FROM NEGLIGENCE OR FAILURE TO PERFORM
UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF
RISK BETWEEN THE PARTIES IN VIEW OF THE FEES CHARGED, IS NOT A PENALTY, AND
SHALL BE EXCLUSIVE. THE LIMITATIONS IN THIS AGREEMENT SHALL APPLY DESPITE ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
(c)
Insurance
VEMICS
AGREES TO MAINTAIN IN EFFECT DURING THE TERM, AT SUCH PARTY'S EXPENSE,
COMPREHENSIVE PROPERTY, CASUALTY AND GENERAL LIABILITY INSURANCE OF THE TYPES
AND AMOUNTS, AND COVERING SUCH RISKS AS ARE REASONABLE AND CUSTOMARY FOR
BUSINESSES ENGAGED IN A SIMILAR BUSINESS AND COVERING PROPERTIES SIMILAR TO THE
PROPERTIES OWNED, LEASED OR OPERATED BY VEMICS. IN ADDITION, VEMICS SHALL
MAINTAIN IN EFFECT DURING THE TERM AN ERRORS AND OMISSIONS POLICY INSURING
AGAINST ITS ERRORS AND OMISSIONS IN THE PERFORMANCE OF ITS SERVICES CONTEMPLATED
UNDER THIS AGREEMENT WITH COVERAGE OF AT LEAST FIVE MILLION DOLLARS AS TO A
SINGLE CLAIM AND FIVE MILLION DOLLARS AS TO ALL CLAIMS IN THE AGGREGATE. SUCH
INSURANCE COVERAGE WILL BE OBTAINED FROM REPUTABLE INSURANCE COMPANIES OR The
ASSOCIATIONS. UPON THE REQUEST OF The ASSOCATION, VEMICS SHALL PROVIDE VALID
CERTIFICATES OF INSURANCE.
14.
Miscellaneous
(a)
Compliance with Laws
Each
party agrees to comply with all applicable laws, regulations, and ordinances
relating to their performance hereunder.
(b)
Notices
Any
notice required or permitted hereunder shall be in writing and shall be
delivered as follows (with notice deemed given as indicated): (i) by personal
delivery when delivered personally; (ii) by established overnight courier upon
written verification of receipt; (iii) by facsimile transmission when receipt is
confirmed in writing; or (iv) by certified mail, return receipt requested, upon
verification of receipt. All notices must be sent to the following
addresses:
If to
VEMICS:
▇▇▇▇
▇▇▇▇▇, CEO
Vemics,
Inc
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to
The
ASSOCIATION:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
President
Pulmonary
Hypertension Association, Inc
▇▇▇
▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either
party may change its contact person for notices and/or address for notice by
means of notice to the other party given in accordance with this
Section.
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(c)
Assignment
Neither
party may, without the prior written consent of the other party, assign this
Agreement, in whole or in part, either voluntarily or by operation of law, and
any attempt to do so shall be a material default of this Agreement and shall be
void. Any change of control in the ownership of either party shall not be deemed
an assignment subject to the prohibitions of this Section.
(d)
Third Party Beneficiaries
This
Agreement is solely for the benefit of the parties and their successors and
permitted assigns, and, except as expressly provided herein or in any exhibit
hereto, does not confer any rights or remedies on any other person or
entity.
(e)
Governing Law and Arbitration
This
Agreement shall be interpreted according to the laws of the State of New York
without regard to or application of choice-of-law rules or principles. Any and
all disputes arising or related in any way to this Agreement shall be resolved
in accordance with the Commercial Rules of the American Arbitration Association
utilizing a panel of three (3) neutral arbitrators. The arbitration shall be
held in New York, New York.
(f)
Entire Agreement and Waiver
This
Agreement and any Exhibits hereto shall constitute the entire agreement between
VEMICS and The ASSOCIATION with respect to the subject matter hereof and all
prior agreements, representations, and statement with respect to such subject
matter are superseded hereby, including without limitation any non-disclosure
agreement previously executed between the parties. The terms of this Agreement
shall control in the event of any inconsistency with the terms of any Exhibit
hereto. This Agreement may be changed only by written agreement signed by both
VEMICS and The ASSOCIATION. No failure of either party to exercise or enforce
any of its rights under this Agreement shall act as a waiver of subsequent
breaches; and the waiver of any breach shall not act as a waiver of subsequent
breaches.
(g)
Severability
In the
event any provision of this Agreement is held by a court of other tribunal of
competent jurisdiction to be unenforceable, that provision will be enforced to
the maximum extent permissible under applicable law, and the other provisions of
this Agreement will remain in full force and effect. The parties further agree
that in the event such provision is an essential part of this Agreement, they
will begin negotiations for a suitable replacement provision.
(h)
Non-Disclosure of Agreement Terms
Neither
party shall disclose to third parties, other than its agents and representatives
on a need-to-know basis, the terms of this Agreement or any Exhibits hereto
without the prior written consent of the other party, except either party shall
be entitled to disclose (i) such terms to the extent required by law, and (ii)
the existence of this Agreement.
(i)
Force Majeure
If
either party is prevented from performing any of its obligations under this
Agreement due to any cause beyond the party's reasonable control, including,
without limitation, an act of God, fire, flood, explosion, war, strike, embargo,
government regulation, act(s) of terrorism, civil or military authority, acts or
omissions of carriers, transmitters, providers, vandals, or hackers (a ''force
majeure event'') the time for that party's performance will be extended for the
period of the delay or inability to perform due to such occurrence; provided
however, that if a party suffering a force majeure event is unable to cure that
event within 30 days, the other party may terminate this
Agreement.
(j)
Counterparts
This
Agreement may be executed in any number of counterparts, each of which, when so
executed and delivered, shall be deemed an original, and all of which shall
constitute one and the same Agreement.
(k)
Remedies
Except
as provided herein, the rights and remedies of each party set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to it at law or in equity.
(l)
Binding Effect
This
Agreement shall be binding upon and shall inure to the benefit of the respective
parties hereto, their respective successors and permitted
assigns.
(m)
Amendments
Amendments
to this Agreement, including amendments to any Exhibits, shall be effective only
if they are in writing and signed by both parties.
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IN WITNESS WHEREOF, each of
the parties, by its duly authorized representative, has entered into this
Agreement as of the Effective Date.
VEMICS
INC.
By:
___________________
▇▇▇▇
▇▇▇▇▇, CEO
THE
PULMONARY HYPERTENSION ASSOCIATION, INC.
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, President
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