EXHIBIT 10.3
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND SUCH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.
UNIVERSITY OF PENNSYLVANIA
Center for Technology Transfer
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D.
Care Management Science Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
April 28, 1997
RE: PENN/CMS LICENSE AGREEMENT EFFECTIVE APRIL 1, 1995,
RESTATED ON OR ABOUT MAY 1, 19997.
Dear ▇▇. ▇▇▇▇▇▇:
This letter agreement is between the University of Pennsylvania ("Penn") and
Care Management Science ("CMS") for the purposes of clearing up an issue
pertaining to sublicenses as defined in Section 2.1 in the above referenced
License Agreement. For the purposes of this letter, "End-User Sublicense" shall
mean a sublicense granted by CMS which allows the sublicensee to use, but not to
modify or to distribute the software. "Distributor Sublicense" shall mean a
sublicense granted by CMS to a third party which allows that third party to
modify the software, and sublicense it in the form of End-User sublicenses only.
It is agreed between the parties that CMS shall have the right to grant both
End-User Sublicenses and Distributor Sublicenses. It is further agreed that:
1. any Distributor Sublicense granted by CMS shall be subject to the terms
and provisions of the License Agreement;
2. royalties would flow to Penn in the exact same manner as they would if
CMS were selling directly [*];
3. any such distribution rights would also be subject to the exact same
contractual language and other requirements of the License Agreement as
if CMS were licensing the software directly;
4. Penn shall receive [*] of any up-front license initiation fees or other
consideration paid to CMS for sublicense rights; and
5. any third parties distributing the Licenses Work shall be required to
report to CMS, and CMS shall report any such Distributor licensee sales
to Penn in the same manner that CMS reports its own sales to Penn.
Sincerely,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director, Center for Technology Transfer
AGREED TO AND ACCEPTED:
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D. Date 5/1/97
Care Management Science Corporation
[*] WE ARE SEEKING CONFIDENTIAL TREATMENT OF THESE TERMS, WHICH HAVE BEEN
OMITTED. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
RESTATED LICENSE AGREEMENT
by and between
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA
and
CARE MANAGEMENT SCIENCE CORPORATION
(formerly The Center for Health Choice)
1995
This LICENSE AGREEMENT is made as of the 1st day of April, 1995 between
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, a nonprofit corporation
organized and existing under the laws of the Commonwealth of Pennsylvania (the
'University'), and Care Management Science Corporation, both corporations
organized and existing under the laws of the Commonwealth of Pennsylvania
("Licensee").
The Effective Date is April 1, 1995.
WHEREAS The University owns the Licensed Program and Licensed Technical
Information (each as defined below) and copyrights and other proprietary rights
relating thereto; and
WHEREAS Licensee desires to obtain from the University an exclusive license to
use the Licensed Program and Licensed Technical Information, subject to the
terms, conditions and provisions hereinafter set forth; and
WHEREAS The University and Licensee (formerly called The Center for Health
Choice ) have entered into an agreement dated July 1, 1993 relating to subject
matter in some respects to the subject matter of this agreement whereby this
agreement supersedes the July 1, 1993 agreement;
WHEREAS The University and Licensee have entered into an agreement dated April
1, 1995 and signed in March 1995 relating to the same subject matter as the
subject matter of this agreement whereby this agreement restates and supersedes
the July 1, 1993 agreement;
NOW, THERFORE in consideration of the premises and of the promises and mutual
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"AFFILIATE" means, when used with references to Licensee, any Person
directly or indirectly controlling, controlled by or under common control with
Licensee. For purposes of this Agreement, 'control' means the direct or indirect
ownership of over 50% of the outstanding voting securities of a Person, or the
right to receive over 50 % of the profits or earnings of a Person, or the right
to control the policy decisions of a Person.
"BANKRUPTCY EVENT" means the Person in question becomes insolvent, or
voluntary or involuntary proceedings by or against such Person are instituted in
bankruptcy or under any insolvency law, or a receiver or custodian is appointed
for such Person, or proceedings are instituted by or against such Person for
corporate reorganization or the dissolution of any such Person, which
proceeding, if involuntary, shall not have been dismissed within ninety (90)
days after the date of filing, or such Person makes an assignment for the
benefit of creditors, or substantially all of the assets of such Person are
seized or attached and not released within sixty (60) days thereafter.
"CALENDAR QUARTER"' means each three-month period, or any portion
thereof, beginning on January 1, April 1, July 1 and October 1.
"CONFIDENTIAL INFORMATION" means and includes (i) the Source Code and
object Code of the Licensed Program and the related Documentation, (ii) the
Licensed Technical Information; (iii) any other information or material in
tangible form that is marked as confidential or proprietary by the furnishing
party at the time it is delivered to the receiving party, and (iv) information
that is furnished orally if the furnishing party identifies such information as
confidential or proprietary when it is disclosed and promptly confirms such
designation in writing after such disclosure.
"COPYRIGHT" means the copyrights related to the Licensed Work,
including the copyright applications and registration(s), if any, listed on
Exhibit A attached hereto and made part hereof, authorized under Title 17 of the
United States Code or under the laws of any other jurisdiction.
"CUSTOMER" means any Person who has executed a valid End User Agreement
or any other form of sublicense agreement approved by the University relating to
the license set forth herein.
"Documentation" means the explanatory and instructive materials in hard
copy, including manuals and other printed or visually-perceptible materials,
that describe the use, function or operation of a computer software program.
"END USER AGREEMENT" means an agreement between Licensee and a Person
granting the right to use or benefit from any of the rights granted hereinunder.
"FEES" shall mean, cumulatively, Service Fees and Sublicense Fees.
Licensee shall establish; 1) stand-alone Sublicense Fees and 2) Service Fees for
use of the Licensed Work. If Licensee charges a customer Service Fees for a
package of services, only some of which involves use of the Licensed Program,
and no volume or other customer discount is provided, then the portion of
Licensee's revenues representing Fees shall not be less than the separate prices
or Fees charged by Licensee on a stand-alone basis for services using the
Licensed Work. If Licensee charges a customer service Fees on such a package of
services and a volume or other discount is provided, then the discount related
to use of the Licensed Work shall be no greater than the discount related to
other services provided by Licensee. University acknowledges that Licensee may
have to negotiate Sublicense Fee discounts from its published fees in the usual
course of doing
Licensee shall be permitted to deduct qualifying costs directly attributable to
the sublicensing of the Licensed Work, which are actually identified on the
invoice and borne by Licensee, or the provision of services using the Licensed
Work, which are actually identified on the invoice and borne by Licensee or its
sublicensee.
Such qualifying costs shall be limited to the following:
(i) Discounts, in amounts customary in the trade, for quantity
purchases, prompt payments and for wholesalers and distributors;
(ii) Credits or refunds, not exceeding the original invoice amount,
for claims or returns.
(iii) Prepaid transportation insurance amounts;
(iv) Prepaid outbound transportation expenses; and
(v) Sales and use taxes, imposed by a government agency upon
Licensee.
"LICENSED PROGRAM" means the software program in source code, object
code, or any other form described in the copyright registrations and
applications for copyright registration set forth in Exhibit A hereto, together
with (i) Modifications thereto, (ii) all Documentation, and (iii) all derivative
works based on the foregoing.
"LICENSED TECHNICAL INFORMATION" means the underlying proprietary analytic
routines related to the econometric model which was developed for the Corporate
Hospital Rating Project, THE CORPORATE HOSPITAL RATING PROJECT: MEASURING
HOSPITAL OUTCOMES FROM A BUYER'S PERSPECTIVE USING UB-B2 LIKE DATA. For the
purposes of this agreement UB-B2 like data is defined as information about
specific patients regarding their admissions to hospitals that includes their
diagnoses, Procedures, mute of admission and discharge, and the charges
associated with hospital stays. It does not include information about
out-patients, resource use, test results, treatment or intentions. Licensed
Technical Information also includes the underlying models reflected in A THEORY
OF FOCUSED OPERATIONS IN HEALTH CARE; RISK-ADJUSTMENTS AND MEASUREMENT OF
AMBULATORY OUTCOMES; and A THEORY OF CONGESTION IN GENERAL HOSPITALS the
copyright information for which is listed in Exhibit A hereto.
"LICENSED WORK" means the Licensed Program and Licensed Technical
Information, and any portion of Modification thereof, as well as all United
States and foreign Copyrights.
"MODIFICATION" of work means any and all changes including
improvements, enhancements, corrections, revisions to the work or any portion
thereof, and any derivative of or work substantially similar to any of the
foregoing, made by the University or the Licensee.
"PERSON" or "PERSONS" means any corporation, partnership, joint venture
or natural person. "Sale" as applied to the Licensed Work means a genuine BONA
FIDE transaction for which consideration is received or expected for the use,
lease, transfer or any other disposition of the Licensed Work. A Sale of the
Licensed Work shall be deemed completed at the time Licensee or its sublicensee
invoices, ships, or receives payment for such Licensed Work, whichever occurs
"SERVICE FEES" means gross consideration actually received by Licensee as a fee
for Use of the Licensed Work. The University hereby acknowledges that Licensee
has in the past and will
continue to provide consulting and other product related services to third
parties which do not employ the use of the Licensed Work, and University further
acknowledges that such revenues are expressly not a part of Service Fees as
defined herein.
"Sublicense Fees" means gross consideration actually received by
Licensee (i) as a fee for sublicensing the Licensed Work in object code form to
any third party or (ii) as royalties under the terms of any such sublicense
agreement.
ARTICLE II
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions
contained in this Agreement, the University hereby grants to Licensee for the
term of this Agreement a roya4-bearing, worldwide, exclusive license, with a
right to sublicense to:
(a) make copies of, to make derivative works of, and to use
the Licensed Work,
(b) distribute the Licensed work;
(c) sublicense the Licensed Work to customers of Licensee who
have first executed an End User Agreement. Licensee shall use best efforts to
include all of the provisions found in the End User Agreement which forms
Exhibit B hereto in all sublicense agreements, where such efforts must result in
an agreement that is at least substantially similar to the End User Agreement
identified in Exhibit B.
2.2 RESERVATION OF RIGHTS. The University reserves the right to
make copies of, to make derivative works of and to use the Licensed Work solely
for non-commercial research and educational purposes. The University also
reserves the right to grant the same restricted rights to other non-profit
educational or research institutions which expressly agree in writing not to
utilize the Licensed Work in any commercial application, whether for itself or
another party.
2.3 NO RIGHTS BY IMPLICATION. No rights or licenses with respect
to the Licensee Work are granted or deemed granted hereunder or in connection
herewith, other than those rights or licenses expressly granted in this
Agreement.
2.4 FEDERAL GOVERNMENT INTEREST. Licensee acknowledges that the
United States Government may retain certain rights in inventions funded in whole
or in part under any contract, grant or similar agreement with a Federal agency
under Public Laws 96-517, 97-256 and 98-620, codified at 35 U.S.C. P. 200-212,
and any regulation issued thereunder, as such statute or regulations may be
amended from time to time hereafter. The license to the Licensed Work granted
under this Article II is expressly subject to all such rights.
ARTICLE III
COMPENSATION
3.1 ROYALTIES.
(a) In consideration for the license granted by this
Agreement, Licensee shall pay University royalties as follows on all Sales of
the Licensed Work.
(i) [*];
(ii) [*];
(b) In the event the University releases a Modification to the
Licensed program developed exclusively by the University, the University shall
be entitled to a royalty of [*] of the Sublicense Fee paid by existing Customers
for such modification. In the event that such a Modification is jointly
developed by the University and Licensee, Licensee shall pay a royalty to the
University equal to a prorated percentage of [*] based upon the relative
contributions of the two parties, such contributions to be mutually agreed upon.
(c) The University waives the right to receive these royalties
through June 30, 1996 (the "Transition Period") if Fees received by Licensee in
any such year, during the Transition Period are less than [*].
3.2 MINIMUM ADVANCE ROYALTIES. Licensee shall Pay to Licensor, as
a non-refundable advance against royalties during the ensuing year, minimum
annual royalties ("Minimum Advance Royalties") for the following periods in the
corresponding amounts:
CALENDAR YEAR BEGINNING
TRANSITION PERIOD January 1, 1995
[*] January 1, 1996
[*] January 1, 1997
[*] January 1, 1998
[*] January 1, 1999
[*] January 1, 2000 and for each
calendar year thereafter
Licensee shall pay these Minimum Advance Royalties in four (4) evenly
distributed installments
[*] WE ARE SEEKING CONFIDENTIAL TREATMENT OF THESE TERMS, WHICH HAVE BEEN
OMITTED. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
on the first day of each calendar quarter (January 1, April 1, July 1 and
October 1) of each year.
3.3 MINIMUM EARNED FEES. To retain the exclusivity of the license
granted hereunder, Licensee must earn Fees in the following amounts during each
calendar year listed below:
CALENDAR YEAR BEGINNING
[*] January 1, 1995
[*] January 1, 1996
[*] Each calendar year thereafter
3.4 Exclusive; Non-Exclusive License. If Licensee fails to pay the
Minimum Advance Royalties as set forth in Section 3.2 above for any calendar
year, the University will have the right in its sole discretion, to convert the
license granted hereunder from an exclusive to a non-exclusive license. Should
the University convert the license to a non-exclusive license, Licensee shall be
required to pay a Minimum Advance Royalty of [*] to be paid in the same four (4)
installments as for an exclusive license, for each calendar year thereafter to
maintain the non-exclusive license. If Licensee fails to pay the Minimum Advance
Royalty of [*] for a non-exclusive license, the University will have the right
in its sole discretion, to terminate the non-exclusive license. In the event
that the University grants any third party a nonexclusive license to the
Licensed Work with Minimum Advance Royalties or equivalent royalties of less
than [*] per calendar year, Licensee's yearly fee shall be reduced to the lower
rate.
3.5 SALES TO FEDERAL GOVERNMENT. To the extent required by any
existing Federal Government Interest, a sublicense to the United States
Government shall not be subject to any Royalty.
3.6 PAYMENTS. Royalties payable under Section 3.1 hereof shall be
paid within forty five (45) days following the last day of the Calendar quarter
in which the royalties accrue. The final payment shall be made within thirty
(30) days after termination of this Agreement. Royalties shall be deemed paid as
of the day on which they are received at the account designated pursuant to
Section 3.8. Royalties that are not paid when due shall be subject to interest
in accordance with Section 3.8 hereof.
[*] WE ARE SEEKING CONFIDENTIAL TREATMENT OF THESE TERMS, WHICH HAVE BEEN
OMITTED. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
3.7 REPORTS. Licensee shall deliver to the University within
forty-five (45) days after the end of each Calendar Quarter a report, certified
by the chief financial officer of Licensee, setting forth in reasonable detail
the calculation of the earned royalties and Minimum Advance Royalties available
for credit payable to the University for such Calendar Quarter.
3.8 CURRENCY, PLACE OF PAYMENT, INTEREST.
(a) CURRENCY; PLACE OF PAYMENT. All dollar amounts referred to
in this Agreement are expressed in United States dollars. All payments
of Royalties and other amounts to the University under this Agreement
shall be made in United States dollars (or other legal currency of the
United States) by check payable to "The Trustees of the University of
Pennsylvania".
(b) INTEREST. Amounts that are not paid when due shall accrue
interest from the due date until paid, at a rate equal to the prime
rate plus two percent (2%) with a maximum cap of eighteen percent
(18%). The University may treat unpaid payments as a breach of this
Agreement notwithstanding the payment of interest.
3.9 RECORDS. Licensee will maintain complete and accurate books
and records which enable the royalties payable hereunder to be verified. The
records for each calendar quarter shall be maintained for five years after the
submission of each report under Section 3.7 hereof. Upon reasonable prior notice
to Licensee, the University and its accountant shall have access to the relevant
books and records of Licensee necessary to conduct a review or audit thereof.
Such limited access shall be available not more than twice each calendar year,
during normal business hours, and for three years after the expiration or
termination of this Agreement. If the University determines that Licensee has
underpaid royalties by ten percent (10%) or more, Licensee will immediately pay
to the University such amount plus interest as set forth in Section 3.8 above in
addition to the documented costs and expenses of the university's accountant in
connection with its review or audit. If an overpayment is determined to exist,
the University shall refund any monies overpaid by Licensee back to Licensee.
ARTICLE IV
USE OF LICENSED PROGRAM
4.1 MAINTENANCE. Licensee acknowledges and agrees that the
University shall be under no obligation to Licensee to install, maintain,
support, modify or enhance the Licensed Program, all such obligations being the
responsibility of Licensee.
4.2 Copy Limitations. Licensee shall be entitled to receive from
the University one copy of the Licensed Program and related Documentation, and
the Licensed Technical information. Licensee shall keep a record of the location
of each and every copy of the licensed Program that it makes and shall maintain
such copies in locations consistent with Licensee's confidentiality obligations
as set forth in Article V hereof. Licensee shall reproduce without
alteration any disclaimers, legends and proprietary rights notices on all copies
of the Licensed Program and related Documentation and the Licensed Technical
Information.
4.3 MODIFICATION OF LICENSED WORK.
(a) Licensee shall have the right to make Modifications of the
Licensed Work, including derivatives as contemplated by the copyright
laws, provided that such Modifications, and all copyrights and
trademarks relating thereto, shall remain the property of the
University from the moment of their creation, subject to the
1-icensee's license rights hereunder. Licensee shall provide one copy
of any Modification of the Licensed Work to the University promptly
upon request. License shall obtain from each and every individual or
entity who makes a Modification of the licensed Work an assignment of
all rights to the University, including but not limited to copyright,
whether or not such contribution may be a "work made for hire." Prior
to the commencement of work by such individuals or entities, licensee
shall have each individual or entity sign a document in reasonable form
acknowledging that all rights in their respective contributions will be
assigned to the University whether or not such contributions are works
made for hire.
(b) The University may from time to time release Modifications
developed by the University, subject to the Licensee's license rights
hereunder. The University will provide one copy of such Modifications
to Licensee . The incorporation into the Licensed Work of any
Modification developed by the University shall be reflected in the
royalty schedule for the Licensed Work after good faith negotiations by
the parties. Notwithstanding, Licensee acknowledges and agrees that the
University shall have no obligation to make Modifications of the
Licensed Work.
ARTICLE V
CONFIDENTIALITY
5.1 CONFIDENTIALITY.
(a) NONDISCLOSURE. Licensee shall maintain in confidence and
shall not disclose to any third Party (except an authorized
sublicensee) the Confidential Information received pursuant to this,
without the prior written consent of the University. The foregoing
obligation shall not apply to:
(i) information that is known to Licensee or
independently developed by Licensee prior to the time of
disclosure, in each mw, to the extent evidenced by written
records promptly disclosed to the University upon receipt of
the Confidential Information. This exception shall not apply
to information learned by Licensee from any employee who was
previously engaged by, or a student of, the University, with
responsibility for the development or use of the Licensed
Work;
(ii) information disclosed to Licensee by a third party
that has a right to make such disclosure;
(iii) information that becomes patented, published or
otherwise part of the public domain as a result of acts by the
University or by a third person who has the right to make such
disclosure; or
(iv) information that is required to be disclosed by
order of any governmental authority or a court of competent
jurisdiction; provided that Licensee shall notify the
University if it believes such disclosure is required and
shall use its best efforts to obtain confidential treatment of
such information by the agency or court.
(b) USE OF CONFIDENTIAL INFORMATION. Licensee shall ensure
that all of its employees having access to the Confidential Information
of the University are obligated in writing to abide by Licensee's
obligations hereunder. Licensee shall use the Confidential Information
only for the purposes contemplated under this Agreement.
(c) NO OBLIGATION BY UNIVERSITY. The University shall not be
obligated to accept any Confidential Information of the Licensee. If
licensee desires to furnish any of Licensee's Confidential Information
to any University personnel, Licensee may request such individual to
sign a confidentiality agreement with Licensee in form and substance
satisfactory to the University, as attached hereto in Exhibit C. The
University bears no institutional responsibility for maintaining the
confidentiality of any Confidential Information of Licensee.
(d) COPYRIGHT NOTICE. The placement of a copyright notice by
the University on the Licensed Work, or any portion thereof, shall not
be construed to mean that the program or information has been
published. Such placement will not release licensee from its
obligations of confidentiality hereunder.
5.2 PUBLICATION.
(a) UNIVERSITY RIGHT TO PUBLISH. Licensee acknowledges that
the basic objective of the research and development activities of the
University is the generation of new knowledge and its expeditious
dissemination. To further that objective, the University retains the
right, at its discretion, to demonstrate, publish or publicize the
Licensed Technical Information and a description of the Licensed
Program and any results of research conducted by the University with
the Licensed Work subject to the provisions of clauses (b) and (c)
below.
(b) NOTIFICATION. Should the University desire to disclose
publicly, in writing or by oral presentation, Confidential Information
related to the Licensed Work for which an appropriate form of
intellectual property protection has not been filed, the University
shall notify Licensee in writing of its intention at least thirty (30)
days before such disclosure. The University shall include with such
notice a description of the oral presentation or, in the case of a
manuscript or other proposed written disclosure, a current draft of
such written disclosure. Licensee may request the University, no later
than 30 (30) days following the receipt of the University's notice, to
file an appropriate form of intellectual property protection related to
the information to be disclosed. All such filings
shall be subject to the provisions of Section 8.1 Of this Agreement.
Upon receipt of such request, the University shall arrange for a short
delay in publication, not to exceed sixty (60) days, to permit filing
of an appropriate form of intellectual protection by the University,
or if the University declines to file such application, to permit
licensee to make such a filing.
(c) MODIFICATION. If the University desires to demonstrate,
publish or publicize Confidential Information related to the Licensed
Work that is not protectable under intellectual property law in the
United States, and Licensee objects to such proposed disclosure within
the time period specified in clause (b) above, the parties will
negotiate in good faith toe whether the proposed disclosure can be
modified or withheld, consistent with the objectives of each party. In
no event shall the University be prohibited from proceeding with any
such publication.
5.3 USE OF NAME.
(a) Licensee shall not directly or indirectly use the
University's name, or the name of any trustee, officer or employee
thereof, without the University's written consent. University hereby
approves the use of the following wording as applied to the
University, its related ▇▇▇▇▇▇▇ School, its School of Medicine, or the
▇▇▇▇ ▇. Hartford Foundation, as appropriate:
(i) [based on work or research performed at or by]
(ii) [derived from work or research performed at or by]
(iii) [faculty members of]
(iv) [funded by]
(v) [licensed from]
(vi) [developed at]
(b) The University and LICENSEE are independent entities and
contractors and neither is an agent of the other. Neither LICENSEE nor
the University shall take any action which would suggest to a
reasonable person that an agency relationship exists between them.
5.4 INJUNCTIVE RELIEF. Because damages at law will be an
inadequate remedy for breach of any of the covenants, promises and agreements
contained in this Article V hereof, the University shall be entitled to
injunctive relief in any state or federal court located within the City of
Philadelphia, Pennsylvania, including specific performance or an order enjoining
the breaching party from any threatened or actual breach of such covenants,
promises or agreements. Licensee hereby waives any objection it may have to the
personal jurisdiction or venue of any such court with respect to any such
action. The rights set forth in this Section 5.4 shall be in addition to any
other rights which the University may have at law or in equity.
ARTICLE VI
WARRANTIES AND REPRESENTATIONS
6.1 REPRESENTATIONS AND WARRANTIES OF THE UNIVERSITY. The
University represents and warrants to Licensee that this Agreement, when
executed and delivered by the University, will be the legal, valid and binding
obligation of the University, enforceable against the University in accordance
with its terms. The University also represents to Licensee that the University
has not received any written notice that the Licensed Work infringes the
proprietary rights of any third party. These representations are to the
knowledge of the University, based upon conversations with certain University
officials. The University has made no independent investigation of the matters
which are subject to these representations.
6.2 REPRESENTATION AND WARRANTIES OF LICENSEE. Licensee represents
and warrants to the University as follows:
(a) is a good corporation duly organized, validly existing and
in good standing under the laws of Pennsylvania, and has all requisite
corporate power and authority to execute, deliver and perform this
Agreement;
(b) This Agreement, when executed and delivered by Licensee,
will be the legal, valid and binding obligation of Licensee,
enforceable against Licensee in accordance with its terms; and
(c) The execution, delivery and performance of this Agreement
by licensee does not conflict with, or constitute a breach or default
under, (i) the charter documents of Licensee, (ii) any law, order,
judgment or governmental rule or regulation applicable to Licensee, or
(iii) any provision of any agreement, contract, commitment or
instrument to which Licensee is a party; and the execution, delivery
and performance of this Agreement by Licensee does not require the
consent, approval or authorization of, or notice or declaration to or
filing or registration with, any governmental or regulatory authority.
ARTICLE VII
LIMITATION ON LIABILITY AND INDEMNIFICATION
7.1 NO WARRANTIES; LIMITATION ON LIABILITY. EXCEPR AS EXPLICITLY SET FORTH IN
SECTION 6.1 HEREOF, THE LICENSED PROGRAM AND LICENSED TECHNICAL INFORMATION IS
PROVIDED ON AN "AS IS" BASIS AND THE UNIVERSITY MAKES NO REPRESENTATIONS OR
WARRANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PROGRAM AND
LICENSED TECHNICAL INFORMANON. BY WAY OF EXAMPLE BUT NOT OF LIMITATION, THE
UNIVERSITY MAKES NO REPRESENTATIONS OR WARRANTEES (i) OF COMMERCIAL UTILITY,
(ii) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (iii) THAT THE
USE OF THE LICENSED PROGRAM AND LICENSED TECHNICAL INFORMATION WILL NOT INFRINGE
ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF
OTHERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE UNIVERSITY
DISCLAIMS ANY WARRANTY THAT THE LICENSED PROGRAM AND LICENSED TECHNICAL
INFORMATION IS FREE FROM THE RIGHTFUL CLAIMS OF ANY THIRD PARTY. THE UNIVERSITY
SHALL NOT BE LIABLE TO LICENSEE, LICENSEE"S SUCCESSORS OR ASSIGNS, OR ANY OTHER
THIRD PARTY WITH RESPECT TO ANY CLAIM ON ACCOUNT OF, OR ARISING FROM THE USE OF
INFORMANON IN CONNECTION WITH THE LICENSED PROGRAM AND LICENSED TECHNICAL
INFORMATION SUPPLIED HEREUNDER OR THE USE OR LICENSE OF THE LICENSED PROGRAM AND
LICENSED TECHNICAL INFORMATION OR ANY OTHER MATERIAL OR ITEM DERIVED THEREFROM.
THE UNIVERSITY SHALL NOT BE LIABLE TO LICENSEE, OR ANY OTHER PERSON FOR ANY LOSS
OF PROFITS, LOSS OF BUSINESS OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY LICENSEE OR ANY OTHER
PERSON WHETHER UNDER THIS AGREEM:ENT OR OTHERWISE, EVEN IF THE UNIVERSITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
7.2 LICENSEE INDEMNIFICATION. Licensee will indemnify and hold
harmless the University, its, officers, agents and employees (collectively, the
"Indemnified Parties"), from and against any and all liability, loss, damage,
action, claim or expense suffered or incurred by the Indemnified Parties
(including reasonable attorney's fees) (individually, a "Liability" and
collectively, the "Liabilities") which results from or arises out of (a) the use
of the Licensed Work by Licensee, its Affiliates, assignees, vendors or other
third parties; (b) breach by Licensee of any covenant or agreement contained in
this Agreement; and (c) the successful enforcement by an indemnified Party of
its right under this Section 7.2. The indemnification obligation under clause
(a) shall be mitigated by the sole negligence of the Indemnified Party. Without
limiting the foregoing, Licensee will indemnify and hold harmless the
Indemnified Parties from and against any Liabilities resulting from:
(a) Any claim of any kind related to the use by a third party
of the Licensed Work by Licensee, its Affiliates, assignees, or other
third parties; and
(b) claim by a third party that the Licensed work infringes or
violates any patent, copyright, trademark or other intellectual
property rights of such third party.
7.3 PROCEDURES. The Indemnified Party shall promptly notify
Licensee of any claim or action giving rise to a Liability that is subject to
the provisions of Section 7.2. Licensee shall have the right to defend any such
claim or action, at its cost and expense. Licensee shall not settle or
compromise any such claim or action in a manner that imposes any restrictions or
obligations on the University or grants any rights to the licensed Work, without
the University's written consent, which consent shall not be unreasonably
withheld. If Licensee fails or declines to assume the defense of any such claim
or action within thirty (30) days after notice thereof, the University may
assume the defense of such claim or action for the account and at the risk of
Licensee, and any Liability related thereto shall be conclusively deemed a
liability of Licensee. Licensee shall pay promptly to the Indemnified Party any
Liabilities to which the foregoing indemnify relates, as incurred. The
indemnification rights of the University or other indemnified Party contained
herein are in addition to all other rights which such indemnified Party may have
at law or in equity or otherwise.
7.4 LIABILITY INSURANCE. During the Term of this Agreement,
Licensee shall maintain general liability and product liability, insurance in
amounts not less than $1,000,000 per incident and $1,000,000 in the aggregate,
issued by an insurance company rated AA or better and naming the University as
an additional insured. The minimum insurance amounts specified herein shall not
be deemed a limitation on Licensee's indemnification liability under this
Agreement. Licensee shall provide the University with copies of the endorsements
to such policies, upon request of the University. Licensee shall notify the
University at least thirty (30) days prior to cancellation of any such coverage.
ARTICLE VIII
PROPRIERARY RIGHTS AND INFRINGEMENT
8.1 PROPRIETARY RIGHTS PROTECTION.
(a) UNIVERSITY CONTROL. The University shall be responsible
for and shall control the preparation, prosecution and maintenance of
all copyrights and patent rights pertaining to the Licensed Work.
Licensee shall reimburse the University for all documented expenses
(including legal fees, filing and maintenance fees or other
governmental charges) incurred in connection with the filing,
prosecution and maintenance of any such rights. Such reimbursement
shall be due at the same date as advance Minimum Royalties are due, as
set forth in Section 3.2.
(b) LICENSEE OBLIGATIONS. Licensee and the University shall
mutually determine the countries where copyrights and patents
pertaining to the Licensed Work will be prosecuted and maintained. If
Licensee declines to pay for such prosecution and maintenance costs in
any jurisdiction, the University may do so at its cost and expense but
such rights shall be excluded from the definition of Licensed Work.
(c) LICENSEE PROSECUTION. If the University elects not file,
prosecute or maintain any copyright g to the Licensed Work, it shall
notify Licensee at least sixty (60) days prior to taking, or not
taking, any action which would result in abandonment, withdrawal, or
lapse of such right. Licensee shall then have the right to file,
prosecute or maintain the right at its own expense.
(d) COOPERATION. Each party shall cooperate with the other
party to execute all lawful papers and instruments and to make all
rightful oaths and declarations as may be necessary in the preparation
and prosecution of all rights referred to in this Section 8. 1.
8.2 OWNERSHIP. Licensee acknowledges that all right, title and
interest in and to the Licensed Work and any copyrights, patents, trademarks and
other protection related thereto is and shall remain in the University,
regardless of which party prepares prosecutes or maintains the foregoing,
subject to the express license granted to Licensee under Article II hereof.
8.3 INFRINGEMENT BY THIRD PARTY.
(a) LICENSEE'S OBLIGATIONS. Each party will promptly notify
the other party of any infringement or possible infringement of rights
relating to the Licensed Work. Licensee shall have the right, but not
the obligation, to prosecute such infringement at its
own expense. In such event, the University shall cooperate with
Licensee, at Licensee's expense. Licensee shall not settle or
compromise any such suit in a manner that imposes any obligations or
restrictions on the University or grants any rights to the Licensed
Work, without the University's written consent.
(b) UNIVERSITY'S RIGHTS. If Licensee fails to prosecute such
infringement within ninety (90) days after receiving notice thereof,
the University shall have the right, but not the obligation, to
prosecute such infringement at its own expense. In such event, Licensee
shall cooperate with the University, at the University's expense.
(c) RECOVERY DISTRIBUTION. Any recovery obtained by the
prosecuting party as a result of such proceeding, by settlement or
otherwise, shall be applied first to the prosecuting party, in an
amount equal to its costs and expenses of the litigation, with the
remainder to be paid to the Licensee, subject to the earned royalties
due to the University under Article 3 hereof.
ARTICLE IX
TERM AND TERMIANTION
9.1 TERM. This Agreement and the licenses granted herein shall
commence on the Effective Date and shall continue, subject to earlier
termination under Sections 9.2 or 9.3 hereof, for a period of thirty (30) years
thereafter.
9.2 TERMINATION BY THE UNIVERSITY.
(a) EVENTS OF DEFAULT. Upon the occurrence of any of the
events set forth below ("Events of Default"), the University shall have
the right to terminate this Agreement by giving written notice of
termination, such termination being effective with the giving of such
notice:
(i) Nonpayment of any amount payable to the University
that is continuing then (10) calendar days after the
University gives Licensee written notice of such nonpayment;
(ii) breach by Licensee of any covenant (other than a
payment breach referred to in clause (i) above) or any
representation or warranty contained in this Agreement that is
continuing sixty (60) calendar days after the University gives
licensee written notice of such breach; provided that if
Licensee, using its best efforts, cannot cure such breach
within the flat sixty (60) days, the cure period shall be
extended by an additional sixty (60) calendar days, the total
cure period not to exceed one hundred twenty (120) days.
(iii) Licensee fails to comply with the terms of the
license granted under Article II hereof and such noncompliance
is continuing thirty (30) calendar days after the University
gives Licensee notice of such noncompliance;
(iv) Licensee becomes subject to a Bankruptcy Event;
(v) the dissolution or cessation of operations by
Licensee;
(vi) Licensee has failed to receive any fees for use or
sublicensing of the Licensed Program by June 30, 1995.
(b) NO WAIVER. No exercise by the University of any right of
termination shall constitute a waiver of any right of the University
for recovery of any monies then due to it hereunder or any other right
or remedy the University may have at law or under this Agreement.
(c) Sublicenses. Any sublicense(s) in effect at the time of
such termination by University will be assigned to the University and
will remain in fun force and effect so long as (1) CMS is in full
compliance with the term and conditions of any such sublicense(s), and
(2) such sublicense(s) are consistent with the terms of this AGREEMENT,
and (3) the University has no obligation to provide any support,
maintenance or other service to sublicensee. The assignment will occur
automatically upon the request of Licensee, notwithstanding the
provision of 9.5 "Sublicenses".
9.3 TERMINATION BY LICENSEE. Licensee shall have the right
terminate this Agreement, at any time and with or without
cause, upon (90) days written notice to the University.
9.4 RIGHTS AND DUTIES UPON TERMINATION. Within thirty (30) days
after termination of this Agreement, each party shall return to the other party
any Confidential Information of the other Party. Licensee also shall return all
copies of the Licensed Program in its possession that are embodied in physical
form to the University promptly upon the termination of this Agreement.
9.5 SUBLICENSES. Any sublicenses granted by Licensee under this
Agreement may survive termination of this Agreement in accordance with the terms
of such sublicense if so requested by the University, in which event the
sublicense shall be assigned to the University.
9.6 PROVISIONS SURVIVING TERMINATION. Licensee's obligation to pay
Royalties accrued but unpaid prior to termination of this Agreement shall
survive such termination. In addition, Sections 3.8, 3.9, 4.1, 8.2 and this 9.6
and Articles V, VI and VII and any other provisions required to interpret the
rights and obligations of the parties arising prior to the termination date
shall survive expiration or termination of this Agreement.
ARTICLE X
ADDITIONAL PROVISIONS
10.1 ASSIGNMENT. This Agreement and the rights and duties
appertaining thereto may not be assigned by the Licensee, directly or indirectly
except to an Affiliate of Licensee wherein Licensee guarantees performance of
assignee or in the case of merger, acquisition or operation of law, without
first obtaining the written consent of the University. Any such purported
assignment, without the written consent of the University, shall be null and of
no effect. No assignment shall relieve Licensee of responsibility for the
performance of any obligations which have accrued prior to such assignment.
10.2 NO WAIVER. A waiver by either party of a breach or violation
of any provision of this Agreement must be in writing in order to be effective.
No waiver will constitute or be construed as a waiver of any subsequent breach
or violation of that provision or as a waiver of any breach or violation of any
other provision of this Agreement.
10.3 INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to
establish a relationship of principal and agent between the University and
Licensee, nor any of their agents or employees for any purpose whatsoever. This
Agreement shall not be construed as constituting the University and Licensee as
partners, or as creating any other form of legal association or arrangement
which could impose liability upon one party for the act or failure to act of the
other party.
10.4 NOTICES. Any notice under this Agreement shall be sufficiently
given if sent in writing by prepaid, first class, certified or registered mail,
return receipt requested, addressed as follows:
(a) if to the University, to:
Center for Technology Transfer
University of Pennsylvania
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Director
cc: office of the General Counsel
University of Pennsylvania
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) if to Licensee, to:
Care Management Science Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
cc: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D., Ph.D.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other addresses as may be designated from time to time by notice
given in accordance with the terms of this Section.
10.5 ENTIRE AGREEMENT. This Agreement embodies the entire
understanding between the parties relating to the subject matter hereof and
supersedes all prior understandings and agreements, whether written or oral.
This Agreement may not be varied except by a written document signed by duly
authorized representatives of both parties.
10.6 SEVERABILITY. Any of the provisions of this Agreement which
are determined to be invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the remaining
provisions hereof or affecting the validity or unenforceability of any of the
terms of this Agreement in any other jurisdiction.
10.7 HEADINGS. Any headings and captions used in this Agreement are
for convenience of reference only and shall not affect its construction or
interpretation.
10.8 NO THIRD PARTY BENEFITS. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto or
their permitted assigns, any benefits, rights or remedies.
10.9 GOVERNING LAW. This Agreement shall be construed, governed,
interpreted and applied in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to conflict of law provisions.
10.10 COUNTERPARTS. This Agreement shall become binding when any one
or more counterparts hereof, individually or taken together, shall bear the
signatures of each of the parties hereto. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against the
party whose signature appears thereon, but all of which together shall
constitute but one and the same instrument
INTENDING TO BE BOUND, the parties hereto execute this Agreement through their
authorized representatives.
For THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA:
4/30/97 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Date Authorized Representative
For Care Management Science Corporation:
APRIL 28, 1997 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
EXHIBIT A
COPYRIGHTS
United States Copyright Registration Number TXU 530 576
Applications for copyright registration filed February 21, 1995 entitled:
1 Congestion in General Hospitals
2. Focused Operations
3. Clinical Pathway
4. Ambulatory Outcomes
EXHIBIT B
END USER AGREEMENT
CENTER FOR HEALTH CHOICE SOFTWARE LICENSE
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING HEALTH CHOICE. THIS IS A
LEGAL AGREEMENT BETWEEN SUB-LICENSEE ("YOU"), THE END USER, AND THE CENTER
FOR HEALTH CHOICE ("CHC").
1. GRANT OF LICENSE. The application, demonstration and system software
("HEALTH CHOICE") and related documentation are licensed to you by CHC. You
own the tape on which HEALTH CHOICE is recorded but The Trustees of the
University of Pennsylvania ("PENN") retains title to HEALTH CHOICE. This
License allows you to use HEALTH CHOICE on a single computer and to make one
copy of HEALTH CHOICE in a machine-readable form for backup purposes only.
You must reproduce on such copy the Penn copyright notice and any other
proprietary legends that were on the original copy of HEALTH CHOICE. This
License is not transferable. The terms of this License extends to the backup
copy.
2. COPYRIGHT AND TRADEMARK. The software is owned by Penn, and is
protected by United States copyright laws and international treaty
provisions. Therefore, you must treat HEALTH CHOICE like any other
copyrighted material (such as a book or musical recording) except that you
may either: (a) make one copy of HEALTH CHOICE solely for backup or archival
purposes, or (b) transfer the software to a single hard disk, provided that
you keep the original solely for backup or archival purposes. You may not
copy the written material accompanying HEALTH CHOICE. You acknowledge the
existence of a valid copyright in HEALTH CHOICE and that both HEALTH CHOICE
and copyright are the sole and exclusive property of Penn. By accepting this
license, you do not become the owner of either HEALTH CHOICE or the copyright.
3. OTHER RESTRICTIONS. You may not transfer, sell, rent or lease either
HEALTH CHOICE, the backup copy of HEALTH CHOICE or the related documentation
to another party. You may not reverse engineer, decompile, or disassemble
HEALTH CHOICE. You may not in any manner re-create or assist another in
re-creating the source code for HEALTH CHOICE. You may not make any revisions
to or enhancements of HEALTH CHOICE. "Revisions" as made in this license
includes all corrections or modifications that add no substantial feature or
function to HEALTH CHOICE. "Enhancements" includes all upgrades or
improvements that add a feature or function to HEALTH CHOICE.
4. EXPORT LAW ASSURANCES. HEALTH CHOICE and documentation are provided
with restricted rights. Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights
in Technical Data and Computer Software clause at DFARS 252.227-7013, or
subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted
Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is The
Center for Health Choices; ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
5. TERMINATION. This license is effective until terminated. You may
terminate this License at any time by destroying HEALTH CHOICE and all copies
thereof. This License will terminate immediately without notice from CHC or
Penn if you fail to comply with any provision of this License. Upon
termination, you must destroy HEALTH CHOICE and all copies thereof.
6. LIMITED WARRANTY ON MEDIA. CHC warrants the tape on which Health
Choice is recorded to be free from defects in materials and workmanship under
normal use for a period of ninety (90) days from the date of purchase as
evidenced by a copy of the receipt. CHC's entire liability and your exclusive
remedy will be replacement of the disk not meeting CHC's limited warranty, if
returned to CHC or an CHC authorized representative with a copy of the
receipt. CHC will have no responsibility to replace a tape damaged by
accident, abuse or misapplication. ANY IMPLIED WARRANTIES ON THE TAPE,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE
OF DELIVERY.
7. DISCLAIMER OF WARRANTY ON SOFTWARE. You expressly acknowledge and
agree that use of HEALTH CHOICE is at your sole risk. HEALTH CHOICE and
related documentation are provided "AS IS" and without warranty of any kind
and CHC EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. CHC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN
HEALTH CHOICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF HEALTH
CHOICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN HEALTH CHOICE
WILL BE CORRECTED. FURTHERMORE, CHC DOES NOT
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE
USE OF HEALTH CHOICE OR RELATED DOCUMENTATION [OR THAT HEALTH CHOICE WILL
NOT INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY RIGHTS
OF OTHERS]. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CHC OR A CHC
AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF THIS WARRANTY; SHOULD HEALTH CHOICE PROVE DEFECTIVE, YOU (AND NOT
CHC OR A CHC AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL
NECESSARY SERVICING, REPAIR OR CORRECTION.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE,
SHALL CHC BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT
RESULT FROM THE USE OR INABILITY TO USE HEALTH CHOICE OR RELATED
DOCUMENTATION, EVEN IF CHC OR A CHC AUTHORIZED REPRESENTATIVE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall CHC's total
liability to you for all damages, losses, and causes of action (whether in
contract, tort including negligence or otherwise) exceed the amount paid by
you for HEALTH CHOICE.
9. [IDEMNIFICATION. You agree to indemnify and hold harmless CHC, PENN, their
respective trustees, directors, officers, employees and agents (collectively
"Indemnified Parties") from and again any and all liability, loss, damage,
action, claim or expense suffered or incurred by the Indemnified Parties,
including reasonable attorney's fees (individually a "Liability" and
collectively "Liabilities") which result from or arise out of any use of
HEALTH CHOICE by you, your officers, employees, agents or other third
parties, or your breach of any covenant contained in this agreement.]
10. CONTROLLING LAW AND SEVERABILITY. This License shall be governed by and
construed in accordance with the laws of the State of Pennsylvania. If for any
reason a court of competent jurisdiction finds any provision of this License,
or portion thereof, to be unenforceable, that provision of the License shall
be enforced to the maximum extent permissible so as to effect the intent of
the parties, and the remainder of this License shall continue in full force
and effect.
11. COMPLETE AGREEMENT. This License constitutes the entire agreement between
the parties with respect to the use of HEALTH CHOICE and related
documentation, and supersedes all prior or contemporaneous understandings or
agreements, written or oral, regarding such subject matter.
For Licensee: For CHC:
____________________________ _________________________________
NAME NAME
____________________________ _________________________________
TITLE TITLE
____________________________ _________________________________
DATE DATE
____________________________ _________________________________
COMPUTER PROCESSING UNIT TAPE SERIAL NUMBER
SERIAL NUMBER
Licensee shall use best efforts to include bracketed provisions in all
sublicense agreements.
Please note that HEALTH CHOICE is only a designated name of the software.
EXHIBIT C
CONFIDENTIALITY AGREEMENT
EXHIBIT C
CONFIDENTIALITY AGREEMENT
The Center for Health Choice ("CHC"), a Pennsylvania Corporation,
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AND
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From time to time, before and after the date hereof, each party may, at
the other's request, disclose to the other certain of its proprietary and/or
confidential information including, but not limited to: company know-how,
techniques and methodology(ies), statistical information, sample reports,
software code and/or algorithms, or, among other things, notes, drawings,
etc. related to the other's business practices or relationship with The
University of Pennsylvania and its Schools or the parties work together. In
addition, either party may make certain of its personnel, consultants,
affiliates and/or agents accessible to the other. The above items and all
data related thereto are collectively referred to, for convenience, as the
"Information".
All such Information when submitted by either party shall clearly
reflect that it is confidential and the other hereby acknowledges receipt of
same under those conditions.
With respect to any and all the foregoing Information, at any time
provided by either party to the other, anything obtained therefrom, or from
any discussions between the parties or with any of their employees,
affiliates, consultants, representatives or agents, the undersigned and each
of their respective personnel, directors, attorneys and consultants
(collectively hereafter referred to for convenience as "Parties") agree as
follows:
(1) Parties will not disclose to anyone or any entity, at any time or
under any circumstances and for any purpose whatsoever any of the
Information. Such Information will be used only for its internal
purposes in connection with its relationship with the other.
(2) Parties will not copy (except for purely internal use as permitted
hereby) or disseminate any of the Information and will destroy or
return anything furnished by the other (including copies it has
made) at the completion of its review and furnish the other with a
certificate of compliance upon the other's request.
(3) Parties will make no use of any of the Information independently
for its own purposes.
(4) Information supplied by the Parties hereunder shall be used solely
for the purposes of the relationship between the Parties.
Notwithstanding the foregoing, the above shall not apply if, and only if, one
or more of the following are in effect:
(a) the Information is clearly in the public domain at the time of
disclosure;
(b) becomes generally available to the public other than as a result of
a disclosure; or
(c) the Information is known to the other prior to its disclosure by
the disclosing party.
To be free of the restrictions of this Agreement in either (a) or (b) above,
the receiving party must notify the disclosing party in writing as soon as
practicable after the receipt of same. Parties further agree that at such
time as Parties are no longer making use of the Information or if the
relationship terminates, the Parties will cease to make any use of the
Information and will: 1) return the Information to whichever party provided
it, or 2) destroy the same and furnish to the providing party an affidavit
duly executed before a notary public by an authorized official, under oath,
certifying the destruction of the Information at the providing party's written
request.
NOTWITHSTANDING THE FOREGOING, THIS CONFIDENTIALITY AGREEMENT IN NO WAY
SUPERSEDES THE UNIVERSITY'S AND ITS EMPLOYEES' RIGHTS, INCLUDING BUT NOT
LIMITED TO ANY RIGHTS TO PUBLICATION, UNDER THE LICENSING AGREEMENT BETWEEN
THE UNIVERSITY OF PENNSYLVANIA AND THE CENTER FOR HEALTH CHOICE.
By my authorized signature below, I hereby agree to the above:
THE CENTER FOR HEALTH CHOICE
By:____________________________ ________________________
Date
Its:___________________________
Duly Authorized Officer
INDIVIDUAL XXX
By:____________________________ ________________________
Date
Its:___________________________
Duly Authorized Officer