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EXHIBIT 6.4
MARKETING AND LICENSE AGREEMENT
FOR
COMPUTER SOFTWARE
AGREEMENT made as of this 1st day of May, 1999 (the "Effective Date")
by and between SureQuest Systems Inc. ("SureQuest"), a Nevada corporation,
having an office at ▇▇▇▇▇ ▇▇ ▇▇▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and Health Technologies,
Inc. ("HTI") a Missouri corporation, having an office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.,
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
A. HTI is a national dietary consulting company with approximately
seven hundred eighty (780) customers, primarily long term care facilities and
food distributors. HTI chooses to have a suite of software programs to recommend
and sell to their customers to implement their consulting advice.
B. SureQuest has a national business of providing a suite of
proprietary software programs in both DOS and Microsoft Windows platforms
("SureQuest Dietary System") and operates a menu services, and serves among
other types of institutions, long term care facilities and food distributors.
C. HTI and SureQuest choose to enter into this Marketing and License
Agreement ("the Agreement") pursuant to which SureQuest will license its
SureQuest Dietary System to HTI for sublicense by HTI to HTI End User (defined
below) customers and SureQuest will train HTI personnel to train others to use
the SureQuest Dietary System to support HTI's business and SureQuest's other
business, all subject to the terms, conditions and limitations set forth in this
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
2. Definitions. For the purposes of this Agreement, the following terms
shall be defined as indicated:
(a) "Licensed Programs" shall mean the computer programs for
the
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SureQuest Dietary System listed in Schedule 1(a) attached hereto including
associated documentation, and all updates and modifications hereafter made to
the Licensed Programs.
(b) "End User" shall mean a HTI customer which has been licensed to use
the Licensed Programs for its own internal use, with no rights to sublicense,
resell or otherwise transfer the Licensed Programs. SureQuest's standard License
Agreement (which will be a part of the User Manual) is attached on Schedule
1(c).
(c) "End User License Agreement" shall mean the executed order and the
user agreement be executed by HTI and an End User.
(d) "Equipment" shall mean the types of computer terminals and
peripherals described on Schedule 1 (d).
(e) "License Fees" shall mean the amounts which HTI shall pay SureQuest
for each license granted to an End User by HTI for the use of the Licensed
Programs as set forth on Schedule 1 (e).
(f) "Problems or Defects" shall mean any failure of the Licensed
Programs to operate in substantial conformance with the Specifications (as such
term is hereafter defined).
(g) "Specifications" shall mean the descriptions of the Licensed
Programs set forth in the User Manuals listed in Schedule 1 (a) to this
Agreement.
(h) "Support Services" shall mean the maintenance services and support
service to be provided to an End User by SureQuest as described in Schedule 7 to
this Agreement.
(i) "Support Services Fees" shall mean those fees for Support Services
set forth on Schedule 1 (e).
(j) Training shall mean those services described in Section 6.
(k) "Training Fees" shall mean those fees for Training Services set
forth on
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Schedule 1 (k).
(3) License and Grant of Right to Sublicense and Distribute the
Licensed Programs.
(a) In consideration for HTI's agreement to market the
Licensed Programs, as described herein, SureQuest hereby licenses to HTI to
sublicense the Licensed Programs only, to End Users only, subject to the terms,
conditions and limitations set forth in this Agreement. The license granted by
SureQuest hereunder to HTI for the SureQuest Dietary System is limited to
relicensing to End Users in the United States of America, and is non-exclusive
and non-transferable and may not be assigned by HTI except as provided in
paragraph 25(g). HTI agrees that the sublicense agreements to End Users shall
include at least the same restrictions on sublicenses as are imposed on HTI in
this Agreement, as the license. Because the license granted herein is limited to
End Users (which cannot themselves relicense the Licensed Programs), this
Agreement would not apply to HTI's ability to license the Licensed Programs to a
food distributor or other entity which, in turn, would relicense the Licensed
Programs. SureQuest and HTI agree to enter into a separate agreement for each
such situation.
(b) HTI will actively market and promote the SureQuest Dietary
System to End Users and to potential End Users. HTI agrees that for the
duration of the Agreement the SureQuest Dietary System shall be the only service
of its kind offered, marketed and promoted by HTI to its End Users unless a
potential End User justifies in writing why it must use a different dietary
software program. HTI also agrees, where appropriate, to substitute the
SureQuest Dietary System for the Source Tech dietary system currently being used
by some of HTI's customers, provided that SureQuest can meet or better the
pricing, service and quality of the Source Tech dietary system and that the
customer agrees to the change.
(c) SureQuest agrees that it will not develop another private
label for the software products set forth on Schedule 1(a) for another dietary
consulting company similar to HTI for use in the states of Missouri, Illinois,
Arkansas, Alabama, Georgia, Kansas, Ohio and Indiana so long as HTI meets or
exceeds the following performance standards: (a) for the first year of
operations (June 1, 1999 to May 30, 2000), HTI shall have finalized and
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SureQuest shall have received money for the sale of __________ Licensed Programs
and for each year thereafter (June 1 to May 30), HTI shall have finalized and
SureQuest shall have received the money for the sale or placement of
_________________ Licensed Programs.
(d) HTI hereby acknowledges that the Licensed Programs are
the property of SureQuest and incorporate valuable copyrights and trade secrets
of SureQuest and that SureQuest shall have exclusive proprietary rights in the
Licensed Programs and in all modifications and upgrades thereto and versions
thereof, including all copyrights, trade secrets and other proprietary concepts,
ideas, know-how and information incorporated therein. HTI will not, nor will it
allow any End User to, reverse engineer, disassemble, decompose, modify, amend,
or similarly manipulate all or any portion of the Licensed Programs, provided
that HTI or SureQuest may create an interface between other software programs of
End Users and the Licensed Programs but may not otherwise incorporate the
Licensed Programs into these other software programs. HTI will not do or
suffer to be done at any time any act or thing which may in any way adversely
affect any rights of SureQuest in and to the Licensed Programs.
SureQuest agrees to make one (1) copy of the current version
of the Licensed Programs for End Users that enter into an End User License
Agreement. To do so, HTI agrees to provide to SureQuest, in advance at least
monthly and in an agreed-upon electronic format, the data (to include diets and
menus) which SureQuest will merge into the Licensed Programs before the Licensed
Program is distributed to the End User. This data will be kept confidential by
SureQuest and may be used by SureQuest, together with similar data from other
SureQuest customers, for its general business purposes. This last sentence will
survive the termination of this Agreement.
4. Terms of License and This Agreement.
(a) This Agreement and the licenses granted hereunder shall
become effective as of the Effective Date and shall continue in effect for a
period of five (5) years from the Effective Date ("Initial Term") and from year
to year thereafter so long as neither party terminates this Agreement in
accordance with its terms.
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(b) Either party may terminate this Agreement with or without
cause by giving written notice at least ninety (90) days prior to the
termination of the Initial Term or prior to the termination of any renewal term
thereafter, provided, however there shall be no termination until each party
shall have fully complied with each of its obligations hereunder.
(c) The termination of this Agreement shall not affect the
obligations of HTI or SureQuest under any executed End User License Agreement,
and each such End User License Agreement shall continue in effect as though this
Agreement had not been terminated. Upon the termination of this Agreement,
SureQuest shall be substituted as the Licensor under the End User License
Agreement and for two (2) years after such termination, HTI and SureQuest will
continue to provide Support Services as set forth in Schedule 7 hereto and
SureQuest shall continue to receive the fees for such services in accordance
with this Agreement. This paragraph 4(c) shall survive the termination of the
Agreement. A copy of the executed End User License shall be furnished to
SureQuest within fifteen (15) days of execution.
5. Acquisition of Software Licenses.
(a) HTI shall have the right to acquire software licenses
from SureQuest for the single user and multi-user versions of the Licensed
Programs at the prices set forth on Schedule 1(e). The base prices set forth in
such Schedule may not be increased until April 15, 2000 and thereafter only once
annually and any increase shall not exceed the percentage increase in the
consumer price Index ("CPI") for the twelve (12) months preceding the date of
the price increase, as such CPI is published by the Bureau of Labor Statistics.
In the event SureQuest reduces its current list price for one or more of its
products below those established by SureQuest on May 1, 1999, the base price
established for HTI for that product on Schedule 1(e) shall be reduced by a
similar percentage and SureQuest shall so notify HTI to that effect. For those
Licensed Programs which are acquired on other than a monthly basis, HTI shall
pay for each license within thirty (30) days after invoice by SureQuest, as
follows: fifty percent (50%) at the time of signing the acquisition order and
fifty percent (50%) at the time the Licensed Program is installed. HTI shall
also have the right to acquire SureQuest Dietary Systems by paying the monthly
fees set forth on Schedule 1(e) provided that HTI shall commit to make the
monthly payments upon the following
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terms: for 1 to 74 Licensed Programs, a minimum of nine (9) months; for 75 to
149 Licensed Programs, a minimum of six (6) months; and for at least 150
Licensed Programs, a minimum of three (3) months; provided, however, that HTI
shall continue to pay the monthly fee for each Licensed Program acquired on a
monthly basis until SureQuest receives in its possession any such Licensed
Program for which HTI wishes to cease payments on.
SureQuest shall look solely to HTI for receiving these License
Fee payments and all monthly License Fees shall continue to be paid for each
Licensed Program until SureQuest receives written assurance that the Licensed
Program has been removed from the End User's hardware and receives in its
possession any such Licensed Program for which HTI wishes to cease payments on,
regardless of when the End User has stopped using such Licensed Program.
(b) HTI shall be free to set its own prices to End Users,
provided that such prices shall not exceed those base prices listed on Schedule
1(e) or on SureQuest's established price list which HTI, upon request, has a
right to obtain, unless HTI receives the written consent from SureQuest to
charge otherwise for the sublicense to an End User. HTI agrees not to network,
nor allow End Users to network, multiple users on a single licensed software.
HTI shall only have the right to use as many copies of the Licensed Property
as are covered by license fees paid hereunder The prices set forth herein do not
include sales, use or similar taxes not based on income which also shall be paid
by HTI to SureQuest. Each license acquired shall include one (1) copy of the
users manual. Additional user manuals may be purchased for _______________
________) each.
(c) HTI shall provide to SureQuest, in writing, at the
beginning of each month its best estimate of the types of Licensed Programs to
be acquired that month and the names and addresses of the facilities which are
expected to use such programs. This is not a commitment to acquire these
Licensed Programs but only to give SureQuest advance notice so that it can
prepare accordingly. HTI shall notify SureQuest within fifteen (15) days after
it enters into an End User License Agreement which includes the Licensed
Programs, and shall provide a copy of the End User License to SureQuest within
that fifteen (15) day period. Such End User License shall be in substantially
the forms agreed to in writing by HTI and SureQuest unless the parties otherwise
agree in writing.
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(d) SureQuest will ship the appropriate Licensed Program and
related materials directly to the End User for which SureQuest has received an
End User License Agreement at regular UPS ground rates within fifteen (15)
working days of receiving a copy of such agreements (with the name and address
of the appropriate institution) and notice of the date such institution is to be
trained, and the name of the HTI trainer who will do the installation and
training.
6. Training Services.
(a) Train The Trainer. SureQuest will train those HTI
registered dietitians and other qualified individuals identified by HTI to train
End-Users and other potential users designated by SureQuest on how to install,
operate, use and support the Licensed Programs. Such "train the trainer" program
shall be conducted pursuant to the "SureQuest Trainer Certification Program" set
forth on Schedule 6 (a). Each individual, so properly trained and qualified,
shall receive a certification by SureQuest that they are qualified to train End
Users on the use of the Licensed Programs and to support the Licensed Programs.
Such trainers shall attend annual training updates presented by SureQuest, at
HTI's expense, to qualify for annual re-certification.
SureQuest has explained to HTI the importance of getting
HTI personnel trained as quickly as possible to become trainers. HTI
understands the importance for both HTI's business and SureQuest's business to
expedite this training program and, therefore, agrees that at least fifteen (15)
qualified HTI individuals, with appropriate geographic distribution, will be
trained as certified trainers within the first ninety (90) days following the
date of this Agreement. SureQuest and HTI will develop, as soon as possible, a
training schedule with dates and locations and numbers of attendees to meet this
training schedule.
(b) Training End Users. When requested by HTI, and after
appropriate notice of at least thirty (30) days, SureQuest shall train End-Users
on the use of the Licensed Programs. The parties agree that no software
installation shall be arranged with an End User unless first a Training date has
been set with the End User. The End User training requirements are set forth on
Schedule 1(b).
(c) Training HTI Personnel to Market and Sell. SureQuest
agrees to train the appropriate HTI personnel designated by HTI and approved by
SureQuest on how to
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market, sell, and demonstrate the Licensed Programs to potential End Users and
to other SureQuest clients. HTI and SureQuest will meet within the first thirty
(30) days after signing this Agreement to develop a plan to implement such
training. The parties also agree to enter into a separate Marketing Agreement to
provide for those situations where HTI requests SureQuest to market, sell and
demonstrate the Licensed Programs, without the participation of an HTI
representative, to potential HTI End User and, conversely, where SureQuest
requests HTI to market, sell and demonstrate the Licensed Programs, without the
participation of a SureQuest representative, to a potential SureQuest customer
which will not become an HTI EndUser. HTI also agrees to include SureQuest
personnel to describe the Licensed Programs as part of the formal agenda of the
annual consultants meeting of the HTI dietitians.
(d) HTI agrees that SureQuest is the best qualified to provide
the training described in 6 (a) and (c) above and, therefore, in order to
provide consistency in training and to maintain quality control over the
training, HTI agrees that it will not directly provide such training to its
personnel. Also, each HTI individual trained by SureQuest to conduct on one or
more of the activities listed in 6 (a) or (c) above shall agree in writing that
they are independent contractors, not agents, of SureQuest, and, if they are
working with a SureQuest client which is not an HTI customer, they agree they
will not offer to sell any other product or program, will not discuss or try to
change any food distribution agreement which the customer may have or take any
other action with that customer other than to train, market or sell the Licensed
Programs.
(e) Training Fees. HTI and SureQuest agree that the Training
Fees are those fees set forth on Schedule 1 (k). For training by HTI of HTI End
User and of SureQuest clients on how to operate and use the Licensed Programs,
SureQuest agrees that HTI shall receive 75% of the Training Fees set forth in
paragraphs 3 and 4 on Schedule 1(k) for those institutions for which HTI
provides such training. Whenever HTI provides such training, it shall provide in
writing to SureQuest, within five (5) days of such training the following
information: (1) the name of the institution and the names of the people so
trained and whether or not it is an HTI End User or a SureQuest client; (2) the
date(s) of the training; (3) the name of the "contact" person at the
institution; (4) the name of the HTI trainer and (5) the amount of the out of
pocket expenses (including supporting documentation) incurred by the HTI
trainer.
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For HTI End Users, HTI shall invoice the institution so
trained within ten (10) days of the training (with a copy thereof to SureQuest),
and shall remit to SureQuest the 25% of the Training Fees within thirty (30)
days of such invoice.
For SureQuest clients for which HTI provides training,
SureQuest agrees to send an invoice for such training to that institution within
ten (10) days of receiving such information from HTI. Such invoice shall include
the out-of-pocket expenses incurred by HTI for such training and SureQuest
agrees to remit to HTI 75% of the Training Fees and all moneys received from
that institution for the payment of such HTI out of pocket expenses. Also
SureQuest agrees in its invoice to the institution to make it clearly understood
by the institution that the invoice relates to training services provided by HTI
but that payments are to be made to SureQuest.
7. Maintenance and Support Services.
(a) The Support Services to be provided to an End User are set
forth in Schedule 7 of this Agreement. HTI shall provide all initial telephone
and help line support to the End User (defined on Schedule 7 as "first tier"
support) and shall direct to SureQuest only those technical questions and issues
which require resolution by SureQuest (defined on Schedule 7 as "second tier"
support. The Support Fees set forth in Schedule 1 (e) do not contemplate that
SureQuest will provide "first tier" support to HTI's End Users. SureQuest shall
correct all Problems and Defects so that the SureQuest Dietary System and
Licensed Programs comply with the Specifications. HTI shall promptly report to
SureQuest in writing all Problems and Defects of which it becomes aware.
(b) The charge for the maintenance and support services shall
commence in the month following the date of acquisition by HTI of the license
(whether on a monthly basis or otherwise) and shall be payable on or before the
thirtieth (30) of that month and every succeeding month during the term of this
Agreement.
(c) SureQuest shall provide to HTI, from time to time, a
copy of all modifications and updates and related documentation which are made
to the SureQuest Dietary System.
(d) In order to inform SureQuest of those HTI End Users who
are entitled to maintenance and Support Services, HTI will provide to SureQuest
in writing the names
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and addresses (and contact person) of End Users as each enters into an End User
License Agreement. From this information provided to it, SureQuest agrees to
provide to HTI monthly a list of those End Users which are using the Licensed
Programs and which Program they are so using. Such monthly list shall indicate
new End Users and any End Users which have given notice to HTI that it intents
to (or has) discontinued the use of any Licensed Program. HTI agrees to give to
SureQuest promptly a copy of the completed "discontinuance form" which HTI
receives from an End User wishing to terminate the service and the date of such
termination and SureQuest's receipt of such form will be notice to it that such
End User has indicated that it wishes to discontinue the use of the Licensed
Programs and the termination date.
(e) In the case of Support Service Fees, HTI shall pay
SureQuest the relevant Fee set forth in Schedule 1 (e), unless the parties agree
otherwise, for Support Services provided by SureQuest to HTI or to End Users.
Such Fees shall be billed by SureQuest monthly on the first of each month for
the Fees for each succeeding month. Such Fees shall be paid by HTI within thirty
(30) days after receipt of an invoice therefore by SureQuest.
8. Demonstration Materials / Marketing Materials
Until a multi-user Windows product is available, SureQuest
shall provide to HTI one (1) license free copy of the single-user Licensed
Programs for each HTI staff member (including dietitians) who has been certified
by SureQuest to provide training or customer support for the Licensed Programs
or for demonstration, testing and back-up purposes only (as long as each HTI
staff member continues to be qualified as a certified trainer or marketer or to
provide support services). SureQuest shall not charge HTI for maintenance and
Support Fees for these copies of the Licensed Programs. SureQuest shall also
provide marketing assistance to HTI in the development of an initial marketing
brochure and other printed material relating to the Licensed Programs. The
actual cost of and production of the marketing materials (exclusive of any
reasonable staff time) and the production of any demonstration diskettes of the
Licensed Programs shall be billed to and payable by HTI to SureQuest AT
SureQuest's cost (time and materials), plus 15%. SureQuest agrees to give to
HTI, in advance of beginning the work, a written estimate of the cost to
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produce such marketing materials and demonstration diskettes.
9. Interface Development / Customization.
SureQuest agrees to provide, at the written request of the End
User, any necessary interface for an End User to integrate the Licensed Programs
into the End User's other software programs. These services shall be provided on
a time and materials basis and will be based upon a not to exceed estimate
provided by SureQuest to the End User. SureQuest also agrees to provide any
customization to the licensed Programs for use by HTI or End Users, upon terms
mutually agreeable to the parties.
10. Private Label/Product Development.
SureQuest and HTI hereby agree that SureQuest shall develop a private label
product for HTI, to be known as "Smart Solutions," for SureQuest's DOS-based and
Microsoft Windows-based software programs described on Schedule 1 (a).
SureQuest's price for developing this private label for all
these software programs is, in the aggregate, ________________________________
which HTI agrees to pay as follows: (i) ______________________________________
shall be paid at the time of the execution and delivery of this Agreement; (ii)
_________________________________ shall be paid with the completion and delivery
to HTI of the private label for the DOS-based and the Three Squares(R) software
programs; and (iii) ______________________________ shall be paid with the
completion and delivery to HTI of the private label for the yet to be developed
"Square 1" and "Square 2" windows-based software. The _______________________
and the ____________________ payments shall be paid to SureQuest within ten (10)
days after invoice.
SureQuest agrees that the above fee for the private label
product shall include cost of SureQuest's providing the necessary interface with
the direct ordering software for the following food distributors:
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HTI agrees that no other software program or service bureau (other than
the one operated by HTI) shall be given the name "Smart Solutions".
11. Pilot Program.
In order to test the Licensed Programs in the operations of HTI End
Users, SureQuest agrees that HTI may use, for a 60 day period, SurePref as (the
DOS based software) in two (2) HTI End Users and Three Squares(R) the
Windows-based software in one (1) HTI End User. SureQuest agrees that HTI shall
have use of the DOS based software free of charge for this sixty (60) day pilot
program but agrees to pay the License Fee for these two Licensed Programs after
such sixty (60) day pilot program. The Windows-based software shall consist of
the Three Squares program and shall be installed in the River Bluff Care Center,
Rockford, IL. River Bluff has already paid SureQuest ______ as one-half of the
acquisition price for such Three Squares program and will pay the balance of the
acquisition price upon invoice from SureQuest. This acquisition price includes
training for the software. River Bluff is an HTI End User and HTI will get
credit for the River Bluff sale for the purpose of the HTI discounts set forth
on Schedule 1(e). SureQuest also agrees to provide the installation and training
for these software programs for their pilot period at SureQuest's list prices.
These fees for the SurePref software will be invoiced and paid to SureQuest
within thirty (30) days of the installation and training. If, after this 60 day
pilot program, HTI is not pleased with the results of the software it shall
provide to SureQuest, in writing, the deficiencies in the operation of the
software (as opposed to additional features which HTI would like in the software
but which are not currently present in the software). SureQuest agrees to
evaluate such deficiencies and to correct them, in a commercially reasonable
time, to HTI's satisfaction. If HTI is not satisfied, it shall give notice to
that effect and the reasons for the dissatisfaction. SureQuest and HTI agree to
meet and to use their best efforts to work out HTI's dissatisfaction within (30)
day period. If after the thirty (30) day period, HTI is still not satisfied, HTI
may give written notice to terminate this Agreement and HTI shall reimburse
SureQuest for any out of pocket costs it may have incurred in connection with
this Agreement.
12. Menu Service Business. HTI represents that it has approximately ___
customers which are receiving "hard copy" menus from HTI. At this time, HTI is
not
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interested in having SureQuest provide "hard copy" menus to these customers, but
HTI does desire to use SureQuest's Licensed Programs to support this menu
service business. SureQuest agrees to provide HTI Licensed Programs for HTI's
menu service business provided that HTI pays SureQuest, on a quarterly basis and
within thirty (30) days of invoice, as follows: (i) from May 1, 1999 until
SureQuest completes and delivers to HTI the changes to the Licensed Programs set
forth on Schedule 12 (the "Software Delivery Date"), _____ per HTI menu service
customer per calendar quarter (the first period for payment shall be May 1 until
June 30, 1999 and then the calendar quarters shall commence on July 1, 1999);
(ii) from the Software Delivery Date until June 30, 2000, _____ per HTI menu
service customer per calendar quarter (beginning with the calendar quarter
commencing after the Software Delivery Date); and (iii) beginning with the
calendar quarter commencing on July 1, 2000 and for each calendar quarter
thereafter, _____ per HTI menu service customer per calendar quarter. In each
case, when calculating the menu service customers, it shall include all such
customers added after the date of this Agreement. These payments shall
constitute the license fee for the use of the Licensed Programs for this
purpose. In the event that the number of HTI customers using HTI's "hard copy"
menus falls below ___ for whatever reason, HTI agrees nevertheless to continue
to pay SureQuest on the basis that there are ___ such customers. HTI agrees to
provide SureQuest, in writing, within ten (10) days after the close of each
calendar quarter, a list of its hard copy menu service customers and any
additions or deletions from the previous list. If is determined that HTI does
not have at least ___ menu service customers at the time of the execution of
this Agreement, HTI agrees that SureQuest shall be entitled to adjust upwards
the quarterly fee mentioned above.
13. Database Input/Data Conversions. SureQuest agrees to input the
original databases for HTI by entering HTI custom recipes, menu designs and diet
types. SureQuest's cost to provide this data input service shall vary depending
upon a number of factors, including the form that the data is in, the quality of
the data and the time allotted to perform the work. Therefore it is difficult to
determine, in advance, what these costs are and therefore the cost for data
input shall be agreed to by SureQuest and HTI before the work commences.
SureQuest also agrees to convert data for HTI or an End User
upon the conversion by an End User from a DOS-based product to a Windows-based
product.
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Again, the parties shall agree in advance on the fees to be paid to SureQuest to
perform these services.
14. Hardware and Data Line. In order for HTI's customers to receive
full benefit from, and to allow SureQuest to provide the appropriate software
support, it is necessary that HTI's End Users have appropriate hardware and
dedicated data lines. Schedule 1(d) lists the appropriate hardware requirements
which are currently necessary to operate the Licensed Programs properly and
SureQuest's Support Fees are based on the assumption that all End Users will
have the appropriate Equipment. The parties agree that hardware specifications
may change in the future to accommodate updated software and that HTI's End User
may have to upgrade hardware in these instances. Also, each HTI End User shall
have a dedicated, direct modem line for certain of the Licensed Programs.
15. Relocated Software. If HTI relocates the SureQuest Dietary System
from one site or facility to another site or facility, HTI shall so notify
SureQuest and SureQuest shall provide HTI (to be provided to the new End User) a
new install disk and a new user manual for a total cost of _____________________
_________. This fee for new install disks and user manuals may increase, from
time to time, if SureQuest increases these fees for other SureQuest clients for
replacement software or additional manuals. The new install disk will contain
the latest databases. Before SureQuest will provide the new disk and manual, HTI
shall return to SureQuest the superceded program disk and manual.
16. Potential Business Conflicts.
(a) The parties agree that the facilities listed on Schedule
16 are the only facilities with which both SureQuest and HTI currently have a
business interest and, to that extent, the parties wish to define the working
relationship for such facilities.
With respect to such facilities listed on Schedule 16, HTI may
sell to these facilities additional SureQuest Licensed Programs under the HTI
private label "Smart Solutions" and HTI will get credit for any such sales for
purposes of the percentage discounts set forth on Schedule 1(e). HTI will
provide "first tier" support for these new Licensed Programs at HTI's usual
compensation for such services. With respect to the Licensed Programs which are
already installed in such facilities (as specified on Schedule 16),
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HTI agrees to provide "first tier" support for these existing Licensed Programs
for no additional compensation to HTI with the understanding that SureQuest
will invoice HTI for support of such existing Licensed Programs, at
SureQuest's current billing rates to such facilities, and HTI will pay
SureQuest the total amount of such invoices within thirty (30) days of invoice.
(b) If HTI "sells" a monthly arrangement for the use of new
Licensed Programs to such facilities under the "Smart Solutions" private label,
HTI agrees that SureQuest will receive the total monthly payments and that
HTI will provide the "first tier" support for such Licensed Facilities at no
additional compensation.
17. Confidentiality of Agreement and use of Trademarks.
(a) The Fees and all other terms and conditions of this
Agreement are confidential and shall not be disclosed to third parties,
including End Users without the written agreement of both parties.
Notwithstanding the foregoing, either party may disclose the existence and the
terms of this Agreement to potential investors, dietary advisors, attorneys or
accountants in connection with any investment in or acquisition of a party, but
only after written notice has been given to the other party and such persons
agree to keep such information confidential and not to use it except in
connection with such investment or acquisition. The parties agree that each may
refer to the other and to this business relationship in promotional material,
press releases and disclosure documents, provided that the other party reviews
and approves such references prior to dissemination thereof, except as may be
required by law.
(b) Either party may use the trademarks, tradenames,
copyrights or other proprietary rights or trade designations of the other in any
promotional or other written materials for general dissemination to End Users or
otherwise, provided that the form of such usage shall be approved by the other
party in writing. In no event however shall HTI remove any copyright or other
proprietary rights or identifying legend of SureQuest from the Licensed
Programs.
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18. Proprietary Information.
(a) Both parties acknowledge that in the course of performing
their respective obligations hereunder, they shall be receiving information
which is proprietary and confidential to the disclosing party and which the
disclosing party wishes to protect from public disclosure ("Proprietary
Information"). Proprietary Information as used herein includes without
limitation all information disclosed at any time before, after, or at the time
of execution of this Agreement between the parties relating to the Licensed
Programs, and any other confidential information or trade secrets disclosed
between the parties relating to their respective businesses, customers,
products, marketing and sales plans, financial status, product development
plans, strategies and the like.
(b) Each party (i) shall hold such Proprietary Information in
confidence and not disclose it, except to its employees or representatives to
whom disclosure is necessary to effect the purposes of this Agreement and who
are similarly bound to hold the Proprietary Information in confidence; (ii)
shall use its best efforts to prevent inadvertent or unauthorized disclosure of
any Proprietary Information; (iii) shall not make any use of any Proprietary
Information except to the extent necessary to carry out the intent of this
Agreement; and (iv) shall use reasonable care, but in any event not less than
the care it uses to protect its own proprietary information, to protect the
other party's Proprietary Information.
(c) Nothing in this Agreement shall be interpreted as placing
any obligation of confidence and non-use on a party with respect to any
Proprietary Information that (i) can be demonstrated to have been in the public
domain as of the effective date of this Agreement or comes into the public
domain during the duration of this Agreement through no fault of such party, or
(ii) can be demonstrated to have been independently developed by such party, or
(iii) is rightfully received by such party from a third party not under an
obligation of confidence to the other party hereto.
19. Default.
(a) In addition to the termination provisions contained in
paragraph 4, this Agreement may be terminated if either party is in default of
any of its material obligations hereunder, and has not commenced cure within ten
(10) days and effected cure of such
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default within thirty (30) days of receipt of written notice of default from the
other party, unless the default is not able to be cured within a thirty (30) day
period, then it shall be cured within a commercially reasonable time.
(b) Subject to the provisions of paragraph 4(c) above relating
to the sublicenses granted to End Users, within ten (10) days after the
termination of this Agreement for any reason, HTI shall return all copies of
the Licensed Programs or portions thereof and related documentation and manuals,
as specified by SureQuest, and shall certify in writing to SureQuest that all
copies of the Licensed Programs or portion thereof in any form have been
returned to SureQuest, and that all software has been removed from all HTI and
End User computers.
20. Patent, Copyright and Trade Secret Indemnity.
(a) SureQuest represents and warrants that it has the right to
grant the licenses granted to HTI hereunder.
(b) SureQuest will defend and indemnify HTI for all costs
(including reasonable attorneys fees) arising from a claim that the Licensed
Programs infringes an existing United States patent, or a copyright, or trade
secret right of a third party, provided that (i) HTI notifies SureQuest of any
such claim in writing within 30 days of the claim, (ii) SureQuest has sole
control of the defense and all related settlement negotiations, and (iii) HTI
provides SureQuest with the assistance, information and authority necessary to
perform the above (reasonable out-of-pocket expenses incurred by HTI in
providing such assistance will be reimbursed by SureQuest).
(c) SureQuest shall have no liability for any claim of
infringement hereunder based on (i) use of a superseded or altered release of
the Licensed Programs if such infringement would have been avoided by the use of
a current unaltered release of the Licensed Programs that SureQuest provides to
HTI, or (ii) the combination, operation or use of the Licensed Programs
furnished under this Agreement with other programs, data or equipment not
provided or approved by SureQuest.
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(d) In the event the Licensed Programs are held or believed by
SureQuest to infringe, SureQuest shall have the option, at its expense, to (i)
modify the Licensed Programs to make them non-infringing, (ii) obtain for HTI
a license to continue relicensing the Licensed Programs, (iii) substitute the
Licensed Programs with other software reasonably suitable to HTI, or (iv) if
none of the foregoing remedies are commercially reasonable, terminate the
license for the infringing Licensed Programs and refund the license fees paid by
an End User for those Licensed Programs, prorated in accordance with the terms
of the End User License Agreements then in effect.
21. Product Warranty.
(a) SureQuest warrants to HTI that the Licensed Programs
unless modified by HTI, and the accompanying media, will perform the functions
described in its Specifications in all material respects when operated on the
hardware platform and dedicated data line as specified in Schedule 14. Any claim
submitted under this warranty must be submitted in writing together with the
media and End User data to SureQuest. SureQuest's obligation for warranty claims
shall be, at its option, to (i) replace the defective Licensed Programs or media
with the Licensed Programs or media that conforms to the above warranty, (ii)
provide a workaround, or (iii) return the applicable Fees paid to SureQuest
which must be returned to any End User due to the breach by SureQuest of the
warranty provided in this paragraph. HTI agrees not to modify in any way the
Licensed Programs except to the extent necessary to provide the interface
referenced in Paragraph 3(c) above, which interface shall be reviewed and
approved in writing by SureQuest.
(b) SureQuest warrants that, not later than July 1, 1999, the
Licensed Programs shall (i) properly execute with all date data, whether from
years in the same century or different centuries, and across century boundaries,
including by yielding correct results in arithmetic operations, comparisons and
sorting of date fields, (ii) not abnormally cease to execute or return an
erroneous error message to date related processing; and (iii) correctly
recognize and process the date of February 29, and any related date data, during
leap years, including the leap year occurring in the year 2000;
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(c) SureQuest warrants that, using commercially available
off-the-shelf software to confirm this warranty, the Licensed Programs contains
no computer virus or other contaminants, including any codes or instruction that
may be used to access, modify, delete (other than an intended operation), damage
or disable Licensee's computer system, including but not be limited to security
or expiration codes.
(d) THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
22. Limited Liability.
NEITHER PARTY SHALL, IN ANY EVENT, BE LIABLE TO THE OTHER
PARTY OR ITS EMPLOYEES, AGENTS, AFFILIATES OR SUBLICENSES, FOR ANY LOSS OF
PROFIT, GOODWILL OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES SUFFERED BY
THE OTHER PARTY OR ITS EMPLOYEES, AFFILIATES, AGENTS OR SUBLICENSES, EVEN IF THE
PARTY AGAINST WHOM THE CLAIM IS BEING MADE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS OR DAMAGE.
23. Escrow Source Code.
An escrow is being established to assure HTI's ability to
provide maintenance to the Licensed Programs and to continue to offer it to its
customers should Surequest become unable or unwilling to perform under this
Agreement to such a material extent that its inability or unwillingness
jeopardizes the maintenance of the Licensed Programs or HTI's ability to offer
the Licensed Programs to its customers. Should any such event happen, HTI
agrees to give SureQuest written notice of any such inability or unwillingness
which HTI reasonably believes jeopardizes the maintenance of the Licensed
Programs or HTI's ability to offer the Licensed Programs to its customers.
SureQuest shall have thirty (30) days to respond in writing to the alleged
inability or unwillingness. If the parties are not able to resolve the dispute,
the matter shall be submitted to arbitration as
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provided in Section 26 (b) below. The final decision of the arbitration shall
determine whether HTI shall receive a copy of the source code of the Licensed
Properties or whether SureQuest shall eliminate its inability or unwillingness
to perform its obligations under this Agreement.
Within sixty (60) days following execution of this Agreement,
SureQuest shall place into escrow an executable copy of the Licensed Programs
and a copy of the source code and, within thirty (30) days of release to HTI
of any maintenance, upgrades or modifications to the Licensed Programs which
required changes to the source codes shall place into escrow an updated
executable copy of the Licensed Programs and copy of the source code. The
parties shall share equally the responsibility for payment of all fees charged
by the escrow agent. SureQuest's contribution to such fees may take the form of
a credit against billing to HTI.
The escrow agent shall be fort ▇▇▇▇ and the escrow shall be
established, maintained, and dissolved according to the terms of the escrow
agreement to be agreed to consistent with the terms of this Agreement.
Should HTI acquire the source code from the escrow, HTI
shall be granted a non-transferable, irrevocable, non-exclusive license to use
the source code only to support its license to use, and license its customers to
use, the Licensed Property only pursuant to this Agreement and any other
agreement between HTI and SureQuest. Ownership of the source code, and all
intellectual property rights, including, but not limited to, copyright, trade
secret, and patent rights, in the source code and any modifications and
additions thereto, by whomever made, shall remain vested in SureQuest. HTI
shall not use, or permit others to use, the source code or its license to
complete in any manner with SureQuest.
24. Payment Provisions.
For the license fee and services provided to by SureQuest to
HTI and to HTI End Users, SureQuest will submit invoices to HTI and HTI
agrees to remit payment to SureQuest within thirty (30) business days from the
date of invoice. Payments due and not received by SureQuest in accordance with
the terms of this Agreement are subject to and
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may be assessed interest charges equal to one (1.0%) per cent per month on the
unpaid balance.
25. Force Majeure.
SureQuest and HTI shall not be held liable for any delay or
failure in performance of any part of this Agreement nor pursuant to an Order or
License Agreement under this Agreement caused by fire, embargo, war, a labor
dispute, government requirement, act of God or by the public enemy, or causes
beyond its control, whether or not similar to the foregoing.
26. General Provisions.
(a) Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Texas, without giving effect to the
principles of the conflicts of law.
(b) Arbitration. Except as otherwise provided in this
Agreement, all disputes, claims and controversies between the parties arising
out of or related to this Agreement, hereinafter designated "Disputed Matter",
shall be referred first to an officer of HTI and an officer of SureQuest who
can contractually commit their respective companies. In the event such officers
cannot resolve a Disputed Matter, either party may request the matter to be
submitted to binding arbitration in Dallas, if HTI is the requesting party,
and in St. Louis, MO, if SureQuest is the requesting party. Such arbitration
shall be conducted in accordance with the commercial arbitration rules of the
American Arbitration Association then prevailing. The party requesting the
arbitration shall request the American Arbitration Association to:
(A) Appoint an arbitrator who: (i) is familiar with the
computer software industry; (ii) will follow substantive rules of law; (iii)
will abide by the terms and conditions of this Agreement; and (iv) may require
such procedures as discovery and the submission of written briefs;
(B) Require the testimony to be transcribed;
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(C) Require the award to be accompanied by findings of fact
and a statement of reasons for the decision; and
(D) Judgment upon any award made in such arbitration may be
entered and enforced in any court of competent jurisdiction.
(E) Each party shall be responsible for payment of their costs
and attorney fees.
(c) Entire Agreement. This Agreement and the schedules and
exhibits attached hereto contain the entire understanding of the parties with
respect to the matter contained herein. There are no promises, covenants or
undertakings contained in any other writing or oral communication. In the event
of any conflict between or among the documents comprising this Agreement, the
later or latest shall prevail.
(d) Written Modifications. This Agreement may not be modified
except in a writing signed by authorized representatives of the parties.
(e) Notices. Any notices required or permitted to be sent
hereunder shall be delivered by hand; by a recognized international courier
service; or sent by Certified or Registered Mail, Return Receipt Requested.
Notices shall be sent to the addresses first set forth below or to such other
address as a party may designate by notice pursuant hereto. Notices to SureQuest
or HTI shall be sent "Attention: President". Notices shall be effective upon
the date when delivery is either effected or refused.
(f) Waiver. A waiver of a breach or default under this
Agreement shall not be a waiver of any subsequent default. Failure of either
party to enforce compliance with any term or condition of this Agreement shall
not constitute a waiver of such term or condition.
(g) Assignment. This Agreement may not be assigned by either
party without the written consent of the other party except to a third party
which acquires all or substantially all of the outstanding shares or all or
substantially all of assets of the assigning
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party, provided that the party seeking to assign this Agreement shall provide
not less than thirty (30) days prior notice of such intention to the other
party, and shall not make such assignment if within ten (10) days after it has
sent such notice it is notified that the proposed assignee is a competitor of
the other party.
(h) Non-Compete. HTI agrees that for the duration of this
Agreement HTI shall not, within the United States, acquire, develop, or enter
into an agreement with a third party regarding a dietary software program
similar to the SureQuest Dietary System. HTI also agrees that for two (2)
years after the termination of this Agreement, HTI shall not solicit, propose
or otherwise encourage any End Users which are using the License Program to
terminate the use of such Licensed Program.
(i) Invalid Agreement. If any term, provision covenant or
condition of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of the provisions shall remain in full
force and effect and not be affected, impaired or invalidated thereby.
(j) Captions. The captions of this Agreement are for the
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
(k) Mutual Duties and Obligations. The parties agree that,
upon the request of the other, each shall promptly execute, swear to,
acknowledge under oath and/or deliver such further documents and instruments,
information and other further assurances and promptly perform further acts as
may be necessary, appropriate or incidental to carry out the intent and purpose
of this Agreement.
(l) Shipping Charges. The parties agree that where expedited
delivery of the Licensed Programs is required, the party responsible for the
need for expedited delivery shall pay all charges relating to such delivery
method. For purposes of clarity only, for example, if expedited delivery is
required due to SureQuest's failure to act in a timely manner, SureQuest shall
pay all shipping charges, but if it is required due to a non-SureQuest
precipitated emergency of HTI, HTI shall pay such shipping charges.
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IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Health Technologies, Inc. SureQuest Systems Inc.
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
------------------------------ ------------------------------
By By
Title President Title President
------------------------- -------------------------
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SCHEDULE 6(a) Page 2
TRAINER TRAINING REQUIREMENTS
Effective training is absolutely essential to provide optimal use of the
software products. It is essential for each trainer to be able to effectively
use the software programs and be able to relay this knowledge to the End User.
To provide the best training possible, the following outlines the time
requirements for training the trainer for each program. (Due to growing
functionality of the programs, these times may change. Required means Required
to insure accurate and/or optimum use of the program/system.) As new programs
are developed, the training requirements will likewise be established and
included in the train the trainer program.
- SUREPREF(TM) - (1 day) - 1 day training required including trainer test
- plus an End User training to be scheduled at a
later date.
- SUREWEIGHT(TM) - 1/2 day training required including trainer test.
- SUREASSESS(TM) - 1/2 day training required including trainer test.
- SUREMENU(TM) - (3 days) - 2 days plus 1 day for review and testing at least 1
week later.
- Plus 1 day End User training with certified trainer
observing to be scheduled at a later date.
- 3 SQUARES(R)- (9 days) - 3 days initial Base Module/Select/Special
Events/Catering and all Associated Reports.
- 3 days for Inventory/Purchasing/Budget
- 3 days for training completion, review and trainer
test.
- Give End User training under observation ("student
teaching") of all modules per End User requirements.
It is recommend that there be at least 1 week between each of the above
training sessions when divided into multiple sessions to allow time to review
and practice each area. The foregoing training requirements are subject to
future adjustments to better meet End User needs and/or to take advantage of
technology for a portion of the training needs.
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