AGREEMENT BETWEEN VEMICS INC AND The Association of Black Cardiologists, Inc
Exhibit
10.21
BETWEEN
VEMICS
INC
AND
The
Association of Black Cardiologists, Inc
This
AGREEMENT, consisting of the terms and conditions set forth below and the
attached exhibits, each of which is incorporated into and made a part hereof by
this reference ( ''Agreement''), is entered into as of May 15, 2007, (the
''Effective Date''), by and between Vemics, Inc a Nevada corporation
(''VEMICS''), having its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and The Association of Black Cardiologists, Inc
(The SOCIETY), a Medical Society in the State of Georgia having its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Background
VEMICS
and THE SOCIETY are both involved in serving the medical community with certain
educational and other complementary services. VEMICS provides connectivity for
distribution of information and knowledge over its iMedicor Portal and other
technology platform(s) and interface connections; and THE SOCIETY provides
community to its membership, connectivity to its membership base, access to
content and presenters of clinically relevant information for medical
professional, associations, societies and accreditation
bodies, companies and other entities that would be interested in
utilizing THE SOCIETY’S services and access to its membership as approved by its
Board of Directors. The parties will work together to introduce THE SOCIETY’S
membership to the iMedicor Portal which will allow members to exchange HIPAA
compliant medical records, invite their community into the Portal for
collaboration, referrals and consults. The iMedicor portal will also offer
additional services such as, but not limited to access to CME and CEU accredited
educational programs, offered in a variety of formats, e-prescribing services,
and a variety of educational resources, The Vemics Live Access visual
communication service and the NuScribe voice recognition transcription service.
The basic iMedicor service of HIPAA compliant electronic transfer of medical
records, community, referrals and consultations will be a free service to THE
SOCIETY’S membership. Upgrades to additional services such as the LiveAccess and
the Transcription service will be available at a modest premium (expected to be
priced at approximately $100.00). The combined iMedicor Portal services will
provide a unique, electronic, internet based communications system solution for
delivery of HIPAA compliant transfer of medical records and reports, access to
educational / training content and consultation, collaboration and business
meetings.
The
definition of the Education / Medical Market, for the purposes of this
Agreement, is specifically intended to include those individuals and/or
organizations, professional societies, physicians, allied health care
professionals, caregivers, teachers, students and families involved in the care
and development of people seeking treatment, advice or other services within the
Hypertension and related fields (Hereinafter referred to as “Medical
Market”).
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, VEMICS and THE SOCIETY agree as
follows:
Terms
and Conditions
1.
Appointment; Territory; Limitations; Relationship of Parties
(a)
Appointment
Subject
to all of the terms and conditions in this Agreement, VEMICS hereby appoints THE
SOCIETY to act, during the term of this Agreement, as its non-exclusive global
representative authorized to offer the iMedicor Portal and any other VEMICS'
Products and Services (the ''VEMICS Services'') as approved by THE SOCIETY’S
Board of Directors to the membership of THE SOCIETY (''THE SOCIETY Membership'')
specifically in the Medical Market (as defined herein). THE SOCIETY hereby
accepts said appointment.
(b)
Territory
THE
SOCIETY shall be authorized to offer the iMedicor Portal and other approved
VEMICS Services globally.
(c)
No Restrictions on a Party's Activities
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Each
party acknowledges that this Agreement is non-exclusive and, except as expressly
set forth in section 1(f) of this Agreement, nothing in this Agreement shall
limit in any manner any party's marketing, distribution or revenue generating
activities.
(d)
Freedom of Action; Certain Restrictions
Except
as provided in section 1(f) of this Agreement, each party may directly or
indirectly (through THE SOCIETY or otherwise) market, sell, offer or provide any
of its respective products or services to any customer within the Territory and
during or after the Term.
(e)
No Agency
VEMICS
and THE SOCIETY each acknowledge and agree that the relationship established by
this Agreement is that of independent contractors, and nothing contained in this
Agreement shall be construed to: (i) give either party the power to direct or
control the day-to-day activities of the other; (ii) deem the parties to be
acting as co-owners or otherwise as participants in a joint ownership
undertaking; or (iii) permit either party or any of either party's officers,
directors, employees, agents or representatives to create or assume any
obligation on behalf or for the account of the other party for any purpose
whatsoever.
(f)
Mutual Non- Exclusivity
Vemics
hereby grants THE SOCIETY the non-exclusive right to offer its products and
services globally to its membership specifically and limited to the Medical
Market as defined herein.
2.
License Grant; Restrictions; Customer Agreements
(a)
License Grant
Subject
to all terms and conditions of this Agreement, VEMICS hereby grants to THE
SOCIETY during the Term of this Agreement the
non-exclusive, nontransferable right and license to offer its
iMedicor service to THE SOCIETY'S membership together with all related software
(the ''Software'') and other intellectual property, and documentation (the
''Documentation'') that are necessary or appropriate to enable THE SOCIETY to
provide VEMICS Services (the VEMICS Software and such other intellectual
property and the Documentation are collectively sometimes referred to as
''VEMICS Intellectual Property'') to THE SOCIETY’S membership. Each
party shall also be authorized to utilize the other party’s Intellectual
Property solely for the purposes set forth in this Agreement
(b)
License Restrictions
THE
SOCIETY shall not appoint any other person, firm, or entity as a sub-distributor
or agent for VEMICS Services without obtaining advance written approval from
VEMICS. THE SOCIETY shall not, for itself, for any affiliate of THE SOCIETY or
for any third party: sell, sublicense, assign, or transfer the Software or any
Documentation, except as permitted under this Agreement. Furthermore,
THE SOCIETY agrees that it shall not decompile, disassemble, or reverse engineer
the VEMICS Software.
(c)
Membership Terms and Conditions; Right of VEMICS to Restrict
Content
All
use of VEMICS Services by THE SOCIETY will be subject to the execution and
delivery by each of THE SOCIETY membership of a written, binding agreement that
contains, at a minimum, the relevant terms and conditions set forth in this
Agreement transaction and the VEMICS Standard Terms and Conditions as well as no
terms or conditions that are inconsistent with the terms or conditions contained
in this Agreement (the ''Membership Agreement''). This documentation occurs upon
individual registration at the iMedicor Portal site the first time THE SOCIETY’S
member attempts to use the portal. Notwithstanding any registration of a
prospective member, if VEMICS subsequently becomes aware that the content of any
of THE SOCIETY'S members is illegal it shall notify THE SOCIETY thereof and
unless the illegal content is removed within Five (5) business days after such
notice, VEMICS may take steps to prevent such illegal content from being routed
to, passed through or stored on or utilized within VEMICS' network. VEMICS shall
promptly notify THE SOCIETY and the applicable member of such removal of any of
THE SOCIETY’S membership content pursuant to the foregoing
provisions.
3.
Marketing Efforts; Promotional Materials
(a) Efforts
THE
SOCIETY shall use its best reasonable efforts to: (i) offer and support VEMICS
Services, specifically the iMedicor Portal site to its membership in the
Territory; (ii) dedicate adequate resources, financial and otherwise, and
maintain facilities and staff, to market, resell and support VEMICS Services in
accordance with THE SOCIETY'S obligations under this Agreement, in a timely,
diligent and professional manner using competent personnel; (iii) keep VEMICS
informed as to any problems encountered by THE SOCIETY'S membership or by THE
SOCIETY with the VEMICS Services or any VEMICS Intellectual Property, and Vemics
will communicate to THE SOCIETY any resolution or proposed resolutions relating
to such problems. All information concerning THE SOCIETY'S Membership shall be
deemed Confidential Information of THE SOCIETY in accordance with the provisions
of Section 10 of this Agreement.
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(c)
Promotional Materials; Marketing
VEMICS
will provide THE SOCIETY with a reasonable amount of sales and marketing
literature relating to the VEMICS Services specifically the iMedicor Portal
site. The exact form and quantity of such literature will be determined jointly
by VEMICS and THE SOCIETY and be based upon the needs and dictates each of
specific project requirements. THE SOCIETY shall adhere to VEMICS' Guidelines,
Rules and Procedures then in effect, and THE SOCIETY shall not make any
representations or statements regarding VEMICS Services other than those
contained in the sales and marketing literature and promotional materials
provided to THE SOCIETY by VEMICS, without the prior written approval of VEMICS.
Upon reasonable advance notice from VEMICS, THE SOCIETY shall discontinue use of
any marketing literature or promotional materials that VEMICS or THE SOCIETY no
longer deems acceptable.
(d)
Quality Control
Each
party acknowledges the importance of upholding the good reputation of the other
party and its respective products and services. Accordingly, each party agrees
that it will maintain at all times during the Term of this Agreement the highest
quality controls, business practices and ethics in performing its obligations
and exercising its rights under this Agreement and will comply with all
applicable laws and regulations.
(e)
Publicity
On or
about the Effective Date, the parties agree to issue a joint press release
announcing the relationship contemplated by this Agreement. The press release
shall be subject to the written approval of each party, which approval shall not
be unreasonably withheld or delayed. During the term of this Agreement, subject
to the restrictions contained in Section 5 below, each party may post on its web
site the other party's logo and/or a hyperlink to the other party's web site, to
use the other party's name in connection with proposals to other prospective
customers and otherwise refer to the other party and the co-branded service
offering contemplated herein in print or electronic form for marketing or
reference purposes.
(f)
Customers / Members
Subject
to VEMICS obtaining specific advance written consent from THE SOCIETY’S
membership, VEMICS shall be entitled to reference THE SOCIETY'S Membership, in
general, not specific (names addresses etc) on VEMICS' web site and in marketing
materials as a VEMICS Services client. All data pertaining to any of THE
SOCIETY’S membership shall be deemed Confidential Information in accordance with
the provisions of Section 10 of this Agreement. In addition, no party shall use
any data pertaining to any of THE SOCIETY’S membership in a manner that is
inconsistent with VEMICS' published privacy policy, the applicable Customer
Agreement, or applicable legal requirements.
THE
SOCIETY membership shall be such professional individuals who are members or
associates of THE SOCIETY at the time of the signing of this Agreement and those
customers that are introduced to the VEMICS System (specifically iMedicor)
solely by THE SOCIETY efforts as the result of this Agreement. VEMICS
customers shall be such customers who are customers of VEMICS at the time of the
signing of this Agreement and those customers that are introduced to the VEMICS
System solely by VEMICS efforts as the result of this Agreement. In the event
that a Customer is presently and/or in the future a customer or member of both
parties to this Agreement, as defined herein, then they shall remain deemed
jointly Customers or members of both THE SOCIETY and VEMICS.
4.
THE SOCIETY Use of LiveAccess, Personnel Training; Customer
Support
(a)
Use of the LiveAccess System
As
part of this agreement, Vemics will offer THE SOCIETY up to 25 concurrent users
in its LiveAccess Visual Communications System at no cost to THE SOCIETY. The
use of this system is to familiarize THE SOCIETY’S Board of Directors, Executive
Committees and other Committees with the LiveAccess System. This offer includes
25 Kits (Camera, Microphone and Headset with Microphone) and unlimited use of
the system for one year and customization of the server to reflect THE SOCIETY’S
look, feel and logo. After the one year anniversary Vemics, at its sole
discretion can continue the current offer or offer the continued service to THE
SOCIETY for a fee not to exceed $299.00 per license initial fee plus $100.00 per
month for unlimited use per license.
(b) Training
VEMICS
shall provide to THE SOCIETY’S designated authorized users of the LiveAccess
System, at VEMICS' training facility, or, on-line, or, if VEMICS elects, at THE
SOCIETY’S facilities: (i) a reasonably sufficient number of training sessions
and source training material to reasonably enable THE SOCIETY'S authorized users
and support staff to become knowledgeable about the capabilities and operation
of, and support for, the VEMICS LiveAccess Service. Such training to include, at
THE SOCIETY'S request, a reasonable number of joint VEMICS/THE SOCIETY on-site
calls, and (ii) technical consulting services and training to reasonably ensure
that THE SOCIETY has the internal capability to, among other things, use the
service to THE SOCIETY'S authorized users. Each party shall be responsible for
the travel, lodging and meal expenses of its employees who attend any training
session, if required.
(b)
Customer Support
VEMICS
will provide technical support to THE SOCIETY and their customers to whatever
extent is required to successfully deploy the LiveAccess System for its internal
use. VEMICS shall provide technical support directly to any of THE SOCIETY’S
authorized users in accordance with VEMICS' standard technical support terms and
conditions.
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5.
Content Responsibility; Intellectual Property Rights
(a)
Customer Content
In the
event that THE SOCIETY becomes aware of any of THE SOCIETY’S Member Content (the
''Member Content'') that is being placed on and/or is utilizing the VEMICS
Service: (a) violates or infringes upon the intellectual property or other
rights of any third party, (b) distributes any libelous, defamatory,
pornographic or obscene material, or (c) violates any laws or regulations
applicable to such Member Content, THE SOCIETY shall notify the applicable
member of the violation and request that such member remove such Member Content
so that it will not be routed to or pass through VEMICS' network. If such member
fails to comply with THE SOCIETY’S request within a reasonable period of time,
THE SOCIETY shall notify VEMICS of the non-compliance. VEMICS may
then remove such Member Content pursuant to and in manner set forth in the
Membership Agreement. THE SOCIETY’S Membership shall be solely responsible for
maintaining the availability of the member computer and network systems, the
connectivity of such computers and network systems to the Internet, and all
Member Content, IP addresses, domain names, hyperlinks, databases, applications
and other resources necessary for THE SOCIETY’S Membership to access the VEMICS
Services.
(b)
THE SOCIETY’S Content
(i)
THE SOCIETY’S Conditions of
Use: THE SOCIETY shall be solely and exclusively responsible for (1) all
THE SOCIETY’S content and activity; (2) obtaining legal written permission from
the right holder to display and/or utilize any material on the Vemics System or
through its other services (specifically iMedicor Portal); and (3) ensuring that
THE SOCIETY content of the web site does not violate the laws of the
jurisdiction where the content is displayed. THE SOCIETY furthermore hereby
agrees to comply with the requirements of the Communications Decency Act (CDA)
and the Digital Millennium Copyright Act (DMCA), and shall require its
subscribers in writing to so comply.
(ii)
Limitations on THE SOCIETY
Content
THE
SOCIETY shall not intentionally place or cause to be placed on the Vemics System
unacceptable material or activity which includes, but is not limited
to:
(A)
defamatory or other tortuous activity;
(B)
criminal activity, including but not limited to theft of trade secrets, fraud,
child pornography, trafficking in obscene material, violation of US export
provisions, drug dealing, gambling, harassment, stalking, spamming, hacking,
sending of viruses or other harmful files, or illegal posting of computer
passwords or computer code for the purpose of circumventing copyright security
measures;
(C)
infringing activity including, but not limited to, the unauthorized display of
confidential, secret, or other proprietary material, trademark infringement,
copyright infringement, or patent infringement.
(iii) Removal of Customer
Content: VEMICS reserves the right in its sole discretion, and
without prior notice, to remove any material from Vemics System which is
inconsistent with the basic mission, goals and objectives of this
Agreement.
(iv) Compliance with Lawful
Authorities: VEMICS will comply with all subpoenas and court orders that
appear to be lawful and valid, including subpoenas and court orders requesting
information about THE SOCIETY or its use of the Service, without prior notice to
THE SOCIETY. VEMICS reserves the right to report activity that it believes to be
potentially criminal to the appropriate law enforcement
agencies.
(vi)
Indemnification against Third Party Claims:
(A) THE SOCIETY agrees to
defend, indemnify, and hold harmless VEMICS, its affiliates and the respective
officers, directors, employees, and agents, from and against all actions, third
party civil or criminal claims, liabilities, losses, damages and expenses,
including but not limited to reasonable attorneys' fees, arising out of or
relating to the use of the VEMICS System material supplied by THE SOCIETY for
use on the VEMICS System or, arising out of or relating to any content provided
by THE SOCIETY or by THE SOCIETY'S use of VEMICS's services. Such
indemnification shall operate whether or not VEMICS has been put on notice of a
claim.
(B) VEMICS agrees to defend,
indemnify, and hold harmless THE SOCIETY, its affiliates and its and their
respective officers, directors, employees, and agents, from and against all
actions, third party civil or criminal claims, liabilities, losses, damages and
expenses, including but not limited to reasonable attorneys' fees, arising out
of or relating to the use of the VEMICS System supplied by VEMICS. Such
indemnification shall operate whether or not THE SOCIETY has been put on notice
of a claim.
(c)
Intellectual Property and VEMICS Services
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As
between VEMICS and THE SOCIETY or any Member of THE SOCIETY’S, VEMICS shall own
all right, title and interest in and to the Intellectual Property and VEMICS
Services. THE SOCIETY acknowledges that the Software, Documentation, and VEMICS
Services includes proprietary information and trade secrets which are the sole
and exclusive property of VEMICS or its licensors and that the Software,
Documentation and VEMICS Services are or may be protected by patent, copyright,
trade secret and/or similar laws and certain international treaty provisions.
The following shall not, however, be considered to be proprietary information
and trade secrets belonging to VEMICS: (i) information which is publicly known
or which becomes publicly known through no fault of THE SOCIETY’S; (ii)
information which is lawfully obtained by THE SOCIETY from a third party; and
(iii) information which is the lawful possession of THE SOCIETY prior to such
information having been initially disclosed by VEMICS pursuant to this
Agreement. This Agreement does not transfer or convey to THE SOCIETY or any of
THE SOCIETY’S Members or any third party any right, title or interest in or to
the Intellectual Property of VEMICS Services or any associated intellectual
property rights, but only a limited right of use which is revocable in
accordance with the terms of this Agreement and any Membership Agreement. Nor
does this Agreement transfer any ownership or copyright interest in any
intellectual property owned by THE SOCIETY to VEMICS except as provided for in
this Agreement.
6.
Marks; Usage Restrictions
Either
party's use, display or reference to the other party's proprietary indicia,
trademarks, service marks, trade names, logos, symbols and/or brand names
(collectively ''Marks'') shall be subject to the advance written approval of
that party, which approval shall not be unreasonably withheld. Neither party may
remove, destroy or alter the other party's Marks. Each party agrees that it
shall not challenge or assist others in challenging the rights of the other
party or its suppliers or licensors in the Marks or the registration of the
Marks, or attempt to register any trademarks, service marks, trade names, logos,
symbols, brand names or other proprietary indicia confusingly similar to the
Marks. All use of a party's Marks, including but not limited to use of any
co-branded logo comprised of each party's Marks, shall be subject to such
party's logo and trademark usage guide, as provided to the other party and as
the same may be updated from time to time. Neither party grants any rights in
the Marks or in any other trademark, trade name, service ▇▇▇▇, business name or
goodwill of the other except as expressly permitted hereunder or by separate
written agreement of the parties.
7. Fees; Pricing; Credits and Payment Terms
(a)
Prices; Fees
VEMICS'
and THE SOCIETY, together, agree that any project both parties undertake that
results in generation of revenue will be agreed to in advance in terms of scope
of work, time lines, deliverables, designated activities and financial
considerations, royalties and any other fees identified as an amendment to this
agreement on an individual basis.
8.
Representations and Warranties
(a)
VEMICS's Representations and Warranties
VEMICS
represents and warrants that: (i) VEMICS and its licensors now and will
throughout the Term, own or possess the necessary rights, title and licenses in
and to the Intellectual Property and to operate the VEMICS Products and/or
Services, (ii) VEMICS has and will have throughout the Term the right to enter
into this Agreement and to perform its obligations hereunder, (iii) VEMICS has
obtained any and all consents, approvals and other authorizations necessary for
the performance of its obligations hereunder, (iv) the Intellectual Property and
the VEMICS Products and/or Services do not and will not throughout the Term
violate or infringe upon the intellectual property or other legal rights of any
other party, (v) the operation of the VEMICS Products and/or Services is and
will be throughout the Term in compliance with all applicable, material laws,
rules and regulations of all relevant governmental authorities, and (vi) the
VEMICS Products and/or Services will be operated throughout the Term
substantially in conformity with its specifications.
(b) THE SOCIETY’s Representations and
Warranties
THE
SOCIETY represents and warrants that: (i) THE SOCIETY and its licensors now and
will throughout the Term, own or possess the necessary rights, title and
licenses in and to its Intellectual Property, membership lists and other
information according to this agreement, (ii) THE SOCIETY has and will have
throughout the Term the right to enter into this Agreement and to perform its
obligations hereunder, (iii) THE SOCIETY has obtained any and all consents,
approvals and other authorizations necessary for the performance of its
obligations hereunder, and (iv) the THE SOCIETY’s Intellectual Property and
membership lists does not and will not throughout the Term violate or infringe
upon the intellectual property or other legal rights of any other
party.
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(c)
Warranty Disclaimer
EXCEPT
AS SPECIFICALLY PROVIDED IN THIS SECTION 9, BOTH PARTIES EXPRESSLY DISCLAIM ALL
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY
LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NEITHER PARTY SHALL MAKE
ANY REPRESENTATIONS NOR WARRANTIES ON THE OTHER'S BEHALF WITHOUT SUCH OTHER
PARTY'S EXPRESS WRITTEN CONSENT.
10.
Confidential Information.
(a)
"Confidential Information" as used in this Agreement shall mean any and all
technical and non-technical information including but not limited to patent,
copyright, trade secret, and proprietary information, techniques, sketches,
drawings, models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programs, software source documents, and formulae related
to the current, future, and proposed products and services of each of the
parties and it’s affiliates, and includes, without limitation, each of the
parties and their affiliates information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing, customer
lists, business forecasts, sales and merchandising, and marketing plans and
information. "Confidential Information" also includes proprietary or
confidential information of any third party that may disclose such information
to either party in the course of the other party's business. All Confidential
Information disclosed both orally and in writing by the disclosing party
("Discloser") will be considered Confidential Information by the receiving party
("Recipient") and subject to terms of this Agreement, even if such information
is not conspicuously designated as "Confidential" or even when provided orally
and not identified as confidential at the time of disclosure.
(b) Recipient
hereby agrees that it will not make use of, disseminate, or in any way disclose
any Confidential Information of the Discloser to any person, firm, or business,
except to the extent necessary for negotiations, discussions, and consultations
with personnel and/or authorized representatives of the Discloser, any purpose
of the Discloser authorized by this agreement and any purpose the Discloser may
hereafter authorize in writing. Recipient hereby also agrees that it will use
the Confidential Information disclosed by Discloser for informational purposes
only. Recipient hereby further agrees that it shall not use the Confidential
Information of Discloser in the production and/or the providing of any products
and/or services now or in anytime in the future, other than permitted under this
Agreement.
(c)
Recipient agrees that it shall treat all Confidential Information of Discloser
with the same degree of care as it accords to its own Confidential Information,
and Recipient represents that it exercises reasonable care to protect its own
Confidential Information.
(d)
Recipient hereby agrees that it shall disclose Confidential Information of the
Company only to those of its officer(s), manager(s), and/or employee(s) who need
to know such information and certifies that such officer(s), manager(s), and/or
employee(s) have previously agreed, either as a condition of employment or in
order to obtain the Confidential Information, to be bound by terms and
conditions substantially similar to those of this Agreement.
(e)
Recipient will immediately give notice to Discloser of any unauthorized use or
disclosure of the Confidential Information. Recipient agrees to assist Discloser
in remedying any such unauthorized use or disclosure of the Confidential
Information.
(f) Upon
the request of the Discloser and/or termination of this Agreement, the Recipient
will promptly return all confidential information furnished hereunder and all
copies thereof.
(g)
Employees. During the term of this Agreement and for a period of two (2) years
thereafter, THE SOCIETY will not directly or indirectly: (a) solicit or
encourage any employee of VEMICS to leave the employ of VEMICS; or (b) hire any
employee who has left the employ of VEMICS if the hiring is proposed to occur
within one year after the termination of the employee's employment with VEMICS.
In addition, during the term of this Agreement and for a period of two (2) years
thereafter, VEMICS will not directly or indirectly: (a) solicit or encourage any
employee of THE SOCIETY to leave the employ of THE SOCIETY; or (b) hire any
employee who has left the employ of THE SOCIETY if the hiring is proposed to
occur within one year after the termination of the employee's employment with
THE SOCIETY.
(h)
Consultants. During the term of this Agreement and for a period of two (2) years
thereafter, THE SOCIETY will not directly or indirectly solicit or encourage any
consultant then under contract with the VEMICS to cease work for VEMICS. During
the term of this Agreement and for a period of two (2) years thereafter, VEMICS
will not directly or indirectly solicit or encourage any consultant then under
contract with THE SOCIETY to cease work for THE SOCIETY.
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(i) Clients. For
a period of two (2) years after the termination of this Agreement, THE SOCIETY
will not directly or indirectly solicit any customer introduced by VEMICS. For a
period of two (2) years after the termination of this Agreement, Vemics will not
directly or indirectly solicit any customer introduced by THE SOCIETY. For
purposes of this Agreement, VEMICS Customers shall not include those Companies
and/or Individuals that THE SOCIETY had a documented business relationship with
prior to the inception of this Agreement and/or Customers that were not
introduced to THE SOCIETY by VEMICS. In addition, for purposes of this
Agreement, THE SOCIETY Customers shall not include those Companies and/or
Individuals that VEMICS had a documented business relationship with prior to the
inception of this Agreement and/or Customers that were not introduced to VEMICS
by THE SOCIETY.
(j)
Remedies. In the event of a breach or a threatened breach of any of the
Provisions and/or Covenants set forth in this Section 9 of the Agreement above
(the ''Covenants''), the non-breaching party will, in addition to the remedies
provided by law, have:
(1)
the right and remedy to have the Covenants specifically enforced by any court
having equity jurisdiction, it being acknowledged and agreed that any material
breach of any of the Covenants will cause irreparable injury to the
non-breaching party and that money damages will not provide an adequate remedy
to the non-breaching party; and
(2)
the right and remedy to require a person to account for and pay over to the
non-breaching party all compensation, profits, moneys, accruals, increments or
other benefits (collectively the ''Benefits'') derived or received by the
Breaching Party as a result of any transactions constituting a breach of any of
the Covenants, and Breaching Party hereby agrees to account for and pay over the
Benefits to the non-breaching party.
(k)
The obligations of the parties set forth in this paragraph 10 of this Agreement
shall survive the termination of this agreement.
11.
Term and Termination
(a)
Term; Initial Term; Renewals
This
Agreement shall become effective as of the Effective Date and remain in full
force and effect until June 1, 2009, (the ''Initial Term''). Upon the expiration
of the Initial Term, this Agreement will automatically renew for one additional
term of three years (''Renewal Term'') unless and until either party notifies
the other party in writing of its intent to terminate at least 90 days prior to
the expiration of the Initial Term or 90 days prior to the expiration of a
Renewal Term. The Initial Term, together with any and all Renewal Terms, is
sometimes collectively referred to as the ''Term.''
(b)
Termination Upon Default
Either
party may terminate this Agreement in the event that the other party materially
breaches the terms of the Agreement or defaults in performing any obligation
under this Agreement and such breach or default continues unremedied for a
period of 30 days following written notice of default.
(c)
Termination Upon Insolvency
This
Agreement shall terminate, effective upon delivery of written notice by a party:
(i) upon the institution of insolvency, receivership or bankruptcy proceedings
or any other proceedings for the settlement of debts of the other party; (ii)
upon the making of a general assignment for the benefit of creditors by the
other party; or (iii) upon the dissolution of the other party.
(d)
Effect of Termination
Except
for the provisions in Section 7(b), 8, 10 and 13 herein, all rights and
obligations of the parties shall cease upon termination of this Agreement. The
term of any license or rights granted hereunder shall expire upon expiration or
termination of this Agreement.
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12. Jurisdiction
Disputes
(a)
This Agreement shall be governed by the laws of the State of New
York.
(b)
All disputes hereunder shall be resolved in the applicable state or federal
courts in the County of Rockland in the State of New York. The parties consent
to the jurisdiction of such courts, agree to accept service of process by mail,
and waive any jurisdictional or venue defenses otherwise available.
13.
General Indemnification
(a)
Limited Covenant to Defend Infringement Claims by Third Parties.
Each
party (the ''Indemnitor''), at its own expense and subject to the terms and
conditions of this Section 13, will (i) defend claims brought against the other
party, its permitted assignees and licensees, agents, officers and employees
(the ''Indemnitee'') by third parties (other than affiliates of the Indemnitee)
that, if true, would constitute a breach by the Indemnitor of its
representations and warranties set forth in this Agreement, and (ii) will
indemnify and hold the Indemnitee harmless from and against any damages to real
or tangible personal property and/or bodily injury to persons, including death,
resulting from the negligence or willful misconduct of the employees or agents
of the Indemnitor.
(i)
Right to Replace
If a
claim of infringement under this Section occurs, or if Indemnitor determines
that a claim is likely to occur, Indemnitor will have the right, in its sole
discretion, to either: (i) procure for Indemnitee and its Customers the right or
license to continue to use the Software free of the infringement claim; or (ii)
replace or modify the Software to make it non-infringing provided that the
replacement software substantially conforms to Indemnitor's then-current
specification for the Software. If these remedies are not reasonably available
to Indemnitor, Indemnitor may, at its option, terminate this Agreement without
liability, other than liability that may arise under Section 13(b), and
Indemnitor shall return any fees paid by Indemnitee in respect of Indemnitor
Services not provided.
(ii)
Limitations
Despite
the provisions of this Section 13, Indemnitor has no obligation with respect to
any claim of infringement that is based upon or arises out of: (i) any
modification to the Software if the modification was not made by or at the
written direction of Indemnitor; or (ii) the use or combination of the Software
with any hardware, software, products, data or other materials not specified or
provided by Indemnitor; or (iii) Indemnitee’s or any Customer's use of the
Indemnitor Services other than in accordance with the Software documentation or
Indemnitor’s written directions or policies.
(b)
Conditions for Defense.
To be
entitled to defense by the Indemnitor against a third-party infringement
claim:
(i)
Indemnitee shall advise Indemnitor of the claim as contemplated by Section (d);
and
(ii)
Indemnitor shall have the sole right to control the defense or settlement of the
claim, in litigation or otherwise, provided that Indemnitor will not enter into
a settlement on behalf of Indemnitee without Indemnitee's prior written
approval, such approval not to be unreasonably withheld.
(c)
Expenses and Monetary Awards.
If a
third-party claim, of which Indemnitor was notified and which Indemnitor has a
duty to defend in accordance with this Section 13, is brought, and if such claim
is sustained in a final judgment from which no further appeal is taken or
possible, then Indemnitor will pay or otherwise satisfy any monetary award
entered against Indemnitee as part of such final judgment to the extent such
award is adjudged in such final judgment to arise from such infringement,
without regard to limitation of liability set forth in Section 12.
(d)
Notices.
An
Indemnitee seeking to be defended against a claim under this Section 13, shall
notify the Indemnitor within thirty (30) days of the assertion of any claim(s)
or discovery of any fact upon which the Indemnitee intends to base a claim for
defense or indemnification. The Indemnitee's failure to so notify the Indemnitor
will not relieve the Indemnitor from any liability under this Agreement to the
Indemnitee with respect to defense or indemnity with respect to such claim(s),
except to the extent the Indemnitor demonstrates that the defense of such claim
was prejudiced by the failure to so notify.
8
(e)
Counsel.
If the
Indemnitor defends the Indemnitee in a lawsuit, arbitration, negotiation, or
other proceeding concerning a claim pursuant to this Section 13, then the
Indemnitee may engage separate counsel, at the Indemnitee's expense, to monitor
and advise the Indemnitee about the status and progress of the
matter.
(f)
Exceptions to Duties to Defend and Indemnify.
Except as
may be otherwise expressly provided in this Agreement, neither party will be
required to defend or indemnify the other party with respect to losses, damages
or expenses finally adjudged to have been caused by the indemnified party's own
negligence or willful misconduct.
14.
Limitation of Liability and Damages; Insurance
(a)
Limitation of Liability
EXCEPT
FOR LIABILITY ARISING OUT OF A PARTY'S INDEMNIFICATION OBLIGATIONS WITH RESPECT
TO THIRD PARTY CLAIMS AND A BREACH OF THE PROVISIONS OF THIS AGREEMENT RELATING
TO CONFIDENTIAL INFORMATION AND TRADE SECRETS, EACH PARTY AGREES THAT IN NO
EVENT WILL THE OTHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE, UNDER ANY
THEORY OF LIABILITY, HOWEVER ARISING, FOR ANY COSTS OF COVER OR FOR INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING ANY LOSS OF
USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS
INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY
DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR
REMEDY.
(b)
Limitation of Damages
EXCEPT
FOR LIABILITY ARISING OUT OF A PARTY'S INDEMNIFICATION OBLIGATIONS WITH RESPECT
TO THIRD PARTY CLAIMS AND A BREACH OF THE PROVISIONS OF THIS AGREEMENT RELATING
TO CONFIDENTIAL INFORMATION AND TRADE SECRETS, IF THERE SHALL BE ANY LIABILITY
OF ONE PARTY TO THE OTHER THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO THIS
AGREEMENT, EACH PARTY'S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES
OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EITHER
JOINTLY OR SEVERALLY, SHALL NOT EXCEED TEN THOUSAND DOLLARS ($10,000.00). EACH
PARTY ACKNOWLEDGES THAT THE OTHER IS NOT AN INSURER; THAT THE PAYMENTS MADE
HEREUNDER ARE BASED SOLELY ON THE VALUE OF THE SERVICES AND ARE NOT SUFFICIENT
TO WARRANT ASSUMING ANY RISK OF CONSEQUENTIAL OR OTHER DAMAGES DUE TO NEGLIGENCE
OR FAILURE TO PERFORM. DUE TO THE NATURE OF THE SERVICES TO BE PERFORMED, IT IS
IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH
MAY RESULT (PROXIMATELY OR OTHERWISE) FROM NEGLIGENCE OR FAILURE TO PERFORM
UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF
RISK BETWEEN THE PARTIES IN VIEW OF THE FEES CHARGED, IS NOT A PENALTY, AND
SHALL BE EXCLUSIVE. THE LIMITATIONS IN THIS AGREEMENT SHALL APPLY DESPITE ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
(c)
Insurance
EACH
PARTY AGREES TO MAINTAIN IN EFFECT DURING THE TERM, AT SUCH PARTY'S EXPENSE,
COMPREHENSIVE PROPERTY, CASUALTY AND GENERAL LIABILITY INSURANCE OF THE TYPES
AND AMOUNTS, AND COVERING SUCH RISKS AS ARE REASONABLE AND CUSTOMARY FOR
BUSINESSES ENGAGED IN A SIMILAR BUSINESS AND COVERING PROPERTIES SIMILAR TO THE
PROPERTIES OWNED, LEASED OR OPERATED BY SUCH PARTY. IN ADDITION, EACH PARTY
SHALL MAINTAIN IN EFFECT DURING THE TERM AN ERRORS AND OMISSIONS POLICY INSURING
AGAINST ITS ERRORS AND OMISSIONS IN THE PERFORMANCE OF ITS SERVICES CONTEMPLATED
UNDER THIS AGREEMENT WITH COVERAGE OF AT LEAST FIVE MILLION DOLLARS AS TO A
SINGLE CLAIM AND FIVE MILLION DOLLARS AS TO ALL CLAIMS IN THE AGGREGATE. SUCH
INSURANCE COVERAGE WILL BE OBTAINED FROM REPUTABLE INSURANCE COMPANIES OR
ASSOCIATIONS. UPON THE REQUEST OF A PARTY, THE OTHER PARTY SHALL PROVIDE VALID
CERTIFICATES OF INSURANCE.
9
15.
Miscellaneous
(a)
Compliance with Laws
Each
party agrees to comply with all applicable laws, regulations, and ordinances
relating to their performance hereunder.
(b)
Notices
Any
notice required or permitted hereunder shall be in writing and shall be
delivered as follows (with notice deemed given as indicated): (i) by personal
delivery when delivered personally; (ii) by established overnight courier upon
written verification of receipt; (iii) by facsimile transmission when receipt is
confirmed in writing; or (iv) by certified mail, return receipt requested, upon
verification of receipt. All notices must be sent to the following
addresses:
If to
VEMICS:
▇▇▇▇
▇▇▇▇▇, CEO
Vemics,
Inc
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to
THE
SOCIETY:
▇.
▇▇▇▇▇ Kong, Ph.D., ▇.▇.
Chief
Executive Officer
The
Association of Black Cardiologists, Inc
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Either
party may change its contact person for notices and/or address for notice by
means of notice to the other party given in accordance with this
Section.
(c)
Assignment
Neither
party may, without the prior written consent of the other party, assign this
Agreement, in whole or in part, either voluntarily or by operation of law and
any attempt to do so shall be a material default of this Agreement and shall be
void. Any change of control in the ownership of either party shall not be deemed
an assignment subject to the prohibitions of this Section.
(d)
Third Party Beneficiaries
This
Agreement is solely for the benefit of the parties and their successors and
permitted assigns, and, except as expressly provided herein or in any exhibit
hereto, does not confer any rights or remedies on any other person or
entity.
(e)
Governing Law
This
Agreement shall be interpreted according to the laws of the State of New York
without regard to or application of choice-of-law rules or
principles.
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(f)
Entire Agreement and Waiver
This
Agreement and any Exhibits hereto shall constitute the entire agreement between
VEMICS and THE SOCIETY with respect to the subject matter hereof and all prior
agreements, representations, and statement with respect to such subject matter
are superseded hereby, including without limitation any non-disclosure agreement
previously executed between the parties. The terms of this Agreement shall
control in the event of any inconsistency with the terms of any Exhibit hereto.
This Agreement may be changed only by written agreement signed by both VEMICS
and THE SOCIETY. No failure of either party to exercise or enforce any of its
rights under this Agreement shall act as a waiver of subsequent breaches; and
the waiver of any breach shall not act as a waiver of subsequent
breaches.
(g)
Severability
In the
event any provision of this Agreement is held by a court of other tribunal of
competent jurisdiction to be unenforceable, that provision will be enforced to
the maximum extent permissible under applicable law and the other provisions of
this Agreement will remain in full force and effect. The parties further agree
that in the event such provision is an essential part of this Agreement, they
will begin negotiations for a suitable replacement provision.
(h)
Non-Disclosure of Agreement Terms
Neither
party shall disclose to third parties, other than its agents and representatives
on a need-to-know basis, the terms of this Agreement nor any Exhibits hereto
without the prior written consent of the other party, except either party shall
be entitled to disclose (i) such terms to the extent required by law and (ii)
the existence of this Agreement.
(i)
Force Majeure
If either
party is prevented from performing any of its obligations under this Agreement
due to any cause beyond the party's reasonable control, including, without
limitation, an act of God, fire, flood, explosion, war, strike, embargo,
government regulation, act(s) of terrorism, civil or military authority, acts or
omissions of carriers, transmitters, providers, vandals, or hackers (a ''force
majeure event'') the time for that party's performance will be extended for the
period of the delay or inability to perform due to such occurrence; provided
however, that if a party suffering a force majeure event is unable to cure that
event within 30 days, the other party may terminate this Agreement.
(j)
Counterparts
This
Agreement may be executed in any number of counterparts, each of which, when so
executed and delivered, shall be deemed an original, and all of which shall
constitute one and the same Agreement.
(k)
Remedies
Except as
provided herein, the rights and remedies of each party set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to it at law or in equity.
(l)
Binding Effect
This
Agreement shall be binding upon and shall inure to the benefit of the respective
parties hereto, their respective successors and permitted assigns.
(m)
Amendments
Amendments
to this Agreement, including amendments to any Exhibits, shall be effective only
if they are in writing and signed by both parties.
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IN WITNESS WHEREOF, each of
the parties, by its duly authorized representative, has entered into this
Agreement as of the Effective Date.
Vemics
Inc.
THE
SOCIETY.
By:
/s/ ▇▇▇▇
▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇
Kong
▇▇▇▇
▇▇▇▇▇,
CEO ▇.
▇▇▇▇▇ Kong, Ph.D., ▇.▇. CEO
12