BUSINESS COLLABORATION AGREEMENT
This
Agreement is made and entered into effective as of the 31st day of December,
2009 (the “Effective Date”). HealthIXS Corporation is
a health information systems and business services company incorporated in
Delaware, with offices in Atlanta, Georgia (“HealthIXS”). RadNet Management,
Inc. or New Jersey Imaging Partners, Inc. (collectively hereinafter, “RadNet”)
are corporations incorporated in California and New Jersey, respectively, with
offices in various states in the US.
This
Agreement, as to RadNet and HealthIXS’ health information system (“HealthIXS
System”), support, services, and cooperation, is in effect for one year from the
date of signature. This Agreement will be subject to extension, as to
HealthIXS’s software license and support, services, and other participatory
activity with RadNet. Within thirty (30) days prior to the end of the term
period that the Agreement is in effect, the Parties will determine whether the
relationship remains beneficial to each of them. If so, they will
“reconfirm” this agreement and execute an extension form with modified terms and
conditions as may be deemed needed and appropriate.
HealthIXS
and RadNet are desirous to work together in a business collaborative manner by
using the HealthIXS System to help improve RadNet’s business. RadNet will be
provided usage of a special licensed version of the HealthIXS System referred
herein as RADIS to supplement RadNet’s existing information systems to help
achieve multiple benefits. The HealthIXS System can help meet RadNet’s
information processing and management requirements and customized needs that may
be requested and mutually agreed to, assist with improving RadNet’s business
operations such as revenue cycle management where applicable, and provide
enhanced business intelligence to help improve decision support and
enterprise-wide results.
In return
for usage of the HealthIXS System for one year, RadNet has agreed to pay
HealthIXS a license fee of US $*** (“***USD”) in 12 equal monthly payments of US
$*** starting with the signing of this Agreement and US $*** (“***USD”) in a
single balloon payment in one year from the date of this Agreement.
The terms
of the Agreement and consideration made by RadNet and HealthIXS are described
above and in the following paragraphs:
1.0 HealthIXS SYSTEM USAGE
LICENSE.
Subject
to the terms of this Agreement, HealthIXS will transfer to and hereby grants to
RadNet a non-exclusive, one year, right and license to use the private labeled
RadNet Derivative Information System (“RADIS”) System based on the HealthIXS
System, in machine readable form with supporting Documentation, on a software
system usage basis only, for the fees set forth in Section 6 below. The term
“RADIS” shall include any updates wherever such term is used.
2.0 SUPPORT AND
MAINTENANCE.
2.1 Technical
Support. During the support term of this Agreement and
provided that no default shall exist and be continuing under this Agreement or
any statement of work (“SOW”) between the Parties, HealthIXS shall provide
RadNet, for the fees set forth in Section 6 below, with updates as part of its
normal course of business and corrections to the RADIS System as a result of any
documented errors or software problems discovered as part of the RADIS System
and agreed to by HealthIXS. HealthIXS will also provide technical support,
including answering questions and assisting with general issues related to the
RADIS. Software related and technical support responses shall be
provided as needed and agreed to, up to a maximum of 32 hours per month. Additional hours are
available through mutually agreed upon SOW(s).
***Confidential
treatment requested.
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2.2 Access. RadNet
agrees to give HealthIXS personnel, and other HealthIXS designated parties,
reasonable access to its facilities, hardware, network and related
communications, databases, the RADIS software and updates installed on its
systems to adequately diagnose and correct any problems to the HealthIXS
software and/or updates and to provide whatever assistance is reasonably
requested by HealthIXS in its efforts to make changes that may be needed.
Failure by RadNet to provide the requisite assistance in a timely manner shall
nullify and void HealthIXS’ obligation to diagnose any issues and to make any
necessary corrections or updates.
2.3 Responsibilities.
HealthIXS shall not be responsible to detect or fix errors existing or
discovered in the data of RadNet, and shall not be held responsible for changes
not made by HealthIXS to the RADIS System or derivatives thereof.
3.0
SOFTWARE
UPGRADES. The RADIS System License granted to RadNet hereunder does not
automatically include software upgrades (the “Upgrades”) that HealthIXS may
develop in the future for the RADIS System. However, upgrades may be offered through new
software released by HealthIXS from time-to-time, and on-demand, custom software
upgrades can be obtained through statements of work (“SOW”) as needed and
mutually agreed-to by the parties.
4.0 RIGHTS RESERVED. The
RADIS System license granted hereby shall in no way prevent or otherwise limit
HealthIXS from continuing to license, sell or use any related Marks, the RADIS
System or Documentation in any manner whatsoever or to prevent HealthIXS from
enhancing or modifying the RADIS System or Documentation in any manner or to any
degree.
5.0 CONSULTING AND
OTHER SERVICES.
During
the Term of this Agreement and provided that no default shall exist and be
continuing under this Agreement, HealthIXS agrees to provide consulting, custom
development, and other reasonable services including, but not limited to, the
procurement of hardware and peripherals, and setup and management of hosting
services, per statements of work (“SOW”) and related terms and conditions
mutually agreed to by the parties.
6.0 PAYMENTS.
6.1 Usage
License. As consideration for the license granted, and the
other obligations undertaken, by HealthIXS hereunder, RadNet agrees to pay
HealthIXS a license fee of US $*** (“***USD”) in 12 equal monthly payments of US
$*** starting with the signing of this Agreement and US $*** (“***USD”) in a
single balloon payment in one year from the date of this Agreement for RadNet’s
usage of the RADIS System in its facilities.
6.2 Support and
Maintenance. In addition to the usage license fees paid as
described in Section 6.1 above, RadNet shall agree to pay HealthIXS in a lump
sum or in equal monthly payments, 0% of the total license fees for annual
Support and Maintenance as defined in Section 2 above, for the 12 month period
from the effective date of this Agreement.
6.3 Consulting and Other
Services. Upon request and as needed, RadNet will pay
HealthIXS for consulting and additional service tasks such as custom software
development, performed pursuant to mutually agreed upon and signed SOW(s), at
mutually agreed rates per hour, plus reasonable out-of-pocket expenses incurred
in connection with such services.
6.4 Taxes. RadNet
will promptly pay or reimburse HealthIXS for all sales, use, transfer,
privilege, excise and other taxes and all duties, however designated, which are
levied or imposed by virtue of this Agreement, excluding, however, income taxes
which may be levied against HealthIXS.
***Confidential
treatment requested.
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6.5 Expenses. RadNet
agrees to reimburse HealthIXS for all reasonable out-of-pocket expenses incurred
by HealthIXS personnel on behalf of RadNet as a result of any consulting or
development services performed on its behalf and at its request, including, but
not limited to, travel, lodging, meals and other miscellaneous expenses incurred
while traveling on RadNet’s business, copying and such other administrative
expenses incurred on RadNet’s behalf as expressed in the applicable SOW.
6.6
Billing. Unless stated otherwise in this Agreement or a SOW
Exhibit, HealthIXS shall provide RadNet with invoices once per month for all
services rendered and expenses incurred for the prior period. Such
invoices shall be due and payable within 45 days after receipt of an invoice
from HealthIXS, unless the parties agree otherwise to new terms and
conditions. The failure of RadNet to pay any invoice when due will
entitle HealthIXS to refrain from continuing to perform any services for RadNet
that HealthIXS may have previously agreed to perform. The
discontinuation of any service by HealthIXS as a result of RadNet’s failure to
pay any reasonable disputed amount to HealthIXS when due shall not be deemed a
breach of this Agreement by HealthIXS.
7.0 Shared
Services. The Parties, in conjunction with mutually
acceptable terms and conditions as set forth in a subsequent Exhibit to this
Agreement, agree to share facilities, resources, and software systems services
from time-to-time, and as needed, to pursue mutually beneficial business and
system opportunities that may also include reasonable financial provisions to
offset the periodic costs.
8.0
OWNERSHIP.
8.1 HealthIXS and RADIS
Systems. All rights, title and interest in the HealthIXS and
RADIS Systems and related Intellectual Property Rights therein, shall remain the
exclusive property of HealthIXS and its licensors. RadNet shall obtain no right,
title or interest in the HealthIXS and RADIS Systems; except as otherwise
provided in this Agreement.
8.2 Custom
Development. All right, title and interest in software
developed by HealthIXS exclusively for RadNet under this Agreement or related
applicable SOW (the “Custom Software Code”) shall be deemed to be a “work made
for hire” and shall be the sole and exclusive property of RadNet, including
without limitation, all applicable Intellectual Property Rights thereto and
therein. HealthIXS hereby irrevocably assigns to all right, title and interest
in and to the clearly identified Custom Software Code and related documentation
produced pursuant to this Agreement or any applicable SOW under this Agreement,
including without limitation, all Intellectual Property Rights thereto and
therein. HealthIXS specifically intends the foregoing assignment of rights to
RadNet to include all such now known or unknown uses, media and forms of
exploitation.
9.0
CONFIDENTIAL
INFORMATION.
9.1 Confidential
Information. During the course of this Agreement, each Party
acknowledges and agrees that it may be given access to information that is
proprietary to or confidential to the other, including but not limited to, the
specifications, and the other information that relates to the Party’s past,
present and future research, development, business and technical information,
marketing plans, research, designs, plans, methods, techniques, processes and
know-how, whether tangible or intangible and whether or not stored, compiled or
memorialized physically, electronically, graphically or in writing
(collectively, the “Confidential Information”). Each Party agrees to secure and
protect the Confidential Information of the other Party in a manner consistent
with the maintenance of the Party’s rights therein, using at least as great a
degree of care as it uses to maintain the confidentiality of its own
confidential information of a similar nature, but in no event using less than
reasonable efforts. Neither Party will sell, transfer, publish,
disclose or otherwise make available any portion of the Confidential Information
of the other to third Parties, except as necessary to perform its obligations or
exercise its rights under this Agreement or as expressly authorized in this
Agreement. HealthIXS
agrees to comply with the applicable provisions of the Administrative
Simplification section of the Health Insurance Portability and Accountability
Act of 1996, as codified at 42 U.S.C. section 1320d through d-8 (“HIPAA”) and
the requirements of any regulations promulgated thereunder. HealthIXS
agrees not to use or further disclose any protected health information or
individually identifiable health information concerning a patient other than as
permitted under HIPAA.
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9.2 Non-Confidential
Information. Notwithstanding Section 9.1, above, Confidential
Information of a Party shall not include information which: (1) is, as of the
time of its disclosure or thereafter becomes part of the public domain through a
source other than the receiving Party; (2) was rightfully known to the receiving
Party as of the time of its disclosure; (3) is independently developed by the
receiving Party; (4) is subsequently learned from a third Party not under a
confidentiality obligation to the disclosing Party; or (5) is required to be
disclosed pursuant to a duly authorized subpoena, court order, or government
authority, whereupon the Party subject to same shall provide prompt written
notice to the other Party prior to such disclosure, so that such Party may seek
a protective order or other appropriate remedy.
10.0
SOFTWARE
DELIVERY.
10.1 Delivery.
HealthIXS shall deliver to RadNet one copy of, or online access to, the RADIS
System as the
Parties shall mutually agree in machine-readable form, and related
Documentation, within 10 business days after receipt of a written conformation
from RadNet as to choice of delivery and from the date of this signed
Agreement.
10.2
Copies. RadNet may make a reasonable number of copies,
including backup and archival copies, of the RADIS System consistent with
HealthIXS’ usage licenses and the terms and conditions of this Agreement with
respect to such RADIS System.
10.3
Training. HealthIXS agrees to provide such training to
RadNet’s personnel in connection with the installation of, or online access to,
the RADIS System as the Parties shall mutually agree in a SOW or other separate
agreement.
11.0
TERM
AND TERMINATION.
11.1
Term. This
Agreement, as to the support obligations of the RADIS System, shall commence
upon execution hereof as of the Effective Date and continue for 12
months. The license provisions shall be in effect for the terms set
forth in the license grant in Section 1.0 HealthIXS SYSTEM USAGE LICENSE above. This Agreement
may be extended after the term of this agreement by mutual written
agreement.
11.2
Breach. This Agreement may be terminated by either party in
the event of any material breach by the other party if the breach continues and
is not cured within thirty (30) days of receipt of written notice from the
non-breaching party. If the activity complained of in the notice of
breach is not corrected or refrained from within the thirty (30) day cure
period, the non-breaching party may terminate the Agreement.
11.3 Effect of
Termination. Notwithstanding any provision to the contrary the
Parties agree that the obligations respecting Confidential Information shall
survive termination of this Agreement.
12.0
WARRANTIES.
12.1 Authority.
HealthIXS represents and warrants that it has the rights to an unlimited usage
license to use, adapt, modify and create works based on the RADIS System,
subject, however, to any rights RadNet may have obtained in the RADIS derivative
software system through a SOW for clearly defined and approved customizations,
and its related respective Documentation, and that it has the full right and
power to grant the rights to RadNet granted herein.
12.2 No Infringement.
HealthIXS represents and warrants that neither, the RADIS System, and its
Documentation, shall violate any of the Intellectual Property Rights or other
rights of any third party.
12.3
Disclaimer. OTHER THAN THE EXPRESS WARRANTIES CONTAINED
IN THIS AGREEMENT HEALTHIXS MAKES NO OTHER EXPRESS, IMPLIED OR STATUTORY
WARRANTIES OF ANY KIND WHATSOEVER TO RADNET, INCLUDING ANY AND ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR OR INTENDED
PURPOSE. UNLESS STATED IN THIS AGREEMENT, HEALTHIXS EXPRESSLY
DISCLAIMS ANY WARRANTY THAT THE RADIS SYSTEM OR ANY RELATED WORKS WILL MEET ANY
PARTICULAR REQUIREMENT OR BUSINESS NEED OF RADNET, EVEN IF HEALTHIXS HAS BEEN
ADVISED OF SUCH REQUIREMENT OR NEED.
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13.0
INDEMNITY. As
RadNet’s sole remedy for a breach of the warranties contained herein, HealthIXS
agrees to defend and indemnify RadNet with respect to any action brought against
RadNet to the extent that such action is based upon a claim that any software
licensed or provided to RadNet hereunder or work created by HealthIXS for RadNet
constitutes direct infringement of any Intellectual Property Rights in the
United States of a third party and will pay all damages and costs attributable
to such claim which may be finally awarded against RadNet in any such action;
provided,
however, that the warranties set forth herein shall be null and void if (i)
within thirty (30) days after such claim arises or such earlier time as to avoid
irreparable injury to HealthIXS, HealthIXS is not informed by RadNet in writing
of any such claim and furnished a copy of all communications or other documents
relating thereto, (ii) HealthIXS is not given by RadNet all requisite assistance
and information reasonably necessary to defend or settle such claim.
14.0 LIMITATION ON LIABILITY.
EXCEPT AS EXPRESSLY STATED ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS OR OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES
ARISING FROM OR AS A RESULT OF THE USE OR THE INABILITY TO USE THE RADIS SYSTEM,
RELATED SOFTWARE, OR WORKS CREATED FOR RADNET, FOR ANY REASON WHATSOEVER.
15.0 TRANSFER OR ASSIGNMENT. This
Agreement may be transferred or assigned by either Party, with prior written
notice to the other Party.
16.0 BINDING EFFECT. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors, assigns and legal representatives.
17.0 NOTICES. All
notices and invoices required or permitted to be given hereunder shall be in
writing and deemed duly given if hand delivered or sent by registered or
certified mail, postage prepaid, addressed as follows:
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If to
HealthIXS:
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If to
RadNet:
|
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HealthIXS
Corporation
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RadNet
|
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_____
Xxxxxxxxx Road
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__________________________
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Building
____
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__________________________
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Suite
______
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__________________________
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Xxxxxxx,
Xxxxxxx 00000
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Los
Angeles, California, _______
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Attention:
_________________
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Attention:
__________________
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Any
change of address shall be effective only if given in writing and with the same
formalities required in this Section 17.
18.0 RELATIONSHIP OF THE
PARTIES. At
all times hereunder, with respect to this Agreement and services to be provided
hereunder, the relationship of HealthIXS to RadNet shall be that of an
independent contractor and shall not be construed to constitute that of
partners, joint ventures, principal and agent or employer and employee.
19.0 ENTIRE AGREEMENT. Except
to the extent that a SOW may modify this Agreement, this Agreement and Exhibits
attached hereto constitutes the entire agreement between the Parties with
respect to the subject matter hereof and supersedes all prior negotiations,
representations or agreements, whether written or oral. Any
modification of this Agreement shall be in writing, executed with the same
formality as this Agreement, and signed by a duly authorized representative of
each of the parties hereto.
20.0 SEVERABILITY. Should
any part or provision of this Agreement be held unenforceable or in conflict
with the laws of any jurisdiction, then such part or provision shall be
completely severable from this Agreement and the validity of the remaining parts
or provisions shall not be affected by such holding.
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21.0 GOVERNING LAW. This
Agreement is being entered into and shall be governed by and construed in
accordance with the laws of the State of Georgia without regard to any conflicts
of law principles.
22.0 WAIVER OF DEFAULT. The
waiver of any default or breach under this Agreement by either party shall not
constitute a waiver of any rights for any subsequent default or breach.
23.0 SECTION HEADINGS. The
section headings in this Agreement are for reference purposes only and shall not
affect the interpretation of this Agreement.
24.0 FORCE MAJEURE.
Neither Party, shall be responsible for delays or failure of performance,
resulting from acts beyond the reasonable control of such Party.
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HealthIXS
Corporation
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RadNet
Management, Inc. and New Jersey Imaging Partners, Inc.
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By:
/s/ Xxxxx
Xxxxx
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By: /s/ Xxxxxx X.
Xxxxxx
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Name:
Xxxxx Xxxxx
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Name: Xxxxxx
X. Xxxxxx M.D.
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Title:
Chief Executive Officer
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Title: President
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Date:_________________________________
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Date:_________________________________
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