Exhibit 10.6
In this document an "#" indicates that confidential material has been omitted
pursuant to a request for confidential treatment filed with the Office of the
Secretary of the Securities and Exchange Commission together with the omitted
material.
AGREEMENT FOR SECURE INTERNET COMMUNICATIONS NETWORK
SECTION I INTRODUCTION
1.1 PARTIES: This Agreement ("Agreement") is made on the 2 day of MAR 2000 the
("Effective Date") and in consideration of the covenants, representations
and warranties set forth herein and other good and consideration, between
the following Parties:
LICENSOR: Cymedix Lynx Corporation, a California corporation, doing
business at 0 Xxxxxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxx Xxxx, XX 00000
(hereinafter "CYMEDIX")
LICENSEE: Loyola University Medical Center, a non-profit corporation
doing business at 0000 X. Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
(hereinafter referred to as "SPONSOR"). The term "party, or Parties" may
refer to CYMEDIX or SPONSOR or both.
1.2.1 Relationship - Independent Contractor: The relationship between the
Parties shall be that of independent Contractors. Neither Party shall have
authority to bind the other Party to any legal obligation, except for those
obligations as outlined herein.
SECTION I DEFINITIONS
2.1 "Agreement": This Agreement sets forth the terms and conditions under
which the Parties have agreed to install, license, use and maintain certain
software and provide training and support. The following documents are
incorporated as part of this Agreement and Exhibits:
i. The CYMEDIX Product List attached hereto as Exhibit 1;
ii. The CYMEDIX Products Description, Pricing and Minimum Order Quantities
attached hereto as Exhibit 2;
iii. The Payment Terms attached hereto as Exhibit 3;
iv. The End User Agreement attached hereto as Exhibit 4;
v. The Specifications attached hereto as Exhibit 5.
2.2 "CYMEDIX Software System" means one or more of CYMEDIX's proprietary
computer programs consisting of a Server (Windows 98) resident package and
a Client (Windows 95/98/ or Windows NT-Windows NT-Workstation) PC-based
package together with any CYMEDIX Products, CYMEDIX Software and any
enhancements, updates, upgrades or Modifications incorporated into said
system after the date of the Agreement, but prior to the expiration of same.
i. "CYMEDIX Products" means any item of a computer system including
equipment of peripherals, other than the CYMEDIX Software, that is
provided by CYMEDIX and listed in Exhibit 1.
ii. "CYMEDIX Software" means any other computer programs developed by
CYMEDIX or by Third Parties (where noted) but distributed by CYMEDIX
as part of the CYMEDIX Software System and listed in Exhibit 1 as well
as any user's manuals, supporting documentation, security devices or
programs, and any updates or upgrades to same.
2.3 "Server Package" means any Server (Windows 98, Windows NT-Workstation or
Windows NT-Server) resident package developed by CYMEDIX for use by SPONSOR
to assist in remote medical communication with End Users and for on-line
transmission of procedure results back to End Users.
2.4 "Client Package" means any Client (Windows 95/98, Windows NT-Workstation or
Windows NT-Server) PC-based program developed and owned by CYMEDIX for use
by End Users for remote medical communication with SPONSOR.
2.5 "End User" means any individual physicians, medical organizations,
businesses and other entities which shall implement the operation of the
CYMEDIX Software System through utilization of the Client Package including
such entities in the SPONSOR'S own divisions or subsidiaries, or its parent
corporation or company or one of the parent corporations or companies'
divisions or subsidiaries.
2.6 "Services" means all services relating to the CYMEDIX Software System
including without limitation, all delivery, distribution, installation (if
any), data conversion, training, repair support, maintenance, consulting
and custom programming.
2.7 "Third Party" means programs, software or computer systems owned or
developed by other CYMEDIX, which CYMEDIX provides to SPONSOR and End
Users as part of its CYMEDIX Software System, CYMEDIX Programs or CYMEDIX
Products.
2.8 "Modifications" means any changes or additions to the CYMEDIX Software
Systems, including but not limited to porting to new or different versions
of operating systems, porting to other programming languages, and complete
or partial rewrites of any CYMEDIX Software System.
2.9 "Specifications" means the documentation of each SPONSOR product interface.
SECTION III LICENSE GRANT
3.1 CYMEDIX hereby grants to SPONSOR the non-exclusive right and license to use
the Server Package of the CYMEDIX Software System and to sublicense End
Users to use the Client Package of the CYMEDIX Software System under the
copyrights and intellectual property rights of CYMEDIX subject to the
conditions and restrictions set forth herein.
(a) SPONSOR shall have the right to other Client Packages under any
computer operating system, which CYMEDIX select to support, without
warranty, in addition to those listed in Exhibit 2.
(b) SPONSOR shall be required to implement reasonable security devices,
software or techniques provided by CYMEDIX with each license to an End
Users, which shall inhibit the unauthorized use or transfer of the End
Users CYMEDIX Software.
(c) The license herein granted to use the Server Package is solely for use
in connection with Client Packages sub-licensed to End Users and for
no other use or purpose.
3.2 CYMEDIX does not grant to SPONSOR the right to modify said Server Package
or said Client Package without prior written consent from CYMEDIX:
(a) In the event that SPONSOR modifies CYMEDIX Software System (with
CYMEDIX permission), all Modifications shall remain the property of
CYMEDIX and shall be subject to the same terms and conditions with
regard to the original CYMEDIX Software System.
(b) SPONSOR shall provide CYMEDIX within thirty (30) days of making any
SPONSOR modification, with a description of any of its Modifications,
and specify for which End Users these have been written and the date
the Modifications have been delivered.
3.3 CYMEDIX hereby grants to SPONSOR the non-exclusive right to use any
trademark, service xxxx or other insignia belonging or licensed to CYMEDIX
subject to the terms and conditions set for the herein:
(a) SPONSOR shall not affix any other trademark to any copy or Server
Packages or Client Packages, provided that SPONSOR shall have the
right to use its own trademarks in advertising of the Server Package
and the Client Package with appropriate footnotes indicating the
SPONSOR's ownership of its marks.
(b) The trademark shall not be obliterated in any way from the packaging
or promotional materials upon which it has been placed and
(c) SPONSOR may affix its name, address and phone number or marks to the
CYMEDIX Software System and packaging and promotional materials,
provided that:
(1) the print or type size of SPONSOR's name or xxxx shall not exceed
the print or type size for the CYMEDIX name; and
(2) SPONSOR shall not use its name or marks in any manner, which
suggests that SPONSOR is the owner of the CYMEDIX Software.
(d) CYMEDIX reserves the right to approve the other uses of its trademark,
service xxxx, copyright or other insignia by SPONSOR.
SECTION IV PAYMENT
4.1 In consideration for the license herein granted, SPONSOR agrees to pay
CYMEDIX all fees and charges as specified in Exhibits 2 and 3.
4.2 SPONSOR shall pay when due all amounts as listed in Exhibit 2 and all taxes
(excluding any based on net income) arising out of its performance of this
agreement.
4.3 In the event that SPONSOR is late in making any payments to CYMEDIX
pursuant to section 4.1 above, interest shall accrue on the unpaid balance
at the rate of two percent (2%) per month until fully paid. A 60-day late
condition by SPONSOR shall constitute a full default of this Agreement.
4.4 At the option of CYMEDIX, CYMEDIX may conduct a review of SPONSOR's records
to verify that SPONSOR has properly recorded, the number of Transaction and
Usage Fees under Section 4.1 above (hereinafter "Sales") completed with End
Users. Said review shall be conducted by personnel of CYMEDIX or by any
firm or person selected by CYMEDIX. If SPONSOR has under-reported Sales to
CYMEDIX, SPONSOR shall be liable for paying any under-paid amount, plus two
percent (2%) per month interest from the date the Sales payments were due
CYMEDIX or the review is concluded, whichever is earlier. In addition, in
the event the review reveals any under-paid amount by more than
twenty-percent (20%), the cost of the review shall be paid by SPONSOR.
CYMEDIX will give at least thirty (30) days prior notice of any such review.
SECTION V INPEMENTATION OF AGREEMENT
5.1 Installation:
5.1.1 CYMEDIX shall install the Server Package on SPONSOR's computer system and
assist SPONSOR in its installation of the first twenty-five (25) Client
Packages at locations designated by SPONSOR.
5.2 Training:
5.2.1 CYMEDIX agrees to provide and SPONSOR agrees to accept the requirements of
mandatory instruction and training to personnel of SPONSOR with regard to
the method and operation of the CYMEDIX Software System.
5.2.2 CYMEDIX agrees to assist SPONSOR in the training of SPONSOR's End Users
that emanate from the first twenty-five (25) installations. This
assistance shall be both on-site and by telephonic consultation at no
additional charge to SPONSOR for the first twenty-five (25) End User
installations.
5.2.3 Should SPONSOR request CYMEDIX to do installations and/or training at its
End User sites and in quantities above the twenty-five (25) CYMEDIX
Software Products, CYMEDIX agree to provide these training services and
shall charge SPONSOR or the End Users at a rate of $# per installation with
a minimum charge of ten (10) installations.
5.2.4 CYMEDIX shall provide each End User with an installation package, which
shall include the Client Package software, security devices, a training CD
and a user's instruction guide.
5.2.5 Research and Development:
5.3.1 CYMEDIX will support the CYMEDIX Software System through continued research
and development. CYMEDIX agrees to provide SPONSOR, as available, with
descriptive listing, pricing, connectivity and availability of any new
modules, programs, etc., which CYMEDIX has developed. SPONSOR may choose
to add these new module programs, etc., to the CYMEDIX Software System,
CYMEDIX Software or CYMEDIX Product it has licensed or will license during
the term of this Agreement.
5.3.2.1 SPONSOR has provided CYMEDIX with Specifications in Exhibit 5 for
customization it wishes CYMEDIX to make to the CYMEDIX Software System.
CYMEDIX will make these Specifications a part of this Agreement. CYMEDIX
agrees to provide these customizations to SPONSOR at no additional charge
from the prices in Exhibit 2.
5.3.3 Additional Specifications provided subsequently to CYMEDIX, or changes made
to the existing Specifications by SPONSOR shall be billable to SPONSOR on a
"job" basis with detailed "job" costing and delivery dates provided by
CYMEDIX, agreed to in writing, before any "job" is begun.
SECTION VI DUTIES AND OBLIGATIONS OF SPONSOR
6. SALES, SUPPORT AND INTERFACES TO SPONSOR SYSTEMS AND PRODUCTS
6.1 SPONSOR agrees to reasonably cooperate with CYMEDIX to insure that the
CYMEDIX Software System provides for proper communication between SPONSOR
and an End User. In addition, SPONSOR agrees to use reasonable efforts to
require End Users to cooperate with CYMEDIX in connection with the
installation and operation of such CYMEDIX Software System. In connection
therewith, SPONSOR will not intentionally misrepresent the capabilities of
the CYMEDIX Software System or make commitments that SPONSOR does not have
the authority to make.
6.2 Upon execution of this Agreement, SPONSOR shall place an initial order for
those products listed in Exhibit 2 in the quantity shown in Exhibit 2 with
the understanding that CYMEDIX shall have the right to finance or factor
End Users License payment streams to a maximum of twelve-month periods.
6.3 Upon the execution of this Agreement, SPONSOR shall provide CYMEDIX with
written Specifications that will allow the CYMEDIX Software System to
interface o SPONSOR systems and products. Said written Specifications
shall be held confidential by CYMEDIX and shall only be used by CYMEDIX to
provide an electronic interface between the CYMEDIX Software System and
SPONSOR systems and products. Both Parties agree to provide to the other
Party at no charge, testing facilities and services, for the testing of the
electronic interface(s).
6.4 SPONSOR shall, from time to time, provide to CYMEDIX additional or new
Specifications, of other third party products with which SPONSOR has a
contract, for the interface of CYMEDIX Software Systems. CYMEDIX agrees
whenever, reasonable and appropriate to devise these interfaces said
interfaces will be interfaced to SPONSOR systems and products. In these
instances, both Parties agree that the terms of this Agreement shall apply
to the product outcomes of these interfaces.
6.5 SPONSOR shall the sample End User License Agreement, which is attached
hereto as Exhibit 4 or as modified from time to time by CYMEDIX in
connection with the license of any End User software. SPONSOR may
substitute its own End User license agreement with the prior written
approval of CYMEDIX. In additions, SPONSOR may require an End User to
execute other agreements or document which SPONSOR deems to be necessary to
insure compliance with applicable laws and regulations to project SPONSOR's
interest.
6.6 SPONSOR shall inform prospective End Users that CYMEDIX will not provide a
warranty without an End User license agreement.
SECTION VII MUTUAL DUTIES AND OBLIGATIONS OF PARTIES
7.1 Each party shall fully comply with all local, state, and federal laws and
regulations, which may be applicable to the performance of this Agreement.
7.2 It is the intent of the Parties to comply with Section 1395nn of the Social
Security Act and the anti-kickback provisions set forth in the fraud and
abuse sections of 42 U.S.C. 1320a-7b, and any regulations issued thereunder
any similar state laws and regulations.
7.3 SPONSOR shall report to CYMEDIX any unauthorized use of the CYMEDIX
Software System and at CYMEDIX's costs, shall provide assistance to CYMEDIX
in the investigation and prosecution of any use of the CYMEDIX Software
System that infringes upon CYMEDIX's rights in the CYMEDIX Software System.
7.4 Either Party may disclose confidential information to the other Party.
Prior to disclosure, the confidential information shall be in writing and
be clearly designated as confidential. The disclosing Party shall retain
all rights of ownership in the confidential information, except that the
receiving Party may use the confidential information solely for the
performance of this Agreement.
7.5 Neither Party shall disclose of the disclosing Party. With regard to its
employees and sub-contractors, each Party shall disclose the Confidential
information only to those employees and sub-contractors who must have
access to Confidential information in order to perform the duties of their
position. Each Party shall require each of its employees and
sub-contractors to comply with the restricted use and not disclosure of the
Confidential Information. This obligation shall service the termination of
the Agreement.
7.6 The obligation of non-disclosure shall not apply to any information which:
(a) was in the public domain at the time of disclosure or subsequently
enters the public domain without breach of this Agreement; or
(b) was known to the receiving Party at the time of its disclosure; or
(c) is released from the obligation by written consent of the disclosing
Party; or
(d) is made available from another individual or entity without breach of
confidentiality by any third party.
7.7 In the event that CYMEDIX or the publisher of other software scrambles or
encodes certain portions of its CYMEDIX Software System, or implements
other security measures, SPONSOR shall not unscramble, decode, disassemble,
or de-compile such items, or act to circumvent such security measures for
any purpose whatsoever. Furthermore, SPONSOR agrees to take appropriate
steps to insure that none of its employees or sub-contractors takes any
such actions.
7.8 CYMEDIX retains all copyrights, intellectual property rights and trade
secrets in the CYMEDIX Software System and all derivative works.
SECTION VIII REPRESENTATIONS AND WARRANTIES
8.1 CYMEDIX represents that is has the right to grant to SPONSOR those rights
described within this Agreement.
8.2 CYMEDIX WARRANTS ONLY THAT THE CYMEDIX SOFTWARE SYSTEM CONFORMS TO
SPECIFICATIONS WHEN DELIVERED TO SPONSOR, AND CYMEDIX'S SOLE OBLIGATION
WITH RESPECT THEROF WILL BE LIMITED AT CYMEDIX'S OPTION, TO REPLACEMENT OF
SAID SOFTWARE OR RETURN OF THE LICENSING FEE. THIS WARRANTY SHALL EXTEND
FOR A PERIOD OF 12 MONTHS FOLLOWING INSTALLATION AT THE SPONSOR SITE.
THE FOREGOING IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. IN NO EVENT WILL CYMEDIX BE LIABLE FOR INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF CYMEDIX
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SPONSOR AGREES THAT
CYMEDIX'S LIABILITY HEREUNDER FOR DAMAGES WILL NOT EXCEED THE LICENSING FEE.
8.3 CYMEDIX DOES NOT WARRANT THAT THE OPERATION OF THE CYMEDIX SOFTWARE SYSTEM
SHALL NOT BE INTERRUPTED OR ERROR-FREE. THE OPERATION OF THE SOFTWARE MAY
RESULT IN THE LOSS OF DATA OR MAY BE SUBJECT TO INTERRUPTION. SPONSOR AND
End Users OF THE SOFTWARE SHOULD EXERCISE CAUTION THROUGH THE REGULAR
DUPLICATION (BACKUP) OF ALL DATA. THE LIKELIHOOD OF DATA LOSS OR
INTERRUPTION OF OPERATION IS INCREASED BY THE OPERATION OF THE SOFTWARE, BY
IMPROPERLY TRAINED PERSONNEL, BY USE CONTRARY TO THE USER'S MANUAL, BY USE
WITH IMPROPER SITE PREPARATION, OR BY USE WITH SOFTWARE OR HARDWARE NOT
APPROVED BY CYMEDIX.
8.4 THESE WARRANTIES SHALL NOT EXTEND TO ANY MODIFICATIONS OF THE CYMEDIX
SOFTWARE SYSTEM BY SPONSOR NOR TO ANY CYMEDIX SOFTWARE SYSTEM THAT IS NOT
AT THE MOST CURRENT RELEASE LEVE.
SECTION IX TERM AND TERMINATION
9.1 The initial term of this Agreement ("License Term") shall be for a period
of three (3) years from its execution, unless earlier terminated as
provided herein.
9.2 Extensions of License Term
9.2.1 The License Term will be automatically extended (absent notice of
non-extension as provided below) for successive one (1) year intervals,
each interval referred to herein as "License Term Extension", but not to
exceed the life of any copyright which covers the CYMEDIX Software System.
9.2.2 Either Party may decline to extend the License Term for any reason or for
no reason by providing the other Party with no less than ninety (90) and no
more than one-hundred-twenty (120) days prior written notice of
non-extension.
9.3 Breach of Agreement
9.3.1 If either Party determines that the other Party has breached this
Agreement, the non-defaulting Party shall give written notice of the breach
to the other Party. The defaulting Party shall have sixty (60) days from
receipt of the notice in which to cure the breach.
9.3.2 In the event that CYMEDIX breaches any provision of this Agreement, and
fails to cure same following notice, then this Agreement shall be
terminated.
9.3.3 In the event that SPONSOR breaches any provision of this Agreement, and
fails to cure same following notice, then this Agreement shall be
terminated.
9.3.4 CYMEDIX may terminate this Agreement if SPONSOR makes an assignment for the
benefit of creditors, or files any petition under Chapter 9, 10, 11, 12, or
13 of Xxxxx 00, Xxxxxx Xxxxxx Code, or files a voluntary petition in
bankruptcy or is adjudicated bankrupt or insolvent, or if any receiver is
appointed for its business or property, or if any trustee in bankruptcy, or
insolvency is appointed under the laws of the United States government or
of the several states.
9.3.5 This Agreement may be terminated upon notice, if legal counsel for either
Party should conclude that the Agreement, any related CYMEDIX agreement
with an End User and the Services to be provided in connection with such
agreements may violate those laws and regulations set forth in Sections 7.1
and 7.2 above or violate any other applicable laws or regulations.
9.4 Termination:
9.4.1 Upon termination of this Agreement, CYMEDIX shall:
(a) grant to SPONSOR the right to provide continuing Services to its End
Users so as to fulfill obligations created prior to termination of the
Agreement. This grant is made without additional charge to SPONSOR
other than the costs for the CYMEDIX Support Services to SPONSOR, such
charges to be invoiced at the then current CYMEDIX Service schedules
and rates; and
(b) continue performance of its obligations under this agreement with
regard to preservation of ownerss' rights in the CYMEDIX Software
System, computer programs and condifential information.
9.4.2 Within thirty (30) days of termination of this Agreement, SPONSOR shall;
(a) complete payment under this Agreement to the extent that SPONSOR is
responsible for such payment;
(b) continue performance of its obligations under this Agreement with
regard to preservation of ownership rights in the CYMEDIX Software
System, computer programs and confidential information.
(c) Continue performance of its obligations under this Agreement to
preserve ownership rights and confidential information,
indemnification, and any warranties;
(d) Cease using CYMEDIX Software Systems, if any, for SPONSOR's internal
business activities; and
(e) Cease using any trade or service xxxx or insignia of CYMEDIX.
SECTION X MISCELLANEOUS
10.1 Insurance Coverage
10.1.1 During the license term an any license term extension, SPONSOR agrees
to maintain at its own expense comprehensive general liability insurance
for claims for damages arising from bodily injury (including death) and
property damages caused by, or arising out of acts or omissions of its
employees;
10.1.2 SPONSOR shall furnish to CYMEDIX a Certificate of such insurance
promptly upon request by CYMEDIX.
10.1.3 Indemnification
10.1.4 SPONSOR agrees to defend CYMEDIX against any and all claims, and
indemnify and hold CYMEDIX harmless against any and all losses or expenses
arising form or otherwise in respect of;
(a) any material inaccuracy in any representation, and nay material breach
of any warranty or covenant of SPONSOR contained in this Agreement,
and
(b) any exercise of licensed rights and any other use of the CYMEDIX
Software System by SPONSOR.
10.1.5 CYMEDIX will defend SPONSOR against any and all claims and hold
SPONSOR harmless against any and all losses or expense subject to the
limitations of warranties, remedies and liability herein arising from;
(a) any material inaccuracy in any representation, and any material breach
of any warranty or covenant of SPONSOR contained in this Agreement,
and
(b) any exercise of licensed rights and any other use of the CYMEDIX
Software System by SPONSOR.
10.2 Mediation
10.2.1.1 If a dispute arises out of or related to this Agreement, or the
breach hereof, and if said dispute cannot be settled through negotiation,
the Parties agree first to try in good faith to settle the dispute by
mediation under the Commercial Mediation Rules of the American Arbitration
Association before resorting to arbitration. The mediator shall be an
individual with experience in computer programs.
10.3 Arbitration
10.3.1 Any claim or controversy arising out of this Agreement which has not
been settled by mediation, shall be settled by arbitration, in accordance
with the Arbitration Rules of the American Arbitration Association, as
herein amended. Judgement upon the arbitration award rendered by the
arbitrators may be entered in any Court having jurisdiction thereof. The
arbitrators shall be individuals with experience in computer programs.
10.3.2 Limited civil discovery shall be permitted for the production of
documents and taking of deposition. All discovery shall be governed by the
Federal Rules of Civil Procedure. All disputes regarding discovery shall
be settled by the arbitrators.
10.3.3 Either Party may apply to any court having jurisdiction hereof and
seek injunctive relief so as to maintain the statue quo of the Parties
until such times as the arbitration award is rendered or the controversy
otherwise resolved.
10.3.4 Notwithstanding anything in this [obliterated] to the contrary, no
claim, dispute or other matter shall be subject to and decided by
arbitration until the parties to the Agreement mutually agree that the
subject matter of the claim or dispute is appropriate for arbitration and
the parties of this Agreement have reviewed and mutually agreed upon the
specific arbitration rules which would apply. Unless otherwise agreed to
between the Parties, the arbitrator may not award consequential, exemplary,
incidental, punitive or special damages.
10.4 Law and Forum
10.4.1 This Agreement shall be deemed entered into the State of California
and shall be construed in accordance with the laws of the State of
California and of the United State of America.
10.5 Transfer of Obligations
10.5.1 Either Party may assign this Agreement to a third party that agrees
to assume all conditions and obligations of this Agreement provided the
transferring party has the prior written approval of the other Party whose
written approval shall not be unreasonably withheld, and appropriate prior
written notice to End Users.
10.6 Notices
10.6.1 All notices under this Agreement shall be in writing. Service of
notice shall be deemed adequate if (1) personally delivered, (2) sent by
certified mail, (3) sent by facsimile, or (4) delivered by overnight
courier. The sender shall address the notice to the recipient at the
address set forth below, or at such other address of which the recipient
shall have given the sender pursuant to the Agreement;
(a) If to SPONSOR, the notice shall be sent as follows:
Xxxxxx Xxxxxxx
Loyola University Medical Center
ATTN:
-------------------------
0000 X. Xxxxx
Xxxxxxx, XX 00000
(b) If to CYMEDIX, the notice shall be sent as follows:
CYMEDIX Corporation
ATTN: Xx. Xxxxx Xxxxx
Chief Operating Officer
Xxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
10.7 Additional Terms
10.8 Amendments
THE PARTIES HERETO HERBY ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS
TERMS AND CONDITIONS.
Cymedix Corporation Loyola University Medical
Center
/s/Xxxxx Xxxxx /s/Xxxxxx Xxxxxxx
-------------- -----------------
Xxxxx Xxxxx Title
Chief Operating Officer
-----------------------
Date Received 3/2/2000 Date Executed: 3/3/2000
EXHIBIT 1
CYMEDIX PRODUCT LIST AND DESCRIPTION
1.0 CYMEDIX PRODUCT LIST: The following CYMEDIX Products are covered
under this Agreement:
1.1 Cymedix Lynx Corporation (Host Package): Xxxxxxx.xxx Host provides
the Sponsor the ability to automatically receive patient procedure
requires from the End Users and transmit the results of those
procedures back to the doctor/provider, Xxxxxxx.xxx (Server) provides
connection to the Sponsors Laboratory Information System (LIS) and
to/through the Internet for secure transmission and receipt of
patient procedure data.
Cymedix Lynx Corporation (Remote Package): Xxxxxxx.xxx Remote
provides the End User the ability to automatically receive patient
procedure results from the SPONSOR and to Transmit patient procedure
request to the SPONSOR. Xxxxxxx.xxx Remote provides a dial-up
connection to a commercial information network service of CYMEDIX's
choice (Mindspring, MSN, or other Cymedix approved third party
Internet service provider) or directly to the Internet for secure
transmission and receipt of all patient procedure data.
EXHIBIT 2
CYMEDIX PRODUCT AND SERVICE PRICES AND MINIMUM QUANTITY ORDERS.
A. CYMEDIX PRODUCT PRICES:
The CYMEDIX Product and Service prices are as follows:
1. XXXXXXX.XXX HOST Package System and License Fee including:
o Cymedix IBM compatible hardware platform (Pentium II or higher equivalent)
with at least: 128 Megs Ram,
o 8.4GB Hard Drive
o 3c905b NIC
o Windows 98
o PCI Modem
o 156in VGA monitor
o 12 GB DAT tape backup
o PC Anywhere Host version
o WatchDog PCI card
o XXXXXXX.XXX Host Software License
o Software to connect the CYMEDIX HOST System to the SPONSOR's laboratory
information system.
o Four (4) days of training at the SPONSOR LOCATION
o Twenty-five (25) copies, including installation of the XXXXXXX.XXX Remote
software for Windows95/98or Windows NT/Workstation.
$#*
(*) Special rental terms apply. The aforementioned charges are waived.
Beginning with the fourth month after the execution of this Agreement, sponsor
agrees to pay the greater amount of $# per month or the total monthly transaction
fees.
2. XXXXXXX.XXX REMOTE: (per copy if client copy is lost or stolen) $#
3. Cymedix Server Package System Maintenance Monthly Fee: $ #
4. Installation and Training Services for initial 25 sites
$ #
4A. Installation and Training Services for sites after initial 25
$ # per day
5. SPONSOR to provide approved Internet service provider for each XXXXXXX.XXX
installation site as well as the XXXXXXX.XXX HOST installation site.
6. Transaction Fee (per patient record per day) $ #
7.
8. Maintenance Fees $ #
B. PRICE CHANGES
1. Price Changes: On each Anniversary Date of the signing of the Agreement
after the initial 36 months, CYMEDIX shall have the right to increase
the CYMEDIX Server Package System Maintenance Monthly Fee, the
installation and Training Services Fee, the Monthly Network Service
Connect Fee and the Transaction Fee for the next year, in either an
amount not to exceed seven percent (#%) or changes or increases in
the ALL Urban Consumer Price Index (CPI-U), U.S. Cities Average, All
Items (1982-1948) x 100 percentage, whichever is higher.
EXHIBIT 3
PAYMENT TERMS
1.0 Invoicing: CYMEDIX shall invoice:
(a) Transaction Fees at the beginning of each month during the term of
this Agreement
(b) Any training charges billed (see Exhibit 2, Paragraph 4)
(c) License changes for XXXXXXX.XXX REMOTE Software Systems, CYMEDIX
Software and CYMEDIX Products delivered to SPONSOR on the date of
installation
(d) XXXXXXX.XXX HOST Package System (if applicable)
(e) All other charges when or after they are incurred for the SPONSOR
1.1 Payments/Past Due Balances: Payments are due as specified on the invoice.
Past due balances will be assessed an interest charge of two percent (2%)
per month and interest will be accrued monthly on any past due balance.
1.2 Expenses: All references in this Agreement, or in any Exhibit to the
Agreement, to travel expenses, travel-related expenses, or other expenses
shall mean expenses which are reasonably incurred, which are necessary, and
which are reasonable in amount. All related travel expenses will be
invoiced to SPONSOR as incurred.
1.3 Taxes: SPONSOR agrees to pay amounts equal to any applicable taxes
resulting form any transaction under this Agreement. This does not include
taxes based on CYMEDIX's net income or payroll. SPONSOR is responsible for
any personal property taxes for each CYMEDIX Software System form the date
CYMEDIX ships it to SPONSOR. Personal property taxes do not apply for out
of state transactions.
1.4 Shipping Charges: SPONSOR agrees to pay amounts equal to any shipping
charges resulting from transactions under this Agreement.
1.5 Charges: Depending on the particular CYMEDIX Software Systems, CYMEDIX
Software, CYMEDIX Product, Services or circumstances, additional charges
may apply subject to prior written notification of SPONSOR.
EXHIBIT 4
END USER LICENSE AGREEMENT
NOTICE: DO NOT OPEN THE ACCOMPANYING SEALED CASSETTE PACKAGE UNTIL YOU HAVE READ
THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ABIDE BY THE TERMS OF THIS
LICENSE, YOU MAY RETURN THE CLIENT PACKAGE WITHIN FIVE (5) DAYS OF DELIVERY SO
LONG AS THE SEAL ON THE PACKAGE ENVELOPE HAS NOT BEEN BROKEN.
1. CYMEDIX and End User have agreed, by End User's act of opening the sealed
Package or by End User's use of any of the Package and accompanying
documentation that CYMEDIX's grant to End User of the right to use and
possession of the package shall be subject to all of the following terms
and conditions:
This license is personal, non-transferable and non-exclusive, and only
permits End User to:
(a) Use the XXXXXXX.XXX REMOTE Package on a single computer or, in the
case of a network XXXXXXX.XXX REMOTE Package, on an integrated
configuration of hardware that uses a single operational copy of a
XXXXXXX.XXX REMOTE Package, and
(b) Copy the XXXXXXX.XXX REMOTE Package into any machine-readable form for
back-up purposes, or to support End User's use of the XXXXXXX.XXX
REMOTE Package, provided, however, that only the number of copies
reasonably required to serve END User's actual needs for such purposes
shall be made; and
(c) End User may not modify or change the XXXXXXX.XXX REMOTE Package in
any manner, reverse-assemble or reverse-compile the Client Package in
whole or in part, or use, copy, lend or otherwise transfer or permit
use of Client Package in whole or in park except as expressly provided
in this Agreement.
2. TERMINATION. This Agreement may be terminated by either party by providing
thirty (30) days written notice to the other party. This Agreement shall
terminate automatically 36 months from the date of Agreement unless
extended by mutual agreement of the parties. Upon termination, End User
shall cease using and completely purge any affected Client Package and all
copies, and any modifications or merged portions, and provide reasonable
written certification to CYMEDIX of such cessation and purgation.
3. DEFAULTS. If End User fails to abide by the obligations of this Agreement,
CYMEDIX shall have the option to cancel this Agreement upon fifteen (15)
days prior written notice to End User. End User may prevent the
termination of this Agreement by taking corrective action that cures the
default within such fifteen-day period; otherwise, this Agreement shall
terminate automatically at the end of such fifteen-day period.
4. WARRANTY DISCLAIMER AND LIMITATIN OF LIABILITY. CYMEDIX DOES NOT WARRANT
THAT THE CLIENT PACKAGE WILL MEET END USER'S FUNCTIONAL REQUIREMENTS, OR
THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PROGRAM
ERRORS WILL BE CORRECTED.
EXCEPT FOR THE SPECIFIC UNDERTAKINGS OF ANY SERVICE CONTRACT IN EFFECT, THE
SOFTWARE PRODUCTS ARE PROVIDED "AS IS" WITH NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND END USER ASSUMES
THE ENTIRE RESPONSIBILITY AND COST OF ALL NECESSARY SERVICE OR CORRECTION.
IN NO EVENT SHALL CYMEDIX BE LIABLE TO END USER FOR LOST PROFITS, LOST
SAVINGS, OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF ANY
BREACH OF THIS AGREEMENT OR USE OR INABILITY TO USE SOFTWARE PRODUCT(S), OR
FOR ANY CLAIM MADE AGAINST TEND USER BY ANY OTHER PARTY, EVEN IF CYMEDIX
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
5. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement shall be settled exclusively by arbitration, and the parties
expressly waive all rights to file suit over any such matters. A single
arbitrator under the then current Rules promulgated by the American
Arbitration Association shall conduct the arbitration. The arbitrator
shall be chosen form a panel of persons knowledgeable in data processing
systems. The decision of the arbitrator shall be final and binding, the
arbitration shall be held in Los Angeles, California.
6. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any prior
written or oral agreements between the parties.
7. AMENDMENT. This agreement may be modified or amended, if the amendment is
made in writing and signed by both parties; or by interlineations in ink to
this Agreement and initialed by both parties.
8. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California.
