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EXHIBIT 10.9
Legend:
Places in this exhibit where four (4) consecutive asterisks ("****")
appear indicate that a confidential portion of this document has been omitted in
such location. PracticeWorks has filed a request for confidential treatment with
respect to such information, and such information has been filed separately with
the Securities and Exchange Commission.
INVENTORY CONTROL SYSTEM
DEVELOPMENT & MARKETING AGREEMENT
This Inventory Control System Development & Marketing Agreement
("Agreement") is made by and between Ormco Corporation, a Delaware corporation
with offices at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("ORMCO"),
and InfoCure Corporation, a Delaware corporation having its principal offices at
0000 Xxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("InfoCure").
RECITALS
A. The orthodontics division of InfoCure develops and licenses,
among other things, software for use by the orthodontic industry.
B. ORMCO is in the business of the developing, manufacturing,
marketing, distributing, and selling orthodontic supplies and other
industry-related goods.
C. The orthodontics division of InfoCure intends to develop and
to market to its customers an inventory control system that provides for on-line
computer entry for orthodontic supply orders.
D. ORMCO and InfoCure wish to enter into an agreement to support
the orthodontics division of InfoCure in its effort to create and to market the
system and to provide orthodontists with the ability to use the system to order
ORMCO products.
AGREEMENT
In consideration of the mutual promises and covenants and upon the
terms and conditions set forth in this Agreement, the parties agree as follows:
1. DEFINITIONS.
1.1. For the purposes of this Agreement, the term "Orthodontic
Inventory Control Product" or "Orthodontic Inventory Control
Products" means those InfoCure inventory control system
products and services for the orthodontic industry to be
developed by InfoCure that will provide for on-line computer
entry for orthodontic supply orders, including any manuals or
documentation related thereto or improvements, upgrades, and
new releases thereof; and other related products or services
as the parties may from time to time agree in writing to
include within this definition.
1.2. For the purposes of this Agreement, the term "ORMCO Product"
or "ORMCO Products" means those ORMCO products and services
for the orthodontic industry, offered for sale by ORMCO from
time to time.
1.3. For purposes of this Agreement, the term "Total Net Sales"
shall be the total dollar amounts actually billed by ORMCO in
a particular calendar quarter for the
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sale of ORMCO Products ordered by an InfoCure customer using
the Orthodontic Inventory Control Products to place the order,
less any returns and allowances, freight and transportation
charges (including insurance), sales, excise, value added or
use taxes, other governmental charges, trade and cash
discounts, and rebates.
2. EXCLUSIVE RIGHT OF PARTICIPATION.
2.1. During the term of this Agreement, InfoCure hereby grants to
ORMCO the right to be the exclusive supplier of orthodontic
products and services to those customers ordering orthodontic
products and services using the Orthodontic Inventory Control
Products.
2.2. InfoCure shall not provide any other company offering
orthodontic products and services to the orthodontic community
the opportunity to have its customers order its products using
all or any part of the Orthodontic Inventory Control Products.
2.3. If ORMCO, by written notice to InfoCure given not later than
February 28, 2001, shall advise InfoCure that ORMCO's
incremental costs incurred in the performance of this
Agreement have exceeded the incremental revenues received by
ORMCO as a result of this Agreement, then, as of the date of
the notice, (i) ORMCO's right of participation under section
2.1 of this Agreement shall become non-exclusive rather than
exclusive and the rights granted under Section 2.4 of this
Agreement shall become void, and (ii) the rebate to be paid by
ORMCO to InfoCure under section 5.1 of this Agreement shall be
reduced from **** to ****; provided that, if at any time a
rebate of less than **** is paid to InfoCure by others who
have entered into a non-exclusive arrangement with InfoCure
for participation similar to that of ORMCO under this
Agreement, then the rebate paid by ORMCO shall not exceed the
lowest rebate paid by those others.
2.4. If this Agreement should terminate prior to December 31, 2009,
for any reason other than ORMCO's material breach pursuant to
section 7.4 of this Agreement or notice given by ORMCO of its
intent not to renew the Agreement under section 7.3 of this
Agreement, then until December 31, 2009 InfoCure shall not
offer any right of participation similar to the one provided
to ORMCO under Section 2.1 of this Agreement, whether
exclusive or non-exclusive, to any company offering any type
of products to the orthodontic industry, unless ORMCO shall
have been offered in writing the opportunity to participate on
a non-exclusive basis and otherwise on the same terms and
conditions as such company is offered the right to participate
and shall have failed, within 30 days of such written notice,
to provide InfoCure with written notice of its intent to
participate upon the same material terms and conditions as the
most favorable terms and conditions offered by InfoCure to
such other company. ORMCO shall only be permitted to
participate if a written agreement upon the same material
terms and conditions as the most favorable terms and
conditions offered by InfoCure to any other company is entered
into by ORMCO and InfoCure within thirty (30) days of
InfoCure's receipt of notice from ORMCO.
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2.5. If this Agreement should terminate prior to December 31, 2009,
for any reason other than InfoCure's material breach pursuant
to section 7.4 of this Agreement, then ORMCO shall not
cooperate with any other third-party supplier of software
designed to permit customers to order orthodontic products and
services electronically from ORMCO; provided, however, that
nothing in this Agreement shall prevent ORMCO to undertake,
with its own in-house resources or pursuant to contract, from
creating its own proprietary software designed to permit
customers to order orthodontic products and services
electronically from ORMCO as long as ORMCO does not offer such
orthodontic products and services to InfoCure's customers
under pricing, terms and conditions more favorable than those
offered by ORMCO through the Orthodontic Inventory Control
Product.
3. RIGHTS, DUTIES, AND OBLIGATIONS OF THE PARTIES.
3.1. InfoCure shall assume full responsibility and liability, and
shall assume all costs and expense, with respect to the
development, manufacture, packaging, marketing, license,
warranty service, and maintenance of the Orthodontic Inventory
Control Products, as well as the assets and resources of
InfoCure utilized in such activities; except that, ORMCO shall
have the right to consult with InfoCure throughout the
development of Orthodontic Inventory Control Products and,
prior to the offering of Orthodontic Inventory Control
Products for sale.
3.2. At all times during which this Agreement is exclusive, no
version of the Orthodontic Inventory Control Products shall be
distributed by InfoCure unless ORMCO has approved the version
for distribution or either sixty (60) days with respect to the
first version of the Orthodontic Inventory Control Product or
thirty (30) days with respect to any version thereafter have
elapsed since ORMCO was provided a copy of the product to
inspect and it did not provide InfoCure with any written
notice of objection to the distribution of the product. ORMCO
shall have the right to conduct a beta test of the initial
version of the Orthodontic Inventory Control Product provided
to it for evaluation with a minimum number of ten (10)
InfoCure customers mutually agreed to by the parties for a
minimum period of thirty (30) days. ORMCO's approval shall not
be unreasonably withheld and objection may only be based on a
failure of InfoCure to comply with agreed upon parameters or
specifications for the Orthodontic Inventory Control Product
or unsatisfactory results from the beta tests. Any objection
by ORMCO must be made in writing. Upon receipt of a written
objection, InfoCure shall have thirty (30) days to cure any
deficiencies in the Orthodontic Inventory Control Product and
deliver such corrected Orthodontic Inventory Control Product
to ORMCO. Upon receipt thereof, ORMCO will have thirty (30)
days to retest the Orthodontic Inventory Control Products to
determine if the deficiencies have been corrected and shall
make any further objection in writing and within thirty (30)
days of the delivery of the revised Orthodontic Inventory
Control Products. Any failure to provide an objection within
the thirty (30) day period(s) identified above shall be deemed
an approval of the Orthodontic Inventory Control Products by
ORMCO.
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3.3. ORMCO shall assume full responsibility and liability, and
shall assume all cost and expense, with respect to the
development, manufacture, packaging, marketing, sale, warranty
service, and maintenance of ORMCO Products, as well as the
assets and resources of ORMCO utilized in such activities.
ORMCO further acknowledges and agrees that InfoCure's ability
to complete the development of the Orthodontic Inventory
Control Product is dependent on ORMCO's providing InfoCure
with access to ORMCO's software and equipment as well as
assistance, cooperation, and complete and accurate information
and data from its officers, agents, and employees, as
reasonably requested and needed by InfoCure's to complete its
development of the Orthodontic Inventory Control Products.
ORMCO agrees that, to the extent that InfoCure needs access to
any of ORMCO's software, ORMCO shall have all rights and
licenses necessary to provide InfoCure such access prior to
giving InfoCure such access.
3.4. Each party shall assume full responsibility and liability with
respect to any warranty that it may choose to offer with
respect to its products, including but not limited to any
accommodation offered any customer above and beyond the strict
requirements of a party's warranty obligations.
3.5. Each party shall indemnify and hold the other party harmless
from any actions, suits proceedings, damages, expenses and
fees (including any reasonable attorney fees) which the other
party incurs as a result of (i) any breach of warranty or
alleged breach of warranty of such party's product, (ii) any
failure by such party to comply with any applicable laws or
regulations, or (iii) any liability to third parties
(including reasonable attorney's fees) for any personal
injury, property damage or economic loss, or claim therefor,
including death or other loss, cost or expense, to the extent
caused or alleged to have been caused by the products of such
party (whether sounding in tort, contract, negligence, strict
liability, or any other legal theory), except to the extent
that such claim is determined to be due to the negligence or
intentional misconduct of, or a breach of its obligations
under this Agreement by, the other party, its customers, its
employees, or its agents. In the event of any such claim for
indemnity, the party seeking indemnity shall promptly notify
the indemnifying party in writing, and the indemnifying party
shall have the exclusive right to defend such action, through
legal counsel of its own choosing and at its own expense.
3.6. Each party shall maintain adequate general liability
insurance, including product liability insurance, covering the
liabilities assumed under this Agreement and shall provide the
other party with a certificate of insurance evidencing such
coverage upon request.
3.7. InfoCure shall make available to ORCMO certain sales and
marketing materials related to the Orthodontic Inventory
Control Product in such quantities, as it deems appropriate
under the circumstances. At all times during which this
Agreement is exclusive, marketing materials prepared by either
party regarding the Orthodontic Inventory Control Product
shall be provided to the other party for its review and
approval prior to distribution, whether or not such marketing
materials are to be distributed by or through such party.
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3.8. To the extent InfoCure is permitted to do so by law or
otherwise, InfoCure shall make available to ORMCO any reports
generated by all or any part of the Orthodontic Control
Inventory Products system or any statistical or other analysis
made or which could be made from the information contained or
generated by the Orthodontic Control Inventory Products but
only to the extent such information is directly related to the
sale of ORMCO Products to InfoCure customers through the
Orthodontic Inventory Control Products. ORMCO agrees that all
such information shall remain the exclusive property of
InfoCure and ORMCO shall only use such information for
internal purposes related to this Agreement and shall not use
or otherwise distribute such information for any other
purpose.
3.9. InfoCure shall make available to ORMCO such opportunity to
promote ORMCO Products, both as part of the sale of
Orthodontic Inventory Control Products and within the
operation of Orthodontic Inventory Control Products, as is
mutually agreed by the parties.
3.10. Each party shall consistently and enthusiastically promote to
its customers the products of the other party and shall avoid
any actions that are inconsistent with this duty.
4. PRICING AND TERMS. InfoCure shall have the sole right to establish
prices for Orthodontic Inventory Control Products and the terms
governing the license of each Orthodontic Inventory Control Product.
ORMCO shall have the sole right to establish prices for ORMCO Products
and the terms governing the sale of each ORMCO Product.
5. REBATE AND REBATE PAYMENTS.
5.1. In each calendar quarter during the Initial Term and each
Renewal Term (as defined in Section 7.3 below), ORMCO shall
pay InfoCure a rebate for each ORMCO Product invoiced by
ORMCO, in the calendar quarter, to an InfoCure customer
ordering the ORMCO Product through the use of Orthodontic
Inventory Control Products. The rebate shall be **** of Total
Net Sales, unless modified as provided in section 2.3 of this
Agreement. Unless otherwise agreed to by the parties in
writing or unless the Agreement becomes nonexclusive pursuant
to section 2.3 of this Agreement, a minimum of half of the
rebate paid by ORMCO to InfoCure on the sale of an ORMCO
Product shall by given by InfoCure to the InfoCure customer
ordering such ORMCO Product as incentive for utilizing
Orthodontic Inventory Control Products. No rebate shall accrue
or be due more than once for the sale of a given ORMCO
Product.
5.2. Within fifteen (15) days following the end of each calendar
quarter, ORMCO shall deliver to InfoCure a written report
stating the total number of ORMCO Products sold by ORMCO to
InfoCure customers ordering such ORMCO Products through the
use of Orthodontic Inventory Control Products during the
preceding calendar quarter.
5.3. The rebates payable to InfoCure for any given calendar quarter
during the Initial Term and any Renewal Term of this Agreement
shall be paid within thirty (30)
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days following the end of that calendar quarter and shall be
in the form of a check drawn on a United States bank in U.S.
dollars unless other agreed to by the parties.
5.4. Each written report shall be made when due whether or not any
rebate is due.
5.5. ORMCO shall keep full and true books of its accounts,
invoices, and other records in sufficient detail such that the
rebates payable to InfoCure hereunder can be properly
ascertained. The books, records and invoices for a given
calendar year shall be preserved for a period of three (3)
years following the end of such calendar year.
5.6. At the request and expense of InfoCure, ORMCO shall permit an
independent Certified Public Accountant (except one to whom
ORMCO has a reasonable objection) to inspect such books,
records, invoices and related journals, accounts, inventory
and records necessary or desirable to verify the accuracy of
the rebate reports. The inspections shall take place a maximum
of one (1) time per year, during reasonable business hours and
upon reasonable advance notice. The independent Certified
Public Accountant shall be obligated to execute a written
undertaking with respect to such confidentiality prior to the
commencement of inspection. If this examination reveals that
ORMCO has underreported and/or underpaid rebates hereunder,
ORMCO shall immediately pay InfoCure any unpaid rebates. If
the underpaid rebates exceed five percent (5%) of the rebates
actually paid, then ORMCO shall also pay InfoCure's reasonable
costs of conducting the examination.
6. XXXXXXXX AND COLLECTIONS.
6.1. All billing and invoicing in connection with the license
and/or sale of Orthodontic Inventory Control Products shall be
the sole responsibility of InfoCure. All billing and invoicing
in connection with the sale of ORMCO Products shall be the
sole responsibility of ORMCO. Further, each party shall have
full and sole responsibility for its own collections and shall
exercise complete control over approval of all customer
credit, orders, and contracts.
6.2. ORMCO shall have no responsibility or liability for the
failure of any InfoCure customer to make payment to InfoCure,
and InfoCure shall have no responsibility or liability for the
failure of any ORMCO customer to make payment to ORMCO.
6.3. Each party shall be solely responsible for the collection and
payment of all applicable taxes on its products including,
without limitation, any and all sales taxes, use taxes and
value-added taxes.
7. TERM AND TERMINATION.
7.1. The initial term of this Agreement shall be for sixty-six
months commencing on July 1, 1999, and ending on December 31,
2004 (the "Initial Term").
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7.2. In the event InfoCure, following the receipt by ORMCO of its
first written notice of objection as specified by section 3.2,
fails to cure, within the time period provided in section 3.2,
ORMCO's objections to the Orthodontic Inventory Control
Products developed by InfoCure, ORMCO shall have the right to
terminate this Agreement by providing written notice to
InfoCure within fifteen (15) business days of the expiration
of InfoCure time period for curing ORMCO's objection. The
termination shall be effective thirty (30) days after such
notice by ORMCO if InfoCure fails to cure the deficiencies
within such thirty (30) day period.
7.3. Following the end of the Initial Term, this Agreement shall,
until December 31, 2009, automatically renew on December 31st
of each year for an additional term of one (1) year (each a
"Renewal Term") without further action on the part of either
party on the expiration date of the Initial Term or any
Renewal Term, unless terminated earlier by ORMCO by giving
sixty (60) days written notice of termination prior to the end
of the then current term. All terms and conditions in the
Initial Term of this Agreement shall be effective in any
Renewal Term; except that InfoCure shall have the right, prior
to the commencement of any Renewal Term, to convert the
exclusive grant provided in Section 2.1 to a non-exclusive
grant for any or all of the Renewal Terms. For the conversion
to be effective, InfoCure must provide ORMCO written notice of
InfoCure's decision to convert to a non-exclusive arrangement.
The notice must be sent to ORMCO at least sixty (60) days
prior to the start of the Renewal Term in which InfoCure wants
the non-exclusive arrangement to commence.
7.4. Either party may terminate this Agreement on sixty (60) days
prior written notice to the other party if the party to whom
such notice is given is in material breach of this Agreement
and any such breach is not cured within such sixty (60) day
period. The party claiming the right to terminate under this
provision shall set forth in its notice of intent to terminate
the facts underlying its claim that the other party is in
material breach of this Agreement. With respect to defaults
not reasonably curable within the sixty (60) day notice
period, the party to whom notice is given shall not be
considered to be in default as a result of such failure, so
long as that party is diligently and expeditiously attempting
to cure such default and such default is curable within a
reasonable period of time following the expiration of such
sixty (60) day notice period.
7.5. In the event of any expiration or termination of this
Agreement, all rights and licenses provided hereunder shall
immediately terminate and each party shall return to the other
party, its property and Proprietary Information (and all
copies thereof); and such expiration or termination shall not
affect the obligations of either party to the other (i)
accruing prior to the date of termination, or (ii) which
expressly extend beyond the term of this Agreement. Further,
any such expiration or termination of the Agreement shall be
without prejudice to any right or remedy to which a party may
be entitled either at law, in equity or under this Agreement.
Upon the expiration or termination of this Agreement, the
provisions of this Agreement concerning the ongoing interests
of the parties shall continue and survive in full force and
effect, including without limitation Sections 2.4, 2.5, 3.3,
3.4, 3.5, 5.5, 5.6, 7.5, 7.6, 8, 10, 12, 13, and 14.
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7.6. Upon or as a result of termination of this Agreement, neither
party hereto shall be liable to the other party for any
consequential, punitive, special or indirect damages,
including but not limited to any damages based on any loss (or
anticipated loss) of income, business, sales, profits or
earnings, or based on expenditures, investments, costs,
actions taken or commitments made or entered into in reliance
of or in any way related to the performance of this Agreement
or resulting from the use of or inability to use the products
or the performance or non-performance of any services,
including the failure of essential purpose, even if such party
has been notified of the possibility or likelihood of such
damages occurring. In no event shall InfoCure's liability to
ORMCO exceed the rebates paid by ORMCO to InfoCure hereunder.
In no event shall ORMCO's liability to InfoCure exceed the
rebates owed by ORMCO to InfoCure hereunder.
8. WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY
MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS
TO THE OTHER PARTY WITH RESPECT TO THEIR PRODUCTS OR ANY SERVICES
PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL
OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE
FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,
NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY
EXCLUDED AND DISCLAIMED. ORMCO further acknowledges that certain risks
are inherent in the transmission of information over the Internet and
that InfoCure does not warrant that the transactions will be
uninterrupted, error free or impenetrably secure. InfoCure shall have
no liability for or relating to the security, interruption, integrity
or accuracy of ORMCO transaction with the InfoCure customers hereunder.
9. RELATIONSHIP OF THE PARTIES. In the performance of the work, duties and
obligations under this Agreement, it is mutually understood and agreed
that each party is acting and performing as an independent contractor.
Nothing under this Agreement is intended or shall be construed to
create between ORMCO and InfoCure an employer-employee relationship, a
joint venture relationship, or a partnership, nor shall this Agreement
be construed in any proceedings or for any purpose whatsoever so as to
make one party liable to a third person for the debts, faults, or
actions of any other party. Neither party shall withhold or in any way
be responsible for the payment for the other party of any federal,
state or local income taxes, F.I.C.A taxes, Medicare taxes,
unemployment compensation, workers' compensation contributions or
benefits, vacation pay, sick leave or any other employment benefits of
any kind. In conformity with this intent, neither party shall not have
or exercise any control or direction over the techniques, procedures,
or methods used by the other party in performing under this Agreement.
Similarly, neither party shall have the right, power, or authority to
enter into any binding obligation on behalf of the other at any time or
for any purpose.
10. PROPRIETARY INFORMATION, SERVICE MARKS, AND INTELLECTUAL PROPERTY.
10.1. Each party acknowledges that the other party has a proprietary
interest in information developed, used, and maintained by
that other party in regard to the operation of its business
which it considers to be competitively valuable and
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sensitive and holds in confidence from others ("Proprietary
Information"). This Proprietary Information includes, but is
not limited to, software, policies, procedures, operating
manuals, business practices, forms, operating systems and
information. Each party agrees that any such Proprietary
Information is owned by that other party and that it will keep
and maintain in strict confidence and will not use any
Proprietary Information of the other party known to it.
Further, each party agrees to undertake all reasonable and
appropriate steps to ensure that the confidentiality and
secrecy of any Proprietary Information of the other party
known to them is maintained, and that the Proprietary
Information of the other party will not be used by others for
its benefit or to the detriment of the other party. The
obligations under this Section shall survive the termination
of this Agreement and shall apply for so long as a party
maintains any such information as confidential and
proprietary.
10.2. Each party acknowledges and agrees that all trade names,
trademarks, service marks, and logos of or associated with the
business of the other party are the sole property of that
party. The party may use and display any such trade names,
service marks, or logos of the party only in the manner as
authorized by the other party and only during the term of this
Agreement. Each party reserves the right to add to, change, or
discontinue the use of any trade name, trademark, service
xxxx, or logo on a selective or general basis at any time.
10.3. InfoCure acknowledges that any trademark containing the word
"ORMCO" shall be the property of ORMCO and shall cooperate
with all efforts of ORMCO necessary to protect ORMCO's rights
in the trademark. InfoCure shall not take any actions that are
inconsistent with the ownership of the trademark by ORMCO.
Nothing in this Agreement provides InfoCure with any right,
title, or interest in the trademark. InfoCure shall not
challenge the title of ORMCO to the trademark and shall take
no action to register the trademark with the United States
Patent and Trademark Office or any foreign trademark
registration office.
10.4. ORMCO acknowledges that any trademark containing the words
"INFOCURE", "ORTHOTRAC", and all other trademarks, service
marks, logos and the like used by the InfoCure ("InfoCure
Marks") shall be the property of InfoCure and shall cooperate
with all efforts of InfoCure necessary to protect InfoCure's
rights in the InfoCure Marks. ORMCO shall not take any actions
that are inconsistent with the ownership of the InfoCure Marks
by InfoCure. Nothing in this Agreement provides ORMCO with any
right, title, or interest in the trademark. ORMCO shall not
challenge the title of InfoCure to the InfoCure Marks and
shall take no action to register the InfoCure Marks with the
United States Patent and Trademark Office or any foreign
trademark registration office.
10.5. Each party acknowledges and agrees that all inventions,
patents, and copyrights arising out of or associated with this
Agreement are the sole property of that party that created
such inventions, patents, or copyrights. Each party may use
such inventions, patents, and copyrights of the other party
only in the manner and for the purpose authorized by the other
party and only during the term of this Agreement.
Notwithstanding the foregoing, ORMCO acknowledges and agrees
that all right, title and interest in the Orthodontic
Inventory Control Product
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developed pursuant to this Agreement, including without
limitation all intellectual property rights included therein,
belong to InfoCure. ORMCO hereby assigns, and upon creation
thereof automatically assigns, to InfoCure the ownership of
all intellectual property rights in the Orthodontic Inventory
Control Product or any improvement, modification or
enhancement thereto.
11. ASSIGNMENT. Except as specifically provided in this Agreement, neither
this Agreement, nor any of the rights or duties under this Agreement,
may be assigned or otherwise conveyed or delegated by either party.
Subject to the limitations of this Section, this Agreement shall apply
to and bind the parties and their respective heirs, executors,
administrators, successors and assigns. Notwithstanding the foregoing,
either party may assign this Agreement to any successor entity upon the
reorganization, merger, consolidation, acquisition or other
restructuring involving all or substantially all of the voting
securities and/or assets of such party.
12. DISPUTE RESOLUTION. All disputes shall be settled by arbitration under
the Commercial Arbitration Rules of the American Arbitration
Association. The arbitration hearing shall be held in California. The
arbitration award shall be final and binding upon the parties, and
enforceable by any court of competent jurisdiction.
13. CONFIDENTIALITY. Except as required by law or judicial process or
government agency (including without limitation the Securities and
Exchange Commission), each party shall keep this Agreement and its
terms in the strictest of confidence and its substance may be disclosed
only to those of its employees, agents, and representatives having a
need to know any of its contents in connection with their work; third
parties as agreed to by the other party; or as otherwise required by
law. Notwithstanding this or any other provision of this Agreement,
however, nothing in this Agreement shall prohibit either party from
disclosing the nature or amount of the rebate paid to InfoCure under
section 3.3 of this Agreement where required by law, by a contractual
obligation of a party, or where necessary to permit a party to avoid
making misleading statements about the nature of the relationship of
the parties under this Agreement.
14. GENERAL PROVISIONS.
14.1. Each party shall, from time to time upon the request of the
other party, execute and deliver any instruments or documents,
or undertake any acts, reasonably necessary to implement or
carry out the intent of this Agreement.
14.2. All notices, requests, demands, instructions or other
communications to be given to any party under this Agreement
shall be in writing and shall be deemed to have been duly
given (i) on the date of service if personally served on the
party to whom notice is to be given; (ii) within twenty-four
(24) hours after mailing, if mailed to the party to whom
notice is given, by first class mail which is either
registered or certified, postage prepaid, return receipt
requested; (iii) within twenty-four (24) hours after being
deposited with a recognized private courier service (e.g.
Federal Express), if delivered by a private courier service to
the party to whom notice is to be given, all charges prepaid;
or (iv) when sent, if given by telex or telecopy. Any notice,
request, demand, instructions or other communication sent by
telex or telecopy must be confirmed within twenty-four
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(24) hours by letter mailed or delivered in accordance with
this Section. All notices shall be properly addressed to the
party receiving notice as follows:
IF TO INFOCURE TO:
INFOCURE CORPORATION
Orthodontics Division
0000 Xxxxxxxx xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: CEO, Orthodontics Division
IF TO ORMCO TO:
ORMCO CORPORATION
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
14.3. The addresses for the purposes of this Section may be changed
by giving written notice of such change.
14.4. Failure to insist upon strict compliance with any of the
terms, covenants and conditions of this Agreement shall not be
deemed a waiver of any such term, covenant or condition. No
waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless contained
in a writing specifically referring to this Agreement and
executed by the party making the waiver. In addition, the
exercise by a party of any remedy provided for in this
Agreement or at law or in equity shall not permit the exercise
by that party of any other remedy provided for in this
Agreement or at law or in equity.
14.5. The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or
enforceability of any other provision. This Agreement shall be
construed as if the invalid or unenforceable provision had
never been included, but only as long as the rights,
obligations and duties of a party are not materially altered
thereby.
14.6. This Agreement, together with all collateral agreements and
documents referred to in it, constitute the entire agreement
between the parties pertaining to the subject matter contained
in this Agreement and supersede all prior and contemporaneous
agreements, representations and understandings, whether oral
or written, of the parties and none shall be available to
interpret or construe this Agreement. No supplement,
modification or amendment of this Agreement, or collateral
agreements or documents, shall be binding unless contained in
a writing specifically referring to this Agreement, or the
collateral agreements or documents, and executed by all the
parties to this Agreement.
14.7. The parties agree that this Agreement and performance under
it, and all arbitrations that may ensue from its breach, be
construed in accordance with and
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under the laws of the State of California, and that, in any
arbitration that may be brought arising out of, in connection
with, or by reason of this Agreement, the laws of the State of
California shall be applicable and shall govern to the
exclusion of the law of any other forum and any such action or
proceeding shall be brought in the State of California.
14.8. The effective date of this Agreement is the commencement date
of the Initial Term set forth in section 7.1 of this
Agreement.
14.9. Each party agrees to be bound by its own telecopied or
facsimiled signature, and that it accepts the telecopied or
facsimiled signature of the other party hereto.
INFOCURE CORPORATION:
Executed on June 23, 1999 By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Its: CEO, Orthodontics Division
ORMCO CORPORATION:
Executed on June 23, 1999 By: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx
Its: President
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