Exhibit 10.9
Medicive(R)
Medical Enterprise Data Management System
LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (Agreement) is made as of the date set
forth on the signature page below by and between Member-Link Systems, Inc., a
Delaware corporation with its principal offices at 00 Xxxxxx Xxxxxx, X.X., Xxxxx
000, Xxxxxxxxxx. XX ("Developer") and Mobile Care Foundation, located at 000
Xxxxx Xxx., X000 Xxxxxxxx, Xxxxxxxx 00000.
RECITALS
Developer has developed, owns and desires to license to Licensee the software
and database system used in connection with Licensor's medical enterprise data
management system (System), which software is described in Exhibit A hereto
(Software). Licensee desires to obtain from Developer a license to use said
Software pursuant to the terms and conditions of this Agreement. In
consideration of the premises and of the mutual covenants contained herein,
Developer and Licensee (Parties) agree as follows:
1. LICENSE/PAYMENT. In Consideration of payment(s) made in accordance with, and
in the amounts established by, the Statement of Work/Invoice tendered by
Developer, which document is incorporated herein by reference, Developer
grants to Licensee a non-exclusive, non-transferable license to use the
Software and database system pursuant to the terms and conditions of this
Agreement. Licensee is granted no title or ownership rights in or to the
Software, in whole or in part, which rights.as.between the Parties, shall
remain with Developer or its suppliers. The right to use the Software is
restricted by a measure of usage of application based upon the number of
devices or users as set forth on Schedule B. Expansion beyond a specific
usage level will require payment of an additional fee.
2. TRADE SECRETS. Developer considers the Software and database system "trade
secrets" of Developer and/or its suppliers. Such "trade secrets" include,
without limitation thereto, the specific design structure and logic of
individual Software programs, their interactions with other portions of
Software, both internal and external, and the programming techniques
employed therein. In order to maintain the "trade secret" status of the
information contained within the Software, certain portions of said Software
are being delivered to Licensee in object code form only.
3. BENEFICIARIES. Developer or its suppliers holding any intellectual property
rights in the Software and database system and/or any third party owning any
intellectual property right in software from which the Software was derived,
are intended third party beneficiaries of this License. All grants of rights
to use intellectual property intended by this License are explicitly stated
and no additional grants of such rights shall be inferred or created by
implication.
4. AFFIRMATIVE COVENANTS. Subject to the provisions of Section 6 below,
Licensee shall:
4.1. Hold the Software in confidence for the benefit of Developer and/or
Developer's contractors, agents and suppliers;
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4.2. Keep a current record of the location of each copy of Software made by
it;
4.3. Use each copy of the respective Software only on a single CPU at a time
(for this purpose, single CPU shall include systems with redundant
processing units) at Licensee's facilities and only within the U.S.A.;
4.4. Affix to each copy of Software made by it for archival or back-up
purposes, in the same form and location, a reproduction of the
copyright notices, trademarks and all other proprietary legends and/or
logos of Licensor and/or its suppliers, appearing on the original copy
of such Software delivered to Licensee and retain the same without
alteration on all original copies; and
4.5. Destroy the Software and all copies at such time as Licensee chooses to
permanently cease using it and give prompt notice thereof to Licensor.
5. NEGATIVE COVENANTS. Subject to the provisions of Section 6 below, Licensee
shall not:
5.1. Use the Software for any purpose other than as provided by this
License; or
5.2. Allow anyone other than Licensee's employees and agents to have
physical access to the Software and database system; or
5.3. Make copies of, reproduce or duplicate the Software, provided that
Licensee may make one copy of the Software for backup or archival
purposes only; or
5.4. Make any modifications, enhancements, adaptations, or translations to
or of the Software and database system, except for those permitted in
this Agreement or resulting from those Licensee interactions with the
Software associated with normal use and explained in the associated
documentation; or
5.5. Attempt to reverse engineer, disassemble, reverse translate, decompile,
or in any other manner decode the Software, in order to derive the
source code for any other reason; or
5.6. Make full or partial copies of any documentation or other similar
printed or machine-readable matter provided with Software unless the
same has been supplied in a form by Licensor intended for periodic
reproduction for Licensee's employees and agents or for internal use
only; or
5.7. Export or re-export the Software and/or associated documentation from
the fifty states of the United States and the District of Columbia; or
5.8. Sublicense, transfer or convey the Software or any right therein to any
third party; or
5.9. Install the Software on any network, file server, virtual disk,
time-sharing, multiple CPC, other multi-user bulletin board or remotely
accessible arrangement, or any Internet or publicly accessible system,
electronic, bulletin board other than on a secure local area network
within Licensee's organization at or in Licensee's facilities, provided
that Licensee has paid the requisite license fees for each user of the
Software on such network; or
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5.10. Use the Software to perform medical diagnostic functions, set
treatment procedures or substitute for the medical judgement of a
physician or qualified healthcare provider; or
5.11. Publish, translate or transfer possession of the Software or a copy or
portion thereof to any third party.
6. RESTRICTED RIGHTS. If at any time the user of the Software is employed by or
affiliated with a federal government department, agency or other government
entity, the following restricted rights legend regarding limited government
rights in the use of the data and software herewith, must be applied to the
Software before licensing the Software in human-readable form that can be
readily and visually perceived, and to the accompanying documentation before
distribution of the Software to any end-user:
The Software and documentation is provided with RESTRICTED RIGHTS. The
Use, Duplication, or Disclosure by the Government is subject to
restrictions as set forth in subdivision (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at DFAR 252.227-7013 or
restricted rights clauses at 48 CFR 52.227-19 or 52.227-14, as
applicable. Contractor/Manufacturer is Member-Link Systems, Inc., 0000
X Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000.
7. LIMITED WARRANTY.
7.1. Subject to the provisions set forth in this Section 8, Developer
warrants that for a period of ninety (90) days (Warranty Period)
subsequent to the acceptance of the Software by Licensee, the Software
shall conform with and perform the functions set forth in Developer's
specifications therefor and shall be free from defects in material and
workmanship. If, during the Warranty Period, Developer is notified
that the Software is defective or fails to so perform, within a
reasonable period of time, Developer shall use reasonable efforts to
correct such defects or failure and ensure that the Software conforms
with and performs the functions set forth in said specifications.
Developer's obligation under this warranty is limited to using
reasonable efforts to correct any Software failures and Developer's
performance thereof or the return of the license fees paid for such is
breached. Notwithstanding the foregoing, Developer gives no warranty
with respect to data or components supplied by third Software shall be
Licensee's sole remedy in the event this warranty parties.
7.2. Developer's limited warranty under this Article 8 shall not apply to:
7.2.1. Damage or defects caused by Licensee's negligence,
including, but not limited to:
7.2.1.i. Use of Software and database system Licensee other
than in accordance with written instructions
furnished by Developer;
7.2.1.ii. Modification by Licensee of Software without
Developer's Consent;
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7.2.1.iii. Use of the Software on a non-dedicated platform
(i.e. a computer running other programs in addition
to the Software) except as otherwise set forth in
Exhibit B hereto; or
7.2.1.iv. Use of the Software on a computer which is not
equipped with 28.8 KBP/S fax/modem with access to
dial-in phone service; or
7.2.1.v. Any part of the Software or data system provided by
third parties, including but not limited to
Licensee's current operating systems and equipment.
7.2.2. Any Software damaged by accident or disaster, including,
without limitation, fire, flood, wind, water, extreme
temperature, lightning or power failure.
7.3. Licensee shall reimburse Developer for Developer's out-of-pocket and
labor charges and expenses incurred at Licensee's request in
responding to and/or remedying Software deficiencies not covered by
the aforesaid limited warranty or by a Software Maintenance Agreement
between Developer and Licensee.
7.4. THE LIMITED WARRANTIES IN THIS ARTICLE 8 CONSTITUTE THE ONLY
WARRANTIES OF DEVELOPER WITH RESPECT TO THE SOFTWARE, AND ARE IN LIEU
OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTIES ARE
MADE BY DEVELOPER ON BEHALF OF ANY OTHER PARTY WHICH MAY HAVE
INDEPENDENTLY SUPPLIED ANY PART OF THE SYSTEM TO DEVELOPER.
7.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT
(INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, OR INFRINGEMENT), STRICT
LIABILITY, PRODUCT LIABILITY OR OTHERWISE, SHALL DEVELOPER OR ANY
THIRD PARTY SUPPLIER OF ANY PART OF THE SOFTWARE, OR LICENSEE BE
LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL OR
INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOST PROFITS OF
THE OTHER PARTY, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR
WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL DEVELOPER'S LIABILITY HEREUNDER, REGARDLESS OF THE
BASIS OF THE CLAIM AS AFORESAID, EXCEED THE AMOUNT OF LICENSE FEES
PAID BY LICENSEE TO DEVELOPER HEREUNDER.
8. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
8.1. Developer agrees that it will defend, at its own expense, all suits
and claims against Licensee for infringement or violation of any
patent, trademark, copyright, trade secret, or other intellectual
property rights of any third party (collectively, "Intellectual
Property
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Rights"), covering , or alleged to cover, the Software in the form
furnished or as subsequently modified by Developer, and Developer
agrees that it will pay all sums, including, without limitation,
attorneys' fees and other costs, which, by final judgement or decree,
or in settlement of any suit or claim, may be assessed against
Licensee on account of such infringement or violation, provided
8.1.1. Developer shall be given Notice of all claims of any such
infringement or violation and of any suits or claims brought or
threatened against Licensee or Developer of which Licensee has
express knowledge, and Developer shall be given full authority
to assume control of the defense thereof through its own
counsel at its expense and to compromise or settle any suits or
claims so far as this may be done without prejudice to the
right of Licensee to continue the use, as contemplated, of the
Software so furnished; and
8.1.2. Licensee shall cooperate fully with Developer in the defense of
such suit or claims and provide Developer such assistance as
Developer may reasonably require in connection therewith.
Notwithstanding the foregoing, Licensee shall have the right,
at its expense, to participate in such defense or settlement
negotiations.
8.2. If in any such suit so defended, all or any part of the Software is
held to constitute an infringement or violation of any third party's
Intellectual Property Rights and its use is enjoined, or if in respect
of any claim of infringement or violation Developer deems it advisable
to do so, Developer shall act at its sole option take one or more of
the following actions at no additional cost to Licensee:
8.2.1. procure the right to continue the use of the Software without
interruption for Licensee; or
8.2.2. replace the Software with non-infringing Software that meets
Licensor's specifications; or
8.2.3. modify said Software so as to be non-infringing, provided that
the Software as modified meets all of said specifications; or
8.2.4. take back the infringing Software and credit Licensee with an
amount equal to its price less an allowance for use.
8.3 Developer's obligations under this Section 9 shall not apply to any
infringement or violation of Intellectual Property Rights caused by
modification of the Software other than in an manner permitted in this
Agreement or in Developer's specifications or any infringement cause
solely by Developer's usage of equipment other than in accordance with
the specifications, e:kcept with the prior written consent of
Developer. Licensee shall indemnify Developer against all liability
and costs, including reasonable attorney's fees, for defense and
settlement of any and all claims against Developer for infringements
or violations based upon the foregoing.
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9. SOFTWARE MAINTENANCE.
9.1. During the Warranty Period, Developer agrees to provide to Licensee
any new, corrected or enhanced version of the Software then available
to Developer.
9.2. Subsequent to the Warranty Period, Developer shall make Software
maintenance support available to Licensee pursuant to a separate
Software Maintenance Agreement. The costs for maintenance services and
support will be those established by Developer from time to time.
9.3. Licensee agrees that Licensor shall retain all rights, interest and
title in any and all modifications and customizations to Developer's
software, database system and applicable interfaces developed in the
course of its work, installation, maintenance and service for
Licensee, whether with or without the participation of Licensee. Such
modifications and customizations shall be treated as subject to the
terms of this License, absent written agreement to the contrary
between the parties.
10. ASSIGNMENT. Neither this License nor any rights acquired by Licensee through
this License are assignable. Any attempted assignment of rights and/or
transfer of Software shall be void and conclusively presumed a material
breach of this License.
11. TERMINATION. In the event that Licensee is in default under any material
term or condition of this Agreement and has not corrected such default
within thirty (30) days subsequent to the receipt from Developer of a Notice
describing the default, then Developer may terminate this Agreement upon
Notice to Licensee.
12. GENERAL PROVISIONS.
12.1. This Agreement shall be governed by and construed in accordance with
the laws of the District of Columbia.
12.2. This Agreement represents the entire agreement between the parties
respecting this subject matter and supersedes all prior discussions,
agreements and understandings between them.
12.3. This Agreement may only be amended in a writing signed by both
Parties.
12.4. Notices shall be sent to the respective Parties at the addresses set
forth below their respective signatures. If either Party changes its
address while this Agreement is in force, it shall so advise the other
Party in a Notice and any Notice thereafter required to be given shall
be sent to such new address. For purposes of this Agreement, "Notice"
means a writing containing the information required by this Agreement
to be communicated to any Person, sent by registered or certified
mail, postage prepaid, or given by personal delivery, or sent by
confirmed air or surface courier or confirmed telefax to such Person
at the last known address or last known telefax number of such Person,
as the case may be, the third business day after date of registry
thereof or the date of the certification of the receipt therefor as
evidenced by postal or courier records or the date of personal
delivery (or refusal thereof during normal business hours) or the date
of
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telefax answer-back confirmation being deemed the date of receipt of
Notice; provided, however, that any communication sent to such Person
and actually received by such Person shall constitute Notice for all
purposes of this Agreement.
12.5. If any provision or any part of any provision of this Agreement shall
be invalid or unenforceable, such invalidity or unenforceability shall
not invalidate or render unenforceable any other portion of this
Agreement.
12.6. The failure of either Party to insist, in any one or more instances,
upon the performance of any of the terms, covenants or conditions of
this Agreement, or to exercise any right hereunder, shall not be
construed as a waiver or relinquishment of the future performance of
any such terms, covenants or conditions or the future exercise of such
right.
12.7. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
12.8. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement or be construed as a limitation on the scope of the
section to which the heading refers.
(Signatures on following page)
IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement as of
this date.
MEMBER-LINK SYSTEMS, INC.
(Developer)
/s/ Xxxx Xxxxxxxxxxx Date: October 1, 1999
----------------------------------
By: Xxxx Xxxxxxxxxxx
Title: President
Address: 00 Xxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
MOBILE CARE FOUNDATION
(Licensee)
/s/ Xxxxx X. Xxxxx
----------------------------------
By: Xxxxx X. Xxxxx Date: November 9, 1999
Title: Director
Address: 000 Xxxxx Xxxxxx, X000
Xxxxxxxx, XX 00000
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