Exhibit 10.6
SOFTWARE AND PROPRIETARY PRODUCT
CORPORATE LICENSE AGREEMENT
THIS SOFTWARE AND PROPRIETARY PRODUCT CORPORATE LICENSE
AGREEMENT ("Agreement") is made effective and entered into as of this __________
day of September, 1999 by and between X-XXXX.XXX, INC., a Delaware Corporation
with its principal place of business at (hereinafter referred to as "I-TRAX")
and MEMBER-LINK SYSTEMS, INC., a Delaware Corporation having its principal place
of business at 00 Xxxxxx Xxxxxx XX, Xxxxx 000, Xxxxxxxxxx XX, 00000 (hereinafter
referred to as "Licensor").
IN CONSIDERATION of the mutual covenants and conditions herein
contained, the Parties hereto agree as follows:
1. DEFINITIONS:
1.1. "SOFTWARE" means the computer software programs proprietary
product described in Schedule A, attached hereto and made a part hereof, and, as
herein defined, all Documentation.
1.2. "LICENSE FEE(s)" are the only fees or royalties to be paid by
I-TRAX to Licensor for the license(s) granted under this Agreement. LICENSE
FEE(s) are described in Schedule A, attached hereto and made a part hereof.
1.3. "Affiliate" means any person, partnership, joint venture,
corporation or other form of enterprise, domestic or foreign, including, but not
limited to, subsidiaries, which directly or indirectly Control, are Controlled
by, or are under common Control with I-TRAX.
1.4. "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and operating policies
of the entity in respect of which the determination is being made, through the
ownership of voting securities [at least fifty percent (50%) of its voting or
equity securities or the maximum as allowed by law], contract, voting trust or
otherwise.
1.5. "Documentation" shall mean, all materials, documentation,
Specifications, technical manuals, user manual, flow diagrams, file descriptions
and other written information either, from time to time, received by I-TRAX from
Licensor or published by Licensor that describes the function and use of the
SOFTWARE.
1.6. "Specifications" means the functional and operational
characteristics of the SOFTWARE as described in the Licensor's Documentation or
as otherwise described in Schedule A.
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1.7. "Other Confidential Information" means technical or business
information, other than SOFTWARE, which is:
a. Disclosed by a party ("Disclosing Party") in writing and is
marked as confidential at the time of disclosure; or
b. Disclosed by a party in any other manner and is identified as
confidential at the time of disclosure and is also summarized and designated as
confidential in a written memorandum delivered to the other party ("Receiving
Party") within thirty (30) days after the disclosure.
2. GRANT:
a. In consideration of the undertakings and contributions by
X-XXXX.XXX agreed to elsewhere in this Agreement, Licensor grants to I-TRAX an
exclusive 10 year license to develop, market, sell distribute and operate its
copyrighted and trade-protected I-TRAX immunology data monitoring and
information system, database access software, and product interfaces in an
Internet and web-enabled application. The license, however, shall be
automatically renewed for additional 10 year periods, unless revoked in writing
and signed by both parties to this Agreement. For purposes of this Agreement,
"Internet and web-based application" means any application whereby the
information is gathered, input and accessed by the user via a site or portal
(whether or not encryption-protected) using Internet-protocol means of
transmission and accessible from outside any area - or system-limited network.
The first 10-year license period shall commence with the execution of final
closing documents in connection with this Agreement.
b. In addition, Licensor grants I-TRAX an exclusive 10-year
license, with 10 year automatic renewals, for the use of the trademarked I-TRAX
product name in connection with such Internet and web-enabled applications.
However, the I-TRAX trademark and trade names shall remain the sole and
exclusive property of Licensor.
c. Licensor also hereby grants to I-TRAX an exclusive 10-year
license, with 10 year renewals to use the copyrighted I-TRAX customer/user
interface screens for such applications, as well as for any that might
subsequently be developed for such purposes during the terms of this Agreement;
which nonetheless would remain the sole and exclusive property of Licensor.
d. In consideration of the undertakings and contributions agreed
to elsewhere in this Agreement, Licensor hereby grants to I-TRAX an exclusive
10-year license, with 10 year renewals to develop, market, sell, distribute and
operate its copyrighted and trade-protected I-TRAX immunology data monitoring
and information system, database access software and product interfaces in
enterprise applications. For purpose of the Agreement, "enterprise applications"
means applications using an internal system or client-server network within a
particular market or customer organization, whether or not Internet-accessible.
This license for
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such enterprise applications is conditioned upon and subject to the payment by
I-TRAX to Licensor of a 10% net proceeds royalty from each sale and installation
of such applications.
e. Licensor grants to I-TRAX an exclusive 10-year license, with 10
year renewals for the use of the trademarked I-TRAX product name in connection
with such enterprise applications, subject to the conditions listed above.
However, the I-TRAX trademark and trade name shall remain the sole and exclusive
property of the Licensor.
f. I-TRAX, for its part upon receipt of such exclusive license,
hereby agrees to grant to Licensor an exclusive cross-license to develop,
market, sell, distribute and operate its exclusively licenses I-TRAX system,
trade name, trademark and user interfaces, in an enterprise application as
described above, or in any other design-build operation, in connection with a
sale or installation of the system and software at any agency or service branch
of the United States Department of Defense. The term of such grant shall be
co-extensive with the term remaining on I-TRAX's exclusive license.
g. I-TRAX and Licensor agree that all development, marketing,
sales, distribution, installation and operation of the I-TRAX software, system
and product, in whatever application, shall be undertaken only subject to
appropriate non-disclosure, non-circumvention, and sub-licensing agreements
binding upon all relevant parties. The terms of such sub-licenses shall be in a
form approved by counsel to Licensor. I-TRAX agrees that it will seek vigorously
to protect its and Licensor's interest in the intellectual property rights which
are the subject of this Agreement, and that its failure to do so may void this
Agreement. Licensor reserves the right to intervene, upon 15 days written notice
to I-TRAX, to enforce this provision and protect its rights against
sub-licensees if it believes in good faith upon documentable evidence that
I-TRAX is failing to do so, and to seek damages and costs (including reasonable
attorneys' fees) from all parties, including I-TRAX. Licensor agrees it shall
not so proceed if I-TRAX, upon receipt of such notice, acts in timely fashion
adequately to protect these rights.
h. Should I-TRAX fail within a reasonable period of time (for
purposes of this Agreement, not less than 10 but not more than 18 months) to
demonstrate significant good faith efforts to commercially exploit the licenses
granted under this Agreement, Licensor shall have the right to reopen this
Agreement and either renegotiate its terms or revoke the licenses so that its
interests may be recovered. Demonstrable good faith efforts may be shown by 1)
adequate investment in development of the product, 2) published and distributed
marketing materials and 3) documented customer sales contracts or negotiations.
i. License: Licensor hereby grants to I-TRAX and I-TRAX hereby
accepts from Licensor license to use software and documentation and any hardware
now or hereafter used by I-TRAX as set forth in this Agreement. This License
includes, without limitation, a grant to I-TRAX of the right to utilize the
SOFTWARE for the benefit of any or all of (i) I-TRAX and (ii) any Affiliate(s).
I-TRAX and Affiliates shall have the right to make an unlimited number of copies
of SOFTWARE. I-TRAX agrees not to remove or destroy any
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proprietary markings or Proprietary legends placed upon or contained within the
SOFTWARE or Documentation.
j. Title: This License does not include a grant to I-TRAX of any
ownership right, title, or interest, or any security or other interest, in any
intellectual property rights relating to the SOFTWARE or in any copy of any part
of the SOFTWARE.
3. TERM: The license rights granted hereunder are described above.
4. DEFAULT: The following acts or omission by I-TRAX shall be deemed
to be an event of default by I-TRAX and a breach under this Agreement:
a. If I-TRAX:
i. Does not pay Licensor their cost to develop the Internet
application for X-XXXX.XXX, INC. pursuant to attached
Schedule B, which Schedule sets forth the billing rates to
be charged and the maximum amount, which amount shall not
be exceeded, without written consent of both parties.
ii. Should I-TRAX fail to pay any charge, expense or cost due,
and said failure shall continue for a period of ten (10)
days after written notice from Licensor and received by
I-TRAX, said event shall constitute a default.
iii. Should I-TRAX discontinue the use of the software or is
financially unable to continue the promotion of the same;
becomes embarrassed or insolvent; or makes an assignment
for the benefit of creditors; or if a Petition in
Bankruptcy is filed by or against I-TRAX; or a Complaint
in Equity or other proceedings for the appointment of a
receiver for I-TRAX is filed; or proceedings for
reorganization for composition with creditors under any
state or federal law be instituted by or against I-TRAX;
or if the real or personal property of I-TRAX shall be
levied upon or sold.
b. In the event of an occurrence of an event of default hereunder:
i. The whole balance, if any, for charges, payment or costs
for the development of the software and expenses for the
same as herein agreed shall be paid by I-TRAX.
ii. At the option of Licensor, this Agreement and the terms
hereby created shall determine to become absolutely void
without any right on the part of I-TRAX to reinstate this
Agreement by
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payment of any sum due or by performance of any other
condition, term or covenant broken; thereupon
iii. I-TRAX shall immediately quit and surrender to Licensor
the software and any improvements thereon, and Licensor
may repossess the same by summary proceedings, detainer or
otherwise, at Licensor's option, without being liable for
prosecution or damages therefore.
c. In the event of any default as above set forth, Licensor or
anyone acting on Licensor's behalf at Licensor's option:
i. May repossess the software and any copies and improvements
thereof.
ii. I-TRAX shall be liable for such damages arising out of the
breach of any of the terms, covenants and conditions of
this Agreement.
d. In the event of a breach or a threatened breach by I-TRAX of
any of the agreements, conditions, covenants or terms hereof,
Licensor shall have the right of injunction to restrain the
same and the right to invoke any remedy allowed by law or in
equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies
given to the Licensor in this Agreement are distinct, separate
and cumulative remedies, and no one of them, whether or not
exercised by Licensor, shall be deemed to be in exclusion of
any of the others.
e. I-TRAX, in the event its default in the performance of any of
the terms, conditions or covenants of this Agreement requires
that the Licensor, in the exercise of its sole reasonable
discretion, to use the services of any attorney, to attempt to
or successfully remedy such default, that I-TRAX will reimburse
Licensor for any and all reasonable expenses incurred in its
use of such attorney, and in any action which said attorney may
take. Such expenses shall include, but are not limited to:
reasonable legal fees, court costs, costs of filing and
service, serving summonses and/or complaints.
4.1. If I-TRAX defaults in the performance of any of its obligations
hereunder, and such default continues for sixty (60) days after receipt of
written notice from Licensor, Licensor shall have the right to terminate the
license rights granted hereunder with respect to the use or location of the
SOFTWARE for which I-TRAX has defaulted.
4.2. If Licensor defaults in the performance of any of its obligations
hereunder, and such default continues for sixty (60) days after receipt of
written notice from I-TRAX, I-TRAX
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shall have the option: (1) to terminate this Agreement; or (2) to so declare a
breach of this Agreement but not to terminate this Agreement and exercise any
rights at law or in equity available to I-TRAX. I-TRAX's decision to declare a
breach of this Agreement but not to terminate it shall mean that I-TRAX shall
retain its perpetual license of SOFTWARE hereunder.
4.3. Upon termination of license rights hereunder, I-TRAX shall, at
Licensor's request, either return to Licensor or destroy all copies of the
applicable SOFTWARE.
5. DOCUMENTATION: Licensor shall supply Documentation necessary to use
SOFTWARE effectively. Licensor shall provide I-TRAX with a minimum of two copies
per SOFTWARE copy installation of the Documentation. Licensor grants to I-TRAX
and Affiliates permission to duplicate all printed Documentation for I-TRAX's or
Affiliate's uses permitted herein, subject to appropriate binding non-disclosure
and confidentiality agreements.
6. PAYMENT: Payment shall be in the form of Three Million (3,000,000)
shares of Common Stock of X-XXXX.XXX, INC. In addition thereto, disbursement of
shares of common stock by X-XXXX.XXX, INC. shall be made in accordance with the
letter of intent between Xx. Xxxx Xxxxxxxxxxx, President, Member-Link Systems,
Inc. and Xxxxx X. Xxxxxx, President, U.S. Medical Alliance dated August 2, 1999,
a copy of which is attached hereto.
7. DELIVERY INSTALLATION AND ACCEPTANCE: Licensor is currently the
owner of intellectual property for an immunization tracking system called
"I-TRAX". Pursuant to this Agreement, the parties are entering into an exclusive
agreement between Licensor and I-TRAX for the intellectual rights to the
Internet version of I-TRAX. I-TRAX is also entering into an exclusive
Development Agreement with Licensor to develop I-TRAX into a web-enabled program
and to create an e-commerce version of I-TRAX for Internet deployment.
7.1. At I-TRAX's option:
7.1.1. SOFTWARE on suitable media and accompanied by Documentation
shall be delivered to I-TRAX at the addresses and on the agreed upon date(s)
specified in the applicable Purchase Order(s), or
7.1.2. Licensor shall make available to I-TRAX in electronic form,
accessible via the Internet or otherwise as the parties may agree, SOFTWARE and
Documentation on the agreed upon date(s) specified in the applicable Purchase
Order(s). In the event Licensor fails to deliver in accordance with the terms of
the applicable Purchase Order(s), I-TRAX shall have the right to cancel such
Purchase Order(s), in whole or in part, without any penalty of whatever nature.
7.2. I-TRAX, at its option, may elect to have Licensor provide the
installation services listed on the attached Schedule(s). If I-TRAX desires such
services, it will so indicate via its written Purchase Order(s).
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7.3. Within a reasonable time after receipt of the SOFTWARE, I-TRAX
will install the SOFTWARE and may provide a notice for acceptance of same in
writing to Licensor. In the absence of said notification of acceptance or
written notice to Licensor stating that the SOFTWARE is not accepted and
indicating the reasons therefor, the SOFTWARE will be deemed accepted, as
defined herein, on the date of delivery of the SOFTWARE to I-TRAX.
8. WARRANTY:
8.1. Licensor warrants that the SOFTWARE will conform to the
Specifications and Documentation. Licensor further warrants that the SOFTWARE
shall be free of program errors for a period of one (1) year ("Warranty Period")
after acceptance by I-TRAX. Licensor's responsibility under the Warranty shall
be to provide Licensor's most comprehensive SOFTWARE maintenance service to
I-TRAX, including correction of program errors, all of which shall be in
accordance with the Management and Technical Service Agreements between the
parties.
8.2. If, within the Warranty Period, I-TRAX shall give Licensor oral or
written notice or an error contained in the SOFTWARE, Licensor will, upon
receipt of such notice, investigate such error as soon as possible but not later
than five (5) working days after receipt of such notice, and will correct such
(and deliver to I-TRAX object code, source code if appropriate, Documentation
and user's manuals for such correction) within thirty (30) days after receipt of
such notice.
8.3. If correction is not possible, Licensor shall replace defective
SOFTWARE with software of equivalent functionality as determined by I-TRAX, or,
at I-TRAX's option, refund the LICENSE FEES paid for such SOFTWARE.
8.4. Further, Licensor warrants that it has good title to SOFTWARE free
and clear of any and all liens or encumbrances and has the right to enter into
this Agreement.
9. SUPPORT: I-TRAX and the Licensor have executed a Technical Services
Agreement for the SOFTWARE in accordance with the terms and conditions of said
Technical Agreement. Maintenance support services shall include, but not be
limited to, correction of errors, updates and enhancements. If I-TRAX desires
technical services, it will so notify Licensor within sixty (60) days after the
expiration of the Warranty Period.
10. PATENTS, COPYRIGHTS AND OTHER PROPRIETARY RIGHTS: Licensor, agrees,
at its sole expense, to defend, indemnify, and hold I-TRAX harmless from and
against all costs and liabilities in connection with any claim, suit or action
for infringement of patents, copyrights, or other proprietary rights associated
with any portion of the SOFTWARE and Documentation or its intended use. I-TRAX
shall have the right to be represented in any suit or action by advisory counsel
of I-TRAX's selection at I-TRAX's expense. Should any portion of the SOFTWARE or
Documentation or its intended use become, or in Licensor's opinion be likely to
become, the subject of a claim of infringement of a patent, copyright, or other
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proprietary right, Licensor shall procure for I-TRAX the right to continue using
the SOFTWARE or shall replace or modify it without degradation to functionality
to make it non infringing. If neither of the foregoing solutions is reasonably
available, Licensor shall refund the LICENSE FEE to X-XXXX.
00. LIMITATION OF LIABILITY:
11.1. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR A PURCHASE
ORDER, LICENSOR DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE. EXCEPT
IN THE EVENT OF FRAUD OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES. PROVIDED, HOWEVER, THAT LICENSOR
SHALL BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING FROM A BREACH OF THE WARRANTY
OF TITLE OR A BREACH OF WARRANTY THAT LICENSOR HAS A RIGHT TO ENTER INTO THIS
AGREEMENT PROVIDED FOR IN THE WARRANTY ARTICLE OF THIS AGREEMENT.
11.2. No action, regardless of form, arising out of this Agreement may
be brought by either party more than two (2) years after the cause of such
action has arisen.
12. CONFIDENTIAL INFORMATION:
12.1. OBLIGATIONS REGARDING SOFTWARE: During the term of this
Agreement, I-TRAX shall keep confidential the SOFTWARE code provided to I-TRAX
as described in Schedule A and provide the same degree of care as exercised
toward its own proprietary information. Subject to the right of I-TRAX to extend
licenses granted hereunder to Affiliates pursuant to this Agreement and as
provided in the Articles entitled "CONTRACTORS" and "DIVESTITURES", SOFTWARE
shall be disclosed only with I-TRAX as reasonably necessary.
12.2. OBLIGATIONS REGARDING OTHER CONFIDENTIAL INFORMATION: For a
period of five (5) years following the date of each disclosure of Other
Confidential Information, the Receiving Party will maintain such Other
Confidential Information as confidential.
12.3. EXCEPTIONS: The foregoing obligations shall not apply to any
portion of the SOFTWARE or Other Confidential Information which:
a. Is or becomes known publicly through no fault of the Receiving
Party; or
b. Is learned by the Receiving Party from a third party entitled
to disclose it; or
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c. Is already known to the Receiving Party before receipt from
the Disclosing Party as shown by the Receiving Party's written
records; or
d. Is independently developed by the Receiving Party as shown by
the Receiving Party's written records; or
e. Must be disclosed under operation of law.
12.4. Licensor agrees to keep and cause its employees to keep the
existence of this Agreement and the nature of Licensor's obligations hereunder
strictly confidential and not to disclose any information with respect thereto
to any third party or entity. Licensor shall not use, and shall keep its
employees from using, I-TRAX as a reference in marketing any software or
services to any third party or entity without I-TRAX's prior written consent.
13. ASSIGNMENT:
13.1. Neither party may assign this Agreement in whole or in part
without the prior written approval of the other party hereto. Such approval will
not be unreasonably withheld. Any such attempted assignment without prior
written consent shall be null and void. Notwithstanding the foregoing, either
party may assign its right, title and interest in this Agreement to any company
with which it may merge or consolidate or which acquires substantially all of
the business and assets of such party.
14. DISPUTE RESOLUTION:
14.1. Both parties understand and appreciate that their long term
mutual interests will be best served by affecting a rapid and fair resolution of
any claims or disputes which may arise out of services performed under this
contract or from any dispute concerning contract terms. Therefore, both parties
agree to use their best efforts to resolve all such disputes as rapidly as
possible on a fair and equitable basis. Toward this end both parties agree to
develop and follow a process for presenting, rapidly assessing, and settling
claims on a fair and equitable basis.
14.2. If any dispute or claim arising under this contract cannot be
readily resolved by the parties pursuant to the process referenced in the
preceding paragraph, the parties agree to refer the matter to a panel consisting
of one (1) senior executive from each party not directly involved in the claim
or dispute for review and resolution. A copy of the contract terms, agreed upon
facts (and areas of disagreement), and concise summary of the basis for each
side's contentions will be provided to both executives who shall review the
same, confer, and attempt to reach a mutual resolution of the issue.
14.3. If the dispute cannot be resolved under the process set forth
above, the parties may elect to resolve the dispute through non-binding
mediation, if mediation is to be utilized, the parties shall select a single
unrelated but qualified Mediator who shall hold a hearing (not to exceed one
day) during which each party shall present its version of the facts (supported,
if
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desired by sworn, written testimony, and other relevant documents), its
assessment of damages, and its argument. The parties shall provide the Mediator
with copies of all documents provided to their senior executives under the
preceding paragraph at least ten (10) days prior to the scheduled date of the
mediation hearing. The parties may also provide the Mediator with copies of any
laws or regulations which they feel are relevant to the dispute. A copy of the
contract will be provided to the Mediator. Formal written arguments, legal
memorandum, and live testimony are discouraged but may be permitted at the
discretion of the Mediator. Both parties agree to make any involved employees or
documents available to the other party for its review and use in preparing its
position under this clause without the need for subpoena or other court order.
14.4. The Mediator, within ten (10) days of the completion of the
hearing, will meet with both parties and provide each of them, on a confidential
basis, with his written views of the strengths and weaknesses of their
respective positions. The parties will then reconvene and, with the assistance
of the Mediator, attempt to resolve the matter. If the resolution cannot be
achieved by the parties within forty-eight (48) hours of this second meeting,
the Mediator will, within ten (10) additional days, issue a written, non-binding
decision on the issue.
14.5. If the matter has not been resolved utilizing the processes set
forth in this clause and the parties are unwilling to accept the non-binding
decision of the Mediator, either or both parties may elect to pursue resolution
through litigation.
14.6. The costs of the Mediator shall be borne by the losing party
(determined at mediation or through subsequent litigation). Each party will bear
its own costs of mediation.
15. THIRD PARTY SERVICES:
15.1. For the purpose of this Third Party Services Article, the
following definitions shall apply:
"Third Party Service Provider" means a third party which, upon I-TRAX's
consent: (1) operates computers and/or facilities where SOFTWARE is installed on
such computers or within such facilities and is used by I-TRAX as otherwise
provided for under this Agreement; or (2) Uses or Accesses the SOFTWARE to
provide services to I-TRAX including, but not limited to: facility management,
SOFTWARE and/or hardware installation and maintenance, operation of computer
systems, creation of new applications or uses of SOFTWARE in I-TRAX's
businesses, business process re-engineering or reorganization, or disaster
recovery services.
"Use" means to load, execute, employ, utilize, store, upgrade, transfer
or display the SOFTWARE.
"Access" means to receive commands, data or information from; or send
commands, data or information to the SOFTWARE by any means, including but not
limited to, from any location(s) through use of any computers or other hardware
devices, and via any communications
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networks, including but not limited to, I-TRAX's own communications networks,
public or private telephone lines or the Internet.
15.2. The purpose of this Article is to: (1) grant Third Party Service
Provider(s) the same rights of Use and Access as accorded I-TRAX under this
Agreement, provided that such Use and Access is solely to provide services to
I-TRAX and is made subject to the provisions of this article; and (2) grant
I-TRAX the right to Use and Access SOFTWARE, and as otherwise provided for under
this Agreement, where a Third Party Service Provider(s) is employed by I-TRAX.
15.3. I-TRAX may permit a Third Party Service Provider(s) to Use or
Access the SOFTWARE provided: (a) Licensor, I-TRAX, and each such Third Party
Service Provider(s) execute a confidentiality agreement mutually acceptable to
Licensor and I-TRAX prior to such use or access; and (b) such Third Party
Service Provider(s) shall be permitted Access or Use, in whole or in part, the
SOFTWARE to operate all or part of the business of I-TRAX, and such Access or
use may be carried out in facilities, domestic or foreign, owned or leased by
I-TRAX or such Third Party Service Provider(s).
15.4. Contractors, as defined and provided for in the CONTRACTORS
article of this Agreement, shall have the right to Access and Use the SOFTWARE
via a Third Party Service Provider(s).
15.5. A Third Party Service Provider(s) may not Access or Use SOFTWARE
for any purpose other than as specified herein without Licensor's written
consent.
15.6. With respect to the SOFTWARE and Licensor's Other Confidential
Information, each such Third Party Service Provider shall be bound by an
obligation of non-disclosure no less restrictive than that which binds I-TRAX
under this Agreement.
15.7. I-TRAX shall be responsible for any additional SOFTWARE,
migration tools, or third party software needed to employ a Third Party Service
Provider(s).
15.8. In the event that a Third Party Service Provider has licensed
SOFTWARE from Licensor and such license permits such Third Party Service
Provider to use the licensed SOFTWARE to provide services to I-TRAX, then I-TRAX
may elect whether its Use or Access shall be governed by this Agreement or the
license granted to such Third Party Service Provider.
16. LOCKOUTS: Licensor represents and warrants that no "lockout",
restraint, or disabling code or devices are incorporated or present within the
SOFTWARE at the time the SOFTWARE is licensed by Licensor to I-TRAX. In no event
will Licensor remove, alter, change or interfere with the SOFTWARE for purposes
of preventing I-TRAX, Affiliates, or other parties so permitted under this
Agreement from using the SOFTWARE, as the result of any dispute under this
Agreement. Licensor will not, prior to such licensing or thereafter during the
term of this license or any license for an upgraded or modified version of
SOFTWARE, modify
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SOFTWARE to restrict its use by I-TRAX, Affiliates, or other parties so
permitted under this Agreement to, without limitation, particular CPUs, required
passwords, periods of time, or other restrictions, without the prior written
agreement of I-TRAX.
17. YEAR 2000:
17.1. In addition to any other express or implied warranties or
covenants made in this Agreement, Licensor hereby warrants and covenants that
SOFTWARE will correctly perform, process and handle (without causing an abnormal
abend or abort or resulting in invalid outputs) all multi-century, leap years or
other date-related processes prior to and after the century change, including by
way of illustration and without limitation, functions, conversions,
calculations, comparisons, sort ordering, operations and interfaces (including
system to application, application to application and application to data-base
management systems). The SOFTWARE date data must be specified explicitly or by
unambiguous algorithms or by inferencing rules, as specified in this Agreement,
in order to correctly interface with other equipment, software and/or systems
and for data storage.
17.2. Licensor agrees that it will not permit a Year 2000 Problem of
computer systems, software or equipment under its control to prevent, delay or
otherwise interfere with its performance under this Agreement. A "Year 2000
Problem" means a date handling problem relating to the Year 2000 date change
that would cause a computer system, software or equipment to fail to correctly
perform, process and handle date-related data for the dates within and between
the twentieth and twenty-first centuries and all other centuries.
18. MISCELLANEOUS PROVISIONS:
18.1. TAXES: I-TRAX agrees either to pay directly all property taxes,
licenses, charges and assessments properly levied by any properly constituted
governmental authority upon SOFTWARE or to reimburse Licensor therefor if paid
by Licensor at I-TRAX's written direction. Licensor assumes full responsibility
for the payment of all taxes applicable to Licensor's actions, employees,
facilities and materials for performing services hereunder or applicable to
Licensor's income or gross receipts hereunder, or franchise taxes.
18.2. ENHANCEMENTS: In the event that I-TRAX has received source code,
I-TRAX may modify, correct or enhance the SOFTWARE in any manner, and any such
modifications, enhancements, or corrections and any related materials and
documentation (and all proprietary rights therein, including copyrights) shall
be mutually cross-licensed on equal terms between the parties hereto.
18.3. COMPLIANCE WITH LAWS: Each party will comply with all United
States and foreign laws, ordinances, and regulations properly applicable to this
Agreement.
18.4. AUTHORITY: The parties hereby represent that they have full power
and authority to enter into and perform this Agreement and the parties do not
know of any contract,
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agreements, promises or undertakings which would prevent the full execution and
performance of this Agreement.
18.5. SEVERABILITY: In the event that any provisions of this Agreement
shall be found to be void or unenforceable, such findings shall not be construed
to render any other provision of this Agreement either void or unenforceable,
and all other provisions shall remain in full force and effect unless the
provisions which are invalid or unenforceable shall substantially affect the
rights or obligations granted to or undertaken by a party.
18.6. NOTICES: Notices provided for under this Agreement shall be sent
in writing and shall be addressed to the addresses first above written and may
be served in person or sent by Certified Mail, return receipt requested. A party
may change the address for notification by thirty (30) days prior written notice
thereof to the other party.
18.7. INDEPENDENT CONTRACTOR: As between Licensor and I-TRAX, the
employees, methods, equipment, and facilities used by Licensor shall at all
times be under its exclusive direction and control. Licensor's relationship to
I-TRAX under this Agreement shall be that of an independent contractor, and
nothing in this Agreement shall be construed to constitute Licensor, or any of
its employees or officers, as an agent, employee, associate, joint venturer, or
partner of I-TRAX.
18.8. RESERVATION OF RIGHTS: A party's waiver of any of its remedies
afforded hereunder or by law is without prejudice and shall not operate to waive
any other remedies which such party shall have available to it.
18.9. HEADINGS: The headings of the provisions of this Agreement are
inserted for convenience only and shall not constitute a part hereof.
18.10. APPLICABLE LAW: This Agreement will be governed by and construed
in accordance with the laws of the State of Delaware without giving effect to
principles of conflict of law.
19. ENTIRETY: This Agreement together with the attachments, Exhibits,
and Schedules specifically referenced and attached hereto embodies the entire
understanding between I-TRAX and Licensor and there are no contracts,
understandings, conditions, or representations, oral or written, with reference
to the subject matter hereof which are not merged herein. Except as otherwise
specifically stated, no modification hereto shall be of any force or effect
unless (1) reduced to writing and signed by both parties hereto, and (2)
expressly referred to as being a modification of this Agreement. This Agreement
shall be binding upon and inure to the benefit of the successors and permitted
assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
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Attest: X-XXXX.XXX, INC.
BY: /s/ Xxxxx X. Xxxxxx
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Attest: MEMBER-LINK SYSTEMS, INC.
BY: /s/ Xxxx Xxxxxxxxxxx
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