MEDPLUS, INC.
CHARTMAXX[tm] SOFTWARE
LICENSE AGREEMENT
Agreement No. C003001
This Agreement is made effective as of January 4, 2000 (the
"Effective Date") by and between MedPlus, Inc. ("MedPlus"), an
Ohio corporation with its principal place of business located at
0000 Xxxxxxxx'x Xxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000 and Cybear,
Inc. ("Cybear"), a Delaware corporation located at 0000 Xxxx Xxxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, MedPlus has developed and owns software that provides
entities in the health care industry with a secure means of
electronically storing confidential patient record information
("ChartMaxx Software"); and
WHEREAS, MedPlus has entered into a Software License and Database
Maintenance Agreement dated December 9, 1999 with Quest
Diagnostics Incorporated ("Quest") pursuant to which it agreed to
license to Quest certain software to facilitate the electronic
transmission of Laboratory Orders from Providers to Quest, and of
Laboratory Results Reports from Quest to Providers, and to allow
Quest to view such Orders and Reports via the Internet (the "Quest
Agreement"); and
WHEREAS, Cybear is an Internet service provider that provides a
secure means of transmitting confidential patient record
information between entities in the health care industry,
including but not limited to secure World Wide Web (the "Web")
access to such information; and
WHEREAS, MedPlus agrees to license the ChartMaxx Software to
Cybear for the limited purposes of (1) storing confidential
patient record information transmitted directly to Cybear from
third parties to whom MedPlus has provided, directly or
indirectly, an interface to the ChartMaxx Software and (2)
allowing Cybear to provide physicians and other medical
professionals with access, via the Internet, to medical records;
and
WHEREAS, Cybear agrees to provide to MedPlus on behalf of its
customers storage space for and Web-based access to electronic
confidential patient record information transmitted directly to
Cybear from third parties to whom MedPlus has provided an
interface to the ChartMaxx Software; and
WHEREAS, because Cybear desires to increase the use and visibility
of its Web sites, Cybear also agrees, as more specifically
described herein, to (1) pay to MedPlus a cash referral fee for
certain subscriptions to Cybear Web sites and (2) compensate
MedPlus, through the issuance of stock and following an initial
period of Transaction Fee income, for certain customers and
physicians who subscribe to Cybear's Web sites in order to gain
access the ChartMaxx Software; and
WHEREAS, because MedPlus desires to increase sales of its
ChartMaxx system to hospitals, laboratories and other information
providers, MedPlus agrees to (1) install interfaces to the
ChartMaxx system at information provider sites, upon the request
of Cybear, and (2) pay to Cybear a cash referral fee for each sale
of a ChartMaxx system which results substantially from the efforts
of Cybear; and
WHEREAS, MedPlus has also developed software that allows
authorized third parties in the health care industry to retrieve,
via the Web, confidential patient record information that has been
electronically stored (the "Web Client Software"); and
WHEREAS, within 30 days of the Effective Date, MedPlus and Cybear
will enter into a RESELLER AGREEMENT, in substantially the form
attached hereto as Exhibit A, pursuant to which Cybear may
sublicense the Web Client Software to third parties via download
from Cybear's Web site so that such third parties may gain access
to confidential patient record information by MedPlus customers
through the ChartMaxx Software.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties agree
as follows:
A. GENERAL DEFINITIONS
The following terms shall be defined herein as follows:
1. "Acquisition Price" means a price per share of Cybear common
stock equal to its average closing price on the NASDAQ National
Market System for the thirty (30) day period immediately prior to
the Effective Date.
2. "Archived Data" means confidential patient information
provided to Cybear and/or MedPlus by each of their customers for
storage and transmission purposes, which has been written to tape
or optical disk for long-term storage.
3. "Applicable Law(s)" means any statute, law, ordinance,
regulation, requirement, order or rule of any federal, state,
local government or other governmental agency or body or of any
other type of regulatory body, or any governmental or
administrative interpretation of any thereof, including, without
limitation, (i) requirements imposed by any governmental or
regulatory body which must be satisfied to qualify for Medicare,
Medicaid or other health care program reimbursements, and (ii) any
and all federal, state and local health care laws, including but
not limited to, those laws relating to or covering the methods and
ways in which clinical laboratory electronic data information
services and other related or incidental services or benefits, if
any, are provided to the providers, the federal Physician Self-
Referral Law, 42 U.S.C. Section 1395bb, and the regulations
promulgated thereunder (together, the "Xxxxx Law"), similar state
physician self-referral laws and regulations (together with the
Xxxxx Law, the "Self-Referral Laws"), the Federal Health Care
Program Anti-kickback Law and regulations promulgated thereunder
(the "Federal Anti-kickback Law"), and similar state anti-kickback
laws and regulations (together with the Federal Anti-kickback Law,
the "Anti-kickback Laws"), the Clinical Laboratory Improvements
Act of 1967, as amended, the Health Insurance Portability and
Accountability Act of 1996, as amended, and regulations (proposed
or final) promulgated thereunder, the HCFA Internet Security
Policy of 1998, all state and local statutes addressing privacy
and security of healthcare information, and the Balanced Budget
Act of 1997, P.L. 105-23, as amended, and regulations promulgated
thereunder.
4. "ChartMaxx Interface" means an interface to the ChartMaxx
System, which interface is installed at the site of an information
provider such as a hospital or laboratory and which provides the
information provider with the means to transmit and access
transcription and laboratory data via the Internet through
Internet access provided by Cybear.
5. "ChartMaxx Software" means the executable code of MedPlus'
ChartMaxx System software, including enhancements thereto, that is
described in detail on Exhibit B.
6. "ChartMaxx System" means the executable code of MedPlus'
ChartMaxx System software and the hardware and services associated
therewith, as licensed and sold by MedPlus to hospitals,
laboratories and other information providers for on-site storage
and retrieval of medical records and related data.
7. "Computer System" means the computer hardware configuration
currently employed by Cybear and such other configuration that
Cybear may hereafter elect to install and/or utilize for the
ChartMaxx Software from time to time, provided such hardware
configuration is authorized by MedPlus, which authority shall not
be withheld unless that configuration does not employ a central
processing unit or is not capable of running the ChartMaxx
Software.
8. "Cybear Subscriber" means an individual, a corporation or a
legal entity that registers with Cybear as a subscriber for
Cybear's basic services, including Dr.Cybear and up to six e-mail
accounts, regardless of fees, if any, to be paid by such
subscriber.
9. "Database" means the electronic patient record, maintained by
MedPlus and Cybear, which contains the Laboratory Orders and
Laboratory Result Reports (as defined below) transmitted
electronically for access by authorized Providers.
10. "Documentation" means documentation relating to or describing
the ChartMaxx Software including, but not limited to, user manuals
now or hereafter provided by MedPlus or by third parties through
MedPlus.
11. "Dr.Cybear" means the executable code of Cybear's
subscription-based Internet Service Provider system software.
12. "Exclusivity Period" means five years from the Effective
Date.
13. "Illicit Code" means any computer instructions commonly known
as computer viruses, anomalies or any other computer instructions
which interfere with or prevent an end user from using software as
contemplated by this Agreement, but does not include errors or
bugs in the ChartMaxx Software.
14. "Integration" means the process of integrating the ChartMaxx
Software and Dr.Cybear so that physicians using the Web Client
Software can access Patient Data stored through the ChartMaxx
Software via a Web site provided and maintained by Cybear.
15. "Laboratory Order" shall mean a single order from a Provider
for one or more laboratory tests for a single patient (and, with
respect to laboratory tests provided by Quest, which meets the
then current Quest Transaction Specifications and is successfully
transmitted to Quest).
16. "Laboratory Results Report" shall mean a partial or final
results report for a single Laboratory Order that is transmitted
to a Provider via the Database (and, with respect to laboratory
tests provided by Quest, which meets the then current Quest
Transactions Specifications).
17. "MedPlus Customer Patient Data" shall mean Patient Data
provided by or ordered from individuals or entities with whom
MedPlus has contracted to store, transmit and/or process such
data.
18. "Patient Data" means confidential patient information
provided to Cybear and/or MedPlus by each of their customers for
storage and transmission purposes, including but not limited to
Laboratory Orders and Laboratory Results Reports.
19. "Provider" means any physician, clinic, service center or
other entity or individual that (i) has been granted a license to
use the Web Client Software to access or provide Patient Data via
the Database, and (ii) has received all necessary patient
authorizations to access the Laboratory Results Reports.
20. "Quest Patient Data" means Patient Data provided by or
ordered from Quest.
21. "Quest Transaction Specifications" shall mean those certain
documents and other related materials, as updated from time to
time, developed and maintained by Quest, which describe in detail
all of the required formats, data fields, code sets, protocols and
other transaction specifications required to send successfully and
receive Transactions to and from Quest, via the Database.
22. "Transaction" shall mean a successfully, accurately and fully
completed transmission between a Cybear and/or MedPlus customer
and the Database, of (i) a single Laboratory Order; or (ii) all
Laboratory Results Reports that arise in connection with a single
laboratory order (including retransmissions).
23. "Transaction Fee" means a fee to be charged by MedPlus for
the one-time entry of Patient Data into storage and retrieval
venues accessed via the ChartMaxx Software and/or the Web Client
Software.
24. "Web Client Software" means the executable code of MedPlus'
Web Client software, including enhancements thereto, which allows
end-users, including but not limited to physicians, to access
Patient Data stored through the ChartMaxx Software via a Web site.
B. CHARTMAXX SOFTWARE LICENSE TERMS AND CONDITIONS
1. Software License Grant.
1.1 Use of the ChartMaxx Software. MedPlus hereby furnishes to
Cybear the ChartMaxx Software and Documentation, except as
otherwise provided herein, under a non-exclusive and non-
transferable license. The ChartMaxx Software and the
Documentation are furnished solely for Cybear's own use as a
provider of Internet service and Web-based applications at a
single site or location on the designated Computer System on which
the ChartMaxx Software is installed or such other designated
Computer System on which the ChartMaxx Software is subsequently
installed from time to time in accordance with the terms of this
Agreement. Cybear understands that the data storage provided by
the ChartMaxx Software may only be populated with Patient Data
received through interfaces provided directly or indirectly by
MedPlus, or by third parties authorized in writing by MedPlus, and
that, unless otherwise specifically provided herein, Cybear shall
have no ownership interest in or access to MedPlus Customer
Patient Data or Quest Patient Data. Notwithstanding anything
contained herein to the contrary, Cybear may install the ChartMaxx
Software at one additional "mirror" location for disaster recovery
purposes and at such regional operations centers as Cybear deems
appropriate.
1.2 Computer System. The ChartMaxx Software may only be
accessed on the Computer System. If Cybear is unable to operate
the ChartMaxx Software on the Computer System due to equipment
malfunction, the ChartMaxx Software may be transferred temporarily
to another Computer System during the period of equipment
malfunction. However, in no event may the ChartMaxx Software be
reverse compiled, disassembled or otherwise reverse engineered.
2. Implementation, Installation, Training, Integration and On-
going Support.
2.1 Implementation, Installation and Training. At no cost to
Cybear (except as provided in Section 2.3 below), MedPlus shall
provide installation, implementation and training services with
respect to the ChartMaxx Software. Specifically, according to a
detailed implementation plan (including dates) provided by MedPlus
and agreed to by the parties within 30 days of the Effective Date,
MedPlus will:
(i) install the ChartMaxx Software on Cybear's hardware;
(ii) work with Cybear's staff to allow a smooth interface between
the ChartMaxx Software and Providers; and
(iii)train Cybear's staff so that they may provide "Level I" and
"Level II" support (as more specifically described on Exhibit C
hereto) to Cybear subscribers via the telephone.
2.2 Integration. Both parties agree to work together to complete
successfully the Integration. The costs incurred by each party as
a result of the Integration shall be borne by such party.
2.3 MedPlus Systems Administrator. The parties agree MedPlus
will hire and train a systems administrator to work exclusively
throughout the term of this agreement on-site with Cybear to
implement, install, maintain and support the ChartMaxx Software
licensed by Cybear hereunder and generally to assist Cybear in its
support obligations to its customers (the "Systems
Administrator"). MedPlus shall be responsible for all costs
associated with the Systems Administrator, including but not
limited to costs associated with employee benefits and workers'
compensation; notwithstanding the foregoing, Cybear shall
reimburse MedPlus for reasonable direct salary costs associated
with the Systems Administrator.
2. 4 On-going Support. MedPlus will provide additional support
services with respect to the ChartMaxx Software according to the
terms and conditions described in the Service and Support Schedule
attached hereto as Exhibit C. Notwithstanding the foregoing,
although both parties will store Patient Data for the time periods
required by law, neither party shall be obligated to provide
support with respect to any Cybear customer that has not requested
or transmitted data other than Archived Data for at least six
months.
3. Enhancements. During the Software License Term, MedPlus shall
distribute to Cybear, at no charge, those Enhancements to the
specific Applications included in the ChartMaxx Software which are
released by MedPlus for general commercial availability to other
similar licensees. Specifically, "Enhancements" to the ChartMaxx
Software consist of new or added features or functionality to
existing Applications of the ChartMaxx Software, but do not
include entirely new Applications. Cybear shall have a perpetual
license hereunder to all Enhancements, if any, specially designed
for Cybear by MedPlus at MedPlus' then-current fees, provided that
all proprietary rights in such Enhancements shall remain in
MedPlus. MedPlus shall provide installation and implementation or
training with respect to Upgrades and/or Enhancements through the
Systems Administrator and in accordance with the Service and
Support Schedule attached hereto as Exhibit C. Cybear
acknowledges that certain Enhancements may require either
additional hardware or hardware updates to the Computer System for
Cybear to gain the full benefits of such Enhancements. All costs
and responsibilities for such new or additional hardware shall be
borne solely by Cybear.
4. Software License Fee. In exchange for the ChartMaxx Software
license granted to Cybear for use at a single site, and subject to
the terms and conditions described herein, including but not
limited to those described in Section C(2) and on Schedule B(4),
"License Fee Value Assignments" (to be provided by MedPlus within
30 days of the Effective Date), Cybear shall pay to MedPlus a
total of $2.5 million, payable on the Effective Date. Such
payment shall be non-refundable unless otherwise specifically
provided herein.
5. Proprietary Rights in Software and Data.
5.1 Title to and Proprietary Rights in the ChartMaxx Software.
No title to or ownership in the ChartMaxx Software or
Documentation is transferred to Cybear hereby. Title to and all
applicable rights in patents, copyrights and trade secrets in the
ChartMaxx Software and the Documentation, including but not
limited to the format of screens, reports and interfaces
associated with the ChartMaxx Software, shall remain in MedPlus or
third parties from whom MedPlus has obtained rights to license the
ChartMaxx Software or Documentation (which third parties shall be
considered third party beneficiaries of the license agreement
contained herein). Except as may be permitted in writing by
MedPlus, Cybear shall not provide, or otherwise make available,
the ChartMaxx Software, Documentation or copies thereof to any
third party.
5.2 Copies of Software/Documentation. Cybear may make one copy
of the ChartMaxx Software for archival purposes and one copy for
back-up purposes. Cybear may make additional copies of the
Documentation solely for Cybear's internal use. All copies of the
ChartMaxx Software and/or Documentation must include MedPlus'
copyright notice and other proprietary notices and legends as
indicated thereon and shall be subject to the terms and conditions
of this Agreement.
5.3 Permitted Disclosure. Notwithstanding the above, the
foregoing shall not prohibit (i) disclosure of the ChartMaxx
Software to any third party (such as an independent contract
programmer) who has executed a confidentiality agreement with
Cybear protecting the ChartMaxx Software, MedPlus' or any third
party's proprietary rights therein and the Patient Data stored
therein and who is under written contract to Cybear for the
purpose of assisting Cybear in the customization, maintenance or
other use of the ChartMaxx Software in a manner not prohibited by
this Agreement, or (ii) delivery of copies of the ChartMaxx
Software to any third party disaster recovery firm engaged by
Cybear, in each case so long as the applicable third party is
informed of and bound by an obligation to use the ChartMaxx
Software under the terms of this Agreement. If any Patient Data
may be disclosed in any way to a third party pursuant to this
paragraph, and such Patient Data relates to information processed
by Quest, such third party must have executed a copy of the
Confidentiality Agreement attached hereto as Exhibit D prior to
such disclosure.
54. Escrow. MedPlus shall place in escrow, and will regularly
update, one electronic copy of the ChartMaxx Software source code
and Documentation. A copy of the escrow agreement is attached
hereto as Exhibit B(5.4). In accordance with the escrow
agreement, in the event MedPlus (or a successor thereof) no longer
licenses the ChartMaxx Software or MedPlus Materially Defaults
hereunder (as defined below), the escrow agent shall make such
source code and Documentation available to Cybear for the purpose
of allowing Cybear to use the ChartMaxx Software, and make any
modifications thereto, for purposes consistent with the terms of
this Agreement.
5.5 Title to and Limitation on Use of Quest Patient Data. For
purposes of this Agreement, all Quest Patient Data and MedPlus
Customer Patient Data stored or transmitted through the use of the
ChartMaxx Software (collectively, the "Protected Data") shall be
considered the property of Quest or the MedPlus Customer from whom
such data was received, respectively. Absolutely no right of
ownership in such data is granted to Cybear in the Protected Data,
nor should such a right be implied, hereunder. Specifically, each
party agrees that patient clinical information, Laboratory Orders,
Laboratory Results Reports, and all patient-related information,
including any derivatives resulting from the manipulation or
compilation thereof ("Patient Information") are Confidential
Information (as defined herein) and each party agrees it will not
disclose or utilize individual laboratory test information or
other Patient Information in any way that would violate any
patient confidentiality obligations or any Applicable Laws, as
defined above. Without limiting Cybear's obligations regarding
Confidential Information which may be otherwise provided for in
this Agreement, Cybear shall be responsible to ensure the
confidentiality and security of Patient Information transmitted or
otherwise available to Cybear in any form, manner, on any media,
and in any format now known or hereafter developed, in accordance
with all Applicable Laws governing such Patient Information now or
in the future, including those to prevent anyone other than the
sender and addressee of each Transaction or their respective
authorized employees from monitoring, using, gaining access to or
learning the import or contents of any Transaction.
Notwithstanding the foregoing, but subject to the restrictions of
the foregoing, the parties recognize that Cybear, its employees
and agents and permitted assigns, who have a need to know, will
have access to the Patient Information for the sole purpose of
performing Cybear's obligations under this Agreement.
All Patient Information associated with the Protected Data
shall be owned by Quest or the MedPlus Customer from whom such
data was received, as the case may be, and not by Cybear or
MedPlus. Except as otherwise specifically contemplated by this
Agreement, Cybear shall not aggregate, integrate, compile,
regenerate, merge, manipulate or otherwise use the Protected Data
for any purposes, including to derive revenue therefrom, and shall
not provide the Protected Data to any other person or entity,
other than as specifically required or allowed under the terms of
this Agreement to perform the services hereunder, without the
prior written consent of Quest or of the MedPlus Customer from
whom such data was received, as the case may be. Cybear agrees
that Protected Data cannot be aggregated for any third party,
including but not limited to any Provider, or among different
customers of Cybear or other health care providers, payors or
laboratory service providers for any purpose, without Quest's
prior written consent or the prior written consent of the MedPlus
Customer from whom such data was received, as the case may be.
If Cybear is served with a warrant, subpoena, order or
request from a court of competent jurisdiction, administrative
agency or other governmental body or any other entity or person
for any Protected Data, records, or files of information
transmitted through, and to, the ChartMaxx System, Cybear will, as
soon as practicable, and not in violation of law, deliver to
Quest, or the MedPlus Customer from whom such data was received,
as the case may be, a copy of such warrant, subpoena, order or
request and will not, without Quest's proper written consent, or
the proper written consent of the MedPlus Customer from whom such
data was received, as the case may be, which shall not be
unreasonably withheld or delayed, accede to the same unless upon
the advice of counsel it reasonably believes that it is required
to do so under applicable law.
Without limiting the foregoing, Cybear agrees that it
shall limit the Cybear employees, agents and contractors who have
access to any Quest Patient Data, including without limitation,
Laboratory Orders or Laboratory Results Reports, if any, to only
those "need to know" employees, agents and contractors that Cybear
reasonably believes are necessary to perform the services
hereunder in accordance with the highest level of professionalism
and Cybear's established and maintained security measures, which
shall be subject reasonably to audit from time to time by MedPlus.
The parties acknowledge that the provisions of this
Section 5.5 apply only to the Protected Data and that Cybear's use
and management of all other Patient Data is subject only to
Applicable Laws and its agreements with third parties.
Notwithstanding anything contained herein to the contrary,
the parties agree that they may jointly aggregate all Patient Data
processed through the Database, subject to the written consent of
the parties from whom such Patient Data is received.
6. Term and Termination of Software License.
6.1 Term of License. The term of the ChartMaxx Software license
granted hereunder shall commence upon delivery of the ChartMaxx
Software by MedPlus to Cybear and shall continue until such time
as Cybear discontinues use of the ChartMaxx Software on the
Computer System or the license is terminated as provided in
Section 6.2, below, but otherwise shall be without restriction as
to time (the "Software License Term").
6.2 Termination of License. Either party shall have the right to
terminate the Software license if the other party fails to comply
with, or materially defaults under, these license terms and
conditions. A party shall have "Materially Defaulted" hereunder
if it has (1) sought relief under any bankruptcy or similar law or
made any assignment for the benefit of creditors, or if any
creditor has sought to place such party in bankruptcy or
receivership and such request or petition is not dismissed within
forty-five (45) days after it is filed; (2) failed in a material
respect to support the ChartMaxx Software or the operating system
on which such software has been installed, as such party's support
obligations are described herein where such failure is not
remedied within 30 days after written notice of such default is
received from the non-breaching party; or (3) otherwise defaulted
in a material respect hereunder where such default is not remedied
within 30 days after written notice of such default is received
from the non-breaching party. Notwithstanding the foregoing, in
the case of (2) or (3) above, if such default may not possibly be
cured within 30 days and the breaching party is actively
attempting to cure such default to the reasonable satisfaction of
the non-breaching party, the parties shall agree in writing to
extend the cure period described above in their reasonable
discretion. Notwithstanding the foregoing, if Cybear breaches the
terms of Section B(1) or 5 hereof, the period for remediation
shall be an additional 10 days.
6.3 Effect of Termination. Cybear agrees, upon expiration of the
ChartMaxx Software License Term for any reason, immediately to
return to MedPlus or destroy the ChartMaxx Software and
Documentation, and copies thereof, as directed by MedPlus and, if
requested by MedPlus, to certify in writing as to such destruction
or return. Notwithstanding the foregoing, if MedPlus Materially
Defaults hereunder and such Default is not cured by MedPlus in
accordance with Section 6.2 above, Cybear may continue use of the
ChartMaxx Software in accordance with Section 5.4 above and,
except for payments earned by or due MedPlus prior to the date of
such Default, Cybear shall be immediately relieved of and
discharged from all of its payment obligations to MedPlus pursuant
to this Agreement.
7. Software Warranty. The following warranty information is in
addition to any service obligations to be provided by MedPlus by
the Systems Administrator and the obligations of MedPlus as
described in the Service and Support Schedule attached hereto as
Exhibit C.
7.1 Right to License. MedPlus represents and warrants to Cybear
that MedPlus has, and will throughout the term of this Agreement,
all right, title and interest in the ChartMaxx Software, or has
been granted the right by a third party who has the right, title
and interest in the ChartMaxx Software, to license the ChartMaxx
Software to Cybear in accordance with terms and provisions of this
Agreement free from any lien, claim or encumbrance of any third
party and without violation of any agreements, rights or
obligations existing between MedPlus and any other party.
7.2 Warranty of Performance. MedPlus warrants that for a period
of one year from Cybear's receipt of the ChartMaxx Software, the
ChartMaxx Software will perform in accordance with the
Documentation. If the ChartMaxx Software does not perform in
accordance with the Documentation, then with respect to any defect
or variation as to which MedPlus is notified by Cybear during the
one year warranty period, MedPlus shall, at its option, either (i)
correct such defect or variation so as to cause the ChartMaxx
Software to perform in the manner set forth in the Documentation
or (ii) replace the ChartMaxx Software with software that does
perform in accordance with the Documentation. This one year
warranty shall only apply provided that: (i) the ChartMaxx
Software has not been modified by anyone other than MedPlus or
someone authorized by MedPlus; (ii) the Computer System has not
been modified in any way that impairs the functioning of the
ChartMaxx Software; (iii) the ChartMaxx Software and the Computer
System have been maintained according to procedures recommended by
the relevant hardware manufacturer(s) and/or by MedPlus; and (iv)
all fees then due MedPlus under this Agreement have been paid.
7.3 Illicit Code Warranty. During the License Term, MedPlus will
use commercially reasonable efforts to ensure that the ChartMaxx
Software is free from Illicit Code.
7.4 Millenium Warranty. MedPlus warrants that the ChartMaxx
Software shall be able to accurately process date data (including
but not limited to, calculating, comparing and sequencing) from,
into and between the twentieth and twenty-first centuries,
including leap year calculations, when used in accordance with the
Documentation, provided that all products used in combination with
the ChartMaxx Software properly exchange date data with it ("Year
2000 Compliant"). As soon as possible and at no cost to Cybear,
MedPlus will correct any problems that may occur due to the
failure of the ChartMaxx Software to meet the requirements
specified in this paragraph. MedPlus will ensure that Cybear will
encounter no similar problem with subsequent new versions,
upgrades and/or patches to the ChartMaxx Software. MedPlus'
commitment pursuant to this paragraph shall not extend to any
failure of the ChartMaxx Software to be Year 2000 Compliant that
is based upon the combination of the ChartMaxx Software with
software not supplied by MedPlus.
THE WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WHICH WARRANTIES ARE
HEREBY DISCLAIMED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8. Patent and Copyright Indemnification as to Software. MedPlus
shall protect, indemnify, hold harmless and defend any action,
suit or proceeding brought against Cybear insofar as it is based
on a claim that the ChartMaxx Software delivered hereunder
infringes any patent, copyright, or any other intellectual
property of a third party, provided that MedPlus is promptly
notified by Cybear of the action and given full authority,
information and assistance (at MedPlus' expense) for the defense
of the action. MedPlus shall pay all damages and costs incurred
by or awarded therein against Cybear, but shall not be responsible
for any compromise made without its written consent. MedPlus may,
at its option and expense (and, if as a result of such action,
suit or proceeding Cybear's use of the ChartMaxx Software is
interrupted by injunction or otherwise, then at Cybear's request
and at MedPlus' expense, shall promptly), (i) replace or modify
the ChartMaxx Software so that infringement will not exist, (ii)
procure for Cybear the right to continue to use the infringing
Software, or (iii) if neither option (i) or (ii) is possible,
refund to Cybear the price thereof as depreciated or amortized by
an equal annual amount over the lifetime of the ChartMaxx Software
as established by MedPlus. MedPlus' commitment hereunder shall
not extend to any infringement or claim thereof which is based
upon the combination of the ChartMaxx Software with software not
supplied by MedPlus.
9. Control of Information/Indemnification.
9.1 Customers' Control of Information. Cybear acknowledges and
agrees that the ChartMaxx Software is designed merely to assist
Cybear and its agents in the provision of information services to
Cybear's customers. As such, Cybear shall make no representation
to its customers that is inconsistent with the following: Cybear's
customers shall retain full control over the input and use of the
information they store in and/or transmit through the ChartMaxx
Software.
9.2 Cybear's Control of Internet Access/Hardware. Except as
otherwise specifically described herein, Cybear agrees to be
solely responsible for Cybear's design, repair and configuration
of all of Cybear's equipment, machinery, systems, Internet access
and products directly or indirectly related to the license granted
hereunder.
9.3 Third Party Protections. Cybear agrees that prior to
providing any customer with access to any MedPlus product pursuant
to this Agreement, Cybear will have required such customer to
become legally bound to the terms and conditions attached hereto
as Exhibit E.
C. ADDITIONAL OBLIGATIONS OF THE PARTIES.
1. Obligations of Cybear. In addition to the software license
fees due and payable hereunder, in exchange for the ChartMaxx
Software license, Cybear agrees as follows:
1.1 System Costs. Cybear agrees that, unless otherwise
specifically described herein or agreed to in writing by the
parties, it will be liable for all costs associated with the
provision of data storage and transfer services described herein -
including but not limited to server and other equipment costs,
operating system software costs, costs of supplies necessary to
operate the system (such as tapes, platters, etc.), maintenance
costs and Internet access and any telephone or other communication
charges associated therewith; provided, however, that Cybear shall
not be responsible for costs incurred directly by Cybear's
Subscriber's or by Quest related to their use of the ChartMaxx
Software (e.g., a subscriber's or Quest's server and other
equipment costs, operating system software costs, costs of
supplies necessary to operate a subscriber's or Quest's internal
system, such as tapes, platters, etc., a subscriber's or Quest's
internal maintenance costs and any of their telephone or other
communication charges.)
1.2 Third Party Software License Fees. Through its existing or
future site license agreements, Cybear will absorb the cost of
license fees that may be incurred by MedPlus related to its use of
Oracle software as a component of the ChartMaxx Software licensed
to Cybear hereunder. In addition, Cybear will use its best
efforts to develop a favorable business relationship between
MedPlus and Cybear's provider of multi-patient indexing software.
1.3 System Capacity. Cybear agrees that it will maintain
equipment, including but not limited to servers and other computer
systems, and Internet access as required to provide sufficient
storage and efficient transmission services for MedPlus' customers
and their customers' clients. Specifically, Cybear agrees to:
1.1.1 meet or exceed the Performance Standards and Support
Standards attached hereto as Exhibits C and F;
1.1.2 update its equipment and Internet access from time to time
to ensure generally that (a) response times and (b) "throughput"
capabilities provided to MedPlus' customers and their customers'
clients through each Cybear-managed Web page remain constant and
at or above industry standards, regardless of the number of
endusers and/or data providers accessing the Web page;
1.1.3 provide a secure results communication connection between
Providers and the Database, for the purpose of transmitting
Laboratory Orders and Laboratory Results Reports, of at least a
128-bit encryption algorithm or greater. (Cybear acknowledges
that in the future when communication is made via the Internet, a
128-bit encryption algorithm may no longer provide a sufficient
level of security. Accordingly, Cybear agrees to conduct periodic
reviews to ensure that the encryption level used to transmit
Laboratory Orders and Laboratory Results Reports via the Internet
meets with MedPlus' security standards. Within forty-five (45)
days of its receipt of written notice from MedPlus that the
encryption level then being used by Cybear to transmit Laboratory
Orders and Laboratory Results Reports via the Internet does not
provide a sufficient level of security, subject to the
capabilities of then-current commercially available Web-browser
and Web server technology, Cybear shall modify the encryption
level as requested by MedPlus; and
1.1.4 license the Web Client Software to the Providers, at their
cost, so that they can access the Database with respect to their
patients only via the Internet.
1.4 Disaster Recovery. Cybear shall have an executable disaster
recovery plan in place to accommodate any Year 2000 or natural
disasters.
1.5 Monthly Reporting/Audit. Within 15 days of the end of each
month during the Software License Term, Cybear shall provide to
MedPlus a written report detailing the number of subscriptions
received by Cybear during such month for which MedPlus may be
entitled a referral fee and/or commission (as more specifically
described in Section C(2) below). At its cost, MedPlus shall have
the right semi-annually to audit the books and records of Cybear
which relate directly to the monthly reports described in this
Section C(1.5).
In addition, Cybear shall maintain accurate and complete
records of all deliverables under this Agreement. All records
shall be considered Confidential Information (as defined herein)
and shall be maintained in accordance with both accepted
information storage practices and record retention periods in the
clinical laboratories industry and in compliance with Applicable
Laws, but in no event for less than six (6) years or such longer
period as may be required by Applicable Laws or MedPlus' policies
as may be adopted from time to time. In accordance with written
guidelines and instructions provided from time to time to Cybear
by MedPlus, and in accordance with prudent business practice,
Cybear shall maintain its records with a system of audit trails
and controls sufficient to allow the audit of such records under
this Agreement and to assure satisfaction of any requirements
imposed by external auditors, as well as by government officials
enforcing Applicable Laws.
1.6 ChartMaxx System Sale Commission. Cybear will use its best
efforts to refer hospitals, laboratories and other information
providers to MedPlus for the purchase and/or license of a
ChartMaxx System. In exchange for every ChartMaxx System sold
substantially as a result of the efforts of Cybear, within 30 days
of the close of MedPlus' fiscal quarter during which a ChartMaxx
Software license agreement has been executed with such customer,
MedPlus will pay to Cybear a commission equal to either (1) 5% of
the Net Margin on software license fees due pursuant to such
ChartMaxx license agreement or (2) 5% of any Transaction Fees
associated with data stored in such ChartMaxx System during the
first year of the license agreement, as the case may be. For
purposes hereof, "Net Margin" shall be defined as software license
fees charged to a customer less any third party software royalties
owed by MedPlus for such software during the first year of the
relevant license agreement. In addition, a ChartMaxx System sale
shall be deemed to have resulted substantially from the efforts of
Cybear if, at the time the sales process was initiated by Cybear,
(a) the information provider has been contacted by Cybear and has
expressed and interest in acquiring Cybear and MedPlus services
and (b) the information provider was not on MedPlus' then-current
Quarterly "Pipeline Report" or "Prospect Report." MedPlus shall
provide Cybear with its Quarterly Pipeline Report and only those
prospects appearing on it shall be deemed MedPlus and not Cybear
prospects.
1.7 Exclusive Use of ChartMaxx System. During the Exclusivity
Period, unless a customer has already contracted with a third
party to provide data repository services and/or functions for its
Patient Data, or specifically requests that its Patient Data not
be stored by Cybear, Cybear shall (i) recommend to its customers
the ChartMaxx Software for all data repository functions and (ii)
store in the Database all Patient Data processed by Cybear,
regardless of whether the Provider has requested that such Patient
Data be stored. Notwithstanding the foregoing, if a customer
desires to contract for a data repository function not currently
offered by MedPlus, Cybear shall offer MedPlus the right to
provide such functionality to such customer. If MedPlus cannot
provide such functionality within a commercially reasonable time
and at a commercially reasonable price, then Cybear may utilize
and/or recommend, as the case may be, a third party to provide
such functionality to such customer.
1.8 Limited Exclusivity as to Quest. Cybear agrees that during
the Exclusivity Period, it will not enter into any agreement with
another electronic patient record system licensor or seller with
respect to the storage or transmission of Patient Data processed
by Quest. Notwithstanding the foregoing, if MedPlus fails to meet
any of the obligations described in Section C(2) below or fails to
cure a material breach hereof as described in Section B(6.2),
Cybear shall no longer be obligated to provide the exclusivity
described above.
1.9 Subscription Fee Percentage Payment for Quest Physicians. On
a quarterly basis, beginning on the date on which the Transaction
Fee Based Payments (as defined in Section 2.1 below) equal $2.5
million, Cybear will pay to MedPlus an amount equal to 25% of all
subscription fees for basic services Cybear collects from
physicians who access Patient Data provided by Quest via the
Database ("Quest Physicians"). Provided however, that if Cybear
changes its business model from payments based on subscription
fees to a revenue model based on other sources of revenue, Cybear
will negotiate in good faith another financial arrangement with
MedPlus that leaves both parties in the same relative position
that they would have been under the subscription fee model.
1.10 Sponsorship of Subscription Fees. If, substantially as a
result of the efforts of MedPlus, an entity sponsors or otherwise
pays for the subscription fees of a group of physicians with
respect to Dr.Cybear, then, within 45 days of its receipt thereof,
regardless of any Transaction Fee Based Payments made to Cybear to
date, Cybear shall pay to MedPlus an amount equal to 25% of such
sponsorship amount or subscription fees for basic services;
provided that the Sponsor shall not appear on Cybear's then-
current Quarterly "Pipeline Report." Cybear shall provide MedPlus
with its Quarterly Pipeline Report and only those prospects
appearing on it shall be deemed Cybear and not MedPlus prospects.
Provided however, that if Cybear changes its business model from
payments based on subscription fees to a revenue model based on
other sources of revenue, Cybear will negotiate in good faith
another financial arrangement with MedPlus that leaves both
parties in the same relative position that they would have been
under the subscription fee model. Notwithstanding Sections 1.9
and 1.10 above, the total payments to be made to MedPlus hereunder
for any single Cybear Subscriber shall not exceed 25% of all
subscription fees for basic services paid by such Subscriber to
Cybear.
1.11 Stock Issuance for Incremental Quest Physician
Subscriptions. For every one thousand paid subscriptions to
Dr.Cybear registered to Quest Physicians, Cybear shall issue to
MedPlus that number of the shares of the common stock of Cybear
which, based on (i) the closing price on the Nasdaq National
Market for the last day of the quarter during which such
subscriptions were purchased or (ii) the average of its closing
price on the Nasdaq National Market for the 180 days prior to the
end of such quarter, whichever is less, totals $125,000 in value
(the "Cybear Shares"). Provided however, that if Cybear changes
its business model from payments based on subscription fees to a
revenue model based on other sources of revenue, Cybear will
negotiate in good faith another financial arrangement with MedPlus
that leaves both parties in the same relative position that they
would have been under the subscription fee model. In no event
shall the total value of the Cybear Shares issued in accordance
with this provision exceed $7.5 million.
Except for restrictions imposed by the registration
requirements of the Securities Act of 1933, as amended, or any
state or other securities law, any and all shares of the common
stock of Cybear issued pursuant hereto shall be free from
restriction and freely tradable. MedPlus understands that Cybear
shall not, and shall be under no obligation to, register any such
shares of its common stock.
1.12 Quest Portal. In accordance with the technical
specifications and implementation timeframes reasonably provided
to Cybear by MedPlus on behalf of Quest, and agreed to in writing
by Cybear, Cybear will use its best efforts to develop and
maintain a separate Web-based portal through which Quest Patient
Data shall be accessed.
1.13 Backup. Quarterly, at MedPlus' cost, Cybear will create
archived copies of all Patient Data including, but not limited to,
the master patient index data base and the Database.
2. Obligations of MedPlus. In addition to the software license
granted hereunder, MedPlus agrees to perform the following
obligations:
2.1 Transaction Fee percentage for Quest Internet Access. On a
quarterly basis, in exchange for certain Internet services to be
provided to Quest by Cybear, MedPlus will pay to Cybear an amount
equal to 25% of the Transaction Fees earned by MedPlus pursuant to
the Quest Agreement (such periodic payments shall be referred to
as "Transaction Fee Based Payments"). Cybear shall provide
MedPlus with a quarterly report showing Quest Transactions and
MedPlus shall provide Cybear with a report showing Quest payments
that are the basis for its Quarterly payment to Cybear. MedPlus
shall pay Cybear within 10 days of receipt of payment from Quest.
At its cost, Cybear shall have the right semi-annually to audit
the books and records of MedPlus which relate directly to the
Quest transaction fees described in this Section 2.1.
2.2 Exclusive Use of Cybear Services. During the Exclusivity
Period, unless a customer has already contracted with a third
party to receive Internet or Application services, MedPlus shall
utilize and recommend Cybear to its customers for the provision of
all Internet and/or Application services. Notwithstanding the
foregoing, if a customer desires to contract for Internet or
Application services not currently offered by Cybear, MedPlus
shall offer Cybear the right to provide such services to such
customer. If Cybear cannot provide such services within a
commercially reasonable time and at a commercially reasonable
price, then MedPlus may utilize and/or recommend, as the case may
be, a third party to provide such services to such customer.
2.3 Limited Exclusivity. MedPlus agrees that during the
Exclusivity Period, it will not enter into any agreement with
another Internet service provider with respect to the storage or
transmission of Patient Data provided to MedPlus by Quest.
Notwithstanding the foregoing, if Cybear fails to meet any of the
obligations described in Section C(1) above or fails to cure a
material breach hereof as described in Section B(6.2), MedPlus
shall no longer be obligated to provide the exclusivity described
above.
2.4 ChartMaxx Interface Installation. Where technically and
commercially possible and practicable, MedPlus agrees to install
ChartMaxx Interfaces at information provider sites as requested
from time to time by Cybear. Costs associated with ChartMaxx
Interfaces (which will be based on MedPlus' then-current rates for
such installations) ("Interface Costs") and any Transaction Fees
to be charged by MedPlus for data transmitted via the ChartMaxx
Interface shall be paid to MedPlus by Cybear. Notwithstanding the
foregoing, MedPlus agrees that Cybear may select one information
provider site as a "reference site" and that MedPlus will waive
the Interface Costs associated with such reference site.
2.5 Web Access for MedPlus Customers. MedPlus agrees that it
will provide all information providers who have licensed a
ChartMaxx System with the capability to access Cybear's Web site
at no set-up or initiation charge. This paragraph C(2.4) is not,
however, intended to prevent MedPlus from charging such
information providers Transaction Fees for information transmitted
and accessed via the Cybear Web site.
2.6 Fee Sharing for Certain Transactions. Within sixty days of
the Effective Date, the parties will negotiate in good faith the
means of calculating any Transaction Fee based payments to be made
to Cybear in exchange for Internet services provided by Cybear to
entities that have (i) licensed the ChartMaxx Data Capture
Software by MedPlus and (ii) agreed to compensate MedPlus directly
as a result of discrete and COLD data that is transmitted to a
database maintained at an operations center managed by Cybear
using the ChartMaxx Software.
D. PRICING AND PAYMENT TERMS
1. General Payment Terms. All amounts included herein, on any and
all exhibits hereto and on purchase orders and invoices issued
hereunder shall be in U.S. Dollars. Each party shall pay all
amounts payable pursuant to this Agreement no later than thirty
(30) days from the date of invoice therefor.
2. Tax Liability.
2.1 Cybear's Tax Liability. Cybear shall be responsible for and
shall pay or reimburse MedPlus for any fees, assessments, charges,
duties and taxes (including, but not limited to, sales or use
taxes) which may now or later be paid or payable by Cybear or by
MedPlus by virtue of the ChartMaxx Software License or the Web
Client Software Reseller License granted hereunder or the
performance of any duty related thereto, excluding taxes based
upon the net income of MedPlus.
2.2 MedPlus' Tax Liability. MedPlus shall be responsible for and
shall pay or reimburse Cybear for any fees, assessments, charges,
duties and taxes (including, but not limited to, sales or use
taxes) which may now or later be paid or payable by Cybear or by
MedPlus by virtue of the Cybear Products Reseller License granted
hereunder or the performance of any duty related thereto,
excluding taxes based upon the net income of Cybear.
E. MISCELLANEOUS
1. Confidential Information of the Parties.
Without limiting the foregoing, and in addition to the Patient
Information provisions stated above, any and all trade secrets, if
any, and confidential information and all physical embodiments
thereof ("Confidential Information") received by either party (the
"Receiving Party") from the other party (the "Disclosing Party")
during the term of this Agreement are confidential to and are and
will remain the sole and exclusive property of the Disclosing
Party. Confidential Information shall also include all other
forms of information designated as Confidential Information in
this Agreement, including but not limited to, knowledge,
information and material concerning Quest or any Provider,
including its products, services, data processing systems,
equipment, software, supplies and services, and proprietary
information concerning Quest and the names and addresses of
Providers and knowledge, information and material concerning
software licensed hereunder or in related agreements, related
source code, computer programs and screens and proprietary
information concerning either MedPlus or Cybear, its affiliated
companies and their respective products and services.
At all times, both during the term of this Agreement and after its
termination, the Receiving Party shall hold all Confidential
Information of the Disclosing Party in confidence, and will not
use, copy or disclose such Confidential Information or cause any
of such Confidential Information to lose its character as
Confidential Information. At all times during the term of this
Agreement and for a period of eighteen (18) months following the
termination of this Agreement (except where a longer period is
required pursuant to this Agreement or Applicable Laws), the
Receiving Party shall hold the Confidential Information of the
Disclosing Party in confidence, and will not use, copy or disclose
such Confidential Information or cause any of such Confidential
Information to lose its character or cease to qualify as
Confidential Information.
Confidential Information shall be maintained under secure
conditions by the Receiving Party, using reasonable security
measures and in any event (i) not less than the same security
measures used by the Receiving Party for the protection of its own
Confidential Information of a similar kind, and (ii) any specific
security measures required by this Agreement or by Applicable
Laws. Within thirty (30) days after termination of this Agreement,
the Receiving Party shall deliver to the Disclosing Party all of
the Disclosing Party's Confidential Information then in the
custody, control or possession of the Receiving Party.
If the Receiving Party is ordered by a court of competent
jurisdiction, administrative agency, or other governmental body to
disclose Confidential Information, or it if is served with or
otherwise becomes aware of a motion or similar request that such
an order be issued, then the Receiving Party will not be liable to
the Disclosing Party for disclosure of Confidential Information or
Confidential Information required by such order if the Receiving
Party provides reasonable prior written notice of such disclosure
and reasonably cooperates with the efforts of the Disclosing
Party, at the Disclosing Party's expense, to protect the
confidentiality of such Confidential Information.
Confidential Information shall exclude information that (i) was
known to the Receiving Party prior to its first receipt from the
Disclosing Party; or (ii) at any time becomes a matter of public
knowledge without any fault of the Receiving Party; or (iii) is at
any time lawfully received by the Receiving Party from a third
party under circumstances permitting its disclosure to others; or
(iv) is independently developed by the Receiving Party as evidenced
by the Receiving Party's records; or (v) is at any time furnished
to a third party by the Disclosing Party without restriction on use
or disclosure; or (vi) is disclosed pursuant to a lawful
requirement or request of a government agency, subject to the
express provisions of this Agreement; or (vii) is approved for
release by written authorization of the Disclosing Party. The
Receiving Party shall bear the burden of showing that any of the
foregoing exclusions applies to any information or materials.
Each party will cooperate with the other in the protection of
Confidential Information. Each party acknowledges and agrees that
in case of a material breach of these obligations of
confidentiality, the non-breaching party will suffer irreparable
harm and injury, which may not be adequately compensated by
monetary damages. Accordingly, in case of a material breach or
threatened breach, the non-breaching party shall be entitled to
seek preliminary and final injunctive relief and any other
equitable remedies it may have. Such remedies shall be in addition
to and not in limitation of any and all other remedies, which such
party, may have at law. Notwithstanding anything contained herein
to the contrary, both parties agree that the other party may
disclose relevant terms of this Agreement to third parties with a
business need to know; provided that such party has obtained the
other party's prior written consent as to (i) the identity of the
disclosee and (ii) the scope of the disclosure and has entered
into a confidentiality agreement with such third party in a form
acceptable to the other party and the other party is made a third
party beneficiary thereof.
2. Export/Limitations on Dangerous Application. Cybear
acknowledges that the ChartMaxx Software provided hereunder is
subject to export and import controls. Cybear agrees that any
Software licensed hereunder will not be exported, directly or
indirectly, separately or as part of a system, without Cybear, at
its own cost, first obtaining all licenses from any applicable
government agency of the United States, including but not limited
to the United States Department of Commerce and any other
appropriate agency of the United States Government as may be
required by law. In addition, Cybear acknowledges that the
ChartMaxx Software contains software which on its own is not
specifically developed or licensed for use in any nuclear,
aviation, mass transit or medically diagnostic application or in
any other inherently dangerous application and neither MedPlus nor
any third party vendor whose software is contained in the
ChartMaxx Software shall be liable for any damages resulting from
such uses.
3. Limitation to Actual Damages/Indemnification. Unless
otherwise specifically provided herein, in no event shall either
party be liable to the other for lost profits, consequential,
exemplary, special, indirect, incidental, or punitive damages,
howsoever arising from its performance hereunder and any permitted
liability, regardless of the form or forum, shall not exceed the
limits of insurance coverage contained in this agreement.
MedPlus and Cybear shall each indemnify, defend and save the other
harmless from and against any and all losses, claims, suits,
damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees) based upon, arising out of or
attributable to any acts or omissions arising from such party's
performance hereunder or otherwise related to this Agreement.
This provision shall survive termination of this Agreement.
4. Insurance. Each party agrees to maintain general and
professional liability insurance in the amount of at least
$15,000,000 per occurrence and $16,000,000 and $17,000,000,
respectively, to cover the acts and omissions of its employees,
agents and representatives for services rendered pursuant to this
Agreement.
Attached hereto, as Exhibits G(1) and G(2) are current and valid
Certificates of Insurance relating to the extent of general and
professional liability coverage and naming the other party hereto
as an additional insured. Each party agrees to keep and to
maintain said insurance coverage in full force and effect during
the Term of this Agreement. Any modification or alteration in
such coverage that shall have a material effect on this Section
shall be promptly communicated to the other party.
Both parties agree to re-review the scope of their insurance
coverage one year after the Effective Date of this Agreement, and
each year thereafter, in order to determine whether the
Transaction level warrants an increase in the amount of such
coverage. In the event that the insurance coverage levels are
increased at any time during the Term of this Agreement, the
indemnification caps contained in Section E3 hereto shall be
increased, accordingly.
5. Payment for Additional Items. Except as otherwise provided in
this Agreement, Cybear shall be responsible for the purchase of
all Internet access and related charges, all hardware associated
with its use of the ChartMaxx Software, discs, tapes, cables,
ribbons, forms and other items required for use in conjunction
with the ChartMaxx Software.
6. Assignment. With the written consent of the other party
hereto, which consent shall not be unreasonably withheld, either
party shall be entitled to assign this Agreement and its rights
hereunder to an entity which purchases substantially all of its
assets, purchases a majority interest in its voting stock or
otherwise assumes its business; provided that any assignee
hereunder must agree to the terms hereof. Except as otherwise
permitted herein, neither party may assign any of its obligations,
rights or remedies hereunder and any such attempted assignment
shall be null and void. Notwithstanding anything contained herein
to the contrary, the parties agree that MedPlus may assign this
Agreement to a subsidiary into which all of MedPlus' ChartMaxx
related business is transferred.
7. Notices. All notices will be said to have been properly given
hereunder when delivered in person or mailed via certified mail
to:
MedPlus:
MedPlus, Inc.
0000 Xxxxxxxx'x Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Cybear:
Cybear, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Vice President- Legal Affairs
Each party shall inform the other in writing of a change of
address or contact person.
8. Corporate Authority/Resources. Each of the parties hereby
warrants and represents that it has full corporate power and
authority to enter into this Agreement without the consent of any
other person, organization or other entity, that this Agreement
represents the valid and binding agreement of such party
enforceable in accordance with its terms
9. General Interpretation. The terms of this Agreement have been
negotiated by the parties hereto and the language used in this
Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual intent. This Agreement shall be
construed without regard to any presumption or rule requiring
construction against the party causing such instrument or any
portion thereof to be drafted, or in favor of the party receiving
a particular benefit under the agreement. No rule of strict
construction will be applied against any person.
10. Severability. The invalidity in whole or in part of any
provision of this Agreement shall not affect the validity of any
other provision. In the event that a court of competent
jurisdiction determines that any part or provision of this
Agreement is unlawful or unenforceable, then such part or
provision shall be revised as appropriate to make it lawful and
enforceable.
11. Amendments and Waiver. No waiver, alteration or modification
of any of the provisions of this Agreement shall be binding unless
in writing and signed by a duly authorized representative of the
party to be bound thereby.
12. Choice of Law. The rights and obligations of the parties
hereto shall be construed under and be governed in all respects by
the internal laws of the State of Florida excluding any provisions
of law governing conflicts of law.
13. Jurisdiction. Each party hereto irrevocably submits to the
jurisdiction of the state and federal courts located in Palm Beach
County, Florida.
14. Entire Agreement. This Agreement, along with the Reseller
Agreement, any documents related to Cybear's issuance of its
common stock to MedPlus and all exhibits hereto, contain the
entire agreement between the parties with respect to the subject
matter hereof. All previous and collateral agreements,
representations, warranties, promises and conditions of sale are
superseded by this Agreement with the exception of the
Confidentiality and Non-Disclosure Agreement agreed to previously
by Cybear and MedPlus which shall remain in full force and effect.
Any representation, promise or condition not incorporated in this
Agreement shall not be binding on either party.
15. Uncontrollable Circumstances. If the performance of any part
of this Agreement by MedPlus or Cybear is prevented or delayed by
acts of civil or military authority, flood, fire, epidemic, war or
riot, or other acts beyond the reasonable control of either party,
the party affected shall be excused from such performance only
during the continuance of any such event; provided, however, that
if such delay in performance extends for more than 60 days, the
other party, at its discretion, upon giving written notice, may
terminate this Agreement.
16. Disclosure of Relationship Status. Notwithstanding anything
herein to the contrary, the parties agree that the other may
disclose to third parties, at any time, the fact that the other is
its client or customer and within two weeks after the Effective
Date, the parties shall issue a press release describing the
general nature of this Agreement, which release shall be subject
to the reasonable approval of both parties.
17. Piggyback Rights. If, during the Software License Term,
Cybear proposes to register under the Securities Act of 1933
(except by a registration statement on a form that does not permit
the inclusion of shares by its security holders) any of its
securities, it will give written notice to MedPlus of its
intention to do so and, subject to the approval of the
Underwriter, and on the written request of MedPlus given within 20
days after receipt of any such notice (which request shall specify
the shares intended to be sold or disposed of by MedPlus and
describe the nature of any proposed sale or other disposition
thereof), Cybear will use reasonable efforts to cause all such
shares to be included in such notification or registration
statement proposed to be filed by Cybear; provided Cybear may
reduce the amount of MedPlus shares included in its registration
statement to the extent reasonably necessary to reduce the total
amount of securities included in the offering to the amount
recommended by Cybear's managing underwriter. All expenses of
such offering, except the fees of special counsel and brokers'
commissions for MedPlus, shall be borne by Cybear. In the event
MedPlus exercises the rights described in this paragraph, then at
the time of exercise, the parties shall execute customary
indemnification agreements with respect to such registration
18. Commission Payment Obligations. A party's payment obligations
hereunder exist only with respect to the other party hereto and
neither party shall be obligated in any way to separately
compensate any individual sales representative or employee of the
other party.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be executed as of the date first written above.
CYBEAR, INC. MEDPLUS, INC.
By: /s/ Xxxxxx Xxxxxxx MD By: /s/ Xxxxxx X. Present II
Name: Xxxxxx Xxxxxxx MD Name: Xxxxxx X. Present II
Title: President and CEO Title: Chief Operating Officer
