EXHIBIT 10.6
VISTEON CORPORATION
SOFTWARE LICENSE AGREEMENT
This Software License Agreement includes the Software Schedule set forth below,
the attached Terms and Conditions and the attached Addendum. The parties have
caused their duly authorized representatives to execute this Software License
Agreement as of 9/18/96 (the "Effective Date").
VISTEON CORPORATION ("Visteon") MEDICAL ASSET MANAGEMENT, INC.
("Licensee")
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X.Xxxxx
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Printed Name: Xxxxx X. Xxxxxxxxx Printed Name: Xxxx X. Xxxxx
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Title: CEO Title: President
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Address: 0000 Xxxxxx Xxx Address: 0000 X. Xxxxxxxx
Xxxxx 000 #000
Xxxxxxxx, XX 00000 Xxxx, XX 00000
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Software Schedule
Licensed Products # of Providers: Total License Fee:
----------------- --------------- ------------------
275 $1,237,500
BIGVision Patient Manager, BIGVision
Clinical Manager, and BIGVision Billing
Manager
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TOTAL 275 $1,237,500.00
(1)
VISTEON CORPORATION
SOFTWARE LICENSE AGREEMENT
TERMS AND CONDITIONS
1. DEFINITIONS
1.1. "Licensee" means the legal entity whose name appears on the face
page of the Agreement.
1.2. "Licensed Products" means the software products listed on the face
page of this agreement, in machine readable, object code format, and any
modifications, corrections, or updates thereto, as well as any related
manuals or other documentation, in each case as furnished by Visteon to
Licensee under this Agreement.
1.3. "Effective Date" shall mean the date on which Visteon signs this
Agreement and notes such on the face page of this Agreement.
1.4. "Provider" means a billable clinical practitioner (i.e., a
physician, nurse practitioner, physician assistant, nutritionist, physical
therapist, chiropractor, mental health counselor, or licensed professional
performing substantially similar functions to any of the foregoing).
1.5. "Live Date" means that date which licensed products are delivered,
installed, tested and operational.
2. LICENSE GRANT
2.1. Subject to the terms and conditions of this Agreement, and to the
continued payment of all license fees set forth herein, Visteon grants
Licensee non-exclusive, non-transferable license, without right of
sublicense, for the number of Providers identified on the face page of
this Agreement, to use the Licensed Products solely for Licensee's own
business purposes. In no event shall the total term of the license however
modified exceed fifteen (15) years from the "Effective Date" of this
agreement and the "Effective Date" of any addendum(s) executed for
additional providers.
2.2. Licensee may not copy, modify, rent, lease, loan, sell, distribute
or create derivative works based upon the Licensed Products in whole or in
part. If for good business reason any provider(s) decide not to continue
with Licensee within the first four years of their agreement with
Licensee, Licensee must request in writing from Visteon the ability to
transfer the licensed products in use at the time to the individual
provider(s) (such approval by Visteon would not be unreasonably withheld).
In such instance the Provider(s) will be required to sign a no charge
Software License Agreement with Visteon. All maintenance charges must be
current and said provider(s) must elect to subscribe to Visteon's ongoing
charges for maintenance. Thus said provider(s) would become direct
customers of Visteon.
(2)
2.3. Licensee may operate the Licensed Products on computer networks
throughout its facilities in the quantities specified on the face page of
this Agreement. Licensee may increase the number of Providers authorized
to use the Licensed Products provided that Licensee notifies Visteon in
writing of such an increase and pays Visteon the applicable License Fee
for each additional Provider as specified in Addendum A. Licensee grants
to Visteon the right to access the Licensed Products to monitor the level
of use, provided that Visteon complies with the Licensee's reasonable
security policies with respect to such access.
2.4. Each Licensed Product is delivered with one (1) complete set of
documentation for each authorized care center. Additional sets of
documentation are available from Visteon at Visteon's then current list
prices for such documentation.
2.5. Licensee shall have no rights with respect to the Licensed Products
other than the rights expressly set forth herein.
3. DELIVERY, PAYMENT AND TAX PROVISIONS
3.1. Visteon shall delive the Licensed Products to Licensee promptly
after the Effective Date.
3.2. Upon the execution of this Agreement, Visteon will invoice Licensee
for all applicable fees shown in Addendum A of this Agreement and
thereafter as scheduled on Addendum A. In addition, Visteon shall invoice
Licensee for any additional license fees related to additional Provider
licenses not authorized under the Agreement and for any other amounts due
to Visteon hereunder as such amounts are incurred. Licensee agrees to pay
all such invoices in full as detailed in Addendum A.
3.3. In addition to all applicable fees, Licensee shall be responsible
for the payment of all reasonable travel and living expenses incurred by
Visteon in performing its obligations under this Agreement. Such expenses
will be estimated for prior approval by Licensee.
3.4. Licensee shall be responsible for all taxes and charges of any kind
imposed by any federal, state or local governmental entity for products or
services provided under this Agreement, excluding only taxes based solely
upon Visteon's net income.
4. CUSTOM SERVICES
4.1. Training, installation assistance and other services are available
from Visteon at Visteon's then current rates for such services. In the
event Licensee wishes to obtain such services, the parties will execute an
Agreement defining the services to be performed and the fees and billing
terms associated therewith.
(3)
5. SOFTWARE SUPPORT
5.1. "Software Support" shall include: (a) new releases of the Licensed
Products when made generally available to Visteon's customers; (b)
provision of other enhancements and modifications when generally available
to Visteon's customers; (c) updates to the documentation when made
generally available to Visteon's customers; (d) "hotline" support during
normal business hours (8:30am to 5:00pm, Monday through Friday, Eastern
Standard Time, excluding holidays); Support after that time is available
on a beeper service basis, and (e) reasonable efforts to correct a failure
of the Licensed Products to perform substantially in accordance with the
documentation ("Nonconformity").
5.2. Visteon shall provide Software Support beginning on the Effective
Date for its then current charge, payable in advance unless otherwise
stated in writing; and for as long as Visteon is offering Software Support
for the Licensed Products, provided that Licensee pays the fees in
accordance with the terms of this Agreement.
5.3. Visteon shall provide Software Support from its business premises
except that Visteon, at Visteon's expense, will perform Software Support
at Licensee's facility for all Nonconformities that, in Visteon's
reasonable judgment, significantly impair the operation of the Licensed
Products and that Visteon is unable to correct from Visteon's premises.
5.4. Visteon is not required to perform Software Support pursuant to this
Agreement in the following situations: (a) corrective maintenance with
respect to Nonconformities caused by Licensee's modifications to the
Licensed Products; (b) Licensee's failure to use enhancements or
Nonconformity corections; (c) misuse of the Licensed Products; (d) third
party product malfunctions; unless Visteon is authorized to provide such
support. If not support will be provided by the applicable third party;
(e) hardware or communication equipment malfunctions; (f) Licensee's
failure, after a reasonable notice period, to use the most current release
of the Licensed Products offered by Visteon, or the operating system for
the Licensed Products at the release levels specified by Visteon, or the
version than approved by Visteon of any third party software that operates
with the Licensed Products. If Licensee requests Visteon to correct
Nonconformities cause by any of the foregoing, all corrective services so
performed shall entitle Visteon to additional compensation at its then
current rates.
5.5. Licensee shall provide Visteon with all information and assistance
reasonably requested by Visteon to detect, simulate and correct any
Nonconformities.
5.6. Licensee shall designate certain Support Representatives who shall
be the exclusive representatives with whom Visteon will communicate on
Software Support matters.
5.7. Visteon has developed its licensed products to utilize a variety of
quality clients and servers. Although final client and server selection is
the responsibility of the
(4)
licensee, Visteon will offer licensee specific vendor choices. From time
to time this list will be modified by Visteon. Selection of another vendor
not on this list by Licensee will void the Warranty provisions of Section
7 of this agreement, unless otherwise indicated in writing by Visteon.
6. PROPRIETARY RIGHTS AND PROTECTION
6.1. Licensee acknowledges and agrees that, as between Licensee and
Visteon, all right, title and interest in the Licensed Products and any
part thereof, including, without limitation, all rights to patent,
copyright, trademark and trade secret rights and all other intellectual
property rights therein and thereto, and all copies thereof, in whatever
form, including any written documentation and all other material
describing such Licensed Products, shall at all times remain solely with
Visteon. Visteon specifically retains title to any improvement,
enhancement of or modification made to the Licensed Products by or at the
request of Licensee. Licensee shall not be an owner of any copies of the
Licensed Products, but, rather, is licensed pursuant to this Agreement to
use such copies. Copies of the products are held in escrow.
6.2. Confidentiality. Licensee agrees to secure and protect the Licensed
Products, and to take all reasonable actions necessary, including
instruction, written agreement and all other actions, to ensure that all
employees of Licensee and any consultant or independent contractor engaged
by Licensee treats confidentially all information relating to the Licensed
Products, and ensure that there is no breach, compromise or violation of
Visteon's rights in and title to the Licensed Products. Licensee agrees to
protect any such confidential information of Visteon, exercising all
reasonable care, which shall include taking those measures, electronic,
mechanical or otherwise, to prevent unauthorized access to, or copying of,
the Licensed Products. Licensee will not, directly or through any person
or entity, in any form or manner, decompile, reverse engineer, disassemble
or otherwise attempt to derive source code from the Licensed Products. The
obligations of Licensee to maintain confidentiality shall survive any
expiration or termination of this Agreement.
7. WARRANTY
7.1. Visteon warrants that the Licensed Products will perform according
to its specifications contained in the applicable Reference Manual
unmodified by anyone without the occurrence of a Nonconformity for a
period of ninety (90) days following the initial delivery of the Licensed
Products to Licensee. Visteon does not warrant that the Licensed Products
will meet all of Licensee's requirements nor that the use of the Licensed
Products will be uninterrupted or error free. Visteon's sole liability,
and Licensee's sole remedy with respect to such warranty, shall be
Visteon's obligation to correct any Nonconformity as defined in Section
5.1 above. As new feature/function releases are made generally available,
Visteon will make reasonable efforts to correct any nonconformity.
(5)
7.2. Visteon's warranty shall not extend to problems in the Licensed
Products that result from: (a) Licensee's modifications to the Licensed
Products; (b) Licensee's failure to use enhancements or Nonconformity
corrections; (c) misuse of the Licensed Products (d) third party product
malfunctions; unless Third Party authorizes Visteon in writing to warrant
its products; (e) hardware or communication equipment malfunctions; (f)
Licensee's failure, after a reasonable notice period, to use the most
current release of the Licensed Products offered by Visteon, or the
operating system for the Licensed Products at the release levels specified
by Visteon, or the version then approved by Visteon of any third party
software that operates with the Licensed Products; (g) any modifications,
alterations of or additions to the Licensed Products performed by parties
other than Visteon; (h) Licensee's use of such Licensed Products outside
the scope of this License or in a manner for which they were not designed;
or (i) Licensee's negligence.
7.3. LICENSEE'S SOLE REMEDY, AND VISTEON'S SOLE LIABILITY ARISING IN
CONNECTION WITH THE FOREGOING WARRANTY SHALL BE FOR VISTEON, AT ITS SOLE
OPTION, TO REPAIR THE LICENSED PRODUCT THAT DOES NOT PERFORM ACCORDING TO
SPECIFICATIONS AS PROVIDED UNDER SECTION 7.1 ABOVE, REPLACE THE LICENSED
PRODUCTS OR TERMINATE THIS AGREEMENT AND REFUND THE INITIAL PAYMENT OF THE
LICENSE FEE FOR THE LICENSED PRODUCTS SET FORTH IN ADDENDUM A HERETO.
EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, VISTEON MAKES NO WARRANTIES,
EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH LICENSEE, AND
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
8. INDEMNIFICATION
8.1. Visteon agrees, at its own expense, to defend or at its option to
settle, any claim brought against Licensee on the issue of infringement of
any United States patent, copyright, trade secret or trademark of any
third party ("Indemnified Right") by the Licensed Products as used within
the scope of this Agreement, provided that Licensee provides Visteon with
(a) prompt written notice of such claim, (b) authority to proceed as
contemplated herein and (c) proper and full information and assistance to
settle and/or defend any such claim. If a final injunction is, or Visteon
believes, in its sole discretion, is likely to be entered prohibiting
Licensee from exercising its right to use the Licensed Products granted
hereunder, Visteon may, at its sole option and expense, either: (a)
procure for Licensee the right to use the Licensed Products as provided
herein; (b) replace the Licensed Products with other non-infringing
products; (c) suitably modify the Licensed Products so that they are not
infringing; or (d) accept return of the Licensed Products and refund to
Licensee the initial license fee. Visteon will not be liable for any costs
or expenses incurred without its prior written authorization.
8.2. Notwithstanding the provision of Section 8.1 above, Visteon assumes
no liability for infringement claims arising from (a) third party
products, (b) the modification of the
(6)
Licensed Products unless such modification was made by Visteon, or (c)
Licensee's failure to use the Licensed Products as set forth herein.
8.3. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE
LIABILITY AND OBLIGATIONS OF VISTEON, AND THE EXCLUSIVE REMEDY OF
LICENSEE, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY
RIGHT BY THE LICENSED PRODUCTS.
9. LIMITATION OF LIABILITY
9.1. In no event shall Visteon be liable in any way to Licensee or others
for any lost profits, loss of data unless Visteon determines this was done
due to a nonconformity in the product(s). If so, Visteon will use best
efforts to work with Licensee to recreate the lost data or cost of
procurement of substitute goods or services, or for any indirect, special
or consequential damages of any nature, whether foreseeable or not,
regardless of whether Visteon has been advised of the possibility of such
damages. In no event will Visteon's liability in connection with the
Licensed Products or this Agreement, whether caused by failure to deliver,
non-performance, defects, Nonconformities, breach of warranty or
otherwise, exceed the total License Fee paid to Visteon by Licensee
hereunder as set forth in Addendum A. These limitations apply to all
causes of action in the aggregate, whether based in contract, tort or
otherwise, but do not apply to claims arising out of damage to tangible
personal property or personal injury caused by Visteon's employees while
on Licensee's premises.
9.2. Without limiting the foregoing, Licensee agrees that the use of the
Licensed Products for any purpose related to patient care cannot be
controlled by Visteon and must not be substituted for Licensee's
professional skill and judgment. Licensee acknowledges that Visteon is in
no way responsible for any medical, pharmacological, laboratory,
radiology, legal or similar information contained in, entered into, or
used in connection with the System and Licensee independently will verify
the accuracy and completeness of such information.
9.3. No action, regardless of form, arising out of any of the
transactions pursuant to this Agreement, may be brought by Licensee more
than three years after the cause of the action accrued.
10. TERMINATION
10.1. This Agreement shall terminate upon expiration. This Agreement also
may be terminated by either party in the event that the other party
materially breaches any of the terms or conditions of the Agreement and,
if such breach is capable of cure, such breach has not been cured within
thirty (30) days after notice of breach from the party asserting breach.
Upon termination, Licensee will immediately discontinue all use of the
Licensed Products and return to Visteon all copies of the Licensed
Products including all programs,
(7)
documentation and enhancements and Licensee thereafter shall continue to
maintain in confidence all knowledge of the Licensed Products. Licensee
shall deliver to Visteon within fifteen (15) days after termination a
written certification of compliance with the foregoing executed by an
officer of Licensee.
11. GENERAL
11.1. This Agreement constitutes the entire and exclusive Agreement
between the parties hereto with respect to the subject matter hereof and
supersedes and cancels all previous representations, agreements,
commitments, and writing in respect thereof.
11.2. This Agreement shall be governed by the laws of the State of
Florida. All actions and proceedings arising in any way out of the
Agreement shall be litigated in state or federal courts located in the
State of Florida.
11.3. No modification to this Agreement, nor any waiver of any rights,
shall be effective unless assented to in writing by the party to be
charged and the waiver of any breach or default shall not constitute a
waiver of any other right hereunder or any subsequent breach or default.
11.4. This Agreement and the use of the Licensed Products provided
hereunder are not assignable without prior written consent of Visteon
which consent will not be unreasonably withheld. Any attempt at assignment
without such consent shall be null and void and of no force and effect.
11.5. If any provision of the Agreement is held to be invalid by a court
of competent jurisdiction, then the remaining provisions will nevertheless
remain in full force and effect. The parties agree to renegotiate in good
faith any term held invalid and to be found by the mutually agreed
substitute provision.
11.6. The failure of Visteon to enforce any term or condition of this
Agreement shall not constitute a waiver of Visteon's rights to enforce
subsequent breaches of any term or condition under this Agreement.
11.7. Any notices required to be given under this Agreement shall be in
writing and addressed to the respective party at the address shown on the
face page of this Agreement or such other address as may be provided by
each party from time to time. Notices shall be effective when received and
shall be sent by certified or registered mail, return receipt requested,
or by overnight courier.
Medical Asset Management Inc.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President
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Date: 9/18/96
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(8)
Visteon Corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: CEO & CTO
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Date: 9/18/96
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(9)
