EXHIBIT 10.3
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND SUCH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.
UNIVERSITY OF PENNSYLVANIA
Center for Technology Transfer
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
000-000-0000
FAX: 000-000-0000
Xxxxxx X. Xxxxxx, M.D.
Care Management Science Corporation
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
April 28, 1997
RE: PENN/CMS LICENSE AGREEMENT EFFECTIVE APRIL 1, 1995,
RESTATED ON OR ABOUT MAY 1, 19997.
Dear Xx. Xxxxxx:
This letter agreement is between the University of Pennsylvania ("Penn") and
Care Management Science ("CMS") for the purposes of clearing up an issue
pertaining to sublicenses as defined in Section 2.1 in the above referenced
License Agreement. For the purposes of this letter, "End-User Sublicense" shall
mean a sublicense granted by CMS which allows the sublicensee to use, but not to
modify or to distribute the software. "Distributor Sublicense" shall mean a
sublicense granted by CMS to a third party which allows that third party to
modify the software, and sublicense it in the form of End-User sublicenses only.
It is agreed between the parties that CMS shall have the right to grant both
End-User Sublicenses and Distributor Sublicenses. It is further agreed that:
1. any Distributor Sublicense granted by CMS shall be subject to the terms and
provisions of the License Agreement;
2. royalties would flow to Penn in the exact same manner as they would if CMS
were selling directly [*];
3. any such distribution rights would also be subject to the exact same
contractual language and other requirements of the License Agreement as if
CMS were licensing the software directly;
4. Penn shall receive [*] of any up-front license initiation fees or other
consideration paid to CMS for sublicense rights; and
5. any third parties distributing the Licenses Work shall be required to
report to CMS, and CMS shall report any such Distributor licensee sales to
Penn in the same manner that CMS reports its own sales to Penn.
Sincerely,
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Managing Director, Center for Technology Transfer
AGREED TO AND ACCEPTED:
/S/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, M.D. Date 5/1/97
Care Management Science Corporation
[*] WE ARE SEEKING CONFIDENTIAL TREATMENT OF THESE TERMS, WHICH HAVE BEEN
OMITTED. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
RESTATED LICENSE AGREEMENT
by and between
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA
and
CARE MANAGEMENT SCIENCE CORPORATION
(formerly The Center for Health Choice)
1995
This LICENSE AGREEMENT is made as of the 1st day of April, 1995 between THE
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, a nonprofit corporation organized
and existing under the laws of the Commonwealth of Pennsylvania (the
'University'), and Care Management Science Corporation, both corporations
organized and existing under the laws of the Commonwealth of Pennsylvania
("Licensee").
The Effective Date is April 1, 1995.
WHEREAS The University owns the Licensed Program and Licensed Technical
Information (each as defined below) and copyrights and other proprietary rights
relating thereto; and
WHEREAS Licensee desires to obtain from the University an exclusive license to
use the Licensed Program and Licensed Technical Information, subject to the
terms, conditions and provisions hereinafter set forth; and
WHEREAS The University and Licensee (formerly called The Center for Health
Choice ) have entered into an agreement dated July 1, 1993 relating to subject
matter in some respects to the subject matter of this agreement whereby this
agreement supersedes the July 1, 1993 agreement;
WHEREAS The University and Licensee have entered into an agreement dated April
1, 1995 and signed in March 1995 relating to the same subject matter as the
subject matter of this agreement whereby this agreement restates and supersedes
the July 1, 1993 agreement;
NOW, THERFORE in consideration of the premises and of the promises and mutual
covenants contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following terms, as used herein, shall have the following meanings:
"AFFILIATE" means, when used with references to Licensee, any Person
directly or indirectly controlling, controlled by or under common control with
Licensee. For purposes of this Agreement, 'control' means the direct or indirect
ownership of over 50% of the outstanding voting securities of a Person, or the
right to receive over 50 % of the profits or earnings of a Person, or the right
to control the policy decisions of a Person.
"BANKRUPTCY EVENT" means the Person in question becomes insolvent, or
voluntary or involuntary proceedings by or against such Person are instituted in
bankruptcy or under any insolvency law, or a receiver or custodian is appointed
for such Person, or proceedings are instituted by or against such Person for
corporate reorganization or the dissolution of any such Person, which
proceeding, if involuntary, shall not have been dismissed within ninety (90)
days after the date of filing, or such Person makes an assignment for the
benefit of creditors, or substantially all of the assets of such Person are
seized or attached and not released within sixty (60) days thereafter.
"CALENDAR QUARTER"' means each three-month period, or any portion thereof,
beginning on January 1, April 1, July 1 and October 1.
"CONFIDENTIAL INFORMATION" means and includes (i) the Source Code and
object Code of the Licensed Program and the related Documentation, (ii) the
Licensed Technical Information; (iii) any other information or material in
tangible form that is marked as confidential or proprietary by the furnishing
party at the time it is delivered to the receiving party, and (iv) information
that is furnished orally if the furnishing party identifies such information as
confidential or proprietary when it is disclosed and promptly confirms such
designation in writing after such disclosure.
"COPYRIGHT" means the copyrights related to the Licensed Work, including
the copyright applications and registration(s), if any, listed on Exhibit A
attached hereto and made part hereof, authorized under Title 17 of the United
States Code or under the laws of any other jurisdiction.
"CUSTOMER" means any Person who has executed a valid End User Agreement or
any other form of sublicense agreement approved by the University relating to
the license set forth herein.
"Documentation" means the explanatory and instructive materials in hard
copy, including manuals and other printed or visually-perceptible materials,
that describe the use, function or operation of a computer software program.
1
"END USER AGREEMENT" means an agreement between Licensee and a Person
granting the right to use or benefit from any of the rights granted hereinunder.
"FEES" shall mean, cumulatively, Service Fees and Sublicense Fees. Licensee
shall establish; 1) stand-alone Sublicense Fees and 2) Service Fees for use of
the Licensed Work. If Licensee charges a customer Service Fees for a package of
services, only some of which involves use of the Licensed Program, and no volume
or other customer discount is provided, then the portion of Licensee's revenues
representing Fees shall not be less than the separate prices or Fees charged by
Licensee on a stand-alone basis for services using the Licensed Work. If
Licensee charges a customer service Fees on such a package of services and a
volume or other discount is provided, then the discount related to use of the
Licensed Work shall be no greater than the discount related to other services
provided by Licensee. University acknowledges that Licensee may have to
negotiate Sublicense Fee discounts from its published fees in the usual course
of doing business.
Licensee shall be permitted to deduct qualifying costs directly attributable to
the sublicensing of the Licensed Work, which are actually identified on the
invoice and borne by Licensee, or the provision of services using the Licensed
Work, which are actually identified on the invoice and borne by Licensee or its
sublicensee.
Such qualifying costs shall be limited to the following:
(i) Discounts, in amounts customary in the trade, for quantity purchases,
prompt payments and for wholesalers and distributors;
(ii) Credits or refunds, not exceeding the original invoice amount, for
claims or returns.
(iii) Prepaid transportation insurance amounts;
(iv) Prepaid outbound transportation expenses; and
(v) Sales and use taxes, imposed by a government agency upon Licensee.
"LICENSED PROGRAM" means the software program in source code, object code,
or any other form described in the copyright registrations and applications for
copyright registration set forth in Exhibit A hereto, together with (i)
Modifications thereto, (ii) all Documentation, and (iii) all derivative works
based on the foregoing.
"LICENSED TECHNICAL INFORMATION" means the underlying proprietary analytic
routines related to the econometric model which was developed for the Corporate
Hospital Rating Project, THE CORPORATE HOSPITAL RATING PROJECT: MEASURING
HOSPITAL OUTCOMES FROM A BUYER'S PERSPECTIVE USING UB-B2 LIKE DATA. For the
purposes of this agreement UB-B2 like data is defined as information about
specific patients regarding their admissions to hospitals that includes their
diagnoses, Procedures, mute of admission and discharge, and the charges
associated with hospital stays. It does not include information about
out-patients, resource use, test results, treatment or intentions. Licensed
Technical Information also includes the underlying models reflected in A THEORY
OF FOCUSED OPERATIONS IN HEALTH CARE; RISK-ADJUSTMENTS AND MEASUREMENT OF
AMBULATORY OUTCOMES; and A THEORY OF CONGESTION IN GENERAL HOSPITALS the
copyright information for which is listed in Exhibit A hereto.
"LICENSED WORK" means the Licensed Program and Licensed Technical
Information, and any portion of Modification thereof, as well as all United
States and foreign Copyrights.
"MODIFICATION" of work means any and all changes including improvements,
enhancements, corrections, revisions to the work or any portion thereof, and any
derivative of or work substantially similar to any of the foregoing, made by the
University or the Licensee.
"PERSON" or "PERSONS" means any corporation, partnership, joint venture or
natural person. "Sale" as applied to the Licensed Work means a genuine BONA FIDE
transaction for which consideration is received or expected for the use, lease,
transfer or any other disposition of the Licensed Work. A Sale of the Licensed
Work shall be deemed completed at the time Licensee or its sublicensee invoices,
ships, or receives payment for such Licensed Work, whichever occurs first
"SERVICE FEES" means gross consideration actually received by Licensee as a fee
for Use of the Licensed Work. The University hereby acknowledges that Licensee
has in the past and will continue to provide consulting and other product
related services to third parties which do not employ the use of the Licensed
Work, and University further acknowledges that such revenues are expressly not a
part of Service Fees as defined herein.
2
"Sublicense Fees" means gross consideration actually received by Licensee
(i) as a fee for sublicensing the Licensed Work in object code form to any third
party or (ii) as royalties under the terms of any such sublicense agreement.
ARTICLE II
GRANT OF LICENSE
2.1 GRANT OF LICENSE. Subject to the terms and conditions contained in this
Agreement, the University hereby grants to Licensee for the term of this
Agreement a roya4-bearing, worldwide, exclusive license, with a right to
sublicense to:
(a) make copies of, to make derivative works of, and to use the
Licensed Work,
(b) distribute the Licensed work;
(c) sublicense the Licensed Work to customers of Licensee who have
first executed an End User Agreement. Licensee shall use best efforts to include
all of the provisions found in the End User Agreement which forms Exhibit B
hereto in all sublicense agreements, where such efforts must result in an
agreement that is at least substantially similar to the End User Agreement
identified in Exhibit B.
2.2 RESERVATION OF RIGHTS. The University reserves the right to make copies
of, to make derivative works of and to use the Licensed Work solely for
non-commercial research and educational purposes. The University also reserves
the right to grant the same restricted rights to other non-profit educational or
research institutions which expressly agree in writing not to utilize the
Licensed Work in any commercial application, whether for itself or another
party.
2.3 NO RIGHTS BY IMPLICATION. No rights or licenses with respect to the
Licensee Work are granted or deemed granted hereunder or in connection herewith,
other than those rights or licenses expressly granted in this Agreement.
2.4 FEDERAL GOVERNMENT INTEREST. Licensee acknowledges that the United
States Government may retain certain rights in inventions funded in whole or in
part under any contract, grant or similar agreement with a Federal agency under
Public Laws 96-517, 97-256 and 98-620, codified at 35 U.S.C. P. 200-212, and any
regulation issued thereunder, as such statute or regulations may be amended from
time to time hereafter. The license to the Licensed Work granted under this
Article II is expressly subject to all such rights.
ARTICLE III
COMPENSATION
3.1 ROYALTIES.
(a) In consideration for the license granted by this Agreement,
Licensee shall pay University royalties as follows on all Sales of the
Licensed Work.
(i) [*];
(ii) [*];
(b) In the event the University releases a Modification to the
Licensed program developed exclusively by the University, the
University shall be entitled to a royalty of [*] of the Sublicense
Fee paid by existing Customers for such modification. In the event
that such a Modification is jointly developed by the University
and Licensee, Licensee shall pay a royalty to the University equal
to a prorated percentage of [*] based upon the relative
contributions of the two parties, such contributions to be
mutually agreed upon.
(c) The University waives the right to receive these royalties
through June 30, 1996 (the "Transition Period") if Fees received
by Licensee in any such year, during the Transition Period are
less than $200,000.
[*] WE ARE SEEKING CONFIDENTIAL TREATMENT OF THESE TERMS, WHICH HAVE BEEN
OMITTED. THE CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
3
3.2 MINIMUM ADVANCE ROYALTIES. Licensee shall Pay to Licensor, as a
non-refundable advance against royalties during the ensuing year, minimum annual
royalties ("Minimum Advance Royalties") for the following periods in the
corresponding amounts:
CALENDAR YEAR BEGINNING
TRANSITION PERIOD January 1, 1995
$20,000 January 1, 1996
$30,000 January 1, 1997
$45,000 January 1, 1998
$60,000 January 1, 1999
$75,000 January 1, 2000 and for each
calendar year thereafter
Licensee shall pay these Minimum Advance Royalties in four (4) evenly
distributed installments on the first day of each calendar quarter (January 1,
April 1, July 1 and October 1) of each year.
3.3 MINIMUM EARNED FEES. To retain the exclusivity of the license granted
hereunder, Licensee must earn Fees in the following amounts during each calendar
year listed below:
CALENDAR YEAR BEGINNING
$ 80,000 January 1, 1995
$150,000 January 1, 1996
$275,000 Each calendar year thereafter
3.4 EXCLUSIVE; NON-EXCLUSIVE LICENSE. If Licensee fails to pay the Minimum
Advance Royalties as set forth in Section 3.2 above for any calendar year, the
University will have the right in its sole discretion, to convert the license
granted hereunder from an exclusive to a non-exclusive license. Should the
University convert the license to a non-exclusive license, Licensee shall be
required to pay a Minimum Advance Royalty of twenty thousand dollars
($20,000.00) to be paid in the same four (4) installments as for an exclusive
license, for each calendar year thereafter to maintain the non-exclusive
license. If Licensee fails to pay the Minimum Advance Royalty of $20,000 for a
non-exclusive license, the University will have the right in its sole
discretion, to terminate the non-exclusive license. In the event that the
University grants any third party a nonexclusive license to the Licensed Work
with Minimum Advance Royalties or equivalent royalties of less than $20,000 per
calendar year, Licensee's yearly fee shall be reduced to the lower rate.
3.5 SALES TO FEDERAL GOVERNMENT. To the extent required by any existing
Federal Government Interest, a sublicense to the United States Government shall
not be subject to any Royalty.
3.6 PAYMENTS. Royalties payable under Section 3.1 hereof shall be paid
within forty five (45) days following the last day of the Calendar quarter in
which the royalties accrue. The final payment shall be made within thirty (30)
days after termination of this Agreement. Royalties shall be deemed paid as of
the day on which they are received at the account designated pursuant to Section
3.8. Royalties that are not paid when due shall be subject to interest in
accordance with Section 3.8 hereof.
3.7 REPORTS. Licensee shall deliver to the University within forty-five
(45) days after the end of each Calendar Quarter a report, certified by the
chief financial officer of Licensee, setting forth in reasonable detail the
calculation of the earned royalties and Minimum Advance Royalties available for
credit payable to the University for such Calendar Quarter.
3.8 CURRENCY, PLACE OF PAYMENT, INTEREST.
(a) CURRENCY; PLACE OF PAYMENT. All dollar amounts referred to in
this Agreement are expressed in United States dollars. All
payments of Royalties and other amounts to the University under
this Agreement shall be made in United States dollars (or other
legal currency of the United States) by check payable to "The
Trustees of the University of Pennsylvania".
4
(b) INTEREST. Amounts that are not paid when due shall accrue
interest from the due date until paid, at a rate equal to the
prime rate plus two percent (2%) with a maximum cap of eighteen
percent (18%). The University may treat unpaid payments as a
breach of this Agreement notwithstanding the payment of interest.
3.9 RECORDS. Licensee will maintain complete and accurate books and records
which enable the royalties payable hereunder to be verified. The records for
each calendar quarter shall be maintained for five years after the submission of
each report under Section 3.7 hereof. Upon reasonable prior notice to Licensee,
the University and its accountant shall have access to the relevant books and
records of Licensee necessary to conduct a review or audit thereof. Such limited
access shall be available not more than twice each calendar year, during normal
business hours, and for three years after the expiration or termination of this
Agreement. If the University determines that Licensee has underpaid royalties by
ten percent (10%) or more, Licensee will immediately pay to the University such
amount plus interest as set forth in Section 3.8 above in addition to the
documented costs and expenses of the university's accountant in connection with
its review or audit. If an overpayment is determined to exist, the University
shall refund any monies overpaid by Licensee back to Licensee.
ARTICLE IV
USE OF LICENSED PROGRAM
4.1 MAINTENANCE. Licensee acknowledges and agrees that the University shall
be under no obligation to Licensee to install, maintain, support, modify or
enhance the Licensed Program, all such obligations being the responsibility of
Licensee.
4.2 Copy Limitations. Licensee shall be entitled to receive from the
University one copy of the Licensed Program and related Documentation, and the
Licensed Technical information. Licensee shall keep a record of the location of
each and every copy of the licensed Program that it makes and shall maintain
such copies in locations consistent with Licensee's confidentiality obligations
as set forth in Article V hereof. Licensee shall reproduce without alteration
any disclaimers, legends and proprietary rights notices on all copies of the
Licensed Program and related Documentation and the Licensed Technical
Information.
4.3 MODIFICATION OF LICENSED WORK.
(a) Licensee shall have the right to make Modifications of the
Licensed Work, including derivatives as contemplated by the copyright
laws, provided that such Modifications, and all copyrights and
trademarks relating thereto, shall remain the property of the
University from the moment of their creation, subject to the
1-icensee's license rights hereunder. Licensee shall provide one copy
of any Modification of the Licensed Work to the University promptly
upon request. License shall obtain from each and every individual or
entity who makes a Modification of the licensed Work an assignment of
all rights to the University, including but not limited to copyright,
whether or not such contribution may be a "work made for hire." Prior
to the commencement of work by such individuals or entities, licensee
shall have each individual or entity sign a document in reasonable
form acknowledging that all rights in their respective contributions
will be assigned to the University whether or not such contributions
are works made for hire.
(b) The University may from time to time release Modifications
developed by the University, subject to the Licensee's license rights
hereunder. The University will provide one copy of such Modifications
to Licensee . The incorporation into the Licensed Work of any
Modification developed by the University shall be reflected in the
royalty schedule for the Licensed Work after good faith negotiations
by the parties. Notwithstanding, Licensee acknowledges and agrees that
the University shall have no obligation to make Modifications of the
Licensed Work.
ARTICLE V
CONFIDENTIALITY
5.1 CONFIDENTIALITY.
(a) NONDISCLOSURE. Licensee shall maintain in confidence and shall
not disclose to any third Party (except an authorized sublicensee) the
Confidential Information received pursuant to this, without the prior
written consent of the University. The foregoing obligation shall not
apply to:
(i) information that is known to Licensee or independently
developed by Licensee prior to the time of disclosure, in each
mw, to the extent evidenced by written records promptly disclosed
to the University upon receipt of the Confidential Information.
This exception shall not apply to information learned by Licensee
from any employee who was previously engaged by, or a student of,
the University, with responsibility for the development or use of
the Licensed Work;
(ii) information disclosed to Licensee by a third party that has
a right to make such disclosure;
5
(iii) information that becomes patented, published or otherwise
part of the public domain as a result of acts by the University
or by a third person who has the right to make such disclosure;
or
(iv) information that is required to be disclosed by order of any
governmental authority or a court of competent jurisdiction;
provided that Licensee shall notify the University if it believes
such disclosure is required and shall use its best efforts to
obtain confidential treatment of such information by the agency
or court.
(b) USE OF CONFIDENTIAL INFORMATION. Licensee shall ensure that all of
its employees having access to the Confidential Information of the University
are obligated in writing to abide by Licensee's obligations hereunder. Licensee
shall use the Confidential Information only for the purposes contemplated under
this Agreement.
(c) NO OBLIGATION BY UNIVERSITY. The University shall not be
obligated to accept any Confidential Information of the Licensee. If licensee
desires to furnish any of Licensee's Confidential Information to any University
personnel, Licensee may request such individual to sign a confidentiality
agreement with Licensee in form and substance satisfactory to the University, as
attached hereto in Exhibit C. The University bears no institutional
responsibility for maintaining the confidentiality of any Confidential
Information of Licensee.
(d) COPYRIGHT NOTICE. The placement of a copyright notice by the
University on the Licensed Work, or any portion thereof, shall not be construed
to mean that the program or information has been published. Such placement will
not release licensee from its obligations of confidentiality hereunder.
5.2 PUBLICATION.
(a) UNIVERSITY RIGHT TO PUBLISH. Licensee acknowledges that the basic
objective of the research and development activities of the University is the
generation of new knowledge and its expeditious dissemination. To further that
objective, the University retains the right, at its discretion, to demonstrate,
publish or publicize the Licensed Technical Information and a description of the
Licensed Program and any results of research conducted by the University with
the Licensed Work subject to the provisions of clauses (b) and (c) below.
(b) NOTIFICATION. Should the University desire to disclose publicly,
in writing or by oral presentation, Confidential Information related to the
Licensed Work for which an appropriate form of intellectual property protection
has not been filed, the University shall notify Licensee in writing of its
intention at least thirty (30) days before such disclosure. The University shall
include with such notice a description of the oral presentation or, in the case
of a manuscript or other proposed written disclosure, a current draft of such
written disclosure. Licensee may request the University, no later than 30 (30)
days following the receipt of the University's notice, to file an appropriate
form of intellectual property protection related to the information to be
disclosed. All such filings shall be subject to the provisions of Section 8.1 Of
this Agreement. Upon receipt of such request, the University shall arrange for a
short delay in publication, not to exceed sixty (60) days, to permit filing of
an appropriate form of intellectual protection by the University, or if the
University declines to file such application, to permit licensee to make such a
filing.
(c) MODIFICATION. If the University desires to demonstrate, publish
or publicize Confidential Information related to the Licensed Work that is not
protectable under intellectual property law in the United States, and Licensee
objects to such proposed disclosure within the time period specified in clause
(b) above, the parties will negotiate in good faith toe whether the proposed
disclosure can be modified or withheld, consistent with the objectives of each
party. In no event shall the University be prohibited from proceeding with any
such publication.
5.3 USE OF NAME.
(a) Licensee shall not directly or indirectly use the University's
name, or the name of any trustee, officer or employee thereof, without the
University's written consent. University hereby approves the use of the
following wording as applied to the University, its related Xxxxxxx School, its
School of Medicine, or the Xxxx X. Hartford Foundation, as appropriate:
(i) [based on work or research performed at or by]
(ii) [derived from work or research performed at or by]
(iii) [faculty members of]
(iv) [funded by]
(v) [licensed from]
6
(vi) [developed at]
(b) The University and LICENSEE are independent entities and
contractors and neither is an agent of the other. Neither LICENSEE nor the
University shall take any action which would suggest to a reasonable person that
an agency relationship exists between them.
5.4 INJUNCTIVE RELIEF. Because damages at law will be an inadequate remedy
for breach of any of the covenants, promises and agreements contained in this
Article V hereof, the University shall be entitled to injunctive relief in any
state or federal court located within the City of Philadelphia, Pennsylvania,
including specific performance or an order enjoining the breaching party from
any threatened or actual breach of such covenants, promises or agreements.
Licensee hereby waives any objection it may have to the personal jurisdiction or
venue of any such court with respect to any such action. The rights set forth in
this Section 5.4 shall be in addition to any other rights which the University
may have at law or in equity.
ARTICLE VI
WARRANTIES AND REPRESENTATIONS
6.1 REPRESENTATIONS AND WARRANTIES OF THE UNIVERSITY. The University
represents and warrants to Licensee that this Agreement, when executed and
delivered by the University, will be the legal, valid and binding obligation of
the University, enforceable against the University in accordance with its terms.
The University also represents to Licensee that the University has not received
any written notice that the Licensed Work infringes the proprietary rights of
any third party. These representations are to the knowledge of the University,
based upon conversations with certain University officials. The University has
made no independent investigation of the matters which are subject to these
representations.
6.2 REPRESENTATION AND WARRANTIES OF LICENSEE. Licensee represents and
warrants to the University as follows:
(a) is a good corporation duly organized, validly existing and in
good standing under the laws of Pennsylvania, and has all requisite corporate
power and authority to execute, deliver and perform this Agreement;
(b) This Agreement, when executed and delivered by Licensee, will be
the legal, valid and binding obligation of Licensee, enforceable against
Licensee in accordance with its terms; and
(c) The execution, delivery and performance of this Agreement by
licensee does not conflict with, or constitute a breach or default under, (i)
the charter documents of Licensee, (ii) any law, order, judgment or governmental
rule or regulation applicable to Licensee, or (iii) any provision of any
agreement, contract, commitment or instrument to which Licensee is a party; and
the execution, delivery and performance of this Agreement by Licensee does not
require the consent, approval or authorization of, or notice or declaration to
or filing or registration with, any governmental or regulatory authority.
ARTICLE VII
LIMITATION ON LIABILITY AND INDEMNIFICATION
`
7.1 NO WARRANTIES; LIMITATION ON LIABILITY. EXCEPR AS EXPLICITLY SET FORTH IN
SECTION 6.1 HEREOF, THE LICENSED PROGRAM AND LICENSED TECHNICAL INFORMATION IS
PROVIDED ON AN "AS IS" BASIS AND THE UNIVERSITY MAKES NO REPRESENTATIONS OR
WARRANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PROGRAM AND
LICENSED TECHNICAL INFORMANON. BY WAY OF EXAMPLE BUT NOT OF LIMITATION, THE
UNIVERSITY MAKES NO REPRESENTATIONS OR WARRANTEES (i) OF COMMERCIAL UTILITY,
(ii) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (iii) THAT THE
USE OF THE LICENSED PROGRAM AND LICENSED TECHNICAL INFORMATION WILL NOT INFRINGE
ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY OR PROPERTY RIGHTS OF
OTHERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE UNIVERSITY
7
DISCLAIMS ANY WARRANTY THAT THE LICENSED PROGRAM AND LICENSED TECHNICAL
INFORMATION IS FREE FROM THE RIGHTFUL CLAIMS OF ANY THIRD PARTY. THE UNIVERSITY
SHALL NOT BE LIABLE TO LICENSEE, LICENSEE"S SUCCESSORS OR ASSIGNS, OR ANY OTHER
THIRD PARTY WITH RESPECT TO ANY CLAIM ON ACCOUNT OF, OR ARISING FROM THE USE OF
INFORMANON IN CONNECTION WITH THE LICENSED PROGRAM AND LICENSED TECHNICAL
INFORMATION SUPPLIED HEREUNDER OR THE USE OR LICENSE OF THE LICENSED PROGRAM AND
LICENSED TECHNICAL INFORMATION OR ANY OTHER MATERIAL OR ITEM DERIVED THEREFROM.
THE UNIVERSITY SHALL NOT BE LIABLE TO LICENSEE, OR ANY OTHER PERSON FOR ANY LOSS
OF PROFITS, LOSS OF BUSINESS OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY LICENSEE OR ANY OTHER
PERSON WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF THE UNIVERSITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
7.2 LICENSEE INDEMNIFICATION. Licensee will indemnify and hold harmless the
University, its, officers, agents and employees (collectively, the "Indemnified
Parties"), from and against any and all liability, loss, damage, action, claim
or expense suffered or incurred by the Indemnified Parties (including reasonable
attorney's fees) (individually, a "Liability" and collectively, the
"Liabilities") which results from or arises out of (a) the use of the Licensed
Work by Licensee, its Affiliates, assignees, vendors or other third parties; (b)
breach by Licensee of any covenant or agreement contained in this Agreement; and
(c) the successful enforcement by an indemnified Party of its right under this
Section 7.2. The indemnification obligation under clause (a) shall be mitigated
by the sole negligence of the Indemnified Party. Without limiting the foregoing,
Licensee will indemnify and hold harmless the Indemnified Parties from and
against any Liabilities resulting from:
(a) Any claim of any kind related to the use by a third party of the
Licensed Work by Licensee, its Affiliates, assignees, or other third parties;
and
(b) claim by a third party that the Licensed work infringes or
violates any patent, copyright, trademark or other intellectual property rights
of such third party.
7.3 PROCEDURES. The Indemnified Party shall promptly notify Licensee of any
claim or action giving rise to a Liability that is subject to the provisions of
Section 7.2. Licensee shall have the right to defend any such claim or action,
at its cost and expense. Licensee shall not settle or compromise any such claim
or action in a manner that imposes any restrictions or obligations on the
University or grants any rights to the licensed Work, without the University's
written consent, which consent shall not be unreasonably withheld. If Licensee
fails or declines to assume the defense of any such claim or action within
thirty (30) days after notice thereof, the University may assume the defense of
such claim or action for the account and at the risk of Licensee, and any
Liability related thereto shall be conclusively deemed a liability of Licensee.
Licensee shall pay promptly to the Indemnified Party any Liabilities to which
the foregoing indemnify relates, as incurred. The indemnification rights of the
University or other indemnified Party contained herein are in addition to all
other rights which such indemnified Party may have at law or in equity or
otherwise.
7.4 LIABILITY INSURANCE. During the Term of this Agreement, Licensee shall
maintain general liability and product liability, insurance in amounts not less
than $1,000,000 per incident and $1,000,000 in the aggregate, issued by an
insurance company rated AA or better and naming the University as an additional
insured. The minimum insurance amounts specified herein shall not be deemed a
limitation on Licensee's indemnification liability under this Agreement.
Licensee shall provide the University with copies of the endorsements to such
policies, upon request of the University. Licensee shall notify the University
at least thirty (30) days prior to cancellation of any such coverage.
ARTICLE VIII
PROPRIERARY RIGHTS AND INFRINGEMENT
8.1 PROPRIETARY RIGHTS PROTECTION.
(a) UNIVERSITY CONTROL. The University shall be responsible for and
shall control the preparation, prosecution and maintenance of all copyrights and
patent rights pertaining to the Licensed Work. Licensee shall reimburse the
University for all documented expenses (including legal fees, filing and
maintenance fees or other governmental charges) incurred in connection with the
filing, prosecution and maintenance of any such rights. Such reimbursement shall
be due at the same date as advance Minimum Royalties are due, as
8
set forth in Section 3.2.
(b) LICENSEE OBLIGATIONS. Licensee and the University shall mutually
determine the countries where copyrights and patents pertaining to the Licensed
Work will be prosecuted and maintained. If Licensee declines to pay for such
prosecution and maintenance costs in any jurisdiction, the University may do so
at its cost and expense but such rights shall be excluded from the definition of
Licensed Work.
(c) LICENSEE PROSECUTION. If the University elects not file,
prosecute or maintain any copyright to the Licensed Work, it shall notify
Licensee at least sixty (60) days prior to taking, or not taking, any action
which would result in abandonment, withdrawal, or lapse of such right. Licensee
shall then have the right to file, prosecute or maintain the right at its own
expense.
(d) COOPERATION. Each party shall cooperate with the other party to
execute all lawful papers and instruments and to make all rightful oaths and
declarations as may be necessary in the preparation and prosecution of all
rights referred to in this Section 8. 1.
8.2 OWNERSHIP. Licensee acknowledges that all right, title and interest in
and to the Licensed Work and any copyrights, patents, trademarks and other
protection related thereto is and shall remain in the University, regardless of
which party prepares prosecutes or maintains the foregoing, subject to the
express license granted to Licensee under Article II hereof.
8.3 INFRINGEMENT BY THIRD PARTY.
(a) LICENSEE'S OBLIGATIONS. Each party will promptly notify the other
party of any infringement or possible infringement of rights relating to the
Licensed Work. Licensee shall have the right, but not the obligation, to
prosecute such infringement at its
9
own expense. In such event, the University shall cooperate with Licensee, at
Licensee's expense. Licensee shall not settle or compromise any such suit in a
manner that imposes any obligations or restrictions on the University or grants
any rights to the Licensed Work, without the University's written consent.
(b) UNIVERSITY'S RIGHTS. If Licensee fails to prosecute such
infringement within ninety (90) days after receiving notice thereof, the
University shall have the right, but not the obligation, to prosecute such
infringement at its own expense. In such event, Licensee shall cooperate with
the University, at the University's expense.
(c) RECOVERY DISTRIBUTION. Any recovery obtained by the prosecuting
party as a result of such proceeding, by settlement or otherwise, shall be
applied first to the prosecuting party, in an amount equal to its costs and
expenses of the litigation, with the remainder to be paid to the Licensee,
subject to the earned royalties due to the University under Article 3 hereof.
ARTICLE IX
TERM AND TERMIANTION
9.1 TERM. This Agreement and the licenses granted herein shall commence on
the Effective Date and shall continue, subject to earlier termination under
Sections 9.2 or 9.3 hereof, for a period of thirty (30) years thereafter.
9.2 TERMINATION BY THE UNIVERSITY.
(a) EVENTS OF DEFAULT. Upon the occurrence of any of the events set
forth below ("Events of Default"), the University shall have the right to
terminate this Agreement by giving written notice of termination, such
termination being effective with the giving of such notice:
(i) Nonpayment of any amount payable to the University that is
continuing then (10) calendar days after the University gives
Licensee written notice of such nonpayment;
(ii) breach by Licensee of any covenant (other than a payment
breach referred to in clause (i) above) or any representation or
warranty contained in this Agreement that is continuing sixty
(60) calendar days after the University gives licensee written
notice of such breach; provided that if Licensee, using its best
efforts, cannot cure such breach within the flat sixty (60) days,
the cure period shall be extended by an additional sixty (60)
calendar days, the total cure period not to exceed one hundred
twenty (120) days.
(iii) Licensee fails to comply with the terms of the license
granted under Article II hereof and such noncompliance is
continuing thirty (30) calendar days after the University gives
Licensee notice of such noncompliance;
(iv) Licensee becomes subject to a Bankruptcy Event;
10
(v) the dissolution or cessation of operations by Licensee;
(vi) Licensee has failed to receive any fees for use or
sublicensing of the Licensed Program by June 30, 1995.
(b) NO WAIVER. No exercise by the University of any right of
termination shall constitute a waiver of any right of the University for
recovery of any monies then due to it hereunder or any other right or remedy the
University may have at law or under this Agreement.
(c) Sublicenses. Any sublicense(s) in effect at the time of such
termination by University will be assigned to the University and will remain in
fun force and effect so long as (1) CMS is in full compliance with the term and
conditions of any such sublicense(s), and (2) such sublicense(s) are consistent
with the terms of this AGREEMENT, and (3) the University has no obligation to
provide any support, maintenance or other service to sublicensee. The assignment
will occur automatically upon the request of Licensee, notwithstanding the
provision of 9.5 "Sublicenses".
9.3 TERMINATION BY LICENSEE. Licensee shall have the right to terminate
this Agreement, at any time and with or without cause, upon (90) days written
notice to the University.
9.4 RIGHTS AND DUTIES UPON TERMINATION. Within thirty (30) days after
termination of this Agreement, each party shall return to the other party any
Confidential Information of the other Party. Licensee also shall return all
copies of the Licensed Program in its possession that are embodied in physical
form to the University promptly upon the termination of this Agreement.
9.5 SUBLICENSES. Any sublicenses granted by Licensee under this Agreement
may survive termination of this Agreement in accordance with the terms of such
sublicense if so requested by the University, in which event the sublicense
shall be assigned to the University.
9.6 PROVISIONS SURVIVING TERMINATION. Licensee's obligation to pay
Royalties accrued but unpaid prior to termination of this Agreement shall
survive such termination. In addition, Sections 3.8, 3.9, 4.1, 8.2 and this 9.6
and Articles V, VI and VII and any other provisions required to interpret the
rights and obligations of the parties arising prior to the termination date
shall survive expiration or termination of this Agreement.
ARTICLE X
ADDITIONAL PROVISIONS
10.1 ASSIGNMENT. This Agreement and the rights and duties appertaining
thereto may not be assigned by the Licensee, directly or indirectly except to an
Affiliate of Licensee wherein Licensee guarantees performance of assignee or in
the case of merger, acquisition or operation of law, without first obtaining the
written consent of the University. Any such purported assignment, without the
written consent of the University, shall be null and of no effect. No assignment
shall relieve Licensee of responsibility for the performance of any obligations
which have accrued prior to such assignment.
10.2 NO WAIVER. A waiver by either party of a breach or violation of any
provision of this Agreement must be in writing in order to be effective. No
waiver will constitute or be construed as a waiver of any subsequent breach or
violation of that provision or as a waiver of any breach or violation of any
other provision of this Agreement.
10.3 INDEPENDENT CONTRACTOR. Nothing herein shall be deemed to establish a
relationship of principal and agent between the University and Licensee, nor any
of their agents or employees for any purpose whatsoever. This Agreement shall
not be construed as constituting the University and Licensee as partners, or as
creating any other form of legal association or arrangement which could impose
liability upon one party for the act or failure to act of the other party.
11
10.4 NOTICES. Any notice under this Agreement shall be sufficiently given
if sent in writing by prepaid, first class, certified or registered mail, return
receipt requested, addressed as follows:
(a) if to the University, to:
Center for Technology Transfer
University of Pennsylvania
Xxxxx 000
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Director
cc: office of the General Counsel
University of Pennsylvania
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
(b) if to Licensee, to:
Care Management Science Corp.
0000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
cc: Xxxxx X. Xxxxxxx, M.D., Ph.D.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
or to such other addresses as may be designated from time to time by notice
given in accordance with the terms of this Section.
10.5 ENTIRE AGREEMENT. This Agreement embodies the entire understanding
between the parties relating to the subject matter hereof and supersedes all
prior understandings and agreements, whether written or oral. This Agreement may
not be varied except by a written document signed by duly authorized
representatives of both parties.
10.6 SEVERABILITY. Any of the provisions of this Agreement which are
determined to be invalid or unenforceable in any jurisdiction shall be
ineffective to the extent of such invalidity or unenforceability in such
jurisdiction, without rendering invalid or unenforceable the remaining
provisions hereof or affecting the validity or unenforceability of any of the
terms of this Agreement in any other jurisdiction.
10.7 HEADINGS. Any headings and captions used in this Agreement are for
convenience of reference only and shall not affect its construction or
interpretation.
10.8 NO THIRD PARTY BENEFITS. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto or
their permitted assigns, any benefits, rights or remedies.
10.9 GOVERNING LAW. This Agreement shall be construed, governed,
interpreted and applied in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to conflict of law provisions.
10.10 COUNTERPARTS. This Agreement shall become binding when any one or
more counterparts hereof, individually or taken together, shall bear the
signatures of each of the parties hereto. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against the
party whose signature appears thereon, but all of which together shall
constitute but one and the same instrument
12
INTENDING TO BE BOUND, the parties hereto execute this Agreement through their
authorized representatives.
For THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA:
4/30/97 /s/ Xxxxx X. Xxxxxx
------------------ --------------------------------
Date Authorized Representative
For Care Management Science Corporation:
APRIL 28, 1997 /s/ Xxxxx Xxxxxxx
-------------- --------------------------------
Xx. Xxxxx Xxxxxxx, President
00
XXXXXXX X
XXXXXXXXXX
Xxxxxx Xxxxxx Copyright Registration Number TXU 530 576
Applications for copyright registration filed February 21, 1995 entitled:
1 Congestion in General Hospitals
2. Focused Operations
3. Clinical Pathway
4. Ambulatory Outcomes
EXHIBIT B
END USER AGREEMENT
EXHIBIT B
END USER AGREEMENT
CENTER FOR HEALTH CHOICE SOFTWARE LICENSE
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE USING HEALTH CHOICE. THIS IS A LEGAL
AGREEMENT BETWEEN SUB-LICENSEE ("YOU"), THE END USER, AND THE CENTER FOR HEALTH
CHOICE ("CHC").
1. GRANT OF LICENSE. The application, demonstration and system software ("HEALTH
CHOICE") and related documentation are licensed to you by CHC. You own the tape
on which HEALTH CHOICE is recorded but The Trustees of the University of
Pennsylvania ("PENN") retains title to HEALTH CHOICE. This License allows you to
use HEALTH CHOICE on a single computer and to make one copy of HEALTH CHOICE in
a machine-readable form for backup purposes only. You must reproduce on such
copy the Penn copyright notice and any other proprietary legends that were on
the original copy of HEALTH CHOICE. This License is not transferable. The terms
of this License extends to the backup copy.
2. COPYRIGHT AND TRADEMARK. The software is owned by Penn, and is protected by
United States copyright laws and international treaty provisions. Therefore, you
must treat HEALTH CHOICE like any other copyrighted material (such as a book or
musical recording) except that you may either: (a) make one copy of HEALTH
CHOICE solely for backup or archival purposes, or (b) transfer the software to a
single hard disk, provided that you keep the original solely for backup or
archival purposes. You may not copy the written material accompanying HEALTH
CHOICE. You acknowledge the existence of a valid copyright in HEALTH CHOICE and
that both HEALTH CHOICE and copyright are the sole and exclusive property of
Penn. By accepting this license, you do not become the owner of either HEALTH
CHOICE or the copyright.
3. OTHER RESTRICTIONS. You may not transfer, sell, rent or lease either HEALTH
CHOICE, the backup copy of HEALTH CHOICE or the related documentation to another
party. You may not reverse engineer, decompile, or disassemble HEALTH CHOICE.
You may not in any manner re-create or assist another in re-creating the source
code for HEALTH CHOICE. You may not make any revisions to or enhancements of
HEALTH CHOICE. "Revisions" as made in this license includes all corrections or
modifications that add no substantial feature or function to HEALTH CHOICE.
"Enhancements" includes all upgrades or improvements that add a feature or
function to HEALTH CHOICE.
4. EXPORT LAW ASSURANCES. HEALTH CHOICE and documentation are provided with
restricted rights. Use, duplication, or disclosure by the Government is subject
to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013, or
subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted
Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is The Center
for Health Choices; 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000.
5. TERMINATION. This license is effective until terminated. You may terminate
this License at any time by destroying HEALTH CHOICE and all copies thereof.
This License will terminate immediately without notice from CHC or Penn if you
fail to comply with any provision of this License. Upon termination, you must
destroy HEALTH CHOICE and all copies thereof.
6. LIMITED WARRANTY ON MEDIA. CHC warrants the tape on which Health Choice is
recorded to be free from defects in materials and workmanship under normal use
for a period of ninety (90) days from the date of purchase as evidenced by a
copy of the receipt. CHC's entire liability and your exclusive remedy will be
replacement of the disk not meeting CHC's limited warranty, if returned to CHC
or an CHC authorized representative with a copy of the receipt. CHC will have no
responsibility to replace a tape damaged by accident, abuse or misapplication.
ANY IMPLIED WARRANTIES ON THE TAPE, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO
NINETY (90) DAYS FROM THE DATE OF DELIVERY.
7. DISCLAIMER OF WARRANTY ON SOFTWARE. You expressly acknowledge and agree that
use of HEALTH CHOICE is at your sole risk. HEALTH CHOICE and related
documentation are provided "AS IS" and without warranty of any kind and CHC
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. CHC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN HEALTH
CHOICE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF HEALTH CHOICE WILL
BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN HEALTH CHOICE WILL BE
CORRECTED. FURTHERMORE, CHC DOES NOT
1
WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE
OF HEALTH CHOICE OR RELATED DOCUMENTATION [OR THAT HEALTH CHOICE WILL NOT
INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK OR OTHER PROPRIETARY RIGHTS OF
OTHERS]. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CHC OR A CHC
AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE
SCOPE OF THIS WARRANTY; SHOULD HEALTH CHOICE PROVE DEFECTIVE, YOU (AND NOT CHC
OR A CHC AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL
CHC BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT
FROM THE USE OR INABILITY TO USE HEALTH CHOICE OR RELATED DOCUMENTATION, EVEN IF
CHC OR A CHC AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. In no event shall CHC's total liability to you for all damages,
losses, and causes of action (whether in contract, tort including negligence or
otherwise) exceed the amount paid by you for HEALTH CHOICE.
9. [IDEMNIFICATION. You agree to indemnify and hold harmless CHC, PENN, their
respective trustees, directors, officers, employees and agents (collectively
"Indemnified Parties") from and again any and all liability, loss, damage,
action, claim or expense suffered or incurred by the Indemnified Parties,
including reasonable attorney's fees (individually a "Liability" and
collectively "Liabilities") which result from or arise out of any use of HEALTH
CHOICE by you, your officers, employees, agents or other third parties, or your
breach of any covenant contained in this agreement.]
10. CONTROLLING LAW AND SEVERABILITY. This License shall be governed by and
construed in accordance with the laws of the State of Pennsylvania. If for any
reason a court of competent jurisdiction finds any provision of this License, or
portion thereof, to be unenforceable, that provision of the License shall be
enforced to the maximum extent permissible so as to effect the intent of the
parties, and the remainder of this License shall continue in full force and
effect.
11. COMPLETE AGREEMENT. This License constitutes the entire agreement between
the parties with respect to the use of HEALTH CHOICE and related documentation,
and supersedes all prior or contemporaneous understandings or agreements,
written or oral, regarding such subject matter.
For Licensee: For CHC:
---------------------------- ---------------------------------
NAME NAME
---------------------------- ---------------------------------
TITLE TITLE
---------------------------- ---------------------------------
DATE DATE
---------------------------- ---------------------------------
COMPUTER PROCESSING UNIT TAPE SERIAL NUMBER
SERIAL NUMBER
Licensee shall use best efforts to include bracketed provisions in all
sublicense agreements.
Please note that HEALTH CHOICE is only a designated name of the software.
2
EXHIBIT C
CONFIDENTIALITY AGREEMENT
EXHIBIT C
CONFIDENTIALITY AGREEMENT
The Center for Health Choice ("CHC"), a Pennsylvania Corporation, located
at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000
AND
----------------------------------------
From time to time, before and after the date hereof, each party may, at the
other's request, disclose to the other certain of its proprietary and/or
confidential information including, but not limited to: company know-how,
techniques and methodology(ies), statistical information, sample reports,
software code and/or algorithms, or, among other things, notes, drawings, etc.
related to the other's business practices or relationship with The University of
Pennsylvania and its Schools or the parties work together. In addition, either
party may make certain of its personnel, consultants, affiliates and/or agents
accessible to the other. The above items and all data related thereto are
collectively referred to, for convenience, as the "Information".
All such Information when submitted by either party shall clearly reflect
that it is confidential and the other hereby acknowledges receipt of same under
those conditions.
With respect to any and all the foregoing Information, at any time provided
by either party to the other, anything obtained therefrom, or from any
discussions between the parties or with any of their employees, affiliates,
consultants, representatives or agents, the undersigned and each of their
respective personnel, directors, attorneys and consultants (collectively
hereafter referred to for convenience as "Parties") agree as follows:
(1) Parties will not disclose to anyone or any entity, at any time or
under any circumstances and for any purpose whatsoever any of the
Information. Such Information will be used only for its internal
purposes in connection with its relationship with the other.
(2) Parties will not copy (except for purely internal use as permitted
hereby) or disseminate any of the Information and will destroy or
return anything furnished by the other (including copies it has made)
at the completion of its review and furnish the other with a
certificate of compliance upon the other's request.
(3) Parties will make no use of any of the Information independently for
its own purposes.
(4) Information supplied by the Parties hereunder shall be used solely for
the purposes of the relationship between the Parties.
Notwithstanding the foregoing, the above shall not apply if, and only if, one or
more of the following are in effect:
(a) the Information is clearly in the public domain at the time of
disclosure;
(b) becomes generally available to the public other than as a result of a
disclosure; or
(c) the Information is known to the other prior to its disclosure by the
disclosing party.
To be free of the restrictions of this Agreement in either (a) or (b) above, the
receiving party must notify the disclosing party in writing as soon as
practicable after the receipt of same. Parties further agree that at such time
as Parties are no longer making use of the Information or if the relationship
terminates, the Parties will cease to make any use of the Information and will:
1) return the Information to whichever party provided it, or 2) destroy the same
and furnish to the providing party an affidavit duly executed before a notary
public by an authorized official, under oath, certifying the destruction of the
Information at the providing party's written request.
1
NOTWITHSTANDING THE FOREGOING, THIS CONFIDENTIALITY AGREEMENT IN NO WAY
SUPERSEDES THE UNIVERSITY'S AND ITS EMPLOYEES' RIGHTS, INCLUDING BUT NOT LIMITED
TO ANY RIGHTS TO PUBLICATION, UNDER THE LICENSING AGREEMENT BETWEEN THE
UNIVERSITY OF PENNSYLVANIA AND THE CENTER FOR HEALTH CHOICE.
By my authorized signature below, I hereby agree to the above:
THE CENTER FOR HEALTH CHOICE
By:____________________________ ________________________
Date
Its:___________________________
Duly Authorized Officer
INDIVIDUAL XXX
By:____________________________ ________________________
Date
Its:___________________________
Duly Authorized Officer
2
