Agreement
Exhibit
10.1
Agreement
THIS
AGREEMENT is made this 5th day
of November, 2009 (“Effective Date”) by and between IMedicor, Inc, a
Nevada Corporation whose address is 000 Xxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx
00000, XXX ("IMedicor") and Direct Medical Solutions Corp, A Connecticut
Corporation whose address is 0 Xxxxx Xxx, Xxxx, XX 00000
(the “Direct Medical”).
WITNESSETH:
WHEREAS, iMedicor is a secure,
HIPAA compliant online portal that creates a virtual healthcare community
amongst physicians and other medical professionals for the purpose of real-time
Health Information Exchange. Physicians are provided with free, secure HIPPA
compliant transport accounts, similar to e-mail, that enable them to share
personal health information with other participating physicians;
WHEREAS, Direct Medical
represents products and services for the medical industry that: Generate
Additional Revenue Streams; Provide Cost Savings and Streamline Workflow; Help
Patients Save Time, Money and Doctors Achieve Better Outcomes; and Assist
Physicians and Medical Practices to find ways to Enhance Patient
Satisfaction;
WHEREAS, both parties are
interested in forming a strategic and marketing alliance beneficial to both
organizations.
NOW, THEREFORE, for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
OBLIGATIONS OF THE PARTIES
A. Direct
Medical will actively market membership / enrollments into iMedicor throughout
their network Key benefits to enrolling participants will be, but not limited
to:
a. HIPAA
Compliant secure transport network for the movement of digital medical records
and images;
b. The
ability to create an individual community, access other communities, expand peer
collaboration and referral networking; and
c. Access
to educational resources as certified CME, non-CME or product specific
educational resources.
B. iMedicor
will actively promote membership in Direct Medical throughout its network the
enrollment process will consist of:
a. Direct
link from your web site to iMedicor registration page, tagging the doctor as
your lead;
b. Direct
link from a doctor to a registration page that will designate the doctor as your
lead;
c. Registration
can be by individual doctor, groups, organizations etc, all will be tagged as
your lead;
d. Revenue
share will be in perpetuity for as long as our contract is in place. In the
event that for any reason we cancel the contract on either part, revenue share
will continue for one year after the cancellation date. In the event that your
business files for bankruptcy or ceases to operate for any reason the revenue
share will crease immediately;
e. There
are no exclusive arrangements with iMedicor; and
f. The
term of all agreements are two years with automatic one year
renewals.
C. iMedicor
will provide complete on-line training to Direct Medical sales people in regard
to the features and functions of the iMedicor social Community Portal and
Personal Health Information Exchange. During the training process we will
identify the registration process, the identification and organization of the
lead system, identification of revenue, commission’s reports and payment
procedures.
D. IMedicor’s
revenue model is to charge Pharma or other industry related sponsors a fee per
qualified click through interaction (Deliver content, order samples, set
appointment with a rep, speak to higher authorities with technical or medical
questions). In addition, in certain instances, iMedicor generates revenue
through revenue sharing; upgrade services, special events and other means as
identified from time to time.
E. iMedicor
would ask for a mirror for any activity initiated from iMedicor through its
network that would generate revenue through Direct Medical products, services or
sponsored ships and / or marketing and sales programs introduced through Direct
Medical and its associated organizations to the iMedicor network. Revenue
sharing to be determined, but should be reflective of a mirror image of the
revenue share offered by iMedicor to Direct Medical.
2.
COMPENSATION
Every registration into iMedicor system
through the direct efforts of Direct Medical will be tagged as coming through
the Direct Medical organization. Revenue generated through that registration
will earn Direct Medical 17% of the revenue received by iMedicor though sales
Direct Medical Customers. In addition, every registration into the Direct
Medical system through the direct efforts of iMedicor will be tagged as coming
through the iMedicor organization. Revenue generated through that registration
will earn iMedicor 17% of the revenue received by Direct Medical though sales
iMedicor Customers.
Direct Medical shall pay to IMedicor,
on a monthly basis (on or about the 15th
day), compensation due, if any, pursuant to this paragraph
2. Commission shall only be paid on amounts which have actually been
collected or received by Direct Medical from IMedicor Clients during the
preceding month. A statement reflecting the full amounts collected by
Direct Medical in connection with sales of its products and services to IMedicor
Clients, and as well as any set-offs during the preceding quarter shall
accompany Direct Medical monthly payments to IMedicor. In addition,
Direct Medical will provide to IMedicor a quarterly statement of all monies
received in connection with such sales of its products and services to IMedicor
Clients during the preceding quarter.
Direct Medical shall maintain accurate
and complete records and accounting books with regard to the commissions due
under this Agreement to IMedicor, including, without limitation, all information
needed to compute and verify the amounts payable to IMedicor
hereunder. During the term of this Agreement, but not later than the
date that is two (2) years following the termination or expiration of the term
of this Agreement, upon reasonable advance written notice, and at IMedicor sole
cost and expense subject to the last sentence of this paragraph, IMedicor will
have the right to examine, or appoint a third party auditor to examine, those
books and records at any time during Direct Medical’s normal business hours at
the place where such books and records are normally
maintained. Direct Medical will reasonably cooperate with IMedicor
representatives to insure compliance with the foregoing. In the event
an examination of Direct Medical’s books and records reveals a deficiency in
payments paid to IMedicor of ten percent (10%) or more of the total amount
accounted to IMedicor during the period of the audit, Direct Medical shall pay
the underpayment and interest at rate of 6% from the date the Commission due to
IMedicor under this Agreement.
iMedicor shall pay to Direct Medical,
on a monthly basis (on or about the 15th
day), compensation due, if any, pursuant to this paragraph
2. Commission shall only be paid on amounts which have actually been
collected or received by iMedicor from Direct Medical Clients during the
preceding month. A statement reflecting the full amounts collected by
iMedicor in connection with sales of its products and services to Direct Medical
Clients, and as well as any set-offs during the preceding quarter shall
accompany iMedicor monthly payments to Direct Medical. In addition,
iMedicor will provide to Direct Medical a quarterly statement of all monies
received in connection with such sales of its products and services to Direct
Medical Clients during the preceding quarter.
iMedicor shall maintain accurate and
complete records and accounting books with regard to the commissions due under
this Agreement to Direct Medical, including, without limitation, all information
needed to compute and verify the amounts payable to Direct Medical
hereunder. During the term of this Agreement, but not later than the
date that is two (2) years following the termination or expiration of the term
of this Agreement, upon reasonable advance written notice, and at Direct Medical
sole cost and expense subject to the last sentence of this paragraph, Direct
Medical will have the right to examine, or appoint a third party auditor to
examine, those books and records at any time during iMedicor’s normal business
hours at the place where such books and records are normally
maintained. iMedicor will reasonably cooperate with Direct Medical
representatives to insure compliance with the foregoing. In the event
an examination of iMedicor’s books and records reveals a deficiency in payments
paid to Direct Medical of ten percent (10%) or more of the total amount
accounted to Direct Medical during the period of the audit, iMedicor shall pay
the underpayment and interest at rate of 6% from the date the Commission due to
Direct Medical under this Agreement.
3.
TERM
This
Agreement shall commence on the Effective Date of this Agreement and shall
remain in effect for a period of 2 years (“Initial Term”). Thereafter, this
Agreement shall be renewed automatically on an annual basis, unless one party
notifies the other of its desire to terminate this Agreement at least sixty 90
days prior to the expiration of the Initial Term or then current renewal term,
as applicable, or unless a new Agreement is signed between the Direct Medical
and IMedicor which will then invalidate this Agreement.
4.
INTELLECTUAL PROPERTY
Each
party shall exclusively own its respective trademarks and service marks,
copyrights, trade secrets, and patents (collectively, the "Intellectual
Property") and will not have any claim or right to the other party’s
Intellectual Property by virtue of this Agreement or the performance
of services hereunder. Neither party will take any action or make any claim to
any Intellectual Property belonging to the other party, whether during the Term
of this Agreement or thereafter.
5.
TERMINATION
A. Termination Without
Cause. Both parties may terminate this Agreement upon ninety
(“90”) days written notice to the other party at the address stated in this
Agreement.
B. Both parties shall have
the right to include this Agreement as an asset of their Company.
C. Upon termination of this Agreement
for any reason whatsoever, both parties shall have the right to remove any
references to the other party from any of its materials and/or websites as well
as be authorized to notify their customers of said termination without penalty
and/or recourse by the other party if only if said notification contains no
disparaging or disrespectful comments concerning the other party.
6.
REPRESENTATIONS AND WARRANTIES
A. Each
party represents and warrants that it has the right, title, interest and
authority to enter into this Agreement and to fully perform its obligations
hereunder, and that the rights granted hereunder shall not violate the rights of
any third party. Each party represents and warrants that its conduct hereunder
shall conform to all applicable federal, state and local law and
regulation.
B. Both
parties will not have liability for any damages other than direct damages. Both
parties DO NOT MAKE ANY WARRANTY REGARDING THE QUALITY OF ITS
SERVICES. Both parties DO NOT MAKE ANY WARRANTY THAT ALL ERRORS OR FAILURES IN
ITS WEBSITES WILL BE CORRECTED. Both parties EXPRESSLY DISCLAIM ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BEYOND THE
WARRANTIES CONTAINED IN THIS PARAGRAPH, Both parties DO NOT WARRANT
THAT their SITES ARE ERROR-FREE OR THAT OPERATION OF their SITES WILL BE SECURE
OR UNINTERRUPTED. THESE LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE
VALIDITY OF THE LIMITED REMEDIES PROVIDED FOR IN THIS AGREEMENT.
7.
INDEMNITY
Notwithstanding
anything to the contrary herein, Direct Medical shall indemnify, defend and hold
harmless IMedicor, its officers, directors, shareholders, employees, parent and
affiliate entities, agents and representatives, against all damages, claims,
liabilities, losses and other expenses, including without limitation, reasonable
attorney fees and costs, whether or not a lawsuit or other proceedings is filed,
that in any way arise out of or related to: (a) any claim against IMedicor
arising out of any breach of any covenants, warranties, representations and
agreements made by Direct Medical to any third party and/or (b) Direct Medical's
material breach of any provision of this Agreement; (c) the grossly negligent or
willful acts or omissions of Direct Medical; and/or (d) any claim by any party
based on Direct Medical’s Products failing to operate and/or function in any
manner so advertised by Direct Medical and/or its agents. In the event that
Direct Medical fails to promptly indemnify and defend such claims and/or pay
expenses as provided above, IMedicor shall have the right to defend itself and
Direct Medical shall reimburse IMedicor for all of its reasonable attorneys'
fees, costs and damages incurred in settling or defending such claims within
sixty (60) days of IMedicor’ request for same.
Notwithstanding
anything to the contrary herein, IMedicor shall indemnify, defend and hold
harmless Direct Medical, its officers, directors, shareholders, employees,
parent and affiliate entities, agents and representatives, against all damages,
claims, liabilities, losses and other expenses, including without limitation,
reasonable attorney fees and costs, whether or not a lawsuit or other
proceedings is filed, that in any way arise out of or related to: (a) any claim
against Direct Medical arising out of any breach of any covenants, warranties,
representations and agreements made by IMedicor to any third party and/or (b)
IMedicor material breach of any provision of this Agreement; (c) the grossly
negligent or willful acts or omissions of IMedicor; and/or (d) any claim by any
party based on IMedicor Products failing to operate and/or function in any
manner so advertised by IMedicor and/or its agents. In the event that IMedicor
fails to promptly indemnify and defend such claims and/or pay expenses as
provided above, Direct Medical shall have the right to defend itself and
IMedicor shall reimburse Direct Medical for all of its reasonable attorneys'
fees, costs and damages incurred in settling or defending such claims within
sixty (60) days of Direct Medical’ request for same.
8. NO
JOINT VENTURE
Nothing
in the Agreement shall be deemed to constitute, create, give effect to or
otherwise recognize a partnership, joint venture or formal business entity of
any kind; and the rights and obligations of the Parties shall be limited to
those expressly set forth herein. No Party is granted any right or authority to
assume or create any obligation or responsibility, express or implied, on behalf
of, or in the name of, another Party or to bind another in any matter or thing
whatsoever.
9.
CONFIDENTIALITY
A.
"Confidential Information" as used in this Agreement shall mean any and all
technical and non-technical information including but not limited to patent,
copyright, trade secret, and proprietary information, techniques, sketches,
drawings, models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programs, software source documents, and formulae related
to the current, future, and proposed products and services of IMedicor and its
affiliates, and includes, without limitation, IMedicor and its affiliates
information concerning research, experimental work, development, design details
and specifications, engineering, financial information, procurement
requirements, purchasing, manufacturing, Direct Medical lists, business
forecasts, sales and merchandising, and marketing plans and
information. "Confidential Information" also includes proprietary
and/or confidential information of any third party that may disclose such
information to Direct Medical in the course of IMedicor’ business. All
Confidential Information disclosed both orally and in writing by the disclosing
party ("Discloser") will be considered Confidential Information by the receiving
party ("Recipient") and subject to terms of this Agreement, even if such
information is not conspicuously designated as "Confidential" or even when
provided orally and not identified as confidential at the time of
disclosure.
B. All
Confidential Information disclosed both orally and in writing by either party
will be considered Confidential Information by Direct Medical and subject to
terms of this Agreement, even if such information is not conspicuously
designated as "Confidential" or even when provided orally and not identified as
confidential at the time of disclosure.
C. Direct
Medical acknowledges that Discloser has over many years devoted substantial
time, effort and resources to developing Discloser’s trade secrets and its other
confidential and proprietary information, as well as Discloser’s relationships
with Direct Medicals, suppliers, employees and others doing business with
Discloser; that such relationships, trade secrets and other information are
vital to the successful conduct of Discloser’ business in the future; that
Discloser, in the furtherance of its business, is providing Recipient with the
opportunity and support necessary to them to establish personal and professional
relationships with Direct Medicals, suppliers, employees and others having
business relationships with Discloser and is affording Recipient access to
Discloser’ trade secrets and other confidential and proprietary information;
that because of the opportunities and support so provided to Recipient and
because of Recipient's access to Discloser’ confidential information and trade
secrets, Recipient would be in a unique position to divert business from
Discloser and to commit irreparable damage to Discloser were Recipient to be
allowed to compete with Discloser or to commit any of the other acts prohibited
by this Section 9 of the Agreement; that the enforcement of the restrictive
covenants against Recipient would not impose any undue burden upon Recipient;
that none of the restrictive covenants is unreasonable as to period or
geographic area; and that the ability to enforce the restrictive covenants
against Recipient is a material inducement to the decision of Discloser to
consummate this Agreement
D.
Recipient hereby agrees that it will not make use of, disseminate, or in any way
disclose any Confidential Information of Discloser to any person, firm, or
business, except to the extent necessary for negotiations, discussions, and
consultations with personnel and/or authorized representatives of Discloser, any
purpose of Discloser authorized by this Agreement and any purpose Discloser may
hereafter authorize in writing. Recipient hereby also agrees that it will use
the Confidential Information disclosed by Recipient for informational purposes
only. Recipient hereby further agrees that it shall not use the Confidential
Information of Recipient in the production and/or the providing of any products
and/or services now or in anytime in the future.
E.
Recipient agrees that it shall treat all Confidential Information of Recipient
with the same degree of care as it accords to its own Confidential Information,
and Recipient represents that it exercises reasonable care to protect its own
Confidential Information.
F.
Recipient hereby agrees that it shall disclose Confidential Information of
Discloser only to those of its officer(s), manager(s), and/or employee(s) who
need to know such information and certifies that such officer(s), manager(s),
and/or employee(s) have previously agreed, either as a condition of employment
or in order to obtain the Confidential Information, to be bound by terms and
conditions substantially similar to those of this Agreement.
G.
Recipient will immediately give notice to Recipient of any unauthorized use or
disclosure of the Confidential Information. Recipient agrees to assist Recipient
in remedying any such unauthorized use or disclosure of the Confidential
Information.
H. Upon
the request of Discloser and/or termination of this Agreement, the Recipient
will promptly return all confidential information furnished hereunder and all
copies thereof.
I.
Remedies. In the event of a breach or a threatened breach of any of the
Provisions and/or Covenants set forth in this Section 9 of the Agreement above
(the ''Covenants''), Discloser will, in addition to the remedies provided by
law, have:
(a) the
right and remedy to have the Covenants specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed that any material breach
of any of the Covenants will cause irreparable injury to Discloser and that
money damages will not provide an adequate remedy to Discloser; and
(b) the
right and remedy to require a person to account for and pay over to Discloser
all compensation, profits, moneys, accruals, increments or other benefits
(collectively the ''Benefits'') derived or received by Recipient as a result of
any transactions constituting a breach of any of the Covenants, and Recipient
hereby agrees to account for and pay over the Benefits to
Discloser.
J. The
obligations of the parties set forth in this paragraph 9 of this Agreement shall
survive the termination of this Agreement.
10.
PUBLICITY
The
Parties agree that all publicity and public announcements concerning the
formation and existence of this Agreement shall be jointly planned and
coordinated by and among the Parties. Neither party shall disclose any of the
specific terms of this Agreement to any third party without the prior written
consent of the other party, which consent shall not be withheld unreasonably.
Notwithstanding the foregoing, any party may disclose information concerning
this Agreement as required by the rules, orders, regulations, subpoenas or
directives of a court, government or governmental agency, after giving prior
notice to the other party.
11.
EFFECT OF TERMINATION
Upon
termination or expiration of this Agreement, all rights granted to the Direct
Medical and IMedicor shall forthwith revert to the granting party.
12. FORCE
MAJEURE
Neither
party will be liable for, or will be considered to be in breach of or default
under this Agreement on account of, any delay or failure to perform as required
by this Agreement as a result of any causes or conditions that are beyond such
Party's reasonable control and that such Party is unable to overcome through the
exercise of commercially reasonable diligence. If any force majeure event
occurs, the affected Party will give prompt written notice to the other Party
and will use commercially reasonable efforts to minimize the impact of the
event.
13.
NOTICES
A. Any
notice required to be given pursuant to this Agreement shall be in writing and
mailed by certified or registered mail, return receipt requested or delivered by
a national overnight express service.
For
IMedicor:
Xxxx Xxxxx, CEO
IMedicor, Inc.
000 Xxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
For the
Direct Medical:
Xxxxxx Xxxxxxxxxxxx, President
Direct Medical Solutions
Corp,
0 Xxxxx Xxx
Xxxx, XX 00000
B. Either
party may change the address to which notice or payment is to be sent by written
notice to the other party pursuant to the provisions of this
paragraph.
14.
JURISDICTION DISPUTES
A. This
Agreement shall be governed by the internal laws State of New York.
B. All
disputes hereunder shall be resolved in the applicable state or federal courts
in County of Rockland in the State of New York. The parties consent to the
jurisdiction of such courts, agree to accept service of process by mail, and
waive any jurisdictional or venue defenses otherwise available.
15.
AGREEMENT BINDING ON SUCCESSORS
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their heirs, administrators, successors and assigns.
16.
WAIVER
No waiver
by either party of any default shall be deemed as a waiver of any prior or
subsequent default of the same or other provisions of this
Agreement.
17.
SEVERABILITY
If any
provision hereof is held invalid or unenforceable by a court of competent
jurisdiction, such invalidity shall not affect the validity or operation of any
other provision and such invalid provision shall be deemed to be severed from
the Agreement.
18.
ASSIGNABILITY
The
license granted hereunder is specific to the Direct Medical and may not be
assigned by any act of the Direct Medical or by operation of law unless with the
written consent of IMedicor.
19.
INTEGRATION
This
Agreement constitutes the entire understanding of the parties, and revokes and
supersedes all prior Agreements between the parties and is intended as a final
expression of their Agreement. It shall not be modified or amended except in a
writing signed by the parties hereto and specifically referring to this
Agreement. This Agreement shall take precedence over any other documents which
may be in conflict therewith.
IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
each executed this agreement on the day indicated.
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Direct
Medical Solutions Corp
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IMedicor,
Inc.
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By: /s/ Xxxxxx
Xxxxxxxxxxxx
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By:
/s/ Xxxx
Xxxxx
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Xxxxxx Xxxxxxxxxxxx, President
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Xxxx Xxxxx, CEO
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