EXHIBIT 10.8.1
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SALES AND SERVICE AGREEMENT
This Sales and Service Agreement (this "Agreement") is made this 15th day
of July 2002, (the "Effective Date) by and between EssTec Inc. (the
"Consultant") and Crescent Diagnostic Medical Group Inc (the "Customer").
A G R E E M E N T:
1. SERVICES TO BE RENDERED. The Consultant will perform functionality
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development work for the Customer for the system earlier developed by the
Consultant for the Customer. The estimated time of development of these
functionalities are two months.
2. PAYMENT OF FEES. In consideration of the Services, the Customer
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shall pay Consultant, the fees (the "Fees") of $28,000. Fifty percent of the
fees would be due upon signing of this agreement and the balance would be paid
after one month from the date of this agreement
3. OWNERSHIP OF WORK. The ownership of original source codes, design
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templates, workflow charts, artwork, including sketches and any other materials
created in the process of creating the product, shall remain with The
Consultant.
4. INDEMNIFICATION.
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(a) INDEMNIFICATION BY CUSTOMER. The Customer agrees to indemnify,
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defend and hold the Consultant, it's owners and its agents, officers,
directors, lawyers, accountants, and employees, harmless from and against
any and all losses, claims, demands, damages, liabilities, costs and
expenses, including but not limited to reasonable attorneys' fees and the
costs of any legal action arising from Customer's web site(s) or Customer's
use of the Services. Such indemnification shall include, but not be limited
to, claims for libel, slander, infringement of copyright, theft of
misappropriation of intellectual property, or unauthorized use of any
trademark, trade name, or service xxxx.
(b) INDEMNIFICATION BY CONSULTANT. Except as otherwise herein
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provided, the Consultant agrees to indemnify, defend and hold the Customer
and its agents, officers, directors, lawyers, and accountants harmless from
and against any and all losses, claims, demands, damages, liabilities,
costs and expenses, including but not limited to, reasonable attorneys'
fees and costs of any legal action (but excluding consequential damages)
arising from the Consultant's gross negligence in the course of providing
the Services under this agreement. In no event will the Consultant be
liable for lost or damaged data, loss of business, or anticipatory profits,
or any other consequential or incidental damages resulting from the use or
operation of the Services or the maintenance thereof.
5. LIMITATION OF DAMAGES. The Consultant will endeavor to provide high
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quality Services and a high quality Product. However, the Consultant is not,
and will not be responsible for any consequential or incidental damages
resulting from any malfunctioning of Customer's web site resulting form
Consultant's Services, including, but not limited to, any interruptions of
service, or data loss (including lost transactions) regardless of whether such
damages arose from Consultant's negligence. Although the Consultant will
endeavor to safeguard any data provided by the Customer, the Customer agrees
that it is responsible for safeguarding its data, including maintaining backup
data sets.
6. TERMINATION OF AGREEMENT.
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(a) MATERIAL BREACH. If either party is in material breach this
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Agreement, the non-breaching party may serve the breaching party with a written
notice specifying the material breach and requesting the breaching party to cure
it. If the breaching party fails to cure the material breach within ten (10)
days after its receipt of the notice, the non-breaching party may terminate this
Agreement by sending a written notice of termination to the breaching party.
The termination of this Agreement shall take effect immediately on the receipt
of such notice of termination by the breaching party.
(b) TERMINATION ABSENT A BREACH. Neither party shall have the ability
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to unilaterally terminate the Agreement, except as specifically permitted by
provisions of this Agreement. A party specifically granted the ability to
terminate this Agreement for any reason not covered by subsection (a) of this
Paragraph, may exercise this right by sending the other party a written notice
stating that it is terminating the Agreement and citing the specific paragraph
and subparagraph providing the party with the ability to terminate the
Agreement. The termination of this agreement shall take effect thirty (30) days
following the other party's receipt of this notice. This sub-paragraph shall
not apply to any termination arising from a material breach.
(c) EFFECT OF TERMINATION. On any termination of this Agreement
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pursuant to this paragraph, the Consultant may immediately cease providing
Services to the Customer, and neither party shall have any further obligation to
the other under the Agreement, provided that neither party shall be relieved
from any obligations or liabilities arising under the Agreement prior to its
termination.
7. WARRANTIES; LIMITATIONS ON LIABILITY. THE CONSULTANT MAKES NO
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WARRANTY, REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE PROVIDED "AS
IS." THE CONSULTANT DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE. THE
CONSULTANT DOES NOT WARRANT THAT THE SERVICES OR RELATED MATERIALS WILL SATISFY
CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES AND RELATED SERVICES WILL BE
WITHOUT DEFECT OR ERROR.
8. ENTIRE AGREEMENT. This Agreement supersedes all previous agreements
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between the parties, contains the entire understanding between the parties, and
may not be changed, except in writing, duly executed by each of the parties.
9. INDEPENDENT CONTRACTOR. The Consultant is an independent contractor
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relative to the Customer and nothing contained herein shall be deemed to create
a partnership or agency relationship.
10. ASSIGNMENT. This agreement may not be assigned without the express
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written consent of the non-assigning party.
11. NOTICES. All notices required by this Agreement shall be in
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writing and sent by Facsimile, Electronic Mail, Federal Express, or U.S. Mail,
Return Receipt Requested as provided below. Such notice shall be sufficient for
the purposes of this Agreement only if sent to the party's "Address for
Service"as listed below. Such Address for Service may be changed by any party
by serving notice (in compliance with the paragraph) on the other party. No
notice sent by facsimile shall be sufficient without a confirmation receipt. No
notice sent by electronic mail shall be sufficient unless sent to an address
included in the recipient's Address for Service and acknowledged by a
human-generated response.
Consultant's Address for Service:
Address: 0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (562) 867 - 0933
E-mail: xxxxxx@xxxxxx.xxx
Customer's Address for Service:
Address: 0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (714) 254 - 1078
E-mail: xxxxXxxxx@xxx.xxx
12. DISPUTE RESOLUTION. If a dispute or claim shall arise with respect
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to any of the terms or provisions of this Agreement, then either party may, by
notice as herein provided, require that the dispute be submitted under the
Commercial Arbitration Rules of the American Arbitration Association to an
arbitrator in good standing with the American Arbitration Association within
fifteen (15) days after such notice is given. Any such arbitrator so selected
is to be mutually acceptable to both parties. If both parties are unable to
agree upon a single arbitrator, each party shall appoint one (1) arbitrator. If
either party does not appoint an arbitrator within five (5) days after the other
party has given notice of the name of its arbitrator, the single arbitrator
appointed by the party giving notice shall be the sole arbitrator and such
arbitrator's decision shall be binding upon both parties. If two (2)
arbitrators are appointed, these two (2) arbitrators shall appoint a third
arbitrator who shall proceed to resolve the question. The written decision of
the single arbitrator ultimately appointed by or for both parties shall be
binding and conclusive on the parties. Judgment may be entered on such written
decision by the single arbitrator in any court having jurisdiction and the
parties consent to the jurisdiction of Orange County, California for this
purpose. Any arbitration undertaken pursuant to the terms of this section shall
occur in Orange County, California.
13. ATTORNEYS' FEES. In the event of any legal, equitable or
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administrative action or proceeding brought by any party against another party
under this Agreement, the prevailing party shall be entitled to recover the
reasonable fees of its attorneys and any costs incurred in such action or
proceeding including costs of appeal, if any, in such amount that the court or
administrative body having jurisdiction over such action may award.
14. GOVERNING LAW. This Agreement will be construed and enforced in
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accordance with, and governed by, the laws of the State of California in the
United States of America without giving effect to any conflict of laws
principles. The parties hereby consent to the personal jurisdiction of the
courts of the County of Orange, California, and waive any rights to change
venue.
15. CURRENCY DENOMINATIONS. All currency denominations are in United
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States dollars.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
The Consultant
/s/ Xxxxx Xxxxxx
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By: Xxxxx X Xxxxxx
Its: VP Operations
The Customer
/s/ Xxxx Xxxx
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By: Dr. Xxxx Xxxx
Its: President
