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EXHIBIT 10.11
Legend:
Places in this exhibit where four(4) consecutive asterisks ("****")
appear indicates that a confidential portion of this document has been omitted
in such location. Practice Works has filed a request for confidential treatment
with respect to such information, and such information has been filed separately
with the Securities and Exchange Commission.
E-COMMERCE AGREEMENT
This E-Commerce Agreement ("Agreement"), effective as of November 18,
1999, ("Effective Date") is made by and between Summit Marketing Group, Inc., a
Missouri corporation, with offices at 00000 Xxxxx Xxxxxxxxx, Xxxxx 000, Xx.
Xxxxx, Xxxxxxxx 00000 ("Summit"), and InfoCure Corporation, a Delaware
corporation having its principal offices at 0000 Xxx Xxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 ("InfoCure").
RECITALS
A. The orthodontics division of InfoCure develops and licenses,
among other things, software for use by the orthodontic industry.
B. Summit is in the business of the developing, manufacturing,
marketing, distributing, and selling certain promotional materials.
C. The orthodontics division of InfoCure is in the process of
developing and will market to its customers an inventory control system that
provides for on-line computer entry of orders of supplies for orthodontists.
D. Summit and InfoCure wish to enter into an agreement whereby
orthodontists will have the ability to use the system to order promotional
materials from Summit.
AGREEMENT
In consideration of the mutual promises and covenants and upon the
terms and conditions set forth in this Agreement, the parties agree as follows:
1. DEFINITIONS.
1.1. As used herein, the term "InfoCure System" means the InfoCure
inventory control system products and services for the orthodontic industry that
provides for on-line computer entry for orders of supplies to the orthodontists,
including without limitation, the Orthodontics Promotional Materials, as well as
any manuals or documentation related thereto or improvements, upgrades, and new
releases thereof.
1.2. As used herein, the term "Orthodontics Promotional Materials"
shall mean the promotional materials for orthodontists supplied by Summit
hereunder.
1.3. As used herein, the term "Total Net Sales" shall be the total
dollar amounts actually billed by Summit in a particular calendar quarter for
Orthodontics Promotional Materials ordered by an InfoCure customer using the
InfoCure System to place the order, less any bad debts, returns and allowances,
freight and transportation charges (including insurance), sales, excise, value
added or use taxes, other governmental charges, trade and cash discounts, and
royalties.
2. EXCLUSIVE RIGHT OF PARTICIPATION.
2.1. During the term of this Agreement beginning in the first
quarter of the Year 2000 on a date to be mutually agreed to by the parties,
InfoCure hereby grants to Summit the exclusive right to supply the Orthodontics
Promotional Materials to InfoCure's customers ordering orthodontics promotional
products using the InfoCure System.
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2.2. During the term of this Agreement, Summit shall not enter into
an agreement with another third party under which customers are permitted to
order the Orthodontics Promotional Materials electronically from Summit.
2.3. InfoCure shall not offer any right of participation similar to
the one provided to Summit under Section 2.1 of this Agreement, to any other
company which will offer to any other division of InfoCure certain promotional
materials similar to the promotional materials that Summit offers, unless Summit
shall have been offered in writing the opportunity to participate under the same
general terms and conditions as such company is offered the right to participate
and shall have failed, within 30 days of such written notice, to provide
InfoCure with written notice of its intent to participate upon the same general
terms and conditions as offered by InfoCure to such other company. Summit shall
only be permitted to provide such promotional materials to customers of
InfoCure's other division if a written agreement upon the same general terms and
conditions is entered into by Summit and InfoCure within thirty (30) days of
InfoCure's receipt of notice from Summit.
3. RIGHTS, DUTIES, AND OBLIGATIONS OF THE PARTIES.
3.1. Summit shall assume full responsibility and liability, and
shall assume all cost and expense, with respect to the development, manufacture,
packaging, marketing, sale, warranty service, and maintenance of Orthodontics
Promotional Materials, as well as the assets and resources of Summit utilized in
such activities. Summit agrees that, to the extent that InfoCure needs access to
any of Summit's software in order to implement the InfoCure System, Summit shall
have all rights and licenses necessary to provide InfoCure such access prior to
giving InfoCure such access.
3.2. Summit shall assume full responsibility and liability with
respect to any warranty that it may choose to offer with respect to the
Orthodontics Promotional Materials, including but not limited to any
accommodation offered any customer above and beyond the strict requirements of
its warranty obligations.
3.3. Summit shall indemnify and hold InfoCure harmless from any
actions, suits proceedings, damages, expenses and fees (including any reasonable
attorney fees) which InfoCure incurs as a result of (i) any breach of warranty
or alleged breach of warranty Summit's product, (ii) any failure by Summit to
comply with any applicable laws or regulations, or (iii) any liability to third
parties (including reasonable attorney's fees) for any personal injury, property
damage or economic loss, or claim therefor, including death or other loss, cost
or expense, to the extent caused or alleged to have been caused by Summit's
products (whether sounding in tort, contract, negligence, strict liability, or
any other legal theory), except to the extent that such claim is determined to
be due to the negligence or intentional misconduct of, or a breach of its
obligations under this Agreement by InfoCure.
3.4. Summit agrees that all information concerning the customers
obtained through the InfoCure system shall remain the exclusive property of
InfoCure and Summit shall only use such information for internal purposes
related to this Agreement and shall not use or otherwise distribute such
information for any other purpose.
4. ROYALTIES AND ROYALTY PAYMENTS.
4.1. In each calendar quarter during the Initial Term and each
Renewal Term (as defined in Section 6.3 below), Summit shall pay InfoCure a
royalty for all Orthodontic Promotional Materials invoiced by Summit, in the
calendar quarter, to an InfoCure customer who ordered the Orthodontic
Promotional Materials Summit Product through the use of InfoCure System. The
royalty shall be **** of Total Net Sales.
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4.2. Within fifteen (15) days following the end of each calendar
quarter, Summit shall deliver to InfoCure a written report stating the total
number of Orthodontics Promotional Materials sold by Summit to InfoCure
customers ordering such Orthodontics Promotional Materials through the use of
InfoCure System during the preceding calendar quarter, and the total Net Sales
recognized by Summit during such period.
4.3. The royalties payable to InfoCure for any given calendar
quarter during the Initial Term and any Renewal Term of this Agreement shall be
paid within thirty (30) days following the end of that calendar quarter and
shall be in the form of a check drawn on a United States bank in U.S. dollars
unless otherwise agreed to by the parties.
4.4. Each written report shall be made when due whether or not any
royalty is due.
4.5. Summit shall keep full and true books of its accounts,
invoices, and other records in sufficient detail such that the royalties payable
to InfoCure hereunder can be properly ascertained. The books, records and
invoices for a given calendar year shall be preserved for a period of three (3)
years following the end of such calendar year.
4.6. At the request and expense of InfoCure, Summit shall permit an
independent Certified Public Accountant (except one to whom Summit has a
reasonable objection) to inspect such books, records, invoices and related
journals, accounts, inventory and records necessary or desirable to verify the
accuracy of the royalty reports. The inspections shall take place a maximum of
one (1) time per year, during reasonable business hours and upon reasonable
advance notice. The independent Certified Public Accountant shall be obligated
to execute a written undertaking with respect to such confidentiality prior to
the commencement of inspection. If this examination reveals that Summit has
underreported and/or underpaid royalties hereunder, Summit shall immediately pay
InfoCure any unpaid royalties. If the underpaid royalties exceed five percent
(5%) of the royalties actually paid, then Summit shall also pay InfoCure's
reasonable costs of conducting the examination.
5. XXXXXXXX AND COLLECTIONS.
5.1. All billing and invoicing in connection with the sale of
Orthodontics Promotional Materials shall be the sole responsibility of Summit.
Further, Summit shall have full and sole responsibility for its own collections
and shall exercise complete control over approval of all customer credit,
orders, and contracts.
5.2. InfoCure shall have no responsibility or liability for the
failure of any customer to make payment to Summit for the Orthodontics
Promotional Materials.
5.3. Summit shall be solely responsible for the collection and
payment of all applicable taxes on its products including, without limitation,
any and all sales taxes, use taxes and value-added taxes.
6. TERM AND TERMINATION.
6.1. The initial term of this Agreement shall commence on the
Effective Date and shall end two years later (the "Initial Term").
6.2. Following the end of the Initial Term, this Agreement shall
automatically renew for an additional term of one (1) year (each a "Renewal
Term"), unless terminated earlier by either party by giving sixty (60) days
written notice of termination prior to the end of the then current term.
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6.3. Either party may terminate this Agreement on sixty (60) days
prior written notice to the other party if the party to whom such notice is
given is in material breach of this Agreement and any such breach is not cured
within such sixty (60) day period. The party claiming the right to terminate
under this provision shall set forth in its notice of intent to terminate the
facts underlying its claim that the other party is in material breach of this
Agreement. With respect to defaults not reasonably curable within the sixty (60)
day notice period, the party to whom notice is given shall not be considered to
be in default as a result of such failure, so long as that party is diligently
and expeditiously attempting to cure such default and such default is curable
within a reasonable period of time following the expiration of such sixty (60)
day notice period.
6.4. In the event of any expiration or termination of this
Agreement, all rights and licenses provided hereunder shall immediately
terminate and each party shall return to the other party, its property and
Proprietary Information (and all copies thereof); and such expiration or
termination shall not affect the obligations of either party to the other (i)
accruing prior to the date of termination, or (ii) which expressly extend beyond
the term of this Agreement. Further, any such expiration or termination of the
Agreement shall be without prejudice to any right or remedy to which a party may
be entitled either at law, in equity or under this Agreement. Upon the
expiration or termination of this Agreement, the provisions of this Agreement
concerning the ongoing interests of the parties shall continue and survive in
full force and effect, including without limitation Sections 4, 5, 6.4, 7, 8, 9,
10, 12, 13 and 14.
7. LIMITATION OF LIABILITY. NEITHER PARTY HERETO SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY CONSEQUENTIAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES,
INCLUDING BUT NOT LIMITED TO ANY DAMAGES BASED ON ANY LOSS (OR ANTICIPATED LOSS)
OF INCOME, BUSINESS, SALES, PROFITS OR EARNINGS, OR BASED ON EXPENDITURES,
INVESTMENTS, COSTS, ACTIONS TAKEN OR COMMITMENTS MADE OR ENTERED INTO IN
RELIANCE OF OR IN ANY WAY RELATED TO THE PERFORMANCE OF THIS AGREEMENT OR
RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PERFORMANCE OR
NON-PERFORMANCE OF ANY SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE,
EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH
DAMAGES OCCURRING. IN NO EVENT SHALL INFOCURE'S LIABILITY TO SUMMIT EXCEED THE
ROYALTIES PAID BY SUMMIT TO INFOCURE HEREUNDER. IN NO EVENT SHALL SUMMIT'S
LIABILITY TO INFOCURE EXCEED THE ROYALTIES OWED BY SUMMIT TO INFOCURE HEREUNDER.
8. WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY
MAKES ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE
OTHER PARTY WITH RESPECT TO THEIR PRODUCTS OR ANY SERVICES PROVIDED HEREUNDER OR
OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR
STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE
EXPRESSLY EXCLUDED AND DISCLAIMED. Summit further acknowledges that certain
risks are inherent in the transmission of information over the Internet and that
InfoCure does not warrant that the transactions will be uninterrupted, error
free or impenetrably secure. InfoCure shall have no liability for or relating to
the security, interruption, integrity or accuracy of Summit transaction with the
InfoCure customers hereunder.
9. RELATIONSHIP OF THE PARTIES. In the performance of the work, duties and
obligations under this Agreement, it is mutually understood and agreed that each
party is acting and performing as an independent contractor. Nothing under this
Agreement is intended or shall be construed to create between Summit and
InfoCure an employer-employee relationship, a joint venture relationship, or a
partnership, nor shall this Agreement be construed in any proceedings or for any
purpose whatsoever so as to
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make one party liable to a third person for the debts, faults, or actions of any
other party. Neither party shall withhold or in any way be responsible for the
payment for the other party of any federal, state or local income taxes, F.I.C.A
taxes, Medicare taxes, unemployment compensation, workers' compensation
contributions or benefits, vacation pay, sick leave or any other employment
benefits of any kind. In conformity with this intent, neither party shall have
or exercise any control or direction over the techniques, procedures, or methods
used by the other party in performing under this Agreement. Similarly, neither
party shall have the right, power, or authority to enter into any binding
obligation on behalf of the other at any time or for any purpose.
10. PROPRIETARY INFORMATION, SERVICE MARKS, AND INTELLECTUAL PROPERTY.
10.1. Summit acknowledges that InfoCure has a proprietary interest
in information developed, used, and maintained by InfoCure in regard to the
operation of its business which it considers to be competitively valuable and
sensitive and holds in confidence from others ("Proprietary Information"). This
Proprietary Information includes, but is not limited to, software, policies,
procedures, operating manuals, business practices, forms, operating systems and
information. Summit agrees that any such Proprietary Information is owned by
InfoCure and that it will keep and maintain in strict confidence and will not
use any Proprietary Information of InfoCure known to it. Further, Summit agrees
to undertake all reasonable and appropriate steps to ensure that the
confidentiality and secrecy of any Proprietary Information of InfoCure known to
them is maintained, and that the Proprietary Information of InfoCure will not be
used by others for its benefit or to the detriment of InfoCure. The obligations
under this Section with respect to Proprietary Information that constitutes
trade secrets under applicable law for so long as any such information remains
trade secret and for all other Proprietary Information shall survive for three
(3) years after the termination of this Agreement.
10.2. Each party acknowledges and agrees that all trade names,
trademarks, service marks, and logos of or associated with the business of the
other party are the sole property of that party. The party may use and display
any such trade names, service marks, or logos of the party only in the manner as
authorized by the other party and only during the term of this Agreement. Each
party reserves the right to add to, change, or discontinue the use of any trade
name, trademark, service xxxx, or logo on a selective or general basis at any
time.
10.3. Summit acknowledges that any trademark containing the words
"INFOCURE", "ORTHOTRAC", and all other trademarks, service marks, logos and the
like used by the InfoCure ("InfoCure Marks") shall be the property of InfoCure
and shall cooperate with all efforts of InfoCure necessary to protect InfoCure's
rights in the InfoCure Marks. Summit shall not take any actions that are
inconsistent with the ownership of the InfoCure Marks by InfoCure. Nothing in
this Agreement provides Summit with any right, title, or interest in the
trademark. Summit shall not challenge the title of InfoCure to the InfoCure
Marks and shall take no action to register the InfoCure Marks with the United
States Patent and Trademark Office or any foreign trademark registration office.
10.4. Summit acknowledges and agrees that all right, title and
interest in the InfoCure System, including without limitation all intellectual
property rights included therein, belong to InfoCure.
11. ASSIGNMENT. Except as specifically provided in this Agreement, neither
this Agreement, nor any of the rights or duties under this Agreement, may be
assigned or otherwise conveyed or delegated by either party. Subject to the
limitations of this Section, this Agreement shall apply to and bind the parties
and their respective heirs,
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executors, administrators, successors and assigns. Notwithstanding the
foregoing, InfoCure or Summit may assign this Agreement to one of its
subsidiaries or to any successor entity upon the reorganization, merger,
consolidation, acquisition or other restructuring involving all or substantially
all of the voting securities and/or assets of such party.
12. DISPUTE RESOLUTION. All disputes arising out of or concerning this
Agreement shall be settled by arbitration under the Commercial Arbitration Rules
of the American Arbitration Association. The arbitration hearing shall be held
in Atlanta, Georgia. The arbitration award shall be final and binding upon the
parties, and enforceable by any court of competent jurisdiction.
13. CONFIDENTIALITY. Except as required by law or judicial process or
government agency (including without limitation the Securities and Exchange
Commission), each party shall keep this Agreement and its terms in the strictest
of confidence and its substance may be disclosed only to those of its employees,
agents, and representatives having a need to know any of its contents in
connection with their work; third parties as agreed to by the other party; or as
otherwise required by law.
14. GENERAL PROVISIONS.
14.1. Each party shall, from time to time upon the request of the
other party, execute and deliver any instruments or documents, or undertake any
acts, reasonably necessary to implement or carry out the intent of this
Agreement.
14.2. All notices, requests, demands, instructions or other
communications to be given to any party under this Agreement shall be in writing
and shall be deemed to have been duly given (i) on the date of service if
personally served on the party to whom notice is to be given; (ii) within
twenty-four (24) hours after mailing, if mailed to the party to whom notice is
given, by first class mail which is either registered or certified, postage
prepaid, return receipt requested; (iii) within twenty-four (24) hours after
being deposited with a recognized private courier service (e.g. Federal
Express), if delivered by a private courier service to the party to whom notice
is to be given, all charges prepaid; or (iv) when sent, if given by telex or
telecopy. Any notice, request, demand, instructions or other communication sent
by telex or telecopy must be confirmed within twenty-four (24) hours by letter
mailed or delivered in accordance with this Section. All notices shall be
properly addressed to the party receiving notice as follows:
IF TO INFOCURE TO:
INFOCURE CORPORATION
Orthodontics Division
0000 Xxxxxxxx xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: CEO, Orthodontics Division
IF TO SUMMIT TO:
Summit Marketing Group, Inc.
00000 Xxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: COO, Summit Marketing Group
The addresses for the purposes of this Section may be changed by giving written
notice of such change.
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14.3. Failure to insist upon strict compliance with any of the
terms, covenants and conditions of this Agreement shall not be deemed a waiver
of any such term, covenant or condition. No waiver of any of the provisions of
this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless contained in a writing specifically
referring to this Agreement and executed by the party making the waiver. In
addition, the exercise by a party of any remedy provided for in this Agreement
or at law or in equity shall not permit the exercise by that party of any other
remedy provided for in this Agreement or at law or in equity.
14.4. The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or enforceability of any other
provision. This Agreement shall be construed as if the invalid or unenforceable
provision had never been included, but only as long as the rights, obligations
and duties of a party are not materially altered thereby.
14.5. This Agreement, together with all collateral agreements and
documents referred to in it, constitute the entire agreement between the parties
pertaining to the subject matter contained in this Agreement and supersede all
prior and contemporaneous agreements, representations and understandings,
whether oral or written, of the parties and none shall be available to interpret
or construe this Agreement. No supplement, modification or amendment of this
Agreement, or collateral agreements or documents, shall be binding unless
contained in a writing specifically referring to this Agreement, or the
collateral agreements or documents, and executed by all the parties to this
Agreement.
14.6. The parties agree that this Agreement and performance under
it, and all arbitrations that may ensue from its breach, be construed in
accordance with and under the laws of the State of Georgia without regard to its
conflict of laws, principles, and that, in any arbitration that may be brought
arising out of, in connection with, or by reason of this Agreement, the laws of
the State of Georgia shall be applicable and shall govern to the exclusion of
the law of any other forum and any such action or proceeding shall be brought in
the State of Georgia.
14.7. Each party agrees to be bound by its own telecopied or
facsimiled signature, and that it accepts the telecopied or facsimiled signature
of the other party hereto.
INFOCURE CORPORATION:
Executed on November 18, 1999 By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Its: CEO, Orthodontics Division
SUMMIT MARKETING GROUP, INC.:
Executed on November 12, 1999 By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Its: Chief Operating Officer
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