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Exhibit 10.4
Order Fulfillment Agreement between 527403 British Columbia Limited
and Registrant dated May 14, 1999.
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ORDER FULFILLMENT AND CUSTOMER SUPPORT AGREEMENT
This Order Fulfillment and Customer Support Agreement (the "Agreement") is
entered into and effective as of May 14, 1999 (the "Effective Date") by and
between 527403 BRITISH COLUMBIA LIMITED., a Canadian corporation ("BC Ltd."),
and DICOM IMAGING SYSTEMS, INC., a Nevada corporation ("Dicom").
WHEREAS Dicom has secured rights to image archiving and retrieval software for
use in dental diagnostic procedures and for other applications;
WHEREAS BC Ltd. is a wholly owned subsidiary of Dicom;
WHEREAS BC Ltd. desires to act and Dicom desires that BC Ltd. act as its
Technical Support Provider for the software;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "Software" means Dicom's imaging archiving and retrieval software
program as described in EXHIBIT A, and any updates, modules or plug-ins
developed by Dicom for the software and provided by Dicom throughout the term of
this Agreement.
1.2 "Field of Dentistry" means the general practice of dentistry and
related subspecialties, including endodontics, periodontics, dental implant
procedures, oral surgery, oral medicine, orthodontics, pediatric dentistry, and
prosthodontics by dental professionals.
2. RIGHTS
This Agreement is solely for the purpose of BC Ltd. fulfilling
customer orders as directed by Dicom and providing customer support as directed
by Dicom ("Customer Service"). BC Ltd. shall have no rights in the Software and
no license in the software. The sole right and obligation that BC Ltd. shall
have shall be to provide the Customer Service. BC Ltd. shall not have the right
to manufacture and make copies of the Software, unless specifically so
authorized by Dicom in writing. BC Ltd. shall have no authority to modify the
packaging of the Software and related XXXX, as defined below, for distribution,
but may make modifications to the Help routines, Set Up and Installation
routines and Splash Screens as required. Except as contained in this Section 3,
no right is granted to BC Ltd. to modify the Software.
2.1 SALES PROHIBITED. While BC Ltd. may engage in marketing and
customer service for Dicom, it is prohibited from selling any Dicom product to
any end user, other than the Customer Support Contracts. All other sales must be
referred to Dicom for processing and completion.
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2.2 END USER LICENSE AGREEMENTS. Dicom will provide the Software to BC
Ltd. with Dicom's form of end user license agreement ("XXXX") for the Software
and BC Ltd. agrees that it will not modify or remove the XXXX. BC Ltd. will
distribute the XXXX with every copy of the Software in a manner in which the end
user is aware of the XXXX and agrees to its terms.
2.3 PROPRIETARY NOTICES. BC Ltd. will not alter or remove any copyright
or trademark notices contained in the Software.
2.4 OWNERSHIP. Dicom reserves and retains all right, title and interest
in Dicom Confidential Information and to the Software, and any related patents,
copyrights, and trademarks and BC Ltd. specifically disclaims ownership thereof.
2.5 RIGHT TO XXX FOR INFRINGEMENT. Dicom reserves the sole right, at
its sole discretion, to xxx third parties for infringing the copyright or any
other intellectual property rights in the Software.
2.6 REVERSE ENGINEERING. BC Ltd. covenants not to decompile, reverse
engineer or otherwise attempt to make derivative software based on the Software
nor to assist any third party to do so.
3. PAYMENTS
3.1 PAYMENTS TO BC LTD. BC Ltd. shall invoice Dicom on a monthly basis
for the Customer Support provided under this Agreement (the "BC Ltd. Fee").
Dicom agrees to pay the BC Ltd. Fee promptly upon receipt, subject to
verification. The BC Ltd. Fee shall be equal to $399 per Customer Service
Contract sold and administered through BC Ltd. BC Ltd. shall bear its own
expenses, though Dicom may advance such expenses as a credit against future BC
Ltd. Fees.
3.2 ACCOUNTING AND INSPECTION. Dicom is hereby granted the right to
make an inspection of all accounts, books, invoices and records of BC Ltd. to
determine if payments are properly due under Section 4.1 hereof and to verify
any BC Ltd. Fee.
4. CONFIDENTIALITY
4.1 Each party expressly undertakes to retain in confidence and to
require all contractors to retain in confidence all information and know-how
transmitted to such party that the disclosing party has identified as being
proprietary and/or confidential or which, by the nature of the circumstances
surrounding the disclosure, ought in good faith to be treated as proprietary
and/or confidential. Without limiting the foregoing, all terms and conditions of
this Agreement shall be considered confidential and shall not be disclosed
(except to either party's attorneys and accountants on a need-to-know-basis)
without prior written consent of the other party. The receiving party's
obligation hereunder shall extend for five (5) years following the disclosure of
the Confidential Information.
4.2 EXCLUSIONS. Confidential information shall not include any
information that: (i) is at the time of disclosure or subsequently becomes
available without the receiving party's breach of any obligations owed the
disclosing party; (ii) became known to the receiving party prior to the
disclosing party's disclosure of such information to the receiving party; (iii)
became known to the receiving party from a source other than the disclosing
party other than by the breach of an obligation of confidentiality owed to the
disclosing party; or (iv) is independently developed by the receiving party.
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5. WARRANTIES
5.1 Dicom warrants and represents that:
5.1.1 It has the full power to enter into this Agreement and
make the assignments and license rights set forth herein;
5.1.2 The Software does not knowingly infringe any patent held
by any third party;
5.1.3 EXCEPT FOR THOSE WARRANTIES PROVIDED IN THIS SECTION
6.1, DICOM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
SOFTWARE. BC LTD. EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 BC Ltd. warrants and represents that:
5.2.1 It has the full power to enter into this Agreement; and
5.2.2 It will not use, display, perform, reproduce, publish,
license, transmit or otherwise distribute the Software in a field other
than in accordance with this Agreement
5.2.3 It, nor any of its employees or agents, will make any
warranties or promises regarding the use of the Software other than
those contained in the XXXX.
6. INDEMNITY
6.1 Dicom agrees to indemnify, defend, and hold BC Ltd. and its
successors, officers, directors and employees harmless from any and all actions,
causes of action, claims, demands, costs, liabilities, expenses and damages,
including attorneys' fees, (not including internal employee's wages) arising out
of, or in connection with any claim arising out of Dicom's breach of any
representation, warranty or covenant contained in this Agreement or any claim
arising out of any distribution of the Software.
6.2 BC Ltd. agrees to indemnify, defend, and hold Dicom and its
successors, officers, directors and employees harmless from any and all actions,
causes of action, claims, demands, costs, liabilities, expenses and damages,
including attorneys' fees, (not including internal employee's wages) arising out
of, or in connection with any claim arising out of Image Solution's breach of
any representation, warranty or covenant contained in this Agreement.
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7. TERM AND TERMINATION
7.1 TERMINATION. Except as otherwise provided in this Section 8.1, this
Agreement shall continue in effect until Dicom tenders written notice to BC Ltd.
of its desire to cancel this Agreement ("Termination Notice") which notice shall
be immediately effective upon receipt. BC Ltd. has no right to terminate this
Agreement. In the event of a Termination Notice, BC Ltd. agrees to immediately
return any property of Dicom, including all copies of the Software and materials
related thereto. BC Ltd. shall immediately cease and desist from all Customer
Support upon receipt of a Termination Notice, or continue only for such period
as provided in the Termination Notice.
7.2 EFFECT OF TERMINATION.
7.2.1 In the event of termination of this Agreement for any
reason, Dicom shall pay to BC Ltd. any unpaid or unbilled BC Ltd. Fees
incurred through the term of this Agreement. Sections 5, 6, 7, 8, 9 and
10 will survive the termination of this Agreement.
7.2.2 Upon termination of this Agreement, each party shall
promptly return to the other party (or destroy upon receipt of such
party's written instruction) all copies of any confidential information
of the other party then in its possession, custody or control,
regardless of medium, pursuant to Section 8.1 above.
8. LIMITATION OF LIABILITIES
EXCEPT FOR BREACHES OF SECTIONS 5 AND 7, NEITHER PARTY IS LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. GENERAL
9.1 NOTICES. All notices and requests in connection with this Agreement
are to be deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage prepaid,
certified or registered, return receipt requested, and addressed as follows:
To BC Ltd.: To Dicom:
527403 BC Ltd. Dicom Imaging Systems, Inc.
Attention: General Manager Attention: Xx. Xxxxx Xxxx
00000 Xxxxxx Xx., Xxxxx 000 0000 X. Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX Xxxxxx X0X0X0 Xxx Xxxxx, XX 00000
With a copy to: With a copy to:
Xxxx X. Xxxxxx, Esq. Xxxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx & Xxxxx LLP 0000 Xxxxxx Xx., Xxxxx 0
000 Xxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, Xxxxxxxxxx 94118
Xxxxxxx, Xxxxxxxxxx 00000 Tel: (000) 000-0000
Tel: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
or to such other address as a party may designate pursuant to this notice
provision.
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9.2 INDEPENDENT CONTRACTORS. BC Ltd. and Dicom are independent
contractors of each other, and nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, or a joint venture
between the parties.
9.3 GOVERNING LAW. This Agreement is to be governed by the laws of the
State of Nevada as though entered into between Nevada residents and to be
performed entirely within the State of Nevada, and each party consents to
jurisdiction and venue in the state and federal courts sitting in the State of
Nevada. In any action or suit to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
shall be entitled to recover its costs, including reasonable attorneys' fees.
9.4 NO ASSIGNMENT. This Agreement is binding upon and inures to the
benefit of each party's respective successors and lawful assigns; provided,
however, that that this Agreement may not be assigned, in whole or in part,
without the prior written approval of both parties.
9.5 MODIFICATIONS AND WAIVERS. No purported amendment, modification or
waiver of any provision of this Agreement is binding unless set forth in a
written document signed by all parties (in the case of amendments and
modifications) or by the party to be charged (in the case of waivers). Any
waiver is limited to the circumstance or event specifically referenced in the
written waiver document and is not to be deemed a waiver of any other term or
provision of this Agreement or of the same circumstance or event upon any
recurrence of the waived activity.
9.6 CONSTRUCTION. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of this
Agreement will continue in full force and effect. Failure by either party to
enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has been negotiated
by the parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party.
9.7 ENTIRE AGREEMENT. This Agreement does not constitute an offer by
Dicom and it is not effective until signed by both parties. This Agreement
constitutes the entire agreement between the parties with respect to the
Software and all other subject matter hereof and merges all prior and
contemporaneous communications.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
DICOM BC LTD.
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Dicom Imaging Systems, Inc. 527403 British Columbia Limited
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By (Sign) By (Sign)
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Name (Print) Name (Print)
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Title Title
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Date Date
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EXHIBIT A
DESCRIPTION OF SOFTWARE
THE CORE PRODUCT, (IMAGE EXPLORER) IS A DICOM COMPLIANT WINDOWS BASED 32 BIT
DENTAL IMAGE ARCHIVING SOFTWARE THAT CAPTURES IMAGES FROM A VARIETY OF SOURCES
SUCH AS DIGITAL CAMERAS, INTRA ORAL CAMERAS, DIGITAL X-RAY, E-MAIL, INTERNET
TRANSFERS, OPERATING MICROSCOPES OR ANY XXXXX COMPLIANT DEVICE, AND THEN STORES
THEM IN A LOGICAL, EASY TO USE ELECTRONIC FILE CABINET SUCH THAT THE IMAGES CAN
BE ACCESSED IN THE PATIENT FILE FOR REVIEW, COMPARISON, PRINTING, AND
COMMUNICATION. THERE ARE OTHER MODULES OR PLUG-INS THAT WE HAVE DESIGNED TO
ENHANCE THE ABILITY OF THE IMAGE EXPLORER SOFTWARE PROGRAM. THEY ARE AS FOLLOWS:
IMAGE EDITOR: ALLOWS THE USER TO ENHANCE THE CAPTURED IMAGES WITHOUT ALTERING
THE IMAGE FROM ITS ORIGINAL STATE. THIS MAY INCLUDE SUCH ACTIONS AS COLOR
ENHANCEMENT, SHARPEN, SOFTEN, CROPPING, ROTATING AND FLIPPING TO NAME A FEW.
LAB R/X: A LAB MODULE THAT OPTIMIZES COMMUNICATION BETWEEN THE DENTIST AND THE
LABORATORY TECHNICIAN ESPECIALLY WITH RESPECT TO ESTHETIC RESTORATIONS, VISUALLY
PRESCRIBING PORCELAIN PROCEDURES TO BE PERFORMED BY THE LAB. IT PROVIDES THE LAB
TECHNICIAN ALL THE INFORMATION NECESSARY TO CREATE A QUALITY PRODUCT FOR THE
DENTIST AND PATIENT IN AN ACCURATE AND CONCISE MANNER. LAB R/X GENERATES AN
ENHANCED ELECTRONIC PRESCRIPTION AS EITHER A PRINT REPORT OR AN ELECTRONIC FILE.
LAB R/X ALSO PROVIDES THE INTERFACE FOR THE NEW "DENTAL COLOR ANALYZER." THIS
UNIT ENABLES THE DENTIST AND HE LAB TO ACCURATELY COLOR MAP TEETH TO THE CURRENT
SHADE GUIDES. LAB R/X ALSO GIVES THE DENTIST THE ABILITY TO COLOR MAP THE TEETH
MANUALLY THROUGH THE USE OF A DROP DOWN TABLE THAT HARBORS THE CURRENT TABLES OF
THE SHADE GUIDES.
DIGITAL X-RAY: AN X-RAY MODULE THAT ALLOWS THE DENTIST TO ACQUIRE X-RAY IMAGES
OF THE PATIENT INTO IMAGE EXPLORER VIA DIRECT ACQUISITION OR BY FILM SCANNING
DEVICES. THE RADIOGRAPHIC IMAGING TOOLS ALLOWS THE DENTIST TO ENHANCE THE
RADIOGRAPH FOR IMPROVED DIAGNOSIS, MEASURE AREAS OF HE RADIOGRAPH, ATTACH
DIAGNOSIS NOTES, AND COMMUNICATE WITH COLLEAGUES VIA PRINT OR MODEM. IF THE
DENTIST ALREADY HAS A DIGITAL X-RAY SYSTEM, IMAGE EXPLORER WILL ALLOW THE USER
TO VIEW, ENHANCE, PRINT AND COMMUNICATE THOSE EXISTING IMAGES USING THE
DENTISTRY WIDE STANDARD INTERFACE.
XXXXXXXX: XXXXXXXX IS AN ADDITIONAL ADD-ON MODULE TO IMAGE EXPLORER. XXXXXXXX IS
A VERY EASY TO USE MODULE WHICH QUICKLY IDENTIFIES THE TEETH IN AN IMAGE AND
LIGHTENS THEM TO SIMULATE A BLEACHING SIMULATION. TOOTH WHITENING OR BLEACHING
IS ONE OF THE FASTEST GROWING PROCEDURES IN DENTISTRY AND THIS MODULE ALLOWS THE
PATIENT TO SEE WHAT THEY CAN LOOK LIKE BEFORE COMMITTING TO THE PROCEDURE.
IMAGE ENHANCER: IMAGE ENHANCER'S IMAGE MANIPULATION TOOLS SHOW THE PATIENT WHAT
HE OR SHE COULD LOOK LIKE WITH AN ALTERATION TO THEIR SMILE BEFORE COMMITTING TO
THE ACTUAL DENTISTRY. THE DENTIST CAN THEN SEND THE PATIENT'S IMAGE TO THE
LABORATORY ALONG WITH THE PRESCRIPTION SO THE TECHNICIANS MAKING THE RESTORATION
WILL BE ABLE TO VIEW THE PROPOSED CHANGES. THIS REDUCES REMAKES AND PROVIDES A
COMPLETE COMMUNICATION LINK BETWEEN THE PATIENT, DENTIST AND LABORATORY. WITH
IMAGE ENHANCER, THE DENTIST CAN SIMULATE A COMPLETE RANGE OF DENTAL PROCEDURES,
INCLUDING BLEACHING, BONDING, VENEERS, IMPLANTS, AMALGAM REPLACEMENT AND
ORTHODONTICS.
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