EXHIBIT 10
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MARKETING, DISTRIBUTION AND LICENSE AGREEMENT
BY AND AMONG
CYBERCARE, INC., A GEORGIA CORPORATION, NOW KNOWN AS
CYBERCARE TECHNOLOGIES, INC.,
CYBERCARE INTERNATIONAL (B.V.I.), LTD.,
AND
CYBERAMERICARE, INC. A DELAWARE CORPORATION
October 11, 2001
This MARKETING, DISTRIBUTION AND LICENSE AGREEMENT (the "AGREEMENT") is made as
of the 11th day of October, 2001 ("EFFECTIVE DATE"), by and among CyberCare
Technologies, Inc., a corporation organized and existing under the laws of the
State of Georgia, formerly known as CyberCare, Inc., with its principal offices
at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 ("CYBERCARE"),
CyberCare International (B.V.I.) Limited, a corporation organized and existing
under the laws of the British Virgin Islands, with its principal offices located
at Romasco Place, Wickhams Cay 1, Road Town, Tortola, British Virgin Islands,
together with its affiliates, successors and assigns ("INTERNATIONAL"), and
CyberAmeriCare, Inc., a corporation organized and existing under the laws of
Delaware, with its principal offices at 000 Xxxxx Xxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000 ("AMERICARE").
RECITALS
WHEREAS, CYBERCARE and INTERNATIONAL, by virtue of, among other things, a
license agreement by and between Cybercare, Inc. (now known as CYBERCARE), and
Georgia Tech Research Corporation ("GTRC") dated December 16, 1997, as amended
by the First Amendment to License Agreement dated June 1, 1999 and as amended by
that certain Addendum to License Agreement dated May 15, 2001 and an Assignment
Agreement by and among CYBERCARE, INTERNATIONAL and GTRC, dated May 15, 2001
(collectively the "GTRC LICENSE AGREEMENT", said GTRC License Agreement being
attached hereto and made a part hereof as APPENDIX 1), have an exclusive
license, with a right to sub-license, to make, have made, sell and use the
System Units, the Caregiver Terminals and the Service (as defined below), as
well as Know-How (as defined below) associated with the deployment and operation
of the System Units, the Caregiver Terminals and the Service;
WHEREAS, CYBERCARE, and its Affiliates (as defined below) have developed
and commercialized an Internet based technology for the remote monitoring of
individuals for medical diagnostic and related purposes (the "SYSTEM") that
features several multifunctional System Units (as defined below) and Caregiver
Terminals (as defined below) that utilize the Network (as defined below); and
WHEREAS, pursuant to the terms of the Assignment, which terms amend the
terms of Article 28.1 of the GTRC License Agreement, CYBERCARE and
INTERNATIONAL, as to the United States and the "Territory" (as defined in the
Assignment), respectively, have the right to assign said license rights;
WHEREAS, CyberCare, Inc., a corporation organized and existing under the
laws of the State of Florida, as the parent company of CYBERCARE, and Xxxx Xxxxx
(the "PRINCIPAL OFFICER") have entered into a Letter of Intent, dated as of
August 29, 2001 (as amended, modified or supplemented from time to time, the
"LOI"), which sets forth, among other things, the intentions of CYBERCARE to
grant exclusive rights to AMERICARE for the purpose of marketing and
distributing the System Units and the Caregiver Terminals, deploying the Network
in the Territory and providing the Service in the Territory (as herein defined)
subject to the achievement of the Minimum Performance Obligations (set forth
herein) on the part of AMERICARE with respect to the Territory;
WHEREAS, AMERICARE is a party to that certain Shareholder Agreement (as
amended, modified or supplemented from time to time, the "SHAREHOLDER
AGREEMENT") pursuant to which CYBERCARE, when executed by CYBERCARE shall
receive an equity interest in AMERICARE as partial consideration for the
Geographic Exclusivity,
WHEREAS, CYBERCARE has agreed to host the Network for and on behalf of
AMERICARE which shall include: (1) a server farm (including applications,
databases and associated software) and (2) infrastructure permitting private
communication between the Systems Units and the server farm constituting a
"virtual private network" for the operation of the System Units, the Caregiver
Terminals with the Service; and, in connection with the execution of this
Agreement, the parties hereto will enter into a network agreement (the "NETWORK
AGREEMENT"), within ninety (90) days of the execution of the Network Agreement
with AMERICARE providing for, among other things, the collection of all fees
payable in connection with access by End Users of the Network; and
WHEREAS, AMERICARE wishes to obtain the exclusive rights and licenses to
the System Units, Caregiver Terminals and Network held by CYBERCARE and all
rights held by INTERNATIONAL pursuant to the GTRC License Agreement, and has
agreed to be the assignee of same, in order to permit it to have the exclusive
rights to market, distribute, install, support, and maintain (other than as to
issues concerning Network connectivity which shall be the responsibility of
CYBERCARE) the System Units, the Caregiver Terminals, the Network and the
Service in the Territory.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and conditions herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS. The foregoing Recitals are incorporated in this
Agreement to the same extent and with the same effect as if fully set forth
herein.
2. DEFINITIONS. For the purpose of construing the rights and obligations of the
parties hereto under the terms and conditions of this Agreement, the following
terms will have the meaning specified and shall be equally applicable to both
singular and plural forms. The words "including," "include" and "includes" shall
each be deemed to be followed by the term "without limitation." Unless otherwise
stated, references to recitals, articles, sections, paragraphs, schedules and
exhibits shall be references to recitals, articles, sections, paragraphs,
schedules and exhibits of this Agreement.
"AFFILIATE" means any corporation or other legal entity that directly or
indirectly controls, is controlled by, or is under common control with,
CYBERCARE, INTERNATIONAL or AMERICARE. For purposes of this definition,
"control" means the power, whether or not normally exercised, to direct the
management and affairs of another corporation or other legal entity, directly or
indirectly, through the ownership of voting securities, by contract, or by some
other means. The parties hereto agree that in the case of a corporation, the
direct or indirect ownership of fifty percent (50%) or more of its outstanding
voting shares will be considered sufficient to confer control for the purposes
of this Agreement.
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"AGREEMENT" shall have the meaning as set forth in the introductory
paragraph.
"AMERICARE SUPPORT SERVICES" shall have the meaning set forth in
SECTION. 16.
"AVAILABILITY DATE" shall have the meaning set forth in SECTION 9.1.1.
"CAREGIVER AGREEMENT" shall have the meaning set forth in SECTION 5.1.6.
"CAREGIVER TERMINAL" means the terminals that are used by Healthcare
Providers including the Caregiver Terminal Software and any other related
products and improvements that may be developed for use with the Service.
"CAREGIVER TERMINAL SOFTWARE" means the software set forth on EXHIBIT D
under the heading Caregiver Terminal Software including, updates, modifications,
new releases, "bug" fixes and its associated documentation as updated or
modified from time to time.
"CHANGE ORDER" shall have the meaning set forth in Section 13.1.2.
"DISCLOSING PARTY" shall have the meaning set forth in Section 15.1.
"EFFECTIVE DATE" shall have the meaning set forth in the introductory
paragraph.
"END USER AGREEMENT" shall have the meaning set forth in Section 5.1.5.
"END USERS" means any person who operates or interacts with a System Unit.
"ESCROW MATERIAL" means hardware and software design documentation, the
human readable form of the System Unit Software, Caregiver Terminal Software,
Network, and related system documentation, technical manuals, maintenance tools,
test programs, specifications including all comments and procedural code such as
job control language, programmer names, and the description of the hardware and
software required for the use and support of the Service that CYBERCARE or
INTERNATIONAL do not possess or have the rights to sublicense.
"FIRST COMMERCIAL OPERATION OF THE SERVICE " shall mean the first time at
which live data is transmitted by any System Unit or Caregiver Terminal sold by
AMERICARE in the Territory over the Network and, for the avoidance of doubt,
this shall not include demonstrations of the System Units, the Caregiver
Terminals or the Service.
"GEOGRAPHIC EXCLUSIVITY FEE" shall have the meaning set forth in SECTION
11.1.
"HEALTHCARE PROVIDER" means any individual, public and private
organizations, hospitals, clinics, or other similar entities facilities or
persons providing health care services now or in the future.
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"IMPROVEMENTS" shall have the meaning set forth in SECTION 13.1.
"INCLUDED NON-NETWORK PRODUCTS AND SERVICES" shall have the meaning set
forth in SECTION 6.9.
"INDEMNITEE" shall have the meaning set forth in SECTION 20.3.
"INDEMNITOR" shall have the meaning set forth in SECTION 20.3.
"INFRINGEMENT CLAIM" shall have the meaning set forth in SECTION 20.2.
"INTELLECTUAL PROPERTY" shall have the meaning set forth in SECTION 20.2.
"INTELLECTUAL PROPERTY PROTECTION" shall have the meaning set forth in
SECTION 13.5.
"KNOW-HOW" shall have the meaning set forth in SECTION 8.1.
"LICENSED MARKS" shall have the meaning set forth in SECTION 7.1.
"MINIMUM PERFORMANCE OBLIGATIONS" shall have the meaning set forth in
SECTION 9.1.
"NETWORK" means the processing software and database as updated or
modified from time to time used to process and store information such received
from the System Units and Caregiver Terminals and to make routing decisions
regarding such information, and the communication lines that link the database
to outside facilities.
"NETWORK CONNECTIVITY" means the continuous and reliable functionality of
the Network itself, and those issues, actions, costs and decisions directly
related to the operation, maintenance and reliability of the Network and it's
ongoing connectivity during the Term of this Agreement.
"NETWORK AGREEMENT" shall have the meaning set forth in the Recitals.
"OPERATING LICENSE" shall have the meaning set forth in SECTION 3.1.
"PATENT LICENSE" shall have the meaning set forth in SECTION 4.1.
"PATENTS" means the issued patents and patent applications specified on
EXHIBIT A and any re-examinations or reissues thereof, including future patents
owned or controlled by CYBERCARE and/or International that issue after the
Effective Date that cover the System Units, Caregiver Terminals, Network or
Service.
"RECEIVING PARTY" has the meaning set forth in SECTION 15.1.
"RESERVED PERIOD" has the meaning set forth in SECTION 3.3.
"ROYALTY" shall have the meaning set forth in SECTION 12.1.
"SERVICE" means the remote monitoring of health parameters for End Users.
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"SLA" shall have the meaning set forth in SECTION 6.10.
"STATEMENT OF WORK" shall have the meaning set forth in SECTION 13.1.1.
"SYSTEM UNIT" means the units that are used by End Users including the
System Unit Software and any other related products and improvements that may be
developed for use of the Services.
"SYSTEM UNIT SOFTWARE" means the software set forth on EXHIBIT D under the
heading System Unit Software including updates, modifications, new releases,
"bug" fixes and its associated documentation, and all intellectual property
rights therein.
"TERM" shall have the meaning set forth in SECTION 21.
"TERRITORY" means the United States, including its possessions and
territories, Central and South America, Canada, Mexico, but shall exclude Puerto
Rico and the Caribbean Islands, and such other countries or geographic
territories as the parties may from time to time mutually agree upon, and as set
forth in this Agreement, as amended, modified or supplemented from time to time.
"TRANSFER COST" means an amount equivalent to the lesser of (i) a fair
market valued competitive fixed per unit price at which CYBERCARE, INTERNATIONAL
or any third party vendor, as applicable, sells each System Unit or Caregiver
Terminal or (ii) the direct per unit cost associated with the manufacture
(without allocation of any indirect expenses) of the System Units or Caregiver
Terminals plus twenty percent (20%). The calculation and determination of the
Transfer Cost applicable to this Agreement shall be reviewed by the parties no
less frequently than on an annual basis.
3. APPOINTMENT OF AMERICARE AS DISTRIBUTOR.
3.1. Subject to the terms and conditions of, and during the Term of this
Agreement, CYBERCARE and INTERNATIONAL hereby appoint, and AMERICARE
hereby accepts such appointment and a personal, exclusive license to (a)
use, market, distribute, install, support and maintain the System Units,
the Caregiver Terminals, the Network and the Service; and (b) market,
demonstrate and distribute the System Units and Caregiver Terminals and
the Network in the Territory (the "OPERATING LICENSE"). The Operating
License shall be sub-licensable by AMERICARE to third parties in the
Territory, with the consent of CYBERCARE or INTERNATIONAL, which consent
shall not be unreasonably withheld, following five (5) business days prior
written notice to CYBERCARE and INTERNATIONAL of such sub-license.
AMERICARE shall distribute the System Units and Caregiver Terminals in the
unaltered form received from CYBERCARE, INTERNATIONAL or any third party
manufacturer, provided, HOWEVER AMERICARE shall have the right to private
label the System Units, Caregiver Terminals and the Service with its or
another entities trademarks, logos, and trade dress, subject to approval
by CYBERCARE which shall not be unreasonably withheld.
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3.2. Each party further covenants that it shall use its best efforts to
ensure that it complies with each of its responsibilities and obligations
under this Agreement.
3.3 Notwithstanding the rights granted in SECTIONS 3.1, 4, 5 and 7,
CYBERCARE reserves the right to market, distribute, install, support and
maintain the System Units, Caregiver Terminals and the Service to the
entities set forth on SCHEDULE 3.3 for six (6) months following the
Effective Date (the "Reserved Period"), or for such periods and pursuant
to such additional terms as are set forth in SCHEDULE 3.3. Except as
specifically set forth on SCHEDULE 3.3, if CYBERCARE does not execute a
definitive agreement with an entity set forth on SCHEDULE 3.3 for the use,
installation, support and maintenance of the System Units, Caregiver
Terminal and the Service during the Reserved Period, then CYBERCARE hereby
automatically grants to AMERICARE the exclusive right to market,
distribute, install, support and maintain the System Units, Caregiver
Terminals and the Service to such entities. Further, if CYBERCARE desires
to relinquish the exclusive rights it has reserved under this SECTION 3.3
or the Schedule hereunder, CYBERCARE shall promptly notify AMERICARE of
such decision and automatically, without any action required by AMERICARE,
assign such exclusive rights to AMERICARE. CYBERCARE further agrees to
assign to AMERICARE its rights pursuant to any agreements entered into
between CYBERCARE and those resellers as described in SCHEDULE 3.3.
3.4 Upon execution of this Agreement, CYBERCARE and INTERNATIONAL shall deliver
to AMERICARE all of CYBERCARE's and INTERNATIONAL's customer lists, marketing
and sales leads, sales contacts, suppliers and marketing prospects in the
Territory. Except for the exclusive rights reserved in SECTION 3.3, CYBERCARE
and INTERNATIONAL shall, and instruct its personnel to, upon the date that
AMERICARE secures funding in accordance with SECTION 11, promptly cease
marketing, selling, distributing, licensing or promoting the System Units,
Caregiver Terminals, Service and any other related products and services in the
Territory. In addition, CYBERCARE and INTERNATIONAL shall make their facilities
and existing clients (subject to such client's approval) available to AMERICARE
for the purpose of providing AMERICARE's potential customers and/or investors
with a demonstration of the Service.
3.5 Within ten (10) days from the Effective Date, CYBERCARE shall assist
AMERICARE in obtaining a "back-up" license from Georgia Tech Research
Corporation granting to AMERICARE the same rights granted to CYBERCARE
under the GTRC License Agreement.
4. PATENT LICENSE.
4.1. CYBERCARE and INTERNATIONAL grant to AMERICARE and AMERICARE accepts
from CYBERCARE and INTERNATIONAL during the Term of the Agreement, an
exclusive, non-revocable, personal, sub-license to (a) practice the
inventions covered by the claims of the Patents, (b) make, have made, use,
improve, license, market and distribute the System Units, the Caregiver
Terminals, Network,
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Service and each of their associated components and to (c) practice any
claimed process method or procedure covered by the Patents, in each case,
in the Territory (the "PATENT LICENSE"). The Patent License shall be
sub-licensable by AMERICARE in the Territory with the consent of CYBERCARE
or INTERNATIONAL, the consent of which shall not be unreasonably withheld,
following five (5) business days prior written notice to CYBERCARE and
INTERNATIONAL of such sub-license.
4.2. The Patent License grants no license or rights under any other patent
owned by CYBERCARE or INTERNATIONAL, as applicable that are unrelated to
the System Units, Caregiver Terminals, Network or the Service, unless
otherwise agreed in writing by CYBERCARE or INTERNATIONAL.
4.3. Subject to AMERICARE's right to private label set forth in SECTION
3.1, AMERICARE agrees to ensure that all of the components associated with
the System Units and the Caregiver Terminals as well as literature and
marketing materials sold, offered and/or distributed by AMERICARE shall be
marked in a noticeable location with the appropriate patent notice as
provided by CYBERCARE or INTERNATIONAL to AMERICARE from time to time.
5. SOFTWARE LICENSE; OWNERSHIP.
5.1. Subject to the terms and conditions of this Agreement during the Term
CYBERCARE and INTERNATIONAL hereby grant to AMERICARE an exclusive,
non-revocable license in the Territory:
5.1.1. to use, distribute, support, maintain and reproduce the
executable code versions of the System Unit Software (or
translations or localizations thereof) and any documentation
associated therewith; and
5.1.2. to use, distribute, support, maintain and reproduce the
executable code versions of the Caregiver Terminal Software (or
translations or localizations thereof) and any documentation
associated therewith; and
5.1.3. to prepare and have prepared, subject expressly to the
confidentiality provisions herein with respect to any third party
preparer translations and localizations of the System Unit Software
and the Caregiver Terminal Software and documentation associated
therewith in accordance with SECTIONS 12.1 and 12.3 hereof; and
5.1.4 to use, distribute, support, and maintain the Network; and
5.1.5 to sublicense the System Unit Software to End Users pursuant
to the End User Agreement set forth on Schedule 5.1.5 (the "END USER
AGREEMENT"); and
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5.1.6. to Sublicense the Caregiver Terminal Software pursuant to the
Caregiver Agreement set forth on Schedule 5.1.6 (the "CAREGIVER
AGREEMENT").
5.2. As between CYBERCARE and INTERNATIONAL on the one hand and AMERICARE
on the other, ownership of all applicable copyrights, trade secrets,
patents and other intellectual property rights associated with the System
Units, the Caregiver Terminals, the Network and the Service and all
documentation related thereto shall remain vested in CYBERCARE, or, to the
extent applicable, in the licensor(s) of CYBERCARE. AMERICARE shall not
remove any patent, trademark or copyright notices, restricted rights
legends or any other notices from the System or any of its components or
any associated documentation belonging to CYBERCARE.
5.3 AMERICARE shall only distribute the System Unit Software and Caregiver
Terminal Software in sealed packages as delivered by CYBERCARE, in a
pre-installed form residing on storage media embodied in the System Units
and Caregiver Terminal hardware, remotely over the Network, or over the
Internet, PROVIDED HOWEVER, if distributed over the Internet, AMERICARE
shall obtain the prior written approval of CYBERCARE, which approval shall
not be unreasonably withheld or delayed. The System Units shall in all
cases be accompanied by the End User Agreement. The End User Agreement
shall be provided to such End Users in a form that provides for adequate
acceptance of the same by the End User in each jurisdiction where
AMERICARE offers the Service. AMERICARE shall make no representations to
End Users or other third parties regarding the function or operating
characteristics of the System Units or the Service except as set forth in
the End User Agreement or the System Unit or its documentation. The
Caregiver Terminals shall in all cases be accompanied by a Caregiver
Agreement. The Caregiver Agreement shall be provided to such Healthcare
Providers in a form that provides for adequate acceptance of the same by
the Healthcare Providers in each jurisdiction where AMERICARE offers the
Service. AMERICARE shall make no representations to Healthcare providers
or other third parties regarding the function or operating characteristics
of the Caregiver Terminals except as set forth in the Healthcare Provider
Agreement or its documentation.
6. MANUFACTURE, PURCHASE AND RESALE OF SYSTEM UNITS; NETWORK OPERATION AND
CONTROL.
6.1. CYBERCARE shall manufacture, test and deliver the System Units and
Caregiver Terminals to AMERICARE (or to other persons as AMERICARE might
otherwise direct) in accordance with the specifications set forth on
SCHEDULE 6.1 as such schedule may be modified from time to time in
accordance with purchase orders provided by AMERICARE or its licensees.
CYBERCARE shall establish quality control procedures reasonably
satisfactory to AMERICARE during assembly, testing, packaging and shipping
of the System Units and Caregiver Terminals. CYBERCARE shall not
subcontract the manufacture of the System Units or Caregiver Terminals
without the prior written consent of AMERICARE, which consent shall not be
unreasonably withheld or delayed.
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6.2. AMERICARE hereby agrees that, during the term of this Agreement, it
shall purchase System Units and Caregiver Terminals from CYBERCARE or a
third party mutually agreed to by CYBERCARE and AMERICARE. AMERICARE
hereby agrees to use its commercially reasonable efforts to sell and
distribute an amount of Systems Units and Caregiver Terminals to meet the
market demands in the Territory as mutually agreed to by CYBERCARE and
AMERICARE and to meet its Minimum Performance Obligations (set forth in
SECTION 9 hereof) in accordance with the terms and conditions of this
Agreement.
6.3. CYBERCARE shall provide AMERICARE with a reasonable amount of sales
brochures, catalogs, videotapes and other sales and promotional material
and Healthcare Provider/End-User training material prepared from time to
time by CYBERCARE pertaining to the System Units, Caregiver Terminals and
Service; reproduction and mailing or delivery costs are to be paid solely
by CYBERCARE. A copy of all marketing and promotional material and
Healthcare Provider/End-User training material prepared by AMERICARE in
connection with the marketing of any System Unit Caregiver Terminal or the
Service shall be furnished to CYBERCARE for approval, which approval shall
not be unreasonably withheld or delayed, prior to its first commercial use
of such material. Any translation of marketing materials or Healthcare
Provider/End-User training materials that will be used by AMERICARE in the
Territory into any language other than English shall be solely the
responsibility of CYBERCARE. CYBERCARE shall provide all the necessary
documentation in an electronic format to AMERICARE.
6.4. During the Term, each order for a System Unit or Caregiver Terminal
shall be submitted by AMERICARE (or an Affiliate licensee) in writing
using an order form and format to be agreed to by CYBERCARE and AMERICARE.
CYBERCARE shall fulfill AMERICARE's (or its licensee's) orders in
accordance with the order processing and shipping procedure set forth on
SCHEDULE 6.4.
6.5. AMERICARE agrees that it shall not, nor shall it permit others to,
reverse engineer, disassemble, modify or otherwise tamper with the System
Units and the Caregiver Terminals without the prior written consent of
CYBERCARE.
6.6. The price paid by AMERICARE for each System Unit or Caregiver
Terminal shall be the Transfer Cost. The Transfer Cost as defined in
SECTION 2 and payable by AMERICARE to CYBERCARE shall be exclusive of
freight charges, packing, insurance, taxes, duties and tariffs, which
shall be the sole responsibility of AMERICARE.
6.7. SHIPMENT; INSPECTION.
6.7.1. All System Units and Caregiver Terminals shall be conveyed to
AMERICARE by CYBERCARE, F.O.B. the place of shipment in the United
States designated by CYBERCARE from time to time, and title to and
risk of loss of any System Units and Caregiver Terminals shipped to
AMERICARE shall pass from CYBERCARE when such product comes into
possession of AMERICARE's shipper.
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6.7.2. Within thirty (30) days following installation of any System
Units or Caregiver Terminals by AMERICARE, AMERICARE shall notify
CYBERCARE in writing of any shortage, functional defects or damage
which AMERICARE claims existed at the time of receipt. Within
fifteen (15) days of receipt of such notice, CYBERCARE will
investigate the claim of shortage, defects or damage, and inform
AMERICARE of its findings. If CYBERCARE determines that a shortage,
defect or damage exists in such shipment, CYBERCARE shall promptly,
at CYBERCARE's expense, either (a) deliver to AMERICARE a
supplementary shipment, in the event of a shortage or (b) deliver a
replacement or repair the defect or damage, in the event of a
defective or damaged portion of the shipment. Unless notice is given
as provided in this SECTION 6.7.2., AMERICARE shall be deemed to
have accepted any delivered System Units and Caregiver Terminals and
to have waived any and all claims for shortages, defects or damage
thereto.
6.8 Prior to commencing First Commercial Operation of The Service within
the Territory, AMERICARE shall be responsible for ensuring that the System
Units, the Caregiver Terminals and the Service comply with all consumer
product safety and other related laws in each of the jurisdictions in
which the Service is offered or the Systems Units or the Caregiver
Terminals are sold or distributed, provided, however, that CYBERCARE shall
be responsible for ensuring that the System Units, the Caregiver Terminals
and the Service comply with all consumer product safety and other related
laws in the United States. In the event any licenses or other permissions
are required in each such jurisdiction, AMERICARE shall be responsible for
obtaining the same.
6.9 In consideration of the license grants made by CYBERCARE and
INTERNATIONAL to AMERICARE hereunder, AMERICARE agrees that it shall
promote and implement the Service, the Caregiver Terminals and the System
Units solely for use in connection with the Network; other than as
specified in EXHIBIT B (the "INCLUDED NON-NETWORK PRODUCTS OR SERVICES")
all licenses granted hereunder are expressly subject to this SECTION 6.9
and any use or encouraged use of any System Unit or Caregiver Terminal
other than in connection with the Network during the term of this
Agreement or thereafter is expressly prohibited.
6.10 CYBERCARE shall host the Network in accordance with the terms and
conditions of the Network Agreement. The Network Agreement shall include a
Service Level Agreement (the "SLA") to establish performance measurements
for the products and services to be provided to AMERICARE by CYBERCARE and
INTERNATIONAL under the Network Agreement. The Network Agreement shall
also contain a provision regarding data security and regulatory
compliance. The SLA shall establish standards and measurements in the
following areas:
o Network availability, capacity and redundancy
o Emergency recovery planning and procedures
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o Data confidentiality, security and access
o Price and functional competitiveness
o Hardware, network and software features and enhancements
o Warranty and maintenance
o Customer service and problem escalation
o Self testing and line performance monitoring
o Intelligent routing features and functions including
Rules-based functionality
o Tools and Wizards
o Quality programs and certifications
o Multipoint video conferencing
o Report generators
o Documentation and user manuals
7. LIMITED TRADEMARK LICENSE.
7.1. Subject to the terms and conditions of this Agreement, during the
Term CYBERCARE and INTERNATIONAL hereby grant to AMERICARE an exclusive
license to use the trademarks and trade names specified in EXHIBIT C (the
"LICENSED MARKS") solely for advertising, promotion, marketing and
distribution of the System Units, Caregiver Terminals and the Service
within the Territory. The use of the Licensed Marks shall be subject to
CYBERCARE's and INTERNATIONAL's use guidelines as provided to AMERICARE.
All use of any such Licensed Marks in any marketing and promotion,
including advertisements and packaging, shall contain such proprietary
notices as may be specified by CYBERCARE or INTERNATIONAL, as applicable,
from time to time. At a minimum, each of the System Units and Caregiver
Terminals shall have the trademark as designated by CYBERCARE or
INTERNATIONAL, as applicable, affixed in a prominent location on such
devices and according to any specification provided by CYBERCARE or
INTERNATIONAL except as such System Units or Caregiver Terminals are
private labeled in accordance with SECTION 3.1. AMERICARE shall submit to
CYBERCARE or INTERNATIONAL, as applicable, for approval, prior to use,
distribution or disclosure, any advertising, promotion or publicity in
which such Licensed Marks are intended to be used, provided that the use
of such Licensed Marks does not violate CYBERCARE's or INTERNATIONAL's use
guidelines. The approval of the use of the Licensed Marks shall not be
unreasonably withheld or delayed. If such approval is not received within
five (5) business days of submission, AMERICARE's use of the Licensed
Marks shall be deemed approved.
7.2. Nothing contained in this Agreement will give AMERICARE any ownership
right, title or interest in any of the Licensed Marks. Other than as
expressly set forth herein, AMERICARE acknowledges that except for the
license granted herein that as between AMERICARE on the one hand and
CYBERCARE and INTERNATIONAL on the other, CYBERCARE and INTERNATIONAL own
and retain all right, title and interest in and to the Licensed Marks.
AMERICARE agrees that it will not at any time during or after this
Agreement assert or claim any interest in or do anything that may
adversely affect the validity of any of the Licensed Marks (including,
without limitation,
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any act or assistance to any act, which may infringe or lead to the
infringement of any of proprietary right of CYBERCARE or INTERNATIONAL, as
applicable). Except for the rights granted herein, AMERICARE will not have
or acquire by virtue of this Agreement or otherwise any vested,
proprietary or other right in the promotion of the System Units, the
Caregiver Terminals, the Service or the Network in connection with the
Licensed Marks or in "goodwill" created by its efforts hereunder. All such
"goodwill" shall accrue to CYBERCARE or INTERNATIONAL or their respective
designees, as the case may be. AMERICARE agrees to notify CYBERCARE or
INTERNATIONAL, as the case may be, of any unauthorized use of the Licensed
Marks by any third party promptly as such use comes to AMERICARE's
attention.
8. TECHNICAL ASSISTANCE AND TRAINING.
8.1. In connection with the licenses granted hereunder, and subject to the
confidentiality provisions of SECTION 15, each of CYBERCARE and
INTERNATIONAL agrees to furnish to AMERICARE certain technical
information, data, knowledge and know-how associated with the installation
and operation of the System Units, the Caregiver Terminals, the Network
and the Service (collectively "KNOW-HOW"). CYBERCARE and INTERNATIONAL, at
no cost to AMERICARE and except for reasonable travel costs and expenses
consistent with AMERICARE's travel policy, at the reasonable request of
AMERICARE, will cause their personnel to visit AMERICARE's respective
plants, laboratories, installations and other facilities for reasonable
periods of time and on mutually agreeable dates to provide training and
Know-How to AMERICARE's personnel. CYBERCARE and INTERNATIONAL will also,
during the term of this Agreement, permit personnel of AMERICARE to visit
CYBERCARE's and INTERNATIONAL's plants, laboratories, installations and
other facilities for reasonable periods of time and on mutually agreeable
dates to provide training and Know-How to AMERICARE's personnel. In all
cases, AMERICARE will reimburse (subject to AMERICARE's travel policy)
CYBERCARE and INTERNATIONAL for the reasonable travel and lodging costs of
such personnel upon request and reasonable evidence to substantiate such
costs.
8.2. Subject to the terms and conditions of this Agreement, CYBERCARE and
INTERNATIONAL hereby grant to AMERICARE, the exclusive, personal license
to use the Know-How solely in connection with the marketing, sale,
installation, maintenance, support and further development of the System
Units, the Caregiver Terminals, Network and the Service in the Territory.
9. MINIMUM PERFORMANCE OBLIGATIONS.
9.1. In order to maintain the exclusive rights set forth in this Agreement
during the Term, AMERICARE will have to meet the following minimum
performance milestones ("MINIMUM PERFORMANCE OBLIGATIONS") in connection
with the sale and installation of the System Units and Caregiver
Terminals:
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9.1.1. AMERICARE or its licensees shall purchase not less than 1,000
System Units and Caregiver Terminals during the first twelve (12)
months following the Availability Date (as defined below)("PERIOD
1"). For purposes of this Agreement, the Availability Date means the
earlier to occur of: (a) 105 days following the Effective Date of
this Agreement, or (b) the First Commercial Operation of The Service
in the Territory.
9.1.2. AMERICARE shall purchase not less than 5,000 System Units and
Caregiver Terminals within the twelve (12) month period immediately
following Period 1 (hereinafter "PERIOD 2").
9.1.3. AMERICARE shall purchase not less than 10,000 System Units
and Caregiver Terminals within the twelve (12) month period
immediately following Period 2 (hereinafter "PERIOD 3").
9.1.4. AMERICARE shall purchase not less than 20,000 System Units
and Caregiver Terminals within the twelve (12) month period
immediately following Period 3 (hereinafter "PERIOD 4").
9.1.5 AMERICARE shall purchase not less than 20,000 System Units and
Caregiver Terminals within each twelve (12) month period immediately
following Period 4 and for a term to be mutually agreed to by the
Parties.
9.2. Upon execution of this Agreement, AMERICARE agrees to submit an
order for $500,000.00 (U.S.) dollars worth of System Units and
Caregiver Terminals.
9.3. If AMERICARE does not meet the Minimum Performance Obligations in
Period 1, Period 2, Period 3 or Period 4, the exclusive rights granted to
AMERICARE under this Agreement shall become non-exclusive and this
Agreement shall remain in full force and effect. Notwithstanding the
foregoing sentence, if AMERICARE's exclusive rights become non-exclusive
for failure to meet the Minimum Performance Obligations during Period 1,
Period 2, Period 3 or Period 4 but AMERICARE subsequently meets the
Minimum Performance Obligation before CYBERCARE or INTERNATIONAL have
entered into a written agreement granting a third party similar
non-exclusive rights granted to AMERICARE under this agreement,
AMERICARE's rights under this Agreement shall automatically revert to the
original exclusive rights granted hereunder. If CYBERCARE grants
non-exclusive rights to a third party in accordance with this SECTION 9.3,
such rights shall be granted on terms (including price) no more favorable
than the terms of this Agreement.
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10. TAXES, GOVERNMENTAL APPROVALS AND LIABILITY.
10.1. AMERICARE shall be solely responsible for the payment and discharge
of any taxes, duties, or withholdings relating to any transaction of
AMERICARE in connection with the marketing and distribution of the System
Units, Caregiver Terminals and the Services to End Users or Healthcare
Providers exclusive of taxes based on CYBERCARE's or INTERNATIONAL's
income.
10.2. AMERICARE shall, at its own expense, be responsible for applying for
and obtaining any approvals, authorizations, or validations relative to
this Agreement under the appropriate laws of any country or jurisdiction
in the Territory, including authorization for the remittances hereunder
from the appropriate governmental authorities.
10.3. CYBERCARE and INTERNATIONAL shall be jointly and severally liable
for all product liability claims under the applicable laws of a country or
jurisdiction within the Territory resulting from the System Units, the
Caregiver Terminals, the Network or any components thereof. CYBERCARE
shall be solely responsible for maintaining the United States Food and
Drug Administration regulatory approvals for the System Units and
Caregiver Terminals.
11. CONSIDERATION.
In consideration of the geographic exclusivity associated with the rights
and licenses granted by CYBERCARE and INTERNATIONAL under this Agreement
as to the Territory, AMERICARE agrees that it will use its commercially
reasonable efforts to secure and close an equity financing in the amount
of at least $30,000,000 U.S. Dollars, within ninety (90) days (the
"Financing Period") following the date of execution of this Agreement.
Upon the closing such financing, AMERICARE will pay to CYBERCARE a fee
(the "GEOGRAPHIC EXCLUSIVITY FEE") in the amount of U.S. $15,000,000 which
shall occur upon the earlier of (a) fifteen (15) days following the date
upon which AMERICARE secures and closes an equity financing, or (b)
promptly upon AMERICARE's First Commercial Operation of The Service in the
Territory. For the avoidance of doubt, "First Commercial Operation of The
Service" shall not include providing demonstrations of the System Units,
Caregiver Terminals or the Service. If AMERICARE shall fail to pay
CYBERCARE the amount described in this SECTION 11 by the 15th day
following the end of the Financing Period, this Agreement shall
automatically terminate, subject to the provisions of SECTION 9.2. The
Parties hereto agree that any contracts and/or payments received pursuant
to agreements entered into prior to the Effective Date of this Agreement
between CYBERCARE and any entity not a party to this Agreement are to be
retained solely by CYBERCARE.
12. ROYALTIES.
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12.1. In consideration of the rights and licenses granted by CYBERCARE and
INTERNATIONAL under this Agreement, AMERICARE agrees to pay to CYBERCARE
or INTERNATIONAL, commencing promptly upon AMERICARE's First Commercial
Operation of The Service in the Territory and continuing throughout the
term of this Agreement, a royalty in the amount of four percent (4%) of
the Transfer Cost with respect to each System Unit and each Caregiver
Terminal purchased by AMERICARE from CYBERCARE, INTERNATIONAL or any
permitted third party vendor (the "ROYALTY"). AMERICARE shall not owe a
Royalty to CYBERCARE for System Unit or Caregiver Terminal sold by
AMERICARE to the United States Government.
12.2. AMERICARE agrees to keep true and accurate books of account
containing all particulars, which may be necessary for the purpose of
demonstrating the amount of Royalties payable to CYBERCARE and
INTERNATIONAL under this Agreement. AMERICARE further agrees to keep and
provide to CYBERCARE or INTERNATIONAL, at either of such parties' request,
books of account containing all particulars which may be necessary for the
purpose permitting CYBERCARE or INTERNATIONAL, as the case may be, to
comply with any and all applicable reporting obligations under the GTRC
License Agreement. These books of account shall be kept by AMERICARE at
the usual place where its books are kept. Such books shall be retained for
at least three (3) years following the end of the fiscal year to which
they pertain, and shall be available for inspection by an independent
certified public accountant retained by CYBERCARE for the purpose of
substantiating the amount of Royalty payments due to CYBERCARE and/or
INTERNATIONAL. Such inspection shall be (a) subject to the confidentiality
provisions set forth in SECTION 15, (b) conducted no more than once in any
twelve (12) month period, upon reasonable notice to AMERICARE, and (c)
shall not interfere with the daily operations of AMERICARE. CYBERCARE and
INTERNATIONAL shall pay for the services of the independent certified
public accountant unless the independent certified public accountant
determines that AMERICARE has understated the Royalties due to CYBERCARE
or INTERNATIONAL, as the case may be by an amount that is greater than
five percent (5%) of the Royalties due, in which case AMERICARE shall pay
the entire amount charged by the accountant for the accountant's services.
AMERICARE agrees to pay the balance of such Royalties to CYBERCARE or
INTERNATIONAL, as the case may be, within ten (10) business days after
written notice of AMERICARE's understatement. If the inspection reveals
that AMERICARE over paid CYBERCARE or INTERNATIONAL the Royalties due,
CYBERCARE and/or INTERNATIONAL shall repay AMERICARE the amount of the
overpayment within ten (10) business days.
12.3. No later than thirty (30) days following the end of each calendar
quarter, AMERICARE shall pay CYBERCARE or INTERNATIONAL, as applicable,
the Royalties in U.S. Dollars due in connection with each such purchase.
Each Royalty payment shall be accompanied by a written statement,
certified by an officer of AMERICARE, showing the number of System Units
and Caregiver Terminals sold and/or distributed and the computation of
Royalties due.
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12.4. AMERICARE shall pay interest on all royalties past due under this
Agreement to CYBERCARE or INTERNATIONAL, as applicable, at a rate of one
and one-half percent (1 1/2%) per month, or such lesser amount as may be
required by law. Interest under this subsection shall be computed from the
day on which the royalties are due.
13. DEVELOPMENT; IMPROVEMENTS; ENHANCEMENTS AND MODIFICATIONS.
13.1. AMERICARE, may make reasonable requests that CYBERCARE develop
hardware improvements, enhancements or modifications including
localizations and translations of the System Units and Caregiver Terminals
(the "IMPROVEMENT"). Such Improvement shall be made by CYBERCARE, at the
sole expense of AMERICARE. AMERICARE shall also have the right to have
such Improvement developed by a third party with the prior consent of
CYBERCARE, which consent shall not be unreasonably withheld or delayed.
13.1.1. Each requested Improvement to be developed by CYBERCARE and
to be performed under this Agreement shall be defined in a statement
of work in a form substantially similar to EXHIBIT E (each a
"STATEMENT OF WORK"). The Statement of Work shall describe the
development, services to be performed, the obligations of each party
necessary for completion of the development, the identifiable
deliverables, the fixed price or time and materials rate, allocation
of expenses and other terms that apply to that specific Statement of
Work. Each Statement of Work must be executed by CYBERCARE and
AMERICARE.
13.1.2. Any requested changes to a Statement of Work made by
AMERICARE or CYBERCARE shall be in writing and shall set forth the
proposed change (each a "CHANGE ORDER"), CYBERCARE shall evaluate
each Change Order and respond with a proposal setting forth the
impact on the completion time, deliverables and price of the
Statement of Work. AMERICARE may accept or reject the proposal. If
accepted, CYBERCARE will prepare a written Change Order Proposal for
execution by CYBERCARE and AMERICARE. AMERICARE shall not have any
obligations under a Change Order unless signed by AMERICARE.
13.2. All right title and interest in and to all localizations and
translations of the System Unit Software and Caregiver Terminal Software
that are prepared by CYBERCARE or AMERICARE (or on its behalf by a third
party), as permitted under SECTION 5.1, shall vest in CYBERCARE.
13.3. Other than as expressly provided in SECTION 13.2 above, AMERICARE
shall own all right, title and interest in and to any Improvement
developed, conceived, authored, reduced to practice and/or invented by
AMERICARE either alone or in combination with CYBERCARE or a third party,
whether or not patentable or subject to copyright protection that, if
practiced, would not constitute an infringement of any Patent.
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13.4. CYBERCARE shall own all right, title and interest in and to any
Improvement developed, conceived, authored, reduced to practice and/or
invented solely by CYBERCARE, whether or not patentable or subject to
copyright protection that, if practiced would constitute an infringement
of any Patent. Further, AMERICARE shall receive a exclusive, unrestricted,
paid-up, royalty-free license within the Territory to use, practice, make,
have made, distribute, sell and modify any Improvement developed by
CYBERCARE.
13.5. AMERICARE shall have the sole right to file any and all patent
applications, trademark registrations, copyright registrations or other
equivalent applications, registrations or filings (hereinafter
"INTELLECTUAL PROPERTY PROTECTION"), for all Improvements described in
SECTION 13.3 developed, conceived, authored, reduced to practice and/or
invented by AMERICARE in the Territory. AMERICARE shall be responsible for
all costs, fees and expenses incurred in connection with the filing,
prosecution and maintenance of such Intellectual Property Protection and
the maintenance of any patent, trademark or copyright issuing thereon.
14. EXPORT CONTROL.
14.1 Each of the parties hereto agrees that it will comply with the United
States Export Administration Act and Export Administration Regulations,
and any similar laws or regulations of the United States or any country or
jurisdiction applicable to or within the Territory, that prohibit or
regulate, or impose licensing, permitting or reporting requirements on,
the export or re-export of any goods or technology.
15. CONFIDENTIALITY.
15.1. All information disclosed by one party (the "DISCLOSING PARTY") to
another party (the "RECEIVING PARTY") in connection with this Agreement
before or after the Effective Date, which if disclosed in tangible form is
marked as confidential or proprietary or if disclosed orally have been
designated as confidential including information and material relating to
the Disclosing Party's past, present or future research, development or
business affairs that the Disclosing Party does not disclose to the public
in the ordinary course of its business such as trade secrets, software and
technology architecture, networks, business methodologies, facilities,
policies, operational information, the terms of this Agreement and all
copies, reproductions, notes, analyses, compilations, studies,
interpretations, summaries and other documents prepared by the Disclosing
Party or the Receiving Party (collectively, "CONFIDENTIAL INFORMATION").
15.2. Confidential Information shall not include information that (insofar
as the Receiving Party can establish by competent proof):
15.2.1. was known to the Receiving Party prior to its disclosure by
the Disclosing Party;
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15.2.2. was known to the public prior to its disclosure to the
Receiving Party, or has become known to the public through no fault
of the Receiving Party; or
15.2.3. was subsequently disclosed to the Receiving Party by a third
party having a lawful right to make such disclosure without
limitation on disclosure.
15.2.4. was independently developed by the Receiving Party without
the use of the Disclosing Party's Confidential Information.
15.3. During the Term of this Agreement and for two (2) years after its
termination or expiration, each of the parties hereto shall maintain the
Confidential Information of each other, as applicable, in confidence,
shall not use any such Confidential Information for its own benefit
(except in performance of this Agreement) or for the benefit of any third
party, and shall not disclose any such Confidential Information to any
third party (except as expressly provided in this Agreement).
15.4. No party shall disclose any Confidential Information to another
person other than its officers, directors, employees and consultants who
must have access to such Confidential Information in order to carry out
the purposes of such party as detailed in this Agreement. Prior to
disclosure of any Confidential Information to employees or consultants,
such employees or consultants shall be under a written obligation of
confidentiality to the employing or retaining company with terms at least
as restrictive as those contained herein and substantially in the form of
the attached Confidentiality Agreement in EXHIBIT F of this Agreement.
15.5. No party shall disclose any Confidential Information to any third
party unless such disclosure is subject to a written agreement with terms
at least as restrictive as those contained herein.
15.6. Each party shall adopt security measures commonly observed in
industries that rely on proprietary information. These measures shall
include, but not be limited to, restricted access to such information,
marking such information, and the selective destruction of sensitive
materials.
16. SUPPORT AND MAINTENANCE.
The parties hereby agree that AMERICARE may provide various maintenance
and support services to End Users and Healthcare Providers (other than as
to issues concerning Network Connectivity which shall be the
responsibility of CYBERCARE) including installation, training, support,
help desk, and maintenance in connection with the System Units, the
Caregiver Terminals and the Service (the "AMERICARE SUPPORT Services").
CYBERCARE shall provide AMERICARE at no additional charge with Updates and
Upgrades (as those terms are defined in the End User Agreement and
Healthcare Provider Agreement) to System Units and Caregiver Terminals
along with the tools necessary to implement such Updates and Upgrades.
AMERICARE Support
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Services shall also include the provision of such Updates and Upgrades to
End Users and Healthcare Providers in the Territory. Provision of help
desk service shall include, without limitation, the establishment of a
24-hour, 7 days per week service center to receive and manage the
resolution of problems reported by End Users and Healthcare Providers with
the System Units and Caregiver Terminals. In conjunction with providing
the help desk services, AMERICARE will provide CYBERCARE or INTERNATIONAL,
as applicable, with monthly summaries of reported problems, problem
resolutions, and problem duration. AMERICARE will also provide to
CYBERCARE or INTERNATIONAL, as applicable, (or its respective agent) a
monthly summary of deployed System Units and Caregiver Terminals by serial
number to include, without limitation, critical component serial numbers,
software version, software key, and hours usage. Maintenance services
shall include, without limitation, repair and/or replacement of equipment
associated with System Units or Caregiver Terminals. AMERICARE shall be
responsible for repair and replacement of the System Units and Caregiver
Terminals; provided, however, that AMERICARE will look to CYBERCARE for
repair and replacement of the System Units during the manufacturer's
warranty period. It is further expressly agreed that CYBERCARE and
INTERNATIONAL hereby grant to AMERICARE all rights and licenses which are
necessary for AMERICARE to provide AMERICARE Support Services to End Users
and Healthcare Providers. To the extent necessary, CYBERCARE and
INTERNATIONAL agree to provide initial and ongoing support to AMERICARE's
employees and representatives with regard to the provision of technical
support and maintenance as more particularly set forth in SCHEDULE 16.
17. REPRESENTATIONS; WARRANTIES AND COVENANTS.
17.1. BY AMERICARE. AMERICARE represents and warrants as follows:
17.1.1. AMERICARE has the full right, corporate power and authority
to enter into this Agreement. AMERICARE is not a party to any
agreement or understanding which would conflict with this Agreement
or the rights granted herein. This Agreement, when executed and
delivered by AMERICARE, shall constitute a valid and binding
obligation of AMERICARE enforceable in accordance with its terms.
17.1.2. AMERICARE is a corporation duly organized, validly existing,
and in good standing under the laws of Delaware, and has all
requisite corporate authority to carry on the business as is
contemplated in this Agreement.
17.2. BY INTERNATIONAL. INTERNATIONAL represents and warrants as follows:
17.2.1. INTERNATIONAL has the full right, corporate power and
authority to enter into this Agreement and grant all rights granted
herein. INTERNATIONAL is not a party to any agreement or
understanding which would conflict with this Agreement or the rights
granted herein. This Agreement, when executed and delivered by
INTERNATIONAL, shall constitute a valid and binding obligation of
INTERNATIONAL enforceable in accordance with its terms.
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17.2.2. INTERNATIONAL is a corporation duly organized, validly
existing, and in good standing under the laws of the British Virgin
Islands, and has all requisite corporate authority to carry on the
business as it is now carried on and conducted, and as is
contemplated by this Agreement.
17.2.3. INTERNATIONAL owns all rights in and to copyrights, trade
secrets Know-How and Patents associated with the Service, System
Units and Caregiver Terminals, the Network and the Licensed Marks,
or otherwise has the rights that are necessary to grant the licenses
to AMERICARE set forth herein.
17.2.4. INTERNATIONAL covenants that it shall use its best efforts
not to permit the GTRC License Agreement to terminate or expire.
17.2.5 INTERNATIONAL has complied with all commitments and
obligations under the GTRC License Agreement and INTERNATIONAL is
not in default thereunder.
17.2.6 INTERNATIONAL has not granted any sublicenses in the
Territory
17.3. BY CYBERCARE. CYBERCARE represents and warrants as follows:
17.3.1. CYBERCARE has the full right, corporate power and authority
to enter into this Agreement. CYBERCARE is not a party to any
agreement or understanding which would conflict with this Agreement
or the rights granted herein. This Agreement, when executed and
delivered to CYBERCARE, shall constitute a valid and binding
obligation of CYBERCARE enforceable in accordance with its terms.
17.3.2. CYBERCARE is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Georgia, and has
all requisite corporate authority to carry on the business as it is
now carried on and conducted, and as contemplated by this Agreement.
17.3.3. CYBERCARE as of the date of this Agreement, owns all rights
in and to copyrights, Know-How, trade secrets and Patents associated
with the Service, System Units and Caregiver Terminals, the Network
and the Licensed Marks or otherwise has the rights that are
necessary to grant the licenses to AMERICARE set forth herein.
17.3.4. CYBERCARE covenants that it shall use its best efforts not
to permit the GTRC License Agreement to terminate or expire.
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17.3.5 CYBERCARE has complied with all commitments and obligations
under the GTRC License Agreement and INTERNATIONAL is not in default
thereunder.
17.3.6 CYBERCARE has not granted any sublicenses in the Territory
17.3.7. CYBERCARE represents and warrants that the System Units and
Caregiver Terminals that it manufactures will be free from defects
in labor and materials and manufactured in accordance with the
specifications set forth on SCHEDULE 6.1. CYBERCARE shall correct
any failure to so conform within a reasonable time after Licensee
learns of such failure.
18. NO OTHER WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE END USER AGREEMENT AND THE
HEALTHCARE PROVIDER AGREEMENT, NEITHER CYBERCARE NOR INTERNATIONAL MAKES
ANY WARRANTIES OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT
TO THIS AGREEMENT, THE SERVICE, THE SYSTEM UNITS, THE CAREGIVER TERMINALS
OR THE NETWORK, INCLUDING ANY WARRANTIES OF QUALITY, PERFORMANCE,
ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NEITHER CYBERCARE NOR INTERNATIONAL WARRANTS THAT IT WILL MEET
THE REQUIREMENTS OF AMERICARE, OR ANY END USER OR ANY OTHER PARTY, AS
APPLICABLE, OR THAT THE OPERATION OF THE SYSTEM UNITS, CARGIVER TERMINALS
OR THE NETWORK WILL BE UNINTERRUPTED OR ERROR FREE, EXCEPT AS EXPRESSLY
PROVIDED HEREIN.
19. LIMITATION OF LIABILITY.
IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY OR ANY OTHER
PERSON FOR ANY LOST PROFITS, LOST DATA, OR OTHER INDIRECT, SPECIAL,
CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED
BY THAT PARTY UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF THAT PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; PROVIDED,
HOWEVER, THAT IN NO EVENT SHALL THE RESPECTIVE LIABILITIES OF CYBERCARE,
INTERNATIONAL OR AMERICARE UNDER THIS AGREEMENT EXCEED THE TOTAL AGGREGATE
AMOUNT PAID BY AMERICARE UNDER THIS AGREEMENT. NOTWITHSTANDING THE
LIMITATION SET FORTH IN THIS SECTION 19, CYBERCARE'S AND INTERNATIONAL'S
LIABILITY SHALL NOT BE LIMITED FOR PRODUCT LIABILITY CLAIMS RELATED TO THE
NETWORK, CAREGIVER TERMINAL OR SYSTEM UNITS.
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20. INDEMNIFICATION.
20.1. Each CYBERCARE and INTERNATIONAL shall jointly and severally
indemnify, defend and hold harmless AMERICARE, from and against all
losses, liabilities, obligations, damages, costs and expenses (including
settlement awards and reasonable attorneys' fees) ("Losses"), which result
from or arise in connection with the breach of any representation,
warranty or covenant made by each of CYBERCARE and/or INTENATIONAL in the
Agreement. AMERICARE shall indemnify, defend and hold harmless CYBERCARE
and INTERNATIONAL from and against any Losses resulting from AMERICARE's
failure to comply with any representation, covenant or warranty contained
in Sections 6.8 and 17.
20.2 CYBERCARE and INTERNATIONAL each agree to indemnify, defend and hold
AMERICARE, its officers, directors, employees, End Users and agents
harmless against any and all Losses resulting from (a) any and all product
liability and/or product design claims resulting from the Caregiver
Terminals, System Units or (b) the Service, Caregiver Terminal, System
Units, Network, Know-How, Licensed Marks, Improvements or Patents
(collectively, "INTELLECTUAL PROPERTY") infringing a third party patent,
copyright or trademark or misappropriating the trade secret of a thirty
party ("INFRINGEMENT CLAIM"). In addition, if a judgment is obtained
against AMERICARE's use of the Intellectual Property by reason of an
Infringement Claim, or is likely to become the subject of an Infringement
Claim, CYBERCARE and/or INTERNATIONAL (as the case may be) shall at their
sole expense (x) procure for AMERICARE and the End Users (as applicable)
the right to continue to use, make, sell, license or distribute the
Intellectual Property or part thereof, or (y) replace or modify the
Intellectual Property or any part thereof with a functional equivalent
which is not subject to any such claim. CYBERCARE and INTERNATIONAL shall
indemnify, defend and hold harmless AMERICARE from and against any Losses
resulting from CYBERCARE or INTERNATIONAL's breach of any representation,
covenant or warranty contained in Section 17.
20.3 Whenever any claim shall arise for indemnification hereunder, the
party entitled to such indemnification (the "INDEMNITEE") shall notify the
party from whom indemnification is sought (the "INDEMNITOR") of such claim
in writing promptly and in no case later than ninety (90) days after such
Indemnitee has received actual written notice of the facts constituting
the basis for such claim; each Indemnitee shall also so notify the
Indemnitor promptly and in no case later than fifteen (15) days after the
commencement of any legal proceedings with respect to any such claim. The
failure to notify the Indemnitor will not relieve the Indemnitor from any
liability which it may have to any Indemnitee to the extent the Indemnitor
is not prejudiced as a proximate result of such failure. Such notice shall
specify, in reasonable detail, the facts known to such Indemnitee giving
rise to the indemnification sought. Such notice shall also include
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photocopies of all relevant communications received from third party
claimants and their attorneys. In any claim, suit or proceeding which the
Indemnitor has elected to defend, compromise or settle, the Indemnitee
shall not after such election be responsible for the expenses, including
reasonable legal fees of the Indemnitee, but the Indemnitee may
participate therein and retain counsel at its own expense. In any claim,
suit or proceeding, the defense of which the Indemnitor shall have
assumed: (a) the Indemnitee shall not consent to the entry of any judgment
or enter into any settlement with respect to the matter without the
consent of the Indemnitor, which consent will not be unreasonably withheld
or delayed and (b) the Indemnitor shall not consent to the entry of any
judgment or enter into any settlement affecting in any material respect
the business of the Indemnitee to the extent the judgment or settlement
involves more than the payment of money damages for which the Indemnitee
shall be fully indemnified without the consent of the Indemnitee with
consent shall not be unreasonably withheld or delayed.
21. TERM OF AGREEMENT.
This Agreement shall commence on the Effective Date and shall continue
until the expiration of the last expiring patent covering any of the
Patents, Know-How, System Units, Caregiver Terminals, Network or the
Service (the "TERM").
22. TERMINATION.
22.1. TERMINATION FOR CAUSE.
22.1.1. CYBERCARE or INTERNATIONAL may terminate this Agreement if
(a) AMERICARE breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30) days
following receipt of written notice of such breach, (b) AMERICARE
becomes the subject of a voluntary petition in bankruptcy or any
voluntary proceeding related to insolvency, receivership,
liquidation or composition for the benefit of creditors or (c)
AMERICARE becomes the subject of any involuntary petition in
bankruptcy or any involuntary proceeding relating to insolvency,
receivership or liquidation, for the benefit of creditors, if such
petition is not dismissed within ninety (90) days following initial
filing thereof or (d) the parties hereto do not execute the Network
Agreement within ninety (90) days of the execution of this
Agreement.
22.1.2. AMERICARE may terminate this Agreement if (a) CYBERCARE or
INTERNATIONAL breaches any material term or condition of this
Agreement and fails to cure such breach within thirty (30) days
following receipt of written notice of such breach, (b) CYBERCARE or
INTERNATIONAL becomes the subject of a voluntary petition in
bankruptcy or any voluntary proceeding related to insolvency,
receivership, liquidation or composition for the benefit of
creditors, or (c) CYBERCARE or INTERNATIONAL becomes the subject of
any involuntary petition in bankruptcy or any involuntary proceeding
relating to insolvency, receivership or liquidation, for the benefit
of creditors, if such petition
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is not dismissed within ninety (90) days following initial filing
thereof or (d) the parties hereto do not execute the Network
Agreement within ninety (90) days of the execution of this
Agreement, in which case, no Geographic Exclusivity Fee or Royalty
shall be due or payable to CYBERCARE or INTERNATIONAL .
22.2. EFFECT OF TERMINATION OR EXPIRATION. The termination of this
Agreement for any reason shall not affect: (a) rights granted to End Users
and Healthcare Providers prior to the effective date of termination; or
(b) any ownership rights designated as vesting in or previously owned by
any party in or to any of the products, components or services specified
herein. Upon the termination of this Agreement, each Party hereto agrees
to return to the Disclosing Party all of such Disclosing Parties
confidential information in such Party's possession or control.
22.3. If this Agreement terminates due to the termination of the GTRC
License Agreement, CYBERCARE and INTERNATIONAL will use their best efforts
to secure for AMERICARE the rights granted under this Agreement directly
with GTRC.
22.4. The provisions of SECTION 10, 12.2, 13.3, 13.5, 15, 17, 18, 19, 20,
22.3, 24-29, 32, 33 AND 34 shall survive any expiration or termination of
this Agreement.
23. NOTICES.
Any notice hereunder shall be deemed to have been given and received when
personally delivered in writing, two (2) business days after being sent
via overnight express courier, or five (5) business days after it has been
deposited in the United States mail or the mail of the country located
within the Territory, registered or certified (or a reasonable equivalent
thereof), postage pre-paid, properly addressed to the party to whom it is
intended at the address set forth below:
If to CYBERCARE and
INTERNATIONAL: CyberCare, Inc.
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: General Counsel
With a copy to: Hunton & Xxxxxxxx
_______________________
_______________________
If to AMERICARE: 000 Xxxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
with a copy to: Xxxxxxx & Xxxxxx, LLP
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
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24. FORCE MAJEURE.
Other than obligations to make payments under this Agreement, no party to
this Agreement shall be held liable for failure to comply with any of the
terms of this Agreement to the extent such failure is caused by fire,
labor dispute, strike, war, insurrection, terrorist action, government
restriction, act of God, or other event beyond the control and without
fault on the part of the party involved, provided such party uses due
diligence to remedy or work around such failure.
25. NON-WAIVER.
The failure by any party at any time to enforce any of the provisions of
this Agreement or any right or remedy available hereunder or at law or in
equity, shall not constitute a waiver of such provision, right, or remedy
or in any way affect the validity of this Agreement. The waiver of any
default by any party shall not be deemed a continuing waiver, but shall
apply solely to the instance to which such waiver is directed.
26. SEVERABILITY.
Every provision of this Agreement shall be construed, to the extent
possible, so as to be valid and enforceable. If any provision of this
Agreement so construed is held by a court of competent jurisdiction to be
invalid, illegal or otherwise unenforceable, such provision shall be
deemed severed from this Agreement, and all other provisions shall remain
in full force and effect.
27. CHOICE OF LAW; VENUE; WAIVER OF JURY TRIAL.
This Agreement shall in all respects be governed by and interpreted,
construed and enforced in accordance with the laws of the State of
Florida, without regard to conflict of laws principles. The parties hereto
each hereby irrevocably consents to the jurisdiction of the state and
federal courts located in Palm Beach County, Florida. THE PARTIES HERETO
HEREBY KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT WHICH EITHER OR BOTH OF
THEM WILL HAVE TO RECEIVE A TRIAL BY JURY WITH RESPECT TO ANY CLAIMS,
CONTROVERSIES OR DISPUTES WHICH WILL ARISE OUT OF OR RELATE TO THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF.
28. ASSIGNMENT.
CYBERCARE and INTERNATIONAL or AMERICARE may assign this Agreement and the
rights granted hereunder in whole or in part as part of a corporate
reorganization,
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consolidation, merger or sale of substantially all of its assets provided
any survivor or successor thereupon assumes the obligations and
liabilities of the assigning party under this Agreement and has
substantially similar financial and business acumen as to the assigning
party. Except as set forth in the preceding sentence (a) AMERICARE shall
not assign, delegate or otherwise transfer this Agreement or any of its
rights or obligations hereunder without the prior written consent of
CYBERCARE and INTERNATIONAL, which consent shall not be unreasonably
withheld or delayed and (b) neither CYBERCARE nor INTERNATIONAL shall
assign, delegate or otherwise transfer this Agreement or any of their
rights or obligations hereunder without the prior written consent of
AMERICARE, which consent shall not unreasonably withheld or delayed. Any
attempted transfer in violation of this provision shall be deemed null and
void.
29. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and understanding among the
parties hereto regarding the subject matter hereof and supersedes any
prior representations, advertisements, statements, proposals,
negotiations, discussions, understandings, or agreements regarding the
same subject matter. The parties acknowledge that they have not been
induced to enter into this Agreement by any representations or statements,
oral or written, not expressly contained in this Agreement. The terms and
conditions of this Agreement shall prevail, notwithstanding any variance
or inconsistency with the terms and conditions of any purchase order or
other document heretofore or hereafter submitted by any party. This
Agreement may not be modified or amended except by a written document
signed by the party against whom the same is sought to be enforced.
30. PUBLICITY.
All press releases, publicity or other materials developed by or on behalf
of one party that refer to this Agreement shall be subject to prior review
and approval by the other party or parties (as applicable) except that the
parties hereto shall have the right, subject to SECTION 15 hereof, to make
accurate factual reference to the existence of a relationship with the
other party without specific authorization from the other party.
31. RIGHT OF FIRST REFUSAL
In the event CYBERCARE or INTERNATIONAL: (a) intend to offer the Service
in territories that are not licensed to third parties; or (b) intends to
renegotiate or renew existing agreements with third parties subsequent to
the execution of this Agreement, AMERICARE shall have a right of first
refusal, unless prohibited by existing contractual obligations of
CYBERCARE or INTERNATIONAL and any third party thereto, to obtain the
exclusive rights and licenses to use, market, distribute, install, support
and maintain the System Units, Caregiver Terminals, Network, and/or
Service (consistent with the rights set forth in this Agreement) in the
territories referred to in this SECTION 31 (a) and /or (b) on terms at
least as favorable as those offered to third parties.
-26-
32. ESCROW AGREEMENT. Within thirty (30) days after Effective Date of this
Agreement, CYBERCARE and INTERNATIONAL shall place the Escrow Material
into escrow with a commercial escrow agent mutually agreed to by the
parties (such as DSI Escrow) and thereafter shall deposit updated
executable versions of the Escrow Material with the escrow agent; such
updates shall be made once per calendar quarter. If one of the following
events occurs, CYBERCARE and INTERNATIONAL hereby grant to AMERICARE a
non-exclusive license to use and modify the Escrow Material: (a) CYBERCARE
or INTERNATIONAL files a petition for relief under any bankruptcy law or
has such a petition filed against it, (b) a receiver is appointed for all
or substantially all of CYBERCARE's or INTERNATIONAL's assets, (c)
CYBERCARE or INTERNATIONAL fails to support the System Unit Software, the
Caregiver Terminal Software or the Network, (d) CYBERCARE or INTERNATIONAL
formally dissolves itself, or (e) CYBERCARE or INTERNATIONAL becomes
insolvent.
33. INSURANCE. (a) CYBERCARE and INTERNATIONAL shall procure and maintain, at
CYBERCARE's and INTERNATIONAL's own expense, in full force and effect at
all times during the Term, product liability insurance with respect to the
System Units and Caregiver Terminals, the Service and the Network written
by a responsible insurance carrier, Best Rated A, with a combined single
limit of not less than Five Million Dollars ($5,000,000) with a maximum
deductible or self-insurance retention amount of $5,000 per occurrence and
$100,000 in the aggregate. Such insurance policy shall name AMERICARE as
an additional insured and will provide for at least thirty (30) days prior
written notice to AMERICARE of the cancellation or substantial adverse
modification thereof. If any insurance policy described in this SECTION
33(A) is written on a claims made basis, CYBERCARE agrees either to (i)
continue to purchase such coverage or (ii) purchase an extended reporting
period endorsement ("tail" insurance), in either instance for the entire
Term of this Agreement (and any extensions of such Term), and for a period
of five (5) years after the end of such Term, if applicable.
(b) AMERICARE shall procure and maintain, at AMERICARE's own expense, in
full force and effect at all times during the Term, liability insurance,
other than for product liability, with respect to the System Units and
Caregiver Terminals written by a responsible insurance carrier, Best Rated
A, with a combined single limit of not less than Five Million Dollars
($5,000,000) with a maximum deductible or self-insurance retention amount
of $5,000 per occurrence and $100,000 in the aggregate. Such insurance
policy shall name CYBERCARE and INTERNATIONAL as additional insured
parties and will provide for at least thirty (30) days prior written
notice to CYBERCARE and INTERNATIONAL of the cancellation or substantial
adverse modification thereof. If any insurance policy described in this
SECTION 33(B) is written on a claims made basis, AMERICARE agrees either
to (i) continue to purchase such coverage or (ii) purchase an extended
reporting period endorsement ("tail" insurance), in either instance for
the entire Term of this Agreement (and any extensions of such Term), and
for a period of five (5) years after the end of such Term, if applicable.
34. RELATIONSHIP OF THE PARTIES. Each party hereto is an independent
contractor and nothing contained herein shall be construed to create a
partnership, joint venture or
-27-
agency relationship between any of the parties hereto, nor shall any party
be authorized to bind any other in any way.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement on the date first written
above.
CYBERCARE TECHNOLOGIES, INC.,
a Georgia corporation
By: /s/ XXXXXX XXXXXX XXXXX
---------------------------------
Name: XXXXXX XXXXXX XXXXX
---------------------------------
Title: PRESIDENT AND CEO
---------------------------------
CYBERCARE INTERNATIONAL LIMITED, CYBERAMERICARE, INC.,
a British Virgin Islands corporation a Delaware corporation
By: /s/ XXXXXX X. XXXXXX, XX. By: /s/ XXXX XXXXX
--------------------------------- ------------------------
Name: XXXXXX X. XXXXXX, XX. Name: XXXX XXXXX
--------------------------------- ------------------------
Title: PRESIDENT Title: CHAIRMAN
--------------------------------- ------------------------
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APPENDIX 1
GTRC LICENSE AGREEMENT
-30-
SCHEDULE 3.3
EXCLUDED CONTRACTS
1. UNLIMITED EXCLUSIVE RIGHTS RETAINED BY CYBERCARE: CYBERCARE shall have the
exclusive right to market, distribute and license the System Units, Caregiver
Terminals and Service to the following: Georgetown University. In addition
CYBERCARE shall have the exclusive right to market, distribute and license the
System Units, Caregiver Terminals and Service to the United States Department of
Defense (the "D.O.D."), including its contractors, subcontractors or agents, if
defined as such in the applicable agreement, doing business with the D.O.D., but
specifically excluding that portion of any business conducted by its
contractors, subcontractors or agents, that involves business other than with
the D.O.D.
2. LIMITED EXCLUSIVE RIGHTS BY CYBERCARE:
(a) CYBERCARE shall have the exclusive right to market, distribute and
license the System Units, Caregiver Terminals and Service to the
United States Veteran's Administration through specific Veterans
Integrated Service Networks ("VISN") pursuant to which CYBERCARE
has executed a definitive agreement for such VISN during the
Reserved Period.
(b) CYBERCARE shall have the exclusive right to market, distribute and
license the System Units, Caregiver Terminals and Service to
Medicaid or similar state agency. AMERICARE shall have the
exclusive right to market, distribute, install, support and
maintain the System Units, Caregiver Terminals and the Service to
all Veterans Integrated Service Network's that have not executed a
definitive agreement with CYBERCARE during the Reserved Period.
3. SYZEX. CYBERCARE shall have the exclusive right to market, distribute and
license the System Units, Caregiver Terminals and Service to Syzex, who shall
resell the System Units, Caregiver Terminals and Service to Syzex's customers as
set forth in Exhibit A to the Letter of Agreement entered into by and between
CYBERCARE and Syzek Corporation on or about September 25, 2001. CYBERCARE and
AMERICARE shall each jointly have the right to market, distribute and license
the System Units, Caregiver Terminals and Service to Syzex customers and
CYBERCARE hereby agrees to pay all Syzex commissions to Syzex for all sales by
AMERICARE to Syzex customers as listed on the Syzex customer list in existence
as of the Effective Date of this Agreement.
4. OTHER RESELLER AGREEMENTS. CYBERCARE shall assign to AMERICARE all CYBERCARE
rights arising pursuant to any agreements entered into following six (6) months
after the Effective Date herein in which CYBERCARE grants to a third party (the
"Reseller") a right to market, distribute and license the System Units,
Caregiver Terminals and Service (the "Reseller Agreements").
-31-
SCHEDULE 5.1.5
END USER AGREEMENT
See "CyberCare System Program Guidelines" Attached.
-32-
SCHEDULE 5.1.6
CAREGIVER AGREEMENT
See "Master Agreement" Attached.
-33-
SCHEDULE 6.1
QUALITY CONTROL SPECIFICATIONS
See SECTION 4.2.1 and SECTION 4.2.2 of the "CyberCare Quality Manual" Attached.
-34-
SCHEDULE 6.4
ORDER PROCESSING AND SHIPPING PROCEDURES
See SECTION 4.15.1 - SECTION 4.15.6 of the "CyberCare Quality Manual" Attached.
-35-
SCHEDULE 16
AMERICARE SUPPORT SERVICES
To be Provided.
-36-
EXHIBIT A
PATENTS
Attached.
-37-
EXHIBIT B
INCLUDED NON-NETWORK PRODUCTS AND SERVICES
See Attached.
-38-
EXHIBIT C
LICENSED MARKS
Attached.
-39-
EXHIBIT D
CAREGIVER TERMINAL SOFTWARE
AND SYSTEM UNIT SOFTWARE
Both the Caregiver Terminal Software and System Unit Software are referred to
as:
ELECTRONIC HOUSECALL SOFTWARE V1.2
In addition to the Electronic HouseCall Software v1.2, Caregiver Terminal
Software includes:
CYBER HEALTHMANAGER(TM) V1.2
Cyber HealthManager(TM) permits care providers to remotely observe a variety of
medical measurements, and other critical information of their patients.
-40-
EXHIBIT E
FORM OF STATEMENT OF WORK
This Statement of Work dated _______________ , 200__ describes the Service to be
performed by CyberCare, Inc., with its principal offices at 0000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 ("CYBERCARE") for CyberAmeriCare, Inc., a
corporation organized and existing under the laws of Delaware, with its
principal offices at 000 Xxxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000
("AMERICARE") and is issued pursuant to the Agreement dated ________________,
200__ ("Agreement") between the CYBERCARE and AMERICARE.
1. SERVICES [DESCRIPTION OF SERVICES TO BE PERFORMED BY CYBERCARE]
2. SCHEDULE The Services to be performed under this Statement of Work shall
commence on _________, 200__ and shall be completed not later than
___________, __.
3. FEES
4. SPECIAL TERMS
PERSONNEL.
[INSERT DUTIES AND DESCRIPTION OF PROJECT SPONSOR, PROJECT MANAGER,]
TECHNICAL MANAGER]
Dated as of ______________, 200__.
CYBERAMERICARE, INC. CYBERCARE, INC.
BY: ____________________________ BY: ________________________________
ITS: ____________________________ ITS: _______________________________
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EXHIBIT F
FORM OF CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT this ("Agreement") is entered into as of the
day of , 2000, by and between CyberAmericare, Inc. and its subsidiaries
(collectively "CAC"), and (the "Recipient").
WHEREAS, CAC and the Recipient are each considering entering into a certain
business transaction, and each party requires access to certain Confidential
Information (as defined below) of the other party in order to evaluate the
possibility of entering into the same; and
WHEREAS, CAC and the Recipient are each willing to disclose to the other party
such Confidential Information but only upon the agreement of the other to
receive and hold such information strictly confidential and upon the further
covenants, agreements and restrictions set forth in this Agreement.
NOW, THEREFORE, to induce each party to disclose Confidential Information, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
SECTION 1. CAC and the Recipient each shall treat confidentially any and all
information furnished by one party (the "Disclosing Party") to the other party
(the "Receiving Party") including, but not limited to, information relating to a
Disclosing Party's past, present or future research, development or business
affairs that such party does not disclose to the public in the ordinary course
of its business such as trade secrets, software, software and technology
architecture, networks, business methodologies, facilities, billing records,
policies, financial and operational information, contracts, officer, director
and shareholder information, suppliers, client lists, marketing prospects,
projected projects, Disclosing Party "know how," and all copies, reproductions,
notes, analyses, compilations, studies, interpretations, summaries and other
documents prepared by the Receiving Party, whether furnished before or after the
date of this Agreement, whether furnished orally or in writing or gathered by
inspection, and regardless of whether or not specifically identified as
"confidential" (collectively, "Confidential Information").
SECTION 2. Notwithstanding the foregoing, the term "Confidential Information"
shall not include information or materials that: (i) become generally available
to the public other than as a result of disclosure by the Receiving Party or its
representatives; (ii) were available to the Receiving Party on a
non-confidential basis prior to disclosure to it by the Disclosing Party; (iii)
become available to the Receiving Party on a non-confidential basis from a
source other than the Disclosing Party, PROVIDED that such source is not bound
by an obligation of confidentiality to the Disclosing Party; or (iv) were
independently developed by the Receiving Party without use of the Disclosing
Party's Confidential Information.
SECTION 3. The Disclosing Party's Confidential Information shall only be used by
the Receiving Party for the sole purpose of evaluating the potential business
relationship between the Receiving Party and the Disclosing Party. No right,
title or interest in and to the Confidential Information of a Disclosing Party
is transferred to the Receiving Party pursuant to this Agreement.
SECTION 4. All communications regarding the Receiving Party's requests for
Confidential Information shall be submitted or directed to the Disclosing Party
or to such designated representatives of the Disclosing Party as are designated
by the Disclosing Party to the Receiving Party. Under no circumstances shall the
Receiving Party contact or deal with, directly or indirectly, any other person
or entity in connection with the Confidential Information of the Disclosing
Party without the Disclosing Party's prior written consent.
SECTION 5. CAC and the Recipient shall retain all Confidential Information of
the other in strict confidence and shall not, and shall direct their respective
directors, officers, employees, and representatives not to disclose the
Confidential Information of the other or any of the following information to any
party: (i) the fact that discussions or negotiations are taking place concerning
a potential business relationship between CAC and the Recipient; (ii) that
Confidential Information of the Disclosing Party has been made available to the
Receiving Party; or (iii) any information regarding the nature of the subject
hereof.
-42-
SECTION 6. If a Receiving Party is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any information supplied to
them pursuant to this Agreement, such Receiving Party shall provide the
Disclosing Party with prompt notice of such request(s) so that the Disclosing
Party may seek an appropriate protective order and/or waive compliance with the
provisions of this Agreement. Receiving Party agrees to cooperate with
Disclosing Party, at Disclosing Party's expense in obtaining such protective
order. If a Disclosing Party does not provide such protective order or waiver
within a reasonable time after such notice, the Receiving Party may disclose
such Confidential Information to such court without liability hereunder,
PROVIDED that the Receiving Party has complied with the notice provisions of
this Agreement, and PROVIDED FURTHER that the Receiving Party has received an
opinion of counsel that concludes that such disclosure is legally required.
SECTION 7. Upon the request of a Disclosing Party, the Receiving Party shall
promptly destroy or deliver to the Disclosing Party Confidential Information of
the Disclosing Party and any notes, extracts or other reproductions in whole or
in part relating thereto without retaining any copy thereof. In the event of
destruction, an officer of Receiving Party should certify that all Confidential
Information has been destroyed.
SECTION 8. (a) Each Receiving Party understands and acknowledges that neither
the Disclosing Party nor its affiliates, or their respective officers,
directors, employees, agents or representatives (collectively "Affiliates") make
any representation or warranty, express or implied, as to the accuracy or
completeness of the Confidential Information;
(b) Neither the Disclosing Party nor its Affiliates shall have any liability to
the Receiving Party or any of its directors, officers, employees and
representatives resulting from the use of or reliance on the Confidential
Information of the Disclosing Party by the Receiving Party or its respective
directors, officers, employees and representatives.
SECTION 9 No failure or delay by a party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right, power or privilege.
SECTION 10. The restrictions and obligations set forth herein on the use and
disclosure of Confidential Information of the other party shall continue in full
force and effect for a period of three (3) years from the date first set forth
above.
SECTION 11. Each Receiving Party acknowledges that the Disclosing Party shall
incur irreparable damage if the Receiving Party should breach any of the
provisions of this Agreement. Accordingly, if a Receiving Party or any of its
respective agents or representatives breaches or threatens to breach any of the
provisions of this Agreement, the Disclosing Party shall be entitled, without
prejudice, to all the rights and remedies available to it, including an
injunction (without any bond or other security being required therefor)
restraining any breach of the provisions of this Agreement by the Receiving
Party or its agents or representatives.
SECTION 12. Neither this Agreement nor the disclosure or receipt of the
Confidential Information of a Disclosing Party or any other activity
contemplated hereunder shall constitute or imply any promise or intention to
make or purchase any products or services by either party.
SECTION 13. CAC and the Recipient each agree that neither the holding of
discussions between them nor the furnishing of Confidential Information shall be
construed as an obligation on the part of either party to refrain from engaging
at any time in any business similar or dissimilar to the business matters
discussed by the parties.
SECTION 14. No notice or other communication shall be deemed given unless sent
in any of the manners, and to the persons, as specified in this paragraph. All
notices and other communications hereunder shall be in writing and shall be
deemed given: (a) upon receipt if delivered personally or if mailed by
registered or certified mail return receipt requested; (b) at noon on the
business day after dispatch if sent by a nationally recognized overnight
courier; or (c) upon the completion of transmission if transmitted by facsimile
in any case to the parties at the addresses or facsimile numbers as specified
below (or at such other address or facsimile number for a party as shall be
specified by like notice):
IF TO CAC:
CyberAmericare, Inc.
______________________________________
______________________________________
______________________________________
Attention: Chief Executive Officer
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Facsimile Number: ______________________
Confirmation Number: ___________________
IF TO THE RECIPIENT:
Attention:
Facsimile Number:
Confirmation Number:
SECTION 15. Neither party may assign or transfer this Agreement or any of rights
or obligations hereunder to any other party without the prior written consent of
the other party, which consent may be withheld for any reason or no reason. Any
change in control of either party, whether by merger, stock acquisition or
otherwise, shall be deemed to be an attempted assignment of this Agreement and
shall be grounds for termination. Subject to the foregoing, this Agreement shall
be binding upon the undersigned, its permitted successors and assigns.
SECTION 16. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida without regard to its conflicts of law
principles.
SECTION 17. This Agreement may be signed in counterparts with the same effect as
if both parties had signed one and the same document.
SECTION 18. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, such provision shall be conformed to prevailing
law rather than voided, if possible, in order to achieve the intent of the
parties and, in any event, the remaining provisions of this Agreement shall
remain in full force and effect and shall be binding upon the parties hereto.
SECTION 19. All provisions which by their nature should survive the termination
of this Agreement shall survive the termination of this Agreement for any
reason.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized representatives.
RECIPIENT
By: ______________________________
Name: ______________________________
Title: ______________________________
CyberAmericare, Inc.
By: ______________________________
Name: ______________________________
Title: ______________________________
-44-
