LICENSE AGREEMENT
EXHIBIT 10.3
THIS AGREEMENT is made as of the 24th day of April, 2009 (the “Effective Date”)
BETWEEN
| HearUSA, INC., a corporation established under the laws of Delaware. 0000 Xxxxxxxxxx Xxxxxxx, Xxxx Xxxx Xxxxx, XX 00000 |
||
Telephone Number:
|
(561) 478-8770 ext. 133 | |
Fax Number:
|
(000) 000-0000 | |
(hereinafter, “Licensor”)
AND
| HELIX HEARING CARE OF AMERICA CORP., a corporation established under the laws of Canada 000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX X0X 0X0 |
||
Telephone Number:
|
(000) 000-0000 | |
Fax Number:
|
(000) 000-0000 | |
(hereinafter, “Licensee”)
IN CONSIDERATION of the covenants and agreements set out in this Agreement, and other good and
valuable consideration, the parties agree as follows:
1.1 Definitions. A glossary of defined terms is set out in Schedule A (Glossary). All capitalized
terms used in this License Agreement will have the meaning set out in Schedule A.
| (a) | to use the Software in connection with Licensee’s operations, for the benefit
of Licensee, in accordance with the terms of this Agreement, including: (i) use for
disaster recovery, training, testing and production purposes; and (ii) running,
executing, storing, transmitting, copying and networking the Software; |
| (b) | to reproduce copies of applicable Documentation as required by Licensee; |
| (c) | to duplicate the Software for archival or back-up purposes and store such
duplicate copies at locations other than Licensee’s location set out at the start of
this Agreement provided that: (i) the copy contains all of the original Software’s
proprietary notices; (ii) Licensee maintains accurate and up-to-date records of the
location of any copy made; and (iii) Licensee agrees not to transfer any back-up copy
of the Software unless in accordance with the assignment provisions of this Agreement; |
| (d) | to use the Software at an alternative processing site concurrent with use in
the primary processing location for disaster recovery purposes, as well as for disaster
recovery testing and drills; and |
| (e) | to create interfaces between the Software and other systems and program
materials as may be required by Licensee to achieve the maximum benefits from its use
of the Software and of such other systems and program materials. |
Furthermore, Licensee may sublicense the Software and Documentation to Licensor or any of its
Affiliates for use in Canada.
| (a) | decompile, disassemble, or reverse engineer the Software; or |
| (b) | modify or create any derivative works based on the Software. |
| License Agreement — CMS Software | Confidential |
2
8.1 Indirect Damages. NEITHER PARTY (INCLUDING ITS REPRESENTATIVES) WILL BE LIABLE TO THE OTHER IN
ANY WAY WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, OR SPECIAL DAMAGES. THIS LIMITATION
WILL APPLY WHETHER OR NOT THE DAMAGES ARE FORESEEABLE OR THE DEFAULTING PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
8.2 Direct Damages. THE PARTIES AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR ANY
CLAIM, ACTION OR DEMAND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (“CLAIM”) WILL BE
LIMITED TO SUCH DIRECT DAMAGES AS ARE ACTUALLY INCURRED BY THE CLAIMING PARTY.
8.3 Limit. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF LICENSOR (INCLUDING ITS
REPRESENTATIVES) TO LICENSEE (INCLUDING ITS REPRESENTATIVES), FOR ANY CLAIMS ARISING OUT OF OR
RELATING TO THIS AGREEMENT, EXCEED $500,000.00.
8.4 Exceptions. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN SECTION 8.1, SECTION 8.2
AND SECTION 8.3 DO NOT APPLY TO ANY CLAIM ARISING FROM FRAUD OR WILFUL MISCONDUCT OR ANY CLAIM FOR
INDEMNIFICATION UNDER SECTION 7.1. OTHERWISE, THE FOREGOING PROVISIONS SET OUT IN THIS SECTION 8
WILL APPLY REGARDLESS OF THE FORM OR CAUSE OF ACTION.
| License Agreement — CMS Software | Confidential |
4
| (a) | The headings used in this Agreement are for convenience of reference only, and
are not intended to be full or accurate descriptions of the content of the paragraphs. |
| (b) | No provision of this Agreement will be interpreted against any party merely
because that party or its legal representative drafted the provision. |
| (c) | This Agreement has been drawn up in English at the request of the parties. |
| (d) | All remedies are cumulative. |
| (e) | This Agreement is for the benefit of, and binding upon the parties, their
successors and permitted assigns. |
| (f) | Throughout this Agreement, the term “including” or the phrases “e.g.,” or “for
example” have been used to mean “including, without limitation”. The examples provided
should not be considered to be all-inclusive. |
| (g) | Words denoting the singular include the plural and vice versa, and words
denoting any gender include all genders. |
| (h) | Except as otherwise provided, the terms “hereunder”, “herein”, “hereby”,
“hereof”, “hereto”, “hereinafter” and any other similar expression when used in this
Agreement usually refer to this Agreement as a whole rather than to any particular
section thereof. |
| License Agreement — CMS Software | Confidential |
5
11.6 Governing Law. This Agreement will be governed by and construed in accordance with the laws
of the Province of Ontario and the laws of Canada applicable therein, without reference to the
conflict of laws provisions or principles. The parties agree that any Dispute shall be dealt with
in accordance with Schedule D. The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this Agreement.
[The remainder of this page has intentionally been left blank.]
| License Agreement — CMS Software | Confidential |
6
| HearUSA, INC. | HELIX HEARING CARE OF AMERICA CORP. | |||||||||||||
By:
|
By: | |||||||||||||
| Name: | Name: | |||||||||||||
| Title: | Title: | |||||||||||||
[Signature page to the License Agreement]
| License Agreement — CMS Software | Confidential |
7
SCHEDULE A
GLOSSARY
GLOSSARY
In this Agreement, the following words and phrases have the meanings set out below:
“Affiliate” means a legal entity that: (a) owns and controls a party, directly or indirectly, or
(b) is owned and controlled, directly or indirectly, by a party, or (c) is directly or indirectly
under common ownership and control with a party.
“Agreement” means the sections and schedules of this Software License Agreement as amended from
time to time, and such other documents as are expressly incorporated by reference in this Software
License Agreement.
“Business Day” means Monday to Friday inclusive, other than a day that is observed as a statutory
or civic holiday in the Province of Ontario.
“Confidential Information” has the meaning set out in Schedule C.
“Dispute” has the meaning set out in Schedule D.
“Documentation” means all documents (regardless of how embodied) that are related to or that are
reasonably required to enable Licensee to use or to obtain the benefit of the Software or Services
including specifications.
“Effective Date” means the date of this Agreement set out at the start of this Agreement.
“Enhancements” means improvements, refinements, upgrades or other modifications to the Software
that add new functionality or features to the Software without being an Update. For clarity,
Enhancements are a subset of the Software.
“Fees” is defined in Section 3.1.
“Harmful Code” is defined in Section 7.2.
“Intellectual Property Rights” means all the intellectual property, industrial and other
proprietary rights, protected or protectable, under the laws of the United States, Canada, any
other country, or any political subdivision thereof, including, without limitation: (i) all trade
names, trade dress, trade-marks, service marks, logos, brand names and other identifiers; (ii)
copyrights, moral rights (including rights of attribution and rights of integrity); (iii) all trade
secrets, inventions, discoveries, devices, processes, designs, techniques, ideas, know how and
other confidential or proprietary information, whether or not reduced to practice; (iv) all
domestic and foreign patents and the registrations, applications, renewals, extensions and
continuations (in whole or in part) thereof; and (v) all goodwill associated therewith and all
rights and causes of action for infringement, misappropriation, misuse, dilution or unfair trade
practices associated with (i) through (iv) above.
“Laws and Regulations” means any and all applicable federal, state, provincial, or municipal (or
other political subdivisions thereof) laws, by-laws, codes, orders, ordinances, rules, regulations
or statutes and all applicable judicial or administrative judgements and orders and rules of common
law that are in existence on the Effective Date of this Agreement or come into existence during the
duration of this Agreement, all as amended, re-enacted, consolidated or replaced, from time to
time.
“Person”, if the context allows, means any individual, person, estate, trust, firm, partnership or
corporation, government or any agency or ministry of any government, and includes any successor to
any of the foregoing.
“Personal Health Information” means any information that is described as personal health
information in section 4 of PHIPA or any similar Laws and Regulations in effect in any province or
territory of Canada.
“Personal Information” means any personal information which is required to be protected pursuant to
any Laws and Regulations pertaining to the protection of personal information. For clarification,
Personal Information is a subset of Confidential Information.
| License Agreement — CMS Software | Confidential |
8
“PHIPA” means the Personal Health Information Protection Act, 2004, S.O. 2004, Chapter 3, Schedule
A as amended or replaced from time to time.
“Representatives” means, in the case of Licensee, Licensor or any other Person, any directors,
officers, appointees, employees, agents, consultants or subcontractors, as well as the
subcontractor’s directors, officers, employees, agents, consultants or subcontractors.
“Software” means the items of software, including all code to be supplied by Licensor to Licensee,
as set out in Schedule B. Updates and Enhancements provided to Licensee are deemed to be Software.
“Update” means fixes, patches, improvements, refinements or other modifications to the Software
that address any known problem with the Software and may incidentally improve the functionality of
the Software. For clarity, Updates are a subset of the Software.
“User” means any individual who is identified by Licensee as a User and is: (i) a Representative
of Licensee; or (ii) a Representative of any Licensee service provider who requires the right to
obtain access to and to use one or more items of Software in connection with its provision of
services to Licensee.
| License Agreement — CMS Software | Confidential |
9
SCHEDULE B
SOFTWARE
SOFTWARE
The following is intended solely as a description of the features and functionality of the Software
and Documentation. To the extent that there is any inconsistency between this Schedule and any
other portion of the Agreement, the other provision shall take precedence.
The following modules form part of the Software and Licensor will provide a copy of each of the
following modules to Licensee in object code form:
| (a) | Patient Information Module |
The Patient Information module of the Software is a tool for capturing patient information
including primary/secondary addresses, responsible parties, primary/secondary physicians, phone
number, referral sources, contact preferences, Date of Birth, visit outcome, and patient notes.
For a more detailed description of the Patient Information module of the Software, please see the
Documentation.
The Appointment Scheduler module of the Software is a tool for enabling appointment views (by day
by professional by room) and also capturing professional, appointment type, referral source,
appointment confirmation, 3rd party confirmation, appointment status, 3rd party representation, and
appointment notes.
For a more detailed description of the Appointment Scheduler module of the Software, please see the
Documentation.
| (c) |
The Order module of the Software is a tool for capturing hearing aid options, ear mold, repairs and
ordering information.
For a more detailed description of the Order module of the Software, please see the Documentation.
The Invoice & Returns module of the Software is a tool for capturing and calculating invoices based
on insurance plan benefits and allows a reversal of the invoice process.
For a more detailed description of the Invoice & Returns module of the Software, please see the
Documentation.
The Medical Reporting module of the Software is a tool that contains the following information,
functions and features:
| (i) | Captures the patients’ audiometric history |
| (ii) | Food and Drug Administration (FDA) questions |
| (iii) | Prior hearing aid (HA) history which includes purchases |
| (iv) | Help feature to interpret audiometric data |
| (v) | Audiometric findings including speech testing |
| (vi) | Immittance Testing |
| (vii) | Summary of findings and recommendations |
| (viii) | Data can feed into a separate marketing database (Not included) |
| (ix) | Produces a medical consultation form |
| (x) | Auditory brainstem response/electronystagmography (ABR/ENG) interpretation and reporting |
For a more detailed description of the Medical Reporting module of the Software, please see the
Documentation.
| License Agreement — CMS Software | Confidential |
10
| (f) | Physician Referral Module |
The Physician Referral module of the Software is a tool for capturing primary and specialty
physician information as well as alternate locations.
For a more detailed description of the Physician Referral module of the Software, please see the
Documentation.
The Operational Reporting module of the Software is a tool that contains built-in reports that
allow center to manage appointment scheduling, patient, daily operations.
For a more detailed description of the Operational Reporting module of the Software, please see the
Documentation.
The Daily Transaction module of the Software is a tool for allowing centers to summarize daily
financial transactions.
For a more detailed description of the Daily Transaction module of the Software, please see the
Documentation.
| (i) | Call-Center Capable Interface Module |
The Call-Center Capable Interface module of the Software is a tool that contains a built-in ability
that allows a scaled down version of the Software for call-center appointment scheduling.
For a more detailed description of the Call-Center Capable Interface module of the Software, please
see the Documentation.
| (k) | Data Mining/Marketing Abilities Module |
The Data Mining/Marketing Abilities module of the Software is a tool for enabling Users to capture,
sort and search information contained in the other modules of the Software.
For a more detailed description of the Data Mining/Marketing Abilities module of the Software,
please see the Documentation.
The Price Quoting System module of the Software is a tool for allowing professionals to quote and
specify pricing before order creation.
For a more detailed description of the Price Quoting System module of the Software, please see the
Documentation.
| (m) | Insurance & Member Information Module |
The Insurance & Member Information module of the Software is a tool for capturing patients’ and
members’ primary and secondary insurance information.
For a more detailed description of the Insurance & Member Information module of the Software,
please see the Documentation.
| (n) | Insurance Plan Entry Module |
The Insurance Plan Entry module of the Software is a tool for allowing Users to capture
unlisted/non-covered insurance plans and patient and member information.
For a more detailed description of the Insurance Plan Entry module of the Software, please see the
Documentation.
| License Agreement — CMS Software | Confidential |
11
| (o) | Plan/Benefit Lookup Module |
The Plan/Benefit Lookup module of the Software is a tool for linking to a repository of plan
information including detailed descriptions and benefits (Sample plan will be provided).
For a more detailed description of the Plan/Benefit Lookup module of the Software, please see the
Documentation.
The Report Catalogue module of the Software is a resource for creating various reports. For a more
detailed description of the Report Catalogue module of the Software, please see the Documentation.
Licensor will provide Documentation to Licensee, including without limitation, the following items:
1. The document entitled “Helix Hearing Care Centre CMS and Helix Procedures” (the “Procedures
Document”), a copy of which is attached as Exhibit A to this Schedule B. For purposes of clarity,
the Procedures Document is attached hereto for purposes of describing the functionality of the
Software. Licensee is not required to follow the procedures set out in the Procedures Document.
2. The one page schematic diagram which describes how all of the modules interact with the
Software.
| License Agreement — CMS Software | Confidential |
12
EXHIBIT A TO SCHEDULE B
HELIX HEARING CARE CENTRE CMS AND HELIX PROCEDURES
HELIX HEARING CARE CENTRE CMS AND HELIX PROCEDURES
Attached is a copy of the document entitled “Helix Hearing Care Centre CMS and Helix Procedures”.
| License Agreement — CMS Software | Confidential |
13
EXHIBIT B TO SCHEDULE B
SCHEMATIC DIAGRAM OF SOFTWARE
SCHEMATIC DIAGRAM OF SOFTWARE
Attached is a copy of the one page schematic diagram which describes how all of the modules
interact with the Software.
| License Agreement — CMS Software | Confidential |
14
SCHEDULE C
CONFIDENTIALITY AND PRIVACY
CONFIDENTIALITY AND PRIVACY
1. CONFIDENTIALITY
1.1 Definitions and Background.
| (a) | “Confidential Information” means any and all information and materials, which:
(i) are designated in writing, as confidential at the time of disclosure, or (ii) a
reasonable person, having regard to the circumstances, would regard as confidential,
including Personal Information. For clarity, the Software and Documentation are
Confidential Information. |
| (b) | Both parties recognize that the protection of any Confidential Information
provided or made available by either party or from whom access is otherwise obtained,
is of vital importance to the party who provided it or made it available or from whom
access is otherwise obtained. |
| (c) | Both parties acknowledge that Confidential Information may include Personal
Health Information and that protecting the privacy of the individuals to whom such
information relates is of paramount concern. |
| (d) | “Disclosing Party” means, with respect to any item of Confidential Information,
the party who provides or otherwise makes available such Confidential Information to
the other party, or from whom access to the Confidential Information is otherwise
obtained, either directly or indirectly. |
| (e) | “Recipient” means, with respect to any item of Confidential Information, the
party who receives or otherwise obtains access to such information. |
1.2 Exceptions. Confidential Information does not include information which:
| (a) | is or at any time is made generally available to the public by the Disclosing
Party, but only after it becomes generally available to the public; |
| (b) | is known to the Recipient (as substantiated by cogent and reliable written
evidence in the Recipient’s possession) free of any restrictions at the time of
disclosure; |
| (c) | is independently developed by the Recipient through individuals who have not
had either direct or indirect access to the Confidential Information; and |
| (d) | is rightfully obtained by the Recipient, without any obligation of confidence
of any kind, from a third party who had a right to transfer or disclose it to the
Recipient free of any obligation of confidence. |
The above listed exceptions do not apply in the case of Confidential Information that is also
Personal Information.
1.3 Required by Law. The Recipient shall not be liable for disclosure of Confidential Information
if disclosure is required by law, provided that the Recipient, to the extent permitted by
applicable Laws and Regulations, notifies the Disclosing Party of any such requirement as soon as
legally permissible, so that the Disclosing Party may seek a protective order or other relief.
1.4 Ownership. As between the parties, each party is the owner of its Confidential Information,
and except to the extent set out in this Agreement, no interest, licence or other right in or to
its Confidential Information is granted to the other party or implied simply by the disclosure of
the Confidential Information.
| License Agreement — CMS Software | Confidential |
15
1.5 Warranties. EXCEPT TO THE EXTENT EXPRESSLY SET OUT OTHERWISE IN THIS AGREEMENT:
| (a) | ALL CONFIDENTIAL INFORMATION PROVIDED BY OR ON BEHALF OF THE DISCLOSING PARTY
IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION OF
ANY KIND. |
| (b) | WITHOUT LIMITING SECTION 1.5(a), EACH PARTY EXPRESSLY EXCLUDES THE FOLLOWING
REPRESENTATIONS, CONDITIONS AND WARRANTIES WITH RESPECT TO ITS CONFIDENTIAL
INFORMATION: ACCURACY, COMPLETENESS OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS OR OTHER RIGHTS OF THIRD PARTIES. |
1.6 Recipient’s Obligations. The Recipient will:
| (a) | keep the Disclosing Party’s Confidential Information confidential and secure; |
| (b) | use the Disclosing Party’s Confidential Information only in accordance with
this Agreement and only for the purpose of fulfilling its obligations and exercising
its rights under this Agreement and will not directly or indirectly disclose, destroy,
exploit or use any Confidential Information of the Disclosing Party for any other
purpose; |
| (c) | use at least the same degree of care to protect the Disclosing Party’s
Confidential Information as the Recipient uses to protect its own confidential
information of a like nature, but in any event shall not use a standard of care that is
less than a reasonable standard of care, taking into account the sensitivity of any
applicable items of Confidential Information; |
| (d) | not disclose the Disclosing Party’s Confidential Information to any person
other than the Recipient’s Representatives who have a need to know it for the purposes
described in paragraph (b) above and who are bound by a written contract to keep
confidential the confidential information of third parties including the Confidential
Information, at least to the same extent as set forth in this Agreement; |
| (e) | not make copies of any of the Disclosing Party’s Confidential Information or
modify it other than as expressly permitted under this Agreement; |
| (f) | not remove any confidentiality, copyright or other proprietary rights notices
from any of the Disclosing Party’s Confidential Information including from any copies
of such Confidential Information; |
| (g) | upon demand, inform the Disclosing Party of the location of the Disclosing
Party’s Confidential Information and the measures that the Recipient has taken to
preserve its confidentiality; and |
| (h) | notify the Disclosing Party immediately upon becoming aware of any unauthorized
copying, disclosure or use of the Disclosing Party’s Confidential Information by the
Recipient or by any Representative or other individual or entity to whom the Recipient
has disclosed Confidential Information pursuant to this Agreement, and make a
commercially reasonable effort to minimize the effect of any such use or disclosure. |
1.7 Equitable Relief. Each party acknowledges that the Confidential Information of the other party
is of value to the other party or to its suppliers and that any breach of this Agreement will cause
irreparable injury to the other party or to any third party to whom the other party owes a duty of
confidence, and that any such injury to the other party or to any such third party may be difficult
to calculate and inadequately compensate in damages. Consequently, each party agrees that in
addition to any other remedies that the other party may have, the other party shall be entitled to
seek injunctive and other equitable relief, as a matter of right without proving injury, and any
other remedy for any actual or potential breach of this Agreement.
| License Agreement — CMS Software | Confidential |
16
1.8 Return of Confidential Information. The Recipient shall, at any time upon request of the
Disclosing Party and upon termination of this Agreement, immediately return the Disclosing Party’s
Confidential Information and all copies thereof in any form whatsoever under the power or control
of Recipient, to the Disclosing Party, provided
that: (a) to the extent that the Recipient is not reasonably able to return any such Confidential
Information, the Recipient may, with the consent of the Disclosing Party, destroy such Confidential
Information and provide the Disclosing Party with a destruction certificate signed by an
appropriate officer of Recipient certifying such destruction; and (b) the Recipient shall be
entitled to retain the Disclosing Party’s Confidential Information if so required by applicable
Laws and Regulations provided that the Recipient continues to comply with the provisions of this
Agreement pertaining to the protection of Confidential Information which will extend and limit
further uses and disclosures of the Disclosing Party’s Confidential Information to complying with
applicable Laws and Regulations. Without limiting the foregoing, Licensee is not required to
return any Confidential Information for which any right or license is granted to Licensee that
survives the termination of this Agreement.
2. PRIVACY
2.1 Personal Information. The parties shall, at all times, comply with all applicable Laws and
Regulations pertaining to the protection of Personal Information; provided however, that Licensor
shall not be required to modify, update or upgrade the Software or Documentation to comply with any
applicable Laws and Regulations, unless required to do so under a separate agreement.
2.2 Assistance. Each party will promptly provide a reasonable response to any questions posed by
the other party from time to time with respect to compliance with Section 5 of this Agreement and
this Schedule C.
| License Agreement — CMS Software | Confidential |
17
SCHEDULE D
DISPUTE RESOLUTION
DISPUTE RESOLUTION
1. DEFINITION OF DISPUTE
“Dispute” means any dispute or controversy between Licensor and Licensee (collectively the
“Parties” and individually a “Party”)) with respect to any matter arising out of or in connection
with this Agreement or otherwise related to this Agreement.
2. GENERAL PRINCIPLES
2.1 Application
Except where expressly excluded from the provisions of this Schedule D, all Disputes shall be
resolved by employing the procedures provided for in this Schedule D.
2.2 Injunctive Relief
For clarification, the provisions of this Schedule D shall not limit or restrict the right of
either Party to seek injunctive relief or to bring any action in any court of law with respect to
any dispute, controversy or claim relating to the improper use or misappropriation of Intellectual
Property Rights or breach of confidentiality or breach of privacy.
2.3 Suspension
Subject to the terms of this Agreement, unless requested or otherwise agreed by the other Party in
writing to do so, neither Party shall stop or suspend its performance under this Agreement pending
the resolution of any Dispute.
2.4 Early Resolution
All Disputes that may arise with respect to any matter governed by this Agreement shall to the
fullest extent possible be resolved collectively by the Parties’ Representatives, or any person
designated by any of them to deal with any category of Dispute.
2.5 Third Parties
The Parties shall cooperate to facilitate the participation of any Person that either Party
reasonably believes can contribute to the resolution of any Dispute.
First Level of Dispute Resolution — If the Parties’ Representatives are unable to resolve a Dispute
within 10 Business Days, then the Dispute shall be referred to the President (or substantial
equivalent) of each party for resolution (each an “Executive”). The Executives shall make all
reasonable efforts to resolve the Dispute within 20 Business Days of its referral. Each Party
shall ensure that its Executive has the necessary authority to resolve that Dispute on behalf of
that Party.
| (a) | If the time periods set out in Section 3.1 of this Schedule D applicable to any
Dispute expire without that Dispute being resolved, either Party may upon Notice to the
other Party, initiate arbitration of the Dispute in accordance with the Rules of the
American Arbitration Association (or its successor) in effect at the date of
commencement of such arbitration to the extent that the provisions of such rules are
not inconsistent with the provisions of this Agreement (the “Rules”). |
| License Agreement — CMS Software | Confidential |
18
| (b) | If the arbitrator fails to render a decision within 30 days following the final
hearing of the arbitration or any extension of time thereto granted with the written
consent of both Parties, either Party may terminate the appointment of the arbitrator
and a new arbitrator shall be appointed in accordance with these provisions. |
| (c) | The arbitration shall: |
| (i) | be before a single arbitrator appointed in accordance
with the Rules; |
| (ii) | take place in Buffalo, New York at a time, date and place
specified by the arbitrator unless otherwise agreed in writing by Licensee
and Licensor; and |
| (iii) | be final and binding and may be enforced in the same
manner as a judgment or order to the same effect, and no appeal shall lie
therefrom except on questions of law or the jurisdiction of the arbitration. |
| (d) | The arbitrator: |
| (i) | shall not be interested financially in this Agreement or
in either Party’s business; |
| (ii) | shall not be employed by either Party or employed by a
person engaged by either Party; |
| (iii) | shall be required to make his award as soon as possible,
and if at all practicable, within 10 days after the conclusion of the
arbitration hearing; |
| (iv) | may appoint independent experts and any other person to
assist him or her in the hearing of the arbitration; |
| (v) | may determine all questions of law and jurisdiction
including questions as to whether the dispute is arbitrable; |
| (vi) | may determine any question of fact including questions of
good faith, dishonesty or fraud arising in the Arbitration; |
| (vii) | may order any Party to furnish such further details of
that Party’s case, as to fact or law, as it may require; |
| (viii) | may require or permit the Parties to give evidence under oath or solemn
affirmation; |
| (ix) | may order the Parties or either of them to make interim
payments towards the costs of the Arbitration; |
| (x) | shall have the right to grant permanent and interim
damages or injunctive relief; and |
| (xi) | shall have the discretion to award costs including
reasonable legal fees, interest and costs of the arbitration; provided that
the Arbitrator shall not have the right to award any punitive or other
damages specifically excluded by this Agreement. |
| (e) | Unless the Parties shall at any time otherwise agree in writing, the arbitrator
shall have the power, on the application of either of the Parties or of its own motion
(but in either case only after hearing or receiving any representations from the
Parties concerned that it determines in its discretion to be appropriate): |
| (i) | to allow other parties to be joined in the Arbitration
with their express consent, and make a single final award determining all
disputes between them; |
| License Agreement — CMS Software | Confidential |
19
| (ii) | to allow any Party, upon such terms (as to costs and
otherwise) as it shall determine, to amend its claim, defence, reply,
counter-claim or defence to counter-claim; |
| (iii) | to extend or abbreviate any time limits provided by
these Rules or by its directions; |
| (iv) | to direct the Parties to exchange written statements,
whether or not verified by oath or affirmation, of the evidence of
witnesses, and direct which of the makers of such statements are to attend
before it for oral examinations; |
| (v) | to determine what witnesses (if any) are to attend before
it, and the order and manner (including cross-examination) in which, and by
whom, they are to be orally examined; |
| (vi) | to conduct such further or other inquiries as may appear
to it to be necessary or expedient; |
| (vii) | to order the Parties to make any property or thing
available for its inspection or inspection by another Party and inspect it
in their presence; |
| (viii) | to order the Parties to produce to it, and to each other for inspection,
and to supply copies of, any documents or classes of documents in their
respective possession, control or power that it determines to be relevant; |
| (ix) | to order the preservation or storage of any property or
thing under the control of any of the Parties relevant to the Dispute before
it; and |
| (x) | to make interim orders for security for costs for any
Party’s own costs, and to secure all or part of any amount in dispute in the
Arbitration. |
| (f) | Each Party shall: |
| (i) | cooperate with the arbitrator; |
| (ii) | provide the arbitrator with all information in its
possession or under its control necessary or relevant to the matter being
determined; |
| (iii) | use its best efforts to cause any arbitration hearing
that may be held hereunder to be: |
| (A) | started as soon as practicable, and not later
than 60 days of when the arbitrator is appointed; and |
| (B) | completed as soon as practicable, and if
possible, within one day. |
| (g) | Disputes involving more than two parties shall be settled by one arbitration,
as determined by the arbitration procedures adopted in this clause. |
| (h) | Where by this clause any Dispute is to be referred to arbitration, the making
of a final award shall be a condition precedent to any right of action by either Party
against the other. |
| (i) | Judgment upon an award, including any interim award, rendered by the arbitrator
may be entered in any Court having jurisdiction thereof. |
| (j) | The arbitrator’s fee shall be equally shared by the Parties. The fees of any
independent experts and any other persons appointed to assist the arbitrator shall be
shared equally by the Parties. |
| License Agreement — CMS Software | Confidential |
20
The existence of any Dispute being resolved under this Schedule D and any steps or proceedings
taken by the Parties in connection therewith shall be deemed to be Confidential Information of the
Parties, except to the extent that disclosure of such information is required by Laws and
Regulations or is necessary in connection with proceedings instituted in a court of competent
jurisdiction as permitted in this Agreement.
| License Agreement — CMS Software | Confidential |
21
| HearUSA, INC. | HELIX HEARING CARE OF AMERICA CORP. | |||||||||||||
| Signature: | /s/ Xxxxxxx X. Xxxxxxxxxx | Signature: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||||||||||
| Name: | Xxxxxxx X. Xxxxxxxxxx | Name: | Xxxxxxx X. Xxxxxxxxxx | |||||||||||
| Title: | Chairman and CEO | Title: | Chairman and CEO | |||||||||||
[Signature page to License Agreement]
| License Agreement — CMS Software | Confidential |
22