SERVICE AGREEMENT
Exhibit
10.20
This
Connectivity Agreement ("Agreement") is entered into as of 11/30/07 ("Effective
Date") by and between eRx
Network, LLC ("eRx"), with offices at 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxx Xxxxx Xxxxx 00000, and Vemics, Inc., A Nevada Corporation, with
offices at 000 Xxxxxx Xxxxxxx, Xxxxxx, XX 00000, ("Vemics").
Recitals
Whereas The
Vemics iMedicor Portal (“Imedicor”) gives physicians and healthcare
professionals the ability to exchange patient Protected Health Information
(“PHI”) with other healthcare organizations in a HIPAA compliant environment and
manner. In addition, IMedicor also makes available to it’s users a catalog of
Certified Medical Education (“CME”) content and a system that facilitates the
use of voice recognition software modify, edit and create text
files.
Whereas eRx
is a healthcare network organization offering a variety of financial and
clinical electronic data interchange transaction services to subscribing
healthcare providers and pharmacies. These services include faxing and
electronic prescription transaction routing to subscribing healthcare providers
of its own or others’ software and/or networks through its proprietary, secure,
national network (“eRx Pad®”).
Whereas eRx
desires to establish a connection from eRx Pad® to Partner’s web portal in order
to facilitate the exchange of Prescription Data between eRx Subscribers and
Vemics’s Subscribers. Functionality and components of this connection will
include, but are not limited to, the following:
A. eRx
and Vemics will work together to implement a system to allow Physician(s) to
view refill requests, and approve or deny these prescription requests from
Pharmacy’s utilizing the eRx Pad®, the IMedicor Portal and the Partner Web
Portal.
B. On
a non-exclusive basis, Vemics will make available to all authorized IMedicor
Subscribers the Partner Web Portal, and eRx will make available all eRx
Subscribers on eRx Pad®.
C. eRx
will work with their customers and Vemics to advise their facsimile customers of
the ability to issue refill request through Partner Web Portal rather than by
facsimile. eRx and its customers have the right of refusal regarding
messaging, including placement and message content that does not facilitate the
goals of this agreement
NOW,
THEREFORE, intending to be legally bound hereby, eRx and Vemics agree as
follows:
1. DEFINITIONS. Defined
terms used in this Agreement but not otherwise defined herein shall have the
meanings set forth in this Article 1 as follows:
1.1. "Confidential Information"
shall mean confidential or other proprietary information that is disclosed by
one party to the other party under this Agreement, including, without
limitation, designs, software designs and code, product specifications and
documentation, business and product plans, patient information, prescription
information or data, Individually Identifiable Health Information and clinical
data contained in the Prescription Data communicated between the parties, and
other confidential business information. Confidential Information
shall not include information which: (i) is or becomes public knowledge without
any action by, or involvement of, the party receiving the Confidential
Information hereunder; (ii) is independently developed by the receiving party
without use of the other party's Confidential Information; (iii) is already
known to the receiving party at the time of disclosure under this Agreement; or
(iv) is disclosed to the receiving party by a third party who is entitled to
disclose it without restriction.
1.2. "Connectivity Service" shall
mean the service of providing connectivity between the Partner Web Portal and
eRx Pad® through which Prescription Data may be exchanged between the parties on
a non-exclusive basis.
1.3. "eRx Interface " shall mean
the eRx portion of the bi-directional interface developed by eRx based on the
Interface Specifications.
1.4. "eRx Subscriber" shall mean a
registered pharmacy customer of eRx Pad® using an eRx software product or some
other third-party
software product to send and receive transactions through eRx
Pad®.
1.5. “IIHI” shall mean all
individually identifiable health information as defined in the Health Insurance
Portability and Accountability Act of 1996, as amended, and the regulations
promulgated thereunder, that is provided, directly or indirectly, by or on
behalf of one party to the other party.
1.6. "Intellectual Property Rights"
shall mean all forms of intellectual property rights and protections and
proprietary rights, including without limitation, all right, title and interest
arising under United States common and statutory law and the laws of other
countries to all: (i) patents and all filed, pending or potential applications
for patents, including any reissue, reexamination, division, continuation or
continuation-in-part applications throughout the world now or hereafter filed;
protecting all rights of patentability (ii) trade secret rights and equivalent
rights; (iii) copyrights, other literary property or authors rights, whether or
not protected by copyright or as a mask work; (iv) proprietary indicia,
trademarks, trade names, symbols, logos and/or brand names and (v) inventions,
know-how, methodologies and industrial design rights.
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1.7. “Interface Specifications”
shall mean the set of written documents that represents the agreed to technical
design and functionality of the connection between eRx Pad® and Partner Web
Portal as set forth in Exhibit A, incorporated herein by
reference. The Interface Specifications will also include, without
limitation, transaction specifications for Prescription Data, and business
rules, policies and procedures relating to the Prescription Data flow between
eRx Pad® and Partner Web Portal.
1.8. "Partner Web Portal Interface"
shall mean Vemics’s portion of the bi-directional interface developed by Vemics
based on the Interface Specifications.
1.9. “Prescription Data” shall mean
the following types of transactions: original prescriptions; refill
authorization requests; refill authorizations; stop orders; and other mutually
agreed upon transaction types (as they become available from
pharmacies).
1.10. “Privacy Rule” shall mean the
Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R.
Parts 160 and 164.
1.11. "Vemics Subscriber" shall mean
a Vemics customer who is an authorized physician using a Vemics software product
or some other third-party software product and/or network to send and receive
transactions through Partner Web Portal.
1.13. “Security Rule” shall
mean the Security Standards for Protection of Electronic Protected Health
Information at 45 C.F.R. Part 164, subpart C.
1.14. "System" shall mean
either the Partner Web Portal or the eRx Pad®, as applicable, and "Systems"
shall mean the Partner Web Portal and the eRx Pad®.
2. SERVICES,
SUPPORT AND SYSTEM MODIFICATIONS.
2.1. General. Subject to
the terms of this Agreement, eRx and Vemics will mutually implement the
Connectivity Service using a bi-directional interface between the eRx Pad and
Partner Web Portal to facilitate the exchange of prescription related data (i.e.
refill prescription request messages) between eRx Subscribers and IMedicor
Subscribers. In connection therewith, eRx will act as an aggregator
of Prescription Data for eRx Subscribers and Vemics will act as an aggregator of
Prescription Data for IMedicor Subscribers. All Prescription Data to be
exchanged between eRx Pad® and Partner Web Portal will be transmitted through
the single interface between the eRx Pad and Partner Web Portal. Each party
shall be responsible for providing technical support related to the Connectivity
Service for users of its System in accordance with its own support policies.
Each party shall be also responsible for operating its system in a HIPAA
Compliant Manner.
2.2. Customer
Comments. Each party shall forward to the other party any
comments or complaints received by each party with respect to the other party's
System or the Connectivity Service in a timely manner.
2.3. Periodic Review. At
such times as the parties mutually agree, they will meet to review the
Connectivity Service and to discuss any appropriate changes to the
specifications or implementation of the Connectivity Service.
2.4. System
Modifications. During the Term of this Agreement, neither
party will modify its System so that it no longer exchanges Prescription Data in
accordance with the Interface Specifications unless (i) eRx notifies Vemics in
writing of its intent to make such modifications as soon as reasonably
practicable in advance of the anticipated implementation date of such
modification, (ii) Vemics notifies eRx in writing of its intent to make such
modifications as soon as reasonably practicable in advance of the anticipated
implementation date of such modification, or (iii) the parties mutually agree in
writing to revise the Interface Specification. Each party shall be
responsible for expenses incurred for its own modifications. Each party has the
right to modify its System to remain compliant with the HIPAA
regulations.
2.5. Fees. There are no
fees associated with providing this service. eRx has the right to
charge its customers a standard fee for transactions routed to the Partner Web
Portal. Vemics will not solicit or charge any fees for the Partner
Web Portal service to eRx customers accept as mutually agreed to by the parties
in advance any fee being charged. Vemics shall have the right to charge Vemics
Subscribers a fee for using the Partner Web Portal.
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3. CONFIDENTIALITY
and PRIVACY.
3.1. Protection of Confidential
Information. Each Party agrees not to use, transfer or
otherwise disclose the Confidential Information of the other Party to any third
party, except as required to perform its obligations under this Agreement or as
otherwise provided by law. Each Party shall (i) give access to such
Confidential Information solely to those employees or independent contractors
with a need to have access thereto for purposes of this Agreement, and (ii) take
the same security precautions to protect against disclosure or unauthorized use
of such Confidential Information that the Party takes with its own confidential
information, but, in no event, shall a Party apply less than a reasonable
standard of care to prevent such disclosure or unauthorized use. Nothing in this
Agreement shall prevent either Party from disclosing the Confidential
Information of the other Party pursuant to any judicial or governmental order or
regulation, provided that the Party gives the other Party reasonable prior
notice of such disclosure to contest such order.
3.2. Confidentiality of Other Party’s
Interface Specifications. Each Party shall treat the Interface
Specifications of the other Party’s System(s) as Confidential Information and
shall not use the Interface Specifications for any purpose other than exchanging
Prescription Data in accordance with this Agreement, technical maintenance of
interface between the Party’s Systems, or as mutually agreed upon between the
parties; provided, however, that nothing in this Agreement shall prevent either
Party from independently developing similar specifications with third parties as
long as said development is done without reference to the other party’s
confidential information.
3.3. Compliance with Privacy Standards.
Personally identifiable health information about healthcare customers
(“Protected Health Information” or “PHI”) is subject to various statutory
privacy standards, including the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”), and regulations adopted thereunder by the Department of
Health and Human Services (45 C.F.R. Parts 160, 162, and 164). eRx
and Vemics shall treat such information in accordance with those standards.
Whether or not either party is a "Covered Entity" as defined in the Privacy
Rule, each Party shall use and/or disclose IIHI on and/or through the Partner
Web Portal: (a) solely to perform its obligations under this Agreement and carry
out treatment, payment and health care operations described in § 164.506(c) of
the Privacy Rule; and (b) in compliance with the minimum necessary standard
described in § 164.502(b) of the Privacy Rule, and the Security for
Standards for Protection of Electronic PHI at 45 C.F.R. Part 164, subpart C
(“Security Rule”).
3.4. Further
Obligations. Upon expiration or any termination of this
Agreement, each Party shall return or destroy, all material in any medium that
contains, refers to, or relates to such other Party’s Confidential Information,
and retain no copies except as may be required to comply with applicable
law. In addition,
upon expiration or any termination of this Agreement, each Party shall delete
and/or “wipe clean” any data contained on any Computer System that contains
Confidential Information of the other party in order to make such inaccessible
by any means possible. If such return or destruction is not feasible, each Party
shall extend the protections of this Agreement to the PHI and limit further uses
and disclosures to those purposes that make the return or destruction of the PHI
infeasible.
3.5. Consent. eRx
represents and warrants to Vemics that:
3.5.1. eRx has
obtained or has contractually required parties with which it contracts to
provide the requisite descriptions of uses and disclosures (e.g., in notices of
privacy practices to the extent required by 45 C.F.R. § 164.520) and to obtain
the requisite consents, acknowledgements, authorization and other approvals
necessary to release Prescription Data, confidential patient information and
IIHI to Vemics for delivery by Vemics to its Subscribers in compliance with
applicable Law and/or Statutes.
3.5.2. To the
best of eRx’s knowledge, information and belief the requisite descriptions of
uses and disclosures and the requisite consents, acknowledgements, authorization
and other approvals necessary to release Prescription Data, confidential patient
information and IIHI to Vemics for delivery by Vemics to its Subscriber’s in
compliance with applicable Law and Statutes have been provided and obtained or
will have been provided and obtained as of the date of release of the applicable
confidential patient information or IIHI to Vemics.
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4. INTELLECTUAL
PROPERTY RIGHTS.
4.1. eRx Interface. eRx
shall retain all right, title and interest in, and shall be the sole owner of,
the eRx Interface, any modifications, enhancements or improvements thereto and
derivative works thereof, including any Intellectual Property Rights therein.
Vemics will respect all Intellectual Property Rights of eRx.
4.2. Vemics
Interface. Vemics shall retain all right, title and interest
in, and shall be the sole owner of the Vemics Interface, any modifications,
enhancements or improvements thereto and derivative works thereof, including any
Intellectual Property Rights therein. eRx will respect all Intellectual Property
Rights of Vemics.
5. TERM
AND TERMINATION.
5.1. Term. This
Agreement shall commence on the Effective Date and continue for the period of
three (3) years (the "Initial Term"). Thereafter, this Agreement
shall automatically renew for additional periods of one (1) year ("Renewal
Term"), unless either Party gives the other Party written notice of its
intention to terminate not less than ninety (90) days prior to expiration of the
Initial Term or any Renewal Term. The Initial Term together with all
Renewal Terms constitutes the "Term" of this Agreement.
5.2. Termination for Cause. In the
event of any material breach of this Agreement, the non-breaching Party may
terminate this Agreement prior to the end of the Term by giving thirty (30) days
prior written notice describing the breach to the breaching Party; provided,
however, that this Agreement shall not terminate if the breaching Party has
cured said Breach within thirty (30) days after receiving written notification
of its breach by non-breaching Party.
5.3. Termination for Insolvency.
Either Party may terminate this Agreement, immediately upon written notice, (i)
upon the institution by or against the other Party of insolvency, receivership
or bankruptcy proceedings, provided that such proceedings are not dismissed
within thirty (30) days of commencement, (ii) upon the other Party's making an
assignment for the benefit of creditors, or (iii) upon the other Party's
dissolution or ceasing to do business.
6. WARRANTY
DISCLAIMER. THE ERX INTERFACE, THE ERX PAD®, ERX’S
CONFIDENTIAL INFORMATION, THE PARTNER WEB PORTAL INTERFACE, PARTNER WEB PORTAL
AND VEMICS’S CONFIDENTIAL INFORMATION ARE PROVIDED "AS-IS," WITHOUT ANY
WARRANTIES OF ANY KIND. EXCEPT TO THE EXTENT SET FORTH HEREIN TO THE
CONTRARY, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
7. INDEMNIFICATION.
7.1. General. Each Party shall
indemnify, defend and hold harmless the other Party and its affiliates, and its
respective directors, officers, employees and agents, from and against any and
all liability, claim, loss, damage, injury or expense (including reasonable
attorneys' fees) brought by a third party to the extent arising from or in
connection with any breach of this Agreement or of any warranty hereunder or
from any negligence or wrongful acts or omissions.
7.2. Intellectual Property
Rights. Each Party (the “First Party”) shall indemnify and
hold the other (the “Second Party”) harmless from any claim by a third party
and, at its own expense, shall defend any action brought or threatened against
the Second Party to the extent that such claim or action is based on a claim
that any portion of its System infringes upon the Intellectual Property Rights
of a third party, not affiliated with the Parties. In the event of
such a claim or action, the First Party shall, without additional cost to the
Second Party, take one of the following actions in the First Party's discretion:
(a) make the offending portion of its System non-infringing; (b) replace the
offending portion of its System with a functionally equivalent item; or (c)
terminate the Second Party’s right to use its System. Subject to the
foregoing, the Second Party shall cease using any portion of the First Party’s
System, if so directed by the First Party. Continued use of the
allegedly infringing System, or any portion thereof, by the Second Party after
the First Party has directed the Second Party to cease use of the allegedly
infringing System, or portion thereof, shall relieve the First Party of any
further obligation under this Section 7.2 from the date of such
direction. THE FOREGOING STATES THE ENTIRE LIABILITY OF THE FIRST
PARTY WITH RESPECT TO ANY CLAIMS OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY
ITS SYSTEM.
7.3. Procedure. The indemnified
Party shall promptly provide the indemnifying Party with written notice of any
claim which the indemnified Party believes falls within the scope of this
Section; provided, however, that, except to the extent the indemnifying Party is
actually prejudiced by the indemnified Party's failure to provide such prompt
notice, such failure to provide prompt notice hereunder shall not limit the
indemnified Party's rights under this Section. The indemnified Party
may, at its own expense, assist in the defense of any such claim if it so
chooses, provided that the indemnifying Party shall control such defense and all
negotiations relative to the settlement of any such claim.
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8. LIMITATION OF
LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF
OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS
OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED
IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL
LIABILITY OF EACH PARTY ARISING FROM THIS AGREEMENT, WHETHER BASED IN CONTRACT,
TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, SHALL NOT EXCEED
FIFTY THOUSAND DOLLARS. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. GENERAL
PROVISIONS.
9.1. Relationship of the Parties.
The relationship established between the Parties by this Agreement is
that of independent contractors, and nothing contained herein shall be construed
to: (i) give either Party the power to direct and/or control the day-to-day
activities of the other, (ii) constitute the Parties as partners, joint
ventures, co-owners or otherwise as participants in a joint or common
undertaking, or (iii) allow a Party to create or assume any obligation on behalf
of the other Party for any purpose whatsoever, except as contemplated by this
Agreement.
9.2. Complete Understanding;
Modification. This Agreement constitutes the complete and
exclusive agreement of the Parties and supersedes all prior understandings and
agreements, whether written or oral, with respect to the subject matter
hereof. No modification of or amendment to this Agreement, nor any
waiver of any rights under this Agreement shall be effective unless in a writing
signed by both Parties hereto.
9.3. Severability. If
any provision of this Agreement is held to be invalid or unenforceable under
applicable law the remaining provisions of this Agreement shall not be affected
thereby.
9.4. Non-assignability and Binding
Effect. Neither Party shall assign or transfer this Agreement
without the prior written consent of the other Party, except to a
successor-in-interest or a purchaser of substantially all of the assets of
either Party, or the purchaser of the assets of the business unit or division of
either Party using or providing the Connectivity Service. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the Parties hereto and their permitted successors and assigns. This Agreement
may be assigned with the written consent of all the parties to this
Agreement.
9.5. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed effective when delivered by hand or by delivery via nationally recognized
Overnight Courier (Such Federal Express, DHL, and UPS) with a signature receipt
requested, or upon receipt when mailed by registered or certified mail (return
receipt requested), postage prepaid, to the Parties at the addresses first
listed above (or at such other address for a Party as shall be specified by like
notice).
9.6. Force
Majeure. Neither Party shall be liable for any loss resulting
from a cause over which it does not have direct control, including, but not
limited to, failure of electronic or mechanical equipment or communication
lines, telephone or other interconnect problems, computer viruses, unauthorized
access, theft, operator errors, acts or terrorism, severe weather, earthquakes,
or natural disasters, strikes or other labor problems, wars, or governmental
restrictions.
9.7. Waiver. No failure
or delay on the part of any Party in exercising any right hereunder,
irrespective of the length of time for which such failure or delay shall
continue, will operate as a waiver of, or impair, any such right. No
single or partial exercise of any right hereunder shall preclude any other or
further exercise thereof or the exercise of any other right. No
waiver of any right hereunder will be effective unless given in a signed
writing.
9.8. Governing Law. This
Agreement is governed by the laws of the State of Texas, U.S.A. without giving
effect to any provision that would make the laws of another jurisdiction
applicable.
9.9. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, and all of which together shall constitute one and the same
agreement.
9.10. Publicity. eRx and
Vemics will issue a joint press release regarding the relationship of the
parties relative to this Agreement, subject to mutually approved content and
schedule. Neither Party shall use the other Party’s or the other
Party’s customers’ logo or trademarks without the other Party’s prior written
consent.
9.11. Amendments. The Parties agree
to take such action as is necessary to amend this Agreement from time to time as
is necessary to comply with the requirements of applicable law, including but
not limited to, the Health Insurance Portability and Accountability Act, Public
Law 104-191. However, no change, amendment, or modification to this Agreement
shall be valid and/or effective unless it is set forth in writing and signed by
both parties.
9.12. Survival. Any
provision of this Agreement that contemplates performance or observance
subsequent to termination or expiration of this Agreement shall survive
termination or expiration of this Agreement and continue in full force and
effect.
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eRx Network,
LLC. Vemics, Inc.
By: /s/
Xxxxxxx X. Xxxx By: /s/ Xxx X.
Xxxxxxx
Printed
Name: Xxxxxxx X.
Xxxx Printed
Name: Xxx
X. Xxxxxxx
Title:
Title:
Date:
Date:
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EXHIBIT
A
INTERFACE
SPECIFICATIONS
(TO BE DEVELOPED BY THE
PARTIES AND ATTACHED HERETO AT A LATER TIME)
ERx
Network’s product eRx Pad, an electronic prescription service (e-Script), gives
retail pharmacy a common method of connecting to physicians through eRx's secure
and reliable network. Our e-script services give pharmacies the ability to
utilize a common workflow for refill requests and reduces the time spent
managing the doctor communication process. Electronic prescribing automates new
prescriptions and refill requests/responses. The eRx Pad solution provides a
single route for all refill requests to physicians regardless of the physician’s
participation in the program. eRx Network will always determine the most
efficient electronic route to the physician and fax the physician when
necessary.
Vemics
and eRx Network will create an interface that will allow participating
pharmacies to send from their management systems, a refill request
message to eRx Pad that will in turn, be directed into the iMedicor portal. The
message will travel through iMedicor and populate into a standardized form that
provides the medical office with the appropriate refill request information. The
physician or staff member will the then approve or deny the request and the
return message will travel back to the management system via iMedicor and eRx
Pad.
The
interface will give participating physician offices the ability to register in
iMedicor for free and activate their refill service immediately. A message will
be sent to eRx Network in notification that the service must be switched from
fax to iMedicor electronic delivery.
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