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AGREEMENT RE: ENGAGEMENT FOR
DEVELOPMENT SERVICES
This AGREEMENT RE: ENGAGEMENT FOR DEVELOPMENT SERVICES (this
"Agreement") is made this 29th day of February, 2000, by and between NotifyMD,
Inc., a Delaware corporation ("NotifyMD") and wholly-owned subsidiary of Ring
Medical, Inc., a Delaware corporation ("RMI"), and XXxxx.xxx, Inc., a
Delaware corporation ("XXxxx.xxx"). The parties hereto agree as follows:
1. Development Services.
(a) Generally. XXxxx.xxx will begin work upon the effective
date of this agreement developing solutions for NotifyMD as outlined in the
"Functional Specification." NotifyMD agrees to engage XXxxx.xxx a minimum
number of 1,000 hours at a rate for such services of $ * per hour. The
parties hereto agree to negotiate in good faith toward the execution of an
agreement calling for XXxxx.xxx to provide certain development services to
NotifyMD as described within the "Functional Specification" (a "Development
Services Agreement").
(b) Additional Agreements for XXxxx.xxx Solutions. The
parties hereto agree to consider in good faith the engagement of XXxxx.xxx by
NotifyMD for the provision of additional XXxxx.xxx solutions as further
described in the "Functional Specification," as well as other future releases
and projects.
(c) Time. Provided that the Development Services Addendum is
executed within seven (7) days of the date hereof, the Development Services
Addendum will require completion of the work described in the initial schedule
thereto no later than May 1, 2000.
2. Compensation. The Development Services Agreement will provide for
payment by NotifyMD to Xxxxx.xxx of:
(a) a fee of $ * per hour to be invoiced by Xxxxx.xxx
on a monthly basis for hours actually worked by
Xxxxx.xxx, which payment shall be due within 30 days
of NotifyMD's receipt of such invoice; and
(b) additional reimbursement for all necessary or
appropriate expenses incurred by XXxxx.xxx in the
performance of its duties under this Agreement,
provided that XXxxx.xxx submits reasonable
verification of such expenses to NotifyMD.
3. Confidential Information and Trade Secrets.
3.1 XXxxx.xxx recognizes that XXxxx.xxx's engagement by
NotifyMD requires considerable responsibility and trust, and, in reliance on
XXxxx.xxx's loyalty, NotifyMD will entrust XXxxx.xxx with highly sensitive
confidential, restricted and proprietary information involving Trade Secrets
and Confidential Information (as such terms are hereinafter defined).
3.2 For purposes of this Agreement, a "Trade Secret" is any
scientific or technical information, design, process, procedure, formula or
improvement that is valuable and not generally known to competitors of NotifyMD
or RMI. "Confidential Information" is any data or information, other than Trade
Secrets, that is important, competitively sensitive, and not generally known by
the public, including, but not limited to, NotifyMD's and RMI's business plans,
business prospects, customer lists, training manuals, product development
plans, bidding and pricing procedures, market strategies,
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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internal performance statistics, financial data, confidential personnel
information concerning employees of NotifyMD and RMI, supplier data,
operational or administrative plans, policy manuals, and terms and conditions
of contracts and agreements. The terms "Trade Secret" and "Confidential
Information" shall not apply to information which is (i) received by XXxxx.xxx
from a third party with no restriction on disclosure, (ii) XXxxx.xxx's own
Trade Secrets and Confidential Information or (iii) required to be disclosed by
applicable law.
3.3 XXxxx.xxx will not use or disclose any Trade Secrets or
Confidential Information of NotifyMD or RMI during the term of this Agreement
or any subsequent agreement with NotifyMD or RMI, whether pursuant to this
Agreement or otherwise, at any time after the termination or expiration of this
Agreement or any subsequent agreement with NotifyMD or RMI or prior to such
time as they cease to be Trade Secrets or Confidential Information though no
intentional or negligent act or failure to act by XXxxx.xxx in violation of
this Agreement or otherwise.
3.4 Upon the request of NotifyMD or RMI, XXxxx.xxx will
surrender to NotifyMD or RMI all memoranda, notes, records, manuals or other
documents pertaining to NotifyMD's or RMI's businesses (including all copies
thereof) and all materials involving any Trade Secrets or Confidential
Information of NotifyMD or RMI.
4. Termination
(a) At any time prior to the execution of the Development
Services Agreement, either party may terminate this Agreement by giving the
other party written notice thereof. Upon termination, neither party shall have
a further obligation to the other, except as set forth in Section 3 hereof.
5. Notices. Any notice or other communication under this Agreement
shall be in writing, signed by the party making the same, and shall be
delivered personally or sent by certified mail, postage prepaid, return receipt
requested or sent by a nationally recognized overnight courier or delivery
service, addressed as follows:
(a) If to XXxxx.xxx: XXxxx.xxx, Inc.
0000 X. Xxxxxxx'x Xxxxx Xxxxxx Xxxxx 00000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx, CFO
or to such other address as may be furnished by XXxxx.xxx to NotifyMD in writing.
(b) If to NotifyMD: NotifyMD, Inc.
000 Xxxx Xxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, President
With a copy to: Xxxxxx Xxxxxxx Xxxxxx & Xxxxx,
A Professional Limited Liability Company
0000 Xxxxxxxxx Xxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other address as may be furnished by NotifyMD to XXxxx.xxx. All
such notices shall be deemed given on the date personally delivered, mailed or
couriered.
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6. GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Colorado.
7. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid, but if any
one or more of the provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability for any such provisions in every other respect and of the
remaining provisions of this Agreement shall not be in any way impaired.
8. Modification. No waiver or modification of this Agreement or of any
covenant, condition, or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration or litigation between the parties hereunder, unless
such waiver or modification is in writing, duly executed as aforesaid and the
parties further agree that the provisions of this section may not be waived
except as herein set forth.
9. Entire Agreement. This Agreement, including all exhibits hereto~
contains the entire agreement of the parties hereto with respect to the subject
matter contained herein. There are no restrictions, promises, covenants or
undertakings, other than those expressly set forth herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter. This Agreement may not be changed except by a
writing executed by the parties.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the day and year first above written.
NOTIFYMD, INC.
By: /s/ XXXX X. XXXXXXXX
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Its: CEO and President
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XXXXX.XXX, INC.
By:
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Its:
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