LICENSE AND SERVICES AGREEMENT
This LICENSE AND SERVICES AGREEMENT (the "Agreement"), effective as of
March 5th, 2004 ("Effective Date"), is made by and among I-TRAX HEALTH
MANAGEMENT SOLUTIONS, INC., a corporation formed under the laws of the State of
Delaware and its Affiliates (collectively, "I-trax"), with their principal place
of business at One Xxxxx Square, Suite 2615, 000 X. 00xx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, MERIDIAN OCCUPATIONAL HEALTHCARE ASSOCIATES, INC. (d/b/a CHD
Meridian Healthcare), a corporation formed under the laws of the State of
Delaware and its Affiliates (collectively, "CHD Meridian" and together with
I-trax, the "I-trax-CHD Meridian Group"), with their principal place of business
at 00 Xxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, and BIOSIGNIA,
INC. ("BioSignia"), a corporation formed under the laws of the State of
Delaware, with its principal place of business at 0000 X. XX Xxxxxxx 00, Xxxxx
000, Xxxxxx, Xxxxx Xxxxxxxx 00000. Each of I-trax, CHD Meridian and BioSignia
are sometimes referred to herein individually as a "Party" and collectively as
the "Parties."
A. BioSignia is the owner of or otherwise has all rights to use and
transfer certain proprietary technology used for predictive modeling, health
economics, epidemiology and prospective medicine. I-trax-CHD Meridian Group is
comprised of entities delivering, among other things, population health
services, disease management services and outsourced, employer-sponsored
healthcare services to, primarily, self insured employers (collectively, the
"I-trax-CHD Meridian Group Business").
B. I-trax and BioSignia are parties to the Marketing and Service
Agreement dated as of April 25, 2003, as amended (the "Prior Agreement"). Under
the Prior Agreement, BioSignia is providing certain services to I-trax on an
exclusive basis, and under the Prior Agreement I-trax has paid BioSignia
$160,000 for the purpose of obtaining use of the Licensed Technology (as defined
below).
C. The Parties desire to enter into this Agreement for, among other
things, BioSignia to grant to the I-trax-CHD Meridian Group a non-exclusive
license to the Licensed Technology for use by the I-trax-CHD Meridian Group in
I-trax-CHD Meridian Group Business and, on an as needed basis, provide certain
services to I-trax and to terminate the Prior Agreement.
NOW, THEREFORE, the Parties, in consideration of the mutual promises
and obligations set forth in this Agreement, and intending to be legally bound,
agree as follows:
1. Definitions. Capitalized terms that are not otherwise defined in
this Agreement, have the meaning set forth below:
"Affiliate," with respect to a party, means any corporation,
partnership, or other legal entity directly or indirectly owned or controlled
by, or which owns or controls, or which is under common ownership or control
with, such party.
"Confidential Information" means all information and materials
(tangible and intangible) disclosed by a Party to the other Party pursuant to
this Agreement and identified in writing, at the time of disclosure, as
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"confidential" or "proprietary." The Licensed Technology is BioSignia's
Confidential Information.
"Documentation" means all technical and user documentation
(whether written or in electronic form) documenting the functionality and all
instructions for use of the Licensed Technology.
"HIPAA" means the Health Insurance Portability and
Accountability Act of 1996 and any and all regulations adopted thereunder.
"Intellectual Property Rights" means any and all now or
hereafter known tangible and intangible (1) rights associated with works of
authorship throughout the universe, including, but not limited to, copyrights,
moral rights, and mask-works, (2) trademark, trade name, and trade dress rights
and any similar rights, (3) trade secret rights and any and all other rights to
prohibit disclosure, (4) Patent Rights, algorithms, and other industrial
property rights, (5) all other intellectual and industrial property rights (of
every kind and nature throughout the universe and however designated)
(including, but not limited to, domain names, logos, "rental" rights, and rights
to remuneration), whether arising by operation of law, contract, license, or
otherwise, and (6) any and all registrations, initial applications, renewals,
extensions, continuations, divisions, or reissues hereof now or hereafter in
force (including, but not limited to, any and all rights in any of the
foregoing).
"Licensed Technology" means, collectively:
(1) BioSignia's Health Claims Analysis Technology ("H-CAT")
algorithms;
(2) Software (exclusive of SAS statistical application) and
middleware required to operate H-CAT algorithms;
(3) Functionality required to generate the following reports
using the H-CAT algorithms: (a) pre-claim new population aggregate reports in
accordance with the specifications set forth on Exhibit A, (b) post-claim new
population aggregate reports, in accordance with the specifications set forth on
Exhibit A, (c) reconciliation process and reports, in accordance with the
specifications set forth on Exhibit A, (d) second year population aggregate
reports, (e) H-CAT next year's prediction down to the patient, (f) H-CAT next
year's avoidable costs down to the patient, (g) H-CAT diabetes progression
reports, (h) six group bucketing reports, (i) claims scrubbing and inputting,
and (j) H-CAT R Squared testing;
(4) Documentation; and
(5) All other Intellectual Property Rights required to operate
the technology described in this definition.
"Losses" means all liabilities, claims, damages, injuries,
demands, proceedings, actions, assessments, settlements, judgments, awards,
punitive awards, fines, charges, deficiencies, losses, costs, and expenses
(including, but not limited to, all costs of preparation and investigation,
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interest, penalties, fees, disbursements, and expenses for attorneys,
accountants, and other professional advisors).
"Patent Rights" means the rights to all inventions, whether
patentable or not, including, but not limited to, the right to file applications
and obtain patents, utility models, industrial models, and designs in the
inventor's own name in the United States and throughout the world, and all
rights to obtain other intellectual property protection in the United States and
throughout the world.
"Person" means an individual, partnership, joint venture,
corporation, trust, estate, incorporated organization, or other entity of any
government or any department or agency thereof.
"Related Party" means a Party's parent subsidiary, other
Affiliate, or any of their respective officers, directors, trustees, employees,
agents, contractors or other representatives.
2. Technology License.
(a) License Grant. BioSignia hereby grants to I-trax-CHD
Meridian Group a non-exclusive, perpetual, irrevocable, worldwide,
non-transferable, except as provided in Section 16(b) below, license to use,
possess, copy, display, perform, modify, and prepare derivative works of the
Licensed Technology in the I-trax-CHD Meridian Group Business, in all formats,
including, but not limited to, source code format, at one or more locations (as
determined by I-trax, in I-trax's sole discretion) and in any and all media, now
known or hereafter developed.
(b) Limitation on License Grant. The license grant set forth
in Section 2(a) specifically excludes the right to resell, re-distribute or
sublicense Licensed Technology to any third-party.
(c) Deliveries.
(1) Initial Delivery. On the Effective Date (the
"Initial Delivery Date"), BioSignia will deliver to the I-trax-CHD Meridian
Group one copy of the Licensed Technology (excluding Documentation) in its
current form to a location designated by I-trax-CHD Meridian Group in its sole
discretion.
(2) Second Delivery. On or before the 90th day
following the Effective Date (such date, the "Second Delivery Date"), BioSignia
will deliver to I-trax one copy of the Licensed Technology in final form
(including Documentation) to a location designated by I-trax in its sole
discretion.
(3) Delivery Format. All Licensed Technology
delivered by BioSignia to I-trax pursuant to this Agreement must (1) be in form
enabling a person possessing reasonable skill and expertise in computer
software, information technology, statistical modeling, medical claims analysis,
and SAS programming (such person, a "Licensed Technology Analyst") a to build,
load, and operate the machine-executable object code and (2) include, but must
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not be limited to, all scripts, procedures, proprietary compilers, and other
information necessary or useful to modify, configure, compile, link, and execute
the Licensed Technology.
(4) Delivery Readiness. I-trax-CHD Meridian Group
will have appropriate personnel available to receive the Licensed Technology
with, at a mimimum, the skills and expertise of a Licensed Technology Analyst.
(d) Testing and Acceptance.
(1) Testing. Commencing on the Second Delivery Date,
I-trax will, with the assistance and cooperation of BioSignia, test the License
Technology in the manner set forth on Exhibit B to this Agreement and in such
other manner as a Licensed Technology Analysts in his or her experienced and
professional judgment may reasonably recommend for a period of up to 30 days
(the "Test Period"). Without limiting the generality of the foregoing, during
the Test Period I-trax may: (A) apply the copy of the Licensed Technology
delivered under Section 2(c) to a designated records set; (B) require BioSignia
to apply BioSignia's copy of the Licensed Technology against the same designated
records set; and (C) compare the results of the two applications, for among
other things, consistency.
(2) Correction Period. If the Licensed Technology
fails the tests provided for in Section 2(d)(1), then I-trax will notify
BioSignia in writing of such failure. Upon receipt of such notice, BioSignia
shall use its best efforts to complete, as quickly as possible, all necessary
corrections, repairs and modifications to the Licensed Technology, but in no
event shall such corrective measures exceed 30 days following such notice or
such other period as the Parties may mutually agree upon in writing (such
period, the "Correction Period"). At the request of BioSignia, I-trax will
deliver to BioSignia I-trax's processes, procedures, manuals, and computer
systems to determine why the Licensed Technology failed the tests provided for
in Section 2(d)(1).
(3) Re-Testing. Upon completion of the corrections,
repairs and modifications to the Licensed Technology, as applicable, BioSignia
shall deliver to I-trax-CHD Meridian Group for re-testing in accordance with
Section 2(d)(1): (A) a report outlining the scope and nature of the corrections,
repairs, and modifications to, together with a revised copy of, the Licensed
Technology; and/or (B) proposed modifications to I-trax's processes, procedures,
manuals, and computer systems delivered by I-trax to BioSignia in accordance
with Section 2(d)(2). The date on which BioSignia delivers the items described
in this Section 2(d)(3) to I-trax-CHD Meridian Group as modified under Section
2(d)(1) shall be deemed to be the Second Delivery Date and a new Test Period
shall commence as of such date.
(4) Acceptance. I-trax-CHD Meridian Group's
acceptance of the Licensed Technology shall occur on the earlier of (i) the date
on which I-trax delivers to BioSignia written notice that the Licensed
Technology, original or as revised, has been accepted; or (ii) upon the
expiration of the applicable Test Period without receipt by BioSignia of notice
from I-trax that the Licensed Technology, original or as revised, failed the
tests provided for in Section 2(d)(1).
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(5) Good Faith. Each Party will perform its functions
under this Section 2(d) in good faith.
(e) Copies. I-trax-CHD Meridian Group may, in its sole
discretion, make unlimited copies of the Licensed Technology and may locate such
copies at one or more I-trax-CHD Meridian Group-controlled facilities or third
party facilities, as selected by I-trax-CHD Meridian Group, in its sole
discretion.
3. Training. On or about the Second Delivery Date, BioSignia will train
I-trax on the use and maintenance of all Licensed Technology delivered hereunder
(including, but not limited to, system architecture and use and maintenance of
the Licensed Technology's source code) at a mutually convenient time and
location. The scope and level of detail of the training will be sufficient to
effect appropriate training of competent personnel with adequate skills
consistent with the nature and complexity of the tasks. The experience of
BioSignia's trainers must correspond to the complexity of the subject matter,
and the experience of the I-trax-CHD Meridian Group must be in accordance with
Section 2(c)(4).
4. Services.
(a) Modeling of Services.
(1) New Prospect Population Aggregate Modeling
Services. BioSignia will perform population aggregate modeling services from age
and gender data in accordance with specifications described on Exhibit A, when
available, to this Agreement until the earlier to occur of: (A) I-trax notifies
BioSignia that I-trax no longer requires these services; and (B) I-trax accepts
in accordance with Section 2(d) the copy of the Licensed Technology delivered on
the Second Delivery Date.
(2) New Prospect H-CAT Modeling Services. BioSignia
will perform H-CAT modeling services from claims data in accordance with
specifications described on Exhibit A, when available, to this Agreement until
the earlier of: (A) I-trax notifies BioSignia that I-trax no longer requires
these services; and (B) the expiration of the 120-day period following delivery
by BioSignia to I-trax of notice of intent to terminate the services described
in this Section 4(a)(2).
(3) Existing Prospect Services. BioSignia will
perform population aggregate modeling services from age and gender data, H-CAT
modeling services from claims data and all other modeling and support services
that I-trax may reasonably require, in each case in accordance with
specifications described on Exhibit A, when available, to this Agreement, for
the initial term of a service agreement between I-trax and each potential client
of I-trax identified on Exhibit C to this Agreement and receiving modeling
services under Section 4(a)(1) and (2) above, to the extent that I-trax executes
a service agreement with such client within a period of 6 months immediately
following the Effective Date.
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(4) Know Your Number Services. BioSignia will provide
access to its web-based "Know Your Number" program to enable I-trax to perform
calculations for new patient and doctor reports through out the year as data
changes or becomes available. I-trax will be solely responsible for all related
lab work and data entry.
(5) New Predictive Modeling Solutions. BioSignia will
be I-trax's preferred provider for purposes of providing new predictive modeling
solutions and will have a first opportunity to bid for such services.
(b) Work Orders. BioSignia will provide to I-trax the services
described in Section 4(a) in accordance with one or more individual work orders
in the form of Exhibit D to this Agreement, which may be executed by the Parties
from time to time. Each work order, when signed by both Parties, will be
attached to this Agreement as Exhibit D-"X" (where "X" is the number assigned to
each work order incorporated under this Agreement in numerical sequence) and
will become a part of this Agreement (each work order, when executed and
attached to this Agreement in accordance with this Section 3, is referred to as
a "Work Order").
(c) Delivery of Services. BioSignia will perform all work
designated in the Work Orders with reasonable dispatch in accordance with the
time periods set in the Work Orders.
(d) Facilities. Except as expressly provided herein, BioSignia
will provide, without limitation, any facilities, personnel, equipment, and
other resources, responsibilities and functions necessary to delivery the
services described in the Work Orders.
(e) Performance. BioSignia will maintain an experienced team
of personnel to provide the services described in the Work Orders. BioSignia
will perform all services described in the Work Orders in a workmanlike manner,
with the highest professional diligence and skill and in accordance with
generally accepted standards applicable to similarly situated vendors and the
terms and conditions of this Agreement.
5. Payments.
(a) License Fee. The aggregate license fee for the license
granted hereunder is $575,000 and will be paid as follows:
(1) Initial Delivery Payment. CHD Meridian will pay
BioSignia $287,500 on the Initial Delivery Date; and
(2) Second Delivery Payment. CHD Meridian will pay
BioSignia $287,500 upon I-trax's acceptance in accordance with Section 2(d)
above of the Licensed Technology delivered on the Second Delivery Date.
(b) Service Fees.
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(1) New Population Aggregate Modeling Services.
BioSignia will perform the services set forth in Section 4(a)(1) at no charge to
I-trax.
(2) New H-CAT Modeling Services and Existing Prospect
Services. I-trax will pay BioSignia for the services set forth in Section
4(a)(2) and (3):
(A) Up-front fees:
Population Size Fee
----------------------------------------------------
Up to and including 50,000 persons $25,000
50,001 to 250,000 persons $35,000
250,001 or more persons $50,000
(B) If such services are being provided on
population-wide basis, the greater of $0.24 per member, per month or 4% of the
recurring monthly fees received by I-trax, or if such services are being
provided on a case-rate basis, 4 percent of the recurring monthly service fees
received by I-trax.
(C) If a service agreement subject to
Section 4(a)(3) does not provide for on-going claims modeling, making Section
5(b)(2)(B) not applicable, the payments set forth in Section 5(b)(2)(A) will be
increased by 20 percent. If any such service agreement subject to Section
4(a)(3) is later amended to provide for on-going claims modeling making Section
5(b)(2)(B) applicable, I-trax will credit any payments made on account of the 20
percent increase against fees payable under Section 5(b)(2)(B).
(3) Know Your Number Service. I-trax will pay
BioSignia for the services set forth in Section 4(a)(4),at the rate of $12 per
person per year for the first two years following the Effective Date.
Thereafter, the rate will be subject to renegotiation based on prevailing rates
for the service at that time.
(d) Payment Terms. Each amount payable by I-trax to BioSignia
will be due and payable by check on the date or event specified in the
applicable Work Order or, if not specified, 50% upon execution of the applicable
Work Order and 50% no later than 30 days after the date of the invoice which
BioSignia will submit upon completion and delivery of the work described in the
applicable Work Order.
6. Customer Referrals. If BioSignia introduces to I-trax a customer
that does not have a preexisting relationship with I-trax, and the customer
enters into a customer agreement with I-trax, I-trax will pay BioSignia a
referral fee equal to 5% of all recurring fees, which specifically exclude
implementation fees, start-up fees and custom programming fees, received from
such customer during the initial term of such customer agreement. With respect
to each customer agreement, I-trax or its Affiliates will pay BioSignia the
referral fee by check within 15 days of I-trax's receipt of payment pursuant to
such customer agreement. Each payment will equal to the amount derived by
multiplying the referral fee percentage by the actual recurring fees received
under such customer agreement.
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7. Relationship of the Parties. Nothing in this Agreement will be
construed to create a joint venture or partnership between the Parties. Except
as expressly set forth in this Agreement, each Party will act solely as an
independent contractor and not as an agent, servant, employee, or representative
of the other Party.
8. Ownership.
(a) Licensed Technology. Subject to the licenses granted by
BioSignia pursuant to this Agreement, BioSignia owns all right, title, and
interest in and to the Licensed Technology.
(b) Reservation of Rights. Except as provided herein, each
Party reserves all rights in its Intellectual Property Rights and nothing
contained herein will be construed as granting the other Party any ownership
interest in its Intellectual Property Rights. Each Party will include, maintain,
reproduce, and perpetuate all notices or markings on all copies of all tangible
media comprising each Party's Confidential Information in the manner in which
such notices or markings appear on such tangible media or in the manner in which
either Party may reasonably request.
(c) Residual Knowledge. Nothing in this Agreement will be
construed to restrict either Party from developing or distributing products or
performing services that do not infringe upon any Intellectual Property Rights
of the other Party, using intangible residual know-how or concepts (as
distinguished from the tangible implementation of such know-how and concepts)
retained in the mind of such Party's employees, provided that such Party or its
employees do not directly reference, incorporate or otherwise use in such
products or services any Confidential Information or Intellectual Property
Rights (or any tangible embodiment thereof) of the other Party or otherwise
infringe in any manner upon that Party's Intellectual Property Rights; it being
understood that any use by either Party of any ideas, know-how, technical
information, processes, practices or systems that are in the public domain (not
through any wrongful action or wrongful failure to act of such Party), including
items generally known in the information technology and securities industries,
shall not constitute any such infringement.
9. Representations and Warranties of BioSignia.
(a) As of the Effective Date. BioSignia represents and
warrants to I-trax-CHD Meridian Group the following as of the Effective Date:
(1) BioSignia has good and marketable title to the
Licensed Technology, including, but not limited to, all Intellectual Property
Rights in and to the Licensed Technology.
(2) BioSignia has all necessary rights to enter into
this Agreement without violating any other agreement or commitment of any sort.
(3) BioSignia is the exclusive owner of all right,
title, and interest in and to the Licensed Technology.
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(4) The Licensed Technology is free and clear of all
liens and encumbrances.
(5) All contributions to the development of the
Licensed Technology, including, but not limited to, by means of software
maintenance, were made by BioSignia employees or subcontractors in the United
States acting within the scope of their employment or engagement, as applicable,
with BioSignia (collectively, the "BioSignia Employees and Contractors").
(6) BioSignia has paid all of the BioSignia Employees
and Contractors in full for the BioSignia Employees and Contractors'
contribution to the Licensed Technology.
(7) The Licensed Technology contains no software,
information, and/or materials from entities other than BioSignia.
(8) Exhibit E to this Agreement contains a list of
all patents, copyrights, trademarks, and other registrations and related
documents that relate to the Licensed Technology.
(9) The user documentation for the Licensed
Technology does not contain any errors or misrepresentations concerning the
Licensed Technology.
(10) There are no claims that the Licensed Technology
or that BioSignia violates or has violated the rights of anyone, including, but
not limited to, patent, copyright, trade secret, trademark, and other
proprietary rights.
(11) BioSignia (A) has not ceased functioning as an
ongoing concern, (B) is conducting BioSignia's operations in the normal course
of business, (C) is not insolvent or bankrupt, and (D) has not made an
assignment for the benefit of creditors.
(12) BioSignia is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and possesses the corporate power and authority to enter into this Agreement and
to comply with the terms and conditions of this Agreement.
(b) Surviving after the Effective Date. BioSignia represents
and warrants to I-trax-CHD Meridian Group the following as of the Effective Date
and thereafter, with the intention that such representations and warranties
survive the Effective Date:
(1) The use, possession, copying, display, and
performance of the Licensed Technology will not infringe or induce infringement
or contribute to an infringement or constitute a misappropriation of any
trademark, patent, copyright, trade secret, moral right, proprietary right, or
similar property right.
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(2) The Licensed Technology can be deployed and
function as designed within a HIPAA compliant environment
(3) The Licensed Technology does not contain any
"back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus,"
"software lock," or "hardware lock" (as such terms are generally known in the
computer industry) or other instructions to intentionally disable or erase the
Licensed Technology and/or data (collectively, "Disabling Instructions").
(4) BioSignia will not introduce any Disabling
Instructions in any Licensed Technology delivered to I-trax-CHD Meridian Group.
(5) This Agreement is a legal, valid, and binding
obligation of BioSignia enforceable in accordance with its terms.
(6) The execution and delivery of this Agreement by
BioSignia and the performance of, and compliance by, BioSignia with the terms
and conditions of this Agreement will not result in the imposition of any lien
or other encumbrance on the Licensed Technology and will not conflict with or
result in a breach by BioSignia of any of the terms, conditions, or provisions
of any agreement, order, injunction, judgment, decree, statute, rule or
regulation applicable to BioSignia, any of the Licensed Technology, or any note,
indenture, or other agreement, contract, license, or instrument by which any of
the Licensed Technology may be bound or affected.
(7) No consent or approval by any Person or public
authority is required to authorize, or is required in connection with, the
execution, delivery, or performance of this Agreement by BioSignia.
(8) The execution, delivery, and performance of this
Agreement and the transactions contemplated by this Agreement by BioSignia have
been duly and validly authorized and approved by all requisite corporate action
on the part of BioSignia.
10. Representations and Warranties of I-trax-CHD Meridian Group. Each
of I-trax and CHD Meridian severally represents and warrants to BioSignia that,
as of the Effective Date, (a) each of I-trax and CHD Meridian is a corporation
duly organized, validly existing, and in good standing under the laws of the
state of Delaware and possesses the corporate power to enter into this Agreement
and to comply with the terms and conditions of this Agreement, (b) this
Agreement is a legal, valid, and binding obligation of each of I-trax and CHD
Meridian, and (c) the execution, delivery, and performance of this Agreement and
the transactions contemplated by this Agreement by each of I-trax and CHD
Meridian have been duly and validly authorized and approved by all requisite
corporate action on the part of I-trax and CHD Meridian.
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11. Indemnification.
(a) By BioSignia. BioSignia will reimburse, defend, indemnify,
and hold harmless I-trax-CHD Meridian Group, its Related Parties and their
Affiliates for, from, and against any and all Losses resulting from, relating
to, or arising out of, (1) the actual or alleged infringement by the Licensed
Technology of any Intellectual Property Right and (ii) BioSignia's actual or
threatened breach of any provision of Section 9(a) and 9(b) of this Agreement
(collectively a "Claim Against I-trax-CHD Meridian Group"); provided that
BioSignia is promptly notified in writing of such Claim Against I-trax-CHD
Meridian Group; BioSignia is promptly given in writing the complete control of
the defense and settlement of such Claim Against I-trax-CHD Meridian Group; and
that I-trax-CHD Meridian Group, its Related Parties and their Affiliates provide
reasonable cooperation in the defense of such Claim Against I-trax-CHD Meridian
Group.
(b) By I-trax-CHD Meridian Group. I-trax-CHD Meridian Group
will reimburse, defend, indemnify, and hold harmless BioSignia, its Related
Parties and their Affiliates for, from, and against any and all Losses resulting
from, relating to, or arising out of, I-trax-CHD Meridian Group's actual or
threatened breach of any provision of Section 10 of this Agreement (collectively
a "Claim Against BioSignia"); provided that I-trax-CHD Meridian Group is
promptly notified in writing of such Claim Against BioSignia; I-trax-CHD
Meridian Group is promptly given in writing the complete control of the defense
and settlement of such Claim Against BioSignia; and that BioSignia, its Related
Parties and their Affiliates provide reasonable cooperation in the defense of
such Claim Against BioSignia.
12. Limitation of Liability.
(a) BioSignia. EXCEPT FOR SECTION 11(a), (1) BIOSIGNIA WILL
HAVE NO LIABILITY UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, CONSEQUENTIAL,
PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, EVEN IF BIOSIGNIA HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, AND (2) BIOSIGNIA'S ENTIRE LIABILITY ARISING
OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED
IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR OTHERWISE, WILL
NOT EXCEED THE AGGREGATE OF ALL MONIES PAID BY I-TRAX-CHD MERIDIAN GROUP TO
BIOSIGNIA PURSUANT TO THIS AGREEMENT.
(b) I-trax-CHD Meridian Group. EXCEPT FOR SECTION 11(b), (1)
I-TRAX-CHD MERIDIAN GROUP WILL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR
INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES,
EVEN IF I-TRAX-CHD MERIDIAN GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND (2) I-TRAX-CHD MERIDIAN GROUP'S ENTIRE LIABILITY ARISING OUT OF, OR
IN CONNECTION WITH, THIS AGREEMENT, WHETHER SUCH LIABILITY IS BASED IN CONTRACT,
NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, OR OTHERWISE, WILL NOT EXCEED
THE AGGREGATE OF ALL MONIES PAYABLE BY I-TRAX-CHD MERIDIAN GROUP TO BIOSIGNIA
PURSUANT TO THIS AGREEMENT.
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13. Confidential Information.
(a) Use and Disclosure.
(1) Without the prior, express, and written consent
of a Party disclosing Confidential Information (the "Disclosing Party"), the
Party receiving such Confidential Information (the "Receiving Party") must not
disclose or use any Confidential Information of the Disclosing Party in any
manner, except as necessary to perform the Receiving Party's obligations under
this Agreement or to exercise the licenses granted (if any) by the Disclosing
Party to the Receiving Party in this Agreement.
(2) The Receiving Party must treat all Confidential
Information of the Disclosing Party with the same degree of care as the
Receiving Party accords to the Receiving Party's own Confidential Information,
but in no case less than reasonable care.
(3) The Receiving Party may disclose Confidential
Information only to those employees and contractors of the Receiving Party who
need to know such information, and the Receiving Party certifies that such
employees and contractors, including, without limitation, any third party
receiving Confidential Information pursuant to Sections 2(b), 2(c) and 2(d),
have previously agreed, either as a condition of employment or in order to
obtain the Confidential Information, to be bound by terms and conditions
substantially similar to the terms and conditions applicable to the Receiving
Party under this Section 13. The Receiving Party must promptly advise the
Disclosing Party if the Receiving Party learns of any unauthorized use or
disclosure of any Confidential Information of the Disclosing Party.
(b) Exclusions. Except for information that is required by law
to remain confidential, including, but not limited to, "personally identifiable
information" as defined in HIPAA, Confidential Information of the Disclosing
Party does not include information or materials that are (1) or become publicly
available without violation of this Agreement or any other obligation of
confidentiality, (2) already known by the Receiving Party, (3) independently
developed by the Receiving Party without any use of the Disclosing Party's
Confidential Information, or (4) subsequently disclosed to the Receiving Party
by a third party without restriction and the disclosure by the third party does
not violate any obligation of confidentiality.
(c) Ownership. The Disclosing Party will continue to own all
of the Disclosing Party's Confidential Information disclosed pursuant to this
Agreement.
(d) Return. The Receiving Party must promptly return to the
Disclosing Party, at the Disclosing Party's sole cost and expense, all
Confidential Information of the Disclosing Party upon a written request by the
Disclosing Party.
(e) Equitable Remedies. A breach of this Section 13 by the
Receiving Party may cause irreparable harm and injury to the Disclosing Party
for which money damages are inadequate. In the event of such breach, the
Disclosing Party will be entitled to seek injunctive relief, in addition to its
legal and other equitable remedies.
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14. Binding Arbitration. The Parties will attempt to settle any dispute
or difference arising under this Agreement through mutual discussion. In the
event the Parties do not settle the dispute through mutual discussion, the
Parties will settle the dispute by arbitration in accordance with the
Arbitration Rules of the American Arbitration Association. The Parties will
agree upon a single arbitrator or, if the Parties cannot agree upon a single
arbitrator within 20 days of written notice of intent to arbitrate the dispute,
then the Parties will each appoint a single arbitrator within 20 days of the
expiration of the aforementioned 20-day period, and the appointed arbitrators
will appoint a third arbitrator of their choosing promptly thereafter. If
arbitrators are not so appointed, they will be appointed in accordance with the
Arbitration Rules. The Federal Arbitration Act, 9 U.S.C. xx.xx. 1-16 will govern
the arbitration to the exclusion of state laws inconsistent therewith or that
would produce a different result. The arbitrator(s) may not award attorneys'
fees or costs as part of the award. The award of the arbitrator(s) will be
binding and may be entered as a judgment in any court of competent jurisdiction.
The Parties may not appeal to any court from the decision of the arbitrator(s)
or have any right to commence or maintain any suit or legal proceeding
concerning a dispute until such dispute has been determined in accordance with
the arbitration procedure provided herein, and then only for enforcement of the
award rendered in such arbitration. Nothing in this Section 14 precludes either
Party from exercising its termination rights under this Agreement or seeking
relief in any court of competent jurisdiction for an injunction or for
satisfaction of the other Party's indemnification obligation.
15. Force Majeure. Neither Party will be in default or otherwise liable
for any delay in or failure of its performance under this Agreement if such
delay or failure arises by any reason beyond its reasonable control, including
any act of God, any acts of the common enemy, terrorists, the elements,
earthquakes, floods, fires, epidemics, riots, failures or delay in
transportation or communications, or any act or failure to act by the other
Party or such other Party's employees, agents or contractors. The Parties will
promptly inform and consult with each other as to any of the above causes that
in their judgment may or could be the cause of a delay in the performance of
this Agreement.
16. General Terms.
(a) Notices. Any notice required or permitted under this
Agreement will be in writing and will be deemed given when mailed by United
States certified or registered mail, return receipt requested, or when deposited
with a national overnight or two-day delivery service, provided such service has
a confirmation/tracking system to confirm deliveries.
I-trax BioSignia
President President
One Xxxxx Square, Suite 2615 1822 E. NC Xxxxxxx 00, Xxxxx 000
000 X. 00xx Xxxxxx Xxxxxx, XX 00000
Xxxxxxxxxxxx, XX 00000
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With a copy to: With a copy to
General Counsel Xxxxxxx Xxxxxxx & Xxxxxxxx, PA
One Xxxxx Square, Suite 2615 1822 E. NC Xxxxxxx 00, Xxxxx 000
000 X. 00xx Xxxxxx Xxxxxx, XX 00000
Xxxxxxxxxxxx, XX 00000
Either Party may, in its sole discretion and judgment, designate new
person(s) or address(es) for the receipt of notices.
(b) Assignment; Delegation; Subcontracting. Either Party has
the unrestricted right to assign, delegate, subcontract, or otherwise transfer
any or all of its rights and obligations under this Agreement to any parent,
subsidiary, or other Affiliate and to any Person that is a successor in interest
to such Party's business, or such component of its business that encompasses the
Licensed Technology, by sale, stock purchase, merger or acquisition.
(c) No Third-Party Beneficiaries. This Agreement is for the
sole benefit of the Parties and nothing herein will give or be construed to give
to any Person, other than the Parties, any legal or equitable rights whatsoever.
(d) Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to choice of law principles.
(e) Waiver. The waiver by either Party of a breach or
violation of any provision of this Agreement will not operate or be construed to
be a waiver of any subsequent breach or violation thereof. To be effective, all
waivers must be in writing and signed by an authorized officer of the Party to
be charged.
(f) Entire Agreement. This Agreement (including any attached
schedule, supplement and exhibit) sets forth the complete understanding of the
Parties with respect to the subject matter of this Agreement and supersedes any
and all prior or contemporaneous communications, discussions, agreements,
understandings, promises, and/or representations made by either Party to the
other, whether oral, written, or in any other form, not expressly included
herein, including without limitation the Prior Agreement.
(g) Severability. Any determination that any provision of this
Agreement or any application thereof is invalid, illegal or unenforceable in any
respect in any instance will not affect the validity, legality and
enforceability of such provision in any other instance, or the validity,
legality, or enforceability of any other provision of this Agreement.
(h) Cumulative Remedies. Except as otherwise expressly
provided for herein, all remedies provided for in this Agreement will be
cumulative and in addition to and not in lieu of any other remedies available to
either Party at law, in equity, or otherwise.
(i) Amendment. This Agreement constitutes the entire
understanding of the Parties hereto and no changes, amendments, or alterations
will be effective unless signed by duly authorized representatives of both
Parties, except as expressly provided herein.
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(j) Headings. The headings contained in this Agreement are
included for purposes of convenience only, and will not affect in any way the
meaning or interpretation of any of the terms or provisions of this Agreement.
(k) Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the Parties have signed this Agreement on the ____
day of March 2004.
I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC. BIOSIGNIA, INC.
/s/ Xxxx Xxxxx /s/ Xxxxxx X. Xxxxxxxxxx
Name: Name:
Title: Chief Operating Officer Title: Executive Vice President
and Chief Financial Officer
MERIDIAN OCCUPATIONAL HEALTHCARE ASSOCIATES, INC.
/s/ Xxxxxxx X. Xxxxxxxx
Name:
Title: President
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