EXHIBIT 10.03
EDUCATIONAL MARKETING
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MASTER SERVICES AGREEMENT
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THIS MEDICAL EDUCATION MASTER SERVICES AGREEMENT ("Agreement") is made and
entered into effective as of AUGUST 7, 2005 ("Effective Date"), by and between
ALPHAMEDICA, INC., a DELAWARE corporation (hereinafter "Vendor") with an office
and principal place of business at 000 XXXXX XXXXXX XXXX, XXXXXXXXX, XXX XXXX
00000. ("Vendor"); and TELZUIT MEDICAL TECHNOLOGIES, INC. with an office and
place of business at 0000 XXXXXXX XX. XXX 000 XXXXXXX, XX 00000 ("Client").
RECITALS
WHEREAS, Vendor has the ability to develop, implement and/or manage various
promotional and non-promotional projects and meetings involving investigators or
healthcare, professionals, including, but not limited to, symposia, peer
discussions, speakers training, speaker events, and developing, creating and/or
distributing publications and materials for a variety of purposes relating to
healthcare, medical devise, and pharmaceuticals generally, or Client's
product(s) and services or the therapeutic areas relating thereto; and
WHEREAS, Client wishes to utilize such services to develop, implement and manage
such projects and provide such services.
NOW, THEREFORE, in consideration of the mutual promises and obligations of the
parties, they hereby agree as follows:
1. DEFINITIONS
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For the purposes of this Agreement, the following terms, when written with
an initial capital letter, shall have the meanings set forth below:
(a) Enduring Materials - Materials produced hereunder that are fixed in a
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tangible medium, whether or not they are part of, or a follow-on to, a Live
Event, and include, but are not limited to printed matter (e.g., publications),
electronic recordings, transparencies, slides, programs posted or archived on
the Internet, videotape, and audio-tape.
(b) Expenses - All out-of-pocket (OOP) expenses (excluding Fees) associated
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with performing the Services under this Agreement, as allowed in Article 4 below
and authorized by Client in a Project authorization.
(c) Fees - The costs (excluding Expenses) associated with performing the
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Services under this Agreement, as allowed in Article 4 below, authorized by
Client in a Project authorization.
(d) Project - Projects are defined above, whereby Client maintains control
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and/or influence either directly or indirectly over the content of the program.
Projects include, but are not limited to peer discussions, speakers training,
speaker events, and advisory boards. The format for Projects can include, but
is not limited to face-to-face meetings and internet-based programs. Projects
can be either Promotional in nature (including but not limited to peer
discussions and speaker events) or Non-promotional in nature (including speakers
training and advisory board meetings).
(e) Live Event - A Meeting or Program that is viewed at the same time it is
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presented, as opposed to a program that is a report, videotape, audio-tape, or
Enduring Material. A Live Event may include, but not be limited to symposia,
peer discussions, speakers training, and speaker events.
(f) Meeting or Program - A single occurrence conducted here under by Vendor,
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such as one speaker training meeting, or the development of one publication.
(g) Non-Promotional - A Project whereby (i) the content or materials
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developed or contained therein do not reference or imply a Client product or a
product that is competitive with a Client product (e.g., a disease awareness
educational program); and/or (ii) no purpose of the Project is to promote,
market, or positively influence the prescribing of, a Client pharmaceutical
product). A Non-Promotional Project is not governed by the rules and
regulations of the FDA as promotional.
(h) Services - All activities required to be performed by Vendor for the
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successful completion of each Project, Meeting, or Program, approved in writing
by Client through a Project authorization.
(i) Vendor Project Proposal - A written proposal submitted by Vendor to
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Client describing certain Services it proposes to perform.
2. Term
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This Agreement shall expire upon the latter of August 7, 2006 (the "Expiration
Date") or full completion of the Services to be provided pursuant to the terms
of a Project authorization authorized by Client prior to the Expiration Date,
unless earlier terminated or extended as provided herein.
3. Scope of Services/Project authorizations
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(a) The description, specifications, and terms and conditions of all
Projects undertaken hereunder shall be set forth in a "Project authorization"
for each Project accepted and authorized by Client.
At a minimum, each Project authorization shall consist of:
(i) For all Projects, the written proposal shall include a fully
completed budget in the form and format mutually agreed upon by Client and
vendor. All Services authorized by Client pursuant to a Project
authorization will be performed in accordance with, and shall incorporate
and be governed by, the terms and conditions of this Agreement and the
applicable Project authorization.
(b) Vendor shall perform only those Services that are specifically described
in a Project authorization and shall furnish all facilities, labor, supervision,
transportation, equipment, and insurance, together with the necessary consumable
materials and supplies or any other items, required to perform such Services.
(c) Each Project authorization issued hereunder shall be and remain
separate, and independent from every other Project authorization except to the
extent expressly stated in a Project authorization or an amendment thereto.
(d) Vendor shall commence applicable Services on the date specified in the
Project authorization and agrees that all Services specified thereunder shall
occur on or before the completion date specified in each Project authorization.
(e) Nothing herein shall obligate Client to call upon Vendor for the
performance of any Services whatsoever except as set forth in a duly accepted
and authorized Project authorization.
(h) Activity Reports.
(i) Status Reports. During the performance of Services for each
Project, Vendor shall submit to Client on a regular basis, but in no event
less frequently than once a month, a report as to the status, Staff hours
expended, and Fees and Expenses expended of said Project, Meeting, or
Program.
4. Compensation
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(a) As full and complete compensation for performing all Services specified
by a Client-approved Project authorization and for assuming all duties,
responsibilities, and obligations required by this Agreement and such Project
authorization, Client will compensate Vendor for Fees and authorized Expenses
(subject to Article 3 above) actually incurred in accordance with (ii) the terms
set forth in this Agreement and in the Project authorization; (ii) the fixed
blended hourly rates set forth in the Vendor Staff Worksheet; and (iii) any
applicable Client guidelines, as provided to Vendor in writing. Vendor shall
monitor all Fees and Expenses and provide to Client sufficient advance notice
and justification for any requests to exceed the amount estimated in each
project.
(b) Vendor shall not undertake any commitments nor incur liability on behalf
of Client for any Services or expenditures, except as expressly provided for in
this Agreement or a Client approved Project authorization, and Client shall not
be liable for any Services or expenses not so authorized.
5. Invoicing and Payment
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In consideration of Vendor's timely performance of the Services and subject to
the provisions of Article 3 and 4, above, Client shall compensate Vendor as
follows:
(a) Except as otherwise provided in this Agreement, or any attachments
hereto, Client shall pay Vendor for all Services performed pursuant to terms and
conditions of the applicable Project authorization.
(b) Unless otherwise specified in an applicable Project authorization,
Vendor's invoices which comply with the requirements set forth in this Agreement
and the applicable Project authorization shall be due and payable within 30 days
of submissions to Client, without deduction or offset, except as may be agreed
to by Vendor and Client in writing.
6. Client Supplied Materials
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Client shall be responsible for the accuracy, completeness, and regulatory
compliance of all information about Client or Client's products or services that
Client provides to Vendor pursuant to this Agreement.
7. Infringement
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Vendor shall take all necessary and appropriate action to assure that none of
the Materials which it shall prepare or which it shall have prepared pursuant to
this Agreement shall violate or infringe upon any patent, trademark, copyright,
trade secret, or any other proprietary rights of any person, corporation or
other entity, and Vendor shall hold Client harmless from any losses incurred as
a result of such violation or infringement. Vendor shall be responsible for
obtaining assignment of copyright interests from the authors of work to be
selected hereunder to allow inclusion of such work as necessary to perform all
Services required. Vendor shall hold Client harmless from any losses incurred
as a result of Vendor's failure to obtain such assignment of copyright
interests.
8. Confidentiality
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In connection with Vendor's performance of Services as set forth herein, Vendor
may be furnished or given access to knowledge, information, data, compilations
of data, customer-identifying information, reports, and documents which are
confidential, trade secrets of, and proprietary to Client (i.e., information not
in the public domain) including, but not limited to, information about and on
Client's products, customers, and business operations and strategy
("Confidential Information").
Vendor agrees to use Confidential Information only for the purposes of
performing Services under this Agreement. Vendor shall not use such
Confidential Information for the benefit of itself or any third party, nor shall
Vendor divulge or convey to any person or business any such Confidential
Information except as strictly necessary to perform the Services, and provided
such person or business shall agree in writing to be bound to the obligations of
confidentiality hereunder.
Vendor agrees that it will take such steps as may be reasonable to prevent the
disclosure or use of any Confidential Information by any of Vendor's employees,
agents, or subcontractors, except as expressly permitted hereby.
The obligations hereunder for such Confidential Information shall not apply to
information that:
(a) is or becomes publicly available through no fault of Vendor;
(b) is disclosed to Vendor by a third party entitled to disclose such
information;
(c) is already known to Vendor as shown by its prior written records;
(d) is independently developed by Vendor or its affiliates as evidenced by
written records; or
(e) is required by law or court order to be disclosed; provided, however,
that in such a case Vendor shall give Client prompt notice of such required
disclosure so that Client may have an opportunity to contest such
disclosure or obtain protective orders regarding such disclosure.
Vendor acknowledges that the unauthorized use or disclosure of Confidential
Information by Vendor or its employees may give rise to irreparable injury to
Client and that such injury may not be adequately compensated by damages; that
the promises contained in this Agreement have been given for the benefit of
Client, and that, accordingly, Client may seek and obtain injunctive relief
against Vendor or any individual furnished Confidential Information by Vendor
hereunder, without the posting of bond or other security, to prevent the breach
or threatened breach of any promise made in this Agreement, in addition to any
other legal remedies which may be available to Client. The obligations of
Vendor stated in this Article shall remain in full force and in effect after
expiration or termination of this Agreement.
All Confidential Information is and shall remain the sole and exclusive property
of Client. Neither this Agreement nor any disclosure hereunder shall be deemed,
by implication, estoppel, or otherwise, to vest in Vendor any license, interest,
or ownership rights of any kind to or under any Confidential Information,
inventions, patents, know-how, trade secrets, trademarks, or copyrights owned or
controlled by Client or its affiliates.
9. Indemnification
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(a) Indemnification by Vendor. In addition to any and all other
indemnification and remedies provided herein, Vendor agrees to indemnify and
hold harmless Client and its officers, directors, and employees from and against
any and all damages, liabilities, obligations, losses, deficiencies, actions,
costs (including reasonable attorneys' fees and expenses), demands, suits,
judgments, or assessments (hereafter "Claims") arising out of (a) Vendor's
negligence in the performance of any Services; (b) any acts or omissions of
Vendor, its employees, subcontractors, or agents in connection with the Services
hereunder; or (c) any breach of this Agreement by Vendor, its employees,
subcontractors, or agents. In the event of any Claim to which this
indemnification applies, Client shall promptly notify Vendor of such Claim
pursuant to the notice provisions of Article 17, provided, however, the failure
to give such notice shall not relieve Vendor from its indemnification
obligations. This obligation shall survive termination or expiration of this
Agreement.
(b) Indemnification by Client. In addition to any and all other
indemnification and remedies provided herein, Client agrees to indemnify and
hold harmless Vendor and its officers, directors, and employees from and against
any and all damages, liabilities, obligations, losses, deficiencies, actions,
costs (including reasonable attorneys' fees and expenses), demands, suits,
judgments, or assessments (hereafter "Claims") arising out of (a) Client's
negligence in the performance of any Services; (b) any acts or omissions of
Client, its employees, subcontractors, or agents in connection with the Services
hereunder; or (c) any breach of this Agreement by Client, its employees,
subcontractors, or agents. In the event of any Claim to which this
indemnification applies, Vendor shall promptly notify Client of such Claim
pursuant to the notice provisions of Article 17, provided, however, the failure
to give such notice shall not relieve Client from its indemnification
obligations. This obligation shall survive termination or expiration of this
Agreement.
10. Termination
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(a) Either party may, without prejudice to any other right or remedy it may
have, immediately terminate this Agreement, by written notice to the other
party, if either of the following events occur: (1) either party materially
breaches any provision of this Agreement which breach has not been cured within
ten (10) days of written notification of such breach, or, if such breach is not
susceptible to cure within such ten (10) day period, if the party to whom the
notice is directed has not commenced to cure such breach within such period; or
(2) either party becomes insolvent, makes an assignment for the benefit of
creditors, files a petition for bankruptcy, becomes the subject of any
receivership proceeding, or admits in writing its inability to pay its debts
generally as they become due. In the event of such termination by Client,
Vendor shall be reimbursed only for Services actually performed and Expenses
actually incurred up to the date of termination, and in no event for any other
expenses except as expressly defined below.
(b) For any Project subject to a Client approved Project authorization which
has not been concluded prior to the date of termination or cancellation, but
with respect to which Vendor has performed Services and incurred Fees and
Expenses:
(1) Fee Services: Vendor shall be reimbursed in accordance with the
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pro rata portion completed during the term of the Project until the
date of termination;
(2) Expenses: Vendor shall be reimbursed for those Expenses actually
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incurred by Vendor pursuant to the Project authorization prior to the
date of such termination which Vendor can show are related to Services
specified in the Project, and are not cancelable or otherwise
recoverable. Any contracts that Vendor can demonstrate are not
cancelable or otherwise recoverable, and that were made on Client's
authorization and still existing at the time this Agreement or any
Project authorization is terminated, and which were not or could not
be assigned by Vendor to Client, shall, at Client's request, be
carried to completion by Vendor and paid for by Client in the manner
described in Articles 3 and 4 above; and
(3) In no event shall Client be obligated to pay a total amount
greater than the total estimated for each such terminated Project per
its applicable Project authorization.
(c) Termination of this Agreement or an approved Project authorization by
Client shall not relieve either party from full performance of any obligations
incurred prior to such termination date. If specifically requested by Client,
Vendor shall continue to perform all or a portion of its duties and
responsibilities pursuant to this Agreement during the Termination Period.
During the Termination Period, Vendor shall be entitled to be compensated in
accordance with the provisions set forth in Articles 3 and 4, above.
(d) In the event that the amount owing to Vendor as of the date of
termination or cancellation exceeds the amount previously paid by Client to
Vendor, Client shall pay such excess amount due within thirty (30) days of such
termination. In the event that the amount previously paid to Vendor as of the
date of such termination or cancellation exceeds the amount owed to Vendor,
Vendor shall refund such excess amount to Client within thirty (30) days of the
termination of this Agreement.
(e) Further, in the event of termination of the Agreement or cancellation of
a Project specified by a Client approved Project authorization, notwithstanding
any other terms and conditions contained herein, in no event shall either party
be liable to the other party for lost profits or incidental or consequential
damages.
(f) Upon termination or expiration of this Agreement, no right or
liabilities shall arise out of this relationship other than those rights and
liabilities otherwise specified in this Agreement, regardless of any plans which
may have been made for future Projects.
11. Privacy
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Vendor acknowledges that in the course of providing Services, it or its
authorized employees or subcontractors may receive or have access to personal
information of individuals. Vendor acknowledges and agrees with the strong
concern of Client regarding the protection and preservation of the privacy and
confidentiality of individuals. To the extent that Vendor receives or otherwise
obtains access to information that is identifiable to a particular individual as
a result of its activities, duties, or obligations hereunder, it agrees that it
shall maintain any such information it obtains in strict confidence and shall
use such information solely for the purpose of providing Services and for no
other purpose whatsoever without that individual's consent. Provided, however,
that the foregoing limitation on the dissemination of such information shall not
restrict Vendor from transferring such information to a third party contemplated
herein (or otherwise engaged by a party with respect to this Agreement) on a
strict need to know basis, provided that such receiving third party agrees to
ensure the privacy and confidentiality of such information in the manner set
forth in this section. Vendor shall also comply with all applicable laws,
governmental regulations, rules, requirements, ordinances, and other
requirements of local and state authorities and the Federal government regarding
such information.
12. Insurance
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(a) Unless otherwise agreed to in writing, Vendor shall, at its own expense,
carry and maintain during the performance of the Services under this Agreement
the following insurance with companies satisfactory to Client and in amounts no
less than that specified for each type:
- Commercial General Liability insurance in an amount of not less
than $1,000,000, per claim and annual aggregate, covering premises and
operations, independent contractors, bodily injury (including death),
personal injury, property damage including, and without limitation,
all contractual liability for such injury or damage assumed by Vendor
under this Agreement. Client shall be named as additional insured as
our interest may appear under the Commercial General Liability policy
of insurance.
- Worker's Compensation in accordance with all federal and state
statutory requirements (coverage must include all states in which
operations are conducted) and Employer's Liability Insurance in an
amount of not less than $500,000 per accident for bodily injury and
$500,000 per employee/aggregate for disease;
- Automobile Liability Insurance with a limit of not less than
$500,000.00. Commercial Automobile Liability insurance in an amount of
not less than $1,000,000 combined single limit covering bodily injury
(including death) and property damage for all owned, hired and
non-owned vehicles used by Vendor. Client shall be named as additional
insured as our interest may appear under the Automobile Liability
policy of insurance;
13. Independent Contractor
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Vendor shall perform this Agreement solely as an independent contractor, and not
as Client's agent or employee, and shall be solely responsible for the payment
of income taxes or other taxes or contributions which are imposed with respect
to or measured by wages, salaries, or other compensation, for all amounts paid
to Vendor hereunder (including making such estimated payments as may be
necessary or appropriate) and Vendor hereby agrees to indemnify and save Client
and its affiliates harmless against any and all such liability or claims
therefor. Vendor shall also be fully and solely responsible for the generation
and dissemination of all required tax forms relating to its subcontractors or
any other persons engaged by Vendor pursuant to this Agreement or any Project
authorization. Vendor has no authority hereunder to make any statement,
representation, or commitment of any kind on behalf of Client or to bind Client
to the performance of any duties or accept on behalf of Client any
responsibilities. Neither party shall hold itself out to third persons as
purporting to act on behalf of, or serving as the agent of, the other party,
except as contemplated by this Agreement. Vendor shall not be authorized to
enter into any contract or agreement on behalf of Client without the express
authorization of Client.
14. Assignment
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This Agreement shall be binding upon and inure to the benefit of the parties and
their affiliates, successors and assigns. Neither party may assign its rights
and obligations under this Agreement without the prior written consent of Client
the other.
15. Attachment
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Any Appendix to this Agreement is hereby incorporated by reference and made a
part of this Agreement. In case of any conflict between or among this Agreement
and any of its Appendices, the terms of this Agreement shall prevail over the
Appendices.
16. Waiver
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No failure on the part of either party to exercise and no delay in exercising
any right hereunder shall operate as a waiver of such right nor shall any single
or partial exercise of such right preclude any other further exercise thereof or
the exercise of any other right.
17. Notices
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All notices required or permitted to be given under this Agreement shall be in
writing and shall be deemed given when delivered personally, by facsimile, or
when sent by registered or certified mail, return receipt requested, addressed
to the address set forth below. If notice is sent by registered or certified
mail, postage will be prepaid. Notices may also be transmitted electronically
between the parties provided that proper arrangements are made in advance to
facilitate such communications and provide for their security and verification.
If to Vendor: ALPHAMEDICA, INC.
000 XXXXX XXXXXX XXXX
XXXXXXXXX, XXX XXXX 00000
Attention: Xxxxxxx Xxxxx
If to Client: TELZUIT
MEDICAL TECHNOLOGIES, INC.
0000 XXXXXXX XX. XXX 000
XXXXXXX, XX 00000
Attention: Xxx Xxxxxx
Either party may change its address at any time by giving notice to the other
party in the manner specified herein.
18. Governing Law
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Except where preempted by federal law, this Agreement will be enforced, governed
by, and construed in accordance with the laws of the State of New York,
excluding any choice of law principles that would cause the law of any other
jurisdiction to be applied. The parties hereto agree that the proper and
exclusive forum for any litigation of any disputes or controversies arising out
of or related to this Agreement shall be the courts of the State of New York in
and for Westchester County and that the venue of any action brought in federal
courts will be the applicable U.S. Federal Judicial District for the Southern
District of New York. The parties agree that such courts shall have in personam
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jurisdiction over such disputes and controversies, and the parties further waive
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any defense or objection to the jurisdiction or venue of such courts under the
doctrine of forum non conveniens.
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19. Severability
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In the event any provision of this Agreement is found to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall nevertheless be binding upon the parties with the same
effect as though the void or unenforceable part had been severed and deleted.
20. Entire Agreement
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This Agreement constitutes the entire agreement between the parties with respect
to this Agreement, and all prior agreements relating to the Services hereunder,
express or implied, written or oral, are nullified and superseded hereby. This
Agreement may not be modified, amended, assigned, supplemented, or rescinded,
except by an instrument in writing executed by the parties hereto.
21. Counterparts
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This Agreement, and any amendment or supplement hereto, may be executed in
several counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have hereunto signed this Agreement as of the
Effective Date first above written.
TELZUIT MEDICAL TECHNOLOGIES, INC. ALPHAMEDICA, INC.
By: By:
Name: Xxx Xxxxxx Name: Xxxxxxx Xxxxx
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Title: Chief Executive Officer Title: Chairman
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Date: Date:
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