PARTNERSHIP AGREEMENT
Exhibit
10.23
This
Connectivity Agreement ("Agreement") is entered into as of December 27, 2007 ("Effective
Date") by and between MedLink
Healthcare Networks, Inc ("MedLink"), A Texas Corporation, with offices
at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX 00000, and Vemics, Inc., A Delaware Corporation, with
offices at 000 Xxxxxx Xxxxxxx, Xxxxxx, XX 00000,
("Vemics").
Recitals
1. 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 whose application is to modify, edit and
create radiological and medical documentation.
2. MedLink
is a healthcare network organization offering a variety of financial and
clinical discounted transaction services to employees or patients of
various PPOs, Insurance carriers, TPAs, self-insured employers, Federal and
State agencies, Union Healthcare Trusts, membership organizations and other
similar companies, through contracted healthcare providers and medical imaging
facilities. These services include discounts for patients who are insured, under
insured or have no insurance and require comprehensive medical tests such as
X-Ray, CT Scan, PET Scan and MRI.
3. MedLink
desires to establish a connection from its contracted healthcare providers and
medical imaging facilities to IMedicor’s web portal in order to expand their
client base and provide its client base the opportunity to use the services
offered through the iMedicor professional portal. Functionality and components
of this connection will include, but are not limited to, the
following:
A. MedLink
and Vemics will work together to implement a system to allow Physician(s) not
currently part of the MedLink Network the opportunity to enroll their patients
who qualify into the discounted services offer by MedLink.
B. On
a non-exclusive basis, Vemics will make available to all authorized IMedicor
Subscribers the MedLink service on an OPT in basis.
C. MedLink
will deliver to iMedicor its list of imaging facilities, referring physicians
and other health care workers that utilize their service on behalf of, or
recommended to their patients. This data base will be delivered electronically
and will contain name, address, contact person, phone number, fax number and
wherever possible, e-mail address. The marketing messages or material to be sent
out to all those included in this data base will not be delivered without the
approval of both parties.
NOW,
THEREFORE, intending to be legally bound hereby, MedLink 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. "MedLink Subscriber" shall
mean a registered patient / customer of MedLink using the MedLink discounted
service for those patients that are either insured, under insured or have no
insurance.
1.3. "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.
1.4. “Privacy Rule” shall mean the
Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R.
Parts 160 and 164.
1.5. "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 the iMedicor 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.
2. SERVICES,
SUPPORT AND SYSTEM MODIFICATIONS.
2.1. General. Subject to
the terms of this Agreement, MedLink and Vemics will mutually implement the
service to include offering iMedicor physicians the opportunity to enroll their
qualified patients, that is, those patients who are insured, under insured or
non-insured with the MedLink discounted test service. This service allows for
substantial discounts when qualified patients, enrolled in the MedLink network
are required by the referring physician to undergo major tests (X-Ray, CT SCAN,
PET Scan, MRI, etc) and receive the network benefit of discounted test fees.
This service is offered on and OPT in basis and at the sole discretion of the
physician registered in iMedicor. In exchange for offering this service through
the iMedicor portal, MedLink will deliver to iMedicor its list of referring
physicians, Neurologists and Medical Imaging Centers who are part of their
network. This list will be delivered electronically as a data base file and will
include name, address, city, state, zip, phone, fax and e-mail where possible.
Vemics will have the right to register all MedLink participants as temporary
users and market to those registered to encourage them to visit the site and
take advantage of the free communication tools that are available. No payment
obligation is required to qualified healthcare workers who register and use the
site. The list will be delivered within 48 hours of execution of this
agreement.
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
Service.
2.4. Fees. There are no
direct fees associated with providing this service to either party.
2.5. Compensation
– Vemics will receive $ 2.00 (Two Dollars) for every transaction of qualified
patients when they actually use the service as intended, that is, as a
discounted offer for under insured or for those patients without insurance. All
such fees will be paid quarterly on the 15th of the
month following the close of the quarter.
3. CONFIDENTIALITY
and PRIVACY.
3.1. Definition of "Confidential
Information". Confidential Information as used in this
Agreement shall mean any and all technical and non-technical information
including but not limited to patent, copyright, trade secret, and proprietary
information, techniques, sketches, drawings, models, inventions, know-how,
processes, apparatus, equipment, algorithms, software programs, software source
documents, and formulae related to the current, future, and proposed products
and services of each of the parties. and it’s affiliates, and includes, without
limitation, each of the parties and their affiliates information concerning
research, experimental work, development, design details and specifications,
engineering, financial information, procurement requirements, purchasing,
manufacturing, customer lists, business forecasts, sales and merchandising, and
marketing plans and information. “Confidential Information" also includes
proprietary and/or confidential information of any third party that may disclose
such information to either party in the course of the other party's
business.
3.2. 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.
3.3. Further
Obligations. Upon expiration or any termination of this
Agreement or by written request of a Party, 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.
3.4. Injunctive Rights. A breach of
any of the promises or agreements contained herein by either Party will result
in irreparable and continuing damage to the non-breaching Party for which there
will be no adequate remedy at law, therefore the non-breaching party shall be
entitled to injunctive relief and/or a decree for specific performance, and such
other relief as may be proper (including monetary damages if
appropriate).
4. INTELLECTUAL
PROPERTY RIGHTS.
4.1. MedLink Data
Base. MedLink shall retain all right, title and interest in,
and shall be the sole owner of, the MedLink Data Base, any modifications,
enhancements or improvements thereto and derivative works thereof, including any
Intellectual Property Rights therein. MedLink shall retain all right, title and
interest in, and shall be the sole owner of the MedLink Intellectual Property
and/or Confidential Information in any form that it may be contained
in. Vemics will respect all Intellectual Property Rights of
MedLink.
4.2. Vemics
Interface. Vemics shall retain all right, title and interest
in, and shall be the sole owner of the Vemics Medical Portal, iMedicor, any
modifications, enhancements or improvements thereto and derivative works
thereof, including any Intellectual Property Rights therein. Vemics shall retain
all right, title and interest in, and shall be the sole owner of the Vemics
Intellectual Property and/or Confidential Information in any form that it may be
contained in. MedLink 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. MEDLINK 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. VEMICS PRODUCTS AND SERVICES INCLUDING BUT NOT LIMITED TO
THOSE PRODUCTS AND/OR SERVICES PROVIDED BY THE IMEDICOR WEBSITE 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. Notwithstanding
anything to the contrary herein, 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 the indemnifying Party's System,
breach of this Agreement, or negligent or willful 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.
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
TEN THOUSAND DOLLARS. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION OF LIABILITY
CLAUSE SHALL NOT APPLY TO THE INDEMINIFCATION REQUIREMENTS OF THE PARTIES SET
FORTH IN SECTION 7. OF THIS AGREEMENT.
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.
In addition, the parties hereby agree that Vemics, Inc. shall have the right to
assign this Contract to any wholly owned subsidiary of Vemics, Inc.
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 New York, U.S.A. without
giving effect to any provision that would make the laws of another jurisdiction
applicable.
9.9. Arbitration. In the event either
party brings an action against the other to enforce the provisions of this
Agreement, such action shall be resolved by arbitration in the County and State
of the defending party, under the rules of the American Arbitration Association,
with each party hereto appointing one arbitrator and the two appointed
arbitrators appointing a third arbitrator. The arbitrators will have
no authority to vary or ignore the terms of this Agreement, and will be bound by
controlling law. The parties acknowledge because this Agreement
affects interstate commerce the Federal Arbitration Act applies. The
majority decision of the three arbitrators shall be binding upon the parties
hereto. Each party shall pay for their own costs of representation
and the fees of the Arbitrators shall be shared equally.
9.10. 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.
9.11. Publicity. MedLink
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.
9.12. 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 as
well as agreed to by both parties.
9.13. 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.
| MedLink Healthcare Networks, Inc. | Vemics, Inc. | |||
| By: Xxxxxxx Xxxxxxx | By: Xxxxxx Xxxxxxx | |||
|
Printed
Name: /s/ Xxxxxxx
Xxxxxxx
|
Printed
Name: /s/
Xxxxxx
Xxxxxxx
|
|||
|
Title: EVP/COO
|
Title: President
Healthcare
|
|||
|
Date: February 15,
2008
|
Date:
February 14, 2008
|
