Exhibit 10.35
PRIVATE PARTNER NETWORK AGREEMENT
This Private Partner Network Agreement is made and entered into
effective this ____ day of July, 1999, by and between SURGICAL SAFETY PRODUCTS,
INC., a corporation organized under the laws of the State of New York and having
its principal office at 0000 Xxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
(hereinafter referred to as "SSP") and United States Surgical, a division of
Tyco Healthcare Group LP, a limited partnership organized under the laws of the
State of Delaware and having its principal office at 000 Xxxxxx Xxxxxx, Xxxxxxx,
XX 00000 (hereinafter referred to as "USS").
W I T N E S S E T H:
WHEREAS, SSP is the owner of the rights to the Oasis Touch-Access
Information System which is a network of interactive touchports containing
content for use by healthcare workers and others ("Oasis"); and
WHEREAS, SSP and USS desire to enter into an agreement whereby SSP shall
supply the Oasis system to USS or its nominees all in accordance with the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, SSP and USS do hereby agree as
follows:
1. Rights Granted. SSP hereby grants to USS the right and license to
purchase 400 Oasis Touchport system licenses (the "Licenses") and to designate
400 Hospital nominees that shall each receive one or more such Touchport systems
under such Licenses, each in form and content specified by SSP together with
wiring and other components ("Touchport"). USS agrees
that it shall purchase a minimum of 200 Licenses during the first year of this
Agreement, but in any event, subject to the time schedule for installation set
forth on page 5 herein below. Such Licenses shall be purchased by purchase order
issued by USS to SSP; Licenses shall be paid for within thirty (30) days
following substantial installation of the Touchports covered by such Licenses.
The initial purchase order will list the 200 minimum Licenses. USS may alter the
Hospital nominees for installation of the Touchports covered by such Licenses at
any time prior to their installation by issuance of an amended purchase order,
as long as the total Licenses to be purchased during the first year of this
Agreement remains at least 200. Notwithstanding the foregoing, USS may not alter
any more than ten (10) Hospital nominees in any calendar quarter without the
prior written consent of SSP. For purposes of this Agreement, "Hospital" shall
mean a named hospital at a defined physical location receiving at least one
Touchport pursuant to this Agreement. It is understood and acknowledged that
some Hospitals have multiple locations, each of which will require, if
nominated, a separate License.
USS shall purchase 200 additional Hospital locations for Touchports at
any time during the first twenty-four (24) months of this Agreement by issuing
additional purchase orders to SSP within the Twenty-four (24) month period
commencing on the Effective Date. The schedule of installation for such
additional Touchports shall follow the outline set forth on page 5 of this
Agreement, except that each use of the words "Effective Date" shall be replaced
by the words "First Anniversary of this Agreement or date of purchase order,
whichever is later" as to such additional locations.
Notwithstanding the foregoing, USS may elect not to proceed with the
second purchase of Licenses for the 200 additional Hospitals in the event that
SSP has failed to enter into agreements for the installation of, or actually
installs, Touchports in at least 200 other hospitals
or surgery centers in the United States (other than Hospitals) as of the first
anniversary date of this Agreement. Any such election must be made by USS in
writing to SSP within 30 days following the said first anniversary date. To the
extent that USS orders more than 200 Licenses during the first year of this
Agreement, however, USS shall be entitled to elect not to proceed with ordering
only 200 additional Hospitals less the number of such additional Licenses
already ordered. By way of example, if USS orders 210 Licenses (200 initial
order plus 10 additional Licenses) during the first year of this Agreement, USS
may elect only to not proceed with ordering 190 additional Hospitals within 30
days following the said first anniversary date, and shall be bound to its order
for the 10 additional Licenses ordered during such first year. In addition, to
the extent that USS orders more than 200 Licenses during the first year hereof,
the number of additional non-USS hospitals in which SSP must install Touchports
(or enter into agreements for the installation thereof) pursuant to the first
sentence of this paragraph shall be reduced by the number of Licenses over 200
so ordered by USS.
SSP agrees that neither SSP nor any third party other than USS may place
any Touchports in any of the Protected Departments of the said 400 Hospitals
designated in the aforementioned USS purchase orders, unless installed prior to
the receipt of a purchase order or unless USS does not exercise its right of
first refusal set forth below. The following departments shall be considered
"Protected Departments" for purposes of this Agreement:
OR
Labor & Delivery
ER
Ambulatory / Same Day Surgery / Outpatient
Nuclear Medicine
Intensive Care
Orthopedic / Ortho Casting Room
Dialysis (attached or unattached)
If SSP receives a request from a third party or if SSP elects to place
one or more Touchports in a Protected Department in a Hospital already reserved
by USS, SSP shall give ten (10) days written notice thereof to USS. USS shall
have a right of first refusal to place a Touchport in such location under the
terms and conditions set forth herein. If USS decides to exercise its right of
first refusal, it shall notify SSP in writing of its decision to do so with ten
(10) days of its receipt of such notice. Failure to provide notification shall
be deemed a waiver of the right of first refusal as it relates to said location
and SSP shall be free to place a Touchport in the said location notwithstanding
anything contained herein to the contrary. USS shall pay the License fee for
each such Touchport placed pursuant to this paragraph within thirty (30) days
after exercising its right of first refusal. Notwithstanding the foregoing, if
USS is notified of third-party proposed placements exceeding ten (10) locations
in any month of this Agreement, and exercises its right of first refusal in
relation thereto, USS may pay the License fees for such Touchports in three
installments thirty (30), sixty (60) and ninety (90) days after exercising its
right of first refusal. No payments shall be due under this paragraph, however,
unless and until SSP confirms that it has sufficient Touchports in stock, or
will have a sufficient number in stock within thirty days, to supply the
designated new locations.
The date of full execution of this agreement shall be the "Effective
Date". On or before ninety (90) days from the Effective Date, USS shall provide
SSP with written notification of the names and addresses of the 200 Hospital
nominees which shall receive the initial 200 Touchports under the Licenses
described herein above, together with the associated USS sales representatives
and the contact persons located at such Hospitals. The Hospitals installed to
date pursuant to the Collaborative Agreement between the parties dated October
28, 1998 shall each be counted toward the said 200 License minimum. Said
Touchports shall be installed by SSP
and become substantially operational in accordance with the following schedule:
* On or before ninety (90) days from the Effective Date, USS shall
furnish to SSP the names of the Hospital nominees.
* On or before ninety (90) days from the Effective Date, USS
representatives shall be trained by SSP. SSP shall be responsible for all of
SSP's expenses incurred in providing such training.
* On or before one hundred twenty (120) days from the Effective Date,
field presentations shall be made by USS to Hospital nominees and Hospitals will
have acknowledged by way of an Oasis site survey substantially similar to the
form attached hereto as Exhibit "A" their acknowledgment of responsibilities as
outlined in Paragraph 2(C) herein below.
* On or before one hundred eighty (180) days from the date each Hospital
has acknowledged said site survey, installations and in services shall be
completed at Hospital nominees.
All nominated Hospitals must meet with SSP's written approval, which
approval may not be unreasonably withheld. Upon receipt of nominations, SSP
shall determine the order of installations with input from USS.
At all times during the term of this agreement, the Touchports shall
remain the property of SSP and the Hospital shall merely have a sublicense from
USS to utilize the Touchport and its related amenities. Prior to installation of
the Touchport, USS shall cause each Hospital to execute a Site Sub-License
Agreement substantially similar to the form annexed hereto and made a part
hereof as Exhibit B. In the event of any approved move of any Touchport, USS
shall execute and cause the Hospital at the new location to execute a new Site
Sub-License Agreement. Upon the expiration of this agreement, whether by
termination or expiration of the
term hereof, the Site Sub-License Agreements shall automatically terminate and
the Touchport systems and related amenities shall remain the property of SSP.
Each Hospital receiving a sub-license hereunder shall agree to use each
Touchport subject to this Agreement or cause such Touchport to be used in a
careful and proper manner and in accordance with any and all documentation and
manuals provided by SSP, and shall comply with all laws, ordinances, and
regulations relating to the possession, use, or maintenance of such Touchport.
2. Installation. The following shall be the obligations of the parties
with respect to the installation process:
A. SSP. SSP shall make arrangements for the shipping of each
Touchport via a carrier selected by USS. USS shall be responsible for and shall
pay all costs of shipment and transportation of the Touchport systems from the
production facilities to their intended destination. SSP shall coordinate and
manage the installations of each Touchport, and shall pay for all its personnel
required to install the Touchport system upon its arrival at the Hospital,
excluding any wiring and Internet connectivity infrastructure. Risk of loss
shall be born by USS and the Hospital upon shipment from the production
facility, except for losses caused by the negligence or wilful misconduct of SSP
or its employees or agents. SSP shall be responsible for filing any insurance
claims connected with any damage to such Touchports during shipment.
B. USS. USS shall cause representatives of USS to be available
for training as reasonably required by SSP. USS sales representatives will make
the initial sales presentations and provide general sales assistance as needed
to SSP sales representatives. It is the intent of all parties that the training
by SSP be accomplished in a series of four to six regional meetings, each party
bearing their own xxxxxxx.Xxx person within USS shall be designated as the point
of contact for coordinating any Hospital activities and in service production
activities.
C. Hospitals. Each Hospital must appoint an Oasis coordinator to
coordinate the maintenance and operation of the Oasis system. Each Hospital
shall also appoint a technical point of contact for coordinating installation
and Internet connectivity. Each Hospital must provide Internet connectivity at
such Hospital's sole cost and expense as specified in a schedule to be provided
by SSP, which shall include appropriate wiring. Each Hospital must work with the
appropriate local exchange carrier (LEC/CLEC) to coordinate alternative Internet
connectivity.
D. Inspection. SSP shall, at any and all times during regular
business hours, have the right to enter into and on the premises where a
Touchport may be located for the purpose of inspecting the same or observing its
use. USS shall give SSP (or cause such to be given to SSP by the Hospital where
the Touchport is located) immediate notice of any attachment or other judicial
process affecting any item of the Touchport and shall, whenever requested by
SSP, advise SSP of the exact location of a Touchport.
E. Risk of Loss. USS shall require each Hospital receiving a
sub-license hereunder to assume and bear the entire risk of loss and damage to
any Touchport or any part thereof which shall impair any obligations of USS or
such Hospital under this Agreement or the applicable sub-license, except for
loss or damage caused by the negligence or wilful misconduct of SSP or its
employees or agents. In the event of loss or damage of any kind to any Touchport
or part thereof, except where caused by the negligence or wilful misconduct of
SSP or its employees or agents, such Hospital shall pay to SSP the cost of
placing the same in good repair, condition, and working order, or in the event
such cannot be repaired, the replacement cost thereof.
F. Personal Property of SSP. The Touchports and any attachments,
improvements and/or modifications thereto are, and shall at all times be and
remain the personal property of SSP, and not be deemed a fixture,
notwithstanding that the Touchports or any part thereof may now be, or
hereinafter become, in any manner affixed or attached to, or embedded in, or
permanently resting on, real property or any building thereon, or attached in
any manner to that which is permanent as by means of cement, plaster, nails,
bolts, screws, or otherwise.
3. Identification of Hospitals. USS shall identify the Hospitals to
receive the Touchports within the time period referenced herein by written
notification to SSP. If, at any time prior to receipt of such notification, SSP
has received notification from another private partner network participant or
has otherwise agreed to install a Touchport in a Hospital selected by or
nominated by USS, the Hospital selected by USS shall not receive the Touchport
pursuant to this agreement and USS shall nominate another Hospital in its place
within fourteen (14) days of receipt of notification from SSP. Each Hospital
shall be entitled to receive such number of Touchports as USS and SSP shall
determine, however, only one of said Touchports shall count towards the 400
minimum Licenses required hereunder. The location of the Touchport(s) within
each hospital shall be within a surgical environment and be subject to SSP's
approval, which shall not be unreasonably withheld. USS is not permitted to move
any Unit without the express written consent of SSP.
4. Co-Branding. At the election of USS (which said election shall be
made at or prior to the time of nomination of a Hospital) the Touchports to be
installed may be co-branded as follows: "Oasis, by United States Surgical". Such
co-branding shall be reflected on the exterior of the Touchport.
5. Content Participation. All content, method of operation and other
material to be furnished and supplied by SSP through the Touchport shall be
subject to the absolute control of SSP. SSP shall select any and all content and
materials to be provided through the Touchport together with any related
services. SSP shall have the right to provide product in services, E-Commerce
and other products and services from manufacturers, suppliers and distributors
selected by SSP. During the term of this agreement, USS shall pay for and
maintain a minimum of one hundred forty (140) product in-services on an average
of at least 80% of Oasis system Touchports installed in hospitals and surgery
centers in the United States by SSP (i.e. not limited to the Hospitals
designated hereunder) and 100% of those Touchports installed in the Hospitals
nominated hereunder. Each product in service shall be developed by SSP with
USS's assistance and shall be subject to the fee schedule referenced below.
For purposes of this agreement, product in services are defined as
individual modules designed to educate healthcare workers or others on capital
equipment, medical devices and pharmaceuticals. These modules may exist in the
current Oasis format or may be presented in a different design based on the
subject. USS shall provide all raw media assets required to create the in
service module. SSP will build the in service using USS-approved content,
subject to reasonable content review and approval by the SSP Medical Advisory
Panel. None of the members of said Panel shall be employees of or consultants
for any USS competitors. USS is responsible for approval of final in service
modules. The estimated time periods for creating modules is as follows:
A. Within sixty (60) days from the Effective Date, USS shall select
in service topics.
B. Within ninety (90) days from the Effective Date, USS and SSP
shall create an outline of key points and identify media assets
needed.
C. Within one hundred twenty (120) days from the Effective Date, USS
shall have provided SSP with media assets.
D. Within one hundred fifty (150) days from the Effective Date, SSP
shall have built in service and posted a reasonable facsimile of
the assets to the Internet for USS to view.
E Within one hundred eighty (180) days from Effective Date, USS
shall have viewed, via Internet, in service draft and approved or
made reasonable changes.
F On or before two hundred ten (210) days from Effective Date, SSP
shall have implemented changes and posted to Internet for final
approval.
G Thereafter, SSP shall have released in service module for network
distribution.
Product based modules produced by SSP for USS shall become the sole
property of USS. SSP shall retain the right to display USS modules in SSP
hardware for the term hereof, but shall cease to actively display USS modules in
SSP Touchports upon the termination of this Agreement, except upon the prior
written consent of an authorized representative of USS. SSP may, however, use
USS Modules for demonstration, education and development purposes.
All other types of modules shall remain the sole property of SSP. SSP will
xxxx for the fees associated with delivered product in service modules as
provided for in Paragraph 7(E) below on the first day of the month following the
date of delivery of the product in service module and payment shall be due
within ten (10) days. Said billing shall be for the inservice modules delivered
multiplied by $2.00 (monthly fee) further multiplied by a sum equal to 400 plus
the number of non-USS hospitals containing Touchports which will receive the
inservice modules. By way of clarification, Number of inservice modules x $2.00
x (400 + the number of hospitals not covered by this agreement) = monthly fee.
Notwithstanding the foregoing, USS shall pay to SSP the balance due for the 140
guaranteed inservice units on the 211th day following the execution of this
Agreement, unless any of such units have not been delivered as of that date due
to delays caused by SSP.
6. Term and Termination. The license to utilize the Touchports
referenced herein shall commence upon the substantial installation of a
Touchport and shall continue for a period of three (3) years thereafter for each
Touchport installed. It is understood and
acknowledged that the Touchports will be installed in phases and that the
license rights for each particular Touchport shall commence upon substantial
installation. Substantial installation shall mean delivery of the Touchport to
the Hospital and connection to the Internet. The Hospitals and USS shall not
delay this process. Upon expiration of the three (3) year period, as it relates
to each Touchport, the Touchport shall be removed from the Hospital and shipped
to a destination selected by SSP and at SSP's expense.
Upon the expiration of the three (3) year period for the last
Touchport to be installed pursuant to this agreement, the obligation of USS to
maintain the product inservices as required by Paragraph 5 above shall terminate
unless otherwise agreed to between SSP and USS.
During the term of this agreement, USS shall cause its sub-licensing
Hospitals to cause the Touchports to be fully operational and to function in the
ordinary course of business subject to the maintenance obligations of SSP
provided for herein. During the term of this agreement and following termination
of this agreement, USS will not use any sign or materials containing the name
and trademark of SSP and Oasis or any other trademark owned by SSP unless
otherwise agreed to in writing by SSP.
If USS with regard to any Touchport, module or modification (i) fails to
pay any amount due hereunder within ten (10) days after the same is due and
payable, or (ii) if any execution of any other writ of process shall be issued
in any action or proceeding against USS whereby said equipment may be seized,
taken, or detained, or (iii) if a proceeding in bankruptcy, receivership, or
insolvency shall be instituted by or against USS, or (iv) if USS shall enter
into any arrangement or composition with its creditors, or (v) if USS, with
regard to any Touchport or Touchports, fails to observe, keep, or perform any
other provision of this Agreement required to be observed, kept, or performed by
USS, SSP shall, if such default shall continue for thirty (30)
days after written notice thereof to USS, and such default shall not have been
cured within said thirty (30) days, have the right to exercise any one or more
of the following remedies:
1. To declare the entire amount of license fees and any other
monies due hereunder (together with estimated fees for inservice modules and
maintenance over the remainder of the term) immediately due and payable as to
any or all Touchports, without notice or demand to USS.
2. To xxx for and recover all license fees and any other payments
then accrued or thereafter accruing, with respect to any or all Touchports.
3. To take possession of any or all Touchports, without demand or
notice, wherever the same may be located, without any court order or other
process of law. USS hereby waives any and all damages occasioned by such taking
of possession.
(4) To terminate this Agreement as to any or all Touchports. (5)
To pursue any other remedy at law or in equity available to SSP.
Notwithstanding any repossession, or any other action which SSP may
take, USS shall be and remain liable for the full performance of all obligations
to be performed by USS under this Agreement. All such remedies are cumulative,
and may be exercised concurrently or separately at the sole option of SSP .
7. Fees. The following fees shall be due with respect to this agreement,
paid by wire transfer to the account designated by SSP or otherwise by cleared
funds which shall be due on the dates indicated and deemed paid upon receipt by
SSP:
A. Initial Investment. On or before August 10, 1999, USS shall
pay to SSP the sum of $100,000.00.
B. Price of Licenses. Each of the first 200 Licenses purchased by
USS shall be at a price of $1,500. For Licenses purchased above 200, the price
shall be $1,000 which shall be paid for at the times set forth in Paragraph 1
above.
C. Monthly Maintenance Fee. Commencing on the date of substantial
installation of each Touchport and payable on the first day of each month
thereafter during the term of this agreement (with any partial months being
prorated), the Hospital which has sub-licensed the License shall pay to SSP a
monthly maintenance fee of $149.00 per month per Touchport, which payment shall
be due and payable in advance. USS may offer a 10% discount on such pricing to
any Hospital that makes annual up-front payments for each year of the
sublicense. In the event a Hospital fails to make a monthly maintenance fee
payment, then, and in that event, SSP shall notify USS within 30 days of its due
date. Within 30 days of receipt of written notification, USS shall relocate the
Touchport in another hospital acceptable to SSP. USS shall be responsible for
any Monthly Maintenance Fee following an initial 60 days of delinquency, but in
no event shall SSP be required to waive claims for such initial 60 days Fees
more than 40 times for the 400 Touchports collectively during the term hereof.
D. Non USS Touchports. Any additional Touchports installed in a
Hospital at the request of USS or the Hospital shall be billed pursuant to a
separate agreement.
E. Sales and Use Tax. USS shall be responsible for any sales and
use taxes associated with the installation of the Touchports, monthly
maintenance fee or otherwise due with respect to this agreement. USS shall keep
all of the Touchports free and clear of all levies, liens, and encumbrances and
shall pay all license fees, registration fees, assessments, charges, and taxes
which may now or hereafter be imposed on the leasing, renting, possession, or
use of the Touchports.
F. Product Inservices. With respect to each product inservice
module provided, USS shall pay to SSP the following fees:
(i) Production fees for USS during the term of this agreement
shall be charged by SSP at the rate of $1,000.00 per product delivered. Payment
shall be due within ten (10) days. Production shall mean the formulation of the
module for display on the Touchport as designed by SSP from time to time.
Production shall mean the formulation of the module for display on the Touchport
as designed by SSP from time to time.
(ii) Monthly fees (which shall be paid in advance on the first
day of each month) for inservices, per product, which shall be calculated in
accordance with the formula set forth in Paragraph 5 above shall be $2.00 per
month.
(iii) Update fees for production inservices shall be charged at
the rate of $150.00 an hour with a one hour minimum time.
In the event that a Touchport ceases to be active and in operation in
any particular designated Hospital, then, and in that event, the fees due
hereunder shall continue notwithstanding such inactivity, unless same arises out
of the willful or negligent acts of SSP, or SSP's failure to comply with any of
its obligations hereunder. Within ninety (90) days from the discontinuance of
operation of any particular Touchport during the term hereof, USS shall cause
the Touchport to be shipped at USS's sole cost and expense to another designated
Hospital acceptable to SSP and USS for installation within such designated
Hospital with connection being completed within said ninety (90) day period.
In consideration for the $149.00 per month maintenance fee required by
Paragraph 7(B) above, during the term of this agreement, SSP or its agents,
shall provide appropriate maintenance of the Touchports in order to service same
as necessary with an anticipated
turnaround time not to exceed 72 hours from written notification. This
maintenance shall include all necessary repairs excluding those caused by
willful or negligent handling of the Touchports. Notwithstanding anything
contained herein to the contrary, SSP shall not be responsible for any delays or
inactivity resulting from acts of God, strikes, shortage of materials or labor
or other matters beyond SSP's control.
8. Rebates. In consideration for the payment of the fees referenced in
Paragraph 7 hereof and full compliance by USS under the terms of this agreement,
USS shall be entitled to the following rebates so long as USS is not in breach
of this agreement:
A. National Rebate. USS shall receive a rebate of three percent
(3%) of the gross Content Provider Revenue (exclusive of sales and use taxes)
received by SSP from non-USS content providers for each Touchport located in a
surgical application area. A surgical application area shall be deemed to be an
area where a Touchport is located within a hospital operating room or same day
surgery area within the United States. This shall not relate to revenues
generated from Touchports in any other Touchport locations. "Content Provider
Revenue" shall mean revenue received by SSP for the display of individual
modules designed to educate health workers on capital equipment, medical devices
and pharmaceuticals excluding any production costs or revenues. Content Provider
Revenue does not include revenue from any other Hospital applications or any
revenue relating to E-Commerce but is merely the revenue paid to SSP by Content
Providers for the display of information on the Touchport relating to medical
devices, capital equipment and pharmaceuticals. Further, this shall not include
any revenue received by SSP in the way of a commission or percentage of sales by
such content providers.
B. USS Rebate. USS shall receive a rebate equal to twelve percent
(12%) of
the gross Content Provider Revenue received from the surgical application
Touchports located within each designated Hospital. The definition of Content
Provider Revenue shall be identical to that referenced in Subparagraph (A)
above. The USS rebate shall be in lieu of the National Rebate referenced in
Subparagraph (A) above for any Hospital for which such USS rebate is paid.
C. Commission. If, during the term of this agreement, SSP
installs an additional Touchport in a designated Hospital (other than those
Touchports designated by USS), USS shall receive, as a commission, ten percent
(10%) of the retail sale price of the Touchport unit (exclusive of sales tax,
monthly maintenance fees and other services) charged to the Hospital by SSP,
which commission shall be paid within ninety (90) days of substantial
installation of such additional Touchport. USS is responsible for compensating
its sales representatives for any work performed by them.
The rebates referenced in this Section shall commence upon the
substantial installation of the first Touchport covered by this agreement and
terminate upon termination of this agreement. Notwithstanding the foregoing, the
USS Rebate shall terminate, with respect to any designated Hospital, upon the
removal of the Touchport from said Hospital. SSP shall provide USS with
reasonable advance notice of the removal of any Touchport covered by this
Section. All rebates are based upon retail prices of inservices. Accordingly,
SSP may change the prices at anytime.
9. Insurance. At all times during the term of this agreement, USS shall
maintain casualty insurance in amounts and with companies acceptable to SSP on
the Touchport systems and its related amenities showing SSP as the loss payee.
Delivery of the Touchport shall be "FOB" place of shipment which means USS shall
bear the risk of loss of the Touchport upon placing such Touchports in the
custody of a carrier for shipment to the designated Hospital or
recipient. SSP shall in no event have any responsibility for any damage caused
to the Touchports during shipment. It shall be the sole responsibility of SSP to
file any appropriate claims for reimbursement from the carrier. USS shall
inspect each Touchport within seven (7) days after installation. Unless USS,
within said period of time, gives written notice to SSP, specifying any defect
in or other proper objection to the Unit, USS agrees that it shall be presumed
conclusively, as between the SSP and USS, that (i) USS has fully inspected and
acknowledged that the Unit is in good condition and repair, (ii) USS is
satisfied as to the condition and repair of said Unit, and (iii) USS has
accepted the Unit.
10. Updates/Content/Modification of Touchports. During the term of this
agreement, SSP reserves the right to install any updates and make any
modifications to the Touchports and their related hardware and controls all
rights with respect to the content provided via the Touchports. It is understood
and acknowledged that within the Touchport, SSP may be selling other products
and services and USS shall have no rights relative to same other than as set
forth herein. SSP, its employees and agents, shall have reasonable access to the
Touchports for inspection of same and maintenance where required hereunder.
11. Notice. All written notices required or permitted hereunder shall be
deemed effective and duly given:
(i) when personally delivered;
(ii) when sent by telephone facsimile (the sender shall also send
a "hard copy" following the facsimile, however, the notice shall be effective
upon the transmission of the facsimile if confirmed by Sender with words
"Confirming delivery of notice from
----------------");
(iii) one day after depositing in the custody of a nationally
recognized receipted overnight delivery service; or
(iv) at least three (3) days after posting in the United States
first class, registered or certified mail; and, in the case of (iii) or (iv)
above with postage prepaid and addressed to the
recipient at its address as set forth as follows:
TO SSP: Surgical Safety Products, Inc. ("SSP")
0000 Xxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
With a copy to: Xxx X. Xxxxxx, Esq.
Norton, Gurley, Xxxxxxxxxx & Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
TO USS: United States Surgical
Legal Department
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier Number: (000) 000-0000
Either party may change its address by giving notice of such change in
the manner prescribed above.
12. Relationship of the Parties. During the term hereof, the
relationship between SSP and USS is that of Licensor and Licensee. USS, the
designated Hospital, its agents and employees shall, under no circumstances, be
deemed agents or representatives of SSP. Nothing contained herein shall be
construed as a joint venture or partnership between SSP, USS or any designated
Hospital. Nothing contained herein shall grant to USS or any designated Hospital
exclusive rights with respect to the Oasis Touchport system and the content
provided therein.
During the term of this agreement, USS and the designated Hospital shall
not install or maintain any other kiosk or computer based information access
system similar to or in competition with SSP or the Oasis Touchport.
13. Termination of Prior Agreements. Each party acknowledges that no
representation or statement, and no understanding or agreement, has been made,
or exists and
that entering into this agreement, it has not relied upon anything done or said
or upon any presumption in fact or in law, with respect to this agreement, or
with respect to the relationship between the parties, other than as expressly
set forth in this agreement. This agreement terminates and supercedes all prior
agreements, if any, between the parties with respect hereto.
14. Indemnification of SSP. USS hereby agrees to indemnify and hold SSP,
its employees, officers, directors and agents harmless with respect to any
losses, liability or costs incurred by SSP, its officers, employees, directors
or agents arising out of any product liability or other malfunction of any
products sold or displayed pursuant to the product inservices referenced herein.
SSP shall be entitled to place disclaimers in a conspicuous manner on the
Touchports deemed acceptable to SSP and USS.
15. Assignment. This agreement may not be assigned, encumbered or
transferred by USS (with the exception of the designation of the Hospitals
subject to the approval of SSP as provided above) without the prior written
consent of SSP. This agreement shall be binding upon the successors of USS. SSP
may assign this agreement without the consent of USS.
16. Entire Agreement. This Agreement constitutes the entire agreement
between SSP and USS respecting the subject matter hereof. It shall not be
amended, altered, or changed except by a written agreement signed by the parties
hereto.
17. Governing Law. This agreement and the site sublicense agreements
shall be governed by and construed in accordance with the laws of the State of
Florida. The venue of any action brought to enforce this agreement or any site
sublicense agreement shall be Sarasota County, Florida.
18. Attorney's Fees. In the event of litigation arising out of this
agreement or the site sublicense agreements, the prevailing party shall be
entitled to an award of its reasonable
attorney's fees and costs incurred both at the trial and appellate levels.
19. Confidentiality. SSP understands and acknowledges that USS and USS
understands and acknowledges that SSP operates under the laws, statutes and
regulations of various state and federal agencies, some of which are unique to
the security-sensitive medical industry. Both SSP and USS shall endeavor, to the
extent permitted by law, make reasonable efforts to comply with the reasonable
written instructions and reasonable written requests of the other regarding
security and confidentiality pertaining to this Agreement and all other aspects
of the relationship between the parties and information that is exchanged,
shared or handled by either party to this Agreement.
Both parties agree and do hereby agree that all information which could
reasonably be considered "Confidential" by the other will not be distributed to
their employees, affiliates or to the general public, except on a "Need to Know
Basis."
For the purposes of this section only, Confidential Information shall
include any non-public information that the disclosing party reasonably
designates as confidential, or which under the circumstances surrounding
disclosure, should reasonably be considered confidential. Confidential
information includes, but is not limited to information relating to a Party's
released or unreleased software and hardware products, business policies and
practices including all tangible and intangible materials containing information
that is not public or not known to the public whether or not it is in written or
printed form or whether it is machine or user readable or not.
20. Breach. In the event of a breach of this agreement, the parties
shall have all rights and remedies provided for at law and in equity. The
obligation to pay the fees referenced herein shall be the obligation of USS.
21. Miscellaneous. Nothing contained in this agreement shall be
construed as conferring by implication, estoppel or otherwise upon USS or any
designated Hospital, any license under any trade secrets or know-how of SSP and
no such license or other rights shall arise from this agreement or from any
acts, statements or dealings resulting in the execution of this agreement. SSP
retains all ownership rights with respect to the Touchport system, its contents
now existing or as may be developed in the future. No representation or warranty
has been or is made by SSP with respect to any services or products sold or
provided through the Touchport system by others, it being understood that SSP
shall not be liable for any loss, damage or expense arising from any claim with
respect to services or products provided via the Touchport by those other than
SSP.
IN WITNESS WHEREOF, the undersigned have executed this agreement
effective the day and year set forth above.
SURGICAL SAFETY PRODUCTS, INC.,
a New York Corporation
By: _____________________________
Print Name: _________________________
As Its: ______________________________
"SSP"
United States Surgical, a division of Tyco
Healthcare Group, LP, a Delaware Limited Partnership
By: _____________________________
Print Name: _________________________
As Its: ______________________________
"USS"
Exhibit A - Site Survey
OASIS
[GRAPHIC OMITTED]
HOSPITAL PROFILE
--------------------------------------------------------------------------------
Name of Hospital:
--------------------------------------------------------------------------------
Address of Hospital
installation:
--------------------------------------------------------------------------------
Size of Hospital: Beds: Rooms in Rooms
Main OR: in L/D:
--------------------------------------------------------------------------------
Description of Hospital: (i.e.
IHN, GPO, etc.)
--------------------------------------------------------------------------------
Detailed description of current procedures for reporting bloodborne pathogen
exposures (attach policy if available, obtain from Infection Control
Department): Example: worker notifies Supervisor, calls needlestick hotline,
reports to Employee Health Services.:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Description of current methods used for training staff on new techniques,
procedures, devices, etc. (Obtain from OR department): Example: Weekly/monthly
manufacturer inservices.
--------------------------------------------------------------------------------
Description of annual training required for employees (Obtain from Employee
Health Services department): Example: Safety training, 12 modules due on annual
review.
--------------------------------------------------------------------------------
The most identifiable Employee ID # Social Other
identification number for Security #
Hospital personnel is: This
is the logon ID to be used
for OASiS.
============================= =================== =============== =============
--------------------------------------------------------------------------------
NETWORK/QUESTIONS: Please circle yes or no below.
(Information Systems Department should
know this information)
1. Does your Hospital have a LAN (local are network) installed?
(If no, go to question 4.)
Yes No
--------------------------------------------------------------------------------
2. Do you have Internet access from the LAN? Yes No
--------------------------------------------------------------------------------
3. What is the connection speed/type (i.e. T1, T3, ADSL, etc)?
--------------------------------------------------------------------------------
4. Would it be possible to provide Internet access (via cable, Yes No
modem, ADSL, etc.) from the proposed TouchPort location?
====================================== ===================== ==================
CONTACT INFORMATION
Contacts Name Title Phone Email
--------------------------------------------------------------------------------
Key Contact for
this project:
--------------------------------------------------------------------------------
Employee
Health:
--------------------------------------------------------------------------------
Infection
Control:
--------------------------------------------------------------------------------
Risk
Management:
--------------------------------------------------------------------------------
Education:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Surgery:
--------------------------------------------------------------------------------
Labor &
Delivery:
--------------------------------------------------------------------------------
Emergency:
--------------------------------------------------------------------------------
CEO:
---------------------
COO:
---------------------
CFO:
---------------------
Information
Systems
(network):
--------------------------------------------------------------------------------
Marketing
Communication
s:
--------------------------------------------------------------------------------
Other Key
Personnel:
--------------------------------------------------------------------------------
Other Key
Personnel:
--------------------------------------------------------------------------------
If you have questions, please call Surgical Safety Products at 0-000-000-0000.
Please attach information and comments you feel to be pertinent for the
installation process of OASiS. Thank you! Mail the completed form (with
attachments) to:
Surgical Safety Products, Inc.
0000 Xxx Xxxxxxx
Xxxxxxxx, XX 00000
Name of Hospital personnel filling out form
Name of USS Representative filling out form
Hospital Technical Requirements: OASiS Touch-Access Information
Hospitals must provide OASiS with Internet connectivity and basic
network infrastructure. The connectivity may be through an existing Internet
gateway, or an alternative Internet connection.
Preferred Connectivity:
[ALL GRAPHICS HAVE BEEN OMITTED]
Existing Internet Gateway
To use an existing gateway the Hospital must provide an Ethernet port at the
location of each TouchPort. The existing gateway must have continuous, full
bandwidth (50kb/s per TouchPort) throughput without firewalls that would prevent
OASiS administrators from communicating with the OASiS terminal. In the event of
poor data throughput, packet loss, or any manifestation indicative of a slow
network, the Hospital must provide alternative Internet connectivity.
Alternative Connectivity:
Based on Hospital Location
Where a suitable existing gateway is not available the Hospital must accommodate
an alternative Internet connection with the appropriate network infrastructure.
These alternatives will be selected based upon availability and cost. OASiS will
coordinate the installation of these alternatives.
Cabling from the demarcation point to the proper router port is needed. This
must be in accordance with the particular connectivity solution provided by the
LEC/CLEC. The Hospital is responsible for providing and installing Cat 5 10baseT
Ethernet cable (fully tested and verified using a Cat 5 Ethernet test kit) from
the router port to each TouchPort in a straight through configuration. If there
are more TouchPorts than Ethernet ports, a hub will be required to aggregate
multiple TouchPorts to one port. If the distance between a TouchPort and the
router port or hub port is greater than 328 feet, a repeater will be necessary.
(IEEE 8023)
Acknowledged
Exhibit B -- Site Sub-License Agreement
OASiS Touch-Access Information Service Site/Software License Agreement (3/99)
This software ("Software") and the associated hardware ("TouchPorts") is being
sublicensed to you by United States Surgical pursuant to its license agreement
with Surgical Safety Products, Inc. ("SURG") as Version 2.x and is provided on
an "AS IS" basis, for your facilities use only. You agree not to reverse
engineer, decompile, disassemble, alter, duplicate, make copies of, distribute
or provide others with the software. You may not use this software on any
computer other than SURG supplied and approved TouchPorts.
By accepting the terms of this sublicense agreement you agree that SURG is
permitted to limit, deny or cancel some or all of the functionality of this
version at any time, without prior notice.
As part of this software version SURG is granting a limited access to the OASiS
network, servers, directories, listings, information and databases ("OASiS
Services and Information").
You agree to pay to SURG $149.00 per month for the use of each SURG Touchport
placed in your facilities during the term of this sub-license agreement. Failure
to make timely payment of such fee shall entitle United States Surgical to
terminate this sub-license on ten (10) days written notice to you. You shall be
responsible for any and all sales and use taxes associated with the fees due
hereunder.
At all times during the term of the agreement, the Touchports shall remain the
property of SURG and all content, method of operation and other materials to be
furnished and supplied by SURG through the Touchport shall be subject to the
absolute control of SURG.
The OASiS Service and Information may also be accessible by other software
applications and may be published on the SURG or OASiS websites. SURG makes no
warranty or guarantee as to the availability or reliability of the OASiS
Services and Information to you or any other user.
This access granted to you or any other user can be terminated, limited or
denied at any time, temporarily or permanently, with no advance notice. The
OASIS network, servers, directories and databases functionality may be changed,
reduced or limited at any time.
SURG may elect to grant different grade of service, different levels of access
or no access at all and different priorities to different users or to different
functions, at any time without prior notice at its sole discretion.
SURG may elect in its sole discretion to condition the continuation of access to
server, on you accepting software improvements, corrections, adaptations, or
changes to the OASIS program, or to the OASIS numbers (UIN).
By using the OASIS Software or the OASIS Services and Information, you agree to
and acknowledge the following: 1) Information, other than employee and
Hospital identification numbers, your employees elect to post on the various
OASIS Directories, during the registration procedure or thereafter become
the property of SURG. 2) SURG may choose to provide third parties with the
content which is available to the public on the OASIS directories and
listings or any part thereof. 3) SURG may gather statistics and other
information concerning the use of, and originated from the OASIS Software,
OASIS Servers, the OASIS network, the SURG and OASIS websites as well as
registration parameters provided by you, your software and configuration,
provided that if published will be done only in aggregate form without user
names or identification numbers; 4) Not to exclusively use or soley rely on
the OASIS software SURG and OASIS websites, the OASIS Services and
Information or any other program, information or service whatsoever related
thereto for "mission critical" applications and use. "Mission critical"
applications and use shall mean applications and use that may result in
damage if failed;
All information you and employees of your facility access by using the OASIS
software or the OASIS Various Directories and Listings ,or the website, or
information sent to you by other users, is provided by the users, and is not
endorsed by SURG.
By using the OASIS Software, system, network or the OASIS various directories
and listings you agree to: 1) Determine whether the Information complies
with your needs; 2) Determine whether you have adequate legal rights to
store, reproduce or otherwise make use of Information in the manner
contemplated by you; 3) Comply with any legal obligations, including but not
limited to, obligations imposed by copyright, secrecy, defamation, decency,
privacy and export laws; 4) Use each Touchport subject to this Agreement or
cause such Touchport to be used in a careful and proper manner and in
accordance with any and all documentation and manuals provided by SSP, and
to comply with all laws, ordinances, and regulations relating to the
possession, use, or maintenance of such Touchport.
THE VARIOUS OASIS DIRECTORIES, LISTINGS AND DATABASE INFORMATION ARE PROVIDED ON
AN "AS IS, AS AVAILABLE" BASIS. SURG MAKES NO WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE OASIS SOFTWARE, THE OASIS PROGRAM, THE
OASIS NETWORK, SERVERS' SOFTWARE, SERVICE OR ANY INFORMATION OF THE OASIS
VARIOUS DIRECTORIES,LISTINGS AND DATABASES OR ANY KIND OF INFORMATION DELIEVERED
OR SENT BY USERS THROUGH THE OASIS SOFTWARE, SERVERS' SOFTWARE, THE WEBSITE, THE
OASIS NETWORK OR THE OASIS VARIOUS DIRECTORIES AND LISTINGS.
SURG DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE
OR THE RESULTS OF THE USE OF THE OASIS SOFTWARE, THE OASIS NETWORK,THE SERVICE
AND THE ACCESS TO THE SERVERS, OR THE INFORMATION PROVIDED BY THE OASIS VARIOUS
DIRECTORIES, LISTINGS AND DATABASES IN TERMS OF THE ACCURACY, RELIABILITY,
QUALITY, VALIDITY, STABILITY, COMPLETENESS, CURRENTNESS, OR OTHERWISE OF THEIR
CONTENTS OR PRODUCTS. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE
SOFTWARE, THE SERVICE, THE OASIS NETWORK, THE OASIS PROGRAM, AND ACCESS TO THE
SERVERS, OR THE OASIS VARIOUS DIRECTORIES AND LISTINGS DATA, IS ASSUMED BY USER.
SURG does not warrant or guarantee that the functions or services performed by
SURG will be uninterrupted or error-free or that defects in the OASIS program
and the OASIS Services and Information will be corrected.
You acknowledge that you are aware of security and privacy limitations including
but not restricted to the limitation of security, privacy and authentication
measures in this system.
SURG is not responsible for any special, incidental, indirect or consequential
damages.
In no event will SURG's liability with respect to this sublicense agreement
exceed the amount you paid (if you paid) to SURG for the software or of the
charge of one-month fee for using the server's service.
In no event shall SURG be liable to anyone for any delays, inaccuracies, errors
or omissions with respect to the Information or the transmission or delivery of
all or any part thereof, for any damage arising therefrom or occasioned thereby,
or for the results obtained from the use of the Information.
The entire risk as to the quality and performance of the SURG' service the OASIS
Software, the OASIS network and the OASIS Services and Information and the
accuracy, adequacy, completeness, correctness, validity and quality thereof or
of any other Information is with the user.
YOU AGREE TO ASSUME AND BEAR THE ENTIRE RISK OF LOSS AND DAMAGE TO ANY TOUCHPORT
OR ANY PART THEREOF WHICH SHALL IMPAIR ANY OBLIGATION OF SURG OR USS UNDER THIS
AGREEMENT, EXCEPT FOR LOSS OR DAMAGE CAUSED BY THE NEGLIGENCE OR WILFUL
MISCONDUCT OF SURG OR USS OR ITS EMPLOYEES OR AGENTS. IN THE EVENT OF LOSS OR
DAMAGE OF ANY KIND TO ANY TOUCHPORT OR PART THEREOF, EXCEPT WHERE CAUSED BY THE
NEGLIGENCE OR WILFUL MISCONDUCT OF SURG, USS, OR THEIR EMPLOYEES OR AGENTS, YOU
SHALL PAY TO SURG OR USS, AS THE CASE MAY BE, THE COST OF PLACING THE SAME IN
GOOD REPAIR, CONDITION, AND WORKING ORDER, OR IN THE EVENT SUCH CANNOT BE
REPAIRED, THE REPLACEMENT COST THEREOF.
IN NO EVENT WILL SURG BE LIABLE TO ANY PARTY (i) FOR ANY DIRECT, INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY
OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE PROGRAM, THE
SERVICE, THE OASIS
SOFTWARE, THE OASIS NETWORK, THE OASIS SERVICES AND INFORMATION OR ANY OTHER
'INFORMATION', EVEN IF SURG SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR
OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER
INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY INFORMATION.
SURG shall have the right to enforce the collection of any amounts due hereunder
and any of your obligations with respect to the Touchports, and you shall be
responsible for any and all reasonable attorney's fees and costs associated with
the enforcement of this sublicense agreement.
This agreement shall be governed by and construed in accordance with the laws of
the State of Florida. The venue of any action brought to enforce this agreement
or any site sublicense agreement shall be Sarasota County, Florida.
