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EXHIBIT 10.22
UNIVERSAL DOCUMENT MANAGEMENT SYSTEMS, INC.
RESELLER'S SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT is entered into on the _____ day of ________, 1997 (the
"Effective Date") by and between UNIVERSAL DOCUMENT MANAGEMENT SYSTEMS, INC., an
Ohio corporation (hereafter "UDMS") located in Cincinnati, Ohio and MEDPLUS,
INC., an Ohio corporation (hereafter "Reseller") located in Cincinnati, Ohio.
W I T N E S S E T H:
WHEREAS, UDMS licenses certain software and updates thereto,
specifically the executable code of UDMS' Step2000 software and executable
Application Builder codes associated therewith (the "Software"), and provides
support, training and updates therefor; and
WHEREAS, Reseller is in the business of licensing and/or sublicensing
computer software and selling computer hardware, specifically in the health care
industry; and
WHEREAS, in exchange for the consideration summarized on Exhibit A
hereto, UDMS agrees to license the Software to Reseller so that Reseller may use
and sublicense the Software upon the terms and conditions contained herein and
Reseller agrees to pay the consideration summarized on Exhibit A.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties agree as follows:
1. LICENSE, TRAINING, MAINTENANCE AND UPDATES. UDMS hereby grants to Reseller
and Reseller accepts, in accordance with the terms and conditions set
forth hereafter, a perpetual, non-transferable, non-exclusive (except as
otherwise indicated herein) license to sublicense the Software and
documentation associated therewith (the "Documentation") to third parties
("Sublicensees"). In addition, upon the request of Reseller, UDMS shall
assist Reseller in providing maintenance and/or support with respect to
the Software ("Maintenance"), training with respect to the use of the
Software ("Training") and shall provide Reseller with updates to the
Software ("Updates").
2. SUBLICENSING. All Sublicensees to whom Reseller desires to sublicense the
Software shall execute a Software License Agreement with Reseller (the
"Sublicense Agreement") which Sublicense Agreement shall fully protect
UDMS' proprietary and intellectual property rights, including but not
limited to prohibiting unauthorized distribution of the Software, and
which shall allow Reseller to assign its right to payment thereunder to
UDMS.
3. TITLE TO SOFTWARE/LIMITATION ON DISTRIBUTION. Reseller acknowledges that
no ownership rights nor rights of any kind not specifically set forth
herein are transferred by this license. Reseller, its employees and agents
are prohibited from and have no right to sell, distribute or otherwise
transfer the Software, any copies of the Software, any documentation or
manuals supplied with the Software, nor to create additional copies of the
Software, other than for the
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purposes set forth herein. The media upon which the Software is placed
shall remain the property of UDMS. Any authorized or unauthorized copies
of the Software subsequently created, including the magnetic floppy
disk(s) or other media upon which such copies are placed, shall become the
property of UDMS immediately upon the creation of a copy of the Software
thereon.
4. LICENSE FEES AND OTHER COMPENSATION. In consideration for the license
granted hereunder, Reseller shall pay UDMS for the right to sublicense the
Software in accordance with the fees set forth in the then-current UDMS
Reseller Price Schedule and as more specifically described on Exhibit A
hereto. In addition, any Maintenance, Training or Updates requested by
Reseller with respect a particular sublicense shall be provided by UDMS at
the costs indicated on Exhibit A hereto.
5. TERM AND TERMINATION. This term of this license shall begin on the
Effective Date and continue in perpetuity unless terminated as follows
(the "Term"):
(a) by one party due to a material breach hereof by the other party
which breach is not cured within thirty (30) days of the receipt by
the breaching party of notice of such breach (for purposes hereof,
failure to pay fees due UDMS and failure to protect UDMS proprietary
property when possible shall be considered "material" breaches by
Reseller); or
(b) by UDMS in accordance with the provisions of Section 13 hereof
(termination of this license in accordance with this Section 7(b)
shall also act to terminate any and all Sublicenses issued
hereunder).
6. EFFECT OF TERMINATION. Within seven (7) days following termination of this
Agreement for any reason and by either party:
(a) Reseller shall return all copies of the Software and the
Documentation, if any, to UDMS by registered or certified mail or
other delivery method which generates a receipt or shall cause all
such copies to be destroyed;
(b) Reseller shall remove all copies of the Software, if any, stored in
hard memory of any Reseller computer so that the Software is not
capable of being recovered by any standard recovery techniques; and
(c) Reseller shall send to UDMS the certificate attached hereto as
Exhibit B certifying that the Software has been fully erased from
Reseller's systems and that Reseller has not retained any copies of
the Software or the Documentation, if any, in any form.
7. UDMS' PROPRIETARY RIGHTS IN THE SOFTWARE/CONFIDENTIAL INFORMATION.
Reseller acknowledges and agrees that the Software and Documentation, and
any copies thereof, provided under this license are subject to the
proprietary rights of UDMS, are considered trade secrets and "Confidential
Information" of UDMS and are unpublished works for which UDMS holds all
rights, including copyright. "Confidential Information" is information
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which does not meet the statutory definition of trade secret, but
nonetheless is not generally known in the community and is of benefit to
UDMS and the release of which could harm UDMS or benefit competitors or
potential competitors. The confidentiality obligations in this Agreement
shall not extend to any item of information identified as Confidential
Information which is disclosed or made available by one party (disclosing
party) to the other party and received by that other party (receiving
party) and which (a) was in the receiving party's possession before
receipt from the disclosing party, (b) is or becomes a matter of public
knowledge through no fault of the receiving party, (c) is rightfully
received by the receiving party from a rightfully possessing third party
without a duty of confidentiality, (d) is disclosed by the receiving party
in accordance with the disclosing party's prior written approval, or (e)
is independently developed by the receiving party without access to
Confidential Information exchanged hereunder, as provable by competent
evidence. The disclosure of any Confidential Information pertaining to the
Software or providing access to the Software or Documentation to any third
parties or potential licensees without UDMS' consent is absolutely
prohibited; except that such Confidential Information may be disclosed if
such disclosure is required by law. Reseller agrees that it will
immediately disclose to UDMS any violation of this Section 7 which comes
to its attention and will assist UDMS in halting or limiting damage from
such violation and in pursuing whomever caused such violation to occur.
THIS SECTION IS IN ADDITION TO, NOT IN SUBSTITUTION OF, ANY RIGHTS WHICH
UDMS MAY HAVE AT LAW OR OTHERWISE AND IS NOT LIMITED AS TO DURATION BY
THIS AGREEMENT.
8. ASSIGNMENT. Reseller shall not transfer by assignment, license, sale, gift
or otherwise, any of the rights granted Reseller hereunder unless
consented to by UDMS which consent shall not be unreasonably withheld.
Reseller may assign all of its rights herein to any entity which takes
control of substantially all of the assets of Reseller, so long as such
entity agrees in writing to be bound by the terms of this Agreement.
9. SOFTWARE ACCEPTANCE. The Software will be deemed accepted when
installation is successfully concluded and the software is operating
according to UDMS specifications.
10. MODIFICATIONS AND ENHANCEMENTS. Reseller may not create modifications to
the Software except to build processing applications THROUGH USE OF TOOLS
PROVIDED WITHIN THE SOFTWARE ITSELF ("UDMS Tools"). ANY OTHER ALTERATION
OF THE SOFTWARE MAY HAVE UNFORESEEN CONSEQUENCES FOR WHICH UDMS SHALL IN
NO WAY BE LIABLE. Modifications or enhancements, other than those
performed using UDMS Tools, will void any warranties as set forth below.
Reseller has no right or authority under this license to alter, modify or
enhance the Software or to sell licenses to modified or enhanced Software,
without written permission from UDMS; except that, any alteration,
modification or enhancement created by the use of the UDMS Tools may be
sublicensed in accordance with this Agreement.
11. LIMITED WARRANTY. For a period of ninety (90) days after installation of
the Software, UDMS shall repair, correct or replace any Software which is
not operating in accordance with UDMS specifications. THERE ARE NO OTHER
WARRANTIES, WRITTEN OR
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ORAL, OR PROMISES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
12. DAMAGES. UDMS SHALL NOT BE LIABLE FOR DAMAGES, OTHER THAN THE REPLACEMENT
OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO SPECIAL, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF
OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE. IN NO EVENT
SHALL DAMAGES BE AWARDED FOR ANY CLAIM AGAINST UDMS WHICH ARE GREATER THAN
THE FEE RECEIVED FOR THE SALE OF THE SOFTWARE AND THE LAST 12 MONTHS OF
MAINTENANCE AND SUPPORT PAYMENTS RECEIVED BY UDMS FOR SUPPORT OF THE
SOFTWARE, IF ANY. THE SOFTWARE IS NOT CREATED TO PERMIT INTERNAL (SOURCE
CODE) MODIFICATION OF THE SOFTWARE. UDMS SHALL NOT BE LIABLE IN ANY WAY
FOR THE CONSEQUENCES OR RESULTS OF SUCH MODIFICATION.
13. INFRINGEMENT. UDMS shall defend, at its cost, any claim against Reseller
or any Sublicensees alleging copyright, patent or other trademark
infringement by the Software (a "Claim"). Reseller shall promptly notify
UDMS of any Claim of which it is aware in writing and in sufficient time
to permit UDMS to defend or settle such Claim. Such notice to UDMS shall
attach a copy of any Summons and Complaint, Cease and Desist letter or
other notice from the party claiming infringement. If, as the result of
such Claim, an injunction preventing further use of the Software appears
to UDMS likely to be issued or is actually issued, then UDMS may, in its
sole determination and in its absolute discretion: (1) obtain licenses
necessary to permit continued use of the Software, or (2) obtain licenses
for software substantially similar to the Software, or (3) terminate this
Agreement and the licenses issued pursuant hereto and refund fees paid by
Reseller to UDMS on a pro-rata basis, assuming a four year useful life for
the Software.
14. LIMITED EXCLUSIVITY. During the Term, Reseller shall have the exclusive
right to license and/or sublicense the Software to third parties in the
health care industry. Specifically, UDMS shall not directly license the
Software, nor shall it knowingly permit any other party to license or
sublicense the Software, to any third party in the health care industry.
Notwithstanding the remainder of this Section 14, the exclusivity provided
for herein shall not affect agreements executed prior to the Effective
Date by and between UDMS and (i) any of its current resellers or (ii)
third parties to whom UDMS has directly licensed the Software.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of Ohio. This Agreement was entered into in Cincinnati, Xxxxxxxx County,
Ohio, and all parties to this Agreement hereby specifically submit to the
jurisdiction over any action concerning this Agreement by either the
Common Pleas Court of Xxxxxxxx County, Ohio or the U.S. District Court for
the Southern District of Ohio, Western Division.
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16. VALIDITY. If any provisions of this Agreement shall be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be impaired or effected thereby.
17. TIME FOR BRINGING AN ACTION. No action of any kind arising out of this
Agreement may be brought by either party more than one (1) year after the
cause of action has arisen, nor, in the case of non-payment, more than one
(1) year from the date UDMS knew of an unpaid installation.
18. COMPLETE AGREEMENT. This Agreement is the complete and exclusive statement
of the agreement between the parties and supersedes all prior agreements,
oral or written, and all other communications, promises or discussions
between the parties relating to the subject matter of this Agreement.
19. LANGUAGE. Without regard to any languages into which this Agreement may be
translated, the sole reference, should there be a dispute as to the
meaning of the agreement, between different language versions of this
Agreement, shall be the English language version.
20. DEPARTMENT OF COMMERCE RULES. Reseller specifically agrees that it will
submit to all rules and regulations of the United States Department of
Commerce, including the United States Department of Commerce Export
Controls.
IN WITNESS WHEREOF, the parties having read this Agreement and agreeing to
be bound by same, have hereunto set their signatures as of the date first above
written.
LICENSOR: RESELLER:
UNIVERSAL DOCUMENT MEDPLUS, INC.
MANAGEMENT SYSTEMS, INC.
BY:_________________________________ BY:__________________________________
Xxxxxxx X. Xxxxxxx, Chairman Xxxxxx X. Present II, Chief Operating
Officer
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EXHIBIT A
FEES TO BE PAID FOR SUBLICENSES
OF THE SOFTWARE AND MAINTENANCE
AND UPDATES WITH RESPECT THERETO
For each sublicense executed by and between Reseller and a Sublicensee, Reseller
shall pay to UDMS a license fee (the "Reseller License Fee"). The Reseller
License Fee due for a particular sublicense shall be based on the UDMS Reseller
Price Schedule in effect at the time such sublicense is executed. In addition,
if Reseller requests that UDMS provide Maintenance, Training and/or Updates with
respect to the Software sublicensed to a particular Sublicensee, then either
Reseller or the Sublicensee, as the case may be, shall pay to UDMS the
maintenance fees and update fees indicated on the UDMS Reseller Price Schedule
in effect at the time such sublicense is executed.
Any fees due UDMS by Reseller in accordance herewith with respect to a
particular sublicense shall become due and payable to UDMS within 30 days of
Reseller's receipt of payment from the Sublicensee for such sublicense.
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EXHIBIT B
CERTIFICATE OF SOFTWARE DISPOSAL
The undersigned hereby certifies, warrants and covenants that it has
returned or destroyed in a manner beyond recovery all copies of the Step2000(TM)
Software, that no copies thereof or of related documentation or manuals have
been maintained and that no copies were given, sold or provided to any third
party not granted a license to use the same by MedPlus, Inc. or Universal
Document Management Systems, Inc.
SUBLICENSEE:
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By:
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Its:
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