EXHIBIT 10.15
AGREEMENT
This Agreement is made and entered into this 5th day of January, 1999 by
and among C. Xxxxxxx Xxxx, M.D. ("Koop") and Empower Health Corporation, a Texas
corporation (EHC").
WITNESSETH:
WHEREAS Koop has/is assisting EHC in the development of its consumer-
centric healthcare management information system for use on EHC's web site
xxxxxx.xxx, and elsewhere, and, which is specifically set forth in EHC's
Business Plan, dated October 6, 1997;
NOW THEREFORE for and in consideration of the premises, and the mutual
covenants and promises herein set forth, the parties hereto hereby agree as
follows:
1. Term and Termination: The term of this Agreement will begin effective
on the date hereof and will extend for an initial term of five years. Unless
otherwise terminated as provided for below, the Agreement will automatically
renew for consecutive three-year terms. The Agreement may be terminated by
either party upon written notice 120 days before the expiration of any Term.
This Agreement may also be terminated by either party in the event of a breach
or default by the other party. Provided termination is not the result of a
breach or default by EHC, EHC shall have the right on a non-exclusive basis for
three years following termination to rebrand and sell approved Products bearing
the Koop Name (the "Rebranding Period"). In the event that termination occurs as
a result of a breach or default by EHC all rights to use the Koop Name shall
cease immediately upon termination.
2. Right To Use Services: During the Term and subject to all other
provisions of this Agreement, Koop agrees that EHC shall have the right to use
the Koop name, image or likeness (hereinafter the "Koop Name") in connection
with the Company's healthcare related software services and products
(collectively the "Products") in accordance with Clause 5 below.
3. Fees and Payment: For all rights and privileges and services
rendered or provided for hereunder by Koop, EHC shall pay Koop a royalty on
all EHC's Revenues as reflected on EHC's Profit and Loss Statement
(thereinafter "EHC's Revenues"). EHC will pay Koop a 2% royalty on all
Revenues received from all gross revenues, including, but not limited to,
sales of Direct to Consumer advertising revenues, hospital partnership
programs, "Xx. Xxxx'x Community" software, products and services. The 2%
royalty will be paid to Koop for the commercial life of the aforementioned
products or until termination of this Agreement and expiration of the
Rebranding Period, if any. Future EHC products which bear the Koop Name shall
pay a royalty between 2% and 4% of Net Sales. For future EHC products, the EHC
Board of Directors will determine the actual royalty percentage paid to Koop,
not less than 2%.
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and not more than 4% in its reasonable discretion. Said royalties will be
paid quarterly with a lag term of less than ninety days.
4. Competitive Protection: Effective as of the date of this Agreement and
continuing throughout the Term, Koop agrees that except as provided for herein,
Koop will not render services in the form of advertising and/or publicizing of
any items, products or services which are directly competitive with EHC's
Products sold pursuant to this Agreement (hereinafter collectively the
"Competitive Products") nor will Koop permit or authorize the use of the Koop
name and/or likeness (photograph and/or drawing), voice, signature and/or
endorsement in connection with any such Competitive Products, except as may be
used for the non-profit activities of the Koop Institute.
(i) Xx. Xxxx shall not participate in the development, production
or promotion of any Competitive Products during the term of this Agreement or
any renewal term or during the rebranding period, if any.
5. Right of Review: The following elements of each Product shall be
subject to Koop's prior review and written approval, which approval shall not be
unreasonably withheld and shall be rendered within ten working days of receipt
of the element of the Product. Koop shall have the right to delegate his
approval rights hereunder to another person in consultation with and after
notice to EHC. During the term of the Agreement, should Koop die, the executor
of his estate will manage all rights, royalties and any other considerations
related to this Agreement.
(i) Content and format, including manuscripts and other written
materials included with the Products, including drafts, and the final version.
(ii) Extent and content of all medical and technical information.
(iii) Professional medical consultants and advisors.
(iv) Title.
(v) Credit.
(vi) Means of advertising, promoting and selling the product,
including the Koop Name.
(vii) All advertising and promotional materials created, developed or
used in connection with the Products.
(viii) Any use of the Koop Name.
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(ix) Any use not expressly contemplated by this Agreement.
EHC and Koop shall work together to establish systems and procedures for
updating the Products based on advances in the field of medicine.
6. Default Provisions:
(a) In the event that either party ("Defaulting Party")
(i) Materially or repeatedly defaults in the performance of
any of its duties or obligations set forth in this Agreement and such
default is not substantially cured within thirty (30) days after
written notice is given by the other party specifying the default; or
(ii) Defaults in the payment of any amount due to the other
party under this Agreement and does not cure the default within thirty
(30) days after written notice is given by the other party specifying
the default; and
(iii) Provided, that upon a default under Section 6(i) and/or
(ii) by one party under this Agreement, the cure period for the next
default by such party shall be reduced (but not below zero days) by
ten (10) days.
Then the other party may, by giving written notice to such effect to
the Defaulting Party, terminate this Agreement as of the date
specified in such notice of termination.
(b) Notwithstanding anything to the contrary herein contained, the
termination of the Agreement shall not relieve the parties of their obligations
to make payments previously earned.
7. Obligations Limited to Payments: The obligations to Koop hereunder
shall be fully performed and discharged as stipulated in Section 3, except for
those obligations that arise pursuant to the provisions for indemnifications
contained in Section 9. It is understood that Koop is not an employee of EFIC
and shall not be entitled to any rights or benefits granted to employees of EHC
and by reason of the rendering hereunder of services by Koop.
8. Covenant of EHC: EHC covenants and agrees that it will not knowingly
permit, do or commit any act or thing that would degrade, tarnish or deprecate
Koop or the Koop public image in society or standing in the community, or
prejudice Koop.
9. Indemnity: EHC agrees to indemnify and hold harmless Koop, his
employees, assignees, and heirs against any and all claims, damages, liabilities
(including, but not limited to, liability for personal injury and liability for
breach of confidentiality), costs and expenses, including without limitation,
reasonable legal fees and costs arising out of the use of any material furnished
by EHC in connection with the services performed, or resulting from any patient
or third party action of any kind, or resulting in any way from the sale of
Products pursuant to this
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Agreement, or incurred for or by reason of the breach of EHC of any of the
obligations, warranties, agreements, covenants or representations herein
contained. Koop shall provide prompt written notice of any claim hereunder and
EHC shall have the right to defend same.
10. Notices: Any notice or other communication (including payment
hereunder) required or permitted to be given hereunder shall be in writing and
shall be hand delivered or sent next-day delivery by a company where a receipt
is given to the address as follows:
To EHC: Empower Health Corporation
Attention: President
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
To Koop: C. Xxxxxxx Xxxx, M.D.
Koop Institute at Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
and
C. Xxxxxxx Xxxx, M.D.
0 Xxx Xxxxxx Xxx
Xxxxxxx, XX 00000
Any such notice, direction or other instrument aforesaid, if delivered,
shall be deemed to have been given or made on the date on which it was delivered
or if sent next-day delivery shall be deemed to have been given or made on the
day following the day on which it was sent provided that any one of the parties
hereto may change its address by written notice to the other according to the
terms hereof and in such event this paragraph shall be deemed to be amended
accordingly.
11. Informed Consent, Confidentiality and Security: EHC represents and
warrants that when and if it introduces a program identified here as "Personal
Medical Records" that it will obtain appropriate and fully informed patient
consent to the receipt, retention, use and transfer of that patient's personal
or medical data and that such informed consent complies with all applicable
federal, state and local laws and regulations. EHC further represents and
warrants that it shall take reasonable precautions to assure accuracy of and to
protect against negligent disclosure of and unauthorized access to all patients'
personal and medical data.
12. Other Representations and Warranties:
By Koop: EHC may apply for trademarks which incorporate the Xx. Xxxx
name. Xxxx represents and warrants that he has the right to enter into this
Agreement and that he is free to grant the rights granted herein.
By EHC: EHC represents and warrants that:
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1. It has the right to enter into this Agreement and that it is free
to grant the rights granted herein.
2. The Products will not infringe the patent, copyright, trade
secret, or property rights of any third party.
3. All aspects of the product, distribution and promotion of the
Products shall comply with all applicable laws and regulations.
4. It is not a party to any agreement that will be breached by or
that prohibits it entering into or performing this Agreement.
13. Trademark Assignment and License: EHC represents and warrants that it
has filed applications based on actual use with the United States Trademark
Office to register various marks, the status of which are as follows:
(i) PERSONAL MEDICAL RECORDS: the United States Trademark Office
pending number is 75/404,948;
(ii) XX. XXXX'X COMMUNITY: application filed with no pending number
assigned as of the execution of this Agreement; and
(iii) xxxxxx.xxx: application filed with no pending number assigned
as of the execution of this Agreement.
All of the above, hereinafter the "Trademarks," are referenced for the
good and services described herein. Upon termination of the Agreement and
rebranding period (if any), EHC shall assign its right, title and interest in
the Trademarks including the goodwill contained therein to Koop and any other
marks registered by EHC pursuant to this Agreement. Except as set forth
herein, EHC acknowledges that it has no rights in the Trademarks and that
nothing contained in this Agreement or in any other document shall vest any
ownership rights in the Koop name.
14. Miscellaneous:
(a) Ownership and Publicity: EHC does not and may not claim any
right, title or interest in or to Koop's name or likeness, and acknowledges that
all rights therein are and remain the property of Koop.
(b) Insurance: Prior to sale, promotion or distribution of any
Product other than reasonable, limited test marketing, EHC shall secure all
necessary and customary insurance, including a standard comprehensive general
liability insurance policy providing standard product liability protection,
directors and officers insurance and errors and omissions insurance listing Koop
as a named insured. Such insurance shall be in a form reasonably acceptable to
counsel for
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Koop and shall require the insurer to give Koop at least thirty (30) days' prior
written notice of any modifications or cancellations.
(c) Entire Agreement: This Agreement constitutes the complete and
exclusive statement of the agreement between Koop and EHC with respect to the
subject matter herein set forth and supersedes all prior agreements by and
between the parties.
(d) Amendments: This Agreement may not be amended, altered or
terminated except in writing.
(e) Inurement: This Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
(f) Language: The language used in this agreement shall be deemed to
be language chosen by the parties thereto to express their mutual intent and no
rule of strict construction against any party shall apply to any term or
condition thereof
(g) Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
(h) Termination: Upon any termination and except as provided for
herein, all rights to use Xx. Xxxx'x name and likeness shall terminate.
(i) Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator in a location to be agreed to by the parties,
and judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof and shall not be appealable.
(j) Gender: Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders and vice versa, as the context may require.
(k) Counterparts: This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which taken together shall
constitute but one agreement.
15. Records: EHC shall keep company books and accounts in accordance with
generally accepted accounting practices and grants to Xx. Xxxx the right, upon
reasonable notice, to examine EHC's books of account.
16. Assignment and Change of Control: Neither party may assign its rights
and obligations under this Agreement without the prior written consent of the
other. In the event of a change of control as hereinafter defined, this
Agreement shall terminate and all rights in the
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Koop Name granted hereunder immediately revert to Koop. A Change of Control
shall be defined and agreed to by the Parties hereto.
IN WITNESS WHEREOF THIS AGREEMENT IS EXECUTED AS OF THE DATE FIRST WRITTEN
ABOVE.
Empower Health Corporation
\s\ C. Xxxxxxx Xxxx \s\ Xxxxxx X. Xxxxxxx
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C. Xxxxxxx Xxxx, M.D. Xxxxxx X. Xxxxxxx, President
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