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EXHIBIT 10.29
SUPPLYLINE(R) LICENSE AGREEMENT
This AGREEMENT (the "AGREEMENT") is executed as of this 13th day of
October, 1999, (the "EXECUTION DATE") with certain provisions as described
herein to be effective as of October 15, 1999 (the "EFFECTIVE DATE") by and
between XXXX HEALTHCARE, INC. ("XXXX"), a Texas Corporation with its principal
place of business located at 0000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000, and
XXXXXXX.XXX, INC. ("CLIENT"), a Delaware Corporation with its principal place of
business located at 0000 Xxxxxxxx Xxxx, Xx Xxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, XXXX has created and is the sole owner of a supply database
product known as Supplyline(R), a tool for the management of healthcare supply
cost, utilization, and purchasing contract compliance,
WHEREAS, Supplyline(R) is a database of information which is designed to
link supply manufacturer assigned Bar Code Numbers to XXXX designed
Supplyline(R) Product Classification Number (incorporating categories, product
lines, class codes, product codes manufacturer and/or distributor data) and
Supplyline(R) Product Classification Numbers to Supplyline(R) Reference Numbers
("SUPPLYLINE(R) SYSTEM"),
WHEREAS, CLIENT is an Internet Infomediary organization supporting
healthcare providers, and wishes to use Supplyline information in its internal
business activities,
WHEREAS, the parties desire to memorialize their agreements,
NOW, THEREFORE, for and in consideration of the agreements contained
herein, the adequacy of which consideration is hereby acknowledged and
confessed, the parties hereby agree as follows:
PROVIDED BY XXXX. XXXX will provide CLIENT with the following.
XXXX agrees to provide CLIENT with the applicable license and data files
listed in EXHIBIT A. The license will allow the CLIENT access to all
Supplyline(R) listings, including invoice price data. The data fields included
for the license type selected by CLIENT are listed in EXHIBIT A. The data files
will be provided to client via CD ROM or other mutually agreed upon medium or
media and updated monthly. The initial delivery of data files shall be made
following receipt of the initial installment of the applicable License Fee. The
amount of the License fee(s) due from CLIENT to XXXX will be calculated using
EXHIBIT X. XXXX agrees the SUPPLYLINE(R) SYSTEM will
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be readable and useable by CLIENT. XXXX agrees to provide its standard level of
support to CLIENT for the implementation of the SUPPLYLINE(R) SYSTEM.
PROVIDED BY CLIENT. CLIENT agrees to provide XXXX with the following.
CLIENT agrees to provide XXXX with line item invoice data for all
purchases processed by CLIENT on a monthly basis. Invoice data must contain
distributor and or manufacturer, product description, catalog number, purchase
quantity, purchase unit of measure, quantity per unit of measure, price paid for
item, invoice date, and invoice number. XXXX agrees to use CLIENT supplied data
solely for the purpose of adding price information to the price comparison
portion of the database. No information supplied by CLIENT will be identifiable
as originating from CLIENT to any other licensee or will be used by XXXX for any
other purposes than adding price information to the price comparison portion of
the database.
COMPENSATION. Client agrees to pay XXXX as described below.
1. Supplyline(R) Licensing Fee: Pursuant to EXHIBIT B, CLIENT shall
pay to XXXX those License fees set forth in EXHIBIT B, payable
as provided herein.
2. Payment: Initial payment is due within thirty (30) days of
receipt by XXXX of this executed AGREEMENT. Any subsequent fees
shall be due within thirty (30) days of the invoice date.
Provided XXXX is not in default under this AGREEMENT, if full
payment is not received by XXXX within thirty (30) days of the
invoice date, CLIENT will be charged and agrees to pay, a
finance charge on any unpaid balance equal to the lesser of one
and one-half percent (1.5%) per month, or the maximum rate
permitted by law, if lower.
3. CLIENT shall make all payments to XXXX under this AGREEMENT by
either wire transfer of funds (FEDWIRE) to the appropriate XXXX
bank account as provided by XXXX or, alternately, by mail, to
the following address:
Xxxx Healthcare, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
TERM OF LICENSE. The term of the license to the applicable Supplyline(R)
Data Files ("SUPPLYLINE(R) SYSTEM") shall be for one (1) year from the EFFECTIVE
DATE. The term of the license is subject to earlier termination for breach of
these license terms, as described below.
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LICENSE GRANT. In consideration of the payment provided by CLIENT, as
defined in this AGREEMENT, and for the term set forth above and subject to the
restrictions hereinafter set forth, XXXX hereby grants CLIENT a personal,
non-exclusive and non-transferable license to:
(a) use the SUPPLYLINE(R) SYSTEM within the CLIENT offices located
at the address described in this AGREEMENT or such other
locations approved in advance by XXXX, on one or more computers
for internal purposes only and solely for the CLIENT's internal
business activities, except as expressly provided in Paragraph 4
under License Restrictions.
(b) use the SUPPLYLINE(R) SYSTEM in connection with other programs
maintained for CLIENT's own internal use within CLIENT offices;
provided that, to the extent that the SUPPLYLINE(R) SYSTEM is
modified through or to the effect such use, the SUPPLYLINE(R)
SYSTEM as so modified shall continue to be the property of XXXX
and shall continue to be subject to the terms of this AGREEMENT;
and provided further that, upon termination of the license
granted in this AGREEMENT, SUPPLYLINE(R) SYSTEM as so modified
shall be completely removed from such other programs.
(c) make one (1) copy of the SUPPLYLINE(R) SYSTEM for archival or
backup purposes, provided such copy includes all XXXX'x
copyright or other proprietary notices.
LICENSE RESTRICTIONS: The foregoing license shall be subject to the
following restrictions.
1. Except as provided above, CLIENT shall not modify the
SUPPLYLINE(R) SYSTEM or any part thereof, or attempt to alter,
decompile, cross compile, disassemble, reverse engineer, or use
any other means to decode or make a derivative work from the
SUPPLYLINE(R) SYSTEM. Under no circumstances may CLIENT use the
SUPPLYLINE(R) SYSTEM or any parts thereof or any systems or
codifications included therein to develop an alternate
codification or classification system.
2. CLIENT shall not lend, lease, sublicense, or attempt to perfect
any lien or property right in, the SUPPLYLINE(R) SYSTEM, or
otherwise make the SUPPLYLINE(R) SYSTEM available to any third
party or any Affiliate of CLIENT.
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3. CLIENT agrees that the SUPPLYLINE(R) SYSTEM will be used under
the license granted hereby only for the benefit of CLIENT. In
the event CLIENT incorporates the SUPPLYLINE(R) SYSTEM into
products or services offered to CLIENT'S customers, the
SUPPLYLINE(R) SYSTEM shall not be visible to or downloadable by
CLIENT'S customers. The CLIENT agrees that any installation of,
or incorporation of SUPPLYLINE(R) information into other
products or services offered by CLIENT, or access to the
SUPPLYLINE(R) SYSTEM from CLIENT offices not stated as its
principal place of business in this agreement will require a
SUPPLYLINE(R) Site License fee pursuant to EXHIBIT B.
4. Under no circumstances may the codification system or generic
descriptions that are included in the SUPPLYLINE(R) SYSTEM be
transmitted or disclosed to any third party or Affiliate of
CLIENT; provided, however, CLIENT may show the alpha numeric
Product Description on screen, but it shall not be downloadable.
5. CLIENT may transmit and receive SUPPLYLINE(R) proprietary data
fields only with those entities identified by XXXX as possessing
the required Supplyline(R) License Agreement.
6. CLIENT agrees that throughout the term of this AGREEMENT and any
extension thereof, it will not directly or indirectly throughout
itself or any affiliate, develop, invest, contract, design,
create, or acquire any rights in any system which might compete
or replace the SUPPLYLINE(R) SYSTEM unless either party shall
first have exercised its right to terminate and tendered written
notice in accordance with the Term section of this AGREEMENT.
XXXX agrees that the UNSPSC catalogue system for medical
supplies and medical devices in its current form utilized by
CLIENT shall not constitute a breach of this AGREEMENT by
CLIENT.
PROPRIETARY INTERESTS AND OWNERSHIP OF PROGRAM. The SUPPLYLINE(R) SYSTEM
is licensed to CLIENT by XXXX for CLIENT's use in accordance with this
AGREEMENT. The SUPPLYLINE(R) SYSTEM, any copies made by CLIENT and all
proprietary rights whatsoever thereto shall remain the sole and exclusive
property of XXXX. The SUPPLYLINE(R) SYSTEM and the proprietary systems and
information contained therein constitute trade secrets of XXXX, and the
unauthorized use or disclosure of the SUPPLYLINE(R) SYSTEM by CLIENT will result
in irreparable damage to XXXX.
CONFIDENTIAL INFORMATION. The SUPPLYLINE(R) SYSTEM, any documentation
provided by XXXX for such program or its use, and any information furnished to
CLIENT by XXXX that is marked "confidential" or "proprietary" are the sole and
exclusive proprietary information or trade secrets of XXXX. CLIENT may use the
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XXXX Confidential Information during the term of this AGREEMENT only as
permitted hereunder. CLIENT shall not disclose or provide any XXXX Confidential
Information to any third party or to any Affiliate of CLIENT, and shall take
reasonable measures to prevent any unauthorized disclosure by its employees,
agents, contractors or consultants during the term hereof including appropriate
individual nondisclosure agreements. The foregoing duty shall apply to any XXXX
Confidential Information for a period of ten (10) years from the date of the
receipt thereof by CLIENT. The obligations set forth in this Section shall
survive the termination of this AGREEMENT.
Provided, however, that the following information shall not be
considered XXXX Confidential Information under this Section:
(a) information which is in or enters in the public domain
through no fault or act of CLIENT that is in breach of
the AGREEMENT;
(b) information which was independently developed by CLIENT
without the use of or reliance on the XXXX Confidential
Information; or
(c) information which was provided to CLIENT by a third
party under no duty of confidentiality to XXXX.
LIMITED WARRANTY. XXXX represents and warrants to CLIENT that (a) XXXX
has the lawful right to grant the rights to the SUPPLYLINE(R) SYSTEM as set
forth herein; (b) as of its shipment date from XXXX, XXXX has no knowledge that
the SUPPLYLINE(R) SYSTEM infringes any third party intellectual property rights,
such as patents, copyrights, trade secrets or trademarks, in the United States;
and (c) the media containing the SUPPLYLINE(R) SYSTEM will be free from defects
in materials and workmanship under normal use and service for a period of ninety
(90) days from the delivery of the SUPPLYLINE(R) SYSTEM, except as set forth in
this section, the SUPPLYLINE(R) SYSTEM is provided to the CLIENT "as is". XXXX
expressly disclaims any representation or warranty that the SUPPLYLINE(R) SYSTEM
is or will be free of errors.
The warranties set forth above with respect to the SUPPLYLINE(R) SYSTEM
are in lieu of all other warranties, express or implied, which are hereby
disclaimed by XXXX, including any warranty of merchantability or fitness for a
particular purpose or use. No representative of XXXX is authorized to make any
modification, extension or addition to the warranties set forth in this section.
INFRINGEMENT INDEMNITY AND LIMITATION OF REMEDIES. XXXX hereby agrees to
indemnify, defend and hold CLIENT harmless from any and all lost, cost damage or
expense arising out of any third party suits, claims, or demands or other legal
action
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("Legal Action") that alleges the SUPPLYLINE(R) SYSTEM infringes any United
States patent, copyright, or trade secret, including any reasonable costs or
legal fees incurred by CLIENT as a result. However, CLIENT shall give written
notice of any Legal Action to XXXX within twenty (20) days of its first
knowledge thereof, and any failure by CLIENT to give such notice to XXXX shall
relieve XXXX of its duty of indemnification hereunder. XXXX shall have sole and
exclusive control of the defense of any Legal Action, including the choice and
direction of any legal counsel. CLIENT shall not settle or compromise any Legal
Action without the written consent of XXXX; and CLIENT shall cooperate with XXXX
with respect to all Legal Actions.
If the SUPPLYLINE(R) SYSTEM is found to infringe any third party
intellectual property right in a Legal Action, at XXXX'x sole discretion and
expense, XXXX may:
(a) obtain a license from such third party for CLIENT's benefit at
no further cost to CLIENT; or
(b) replace or modify the SUPPLYLINE(R) SYSTEM so that it is no
longer infringing; or
(c) if neither of the foregoing is commercially feasible in the
opinion of XXXX, terminate this AGREEMENT, in which case a
prorated portion of the License Fee will be refunded to CLIENT
in the event of termination.
The foregoing indemnification shall not extend to, and XXXX shall have
no liability for, any infringement resulting from the use of the SUPPLYLINE(R)
SYSTEM with any software or program not supplied by XXXX. Furthermore, XXXX
shall have no liability or obligation to indemnify CLIENT pursuant to the
foregoing provisions if CLIENT fails to use a non-infringing version or release
of the SUPPLYLINE(R) SYSTEM if made available by XXXX.
LIMITATION OF DAMAGES AND REMEDIES. In no event other than intellectual
properties infringement, as defined above, shall the liability of XXXX include
any special, indirect, incidental or consequential loss or damage, even if XXXX
has been advised of the possibility of such potential loss or damage, including
any liability for damages arising out of or resulting from the use, maintenance
of performance of the SUPPLYLINE(R) SYSTEM. The foregoing disclaimer shall
extend to any liability for loss or corruption of the SUPPLYLINE(R) SYSTEM by
CLIENT. XXXX'X liability of any kind (including liability for negligence) with
respect to the SUPPLYLINE(R) SYSTEM and all other performance or non-performance
by XXXX or its agents shall be limited to the amount of maintenance and license
fees paid by CLIENT to XXXX.
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TERMINATION OF LICENSE. If either party breaches or defaults under any
material provision of this AGREEMENT, and such default is not cured within
twenty-five (25) days after such defaulting party's receipt of a written notice
by the non breaching or non-defaulting party specifying the nature and extent of
such breach or default, then the non-defaulting party may elect to terminate
this AGREEMENT in its entirety, or seek such other legal or equitable relief as
to which it may be entitled. In the event of breach by XXXX, CLIENT may seek
damages including the return of License Fees.
Within ten (10) days of termination of this AGREEMENT for any reason (by
either CLIENT or XXXX), CLIENT shall return to XXXX or shall erase and destroy
any copies in its possession of (a) the SUPPLYLINE(R) SYSTEM, (b) any
documentation related to the SUPPLYLINE(R) SYSTEM, and (c) any other
Confidential Information of XXXX in tangible form. CLIENT shall then certify in
writing to XXXX that it has so returned or erased and destroyed such materials.
GOVERNMENTAL USES. If CLIENT will employ the SUPPLYLINE(R) SYSTEM on
behalf of any unit, office, agency or instrumentality of the U.S. Government,
the SUPPLYLINE(R) SYSTEM is subject to "Restricted Rights," as that term is
defined in the Department of Defense Supplement to the Federal Acquisition
Regulations, P.252.227-7013(c)(1), or in the Federal Acquisition Regulations,
P.52.227-19(c)(2), as may be applicable, or any successor rules or regulations.
Any use, duplication or disclosure of the SUPPLYLINE(R) SYSTEM by the U.S.
Government shall be subject to such regulatory restrictions. For purposes of the
foregoing regulations, the Contractor/Manufacturer is: Xxxx Healthcare, Inc.,
0000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx, 00000.
YEAR 2000 ISSUES. The SUPPLYLINE SYSTEM is (to the extent applicable),
(1) Year 2000 compliant and allows for date data century recognition,
calculations that accommodate same century and multi-century formulas and date
values, and date data interface elements that reflect the proper century, and
(ii) free of any known bugs or defects, and to the best knowledge of XXXX, is
and shall be useable in the same form from and after the EFFECTIVE DATE.
MISCELLANEOUS.
1. Multiple Counterparts. This AGREEMENT may be executed in two or
more counterparts, each of which shall be deemed as original,
but which together shall constitute one and the same instrument.
2. Binding on Assigns. This AGREEMENT shall extend to and be
binding upon and inure to the benefit of the parties hereto,
their respective successors and assigns. Except as expressly
provided herein, this AGREEMENT may not be assigned by either
party without the prior
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written consent of the other party, which consent may be
withheld by the sole discretion of such other party.
3. Other Agreements/Amendments. This AGREEMENT sets forth the
entire understanding of the parties and supersedes all prior
agreements or understandings, whether written or oral, with
respect to the subject matter hereof. No terms, conditions,
warranties, other than those contained herein, and no amendments
or modifications hereto shall be binding unless made in writing
and signed by the parties hereto.
4. Notices. Any notice, demand or other document required or
permitted to be delivered hereunder shall be in writing and may
be delivered personally or shall be deemed to be delivered three
(3) days after such notice is deposited in the United States
mail, postage prepaid, registered or certified mail, return
receipt requested, addressed to the parties at their respective
address indicated below, or at such other addresses as may have
theretofore been specified in written notice delivered in
accordance herewith.
If to XXXX:
Xxxx Healthcare, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Sr. Vice President, Diversified Services
With a copy to:
Xxxx Healthcare, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to CLIENT:
Xxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx
Xx Xxxx, XX 00000
Attention: Director, Catalog Management
5. Open Records. Pursuant to the requirements of 42 CFR 420.300 et
seq., XXXX agrees to make available to the Secretary of Health
and Human Services ("HHS"), the Comptroller General of the
Government Accounting
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Office ("GAO") or their authorized representatives, all
contracts, books, documents and records relating to the nature
and extent of costs hereunder for a period of four (4) years
after the furnishing of services hereunder for any and all
services furnished under this Agreement. In addition, XXXX
hereby agrees to require by contract that each subcontractor
makes available to the HHS and GAO, or their authorized
representative, all contracts, books, documents and records
relating to the nature and extent of the costs thereunder for a
period of four (4) years after the furnishing of services
thereunder.
6. Controlling Law. This Agreement and the performance of the
parties hereunder shall be controlled and governed by the laws
of the State of Texas.
7. Invalidity of Certain Provisions. If any provision of this
Agreement is held to be illegal, invalid, or unenforceable under
present or future laws effective during the term hereof, such
provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof, and
the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and still
be legal, valid or enforceable.
8. Press Releases. Except as required by law, it is understood that
all press releases or other public communication of any sort
relating to this Agreement and the method of the release for
publication thereof, will be subject to the prior written
approval of both parties.
9. Interpretation and Effect. This Agreement terminates and
supersedes any existing agreement pertaining to the same subject
matter between the parties hereto. This Agreement, as executed
and approved, shall not be modified unless in writing, expressly
stating its intent to modify the terms of this Agreement, and
signed by the parties hereto.
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IN TESTIMONY WHEREOF, THIS INSTRUMENT IS EXECUTED as of the day and year
first above written.
XXXX HEALTHCARE, INC. MEDIBUY. COM, INC.
/s/ XXXXXXX X. HEARD /s/ XXXXXXXX X. XXXX
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Xxxxxxx X. Heard XXXXXXXX X. XXXX
Xx. Vice President, Diversified Services VICE PRESIDENT
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[SCHEDULES OMITTED]
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