Exhibit 10.5
FACILITY USAGE AGREEMENT
This Facility Usage Agreement (the "Agreement") is entered into as of
January 12, 1998 by and among Rockland Radiology Group, P.C. (together with its
successors "Rockland"), a New York professional corporation doing business as
the Kingston Diagnostic Center (the "Center") with a principal place of business
at 00 Xxxxxxxx Xxxxxxxxx, Xxx Xxxx, XX. Image Technology Laboratories, Inc., a
Delaware corporation ("ITL"), with a principal place of business at 000 Xxxxxxx
Xxxxx, Xxxxxxxx, XX 00000 and Kingston Diagnostic Radiology, P.C. ("Kingston"),
a New York professional corporation with a principal place of business at 00
Xxxxxxx Xxxxx, Xxxxxxxx, XX 00000, which is wholly owned by Xxxxx Xxxx, M.D.
("Xxxx").
RECITALS
A. Kingston operates the Center at 000 Xxxxxxx Xxxxx, Xxxxxxxx, XX on
behalf of Rockland under the terms of a Professional Service Agreement between
Kingston and Rockland dated April 1, 1997 (the "Rockland Agreement"), pursuant
to which Kingston employs radiologists to provide radiology services to the
Center's clients using diagnostic imaging equipment and software owned by
Kingston.
X. Xxxx is an officer, director and stockholder of ITL, a company
engaged in developing state-of-the-art diagnostic imaging software (the "ITL
PACS").
C. ITL desires to lease certain diagnostic imaging equipment and
software owned and utilized by Kingston at the Center for the purpose of
developing the ITL PACS and Kingston has agreed to lease such equipment and
software (the "Equipment Lease") subject to execution of this Agreement giving
ITL the right to access and use the Center's facilities where the equipment to
be leased is located.
AGREEMENT
In consideration of the mutual covenants and conditions contained
herein, the parties hereto agree as follows:
1. Occupancy. Rockland agrees that ITL, its employees and consultants
may occupy and use the office space on the basement level of the Center on the
same terms and conditions as Kingston is permitted to by the terms of Section
2.6 of the Rockland Agreement.
2. Term. This Agreement shall commence as of the date of the Equipment
Lease and shall continue for a period of two years or until terminated earlier
by (a) the parties' mutual agreement; (b) 10 days' prior written notice of
termination by ITL; (c) the termination of the Equipment Lease; or (d) the
termination of the Rockland Agreement.
3. No Obligation. Rockland shall have no other obligation to ITL or
Kingston with respect to ITL's use of the Center and liability for termination
of the Rockland Agreement.
4. Authority. Each party represents and warrants to the others that it
has the right, and has obtained all necessary corporate approvals, to enter into
this Agreement and perform the obligations to be performed by it under this
Agreement and that this Agreement constitutes its valid, binding and enforceable
obligation, enforceable against it in accordance with its terms.
5. Entire Agreement. This Agreement constitutes the sole and entire
agreement between the parties relating to the subject matter herein and
terminates and supersedes any and all prior agreements and understandings
between the parties.
6. Waiver and Amendment. No change in, addition to, or waiver of any of
the terms and provisions herein shall be binding upon any party unless approved
by it in writing. The failure by any party to exercise or to enforce any of the
terms or conditions of this Agreement shall not constitute or be deemed a waiver
of that party's right thereafter to enforce each and every term and condition of
this Agreement.
7. Severability. Should a court of law or arbitrator hold that any one
or more of the provisions in this Agreement is invalid, illegal or
unenforceable, no other provision of this Agreement shall be affected thereby,
and the remaining provisions of this Agreement shall be both construed and
reformed and shall continue with the same effect as if such unenforceable,
illegal or invalid provision shall not have been inserted in this Agreement.
8. Governing Law. This Agreement, all claims arising out of this
Agreement and the respective rights and obligations of the parties hereto shall
be governed by and determined in accordance with the domestic internal laws of
the State of New York, without giving effect to conflict of laws principles
thereof.
9. Notices. All notices and other communications which are required or
permitted under the terms or conditions of this Agreement, shall be in writing
and sent by facsimile, overnight courier, or registered or certified mail,
postage prepaid, to the receiving party at the address listed in the first
paragraph of this Agreement or to any other address that the receiving party may
have provided to the sending party in writing as provided aforesaid. Any notice
or other communication delivered by facsimile shall be deemed to have been
received the day it is sent. Any notice or other communication sent by overnight
courier shall be deemed to have been received on the day after it is delivered
to the courier. Any notice or other communication sent by registered or
certified mail shall be deemed to have been received on the third business day
after its date of posting. When feasible, the notice or other communication
should be transmitted by facsimile.
10. Binding on Successors; Assignment. This Agreement shall be binding
upon and inure to the benefit of both the parties hereto and their respective
permitted successors. Neither this Agreement nor any rights hereunder may be
assigned or otherwise transferred by either party without first receiving the
express prior written consent of the other parties; except that without such
consent, any party may assign or transfer this Agreement and all of its rights
hereunder to
any corporation which beneficially owns a majority in interest of the equity of
such party or to a majority-owned subsidiary of such party or to any successor
of such party by merger or consolidation or to any person, firm, or corporation
to which all or substantially all of the assets of such party are sold.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Force Majeure. The failure of any party hereto to perform any
obligation under this agreement due to acts of God, acts of government, civil
disturbances, fires, natural disasters, wars, strikes, or other causes beyond
its reasonable control shall not be deemed to be a breach of this Agreement;
provided, however, that the party so prevented from complying herewith shall
immediately give notice thereof to the other party and shall continue to take
all commercially reasonable actions to comply as fully as possible herewith.
After removal of the basis for the nonperformance, the party failing to perform
shall resume performance within a reasonable time.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first set forth
above.
ROCKLAND RADIOLOGY GROUP, P.C.
By:___________________________________
Name and Title__________________________
IMAGE TECHNOLOGY LABORATORIES, INC.
By:___________________________________
Xxxxx Xxxx, M.D., President
KINGSTON DIAGNOSTIC RADIOLOGY, P.C.
By:___________________________________
Xxxxx Xxxx, M.D.
