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Exhibit 10.2
License Agreement between Torchmark Holdings, Ltd.
and Registrant dated ____, 1999
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LICENSE & DISTRIBUTION AGREEMENT
This License & Distribution Agreement (the "Agreement") is entered into and
effective as of March 17, 1999 (the "Effective Date") by and between TORCHMARK
HOLDINGS, a Turks and Caicos B.W.I. corporation with its principal place of
business at Xxx 000, 000 Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxx, Xxxxx and Caicos
Islands B. W. I. ("Torchmark"), and DICOM IMAGING SYSTEMS, INC., a Nevada
corporation ("Dicom").
WHEREAS Torchmark has secured rights to image archiving and retrieval software
for use in dental diagnostic procedures and for other applications;
WHEREAS Dicom desires to secure from Torchmark, and Torchmark desires that Dicom
have, the right to use and distribute certain Torchmark technologies pursuant to
the terms and conditions of this Agreement; and
WHEREAS, Torchmark and Dicom have executed that certain Capital Contribution
Agreement dated the date hereof (the "Contribution Agreement") which is
conditioned on the execution and delivery of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "Software" means Torchmark's imaging archiving and retrieval
software program as described in EXHIBIT A, and any updates, modules or plug-ins
developed by Torchmark for the software and provided by Torchmark throughout the
term of this Agreement.
1.2 "Field of Dentistry" means the general practice of dentistry and
related subspecialties, including endodontics, periodontics, dental implant
procedures, oral surgery, oral medicine, orthodontics, pediatric dentistry, and
prosthodontics by dental professionals.
1.3 "Field of Medicine" means the general practice of medicine and
related specialties and subspecialties, including but not limited to surgery,
internal medicine, family practice, emergency medicine, obstetrics and
gynecology, orthopedics, oncology, psychiatry, podiatry, pharmacology, pharmacy
and pediatrics by health care professionals outside of the Field of Dentistry.
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2. CONDITIONS
The obligations of each party under this Agreement are dependent upon and
contingent to the fulfillment of the following condition:
2.1 EQUITY. The grant of the License is conditioned on, and subject to,
Dicom raising a minimum of $1,000,000 in equity through the sale of common stock
on or prior to June 1, 1999 (the "Private Placement"). If the Private Placement
has not been consummated by this date, then, at Torchmark's sole option,
Torchmark may terminate this Agreement.
2.2 ESCROW INSTRUCTIONS. Reference is made to that certain Letter
Agreement of Escrow of even date herewith and attached as hereto as Exhibit C,
which requires disbursement of the equity proceeds referred to in Section 2.1 of
this Agreement in accordance with the budget contained in the Confidential
Business Plan as identified in the Letter Agreement of Escrow. In the event that
there is a material breach of Section 2 or 3 of the Letter Agreement of Escrow,
Torchmark may terminate this Agreement at Torchmark's sole option.
3. RIGHTS
3.1 EXCLUSIVE DISTRIBUTION LICENSE. Subject to the restrictions in this
Section 3 and solely for the purpose of distributing the Software to end users
in the Field of Dentistry, Torchmark hereby grants to Dicom an exclusive,
transferable, limited, royalty-free, fully paid up, worldwide right and license
to: reproduce, publish, license, transmit or otherwise distribute to third
parties, object code versions of the Software, on any storage medium.
3.2 END USER LICENSE AGREEMENTS. Torchmark will provide the Software to
Dicom with Torchmark's form of end user license agreement ("XXXX") for the
Software and Dicom agrees that it will not modify or remove the XXXX. Dicom will
distribute the XXXX with every copy of the Software in a manner in which the end
user is aware of the XXXX and agrees to its terms.
3.3 PROPRIETARY NOTICES. Dicom will not alter or remove any copyright
or trademark notices contained in the Software.
3.4 OWNERSHIP. Torchmark reserves and retains all right, title and
interest in Torchmark Confidential Information and to the Software, and any
related patents, copyrights, and trademarks not expressly covered by this
Agreement. Dicom retains all right, title and interest in Dicom Confidential
Information.
3.5 RIGHT TO XXX FOR INFRINGEMENT. Torchmark reserves the right, at its
sole discretion, to xxx third parties for infringing the copyright or any other
intellectual property rights in the Software.
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4. SUPPORT
4.1 DELIVERY OF UPDATES. Torchmark will provide to Dicom any updates,
modules or plug-ins that Torchmark or its agents may develop during the term of
this Agreement, that are designed to enhance the functionality of the Software
licensed under Section 2.1. Any such updates, modules or plug-ins shall be
delivered within fifteen (15) days of their completion by Torchmark and shall be
subject to the terms and conditions of this Agreement in the same manner as was
the original Software.
4.2 NO ADDITIONAL SUPPORT. Except for the updates provided to Dicom
pursuant to Section 4.1, Torchmark is not responsible for providing product or
technical support for the Software to end users or to Dicom.
5. RIGHT OF FIRST REFUSAL
5.1 Dicom acknowledges that its rights under this Agreement extend only
to marketing and distributing the Software in the Field of Dentistry, and do not
extend to other existing or potential fields, industries, or other applications
of the Software.
5.2 MEDICAL LICENSE OPTION. If, at any time during the term of this
Agreement, Torchmark desires to license a non-dental version of the Software for
the Field of Medicine, then Torchmark must offer to Dicom a license for that
field under terms consistent with this Section 5. Torchmark may not tender a
Medical License Offer to Dicom until a period of 90 days has elapsed from the
date of this Agreement. In such a case, Torchmark will give a written notice
(the "Torchmark Medical Notice") to Dicom advising them that Torchmark is
willing and able to grant such license (the "Medical License Offer"). Dicom has
a non-assignable, exclusive option to accept the Medical License Offer for
payment of $250,000.
5.3 FAILURE TO EXERCISE MEDICAL LICENSE OPTION. Dicom must give notice
to Torchmark of Dicom's desire to pursue the Medical License Offer within 30
days after Dicom's receipt of the Torchmark Medical Notice. A license agreement
between Dicom and Torchmark under this option must be executed no later than 75
days after Dicom's receipt of the Torchmark Medical Notice, unless this 75 day
deadline is otherwise extended by the mutual agreement of the parties. Dicom
must notify Torchmark within 30 days of Dicom's receipt of the Medical License
Offer.
5.4 NON-MEDICAL OPTION. If, at any time during the term of this
Agreement, Torchmark desires to license a non-dental version of the Software to
a third party for fields other than the Field of Dentistry or the Field of
Medicine, then Torchmark must first offer to Dicom a license for that field
under terms consistent with this Section 5. Torchmark may not tender a License
Offer to Dicom until a period of 90 days has elapsed from the date of this
Agreement. In such a case, Torchmark will give a written notice (the "Torchmark
Notice") to Dicom advising them of the price and terms on which Torchmark is
willing to grant such license (the "License Offer"). Dicom has a non-assignable
first option to accept the License Offer. The purchase price of such license
shall be negotiated between the parties.
5.5 EXERCISE OF OPTION. Dicom must give notice to Torchmark of Dicom's
desire to pursue the License Offer within 30 days after Dicom's receipt of the
Torchmark Notice. A license agreement between Dicom and Torchmark under this
option must be executed no later than 75 days after Dicom's receipt of the
Torchmark Notice, unless this 75 day deadline is otherwise extended by the
mutual agreement of the parties.
5.6 FAILURE TO EXERCISE OPTION. If Dicom does not notify Torchmark in
accordance with Section 5.4, or if a license agreement between the parties is
not executed within the time limit provided for in Section 5.5, then Torchmark
is free to enter into a license with any other party upon the fulfillment of
both of the following conditions (i) the price and terms are no more favorable
to the licensee than those contained in the License Offer, and (ii) such license
is executed within 180 days (or longer, but only so long as required for
regulatory review or approval of the transaction) after Dicom's receipt of the
Torchmark Notice.
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6. CONFIDENTIALITY
6.1 Each party expressly undertakes to retain in confidence and to
require its distributors, resellers and all other contractors to retain in
confidence all information and know-how transmitted to such party that the
disclosing party has identified as being proprietary and/or confidential or
which, by the nature of the circumstances surrounding the disclosure, ought in
good faith to be treated as proprietary and/or confidential. Without limiting
the foregoing, all terms and conditions of this Agreement shall be considered
confidential and shall not be disclosed (except to either party's attorneys and
accountants on a need-to-know-basis) without prior written consent of the other
party. The receiving party's obligation hereunder shall extend for five (5)
years following the disclosure of the Confidential Information.
6.2 EXCLUSIONS. Confidential information shall not include any
information that: (i) is at the time of disclosure or subsequently becomes
available without the receiving party's breach of any obligations owed the
disclosing party; (ii) became known to the receiving party prior to the
disclosing party's disclosure of such information to the receiving party; (iii)
became known to the receiving party from a source other than the disclosing
party other than by the breach of an obligation of confidentiality owed to the
disclosing party; or (iv) is independently developed by the receiving party.
7. WARRANTIES
7.1 Torchmark warrants and represents that:
7.1.1 It has the full power to enter into this Agreement and
make the assignments and license rights set forth herein;
7.1.2 It has not previously and will not grant any rights in
the Software to any third party that are inconsistent with the rights
granted to Dicom herein;
7.1.3 The Software does not infringe any copyright, trade
secret, or other proprietary right held by any third party;
7.1.4 The Software does not knowingly infringe any patent held
by any third party;
7.1.5 Torchmark will use best efforts to ensure that the
Software contains no software viruses;
7.1.6 Torchmark has obtained Consultant Non-Disclosure and
Confidentiality Agreements from all consultants, employees, programmers
and all others who were involved in the development of the Software,
true and complete copies of which are attached hereto as Exhibit B; and
7.1.7 EXCEPT FOR THOSE WARRANTIES PROVIDED IN THIS SECTION
7.1, TORCHMARK MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING
THE SOFTWARE. TORCHMARK EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 Dicom warrants and represents that:
7.2.1 It has the full power to enter into this Agreement and
make the assignments and license rights set forth herein; and
7.2.2 It will not use, display, perform, reproduce, publish,
license, transmit or otherwise distribute the Software in a field other
than the Field of Dentistry unless authorized in writing by Torchmark
to do so.
7.2.3 It, nor any of its employees or agents, will make any
warranties or promises regarding the use of the Software other than
those contained in the XXXX. Any warranty offered by Dicom to an end
customer must expressly state that Dicom is the party offering the
warranty.
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8. INDEMNITY
8.1 Torchmark agrees to indemnify, defend, and hold Dicom and its
successors, officers, directors and employees harmless from any and all actions,
causes of action, claims, demands, costs, liabilities, expenses and damages,
including attorneys' fees, (not including internal employee's wages) arising out
of, or in connection with any claim arising out of Torchmark's breach of any
representation, warranty or covenant contained in this Agreement or any claim
arising out of any distribution of the Software.
8.2 Dicom agrees to indemnify, defend, and hold Torchmark and its
successors, officers, directors and employees harmless from any and all actions,
causes of action, claims, demands, costs, liabilities, expenses and damages,
including attorneys' fees, (not including internal employee's wages) arising out
of, or in connection with any claim arising out of Dicom's breach of any
representation, warranty or covenant contained in this Agreement.
9. TERM AND TERMINATION
9.1 TERMINATION. Except as otherwise provided in this Section 9.1, this
Agreement shall continue in effect until thirty years from the date of this
Agreement. Upon expiration or termination of the Agreement, this License shall
be null and void and all rights hereunder shall cease, except as otherwise
provided in section 9.2.
9.2 EFFECT OF TERMINATION.
9.2.1 In the event of expiration or termination of this
Agreement for any reason, Sections 3.5, 6, 8, 9, 10 and 11 will
survive.
9.2.2 Upon termination of this Agreement, Torchmark shall have
no further obligations to deliver additional Software to Dicom and
Dicom's license to use the Software previously delivered by Torchmark
shall cease immediately. Licenses granted to end users by Dicom will
survive termination of this Agreement.
9.2.3 Upon termination of this Agreement, each party shall
promptly return to the other party (or destroy upon receipt of such
party's written instruction) all copies of any confidential information
of the other party then in its possession, custody or control,
regardless of medium.
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10. LIMITATION OF LIABILITIES
EXCEPT FOR BREACHES OF SECTIONS 6 AND 8, NEITHER PARTY IS LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. GENERAL
11.1 NOTICES. All notices and requests in connection with this
Agreement are to be deemed given as of the day they are received either by
messenger, delivery service, or in the United States of America mails, postage
prepaid, certified or registered, return receipt requested, and addressed as
follows:
To Torchmark: To Dicom:
Torchmark Holdings Dicom, Inc.
Attention: Attention: President
Torchmark Holdings Limited 0000 X. Xxxxxxxx Xxxx
Xxx 000 Xxxxx 000
000 Xxxxxxxx Xxxxx Xxx Xxxxx, XX 00000
Providenciales
Turks and Caicos Islands B.W.I.
With a copy to: With a copy to:
Xxxx X. Xxxxxx, Esq. Xxxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx & Xxxxx LLP 0000 Xxxxxx Xx., Xxxxx 0
000 Xxxxx Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, Xxxxxxxxxx 94118
Xxxxxxx, Xxxxxxxxxx 00000 Tel: (000) 000-0000
Tel: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
or to such other address as a party may designate pursuant to this notice
provision.
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11.2 INDEPENDENT CONTRACTORS. Torchmark and Dicom are independent
contractors of each other, and nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, or a joint venture
between the parties.
11.3 GOVERNING LAW. This Agreement is to be governed by the laws of the
State of Nevada as though entered into between Nevada residents and to be
performed entirely within the State of Nevada, and each party consents to
jurisdiction and venue in the state and federal courts sitting in the State of
Nevada. In any action or suit to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
shall be entitled to recover its costs, including reasonable attorneys' fees.
11.4 NO ASSIGNMENT. This Agreement is binding upon and inures to the
benefit of each party's respective successors and lawful assigns.
11.5 MODIFICATIONS AND WAIVERS. No purported amendment, modification or
waiver of any provision of this Agreement is binding unless set forth in a
written document signed by all parties (in the case of amendments and
modifications) or by the party to be charged (in the case of waivers). Any
waiver is limited to the circumstance or event specifically referenced in the
written waiver document and is not to be deemed a waiver of any other term or
provision of this Agreement or of the same circumstance or event upon any
recurrence of the waived activity.
11.6 CONSTRUCTION. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of this
Agreement will continue in full force and effect. Failure by either party to
enforce any provision of this Agreement will not be deemed a waiver of future
enforcement of that or any other provision. This Agreement has been negotiated
by the parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party.
11.7 ENTIRE AGREEMENT. This Agreement does not constitute an offer by
Dicom and it is not effective until signed by both parties. This Agreement
constitutes the entire agreement between the parties with respect to the
Software and all other subject matter hereof and merges all prior and
contemporaneous communications.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
Effective Date written above.
DICOM TORCHMARK
Dicom Imaging Systems, Inc. Torchmark Holdings
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By (Sign) By (Sign)
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Name (Print) Name (Print)
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Title Title
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Date Date
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EXHIBIT A
DESCRIPTION OF SOFTWARE
Product Descriptions
The core product, (Image Explorer) is a Windows based 32bit Dental Image
archiving software that reads and writes Dicom images, as well as captures
images from a variety of sources including but not limited to digital cameras,
intra oral cameras, digital x-ray, e-mail, internet transfers, operating
microscopes or any xxxxx compliant device, and then stores them in a logical,
easy to use electronic file cabinet. you can then access the images in the
patient file for review, comparison, printing, and communication.. There are
other modules that we have designed to enhance the ability of the Image Explorer
software program. they are as follows:
IMAGE EDITOR: Allows the user to enhance the captured images without altering
the image from its original state. This may include such actions as color
enhancement, sharpen, soften, cropping, rotating and flipping to name a few.
LAB R/X: A lab module that optimizes communication between the dentist and the
laboratory technician especially with respect to esthetic restorations, visually
prescribing porcelain procedures to be performed by the lab. It provides the lab
technician all the information necessary to create a quality product for the
dentist and patient in an accurate and concise manner. Lab R/X generates an
enhanced electronic prescription as either a print report or an electronic file.
Lab R/X also provides the interface for the new "Dental Color Analyzer". This
unit enables the dentist and lab to accurately color map teeth to the current
shade guides. Lab R/X also gives the dentist the ability to color map the teeth
manually through the use of a drop - down table that harbors the current tables
of the shade guides.
DIGITAL X-RAY: An X-Ray module that allows the dentist to acquire x-ray images
of the patient into Image Explorer via direct acquisition or by film scanning
devices. The radiographic imaging tools allows the dentist to enhance the
radiograph for improved diagnosis, measure areas of the radiograph, attach
diagnostic notes, and communicate with colleagues via print or modem. If the
dentist already has a digital X-Ray system, Image Explorer will allow the user
to view, enhance, print, and communicate those existing images using the
dentistry wide standard interface.
XXXXXXXX: Xxxxxxxx is an additional add on module to image explorer. Xxxxxxxx is
a VERY EASY TO USE module which quickly identifies the teeth in an image and
lightens them to simulate a bleaching simulation. Tooth whitening or bleaching
is one of the fastest growing procedures in dentistry and this module allows the
patient to see what they can look like before committing to the procedure.
IMAGE ENHANCER: Image Enhancer's image manipulation tools show the patient what
he or she could look like with an alteration to their smile before committing to
the actual dentistry. The dentist can then send the patient's image to the
laboratory along with the prescription so the technicians making the restoration
will be able to view the proposed changes. This reduces remakes and provides a
complete communication link between the patient, dentist and laboratory. With
Image Enhancer the dentist can simulate a complete range of dental procedures
including bleaching, bonding, veneers, implants, amalgam replacement and
orthodontics.
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