MEDI-SPAN, INC.
LICENSING AND NONDISCLOSURE AGREEMENT
The Licensing and Nondisclosure Agreement ('Agreement') is between MEDI-SPAN,
INC. (MEDI-SPAN), an Indiana Corporation and the party identified below, and on
EXHIBIT 1 as the 'CUSTOMER.'
Recitals
1. MEDI-SPAN owns or is a licensee of, and licenses or sublicenses various
copyrighted databases of pharmaceutical information, and periodic updates
thereto ('DATABASES') and related software products, including software
maintenance and enhancements thereto ('SOFTWARE') (referred to, together with
the DATABASES, as the 'Medi-Span Products').
2. CUSTOMER desires to obtain the use of one or more of the Medi-Span Products
as indicated in paragraph A of EXHIBIT 1 (LICENSED PRODUCTS) within CUSTOMER's
data processing or other computer system (the 'System') as defined in paragraph
B (Use by Customer) of EXHIBIT 1 attached hereto and made a part hereof for all
purposes ('EXHIBIT 1').
3. Subject to the terms and conditions of this Agreement, MEDI-SPAN is willing
to grant to CUSTOMER a nonexclusive license or sublicense to use the Licensed
Products indicated in paragraph A of EXHIBIT 1 for the purposes defined in
paragraph B of EXHIBIT 1.
Agreement
THEREFORE, in consideration of the foregoing and the mutual covenants contained
in this Agreement, MEDI-SPAN and CUSTOMER agree as follows:
1. DEFINITIONS OF CERTAIN TERMS. As used in this Agreement, the term 'Licensed
Products' means those Medi-Span Products identified in paragraph A of EXHIBIT 1
as being licensed to CUSTOMER, and all implementation manuals, user manuals, and
other materials delivered to CUSTOMER pursuant to this Agreement;
The term 'Execution Date' means the date identified in paragraph D of EXHIBIT 1
as being the 'Execution Date,' which is the effective date of this Agreement and
the term 'Fee Term' means the twelve month period beginning on the Execution
Date and each successive twelve-month period.
2. LICENSE. Subject to the terms and conditions of this Agreement, MEDI-SPAN
grants to CUSTOMER a limited, nonexclusive, and nontransferable sublicense
(the 'License') to use the Licensed Products: (a) for purposes of programming
the System to use the Licensed Products, and (b) in its business operations
as defined in paragraph B of EXHIBIT 1 during the term of this Agreement.
Although some tangible objects may be delivered to CUSTOMER pursuant to this
Agreement, title to such objects shall not pass to CUSTOMER, and this
Agreement is not for the sale of goods. The then current versions of the
Licensed Product shall be delivered to CUSTOMER not later than fifteen (15)
days after the date this Agreement is executed by both parties. Updates
thereto shall be delivered with the frequency indicated in EXHIBIT 1.
3. TERM. The term of this Agreement and of the License will begin on the
Execution Date, and will end when terminated in accordance with the terms of
this Agreement. This Agreement may be terminated by either party at the end of
any Fee Term, by giving notice to the other party in writing not later than
thirty (30) days prior to the end of the Fee Term. Upon termination of this
Agreement, CUSTOMER shall immediately cease use of the Licensed Products, and
shall take such steps as are necessary to prohibit further use of the Licensed
Products within CUSTOMER's System and shall furnish MEDI-SPAN a written
description of the steps so taken. This Agreement and the term of the License
may be terminated, upon written notice to the other party: (a) by MEDI-SPAN, if
CUSTOMER shall fail to pay any License Fee within 30 days of the date when due
under the terms of this Agreement; (b) by MEDI-SPAN, if CUSTOMER engages in or
enables or permits any other person or entity to engage in any unauthorized use
or distribution of any of the Licensed Products or any part thereof; (c) by
MEDI-SPAN or CUSTOMER, if the other party becomes bankrupt, insolvent, is placed
in receivership, or becomes unable to pay its debt when they become due and such
condition is not fully cured or eliminated within thirty (30) days after it
occurs: and (d) by CUSTOMER, if MEDI-SPAN shall fail to perform in any material
respect any of its obligations under this Agreement and such failure shall
continue for a period of fifteen (15) days after written notice of such default
by CUSTOMER.
4. PAYMENT OF LICENSE FEES. In consideration of the grant of the License,
CUSTOMER agrees to pay the Fees ('License Fees') listed in paragraph C of
EXHIBIT 1. License Fees may consist of annual Fees or Annual Base Fee plus User
Fees and Annual Maintenance Fees as specified in paragraph C of EXHIBIT 1. The
Fee for the first Fee Term is payable by CUSTOMER to MEDI-SPAN on the date this
Agreement is executed by CUSTOMER, and Annual Fees for subsequent Fee Terms are
due and payable on each anniversary of the Execution Date. User Fees, when
applicable, are billed quarterly and are due upon receipt. Failure by Customer
to pay any License Fees when due shall entitle MEDI-SPAN to suspend its
performance under this Agreement and, as provided in paragraph 3 above, to
terminate the License. CUSTOMER's obligation to pay License Fees for periods
preceding termination will survive termination of this Agreement.
5. MODIFICATION OF FEES. MEDI-SPAN may change the License Fee for any of the
Licensed Products by sending CUSTOMER written notice of the change not later
than thirty (30) days prior to the beginning of a new Fee Term. Failure of
CUSTOMER to give MEDI-SPAN written notice of termination of the License for the
Licensed Products for which the License Fee has been changed before the
effective date of the change shall constitute acceptance of the change, and an
agreement by CUSTOMER to pay the new License Fee for the next Fee Term.
6. IMPLEMENTATION. CUSTOMER assumes all responsibility to program, or obtain
compatible software, for use of the LICENSED PRODUCTS. At the request of the
CUSTOMER, MEDI-SPAN will provide technical consultation in the design,
programming and implementation of the Licensed Products in CUSTOMER's system.
Such consultation shall be provided at MEDI-SPAN's then current rates. CUSTOMER
agrees that programming shall be done in conformance with specifications
included in Medi-Span's Documentation and/or implementation Manuals including
successful execution of testing and quality control protocols. CUSTOMER agrees
that when implemented, the System shall display Copyright notices, Disclaimers,
and Expiration Dates as specified in individual product manuals.
7. COVENANTS OF CUSTOMER. CUSTOMER hereby covenants and agrees with MEDI-SPAN as
follows:
a. CUSTOMER will not alter, amend, modify, or change in any respect, any of
the Licensed Products unless instructed to do so in writing by MEDI-SPAN and
such changes are clearly identified as Customer Modifications. CUSTOMER assumes
all liability for any such Customer Modification, and CUSTOMER agrees to assign
all right, title, and interest to such Customer Modifications to MEDI-SPAN.
b. CUSTOMER will not use the name of MEDI-SPAN, INC., or 'MEDI-SPAN,' the
names of any of the Medi-Span Products, or any trademark owned by or licensed to
MEDI-SPAN, except as authorized in writing by MEDI-SPAN.
c. If any of the Licensed Products are delivered to CUSTOMER in magnetic
tape, tape cartridge or cassette format, CUSTOMER shall return to MEDI-SPAN the
tapes or cassettes immediately upon reading them into the System.
d. COPYRIGHT. CUSTOMER shall abide by all copyright laws applicable to the
Licensed Products.
e. CONFIDENTIAL INFORMATION. CUSTOMER acknowledges that the Licensed
Products are the proprietary property of MEDI-SPAN and that the processes,
formulas, and methodology in producing the Licensed Products are valuable trade
secrets. CUSTOMER shall secure and protect the Licensed Products in a manner
consistent with the maintenance of the proprietary rights of MEDI-SPAN and
covenants that it will not reveal to any third party any information contained
in or relating to the Licensed Products except as expressly permitted in
writing. CUSTOMER acknowledges and agrees that any breach by CUSTOMER of this
subparagraph e. will result in irreparable harm to MEDI-SPAN and that MEDI-SPAN
shall be entitled to injunctive relief for such a breach. In the event of any
such breach by CUSTOMER, in addition to other relief to which MEDI-SPAN shall be
entitled, MEDI-SPAN shall be entitled to terminate the License and to recover
from CUSTOMER all costs, expenses, and reasonable attorney's fees incurred by it
in seeking (i) enforcement of the provisions of this subparagraph e, and (ii)
relief for violation of any covenant contained within this subparagraph e.
f. USAGE. CUSTOMER shall use the Licensed Products solely for CUSTOMER's
business operations as described in paragraph B of EXHIBIT 1, 'Use by Customer'
CUSTOMER may not, without the prior written consent of MEDI-SPAN, transmit the
Licensed Products to other data processing systems or units that are 'on-line'
with CUSTOMER's data processing unit, or use the Licensed Products in a computer
service business, network, time-sharing, multiple CPU, or multiple user
arrangement except at satellite units or user sites identified in EXHIBIT 2, if
applicable. CUSTOMER shall not copy, reproduce, store in a retrieval system;
sell, assign, pledge, sublicense, convey, transfer, redistribute, transmit,
grant other rights in, or permit the unauthorized use of the Licensed Products,
or any of them, in any form or by any media (electric, mechanical, photocopying,
recording, or otherwise), on either a permanent or temporary basis to any third
party except as authorized in paragraph B of EXHIBIT 1. CUSTOMER acknowledges
and agrees that the covenants and agreements made in this Paragraph 7 are made
for the benefit of MEDI-SPAN and shall survive the termination of this
Agreement. In the event of any breach by CUSTOMER of the terms of this
Agreement, in addition to other relief to which MEDI-SPAN shall be entitled,
MEDI-SPAN shall be entitled to terminate the License.
8. PROPRIETARY RIGHTS INDEMNIFICATION. Except for Customer Modifications,
MEDI-SPAN shall indemnify, defend, and hold harmless CUSTOMER against all
losses, damages, expenses, judgements, costs, and attorneys' fees arising out of
any claims that the Licensed Products infringe and/or misappropriate the patent,
copyright, trade secret, and/or trade xxxx rights of another, provided CUSTOMER
promptly notifies MEDI-SPAN of such a claim; allows MEDI-SPAN to control the
defense, settlement and compromise of such a claim; and provides reasonable
cooperation to MEDI-SPAN in the defense of such a claim.
9. DISCLAIMERS. MEDI-SPAN has utilized due diligence in collecting and reporting
the information contained in the Licensed Products and has obtained such
information from sources believed to be reliable. MEDI-SPAN, however, does not
warrant the accuracy of codes, prices, or other data contained in the Licensed
Products. Information reflecting prices is not a quotation or offer to sell or
purchase. The clinical information contained in the Licensed Products is
intended as a supplement to, and not a substitute for, the knowledge, expertise,
skill, and judgment of physicians, pharmacists, or other health-care
professionals in patient care. The Licensed Products do not contain all possible
drug-drug interactions, food-drug interactions, or adverse reactions. The
absence of a warning to given drug or drug combination should not be construed
to indicate that the drug or drug combination is safe, appropriate or effective
in any given patient. MEDI-SPAN shall not be held responsible for any failure of
the Licensed Products to function due to any neglect, misuse or unauthorized
alteration or modification by the CUSTOMER. MEDI-SPAN EXPRESSLY DISCLAIMS ALL
EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES OF ANY KIND, WITH RESPECT TO THE
LICENSED PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR TO FITNESS FOR A PARTICULAR PURPOSE. MEDI-SPAN SHALL NOT BE
LIABLE TO CUSTOMER OR TO ANY PERSONS CLAIMING UNDER OR THROUGH CUSTOMER FOR
ANY LOSS, COST, LIABILITY OR DAMAGE, CONSEQUENTIAL OR OTHERWISE, INCURRED
IN CONNECTION WITH THE USE OF THE LICENSED PRODUCTS OR AS A RESULT OF ANY
INACCURATE OR INCOMPLETE INFORMATION OR ERROR IN THE LICENSED PRODUCTS, OR
INCURRED IN CONNECTION WITH THE USE THEREOF OR OF ANY PRODUCT.
10. FORCE MAJEURE. Failure of MEDI-SPAN to perform or delay in the performance
of MEDI-SPAN's obligations under the Agreement due to any cause or event not
reasonably with MEDI-SPAN's control, including but not limited to casualty,
labs, disputes, failure of equipment, compliance with governments authority,
or Act of God shall not constitute a breach of the Agreement, and MEDI-SPAN's
performance shall be excused during such period of delay. In the event
MEDI-SPAN's performance is delayed by such causes or events for a period of
thirty (30) days or more, CUSTOMER may terminate the Agreement with respect to
the Licensed Products affected by the delay by written notice to MEDI-SPAN. In
the event of such termination a pro rata portion of the License Fee for such
Licensed Product representing the portion of the Fee Term during which MEDI-SPAN
did not perform and will not perform due to termination of this Agreement shall
be refunded to CUSTOMER.
11. NOTICES. All notices required or permitted under this Agreement shall be in
writing and sent by first-class mail, postage prepaid, at the address for
CUSTOMER or MEDI-SPAN given on EXHIBIT 1. or at such other address as indicated
by either party to the other by notice in accordance with this Paragraph.
12. MISCELLANEOUS. This Agreement may not be assigned by CUSTOMER without the
prior written consent of MEDI-SPAN, which consent shall not be unreasonably
withheld. This Agreement shall be construed and interpreted in accordance with
the laws of the State of Indiana. This Agreement constitutes the entire
understanding and agreement between MEDI-SPAN and CUSTOMER pertaining to the
License and the Licensed Products and supersedes all prior and contemporaneous
agreements and understanding of the parties with respect thereto. In the event
of a conflict between terms contained in this Agreement and terms contained in
an EXHIBIT, the terms of the EXHIBIT shall prevail.
IN WITNESS WHEREOF, MEDI-SPAN and CUSTOMER have executed this Agreement as
of the date indicated below.
MEDI-SPAN, INC.
BY [SIGNATURE ILLEGIBLE] [SIGNATURE ILLEGIBLE]
............................................
DATE 3/19/98 3/19/98
..........................................
CUSTOMER NMHCS
.....................................
BY /s/ Xxxxx Xxxxxxx
............................................
NAME & TITLE Xxxxx Xxxxxxx, Pres.
...................................
DATE 3/13/98
.........................................
