EXHIBIT 99.3
[GRAPHIC OMITTED]
SOFTWARE LICENSING AGREEMENT
THIS AGREEMENT is entered into this 12th day of July, 2000,
BETWEEN:
HEALTHNET INTERNATIONAL INC., a Colorado Corporation with
offices at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
X0X 0X0,
(hereinafter referred to as "Healthnet")
AND:
XXXXXXXXX.XXX CORP., A NEVADA CORPORATION
WITH OFFICES AT 0000 XXXXXXXX XXXXX,
XXXXXXX, XXXXXXX XXXXXXXX, XXXXXX
X0X 0X0
(hereinafter referred to as "LICENSEE");
WHEREAS,
A. Healthnet is the owner and developer of certain e-commerce, business and
database application software solutions and wishes to provide a complete
computer hardware and software package so that Licensee's may operate Web-based
e-commerce health stores; and
B. The Licensee wishes to license the Software and make use of Healthnet's
computer hardware in order to operate a Web-based e-commerce health store and to
participate in and benefit from a network of similar operators;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the sum of ten
dollars (US$10.00), the mutual covenants and agreements contained herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Healthnet and the Licensee (individually "Party" and
collectively "Parties"), intending to be legally bound, covenant and agree as
follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS In this Agreement, the following words and phrases, shall have
the following meanings:
(a) "Affiliate" means any corporation which is directly or indirectly
controlled by a Party, and if any Party shall be a corporation means
in addition to the foregoing any entity which controls such Party;
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(b) "Calendar Quarter" means each three month period, or any portion
thereof, ending on March 31, June 30, September 30 and December 31;
(c) "Confidential Information" means any oral or written data and
information, now or hereafter existing during the currency of this
Agreement, relating to the business and management of the Parties,
including without limitation: any proprietary or trade-secret
technology, knowledge, know-how, copyright, trade-xxxx or trade name
owned or licensed by either Party and any record, report, document,
policy, practice, agreement, account, ledger or other data or
information relating to the business operations of either Party, to
which access is granted to or obtained by a Party but does not include
any data or information which:
(i) is or becomes generally known or available by publication,
commercial use or otherwise, without breach or violation of any
confidentiality or other obligation;
(ii) was known by the receiving Party at the time of disclosure by
the other Party and was not subject to any obligation of
confidence;
(iii) is rightfully communicated to the receiving Party by a third
party free of any obligations of confidence; or
(iv) was developed by employees or agents of the receiving Party
independently of and without reference to Confidential
Information of the other Party.
(d) Customer means any individual, or other entity that purchases products
through a Web Site.
(e) "Customer Information" shall mean all data collected and stored
relating to Customers of the Licensee including, without limitation,
name, address, phone and fax number, e-mail address, credit card
numbers and expiration dates or information on other types of
payments, products purchased and frequency of purchases;
(f) "Documentation" means any materials related to the Software such as,
but not limited to, manuals, promotional materials, graphics, flow
charts, logic diagrams, and listings available on permanent media that
are provided to the Licensee by Healthnet from time to time;
(g) "Enhancements" means any changes or additions to the Software or
Documentation, other than Maintenance Modifications, including all
Upgrades;
(h) "Gross Revenues" means all revenues, receipts and monies directly or
indirectly collected or received whether for cash or credit or by way
of any benefit, advantage or concession through the commercial use of
a WebSite by the Licensee and their Customers from the sale of
Products during the term of this Agreement whether invoiced or not. No
deductions other than for returned goods, shipping, taxes and
transaction fees shall be made in the calculation of Gross Revenues;
(i) "Hardware" means all the necessary computers, routers, cabling,
monitors, hard drives, back-up systems, and other equipment, as
determined by Healthnet in its sole and absolute discretion, located
at a location that Healthnet in its sole and absolute discretion shall
determine as may be required in order to properly store, distribute
and run the Software;
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(i) "Healthnet Marks" means any xxxx, trade-xxxx, service xxxx, logo,
insignia, seal, design, symbol, or device used or licensed by
Healthnet or its affiliates in any manner whatsoever including without
limitation eHealthstores;
(k) "Maintenance Modifications" means any modifications or revisions to
the Software or Documentation, other than Enhancements, that correct
errors or make other incidental corrections;
(l) "Product" means the products which are distributed to Customers by
Healthnet upon receipt of an order through the Web Site under the
terms of this Agreement;
(m) "Software" means a data processing program or micro program consisting
of a series or sequence of signals, or instructions, statements, or
fonts stored on any media in machine readable form, including but not
limited to database programs, database files, electronic shopping cart
programs, electronic fund transfer programs, including the Transaction
Processing System referred to in paragraph 5.3 herein, and all
interface programs including java and other applets, HTML, XML or
similar xxxx up language files and digital images (collectively, the
"Web Site") made generally available and as amended from time to time
under the terms of this Agreement by Healthnet for use by the Licensee
in connection with the licensed programs including all Maintenance
Modifications, Upgrades and Enhancements thereto. Software shall
further include all reference materials, digital encyclopedias, video
clip libraries, product databases licensed by Healthnet and
sub-licensed to the Licensee, including the Product database referred
to in paragraph 3.5 herein ("Licensed Content") under the terms of
this Agreement;
(n) "Upgrade" means a new release of the Software and any related
Documentation that incorporates new functionality.
1.2 HEADINGS, ARTICLES AND TABLE OF CONTENTS. The division of this Agreement
into Articles and the inclusion of headings are for convenience of
reference only and shall not affect the construction or interpretation of
this Agreement.
1.3 GENDER AND NUMBER. Unless the context otherwise requires, words importing
the singular number include the plural and vice versa and words importing
gender include all genders.
1.4 CURRENCY. Unless otherwise specified, all amounts stated herein are stated
in United States Currency.
ARTICLE 2
GRANT OF LICENSE
2.1 GRANT. Subject to the terms and conditions of this Agreement, Healthnet
hereby grants to the Licensee a non-exclusive, worldwide license to use the
Software and Documentation, solely to the extent necessary to carry out the
objectives of this Agreement.
2.2 ACKNOWLEDGEMENT. The Parties hereby acknowledge and agree that, all right,
title and interest in and to the Software, and any copies thereof, and all
Documentation is and remains the sole property of Healthnet or its
licensors. The Licensee hereby further acknowledges that this is a
non-exclusive agreement and that Healthnet will license the Software to as
many other parties as are willing to enter into a licensing agreement with
Healthnet.
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2.3 ASSIGNMENT BY LICENESEE. The Licensee acknowledges and agrees that its
rights under this Agreement and in and to the Software and Documentation
are personal to it and may not be assigned, licensed or otherwise
transferred, other than to an Affiliate, without the prior written consent
of Healthnet, such consent not to be unreasonably withheld.
2.4 ASSIGNMENT BY HEALTHNET. The Licensee acknowledges and agrees that
Healthnet may assign its rights under this Agreement to an Affiliate.
ARTICLE 3
FEES
3.1 INITIAL LICENSE FEE. Licensee shall pay to Healthnet an initial license,
production and setup fee in the amount of:
Basic Store: $25,000
Deluxe Store Upgrade: +$ 5,000
Fitness Upgrade: +$ 5,000
--------
TOTAL $35,000
The first $10,000 of the Initial License Fee shall be paid upon execution
of this Agreement. The outstanding balance of $25,000 on the Initial
License Fee shall be paid in 6 equal payments of $4,166.67 over a six month
period, beginning one month following the execution of this Agreement. In
this regard, XxxxXxxxx.xxx will forward 6 post-dated cheques to Healthnet,
each for $4,166.67.
3.2 ANNUAL RENEWAL FEE. Licensee shall pay to Healthnet annual renewal fees in
the amount of 10% of the initial license fee. The annual fee shall be
payable upon the first day of each renewal term.
3.3 EARNED ROYALTY FEES. Licensee shall pay to Healthnet earned royalty fees
that shall be calculated as a percentage of monthly gross revenues where
said percentage varies depending upon monthly sales figures in the
following fashion:
Monthly Sales Royalty Fee as % of Gross Revenues
$0 to $5,000 9%
$5,001 to $10,000 8%
$10,001 to $15,000 7%
in excess of $15,000 6%
3.4 MARKETING FEE AND CREDIT CARDS TRANSACTION COSTS. Licensee shall pay to
Healthnet marketing fees equal to 3% of Quarterly Sales (net of shipping)
and these proceeds shall be used for the collective marketing of the
eHealthstores network. Further, Licensee shall be responsible for all
credit card transaction costs which are calculated on the gross transaction
amount.
3.5 DATABASE SUBLICENSE FEE. Licensee shall pay to Healthnet a database
sub-license fee for use of the Super-Nutrition Distribution Inc. product
database in the amount of $75.00 per month.
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3.6 PAYMENT. All Annual Renewal Fees, Earned Royalty Fees, Marketing Fees,
Credit Card Costs and Database Sublicense Fees shall be deducted and
retained at source by Healthnet from the Gross Revenue proceeds arising
from the operation of the Web Site.
ARTICLE 4
TERM AND TERMINATION
4.1 TERM. This Agreement shall commence and be deemed effective on the date
when fully executed and will continue in force for a period of one-year
(the "Term") unless sooner terminated pursuant to this Agreement.
4.2 RENEWAL. This Agreement shall automatically renew for one year terms unless
either Party gives not less than 3 months written notice hereunder that it
wishes to have the Agreement expire at the end of the then current Renewal
Term.
4.3 BANKRUPTCY AND INSOLVENCY. This Agreement shall automatically and
immediately terminate without notice to the Licensee if any proceeding
under the bankruptcy legislation of any jurisdiction or any other statute
of similar purport, is commenced by or against the Licensee.
4.4 TERMINATION AT OPTION OF HEALTHNET. Healthnet may, at its option, terminate
this Agreement immediately on the happening of any one or more of the
following events by delivering notice in writing to that effect to the
Licensee:
(a) if the Licensee becomes insolvent;
(b) if any resolution is passed or order made or other steps taken for the
winding up, liquidation or other termination of the existence of the
Licensee;
(c) if the Software, Documentation, or any other element of this Agreement
becomes subject to the execution of any security interest, lien,
charge or encumbrance in favour of any third party claiming through
the Licensee; or
(d) if the Licensee ceases or threatens to cease to carry on its business.
4.5 TERMINATION ON DEFAULT. Other than as set out in Sections 4.3 or 4.2, if
either Party breaches or commits a material default under this Agreement,
then the non-defaulting Party shall have the right to terminate this
Agreement by written notice to that effect if:
(a) such default is reasonably curable within 30 days after receipt of
notice of such default and such default or failure to comply is not
cured within 30 days after receipt of written notice thereof, or
(b) such default is not reasonably curable within 30 days after receipt of
written notice thereof, and such default or failure to comply is not
cured within such further reasonable period of time as may be
necessary for the curing of such default or failure to comply.
4.6 OBLIGATIONS UPON TERMINATION. Immediately upon termination of this
Agreement, the Licensee shall return to Healthnet any and all materials in
which Healthnet has any proprietary interest that are in the Licensee's
possession and/or in the possession of the Licensee's agents, servants or
employees. Immediately upon termination of this Agreement, Healthnet shall
deliver to the Licensee any and all materials in which the Licensee has any
proprietary interest that are in Healthnet's possession and/or in the
possession of Healthnet's agents, servants or employees. Licensee shall pay
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to Healthnet any and all undisputed amounts due immediately prior to
termination of the Agreement.
ARTICLE 5
OBLIGATIONS OF HEALTHNET
5.1 HARDWARE. Healthnet shall provide all the hardware necessary to maintain
the Web Site (the "Hardware"). Healthnet shall maintain the Hardware and
pay all costs for maintaining and/or upgrading the Hardware. Healthnet
shall supply the space required to house the Hardware. The Hardware shall,
at all times, remain the property of Healthnet. Healthnet shall supply an
appropriate connection to the Internet with sufficient bandwidth to
properly operate the Software and the Web Site. Healthnet shall make all
reasonable efforts to repair and correct any problems arising under
Healthnet's areas of responsibility that may arise from time to time which
would cause it to be unable to perform its' obligations under this
Agreement. Healthnet shall notify the Licensee of any problems that may
arise from time to time and shall keep the Licensee apprised of any efforts
undertaken to rectify the problem. The Hardware shall be located in a
jurisdiction that Healthnet in it sole and absolute discretion shall
determine.
5.2 THE SOFTWARE. Healthnet shall install the Software on the Hardware.
Healthnet shall allow all of the Licensee's Customers and all persons who
seek to be Licensee's Customers Internet access to the Software. Healthnet
may from time to time, in its sole and absolute discretion, create
additional features, which can be added to the Software. If additional
features become available, the Licensee may request to have the additional
features added to the Software at no additional licensing cost to the
Licensee. Notwithstanding anything stated in this section, any changes
requested by the Licensee to be made to the Web Site, including but not
limited to the graphic portions of the Web Site, shall be charged to the
Licensee at the contract rates attached in Schedule B. The Licensee may
operate the Web Site on only one URL.
5.3 FINANCIAL TRANSACTIONS. Healthnet shall provide a transaction processing
system that will allow the Licensee's Customers to purchase Products at the
Website (the "Transaction Processing System"). The Licensee's Customers
will be able to purchase Products via the Internet through the use of Visa,
Master Card, Discover or American Express credit cards. Other methods of
payment may be made available from time to time at Healthnet's sole and
absolute discretion, at a cost to the Licensee to be agreed upon by the
Parties in writing. The Transaction Processing System shall be the
exclusive property of Healthnet and the Licensee shall have no rights
whatsoever in the Transaction Processing System.
5.4 MERCHANT ACCOUNTS. All merchant accounts shall be held and maintained by
Healthnet and Healthnet shall only be responsible for processing credit
card debits and credits for merchant accounts that it has obtained on
behalf of the Licensee.
5.5 TECHNICAL SUPPORT. Healthnet shall supply during regular business hours,
technical support for the Licensee and for Licensee's Customers. Healthnet
shall make the Technical support available via the Internet and via toll
free telephone lines. Healthnet shall determine the number of people acting
as technical support and the number of incoming telephone lines for
technical support in its absolute discretion. Technical support shall be in
English.
5.6 ACCOUNTS AND REPORTING. Healthnet shall maintain records of all
transactions and purchases performed using the Software (the "Accounting
Information"). Healthnet shall supply the Accounting Information in a form
defined by Healthnet from time to time, within thirty working days of the
end of each month. No fees are payable for Healthnet regularly
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providing Accounting Information to the Licensee for the purpose of
calculating Gross Revenues and any fees payable by Licensee. The Accounting
Information shall be delivered either by facsimile or by e-mail. Healthnet
shall provide 24-hour, 7-days per week access to on-line tracking of Web
Site statistics. The Accounting Information and the Web Site statistics are
the Confidential Information of the Licensee and except as provided for
herein, Healthnet shall not use them without the written consent of the
Licensee. Notwithstanding any provision to the contrary herein, Healthnet
shall have the right to use the Accounting Information and the Web Site
statistics in an aggregated form and provided no specific information about
the Licensee is disclosed. Healthnet shall have the right but not the
obligation to archive and maintain the accounting information for a period
of 2 fiscal years.
5.7 AUDIT AND INSPECTION. The Licensee shall have the right, with reasonable
prior notice to Healthnet, to inspect and audit the business, accounting
and supporting records of Healthnet that are related to the transactions
contemplated by this Agreement, including those reasonably necessary to
determine Healthnet's compliance with the terms of this Agreement. AT NO
TIME SHALL LICENSEE HAVE ACCESS TO ANY RECORDS RELATING TO HEALTHNET S
DEALINGS WITH OTHER LICENSEE S OR THEIR CUSTOMERS. Healthnet shall fully
co-operate with any independent chartered accountants or certified public
accountants hired by the Licensee to conduct any such inspection or audit.
If any such inspection or audit discloses an under statement of less than
3% for any period, Healthnet shall pay, within ten days after receipt of
the inspection or audit report, the sums due on account of such
understatement with interest calculated at U.S. prime plus one percent. If
an understatement for any period is determined by such inspection or audit
to be 3% or greater, Healthnet shall, within the said ten days, in addition
to paying the sums due on account of such understatement plus interest,
also reimburse Licensee for the cost of such inspection or audit, including
without limitation, the charges of any independent chartered accountants or
certified public accountants retained by the Licensee in connection with
such audit or inspection. The Licensee's right to audit records shall
extend to records that date back no more than one of Healthnet's fiscal
years prior to the date Healthnet receives the said prior notice.
5.8 CUSTOMER DATA. Healthnet shall create, administer and maintain a database
containing the Customer Information. The Customer Information is and shall
remain the property of the Licensee. The Parties hereby acknowledge that
information particular to any human individual contained in data
contemplated under the terms of this Agreement ("Personal Information") may
be the subject of personal, privacy, confidentiality, publicity or related
rights under personal information or privacy law in many jurisdictions. The
Parties agree to cooperate fully in meeting the requirements of any such
legislation with respect to the encryption, storage, return, deletion,
modification, non-transmission or other treatment of any Personal
Information. The Licensee hereby grants to Healthnet during the term of the
Agreement, a royalty free license to use the Customer Information database
solely for its own internal purposes. Healthnet shall not, subject to
applicable law, disclose any Customer Information to any other person and
shall not use any such information for any purpose in competition with the
Licensee. Healthnet shall provide to the Licensee periodic, interim
Customer Information reports, as defined by Healthnet from time to time.
5.9 PRODUCTS. Healthnet, in consultation with the Licensee and considering of
products available through its fulfillment partners, shall determine the
products available on the Web Site from time to time.
ARTICLE 6
OBLIGATIONS OF THE LICENSEE
6.1 LICENSES. The Licensee shall be responsible for ensuring that the Web Site
is operating in compliance with any and all state, provincial, national,
and international laws applicable
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to the Licensee. The Licensee shall provide Healthnet with all
documentation necessary to show that the Licensee has obtained any and all
necessary licenses in order to operate the Web Site in the jurisdiction in
which Licensee is located. The Licensee shall be responsible for obtaining
and maintaining all necessary licenses in the location where Licensee
conducts business.
6.2 THE WEB SITE. The Licensee:
a) Agrees that the Web Site shall display a statement that the Software
is licensed and shall also display all Healthnet Marks and proprietary
rights symbols such as copyright and trademark, as supplied by
Healthnet (the "Symbols"). The Symbols shall be of the exact size and
font as supplied by Healthnet. The Licensee shall have the right to
add as many URL's that are dedicated solely to the promotion of the
Licensee's Web Site as the Licensee deems necessary.
b) Shall have the right to request changes to the Web Sites the Licensee
feels appropriate. All changes shall be effected by Healthnet and will
be charged to the Licensee at contract rates attached hereto as
Schedule B.
c) If agreed between the Parties Healthnet shall construct and maintain
any and all additional web sites the Licensee deems necessary for the
marketing of their Web Site. All work done to build additional web
sites shall be charged to the Licensee at the rates attached hereto as
Schedule B.
ARTICLE 7
DISRUPTIONS
7.1 DISRUPTIONS. The Licensee acknowledges that from time to time, as a
result of Hardware failure, supplier failures, or acts of God, the
services provided under this Agreement by Healthnet can be temporarily
disrupted. The Licensee acknowledges and agrees that neither Healthnet
nor any of its members, shareholders, directors, officers, employees or
representatives will be liable to the Licensee or any of the Licensee's
Customers for any special, indirect, consequential, punitive or
exemplary damages, or damages for loss of profits or savings, in
connection with these temporary disruptions.
7.2 SERVICE PERFORMANCE. Healthnet warrants that it will provide access to
the Web-Site in accordance with this section. In this section "Service
Interruption" means the unanticipated failure of the Web Site to
respond to Customer Orders for longer than 30 minutes or more than two
percent (2%) of the time, measured on a monthly basis.
Within two (2) hours of receipt of notice of a Service Interruption, or
otherwise learning of the existence of a Service Interruption,
Healthnet will report to Licensee the source of the Service
Interruption. To the extent that the cause of the Service Interruption
is within the predominant control of Healthnet, Healthnet will remedy
the Service Interruption within two (2) hours of determining the source
of the Service Interruption. If the cause of the Service Interruption
is not within the control of Healthnet, Healthnet will notify Licensee
and will use commercially reasonable efforts to notify the party(ies)
responsible for the source and cooperate with the responsible party to
resolve the problem as soon as possible.
LICENSEE'S SOLE AND EXCLUSIVE REMEDY for each Service Interruption that
extends more than two (2) hours, where the correction of such Service
interruption is within the predominant control of Healthnet and not due
to the actions or inactions of Licensee or controlling third parties,
is for Licensee to receive a credit against future
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invoices. The credit will be equal to the applicable monthly earned
royalty fees as calculated pursuant to section 3.3 divided by 30 (the
"Daily Earned Royalty") times the number of hours (rounded up to the
nearest whole hour) of the Service Interruption.
To receive any of the credits described in this section Licensee must
apply to Healthnet for the credit within five (5) business days of the
Service Interruption. In no event will Healthnet be required to credit
Licensee in any one (1) calendar month an amount that exceeds seven
(7) times the Daily Earned Royalty. A credit shall be applied only to
the invoice for the month in which an application for credit is made.
Licensee shall not be eligible to receive any credits for periods in
which Licensee received any Healthnet Service free of charge.
The Parties agree that Service Interruptions for the purpose of system
maintenance or upgrade are excepted from the above service levels.
Interruptions for maintenance or upgrade shall be performed only on a
reasonable basis and with prior notification to the Licensee.
ARTICLE 8
LIABILITY AND INDEMNIFICATION
8.1 LIMITATION OF LIABILITY. The Licensee acknowledges and agrees that
neither Healthnet nor any of its members, shareholders, directors,
officers, employees or representatives will be liable to the Licensee
or any of the Licensee's Customers for any special, indirect,
consequential, punitive or exemplary damages, or damages for loss of
profits or savings, in connection with this Agreement, the services or
the Hardware or any other information, material or services provided by
Healthnet to the Licensee under this Agreement. If, despite the
foregoing limitations, Healthnet or any of its shareholders, directors,
officers, employees or representatives should become liable to the
Licensee or any other person (a "Claimant") in connection with this
Agreement, then the maximum aggregate liability of Healthnet, its
members, shareholders, directors, officers, employees and
representatives for all such things and to all such Parties will be
limited to the lesser of the actual amount of loss or damage suffered
by the Claimant or the amount of the total amount of all Licensee's
fees paid by the Licensee to Healthnet for the six months prior to the
loss.
8.2 LICENSEE INDEMNITY. The Licensee shall indemnify and save harmless
Healthnet and its members, shareholders, directors, officers,
employees, agents, contractors, representatives, or subsidiaries
(together in this section, the "Indemnified Parties") from and against
all damages, losses, costs and expenses (including actual legal fees
and costs), fines and liabilities incurred by or awarded asserted or
claimed against any of the Indemnified Parties by any person in
connection with and to the extent directly attributable to the
Licensee's negligence under this Agreement, including claims brought by
a person using or relying upon any advice given or publication produced
and distributed by the Licensee.
8.3 HEALTHNET INDEMNITY. Healthnet shall indemnify and save harmless the
Licensee and its members, shareholders, directors, officers, employees,
agents, contractors, representatives, or subsidiaries (together, in
this section the "Indemnified Parties") from and against all damages,
losses, costs and expenses (including actual legal fees and costs),
fines and liabilities incurred by or awarded asserted or claimed
against any of the Indemnified Parties by any person in connection with
and to the extent directly attributable to :
(a) any claims for the infringement of any intellectual property
right; and
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(b) Healthnet's negligence under this Agreement, including claims
brought by a person using or relying upon any advice given or
publication produced and distributed by Healthnet.
ARTICLE 9
CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION. The Licensee shall not disclose, publish, or
disseminate Confidential Information to anyone other than those of its
employees or others with a need to know, and the Licensee agrees to take
reasonable precautions to prevent any unauthorized use, disclosure,
publication, or dissemination of Confidential Information. The Licensee
agrees not to use Confidential Information otherwise for its own or any
third party's benefit without the prior written approval of an authorized
representative of Healthnet in each instance.
9.2 CUSTOMER INFORMATION. Healthnet shall not disclose, publish, or disseminate
Customer Information to anyone other than those of its employees with a
need to know, and Healthnet agrees to take reasonable precautions to
prevent any unauthorized use, disclosure, publication, or dissemination of
Customer Information. Healthnet agrees not to use Customer Information
otherwise for its own or any third party's benefit without the prior
written approval of an authorized representative of the Licensee in each
instance. Notwithstanding anything in this section, Healthnet shall be
allowed to use Customer Information in an aggregated and statistical form
so long as it does not identify individuals or specific companies and for
the purpose of fulfilling its reporting obligations as a public company. .
9.3 DERIVATIVE WORKS. All Confidential Information, and any derivatives
thereof, remains the property of the disclosing party and no license or
other rights to Confidential Information is granted or implied hereby. For
purposes of this Agreement, "Derivatives" shall mean: (a) for copyrightable
or copyrighted material, any translation, abridgement, revision or other
form in which an existing work may be recast, transformed or adapted; (b)
for patentable or patented material, any improvement thereon; and (c) for
material which is protected by trade secret, any new material derived from
such existing trade secret material, including new material which may be
protected by copyright, patent and/or trade secret.
9.4 LEGALLY REQUIRED DISCLOSURE. Either Party is free to disclose information
that would otherwise be considered confidential if that Party is legally
required to disclose the information and provided the Party legally
required to disclose provides prompt notice to the other Party of such
requirement so that the other Party may seek an appropriate protective
order or other remedy.
9.5 THIS AGREEMENT. The Licensee shall not disclose the contents of this
Agreement to any third party who is not bound to maintain confidentiality
between the Parties. The Licensee acknowledges that disclosure of the terms
of this Agreement to third parties would cause considerable damage to
Healthnet and its Affiliates.
ARTICLE 10
GENERAL
10.1 NOTICES. Unless otherwise provided in this Agreement, any notice provided
for under this Agreement shall be in writing and shall be sufficiently
given if delivered personally, or if transmitted by facsimile with an
original signed copy delivered personally within twenty-
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four hours thereafter, or mailed by prepaid registered post addressed to
Healthnet at their respective addresses set forth below or at such other than
current address as is specified by notice.
To Healthnet:
Healthnet International Inc.
000 - 0000 XXXX Xxxxxx Xx
Xxxxxxxxx XX X0X 0X0
Attention: General Counsel
Fax: (000) 000 0000
To the Licensee:
XxxxXxxxx.xxx Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxx, President
Fax: (000) 000-0000
10.2 ENTIRE AGREEMENT AND SCHEDULES. The Parties agree that this Agreement and
its Schedules constitute the complete and exclusive statement of the terms
and conditions between the Licensee and Healthnet covering the performance
hereof and cannot be altered, amended or modified except in writing
executed by an authorized representative of each Party. The Licensee
further agrees that any terms and conditions of any purchase order or other
instrument issued by the Licensee in connection with this Agreement which
are in addition or inconsistent with the terms and conditions of this
Agreement shall not be binding on Healthnet and shall not apply to this
Agreement.
10.3 GOOD FAITH. The Parties acknowledge to one another that each respectively
intends to perform its obligations as specified in this Agreement in good
faith.
10.4 PARTIES TO ACT REASONABLY. The Parties agree to act reasonably in
exercising any discretion, judgment, approval or extension of time that may
be required to effect the purpose and intent of this Agreement. Whenever
the approval or consent of a Party is required under this Agreement, such
consent shall not be unreasonably withheld or delayed.
10.5 BENEFIT. This Agreement shall enure to the benefit of and be binding upon
the Parties their successors and assigns.
10.6 WAIVER No condoning, excusing or waiver by any Party hereto of any default,
breach of non-observance by any other Party hereto, at any time or times
with respect to any covenants or conditions herein contained, shall operate
as a waiver of that Party's rights hereunder with respect to any continuing
or subsequent default, breach or nonobservance, and no waiver shall be
inferred from or implied by any failure to exercise any rights by the Party
having those rights.
10.7 FURTHER ASSURANCE Each of the Parties hereto hereby covenants and agrees to
execute such further and other documents and instruments and to do such
further and other things as may be necessary to implement and carry out the
intent of this Agreement.
10.8 CUMULATIVE RIGHTS. All rights and remedies of the Parties are cumulative
and are in addition to and shall not be deemed to exclude any other rights
or remedies allowed by law except as specifically limited hereby. All
rights and remedies may be exercised concurrently.
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10.9 PRIOR AGREEMENTS Except as specifically provided for herein, this
Agreement, including its Schedules, contains all of the terms agreed upon
by the Parties with respect to the subject matter herein and supersedes
all prior agreements, arrangements and understandings with respect
thereto, whether oral or written.
10.10 SEVERABILITY If any Article, section or any portion of any Article or
section of this Agreement is determined to be unenforceable or invalid for
any reason whatsoever, such unenforceability or invalidity shall not
affect the enforceability or validity of the remaining portions of this
Agreement and such unenforceable or invalid Article, section or portion
thereof shall be severed from the remainder of this Agreement.
10.11 NO PARTNERSHIP Notwithstanding anything in this Agreement, no part of
this Agreement, nor the Agreement as a whole shall be construed as
creating a partnership or agency relationship between the Parties. If any
part of this Agreement should become construed as forming a
partnership or agency relationship, that part shall be amended such that
no partnership or agency relationship is created, but that part achieves
what it was originally intended to achieve.
10.12 INTERPRETATION. In the interpretation of this Agreement or any provision
hereof, no inference shall be drawn in favor of or against any Party by
virtue of the fact that one Party or its agents may have drafted this
Agreement or such provision.
10.13 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of British Columbia and Canada applicable therein
and shall be treated in all respects as a British Columbia contract.
IN WITNESS WHEREOF the Parties have executed this Agreement on the date last
written below.
HEALTHNET INTERNATIONAL INC.
Per: /s/ Xxxxxx Xxxxxxx
-----------------------
Authorized Signatory
Name: Xxxxxx Xxxxxxx
-----------------------
Date: July 12, 2000
-----------------------
NEW XXXXX.XXX CORP
Per: /s/ Xxxxx Xxxxx
-----------------------
Authorized Signatory
Name: Xxxxx Xxxxx
-----------------------
Date: July 12, 2000
-----------------------
Attached Schedules:
Schedule A - Example of Earned Royalty Fees
Schedule B - Contract Rate Schedule
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SCHEDULE A
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Example of Earned Royalty Fees
The Licensee agrees to pay Healthnet monthly fees according to the following:
Licensee shall pay to Healthnet earned royalty fees that shall be calculated as
a percentage of monthly gross revenues where said percentage varies depending
upon monthly sales figures in the following fashion:
Monthly Gross Revenues Royalty Fee as % of Gross Revenues
$0 to $5,000 9%
$5,001 to $10,000 8%
$10,001 to $15,000 7%
in excess of $15,000 6%
Examples:
If the Licensee has a Gross Monthly Revenue of $36,000, the above fee payable is
calculated as follows:
6% of $36,000 = $2,160
If the Licensee has a Gross Monthly Revenue of $11,500, the above fee payable is
calculated as follows:
7% of $11,500 = $805
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SCHEDULE B
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SCHEDULE OF MARKET RATES
The Market rates as set out in this schedule and referred to in this Agreement
are subject to change without notice to the Licensee.
Script and Database Programming: $125.00 per hour
Flash Programming: $125.00 per hour
Video editing: $100.00 per hour
Graphic design: $85.00 per hour
Quality Assurance and testing: $60.00 per hour
Administration: $60.00 per hour
Project Management $150.00 per hour
Creative Direction $175.00 per hour
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