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STRATEGIC ALLIANCE AGREEMENT
This Agreement is made on this 25th day of August 2004, by and between
InforMedix, Inc., a corporation incorporated under the laws of Delaware ("IFMX")
with its principle place of business located at Georgetowne Office Park, 0000
Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 and McKesson BioServices Corporation, a
corporation incorporated under the laws of Virginia ("MBS"), located at _14665
Xxxxxxx Drive, Rockville, MD. 20850. IFMX and MBS are sometimes referred to
individually as a "Party" and are referred to jointly as the "Parties."
WHEREAS, IFMX has developed an electronic device and backend software
application (the "Med-eMonitorTM System") providing for the storage and
dispensing of medication, and the collection and monitoring of medication
compliance and patient outcomes data; and
WHEREAS, MBS is in the clinical supply management business in the United States
and Canada ("North America"); and
WHEREAS, each of the Parties wish to establish targeted areas of mutually
beneficial sales and marketing efforts and to collaborate jointly in these
efforts; to promote each others' products and services where appropriate; and
offer joint product offerings to prospective customers on terms and conditions
as set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, the Parties agree as follows:
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1. DEFINITIONS. "Affiliate" of a Party, means any entity that controls, is
controlled by or is under common control with such Party. "Services of
MBS" shall mean the handling, storage, packaging, and labeling of
pharmaceutical products, the acquisition of certain goods, the potential
provision of "Help Desk" support services (the ability for MBS to provide
this service is still under review at the time of this agreement) and the
delivery of such products and goods to investigative sites or other
designated sites together with other services related thereto as mutually
agreed upon, as specified in the Statement of Work (as defined below).
"Products and Services of IFMX" shall include the provision of
Med-eMonitorTM units ("Hardware") and Med-eXpertTM Database Management
System ("Software") software support services, product development to
accommodate new joint projects, medical consulting for projects provided
by Xx. Xxxx and the Scientific Advisory Board, and related Project
Management and Customer Support services
2. COLLABORATION. The Parties agree to establish sales and marketing efforts
on their identified sales targets and to work in a timely fashion to enact
these joint efforts. When appropriate, the parties will collaborate their
sales and marketing efforts to promote each other in all identified and
agreed upon product and service offerings, during the term of this
agreement as "preferred vendors" and "strategic alliance partners". Such
collaboration may include the development of joint sales and marketing
materials, joint presentation materials, integrated product and service
offerings, and cooperative pricing structures. The Parties further agree
to co-develop strategies to capitalize on perceived market opportunities
for integrated services, including but not limited to: introductions to,
and discussions with, existing customers of either Party to develop value
added, problem solving, business solutions; the exploration of perceived
opportunities for "grass roots" patient recruiting in remote geographic
areas of the United States and the exploration of perceived opportunities
with respect to developing integrated disease management products and
services. As these opportunities materialize, the Parties agree to make
public announcements, mutually agreed upon, announcing their business
collaboration activities in a timely fashion.
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3. PERFORMANCE OF SERVICES BY MBS. When IFMX enters into a contract with a
customer that may require the performance of MBS Services, IFMX will offer
MBS the first right of refusal to perform the Services required as a
subcontractor to IFMX under the terms and conditions of this Agreement;
provided, however that: 1) no such offer shall be made if the customer has
specified that an entity other than MBS should perform the Services and 2)
MBS' pricing and other material terms shall be competitive to other third
party packagers or service providers so as not to impede the bidding
process. The offer shall include a detailed statement of the work to be
performed pursuant to the contract (a "Statement of Work"). Unless MBS
declines the offer in writing within seven (7) calendar days of its
receipt thereof, MBS shall perform the Services.
4. PERFORMANCE OF SERVICES BY IFMX. When MBS enters into a contract with a
customer that may require the performance of IFMX Products and Services ,
MBS will offer IFMX the opportunity to perform the Services required as a
subcontractor to MBS under the terms and conditions of this Agreement;
provided, however, that: 1) no such offer shall be made if the customer
has specified that an entity other than IFMX should perform the Service
and 2) the pricing and other material terms shall be competitive to other
ePRO providers so as not to impede the bidding process. The offer shall
include a detailed Statement of Work to be performed pursuant to the
contract. Unless IFMX declines the offer in writing within seven (7)
calendar days of its receipt thereof, IFMX shall perform the Services.
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5. PRICING OF SERVICES. The pricing for services to be provided by MBS and
the pricing for services to be provided by IFMX shall be as described in
Appendix A.
6. REFERRALS. If MBS is contacted by a potential customer who seeks the type
of Product and Services offered by IFMX, MBS will refer that customer to
IFMX. If IFMX is contacted by a potential customer who seeks the Products
and Services of MBS, IFMX will refer that potential customer to MBS. If a
Party to whom a potential customer is referred enters into a contract for
Services with that customer, then that Party shall remit to the other
Party a referral fee in the amount of three percent (3%) of the net sales
derived from the contract (defined as gross cash proceeds received from
the contract for Services, less returns, credits, allowances, and shipping
and handling). Referral fees shall be paid within thirty (30) days of
receipt by the Party that performed the Services of a customer's payment
of an invoice for those Services.
7. TERM. This Agreement shall have an initial term of three (3) years
commencing on the date hereof and shall automatically renew for subsequent
three year terms unless either Party gives written notice of termination
(without cause) to the other Party at least ninety (90) days prior to the
end of the initial term or any subsequent term stating that this Agreement
shall terminate at the end of such term.
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8. TERMINATION.
a) If a Party fails to perform or comply with any material term or
condition of this Agreement and the failure continues unremediated
for thirty (30) days after receipt by that Party of written notice,
the other Party may immediately terminate this Agreement.
b) This Agreement may be terminated immediately upon written notice by
either Party if the other Party makes an assignment of its assets or
its business for the benefit of creditors, or if a trustee or
receiver is appointed to administer or conduct its business or
affairs, or if it is judged in any legal proceeding to be either a
voluntary or involuntary bankrupt.
c) Either Party may terminate this Agreement upon thirty (30) days
prior written notice if either Party sells all or substantially all
of its assets or merges with another corporation or if a controlling
equity interest in either Party is acquired by any person,
corporation or other entity. Upon termination of this Agreement
pursuant to Section 6 or this Section 7, all sums owing by either
Party to the other Party shall be paid in full within ten (10) days
of the date of termination.
d) Either Party may terminate this Agreement upon ninety (90) days
prior written notice to the other Party.
9. CONFIDENTIALITY. It is understood and agreed that any of the trade secrets
and other confidential information of one Party to this Agreement (the
"disclosing party") that may from time to time be made available or become
known to the other Party hereto (the "receiving party") are to be treated
as confidential, are to be used solely in connection with the receiving
party's performance of its obligations under this Agreement, and are not
to be disclosed to any persons other than employees of the receiving party
who have a reasonable need for access thereto in connection with the
receiving party's performance of its obligations under this Agreement.
Reasonable measures shall be taken to protect the confidentiality of the
disclosing party's trade secrets and other confidential information and
any memoranda, manuals or other documents containing such information of
the disclosing party that the receiving party may receive in connection
herewith shall be returned to the disclosing party or destroyed by the
receiving party in its sole discretion. The obligations of the parties
under this section shall survive any termination of this Agreement.
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10. NON-SOLICITATION. During the initial term and any subsequent term of this
Agreement and for a period of one year after the termination of this
Agreement, neither Party will, directly or indirectly, solicit to employ
or employ any officer or employee of the other Party
11. LIMITATION OF LIABILITY.
a) Except as otherwise provided in Section 13, the entire liability of
a Party to the other Party, and the other Party's exclusive remedy
against the Party, for any and all injuries, damages, losses,
liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees and costs) (hereinafter "Damages") caused
by the Party's performance of, or failure to perform, Services or
otherwise arising in connection with or pursuant to this Agreement
shall be limited to proven direct Damages not to exceed the total
payments made to the Party by the other Party under the particular
subcontracting arrangement to which the Damages relate.
b) In no event shall a Party be liable for indirect, incidental,
consequential, punitive or special Damages, including, without
limitation, Damages for lost profits. The limitations of liability
set forth in this Section 11 shall apply (i) regardless of the form
of action, whether in contract, tort, strict liability or otherwise
and (ii) whether or not Damages were foreseeable. These limitations
of liability shall survive failure of any exclusive remedies
provided in this Agreement.
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12. INDEMNIFICATION AGAINST CLAIMS OF THIRD PARTIES.
a) Each Party shall defend, indemnify and hold the other Party, its
officers, directors, employees and its Affiliates harmless from and
against any and all Damages which the other Party, its officers,
directors, employees and its Affiliates may incur on account of: (i)
any and all demands, claims or actions made or brought by and third
party based upon damage or injury to person or property or the death
of any person or any other Damages resulting from the Party's
performance of, or failure to perform, Services pursuant to Sections
2 or 3 hereof, as applicable, (ii) any failure of the Party to
comply with applicable laws and regulations relating to the
performance of Services and (iii) a breach by the Party of this
Agreement or any subcontract arising from this Agreement
b) With respect to the indemnification obligations in this Section 12:
(i) the indemnified party will notify the indemnifying party in
writing promptly upon learning of any third party claim or suit for
which indemnification may be sought; provided that failure to do so
shall not reduce or otherwise affect the obligations of the
indemnifying party to indemnify the indemnified party except to the
extent the indemnifying party is prejudiced thereby; (ii) the
indemnifying party shall have control of the defense or settlement,
provided that the indemnified party shall have the right to
participate in such defense or settlement with counsel of its own
selection and at its sole expense; and (iii) the indemnified party
shall reasonably cooperate with the defense, at the indemnifying
party's expense.
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13. ADVERTISING AND PROMOTION. Each Party may describe the relationship
created by this Agreement in their respective advertising and promotional
materials as a "strategic alliance" with the other Party enabling it to
offer clinical supply management services (in the case of MBS); and the
provision of Med-eMonitorTM units and Med-expert TM database management
system, and related project management and software support services (in
the case of IFMX) throughout the United States and Canada.
14. DISPUTE RESOLUTION.
a) All disputes, controversies or claims, whether based in contract,
tort, statute, fraud, misrepresentation or any other legal theory,
arising out of or relating to Services performed or to be performed
by either Party under this Agreement or in connection with any
breach or alleged breach by either Party of its obligations under
this Agreement or any subcontract arising from this Agreement that
are not resolved amicably between the parties shall be settled by
final and binding arbitration conducted in Rockville, MD by one
neutral arbitrator in accordance with this Agreement and the then
current Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). Each party shall bear its own expenses and the
parties shall equally share the filing and other administrative fees
of the AAA and the expenses of the arbitrator, except that the
arbitrator shall be entitled to award a different allocation of
costs and fees where the arbitrator determines that a filed claim is
frivolous. Any award of the arbitrator shall be in writing and shall
state the reasons for the award. Judgment upon an award may be
entered in any court having competent jurisdiction. The arbitrator
shall not have the power to award any damages in excess of the
liability limitation set forth in the Agreement. The arbitrator
shall not have the power to order pre-hearing discovery of documents
or the taking of depositions, but may compel attendance of witnesses
and the production of documents at the hearing. The Federal
Arbitration Act, 9 U.S.C. Sections 1 to 14, shall govern the
interpretation and enforcement of this Section 14(a).
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b) The parties, their representatives and participants and the
arbitrators shall hold the existence, content and result of the
arbitration in confidence, except to the limited extent necessary to
enforce a final settlement agreement or to obtain or enforce a
judgment on an arbitration decision and award.
15. GENERAL PROVISIONS.
a) This Agreement may not be assigned by either Party without the prior
written consent of the other Party.
b) Each Party is an independent contractor. This Agreement shall not
constitute either Party the legal representative, partner or agent
of the other Party, nor shall either Party hereto have the right or
authority to assume, create or incur any liability of any kind,
express or implies, against, in the name or on behalf of the other
Party hereto.
c) If any provision of this Agreement shall be held unlawful, invalid,
void or unenforceable by any court or administrative agency, it
shall be deemed severable, and the remainder of this Agreement shall
remain in full force and effect and be interpreted so as to carry
out the intent of the Parties in an equitable manner.
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d) Any failure of either Party to enforce, at any time or for any
period of time, any of the provisions of this Agreement shall not be
construed as a waiver of such provision or of the right of such
Party thereafter to enforce each and every provision of this
Agreement.
e) All notices pertaining to this Agreement shall be in writing, either
mailed by first class air mail, postage prepaid, sent by prepaid
express air courier or hand delivered, and shall be addressed as
follows:
To: InforMedix, Inc.
Georgetown Park
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx, M.D. Chairman and CEO,
And: Xxxxx Xxxxxxxx, President and COO
To: McKesson BioServices Corporation
00000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, RPh,
Vice President, Sales and Marketing,
And: Xxxxxxx Xxxxxx, PhD, General Manager
Notices which are sent by air courier or hand delivered shall be deemed
received on the date of delivery; notices sent by first class air mail
shall be deemed to have been received ten (10) days after the date of
posting.
f) This Agreement constitutes the entire understanding among the
parties hereto with reference to the subject matter hereof and
supersedes all previous oral or written agreements between the
Parties. This Agreement may be amended only by a written instrument
signed by both of the Parties hereto, which instrument makes a
specific reference to this Agreement.
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g) This Agreement shall be binding upon and inure to the benefit of the
Parties hereto, their successors and permitted assigns.
h) The validity, construction and performance of this Agreement shall
be governed by and interpreted in accordance with the laws of
Maryland.
i) All publicity relating to this Agreement shall be released with the
approval of the other Party, except as otherwise required by
applicable law or regulation or stock exchange rules.
j) This Agreement may be executed concurrently in two counterparts,
each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument. Faxed
signatures will be accepted; provided the original signed documents
are delivered by express air courier no later than the second
business day following execution of the counterparts.
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IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
representatives of the parties hereto as of the date first above written.
McKESSON BIOSERVICES CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, PhD, General Manager
Date: September 27, 2004
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INFORMEDIX, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, M.D., Chairman and CEO
Date: September 27, 2004
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