STRATEGIC CO-MARKETING AND INTEGRATION AGREEMENT
Exhibit
99.1
This Strategic Co-Marketing and
Integration Agreement (this “Agreement”) is entered into on this 9th day of
December 2008 (the “Effective Date”) between Vemics, Inc. (“Vemics”) located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and NaviMedix, Inc. (“NaviMedix”) located
at Eight ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
WHEREAS, Vemics, via Vermics’s
Web site (the “iMedicor Website”) and its “iMedicor Portal,” facilitates
HIPAA-compliant health information exchange between physicians, healthcare
professionals and patients. In addition, the iMedicor Website offers a fully
integrated bi-directional communications and content delivery platform for
communications between pharmaceutical/medical device companies and health care
providers using a web-based platform known as ClearLobby (collectively, the
“Vemics Services”).
WHEREAS, NaviMedix develops
and implements web based systems, services and applications that manage
administrative, clinical and financial transactions between health plans and
healthcare providers.
WHEREAS, NaviMedix and Vemics
have determined that by working together, NaviMedix will have an opportunity to
leverage its provider network known as the “NaviNet Provider Network” and Vemics
will have an opportunity to expand its user-base and grow revenue from
pay-for-use services.
WHEREAS, Vemics and NaviMedix
desire to establish a relationship to develop an integrated solution (the
“Integrated Solution”) that enables communication between pharmaceutical/medical
device companies and NaviNet-enabled provider offices.
NOW, THEREFORE, for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
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1.
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Implementation. The
parties will work together to implement the activities described
below:
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1.1.
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Access to the Integrated
Solution through NaviNet: NaviMedix and Vemics will
cooperate to integrate the Vemics Services with NaviNet and to make the
resulting Integrated Solution available to medical device and
pharmaceutical companies (“Customers”) and NaviNet-enabled healthcare
providers. NaviMedix hereby acknowledges that the development
of the Integrated Solution may require integration of certain NaviNet
transactions and workflows, including, without limitation to, Action
Items, Eligibility and Benefits, Clinical Alerts and other health plan and
non-health plan related capabilities. Vemics hereby
acknowledges and agrees that the development of the Integrated Solution
may require integration of certain aspects of the Vemics Services,
including, without limitation, integration of the Vemics communications
suite, and Customer content and data. The Integrated Solution
will enable the exchange of data and transactions between Customers and
NaviNet-enabled healthcare providers including, but not limited to,
e-detailing, appointment requests / responses, scheduling meetings, drug
sample requests / responses, ROI and statistical
analysis.
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1.2.
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NaviMedix
Obligations: NaviMedix hereby agrees that it will be
responsible for the implementation, and training of healthcare providers
in the Integrated Solution, and overall NaviNet security. NaviNet-enabled
healthcare providers will be granted access to the Integrated Solution
only if such healthcare provider has agreed to the NaviNet Terms of
Service as maintained by NaviMedix. NaviMedix will be
responsible for oversight of all aspects of the healthcare provider user
interface and the underlying business logic that supports the healthcare
provider user interface.
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1.3.
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Vemics
Obligations: Vemics hereby agrees that it will be
responsible for the implementation, and training of Customers of the
Integrated Solution, and working with NaviMedix to manage the overall
security of the Integrated Solution. Vemics will be responsible
for oversight of all aspects of the Customer user interface and underlying
business logic of the Integrated Solution as well as all enhancements to
the Customer user interface.
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1.4.
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Development: The
parties agree to work together to develop a plan that defines how the
Vemics and NaviNet solutions will be integrated with NaviNet to support
the Integrated Solution (the “Integration Plan”). The
Integration Plan will be mutually agreed upon by both parties within
thirty (30) days following the Effective Date. Both parties
agree that actual development and integration work will begin only after a
Customer has signed an agreement to proceed with the Integrated
Solution. The parties will be responsible for their respective
costs and expenses incurred in the course of development of the Integrated
Solution.
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1.5.
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Service and
Support: Each of NaviMedix and Vemics hereby agrees to
maintain the service levels set forth for their respective services and
the Integrated Solution in Exhibit C attached hereto and incorporated
herein by this reference, which will be mutually agreed upon by both
parties within sixty (60) days following the Effective
Date. NaviMedix will be responsible for healthcare provider end
user support for NaviNet and Vemics will be responsible for Customer
support as defined in
Exhibit C.
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1.6.
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Partnership
Management: Each party shall assign an integration lead,
an operating management lead and an executive lead in connection with the
management of the parties’
relationship.
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1.7.
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Other Opportunities: As
NaviMedix and Vemics identify additional opportunities that may or may not
generate revenue, the integration and business terms will be further
documented and mutually agreed to in an amendment to this
agreement.
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2.
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Marketing
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2.1.
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Co-Marketing of Integrated
Solution: The parties will use commercially reasonable
efforts to work together to pursue potential customers of the Integrated
Solution, as further detailed on Exhibit A attached
hereto. A detailed marketing plan (the “Marketing Plan”) will
be developed jointly between the parties to facilitate the goals and
objectives of this Agreement. The Marketing Plan will be
developed jointly and submitted to senior management of each party for
approval within sixty (60) days following the Effective
Date. Each party will be responsible for the payment of its own
costs and expenses in conducting such marketing, unless otherwise agreed
to in advance in written form.
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2.2.
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Marketing to Healthcare
Providers. NaviMedix will be responsible for the
oversight and management of marketing and promotion of the Integrated
Solution to NaviNet-enabled healthcare providers, using content and
outreach methods as determined by NaviMedix in its sole and absolute
discretion, which may include, without limitation, NaviNet home page
content, fax, email, and phone-based. NaviMedix hereby agrees
to use commercially reasonable efforts to work with Vemics and Customers
of the Integrated Solution to develop a plan for the rapid deployment to
and utilization of the Integrated Solution by NaviNet-enabled healthcare
providers in targeted geographical
territories.
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In
addition, it is the expectation of both parties that Customers will use their
sales resources to promote and encourage enrollment in the Integrated Solution.
It is the expectation of both parties that Vemics, NaviMedix and each Customer
will work together to define and support a program that leverages the resources
of all participating parties to maximize enrollment and utilization of the
Integrated Solution.
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2.3.
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Customer Sales and
Contracting: Vemics will be responsible for sales to
prospective Customers and contracting with Customers that agree to proceed
with the Integrated Solution. The parties agree that there may
be a requirement for both parties to contract with the Customer with
respect to the Integrated Solution, and both parties agree to make
commercially reasonable efforts to accommodate those contracting
requirements. NaviMedix and Vemics shall enter into a separate
work order (“Work Order”), in substantially the form attached hereto as in
Exhibit B, for each Customer, which Work Order shall describe the
specific responsibilities of NaviMedix and Vemics, the pricing and other
terms of such sale, and any variations to the Revenue Sharing provisions
described in Section 3 below. Neither NaviMedix nor Vemics
shall be under any obligation to deliver services related to the
Integrated Solution to a particular Customer until a Work Order for such
Customer has been entered into by Vemics and
NaviMedix.
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Vemics
agrees to coordinate with NaviMedix on dates and times for calls and meetings
with prospective Customers to enable NaviMedix the opportunity to participate in
the meetings and support the overall sales process.
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2.4.
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Non-Exclusive
Engagement: Each party hereby acknowledges and agrees
that the other party shall be entitled to continue to offer its core
services to Customers, which core services may include alternative
solutions offering the same or similar benefits to the Integrated
Solution, and that the other party is permitted to engage in partnerships
with third parties to offer the same or similar benefits to the Integrated
Solution. Notwithstanding the foregoing, each party agrees not
to enter into any agreement that would preclude either party from
continuing to offer the Integrated Solution in accordance with the terms
and conditions of this Agreement.
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2.5.
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Branding of Integrated
Solution: The parties will seek to co-brand the
Integrated Solution in a mutually acceptable manner. The
specific form and format of the co-branding will be mutually agreed in
writing by the parties prior to the use of such
co-branding.
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3.
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Payment:
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3.1.
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Revenue
Share: All fees paid by the Customer to Vemics for
transactions, capabilities and / or workflows supported and processed
within the Integrated Solution (“Customer Transaction Fees”) shall be
evenly split between the parties. Vemics acknowledges and
agrees that any revenue of NaviMedix associated with NaviMedix’s core
services (i.e., revenue that does not specifically relate to the
Integrated Solution) shall not be shared with Vemics. Fees paid
by the Customer to Vemics that will be used as incentives to drive
utilization of the Integrated Solution (“Honoraria”) are excluded from
revenue share.
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3.2.
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Modification: Although
it is the intent of the parties to support a consistent technical and
business approach for all Customers, both parties recognize the value of
pursuing the unique opportunities and requirements represented by
individual Customers. As such, both parties understand and acknowledge
that the scope of work defined within each Work Order may impact roles,
revenue share and other business elements defined in this agreement. As
such, both parties agree that the revenue share in each Work Order may
vary based on Customer requirements, the roles of both parties and scope
of work required to develop, launch and support the Integrated Solution.
In addition, the parties agree they may charge the Customer an
“Implementation Fee” to cover the cost of Customer-specific development
work associated with the unique requirements of a Customer. The
Implementation Fee and the associated revenue share, if any, will be
defined in the Work Order.
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4.
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Reporting: Within
fifteen (15) days following the end of each month during the Term, Vemics
shall provide a monthly payment/usage report in a format agreed to by both
parties (“Report”) to NaviMedix which will include the name, e-mail
address, location, and summary of activity of every Customer enrolled in
the Integrated Solution. In addition, the Report will include a
detail of all Honoraria amounts and Customer Transaction
Fees. Any fees owing to NaviMedix will be paid by direct wire
transfer of immediately available funds from Vemics to NaviMedix within
fifteen (15) calendar days of Vemics’s delivery of the Report to
NaviMedix. NaviMedix will have the right to request an audit or
examination of Vemics books and financial ledgers at any time with seven
days notice and to be conducted during normal business hours, either
electronically or in person at the office designated by
Vemics.
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5.
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Public
Relations: Following execution of this Agreement, Vemics
and NaviMedix will jointly develop a press release. The primary
purpose of the press release will be to alert and educate pharmaceutical
and medical device companies as to the development of the Integrated
Solution. All other public statements shall be governed by
Section 11.3, provided that both parties acknowledge and agree that
Vemics may be required to file a Form 8-K with the United States
Securities and Exchange Commission as a result of entering into this
Agreement. In making such filing, Vemics agrees to use its best
efforts to obtain confidential treatment with respect to the commercially
sensitive terms and conditions of this Agreement and to afford NaviMedix
the opportunity to review and comment on the request for confidential
treatment (which comments will be considered by Vemics in good faith)
prior to Vemics submitting such request to the Securities and Exchange
Commission.
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6.
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Marketing: Vemics,
in conjunction with NaviMedix, will create all marketing messages that
will be delivered to pharmaceutical and medical device
companies. Customers will also be involved in approving
specific promotional messages that will highlight their participation in
the Integrated Solution. NaviMedix will be responsible for
delivering mutually agreed upon program marketing messages to
NaviNet-enabled healthcare providers. Vemics will be responsible for
managing all pharmaceutical and medical device company
relationships.
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7.
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Customer
Training: Vemics will be responsible for training all
Customer management and sales representatives, where required, in order to
properly roll out the program to the widest possible user base of
physicians and other higher level healthcare
providers.
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8.
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Provider Training
Programs: Vemics and NaviMedix will work together to
develop training content and tools (“Provider Training Programs”) that
will be available in a self-help form on NaviNet. NaviMedix
will use commercially reasonable efforts to drive awareness and
utilization of these Provider Training Programs by NaviNet-enabled
healthcare providers. The form, format and frequency of these
awareness campaigns will be at the sole discretion of
NaviMedix.
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9.
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Limited License of Trade
Names: For marketing purposes as well as fulfilling the
goals and objectives of this Agreement only, Vemics hereby grants to
NaviMedix a non-exclusive, worldwide, royalty-free license to use the
Vemics name in advertising and promotion related to the Integrated
Solution in any media or embodiment now known or hereafter to become
known, including, without limitation, all print media, television,
enhanced television, any broadcast media, the Internet, and any on-line
media. All marketing materials used by NaviMedix bearing the
Vemics name must be pre-approved in writing by
Vemics.
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For
marketing purposes as well as fulfilling the goals and objectives of this
Agreement only, NaviMedix hereby grants to Vemics a non-exclusive, worldwide,
royalty-free license to use the NaviMedix name in advertising and promotion
related to the Integrated Solution in any media or embodiment now known or
hereafter to become known, including, without limitation, all print media,
television, enhanced television, any broadcast media, the Internet, and any
on-line media. All marketing materials used by Vemics bearing the
NaviMedix name must be pre-approved in writing by NaviMedix.
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10.
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Representations
and Warranties
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10.1.
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Representations and Warranties
of NaviMedix: NaviMedix represents and warrants to
Vemics that:
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(a)
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NaviMedix
is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of
Delaware;
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(b)
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NaviMedix
has the full right, power and authority to enter into this Agreement and
to perform its obligations
hereunder;
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(c)
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the
execution of this Agreement by NaviMedix, and the performance by NaviMedix
of its obligations and duties hereunder, do not and shall not violate any
agreement to which NaviMedix is a party or by which it is otherwise
bound;
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(d)
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when
executed and delivered by NaviMedix, this Agreement shall constitute the
legal, valid and binding obligation of NaviMedix, enforceable against it
in accordance with its terms;
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(e)
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NaviMedix
is the sole and exclusive owner of, or has the right to use, the NaviMedix
Property (as defined below); and
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(f)
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the
NaviMedix Property, including, without limitation, NaviNet, does not
infringe upon or violate the United States copyrights, published patent,
trade secrets, trademarks or other proprietary rights of any third party,
and NaviMedix has not received written notice of any claim of infringement
or violation of such rights.
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10.2.
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Representations and Warranties
of Vemics: Vemics represents and warrants to NaviMedix
that:
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(a)
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Vemics
is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of
Nevada;
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(b)
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Vemics
has the full right, power and authority to enter into this Agreement and
to perform its obligations
hereunder;
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(c)
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the
execution of this Agreement by Vemics, and the performance by Vemics of
its obligations and duties hereunder, do not and shall not violate any
agreement to which Vemics is a party or by which it is otherwise
bound;
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(d)
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when
executed and delivered by Vemics, this Agreement shall constitute the
legal, valid and binding obligation of Vemics, enforceable against it in
accordance with its terms;
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(e)
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Vemics
is the sole and exclusive owner of, or has the right to use, the Vemics
Property (as defined below);
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(f)
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the
Vemics Property, including, without limitation, the Vemics Services, does
not infringe upon or violate the United States copyrights, published
patent, trade secrets, trademarks or other proprietary rights of any third
party, and Vemics has not received written notice of any claim of
infringement or violation of such
rights.
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11.
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Confidential
and Proprietary Information
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11.1.
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Protection of Proprietary
Information: Each party retains sole and exclusive
ownership to its own Proprietary Information. Neither party
will disclose, publish, communicate or divulge any of the other party’s
Proprietary Information to any third party or use such Proprietary
Information for any purpose except to accomplish the intent of this
Agreement or with the other party’s prior written consent. Each
party receiving Proprietary Information under this Agreement will protect
such Proprietary Information with the same degree of care it uses to
protect its own Proprietary Information of a similar nature, but never
less than a reasonable degree of care. Each party agrees that
the other party’s Proprietary Information will be disclosed or made
available only to those of its employees who need to know such information
and are aware of the confidentiality obligations hereunder or to
independent contractors who need to know such information and are obliged
to treat the Proprietary Information in a manner consistent with all the
obligations under this Agreement, provided that the foregoing shall not
apply to information that the recipient party can show: (i) was known to
it prior to disclosure by the other party; (ii) is or becomes public
knowledge through no fault of the party to whom disclosure is made; (iii)
is independently developed by the recipient party without use of the other
party’s Proprietary Information; or (iv) is required by law to be
disclosed.
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11.2.
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Definition of Proprietary
Information: For purposes of this Agreement, the term
“Proprietary Information” means the terms and conditions of this
Agreement, together with all non-public information concerning either
party, its subsidiaries and affiliates, and their respective officers,
agents, employees, consultants, licensors, suppliers and customers,
including but not limited to trade secrets, know-how, inventions (whether
or not patentable), techniques, processes, programs, ideas, algorithms,
schematics, testing procedures, software design and architecture, computer
code, systems configurations, technologies, data files, internal
documentation, design and function specifications, product requirements,
problem reports, analysis and performance information, software documents,
initiatives, and other technical, business, product, marketing and
financial information, plans, data, projections and
reports.
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11.3.
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Press
Releases: Neither party will make any public statement,
press release or other announcement relating to the terms of or existence
of this Agreement without the prior written approval of the other party,
except as required by law.
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11.4.
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Remedies: Both
parties agree that any breach of the confidentiality obligations under
this Section 11 may result in irreparable damage for which there is
no adequate remedy at law. Therefore, it is agreed that the non-breaching
party shall be entitled to equitable relief, without the necessity of
posting a bond or other undertaking, including permanent injunctive relief
enjoining such breach, by a court of competent jurisdiction, in addition
to whatever remedies it may have at law. The provisions of this
Section 11 shall survive the expiration or termination of this
Agreement for any reason.
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11.5.
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HIPAA-Related
Obligations: Each party acknowledges that the other
party has contracted with health plans that are “Covered Entities” under
the Standards for Privacy of Individually Identifiable Health Information,
45 CFR Parts 160 and 164, Subparts A and E, and the Security Standards for
the Protection of Electronic Protected Health Information, 45 CFR Parts
160 and 164, Subparts A and C (the “HIPAA Rules”) and that, as a result of
such relationship, the other party is a “Business Associate” (as defined
in the HIPAA Rules). When acting as a Business Associate of the
Covered Entities, each party may receive “Protected Health Information”
(as defined in the HIPAA Rules) and may transmit the same to the other
party for use in the Integrated Service. Each party further
acknowledges that, as required under the HIPAA Rules, the other party has
executed or will execute a business associate agreement (the “Business
Associate Agreement”) with each Covered Entity to which it provides
services, pursuant to which such Covered Entity will disclose Protected
Health Information to such party and such party will be permitted to use,
disclose, create or receive Protected Health Information on behalf of the
Covered Entity. Each party hereby covenants and agrees, as
required by the HIPAA Rules, to be bound by the same restrictions and
conditions that apply to the other party under each Business Associate
Agreement to which it is a party with respect to Protected Health
Information of any Covered Entity.
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12.
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Term
and Termination
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12.1.
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Term and
Renewal: The term of this Agreement shall commence on
the Effective Date and continue for an initial period of Three (3) years
(the “Initial Term”), and shall be renewed automatically for additional
renewal terms of one (1) year each (each, a “Renewal Term” and, together
with the Initial Term, the “Term”), unless either party provides written
notice of non-renewal to the other party, within ninety (90) days prior to
the expiration of the Initial Term or the then-current Renewal Term, as
applicable.
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12.2.
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Termination: This Agreement
may be terminated prior to the expiration of the Term as
follows:
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(a)
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by
either party if the other party materially defaults in its performance of
this Agreement, and such default continues without cure for a period of
thirty (30) days after the terminating party provides written notice to
the defaulting party specifying the nature of the
default;
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(b)
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by
either party, at its option, if in the reasonable judgment of such party,
such party cannot fulfill its obligations under this Agreement as a result
of regulatory changes affecting its business as it relates to this
Agreement; or
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(c)
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by
either party, upon: (i) the institution by or against the other party
of insolvency, receivership or bankruptcy proceedings or any other
proceedings for the settlement of the other party’s debts; (ii) the
other party making an assignment for the benefit of creditors; or
(iii) the other party’s dissolution or cessation of
business.
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12.3.
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Remedies Upon Termination or
Default: Subject to the limitations of liability in
Sections 13.3 and 13.4 below, each party shall also have all remedies
other than or in addition to termination available to it at law or in
equity on account of any default of another party that is not cured as
provided in this Agreement.
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12.4.
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Effect of Termination:
Upon expiration or any termination of this
Agreement: (i) the parties rights and obligations to
continue to market and sell the Integrated Solution will expire absent a
formal written agreement between the parties to extend such rights beyond
the Term; (ii) with respect to Customer accounts who are using the
Integrated Solution or have contracted with either party to use the
Integrated Solution as of the effective date of the termination, the
parties will continue to provide the Integrated Solution to such Customers
for the remainder of the term of such Customers’ contract and any renewals
thereof and the parties revenue sharing obligations under Section 3
will survive such termination for so long as the Customer continues to use
the Integrated Solution; (iii) neither party may provide the Integrated
Solution other than pursuant to clause (ii), and (iv) each party will
promptly return to the other party all of its Proprietary Information
(including NaviMedix Property and Vemics Property, as the case may
be).
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13.
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Indemnification
and Limitation of Liability
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13.1.
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Indemnification:
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13.1.1.
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Agreement of Vemics to
Indemnify: Subject to the conditions, provisions and
limitations of this Section 13 and other applicable provisions of
this Agreement, Vemics hereby agrees to indemnify, defend and hold
harmless NaviMedix from and against all damages, costs and expenses,
including, without limitation, interest, penalties and reasonable
attorneys’ fees and disbursements, asserted against, directly resulting
to, imposed upon or directly incurred by NaviMedix by reason of or
resulting from any of the
following:
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(a)
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any
gross negligence or willful misconduct of Vemics or violation of law by
Vemics, its employees, officers or
agents;
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(b)
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any
material breach of or failure to perform any of Vemics obligations,
representations, warranties or covenants under this
Agreement;
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(c)
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the
use of the Vemics Services in compliance with this Agreement;
or
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(d)
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any
actual or alleged infringement by the Vemics Services on any patent or
other intellectual property rights of a third
party.
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13.1.2.
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Agreement of NaviMedix to
Indemnify: Subject to the conditions, provisions and
limitations of this Section 13, and other applicable provisions of
this Agreement, NaviMedix hereby agrees to indemnify, defend and hold
harmless Vemics from and against all damages, costs and expenses,
including, without limitation, interest, penalties and reasonable
attorneys’ fees and disbursements, asserted against, directly resulting
to, imposed upon or directly incurred by Vemics by reason of or resulting
from any of the following:
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(a)
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any
gross negligence or willful misconduct or violation of law by NaviMedix,
its employees, officers or agents;
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(b)
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any
material breach of or failure to perform any of NaviMedix’s obligations,
representations, warranties or covenants under this
Agreement;
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(c)
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the
use of NaviNet in compliance with this Agreement or a Definitive
Agreement; or
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(d)
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any
actual or alleged infringement by NaviNet on any patent or other
intellectual property rights of a third
party.
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13.2.
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Indemnification Procedure:
The party against whom a claim that is subject to indemnification
hereunder is brought (in this context, the “Indemnified party”) agrees to
promptly notify the indemnifying party (in this context, the “Other
party”) in writing, of any claims asserted against the Indemnified party
to which the Indemnified party is entitled to indemnification hereunder,
provided that any failure by the Indemnified party to give notice as
provided herein shall not relieve the Other party of its obligations under
this Section 13. The Indemnified party shall deliver to
the Other party any appropriate court document or other document relating
to such claim. The Other party shall control the investigation,
trial, defense and settlement of any such lawsuit or action and any appeal
arising therefrom and shall employ or engage attorneys of its own choice,
provided, however, that no settlement shall include an admission of
liability on the part of the Indemnified party without its prior written
consent, which consent shall not be unreasonably withheld. The Indemnified
party may, at its own cost, participate in such investigation, trial and
defense of such lawsuit or action and an appeal arising
therefrom. The Indemnified party shall provide full reasonable
cooperation to the Other party at all times during the pendency of the
claim or lawsuit including, without limitation, providing the Other party
with all available information, access to personnel and documents
concerning the claim.
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13.3.
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Limitation of Vemics
Liability: EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, NAVIMEDIX UNDERSTANDS AND AGREES THAT THE VEMICS SERVICES
ARE PROVIDED “AS IS.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
HEREIN, VEMICS SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES
OF ANY KIND TO NAVIMEDIX, ITS USERS AND ANY OTHER THIRD PARTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR
THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING
OR TRADE USAGE. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN,
VEMICS MAKES NO REPRESENTATION OR WARRANTY THAT THE VEMICS SERVICE OR ANY
INFORMATION, REPORTS, MATERIALS OR SERVICES OBTAINED FROM OR GENERATED BY
VEMICS WILL BE UNINTERRUPTED, TIMELY, COMPLETE, ACCURATE OR FREE FROM
ERROR OR DEFECT. VEMICS SHALL IN NO EVENT BE LIABLE FOR LOSS OF PROFIT,
GOODWILL, OR OTHER SPECIAL, INDIRECT OR ANY CONSEQUENTIAL DAMAGES SUFFERED
BY NAVIMEDIX IN ANY WAY ATTRIBUTABLE TO NAVIMEDIX’S USE OF THE VEMICS
SERVICE. NAVIMEDIX ACKNOWLEDGES AND AGREES THAT VEMICS SHALL NOT BE LIABLE
FOR AND HEREBY ACCEPTS NO LIABILTIY FOR OR IN CONNECTION WITH ANY AND ALL
DISPUTES BETWEEN NAVIMEDIX AND ANY HEALTHCARE PROVIDER, PAYER, INSURANCE
CLAIMANT, PATIENT, STATE OR REGULATORY BODY OR OTHER THIRD PARTY ARISING
FROM OR RELATING TO ANY DISPUTES, CLAIMS, FINES, PENALTIES, LITIGATION OR
OTHER COSTS OR LOSSES CONCERNING PAYMENT OF CLAIMS. EXCEPT WITH RESPECT TO
THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 8.1.1, IN NO EVENT
SHALL VEMICS BE LIABLE TO NAVIMEDIX FOR DAMAGES UNDER THIS AGREEMENT IN
EXCESS OF THE TOTAL FEES PAID BY NAVIMEDIX TO, OR REVENUE SHARED WITH,
VEMICS (PURSUANT TO AND AS SET FORTH IN THE APPLICABLE WORK ORDER), DURING
THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE
TO SUCH LIABILITY; PROVIDED, HOWEVER, THAT IF, WITH RESPECT TO ANY CLAIM,
NO FEES WERE REQUIRED TO BE PAID BY NAVIMEDIX TO VEMICS AND NO REVENUE WAS
REQUIRED TO BE SHARED WITH VEMICS PURSUANT TO THE APPLICABLE WORK ORDER,
THEN VEMICS SHALL HAVE NO LIABILITY WITH RESPECT TO SUCH
CLAIM.
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|
13.4.
|
Limitation of NaviMedix’s
Liability: EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS AGREEMENT, VERMICS UNDERSTANDS AND AGREES THAT NAVINET IS PROVIDED
“AS IS.” EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN,
NAVIMEDIX SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF
ANY KIND TO VERMICS, ITS USERS AND ANY OTHER THIRD PARTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR
THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING
OR TRADE USAGE. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN,
NAVIMEDIX MAKES NO REPRESENTATION OR WARRANTY THAT NAVINET OR ANY
INFORMATION, REPORTS, MATERIALS OR SERVICES OBTAINED FROM OR GENERATED BY
NAVIMEDIX WILL BE UNINTERRUPTED, TIMELY, COMPLETE, ACCURATE OR FREE FROM
ERROR OR DEFECT. NAVIMEDIX SHALL IN NO EVENT BE LIABLE FOR LOSS OF PROFIT,
GOODWILL, OR OTHER SPECIAL, INDIRECT OR ANY CONSEQUENTIAL DAMAGES SUFFERED
BY VEMICS IN ANY WAY ATTRIBUTABLE TO VEMICS’S USE OF NAVINET. VEMICS
ACKNOWLEDGES AND AGREES THAT NAVIMEDIX SHALL NOT BE LIABLE FOR AND HEREBY
ACCEPTS NO LIABILTIY FOR OR IN CONNECTION WITH ANY AND ALL DISPUTES
BETWEEN VEMICS AND ANY HEALTHCARE PROVIDER, PAYER, INSURANCE CLAIMANT,
PATIENT, STATE OR REGULATORY BODY OR OTHER THIRD PARTY ARISING FROM OR
RELATING TO ANY DISPUTES, CLAIMS, FINES, PENALTIES, LITIGATION OR OTHER
COSTS OR LOSSES CONCERNING PAYMENT OF CLAIMS. EXCEPT WITH RESPECT TO THE
INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 8.1.2, IN NO EVENT SHALL
NAVIMEDIX BE LIABLE TO VEMICS FOR DAMAGES UNDER THIS AGREEMENT IN EXCESS
OF THE TOTAL FEES PAID BY VEMICS TO, OR REVENUE SHARED WITH NAVIMEDIX,
(PURSUANT TO AND AS SET FORTH IN THE APPLICABLE WORK ORDER), DURING THE
TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM GIVING RISE TO
SUCH LIABILITY; PROVIDED, HOWEVER, THAT IF, WITH RESPECT TO ANY CLAIM, NO
FEES WERE REQUIRED TO BE PAID BY VEMICS TO NAVIMEDIX AND NO REVENUE WAS
REQUIRED TO BE SHARED WITH NAVIMEDIX PURSUANT TO THE APPLICABLE WORK
ORDER, THEN NAVIMEDIX SHALL HAVE NO LIABILITY WITH RESPECT TO SUCH
CLAIM.
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14.
|
Ownership
|
|
14.1.
|
Ownership of NaviMedix
Property: All right, title and interest, including
without limitation intellectual property rights, in and to the NaviNet
software (and any portion thereof), including without limitation all
designs, graphics, layouts, user interfaces or other characteristic,
tangible or intangible, and all modifications, improvements and
derivatives thereto which are developed or conceived in connection with
this Agreement (the “NaviMedix Property”), is owned and shall be retained
by NaviMedix. NaviMedix retains the right to modify, from time to time,
the NaviMedix Property, so long as such modification does not prevent
NaviMedix from meeting its obligations under this Agreement. Vemics shall
not decompile, reverse engineer, disassemble or otherwise reduce the
NaviMedix Property to a human perceivable form or permit any other party
to do so.
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14.2.
|
Ownership of Vemics
Property: All right, title and interest, including
without limitation intellectual property rights, in and to the Vemics
Services (and any portion thereof), including without limitation all
software, algorithms, analytics, designs, graphics, layouts, user
interfaces or other characteristic, tangible or intangible, and all
modifications, improvements and derivatives thereto which are developed or
conceived in connection with this Agreement (the “Vemics Property”), is
owned and shall be retained by Vemics. Vemics retains the right to modify,
from time to time, the Vemics Property, so long as such modification does
not prevent Vemics from meeting its obligations under this Agreement.
NaviMedix shall not decompile, reverse engineer, disassemble or otherwise
reduce the Vemics Property to a human perceivable form or permit any other
party to do so.
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14.3.
|
Licenses: Should
the parties determine that cross licenses of the NaviMedix Property and
Vemics Property are necessary to accomplish the purposes of this
Agreement, they shall enter into mutually agreed cross licenses pursuant
to an amendment to this Agreement.
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15.
|
Miscellaneous
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|
15.1.
|
Assignment and
Subcontracting: This Agreement, and the rights and
obligations of the parties created hereunder, shall not be assigned or
subcontracted to any third party by any party without the prior written
consent of the other party, and any purported or attempted assignment or
subcontract without such consent shall be void for purposes of assigning
or granting any rights under this Agreement, except that either party:
(a) may assign or subcontract any or all of its respective rights and
obligations under this Agreement to any of its affiliates, provided that,
notwithstanding any such assignment, such assigning party shall remain
primarily liable to the other party for the performance of such assigning
party’s obligations hereunder, or (b) may assign this Agreement in
connection with any merger, reorganization or sale of substantially all of
its assets related to this Agreement without any consent from the other
party, provided that either Party may terminate this Agreement upon any
assigning or granting of any rights under this Agreement by the other
Party to an entity that is in direct competition with the non-assigning
Party.
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15.2.
|
Force Majeure: Neither
party will be liable for, or will be considered to be in breach of or
default under this Agreement on account of, any delay or failure to
perform as required by this Agreement as a result of any causes or
conditions that are beyond such party’s reasonable control and that such
party is unable to overcome through the exercise of commercially
reasonable diligence. If any force majeure event occurs, the affected
party will give prompt written notice to the other party and will use
commercially reasonable efforts to minimize the impact of the
event.
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15.3.
|
Source Code Escrow
Agreement: The parties hereby agree that within ninety
(90) days of the execution of this agreement that they will enter into a
Source Code Escrow Agreement for the Source Code necessary to run and
utilize the Vemics Services (the “Source Code Escrow”). The parties
further agree that escrow agent utilized for the Source Code Escrow shall
be a third party not in any way affiliated with the parties to this
Agreement. In addition, the parties further agree that escrow agent shall
be a third party that customarily provides source code escrow services as
one of its primary business functions (e.g., Iron Mountain and VeriSign).
The parties further agree that the sole condition for release of the
Source Code Escrow shall be if Vemics files for protection under Chapter
11 of the United States Bankruptcy Code, wherein the trustee (which may
include Vemics as debtor in possession) fails to assume this Agreement
within one hundred and eighty (180) days after the filing of the initial
bankruptcy petition. For purposes of this Agreement, “Source
Code” shall be defined as Human-readable program statements written by a
programmer or developer in a high-level or assembly language that are not
directly readable by a computer. The costs associated with the Source Code
Escrow shall be borne equally between the parties
herein.
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15.4
|
Binding on Successors and
Assigns: Without in any way limiting the provisions of
Section 18.1, this Agreement shall be binding upon, enforceable by
and inure to the benefit of the parties, their successors and
assigns.
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15.5
|
Notices: All
notices, demands, requests or other communications which may be or are
required to be given, served or sent by any party to any other party
pursuant to this Agreement shall be in writing and shall be deemed to have
been duly given, made and received (a) when hand delivered (including
delivery by courier) or delivered by facsimile; (b) one business day
following the day such notice is deposited with a reputable overnight
courier service; or (c) three business days following the day mailed
by first-class, registered or certified mail, return receipt requested,
postage prepaid, addressed to Vemics or to NaviMedix, as the case may be,
as set forth below.
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|
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If
to Vemics:
|
Attention: ________________
Facsimile: ________________
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With
a copy to:
|
Attention: ________________
Facsimile:
________________
|
|
If
to NaviMedix:
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NaviMedix,
Inc.
|
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|
Eight
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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|
|
Attention: Chief
Financial Officer
|
|
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Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
With
a copy to:
|
|
|
▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP
|
|
|
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq.
|
|
|
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Each
party may designate by notice in writing new addresses to which any
notice, demand, request or communication may thereafter be so given,
served or sent.
|
|
|
15.6
|
Governing Law: The
validity and construction of the terms and provisions of this Agreement
and the rights and obligations of the parties hereto shall be interpreted
and enforced in accordance with the laws of the State of Massachusetts
(without regard to its conflict of laws rules), except to the extent
preempted by federal law.
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|
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15.7
|
Rights Cumulative; No
Waiver: No right or
remedy conferred upon or reserved to either of the parties is intended to
be exclusive of any other right or remedy, and every right and remedy
shall be cumulative and in addition to any other right or remedy, now or
hereafter legally existing upon any default. The failure of any
party to insist at any time upon the strict observance or performance of
any of the provisions of this Agreement or to exercise any right or remedy
as provided in this Agreement shall not impair any such right or remedy or
be construed to be a waiver or relinquishment. Every right and
remedy given by Agreement to the parties may be exercised from time to
time and as often as may be deemed expedient by the
parties.
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|
|
15.8
|
Amendment: This
Agreement may be amended at any time by mutual agreement of the parties,
but no such amendment is valid unless it is in writing and signed by both
parties by persons duly authorized to do so.
|
|
|
15.9
|
Rights of Third
parties: The parties
do not intend, and nothing in this Agreement shall be construed or deemed,
to give any person other than the parties hereto any right or interest
based on this Agreement. The parties reserve the right to amend
this Agreement by mutual written consent without notice to or consent of
any person or to terminate it without notice to or consent of any person
not a party to this Agreement.
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|
|
15.10
|
Relationship of the
Parties: NaviMedix and Vemics are, and shall remain,
independent contractors, each responsible only for its own acts and/or
omissions. Nothing in this Agreement shall be construed to
create any relationship between the parties other than that of independent
contractors.
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|
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15.11
|
Entire Agreement: This
Agreement contains the entire agreement between the parties with respect
to the subject matter contained herein and no representations or
agreement, oral or otherwise with respect to such subject matter, between
the parties not embodied herein or attached hereto shall be of any force
or effect.
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|
|
15.12
|
Severability: In
the event that any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable, the remaining provisions of
this Agreement will not be affected, unless the absence of the invalidated
provision adversely affects the substantive rights of the parties, in
which case, the parties agree to replace any such provision or parts
thereof with new provision(s) that closely approximate the economic and
proprietary results intended by the
parties.
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|
|
15.13
|
Expenses: Each
party shall bear its own expenses in connection with the negotiation and
execution of this Agreement.
|
|
|
15.14
|
Survival: The
provisions of Sections 3, 11, 12, 13, 14 and 15 shall survive the
expiration or termination of this Agreement for any
reason.
|
|
|
15.15
|
Counterparts: This
Agreement may be executed (including, without limitation, by facsimile
signature) in one or more counterparts, with the same effect as if the
parties had signed the same document. Each counterpart so
executed shall be deemed to be an original, and all such counterparts
shall be construed together and shall constitute one
agreement.
|
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto, have each executed this Memorandum
Understanding.
NAVIMEDIX,
INC.
By:______________________________________
▇▇▇▇▇ ▇▇▇▇▇
Vice President Business
Development
VEMICS
INC.
By: ______________________________________
▇▇▇▇ ▇▇▇▇▇
Chief Executive Officer
Exhibit
A
Integrated
Solution Prospects
Sepracor
Sigma tau
alphabms pharma
Abaxis
Isagenix
Novavax
Takeda
Bristol
▇▇▇▇▇▇
Ovation
Schering
Plough
Astra
Zeneca
Amylin
▇▇▇▇▇▇▇
Bayer
El Camino
Hospital
▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇
Cephalon
Eisai
EMD
Sanofi
Aventis
Nexgen
Purdue
Genzyme
Bioform
Wyeth
Valeant
▇▇▇▇▇▇
Pfizer
Merck
Exhibit
B
Work
Order Template
Work
Order Number X [One, Two, Etc.]
[Note:
This template is to be prepared and completed for each Customer sale of the
Integrated Solution to provide the specifics of that Customer transaction. This
form was created to provide maximum flexibility for NaviMedix and Vemics to
establish the specific terms associated to each particular Customer
opportunity.]
This Work
Order (“Work Order”) is
agreed to between Vemics, Inc. (“Vemics”) and NaviMedix, Inc. (“NaviMedix”) and
describes the services to be provided to the particular Customer identified in
this Work Order. This Work Order is incorporated into and is subject
to the terms and conditions of the Strategic Co-Marketing and Integration
Agreement between Vemics and NaviMedix dated DATE (the “Agreement”). This
Work Order shall have the effective date of [________, 200__] (“Work Order Effective
Date”). Unless otherwise defined herein, capitalized terms
shall have the same definitions provided in the Agreement.
|
1.
|
Customer. The
Customer for purposes of this Work Order is
[________].
|
|
2.
|
Contracting
Structure. The contracting structure for this Customer
will be as follows: [Vemics / NaviMedix] will enter into an agreement with
the Customer for the Integrated Solution. [Note: Add specific reference to
any pass-through terms, form of customer agreement, etc. as applicable to
the Work Order.]
|
|
3.
|
Description of Vemics
Services. Vemics will perform the following services for
this Customer: [description of Vemics
services].
|
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4.
|
Description of
NaviMedix Services. NaviMedix will perform the following
services for this Customer: [description of NaviMedix
services].
|
|
5.
|
Customer
Fees. [description of Customer
pricing].
|
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6.
|
Revenue Share.
[description of Vemics / NaviMedix revenue
share]
|
|
7.
|
Limitation of
Liability. [NaviMedix and
Vemics]
|
|
8.
|
Term. This
Work Order shall commence on the Work Order Effective Date and shall
continue for a [____ (_)] year period following the Service Start Date
(“Initial Term” as
it relates to this Work Order). This Work Order will renew
automatically for successive one (1) year terms, unless either party
provides written notice to the other party of its intent not to renew at
least ninety (90) days prior to the expiration of the then current term
(“Renewal Term” as
it relates to this Work Order). As used herein, “Term” means the Initial
Term of this Work Order and any subsequent Renewal
Terms. Unless earlier terminated in accordance with Section
12.2 of the Agreement, this Work Order will remain in full force and
effect from the Work Order Effective Date throughout the
Term.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Work Order to be
effective as of the Work Order Effective Date.
|
NaviMedix,
Inc.
By: ______________________________________
Name:_____________________________________
Title: _____________________________________
Date: _____________________________________
|
By: ______________________________________
Name:_____________________________________
Title: _____________________________________
Date: _____________________________________
|
Exhibit
C
Service
and Support Levels