MASTER LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is entered into effective as of the 5th day
of October 2005, by and between Trillenium Medical Imaging, Inc. a wholly owned
subsidiary of Wellstar International, Inc. ("Licensor") and Primary Care
Practitioners, ("Licensee").
WITNESSETH:
WHEREAS, Licensor possesses the capability and expertise to provide certain
Thermal Imaging Cameras, related equipment and training as further specified
herein (the "Trillenium Services") to Licensee; and
WHEREAS, Licensee owns and/or operates pain clinics in various geographic
markets in which Licensee believes it will be beneficial to utilize the
Trillenium Services; and
WHEREAS, the thermal imaging technology, both hardware and software, included as
part of the Trillenium Services is subject to certain patents, patent pending,
inventions and other proprietary technology (the "Licensed Technology"); and
WHEREAS, Licensee desires to obtain the right to utilize the Trillenium Services
including the equipment incorporating the Licensed Technology, within its pain
clinics;
NOW, THEREFORE, in consideration of the mutual promises set forth below and
other good and valuable consideration, the receipt and sufficiency of which all
parties hereto do hereby acknowledge, the parties agree as follows:
1. Recitals. The above recitals are true and correct and are fully
incorporated into the body of this Agreement to the same effect as if
fully restated herein.
2. Definitions.
a. "Commencement Date" means the date upon which Licensee places its
first order for Thermal Imaging Cameras in accord with the terms
and conditions hereof.
b. "Confidential Information" means and collectively includes all
secret and confidential technical information, including all
specifications, data, drawings, explicated know-how and
experience, trade secrets, software, databases, proprietary
information and any documents owned by Licensor which pertain to
the Thermal Imaging Cameras and/or is used in the Trillenium
Services, to the extent that such information: (i) was not known
to the recipient; (ii) was not disclosed in published literature;
(iii) was not generally available in the industry; and/or (iv)
has not been divulged to the recipient by a third party.
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c. "Licensed Rights" means and includes the rights to use the
Trillenium Services including but not limited to the Thermal
Imaging Cameras with attendant Confidential Information,
Technical Information, patented and patent pending technology in
Licensee's pain clinics.
d. "Technical Information" means unpublished research and
development information, market and business information, on
patented inventions, patent applications, know-how, trade
secrets, manufacturing information, computer programs and
computer design programs, technical data and management or
supervisory know-how in the possession of Licensor as of the
Commencement Date, or as subsequently acquired, developed,
produced or otherwise available to the Licensor following the
Commencement Date and throughout the term of this Agreement.
3. Grant of License.
a. Upon the terms and conditions set forth herein, and in
consideration for the Use Fees to be timely paid by Licensee to
Licensor as hereinafter provided, Licensor hereby grants to
Licensee, the following rights.
i. Licensor hereby grants to Licensee during the term of this
Agreement, the license to use the Licensed Rights and
Technical Information in conjunction with the Trillenium
Services and Licensor's Thermal Imaging Cameras in
Licensee's provision of services to its pain clinic
patients.
ii. Licensee hereby acknowledges that payment of the Use Fees as
provided for hereinafter shall not in any way convey
ownership, title or any interest in Licensor's Confidential
Information, Technical Information any of Licensor's Thermal
Imaging Cameras or associated hardware and/or software.
4. Thermal Imaging Cameras.
a. Upon receipt of a written order(s) from Licensee, Licensor shall
as soon as commercially practicable thereafter install Thermal
Imaging Cameras in the location(s) as from time to time
designated by Licensee.
b. Title to the Thermal Imaging Cameras shall at all times remain
with Licensor, free and clear of any claim or encumbrance by
and/or through Licensee.
c. Licensor shall at Licensor's expense provide initial training for
Licensee's staff in the use of the Thermal Imaging Cameras.
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d. Licensor shall make available to Licensee an initial
interpretation service having professionals trained in reading
and interpreting the thermal images provided through Licensee's
use of Licensor's Thermal Imaging Cameras for such reasonable
period of time as is necessary for Licensee to train its own
interpretation professionals.
e. Licensee shall maintain all-risk property insurance, including
but not limited to theft insurance, covering each Thermal Imaging
Camera installed by Licensor pursuant to Licensee's request (s)
in such amounts as Licensor shall from time to time designate to
Licensee. Licensee shall cause Licensor to be named as an
Additional Named Insured on all such policies and shall cause its
insurer to provide copies of any and all notices regarding any
issues as may effect Licensor's coverage directly to Licensor.
f. Licensee shall at all times during the term of this Agreement
maintain such a number of qualified technicians, trained in the
use of Licensor's Thermal Imaging Cameras as is sufficient to
maximize the use of Licensor's Thermal Imaging Cameras in
Licensee's pain clinics.
g. Licensee acknowledges the interest of Licensor to ensure that all
thermal imaging cameras are maintained in facilities which comply
with generally recognized industry standards for the provision of
health related services. Licensee agrees to maintain such
standards in its implementation and use of the Trillenium
Services and to comply with all other reasonable specifications
set from time to time by Licensor. Licensor shall have the right,
at all reasonable times and without prior notice, to inspect any
premises of Licensee on which the Trillenium Services are being
or were provided.
5. Use Fees.
a. Licensee shall pay to Licensor a Use Fee in such amount as Licensor
shall from time to time designate in writing to Licensee. The initial
use fee to be paid by Licensee to Licensor shall be $100 for each
patient imaging session.
b. Licensee shall be solely responsible for establishment and collection
of fees charged by Licensee for provision of thermal imaging services,
provided however, Licensee agrees that its charges shall be set at
such rates as to maximize patient use of the Trillenium Services. In
this regard, Licensee represents that it shall collect a minimum of
$100 per thermal imaging session. Licensee acknowledges and agrees
that it's timely remittance of Use Fees to Licensor shall in no way be
dependent or contingent upon Licensee's collection of charges from
Licensee's patients.
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c. Licensee shall be solely responsible to assure its billing and payment
practices are at all times in compliance with all applicable laws,
rules and or regulations issued and/or promulgated by any Federal,
State or local governing body.
d. Licensee agrees that the Use Fees paid by Licensee to Licensor
pursuant to this Agreement are net of any federal, state or local
sales, use or other taxes which may be imposed upon Licensee's sale of
Services provided under this Agreement.
e. Use fees shall be due and payable by Licensee on a weekly basis,
together with appropriate documentation sufficient to accurately
evidence Licensees actual use of Licensor's Thermal Imaging Cameras.
Payment is to be made in immediately available funds both by Licensee
per Licensor's order on the first business day of the week immediately
following Licensee use of Licensor's Thermal Imaging Cameras. Licensee
agrees that Licensor shall be allowed timely access to Licensee's
books and records as is reasonable and necessary to effectively audit
Licensee's use of Licensor's Thermal Imaging Cameras and the Use Fees
due hereunder.
6. Enhancements.
a. Licensor shall promptly notify Licensee of any and all
enhancements or improvements (hereinafter all included in the
term "Enhancements") relating to the Trillenium Services,
including but not limited to the Thermal Imaging Cameras and or
Licensed Rights which are hereafter developed by the Licensor,
and Licensee shall have the right to use all such Enhancements
subject to such reasonable fees for upgrades or additional
equipment as Licensor may deem appropriate as though originally
included in the grant of rights hereunder.
b. Licensee agrees that it will notify Licensor of any Enhancements
it develops or discovers. Licensee hereby grants to Licensor the
right to secure patent rights in such Enhancements as part of the
consideration received by Licensee from Licensor for its license
to use the Trillenium Services as provided for herein.
7. Repair and Maintenance. Licensee agrees to immediately notify Licensor
of any defects in any equipment or other materials provided by
Licensor pursuant to the terms of this Agreement. Licensor agrees to,
as soon as commercially practical and at Licensor's expense, make such
repairs and/or replacements of equipment and/or other materials as is
necessary to return the equipment to good operating condition,
provided however, that any repairs and/or replacements necessitated by
the negligence and/or intentional acts of Licensee, Licensee's
employees, agents, contractors or other invitees shall be made at
Licensee's sole expense.
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8. Nondisclosure of Confidential Information.
a. All confidential information and/or materials made available by
Licensor to Licensee hereunder shall remain so until such time,
if ever, as the material is no longer confidential through no
action, inaction or fault of Licensee and shall be kept and
maintained as confidential and shall not be disclosed by Licensee
to any third party unless such information and/or materials are
published or enter the public domain.
b. For the purposes of compliance with the privacy provisions of the
Health Insurance Portability and Accountability Act of 1996
(HIPAA), Licensee and Licensor's relationship with each other are
as "Covered Entities." As used hereunder, the terms "Covered
Entity", "Protected Health Information", "use" and "disclosure"
shall have the meanings ascribed to them in 42 CFR Section
164.501.
Licensee and the Licensor each agree to conduct their respective
business in accordance with all applicable laws and regulations,
including HIPAA and the regulations promulgated thereunder.
9. Term. The initial term of this Agreement shall be for a period of two
years and shall begin on the Commencement Date unless sooner
terminated by written notice provided by either party no less than 60
days prior to the date of intended termination.
10. Indemnification.
a. Licensee agrees to and shall indemnify, defend and hold harmless
Licensor from any and all claims, damages and attorney fees
arising from the investigation or defense of any claim brought
against Licensor as a result of any claims for personal injury or
other damage, products liability claims, or other claims of any
kind or nature resulting from Licensee's activities in, related
to or otherwise arising from, the use of Trillenium Services or
the interpretation of any images generated by Trillenium's
Thermal Imaging Cameras. This provision shall survive the
termination of this Agreement.
11. Termination. This Agreement shall terminate upon the earlier to occur
of the following: a. Expiration of the term set forth in section 8
hereof;
b. Immediately at the option of the Licensor on the failure by
Licensee to meet any of its monetary obligations hereunder within
seven days of their due date specified herein;
c. Immediately at the option of Licensor, if Licensee fails to carry
the requisite insurance required by section 4 hereof;
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d. Immediately upon Licensee's ceasing to do business, making an
assignment for the benefit of creditors, voluntarily seeking
protection under bankruptcy or similar laws, entering into a
composition, becoming insolvent, or if an order liquidating the
Licensee is issued from a court of competent jurisdiction.
Licensee shall immediately notify Licensor in writing of any of
the events referenced in this subparagraph.
e. Immediately upon Licensor's ceasing to do business, making an
assignment for the benefit of creditors, seeking protection under
bankruptcy or similar laws, entering into a composition, becoming
insolvent, or if an order liquidating the Licensor is issued from
a court of competent jurisdiction. Licensor shall immediately
notify Licensee in writing of any of the events referenced in
this subparagraph. Notwithstanding the foregoing, this Agreement
shall not terminate automatically and, at Licensee's option,
shall continue in full force and effect, if the holder of debt or
trustee in bankruptcy accepts this Agreement as executory,
allowing Licensee to continue operation, including use of the
Licensed Rights and other grants of rights hereunder, and the
manner originally contemplated by the parties hereto without
adverse effect on the rights and obligations created hereunder.
12. Rights and Obligations upon Termination.
a. Upon expiration or sooner termination of the terms of this
Agreement, and without regard to the cause thereof, all licenses,
rights, privileges and obligations shall cease and terminate and
the Licensee's rights in and to the Licensed Rights and
Trillenium Services shall immediately cease and be deemed to have
reverted back to Licensor, provided however, that no termination
of this Agreement by expiration or otherwise shall:
i. Release Licensee from any of its obligations for Use Fee
payments arising out of operation of the Thermal Imaging
Cameras, or
ii. Rescind or give rise to any rights to rescind anything done
or any payment made or other consideration given to either
party hereunder prior to the time such termination becomes
effective.
b. The provisions of this Agreement which are specifically intended to
survive the termination of this Agreement shall continue to be
applicable.
c. Immediately upon termination for any reason, Licensee shall, at
Licensee's sole expense, immediately and in a commercially reasonable
manner, return all Licensor's property, including but not limited to
all Thermal Imaging Cameras and related hardware and/or software to
Licensor at such address or addresses as Licensor shall designate to
Licensee in writing. In the event Licensee fails to return all
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property to Licensor as aforesaid Licensor shall, at Licensee's sole
expense, have the unrestricted right to enter upon Licensee's
premise(s) and to in a commercially reasonable manner remove all
Licensor's property including but not limited to its Thermal Imaging
Cameras and related hardware and/or software.
13. Notices. All notices or other communications given under this
Agreement shall be in writing and delivered personally, telefaxed, be
sent by certified mail, return receipt requested, postage prepaid, or
be sent by a nationally or internationally recognized courier service,
with charges billed to or prepaid by the sender of such notice, and
shall be addressed to the party to whom such notice is given as
follows:
If to Licensor: Xx. Xxxx X. Xxxxxxx
--------------- President
Trillenium Medical Imaging, Inc.
0000 Xxxxxxx Xx.
Xxxxxxx, Xxxx 00000
If to Licensee: Xx. Xxx Xxxxxxxx
--------------- 000 X.X. 0xx Xxx.
Xxxxxxxxxx, XX 00000
or to such other address and to the attention of such other persons
indicated in a subsequent notice given in accordance with this
paragraph. Any notice given in accordance with this paragraph shall be
deemed to have been given when received or the date noted as the date
delivery was refused or the date noted as the date when delivery was
unsuccessfully attempted if delivery by the Postal Service or a
third-party courier or when telefaxed, provided acknowledgment of
transmission is evidenced by the telefaxed transmitting the same.
14. No Joint Venture. Nothing herein contained shall be construed to place
the parties in the relationship of partners or joint venturers, and
neither Licensor nor Licensee shall have the power to obligate or bind
the other party in any manner whatsoever.
15. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their permitted successors and
assigns.
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16. Time Is of the Essence. Time shall be of the essence with respect to
all of Licensor's and Licensee's obligations and duties hereunder, all
of which shall be performed and honored strictly in accordance with
the terms of this Agreement notwithstanding any prior, continuing or
subsequent course of dealing, custom or usage in trade.
17. Governing Laws. The terms of this Agreement shall be governed by and
construed and interpreted under the laws of the United States of
America and the State of Ohio without regard to the principles of
conflict of law. Both parties have been represented by counsel in the
preparation of this Agreement; as such, same shall be deemed to have
been jointly written by the parties and neither party shall be deemed
to be the preparer of this Agreement. The forum for all litigation
shall be within the State of Ohio.
18. Amendment This Agreement may be further amended or modified only by a
written instrument signed by the party against whom enforcement is
sought
IN WITNESS WHEREOF, the parties have executed this Agreement effective the day
and year first written above.
Trillenium Medical Imaging, Inc.
By: /s/ Xxxx X. Antonio
-------------------
Xxxx X. Xxxxxxx
Title: President
By: /s/ Xxx Xxxxxxxx
----------------
Xxx Xxxxxxxx
Title: President/CEO
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