Exhibit 10.9
TRAINING SERVICES
AND
ROYALTY AGREEMENT
(▇▇▇▇▇▇▇)
This TRAINING SERVICES AND ROYALTY AGREEMENT (this "Agreement") is
entered into this 31st day of December, 2000, by and among ORION HEALTHCARE
TECHNOLOGY, INC., an Iowa corporation, formerly known as Accurate Assessments,
Inc., an Iowa corporation, with offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Orion"), and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual, residing at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇▇ has certain knowledge and expertise relating to the
South Oaks Gambling Screen ("SOGS") and to the Gambling Severity Index ("GSI"),
each a written questionnaire completed manually by practitioners providing
treatment or conducting research in the area of gambling addictions;
WHEREAS, Orion is a leading developer and marketer of computer software
in the healthcare field related to addictions, including, without limitation,
gambling;
WHEREAS, Orion desires to (a) convert the written text comprising each
of SOGS and GSI into a separate computer software program (together, the
"Software") and thereby automate certain functions of SOGS and GSI, and (b)
market, sell and license the Software;
WHEREAS, ▇▇▇▇▇▇▇ has agreed to consult with Orion regarding the
development of the Software and to provide certain training services to Orion
and its customers on terms and conditions more particularly set forth below;
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Orion and ▇▇▇▇▇▇▇ hereby agree as follows:
1. DEVELOPMENT OF THE SOFTWARE. Orion shall review SOGS and GSI
and develop and convert the text and substance of SOGS and GSI into separate
computer software programs designed to automate the screens.
2. MARKETING AND SALES OF THE SOFTWARE.
a. Upon request of Orion, ▇▇▇▇▇▇▇ shall (i) consult with Orion
regarding the conversion and development process, (ii) participate in
or attend trade shows, (iii) assist Orion in conducting marketing
seminars, distributing catalogs or newsletters, and (iv) assist Orion
in actively marketing, promoting, selling, licensing and distributing
the Software.
b. Orion may solicit orders directly or through subcontractors
or agents. Orion shall be responsible for its employees',
subcontractors' or agents' acts or omissions in performing marketing
services and for the payment of amounts owed (if any) to its employees,
subcontractors, or agents, as may be appropriate.
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c. Orion, in its sole discretion, may develop specific sales
and marketing materials for use in the marketing and licensing of the
Software, which materials may be reviewed by ▇▇▇▇▇▇▇. Orion shall
retain all right, title and interest in all such marketing materials.
d. Orion shall bear the sole responsibility for the delivery
of the Software to licensees and for the billing and collection of all
amounts owed to Orion through its licensing or sales of the Software.
e. Unless otherwise specified herein, Orion agrees that the
use of the Software by licensees shall be pursuant to applicable
licensing agreements, manuals and any other documentation developed by
Orion; provided, however, that ▇▇▇▇▇▇▇ shall develop and provide to
Orion a users manual for SOGS and GSI.
f. Orion shall maintain full, clear and accurate records with
respect to each and every copy of the Software distributed by Orion,
each license granted, each license agreement executed, and all receipts
from installation, maintenance and support of the Software and all
other revenues related thereto. ▇▇▇▇▇▇▇ further agrees to cooperate
fully with Orion should a dispute arise with a licensee or another
entity regarding the sale, licensing, distribution or maintenance and
support of the Software, including, without limitation, the right to
use trademarks, servicemarks, trade names, logos and copyrighted
materials for which a license is granted pursuant to this Agreement.
g. Title to the Software and all patents, copyrights,
trademarks, design rights, trade secrets, moral rights and other
proprietary rights in the Software are and will remain the exclusive
property of Orion, regardless of whether specifically recognized or
perfected under the laws of the country where the Software is used.
▇▇▇▇▇▇▇ will not (i) take any action that jeopardizes any proprietary
rights that Orion may develop, (ii) acquire any right in the Software
without the express written consent of Orion or (iii) perform any
reverse engineering of the Software.
3. ROYALTY PAYMENTS.
a. In consideration of the consultation services performed by
▇▇▇▇▇▇▇ in accordance with Section 2 above, Orion hereby agrees to pay
a royalty to ▇▇▇▇▇▇▇ for sales of the Software as follows:
i. five percent (5%) of the retail price of each copy
of the Software sold or licensed as a separate, stand-alone
product (a "Stand-Alone Sale"); and
ii. $5.00 for each copy sold or licensed as a unit
bundled, combined or packaged together with other software
products sold or licensed by Orion.
b. With respect to any copies of the Software returned to
Orion for full refund, ▇▇▇▇▇▇▇ shall repay to Orion any royalty paid by
Orion for such returned copy of the Software.
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c. On or before the 15th of March, June, September and
December, Orion shall remit to ▇▇▇▇▇▇▇ the appropriate payments for the
Software licensed or sold by Orion during the previous month, together
with a written royalty statement setting forth the total sales and
licenses of the Software (identifying the Stand-Alone Sales and Bundled
Sales during the period covered by the statement) and the total of
royalty payments previously made which should be repaid to Orion as the
result of returns of the Software.
d. Orion shall pay directly all income, franchise, sales, use,
personal property, ad valorem, value added, stamp or other taxes,
levies, customs duties or other imposts or fees, including withheld
taxes (except only a tax levied by the United States of America or the
States of Nebraska, New York or Rhode Island based on the net income of
▇▇▇▇▇▇▇), together with all penalties, fines and interest thereon that
in any way arise out of this Agreement, whether on or measured by the
price, the charges, the programs or the services furnished, or their
use, however designated, levied or based (hereinafter collectively
called "Tax").
e. With respect to any copies of the Software licensed or sold
as the result of the independent marketing or referral efforts of
▇▇▇▇▇▇▇, the royalty fee due to ▇▇▇▇▇▇▇ shall be calculated in
accordance with the provisions of paragraph a. above.
4. INSTRUCTION AND TRAINING. In addition to the general
agreement by ▇▇▇▇▇▇▇ to provide consultation and assistance to Orion in
connection with the development, marketing and sales of the Software as set
forth above, at the request of Orion, ▇▇▇▇▇▇▇ or, with the prior written
approval of Orion, a designated representative of ▇▇▇▇▇▇▇ who has earned a
PhD or equivalent degree and is recognized as an authority in the field of
gambling addictions, shall provide up to eight full days per calendar year of
instruction and training to Orion and its employees, licensees and customers
at Orion's offices (or such other location designated by Orion) regarding the
use of SOGS and GSI and the development and marketing of the Software.
▇▇▇▇▇▇▇ or his approved designated representative shall be compensated by
Orion for such training at the rate of $1200.00 per full training day and
Orion shall reimburse ▇▇▇▇▇▇▇ his reasonable expenses incurred in travel
(business or economy class flights), meals and lodging. Reasonable expenses
shall include a daily consultation rate for travel in excess of 8 hours round
trip. Upon Leiseur fulfilling his obligation pursuant to this Section 5 to
provide up to eight full days per calendar year of instruction and training,
all training requests received by Orion from customers and licensees
regarding SOGS or GSI shall be offered to ▇▇▇▇▇▇▇ on a first refusal basis;
provided, however, that such additional training conducted by ▇▇▇▇▇▇▇ must be
completed by no person other than ▇▇▇▇▇▇▇ and at the rate specified above. In
the event the term of this Agreement is extended beyond the initial year as
provided for in Section 10 below, the fees set forth in this section shall
remain unchanged for the first two years of this Agreement but will be
adjusted for inflation in any subsequent years.
5. ASSIGNMENT. This Agreement may not be assigned in whole or
in part by either party without the prior written approval of the other
party, which shall not be unreasonably withheld; provided, however, Orion may
assign this Agreement to any present or future affiliate or subsidiary or
assign its right to receive payment hereunder without such consent.
6. FORCE MAJEURE. Neither party shall be liable for delays in
performance of this Agreement caused by acts of God, government restrictions
or interference, strikes or other labor disputes, fires, power outages,
communications failures, or for any other cause, to the extent that any such
causes are beyond its reasonable control; provided, however, that if such delay
shall continue for thirty (30) days, then either party may terminate this
Agreement upon thirty (30) days' written notice to the other party. If the
non-performing party performs within said thirty (30) day period, then this
Agreement shall continue in full force and effect as though no such notice had
been given. In no event shall failure to timely pay amounts owed be excused.
7. INDEPENDENT CONTRACTOR. In connection with this Agreement,
each party is an independent contractor and as such will not have any
authority to bind or commit the other party except as provided hereunder.
Nothing herein shall be deemed or construed to create a joint venture,
partnership or agency relationship between the parties for any purpose.
8. LIMITATION OF LIABILITY.
a. No party shall be liable for damages caused by acts or
events beyond such party's control. In addition, neither party shall
have liability for information or advice supplied by third-party
vendors.
c. No party shall be liable for incidental, indirect, special
or consequential damages or for lost profits, savings or revenues of
any kind, whether or not the party has been advised of the possibility
of such damages.
d. Orion shall not be liable for any damages arising from the
unavailability of the Software.
9. TERM AND TERMINATION.
a. The term of this Agreement commences on the date first set
forth above and shall terminate one year thereafter. After the
expiration of the initial term of the Agreement, the Agreement shall
automatically terminate unless renewed for additional twelve (12) month
terms by the parties pursuant to a written renewal agreement.
b. Upon any material default by a party under this Agreement,
the other party may terminate this Agreement by giving not less than
thirty (30) days' prior written notice to the defaulting party;
provided, however, the defaulting party shall have the right to cure
such default within such thirty (30) day period. If not cured within
such thirty (30) day period, the Agreement shall terminate upon the
expiration of such thirty (30) day period. In addition and
notwithstanding the foregoing, either party may terminate this
Agreement at any time with 30 days' prior written notice to the other
party.
c. Upon termination for any reason, each party shall pay to
the other any royalty fee due or due to be refunded within 30 days of
termination.
10. MISCELLANEOUS.
a. MODIFICATIONS. This Agreement may be amended, restated,
supplemented or otherwise modified from time to time, provided,
however, that any amendment, restatement, supplement, modification or
waiver of any provision of this Agreement or any Attachment to this
Agreement must be in writing and signed by authorized representatives
of both parties.
b. SEVERABILITY. If any portion of this Agreement is found to
be invalid or unenforceable, the parties agree that such provisions
shall be enforced to the greatest extent permitted by law and the
remaining portions shall remain in effect. The parties further agree
that in the event such invalid or unenforceable portion is an essential
part of this Agreement, they will immediately begin good faith
negotiations for a replacement.
c. NO WAIVER. If either party fails to enforce any right or
remedy available to it under this Agreement, such failure shall not be
construed as a waiver of any right or remedy with respect to any other
breach or failure by the other party.
d. GOVERNING LAW. This Agreement and all matters arising out
of or relating to this Agreement shall be governed by the laws of the
State of Nebraska and shall be deemed to be executed in and the
Software performed from Omaha, Nebraska. The parties agree that any
legal action or proceeding relating to this Agreement shall be
instituted in the state or federal courts in Omaha, Nebraska. The
parties agree to submit to the jurisdiction of, and agree that venue is
proper in, the foregoing courts in any legal action or proceeding.
e. SURVIVAL OF TERMS. The respective obligations of Orion and
▇▇▇▇▇▇▇ hereunder which by their nature would continue beyond
termination or expiration hereof shall survive the termination or
expiration of this Agreement.
f. AUTHORIZATION. Each party represents and warrants that it
has the power and authority to execute this Agreement and that the
individual signing this Agreement is authorized to do so. The parties
further represent and warrant that upon execution of this Agreement, it
shall be a valid and binding agreement between the parties enforceable
in accordance with its terms.
g. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the Software and
supersedes all prior or contemporaneous agreements, proposals or
understandings, whether written or oral.
11. NOTICES. Any notice required or permitted hereunder shall be in
writing and addressed to the other parties as first set forth in this Agreement
or to the last known address of such party. Any notice sent shall be deemed to
be received and valid upon (i) actual receipt, if hand delivered, (ii) three
business days from date on which such notice was sent, if sent by certified or
first class mail, postage prepaid, or (iii) upon the next business day if such
notice was sent by facsimile or overnight mail.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ORION HEALTHCARE TECHNOLOGY, INC.,
an Iowa corporation
By /s/ ▇▇ ▇. ▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title CEO
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual
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