Exhibit 10.48
AGREEMENT
This Agreement, dated June 29, 2000, is between Surgical Safety
Products, Inc., a New York corporation ("Oasis") and AORN, Inc., a New York
corporation ("AORN"). The parties agree to the following terms and conditions.
WHEREAS, AORN has and will develop certain materials described on
Exhibit 1 ("AORN Deliverables") for use by health care professionals and health
care facilities;
WHEREAS, Oasis wishes to market its products and services, and those of
others which may be similar in nature to the AORN deliverables contained herein,
to perioperative nurses, perioperative technologists, and operating room
decision makers via its various Oasis delivery channels which include but are
not limited to TouchPort kiosks, CD-ROM's, and the Internet ("Oasis System");
add valuable content to its Oasis System; and earn income to develop its
business model;
WHEREAS, AORN wishes to increase its membership, increase the usage of
the AORN Deliverables; and enhance the value of AORN as an information and
solution provider to operating room supervisors, leaders, managers and others
who need perioperative data.
Now, therefore, in consideration of the mutual promises set forth in
this Agreement as well as other good and sufficient consideration, the parties
agree as follows:
1. AORN Obligations: AORN shall be responsible for the following under the
terms of this agreement:
A. Develop and deliver to Oasis at AORN's sole cos and expense the AORN
Deliverables described on Exhibit 1 to this Agreement. These AORN
Deliverables shall be provided to Oasis within fifteen (15) days of
the execution of this Agreement, with the exception of the AORN
Surgical Knowledgebase, the AORN Journal and the AORN Journal Home
Studies. Delivery of the Surgical Knowledgebase, AORN Journal, and
AORN Journal Home Studies shall be as set forth on Exhibit 1. Updates
will be provided to Oasis by AORN at mutually agreed times.
▇. ▇▇▇▇▇ Oasis a non-exclusive license to use specified AORN databases,
logos, trademarks and copyrighted materials ("Intellectual Property")
subject to the terms and conditions of this Agreement. Such use is
limited to the marketing and promotion of AORN Deliverables and the
Oasis system by Oasis, as approved by AORN.
C. Provide certain marketing opportunities to Oasis by providing up to a
$75,000 credit for advertising and promotion during the first year of
this agreement, and for each contract year thereafter when Oasis
payments to AORN for licensing fees, usage fees, and contact hours,
for the preceding year are a minimum $375,000. If Oasis payments to
AORN for licensing fees, usage fees, and contact hours is less than
$375,000
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during any contract year, the advertising and promotion credit for the
following contract year will be set at 20% of the amount paid to AORN.
This credit is to be used by Oasis to promote the AORN Deliverables
and Oasis System in the AORN Journal, the SSM Supplement, the SSM
Online web site, OR Product Directory, and AORN Online. Oasis may also
purchase additional advertising space from AORN at the 60x rate
published in the then current AORN rate card. The parties may mutually
agree to additional marketing opportunities.
D. Provide a liaison from the AORN Publications Department to serve as
AORN's representative to Oasis and provide project management
assistance. Such person shall also assist Oasis in developing
marketing concepts and content production for the AORN Deliverables.
E. Be responsible for developing and updating the AORN Deliverables as
well as any disclaimer information concerning use or misuse of the
AORN Deliverables. Deliverables will contain disclosure/disclaimer
that Oasis has no responsibility or liability for the content
contained therein. The disclosure/disclaimer must be approved by
Oasis.
2. Oasis Obligations: Oasis shall be responsible for the following:
A. Providing the necessary hardware and software associated with the
Oasis System at Oasis sole cost and expense to enable integration of
the AORN Deliverables into the Oasis System and to provide a
co-branded ("AORN/Oasis") module, with Internet access, on the Oasis
System.
B. Assign a project manager to coordinate, track and manage the use of
the AORN Deliverables via the Oasis System.
C. Develop a link from the Oasis system to AORN's online membership
application and promote AORN membership on the Oasis system. Oasis
will be entitled to a $30 one-time payment for each new member who
joins AORN from the Oasis system. AORN will provide Oasis with an
accounting each quarter reflecting those new memberships for which
Oasis will be entitled to its payment.
D. Subject to authorization from users of the Oasis System, provide
copies of data, reports and other reasonably necessary information
generated by the Oasis System to AORN for use by AORN in updating and
developing AORN Deliverables.
E. Develop marketing and promotional materials for the AORN Deliverables
on the Oasis System subject to the prior written approval of AORN.
AORN will not withhold approval unreasonably. Such materials shall be
submitted to AORN at least ten (10) business days prior to the date of
use. AORN shall have five (5) business days after receipt of such
materials to either approve or disapprove their use. If AORN does not
take action within those five (5) business days, the materials shall
be deemed approved.
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F. Be solely responsible for all costs and expenses associated with
marketing its products and services to its customers including, but
not limited to, the distribution of Oasis Touchports and costs of the
hardware, networking, connectivity and servicing of the network. All
management, support and updating of the network will be the sole
responsibility of Oasis.
G. Provide a quarterly accounting, and an audited annual report, of all
usage of the AORN Deliverables through the Oasis System.
H. Report customer feedback including complaints and compliments
concerning the AORN Deliverables on a periodic basis, but no less than
quarterly.
3. License & Usage Fees: AORN and Oasis agree that the AORN
Deliverables will be licensed to Oasis pursuant to the fee and Usage schedules
set forth on Exhibits 2 to this Agreement. The total annual license fees and
contact hours for the first year of this Agreement total $117,000. This amount
is considered earned and due to AORN upon the signing of this Agreement. Under
no circumstances, including termination by Oasis, will Oasis claim any refunds
or reimbursements of these fees. Oasis agrees to pay AORN one-half of the one
hundred seventeen thousand dollars ($117,000), or fifty eight thousand five
hundred dollars ($58,500) within thirty (30) days of execution of this
Agreement. The balance of the first year's licensing and contact hour fees shall
be paid in two equal installments on March 1, 2000 and June 1, 2000. Payments in
excess of ten (10) days after the due date will be assessed a $25 per day late
fee.
The Usage Fees set forth on Exhibit 2 will be calculated (based upon
the number of Users) commencing ninety (90) days after the online publication by
Oasis of each of the particular AORN Deliverables. A "User" shall be defined as
anyone who accesses any of the AORN deliverables. If a User access any of the
AORN Deliverables in any quarter, that User shall be counted once as a user of
that particular Deliverable for the purpose of calculating the Usage Fee due to
AORN. All such users shall be added together to determine the Usage Fee due for
that quarter. Usage Fees will be due and payable on April 31, July 31, October
31, and January 31 during each year of the Agreement. Payment of the Usage Fees
shall be incurred as soon as Oasis system users have online access through Oasis
to a particular AORN Deliverable. Once Oasis has paid $1,426,000 in any contract
year for the annual license and quarterly usage fees, no additional fees will be
due for that year. A contract year begins on July 1 and ends on June 30 of each
year.
4a. Recovery of File Conversion Costs: AORN will reimburse Oasis for
50% of the cost of converting the AORN Deliverables to XML, HTML, databases, or
other format necessary for Oasis to implement access to the AORN Deliverables on
the Oasis System. Any amounts paid under this paragraph shall require the
submission of invoices from Oasis describing the services and costs associated
therewith. In no event shall such reimbursement from AORN exceed $50,000 during
the term of this Agreement. Oasis will itemize and report all file conversion
costs it would like rebated from AORN.
4b. Recovery of CE Web Enablement Costs: AORN will also reimburse
Oasis up to $10,000 per year, to pay for the cost of web enabling the Home Study
Courses, the SRPG Study
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Guide. This reimbursement is separate and aside from the reimbursements under
"4a". Oasis will itemize and report all web enablement costs it would like
rebated from AORN. Any amounts paid under this paragraph shall require the
submission of invoices from Oasis describing the services and costs associated
therewith. If the usage fees paid by Oasis to AORN for any quarter are less than
$5,000, AORN shall not be obligated to make these payments. Payments will be
made based on invoices generated from Oasis. Payments cannot exceed 50% of the
license and usage fees paid to AORN in any quarter.
5. Continuing Education: Oasis agrees to clearly designate all CE
Courses provided by AORN as AORN CE Courses and will display a copyright notice
and/or credit line throughout the Content. The following language is deemed
approved and shall be used by Oasis throughout the content: "AORN (Association
of periOperative Registered Nurses) is accredited as a provider of continuing
education in nursing by the American Nurses Credentialing Center's (ANCC)
Commission on Accreditation. AORN recognizes this activity as continuing
education for registered nurses. This recognition does not imply that AORN or
the ANCC Commission on Accreditation approves or endorses any product. AORN
maintains the following state board of nursing provider numbers: Alabama
Provider #ABNP0075; California Provider #BRN00667; Florida Provider #FBN 2296;
and Kansas Provider #LT0114-0316." Oasis is hereby granted a nontransferable,
non-exclusive right to use AORN's trademarks and logos for the purpose of
identifying the origin of the Content. These trademarks and logos may be used by
Oasis, in its sole discretion, in connection with the Content on the Sites, and
in any form, format, forum, media, medium, means or method by which the Content
is delivered, and marketing and advertising materials therefor subject to AORN's
approval, not to be unreasonably withheld. The use of AORN's trademarks and
logos as set forth herein is subject to the limitations set forth in Section
6. Termination: This Agreement shall be for a term of thirty-six (36)
months commencing effective July 1, 2000, and terminating on June 30, 2003,
("Expiration Date"). Either party may terminate this Agreement without cause
upon one hundred eighty (180) days notice to the other party at anytime.
If this Agreement is terminated without cause by AORN, Oasis shall be entitled
to a prorated refund of any license and user fees paid by Oasis but not
realized, except as specified in section 3, "License & Usage Fees".
If Oasis gives notice that they are terminating this Agreement without cause,
then AORN will not be obligated to fulfill its obligations under section "1.C."
and no additional advertising and promotion credit will be due Oasis.
This Agreement may be terminated before the Expiration Date by either party for
cause as defined below provided that the breaching party has received at least
sixty days (60) written notice of the breach and has been given thirty days (30)
from the date of such notice to remedy the breach to the breached party.
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"Termination for cause" is defined as follows:
a. A breach by either party of any of their respective obligations as set
forth in this Agreement;
b. Failure by Oasis to make any payment of monies to AORN when due;
c. Either party ceases or threatens to cease to function as a going
concern, becomes insolvent, makes an assignment for the benefit of
creditors, files a petition in bankruptcy, permits a petition in
bankruptcy to be filed against it, admits in writing its inability to
pay its debts as they become due, or has a receiver appointed for a
substantial part of its assets or stock;
d. Misuse or misrepresentation of the Intellectual Property by either
AORN or Oasis of the other party
Upon termination by either party, the parties' respective obligation to
surrender all Intellectual Property, Confidential Information, AORN Deliverables
and associated materials as well as any other terms and conditions which are
intended to survive this contract shall continue in full force and effect. Upon
termination, Oasis shall surrender any and all right, title or interest in the
AORN Deliverables as well as in all Confidential Information and the AORN
Intellectual Property. Upon termination, AORN shall surrender any and all right,
title or interest in the Oasis Confidential Information and the Oasis
Intellectual Property
7. Additional Development: The parties acknowledge that the AORN
Deliverables product described in this Agreement is limited to the inclusion of
AORN Deliverables into the Oasis System and that all other programs of AORN and
Oasis are separate and distinct. The parties reserve the right to develop any or
all of their other programs as they may determine in their sole discretion. The
parties acknowledge that they each have a proprietary interest in such
additional programs and that neither party will do anything to interfere with
the other party's development or marketing of such programs.
8. Financial Records & Accounting: The parties agree that the financial
records and accounts concerning the payment of license and usage fees to AORN
for the AORN Deliverables shall be available to AORN at anytime upon reasonable
notice to Oasis.
9. Ownership & Control of AORN Intellectual Property: "AORN
Intellectual Property" means all of the names, logos, and trademarks which are
owned by or licensed by AORN to AORN as well as any information or materials
including, but not limited to, copyrighted materials, databases and any related
programs together with all intangible rights associated therewith whether or not
included in the AORN Deliverables. Oasis acknowledges and agrees that AORN has
and will invest substantial time, money and other resources in the development
of the AORN Deliverables as well as all other AORN Intellectual Property
including derivative works of any kind. Oasis acknowledges AORN's ownership of
its AORN Deliverables and AORN Intellectual Property as well as all licensing
and copyrights to any materials developed in conjunction with the AORN
Deliverables. All such materials developed as a part of the Oasis System will
have AORN's logo or name and AORN will have on-going use of such materials.
Oasis agrees that it will place the appropriate copyright, disclosure, and
disclaimer statements on all AORN content used in the Oasis system.
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Oasis agrees it d shall not do anything to invalidate any of AORN's rights and
licenses. Nothing contained in this Agreement shall give Oasis any right, title
or interest in the AORN Deliverables or AORN Intellectual Property. Oasis shall
not use the AORN Deliverables, AORN Intellectual Property, or any part thereof,
as a part of Oasis's corporate or trade name or the corporate or trade name of
any parent, subsidiary, associated, affiliated or related company. Oasis agrees
that it will not take any action that would create any confusion in the AORN
Intellectual Property. Oasis shall not assign, transfer or otherwise convey the
AORN Intellectual Property nor grant a license to use the AORN Intellectual
Property to any person, firm or entity, including but not limited to, any
parent, subsidiary, associated, affiliated or related company. Oasis agrees to
notify AORN of any unauthorized use of the AORN Intellectual Property within
five (5) days after such unauthorized use comes to the attention of Oasis.
All rights not specifically granted herein to Oasis are expressly
reserved to AORN. Such rights shall include, but not be limited to, derivative
works, anthology, abridgement and condensation rights, as well as all subsidiary
rights in any form of media whatsoever. If AORN requests that any portion of the
Intellectual Property be deleted, corrected or made inaccessible because such
Property contains material errors, requires updated material, or is or could be
subject to a claim that it is defamatory, obscene, invades the privacy of
certain persons, or infringes any copyright, then Oasis shall take the requested
action as soon as practicable after receiving AORN's request but in no less than
thirty (30) days.
10. Ownership & Control of Oasis Intellectual Property: "Oasis
Intellectual Property" means all of the names, logos, and trademarks that are
owned by Oasis as well as any information or materials including, but not
limited to, copyrighted materials, databases and any related programs together
with all intangible rights associated therewith. AORN acknowledges and agrees
that Oasis has and will invest substantial time, money and other resources in
the development of the Oasis System as well as the Oasis Intellectual Property.
AORN acknowledges Oasis's ownership of the Oasis System and Oasis Intellectual
Property as well as all licensing and copyrights to any materials developed by
Oasis in conjunction with the Oasis System. All such materials developed as a
part of the Oasis System will have Oasis's logo or name and AORN will have
on-going use of such materials. AORN agrees that it shall not do anything to
invalidate any of Oasis's rights and licenses. Nothing contained in this
Agreement shall give AORN any right, title or interest in the Oasis Intellectual
Property except as specifically provided for in this Agreement. AORN shall not
use the Oasis Intellectual Property or any part thereof as a part of AORN's
corporate or trade name or the corporate or trade name of any parent,
subsidiary, associated, affiliated or related company. AORN agrees that it will
not take any action that would create any confusion in the Oasis Intellectual
Property. AORN shall not assign, transfer or otherwise convey the Oasis
Intellectual Property nor grant a license to use the Oasis Intellectual Property
to any person, firm or entity, including but not limited to, any parent,
subsidiary, associated, affiliated or related company. AORN agrees to notify
Oasis of any unauthorized use of the Oasis Intellectual Property within five (5)
days after such unauthorized use comes to the attention of AORN.
11. Infringement: In the event either party becomes aware of an
infringing use of either AORN Deliverables, the Oasis System or the AORN or
Oasis Intellectual Property, such party will notify the other party of such
infringement immediately, but no later than five (5) days. Upon receipt of such
notice, the parties shall meet to discuss the appropriate action including, but
not
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limited to, filing an action in federal or state court to enjoin such
infringement. In the event either party decides not to pursue any action against
an infringing party, the remaining party may pursue whatever remedy it deems
appropriate (at its own cost) to protect all its rights and interests to its
Intellectual Property.
12. Confidentiality of Data and Information: Oasis and AORN agree and
acknowledge that any and all copyrighted materials, data, statistics, client
lists and other informational materials generated by either party ("Confidential
Information"), shall remain the property of the providing or generating party.
None of this information which is directly related to the AORN Deliverables may
be disclosed or used by the non-generating or providing party for any other
purpose other than in connection with the AORN Deliverables or as otherwise
specifically authorized in writing by the generating or providing party. Upon
the expiration or termination of this Agreement, irrespective of the cause
thereof, all such information shall be immediately surrendered to the other,
which will retain ownership.
13. Indemnification: Oasis and AORN each agree to indemnify and hold
the other party, as well as that party's officers, members, directors, employees
or agents harmless from and against any lawsuits, claims, actions or causes of
action, arising out of, or in connection with, any errors or missions of the
other party, its agents, representatives or employees, with respect to that
party's duties and obligations set forth in this Agreement: AORN further agrees
to indemnify and hold harmless Oasis with respect to any claims, lawsuits or
actions relating to the content set forth in the deliverables. This obligation
includes, but is not limited to, the costs of defense, payment of any judgments
and payment of any expenses for attorneys' fees and other costs that may be
incurred.
14. Arbitration: In the event of any dispute arising out this
Agreement, AORN and Oasis will first seek to mediate that dispute. If either
party rejects such mediation, then AORN and Oasis agree that any controversy or
claim arising out of or relating in any way to this Agreement shall be settled
by arbitration in Denver, Colorado, according to the Commercial Arbitration
Rules of the American Arbitration Association ("AAA"). Any judgment or award
rendered by the arbitrator(s) shall be entered in any court having jurisdiction.
AORN and Oasis agree to pay their own out-of- pocket expenses associated with
the arbitration including attorneys fees. This provision shall not prohibit
either party from seeking injunctive or other relief in any court of competent
jurisdiction to enforce its rights in and to their Intellectual Property or
Confidential Information.
15. Compliance with Applicable Laws: Oasis represents and warrants that
it shall perform all of its duties and responsibilities in compliance with all
federal, state and local laws.
16. Assignment: Except as otherwise provided in this Agreement, Oasis
may not assign this Agreement or any of the rights granted to Oasis hereunder
without the prior written approval of AORN. Any assignment without AORN's prior
written approval shall be void. AORN reserves the right to assign any
development of its AORN Deliverables to qualified third parties, including but
not limited to AORN.
17. Relationship of the Parties: Neither party to this Agreement shall
represent or hold itself out to be a legal representative, joint venture,
partner, employee or servant of the other party for any purpose, whatsoever.
Neither party is authorized to make any contract, agreement, warranty
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or representation on behalf of the other party or to create any obligations,
express or implied, on behalf of the other party except as otherwise provided in
this Agreement.
18. Entire Agreement: This Agreement contains the entire agreement
between the parties with respect to this Agreement and any related transactions,
and supersedes all prior arrangements, understandings, agreements and covenants
among the parties including, but not limited to the Letter of Intent, dated May
12, 2000 between AORN and Oasis.
19. Severability: Should any term of this Agreement be declared by any
court of competent jurisdiction to be invalid for any reason, then the remainder
of this Agreement shall remain in full force and effect and that portion which
is determined to be invalid shall be severed.
20. Waiver and Amendment: Any term or condition of this Agreement may
be waived at any time by a party entitled to the benefit thereof if such waiver
is in writing and signed by the waiving party. A waiver of any term or provision
shall not be construed as a waiver of any other term or provision of this
Agreement. This Agreement may be amended at any time if such amendment is in
writing and signed by each of the parties hereto.
21. Governing Law: This Agreement shall be interpreted and governed by
the laws of the State of Florida and shall be construed in accordance with those
laws.
22. Notice:. Any notice required or permitted to be given to the
parties pursuant to the terms of this Agreement shall be sent certified mail,
return receipt requested, or by facsimile transmission to the parties at the
address stated below. All notices shall be deemed given when deposited in the
mails, postage prepaid.
AORN: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Oasis: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may change the address at which it is to receive notice by
notifying the other party in writing of the change.
23. Force majeure: Neither party shall be deemed to be in default to
the extent that performance is delayed or prevented by Acts of God, public
enemy, war, civil disorder, fire, flood, explosion, riot, labor disputes, work
stoppages or strike, any act or order of any governmental authority or any other
cause beyond the parties control making performance impossible.
24. Execution by Facsimile: An acceptance shall occur when both parties
are in possession of an original agreement or conformed copies signed by the
other party. If a fax transmittal is used by either party, then a conformed fax
copy shall be treated as an original. For record keeping purposes only, the
parties may subsequently exchange signed copies of the agreement in duplicate
original so that each party shall have a signed document, either of which shall
be deemed an original.
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25. Binding Effect:. This Agreement is binding upon and is for the
benefit of the parties and their respective successors and assigns.
26. Headings: Paragraphs and other headings contained in this Agreement
are for reference purposes only, and are not intended to affect in any way the
meaning or interpretation of this agreement.
27. Counterparts: This agreement may be executed in counterparts, each
of which shall be deemed an original document, but all of which will constitute
a single document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
AORN, Inc.
By
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▇▇▇▇▇▇ ▇▇▇▇▇▇, Publisher
SURGICAL SAFETY PRODUCTS, INC.
By
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EXHIBIT 1
AORN Deliverables
* AORN Standards, Recommended Practices and Guidelines ("SRPG") with
annual updates (Quark format)
* AORN Journal with annual index (Quark format)
* AORN OR Product Directory with annual update (Access format)
* AORN Journal Home Studies (15 previously published courses) (Quark
format).
* SRPG Study Guide (Word format)
* AORN Surgical Knowledgebase. The AORN Surgical Knowledgebase is
currently in development but is expected to be available during the
summer of 2000. This database will be updated periodically. The SKB
database, including; * text and illustration for a minimum of 130
procedures * a Patient's Surgical Dictionary * a review of surgical
Internet sites * all related articles and content
within 15 days after November 31, 2000 in an Access format
The Deliverables will be provided to Oasis in their exiting formats that are set
forth above.
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EXHIBIT 2
AORN Deliverables
Annual License Fees
AORN Standards, Recommended
Practices and Guidelines $42,000 annual license fee
AORN Journal $18,000 annual license fee
AORN OR Product Directory $ 2,000 annual license fee
AORN Journal Home Studies (15 previously
Published courses and the SRPG Study Guide $ 3,000 annual license fee;
plus 5,000 contact hours at
$6.00 per hour ($30,000). New
courses can be licensed each
month for $300 a course.
Additional contact hours can
be purchased for $5.00 per hour.
AORN Surgical Knowledgebase. $22,000 annual license fee
Quarterly Usage Fees
(See Attached Schedule)
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