Dr Notes
RESELLER AGREEMENT
THIS AGREEMENT entered into this 5'th day of May 2005, by and
between Dr. Notes, Inc., a Florida Corporation
having a business mailing address at 000 XX 00xx Xxxxxx, Xxxxx
000, Xxxx Xxxxx, Xxxxxxx 00000 (888) 679-2123
(hereinafter referred to as "DR. NOTES ") and TOTALMED, a
Florida corporation, having a business mailing
address at 0000 Xxxx Xxxxxx Xxxx, Xxxxx, XX. 00000 and phone
number of (000) 000-0000 (herefinafter referred to
as "Reseller).
WITNESSETH
WHEREAS, DR. NOTES is the owner of all right, title and interest
in and to certain computer software, including programs and
related documentation relating to clinical management and patient
tracking systems, primarily the Dr. NotesTM Program and any of its
derivative works, including but not limited to XxXxxxx.XXX and;
WHEREAS, Reseller is experienced in the healthcare marketing and
sales business for physicians, clinics and other healthcare
providers/organizations and desires to market, and provide
customer support of the DR NOTES' software to physicians and
other providers in connection with DR NOTES' software under the
Total Med Private Label.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants set forth below, the parties hereto agree as follows:
1. Definitions: As used in this Agreement, the following terms have
the following meanings:
A. "Software" shall mean the packaged executable
version of the computer programs owned by DR. NOTES
relating to clinical management and patient
tracking systems that is currently marketed under
the name Dr. NotesTM Program and/or XxXxxxx.XXX for a
total of 38 medical and surgical specialties listed in
Exhibit I (Dr. NotesTM Specialties) as well as the ASP
or web based version known as XxXxxxx.XXX and any and
all of its derivative works.
B. "Documentation" shall mean the user manuals, on
line tutorials, data collection forms, knowledge
based contained in the software as well as all
marketing materials, including but not limited to the
multimedia demo disk, video, implementation diagrams,
E-Books and Virtual Tours on line or on CD, and other
materials designed to be used with the Software and/or
to market the Dr. NotesTM Program.
2. Appointment of Reseller/Territories. DR. NOTES
hereby appoints Reseller as non-exclusive
representatives for the purpose of providing marketing
and sales services in connection with the Dr.
NotesTM packaged Software, ASP models and
Documentation to physicians, clinics and other
healthcare facilities. In addition, DR. NOTES agrees
to license to Reseller Demonstration Copies
of its Software and Documentation, on CD and/or on
line as reasonably needed in the opinion of
DR. NOTES to assist the Reseller in performing such
marketing and sales services in the United
States and CANADA.
Reseller's Commission/Distributorship. Dr. Notes
will pay, under the Gold Reseller
Distributorship, a commission to TOTALMED of 60%
of license fee per physician and/or healthcare
facility of the Dr. NotesTM Program Software licenses
sold by the Reseller for contracts that are: (a).
subscriptions of the XxXxxxx.XXX ASP (b). and for
contracts that are one time license purchases of a Dr.
NotesTM Program known as a perpetual license and under
the current license and
service fees as approved by DR. NOTES and illustrated
in Exhibit II (Dr. NotesTM Pricing). Any and all
discounts are to be pre-approved in writing by DR.
NOTES. TOTALMED and Dr. Notes mutually agree that the
Dr. Notes Pricing can only be changed upon mutual
agreement by both parties. Dr. Notes agrees that its
sales force and distributors will not sell Dr. Notes
for less than the prices listed in Exhibit II and that
when Dr. Notes Pricing is changed by DR. NOTES, all
sales representatives and channel partners will be
notified simultaneously within a 30 day written notice.
Reseller may sign up other distributors under its
private label that are tailored to their own
healthcare organizations under the terms of this
agreement. If TOTALMED wishes to sign up distributors
under their private label license that are not
healthcare providers, such distributors must be pre-
approved in writing by Dr. Notes, Inc. and all
distributorship fees must be split under the same
commissions and royalties as the license fees under
the terms of this agreement. Under no circumstance can
these distributors be assigned any exclusivity of any
kind including but not limited to exclusive territories
and/or exclusive customers.
4. Reseller's Cost. Reseller agrees to pay an upfront, one time
distributorship fee of two hundred and
fifty thousand USD ($ 250,000 USD) for the Gold Level Distributorship
and rights to resell the Dr.
NotesTM Program Software licenses to physicians,
clinics and integrated facilities in the United States
and CANADA.
a TOTALMED will purchase a GOLD Level
Distributorship and pay $250,000 (two hundred
and fifty thousand dollars) on June 29th, 2005
for the right to resell Dr. Notes Programs on a
nonexclusive basis in the Territory outlined in
Section 2, under the commission and royalty
splits as follows to physicians and other
providers. TOTALMED receives from Dr. Notes a 60%
commission of all license fees generated by
TOTALMED for the sale of the Dr. Notes licenses to
healthcare providers. Dr. Notes will retain a 40%
royalty for all licenses sold by TOTALMED for the
Dr. Notes Programs. If full payment of $ 250,000
USD is not received on or before June 29th,
2005 this Agreement shall immediately become null
and void and any sales made prior to this date will
be paid at the standard 30% Reseller commission.
5. Reseller's Obligation
A. Marketing and Sales Documents. Reseller shall
provide DR. NOTES with the following
completed forms where applicable:
i. Credit Application in the form of Exhibit III
and Lease Agreement in the form of
Exhibit IV upon order placement for a software
license purchase or Subscription
Agreement in the form of Exhibit V upon
order placement for a subscription
license purchase,
ii. Credit Card Information and Authorization in the form
of Exhibit VI product,
services and/or for subscription purchases.
iii. Reseller Information Sheet to be used when
introducing Dr Notes to the
healthcare providers that contain any of Dr. Notes
logos or other Dr. Notes
marketing materials or Documentation as defined in
Section 113 of this Agreement.
The Sales Documents must be completed without any handwritten additions,
edits, or deletions before a sale is complete.
B. Commissions and Payments for Licenses. Reseller
shall be paid by Dr. Notes a total of 60%
(sixty) of license fees per provider, per location,
per user, per workstation and/or any other
approved method of licensing of the Dr. NotesTM
Program as the payments are received from
the customer. Typically if financing is required, the
credit approval process is expected to take
about 3 to 5 working days. Upon the funds clearing
the bank, 60% of license fee shall be paid
by DR.NOTES to TOTALMED. Immediately upon receipt of
payment and the funds clearing
the bank, the product will be shipped and/or access
to the ASP applications will be allowed.
The 60% commission due to TOTALMED by Dr. Notes shall
be either sent by wire transfer or
Company check to Reseller at the sole discretion of
the Reseller. Reseller agrees to pay for
wire transfer fees. Under no circumstances will
DR. NOTES ship product to customer or
provide access to the Dr. Notes application on the
ASP or in any other way provide the Dr.
Notes application until payment for sold licenses
have been received and funds cleared the
bank. Reseller may process payments for all related
hardware and third party software directly
with the customer. If TOTALMED chooses to use their
own leasing companies or finance
companies, split funding by the finance company
whereas 60% is paid to TOTALMED and
40% is paid directly to Dr. Notes, Inc. is also an
acceptable form of payment for license fees
under this agreement.
C. Commissions and Payments for Services: All payments
for Dr. Notes Program related services
including but not limited to technical support,
training fees, implementation, installation and
any other fees reflected in Exhibit II (Dr. Notes
Pricing) shall be paid directly to DR. NOTES
by the customer. DR. NOTES agrees to pay
Reseller 25 % of all services sold by
TOTALMED to customers that are not part of the
license fees for the Dr. Notes Programs.
The 25% commission payments from DR. NOTES to
Reseller shall be either sent by wire
transfer or Company check to Reseller at the sole
discretion of the Reseller. Reseller agrees to
pay for wire transfer fees. All customers sold
by TOTALMED will be referred back to
TOTALMED for renewal of technical support contract
or other services requested from Dr.
Notes, Inc. while this contract is valid and in
effect.
D. Best Efforts. Reseller agrees to use its best
efforts to market and maximize the licensing of
DR. NOTES's Software and Documentation without any
misrepresentation of the Dr. NotesTM
Program and DR. NOTES company.
E. Training. Reseller will send representatives for 5
days (40 hours) of training at the Dr. Notes
world headquarters in Boca Raton, Florida and an
additional 5 days to be certified as Dr.
Notes demonstrators and customer support
representatives.
F. Customer Service/Total Solution: Reseller will
provide adequate first line of support to its
own customers and Resellers representatives will call
DR. NOTES technical support staff only
for Dr. Notes Programs software related problems.
DR. NOTES may require that Reseller
customer support staff obtain additional training
when at DR. NOTES sole option the Reseller
is not providing adequate Customer Services and/or
when non related Dr. Notes Program
problems are being referred to DR. NOTES. Reseller
agrees to pay the usual and customary
training fees at the time that such additional
training is required. TOTALMED will provide a
total solution to the customer and/or end user
including but not limited to training, tech
support, implementation and installation under the
fees listed in Exhibit II (Dr. Notes Pricing),
which may be changed from time to time with a 30
day written notice at DR. NOTES sole discretion.
6. Requirements for Usage: End User License and
Subscription Agreements. In performing its
obligations, and simultaneously with submitting an
order to DR. NOTES, Reseller shall obtain the
signature of an authorized representative of the
customer on DR. NOTES's End User License
Agreement (XXXX) furnished by DR. NOTES, and attached
hereto as Exhibit VII (a) and VII (b)
and a Subscription Agreement attached hereto as Exhibit
V for subscriptions only, all of which may
be amended by DR. NOTES from time to time. DR. NOTES
also incorporates the End User
License Agreement into the Dr. NotesTM Program to be
agreed by the end user upon login and the
Subscription Agreements upon login into the
XxXxxxx.XXX ASP application. DR. NOTES shall
have no obligation to accept any order submitted by
Reseller unless said license has been paid in
full. DR. NOTES may at its sole option refuse to accept
a sale to any end user that it deems not to
be in its best interest including but not limited to
competitors.
A. Reports. Reseller will provide the following reports on line
and by e-mail to DR. NOTES:
i. Sales Activities. Written or on line weekly
reports of Reseller marketing and sales
activities, including prospect calls and current
information on the status of marketing, sales
and contracting activities with prospective
customers.
Reports. Reseller will provide the following reports on line
and by e-mail to DR. NOTES:
i. Sales Activities. Written or on line weekly
reports of Reseller marketing and sales
activities, including prospect calls and current
information on the status of marketing, sales
and contracting activities with prospective
customers.
ii. Sales Closed. By the end of each day, Reseller
shall provide DR. NOTES a completed
order form and credit application as received
by Resellers from customers where
applicable. By the 5th of each month, Reseller and
shall provide to DR. NOTES a summary
report of all sales made for the previous month.
iii. Customer Complaints. Prompt reports to DR.
NOTES, by telephone, or where
appropriate, in writing, and/or by e mail of all
complaints from customers or prospective
customers regarding the DR. NOTES Software or
the services provided by Reseller or
DR. NOTES staff including any and all Privately
Labeled Software and Documentation.
iv. Market Conditions. Written or on line
quarterly reports of competitive, market and
economic conditions relating to the DR. NOTES
Software, as such conditions become
known to Reseller.
v. Reseller's Personnel. Written or on line monthly
reports due by the 5th of every month
identifying the names of all employees, agents or
representatives of Reseller involved in
the sales, marketing, installation, implementation,
training and support of the DR. NOTES
Software and/or those representatives who have
access to the documentation as described
in Section 1 B.
B. Customer Satisfaction Questionnaire. Reseller shall
arrange for the distribution to
customers, and for the return of responses to
DR. NOTES, of a customer satisfaction
questionnaire that DR. NOTES provides to
Reseller, in accordance with the schedule
established by DR. NOTES, which shall be no more
frequently than quarterly.
C. Expenses. Reseller shall be responsible for all
expenses incurred by it in performance of
its obligations under this Agreement, including
but not limited to marketing lists, phone
charges, lead management software and customer
tracking system, e mail advertising, fax
advertising, on line advertising, providing of
software related services including but not
limited to installation, implementation, training,
support and any other form of sales and
services related activities allowed by this
Agreement and approved by DR. NOTES.
D. Installation of Software, Training and Education
of Customers. Reseller shall assure that
the customer received the Dr. NotesTM software and
verify that the customers training has
been set up. Reseller account representative or
agent shall advise the customer and then
call to verify that the customer uses the Dr.
NotesTM Program, acknowledges receipt of
the Educational Courseware, Users Manual,
Tutorial CD and the Dr. NotesTM Program
CD for perpetual licensed purchases or access to
the XxXxxxx.XXX web servers. DR.
NOTES shall provide with each Dr. NotesTM
Software License and/or Subscription a
Users Manual to be used by customer in self
training prior to obtaining on line training
sessions or any other form of training available
at the time. Upon completion of the User
Manual review, the customer/users shall receive
from DR.NOTES staff a minimum of
three 2 Hr training sessions. Reseller account
representative shall advise customer to
contact DR. NOTES for said training. If a
customer directly contacts DR. NOTES for
additional training, DR. NOTES will provide such
training at the usual and customary
fees. No commission will be paid to the Reseller
for additional training sessions obtained
directly from DR. NOTES. However, any additional
training and other services sold by
Reseller will be paid at the 25% commission
structures under Section 5C. DR. NOTES
agrees to inform Reseller that the customer has
received training and is proficient in the
use of the Dr. NotesTM Program as well as which
customers need additional training.
Reseller account representative or agents shall
inform potential customers and customers that it
is their sole responsibility to obtain the
minimum hardware that is necessary to
efficiently run the Dr. NotesTM Program on a LAN,
WAN and/or as an ASP model and that the
maintenance of their hardware networks should be
performed by a Microsoft
Certified Engineer and/or Hardware Specialist. DR.
NOTES shall provide the minimum
hardware specifications necessary to run the Dr.
NotesTM Program which may be changed
from time to time. Reseller is responsible for
installation of all hardware networks,
printers, scanners, pentablets and any other
hardware that is necessary to run the Dr.
Notes Program. Reseller shall send its staff to Dr.
Notes, Inc. headquarters for training on
how to install the Dr. Notes Program on said LAN's
and WAN's initially. Dr. Notes will
solely install upgrades to existing customers as
part of the contracted services between Dr.
Notes and its users.
All reports, questionnaires, sales and services
provided by Reseller to customers may be securely
placed on line to be accessed by DR.NOTES to comply with
section 6 of this Agreement.
7. Responsibilities of DR. NOTES.
A. Training. DR. NOTES shall provide Reseller and its
employees or subcontractors with training, which will
address the functions, features and applications
of the Dr. NotesTM Program.
Representatives of Reseller that successfully complete
DR. NOTES' five day training program shall be certified
as Product Consultants and Demonstrators. Only Product
Consultants/Demonstrators may provide information to
potential customers regarding the functionality,
features and benefits of the Dr. NotesTM Program. DR.
NOTES shall have the right, in its sole discretion,
to refuse to certify representatives of Reseller that,
in DR. NOTES' reasonable judgment, are not qualified.
B. Product Information. DR. NOTES shall furnish
Reseller with a master set of marketing
materials and product information as is made generally
available by DR. NOTES to customers and
other distributors. Sample marketing materials, videos
and a multimedia demodisks master copies
will be provided to Reseller at no cost. Reseller may
reproduce only these DR. NOTES provided
master marketing materials, videos and CD's to represent
the Dr. NotesTM Programs. Reseller shall
in no way make changes to any of the marketing materials
or in any way create their own marketing
materials, flyers, letters, and other promotional
materials that represent the Dr. NotesTM Program
functionality, features and benefits without the
express written consent and approval of DR.
NOTES.
C. Pricing Information. DR. NOTES shall provide
Reseller with DR. NOTES's standard license fees and
group discounts for the Dr. NotesTM Software, as
attached in the form of Exhibit II (DR. NOTES Pricing).
Reseller understands that such fees may be changed at
any time by DR. NOTES, in its sole discretion, and
agrees not to purport to bind DR. NOTES to any such
prices. DR. NOTES agrees to honor such pricing for a
30-day period from printed announcement date. DR.
NOTES agrees to inform Reseller of pricing changes in
writing with a 30 day prior notice.
D. Technical Support and Upgrades. Dr. Notes
shall provide second line of support to TOTALMED
staff only. Dr. Notes is not responsible for the
first line of customer support to TOTALMED's
customers. Dr. Notes will provide upgrades remotely
directly to end users servers unless it is an ASP
customer for which the upgrades are provided
directly on Dr. Notes web servers. Technical Support
and Upgrades are provided to mutual customers under
the standard service agreement. Only if services
agreements are paid to date and current will Dr. Notes
provide technical support and upgrades to mutual
customers.
E. New Modules, Customization and Integration. New
modules are billed separately and may be sold by
TOTALMED under the same terms and conditions of this
agreement. Customization and integration into other
programs as requested by customers will be billed
separately and commissions for such service
es will be paid at the 25% (twenty five) sales
commissions for services.
8. Confidential Information. Reseller recognizes that the
Software and Documentation are and
contain the valuable, confidential and trade secret
information of DR. NOTES. In addition,
Reseller may learn other confidential information
concerning DR. NOTES or its products. The
Software, Documentation and all other confidential
information concerning DR. NOTES or its
products is referred to in this Agreement as
"Confidential Information." Accordingly, Reseller
agrees that at all times it will hold as confidential and
will not disclose the Confidential Information,
except to employees on a need-to-know basis.
Reseller further agrees that it will use the
Confidential Information only as permitted by this
Agreement. Except for promoting the Software
and showing the Documentation to prospective
customers, Reseller agrees to exercise its best
efforts to prevent the disclosure or other
dissemination of the Software or Documentation, to any
third party. Reseller further agrees to place all of
its employees, Independent Consultants and
others who may have access to the Software or
Documentation, or information contained in the
Software or Documentation, under written Noncircumvent
and Nondisclosure Agreements in the
form of the agreement attached as Exhibit VIII to
enable Reseller to comply with its obligations
hereunder. Reseller further agrees not to reverse
assemble, reverse engineer, reverse compile or
otherwise derive a source code equivalent to the
Software, or attempt to do so. Reseller shall be
fully responsible for the acts and omissions of its
employees and representatives, including its Dr.
NotesTM agents, and their acts and omissions shall be
deemed to be the acts and omissions of
Reseller.
Ownership. It is agreed and understood by the parties
hereto that DR. NOTES is and shall remain
the owner of all right, title and interest, including,
but not limited to, all copyrights and trade secret
rights, in and to the Software and Documentation and
all of its derivative works. Further, Reseller
shall have no rights in the Software and
Documentation beyond those rights explicitly granted
herein and customers shall have no rights beyond those
specifically granted in the End User License
Agreement and/or Sales Documents. Reseller recognizes
that the Software and Documentation,
including the DR. NOTES data collection forms, video,
marketing materials and promotional CD's
are protected under copyright laws and Reseller agrees
not to copy or otherwise use the Software
and Documentation outside of the scope of this
Agreement, or aid others in making copies of the
Software and Documentation without the express written
approval of DR. NOTES. DR. NOTES
shall provide Reseller with one copy of hard and
soft copies of the user manual, promotional
materials as well as one copy of the E-Book and Virtual
Tour of XxXxxxx.XXX for internal use by
Reseller and for promotional purposes. The user manual,
training manual, marketing materials, E-
Book and Virtual Tour CD's may be copied or
distributed by Reseller strictly for the promotional
purposes outlined in this Agreement.
10. Warranties, Limitations.
A. Limited Warranties. The sole warranties that DR. NOTES
makes with respect to the DR. NOTES Software are as follows:
1. DR. NOTES has the right to distribute the DR. NOTES
Software and to enter into this Agreement.
2. The Software will perform substantially as described in
the Documentation.
B. Disclaimers. DR. NOTES does not represent that
the Software is error-free or will run
uninterrupted. DR. NOTES EXPRESSLY DISCLAIMS ALL
WARRANTIES OTHER THAN THOSE SET FORTH IN SECTION
9(A), INCLUDING BUT NOT LIMITED TO ANY
WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE.
11 Limitation of Liability. In no event shall DR. NOTES be
liable for any incidental, special, indirect
or consequential damages whatsoever, including,
but not limited to, loss of data or programs or lost
profits, even if DR. NOTES had been advised,
knew or should have known of the possibility of
such damage. DR. NOTES's total liability for
damages hereunder, whether in an action for
contract or tort, including negligence, or otherwise
shall not exceed the amount that Reseller has received
in sales commissions from DR. NOTES under this
Agreement during one week period immediately preceding
the loss.
12. Term and Termination. This Agreement is for a One
Year Term and renewable yearly unless
otherwise terminated by either party for cause with a 60
days written notice. Upon receipt of notice
to terminate, either party shall have a 60 day cure
period to correct all deficiencies outlined in the
notice to terminate. Upon failure to cure all
deficiencies and/or breach of this Agreement, Reseller
shall cease all marketing activities upon receipt of
such notice, including the use, in any manner, of
DR. NOTES's name or trademark in connection with
marketing activities. Reseller shall return to
DR. NOTES all Software and Documentation and all other
Confidential Information in Reseller's
possession or accessible to Reseller. DR. NOTES's
obligations to pay commissions hereunder shall
survive termination of this Agreement for sales made
by Reseller prior to termination. Upon
termination of this Agreement, the only commissions
paid by Dr. Notes, Inc. to TOTALMED will
be those that have already been earned under this
agreement while it was still in force and valid.
13. Trademarks, Goodwill, Etc.. Nothing in this Agreement
shall confer rights of any kind in the name
of DR. NOTES or any of DR. NOTES's trademarks, trade
names, service marks, or advertisements
other than as expressly provided in this Section 12.
Reseller may use in its own marketing materials
of their own products the DR. NOTES trademarks
provided that no public use will be made of
such materials until they have been approved in writing
by DR. NOTES. Reseller shall use its best
efforts to maintain and enhance the reputation of DR.
NOTES and DR. NOTES's Software in all
dealings with prospective customers or other third
parties, and shall conduct all phases of its
operations ethically and in such manner that the name
and reputation of DR. NOTES and DR.
NOTES's Software will not suffer.
14. No Representations by Reseller. DR. NOTES prohibits
Reseller from making any representation to
any third parties beyond what is exactly provided by
DR. NOTES in the Documentation. Any
representation beyond the Documentation provided by DR.
NOTES shall be the sole responsibility
of Reseller and Reseller shall indemnify and hold DR.
NOTES harmless from any misrepresentation
including damages, cost and attorney fees, as provided in
Section 16.
15. Noncompete and Other Products. Reseller will not,
during the term of this Agreement, sell,
license, or offer for sale or license, or provide
services in connection with, any product that is
competitive with DR. NOTES's Software including but
not limited to Computer Based Patient
Record System and/or Electronic Medical Records or
Electronic Health Records. During the first
two years after the termination of this Agreement and
after the 60 day failure to cure period has
passed, Reseller shall not market, sell or in any way
promote any product that is competitive to the
Dr. NotesTM Program and/or any of its derivative works
as outlined in this Agreement. Reseller
may resell any Practice Management System (PMS) and
services to the PMS of any vendor
including vendors that sell another Electronic Medical
Record as long as Reseller does not resell
any other EMR or any services related to an EMR.
16. Independent Contractor. The parties agree that Reseller
is an independent contractor and shall not
be deemed to be, for any purpose whatsoever, an
employee of DR. NOTES. Further, the parties
agree that Reseller may not act as, or hold itself out
in any manner as an employee of DR. NOTES,
nor can Reseller bind DR. NOTES to any third
party. If for any reason Reseller are found
employees of DR. NOTES or to have contractually bound
DR. NOTES, Reseller shall indemnify
DR. NOTES for any liabilities such employment or
contractual relationship places on DR. NOTES,
including any damages, costs, attorneys fees, tax or
insurance liabilities, in accordance with Section 16.
17. Mutual Indemnification. Reseller and DR. NOTES shall
mutually defend, indemnify and hold each
other, including its assignees, subsidiaries and
affiliated companies, officers, directors, employees,
shareholders, agents and representatives of each of
them, harmless from and against any loss,
injury, demand, cost, expense, or claim of any kind
or character, including but not limited to
attorneys' fees, arising out of each other's
performance under this Agreement, whether caused by
either parties' negligent, willful or wanton
misconduct, or by the negligent, willful or wanton
misconduct of its employees, agents, or
representatives, or by failure to comply with any
provision of this Agreement or with the laws,
statutes, rules, regulations or orders of any
governmental authority having jurisdiction over
TOTALMED, DR. NOTES or its business.
18. Equitable Remedies. Reseller agrees that because
of the unique nature of the DR. NOTES
Software and Documentation and DR. NOTES's
proprietary rights therein, breach of this
Agreement by Reseller would irreparably harm DR.
NOTES and monetary damages would be
inadequate compensation. Therefore, Reseller
agrees that DR. NOTES shall be entitled to
preliminary and permanent injunctive relief from any
court of competent jurisdiction to enforce the
provisions of Sections 7, 8, 12 or 14 and any other
provisions of this Agreement or applicable law
with respect to which DR. NOTES may demonstrate it is
entitled to injunctive relief. Reseller
agrees to pay for all cost and attorneys' fees of
DR. NOTES to enforce any of its equitable
remedies.
19. Insurance. Reseller shall (a) procure and maintain
(i) comprehensive general liability insurance,
including contractual liability insurance and errors
and omissions insurance, in an amount not less
than one million dollars ($1,000,000) for any single
occurrence, and (ii) property damage insurance
in an amount not less than one million dollars
($1,000,000), all such insurance to protect Secondary
distributors against liability for any claims directly
or indirectly connected with the Software and
Documentation marketed by Secondary distributors
pursuant to this Agreement and (b) provide
evidence to DR. NOTES of such insurance coverage. DR.
NOTES shall be advised at least ten
(10) business days notice before cancellation or termination of
such insurance.
20. Miscellaneous Items.
A. Sole Agreement. This Agreement, including the Exhibits
hereto, constitutes the sole and
exclusive agreement between the parties and
incorporates all previous understanding, whether
written or oral, between the parties hereto.
This Agreement may be amended only by a document
executed by duly authorized representatives of both
parties.
Exclusive Jurisdiction. This Agreement shall be
governed by and construed under the laws of the
State of Florida and shall be tried under the
exclusive jurisdiction and venue of Palm Beach
County in the State of Florida.
C. Severability. If any paragraph, section or
other portion of this Agreement is declared
unenforceable, such section, paragraph or other
portion shall be deemed severed from this
Agreement and the remainder of this Agreement
shall be enforced as if the severed
paragraph section or other portion had never been
included in the Agreement.
D. Survival. Sections 7, 8, 10 through 17 and 19(G) shall
survive the termination of this Agreement.
E. Waiver. No waiver by either party of any default hereunder
shall be deemed a waiver of
any subsequent or continuing defaults.
F. Section Headings. The section headings used in this
Agreement are informational only
and form no part of the Agreement.
G. Notices. All Notices required pursuant to this
Agreement shall be sent by facsimile, with
the original sent by United States Postal
Service Certified Mail, Return Receipt
Requested, to the address first set forth above,
unless a change of such address is made by
notice pursuant to this Section, and shall be
deemed to be effective on the date indicated
by the facsimile machine that the transmission was
received. Notices to DR. NOTES shall
be to the attention of Xxxxx X. Xxxxxx, M.D. at
fax number (000) 000-0000 ore mailed to
xxxxxxxx@xxxxxxx.xxx Notices to Reseller shall be
to the attention of Xx. Xxxxx Xxxxxxxx
at fax number (000) 000-0000 and e-mailed to
XXxxxxxx@xxx.xx.xxx
H. Export Restrictions. Reseller agrees to not export the
Software or Documentation outside
of the United States.
1. Transfer of Rights. It is agreed that Reseller
shall not sublicense, assign or otherwise
transfer any of its rights or obligations under
this Agreement to any third party without the
express written consent of DR. NOTES. Nothing set
forth in this agreement shall prohibit
DR. NOTES from assigning its rights and obligations
to any third party.
J. Insolvency. Only in such case that Dr. Notes shall
file Chapter 7 and is not able to provide
support and other services under the terms and
conditions of this agreement, Dr. Notes,
Inc. agrees to provide its source code to an
escrow agent as designated by the Bankruptcy
court until such support and services are
provided to the satisfaction of the terms of this
agreement.
WHEREFORE, the parties have caused their duly authorized
representatives to affix their signature to this document as of
the dates indicated below, for the purpose of being bound hereby.
For Dr. Notes: For RESELLER
By: /s/______________ By: /s/ ________________
Its: CEO Its: Secretary/Treasurer
Date: June 29, 2005 Date: June 29, 2005
Subscriptions
Term License Fee Services Included
----- ----------- -----------------
60 Days $ 500 One Time / Dr 6 Hrs On Line Training
Unlimited Tech Support
(While Subscript. Active)
Mo to Mo $ 795 / Mo / Dr.
(No Contract) 8 Hrs On Line Training
Unlimited Tech Support
1 Yr $ 695 / Mo / Dr. 8 Hrs On Line Training
Unlimited Tech Support*
3 Yrs $ 595 / Mo / Dr. 8 Hrs On Line Training
Unlimited Tech Support*
5 Yrs $ 495 / Mo / Dr. 8 Hrs On Line Training
Unlimited Tech Support*
7 Yrs $ 395 / Mo / Dr. 8 Hrs On Line Training
Unlimited Tech Support*
10 Yrs $ 295 / Mo / Dr. 8 Hrs On Line Training
Unlimited Tech Support*
* Second Level Dr. Notes support to Reseller only. Does not
include level 1 customer support.
License Purchase
Lifetime Perpetual License Fee ... . . . . . $ 17,500 per Dr. (One Time)*
Inc. 8 Hrs On Line Training
Inc. 1 Yr Unlimited Tech Support
* Financing Available
Services
On Line Training ... $175 / Hr
On Line Training ... $300 / 2 Hr Block
University/Classroom Training (20 Group) ... $25 Hr / User
On Site Training/Implementation ... $2,250 / Day**
Tech Support (8AM to 8PM) ... $175 / Hr
Tech Support (Yearly Contract) ... $2,400 / Yr / Dr.
Customization ... $185 / Hr
Development/Programming ... $225 / Hr or by contract per SOW
** Includes Out of Pocket Expenses (Travel, Food, Lodge-Continental US)
Notice: All fees are subject to change with a 30-Day Written Notice
EXHIBIT I DR. NOTESTM SPECIALTIES AND FUTURE SPECIALTIES / ENHANCEMENTS
EXHIBIT II DR. NOTESTM PRICING
EXHIBIT III CREDIT APPLICATION (For Perpetual License Purchase Only)
EXHIBIT IV LEASE AGREEMENT (For Perpetual License Purchase Only)
EXHIBIT V SUBSCRIPTION AGREEMENT
EXHIBIT VI CREDIT CARD INFORMATION (For Perpetual License Purchase and
Subscriptions)
EXHIBIT VII END USER LICENSE AGREEMENTS (XXXX-For All Users)
a) Perpetual License Purchase
b) Subscription License
EXHIBIT VIII NONCIRCUMVENT NONDISCLOSURE AGREEMENT
