Looking for an agreement? Search from over 1 million agreements now.

License, Services & Consulting Agreements

This is an actual contract by Regen Biologics.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
LICENSE AGREEMENT


This Agreement between APACHE Medical Systems, Inc. ("APACHE") and the Vermont Oxford Network, Inc. ("Vermont Oxford") is entered into and effective as of the 24th day of June, 1997.


WHEREAS, Vermont Oxford is a non-profit corporation formed to conduct scientific research, gather scientific data and maintain databases regarding the quality, utilization, costs, outcomes and effectiveness of medical treatments and health care practices for newborn care;


WHEREAS, APACHE is a corporation that has developed and markets certain benchmark studies, software products and applications consulting services;


WHEREAS, Vermont Oxford desires to provide its members with software which will facilitate the submission and reporting of data used by Vermont Oxford in its research and the dissemination of such data;


WHEREAS, Vermont Oxford desires to expand its databases to include a broader population of patients and data items;


WHEREAS, Vermont Oxford desires for APACHE to develop software which will promote research into the outcomes and costs of neonatal medical care;


WHEREAS, The parties wish to work together to allow APACHE to incorporate Vermont Oxford databases and other items into APACHE products and services;


THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:


1. Definitions


"APACHE Perinatal Software" shall mean software developed by or for APACHE using the Databases or any extracts, aggregates or derivations thereof and Properties.


"Consulting Services" shall mean a Perinatal engagement for services in connection with clinical, administrative, financial and operational issues related to the delivery, organization and financing of Perinatal care.


"Current Databases" shall mean the following:


(i) Member Network Database - clinical database for infants under 1500 grams
born from 1990 to present;


(ii) Surfactant Trial Database;


(iii) Cost Database - twenty-five hospital cost database for infants under
1500 grams born from January 1993 to September 1994; and


(iv) Under 500 Gram Database. 2


"Data Sales" shall mean any sales, licenses or granting of the right to use the Database or any extracts, aggregates, summaries and other derivations from the Database and shall include any electronic access of the Databases including, but not limited to, interactive access.


"Databases" shall mean data elements and compilation of data elements in:


i) Current Databases and all updates and extensions thereto created during
the term of this Agreement;


ii) Future Databases related to Perinatal areas created by Vermont Oxford
within the term of this Agreement and all updates and extensions
thereto created during the term of this Agreement, except for databases
developed as part of a Research Project and


iii) future databases related to Perinatal areas developed by Vermont Oxford
within the term of this Agreement as a part of a Research Project if a
commercial opportunity arises and APACHE elects to take advantage of
such opportunity as described in Section 12(c).


"Direct Competitor" shall mean a public or private for-profit company with more than $5 million in annual sales that develops or markets software or consulting products and services which relate primarily to decision support, quality measurement and performance improvement for the medical or healthcare industry. An example of public companies who are direct competitors are those listed in APACHE's annual SEC filings.


"Future Databases" shall contain data which is routinely or periodically collected or made available for routine or periodic collection, including but not limited to annual surveys of the membership. Future Databases may include databases for bigger babies, general nursery, mothers and specific research projects for which APACHE has developed products or services.


"Perinatal" shall refer to neo-natal and obstetric areas.


"Properties" shall mean the following Vermont Oxford items:
i) Vermont Oxford Data Collection Software;
ii) Vermont Oxford Data Collection Forms;
iii) Vermont Oxford Training Materials;
iv) Vermont Oxford Severity-Adjustment Methodologies;
v) Vermont Oxford Data Collection Methodologies and Definitions;
and
vi) Formats for Vermont Oxford Quarterly and Annual Reports.


"Provider Licensees" shall mean licensees of the APACHE Perinatal Software who are hospitals, hospital groups, integrated delivery systems, physicians or physician groups.


"Research Project" shall mean a research project conducted by Vermont Oxford that is fully or partially funded by a third party who is not a Direct Competitor. 3 2. Payment Obligations


(a) As compensation for the Databases and Properties described herein, APACHE shall pay to Vermont Oxford a royalty of $[ ]* bearing interest at the current six month Treasury Bill rate. The Treasury Bill rate used for these payments will be adjusted on a semi-annual basis for the payment period. The payments shall be made in equal consecutive monthly installments over three years and shall commence on the first day of the month following delivery of the Databases and shall be due on the first day of each successive month for the three year period.


(b) During the first three years of the Initial Term of this Agreement, APACHE shall pay to Vermont Oxford a royalty of [ ]* percent ([ ]*%) of (i) APACHE Perinatal Software license fees collected by APACHE; (ii) Data Sales fees collected by APACHE; (iii) the fee for sale or license of any other product developed by or for APACHE incorporating any of the Databases or any extracts, aggregates or derivations thereof or Properties, which shall not include products ancillary to the APACHE Perinatal Software, Data Sales or Consulting Services (examples include, but are not limited to, training, installation or support) and (iv) fees collected from sublicensees of the licenses granted herein.


(c) During the final two years of the Initial Term of this Agreement, APACHE shall pay to Vermont Oxford a royalty of [ ]* percent ([ ]*%) of (i) APACHE Perinatal Software license fees collected by APACHE; (ii) Data Sales fees collected by APACHE; (iii) the fee for sale or license of any other product developed by or for APACHE incorporating any of the Databases or any extracts, aggregates or derivations thereof or Properties, which shall not include products ancillary to the APACHE Perinatal Software, Data Sales or Consulting Services (examples include, but are not limited to, training, installation or support) and (iv) fees collected from sublicensees of the licenses granted herein.


(d) During any Renewal Term, APACHE shall pay to Vermont Oxford a royalty of [ ]* percent ([ ]*%) of (i) APACHE Perinatal Software license fees collected by APACHE; (ii) Data Sales fees collected by APACHE; (iii) the fee for sale or license of any other product developed by or for APACHE incorporating any of the Databases or any extracts, aggregates or derivations thereof or Properties, which shall not include products ancillary to the APACHE Perinatal Software, Data Sales or Consulting Services (examples include, but are not limited to, training, installation or support) and (iv) fees collected from sublicensees of the licenses granted herein.


(e) For purposes of calculating the royalty payable to Vermont Oxford, if any APACHE product or service upon which royalties are payable is bundled with other products or services in such a manner that the fee upon which the royalty is to be computed cannot be determined, the royalty shall be based (i) in the case of a product (including Data Sales) upon the average fee of the specific type of product when sold individually over the past year and (ii) in the case of a Consulting Service, a reasonable allocation of the total fee shall be made to the Consulting Service.


__________________________________


* Confidential portions omitted and filed separately with the Commission. 4


(f) During the Initial Term and any Renewal Terms, APACHE shall pay to Vermont Oxford a royalty of [ ]* percent ([ ]*%) of fees for Consulting Services collected by APACHE. This royalty shall be reviewed annually by the parties and may be changed by mutual agreement in writing. If there is not mutual agreement for a change in this royalty, the rate will remain at [ ]* percent ([ ]*%).


(g) During the Initial Term and any Renewal Term, if APACHE develops a product or service as a result of a commercial opportunity from a Research Project as described in Section 12(c) APACHE shall pay to Vermont Oxford the appropriate royalty as defined in Section 2(b) (except that the royalty shall be [ ]*%), 2(c) or 2(f) for a period of five (5) years from the date the APACHE product or service developed from the commercial opportunity enters the market. The five year period for payment of this royalty may exceed the date of termination of this Agreement. If this occurs, except as provided in Section 14(d), the payment obligations shall continue beyond the date of termination of this Agreement until the five year period has expired. If the five year period is completed prior to the date of termination of this Agreement, then the royalty shall continue in accordance with the provisions of Section 2(d) or 2(f) as appropriate for the remainder of the Renewal Terms of this Agreement.


(h) During the Initial Term and any Renewal Term, if APACHE develops a product as a result of the right of first opportunity to develop software not containing the Databases and Properties as described in Section 7, APACHE shall pay to Vermont Oxford the appropriate royalty as defined in Section 2(b) (except that the royalty shall be [ ]*%) or 2(c) for a period of five (5) years from the date the APACHE product or service enters the market. The five year period for payment of this royalty may exceed the date of termination of this Agreement. If this occurs, except as provided in Section 14(d), the payment obligations shall continue beyond the date of termination of this Agreement until the five year period has expired. If the five year period is completed prior to the date of termination of this Agreement, then the royalty shall continue in accordance with the provisions of Section 2(d) for the remainder of the Renewal Terms of this Agreement.


(i) Royalties shall be paid to Vermont Oxford on a quarterly basis. The payment shall be payable to Vermont Oxford thirty (30) days after the end of the quarter.


(j) Failure by APACHE to make any payment within 30 days of when such payments are due shall result in the imposition of an interest charge on any unpaid amount at an annual rate equivalent to the lesser of (i) 1% per month or (ii) the highest rate allowable by law.


3. License Grants


(a) Vermont Oxford grants to APACHE an exclusive, non-transferable license to use, including the right to incorporate into APACHE products and services, modify, enhance, market, distribute and sublicense, the Databases and Properties. Except as otherwise expressly limited in this Agreement, Vermont Oxford retains its rights to use the Databases.


__________________________________


* Confidential portions omitted and filed separately with the Commission.


5


(b) APACHE shall not sublicense or otherwise grant the right to a third party to use (i) the Databases as a whole or (ii) the raw data or subsets of the raw data in the Databases.


(c) Subject to the provisions of this Agreement, Vermont Oxford shall maintain any and all ownership rights with regard to the Databases and updates, subsets and extracts of and data derived from the Databases and the Properties. APACHE shall own any and all rights to any material modifications thereof developed by APACHE, data resulting from material modifications developed by APACHE and any new risk models or other products or services based on or derived from the Databases or Properties that are developed by APACHE. The parties will not contest each other's ownership rights as described in this Section 3(c).


(d) Vermont Oxford grants to APACHE the right to use the name of Vermont Oxford for marketing purposes in connection with the Databases that will be incorporated into APACHE software. All other uses of the Vermont Oxford name must be approved in writing by Vermont Oxford provided that:


(i) APACHE and Vermont Oxford shall mutually agree upon a
Press Release announcing the relationship;


(ii) APACHE has the ability to say, in the marketplace,
that APACHE has a relationship with Vermont Oxford; and


(iii) Vermont Oxford endorses APACHE as the exclusive provider
of APACHE Perinatal Software and Consulting Services to its
membership.


APACHE acknowledges the ownership of the "Vermont Oxford" and "Vermont Oxford Network" name and service mark by Vermont Oxford and agrees not to dispute such ownership. APACHE may not grant to third parties the right to use the "Vermont Oxford" and "Vermont Oxford Network" name without the written consent of Vermont Oxford.


4. Delivery, Updates and Database Maintenance


(a) Vermont Oxford shall deliver the Databases and Properties to APACHE by June 30, 1997.


(b) Vermont Oxford shall deliver Updates to the Databases to APACHE within forty-five (45) days from the end of each quarter. "Updates" shall mean updated data for all Databases.


(c) The Databases shall contain all the data elements submitted to Vermont Oxford by its members, including hospital size, region and teaching status, with the exception that (i) hospital, patient and physician names will be replaced by identification codes and (ii) the address will be replaced by a region code. The region code will represent a geographic area consistent with the AHA regions with the exception that no region will contain less than ten (10) hospitals. If a region contains less than ten (10) hospitals, Vermont Oxford will discuss with APACHE which regions will be combined. 6


5. Exclusivity


(a) Vermont Oxford shall not independently develop or contract for development of software incorporating the Databases or Properties except for software developed for internal purposes and except that Vermont Oxford may develop software that it determines is necessary or useful as a part of a Research Project.


(b) Vermont Oxford shall not provide Consulting Services except for interaction with the Vermont Oxford members to conduct Research Projects. However, Vermont Oxford may provide Advisory Services to the Vermont Oxford membership which are not intended to compete with the Consulting Services provided by APACHE to such members. Advisory Services consist of the following (i) reasonable responses to Vermont Oxford members to provide advice and assistance with respect to collection, interpretation and clinical use of the data; (ii) interaction with the Vermont Oxford members to expedite Vermont Oxford's responsibilities to build and maintain the Databases; and (iii) interaction with the Vermont Oxford members to conduct Research Projects.


(c) Vermont Oxford may collaborate with other organizations to facilitate Research Projects, so long as those organizations are not Direct Competitors of APACHE.


(d) Vermont Oxford will not provide access to the Databases through the Internet, unless such access is incorporated into an APACHE product.


(e) No provision of this Agreement is intended to restrict the right of Vermont Oxford to conduct research and to disseminate the results of such research to the interested public through publication of articles in scientific journals, public presentations at symposiums and the like and other similar activities; provided, however, the foregoing shall not be interpreted to authorize Vermont Oxford to disclose confidential information of APACHE in violation of Section 18 of this Agreement.


6. Development


(a) APACHE shall develop the APACHE Perinatal Software, Data Sales and Consulting Services and any other product developed by or for APACHE incorporating any of the Databases or any extracts, aggregates or derivations thereof or Properties, so that the end-user will not be able to identify or access any patient identifier, hospital identifier or physician identifier from another hospital, hospital group, integrated delivery system or physician group unless APACHE has received permission from such other hospital, hospital group, integrated delivery system or physician group and such hospital, hospital group, integrated delivery system or physician group provides APACHE with such identifying information.


(b) APACHE Perinatal Software, Data Sales and Consulting Services will be developed in accordance with industry standards. APACHE will maintain quality assurance procedures for the APACHE Perinatal Software. 7


(c) APACHE will grant to Vermont Oxford a perpetual license to use the APACHE Perinatal Software for internal purposes so long as Vermont Oxford is not in breach of the license agreement with respect to such software. APACHE will provide the software to Vermont Oxford pursuant to an executed license agreement with APACHE which shall be in the standard form of license agreement for such software. There shall be no license fee for the APACHE Perinatal Software. After termination of this Agreement, Vermont Oxford shall pay support fees to APACHE at a 30% discount from the standard fee charged by APACHE for the APACHE Perinatal Software.


(d) Obligations for both parties in 1997 shall consist of the following:
(i) For the remainder of 1997, Vermont Oxford and members continue submitting and processing data as usual;
(ii) Vermont Oxford transmits data files containing databases to APACHE quarterly/annually;
(iii) By December 1997, APACHE will produce Vermont Oxford member NICU specific database (which may be an Access database) and reporting/analysis tool (which may be a Cognos reporting/analysis tool) for each physician group or hospital purchasing software from APACHE;
(iv) If substantiated by market research, APACHE will develop a data collection software tool in the 1998 - 1999 timeframe.


(e) APACHE agreements with its clients for products or services directly involving the Databases, the Vermont Oxford data entry software source code and the Vermont Oxford risk models delivered as a part of the Properties shall contain terms protecting the confidentiality of the Databases, the Vermont Oxford data entry software source code and the Vermont Oxford risk models delivered as a part of the Properties. Vermont Oxford will be made a third party beneficiary of such provisions.


(f) APACHE standard support fees are 18% of the license fees. APACHE anticipates using the same standard support for the APACHE Perinatal Software.


7. Right of First Opportunity for Additional Development


If Vermont Oxford decides that its membership would benefit from development of a software application which does not contain the Databases and Properties, then APACHE shall have the right of first opportunity to develop such software. When Vermont Oxford decides that such software should be developed, Vermont Oxford shall notify APACHE in writing. APACHE shall then notify Vermont Oxford in writing within forty-five (45) days of receipt of the written notice from Vermont Oxford as to whether or not APACHE accepts the opportunity. If APACHE fails to elect or refuses the opportunity, Vermont Oxford may offer the opportunity to a third party provided that the third party is not a Direct Competitor of APACHE


8. Vermont Oxford Membership


(a) APACHE shall require Provider Licensees to be Vermont Oxford members. 8


(b) APACHE and Vermont Oxford shall annually meet to discuss concerns of APACHE, if any, that the amount of the Vermont Oxford membership fee is prohibiting software sales.


9. Data Collection and Submission


(a) For so long as data submission by the Provider Licensees of data included in the Member Network Database does not require the merging of two or more data sources, the data shall be submitted by Provider Licensees to Vermont Oxford and APACHE shall not collect data directly from the Provider Licensees. Vermont Oxford shall then deliver the data to APACHE within forty-five (45) days from the end of the quarter.


(b) If Vermont Oxford does not submit data to APACHE within the time stated in this Agreement, APACHE may collect data directly from the Provider Licensees.


(c) Once data submission requires the merging of two or more data sources, APACHE shall collect data directly from the Provider Licensees.


(d) If APACHE is collecting data directly from Provider Licensees, APACHE agrees to deliver to Vermont Oxford updates to the Databases within 45 days from the end of each quarter. APACHE agrees to submit these updates in the data record format described in Section 10 or another usable format as APACHE deems appropriate.


(e) APACHE shall not collect data from Vermont Oxford members who are not Provider Licensees for use in updating the Member Network Database.


10. Data Record Format


(a) APACHE will grant to Vermont Oxford a perpetual license, so long as Vermont Oxford is not in breach of the license agreement with respect to such software, to the necessary software tool to allow Provider Licensees to transmit data electronically to Vermont Oxford in the data record format described in 10(b) which will be in the form of a SAS dataset or any other mutually agreeable format. APACHE will provide the necessary software tool to Vermont Oxford pursuant to an executed license agreement with APACHE which shall be in the standard form of license agreement for such software. There shall be no license fee. Vermont Oxford shall pay support fees, if any, for the software tool if the software tool is not developed by APACHE. If the software tool is an APACHE developed software tool, after termination of this Agreement, Vermont Oxford shall pay support fees to APACHE at a 30% discount from the standard fee charged by APACHE.


(b) APACHE and Vermont Oxford shall develop a data record format that will be jointly owned by the parties with no duty of accounting with respect to the jointly owned work. 9 11. Quarterly Status Meetings


Each calendar quarter, at least one officer of APACHE and one officer of Vermont Oxford shall meet in person for one day at a location to be determined by the parties.


12. Research Projects


(a) Vermont Oxford plans to conduct Research Projects for the benefit of its membership and the interested public.


(b) If future databases are developed exclusive of APACHE as a part of a Research Project then APACHE will not have rights to such databases except as described below.


(c) If a Perinatal commercial opportunity arises as a result of a Research Project, then APACHE shall have a right of first opportunity to utilize the Perinatal commercial opportunity. When Vermont Oxford determines that a Perinatal commercial opportunity to develop a product or service is available, Vermont Oxford shall notify APACHE in writing. APACHE shall then notify Vermont Oxford in writing within forty-five (45) days of receipt of such written notice from Vermont Oxford as to whether or not APACHE accepts the opportunity. If APACHE accepts the opportunity and APACHE determines that use of the databases created as a result of the Research Project is necessary or useful then, any database created as a result of the Research Project will be included in the definition and license of Databases. If APACHE does not elect or refuses the opportunity, Vermont Oxford may offer the opportunity to a third party provided that the third party is not a Direct Competitor of APACHE.


(d) If APACHE accepts the right of first opportunity as described in Section 12(c) and if a software prototype is developed as a part of the Research Project, Vermont Oxford shall notify APACHE in writing of the development of a software prototype as part of a Research Project which it desires to sell to APACHE. If APACHE desires to negotiate for the purchase of such prototype software, it shall notify Vermont Oxford in writing within forty-five (45) days of receipt of such notice from Vermont Oxford of its election to do so. If APACHE does not choose to purchase the prototype, this will not impact APACHE's acceptance of the right of first opportunity as described in Section 12(c). If APACHE chooses to utilize the right of first opportunity described in Section 12(c), but not purchase the prototype, Vermont Oxford agrees it will not offer or sell the software to any other entity. If APACHE does not elect or refuses the right of first opportunity as described in Section 12(c), Vermont Oxford may offer the software prototype to a third party provided that the third party is not a Direct Competitor of APACHE


13. Reporting


(a) Each royalty payment shall be accompanied by a report from APACHE that lists the number of software licenses and data sales generated during the calendar quarter and the software license fees and data sales fees received during such quarter. 10
(b) Vermont Oxford may audit APACHE's books and records of activities in connection with this Agreement upon reasonable notice to APACHE for the purpose of ensuring compliance with the terms and conditions of this Agreement. Any such inspection or audit shall be conducted no more than annually and in such a way as to not unreasonably interfere with APACHE's business operations. APACHE will reimburse Vermont Oxford for the cost of the audit if there are any unreported or underreported royalties of more than five percent (5%) for any one year period.


14. Term and Termination.


(a) The term of this Agreement shall commence upon execution of the Agreement and shall continue for a period of five (5) years unless otherwise terminated in accordance with this Agreement ("Initial Term").


(b) This agreement shall automatically renew for successive five year terms (Renewal Terms) which shall commence on the five (5) year anniversary of the date of execution or renewal of the Agreement and shall continue for a period of five (5) years. Vermont Oxford may terminate this Agreement at the end of the Initial Term or any Renewal Term upon six (6) months written notice to APACHE. During the Renewal Terms, the terms and conditions of this Agreement shall remain in effect except that APACHE's sole payment obligations shall be as stated in Sections 2(d), 2(f), 2(g) and 2(h).


(c) The exclusivity of the rights granted hereunder shall automatically terminate when this Agreement is terminated or expires. Upon termination or expiration of this Agreement, APACHE shall maintain a perpetual license to use, including the right to incorporate into APACHE products and services, modify, enhance, market, distribute and sublicense the Databases and Properties. If APACHE is in material breach of the terms of (i) Section 18 (Confidentiality) and has not cured such breach within ten (10) days of receiving written notice from Vermont Oxford of the breach or (ii) Section 17 (Indemnification) and has not cured such breach within thirty (30) days of receiving written notice from Vermont Oxford of the breach or (iii) Section 2(a) (Payment) (other than for a bona-fide dispute) and has not cured such breach within ninety (90) days of receiving written notice from Vermont Oxford of the breach then Vermont Oxford may terminate this Agreement and APACHE shall not maintain the perpetual license. The termination rights contained herein shall be the only right of termination for breach which Vermont Oxford shall have.


(d) If Vermont Oxford is in material breach of the terms of (i) Section 18 (Confidentiality) and has no
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |