Attached files
Exhibit 10.15
Microsoft Confidential
COLLABORATION AGREEMENT
This Collaboration Agreement (Agreement) is effective as of August 14, 2009 (Effective Date)
between Robertson Technologies Licensing LLC, a Nevada limited liability company located at 4215
Fashion Square Blvd, Suite 3, Saginaw, MI 48603 and its Affiliates (collectively, Robertson) and
Microsoft Corporation, a Washington corporation with principal offices at One Microsoft Way,
Redmond, WA 98052-6399 (Microsoft).
Recitals
A. | Robertson has developed a versatile, interactive knowledge management system that can be
displayed on multiple platforms and is intended to improve timeliness and accuracy of medical
diagnostics. |
B. | Microsoft has developed a mobile services platform that will allow mobile device users to
access certain mobile applications and associated web services from their mobile devices. |
C. | The parties are interested in working together to provide mobile device users with access to
Robertsons knowledge management system through mobile applications that use Microsofts
mobile services platform, all as set forth in this Agreement. |
D. | Accordingly and in consideration of the mutual covenants and conditions stated below, the
adequacy of which the parties hereby acknowledge, Microsoft and Robertson agree as follows: |
Agreement
1. | Definitions |
1.1 | Affiliate means, with respect to a given party, any company or other legally
recognizable entity that is controlled by, controls, or is under common control with such
party. Control means direct or indirect (e.g., through any number of successive tiers)
ownership of (a) more than 50% of the outstanding shares having the right to vote for the
election of directors or other managing authority of the subject entity; or (b) in the case
of an entity which does not have outstanding shares (e.g. a partnership, joint venture or
unincorporated association), more than 50% of the ownership interests having the right to
make decisions for the subject entity. Each such corporation, company, or entity will be
deemed an Affiliate only so long as such ownership or control exists. |
1.2 | End User means an end user of a mobile device. |
1.3 | Excluded License means any license that (i) requires, as a condition of use,
modification, and/or distribution of software subject to such license, that such software,
and/or other software combined or distributed with such software, be (a) disclosed or
distributed in Source Code form; or (b) licensed for the purpose of making derivative
works; or (c) redistributable at no charge, or (ii) is the GNU General Public License
version 3, the GNU Affero General Public License version 3, the GNU Lesser General Public
License version 3, or any other license or contract that includes terms similar to
paragraphs 5, 6 or 7 of Section 11 of the GNU General Public License version 3. |
Microsoft Confidential
1.4 | HM Applet means the mobile device software applet application developed and owned by
Microsoft in accordance with the Specifications, for use on the OneApp Platform. The HM
Applet may be provided in source or object form, with or without application programming
interfaces, in Microsofts sole discretion. The HM Applet includes any Updates provided by
Microsoft, which if provided will be provided without charge. |
1.5 | HM Revenue means Net Revenue received by Robertson (i.e., including any of its
Affiliates) from the distribution, use or commercialization of the Robertson Health Engine
with mobile device connections or the HM Applet, including without limitation subscription
service revenues for access from the Robertson Health Engine or HM Applet (solely, or in
addition to other points of access such as through PCs) to the Robertson Health Engine, as
further described in Exhibit C. Net Revenue as used herein means gross revenue
received minus only documented bad debt, returns, and cost of goods sold, each of which
deductions shall be calculated in accordance with generally accepted accounting principles. |
1.6 | HM System means the combination of the Robertson Health Engine, and Microsofts HM
Applet used to access the Robertson Health Engine. |
1.7 | Microsoft Revenue Share means the revenue share to be paid by Robertson to Microsoft
as described in Section 7.2 below |
1.8 | Object Code means machine-readable computer software code generated from Source Code
by a compiler, interpreter, assembler, or similar technology. |
1.9 | OneApp Code means certain APIs, documentation, tools, Object Code, and/or code
samples. The OneApp Code includes any Updates thereto that Microsoft, in its sole
discretion, may provide to Robertson during the Term. |
1.10 | OneApp Platform means a mobile platform developed by Microsoft that provides for the
development, distribution and use of applets on certain mobile devices. |
1.11 | Robertson Health Engine means a web-enabled service for mobile applications developed
in accordance with the Specifications, and any subsequent derivatives thereof, that is made
available by or on behalf of Robertson or its Affiliates (either independently or in
conjunction with third parties) that, among other things, hosts healthcare-related content,
provides diagnostic information, and/or stores electronic health records. |
1.12 | Source Code means computer software program instructions that must be translated by a
compiler, interpreter, or assembler into Object Code before execution, and any accompanying
documentation. |
1.13 | Specifications means the agreed-upon specifications for the HM System attached hereto
as Exhibit B. |
1.14 | Term has the meaning given in Section 11.1 below. |
1.15 | Territory means the countries set forth in Exhibit D. |
1.16 | Updates mean any correction, improvement, bug fix, revision, enhancement,
localization, update, upgrade or other modification. |
2
Microsoft Confidential
2. | Development. |
2.1 | Development. Robertson will develop the Robertson Health Engine in accordance with the
Specifications, and make it available to Microsoft in accordance with the schedule set
forth in Exhibit A. Microsoft will develop the HM Applet in accordance with the
Specifications and make it available to Robertson in accordance with the schedule set forth
in Exhibit A. |
2.2 | Specifications. The parties will work together in good faith to determine whether its
deliverables in Section 2.1 have been met, in accordance with Exhibit B. If
Robertson fails to meet its obligations to develop the Robertson Health Engine in
accordance with the Specifications, then Microsoft may withhold any payments due under
Section 7.1. |
3. | Microsoft License. |
3.1 | License. |
(a) | Upon delivery to Robertson of the HM Applet and the OneApp Code in accordance
with the schedule set forth in Exhibit A, Microsoft grants to Robertson a
limited, personal, nonexclusive, nontransferable, non-assignable, royalty-free license
for the Term to internally use, test and evaluate the HM Applet and the OneApp Code. |
(b) | Once the HM Applet is accepted by Robertson as meeting the Specifications in
accordance with Exhibit B, and subject to compliance with the terms and
conditions of this Agreement (including Section 3.2), Microsoft grants to Robertson a
limited, personal, nonexclusive, nontransferable, nonassignable, royalty-free license
for the Term to use the HM Applet and the OneApp Code for the following purposes: |
(i) | Use, modify and create derivative works of the HM Applet (such
derivative works, the HM Applet Derivative Works) for Robertsons use in
designing, developing and testing the Robertson Health Engine and solely for the
OneApp Platform; |
(ii) | Use the OneApp Code solely for the purposes of developing and
testing the HM Applet; and |
(iii) | Copy, sublicense and distribute the HM Applet and the HM Applet
Derivative Works as part of the HM System in Object Code form only to End Users
in the Territory. |
3.2 | Restrictions. The following restrictions apply to the license grant set forth in
Section 3.1: |
(a) | Territory. Robertson may only make the HM Applet and the HM System available in
the Territory. Robertson may request that Microsoft add countries to the Territory,
which Microsoft may agree in its sole discretion. Any additional agreed countries shall
be added by amendment to this Agreement. |
(b) | Platform. Robertson agrees that during the Term, unless otherwise approved by
Microsoft in its sole discretion, which approval will not be unreasonably withheld, the
HM Applet and any HM Applet Derivative Works thereof may only be used, developed or
distributed for the OneApp Platform. In the event that Microsoft provides its approval
under this Section 3.2(b), the HM Revenue share in Section 7.2 to Microsoft shall
increase from forty percent
(40%) to fifty percent (50%) with respect to HM Revenue earned from non-OneApp
Platforms. |
3
Microsoft Confidential
(c) | End User License Agreement; No Excluded Licenses. Any license of the
HM Applet by Robertson to end users under Section 3.1(b) is subject to end users
entering into the minimum end user license terms set forth in Exhibit C and as
may be amended from time to time per Section 3.3. The license grant set forth in
Section 3.1 does not include any license, right, power or authority to subject the
OneApp Code or the HM Applet or derivative works thereof, including without limitation
the HM Applet Derivative Works, in whole or in part, to any of the terms of an Excluded
License. |
(d) | Branding. Any distribution by Robertson of the HM Applet, or derivative works
thereof, under Section 3.1(b) shall include branding from Microsoft as mutually agreed
by the parties in writing. This Agreement does not grant Robertson any other license
or other right to use or display any name, trade name, logo, trademark or other
identifier of Microsoft. |
(e) | Affiliates. Robertson shall be responsible for all rights and obligations
under this Agreement that are granted to or belong to Robertsons Affiliates. As of
the Effective Date of this Agreement, Robertson shall have entered into written
agreements with its Affiliates that require their compliance with the terms of this
Agreement. |
(f) | No Excluded Licenses. Robertson will not subject the HM System, in whole or in
part, to an Excluded License. Robertson acknowledges that breach of this section shall
not be compensable by monetary damages, and that Microsoft shall be entitled to
injunctive relief in addition to all other remedies available to it under law. |
3.3 | Minimum End User License Terms Updates. Upon reasonable notice to Robertson, Microsoft
may update the minimum end user license terms set forth in Exhibit C to address
changes to the features and/or behavior of the HM Applet. Such updates are subject to
Robertsons approval, which approval shall not be unreasonably withheld. |
4. | Robertson License Grant |
Upon creation of the HM Applet Derivative Works, Robertson grants to Microsoft and its
Affiliates, on behalf of Robertson and its Affiliates, a worldwide, non-exclusive (subject to
Robertsons license set forth in Section 3.1), perpetual, irrevocable, royalty-free,
sublicensable, fully paid-up right and license to make, have made, use, sell, offer for sale,
import, reproduce, disclose, publicly perform, publicly display, and create derivative works of
the HM Applet Derivative Works.
5. | Ownership; Reservation of Rights; Non-Exclusivity. |
5.1 | Ownership/Reservation of Rights. Microsoft agrees that nothing in this Agreement
assigns or transfers to Microsoft (or its Affiliates) any ownership rights in any Robertson
(or Robertson Affiliate) product, service, or technology, including the Robertson Health
Engine, and Robertson agrees that nothing in this Agreement assigns or transfers to
Robertson (or its Affiliates) any ownership rights in any Microsoft (or Microsoft
Affiliate) product, service, or technology, including the OneApp Platform and the HM
Applet. Each party reserves all rights that it does not expressly grant to the other party
in this Agreement. No additional rights are granted by implication, estoppel or otherwise. |
4
Microsoft Confidential
5.2 | Non-Exclusivity/Freedom to Innovate. The parties obligations under this Agreement are
non-exclusive. Notwithstanding anything in this Agreement to the contrary, the
restrictions set forth in this Agreement shall not restrict or limit the right of any party
to (a) independently design, develop, acquire, market, service or otherwise deal in,
directly or indirectly, products, services or technology competitive with those of the
other party; or (b) assign personnel for any purpose. Further, nothing in this Agreement
shall obligate any party to exercise the license rights granted to such party by another
party under this Agreement. |
6. | Customer Support |
Robertson and Microsoft agree that, as between the two parties, Robertson is solely responsible
for providing end-user customer support for the Robertson Health Engine and HM Applet, and
Microsoft is solely responsible for providing technical support to Robertson for the HM Applet.
7. | Payments. |
7.1 | From Microsoft to Robertson. |
(a) | Development Fee. In full and complete consideration for the license and other
rights granted to Microsoft in Section 4 above, Microsoft will pay Robertson a total of
One Hundred Thirty-Three Thousand Dollars (US$133,000) as follows: |
(i) | Fifty Thousand Dollars (US$50,000) to be paid within thirty (30) days
following the Effective Date; and |
(ii) | Eighty-Three Thousand Dollars (US$83,000) to be paid within thirty days
following, and conditioned upon, the Robertson Health Engine meeting the
Specifications. |
(b) | Advertising. In the event that Robertson makes advertising available as part
of the HM System through the HM Applet, Robertson will provide Microsoft a right of
first refusal to provide any advertising via the HM System or to deliver services of
the Robertson Health Engine through mobile phones. The parties will enter into a
separate advertising agreement which will include roles and responsibilities with
respect to advertising, as well as any revenue sharing agreements. |
(c) | No Other Payments Due from Microsoft. Except as set forth in Section 7.1(a)
and 7.1(b) above, no additional amounts are due from Microsoft to Robertson under this
Agreement. |
7.2 | From Robertson to Microsoft. In exchange for the licenses, funding for the
web-enablement of the Robertson Health Engine, and other activities under this Agreement,
Robertson will pay Microsoft forty percent (40%) of all HM Revenue (or fifty percent (50%)
if applicable under Section 3.2(b)) derived from mobile device connections to the Robertson
Health Engine or revenue from the HM System. |
7.3 | Monthly Reporting and Payment by Robertson of Microsoft Revenue Share. Within thirty
(30) days following the last day of each calendar month during the Term, Robertson will
deliver to Microsoft a report detailing the revenue sharing in Section 7.2 above that was
received during the preceding calendar month and the corresponding Microsoft Revenue Share,
in a format specified by Microsoft, together with payment to Microsoft for the Microsoft
Revenue Share for the preceding month. |
5
Microsoft Confidential
7.4 | Expenses. Each party is solely responsible for the expenses it may incur to perform
its obligations and carry out the activities described hereunder, except where expressly
provided otherwise in this Agreement. |
7.5 | Payment Terms. Upon receipt of properly submitted invoices from Robertson, Microsoft
will pay such invoice net thirty (30) days, in U.S. Dollars. Any party to whom payment is
owed under this Agreement may assess and the other party will then pay the lesser of (a) a
one and one-half percent (1.5%) monthly charge, and (b) the highest amount permitted by
applicable law with respect to late charges, on all amounts that are past due from the date
due through and including the date payment is received in full |
7.6 | Microsoft Invoice Tool. Robertson will invoice Microsoft for all amounts due under
this Agreement via the Microsoft Invoice online tool, in accordance with and subject to the
terms of the then-current requirements set forth at http://invoice.microsoft.com. |
7.7 | Payment Method. Microsoft will make payments according to its then-current payment
policies, which may include payment via ACH electronic payment to Robertsons financial
institution pursuant to instructions supplied to Microsoft by Robertson in Microsofts ACH
Electronic Payment form. |
7.8 | Record Keeping and Audits. Robertson will maintain accurate and adequate books and
records related to its compliance with all terms and conditions of this Agreement until the
date that is three years following the expiration or termination of this Agreement.
Robertson will provide an internationally recognized independent certified public
accountant selected by Microsoft and approved by Robertson (such approval not to be
unreasonably delayed or withheld) with access to Robertsons books and records related to
its compliance with this Agreement for purposes of verifying compliance with this
Agreement. Audits will be conducted during regular business hours at Robertsons
facilities. Audits will not be performed more than once every twelve (12) months, unless
an audit discloses a Material Discrepancy, in which case follow-up audits may be conducted
until the Material Discrepancy has been resolved. Robertson will pay the costs of any
audit(s) that reveal a Material Discrepancy within thirty (30) days of receipt of an
invoice for such costs; otherwise, Microsoft will be responsible for the costs. Material
Discrepancy means a discrepancy of ten percent (10%) or more when compared to the amount
that was reported during the period subject to audit. |
7.9 | Taxes. |
(a) | Microsoft is not liable for any taxes that Robertson is legally obligated to
pay in connection with this Agreement, and all such taxes (including but not limited to
net income or gross receipts taxes, franchise taxes, and/or property taxes) will be the
financial responsibility of Robertson, provided that Microsoft will pay to Robertson
any sales taxes that are owed by Microsoft solely as a result of entering into this
Agreement and which are required to be collected from Microsoft by Robertson under
applicable law. Microsoft may provide to Robertson a valid exemption certificate, in
which case Robertson will not collect the taxes covered by such certificate. |
(b) | If taxes are required to be withheld on any amounts otherwise to be paid by
Microsoft to Robertson, Microsoft will deduct such taxes from the amount otherwise owed
and pay them to the appropriate taxing authority. Microsoft shall secure and deliver
to Robertson an official receipt for any taxes withheld. |
6
Microsoft Confidential
(c) | This tax section will govern the treatment of all taxes arising as a result of
or in connection with this Agreement notwithstanding any other section of this
Agreement. |
8. | Marketing and Publicity |
8.1 | Marketing. The parties agree to develop a mutually acceptable marketing plan for the
HM System, including cross-promotion for the OneApp Platform. |
8.2 | Publicity. Robertson and Microsoft will mutually agree to issue no later than December
31, 2009 a joint press release (text to be agreed upon in advance) publicizing the
collaboration under this Agreement. Otherwise, neither party will issue a press release
regarding any aspect of the parties business relationship under this Agreement, without
the other partys prior written consent. |
9. | Confidentiality |
The parties agree that all disclosures between Robertson and Microsoft under this Agreement
shall be governed by the Non-Disclosure Agreement entered into by and between Robertson and
Microsoft effective on October 5, 2005 (NDA). Upon issuance of the press release described in
Section 8.2 above, the existence of this Agreement will not be confidential. Except as
otherwise expressly provided herein or otherwise agreed between the parties in writing, however,
all terms and conditions in this Agreement shall be kept in confidence. If there is an
inconsistency between the NDA and this Agreement, then this Agreement shall control but solely
to the extent of the inconsistency.
10. | Representations, Warranties, Disclaimers, Indemnification, Limitations of
Liability |
10.1 | Representations and Warranties. The parties make the following representations and
warranties: |
(a) | Organization, Good Standing, and Authority. Each party is a corporation duly
organized, validly existing and in good standing, and has all requisite power and
authority to enter into this Agreement and consummate the transactions contemplated
herein; and the individual signing on such partys behalf has full authority to bind it
to this Agreement. |
(b) | Compliance with Laws. Robertson represents and warrants that the operation,
distribution, management and availability of the HM System to End Users and otherwise
will comply with all applicable laws and regulations, including privacy and data
sharing laws. |
10.2 | Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 10.1 ABOVE, EACH PARTY DISCLAIMS
ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE) WITH RESPECT
TO ANY AND ALL SOFTWARE, DOCUMENTATION OR OTHER TECHNOLOGY OR MATERIAL (MATERIAL)
PROVIDED BY EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING
AND EXCEPT AS SET FORTH IN SECTION 10.1, THERE ARE NO WARRANTIES OF TITLE
OR NON-INFRINGEMENT WITH RESPECT TO USE OF ANY MATERIAL PROVIDED BY EITHER PARTY TO THE
OTHER HEREUNDER. |
7
Microsoft Confidential
10.3 | Duty to Defend. Each Party (respectively, the Defending Party) will defend the other
Party seeking defense (the Defended Party) in a lawsuit or other judicial action (a
Claim), and pay the amount of any adverse final judgment (after any appeals) or
settlement to which the Defended Party consents, for any Claim made by an unaffiliated
third party to the extent such Claim, if true as alleged, would constitute (i) a breach of
the representations and warranties made by the Defending Party in this Agreement, (ii) a
material breach of Defending Partys obligations pursuant to this Agreement, or (iii) a
Claim that a Defended Partys use of the Defending Partys software, services, information,
logos, trademarks, or documentation provided under this Agreement (collectively, the
Materials) infringes any U.S. patent, copyright, trademark or trade secret of a third
party, to the extent such Claim arises directly from use of the Defending Partys
Materials, and such Claim would not have arisen but for such use. Such indemnification does
not extend to Claims arising from an Defended Partys use of any technologies that may also
be necessary to use any or all of the Defending Partys Materials, but which technologies
are not themselves expressly part of the Materials (e.g., enabling technologies). |
10.4 | Conditions. With regard to any Claim, either Partys obligations are subject to the
following conditions: (a) the Defended Party must promptly notify the Defending Party in
writing of the Claim; (b) the Defending Party will have sole control over defense or
settlement of the Claim; and (c) the Defended Party must provide the Defending Party with
reasonable assistance in the defense of the Claim, for which the Defending Party will
reimburse the Defended Partys reasonable out-of-pocket expenses. The Defended Party will
have the right to employ separate counsel and participate in the defense at the Defended
Partys expense. The Defending Party may not settle the claim without the Defended Partys
prior written consent, if such settlement would result in any admission or liability by the
Defended Party or limitation upon the future actions of the Defended Party. |
10.5 | EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
WILL ANY PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR
INDIRECT DAMAGES WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED THAT THIS SECTION 10.5
SHALL NOT APPLY TO (A) A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 ABOVE,
OR (B) THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10. |
10.6 | LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL
MAXIMUM LIABILITY OF MICROSOFT TO ROBERTSON FOR ANY AND ALL CLAIMS WHATSOEVER ARISING OUT
OF OR UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY MICROSOFT TO ROBERTSON
HEREUNDER. |
10.7 | Application. The limitations on and exclusions of liability for damages under Sections
10.5 and 10.6 apply regardless of the form of action, regardless of whether any remedy
otherwise provided under this Agreement, at law or equity has failed its essential purpose,
and regardless of whether the liability is based on breach of contract, tort (including
negligence), strict liability,
breach of warranty, or any other legal theory. For avoidance of doubt, for purposes of
Robertsons liability to Microsoft under this Agreement (and Robertsons duty to defend and
pay judgments under Section 10.3), Robertson includes all of Robertsons Affiliates
(including Robertson Wellness, LLC and NxOpinion, LLC). |
8
Microsoft Confidential
11. | Term and Termination |
11.1 | Term. The term of this Agreement will commence on the Effective Date and continue
until December 31, 2012, unless terminated earlier under Section 11.2 (Term). |
11.2 | Termination for Cause. |
(a) | Subject to Section 11.2(b) below, either Microsoft or Robertson may terminate
this Agreement on written notice if the other party materially breaches this Agreement
and such material breach remains uncured for thirty (30) days following expiration
written notice of same from the other party. |
(b) | Either party may terminate this Agreement immediately upon written notice if
the other party breaches Section 9 of this Agreement. |
11.3 | Effect of Expiration or Termination. |
(a) | General. Termination of this Agreement will be without prejudice to any right
or remedy of any party arising out of any breach hereof. |
(b) | Any Expiration or Termination. Upon termination or expiration of this
Agreement for any reason, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11.3 and 12 and all
Exhibits referenced in the foregoing Sections shall survive such termination or
expiration. |
12. Miscellaneous
12.1 | Notices. All notices and requests in connection with this Agreement must be in writing
and will be deemed given as of the day they are received, either by messenger, delivery
service, or in the United States of America mails. Any mailed notice must be sent postage
prepaid, certified or registered, or return receipt requested. Notices must be addressed
as follows (or to such other address as a party may designate pursuant to this notice
provision): |
To Robertson
|
To Microsoft | |
Attn:
|
Attn: | |
Robertson Technologies Licensing, LLC
|
Microsoft Corporation | |
4215 Fashion Square Blvd, Suite 3, Saginaw, MI 48603 |
One Microsoft Way Redmond, WA 98052-6399 |
Phone: (989) 799-8720 | Phone: (425) 882-8080 | |||
Fax: (989) 799-8865 | Fax: (425) 936-7329 | |||
Copy to:
|
Michael T. Raymond, Esq. | |||
Dickinson Wright PLLC | Copy to: Legal & Corporate Affairs | |||
301 East Liberty, Suite 501 | Fax: (425) 706-7409 | |||
Ann Arbor, Michigan 48104 | ||||
Fax: (734) 623-1625 |
9
Microsoft Confidential
12.2 | Relationship of the Parties. Each party is an independent contractor with respect to
the other and has no authority to act on behalf of or bind the other. Nothing in this
Agreement may be construed as creating any other form of relationship between the parties
(including an employer-employee relationship, a partnership, or a joint venture). |
12.3 | Governing Law and Venue. This Agreement will be construed and controlled by the laws
of the State of Washington without regard to its choice of law rules. The parties consent
to exclusive jurisdiction and venue in the federal courts sitting in King County,
Washington, unless no federal jurisdiction exists, in which case the parties consent to
exclusive jurisdiction and venue in the Superior Court of King County, Washington.
Robertson waives all defenses of lack of personal jurisdiction and forum non conveniens.
Process may be served on either party in the manner authorized by applicable law or court
rule. |
12.4 | Attorneys Fees. If any party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the substantially prevailing party will be entitled to
recover its costs, including reasonable attorneys fees. |
12.5 | Assignment. This Agreement is binding upon and shall inure to the benefit of each
partys respective successors and lawful assigns. Notwithstanding the foregoing, Robertson
shall not transfer nor assign this Agreement, in whole or in part, to any third party
(including Affiliates that are not Affiliates as of the Effective Date), by operation of
law, contract, or otherwise, without Microsofts prior written consent. |
12.6 | Construction. If a court of competent jurisdiction finds any term of this Agreement,
or portion thereof, unenforceable, that term will be enforced to the maximum extent
permissible to effect the intent of the parties, and the remainder of this Agreement will
continue in full force. The parties agree that this Agreement is to be interpreted
according to the plain meaning of its terms and without any presumption that it should be
construed to favor any party. Any list following terms such as including or e.g. is
illustrative and not exhaustive, unless qualified by terms such as only or solely. All
references (e.g., to sections, parties, and Exhibits) are to the sections of, parties to,
and Exhibits to this Agreement, unless stated otherwise. All captions are intended solely
for the parties convenience, and none will affect the meaning of any term. The words
written, in writing, or similar words refer to a non-electronic, paper document only,
except where email or fax is expressly authorized. |
12.7 | Waivers/Remedies/Exhibits. No waiver of any breach hereof will waive any other breach,
and no waiver will be effective unless made in writing and signed by the waiving partys
authorized representative. All remedies hereunder are cumulative and in addition to other
remedies at law or equity, subject only to any express limitations herein. All referenced
Exhibits are deemed incorporated herein. |
12.8 | Export. Each party agrees to comply with all applicable international and national
laws, including the U.S. Export Administration Regulations, as well as destination
restrictions issued by U.S. and other governments. |
12.9 | Entire Agreement. This Agreement, together with its Exhibits and the NDA constitute
the entire agreement between the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous communications on such subject matter. This
Agreement shall not
be modified except by a written agreement dated after the Effective Date and signed on
behalf of Robertson and Microsoft by their respective duly authorized representatives. |
10
Microsoft Confidential
12.10 | Execution in Counterparts; Faxed Signatures. This Agreement may be executed in
counterparts, each of which when so executed and delivered will be deemed an original, and
such counterparts together will constitute one instrument. This Agreement may be executed
by facsimile (faxed) signature, and each party agrees that it will not contest the
validity of the execution of this Agreement solely on the basis of any signature being a
facsimile transmission. A facsimile copy of this Agreement, including the signature pages,
will be deemed to be an original. Notwithstanding the foregoing, the parties will each
deliver original execution copies of this Agreement to one another as soon as practicable
following execution. |
[SIGNATURE PAGE FOLLOWS]
11
Microsoft Confidential
[SIGNATURE PAGE]
THIS AGREEMENT is entered into by the parties as of the Effective Date.
Robertson Technologies | Microsoft Corporation | ||||||
By: NxOpinion LLC, its sole member
|
By: | /s/ Amit Mital | |||||
/s/ Joel Robertson | Name: Amit Mital | ||||||
By: Joel C. Robertson, its Manager |
Title: CVP |
||||||
Date Signed: |
Date Signed: 8/17/2009 | ||||||
12
Microsoft Confidential
Exhibit A
Development Milestones and Schedule
Development Milestones and Schedule
On or before August 31, 2009
OneApp Health manager diagnosis and patient data collection screens 40%
On or before September 30, 2009
OneApp Health manager diagnosis and patient data collection screens 100%
On or before October 31, 2009
OneApp Health manager integration with NxOpinion 100%
13
Microsoft Confidential
Exhibit B
Specifications, Testing, and Acceptance
Specifications, Testing, and Acceptance
The Specifications are set forth in the following documents:
Robertsons Specifications: Aditi Proposal for NxOpinion Redesign to Robertson technologies
Microsofts Specifications: NxOpinion Health Manager, created 6/26/09, updated 7/22/09
14
Microsoft Confidential
Exhibit C
Minimum End User License Terms
Minimum End User License Terms
The HM Applet license terms must constitute a legally binding agreement between Robertson and
the applicable end user under applicable law and must contain the following minimum provisions:
| Grant to end users solely for personal use and not for further redistribution |
| Limitation to use the HM Applet solely with the Robertson Health Engine |
| Full and effective limitation of liability (including a disclaimer of all non-direct
damages) and warranty disclaimer as to Microsoft |
| It must specify that the HM Applet is licensed, not sold and otherwise protect
Microsofts intellectual property rights and reserve all rights not expressly granted |
| Accurate and customary privacy policy and disclosures consistent with applicable
law |
| It must preclude the end user from making any derivative works of the HM Applet |
| It must make the end users rights to use or access the HM System through the HM
Applet conditional on the end users compliance with the HM Applet license terms |
| It must expressly prohibit reverse engineering, decompiling, or disassembling the HM
Applet, except as otherwise specifically permitted by applicable law notwithstanding such
prohibition |
| It will prohibit end user from accessing or using the HM Applet from any
jurisdiction from which such access or use is not permitted under applicable law |
15
Microsoft Confidential
Exhibit D
Territory
Territory
1. | India |
||
2. | China |
||
3. | So. Africa |
||
4. | Ghana |
||
5. | Democratic Republic of Congo |
||
6. | Zimbabwe |
||
7. | Zambia |
||
8. | Rwanda |
||
9. | Uganda |
||
10. | Nigeria |
||
11. | Morocco |
||
12. | Algeria |
||
13. | Tunisia |
||
14. | Libya |
||
15. | Egypt |
||
16. | Saudi Arabia |
||
17. | Yemen |
||
18. | Dubai |
||
19. | Dominican Republic |
16