875 North Michigan Avenue, Suite 2626 Chicago, Illinois 60611 ###-###-####

In providing the Services, AUDIO EYE, INC. will utilize the AUDIO EYE, INC. Technology.  Nothing contained in this Agreement will be construed as conferring to NextMed any rights by implication, estoppel or otherwise, under any intellectual property right. AUDIO EYE, INC. owns all rights; title and interest in and to the AUDIO EYE, INC. Technology and reserves all rights not expressly granted to NextMed in this Agreement. “AUDIO EYE, INC. Technology" means all Technology developed solely by AUDIO EYE, INC. or by its subcontractors for AUDIO EYE, INC. or licensed by Audio Eye.  "Technology" means technological models, algorithms, design processes, logic diagrams, schematics, know-how, computer and electronic data processing and other apparatus programs and software (object code and source code), databases and documentation thereof, technical information, specifications, drawings, records, documentation, works of authorship or other creative works, websites, ideas, knowledge, data or the like, including copyrights, database rights, trade secrets and any other intellectual property right.

In providing the Services, AUDIO EYE, INC. may reveal to NextMed certain proprietary information from which AUDIO EYE, INC. derives economic value, actual or potential, from such information not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and which is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.  This proprietary information, including without limitation, the AUDIO EYE, INC. Technology, is hereinafter referred to collectively as the “Protected Information.”  As a condition to AUDIO EYE, INC. sharing with, NextMed, whether in writing or orally, any Protected Information, NextMed hereby acknowledges and agrees with AUDIO EYE, INC. as follows:

NextMed and Audio Eye’s obligation of confidentiality with respect to Protected Information, which constitutes trade secrets under the Uniform Trade Secrets Act, (or other similar applicable law) will run for as long as such information remains a trade secret. NextMed and Audio Eye’s obligation of confidentiality with respect to Protected Information that is not covered under the Uniform Trade Secrets Act (or other similar applicable law) will run for three (3) years from the date this Agreement terminates.

The Parties each warrants and represents to the other that (i) it is duly organized, validly existing and in good standing under the laws of its state of formation; (ii) it has the full power to enter into this Agreement and to grant the rights set forth herein; (iii) this Agreement, when executed and delivered by such Party, will be the legal, valid and binding obligation of such Party enforceable against it in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement by such Party does not conflict with, or constitute a breach or default under, any provision of any agreement, contract, commitment or instrument to which it is a party.

 

 

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AUDIO EYE'S OBLIGATIONS EXPRESSLY ASSUMED IN EXHIBIT “A”; PROVIDED FURTHER THAT THE EXCLUSION OF PUNITIVE DAMAGES SHALL APPLY IN ANY EVENT.

 

Either Party may suspend performance and/or terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of this Agreement, and fails to cure that breach within thirty (30) days after written notice thereof (except for failure to pay in which case such breach must be cured within ten (10) days).

 

Nothing contained herein is to be construed as establishing a partnership, joint venture, employment or other business relationship between the Parties other than that of independent contractors.

This Agreement will be deemed to have been executed in the State of Arizona and will be governed and construed as to both substantive and procedural matters in accordance with the laws of the State of Arizona.  Because damages at law will be an inadequate remedy for breach of any of the covenants, promises and agreements contained in Sections 3 and 4, the aggrieved Party shall be entitled to injunctive relief in any court of competent jurisdiction, including specific performance or an order enjoining the breaching Party from any threatened or actual breach of such covenants, promises or agreements. The rights set forth in this Section shall be in addition to any other rights which the aggrieved Party may have at law or in equity.

Notices provided under this Agreement must be in writing and deemed to have been effectively given when delivered personally, sent by private express mail service (such as Federal Express), or sent by registered or certified mail (return receipt requested) to the address set forth below or to such other address as a Party has furnished in writing to the other Party in accordance with this Section.

Neither Party may assign or transfer this Agreement, without the other Party’s prior written consent and any attempted assignment, transfer nor shall delegate without such prior written consent be voidable at the sole option of such other Party. Notwithstanding the foregoing, each Party (or its successive assignees or transferees hereunder) may, without such consent, assign this Agreement to an entity that succeeds to all or substantially all of the business or assets of such Party as long as such entity agrees to accept all of the terms set forth herein.  Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

 

Neither Party will issue any press release or make any public announcements relating to this Agreement without the prior consent of the other Party except to the extent required by applicable law.

 

This Agreement contains the entire agreement of the parties relating to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, with respect to such subject matter, and the parties have made no agreements, representations or warranties relating to the subject matter of this Agreement which are not set forth herein.  This Agreement may be amended only by a written instrument executed and delivered by a duly authorized officer of each of the Parties.  No failure or delay by the Parties in exercising any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.  If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder during any event of force majeure.