SOFTWARE LICENSE AGREEMENT

7.          TERM AND TERMINATION.  This Agreement shall commence on the Effective Date and shall continue, unless earlier terminated as provided below, through the third anniversary of the Effective Date (the “Initial Term”); provided that the Initial Term shall be extended for successive one-year terms (each, a “Renewal Term”) unless, no fewer than ninety (90) days before the end of the Initial Term or any Renewal Term, either party notifies the other in writing of its intention not to renew.  The Initial Term and any Renewal Terms shall constitute the “Term” of this Agreement.  This Agreement may be terminated by either party, in the event the other party materially breaches a provision of this Agreement, which includes RTL not maintaining any or all of the relevant approvals from any health regulator required by law for purposes of allowing LICENSEE to sell and market RHealth Advisor, and the breaching party fails to cure such breach within fifteen (15) days of the receipt of written notice of such breach from the non-breaching party.  Either party may terminate this Agreement immediately in the event any assignment is made by the other party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of the other party's property, or if the other party files a voluntary petition under federal bankruptcy laws or similar state statutes or such a petition is filed against the other party and is not dismissed within sixty (60) days.  LICENSEE may terminate this Agreement, following appropriate termination obligations as defined herein, if LICENSEE no longer requires the license to use the Software because of the termination of any agreement pursuant to which this license is required, by providing thirty (30) days written notice to RTL with effect from the date of termination of any such agreement. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except for the following obligations: (a) LICENSEE's liability for any charges, payments or expenses due to RTL that accrued prior to the termination date, and including Contracted Minimum License Fees as described in Exhibit A of this Agreement, shall not be extinguished by termination for any reason other than a material breach by RTL of its obligations under this Agreement and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date; (b) no rebate for any unused portions of each monthly License Fee will be provided unless LICENSEE shall have terminated the Agreement upon a material breach by RTL;  and (c) LICENSEE shall, within fourteen (14) days of termination, return to RTL and not keep any copies of the Software and any other information supplied under this Agreement whether designated proprietary or not, as well as any training material provided by RTL, and testify in writing that all and any copies of the Software and mentioned material are returned to RTL.  As of the termination of this Agreement or the expiration of the Term, LICENSEE shall have no further right to use the Software, and the license granted hereunder shall terminate; except as in conjunction with an Insolvency Event; subsequent use rights are defined below.  Termination, other than because of RTL's material breach, shall not entitle LICENSEE to any refund for license fees paid, nor shall it relieve LICENSEE of the obligation to pay any outstanding amounts due to RTL for use of the Software, Implementation, or other such outstanding fees, through the date of termination. It is agreed by the parties to this Agreement that in the event that any  approvals from any health regulators which are required by law to be maintained by RTL are withdrawn by the relevant authority without the fault, act or omission of  LICENSEE with the result that LICENSEE shall no longer be able to sell and market RHealth Advisor and RTL has not procured a re-instatement of the regulatory approvals as soon as reasonably possible, then RTL shall be deemed to be in material breach of this Agreement.

 

7.1        Insolvency Event. Notwithstanding the limitations set forth in this Section 7, LICENSEE may immediately terminate this Agreement by providing written notice of termination if an Insolvency Event occurs with respect to RTL, in which case LICENSEE shall have the following rights:

7.1.1       In the event of a rejection of this Agreement, any RTL agreement or any agreement supplementary hereto or thereto on behalf of RTL, as the case may be, LICENSEE shall be permitted to receive and use a copy of the executable code of the Software and corresponding databases and files operating with the executable code of the Software in place for LICENSEE at the time of the Insolvency Event for the purpose of enabling it to mitigate damages caused to LICENSEE because of any such rejection; provided that LICENSEE shall have no right to sublicense any such rights to a third party; and provided that such use is limited to the duration of remaining term of this Agreement;

 

7.1.2       In the event of a rejection of this Agreement or any agreement supplementary hereto, LICENSEE may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the United States Bankruptcy Code.  Upon written request of the non-involved party to, as applicable, the involved party or the bankruptcy trustee or receiver, the involved party or such bankruptcy trustee or receiver shall not interfere with the rights of the non-involved party as provided in this Agreement or in any agreement supplementary hereto and, if the involved party is RTL, to obtain a copy of the executable code of the Software and corresponding databases and files operating with the executable code of the Software in place for LICENSEE at the time of the Insolvency Event from the bankruptcy trustee; provided that RTL is unable to perform its obligations under this Agreement; and provided that such use is limited to the duration of the remaining term of this Agreement;

 

7.1.3       In the event of a rejection of this Agreement or any agreement supplementary hereto, LICENSEE may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in section 365(n) of the United States Bankruptcy Code without prejudice to any of its rights of setoff with respect to this Agreement under the United States Bankruptcy Code or applicable non-bankruptcy law; or

 

7.1.4       In the event of a rejection of this Agreement or any agreement supplementary hereto, LICENSEE may retain its rights under this Agreement or any agreement supplementary hereto as provided in section 365(n) of the United States Bankruptcy Code without prejudice to any of its rights under section 503(b) of the United States Bankruptcy Code.

 

7.2          Duties upon Termination or Expiration. Upon termination or expiration of this Agreement,  RTL shall, at no cost to LICENSEE: (i) immediately terminate all current use of and refrain from further use of any LICENSEE materials (including Licensee IP) in possession or contained in the Software; (ii) refrain from selling, distributing or otherwise disposing of any and all LICENSEE content and promotional materials; (iii) subject to Section 7.1, purge the LICENSEE materials from any and all computer systems, databases and files owned, operated or licensed by, for or on behalf of RTL; and (iv) deliver to LICENSEE, in a mutually agreed upon format, using the best available security measures, any and all data and information received from LICENSEE or any other authorized party, including, without limitation, any and all LICENSEE system content (including all LICENSEE materials in its possession) and shall destroy or delete all copies of such material that are in its possession. Upon termination or expiration of this Agreement other than in connection with a termination pursuant to Section 7.1, LICENSEE shall, at no cost to RTL (i) terminate all current use of and refrain from further use of the Software; (ii) subject to Section 7.1, purge the Software from any and all computer systems, databases and files owned, operated or licensed by, for or on behalf of LICENSEE; and (iii) deliver to RTL, in a mutually agreed upon format, using the best available security measures, any and all Software and other information received from RTL pursuant to this Agreement and shall destroy or delete all copies of such material that are in its possession.

 

12.5     Notices.  Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via facsimile, expedited commercial delivery service, or certified mail, postage prepaid and return receipt requested, addressed to such other party at the addresses or facsimile numbers specified at the beginning of this Agreement.  All such notices and communications shall be deemed properly given three (3) business days after posted if by mail, on the date of delivery if given by expedited commercial delivery service, and immediately if by hand or by facsimile receipt confirmed.

 

12.6    Force Majeure.  Except for payment obligations, neither party shall be liable for delays or nonperformance of this Agreement occasioned by acts of God, public enemies, civil disobedience, governmental regulations or decrees, labor disputes, unavailability of materials, equipment failure, strikes, fires, accidents, or any other causes, whether or not of the kind enumerated in this provision, that are beyond such party’s reasonable control. Except for payment obligations, if performance by either party to this Agreement is delayed due to any of the foregoing causes, such delay shall not be deemed a breach under this Agreement, and this Agreement shall remain in full force and effect. If it appears that performance by either party to this Agreement will be delayed due to any of the foregoing causes, such party shall promptly notify the other party in writing stating the cause of the delay and its expected duration and shall use commercially reasonable efforts to carry out performance as soon as reasonably possible.

 

12.8        Counterparts.  This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. This Agreement may be executed via facsimile or PDF transmission.

 

12.9        Advertising Publications. No party in this Agreement shall in any way use or apply any other parties company names, product names, trademarks, logo, emblem, or workmark in advertisements, sales promotions, publicity, or publications or advertise or publish that LICENSEE does business with RTL except with prior written consent.

 

12.10     Regulatory Reporting. It is understood that RTL is allowed to incorporate LICENSEE's name in any public filings required by law, provided that RTL gives the LICENSEE prior written notice thereof and a copy of the public filings.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers, and have duly executed and delivered this Agreement as of the Effective Date.

 

 

·

1-time payment, invoiced upon execution of final signature of all parties involved in this Agreement and will be due within thirty (30) days from invoice date

$0

$16,500

$10,000

$5,000

$10,000

$41,500

 

·

Payment of an aggregate amount of $50 000 USD in three (3) [equal] tranches will be invoiced -

 

·

in respect of the first tranche, immediately upon commencement of the integration of RTL's existing mobile web applet with LICENSEE's mobile portal ("Integration Work"); and

 

·

in respect of the second and third tranches, thirty (30) and sixty (60) days respectively after the  invoice in respect of the first tranche, provided that both parties continue with the Integration Work.

1

50,000

 $ 0.25

 $ 0.25

$ 0.15

 $ 0.25

 $ 0.90

$0.075

50,001

100,000

 $ 0.25

 $ 0.25

$ 0.15

 $ 0.25

 $ 0.90

$0.075

100,001

500,000

 $ 0.15

 $ 0.15

$ 0.10

 $ 0.20

 $ 0.60

$0.05

500,001

1,000,000

 $ 0.15

 $ 0.15

$ 0.10

 $ 0.20

 $ 0.60

$0.05

1,000,001

5,000,000

 $ 0.05

 $ 0.05

$ 0.05

 $ 0.15

 $ 0.30

$0.025

5,000,001

10,000,000

 $ 0.05

 $ 0.05

$ 0.05

 $ 0.15

 $ 0.30

$0.025

10,000,001

999,999,999

 $ 0.05

 $ 0.05

$ 0.05

 $ 0.15

 $ 0.30

$0.025

 

·

RHealth Advisor WAP Mobile Applet

 

·

NxOpinion Diagnostics

 

·

Health Tips: Educational

 

·

Electronic Health Record

 

·

Data Collection

 

·

Internally hosted by LICENSEE

 

·

Software-As-A-Service (SAAS) subscription, hosted by RTL

 

·

Co-Location hosting provided by RTL for complete, distinct instance for LICENSEE

 

·

LICENSEE support hours:  Mon – Fri, 9am – 5pm EST (by phone or email)

 

·

Calls received between 5pm – 9am EST or on the weekend or an observed holiday will be answered within the next business day

 

·

LICENSEE requests will be assessed and routed to the appropriate resource for the quickest response.

 

a)

The investigation and, to the extent possible, correction by amendment to the Software, of any failure of the Software to comply with the Software manuals or other documentation as updated from time to time or as specifically set out in the Agreement or as agreed to during the Software development process  if and only if:

 

a.

notice is given to DISTRIBUTOR promptly after any such failure becomes known; and

 

b.

the Software has been properly operated and kept up to date, and, subject to clause (h) not modified by the LICENSEE.

 

b)

The supply of a reasonable amount of assistance by telephone or mail (includes fax and email) or in the event of difficulties in the use of the Software products or the interpretation of results.

 

c)

On-site remedial support when issues cannot be resolved by telephone or online support.

 

d)

End user support (otherwise referred to as tier one support) shall be provided by LICENSEE or a designated third party should LICENSEE so designate in a separate agreement for services to a third party entity.

 

e)

Where infrastructure is hosted by LICENSEE, network and server access and uptime support shall be provided by LICENSEE.  Should it be determined that the issue does not relate to network access or server hardware issue, LICENSEE is entitled to contact DISTRIBUTOR for Tier 2 support assistance, assigning a severity as described below.

 

f)

Should DISTRIBUTOR be unable to resolve the issue, and it is determined to be related to Software, DISTRIBUTOR will escalate the resolution to RTL for tier 3 support.

 

g)

Tier 2 LICENSEE support hours:  Mon – Fri, 9am – 5pm South African Standard Time (by phone or email). Calls received between 5pm – 9am SAST or on the weekend or on an observed holiday will be answered within the next business day in accordance with the "Support Service Obligations" below. Requests will be assessed and routed to the appropriate resource for the quickest response.

 

h)

In the event that the Software has been modified, changes made to configuration, or adapted by RTL, or errors are determined to have arisen by reason of LICENSEE errors or negligence, RTL and DISTRIBUTOR will use its best endeavors to maintain the Software, including the said modifications, configuration changes, or adaptations and errors.  RTL and DISTRIBUTOR shall be entitled to charge LICENSEE, at its then current standard rates for such services, for time spent in investigating or correcting any problem with the Software which is attributable to the said modifications, configuration changes, adaptations or errors.  A charge will normally be made only when an unusually large amount of time is needed.  As soon as DISTRIBUTOR forms the view that it shall be entitled to charge LICENSEE for services provided to this clause DISTRIBUTOR shall immediately inform LICENSEE of that view.  The LICENSEE shall review and approve such costs prior to RTL and Distributor continuing with fixing of the problem. No further services relating to the matters notified will be provided by DISTRIBUTOR without the express authorization of LICENSEE.

 

i)

DISTRIBUTOR agrees that Support Services will be continuously commercially available for the Software licensed as defined in subsequent customer licensing agreements. The Distributor agrees to ensure a customer support engineer is reasonably available to attend the LICENSEE’S customer support needs. All Support Services established hereunder are renewed according to the main agreement terms, unless otherwise specified, or until terminated as provided herein.

 

j)

The maximum DISTRIBUTOR response time following a telephone, email and fax service request is four (4) hours. If service request is received outside normal DISTRIBUTOR hours, Support Service will be initiated on the next business day.

 

i.

DISTRIBUTOR will provide a response within thirty (30) minutes of initial call

 

ii.

If no response is received within sixty (60) minutes LICENSEE may contact DISTRIBUTOR senior management

 

iii.

DISTRIBUTOR may require LICENSEE to provide documentation giving additional details of the problem before a complete solution may be provided.

 

i.

DISTRIBUTOR will provide a response within two (2) hours of initial call

 

ii.

If no response is received within two and a half (2.5) hours of initial call LICENSEE may contact DISTRIBUTOR senior management

 

iii.

DISTRIBUTOR may require LICENSEE to provide documentation giving additional details of the problem before a complete solution may be provided.

 

i.

DISTRIBUTOR will provide a response to call within four (4) hours of initial call

 

ii.

If no response is received with four and a half (4.5) hours of initial call or commencement of next business day, LICENSEE may contact DISTRIBUTOR senior management

 

iii.

DISTRIBUTOR may require LICENSEE to provide documentation giving additional details of the problem before a complete solution may be provided.

 

1.

Specific releases of features, new functionality, and any third-party integration will be scheduled between Licensee, Distributor, and RTL as they are planned and configured, with updates being applied to the Deployment Plan.

 

2.

The RHealth Advisor application will be delivered to LICENSEE per the specifications for use defined by RTL.  Integration of the application workflow and/or changes to the application user interface desired by LICENSEE must be coordinated by, and is the responsibility of, LICENSEE.

 

3.

Subject to the express provisions of the Agreement, no exclusivity nor non-compete protection for release of the Software is offered in part with this Agreement.