EXHIBIT 10.50
Oasis@work Sponsor Agreement
This Sponsor Agreement is made and entered into effective this 28th day of June,
2000 by and between Surgical Safety Products, Inc., a corporation organized
under the laws of the State of New York and having it's principal office at 2018
Oak Terrace, Sarasota, FL 34231 (hereinafter referred to as SURG) and United
States Surgical, a division of Tyco Healthcare Group LP, a limited partnership
organized under the laws of the State of Delaware and having its principal
office at 150 Glover Avenue, Norwalk, CT 06856 (hereinafter referred to as
"Sponsor").
Witnesseth:
Whereas, SURG is the creator and sole owner of the rights to Oasis@work which
consists of a data center and network for clinical information; and
Whereas, Oasis@mydesk is a software application designed to facilitate access to
Oasis@work and which is designed to be installed on a client's personal computer
from a CD-ROM or other means with live links to the Oasis@work data center; and
Whereas, Oasis@mydesk may contain a limited amount of the actual Oasis@work
applications, specific conversion tools designed to convert a hospital from
Oasis@mydesk clients to Oasis@work network clients, and unspecified applications
featuring licensed intellectual properties from AORN, Inc.; and
Whereas, within any calendar quarter, any user or anyone accessing any content
within Oasis@work will be recorded as a registered user for the purpose of
determining user-fees referenced herein; and
Now therefore, in consideration of the promises and covenants contained herein
and other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, SURG and Sponsor do hereby agree as follows:
PROMOTIONAL CONSIDERATION For participation in the Oasis@mydesk program each
Sponsor may receive promotional consideration in several formats. While it is
likely, but not guaranteed, that the promotional benefits will exceed this list,
the following is a minimum guaranteed offering.
PACKAGING: Sponsor will receive logo recognition on packaging or liner notes for
at least 40,000 CD-ROMs targeted towards, but not limited to, members of AORN.
Such CD- ROMS shall be delivered to the AORN members no later than April 1,
2001.
LABELING: Sponsor will receive text recognition on the actual CD-Rom label for
at least 40,000 CD-ROMs targeted towards, but not limited to, members of AORN.
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DISPLAY ADVERTISING: Sponsor will receive recognition in display advertisements
to appear in at least twelve monthly issues of the AORN Journal.
ADDITIONAL CD-ROMS: Sponsor will receive 1000 additional copies of the
Oasis@mydesk CD-ROM for distribution to its customers in any manner deemed
appropriate.
URL LINK: Sponsor may elect to allow an Internet link from the Oasis@mydesk
application directly to Sponsor's web site. In the event the link is
established, the appearance of Sponsor's website may follow either of two
formats, the choice of which is solely that of SURG: (i) the link may create a
new browser window within which the Sponsor's website information will be
displayed, or (ii) the Sponsor's web site may appear within Oasis the program.
EDUCATIONAL PARTICIPATION To establish a good and valuable application for
providing educational opportunities to Oasis@mydesk users, Sponsor agrees to
support this effort as follows:
NETWORK INSERVICES: Sponsor may provide content, in digital format, for the
creation of up to 140 device and/or product inservices, the final form and
design of which is under the sole discretion of SURG. These basic inservices
will reside on the Oasis@work data center for access from anywhere within the
Oasis@work and Oasis@mydesk network, and each inservice shall be accessible over
said network within thirty (30) days after delivery of such completed inservice
to SURG by Sponsor.
RESEARCH OPPORTUNITIES As a result of the direct link established between the
Sponsor and the Oasis@mydesk end-user, it is likely, but not guaranteed, that
supplemental opportunities will exist for Sponsor to communicate with the
end-user for the purpose of conducting consumer research. Sponsor is guaranteed
participation in at least the following:
VIRTUAL SURVEYS: Sponsor may elect to utilize a virtual-survey research tool
allowing the Sponsor to send electronic surveys directly to specific healthcare
workers or groups of healthcare workers. The specifications of this
virtual-survey tool shall be determined by SURG at its sole discretion. Sponsor
understands that this is paid for on a transactional basis as outlined herein.
FINANCIAL COMMITMENT AND TERMS The following fees, totaling $500,000, shall be
due with respect to this and certain prior agreements, paid by wire transfer to
the account designated by SURG or otherwise by cleared funds which shall be due
on August 10, 2000 and deemed paid upon receipt by SURG:
SERVICES PROVIDED UNDER PRIOR AGREEMENTS: In addition to any other prior
agreement fees already paid to SURG by Sponsor, the sum of $300,000 is due in
consideration for all services, both tangible and intangible, provided under the
Prior Agreements (defined hereinbelow) through June 28, 2000.
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ANNUAL LICENSE FEE: This represents a one-year commitment. Sponsor agrees to pay
an annual license for participation in this program in the amount of $200,000.
In the event this program, or one substantially similar to this program is
extended by mutual agreement of the parties beyond one-year, at the option of
SURG the Sponsor may elect to participate on a right of first refusal basis at
the rate as determined at that time. SURG makes no representation or warranty to
Sponsor with regard to the content to be contained on the CD- ROMs or its use by
recipients. Nothing contained herein shall guarantee to Sponsor any rights to
participate in any additional or future programs or distributions offered by
SURG.
INSERVICE PRODUCTION FEES: Sponsor agrees to provide all content for production
in digital format, and as such, will be billed $1,000 per inservice module. SURG
acknowledges receipt of $140,000 from Sponsor in full payment for 140 inservice
modules, of which 110 have not yet been completed. Sponsor may complete said
inservice modules or not at its discretion. If Sponsor elects to provide content
for the remaining 110 inservices, then content must be delivered to SURG no
later than May 1, 2001. The payment referenced herein, however, is
non-refundable, irrespective of whether Sponsor provides less than 140 inservice
modules.
VIRTUAL SURVEY FEES: Sponsor agrees that, should Sponsor utilize the Virtual
Survey product, a transactional fee of $5 per returned and completed survey will
be assessed in addition to any other fees referenced herein. These fees will be
calculated by SURG on a monthly basis and will be itemized by invoice submitted
to Sponsor. Payment terms for SURG invoices to Sponsor are net 30.
TERM
This Agreement shall commence on the date hereof and shall terminate one year
thereafter, unless extended by mutual agreement of the parties. Notwithstanding
the foregoing, the provisions herein titled Termination of Prior Agreements,
Mutual Release, Indemnification of SURG and Indemnification of Sponsor shall
survive such termination.
NOTICE
All written notices required or permitted hereunder shall be deemed effective
and duly given:
(i) when personally delivered;
(ii) when sent by telephone facsimile (the sender shall also send
a "hard copy" following the facsimile, however, the notice shall
be effective upon the transmission of the facsimile if confirmed
by Sender with words "Confirming delivery of notice from
----------------");
(iii) one day after depositing in the custody of a nationally
recognized receipted overnight delivery service; or (iv) at least
three (3) days after posting in the United States first class,
registered or certified mail; and,
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in the case of (iii) or (iv) above with postage prepaid and
addressed to the recipient at its address as set forth as
follows:
TO SURG: Surgical Safety Products, Inc. ("SURG")
2018 Oak Terrace, Suite 400
Sarasota, FL 34231
Telecopier Number: (954) 925-0515
With a copy to: Sam D. Norton, Esq.
Norton, Gurley, Hammersley & Lopez
1819 Main Street, Suite 610
Sarasota, FL 34236
Telecopier Number: (941) 954-2128
To Sponsor: Legal Department
United States Surgical
150 Glover Avenue
Norwalk, CT 06856
Editorial Rights SURG reserves absolute right to determine size, placement and
relational organization of all promotional considerations afforded all Sponsors.
Usage The rate of installation and participation by anyone at all cannot be
guaranteed.
Relationship of the Parties. During the term hereof, the relationship between
SURG and Sponsor is that of Licensor and Licensee. Sponsor, its agents and
employees shall, under no circumstances, be deemed agents or representatives of
SURG. Nothing contained herein shall be construed as a joint venture or
partnership between SURG and Sponsor.
Termination of Prior Agreements. This agreement terminates and supersedes all
prior agreements, if any, between the parties and their affiliates, including
the agreements dated October 28, 1998 and July 30, 1999 between SSP and
Sponsor's affiliate, United States Surgical Corporation (collectively the "Prior
Agreements"). With regard to this agreement, each party acknowledges that no
representation or statement, and no understanding or agreement, has been made,
or exists and that entering into this agreement, it has not relied upon anything
done or said or upon any presumption in fact or in law, with respect to this
agreement, or with respect to the relationship between the parties, other than
as expressly set forth in this agreement.
Mutual Release. Upon execution of this Agreement, with the exception of
non-disclosure, confidentiality agreements, and restrictions on the use of
proprietary information signed by Sponsor and SURG, SURG hereby releases and
forever discharges on behalf of Sponsor any and all claims, actions, causes of
action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements,
judgments and demands whatsoever in law or equity, past or present, known or
unknown, against Sponsor, its subsidiaries, affiliates, predecessors,
successors, officers, directors, agents, attorneys, representatives, employees,
past or present, or any of
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them relating in any way to the Prior Agreements or transactions or liabilities
in any way connected with the Prior Agreements. Likewise, Sponsor hereby
releases and forever discharges on behalf of Sponsor any and all claims,
actions, causes of action, suits, debts, dues, accounts, bonds, covenants,
contracts, agreements, judgments and demands whatsoever in law or equity, past
or present, known or unknown, against SURG, its subsidiaries, affiliates,
predecessors, successors, officers, directors, agents, attorneys,
representatives, employees, past or present, or any of them relating in any way
to the Prior Agreements or transactions or liabilities in any way connected with
the Prior Agreements.
Indemnification of SURG. Sponsor hereby agrees to indemnify and hold SURG, its
employees, officers, directors and agents harmless with respect to any losses,
liability or costs incurred by SURG, its officers, employees, directors or
agents arising out of any product liability or other malfunction of any products
of Sponsor sold or displayed pursuant to the product inservices referenced
herein. SURG shall be entitled to place disclaimers in a conspicuous manner on
the network deemed acceptable to SURG.
Indemnification of Sponsor. SURG hereby agrees to indemnify and hold Sponsor,
its employees, officers, directors and agents harmless with respect to any
losses, liability or costs incurred by Sponsor, its officers, employees,
directors or agents arising out of any product liability or negligence of SURG
relating to the services referenced herein.
Assignment. This agreement may not be assigned, encumbered or transferred by
either party without the prior written consent of the other party. This
agreement shall be binding upon the successors of the parties.
Entire Agreement. This Agreement constitutes the entire agreement between SURG
and Sponsor respecting the subject matter hereof. It shall not be amended,
altered, or changed except by a written agreement signed by the parties hereto.
Governing Law. This agreement and the site sublicense agreements shall be
governed by and construed in accordance with the laws of the State of Florida.
The venue of any action brought to enforce this agreement or any site sublicense
agreement shall be Sarasota County, Florida.
Attorney's Fees. In the event of litigation arising out of this agreement the
prevailing party shall be entitled to an award of its reasonable attorney's fees
and costs incurred both at the trial and appellate levels.
Confidentiality. SURG understands and acknowledges that Sponsor and Sponsor
understands and acknowledges that SURG operates under the laws, statutes and
regulations of various state and federal agencies, some of which are unique to
the security-sensitive medical industry. Both SURG and Sponsor shall endeavor,
to the extent permitted by law, make reasonable efforts to comply with the
reasonable written instructions and reasonable written requests of the other
regarding security and confidentiality pertaining to this Agreement and all
other aspects of the relationship between the parties and information that is
exchanged, shared or handled by either party to this Agreement. Both parties
agree and
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do hereby agree that all information which could reasonably be considered
"Confidential" by the other will not be distributed to their employees,
affiliates or to the general public, except on a "Need to Know Basis." For the
purposes of this section only, Confidential Information shall include any
non-public information that the disclosing party reasonably designates as
confidential, or which under the circumstances surrounding disclosure, should
reasonably be considered confidential. Confidential information includes, but is
not limited to information relating to a Party's released or unreleased software
and hardware products, business policies and practices including all tangible
and intangible materials containing information that is not public or not known
to the public whether or not it is in written or printed form or whether it is
machine or user readable or not.
Breach. In the event of a breach of this agreement, the parties shall have all
rights and remedies provided for at law and in equity. The obligation to pay the
fees referenced herein shall be the obligation of Sponsor.
Miscellaneous. Nothing contained in this agreement shall be construed as
conferring by implication, estoppel or otherwise upon Sponsor any license under
any trade secrets or know- how of SURG and no such license or other rights shall
arise from this agreement or from any acts, statements or dealings resulting in
the execution of this agreement. SURG retains all ownership rights with respect
to the Oasis@work system, its contents now existing or as may be developed in
the future. No representation or warranty has been or is made by SURG with
respect to any services or products sold or provided through the Oasis@work
system by others, it being understood that SURG shall not be liable for any
loss, damage or expense arising from any claim with respect to services or
products provided via Oasis@work by those other than SURG. Accuracy and
reliability of content on Oasis@work is the sole responsibility of the Content
Provider posting the content or otherwise authorizing the posting of said
content.
IN WITNESS WHEREOF, the undersigned have executed this agreement effective the
day and year set forth above.
SURGICAL SAFETY PRODUCTS, INC. UNITED STATES SURGICAL
By: /s/ Donald Lawrence By: /s/ Kevin Gould
Title: President Title: President
Date: Date:
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Agreed to as to the Sections titled "Termination of Prior Agreements" and
"Mutual Release".
UNITED STATES SURGICAL CORPORATION
By: /s/ Kevin Gould
Title: President
Date:
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ADDENDUM TO OASIS@WORK SPONSOR AGREEMENT
OTHER TYCO HEALTHCARE COMPANIES Additional Tyco companies, at their sole
discretion, may elect to participate in this Oasis initiative or other similar
Oasis programs from time to time. These additional participants will be
addressed on an individual basis and under separate contract.
CO-MARKETING OF OASIS/AORN INITIATIVE Promotional consideration is granted to
the Oasis and AORN marketing initiative for the term of one year from the date
of this agreement. Specifically, USS agrees to review possible inclusion of the
Oasis logo and specific wording indicating USS's participation in this agreement
within USS display advertising, the exact size, placement, and form of which
shall be mutually agreed upon prior to publication of any such advertising. This
promotional consideration may include, but is not limited to, AORN Journal
advertisements, Surgical Services Management advertisements, Surgical Products
Magazine advertisements, and the www.ussurg.com website. Camera-ready art shall
for any such advertising shall be furnished by SURG.
IN WITNESS WHEREOF, the undersigned have executed this addendum in conjunction
with the Oasis@work Sponsor Agreement dated June 28, 2000.
SURGICAL SAFETY PRODUCTS, INC. UNITED STATES SURGICAL
By: /s/ Donald Lawrence By: /s/ Kevin Gould
Title: President Title: President
Date: _____________________________ Date: ________________________
