This License Agreement involves
Title: LICENSE AND SERVICES AGREEMENT
Industry: Misc. Financial Services Sector: Financial
LICENSE AND SERVICES AGREEMENT
THIS LICENSE AND SERVICES AGREEMENT (the “ Agreement ”) is entered into as of this 14th day of April, 2016 (hereinafter the “ Effective Date ”), by and between Emerald Medical Applications Ltd. , Company ID 514410307, organized and existing under the laws of the State of Israel and having its registered address at 1 Emek Ayalon St., Modi'in-Maccabim-Reut 7170634, Israel (the “ Licensor ”) and LBT Laser Brasil Technology, organized under the laws of Brazil having its principal place of operation at Pacaembu 1739 Sao Pulo Brazil (the “ Licensee ”). Licensor and Licensee may also be referred to individually, as a “ Party ”, or collectively, as the “ Parties ”.
WHEREAS , the Company has developed and owns proprietary technology, source code and know-how relating to early-stage diagnosis of Melanoma by way of, inter alia, image processing and cloud based mobile analytics, artificial intelligence and machine learning, known as DermaCompare (together with any Upgrades, the “ Software ”), used and operated as a diagnosis supporting tool by expert physicians and technicians for examining patients for the early-stage detection of Melanoma and other skin cancers (“ Examinations ”); and
WHEREAS , Licensee wishes to receive a license to use the Product within the Republic of Brazil (hereinafter the “ Territory ”) on an exclusive basis for the limited purpose of, and only to the extent necessary for, performing Examinations, on the terms and conditions as set out herein (hereinafter the “ Purpose ”); and
NOW, THEREFORE , for the mutual promises and undertakings herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. Grant of Rights
1.1. License . Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor an exclusive, non-assignable, nontransferable license to Use the Software and any Upgrades, during the Term, within the Territory, for the Purpose, and in accordance with the terms and conditions of this Agreement. For the purposes of this Agreement, “ Upgrades ” means any change, modification, enhancement, alteration, translation, augmentation, adjustment, derivative work, customization, addition to, deletion from, revision, adaptation, amendment, or creation of any new release or version, of part or all of the Software, and “ Use ” means the execution, installation, implementation, reproduction, support, maintenance, and operation of the Software.
1.2. Restrictions on Use . In addition to and without derogating from any other provision of this Agreement, the following restrictions shall apply to the use of the Software: (i) use of the Software shall be limited to use by physicians or other medical personnel under a physician’s supervision acting on Licensee’s behalf, that have been properly trained on the use of the Software, solely for the purposes of Examinations; (ii) Licensee shall take all security measures provided in the Software and take all other reasonable measures to prevent unauthorized use; (iii) Licensee may not (a) sell, license or permit any other person to possess, store, control, use, operate, manage, maintain, support, or otherwise utilize the Software or any Upgrades thereto, regardless of the commercial form or structure of same; (b) copy, distribute, reproduce, use or allow third party access to the Software; (c) decompile, disassemble, reverse engineer, convert or apply any procedure or process to the Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Software or any trade secret information or process contained in the Software; or (d) modify or create a derivative work of any part of the Software; and (iv) Licensee may not install, use or access any Software at or from any location other than on Licensee owned and operated medical facilities within the Territory.
1.3. Ownership; No Implied Rights . The Software is licensed and not sold, and there are no other rights, express or implied, granted to Licensee with respect to the Software other than the right to Use the Software. The Software incorporates highly confidential knowledge, technology and trade secrets which are, and shall always remain, the exclusive property of the Licensor and shall be deemed confidential information of the Licensor. Licensor expressly reserves all its intellectual property and ownership rights (including, without limitation, patent, copyright, mask work, trademark and trade secret rights) in and to the Software, and all items embodying the same, delivered to Licensee hereunder, and represents and warrants that it is the sole and lawful owner of all intellectual property relating to the Software. Nothing contained herein shall be construed to grant Licensee any further rights than those expressly given in this Agreement. The Licensee confirms and agrees that it shall not, in any manner or to any extent, develop, design, author, conceive, invent, or otherwise create any upgrades of the Software, or copy, disassemble, create derivatives, reproduce, reverse engineer, transfer, sublicense or disclose to third parties, any part of the Software for any purpose whatsoever. For the avoidance of doubt, any intellectual property of any nature whatsoever generated in the framework of this agreement that is related to the Software will belong solely to the Licensor, regardless of the inventor.
2. Minimum Commitment; Price and Payment
2.1. Fees . The fees due to Licensor from Licensee for each Examination (“ Fees ”) shall be, (i) during the Initial Term ninety five US Dollars (US$95); and (ii) during each Renewal Term (as defined below) and thereafter the price shall stay as 95 US Dollar (US$95 for each Renewal Term. For the removal of any doubt, during the first Renewal Term the Product price shall be ninety five US Dollars (US$95). For the avoidance of doubt, the entitlement of the Licensor to Fees is not dependent on any outcome, successful diagnosis or other criteria and relates solely to the Use of the Software with respect to Examinations.
2.2. Taxes . The Fees are exclusive of any duties, assessments, sales taxes, value added tax, or other taxes or levies in place, as applicable, now or hereafter applied on the sale, transportation, import, export, licensing or Use of the Software, which shall be added paid by Licensee. All payments by Customer shall be made free and clear of, and without reduction for, any withholding taxes or banking charges.
2.3. Minimum Commitment . The Licensee undertakes to perform at least (“ Minimum Commitment ”) :
2.3.1. Two thousand (2000) paid Examinations during the 1 st year of the Term.
2.3.2. Twenty thousands (20,000) paid Examinations during the 2 nd year of the Term..
2.3.3. Fifty thousands (50,000) paid Examinations during the 3 rd year of the Term.
2.4. Payments . Payments shall be made in US Dollars against duly issued invoices. The Licensor shall invoice the Licensee for the Uses committed by the Licensee at the end of each month during the Term and the Licensee shall make payment no later than twenty one (21) days after receipt of such invoice. Unless otherwise agreed between the Parties, payment shall be made by wire transfer, net of any wire transfer charges, to such Licensor’s bank account as specified by Licensor (which may be outside the Territory, including in the United States or Israel). A late payment charge of two per cents (2%) per month shall be charged upon all unpaid amounts due hereunder as of twenty one (21) days after the applicable due date and Licensee shall reimburse Licensor for any costs it incurs, including reasonable attorney’s fees, to collect past due amounts.
2.5. Patient Prices . The Licensee may determine its own prices charged from patients for the Examinations, . The Licensor may, from time to time, provide Licensee with suggested prices for Examinations, which shall in no way obligate Licensee in determining Examination prices charged from patients.
2.6. SALES COMISSION The Distributor will be entitled to a commission of: 20 %
On subscriptions net income from costumers brought to the company by the distributor. Commissions will be calculated on the net subscription costs and according the agreement with the costumer.
Commissions will be paid under the method that will be agreed by Parties.
3. Support and Services
During the Term, and provided that the Licensee is in compliance with its obligations set out in this Agreement, the Licensor shall provide the following services:
3.1. Initial Training . Licensor shall provide, on its expense, the Licensee’s staff comprising of no more than 15 people, in charge of the installation, implementation and 1 st level ground support regarding the Use of the Software on the Licensee’s medical facilities (the “ Crew ”), with reasonably required initial training and assistance with respect to the Software and the Use thereof, on a “train the trainer” basis. Unless otherwise agreed, any such training session shall take place in the Licensee’s facilities in Brazil, during normal business hours (9:00am -5:00pm), excluding weekends and holidays, for no more than 2 days. The Parties shall mutually agree on the specific time, place date and manner of such training sessions. The right to receive such foregoing training expires twelve (12) months from the Effective Date, to the extent not exercised prior to such time.
3.2. Technical Support . Licensor shall provide, on its expense, 2 nd level technical support to the Crew (which shall in turn provide 1 st level ground support to end-line operators) relating to source code issues. Such technical support may take place remotely via emails or telephone calls, and may also require remote net access and use to the Software used by Licensee by Licensor, and is therefore dependent on the Licensee maintaining a net remote access to the computer’s used by it and allowing the Licensor to make such use. Support will be provided during normal business hours and days as of the location of the Licensor.
3.3. Image Analysis . Licensor shall provide an analysis of each image set taken at an Examination within 72 hours (excluding weekends and public holidays at Licensor’s location) after receipt of the images taken during Examination at the Software database. The Licensor shall not be responsible for a delay in any analysis in the case of (i) Force Majeure, and without prejudice to the generality of the above - war, hostilities, emergency situations and natural disasters; (ii) any causes beyond the reasonable control of Licensor; or (iii) undue image quality or other reasons resulting from the poor or unsatisfactory use of the Software or the performance of the Examinations by Licensee or its staff.
3.4. Documentation . Licensor shall make available to the Crew user manual(s) and other written or on-line materials on the proper installation and use of the Software, as made available by the Licensor from time to time (“ User Documentation ”). Unless otherwise agreed, all such materials shall be in the English language, and shall at all times remain the sole property of the Licensor, which expressly reserves all rights thereto. User Documentation may be supplied digitally or physically at Licensor’s sole discretion.
3.5. Updates . Licensor shall make available to the Licensee any updates to the Software as they become available, at its sole discretion, in the form of executable code, or revisions to the User Documentation, as the case may be: (i) corrections or fixes to errors in the Software; and (ii) enhancements, and updates to the Software which add or improve functionality or performance of the Software but which do not solely correct or fix an error in the Software and which do not required an additional software license fee, together with associated documentation. Licensor shall provide the Licensee with 6 months prior notification, if at any time during the Term of this Agreement Licensor announces the end of life of the Software. Licensor shall have no obligation to provide any support for a version of the Software for more than twelve (12) months after it has been discontinued or updated. Such updates and corrections are made available to Licensee remotely, and Licensor does not undertake to personally attend the Licensee’s premises for installation purposes, unless agreed upon by the parties hereto.
4. Additional Services . Any additional services to the foregoing, including any further or periodical training and technical support not as set out above, shall be on Licensee’s expense, and be set out in a separate written agreement. For the avoidance of doubt, the Licensor does not provide any equipment.
5. Licensee’s Undertakings
During the term of this Agreement, in addition to any other undertaking or obligation of the Licensee, the Licensee undertakes the following:
5.1. Crew . Appoint appropriate and qualified personnel to serve in the Crew as technical support staff for the purposes of installation of the Software and implementation of its use, training ground level technical personnel, and provision of general pre and after-use maintenance support and service.
5.2. Installation and ground level service . Installation of the Software on Licensee’s equipment and systems and other equipment required to perform Examinations, training of end-users, any support and service provided to end users performing Examinations, and matters relating thereto or arising therefrom shall be attended to and provided by, by the Licensee at its sole expense.
5.3. Compliance . Licensee will at its sole expense comply with all laws, registrations and regulations relevant to this Agreement in the Territory, including without limitation, those applicable to product claims, labels, instructions, etc. Without derogating from the above, the Parties hereby agree, that to the extent required the Licensee shall obtain all the relevant state authorities' necessary permits for the Use of the Software within the Territory. For removal of any doubt, all of the necessary permitting doc