PARTNERSHIP
AGREEMENT
THIS PARTNERSHIP AGREEMENT
("Agreement"), is made and entered into as of ____________________
by and between OptimizeRx Corporation ("OptimizeRx"), a Michigan
corporation having an address at 407 Sixth Street, Rochester, MI
483087 and Dendrite International, Inc. d/b/a Cegedim Dendrite
("Cegedim Dendrite"), a New Jersey corporation having an address at
1405 Route 206 South, Bedminster, New Jersey 07921.
WITNESSETH:
WHEREAS, OptimizeRx provides a lead
generation portal on the internet and would like to market its
OFFERx product to customers with Cegedim Dendrite as its exclusive
adjudication provider; and
WHEREAS, among its products and
services, Cegedim Dendrite provides card printing, adjudication and
program management of persistency solutions and related support
services to the pharmaceutical industry; and
WHEREAS, each of OptimizeRx and
Cegedim Dendrite believe that they would mutually benefit from a
teaming arrangement under which the parties would market their
respective solutions and provide business referrals to the
other.
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual representations, warranties,
covenants, and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1
The
following capitalized terms shall have the respective meanings
given them below:
"Affiliate"
shall mean any Person which directly
or indirectly controls, is controlled by or is under common control
with, another Person. The term " control " (including its
correlative meanings " controlled by " and " under common
control with ") means possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person (whether through ownership of securities or
partnership or other ownership interests, by contract or
otherwise).
"Confidential
Information" shall mean
any and all business and technical information of a party disclosed
to, or otherwise acquired or observed by, the other party, whether
communicated in writing, orally, electronically or in any other
form, except Confidential Information does not include any
information which (1) becomes generally available to the public
through no fault of the receiving party, (2) was independently
developed by the receiving party without access to the disclosing
party's Confidential Information or (3) becomes available to the
receiving party on a non-confidential basis from a source other
than the disclosing party; provided that such source is not
prohibited from transferring the information to the receiving party
by a contractual, legal or fiduciary obligation.
"Covered Solutions"
shall mean collectively the
"OptimizeRx Solution", the "Cegedim Dendrite Solution" and the
"OFFERx Solution," except as stated otherwise.
"Customer Lead"
shall mean a Potential Customer that
is in the market for an internet lead generation portal,
persistency programs and/or card adjudication program management
and which is identified by one party (the "Referring Party") and
disclosed to the other party (the "Non-Referring
Party").
"Cegedim Dendrite
Solutions" shall mean
Cegedim Dendrite's persistence and loyalty group offerings which
are more fully described in Schedule A.
"Person" shall mean any individual, firm, corporation,
unincorporated association, partnership, limited liability company,
trust, Governmental Authority or other entity.
"Potential Customer"
shall mean a potential brand
customer of a Covered Solution in the pharmaceuticals
industry.
"Solution"
shall mean the OptimizeRx Solution
or the Cegedim Dendrite Solution, as applicable.
"Proposal"
shall mean a written document
prepared by a patty and provided to a Customer Lead which sets
forth the material terms under which the party proposes to provide
its Covered Solution to the Customer Lead.
"OptimizeRx Solution"
shall mean OptimizeRx's lead
generation and advertising internet portal solution as set forth in
Schedule B.
"OFFERx Solution"
shall mean OptimizeRx's
OFFERx product plus Cegedim Dendrite's standard Opus Health
Services.
"Opus Health Services"
shall mean the standard
administrative services provided by Cegedim Dendrite relating to
prescription card redemption programs wherein Cegedim Dendrite
processes pharmaceutical prescription claims through Cegedim
Dendrite's network of pharmacies and other providers as described
under Exhibit A to Schedule D attached hereto.
"OFFERx Product"
shall mean the proprietary web-based
platform used to introduce brands to consumers actively managing
their healthcare needs of OptimizeRx as described in Schedule
C.
ARTICLE II
CLIENT INTRODUCTIONS AND
REFERRALS;
REFERRAL FEES
2.1 Each party shall, in
accordance with the terms of this Agreement, (i) endeavor to
identify Customer Leads for the other party and (ii)
cross-reference, where appropriate, the other party's Covered
Solutions in its dealings with Potential Customers.
2.2 In the event the parties
jointly identify a Potential Customer, the parties shall use
reasonable commercial efforts to jointly prepare and deliver a
sales presentation to the identified Potential Customer.
2.3 With the exception of
initial lead generation discussions, neither patty shall engage in
discussions with a Potential Customer concerning the other patty's
Solutions without the presence of a representative of such other
party, unless such other party has provided its consent waiving its
right to be present at such discussions.
2.4 Each patty will maintain
full responsibility and accountability for any pricing it provides,
and ensure that its pricing sufficiently addresses the Covered
Solution to be provided to the Potential Customer.
2.5 Where the Referring
Party has entered into a revenue-generating contractual
relationship with the Customer Lead for an OptimizeRx Solution or a
Cegedim Dendrite Solution, the Non-Referring Party will pay to the
Referring Patty a referral commission (the "Referral Commission")
as described in the Referral Commission Table under Schedule E
attached hereto.
2.6 The Non-Referring Patty
will furnish the Referring Party with a copy of each fully executed
customer contract under which a Referral Commission is to be paid
within thirty (30) days of its execution.
2.7 Payment of any Referral
Commissions will be due in full in U.S. dollars within thirty (30)
days of the end of the calendar quarter in which full payment, or
of each partial payment, by the customer was received by the
Non-Referring Patty until the full amount has been paid. Late
payments will not be subject to interest charges.
2.8 A Customer Lead shall be
provided by the Referring Party in writing to the Non-Referring
Party. The Non-Referring Party shall confirm in writing to the
Referring Party whether the Potential Customer is a Customer Lead.
Where the parties cannot reasonably agree on which party generated
a Customer Lead, no Referral Commission will be due and payable for
the applicable customer contract. In determining which patty
generated the Customer Lead, the parties may use information
provided by the customer as evidence of which party generated the
Customer Lead. The parties agree to work in good faith to determine
who generated the Customer Lead.
2.9 In the event the
Non-Referring Party breaches its obligation to pay a Referral
Commission for a particular Customer Lead, the Referring Party may,
among its other rights and remedies hereunder, cease to refer
Potential Customers to the Non-Referring Patty upon ten (10) days
written notice thereof and the Non-Referring Party's failure to
cure such breach within ten (10) days of having received such
notice.
2.10 For clarification, subject to
Section 2.5, Referral Commissions may only be paid to OptimizeRx
for referral of Customer Leads resulting in revenue generating
relationships for the Cegedim Dendrite Solutions. Subject to
Section 2.5, Referral Commissions will not be paid to OptimizeRx
for revenue generating relationships for Cegedim Dendrite products
or services other than the Cegedim Dendrite Solutions listed under
Schedule A.
PROPOSALS, SALES AND
CUSTOMER
CONTRACTS
3.1 To the extent the
Non-Referring Party pursues a Customer Lead, it shall prepare its
own Proposal and engage its own sales efforts. Unless otherwise
agreed in writing, no Proposal shall be deemed a joint Proposal and
neither party shall sell or market the other party's Covered
Solutions in its own Proposal or at a customer meeting, except as
authorized under Article IV of this Agreement.
3.2 Any customer contract
for a Covered Solution that is a result of efforts under this
Agreement shall be negotiated and entered into solely by the party
offering such Covered Solution, except as agreed upon under this
Agreement.
3.3 Under no circumstances
shall either party be obligated to enter into a customer contract
with respect to a potential transaction resulting from a Customer
Lead.
3.4 Except as expressly
prohibited under this Agreement, nothing contained in this
Agreement shall be deemed to prohibit either party from making any
proposal regarding its own Covered Solutions to any current or
prospective customer of such party, or to enter into any customer
contract with respect to such Covered Solutions.
3.5 The parties shall make
reasonable efforts to ensure that the Potential Customer separately
contracts with each party for its Solution. In cases where the
Potential Customer wishes to purchase a Covered Solution, not
including an OFFERx Solution, from each party but requires a
contract with only one party (the "Primary Party"), the parties
hereto shall negotiate in good faith a mutually acceptable (i)
reseller or distribution agreement under which the Primary Party
shall have the right to resell or distribute the Solution of the
other party (the "Non-Primary Party"); and (ii) a mutually
acceptable sub-contract under which the Non-Primary Party will
provide the Primary Party with the Non-Primary Party's
services.
3.6 In the event, the
parties enter into a reseller and sub-contract arrangement in
accordance with Section 3.5, no Referral Commission shall be due
and owing for any applicable Customer Lead.
3.7 Neither party shall bind
the other to performance obligations under any customer contract
without the written consent of the other party.
ARTICLE IV
RESELLER TERMS, FEES AND
COMMISSION
4.1 Cegedim Dendrite hereby
grants to OptimizeRx a non-exclusive, non-transferable,
non-assignable right during the term of the Agreement to promote,
advertise, market and distribute in the United States the Opus
Health Services to customers solely for use within the OFFERx
Solution.
4.2 In the event that the
Opus Health Services are distributed by OptimizeRx within an OFFERx
Solution, the additional terms and conditions set forth under
Schedule D shall apply.
4.3 I n the event that the OFFERx
Solution is sold to a customer, OptimizeRx shall execute a binding
customer services agreement with the customer for the OFFERx
Solution prior to the customer's receipt of the Opus Health
Services (the "OFFERx Agreement").
4.4 Where OptimizeRx has
entered into an OFFERx Agreement with a Customer Lead, the
Non-Referring Party will pay to the Referring Party an OFFERx
referral commission (the "OFFERx Referral Commission") as described
in the OFFERx Referral Commission Table under Schedule E attached
hereto.
4.5
OFFERx
Referral Commission payments will be due in full in U S. dollars
within thirty (30) days of the end of the calendar quarter in which
full payment, or of each partial payment, was received by the
Non-Referring Patty until the full amount has been paid. Late
payments will not be subject to interest charges.
4.6
A Customer
Lead for the OFFERx Solution, shall be provided by the Referring
Patty in writing to the Non-Referring Party. The Non-Referring
Party shall confirm in writing to the Referring Party whether the
Potential Customer is a Customer Lead. Where the parties cannot
reasonably agree on which party generated a Customer Lead for the
OFFERx Solution, no OFFERx Referral Commission will be due and
payable for the applicable customer contract. In determining which
party generated the Customer Lead, the parties may use information
provided by the customer as evidence of which party generated the
Customer Lead.
4.7
In the
event the Non-Referring Party breaches its obligation to pay an
OFFERx Referral Commission for a particular Customer Lead, the
Referring Party may, among its other rights and remedies hereunder,
cease to refer Potential Customers to the Non-Referring Party upon
ten (10) days written notice thereof and the Non-Referring Party's
failure to cure such breach within ten (10) days of having received
such notice.
ARTICLE V
RESPONSIBILITIES OF THE
PARTIES
5.1
Each party
shall:
(a) use reasonable efforts
to promote and solicit orders for the Covered Solutions on a
continuing basis. In its efforts, each party will use the other
party's then-current names and descriptions for the Solutions and
will not add to, delete from or modify any sales or marketing
documentation or forms provided by the other party except with such
party's prior written consent
(b) solely in connection
with this Agreement, use the other party's trademarks, service
marks, logos and trade names ("Marks") to achieve its obligations
under this Agreement, provided that (i) the party intending to use
the other party's Mark obtains prior written approval therefore,
and (ii) the party using the other party's Mark clearly identifies
the owner of such Mark. The parties shall use the other party's
Marks in accordance with the guidelines and standards provided by
the other party in writing from time to time. In the event that a
party reasonably determines that the other party is not in
compliance with such guidelines, the party shall have the right to
suspend the other party's use of the Marks until such time as the
other party meets such guidelines and standards. Subject to the
forgoing, the parties agree to provide each other with corporate
and product graphics as reasonably requested by the other party,
for use in meeting its obligations under this Agreement
(c) at its own expense,
provide the other party with a reasonable quantity of any
applicable printed marketing materials for its respective
Solutions.
(d) use reasonable efforts
to inform the other party within a reasonable time of any changes
in its respective Solution, prices, and/or marketing and sales
documentation.
(e) be solely responsible to
its customers with respect to its respective Solutions.
(f) afford the other party
reasonable access to such information regarding its business as may
be reasonably necessary to prepare each Proposal and perform its
obligations under this Agreement.
(g) upon reasonable request
from the other party, from time to time make available management
and technical personnel to assist the other party in (i) developing
a Proposal, (ii) any discussions and negotiations related to a
customer contract and (iii) integrating such party's Solutions with
the other patty's Solutions, and shall provide such other
cooperation as may reasonably be requested by the other party in
furtherance of a Proposal.
(i) furnish to the other
party copies of all press releases, product announcements and
newsletters which are disseminated to the public that relate to the
Covered Solutions.
(j) notify the other party
of any lawsuits or regulatory proceedings that may beat on its
ability to comply with the terms of this Agreement or perform in
accordance with the terms of a Proposal submitted to a Potential
Customer.
(k) commit sufficient
resources necessary to comply with the terms of this
Agreement.
(1) respond to Potential
Customer requests for information in a timely manner.
ARTICLE VI
OWNERSHIP
6.1
Except as
expressly stated in Section 6.2 herein, as between the parties, any
and all existing products, documentation, marketing materials,
Marks and patents, and copies, updates, enhancements, improvements,
translations, alterations, revisions, customizations, releases, and
derivatives thereto and thereof (including, but not limited to,
software code and programming, whether source code or object code
or otherwise), including, but not limited to, any and all
intellectual property rights therein and thereto, shall remain the
sole and exclusive property (the "Proprietary Information") of the
respective parties.. The parties hereby reserve any and all right,
title, and interest in and to their respective Proprietary
Information not expressly and explicitly granted to the other party
under this Agreement and the other party shall not take any action
that jeopardizes the owner's proprietary rights in its Proprietary
Information.
6.2
The parties
agree that all Proposal materials developed by a party hereto shall
remain the exclusive property of such party.
6.3
Without
limiting anything in this Agreement, except as and only to the
extent expressly and explicitly authorized in this Agreement or any
reseller or services sub-contract by and between the parties,
neither patty shall do, not shall it permit any other Person to do,
any of the following: (a) use the other party's Solution for any
purpose, at any location or in any manner, (b) make, take, or
retain any copy of any of the other party's Proprietary Information
(c) re-engineer, reverse engineer, decompile, or disassemble any of
the other party's Proprietary Information or create or recreate the
source code for any Proprietary Information, (d) refer to or
otherwise use any of the other party's Proprietary Information as
part of any effort to develop a program having any functional
attributes, visual expressions or other features similar to those
of such Proprietary Information, (e) remove, erase, or tamper with
any copyright or other proprietary notice printed or stamped on,
affixed to, or encoded or recorded in any of the other party's
Proprietary Information, or fail to preserve all copyright and
other proprietary notices in any copy of any such Proprietary
Information, or (f) sell, market, license, sublicense, distribute,
transfer, convey, assign, or otherwise grant to any Person any
right to use any of' the other patty's Proprietary
Information.
ARTICLE VII
CONFIDENTIALITY
7.1
OptimizeRx
and Cegedim Dendrite shall each (i) hold the Confidential
Information of the other in trust and confidence and avoid the
disclosure or release thereof to any other person or entity by
using the same degree of care as it uses to avoid unauthorized use,
disclosure, or dissemination of its own Confidential Information of
a similar nature, but not less than reasonable care, and (ii) not
use the Confidential Information of the other patty for any purpose
whatsoever except as expressly contemplated under this Agreement
Each party shall disclose the Confidential Information of the other
only to those of its employees having a need to know such
Confidential Information and shall take all reasonable precautions
to ensure that its employees comply with the provisions of this
Section.
7.2
In the
event Confidential Information is required to be disclosed by law
or order of a court of competent jurisdiction or regulatory
authority, the receiving party shall furnish prompt written notice
of such required disclosure and reasonably cooperate with the
disclosing party, at the disclosing party's cost and expense, in
any effort made by the disclosing party to seek a protective order
or other appropriate protection of its Confidential
Information.
ARTICLE VIII
WARRANTY DISCLAIMER;
RELATIONSHIP
OF PARTIES
8.1 (a) Each party represents
and warrants that (i) it has the right and authority to enter into
this Agreement; and (ii) it has the right to perform its
obligations under and pursuant to this Agreement.
(b) THE WARRANTIES SET FORTH
IN SECTION 8.1(a) HEREOF ARE IN LIEU OF ALL OTHER REPRESENTATIONS
AND WARRANTIES AND THE PARTIES HEREBY DISCLAIMS ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR USE AND/OR A PARTICULAR
PURPOSE.
ARTICLE IX
INDEMNIFICATION
9.1 Each party (the
"Indemnitor") shall indemnify, defend and hold the other party (the
"Indeminitee") and its Affiliates and their respective directors,
officers, employees and agents (collectively, "Covered Persons")
harmless from and against any and all liabilities, damages, claims,
losses, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) (collectively, "Losses")
of third parties incurred by such Covered Persons arising out of or
in connection with the performance by the Indemnitor of its
obligations to a customer pursuant to a contract by and between the
Indemnitor and a customer, except to the extent such Losses were
caused by the Indemnitee.
ARTICLE X
LIMITATION OF
LIABILITY
10.1 IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY CIRCUMSTANCES FOR
SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE
WHATSOEVER (WHETHER ARISING OUT OF CONTRACT, STRICT LIABILITY, OR
OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES OR
PROFITS OF THE OTHER PARTY RESULTING FROM OR ARISING OUT OF A
BREACH OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL NOT
APPLY TO A BREACH OF A PARTY'S OBLIGATIONS UNDER ARTICLES VI OR
VII.
ARTICLE XI
EXCLUSIVITY
11.1 During the term of this
Agreement, OptimizeRx will exclusively (a) promote and market the
persistency card adjudication services of Cegedim Dendrite; and (b)
refer Potential Customers to Cegedim Dendrite for persistency
programs and card adjudication services.
11.2 During the term of this
Agreement, OptimizeRx shall exclusively use Cegedim Dendrite as its
pharmacy adjudication and persistency program management services
provider as part of the OFFERx Solution.
11.3 For one (1) year
following termination or expiration of this Agreement, OptimizeRx
shall not market or sell directly or indirectly any programs,
products or services with the brand or program name "OFFERx". This
Section 11.3 shall survive any termination or expiration of this
Agreement.
ARTICLE XII
TERM AND
TERMINATION
12.1 (a) This Agreement shall
commence on the date hereof and terminate on its one (1) year
anniversary (the "Initial Term") unless sooner terminated as
hereinafter provided. After the Initial Term, this Agreement may be
renewed with the mutual consent of the parties for additional six
(6) month periods.
(b) Either party may
terminate this Agreement at any time, with or without cause, upon
sixty (60) days written notice.
(c) Either party may
terminate this Agreement upon ten (10) days written notice
following (i) the filing of a voluntary or involuntary petition in
bankruptcy by or against the other party or (ii) the liquidation of
the other party.
(d) Neither party shall
incur any liability whatsoever for any damage, loss or expenses of
any kind suffered or incurred by the other party arising from or
incident to any termination of this Agreement which complies with
the terms of the Agreement whether or not the terminating party is
aware of any such damage, loss or expenses.
(e) Upon termination of this
Agreement for any reason whatsoever, each party: (i) shall
immediately discontinue any and all use of the other party's Marks;
(ii) shall immediately discontinue all representations or
statements from which it might be inferred that any relationship
exists between the parties; and, (iii) shall cease promoting,
soliciting and procuring orders for the other party's
Solutions.
(f) Upon termination of this
Agreement, the parties shall, within thirty (30) days of the
termination date, return or certify in writing the destruction of
the other party's Confidential Information in its possession,
custody or control in whatever form held, including, but not
limited to, copies or embodiments thereof or relating
thereto.
(g) The rights and
obligations of the parties under Articles III, IV, VI through XVII
and XIX through XXVII of this Agreement shall survive termination
of this Agreement.
(h) Notwithstanding any
termination or expiration of this Agreement as set forth herein,
this Agreement shall continue until the termination or expiration
of any services provided by Cegedim Dendrite pursuant to the terms
under Article IV (Reseller).
ARTICLE XIII
NOTICES
13.1 All notices required or
permitted by this Agreement will be effective only if given in
writing and sent by: (i) first-class U.S mail, postage prepaid;
(ii)
overnight delivery service with proof of receipt; (iii)
hand-delivery; (iv) facsimile with confirmation of receipt; or (v)
certified mail, return receipt requested, to the app
