Exhibit
10.1
SERVICE AGREEMENT
This Connectivity Agreement ("Agreement") is
entered into as of November 30, 2007 ("Effective Date") by
and between eRx Network, LLC ("eRx"), with offices at 301
Commerce Street, Suite 3150, Fort Worth Texas 76102, and Vemics,
Inc. , A Nevada Corporation, with offices at 523 Avalon
Gardens, Nanuet, NY 10954, ("Vemics").
Recitals
Whereas The
Vemics iMedicor Portal (“Imedicor”) gives physicians
and healthcare professionals the ability to exchange patient
Protected Health Information (“PHI”) with other
healthcare organizations in a HIPAA compliant environment and
manner. In addition, IMedicor also makes available to it’s
users a catalog of Certified Medical Education (“CME”)
content and a system that facilitates the use of voice recognition
software modify, edit and create text files.
Whereas eRx
is a healthcare network organization offering a variety of
financial and clinical electronic data interchange transaction
services to subscribing healthcare providers and pharmacies. These
services include faxing and electronic prescription transaction
routing to subscribing healthcare providers of its own or
others’ software and/or networks through its proprietary,
secure, national network (“eRx Pad®”).
Whereas eRx
desires to establish a connection from eRx Pad® to
Partner’s web portal in order to facilitate the exchange of
Prescription Data between eRx Subscribers and Vemics’s
Subscribers. Functionality and components of this connection will
include, but are not limited to, the following:
A. eRx and
Vemics will work together to implement a system to allow
Physician(s) to view refill requests, and approve or deny these
prescription requests from Pharmacy’s utilizing the eRx
Pad®, the IMedicor Portal and the Partner Web
Portal.
B. On a
non-exclusive basis, Vemics will make available to all authorized
IMedicor Subscribers the Partner Web Portal, and eRx will make
available all eRx Subscribers on eRx Pad®.
C. eRx will
work with their customers and Vemics to advise their facsimile
customers of the ability to issue refill request through Partner
Web Portal rather than by facsimile. eRx and its
customers have the right of refusal regarding messaging, including
placement and message content that does not facilitate the goals of
this agreement
NOW, THEREFORE, intending to be
legally bound hereby, eRx and Vemics agree as follows:
1.
DEFINITIONS
. Defined terms used in
this Agreement but not otherwise defined herein shall have the
meanings set forth in this Article 1 as follows:
1.1.
"Confidential
Information" shall mean
confidential or other proprietary information that is disclosed by
one party to the other party under this Agreement, including,
without limitation, designs, software designs and code, product
specifications and documentation, business and product plans,
patient information, prescription information or data, Individually
Identifiable Health Information and clinical data contained in the
Prescription Data communicated between the parties, and other
confidential business information. Confidential
Information shall not include information which: (i) is or becomes
public knowledge without any action by, or involvement of, the
party receiving the Confidential Information hereunder; (ii) is
independently developed by the receiving party without use of the
other party's Confidential Information; (iii) is already known to
the receiving party at the time of disclosure under this Agreement;
or (iv) is disclosed to the receiving party by a third party who is
entitled to disclose it without restriction.
1.2.
"Connectivity Service"
shall mean the service of providing
connectivity between the Partner Web Portal and eRx Pad®
through which Prescription Data may be exchanged between the
parties on a non-exclusive basis.
1.3.
"eRx Interface "
shall mean the eRx portion of the
bi-directional interface developed by eRx based on the Interface
Specifications.
1.4.
"eRx Subscriber"
shall mean a registered pharmacy
customer of eRx Pad® using an eRx software product or some
other third -
party software product to send and
receive transactions through eRx Pad®.
1.5.
“IIHI”
shall mean all individually
identifiable health information as defined in the Health Insurance
Portability and Accountability Act of 1996, as amended, and the
regulations promulgated thereunder, that is provided, directly or
indirectly, by or on behalf of one party to the other
party.
1.6.
"Intellectual Property
Rights" shall mean all
forms of intellectual property rights and protections and
proprietary rights, including without limitation, all right, title
and interest arising under United States common and statutory law
and the laws of other countries to all: (i) patents and all filed,
pending or potential applications for patents, including any
reissue, reexamination, division, continuation or
continuation-in-part applications throughout the world now or
hereafter filed; protecting all rights of patentability (ii) trade
secret rights and equivalent rights; (iii) copyrights, other
literary property or authors rights, whether or not protected by
copyright or as a mask work; (iv) proprietary indicia, trademarks,
trade names, symbols, logos and/or brand names and (v) inventions,
know-how, methodologies and industrial design rights.
1.7.
“ Interface
Specifications ” shall mean the set of written documents
that represents the agreed to technical design and functionality of
the connection between eRx Pad® and Partner Web Portal as set
forth in Exhibit A, incorporated herein by
reference. The Interface Specifications will also
include, without limitation, transaction specifications for
Prescription Data, and business rules, policies and procedures
relating to the Prescription Data flow between eRx Pad® and
Partner Web Portal.
1.8.
"Partner Web Portal
Interface" shall mean
Vemics’s portion of the bi-directional interface developed by
Vemics based on the Interface Specifications.
1.9.
“ Prescription Data
” shall mean the following types of transactions: original
prescriptions; refill authorization requests; refill
authorizations; stop orders; and other mutually agreed upon
transaction types (as they become available from
pharmacies).
1.10.
“Privacy
Rule” shall mean
the Standards for Privacy of Individually Identifiable Health
Information, 45 C.F.R. Parts 160 and 164.
1.11.
"Vemics Subscriber"
shall mean a Vemics customer who is
an authorized physician using a Vemics software product or some
other third-party software product and/or network to send and
receive transactions through Partner Web Portal.
1.13. “Security Rule”
shall mean the Security Standards for Protection of
Electronic Protected Health Information at 45 C.F.R. Part 164,
subpart C.
1.14. "System"
shall mean either the Partner Web
Portal or the eRx Pad®, as applicable, and "Systems" shall mean
the Partner Web Portal and the eRx Pad®.
2.
SERVICES, SUPPORT AND SYSTEM
MODIFICATIONS.
2.1.
General. Subject to the terms of this
Agreement, eRx and Vemics will mutually implement the Connectivity
Service using a bi-directional interface between the eRx Pad and
Partner Web Portal to facilitate the exchange of prescription
related data (i.e. refill prescription request messages) between
eRx Subscribers and IMedicor Subscribers. In connection
therewith, eRx will act as an aggregator of Prescription Data for
eRx Subscribers and Vemics will act as an aggregator of
Prescription Data for IMedicor Subscribers. All Prescription Data
to be exchanged between eRx Pad® and Partner Web Portal will be
transmitted through the single interface between the eRx Pad and
Partner Web Portal. Each party shall be responsible for providing
technical support related to the Connectivity Service for users of
its System in accordance with its own support policies. Each party
shall be also responsible for operating its system in a HIPAA
Compliant Manner.
2.2.
Customer Comments.
Each party shall forward
to the other party any comments or complaints received by each
party with respect to the other party's System or the Connectivity
Service in a timely manner.
2.3.
Periodic Review.
At such times as the
parties mutually agree, they will meet to review the Connectivity
Service and to discuss any appropriate changes to the
specifications or implementation of the Connectivity
Service.
2.4.
System
Modifications. During the Term of this Agreement, neither party
will modify its System so that it no longer exchanges Prescription
Data in accordance with the Interface Specifications unless (i) eRx
notifies Vemics in writing of its intent to make such modifications
as soon as reasonably practicable in advance of the anticipated
implementation date of such modification, (ii) Vemics notifies eRx
in writing of its intent to make such modifications as soon as
reasonably practicable in advance of the anticipated implementation
date of such modification, or (iii) the parties mutually agree in
writing to revise the Interface Specification. Each
party shall be responsible for expenses incurred for its own
modifications. Each party has the right to modify its System to
remain compliant with the HIPAA regulations.
2.5.
Fees. There are no fees associated with
providing this service. eRx has the right to charge its
customers a standard fee for transactions routed to the Partner Web
Portal. Vemics will not solicit or charge any fees for
the Partner Web Portal service to eRx customers accept as mutually
agreed to by the parties in advance any fee being charged. Vemics
shall have the right to charge Vemics Subscribers a fee for using
the Partner Web Portal.
3.
CONFIDENTIALITY and
PRIVACY.
3.1.
Protection of Confidential
Information. Each Party agrees not to use, transfer or
otherwise disclose the Confidential Information of the other Party
to any third party, except as required to perform its obligations
under this Agreement or as otherwise provided by
law. Each Party shall (i) give access to such
Confidential Information solely to those employees or independent
contractors with a need to have access thereto f
