FIDEX AMERICAS CORPORATION
ONE-TO-MANY
SOFTWARE DEPOSIT AGREEMENT
1. FIDEX AMERICAS CORPORATION ("FIDEX"), an Idaho corporation, agrees to allow
MedicaLogic, Inc. ("DEVELOPER") to DEPOSIT for potential delivery to certain
third parties ("LICENSEES"), the Software, Documentation and/or Other Material
deposited herewith, subject to DEVELOPER meeting and continuing to meet all the
terms in this Agreement. "LICENSEE" shall be used throughout this Agreement to
refer to each LICENSEE who becomes a third party beneficiary of this agreement
by meeting the terms and conditions for becoming one. FIDEX and DEVELOPER, IN
EXCHANGE FOR THE MUTUAL CONSIDERATION CONTAINED HEREIN, AGREE AS FOLLOWS:
2. LIMITED SCOPE OF AGREEMENT. This Agreement only defines the responsibility of
FIDEX relative to the Software deposited and the disposition thereof, and does
not define any other terms between LICENSEE and DEVELOPER, and does not waive
any rights, legal or otherwise, LICENSEE and DEVELOPER may have against one
another.
3. THIRD PARTY BENEFICIARIES. It is contemplated that there will be one or more
third party beneficiaries to this Agreement, referred to herein as LICENSEE.
Possession by a third party of a copy of this agreement bearing the notarized
signatures of both DEVELOPER and FIDEX shall be sufficient proof that said third
party participates in this agreement as LICENSEE.
4. "SOFTWARE" AND "DOCUMENTATION". The Software is the source code and related
computer files (such as executable program files, compiler, linker, third-party
libraries, etc.) used by DEVELOPER to create the software deposited herewith and
further identified in Exhibit A, and the Documentation is all documentation
agreed to between the parties as necessary to utilize and understand the
Software, and as described in Exhibit A. The Software is the proprietary and
confidential information of DEVELOPER and DEVELOPER desires to protect such
ownership and confidentiality.
5. INSPECTION. FIDEX will allow the inspection of the Software, Documentation
and other Materials (other than withdrawal of the Software, Documentation, and
other Materials in accordance with the terms hereof) only upon written
authorization from DEVELOPER, including the authorization set forth in paragraph
11 of this Agreement, or as otherwise directed by the final order of a court of
competent jurisdiction.
6. VERIFICATION. DEVELOPER will be entitled, at reasonable times during normal
business hours and upon reasonable notice to FIDEX during the term of this
agreement, to inspect the records of FIDEX with respect to the physical status
and condition of the Software, Documentation and other Materials.
7. RECEIPT BY FIDEX. DEVELOPER will furnish to FIDEX, at the time of deposit of
any Software, a packing list describing all Software, Documentation, or other
Materials deposited hereunder. FIDEX will issue a receipt for all Software,
Documentation, or other Materials deposited and forward copies of such receipts
and packing lists to DEVELOPER.
8. INITIATION OF DELIVERY OF THE SOFTWARE/DOCUMENTATION. In order for the
Software and/or Documentation to be delivered by FIDEX to LICENSEE in executable
or source code form, each of the following must occur: (1) Receipt by FIDEX of
written notification that an event causing delivery has occurred, explaining in
detail the basis for the assertion that such an event has occurred; (2) FIDEX
confirming that an event causing delivery has occurred; and (3) Prepayment of
Fidex's release processing fees. No delivery will occur until FIDEX can confirm
to its satisfaction that an event has occurred.
9. RELEASE PROCESSING FEES. The release processing fee is currently $750 when
the release is made at LICENSEE's request, and $100 when release is made at
DEVELOPER's request. If release is made at
Fidex Americas Corporation Escrow #000-877 Software Deposit Agreement, Page 1
LICENSEE's request the fee also includes referral to programmers competent with
regards to both the programming language and type of application. The release
fee is not subject to change during the first three years of the escrow account.
10. RIGHTS LICENSEE RECEIVES WITH SOFTWARE DELIVERED. DEVELOPER and LICENSEE
agree that when and if FIDEX delivers the Software to LICENSEE, LICENSEE only
obtains the following rights in the Software, and nothing more: (1) if the
Software is delivered in executable form, DEVELOPER grants and LICENSEE receives
a complete copy of the Software in executable form, and receives the same
license and right to use or otherwise deal with the Software as it had with the
original Software it received from DEVELOPER, (2) if the Software is delivered
as source code, DEVELOPER hereby grants and LICENSEE receives the license and
right to utilize the source code only to maintain and update the Software
licensed under the original license/agreement between LICENSEE and DEVELOPER.
11. EVENTS CAUSING DELIVERY OF SOFTWARE Upon occurrence of one or more of the
following events ("Release Events"), FIDEX agrees and is hereby specifically
authorized and instructed to provide the Software, Documentation, or other
Materials to LICENSEE upon written instruction by DEVELOPER or request by
LICENSEE. Prior to such request, however (i) LICENSEE must have given written
notice to FIDEX of the occurrence of the Release Event (the "Notice of Release
Event"); (ii) FIDEX or LICENSEE must have transmitted a copy of the Notice of
Release Event to DEVELOPER; and (iii) fifteen (15) days must have elapsed after
receipt of Notice of Release Event by DEVELOPER. The following are release
events:
11.1 DEVELOPER agrees in writing to the delivery.
11.2 DEVELOPER cannot be located by LICENSEE or by FIDEX as described in
paragraph 12 of this Agreement.
11.3 DEVELOPER is unwilling or unable to support the SOFTWARE pursuant to
the terms of a valid and existing license agreement with LICENSEE.
11.4 DEVELOPER files for protection under Chapter 7 of the U.S. Bankruptcy
Code and such proceeding has not been dismissed within sixty (60)
days after it has begun.
Notwithstanding the foregoing, the acquisition, merger or reorganization of
DEVELOPER shall not be deemed a Release Event provided the successor to
DEVELOPER assumes the obligations of DEVELOPER under the License Agreement and
this Agreement.
12. DEVELOPER'S DUTY AS TO WHEREABOUTS. It is DEVELOPER'S burden to keep FIDEX
fully and timely apprised of its current telephone, telefacsimile and mailing
address. Failure to do so may result in a proper transfer of the Software under
paragraph 11.2, above, if DEVELOPER cannot be located by FIDEX. Should LICENSEE
request delivery of the Software, FIDEX shall immediately attempt to contact
DEVELOPER by telephone, telefacsimile, overnight express, and certified mail,
return receipt requested. Should FIDEX be unable to contact DEVELOPER within 30
days of notice by certified mail, DEVELOPER will be considered to have ceased to
do business for the purposes of this agreement.
13. DISPUTES BETWEEN DEVELOPER AND LICENSEE. If at any time during the life of
this escrow any dispute shall arise between DEVELOPER and LICENSEE, FIDEX or any
other entity, as to the delivery by FIDEX of the Software, Documentation and
other Materials deposited hereunder or as to the ownership or right of
possession thereto, FIDEX shall not release the Software, Documentation, and
other Materials until: (a) both parties agree to such a release; or (b) a court
of competent jurisdiction orders FIDEX to release the Software, Documentation,
and other Materials. FIDEX may hold and retain in its possession without
liability, any or all of the Software, Documentation and other Materials
referred to in this Agreement, until such dispute shall have been settled, or it
may at its option, deposit the Software, Documentation and other Materials with
the Clerk of the District Court Bonner County Idaho, under the appropriate
statutory provisions for interpleader, and thereupon,
Fidex Americas Corporation Escrow #000-877 Software Deposit Agreement, Page 2
FIDEX shall be relieved of all liability with respect thereto. FIDEX shall be
entitled to all reasonable costs and attorneys' fees incurred therein from
LICENSEE and/or DEVELOPER.
14. LICENSE TO FIDEX. DEVELOPER hereby grants to FIDEX the following rights and
license to the Software Documentation and other Materials: For any and all
purposes consistent with this Agreement, including, without limitation, to copy,
use and display the Software and the Documentation: to copy the source code; to
use the Software to produce executable copies of the Software; to provide
verification services; to deliver copies of the Software (source code and/or
executable copies) and/or Documentation and other Materials, to the LICENSEE,
consistent with the terms of this Agreement.
14.1 CERTAINTY. If FIDEX is uncertain of its duties or rights hereunder, it
will refrain from taking any action other than to retain the Software,
Documentation, and other Materials safely until it is directed otherwise in
writing by DEVELOPER and LICENSEE jointly or by final order of a court of
competent jurisdiction. Except as expressly provided in this agreement,
FIDEX agrees that it will not divulge or disclose or otherwise make
available to third parties whatsoever, or make any use whatsoever, of the
Software or of any information deposited with it by DEVELOPER in connection
with this Agreement, without the express prior written consent of
DEVELOPER.
14.2 RESTRICTION ON ACCESS. Except as required to carry out its duties
hereunder, FIDEX shall not permit any FIDEX employee, LICENSEE or any other
person access to the Software, Documentation, and other Materials unless
consented to in writing by DEVELOPER. FIDEX shall use its best efforts to
avoid unauthorized access to the Software by its employees or any other
person.
15. LICENSEE BEARS RISK OF DEFICIENT DEPOSIT. LICENSEE agrees that FIDEX makes
no representations or warranties as to what it receives and performs no testing
or verification to determine what it has received, whether what it received is
what DEVELOPER says it is, or anything other than it has received something from
DEVELOPER. Between LICENSEE and FIDEX, LICENSEE bears the entire risk that the
escrowed Software is what LICENSEE expects it to be.
16. LICENSEE'S RESPONSIBILITY TO LICENSE THIRD-PARTY FILES. FIDEX, DEVELOPER,
and LICENSEE agree that if the escrowed Software includes copyrighted computer
files which are not the property of DEVELOPER, such as compiler, linker, and
third-party programming libraries, FIDEX shall not release said copyrighted
computer files to LICENSEE until one of the following occurs: (1) LICENSEE
demonstrates to FIDEX'S satisfaction that LICENSEE or LICENSEE'S agent is
licensed to use said copyrighted computer files, or (2) LICENSEE demonstrates to
FIDEX'S satisfaction that LICENSEE is unable to obtain said license because the
owner of said copyrighted computer files cannot be located.
17. DEVELOPER REPRESENTATIONS/WARRANTIES. DEVELOPER represents and warrants: (a)
It is depositing with FIDEX the exact Software, Documentation and other
Materials stated in Exhibit A; and (b) To DEVELOPER'S knowledge, there is
nothing in the deposited Software which will in any way disable, hinder or
interfere with its use by LICENSEE should it later have to be delivered to
LICENSEE.
18. PAYMENT/COMPLIANCE. DEVELOPER or LICENSEE agree to pay FIDEX all fees and
charges at the rates in effect at the time of the service or charge, including
applicable sales tax. DEVELOPER and LICENSEE understand and agree that the
applicable fees and charges may be changed by FIDEX from time to time. FIDEX'S
costs, expenses, charges and attorney's fees in connection with this Agreement
are hereby made a first and paramount lien upon: the Software, Documentation and
other Materials deposited. All of FIDEX'S obligations are all strictly
conditioned upon FIDEX being paid its fees.
19. FIDEX NOT PART OF ANY TRANSACTION. DEVELOPER and LICENSEE agree that FIDEX
HAS NO INVOLVEMENT OR LIABILITY RELATING TO ANY UNDERLYING SOFTWARE LICENSING
AGREEMENTS, SERVICE CONTRACTS OR ANY OTHER AGREEMENT BETWEEN DEVELOPER AND
LICENSEE, OR ANY OTHER ENTITY. DEVELOPER and LICENSEE further agree that this
Fidex Americas Corporation Escrow #000-877 Software Deposit Agreement, Page 3
Agreement creates no obligation on the part of FIDEX, other than to receive,
hold, and release the Software, Documentation and other Materials as agreed
herein.
20. DISCLAIMER AND LIMITATION OF FIDEX LIABILITY. DEVELOPER and LICENSEE agree
that FIDEX shall not be liable: (a) For its acts or omissions in good faith not
resulting from gross negligence; (b) For any indirect, special or consequential
damages, including, without limitation, lost business or profits; (c) For any
direct damages in excess of the amount paid by DEVELOPER or LICENSEE, to FIDEX
for the deposit or maintenance fees for the Software in question. Without
limiting the foregoing, FIDEX shall not be liable for any of the following: Any
obligations between LICENSEE and DEVELOPER; The correctness, completeness or
sufficiency of Software, Documentation or other Materials held pursuant to this
Agreement; For failure to notify any party of non-payment or declaration of
default in any of the terms set forth herein; For the deposit, procurement or
renewal of insurance policies or any riders or additional clauses; For payment
of insurance premiums or taxes of any kind; or For the performance of any act
not expressly set forth in this Agreement even though contained in the documents
or materials deposited.
21. TERMINATION. FIDEX may terminate this Agreement at any time for any reason,
with 30 days written notice, and without further obligation or liability, by
sending DEVELOPER and LICENSEE notice of termination and a pro-rated refund of
annual fees. No other fees will be refunded. DEVELOPER may terminate this
agreement upon termination of DEVELOPER'S mainenance obligations. Even if
terminated, DEVELOPER remains liable to FIDEX for all fees, charges and services
provided up to the time of termination. In the event of termination of this
Agreement, FIDEX agrees to redeliver to DEVELOPER all Software, Documentation
and other Materials deposited hereunder and this agreement will thereupon
terminate.
22. DISCHARGE OF FIDEX. FIDEX may be discharged by DEVELOPER at any time for any
reason, with thirty (30) days written notice specifying a date when such
discharge will take effect. Prior to the effective date of such termination of
this Agreement, DEVELOPER will arrange for the services of a new escrow agent
reasonably acceptable to LICENSEE. DEVELOPER and LICENSEE agree to execute and
deliver another escrow agreement with such new escrow agent having substantially
the same terms as this agreement. Upon DEVELOPER'S notifying FIDEX of the name
and address of the new escrow agent, FIDEX, agrees to forward the Software,
Documentation and other Materials to such new escrow agent.
23. COSTS, ATTORNEYS' FEES. That if any party has to enforce any terms of this
Agreement, the prevailing party shall be entitled to all costs and disbursements
incurred by that party, including reasonable attorneys' fees.
24. INDEMNIFICATION. DEVELOPER and LICENSEE jointly and severally agree to fully
indemnify, defend and hold FIDEX harmless if FIDEX incurs any damage or loss of
any kind, as a result of DEVELOPER'S or LICENSEE's conduct, and in the event
FIDEX must in any way become involved in a dispute between them. This
indemnification includes all FIDEX' damages and losses of any kind, including
all costs and attorneys' fees.
25. ARBITRATION/APPLICABLE LAW/JURISDICTION/VENUE. If a dispute arises which
involves FIDEX, it is agreed that the exclusive method to resolve the dispute
shall be by arbitration in accordance with the State of Idaho's Arbitration Act,
unless later agreed in writing by FIDEX. The laws of the State of Idaho shall
govern the construction and interpretation of this Agreement and all disputes
between the parties, and each party agrees that the trial/arbitration of all
disputes involving FIDEX shall be in the State of Idaho, County of Bonner and
each agrees to the jurisdiction of the Idaho courts. Each may conduct discovery
pursuant to Idaho civil rules. Any action against FIDEX must be brought within
one year from the event or action disputed, or it is forever barred.
Notwithstanding the foregoing, any party to this agreement may seek injunctive,
including preliminary, relief in the U.S. District Court for Eastern Washington,
in Spokane, Washington, or in the First District Court of the State of Idaho in
Sandpoint, Idaho. Anything other than injunctive relief is subject to the
limitations of this section regarding arbitration, applicable law, jurisdiction,
and venue if FIDEX is a party to the dispute.
26. MODIFICATION, COMPLETE AGREEMENT. This Agreement contains the entire and
final agreement
Fidex Americas Corporation Escrow #000-877 Software Deposit Agreement, Page 4
involving FIDEX (not necessarily between LICENSEE and DEVELOPER) and supersedes
all prior discussions, negotiations, correspondence and discussion of any kind,
and can only be modified in a writing signed by the party against whom
enforcement is sought. However, the FIDEX Current Prices and Charges are subject
to subsequent unilateral modification by FIDEX with thirty (30) days prior
written notice.
27. HEADINGS/TITLES NOT GOVERNING. The headings and titles used herein are for
descriptive purposes only and should not be used to construe or interpret the
meaning of any paragraphs, sentences or statements made herein.
28. SIGNATURE IN PARTS. This agreement may be executed in several parts and its
validity if so executed shall be the same as if all signatures were to appear on
one sheet.
29. DEVELOPER AND LICENSEE HAVE FULLY READ AND UNDERSTAND THE TERMS OF THIS
AGREEMENT AND AGREE TO BE BOUND BY ALL OF THEM.
DATED this 15th day of April, 1996.
SOFTWARE DEVELOPER: FIDEX AMERICAS CORPORATION:
MedicaLogic, Inc.
STEVEN OLSON
GUY E. FIELD ----------------------------------
- ---------------------------------- Authorized Signature
Authorized Signature Name (Printed): Steven Olson
Name (Printed): Guy E. Field -------------------
------------------ Position: President
Position: Controller -------------------------
------------------------
Notice Address: STATE OF IDAHO )
------------------ COUNTY OF BONNER ) ss.
Telephone: ( )
---------------------- On this 23 day of April , 19 96 ,
Telefacsimile: ( ) before me, a Notary Public in and
------------------- for said state, personally appeared
Steven Olson, who, being by me
STATE OF OR ) first duly sworn, declared that he
-------------- is the President of Fidex Americas
COUNTY OF WASH ) ss. Corporation, that he signed the
------------- foregoing document as President of
the corporation, and that the
On this 15 day of April, 1996, statements contained therein are
before me, a Notary Public in and true.
for said state, personally appeared
Guy E. Field , who, being by me JENNIFER FAUBEOTHER, Notary Public
first duly sworn, declared that he -------------------
is the of , that he signed the Residing at 11121 Cedar, ID
foregoing document as Controller of ---------------
the corporation, and that the My commission expires 11/15/00
statements contained therein are --------
true.
MARY EVERS ZOUCHA, Notary Public
- -----------------
Residing at Beaverton, OR
-------------
My commission expires 3/27/99.
-------
OFFICIAL SEAL
[SEAL] MARY EVERS ZOUCHA
NOTARY PUBLIC - OREGON
COMMISSION NO. 042533
MY COMMISSION EXPIRES MARCH 27, 1999
Exhibits: Exhibit A: Description of Software and Documentation Submitted for
Escrow
Exhibit B: LICENSEE registration and signature page.
Fidex Americas Corporation Escrow #000-877 Software Deposit Agreement, Page 5
EXHIBIT A
DESCRIPTION OF SOFTWARE AND DOCUMENTATION
SUBMITTED FOR ESCROW
Software Program Name: Logician version 4.6.1_7
E&M Advisor
Merge/Delete Patient
Encounter Form Editor version 1.6.3
Software Developer MedicaLogic, Inc.
20500 NW Evergreen Parkway
Hillsboro, OR 97124
Brief Description of Program: Package of Electronic Medical Record (EMR)
products, including scheduling (ScheduLogic),
data exchange (LinkLogic), and EMR (Logician)
Programming Language and Tools: Compiler, Linker, Import Library Manager,
Resource Compiler, Make, Debugger:
Microsoft C++
version 4.2b
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Database: Multi User Server: Oracle
version 7.3
Oracle Corporation
500 Oracle Pkwy
Redwood City, CA 94065
Single User Server: Watcom
version 4.0
Sybase, Inc.
6475 Christie Avenue
Emeryville, CA 94608
Client Network Interface:
SQLNet SPX/IPX for Windows
SQLNET TCP/IP for Windows
version 2.3
Oracle Corporation
500 Oracle Pkwy
Redwood City, CA 94065
Client: Windows Libraries
version 7.1
Oracle Corporation
500 Oracle Pkwy
Redwood City, CA 94065
DB Admin Tools: SQLPLUS
version 3.1
Revised 3/4/99
Oracle Corporation
500 Oracle Pkwy
Redwood City, CA 94065
Single User Admin Tools: ISQL
version 3.2
Sybase, Inc.
6475 Christie Avenue
Emeryville, CA 94608
Schema Tools: S-Designer
version 4.1
Sybase, Inc.
6475 Christie Avenue
Emeryville, CA 94608
Installation: Installation Software: InstallShield
version 3
InstallShield Corporation
P.O. Box 74904
Chicago, IL 60675-4904
Third-Party Libraries: Database Driver: Watcom ODBC Driver
version 3.2
Sybase, Inc.
6475 Christie Avenue
Emeryville, CA 94608
Database Driver: ODBC Driver Manager
version 2.0
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Report Software: Crystal Reports Print Engine
version 4.0
Crystal A. Seagate Software Company
1095 West Pender St., 4th Floor
Vancouver, B.C., V6E 2M6 Canada
Spell Checker: Visual Spell Checker
version 1.01
VisualTools, Inc.
15721 College Blvd.
Lenexa, KS 66219
Memory Management: Smartheap
version 3.0
MicroQuill Software Publishing Inc.
10500 Valley View Rd.
Bothell, WA 98011
Charting/Graphics: ChartFX
version 3.0
SoftwareFX, Inc.
7100 West Camino Real, Ste 117
Boca Raton, FL 33433
Imaging: Image Gear
Accusoft Corp.
Revised 3/4/99
2 Westborough Business Park
Suite 3013
Westborough, MA 01581
Third-Party Data: HealthLogic Patient Educational Handouts
version: updated annually
Clinical Reference Systems
7100 E. Belleview Ave, Suite 208
Greenwood Village, CO 80111
ICD9, CPT4 Coding Superhelp
version: updated annually
Context Software Systems, Inc.
241 Sourth Frontage Road, Suite 38-39
Burr Ridge, IL 60521
Pharmacologic Medications, Interactions, Drug
Handouts
version: update quarterly
Medi-Span
8425 Woodfield Crossing Blvd.
P.O. Box 40930
Indianapolis, IN 46240-0930
SNOMED Coding Superhelp
version: updated semi-annually
College of American Pathologists
325 Waukegan Road
Northfield, IL 60093-2750
Source Code Revision Control:
MKS RCS
version 2.0
Mortice Kern Systems, Inc.
35 King Street
North Waterloo, ONT, N2J 2W9 Canada
Documentation: Using Logician Manual
Managing Logician Manual
Learning Logician Manual
LinkLogic Interface Developer's Manual
QA Tools: QA Partner
version 4.0
Seque Software, Inc.
1320 Center St.
Newton Centre, MA 02159
Winrunner
version 4.01
Mercury Interactive Corp.
470 Potrero Ave.
Sunnyvale, CA 94086
Revised 3/4/99