genex-340basicssoftwarelicen.htm - Generated by SEC Publisher for SEC Filing







 





NON-EXCLUSIVE SOFTWARE LICENSE AGREEMENT (InfoPointTM for
340Basics)


This
Nonexclusive Software License Agreement ("Agreement") is entered
into, effective as of January 2, 2014 (the "Effective Date"), by and
between Genex Consulting, LLC, having a place of business at 103 Carnegie
Center, Ste. 300, Princeton, NJ 08540 (hereinafter "GENEX") and
340Basics Inc. having a place of business at 66 Ford Rd #230, Denville, NJ
07834 (hereinafter "340Basics").


WHEREAS,
GENEX has expertise in the area of software development, consultancy and
support, and GENEX has developed and owns certain proprietary software for
pharmacy benefit management and sales, known as InfoPointTM, which
is a proprietary software to support pharmacy benefit management, including
member eligibility, claims recording/reporting, member details, billing,
mail-order pharmacy sales, and has moreover adapted and optimized one version
of this software specifically to support compliance with the 340B Drug Pricing
Program of the Public Health Service Act (the 340B Program), and as well
as developing and maintaining associated functions and websites;


WHEREAS
340Basics is a company providing services to entities covered by the 340B
programs, such as clinics, hospitals and pharmacies, particularly services
relating to 340B Program reporting and compliance issues, whereas 340Basics
uses and desires to continue to use InfoPointTM software in its
business, and further desires to receive software consultancy and support
services from GENEX,


NOW,
THEREFORE, in consideration of the mutual covenants of the parties and for
other good and valuable consideration, the Parties hereby agree as follows:


1.        DEFINITIONS


a) "Licensed Software" refers to the following
software, as currently existing and used by 340Basics and as improved or
modified during the term of this Agreement: (i) InfoPointTM , which
is a suite of related software products for pharmacy benefit management,
including the following components: Member Login, Client Login, Eligibility
System, FileShare, Adminstrator Reporting, and Customer Service System, (ii)
software to support pharmacy operations, including Billing, Pharmacy Sales,
Claims Processing, Reports and Management Dashboard, (iii) software
specifically to support compliance












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with
the 340B Program and to optimize the foregoing software for use by entities
subject to the 340B Program, and (iv) websites where the foregoing software is
made accessible to users.


b) "340Basics Products" refers to pharmacy benefit management
services and products provided by 340Basics to its customers, particularly in
connection with pharmaceuticals sold pursuant to the 340B Drug Pricing Program
of the Public Health Service Act, including compliance with the 340B
requirements, processing and paying prescription drug claims, developing and
maintaining formularies, contracting with pharmacies, negotiating discounts and
rebates with drug suppliers, providing and administering prescription benefit
plans, and providing mail-order pharmacy sales and service.


 2.       LICENSE GRANT
AND OWNERSHIP OF LICENSED SOFTWARE


a)      Subject to the terms of this Agreement,
GENEX grants to 340Basics a worldwide, non­exclusive, non-transferable limited
license to use the Licensed Software in connection with 340Basics Products.


b)      The Licensed Software and any improvements
thereon shall remain the property of GENEX, protected by applicable
intellectual property law, including trade secret and copyright law. 340Basics
shall have no right to sublicense, assign or otherwise transfer all or any portion
of the Licensed Software or to use the Licensed Software for any purpose except
as expressly set forth in the Agreement.


c)      340Basics will not, during the term of
this Agreement or any time thereafter, attempt to access or modify,
misappropriate or make any copy of the Licensed Software, nor assist or
encourage others in doing so, nor attack, dispute or contest, directly or
indirectly, GENEX's exclusive right, title and interest in or to the Licensed
Software or the validity of the GENEX's ownership thereof.


 3.       SOFTWARE
HOSTING, SUPPORT AND CONSULTING


a) Subject
to the terms of this Agreement, GENEX grants to 340Basics a worldwide, non­exclusive,
non-transferable limited license to use the Licensed Software in connection
with 340Basics Products.












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b)     
The Licensed Software
and any improvements thereon shall remain the property of GENEX, protected by
applicable intellectual property law, including trade secret and copyright law.
340Basics shall have no right to sublicense, assign or otherwise transfer all
or any portion of the Licensed Software or to use the Licensed Software for any
purpose except as expressly set forth in the Agreement.


c)      340Basics will not, during the term of
this Agreement or any time thereafter, attempt to access or modify, misappropriate
or make any copy of the Licensed Software, nor assist or encourage others in
doing so, nor attack, dispute or contest, directly or indirectly, GENEX's
exclusive right, title and interest in or to the Licensed Software or the
validity of the GENEX's ownership thereof.


4.        SOFTWARE
HOSTING, SUPPORT AND CONSULTING


a)      The Licensed Software will be hosted on
dedicated servers set up and maintained by GENEX. Genex will obtain necessary
operating system software, including SQL server license, FileShare access, Secure
FTP server software, SSL certificates, EDI software, and backup and disaster
recovery software and storage, e.g., Microsoft Azure.


b)      GENEX will provide support for the
Licensed Software as follows:


i)       
Set-up, customization
and training.


ii)      Account Managers available by phone during
normal business hours, Monday through Friday.


iii)    340Basics's technical lead will be able to
contact GENEX's Lead Technical Engineer via cell phone for support.


iv)    GENEX will respond to most requests within
24 hours, critical issues will be responded to same day.


v)      Genex will proactively maintain and
monitor the server.












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5. PAYMENT


a) 340Basics will pay
GENEX as follows:


	
  SERVICE

  	
  FEE

  
	
  1)   Initial license and one-time set-up fee

  	
  $ ($35,000 less credit
  of for money already paid)

  
	
  2)     
  Monthly
  server operation and support, including 

  maintenance and backup for current level of service providing up to 8 feeds
  (data push/pull).

  	
  $4250/month

  
	
  3)      Additional monthly server cost for each
  feed in excess of 8 (exclusive of initial customization cost to set up feed)

  	
  $75/month/feed

  
	
  4)      Monthly basic license fee for Genex 

  340BasicsTm suite (Client Login, Member Login, Eligibility,
  Customer Service, FileShare)

  	
  $4500/month

  
	
  5)      User volume license
  fee for Genex 340BasicsTm suite (Client Login, Member Login,
  Eligibility, Customer Service, FileShare)

  	
  ·        
  1 to 99,999 end
  users (including members, patients and employees): Included in basic license
  fee above.

  ·        
  100,000 - 199,000
  m/p/e: Basic fee plus .20 per additional end user.

  ·        
  Over 250,000:
  Additional $.15 per additional end user.

  
	
  6)      Monthly hosting and support for website

  	
  $ Included on PCA
  agreement

  
	
  7)      Monthly hosting and support for Mobile
  CoPay Calculator

  	
  $50/month

  
	
  8)      Server support in excess of four hours
  per month 

  (up to 4 hours of support each month is included in the monthly server
  operation and support fee; these support hours do not carry over from month
  to month), as required by 340Basics

  	
  $150/hr

  
	
  9)      Customization support, as required by
  340Basics

  	
  $125/hr

  
	
  10)      Offsite development, as required by
  340Basics

  	
  $65/hr

  
	
  11)      Onsite development, as required by
  340Basics

  	
  $75/hr

  
	
  12)      Business analysis, testing,
  documentation, as required by 340Basics

  	
  $65/hr

  














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b)     
The regular monthly
payments (items 2-7 above) will be paid on a quarterly basis, payment for the
three months in each quarter to be provided no later than the first day of that
quarter. All other payments will be made against monthly invoice, payable
within 10 days of receipt. Any out-of-pocket charges will be reimbursed at
cost.


c)      Genex may, without terminating this
Agreement, suspend any services during any period in which 340Basics is
delinquent or in dispute in the payment of fees owing to Genex, or otherwise in
breach of this Agreement. Past due amounts owed hereunder shall accrue interest
at a monthly rate of 1.5%, compounded monthly, and Genex shall be entitled to
recover costs and reasonable attorney's fees in connection with any collection
action for monies owed hereunder.


d)      Genex shall have the right to increase the
prices in subsection 4(a) hereof upon the anniversary of this Agreement;
provided however that any such annual increase shall not exceed the greater of
five percent (5%) or the US Department of Labor Consumer Price Index for All
Urban Consumers (CPI-U) for the preceding 12 month period. Notwithstanding the
foregoing, Genex shall have the right to increase the Server Operation and
Support fee (item 2 in subsection 4(a) above) to offset the imposition or
increase of any rates charged by the communications common carriers or Genex's
timesharing or database suppliers, or if any change in the rules, regulations
or operating procedures of any service supplier or any cognizant federal, state
or local governmental agency or regulatory authority results in an increase in
the cost of providing the services requested by 340Basics. Any such increase
shall become effective as to 340Basics on the same day as such increase becomes
effective as to Genex.


6.        WARRANTY
AND INDEMNIFICATION


a) 340Basics
Indemnity: 340Basics will defend, indemnify and hold GENEX harmless from
and against any and all claims, losses, liabilities, damages, costs, and
expenses (including reasonable attorney's fees) arising from or related to any
use or disclosure of the Licensed Software not permitted under this Agreement.
In the event that GENEX is sued in a court of competent jurisdiction, 340Basics
will defend, indemnify and hold GENEX harmless from and against any and all
losses, liabilities, damages, costs and












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expenses (including reasonable attorneys fees) to the
extent the allegation is based on any claim arising out of any use or
modification of the Licensed Software not authorized under this Agreement, or
on any claim arising out of any negligence or misconduct by 340Basics.
340Basics warrants that it will take reasonable precautions to encrypt
transmissions and preserve the confidentiality of users' personal data and
information and of its own data, and GENEX assumes no liability for the
security of data transmitted by 340Basics to third parties outside the normal
scope of operation of websites maintained and operated by GENEX, e.g., custom
reports and the like or transmissions directly from 340Basics to third parties.


b)     
GENEX Indemnity: In the event that 340Basics is sued in a court of
competent jurisdiction for any claim that the Licensed Software, or its use as
authorized hereunder, infringes or misappropriates any intellectual property
right of any third party, GENEX will defend, indemnify and hold 340Basics
harmless from and against any and all claims, losses, liabilities, damages,
costs, and expenses (including reasonable attorney's fees). Genex warrants that
it will take reasonable precautions to encrypt transmissions and preserve the
confidentiality of users' personal data and information.


c)     
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY
TO THE OTHER AND ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED. EXCEPT FOR
PAYMENTS OWED HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST
PROFITS OR LOST DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY,
SERVICES, OR ANY CLAIMS BY THIRD PARTIES (INCLUDING BUT NOT LIMITED TO ANY
DEFENSE THEREOF). THE LICENSED SOFTWARE IS PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND/OR FITNESS FOR A
PARTICULAR PURPOSE. Liability of Genex for any and all claims arising out of or
relating to this Agreement shall, in the aggregate, not exceed one (1) month's
average billing to 340Basics taken over the twelve (12) months preceding












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the
month in which the damage or injury is alleged to have occurred, but if this
Agreement has not been in effect for twelve (12) months preceding such date,
then over


such fewer number of preceding full months
that this Agreement has been in effect.


 7.                   TERM
AND TERMINATION


a)      Term: This Agreement and the license granted herein shall be
effective from the Effective Date, or first use of the Licensed Software,
whichever event occurs first. The term of this Agreement shall run until
terminated in accordance with this Section 6.


b)      Termination for Cause: This Agreement may be terminated
immediately if either party materially fails to perform or comply with any
provisions of this Agreement.


c)      Termination for Convenience: This Agreement may be terminated by
either party as of the anniversary hereof, upon three months written notice,
provided all payments due hereunder have been made through the effective date
of termination.


d)      Effects of Termination: Upon termination, 340Basics shall
immediately discontinue all further use of the Licensed Software, including but
not limited to use in support of any 340Basics Product, or any sale of
340Basics Product utilizing the Licensed Software, and shall destroy any
tangible media held on which the Licensed Software exists, and remove the
Licensed Software from any and all systems.


 8.         INJUNCTIVE
RELIEF. 340Basics agrees that the provisions in this Agreement


regarding unauthorized use of the Licensed
Software and nondisclosure are necessary to protect the legitimate business
interests of GENEX. 340Basics also agrees that monetary damages alone cannot
adequately compensate GENEX if there is a violation of such provisions by
340Basics and that injunctive relief is essential for the protection of GENEX.
340Basics agrees, therefore, that if GENEX alleges that 340Basics has breached
or violated such provisions then, in addition to any other remedies it may
have, GENEX will have the right to petition a court of competent jurisdiction,
without the requirement for the posting of a bond, for injunctive relief
against 340Basics in addition to all other remedies at law or in equity.


 9.         CONFIDENTIALITY.
340Basics agrees that all source code, source documentation and


underlying
inventions, algorithms, know-how and ideas relating to the Licensed Software
are












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GENEX's proprietary information (hereinafter
"Proprietary Information"). Except as expressly and unambiguously
allowed herein, the 340Basics will hold in confidence and not disclose any
Proprietary Information to any third party nor use same for any purpose not
permitted hereunder. 340Basics and any third party receiving Proprietary
Information as expressly allowed in this Agreement are in the aggregate the
"receiving party." Proprietary Information is not intended to
include, and does not include, information that (i) is in or enters the public
domain without breach of this Agreement through no fault of the receiving party,
(ii) the receiving party was legally in possession of prior to receiving it,
(iii) the receiving party can demonstrate was developed by it independently and
without use of, or reference to, Proprietary Information, or (iv) the receiving
party receives lawfully from a third party not bound by obligations of
confidentiality thereto. If receiving party is required to disclose Proprietary
Information by law, court order, or government agency, such disclosure shall
not be deemed a breach of this Agreement provided that receiving party gives
GENEX prompt notice of such requirement in order to allow GENEX to object or
limit such disclosure, receiving party cooperates with GENEX to protect
Proprietary Information, and receiving party complies with any protective order
in place and discloses only the information required by process of law.
Obligations under this Section 8 survive the expiration or termination of this
Agreement.


10. GENERAL.


a)      Notices: Notices under this Agreement shall be in writing,
addressed to the Chief Executive Officer of the other party, and may be sent by
hand-delivery, courier or telefacsimile.


b)      Governing Law: THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW JERSEY
AND THE UNITED STATES WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS THEREOF
AND WITHOUT REGARD TO THE UNIFORM COMMERCIAL CODE, THE UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS OR OTHER
INTERNATIONAL SALES CONVENTIONS. The sole jurisdiction and venue for actions
related to the subject matter hereof shall be the state and federal courts
located in New Jersey. Both parties consent to the exclusive jurisdiction of
such courts and












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agree
that process may be served in the manner provided herein for giving of notices
or otherwise as allowed by law.


c)      Entire Agreement: This Agreement is the entire agreement
between the parties with respect to the subject matter hereof. It may not be
modified except by a written agreement signed by an authorized representative
of each party hereto.


d)      Force majeure: No liability shall result to any Party
from any delay in performance or from nonperformance caused by circumstances
beyond the reasonable control of the Party affected, including but not limited
to, acts of God, fire, flood, explosion, war, terrorism, action or request of
governmental authority, accident, labor trouble or shortage, unusually severe
weather, electrical power failures, telecommunication outages, or any other
circumstances of a similar or different nature beyond the reasonable control of
the Party affected.


e)      Independent Contractors: Nothing in this Agreement shall operate to
or be construed or interpreted as to render the Parties hereto as other than
independent contractors, nor shall anything in this Agreement operate or be
construed or interpreted as to render any Party, or any of such Party's
employees, agents or contractors, to be employees, agents, associates, joint
ventures or partners of the other Party.


t)    Severability: If any provision of this Agreement is held
by a court of competent jurisdiction 

to be illegal, invalid or unenforceable, that provision shall be limited or
eliminated to the minimum extent necessary so that this Agreement shall
otherwise remain in full force and effect and enforceable.


g)      Waiver: No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach of the
same or any other provisions hereof, and no waiver shall be effective unless
made in writing and signed by an authorized representative of the waiving
party.


h)      Assignment: Neither this Agreement, nor any rights,
licenses or obligations hereunder, may be assigned, transferred or sublicensed
by 340Basics without the prior written approval of GENEX.












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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth at the beginning of this Agreement.  All signed copies of this Agreement shall be deemed to be originals.


 


Genex Consulting, LLC                                 340Basics 


 


 


/S/ Anula Courtis                                               /S/ Natasha Giordano


Signature                                                          Signature


 


 


Anula Courtis                                                    Natasha Giordano                                            


Name                                                               Name


 


President                                                          President and Chief Executive Officer            


Title                                                                 Title


 


March 27, 2014                                                 March 27, 2014                                                           


Date                                                                 Date


 


 


 





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