**EXHIBIT 10.43**

 

**NURSING HOME LICENSING AGREEMENT**

                        AGREEMENT,made as of May 01, 2004, by and between HEALTHRAMP, INC., (the "Company"), withoffices located at 33 Maiden Lane, (5th Floor), New York, New York10038, and AGAWAM NURSING LLC, doing business as Country Estates of Agawam (the"Facility"), with offices located at 1200 Suffield Street, Agawam, Massachusetts01001. 

                         WHEREAS,the Company has developed and owns and/or has the rights to certain electronicprescribing and ordering technology; and 

                        WHEREAS,the Facility desires to use the Company's electronic prescribing and orderingtechnology at its 176-bed residential health care facility located at 1200Suffield Street, Agawam, Massachusetts 01001, and to receive support servicesrelating to such technology.

                        NOW,THEREFORE, in consideration of the mutual promises contained herein, and forother good and valuable consideration, the receipt of which is herebyacknowledged, the parties hereto agree as follows: 

            1. CertainDefined Terms.

            (a)   "System"means the Company's CareGiver Program electronic prescribing and orderingtechnology, including the equipment described on Schedule A annexedhereto (the "Equipment").

            (b) "Documentation"means, collectively, the user manuals, operating instructions, help screens andother technical information and materials, whether in written or electronicform, delivered to the Facility with the System and that are intended for use inconnection with the System.

            (c)   "Implementation"means the implementation services that the Facility orders from the Company inconnection with the installation and preparation of the System, as set forth inthe Implementation Plan described in Section 3(a) (the "ImplementationPlan").

            (d)   "License"means this Agreement and schedules and/or exhibits annexed hereto, whichtogether describe the parties' contractual relationship regarding the Facility'suse of the System.

            (e)   "Training"means written and oral instructions to be provided to employees or staff of theFacility regarding the operation of the System, as more specifically describedin the Implementation Plan.

            (f)   "Updates"means any update, modification, anomaly correction or new release of anycomponent of the System that the Company makes generally available to itsmaintenance customers at no additional license fee and that is intended toreplace a prior release of that System component.  The term "Updates"does not include new versions of a System component.

            2. License

            TheCompany grants the Facility a non-exclusive, non-transferable, license to usethe System and Documentation on the Facility's premises and in connection withthe operation of the Facility's business.  The Facility shall restrictthe use of the System to include only its employees and staff and only for usein connection with the operation of the CareGiver program.

            3. Services.

            TheLicense includes the following rights and services to be provided to theFacility:

            (a)   Start-UpServices. As soon as is mutually convenient following the execution ofthis Agreement, representatives of the parties shall meet and agree upon anImplementation Plan for the System.  The Implementation Plan willdescribe and schedule the implementation and training services requested by theFacility and the estimated number of hours of suchservices.  All services to be provided to the Facility pursuantto this Agreement will be provided by the Company or its designee(s).  Any parties providing services under the Agreement willbe bound by the confidentiality covenant set forth in thisAgreement.  The Facility shall provide, or arrange for, an adequateand appropriately equipped classroom for training purposes.  TheFacility shall assist the Company, or its designee(s), in scheduling trainingsessions and shall require all staff members who will have the right to accessthe System to attend the training sessions conducted by the Company or itsdesignee(s).  The Facility shall provide nursing shift schedules andavailable training schedules to the Company, at least 30 days prior tothe  completion of installation of the System. 

            (b)   Support. Telephonesupport ("Support") for the System between the hours of 8:00 a.m. and 7:00 p.m.,Eastern time, Monday through Friday, excluding weekends and nationalholidays.  Telephone support services will include assistance relatedto routine questions regarding use of the System, assistance in identifying andverifying the causes or suspected errors or malfunctions in the System andadvice on remedies for identified errors or malfunctions, where reasonablyavailable.    

            (c) ErrorCorrection.  Commercially reasonable efforts will be used tocorrect a reproducible error in the System so as to cause the System to functionin accordance with the specifications outlined in theDocumentation.  The Company does not represent to the Facility thatthe System will be error-free or that all errors that are discovered in theSystem can or will be corrected.  The Documentation will be modifiedas necessary to reflect any completed error corrections.

            (d) Updates.   Atno additional cost, the Facility will be provided with Updates for the System asUpdates of the applicable System component(s) are made generally available toother facilities.  All Updates shall become subject to thisAgreement.  The Facility will be charged the hourly rates specified onSchedule A for any training services requested by Facility following thedelivery of any Updates.  In all cases, requests from Facilitydesignated personnel for services hereunder will be responded to in a manner andtime frame which take into account the nature and severity of the problem whichgave rise to the request.

            4. Equipment.

             TheCompany shall lease the Equipment to the Facility.  The Company willinstall and pay the cost of the wireless network and the high speed Internetcommunication interface with which the System will operate.  TheCompany shall provide routine maintenance for the Equipment.

            5. LicenseFee; Other Charges; Payment Terms.

            (a) Unlessthe License is terminated in accordance with the provisions of Section 5(b)hereof, in consideration of the License and the other covenants undertaken bythe Company, the Facility, beginning on the ninety-first day after thecommencement of the Term of License (as hereinafter defined), shall pay to theCompany the Monthly License Fee and other charges set forth in the ScheduleA annexed hereto as provided in such schedule.  The Company willinvoice the Facility monthly for services. All fees and charges shall bedue and payable upon invoice by the Company.  Any fees or charges thatare not paid within ninety (90) days of invoice date will bear interest at therate of 1.5% per month or, if lower, the maximum rate allowed bylaw.  The Facility shall be responsible for all sales, use or othertaxes applicable to the transactions described in this License (excluding incometax payable by the Company).

            (b) Inthe event the Facility terminates the License in accordance with the provisionsof  Section 14(b) hereof, the Facility shall pay to the Company theEquipment and Installation Costs set forth on Schedule A , within __ daysof such termination.     

            6. Term;Renewal

            Subjectto the provisions of Section 14 hereof, the License shall be in effect for theTerm of License set forth on Schedule A annexed hereto.  TheLicense shall automatically renew from year to year thereafter unless (a) it isterminated as provided in Section 14; or (b) either party gives the otherwritten notice of its intent not to renew the License no less than one hundredeighty (180) days before the end of the initial or any renewal term. The Companymay change the Monthly License Fee as of the beginning of any renewal term uponat least seventy-five (75) days advance notice. The Company shall notincrease the Monthly License Fee for any renewal term by more than 10% over theMonthly License Fee in effect for the preceding term.

            7.  FacilityResponsibilities

         TheFacility shall (a) organize and input its data into the System in a fashion thatis reasonably acceptable to the Company; (b) provide qualified and trainedpersonnel to operate and maintain the System; (c) designate no more than twoqualified persons to interact with the Company during the performance ofImplementation, Training and Support services; (d) adhere to the ImplementationPlan, as amended by the parties from time-to-time, (e) assist the Company inperforming diagnostic activities in connection with a request for services underthis Agreement; and (f) not modify the System.  The Facilityacknowledges that Implementation services cannot and will not begin until theFacility has designated personnel who are qualified to operate theSystem.  

            8.  Title;Warranties; Remedies

            (a)The Company warrants that (i) it has full authority to enter into the License;(ii) the System will function in accordance with the Documentation; (iii) theSystem does not infringe upon any patent, copyright, trade secret, trademark orother proprietary right of any third party; and (iv) the System will record,store, process and present calendar dates on and after January 1, 2000 in thesame manner and with substantially similar functionality as it records, stores,processes and presents dates prior to January 1, 2000. The Company makes nowarranty regarding the functionality of the System as it interfaces with orprocesses data received from third party software that is not programmed torecord, store, process and present dates on or after January 1, 2000.

            (b) Ifthe Company breaches the foregoing warranties, the breach will be remediedwithin a commercially reasonable time after it receives written notice of thebreach in one of the following fashions: 

(i)  Rewrite the System so as to avoid infringing the rights of any third party inelements of System;

(ii)  Obtainfrom any third party with prior rights in any element of the Systemthe  rightto incorporate those prior rights into the System; or

(iii)Revise the System so as to cause it to function in accordance with theDocumentation.

            (c)   Thewarranties provided in this Section shall not apply if (i) the System is not usein accordance with this License or the Documentation; (ii) any part of theSystem has been modified by the Facility or by a third party without theCompany's prior written consent; or (iii) the Facility's malfunctioningequipment or third party software has caused a failure in performance of theSystem.

            (d)   Thissection contains all warranties made by the Company regarding theSystem.  ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, THEIMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AREEXPRESSLY DISCLAIMED.

            9. Indemnification.

            TheCompany will indemnify and hold the Facility harmless against any claim that theSystem or any part thereof violates a third party's patent, copyright or otherproprietary rights.  The Facility shall give the Company promptwritten notice of any such claim that is asserted against the Facility or theSystem.  Immediately after learning of a claim that is subject toindemnification, the Company shall diligently defend or settle that claim onsuch terms as it considers appropriate.  The Facility shall cooperatewith the Company in defending or settling any such claim, without cost to theFacility, except for the expenditure of time.

            10.   Limitationof Liability.

            Inno event shall the Company be liable to the Facility or any third party forindirect, incidental or consequential damages arising out of or resulting fromthe performance or breach of this License or for damages that exceed the licensefees actually paid by the Facility for the System.  No claim may bemade against the Company more than two years after the Company's delivery to theFacility of that version of the System out of which that claim arises.

            11.   NoSublicenses

            TheFacility shall not assign or otherwise dispose of any of its rights under thisLicense.  The Facility may not sublicense, distribute or otherwisemake available any part of the System to any third party.

            12.   Trademarkand Copyright Notices

            TheCompany owns, or has the right to use and license, all of the trademark rightsin its company name and in the names "HealthRamp" and "CareGiver Program", thenames of all System modules and all copyright rights in theSystem.  The Facility shall not obscure or remove from the media onwhich the System is contained (including the human readable manifestations ofthe System) and the user materials related to the System, the Company's name orthe trademark and copyright notices associated with the System.

            13.   Copies

            TheFacility may not make any copies of the System or any portion(s)thereof. The Facility may copy Documentation for the Facility's internaluse only.  The Facility may not (a) modify the source code or theobject code for the System in any fashion; (b) disassemble, decompile or in anymanner reverse engineer (collectively "reverse engineer") the source code orobject code for the System; or (c) assist, facilitate, or allow any third partyto perform any of the actions described in Subsections 13(a) and 13(b) of thisAgreement. Any violation of this Section 13 will void the Company'scommitment to maintain and support the System and will justify termination ofthis License by the Company, as provided in Section 14.

            14.  Termination

            (a)Either party may terminate this License if the other does not remedy a defaultin performance within a reasonable period of time after receiving written noticeof that default.  Any such notice shall describe the condition ofdefault in reasonable detail. Immediately upon any termination of thisLicense, the Facility shall cease its use of the System and theEquipment.  Upon expiration or termination of this License, theFacility shall return to the Company all Documentation, Equipment and componentsof the System.

            (b) Notwithstandingany other provision of the License, the Facility may terminate this License atany time during the first ninety (90) days of the Term of License set forth onSchedule A upon providing not less than ten (10) days prior writtennotice to the Company. 

            15.   Confidentiality

            TheFacility shall maintain in strict confidence and shall not disclose or permitthird persons to use the object code or the source code for the programassociated with the System and any information disclosed to the Facility by theCompany regarding the Company's plans for upgrades and enhancements to theSystem, the pricing of the System and the Company's other services and any otherinformation that the Company identifies as confidential.  The Facilityshall be liable to the Company for the actions of its employees, agents,contractors, or any one who is or should be under the control of theFacility.  The Company shall maintain in strict confidence anyinformation identified in writing by the Facility as confidential upon itsdisclosure to the Company.  The covenants set forth in this Sectionshall not apply to information that is in the public domain, that is known tothe recipient following its disclosure without confidentiality restrictions orthat the recipient is required by law to disclose. The parties shallinclude the terms of this Section in their agreements with any contractors thatprovide services to one or both of the parties in connection with theLicense.  The Company shall enter into a Business Associate agreementwith the Facility in compliance with the Health Insurance Portability andAccountability Act of 1996 and all regulations thereto("HIPAA").     

            16.   General

            (a)   Notices.   Anynotice permitted or required hereunder shall be given in writing by handdelivery or by registered or certified mail which shall be addressed to therecipient at the address first set forth above.  A notice shall beeffective on the date of receipt.  A party may change the contractinformation first set forth above upon written notice to the other party.

            (b)   Benefit.   ThisAgreement shall be binding upon the parties, and upon their successors andpermitted assigns.

            (c)   EntireAgreement.  This Agreement and any schedules and/or exhibitsannexed hereto constitute the entire agreement of the parties and supersedeentirely any prior written or oral agreements.

            (d)   Modification.  Anychange or modification of this Agreement shall be valid only if the same is inwriting and signed by the authorized representatives of both parties.

            (e)   Arbitration. Controversiesor claims arising out of or relating to this Agreement, or the breach thereof,shall be resolved by the American Arbitration Association pursuant to its Rulesof Commercial Arbitration, and judgment upon the award rendered by thearbitrator(s) may be entered in any court having jurisdictionthereof.  Arbitration hearings shall occur in New York City, NewYork.

            (f) NewYork Law.  This Agreement shall be governed by New York law,without regard to its conflict of laws principles. 

            INWITNESS WHEREAS, the parties hereto have duly executed this Agreement as of thedate first above written. 

 

                                                                        Company:

                                                                        HEALTHRAMP, INC.

                                                                        

                                                                        By:  /s/Andrew Brown              

                                                                                    Name:Andrew Brown

                                                                                    Title:President

 

                                                                        Facility:

 

                                                                        AGAWAMNURSING LLC

 

                                                                        By:  /s/Jeff Goldshine              

                                                                                    Name:Jeff Goldshine

                                                                                    Title:Executive Administrator