EXHIBIT 10.34
AMENDED AND RESTATED CO-BRANDED CHOICE(TM)
WEB SITE AGREEMENT
THIS AMENDED AND RESTATED CO-BRANDED CHOICE(TM) WEB SITE AGREEMENT
("Agreement") is made and entered into as of March 1, 2001, and amends and
restates the Co-Branded Choice(TM) Website Agreement dated as of November 2,
1999, by and between HCA - Information Technology & Services, Inc. f/k/a
Columbia Information Systems, Inc. ("Licensee"), a Tennessee corporation with a
notice address of 0000 Xxxx Xxxxx, Xxxxxxxxx, XX 00000, and HealthGate Data
Corp. ("HealthGate"), a Delaware corporation with a notice address of 00
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxxxxxxxx 00000. This Agreement
between the parties supersedes and replaces the Co-Branded Choice(TM) Website
Agreement dated as of November 2, 1999, in its entirety.
WHEREAS, HealthGate provides access to information products and
services through the Internet using its proprietary CHOICE platform;
WHEREAS, HealthGate and Licensee wish to enter into an agreement
providing for the licensing of certain of HealthGate's products and services
through a health portal site and the CHOICE Web Sites.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1.1. "Affiliated Providers" shall mean C/HCA Providers, Triad
Providers, or LifePoint Providers.
1.2. "Authorized Users" shall mean (i) Licensee, (ii) Affiliated
Providers and HPG Members to which Licensee provides the HealthGate Products
under this Agreement, (iii) persons who access portions of the HealthGate
Products that may require user registration and authentication in compliance
with HealthGate's software licenses, and (iv) persons who access portions of the
HealthGate Products that may not require user registration and passwords.
1.3. "C/HCA Providers" shall mean those healthcare providers owned,
controlled or operated by any entity owned or controlled by Columbia/HCA
Healthcare Corporation.
1.4. "CHOICE Web Sites" shall mean the eight (8) co-branded template
web sites designed, developed, and maintained for Licensee in accordance with
this Agreement.
1.5. "Confidential Information" shall mean the identity of patients,
the content of medical records, financial and tax information, information
regarding Medicare and Medicaid claims submission and reimbursements, the object
and source codes and documentation for proprietary software, and such other
information that is confidential or proprietary business information and
delivered or disclosed pursuant to this Agreement.
1.6. "Expiration Date" shall mean October 31, 2002.
1.7. "GAO" shall mean the Government Accounting Office.
1.8. "HealthGate Products" shall mean the CHOICE Web Sites, and any
customized CHOICE Web Site provided under this Agreement for an Affiliated
Provider or HPG Member as described in SCHEDULE A.
1.9. "HHS" shall mean the Department of Health and Human Services.
1.10. "HealthGate Trademarks" shall mean HealthGate's name, logos,
trademarks, servicemarks, and trade dress created or used by HealthGate.
1.11. "HPG Members" shall mean HealthTrust Purchasing Group, L.P. and
healthcare providers which are or become members of HealthTrust Purchasing
Group, LP.
1.12. "Information" shall mean that content and services provided by or
through HealthGate under this Agreement as set forth on SCHEDULE A.
1.13. "Information Partners" shall mean those entities that have
licensed HealthGate certain information or content included in the Information.
1.14. "Licensee Trademarks" shall mean Licensee's name, logos,
trademarks, servicemarks, and trade dress created or used by Licensee.
1.15. "LifePoint Providers" shall mean those healthcare providers
owned, controlled, or operated by any entity owned or controlled by LifePoint
Hospitals, Inc.
1.16. "Net Advertising Revenues" shall mean all advertising and
sponsorship monies received for advertising or sponsorship placements on the
HealthGate Products less the cost of preparing such displays or placements,
agency discounts, frequency discounts, sales commissions, any other third party
obligations or revenue sharing commitments, and any sales or use taxes, if
applicable, related to such advertising and sponsorship placements.
1.17. "Net E-Commerce Revenues" shall mean the revenue for all products
sold through a customized CHOICE Web Site provided under this Agreement for an
Affiliated Provider or HPG Member less the cost of such product, including the
manufacturing, shipping, and storage of such
2
product, agency discounts, frequency discounts, sales commissions, any other
third party obligations or revenue sharing commitments, and any sales or use
taxes, if applicable, related to such product revenue.
1.18. "Provider Content" shall mean content developed, owned, or
licensed by an Affiliated Member of HPG Member and provided by the applicable
Affiliated Member or HPG Member to HealthGate.
1.19. "Related Materials" shall mean the software and content and
materials associated with the HealthGate Products, used to provide the
Information.
1.20. "Termination Notice" shall mean a written notice of termination.
1.21. "Triad Providers" shall mean those healthcare providers owned,
controlled, or operated by any entity owned or controlled by Triad Hospitals,
Inc.
2. Co-Branded CHOICE Web Site; Authorized Users; License; Prohibited
Actions
2.1. CO-BRANDED CHOICE WEB SITE. HealthGate shall design, develop, and
maintain the CHOICE Web Sites for Licensee that can be accessed by Authorized
Users. The CHOICE Web Sites shall be co-branded with both the Licensee's
Trademarks and HealthGate's Trademarks, in a manner acceptable to both parties.
2.2. CONTENT AND SERVICE. HealthGate shall provide to the CHOICE Web
Sites the content and services outlined in SCHEDULE A.
2.3. LICENSE.
(a) HealthGate grants to Licensee a non-exclusive,
non-transferable license to provide access to the
Information through the HealthGate Products to Authorized
Users. The rights granted by HealthGate shall be for
Licensee to use the HealthGate Products for itself, C/HCA
Providers, LifePoint Providers, Triad Providers, and HPG
Members. The maximum number of healthcare providers to
which Licensee can provide the HealthGate Products shall
be limited to a total of three hundred and thirty (330)
Affiliated Providers; provided, however, if Licensee
provides any HealthGate Products to any HPG Member, the
total number of healthcare providers to which Licensee
can provide Healthcare Products shall be limited to two
hundred and fifty
3
(250) healthcare providers among Affiliated Providers and
HPG Members.
(b) The Information and the Related Materials are the
property of HealthGate or an Information Partner and is
protected by applicable laws. Licensee shall abide by and
shall use commercially reasonable efforts to cause
Authorized Users to abide by all copyright notices,
information, or restrictions contained in any Information
accessed through the HealthGate Products.
(c) Any rights not expressly granted in this Agreement with
regard to the HealthGate Products, the Information, and
the Related Materials are reserved to HealthGate and its
Information Partners.
2.4. PERMITTED USES. During the term of this Agreement, Licensee and
its Authorized Users may:
(a) make searches of and access the Information;
(b) make a very limited number of hard copies of any search
output that does not contain a significant segment of a
database, which copies may be used only internally but
may not be sold, provided that all copyright and other
notices contained in such Information are maintained.
(c) make one copy of any search output in electronic form
(i.e. diskette, hard disk, or tape) to be used for
editing or temporary storage only, provided that all
copyright and other notices contained in such Information
are maintained.
With respect to subsection 2.5(b), provided that Licensee,
Affiliated Providers, and HPG Members, and their respective
physicians, employees, agents, contractors, and subcontractors,
(collectively, "Affiliated Users") shall use commercially
reasonable efforts to ensure that Authorized Users who are not
Affiliated Users abide by this provision and shall promptly report
to HealthGate any suspected or actual violations of subsection
2.5(b), Licensee and its Affiliated Users shall not be liable for
any breach of subsection 2.5(b) by Authorized Users who are not
Affiliated Users.
2.5. PROHIBITED ACTIONS. Licensee agrees that it is prohibited from and
shall not:
(a) de-compile or reverse engineer the HealthGate Products,
the Information, or any of the Related Materials;
4
(b) sell, re-license, distribute or commercially exploit the
Information or any of the Related Materials except as set
forth in Sections 3.2 and 3.3 below.
(c) except as specifically permitted herein, make the
Information available through any means or media other
than the HealthGate Products;
(d) except as specifically permitted herein, modify, publish,
transmit, participate in the license, transfer or sale
of, reproduce, create derivative works from, distribute,
perform, display, or in anyway exploit the HealthGate
Products, the Information or any of the Related
Materials, in whole or in part, without the prior written
consent of HealthGate.
3. DEVELOPMENT AND DELIVERY OF THE HEALTHGATE PRODUCTS
3.1. The HealthGate Products shall be designed to provide advertising
and sponsorship messages from commercial vendors to Authorized Users. Both
parties shall cooperate on obtaining advertising and sponsor messages and on
providing e-commerce opportunities on the Portal or a customized CHOICE Web Site
provided under this Agreement for an Affiliated Provider or HPG Member.
HealthGate shall have the exclusive right to sell and serve advertising,
sponsorship and e-commerce opportunities on the HealthGate Products. Licensee
shall have the right to approve all advertising, sponsorship, and e-commerce
opportunities on the Portal or customized CHOICE Web Site provided under this
Agreement for an Affiliated Provider or HPG Member, including the method for
displaying or causing the advertising to be displayed, which approval shall not
be unreasonably withheld. HealthGate shall provide notice at least five (5)
business days before release of such messages by HealthGate and Licensee must
approve such messages within three (3) days of receipt of such notice otherwise
Licensee will be deemed to have approved any such message.
3.2. The HealthGate Products shall be designed to provide Licensee the
opportunity to serve promotional messages to Authorized Users. All such messages
shall be administered by HealthGate on behalf of Licensee. HealthGate shall have
the right to approve such promotional messages, which approval shall not be
unreasonably withheld. HealthGate shall provide notice at least five (5)
business days before release of such messages by HealthGate and Licensee must
approve such messages within three (3) days of receipt of such notice otherwise
Licensee will be deemed to have approved any such message.
5
4. MARKETING AND RE-SELLING SITES
4.1. Licensee shall have the right to market and provide HealthGate
Products and services covered under this Agreement to Affiliated Providers and
HPG Members. HealthGate shall not market HealthGate Products and services
directly to the Affiliated Providers.
4.2. Any Affiliated Provider or HPG Member facility which is sold to an
independent third party may continue to utilize the HealthGate Products provided
Licensee is providing data processing services to such divested entity. If
Licensee is not continuing to provide data processing services to such divested
entity, then such entity shall have the right to continue to use the HealthGate
Products for the remainder of the current year, or ninety (90) days, whichever
is longer. After such time, the entity will have to obtain its own license.
5. FEES
5.1. LICENSE FEES. Annual fees payable by Licensee to HealthGate are
set forth in SCHEDULE B.
5.2. ADVERTISING AND SPONSORSHIP. As set forth in SCHEDULE B, Licensee
shall receive a commission based on Net Advertising Revenues and Net E-Commerce
Revenues.
5.3. ADJUSTMENTS IN FEES. The annual license fee due hereunder and set
forth in SCHEDULE B may be subject to an adjustment prior to the Expiration
Date.
5.3.1. MOST FAVORED NATION PRICING TERMS. If HealthGate provides
the same HealthGate Product to another licensee at prices less than the
prices being paid by Licensee for all Affiliated Providers and HPG
Members, HealthGate and Licensee shall mutually agree to an appropriate
reduction in the price on a prospective basis; provided, however the
reduced price shall not be less than the price paid by the other
licensee.
5.4. FEES RELATED TO ADDITIONAL PRODUCTS AND SERVICES. Notwithstanding
anything to the contrary contained in the fee adjustment procedures described in
this Agreement or the fee schedule set forth in SCHEDULE B, any modification to
the Information and/or the HealthGate Products, which are requested by Licensee,
may be accompanied by additional fees as determined by HealthGate, and approved
in writing by Licensee prior to initiation of such modification. If HealthGate
initiates a modification on its own initiative without a request by Licensee,
then there will be no additional costs or fees for such modification prior to
the Expiration Date.
6
5.5. LATE FEES. Any payment not received within ten (10) days of its
due date shall accrue interest at the rate of one and a half (1.5) percent per
month; provided, however, if such rate is not then lawful, any such payment
shall accrue interest at the highest lawful rate then available.
6. TERM AND TERMINATION
6.1. TERM. This Agreement shall be effective from the date first set
forth above until the Expiration Date, unless otherwise terminated as provided
hereunder.
6.2. TERMINATION FOR BREACH. Either party shall have the right to
terminate this Agreement in the event that the other party hereto has materially
breached this Agreement; provided, however, that no such termination shall be
effective unless (i) the terminating party provides the Termination Notice via
overnight courier to the other party setting forth the facts and circumstances
constituting the breach, and (ii) the party alleged to be in default does not
cure such default within ten (10) business days following receipt of the
Termination Notice. In the event that the nature of the default specified in the
Termination Notice cannot be reasonably cured within ten (10) business days
following receipt of the Termination Notice, a party shall not be deemed to be
in default if such party shall, within such ten (10) day period, present a
schedule to cure the default, commences curing such default and thereafter
diligently executes the same to completion within six months. If the breach
specified in the Termination Notice is timely cured or cure is commenced and
diligently pursued, as provided above, the Termination Notice shall be deemed
rescinded and this Agreement shall continue in full force and effect.
Notwithstanding the foregoing, all Termination Notices for non-payment must be
cured with thirty (30) days of receipt. In the event the default specified in
the Termination Notice cannot be reasonably cured at all, a party shall be
deemed to be in default.
6.3. POST TERMINATION OBLIGATIONS. In the event of termination of this
Agreement by any party, all fees previously due or owing by any party as of the
date of termination will be immediately due and payable in full.
7. HEALTHGATE TRADEMARKS AND TRADEMARKS OF OTHERS
7.1. HEALTHGATE TRADEMARKS. Notwithstanding the limited right to use
the HealthGate Trademarks on the HealthGate Products, Licensee recognizes and
acknowledges HealthGate is the sole owner of the HealthGate Trademarks; and all
rights therein and the goodwill pertaining thereto belong exclusively to
HealthGate. Accordingly, any use by Licensee of the HealthGate Products, or of
any HealthGate Trademarks pursuant to this Agreement, shall be subject to
HealthGate's approval, which HealthGate may deny or revoke at any time if in
HealthGate's sole judgment such use is not consistent with the goodwill
7
otherwise associated with the HealthGate Trademarks. Neither this Agreement nor
any rights granted hereunder will operate as a transfer to Licensee or the
HealthGate Products of any rights in or to any HealthGate Trademark, except for
the limited rights expressly granted under this Agreement.
7.2. LICENSEE TRADEMARKS. Notwithstanding the limited right to use the
Licensee Trademarks on the HealthGate Products, HealthGate recognizes and
acknowledges Licensee is the sole owner of the Licensee Trademarks; and all
rights therein and the goodwill pertaining thereto belong exclusively to
Licensee. Accordingly, any use by HealthGate of the Licensee Trademarks pursuant
to this Agreement, shall be subject to Licensee's approval, which Licensee may
deny or revoke at any time if in Licensee's sole judgment such use is not
consistent with the goodwill otherwise associated with the Licensee Trademarks.
Neither this Agreement nor any rights granted hereunder will operate as a
transfer to HealthGate of any rights in or to any Licensee Trademark, except for
the limited rights expressly granted under this Agreement.
7.3. THIRD PARTIES' TRADEMARKS. In entering into this license to
Licensee, HealthGate is also acting on behalf of its Information Partners.
8. WARRANTY, INDEMNIFICATION AND LIMITATION OF WARRANTIES AND LIABILITY
8.1. WARRANTY.
8.1.1. HealthGate warrants to Licensee that it has the full
legal right to grant the license granted under this Agreement.
HealthGate warrants to Licensee that the HealthGate Products, in the
forms delivered to Licensee by HealthGate and when properly used for
the purpose and in the manner specifically authorized by this Agreement
do not infringe upon any patent, copyright, or trademark and do not
misappropriate a trade secret or other proprietary right of any person.
To the extent HealthGate has received a warranty of title from a
Licensor with respect to any specific intellectual property, HealthGate
hereby warrants to Licensee that it or its licensor has title to such
intellectual property only.
8.1.2. HealthGate warrants to Licensee that for a period of
ninety (90) days from the date of delivery of the HealthGate Products
or an upgrade thereto to Licensee that the HealthGate Products shall
substantially perform in accordance with Licensee's specifications;
provided, however, that any ninety (90) day warranty period for an
update shall only apply to that update and not to the HealthGate
Product otherwise existing as of the date of the upgrade. Licensee's
sole and exclusive remedy for breach of this warranty shall be for
HealthGate to
8
modify or correct the HealthGate Products. This warranty shall not
apply to any HealthGate Product which has been modified by Licensee or
by any other party other than HealthGate, or which has been used in any
other manner other than as authorized under this Agreement.
8.1.3. With respect to any development services provided
pursuant to this Agreement, HealthGate warrants to Licensee that any
software products delivered to Licensee are not capable of permitting
any of the following: (1) unauthorized access to or intrusion upon; (2)
disabling of; (3) erasure of; or (4) interference with any hardware,
software, data or peripheral equipment; provided, however, this
warranty shall not apply to e-mails, electronic transfers, or other
database sharing.
8.1.4. HealthGate expressly warrants that HealthGate Products
are currently Year 2000 complaint. "Year 2000 compliant is defined to
mean HealthGate Products accurately and unambiguously process
(including, but not limited to, compare, calculate, manipulate,
sequence, display, and exchange data with other systems) data
containing time and/or dates prior to, at, and after the year 2000
without error or interruption, and the products operate properly and in
conformance with applicable specifications, continuously, before, at,
and after the year 2000."
8.1.5. With respect to any development services provided
pursuant to this Agreement, each of HealthGate's employees, agents or
representatives assigned to perform services hereunder shall have the
proper skill, training and background so as to be able to perform in a
competent and professional manner and all work will be so performed.
8.2. HEALTHGATE INDEMNITY. HealthGate shall defend or settle, at its
own expense, any cause of action or proceeding brought against Licensee which is
based on a claim that the use of the Information as provided hereunder infringes
any patent, copyright, trade secret or other proprietary right. HealthGate shall
indemnify and hold Licensee harmless against all damages, judgments, and
attorneys' fees arising out of the foregoing, provided that Licensee gives
HealthGate prompt written notice of such claim. If a claim is made that the use
of the Information as provided hereunder infringes any patent, copyright, trade
secret or other proprietary right, HealthGate shall either procure for Licensee
the right to continue using the Information, modify it to make it non-infringing
but continue to meet the specifications therefor, or replace it with a similar
non-infringing content as determined by the sole discretion of HealthGate.
8.3. LICENSEE'S INDEMNIFICATION OBLIGATIONS. Excluding claims arising
out of or relating to the violation by HealthGate or an Information Partner of
any third party copyright, trade secrets, or trademark, Licensee, to the extent
permitted by applicable law, agrees to indemnify HealthGate and its
9
Information Partners and hold them harmless from and against any and all claims
of Licensee, Authorized Users or other third parties arising out of or related
to the use of the HealthGate Products, the Information or other licensed
materials, regardless of whether such claims were foreseeable by HealthGate or
the Information Partner. The provisions of this Section 8.3 will survive any
termination.
8.4. DISCLAIMER OF WARRANTIES, LIMITATION TO WARRANTIES AND
LIABILITIES.
THE WARRANTIES EXPRESSED IN SECTION 8.1 ABOVE REPRESENT THE ENTIRE
WARRANTY OF HEALTHGATE WITH RESPECT TO THIS AGREEMENT, AND ARE IN LIEU
OF ANY AND ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH HEALTHGATE
DISCLAIMS. DUE TO THE NUMBER OF SOURCES FROM WHICH INFORMATION ON THE
HEALTHGATE PRODUCTS IS OR WILL BE OBTAINED, AND THE INHERENT HAZARDS OF
ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES
IN SUCH INFORMATION AND THE HEALTHGATE PRODUCTS. THE HEALTHGATE
PRODUCTS COULD INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL
ERRORS. PERIODICALLY, CHANGES MAY BE MADE IN THE INFORMATION PROVIDED
IN THE HEALTHGATE PRODUCTS. HEALTHGATE AND ITS AFFILIATES, AGENTS AND
ITS INFORMATION PARTNERS CANNOT AND DO NOT WARRANT THE ACCURACY,
COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE INFORMATION AND CONTENT AVAILABLE THROUGH THE HEALTHGATE
PRODUCTS, OR THE HEALTHGATE PRODUCTS THEMSELVES, OR ANY OTHER
INFORMATION WHICH IS REFERENCED BY OR LINKED TO THE HEALTHGATE
PRODUCTS. THE PRESENCE IN OR ABSENCE FROM THE INFORMATION, RELATED
MATERIALS, DATA, EVENTS, RESEARCH OR DEVELOPMENTS DOES NOT IMPLY THE
SPECIFIC EXISTENCE OR THE NON-EXISTENCE THEREOF, NOR DOES HEALTHGATE
CLAIM COMPREHENSIVENESS OR THE ABSENCE OF ERRORS. HEALTHGATE ASSUMES NO
RESPONSIBILITY FOR THE USE OF THE HEALTHGATE PRODUCTS BY THE LICENSEE
OR AUTHORIZED USERS. HEALTHGATE AND ITS INFORMATION PARTNERS SHALL NOT
BE LIABLE FOR LOSS OF PROFITS, LOSS OF USE, OR INCIDENTAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES AS A RESULT OF USE OF THE
HEALTHGATE PRODUCTS OR THE INFORMATION, EVEN IF EXPRESSLY MADE AWARE OF
THE POSSIBILITY THEREOF. EXCEPT FOR ANY CLAIM FOR INDEMNITY UNDER
SECTION 8.2, IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST HEALTHGATE,
OR AN INFORMATION PARTNER ARISING OUT OF THIS AGREEMENT MORE THAN ONE
YEAR AFTER
10
THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN
THE LICENSEE OR AUTHORIZED USER SHALL HAVE LEARNED OF THE ALLEGED
DEFECT, INJURY, OR LOSS. IN NO EVENT SHALL HEALTHGATE'S LIABILITY UNDER
THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF LICENSE FEES PAID BY
LICENSEE PURSUANT TO THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM
BREACH OF WARRANTY, BREACH OF THIS CONTRACT OR OTHERWISE, AND WHETHER
IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). THE
PROVISIONS OF THIS SECTION 8.4 SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT.
9 MISCELLANEOUS
9.1. With respect to any development services provided pursuant to this
Agreement, HealthGate acknowledges that Confidential Information provided by
Licensee may also be protected by law. HealthGate will neither disclose such
information, directly or indirectly, nor use such information for any purpose
except to perform the services described in this Agreement. Patient medical and
financial files and all documents or records of Licensee which may be used or
received by HealthGate shall remain exclusive property of Licensee.
Licensee, on behalf of itself and the Affiliated Providers and HPG
Members, acknowledges that Confidential Information provided by HealthGate may
also be protected by law. Licensee, the Affiliated Providers and HPG Members
will neither disclose such information, directly or indirectly, nor use such
information for any purpose except to perform the services described in this
Agreement.
Either party shall take appropriate action, by instruction to or
agreement with its employees, agents and subcontractors, to maintain the
confidentiality of the Confidential Information. Either party agrees to execute
written Confidentiality Agreements with its employees, agents, and
subcontractors addressing either party's obligations set forth in this section.
Either party shall promptly notify the other party in the event that it learns
of any unauthorized release of Confidential Information.
Either party shall have no obligation with respect to:
(a) Confidential Information made available to the
general public without restriction by the other party
or by an authorized third party;
(b) Confidential Information rightfully known to either
party independently of disclosures by the other party
under this Agreement;
11
(c) Confidential Information independently developed by
either party;
(d) Confidential Information that either party may be
required to disclosure pursuant to subpoena or other
lawful process; provided, however, that the party
notifies the other party in a timely manner to allow
the other party to appear and protect its interests;
or
(e) Any information regarding any Authorized User of the
HealthGate Products obtained from or through their
use of those products.
Upon the termination of this Agreement, either party shall:
(a) Immediately cease to use the Confidential
Information.
(b) Return to the other party, Confidential Information
and all copies thereof within thirty (30) days of the
termination or destroy the Confidential Information
in accordance with the other party's policy and
all-applicable state and federal laws.
(c) Upon request, certify in writing to the other party
that it has complied with its obligations set forth
in this Section.
The parties acknowledge that monetary remedies may be inadequate to
protect their rights with respect to Confidential Information and that, in
addition to legal remedies otherwise available to either party, injunctive
relief is an appropriate judicial remedy to protect either party's rights in
Confidential Information.
Either party hereby agrees to indemnity and hold harmless the other
party from and against any and all liability, loss, damage, claims or causes of
action and expenses associated therewith (including attorney's fees) caused
directly or indirectly by the party's breach of its obligations under this
Section 9.1. Either party may enforce the other party's obligations hereunder by
seeking equitable relief which remedy shall be nonexclusive. Either party agrees
to provide reasonable assistance and cooperation upon the request of the other
party in connection with any litigation against third parties to protect
Confidential Information.
9.2. INDEPENDENT CONTRACTOR. HealthGate and Licensee are and shall
remain independent contractors with respect to all matters pursuant to the
Agreement.
9.3. ASSIGNMENT. Licensee may sell, transfer, assign, or subcontract,
any right, license or obligation set forth in this Agreement without the express
12
advance written consent of HealthGate; provided, however, Licensee may not sell,
transfer, assign, or subcontract, any right, license or obligation set forth in
this Agreement to Medscape, WebMD, Healtheon, and Xx. Xxxx or any of their
successors or assigns.
9.4. AMENDMENTS IN WRITING. No amendment, modification, or waiver of
any provision of this Agreement shall be effective unless it is set forth in a
writing that refers to this Agreement and is executed by an authorized
representative of each party hereto. No failure or delay by any party in
exercising any right, power, or remedy will operate as a waiver of any such
right, power, or remedy.
9.5. NOTICES. All notices required hereunder (except invoice or
purchase orders as provided herein) shall be in writing and shall be deemed to
have been duly given upon receipt, and shall be either delivered in person, by
registered or certified mail, postage prepaid, return receipt requested, or by
overnight delivery service with proof of delivery, and addressed as follows:
To HealthGate: Xxxx Xxxxxx
HealthGate Data Corp.
00 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxxx Xxxx, Esq.
Rich, May, Xxxxxxxx & Xxxxxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
To Licensee: Attn: Director, I/S Contracts
HCA - Information Technology & Services, Inc.
0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy to any person listed herein or in an Exhibit, and to:
General Counsel
HCA - The Healthcare Company
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
9.6 PUBLICITY. HealthGate and Licensee agree not to advertise or to use
the other party's name in any advertising, except as contemplated by this
Agreement, without first obtaining written consent from the other party, which
consent shall not be unreasonably withheld.
13
9.7 BOOKS AND RECORDS.
(a) To the extent the requirements of 42 C.F.R. Section 420.300 ET SEQ.
are applicable to the transactions contemplated by this Agreement, Vendor agrees
to make available to the Secretary of Health and Human Services ("HHS"), the
Comptroller General of the Government Accounting Office ("GAO") and their
authorized representatives, all contracts, books, documents and records relating
to the nature and extent of costs hereunder until the expiration of four (4)
years after Services are furnished under this Agreement.
(b) If Vendor carries out its obligations under this Agreement through
a subcontract worth $10,000 or more over a twelve month period with a "related"
organization, the subcontract will also contain clauses substantially identical
to this Section 9.7 to permit access by Division, HHS, GAO and their
representatives to the "related" organization's books and records.
(c) Vendor agrees to comply at all times with the regulations issued by
the Department of Health and Human Services published at 42 C.F.R. 1001, and
which relate to Vendor's obligation to report and disclose discounts, rebates
and other reductions to Division and Facilities for Products and Services
purchased under this Agreement. Where a discount or other reduction in price of
the Services is applicable, the parties also intend to comply with the
requirements of 42 U.S.C. Section 1320a-7b(b)(3)(A) and the "safe harbor"
regulations regarding discounts or other reductions in price set forth at 42
C.F.R. Section 1001.952(h).
(d) Division is not a federal government contractor; however, some of
the Facilities which will purchase from Vendor under this Agreement may be
federal government contractors or subcontractors. Vendor acknowledges that
purchase orders by any such entities incorporate the contract clauses regarding
equal employment opportunity and affirmative action contained in 41 C.F.R.
60-1.4 (Executive Order 11246), 41 C.F.R. 60-250.4 (Vietnam Era Veterans
Readjustment and Assistance Act), and 41 C.F.R. 60-741.5 (Rehabilitation Act).
(e) Division shall have the right, during normal business hours and
with reasonable advance notice, to review and photocopy Vendor's books,
documents and records that pertain directly to the accounts of Division,
Facilities and their Affiliates, the fees payable to Vendor under this
Agreement, the Rebates payable by Vendor, or the Services provided by Vendor
hereunder. The audit may be conducted by Division employees or by an external
auditing firm selected by Division. The cost
14
of audit, including the cost of the auditors and reasonable cost of copies of
books, documents and records shall be paid by Division. Division shall have no
obligation to pay the cost incurred by employees and agents of Vendor in
cooperating with Division in such audit.
(f) Vendor represents and warrants that it has not been excluded,
debarred, or otherwise made ineligible to participate in any federal health care
program as defined in 42 U.S.C. Section 1320a-7b(f) (the "Federal Healthcare
Programs"). Vendor represents and warrants to Division that Vendor (i) is not
currently excluded, debarred, or otherwise ineligible to participate in the
Federal Healthcare Programs; (ii) is not convicted of a criminal offense related
to the provision of health care items or services but has not yet been excluded,
debarred, or otherwise declared ineligible to participate in the Federal
Healthcare Programs, and (iii) is not under investigation or otherwise aware of
any circumstances which may result in Vendor being excluded from participation
in the Federal Healthcare Programs. This shall be an ongoing representation and
warranty during the term of this Agreement, and Vendor shall immediately notify
Division of any change in the status of the representations and warranty set
forth in this section. Any breach of this section shall give Division the right
to terminate this Agreement immediately for cause.
(g) Vendor represent and warrants that it has not made, is not
obligated to make, and will not make any payment or provide any remuneration to
any third party in return for Division entering into this Agreement or for any
business transacted under this Agreement.
(h) Division's rights under this Section 14 shall survive for a period
of four (4) years after termination or expiration of this Agreement.
9.8. AUDIT/REPORTING. Licensee shall have the right, during normal
business hours and with reasonable advance notice, to review and photocopy
HealthGate's books and records that pertain directly to the accounts of
Licensee, HPG Members, or Authorized Users. The audit may be conducted by
Licensee's employees or by an external auditing firm selected by Licensee. The
cost of audit, including the cost of the auditors and reasonable cost of copies
of books and records shall be paid by Licensee. Licensee shall have no
obligation to pay the cost incurred by employees and agents of HealthGate in
cooperating with Licensee in such audit. Licensee does not have the right to
review the books and records that pertain to the accounts of other HealthGate
customers or business partners. Licensee may not conduct more than one such
audit per year. Any personnel of Licensee shall sign a mutually agreeable
confidentiality agreement before such audit is done.
15
9.9. THIRD PARTY RIGHTS. This Agreement is not intended and shall not
be construed to create any rights for any third party.
9.10. FORCE MAJEURE. Neither party shall be liable nor deemed to be in
default of its obligations hereunder for any delay or failure in performance
under this Agreement or other interruption of service resulting, directly or
indirectly, from acts of God, civil or military authority, act of war,
accidents, natural disasters or catastrophes, strikes, or other work stoppages
or any other cause beyond the reasonable control of the party affected thereby.
However, each party shall utilize it best good faith efforts to perform such
obligations to the extent of its ability to do so in the event of any such
occurrence or circumstances. If a single force majeure condition causes a delay
or failure in performance under this Agreement or other interruption of service
exceeding ninety (90) days, the nonaffected party may terminate subject to the
requirements of Section 6.2 above by providing a Termination Notice to the
affected party.
9.11. INSURANCE. HealthGate shall maintain liability coverage for
errors and omissions with coverage of at least $1,000,000 per incident and
$3,000,000 in the aggregate. Licensee shall be provided a copy of the
certificate of insurance upon signing of this Agreement. Licensee shall be
promptly notified at least thirty (30) days prior to any cancellation of policy
or reduction in coverage below the required amounts specified in this Section
9.9.
9.12. LEGAL FEES. In the event of any litigation between the parties
concerning this Agreement, the prevailing party shall be awarded reasonable
attorney's fees and other costs and expenses incurred in connection with such
action.
9.13. GOVERNING LAW. The validity, interpretation, and performance of
this Agreement shall be governed by and construed in accordance with the laws of
the State of Tennessee.
9.14. ENTIRE AGREEMENT; SEVERABILITY. This Agreement, together with the
schedules and other attachments referenced herein, contains a full and complete
expression of the rights and obligations of the parties hereto. If any provision
of this Agreement conflicts with any schedule or attachment to this Agreement,
this Agreement shall control with respect to the subject matter of such
attachment. This Agreement supersedes any and all other previous agreements,
written or oral, including the Co-Branded CHOICE Web Agreement dated November 2,
1999, made by the parties concerning the subject matter hereof. If any provision
of this Agreement is finally held by a court or arbitration panel of competent
jurisdiction to be unlawful, the remaining provisions of this Agreement shall
remain in full force and effect to the extent that the parties' intent can be
lawfully enforced. Without limiting the generality of the foregoing, it is
expressly agreed that the terms of any Licensee
16
purchase order will be subject to the terms of this Agreement and that any
acceptance of a purchase order by HealthGate will be for acknowledgment purposes
only and none of the terms set forth in the purchase order will be binding upon
HealthGate.
17
IN WITNESS WHEREOF, duly authorized representatives of the parties have
executed this Agreement under seal as of and effective the date first written
above:
HEALTHGATE DATA CORP. LICENSEE
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx Xxxxxxxx
----------------------------------- ------------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxxxx
--------------------------------- ----------------------------
Title: VP, Business Development Title: President
-------------------------------- ---------------------------
18
SCHEDULE A: CONTENT AND SERVICES FOR CHOICE WEB SITE
A. Content and Features Available through the affiliated CHOICE Web Sites
o Healthy Living Webzines, enhanced to include links to and from
Wellness Centers, includes Healthy Eating, Healthy Woman, Healthy
Man, Healthy Sexuality, Healthy Parenting, Healthy Mind,
Alternative Health, Healthy Rx, Healthy Athlete, Healthy Traveler,
and Healthy After 50.
o Condition Centers
o Super Centers
o Xxxxxxx-Xxxxxxx Medical Dictionary
o Health Advisors, includes Adult, Behavioral, Pediatric, Women's
and Senior (Adult, Women's and Pediatric includes both English and
Spanish topics)
o USP DI, Volume 2
o Diagnostic Procedures Handbook
o New England Journal of Medicine Weekly Briefings
o MEDLINE
o Usage Reports
19
SCHEDULE B: FEES
1) LICENSE FEES: Licensee shall remit to HealthGate a license fee of
$2,833,332 during the Term of this Agreement for the HealthGate
Products and services received. The license fee shall be payable as
follows:
i) $283,333.20 on March 1, 2001;
ii) $283,333.20 on May 1, 2001;
iii) $283,333.20 on July 1, 2001
iv) $283,333.20 on September 1, 2001;
v) $283,333.20 on November 1, 2001;
vi) $283,333.20 on January 1, 2002;
vii) $283,333.20 on March 1, 2002;
viii) $283,333.20 on May 1, 2002;
ix) $283,333.20 on July 1, 2002; and,
x) $283,333.20 on September 1, 2002.
2) COMMISSIONS ON NET ADVERTISING REVENUE: During the term of this
Agreement, including any extensions, Licensee shall receive, as
commission on advertising and sponsorship, 25% of the Net Advertising
Revenue and as commission on e-commerce, 25% of the Net E-Commerce
Revenue for non-pharmaceutical e-commerce of non-Medicare reimbursed
products and services. Commission shall be paid quarterly, within 45
days after the close of the quarter. HealthGate shall retain 75% of the
Net Advertising Revenue, 75% of the Net E-Commerce Revenue for
non-pharmaceutical or non-Medicare reimbursed products or services, and
100% of the Net E-Commerce for pharmaceutical e-commerce of Medicare
reimbursed products or services.
20
