Exhibit 10.28
CONFIDENTIAL INFORMATION
CONTENT DEVELOPMENT AND DISTRIBUTION AGREEMENT
THIS AGREEMENT is entered into as of June 15, 1999, by and between HealthGate
Data Corp., a Delaware corporation ("HealthGate"), having an address at 00
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 and the
Massachusetts Medical Society, a Massachusetts corporation (the "Society"),
having an address at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Society is the owner and publisher of The New England Journal of
Medicine ("NEJM");
WHEREAS, HealthGate, among other business activities, distributes health and
biomedical content through the Internet;
WHEREAS, HealthGate desires to engage the Society to assist in the development
of a version of NEJM written for the consumer reader;
NOW THEREFORE, in consideration of the foregoing, the mutual promises set forth
in this Agreement and for other good and valuable consideration, the receipt and
adequacy of which is acknowledged by all parties, the parties hereby agree as
follows:
1. CONTENT. The Society shall develop and deliver all Content to HealthGate,
in a mutually agreed upon electronic format, for posting on the World Wide
Web Sites owned or operated by HealthGate (the "Sites"). As set forth in
Section 11 below, the Society retains all ownership and copyright of the
Content. HealthGate shall not make any changes to the Content without the
prior written consent of the Society. The Sites shall include copyright
notices and other notices of right title and interest to the Content. Both
parties agree, within 15 working days after executing this Agreement, to
develop a detailed specification describing the Content, which shall be
attached to this Agreement as Schedule A. Generally, the Content shall be
described as follows:
(a) The Content is a companion consumer version of NEJM which summarizes
the findings, reports, information, etc. presented in each original
article published in NEJM;
(b) The Content shall include an article for every original article
appearing in the weekly printed version of NEJM;
(c) The Content will be updated weekly, corresponding to the normal print
publication schedule of NEJM;
(d) Each update to the Content shall be delivered to HealthGate no later
than 10 workings days prior to the publication date for the
corresponding print issue;
CONFIDENTIAL INFORMATION
(e) The Society shall make reasonable efforts to deliver to HealthGate the
first issue of the Content 120 days after execution of this Agreement;
(f) Each article shall average approximately 1,000 to 1,500 words in
length and be written on a reading level appropriate for the
non-healthcare professional reader. The parties shall mutually agree
upon the applicable reading level;
(g) Each article shall also include the following information
corresponding to the original article: (i) detailed bibliographic
information; (ii) author contact information; (iii) bulleted points
covering the major issue of the article; (iv) a companion title,
written for the consumer, interpreting the corresponding original
article title; (v) a link to the full-text of the original article on
the NEJM site, located at xxx.xxxx.xxx;
(h) Subject to the Society obtaining necessary ownership rights, each
weekly update of the Content shall contain the editorials and letters
to the editor as appearing in the corresponding print issue;
(i) Subject to the Society obtaining necessary ownership rights,
HealthGate shall have the right to reproduce and include in the
Content the images, graphics, photographs, etc. corresponding to
articles originally published in NEJM. All such images shall be
delivered to HealthGate as part of the weekly update schedule.
HealthGate shall have the right to use said images, with the prior
approval of the Society, in the promotion of the Content;
(j) Subject to mutual agreement of the parties, HealthGate will enhance
the Content with applicable hypertext links to other sites, including
the NEJM site. HealthGate will establish links, with the assistance of
the Society, from portions of the Content to the corresponding
original articles found on the NEJM site. HealthGate shall manage such
links to the NEJM site. Any revenue associated with said links shall
be shared according to Section 6 (e).
(k) A table of contents for the corresponding print issue will be included
with each weekly update to the Content.
(l) Weekly updates to the Content shall be released at 5:00 p.m. Eastern
Time on the Wednesday before the date of publication. HealthGate shall
not make the updates to the Content available to the public or any
third party prior to this time.
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(m) HealthGate shall design a template for the display of the Content
which shall be subject to review and approval by the Society. The
display of the Content shall not vary from the template approved by
the Society, except as may be mutually agreed upon by the parties from
time to time.
(n) The title (the "Title") used to identify the Content shall be subject
to mutual agreement of the parties and the Title and all proprietary
rights and goodwill related thereto, shall be the exclusive property
of the Society.
(o) HealthGate shall not make any changes to the Content without the
written approval of the Society.
2. SOFTWARE AND HARDWARE. HealthGate shall be responsible for all Software and
Hardware necessary to design, develop, and mount the Content on its servers
and host the Content on its Sites.
3. ACTIVITY REPORTS. During the time that HealthGate hosts and distributes the
Content, HealthGate shall provide to the Society activity reports detailing
access and usage of the Content. HealthGate shall provide the Society with
activity reports concerning access to the Site within 30 days of the end of
any month.
4. ADVERTISING. HealthGate shall have the right to place advertising and
sponsorship on the Content. Policies regarding advertising and sponsorship
shall be subject to mutual agreement between the parties.
5. MARKETING AND PROMOTION.
(a) The Society agrees to provide free "space available" advertising in
NEJM, no less than two times per year, to promote the Content.
HealthGate shall assume all costs associated with the production of
any advertisement used to promote the Content on this space available
basis. Specifications for these advertisements shall be provided by
the Society.
(b) The Society agrees to mention the Content and its availability through
the Sites, including a specific Web site address that shall be
provided by HealthGate, in each print issue of NEJM. The Society shall
have the rights to use HealthGate's trade names, trademarks and
service marks in said promotion.
(c) The Society may, at its discretion, promote the Content in its
marketing material, provided that the HealthGate trade name and a
HealthGate Web site to be designated by HealthGate is used in
conjunction with said promotion.
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(d) HealthGate shall promote the availability of and access to the Content
using a variety of methods, which shall include, but not be limited
to, e-mail, advertising, and linking. Such promotional efforts shall
be subject to Section 16 (a)
6. FEES.
(a) PRODUCTION, DEVELOPMENT, AND LICENSING. HealthGate shall remit to the
Society $500,000 annually to cover all costs associated with the
production, development, and licensing of the Content. In the first
year of this Agreement, HealthGate shall remit to the Society the
annual fees in the following manner: $100,000 upon signing on this
Agreement, $200,000 upon release of the first issue of the Content,
$100,000 180 days after the delivery of the first issue, and $100,000
270 days after the delivery of the first issue. In subsequent years,
HealthGate shall make four equal payments of $125,000 payable 90 days
apart, with the first payment due on anniversary of the release of the
first issue.
(b) ADVERTISING. HealthGate shall remit to the Society a percentage of any
revenue generated by HealthGate for the sale of advertising and/or
sponsorship revenue placed on the Content, as defined in Schedule B.
(c) PRINT PRODUCTS. During the term of this Agreement and for a period of
5 years following expiration or termination of this Agreement for any
reason, any revenue from print products derived from the Content
produced during the term of this Agreement shall be shared equally
between the two parties, after expenses.
(d) SALES TO OTHER WEB SITES. HealthGate shall remit to the Society a
percentage of any revenue generated by HealthGate for the licensing of
the Content or portions thereof to other Web sites or other parties
(in accordance with Section 7 (a)), as defined in Schedule B.
(e) SALES ATTRIBUTED TO LINKS TO NEJM. HealthGate shall remit to the
Society a percentage of any revenue attributed to a link from the
Content to the corresponding original article at the NEJM site (in
accordance with Section 1 (j)), as defined in Schedule B.
(f) ACTIVITY REPORTS. All payments and fees described in Section 6 (b),
(d), and (e) shall be based upon the activity reports referred to
Section 3. Any payments shall be made to the Society within 30 days
after submission of Activity Reports.
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CONFIDENTIAL INFORMATION
(g) OTHER FEES. There are no other fees contemplated by the parties in
association with this Agreement.
7. EXCLUSIVITY.
(a) HealthGate shall have exclusive rights to distribute the Content
through its own Web sites or through sites owned or operated by
HealthGate during the term of this Agreement. HealthGate may
distribute the Content to other Web sites, not owned or operated by
HealthGate, with the prior written approval of the Society, whose
approval shall not be unreasonably withheld.
(b) Notwithstanding the foregoing, the Society shall, six months after
the delivery of the first issue of the Content, have the right to
post the Content on one or more of the Society's web sites. This
exception shall be granted provided that each article displayed at
the NEJM Web site (i) includes a message that the Content was
developed jointly by the Society and HealthGate; (ii) is provided in
the same manner in which it is made available on the HealthGate site,
including, but not limited to, user registration, release date,
advertising sold by HealthGate (provided that such advertising
complies with the Society's advertising policies for the web site)
and served from the HealthGate server, and any value added services
provided by HealthGate, such as links to the MEDLINE database or to
other sites or services; (iii) includes a link to the Content hosted
by HealthGate; and (iv) is posted on the same schedule as the Content
is posted by HealthGate. This exception to Section 7 (a) shall not
waive either party's rights as outlined elsewhere in this Agreement.
8. INITIAL TERM. The Initial Term of this Agreement shall commence upon
delivery of the Content to HealthGate and, unless terminated earlier as set
forth herein, shall continue for a period of two (2) years after such date
(the "Initial Term").
9. RENEWAL. After the Initial Term, HealthGate may renew this Agreement
(subject to the termination provisions of Section 10) for up to two (2)
additional 18 month periods, provided that HealthGate's option to extend
the term shall be conditioned upon there being no material uncured defaults
or breaches by HealthGate at the time of HealthGate's exercise of such
option.
10. TERMINATION.
(a) Either party may terminate this Agreement without cause upon the last
date of the Initial Term or any subsequent renewal term by giving
written notice of termination
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CONFIDENTIAL INFORMATION
to the other party no later than ninety (90) days prior to the end of
the Initial Term or of any subsequent one year term. Upon termination
by either party, HealthGate may continue to use the Content produced
during the term of this Agreement to fulfill any outstanding
commitments, obligations, or contracts for a period no longer than
12 months after termination or expiration of this Agreement, subject
to terms and conditions which shall be mutually agreed upon by the
parties at the time.
(b) In the event that any use of the Content by HealthGate is, in the
opinion of the Society, injurious to the reputation or goodwill of
NEJM, the Society may terminate this Agreement upon 30 days written
notice to HealthGate, unless HealthGate shall remedy such use within
the 30 day period or be undertaking actions to remedy such use to the
satisfaction of the Society.
11. INTELLECTUAL PROPERTY RIGHTS.
(a) HEALTHGATE PROPERTY. HealthGate shall own and retain all right, title
and interest in (i) the Software (as defined in Section 2), and (ii)
the copyrights in the Software; and (iii) computer code written by
HealthGate for the format, appearance and presentation of the Content
(collectively, the "HealthGate Properties"), subject only to (x) the
Society's right, title and interest in the Content (as defined in
Section 1) contained therein and any derivative work based upon the
content, (y) the Title and the Society's other trade names,
trademarks and service marks and (z) any other information of the
Society provided to HealthGate hereunder (collectively, "Society's
Property").
(b) SOCIETY'S PROPERTY. The Society shall own and retain all right, title
and interest in the Society's Property. Any use of any trademark owned
by the Society shall inure to the exclusive benefit of the Society.
Upon expiration or termination of this Agreement, HealthGate shall
discontinue use of the Society's Property except as provided for in
Section 10 (a).
(c) HEALTHGATE CONFIDENTIAL INFORMATION. The Society understands and
acknowledges that the HealthGate Properties are subject to protection
as copyrighted works of authorship of HealthGate or HealthGate's
suppliers under the United States Copyright Act, and represent
valuable confidential or proprietary information of HealthGate.
Further, the Society understands and acknowledges that any
confidential information pertaining, INTER ALIA, to HealthGate's
customers, finances, internal operations and methods of compiling,
manipulating, presenting and disseminating Software or information,
which is disclosed to the Society (collectively, "HealthGate
Confidential Information"), represent valuable confidential
information of HealthGate entitled to protection as trade secrets. The
Society shall keep
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confidential, and shall protect from unauthorized disclosure by its
employees and agents, the HealthGate Confidential Information and all
copies or physical embodiments thereof in any media in its possession,
and shall limit access to such HealthGate Confidential Information to
those of its personnel who require such access in connection with the
Society's use thereof as permitted by this Agreement. The Society
shall secure and protect the HealthGate Confidential Information and
any and all copies and other physical embodiments thereof in any media
in its possession in a manner consistent with the steps taken by the
Society to protect its own trade secrets. The Society shall take
appropriate action by instruction or agreement with its employees who
are permitted access to the HealthGate Confidential Information or any
copy or other physical embodiment thereof in any media in its
possession, to satisfy its obligations hereunder. Promptly upon
discovery that any person has acquired possession, use or knowledge of
any part of the HealthGate Confidential Information other than as
authorized by this Agreement, the Society shall notify HealthGate of
such fact and the surrounding circumstances. The obligations of this
Section 11(c) shall survive any termination of this Agreement. The
obligations of this Section 11(c) shall not apply to any information
which (a) is generally known to the public, or becomes so known other
than by reason of a breach by the Society of its obligations
hereunder, (b) was known to the Society prior to its disclosure by
HealthGate, or (c) is learned by the Society from a third party who is
not in breach of an obligation of confidentiality in making such
disclosure.
(d) SOCIETY'S CONFIDENTIAL INFORMATION. HealthGate understands and
acknowledges that any Society's Property contained in the Site, are
subject to protection as copyrighted works of authorship of the
Society, and represent valuable or proprietary confidential
information of the Society. Further, HealthGate understands and
acknowledges that the Society information pertaining, INTER ALIA, to
the Society's subscribers, customers, finances, internal operations,
sales practices and procedures which is disclosed to HealthGate
(collectively, "Society's Confidential Information"), represent
valuable confidential information of the Society entitled to
protection as trade secrets. HealthGate shall keep confidential, and
shall protect from unauthorized disclosure by its employees and
agents, the Society's Confidential Information and all copies or
physical embodiments thereof in its possession, and shall limit access
to such Society's Confidential Information to those of its personnel
and personnel of its consultants or agents who require such access in
connection with HealthGate's use thereof as permitted by this
Agreement. HealthGate shall secure and protect the Society's
Confidential Information and any and all copies and other physical
embodiments thereof in its possession in a
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CONFIDENTIAL INFORMATION
manner consistent with the maintenance of the Society's rights and
interest therein. HealthGate shall take appropriate action by
instruction or agreement with its employees, agents and consultants
who are permitted access to the Society's Confidential Information or
any copy or other physical embodiment thereof, to satisfy HealthGate's
obligations hereunder. Promptly upon discovery that any person has
acquired possession, use or knowledge of any part of the Society's
Confidential Information other than as authorized by this Agreement,
HealthGate shall notify the Society of such fact and the surrounding
circumstances. The obligations of this Section 11(d) shall survive any
termination of this Agreement. The obligations of this Section 11(d)
shall not apply to any information which (a) is generally known to the
public, or becomes so known other than by reason of a breach by
HealthGate of its obligations hereunder, (b) was known to HealthGate
prior to its disclosure by the Society, or (c) is learned by
HealthGate from a third party who is not in breach of an obligation of
confidentiality in making such disclosure.
(e) PUBLIC AUTHORITY EXCEPTIONS. The parties' respective obligations under
this Section 11 shall not apply where disclosure is required, directed
or ordered by statute, regulation or a public authority, in legal or
administrative proceedings, in connection with the sale of securities
in the event of the filing of a Form S-1 Registration Statement or a
similar statement for the sale of securities by HealthGate with the
Securities Exchange Commission ("SEC") or any state authority or
otherwise. Notwithstanding the foregoing, and so that the other party
may timely present its objections to such disclosure, each party shall
provide the other party with timely notice of a request, requirement
or demand to disclose such information or matter which is either made
by a public authority, directed to a public authority or required by
the rules and regulations of statute, regulation or a public
authority.
12. REPRESENTATIONS AND WARRANTIES.
(a) AUTHORITY. Each party hereby represents and warrants that it has the
full right, power and authority to enter into and perform this
Agreement, and this Agreement has been duly authorized, executed and
delivered and constitutes the valid and binding obligation of such
party enforceable in accordance with its terms.
(b) HEALTHGATE. HealthGate hereby represents and warrants that: (i) it
has, and will have throughout the term of this Agreement, all rights
necessary to perform its obligations as set forth in this Agreement;
(ii) the HealthGate Property licensed hereunder does not and will not
infringe any trade name, trademark or copyright.
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(c) THE SOCIETY. The Society hereby represents and warrants that: (i) it
has, and will have throughout the term of this Agreement, all right,
title and interest in and to the Content and Society Properties,
except for items that are in the public domain or that are obtained
under valid licenses, (ii)) it has and will have the right to grant
the license granted herein, (iii) the Society Content and Property do
not and will not infringe any trade name, trademark or copyright, and
(iv) there are no material suits, claims or proceedings currently
pending or threatened against the Society based upon the Content and
that the Society will promptly advise HealthGate of the pendency or
threat of any such suits, claims or proceedings relating to the
Content or the Site arising during the term of this Agreement.
13. INDEMNIFICATION.
(a) THE SOCIETY'S INDEMNIFICATION. The Society shall indemnify, defend and
hold harmless HealthGate and its officers, employees, agents,
affiliates and subsidiaries against and from all losses, expenses,
damages and costs including, without limitation, reasonable attorneys'
fees, that may at any time be incurred by any of them by reason of (i)
any allegation, claim or suit threatened, made or brought against any
of them related to any matter covered by the representations and
warranties or set forth in Sections 12 (a) and 12 (c) above, (ii) any
allegation, claim or suit threatened, made or brought against any of
them that is based upon or arises from any actual or alleged error,
inaccuracy or other defect in the Society's Content or Properties and
(iii) any breach by the Society of any provision of this Agreement.
(b) HEALTHGATE'S INDEMNIFICATION. HealthGate shall indemnify, defend and
hold harmless each Society and its officers, employees, agents,
affiliates and subsidiaries against and from all losses, expenses,
damages and costs including, without limitation, reasonable attorney's
fees, that may at any time be incurred by any of them by reason of any
allegation, claim or suit threatened, made or brought against any of
them related to (i) any matter covered by the representations and
warranties set forth in Sections 12 (a) and 12 (b) above and (ii) any
breach by HealthGate of any provision of this Agreement.
(c) NOTICE; DEFENSE OF CLAIMS. Each party shall give prompt written notice
to the other party of any claim for indemnification hereunder,
specifying to the extent known the amount and nature of the claim, and
any matter which in the opinion of such party is likely to give rise
to an indemnification claim. The indemnifying party shall have the
right to control the defense through
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counsel of its choosing. The indemnified party shall have the right to
the extent of its interests to participate on its own behalf and at
its own expense in such matter or its settlement through counsel of
its choosing.
14. EXCLUSION OF IMPLIED WARRANTIES AND LIMITATION OF LIABILITY. EXCEPT AS SET
FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY OR REPRESENTATION TO THE
OTHER, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SHALL EITHER PARTY BE
LIABLE TO THE OTHER FOR LOST PROFITS OR ANY OTHER INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT.
15. ASSIGNMENT. Neither party may assign, sublicense or otherwise transfer in
whole or in part, any of the party's rights or obligations under this
Agreement without the written consent of the other party.
16. MISCELLANEOUS.
(a) PUBLICITY. HealthGate shall not distribute or publicly display or
communicate the name or trademarks of the Society without the prior
written approval of the Society, whose approval shall not be
unreasonably withheld. The Society agrees to respond to any written
request submitted by HealthGate regarding the use of the name or
trademarks of the Society within ten (10) working days of the
submission of a request; however any failure to respond to HealthGate
shall not be deemed approval. Notwithstanding the foregoing, the
Society hereby consents to the use of its name and trademarks, and the
reference to this Agreement, and if appropriate, the filing of this
Agreement, in connection with any filings made by HealthGate with the
Securities and Exchange Commission and any other applicable state
securities regulators concerning an initial or any other public
offering of its securities.
(b) RELATIONSHIP OF PARTIES. The relationship of the parties hereto shall
be that of independent contractors. Nothing herein shall be construed
to create any partnership, joint venture, or similar relationship or
to subject the parties to any implied duties or obligations respecting
the conduct of their affairs which are not expressly stated herein.
Neither party shall have any right or authority to assume or create
any obligation or responsibility, either express or implied, on behalf
of or in the name of the other party, or to bind the other party in
any matter or thing whatsoever.
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(c) NOTICES. Notices to either party under or relating to this Agreement
shall be in writing to the address indicated on the first page of this
Agreement, Attention: President, and shall be deemed effective when
received, or on the second day following the date after depositing the
notice with a reputable, overnight delivery service (such as FedEx or
U.P.S.).
(d) SEVERABILITY. The terms and conditions of this Agreement are
severable. If any term or condition of this Agreement is deemed to be
illegal or unenforceable under any rule of law, all other terms shall
remain in force. Further, the term or condition which is held to be
illegal or unenforceable shall remain in effect as far as possible in
accordance with the intention of the parties.
(e) ENTIRE AGREEMENT; MODIFICATIONS. The parties hereto agree that this
Agreement represents the complete and exclusive statement of the
Agreement between the parties, and supersedes all prior proposals and
understandings, oral or written, relating to the subject matter of
this Agreement. This Agreement may be amended only in writing executed
by the parties hereto.
(f) EFFECT OF WAIVER. Failure by either party to enforce any provision of
this Agreement shall not be deemed a waiver of that provision or of
any other provision of this Agreement.
(g) FORCE MAJEURE. Neither party shall be responsible for any delay nor
failure in performance resulting from acts beyond the control of such
party. Such acts shall include but not be limited to an act of God; an
act of war; a riot; an epidemic, fire, flood or other disaster; an act
of government; and a strike or lockout; provided that, in order to be
excused from delay or failure to perform, such party must act
diligently to remedy the cause of such delay or failure.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(i) VENUE. Except with respect to any dispute subject to arbitration in
accordance with the provisions of Section 15 (j) below, each party
hereto hereby irrevocably agrees that any legal action or proceeding
arising out of this Agreement shall be brought only in the Superior
Court of The Commonwealth of Massachusetts in and for Middlesex County
or the United States District Court for the Eastern Division of the
District of Massachusetts (or, if such court does not have subject
matter jurisdiction over such dispute, in any other state or federal
court located in the Commonwealth of
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Massachusetts), preserving, however, all rights of removal to a
federal court under 28 U.S.C. Section 1441. Each party hereto
irrevocably waives any objection to the venue of the aforesaid courts
in connection with any legal action or proceeding against it arising
out of this Agreement. Each party hereto also agrees that any trial
arising out of or in connection with a claim against it in connection
with this Agreement shall be before the court and each party's right
to a trial by jury is hereby waived. Each party hereto irrevocably
consents to the service of process outside the territorial
jurisdiction of said courts in any such action or proceeding by
mailing copies thereof by registered United States mail, postage
prepaid, to its address as specified above.
(j) ARBITRATION. Any question, dispute, disagreement, or difference of any
kind whatsoever which may arise between the Society and HealthGate
under, out of, or in connection with this Agreement, or the carrying
out of the work hereunder (whether during the progress of the work or
after its completion, and whether before or after the termination
abandonment or breach of this Agreement) shall be tried to be settled
amicably upon mutual consultation with good faith, and in failing so
shall be submitted to arbitration in Boston, Massachusetts to a panel
of one arbitrator under the rules of the American Arbitration
Association.
(k) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall take effect as an original, and all
of which, together, shall evidence one and the same Agreement.
(l) SECTION HEADINGS; EXHIBITS. The section, subsection and Schedule
headings used herein are for reference and convenience only, and shall
not enter into the interpretation hereof. The Schedules referred to
herein and attached hereto, or to be attached hereto, are incorporated
herein to the same extent as if set forth in full herein.
(m) NEUTRAL CONSTRUCTION. The parties to this Agreement agree that this
Agreement was negotiated fairly between them at arm's length and that
the final terms of this Agreement are the product of the parties'
negotiations. Each party warrants and represents that it has sought
and received legal counsel of its own choosing with regard to the
contents of this Agreement and the rights and obligations affected
hereby. The parties agree that this Agreement shall be deemed to have
been jointly and equally drafted by them, and that the provisions of
this Agreement therefore should not be construed against a party or
parties on the grounds that the party or parties drafted or was more
responsible for drafting the provision(s).
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(n) CERTAIN TERMS.
"Internet" means the world-wide network of computers commonly
understood to provide some or all of the following features, among
others: electronic mail, file transfers through File Transfer Protocol
("FTP"), Telnet access to local and remote computers, Usenet
Newsgroups, Gopher access to information on local and remote
computers, Wide Area Information Servers ("WAIS"), and World Wide Web
access.
"World Wide Web" or "Web" means all of the web pages that are
accessible to a typical computer user with appropriate access to the
Internet and a web browser.
(q) EMPLOYEES. Neither HealthGate nor the Society shall hire or seek to
engage the services of, nor offer to pay commissions, compensation or
any other form of incentives to the employees or consultants of the
other for any purpose whatsoever without the express written consent
of the other party. This provision shall expire eighteen (18) months
after the termination of this Agreement.
(r) COOPERATION. Each party shall cooperate with the other party as is
reasonably necessary to further the purposes of this Agreement and the
other party's performance hereunder.
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Executed as of the date set forth above, as a document under seal, by the duly
authorized representatives of the parties hereto.
HealthGate Data Corp.
By: /s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx
VP, Content
Massachusetts Medical Society
By: /s/ Xxxxx X. Xxxxxx, XX
-----------------------
Name: Xxxxx X. Xxxxxx, XX
Title: Executive Vice President
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------------------------
SCHEDULE A: CONTENT SPECIFICATION
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SCHEDULE B: REVENUE SHARING
---------------------------
Revenue described in Section 6 (b), Section 6 (d), and Section 6 (e) shall be
shared according to the following schedule:
REVENUE HEALTHGATE SHARE NEJM SHARE
------- ---------------- ----------
$0-$500,000 50% 50%
$500,001 - $1,000,000 52 47
$1,000,001 - $1,500,000 53 47
$1,500,001 - $2,000,000 54 46
$2,000,001 - $3,000,000 55 45
$3,000,001 - $4,000,000 56 44
$4,000,001 - $5,000,000 57 43
$5,000,000 - $7,500,000 58 42
$7,500,000 and higher 60 40
