EXHIBIT 10.15
CONTENT AGREEMENT
THIS CONTENT AGREEMENT ("Agreement") is made and entered into as of
November 1, 2002, (the "Effective Date") by and between HCA - Information
Technology & Services, 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.
WHEREAS, HealthGate maintains or manages certain Content that customers may
deliver to users via various technologies, now known or hereafter developed;
WHEREAS, HealthGate and Licensee wish to enter into an agreement providing
for the licensing of certain of HealthGate's Content and services to Licensee;
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. "Affiliates" as applied to any particular entity, is defined as
those entities, businesses, facilities, and enterprises, that are
controlled by, controlling, or under common control with a stated
entity, including, without limitation, all parent corporations and
their respective subsidiaries and affiliates, joint ventures,
partnerships, limited liability companies and partnerships,
together with any and all entities and businesses to which any of
the above described entities provide management services or
purchasing services, (hereinafter referred to collectively together
with IT&S as the "Enterprise"). "Control" as used herein means
control through ownership of more than a majority interest in an
entity, or control by contract.
1.2. "Authorized Users" shall mean (i) Licensee, (ii) Affiliates,
(iii) any Participant, (iv) or person who has access to the
Licensed Content through the Licensee's website under this
Agreement.
1.3. "Content" shall mean text, images, video, audio (including, without
limitation, music used in time relation with text, images or
video), and other data, information, materials, documentation,
features, products, services, promotion, links, pointers or
technology.
1.4. "Content Repository" shall mean the data files, data file indices,
descriptive data feeds (including, without limitation, HTML and XML
data feeds) that hold the Licensed Content on HealthGate's computer
hardware.
1.5. "Expiration Date" shall mean October 31, 2004.
1.6. "GAO" shall mean the Government Accounting Office.
1.7. "HHS" shall mean the Department of Health and Human Services.
1.8. "HealthGate Trademarks" shall mean HealthGate's name, logos,
trademarks, servicemarks, and trade dress created or used by
HealthGate.
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1.9. "Participant(s)" shall be defined as member(s) of HPG who have
entered into a written agreement with HPG that permits Participants
to purchase products and services from various vendors having
purchasing agreements with HPG ("Participation Agreement").
1.10. "Information Partners" shall mean those entities that have licensed
HealthGate certain information or content included in the Licensed
Content.
1.11. "Licensed Content" shall mean the Content set forth on SCHEDULE A
and all related Documentation.
1.12. "Licensee Trademarks" shall mean Licensee's name, logos,
trademarks, service marks, and trade dress created or used by
Licensee.
1.13. "Licensee" is defined to include HCA - Information Technology &
Services Inc ("IT&S") as well as those entities, businesses,
facilities, and enterprises (however and in whatever manner
conducted) that are controlled by, controlling, or under common
control with IT&S, including, without limitation, all parent
corporations and their respective subsidiaries and affiliates,
joint ventures, partnerships, limited liability companies and
partnerships, hospitals, free-standing centers, home health
agencies, surgery centers, physician practices, syndications,
medical laboratories, medical records processing facilities,
medical supply vendors, pharmacies, insurance providers, health
care providers, and managed care entities, together with any and
all entities and businesses to which IT&S or any of the above
described entities provide management services or data processing
management services, as of the date of this Agreement or at any
time during the term of this Agreement.
1.14. "Provider Content" shall mean content developed, owned, or licensed
by an Authorized User and provided by the Authorized User to
HealthGate.
1.15. "Related Materials" shall mean the software, documentation, content
and materials associated with the Licensed Content.
1.16. "Termination Notice" shall mean a written notice of termination.
2. AUTHORIZED USERS; LICENSE; PROHIBITED ACTIONS
2.1. CONTENT REPOSITORY. HealthGate shall develop, and maintain a
Content Repository that will contain the Licensed Content.
Authorized Users will be provided access to the Licensed Content in
the manner set forth in Section 2.2 below.
2.2. CONTENT PAGE. The Licensed Content shall be displayed as a separate
feature on the Authorized User's website and may not be combined or
intermingled with any other Content or material on that site,
without the express prior written approval of HealthGate.
2.3. LICENSE.
(a) HealthGate grants to Licensee a non-exclusive,
non-transferable license to provide access to the Licensed
Content to Authorized Users. The rights granted by
HealthGate shall be for Licensee to publicly perform and
display the Licensed Content on the Licensee's website for
itself, its Affiliates, any Participant, or facility that is
an Affiliate of a Participant. The maximum number of
hospitals and health related facilities to which Licensee
can provide the Licensed Content shall be limited to a total
of four hundred (400). There shall be no limit to the number
of free-standing centers, home health agencies, surgery
centers, physician practices, medical laboratories and
pharmacies that can link to the Licensed Content through one
of the 400 facilities' web sites provided that they are an
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Affiliate or a Participant. Upon request, Licensee shall
provide HealthGate with a quarterly report indicating the
total number of hospitals and health related facilities
using the Licensed Content.
(b) The Licensed Content 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 Licensed
Content.
(c) Any rights not expressly granted in this Agreement with
regard to the Licensed Content, and the Related Materials
are reserved to HealthGate and its Information Partners.
2.4. PERMITTED USES. During the term of this Agreement, Licensee and the
Authorized Users may:
(a) make searches of and access the Licensed Content;
(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 Licensed Content 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 Licensed Content are
maintained.
With respect to subsection 2.5(b), provided that Licensee,
Affiliates, 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 Licensed Content or any
of the Related Materials;
(b) sell, re-license, distribute or commercially exploit the
Licensed Content or any of the Related Materials.
(c) except as specifically permitted herein, make the Licensed
Content available through any means or media other than the
Licensed Content;
(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 Licensed Content
or any of the Related Materials, in whole or in part,
without the prior written consent of HealthGate.
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3. INTENTIONALLY OMITTED
4. MARKETING AND RE-SELLING SITES
4.1. Any Affiliate or Participant facility which is sold to an
independent third party may continue to utilize the Licensed
Content 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 Licensed Content 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. License fees payable by Licensee to HealthGate are
set forth in SCHEDULE B. In addition to all charges specified in
this Agreement, Licensee shall pay or reimburse HealthGate for all
federal, state, local or other taxes not based on HealthGate's
income, net worth or personnel costs, including, but not limited
to, sales, use, and privilege taxes, or amounts levied in lieu
thereof, based on charges payable under this Agreement or based on
use of the Licensed Content or any services performed hereunder,
whether such taxes are now or hereafter imposed under the authority
of any federal, state, local or other taxing jurisdiction.
HealthGate retains title to the Licensed Content, therefore
HealthGate shall pay all property taxes on Licensed Content, if
imposed. If HealthGate is required to pay sales or usage taxes
imposed with respect to this Agreement, HealthGate shall collect
said taxes from Licensee and remit to the proper taxing authority
and shall include a separate line item for said taxes on the
invoice to Licensee. At the request of Licensee, HealthGate shall
provide to Licensee any tax xxxx or other appropriate documentation
reasonably required to substantiate any tax charges.
5.2. ADJUSTMENTS IN FEES. The licenses fee due hereunder and set forth
in SCHEDULE B may be subject to an adjustment prior to the
Expiration Date. HealthGate may reduce the license fee at any time
during the term of this Agreement. HealthGate may request an
increase in the license fee to be effective on or after the first
12 months of the Agreement providing all of the following
conditions are met: (i) increases result from a reissue or other
modification of the HealthGate's commercial pricelist or from a
change in HealthGate's market prices; (ii) no more than three
increases will be considered during each 12-month period of the
Agreement; (iii) increases are requested before the last 60 days of
the Agreement; and (iv) at least 30 days elapse between requested
increases. The aggregate of the increases during any 12-month
period shall not exceed five (5%) of the current fee or the
increase in the Consumer Price Index ("CPI") whichever is less.
5.3. MOST FAVORED CUSTOMER PRICING TERMS. HealthGate represents and
warrants that the prices charged for the Licensed Content purchased
hereunder, net of all discounts and rebates, do not exceed
HealthGate's net prices for the particular Licensed Content charged
to others who are the same class of purchaser as are the Licensee
and Authorized Users and who purchase in comparable volume and
terms of purchase.
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 Licensed Content, 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.
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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 commence on the Effective Date and shall
end on 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. TERMINATION WITHOUT CAUSE. Licensee shall have the right, at any
time, to terminate this Agreement, in whole or in part, without
cause, by providing at least sixty (60) days' prior notice to
HealthGate. In the event of such termination, HealthGate will
prevent Licensee and Authorized Users from accessing the Licensed
Content. Licensee shall be liable only for (i) payment for services
rendered before the effective date of termination calculated as a
ratable amount of the annual fee; (ii) prepaid, or contracted, for
licensee fees to HealthGate's Information Partners and (iii) a
reasonable allowance for profit on the amounts calculated in (i)
and (ii) above which in no event shall exceed 10% of the amount
calculated before the profit.
7. HEALTHGATE TRADEMARKS AND TRADEMARKS OF OTHERS
7.1. HEALTHGATE TRADEMARKS. Notwithstanding the limited right to use the
HealthGate Trademarks on the Licensed Content, Licensee recognizes
and acknowledges HealthGate is the sole owner of the HealthGate
Trademarks; and all rights therein and the good will pertaining
thereto belong exclusively to HealthGate. Accordingly, any use by
Licensee of the Licensed Content, 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 otherwise associated with the HealthGate Trademarks.
Neither this Agreement nor any rights granted hereunder will
operate as a transfer to Licensee or the Licensed Content 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 Licensed Content, 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
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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 that from the time of initial delivery
of any Licensed Content and for the period specified below,
such Licensed Content shall operate in accordance with
written specifications and documentation provided by
HealthGate with respect to such Licensed Content (the
"Documentation"). If, at any time within the period ending
one (1) year from the date of delivery and acceptance of
any Licensed Content by Licensee, such Licensed Content
fails to perform according to the applicable Documentation
or the express warranties stated in this Agreement,
Licensee shall promptly notify HealthGate in writing of
each alleged deficiency. HealthGate shall, at its own cost
and expense and within thirty (30) days of receipt of such
written notification, either correct each deficiency or
provide Licensee with a plan acceptable to Licensee for
correcting the deficiency.
8.1.2 If the deficiency is not corrected within the
aforementioned thirty (30) day period, or if an acceptable
plan for correcting such deficiency is not established
during such period, Licensee may exercise either of the
following options by giving HealthGate written notice
thereof within thirty (30) days thereafter:
1. Terminate this Agreement as to the Licensed Content,
in which event HealthGate shall refund to Licensee a
pro rata portion of the annual licensee fee and any
unearned other fees or expenses paid by Licensee to
HealthGate with respect to such Licensed Content which
relate to the period after which such Licensed Content
have failed to so perform and upon return by Licensee
to HealthGate of all copies of the Licensed Content or
certification of destruction of Licensed Content,
Licensee shall have no obligation to make any further
payment therefore; or
2. Suspend Licensee's use of such non-performing Licensed
Content and defer further payments for such Licensed
Content until HealthGate has corrected the deficiency.
If, after a reasonable time, HealthGate has not
corrected the deficiency, Licensee shall have the
option to terminate its license to such Licensed
Content as provided above.
8.1.3 HealthGate warrants that HealthGate has the absolute right
to license the Licensed Content in accordance with this
Agreement and, as long as Licensee is not in default
hereunder, warrants and represents that Licensee shall
quietly and peacefully possess any Licensed Content
provided hereunder subject to and in accordance with the
provisions of this Agreement.
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8.1.4 The warranties of this Section 8.1 shall not apply if:
1. The Licensed Content is not used in accordance with
the applicable Documentation;
2. The Licensed Content is altered, modified or converted
by Licensee without approval of HealthGate; or
3. The non-conforming operation is a result of a
malfunction of Licensee's equipment or of any other
third party software, data or intellectual property
used by Licensee in conjunction with the Licensed
Content not approved by HealthGate.
8.1.5 HealthGate warrants that the Licensed Content and
Licensee's use thereof in accordance with the Documentation
and the provisions of this Agreement, shall not infringe or
violate the patent, trademark, copyright, trade secret or
any other intellectual property right of any entity not a
party to this Agreement.
8.1.6 HealthGate warrants and represents that, at the time the
Licensed Content is delivered to Licensee, no portion of
the Licensed Content or the media upon which it is stored
has any type of software routines or other element which is
designed to or 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.
8.1.7 HealthGate warrants and represents to Licensee that the
Licensed Content shall, to the extent applicable, at all
times operate in a manner that complies with the federal
privacy regulations as contained in 42 CFR Part 164 (the
"Federal Privacy Regulations") and the federal security
standards as contained in 42 CFR Part 142 (the "Federal
Security Regulations").
8.1.8 THE WARRANTIES STATED WITHIN THIS AGREEMENT ARE EXCLUSIVE,
AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR THE
APPLICABLE DOCUMENTATION, HEALTHGATE CANNOT AND DOES NOT
WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
INFORMATION AND CONTENT AVAILABLE THROUGH THE LICENSED
CONTENT, OR THE LICENSED CONTENT THEMSELVES, OR ANY OTHER
INFORMATION WHICH IS REFERENCED BY OR LINKED TO THE
LICENSED CONTENT.
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 Licensed Content as
provided hereunder infringes any patent, copyright, trade secret or
other proprietary right. HealthGate shall have the sole right to
conduct the defense of any such claim or action and all
negotiations for its settlement or compromise, unless otherwise
mutually agreed upon in writing, or unless HealthGate fails to
assume its obligation to defend and Licensee is required to do so
to protect its interests. 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 Licensed Content as provided hereunder
infringes any patent, copyright, trade secret or other proprietary
right, HealthGate shall either procure for Licensee the right to
continue using
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the Licensed Content, modify it to make it non-infringing but
continue to meet the specifications therefore, or replace it with a
similar non-infringing content as determined by the sole discretion
of HealthGate. Section 8.2 shall survive the termination or
expiration of this Agreement.
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 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 Licensed Content, 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.
Subject to the express provisions and limitations of this Section,
each Party shall be liable to the other for all damages incurred as
a result of the breaching Party's failure to perform its
obligations.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BELOW, THE AGGREGATE
CUMULATIVE MONETARY LIABILITY OF LICENSEE HEREUNDER FOR ALL CLAIMS
ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE
FORM (e.g., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS
BROUGHT, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY LICENSEE
PURSUANT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS UPON
LICENSEE'S LIABILITY SHALL NOT APPLY TO: (i) LOSSES SUBJECT TO
INDEMNIFICATION BY LICENSEE; (ii) LOSSES ARISING FROM LICENSEE'S
REPUDIATION OF THIS AGREEMENT; OR (iii) LOSSES ARISING OUT OF THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF LICENSEE.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BELOW, THE AGGREGATE
CUMULATIVE MONETARY LIABILITY OF HEALTHGATE HEREUNDER FOR ALL
DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT,
NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT, OR OTHERWISE) IN
WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE AMOUNT OF FEES
PAID BY LICENSEE PURSUANT TO THIS AGREEMENT. THE FOREGOING
LIMITATION UPON THE TYPES AND AMOUNTS OF HEALTHGATE'S LIABILITY
SHALL NOT APPLY TO: (i) LOSSES SUBJECT TO INDEMNIFICATION BY
HEALTHGATE; (ii) LOSSES ARISING FROM HEALTHGATE'S REPUDIATION OF,
OR UNEXCUSED REFUSAL TO PERFORM, THIS AGREEMENT; AND (iii) LOSSES
ARISING OUT OF THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF
HEALTHGATE.
Except as otherwise provided, neither party shall be liable for
consequential, special, indirect, or incidental damages, even if
advised of the possibility of such damages and regardless of the
form in which any action is brought or for exemplary or punitive
damages regardless of the form in which any action is brought.
9. MISCELLANEOUS
9.1 CONFIDENTIALITY
9.1.1 "Confidential Information" is defined to include 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 all other information related to
the business of either party and its Affiliates, clients
and patients that
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may be obtained as the result of performance under this
Agreement. Neither party will, without first obtaining the
other party's prior written consent, disclose publicly or
to any third party person, firm or enterprise or use for
its benefit any information relating to such other party's
pricing methods, processes, financial data, lists,
apparatus, statistics, programs, research, development or
related information of such other party concerning its
past, present or future business activities or plans, or
results or terms of the sale of products or provision of
services by HealthGate under this Agreement. Both parties
agree that the terms of this Agreement, including the
prices for products and services and the sales volumes of
products and services, in the aggregate or by facility,
shall also be held in confidence and not disclosed publicly
or disclosed to any third party. Notwithstanding the
foregoing, HealthGate may make reference to Licensee in any
of HealthGate's public filings with the Securities and
Exchange Commission.
9.1.2 The party receiving the Confidential Information (the
"Receiving Party") from the party who owns or holds in
confidence such Confidential Information (the "Owning
Party") may use the Confidential Information solely for the
purpose of performing its obligations or enforcing its
rights under this Agreement.
9.1.3 Each party shall take appropriate action, by instruction to
or agreement with its employees, agents and subcontractor,
to maintain the confidentiality of the Confidential
Information. A Receiving Party may disclose any of the
Owning Party's Confidential Information on an as-needed
basis to its non-employee fiduciaries who are under a
professional obligation to keep such information
confidential or who have signed confidential agreements,
including without limitation its attorneys, accountants,
auditors, controlling persons, officers, directors or
trustees, without the Owning Party's prior consent. The
Receiving Party shall promptly notify the Owning Party in
the event that the Receiving Party learns of unauthorized
release of Confidential Information.
9.1.4 Except as may be permitted under Section 9.1.5, a Receiving
Party shall not use or include the Owning Party's
Confidential Information, nor any extrapolations or
normative versions thereof, in any database or other
application or program that the Receiving Party publishes
or makes available to a third party or otherwise use
Confidential Information received from the Owning Party for
the purpose of developing information or statistical
compilations for use by third parties or for any other
commercial exploitation or enterprise without first
obtaining the Owning Party's specific written consent,
which consent the Owning Party may withhold in the exercise
of its sole discretion.
9.1.5 The Receiving Party shall have no obligation with respect
to:
9.1.5.1 Confidential Information made available to the
general public without restriction by the Owning
Party or by an authorized third party;
9.1.5.2 Confidential Information rightfully known to the
Receiving Party independently of disclosures by
the Owning Party under this Agreement;
9.1.5.3 Confidential Information independently developed
by the Receiving Party; or
9.1.5.4 Confidential Information that the Receiving Party
may be required to disclose pursuant to subpoena
or other lawful process; provided, however, that
the Receiving Party notifies the Owning Party in a
timely manner to allow the Owning Party to appear
and protect its interests.
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9.1.6 Upon the termination of this Agreement, each party shall
(i) immediately cease to use the other party's Confidential
Information, (ii) return to the other party such
Confidential Information and all copies thereof within ten
(10) days of the termination, and (iii) upon request,
certify in writing to the other party that it has complied
with its obligations set forth in this Section 9.1.6,
unless otherwise provided in this Agreement.
9.1.7 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, injunctive relief is an
appropriate judicial remedy to protect such rights.
9.1.8 Each party hereby agrees to indemnify 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. Each party agrees to provide reasonable
assistance and cooperation upon the reasonable request of
the other party in connection with any litigation against
third parties to protect the requesting party's
Confidential Information, provided that the party seeking
such assistance and cooperation shall reimburse the other
party for its reasonable out-of-pocket expenses.
9.1.9 HIPAA Requirements. HealthGate agrees to comply with the
applicable provisions of the Administrative Simplification
section of the Health Insurance Portability and
Accountability Act of 1996, as codified at 42 U.S.C.
Section 1320d through d-8 ("HIPAA"), and the requirements
of any regulations promulgated thereunder including without
limitation the federal privacy regulations as contained in
45 CFR Part 164 (the "Federal Privacy Regulations") and the
federal security standards as contained in 45 CFR Part 142
(the "Federal Security Regulations"). HealthGate agrees not
to use or further disclose any protected health
information, as defined in 45 CFR 164.504, or individually
identifiable health information, as defined in 42 U.S.C.
Section 1320d (collectively, the "Protected Health
Information"), concerning a patient other than as permitted
by this Agreement and the requirements of HIPAA or
regulations promulgated under HIPAA, including without
limitation the Federal Privacy Regulations and the Federal
Security Regulations. HealthGate will implement appropriate
safeguards to prevent the use or disclosure of a patient's
Protected Health Information other than as provided for by
this Agreement. HealthGate will promptly report to "IT&S
and/or Affiliate" any use or disclosure of a patient's
Protected Health Information not provided for by this
Agreement or in violation of HIPAA, the Federal Privacy
Regulations, or the Federal Security Regulations of which
HealthGate becomes aware. In the event HealthGate, with
"IT&S and/or Affiliate's approval, contracts with any
Providers or agents to whom HealthGate provides a patient's
Protected Health Information received from Provider,
HealthGate shall include provisions in such agreements
whereby the Provider and agent agree to the same
restrictions and conditions that apply to HealthGate with
respect to such patient's Protected Health Information.
HealthGate will make its internal practices, books, and
records relating to the use and disclosure of a patient's
Protected Health Information available to the Secretary of
Health and Human Services to the extent required for
determining compliance with the Federal Privacy Regulations
and the Federal Security Regulations. Notwithstanding the
foregoing, no attorney-client, accountant-client, or other
legal privilege shall be deemed waived by HealthGate or
"IT&S and/or Affiliate" by virtue of this Section. Any
violation of this provision shall be considered a material
breach of this Agreement, conferring on IT&S the right to
terminate this Agreement immediately without any right of
HealthGate to cure such breach.
Page 10 of 16
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. Neither Licensee nor HealthGate shall, directly or
indirectly, by assignment or change of control or otherwise,
transfer this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other, which
consent may be withheld in the sole discretion of the party's whose
consent is sought; provided, however, that (i) Licensee may assign
its rights or obligations hereunder to an Affiliate without the
consent of the HealthGate; (ii) both parties may assign its rights
and obligations hereunder in connection with any merger,
acquisition, or other transaction involving the sale of all or
substantially all of its assets without the consent of the other
party. This Agreement shall inure to the benefit of and bind
permitted successors and assigns of HealthGate and Licensee. In no
event shall consent to assignment be conditioned upon the payment
of any fee.
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: Xxxxxx 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: Director, I/S Contracts
HCA - Information Technology & Services, Inc.
0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy to: General Counsel
HCA - The Healthcare Company
Xxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
9.6. PUBLICITY.
9.6.1 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.
Page 11 of 16
9.6.2 The parties shall publicly disclose [this
arrangement/agreement] in the manner contemplated by
Regulation FD of the Securities and Exchange Commission in
the form of the press release attached as Schedule C.
9.7. BOOKS AND RECORDS.
9.7.1 To the extent the requirements of 42 C.F.R. Section 420.300
et seq. are applicable to the transactions contemplated by
this Agreement, HealthGate 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.
9.7.2 If HealthGate 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 Licensee,
HHS, GAO and their representatives to the "related"
organization's books and records.
9.7.3 HealthGate 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
HealthGate's obligation to report and disclose discounts,
rebates and other reductions to Licensee and Authorized
Users for Licensed Content 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).
9.7.4 Licensee is not a federal government contractor; however,
some of the Authorized Users that will purchase from
HealthGate under this Agreement may be federal government
contractors or subcontractors. HealthGate 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).
9.7.5 Licensee shall have the right, during normal business hours
and with reasonable advance notice, to review and photocopy
HealthGate's books, documents and records that pertain
directly to the accounts of Licensee, Authorized Users and
their Affiliates, the fees payable to HealthGate under this
Agreement, the rebates payable by HealthGate, or the
services provided by HealthGate hereunder. The audit may be
conducted by Licensee 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, documents 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.
9.7.6 HealthGate 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"). HealthGate represents and warrants to Licensee
that HealthGate (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
Page 12 of 16
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 HealthGate being excluded
from participation in the Federal Healthcare Programs. This
shall be an ongoing representation and warranty during the
term of this Agreement, and HealthGate shall immediately
notify Licensee of any change in the status of the
representations and warranty set forth in this section. Any
breach of this section shall give Licensee the right to
terminate this Agreement immediately for cause.
9.7.7 HealthGate 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
Licensee entering into this Agreement or for any business
transacted under this Agreement.
9.7.8 Licensee's rights under this Section 9.7 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.
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 non-affected party may terminate subject to
the requirements of Section 6 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 9.11
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.
Page 13 of 16
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 PERSONAL INDUCEMENTS. No personal cash, merchandise, equipment or
other items of intrinsic value shall be offered by or on behalf of
HealthGate to Licensee or Authorized Users and/or their employees,
officers, or directors as an inducement to purchase from
HealthGate.
9.15 VENDOR RELATIONS POLICY HealthGate acknowledges that Licensee has a
Vendor Relations Policy relating to ethics and compliance issues
between suppliers and Licensee, and that it has received a copy of
this policy. The Vendor Relations Policy is also available through
the Internet at:
xxxx://xxx.xxxxxxxxxxxxx.xxx/Xxxxxx/Xxxxxxxx/xx/xx.000.xxx.
9.16 DISPUTES
9.16.1 As used in this clause, "Problem" shall mean any problem or
circumstance that results from any of the following: (a) an
alleged failure by either party to perform its obligations
under this Agreement; (b) an alleged inadequacy or delay of
either party's performance under this Agreement; (c) a
request for services where the parties disagree whether
such services are within the scope of this Agreement; or,
(d) a disagreement as to the responsibilities either party
has under this Agreement. "Problem Resolution Report" shall
mean a written report executed by both parties describing a
solution to a Problem.
9.16.2 If a Problem or dispute arises, the parties' respective
designated representatives shall attempt to resolve the
Problem. If such Problem cannot be promptly resolved, IT&S'
and HealthGate's contract managers shall discuss and
endeavor to resolve such Problem. If the IT&S and
HealthGate contract managers resolve the Problem, they will
execute a Problem Resolution Report and each party shall
commence the resolution of the Problem in accordance
therewith. In the event the IT&S and HealthGate contract
managers fail to resolve the Problem within five (5) days
after the referral of the Problem to them, the parties
shall refer the Problem to the Management Designees for
resolution. The Management Designees determination of a
resolution with respect to any Problem shall be final and
binding on the parties. In the event the Management
Designees fail to resolve the Problem within ten (10) days
after the referral of the Problem to it, the Parties may
escalate the Problem to the Designate Executives for
resolution.
THE MANAGEMENT DESIGNEES ARE:
HealthGate - CFO
IT&S - Xxx Xxxxx
THE DESIGNATED EXECUTIVES ARE:
HealthGate - CEO
IT&S - Xxxxx Xxxxxxx
9.16.3 If any Problem or other dispute arises between the parties,
and the disputed matter has not been resolved by the
Designated Executives within ten (10) days after such
dispute has been referred to them, or such longer period as
agreed to in writing by the parties, and without regard to
whether either party has contested whether these
procedures, including the duty of good faith, have been
followed, each party shall have the right to commence any
legal proceeding as permitted by law.
Page 14 of 16
9.16.4 Notwithstanding anything to the contrary contained herein,
and even if any Problem or other dispute arises between the
parties and regardless of whether or not it requires at any
time the use of the dispute resolution procedures described
above, except as otherwise expressly provided in this
Agreement, in no event nor for any reason shall (a)
HealthGate interrupt the provision of Licensed Content to
IT&S unless: (i) authority to do so is granted by the other
party or conferred by a court of competent jurisdiction; or
(ii) the Term of this Agreement has been terminated or has
expired and all work satisfactory to IT&S has been
completed and all amounts owed to HealthGate have been
paid.
9.16.5 Subject to and in accordance with the provisions of this
Section, IT&S may withhold payment of any HealthGate
invoice (or part thereof) that it in good faith disputes
are due or owing. In such case, IT&S shall, by the
applicable due date, pay any amounts then due that are not
disputed and provide to HealthGate a written explanation of
the basis for the dispute as to the disputed amounts. The
failure of IT&S to pay a disputed invoice, or to pay the
disputed part of an invoice, shall not constitute a breach
or default by IT&S, so long as IT&S complies with the
provisions of this Section 9.16. For purposes of this
Section, any dispute relating to amounts owed by a party
hereunder shall be considered a Problem.
9.17 ALTERNATIVE DISPUTE RESOLUTION: ATTORNEYS FEES.
In the event of a dispute between the parties that cannot be
resolved between them, either party may submit their dispute to
non-binding mediation prior to initiating litigation. Each party
shall bear its own costs and expenses of participating in the
mediation (including without limitation, attorneys' fees) and each
party shall bear one-half (1/2) of the costs and expenses of the
mediator. The matters discussed or revealed in the mediation
session shall not be revealed in any subsequent litigation. In the
event the matter is not resolved in the mediation, suit may be
brought. Nothing in this Section shall be deemed to limit a party's
access to the court system to pursue a remedy that is limited to
injunctive relief. During the process described above for this
Section, HealthGate shall continue its performance under this
Agreement, unless Licensee instructs HealthGate to suspend services
until the dispute is resolved.
9.18 WAIVER. The failure by either party to exercise any right provided
hereunder shall not be deemed a waiver of such right.
9.19 SURVIVAL. Sections 2.3, 2.4, 2.5, 8 and 9 shall survive any
termination of this Agreement.
9.20 ENTIRE AGREEMENT; SEVERABILITY. The parties hereto acknowledge
that they have read this Agreement in its entirety and understand
and agree to be bound by all of its terms and conditions, and
further agree that this Agreement and any exhibits or schedules
hereto or thereto constitute a complete and exclusive statement of
the understanding between the parties with respect to delivery of
Licensed Content by HealthGate, which supersede any and all other
communications between the parties, whether written or oral. Any
prior agreements, promises, negotiations or representations related
to the delivery of Licensed Content by HealthGate not expressly set
forth in this Agreement are of no force and effect. All agreements,
clauses and covenants contained herein are severable, and in the
event any of them shall be held to be unconstitutional, invalid,
illegal, or unenforceable, the remainder of this Agreement shall be
interpreted as if such unconstitutional, invalid, illegal or
unenforceable agreements, clauses or covenants, were not contained
herein. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY
PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF
LIABILITY IS INTENDED BY THE PARTIES TO BE SEVERABLE AND
INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT
THAT ANY
Page 15 of 16
REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED ITS ESSENTIAL
PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET
FORTH HEREIN SHALL REMAIN IN EFFECT.
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. HCA - INFORMATION TECHNOLOGY & SERVICES. INC.
BY: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxx
-------------------------- ----------------------------
Name: XXXXXX XXXXXX Name: Xxxx Xxxxxxxx
----------------------- -------------------------
Title: DIR. OF ADMINISTRATION Title: President
---------------------- ------------------------
Date: 10/15/02 Date: 10/21/02
----------------------- -------------------------
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