Exhibit 10.33
AMENDMENT NUMBER ONE
TO
ACTIVEPRESS JOURNAL HOSTING AND DELIVERY AGREEMENT
This Amendment Number One to activePress Journal Hosting and Delivery
Agreement (this "Amendment"), dated an effective as of January 1, 2001, amends
that certain activePress Journal Hosting and Delivery Agreement (the "Journal
Agreement") dated as of January 1, 2000 by and between HealthGate Data Corp., a
Delaware corporation having an address at 00 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("HealthGate"), Xxxxxxxxx Publishers Limited,
having an address of Xxxxx Xxxx, Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx [and being
formerly know as Xxxxxxxxx Science Limited] ("Xxxxxxxxx"), and Munksgaard
International Publishers Limited, having an address of 35 Norre Sogade,
Copenhagen DK 1016 Denmark ("Munksgaard", and together with Xxxxxxxxx,
collectively, the "Publisher"). Capitalized terms used herein without definition
shall have the meanings ascribed to them in the Journal Agreement.
The Parties agree that Xxxxxxxxx Publishing shall be defined as
Xxxxxxxxx Science Ltd, Xxxxxxxxx Publishers Ltd, Munksgaard and affiliated
publishing companies.
RECITALS
Since the effective date of the Journal Agreement, the Software and the
desire of the Publisher for increased services for the Site have evolved to a
sufficient degree that HealthGate and the Publisher desire to amend the Journal
Agreement to better reflect such evolution and the agreement of the parties
going forward from the date of this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. AMENDMENTS. The Journal Agreement is hereby amended as follows:
(a) SCHEDULES A, B, C, D and E are deleted and replaced in their
entirety by the Site Service Plan attached hereto as SCHEDULE
A and incorporated herein by reference (the "Site Service
Plan"), and all references to said Schedules in the Journal
Agreement shall be deemed references to SCHEDULE A attached
hereto;
(b) SECTION 1 is deleted and replaced in its entirety with a new
SECTION 1 as follows:
"1. SITE.
HealthGate shall host the Content on a Web site with
the address of xxxx://xxx.xxxxxxxxx-xxxxxxx.xxx (the
"Site"). HealthGate shall make the Content and
portions thereof accessible in an online interactive
mode for searching, access, review, displaying in a
Web browser or on computer
terminals, downloading, and printing on users'
Web-enabled computer equipment."
(c) SECTION 2 is deleted and replaced in its entirety with a new
SECTION 2 as follows:
"2. SITE SERVICE PLAN.
The Site Service Plan set forth in SCHEDULE A
attached hereto contains:
(a) service and support specifications,
including agreed communication procedures
for the notification and rectification of
service errors;
(b) procedures and processes for adding new
Content, which shall be done by the
Publisher; and
(c) details and descriptions of the functions
and features and procedures for making minor
enhancements to the Software, as defined in
SECTION 3."
(d) SECTION 3 (Content Maintenance Plan) is deleted and SECTIONS 4
- 24 are hereby renumbered SECTIONS 3 - 23, accordingly, and
all Section references hereinafter made, and in the Journal
Agreement, shall be deemed to be references to such renumbered
Sections.
(e) SECTION 3 is deleted and replaced in its entirety with a new
SECTION 3 as follows:
"3. SOFTWARE.
HealthGate has developed, licensed or otherwise
acquired software to operate the Site (collectively
the "Software"). The Site Service Plan contains
details and descriptions of the Software's functions
and features and procedures for making minor
enhancements to the Software. Notwithstanding the
foregoing, the Publisher may elect to request the
development of additional functions or features not
described in the Site Service Plan. The fee for such
development shall be as prescribed in SECTION 10 and
shall be based upon the amount of labor time
(measured in hours) required by HealthGate to
evaluate, create and test each request. All such
development and associated fees must have the prior
written approval of the Publisher."
(f) SECTION 4 is amended by deleting Xxxxxxx Xxxxxx as one of the
HealthGate Project Managers and replacing her with Xxxx
Xxxxxxxxxx, deleting Xxx Xxxxxxxxx and Xxxx Xxxxx as Publisher
Project Managers and replacing them with Xxx Xxxxxxx and Xxxxx
Xxxxxx.
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(g) The second sentence of SECTION 5, which begins "The Publisher,
at its expense, ..." and ends "...the Content Maintenance
Plan." is deleted and replaced in its entirety with a new
second sentence which reads as follows:
"The Publisher, at its expense, shall update the Content using
the Software."
(h) SECTION 8 is deleted and replaced in its entirety with a new
SECTION 8 as follows:
"8. ACTIVITY REPORTS.
"During the time that HealthGate hosts the Site,
HealthGate shall provide to the Publisher activity
reports detailing performance, access and usage of
the Site. Such activity reports are described in the
Site Service Plan."
(i) The reference in SECTION 9 (Advertising) to SECTION 10(g) is
deemed to be a reference to SECTION 10(d) after giving effect
to the amendment of SECTION 10 set forth below.
(j) SECTION 10 is deleted and replaced in its entirety with a new
SECTION 10 as follows:
"10. SCHEDULE OF FEES.
(a) ANNUAL HOSTING. The Publisher shall remit to
HealthGate an annual hosting, Content
storage and Software maintenance fee of
$1,300,000 for each year of the Initial
Term. This fee shall entitle the Publisher
(i) to have up to 313 individual journal
titles mounted and accessible through the
Site and shall apply whether or not the
Publisher supplies HealthGate with Content
for 313 individual journal titles, (ii) an
allowance of 48 working days (equivalent to
384 hours) of development labor time per
year for HealthGate to make minor changes to
the Software as requested by the Publisher
and agreed to by HealthGate, whose agreement
shall not be unreasonably withheld, and
(iii) 200 gigabytes of storage of the
Content on the Hardware. If the Publisher
supplies HealthGate with Content from more
than 313 individual titles, the Publisher
shall remit to HealthGate an annual fee of
$1650 for each additional individual journal
title of the Content mounted and accessible
through the Site. Further, if the Publisher
chooses to supply Content from journal
titles in excess of the initial 313 and
these additional titles shall be in the form
of bibliographic headers and PDF files only,
then the annual conversion fee shall be
$1450. In addition, in the event the Content
requires in excess of 200 gigabytes of
storage on the Hardware, such excess storage
needs shall be accessible to the Publisher
at an annual rate of $600 for each
additional gigabyte of storage of the
Content on the Hardware.
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(b) ADDITIONAL SOFTWARE DEVELOPMENT. The
Publisher shall remit to HealthGate a fee of
$1,200 for each 8 hours of labor time used
for the development of additional Software
functions or features that are not described
in the Site Service Plan as part of
HealthGate's general maintenance and
upgrading of the Software.
(c) PROCESSING FEE. The Publisher shall remit a
Processing Fee, as described in SECTION 7
above, equal to 25% of each Information Fee
relating to the on-line sale of an
individual journal article processed by
HealthGate. The minimum Processing Fee shall
be equal to $4.00 per sales transaction
processed by HealthGate. Information Fees
relating to the sale of a journal
subscription are not subject to a processing
fee.
(d) ADVERTISING. Each party shall receive 30% of
the gross advertising revenue for
advertising sales on the Site (as described
in Section 9) originated by the other party.
Advertising can be sold either on the basis
of a per thousand impressions rate or on the
basis of a time-limited period, subject to
minimum fees of $10 per thousand impressions
and $100 per page per month.
(e) ACTIVITY REPORTS. All payments and fees
described in SECTION 10(c) shall be based
upon the relevant activity reports
referenced in SECTION 8 and described in the
Site Service Plan.
(f) ESCROW ACCOUNT. The Publisher shall pay all
fees associated with the escrow account
described in SECTION 23(b).
(g) PAYMENT. All fees called for under this
Section 10 shall be paid by the relevant
party within 30 days of receipt of an
invoice. All late payments shall bear
interest at a rate equal to 1% per month
until paid in full."
(k) SECTION 11 is deleted and replaced in its entirety with a new
SECTION 11 as follows:
"11. FEE INVOICE SCHEDULE.
(a) ANNUAL FEES. Upon the completion of the
transfer to the Publisher of all Publisher
customer records, content files and log data
through December 31, 2000, consistent with
the data transfer specifications set forth
in SECTION 10(b), the Publisher shall remit
to HealthGate $650,000 as payment of
one-half (1/2) of the standard annual
hosting fee for 2001 provided under SECTION
10(a). HealthGate shall invoice the
Publisher for payment of the
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remainder of annual fees provided for under
SECTION 10(a) according to the following
schedule:
o Subject to pro rata adjustment for
additional amounts owed for journal
titles in excess of the initial 313
titles, HealthGate shall invoice
the Publisher for $108,333.33 on
July 1, 2001 and on the first day
of each succeeding month in 2001
for the remainder of the standard
annual hosting fee for 2001
provided under SECTION 10(a).
(b) SOFTWARE DEVELOPMENT. Software development
fees will be invoiced on completion of the
implementation of the functions or features
to which they relate, subject to the written
approval of the publisher that they perform
according to the Publisher's original
specification of requirements. Extension of
the development time as a result of
modifications by the Publisher to the
original specification will not be grounds
for delaying payment.
(c) OTHER FEES. All other fees shall be invoiced
on a monthly basis."
(l) The first two paragraphs of SECTION 12 (Milestones and
Deliverables) are deleted and replaced in their entirety as a
new SECTION 12(a) as follows:
"(a) In the event that the Software fails to allow
Publisher to process the Content of any journal issue
within the processing objective time of 3 working
days, HealthGate, recognizing the loss caused to the
Publisher, will on demand pay to the Publisher an
amount of money equivalent to the sum of $2,000 per
issue, subject to a maximum of $50,000 per financial
quarter, for all issues processed in each financial
quarter.
Such sums of money will be paid by HealthGate to the
Publisher not as a penalty, but as and for the
ascertained and liquidated damages owing and payable
by HealthGate to the Publisher by reason of such
failure to meet the processing objectives."
(m) SECTION 12 is amended by adding new SECTIONS 12(b) AND (c) as
follows:
"(b) DATA, CONTENT AND CODE TRANSFER. HealthGate shall
transfer all Publisher customer records, content
files and log data to the Publisher per the data and
content transfer schedule outlined in SECTION 12(c).
The customer records must be contained in a Microsoft
SQL 6.5 backup file and must be accompanied by both
data field definition and data dictionary documents.
The content files must in native file format and
should be delivered in the same naming and format
conventions used by the system. The log data is to be
delivered in format that can be recognized by common
log analysis
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tools like Webtrends. The application code is to be
delivered to the code escrow house and verification
of receipt to be forwarded to the Publisher.
All data, files and log are to be delivered to the
Publisher no later then 10 business days after the
period end date defined in SECTION 12(c). The
Publisher agrees to review the data within 5 business
days and will promptly notify HealthGate of its
approval. If the customer records, content files or
log data is found to be incomplete or inaccurate the
Publisher will notify in writing to HealthGate within
5 business days the issues involved. HealthGate will
then have another 10 business days to comply.
All code to be deposited in the escrow must be
acknowledged to the Publisher within 10 business days
of the defined schedule.
(i) Customer records are defined as all
information relating to an individual
registered user, institutional user or
administrator. Data includes but is not
limited to names, demographic and profile
data that is captured or used by the system.
(ii) Content files are defined as all information
pertaining to journal content including but
not limited to abstract, full text and meta
data of each individual article. Also
included is the relationship between
articles and issues. All permutations must
be transferred including but not limited to
the original submitted SGML files, XML
transition files and final corrected HTML
files.
(iii) Log data is defined as all data used to
track usage and user activity. This data may
include but in not limited to server log
data, proprietary data stored by the
software or data tracked by third party
products like LDAP servers.
(iv) Application code is defined as proprietary
HealthGate software applications that are
used during the running of the site.
The parties agree to investigate other
methods of transferring the data.
(c) DATA AND CONTENT TRANSFER SCHEDULE. Publisher data
and content will be transferred by HealthGate to the
publisher based on the following schedule:
(i) All transactions through March 31, 2001.
(ii) All transactions through June 30, 2001
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(iii) All transactions through September 31, 2001
(iv) All transactions through December 31, 2001
The above schedule is "inception to date" and all
records and data should be through 23:59 hour on the
date defined in the schedule. The customer data and
content files must be transferred in its entirety and
there must no incremental data transfers for these
data types. After the initial transfer of the log
data all subsequent log data transfers may be made in
an incremental basis."
(n) SECTION 14 is deleted and replaced in its entirety with a new
SECTION 14 as follows:
"14. INITIAL TERM.
The Initial Term of this Agreement shall commence on
January 1, 2001 and, unless terminated earlier as set
forth herein, shall continue for a period of one year
after such date (the "Initial Term")."
(o) A new sentence is hereby added to the end of SECTION 15 as
follows:
"In the event such negotiations do not result in an agreement
prior to the end of the Initial Term, the fees in effect
immediately prior to the termination of the Initial Term shall
remain in effect for the next applicable term."
(p) The last unlettered paragraph of SECTION 16 is deleted,
SECTIONS 16(a) - (d) are relettered as SECTIONS 16(b) - (e),
all references to such Sections are amended to reflect
references to such relettered Sections, and a new SECTION
16(a) is added as follows:
"(a) In the event of termination of this Agreement before
the end of Initial Term, HealthGate or its personal
representative as the case may be, shall immediately
deliver to the Publisher all correspondence, reports,
documents, specifications, papers, information (on
whatever media) and property including but not
limited to customer records, content files and log
data belonging to the Publisher which may be in his
possession or under his control together with all
confidential information or copyright works belonging
to the Publisher. HealthGate shall erase the Content
from its servers and otherwise discontinue any use of
the content within ten (10) working days of the date
of the termination."
(q) SECTION 20(d) (Millennium Compliance) is deleted in its
entirety.
(r) All references in the Journal Agreement to a Content
Maintenance Plan, a Software Maintenance Plan or an Activity
reporting plan are hereby deemed to be references to the Site
Service Plan.
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(s) SECTION 23(b) is deleted and replaced in its entirety with a
new SECTION 23(B) as follows:
"(b) SOFTWARE ESCROW. HealthGate agrees to place into
escrow, at a location to be mutually agreed upon by
the parties, all applicable source code used to
provide the services outlined in this Agreement. The
Publisher shall pay all fee associated with the
escrow account. The Publisher may not access the
escrow account except in the case of HealthGate's
bankruptcy or the event that HealthGate terminates
this Agreement before the end of Initial Term as
stated in SECTION 16(a). Notwithstanding the
foregoing, Publisher shall not have access to the
escrow account in the event HealthGate terminates the
Agreement for Publisher's breach of the Agreement."
(t) SECTION 23(J) is deleted and replaced in its entirety with a
new SECTION 23(J) as follows:
"(j) VENUE. Any and all disputes between the parties
arising under or in connection with this Agreement
which cannot be resolved amicably by the parties or
through arbitration, as contemplated under SECTION
23(k), shall be resolved in the courts located in
London, England, except with respect to any action
brought by the Publisher against HealthGate, in which
case jurisdiction and venue shall be the Commonwealth
of Massachusetts, USA."
2. SEVERABILITY. Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Amendment.
3. LIMIT OF AMENDMENTS. Except as amended hereby, all other terms and provisions
of the Journal Agreement are and shall remain in full force and effect.
4. COUNTERPARTS. This Amendment may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Amendment.
5. SECTION HEADINGS. The descriptive headings of this Amendment are inserted for
convenience only and do not constitute a Section of this Amendment.
6. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of England and Wales.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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Executed as of the date first set forth above, as a document under
seal, by the duly authorized representatives of the parties hereto.
HEALTHGATE DATA CORP.
By: ________________________
Name:
Title:
XXXXXXXXX PUBLISHING
By: ________________________
Name: ______________________
Title: _______________________
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