This Agreement (this "Agreement") is entered into as of this 14th day of
December, 1999 (the "Effective Date"), by and between, HealthGate Data Corp., a
Delaware corporation with its principal offices at 00 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("HealthGate"), and Medical Self Care, Inc.
a California corporation, having its principal offices at 0000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("SelfCare").
WHEREAS, HealthGate provides health and medical information products and
services to its on-line customers and to hospital clients through its Internet
site located at xxxx://xxx.xxxxxxxxxx.xxx and through its CHOICE product;
WHEREAS, SelfCare operates an Internet site located at xxxx://xxx.xxxxxxxx.xxx,
which is designed to provide Internet-based health-related commerce products and
services to online consumers;
WHEREAS, HealthGate and SelfCare each desire to provide the services described
herein, upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties intending to be legally
bound, do hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the terms set forth below shall
have the following meanings:
1.1. "Best of Breed" means (i) those personal health and/or medical
shopping services available on the Internet with the most advanced
and commercially successful functionality, performance, content,
and features, whether utilitarian or aesthetic; (ii) the ability
of the Co-Branded Site to scale easily with only additional
hardware and to accommodate, at a minimum, the peak traffic volume
of the third most visited Internet personal health and/or medical
site; and (iii) the ability of SelfCare to timely and efficiently
process product orders from Users, including receiving payments,
processing credit card payments, processing all returns from
Users, issuing Credits to Users, and providing Users with customer
service. HealthGate acknowledges that SelfCare meets the criteria
of Best of Breed as defined in this Section 1.1 as of the
Effective Date.
1.2. "Business Day" shall mean any day on which banks in both New York
City and Los Angeles and the New York Stock Exchange are open for
the conduct of regular business.
1.3. "CHOICE Site[s]" means the Internet site maintained for a
HealthGate hospital account.
1.4. "Click-Through" means a user clicking from the XxxxxxXxxx.xxx Site
or a CHOICE site to the Co-Branded Site or to other sites as may
be mutually agreed upon by the parties from time to time.
1.5. "Co-Branded Site" means the co-branded version of the SelfCare
Site, and successors to the foregoing, that is created pursuant to
Section 5.
1.6. "Commerce Offering" means any text, content, links or promotions
providing a direct or indirect opportunity for Users on the Choice
Sites to engage in a purchase, trade, exchange, or purchase
transaction, whether paid or unpaid, through the Co-Branded Site.
1.7. "Competitor" means a Web site or person providing products or
services that compete with products or services provided by
SelfCare or HealthGate, as the parties shall determine from time
to time.
1.8. "Contract Year" shall mean Year One, Year Two or Year Three, as
applicable.
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1.9. "HealthGate Content" means HealthGate's and its licensors' text
links, logos, graphic links, and other materials, tools, content,
or text on any CHOICE Site.
1.10. "HealthGate Marks" means HealthGate's and its licensors'
trademarks, trade names, service marks and logos.
1.11. "HealthGate Properties" means HealthGate Content, HealthGate
Marks, HealthGate Site and CHOICE Sites.
1.12. "HealthGate Site" means the Internet site operated by HealthGate
at XXXX://XXX.XXXXXXXXXX.XXX, together with any mirror sites, and
successors to any of the foregoing.
1.13. "Impression" means the display of any Promotion on any CHOICE
Site.
1.14. "Launch Date" means 45 days after the Effective Date on which the
Co-Branded Site shall function properly and be made accessible to
Users.
1.15. "Look and Feel" means the look and feel, User interface and flow
of User experience of an Internet site.
1.16. "Net Advertising Revenues" shall mean all advertising and
sponsorship monies received for advertising or sponsorship
placement on the Co-Branded Site less the cost of preparing such
displays as placements, agency discounts, frequency discounts,
sales commissions, any other third party obligations or revenue
sharing commitments, any sales or use taxes, if applicable,
related to such advertising and sponsorship placements.
1.17. "Net E-Commerce Revenues" shall mean the revenue for all products
sold through the Co-Branded Site to a User net of discounts,
shipping and handling, returns and credit card fees, and any sales
or use taxes, if applicable, related to such product revenue.
1.18. "Privacy Policy" means the privacy policy governing the Co-Branded
Site, which shall specify the type of information that shall be
gathered from Users of the Co-Branded Site, the purpose for which
such information shall be used, who shall have access to such
information, the policies concerning disclosure of such
information to third parties, and the site's security measures.
1.19. "Products" means all personal health and medical products and
related services offered through the Co-Branded Site.
1.20. "Professional Offerings" shall mean SelfCare's products and
services.
1.21. "Promotions" means banners, buttons, windows, portals, e-mails,
text links, and other promotions that are offered in the future
and link directly to the Co-Branded Site from selected CHOICE
Sites and the HealthGate Site.
1.22. "Selected CHOICE Site[s]" means any CHOICE Site selected by the
parties in accordance with this Agreement to provide constant
context-sensitive advertising space to SelfCare.
1.23. "SelfCare Marks" means any trademarks, trade names, service marks
and logos that may be delivered by SelfCare to HealthGate
hereunder or used on or in connection with the CHOICE Sites, the
HealthGate Site and/or the Co-Branded Site.
1.24. "User" means any end-user of the Web.
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1.25. "User Profile Data" means data regarding a User provided by the
User on the Co-Branded Site, including without limitation the
User's name, e-mail address, telephone number and other
information about the User.
1.26. "Web" means the World Wide Web part of the Internet.
1.27. "Year One" means the thirteen-month period beginning on the
Effective Date and ending upon the day before the thirteenth month
anniversary of the Effective Date.
1.28. "Year Two" means the twelve-month period beginning on the
thirteenth month anniversary of the Effective Date and ending upon
the day before the twenty-fifth month anniversary of the Effective
Date.
1.29. "Year Three" means the twelve-month period beginning on the
twenty-fifth month anniversary of the Effective Date and ending
upon the day before the thirty-seventh month anniversary of the
Effective Date.
2. HEALTHGATE SERVICES.
2.1. SELECTED CHOICE SITES. As provided for below, HealthGate shall
provide to SelfCare constant content-sensitive Promotions, where
applicable, on the CHOICE Sites selected in accordance with this
Agreement. For Year One, HealthGate shall provide such Promotions
to SelfCare for 100 CHOICE Sites; for Year Two for 150 CHOICE
Sites; and for Year Three 200 CHOICE Sites to promote Products.
The Selected CHOICE Sites shall be selected upon the mutual
agreement of HealthGate and SelfCare, subject to the approval of
the Selected CHOICE Site.
2.2. HEALTHGATE SITE. HealthGate shall provide to SelfCare
content-sensitive Promotions on the HealthGate Site. For Year One,
HealthGate shall provide a minimum of 1,000,000 such Promotions
per month. For Year Two, HealthGate shall provide a minimum of
1,500,000 such Promotions per month. For Year Three, HealthGate
shall provide a minimum of 2,000,000 such Promotions per month.
2.3. BUTTON AND PROMOTIONS. Each Selected CHOICE Site shall display a
context-sensitive Promotion, or button, on every applicable page
of the Selected CHOICE Site. There are no minimum impressions
associated with the buttons that are served on the Selected CHOICE
Sites. The specifications on the button and any HealthGate Content
shall be defined in the reasonable discretion of HealthGate in
consultation with SelfCare and the Selected CHOICE Sites.
HealthGate will develop the guidelines and process, based in part
on search terms supplied by SelfCare and other advertisers, by
which HealthGate will determine which advertiser's button shall be
displayed on each page of the Selected CHOICE Site so as to ensure
that the button is context-sensitive.
2.4. SELFCARE CONTENT. HealthGate will review and consider using
SelfCare's content as part of HealthGate's CHOICE Sites and for
the HealthGate Site. Any decision to use such content on CHOICE
Sites or any other HealthGate product or offering shall be at
HealthGate's sole discretion.
2.5. BUSINESS-TO-BUSINESS E-COMMERCE. HealthGate and SelfCare agree to
work together to develop a business-to-business model for sale to
hospitals.
3. PREFERRED E-COMMERCE PROVIDER. During the term of this Agreement,
SelfCare shall be the preferred e-commerce provider for the Selected
CHOICE Sites.
4. TERM AND TERMINATION.
4.1. TERM. The term of this Agreement shall begin on the date first
written above and continue for thirty-seven months (the "Term").
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4.2. TERMINATION FOR CAUSE. Either party may terminate this Agreement
at any time by giving written notice of termination to the other
parties if any other party commits a material breach of its
obligations hereunder that is not cured within thirty (30) days
after notice thereof from a non-breaching party. If HealthGate
elects to terminate this Agreement under this SECTION 4.2, then
SelfCare shall be required to enter into an agreement within five
days of such termination to purchase Impressions from HealthGate
calculated at a 30% discount from the rates set forth in the then
applicable HealthGate's standard rate card and otherwise on
HealthGate's standard terms and conditions.
4.3. CONSEQUENCES OF TERMINATION. Upon the termination or expiration of
this Agreement, all licenses granted hereunder shall immediately
terminate. Each party shall return or destroy, all Confidential
Information of the other party in its possession.
4.4. LIQUIDATED DAMAGES. If this Agreement is terminated by HealthGate
in accordance with Section 4.2, all monies paid by SelfCare to
HealthGate hereunder prior to the termination shall be deemed
non-refundable, including the $1,000,000 cash payment paid to
HealthGate on the Effective Date pursuant to Section 8.1, unless
otherwise provided in this Agreement, and HealthGate shall retain
all equity paid to HealthGate pursuant to Section 8.7. If this
Agreement is terminated during Year One, SelfCare shall pay to
HealthGate fifty percent (50%) of amounts SelfCare would have paid
to HealthGate under Sections 8.2 and 8.3 had this Agreement not
been terminated prior to the thirty-sixth month anniversary of the
Effective Date, and if this Agreement is terminated during Year
two, SelfCare shall pay to HealthGate fifty percent (50%) of
amounts SelfCare would have been required to pay to HealthGate
under Section 8.3 had this Agreement not been terminated prior to
the thirty-sixth month anniversary of the Effective Date.
4.5. TERMINATION FOR FAILURE TO OBTAIN BOARD APPROVAL. If SelfCare
fails to obtain approval of the board of directors of SelfCare no
later than Thursday, December 16, 1999, HealthGate and SelfCare
shall both have the right to terminate this Agreement. If either
HealthGate or SelfCare elects to terminate this Agreement under
this Section 4.5, then SelfCare shall be required to enter into an
agreement within five days of such termination to purchase
Impressions from HealthGate having a value of $225,000 calculated
at a 30% discount from the rates set forth in the applicable
HealthGate standard rate card and otherwise on HealthGate's
standard terms and conditions.
5. CO-BRANDED SITE.
5.1. CO-BRANDED SITE DESCRIBED. The parties will jointly develop the
Co-Branded Site in accordance with the specifications attached as
Exhibit A and this SECTION 5.1. The Co-Branded Site will provide
all of the features and functionality provided by, and will
perform in a manner substantially identical to, the SelfCare Site,
as the SelfCare Site may be updated and enhanced from time to
time.
5.2. CHANGES. HealthGate acknowledges that SelfCare may change the
design and functionality of the SelfCare Site from time to time,
in which case the design and functionality of the Co-Branded Site
may be changed in a similar fashion; provided, however, that
SelfCare may not institute any such changes to the Co-Branded Site
without input from and the prior approval of HealthGate.
5.3. CO-BRANDING FEATURES. Each page on the Co-Branded Site will
include branding for SelfCare and HealthGate so that the SelfCare
Marks and HealthGate Marks are of substantially equivalent value
and prominence to each other.
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5.4. HOSTING. SelfCare will host the Co-Branded Site and will provide
all computer hardware, software and personnel necessary to operate
and maintain the Co-Branded Site as a functional site accessible
to Users at SelfCare's cost.
5.5. ADVERTISEMENTS. Except as provided below, neither SelfCare nor
HealthGate will offer advertising to any third parties on the
Co-Branded Site. Nonetheless, should SelfCare decide to provide or
provide any advertising on the Co-Branded Site to any third party
or if the parties mutually agree to supply such advertising, both
parties shall own and have the right to use or sell all of the
advertising inventory on the Co-Branded Site. The party selling
the advertising will receive 70% of any Net Advertising Revenues
derived from such sales, and the non-selling party shall receive
30% of such Net Advertising Revenues.
5.6. DNS MAPPING. Using Domain Name System mapping, the URL for the
Co-Branded Site will begin with xxx.xxxxxxxxxx.xxxxxxxx.xxx.
5.7. LINKING. SelfCare shall ensure that all Impressions delivered
through Selected CHOICE Sites link to only the Co-Branded Site.
5.8. BEST OF BREED. During the term SelfCare shall maintain the
Co-Branded Site as Best of Breed in all material respects.
SelfCare shall be solely responsible for managing and operating
the Co-Branded Site during the Term and shall be solely
responsible for all aspects of product distribution, including
processing any product orders from Users, receiving payments,
processing credit card payments, processing all returns from
Users, issuing credits to Users, and providing Users with customer
service.
6. USER PROFILE DATA.
6.1. DATA OWNERSHIP. HealthGate and SelfCare shall jointly own any
information collected from Users through the Co-Branded Site.
6.2. USE OF INFORMATION AND CONFIDENTIALITY. SelfCare shall provide to
HealthGate User Profile Data and other information relating to
Users of the Co-Branded Site at times and in a manner as
reasonably requested by HealthGate and mutually agreed upon by the
parties, but in any event at least once per month. Each party will
have the right to use any information provided by the other party
subject to the confidentiality restrictions set forth in SECTION
6.3.
6.3. CONFIDENTIAL INFORMATION. SelfCare shall have no right to access
confidential information about Users, including information
related to a User's health conditions. SelfCare shall collect from
Users only such information as is necessary for distribution of
products ordered by Users through the Co-Branded Site. SelfCare
shall not collect from Users any information concerning a User's
health conditions without the prior written consent of HealthGate.
Prior to the Launch Date, SelfCare shall develop a Privacy Policy,
which must be approved by HealthGate. The Privacy Policy shall be
accessible by the User of the Co-Branded Site through a link
displayed on the home page of the Co-Branded Site.
7. SALES OF PRODUCTS.
7.1. SelfCare shall furnish, at its sole cost and expense, all
Products, all Product presentation material, all billing services
in connection with the sale of the Products and all fulfillment
services (including process of returns and cancellations).
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8. PAYMENTS.
8.1. YEAR ONE. For Year One SelfCare shall pay to HealthGate an amount
equal to $4,487,219. SelfCare shall pay to HealthGate $1,000,000
in cash to be paid as set for below and $3,487,219 in equity in
accordance with Section 8.7; provided, however, that if HealthGate
fails to provide SelfCare with sponsorship opportunities for 100
CHOICE Sites in accordance with Section 2.1, a pro rata amount of
the total Year One payment shall be credited to Year Two payment.
The $1,000,000 cash shall be paid as follows: $250,000 on the
Effective Date and $250,000 every three months thereafter.
8.2. YEAR TWO. For Year Two, SelfCare shall pay to HealthGate an amount
equal to $7,121,492, payable quarterly in four equal installments,
with the first payment occurring upon the first anniversary of the
Effective Date and the remaining payments made every three months
thereafter; provided, however, that if HealthGate fails to provide
advertising space to SelfCare for 150 CHOICE Sites in accordance
with Section 2.1, amounts paid to HealthGate under this Section
8.2 shall be reduced pro rata, with any overpayment returned to
SelfCare.
8.3. YEAR THREE. For Year Three, SelfCare shall pay to HealthGate an
amount equal to $8,390,202, payable quarterly in four equal
installments, with the first payment occurring upon the second
anniversary of the Effective Date and the remaining payments made
every three months thereafter; provided, however, that if
HealthGate fails to provide advertising space to SelfCare for 200
CHOICE Sites in accordance with Section 2.1, amounts paid to
HealthGate under this Section 8.3 shall be reduced pro rata, with
any overpayment returned to SelfCare. At the conclusion of Year
Three, if HealthGate has not delivered 8,500,000 click-throughs to
the Co-Branded Site, then HealthGate shall deliver such Promotions
necessary to deliver up to the aforementioned 8,500,000
click-throughs to the Co-Branded Site noted in this Section 8.3
within the first six months occurring after the conclusion of Year
Three.
8.4. E-COMMERCE. Beginning the day after HealthGate has provided
SelfCare with a combined total of 4,250,000 click-throughs from
Promotions on the selected CHOICE Sites and the HealthGate Site,
SelfCare shall thereafter pay to HealthGate an amount equal to 5%
of Net E-Commerce Revenues derived from all subsequent sales on
the Co-Branded Site. Beginning the day after HealthGate has
provided SelfCare with an additional 4,250,000 click-throughs for
a combined total of 8,500,000 click-throughs from Promotions on
the selected CHOICE Sites and the HealthGate Site, SelfCare shall
thereafter pay to HealthGate an amount equal to 10% of Net
E-Commerce Revenues (in lieu of the 5% noted previously) derived
from all subsequent sales on the Co-Branded Site. Beginning the
day after HealthGate has provided SelfCare with an additional
4,250,000 click-throughs for a combined total of 12,750,000
click-throughs from Promotions on the selected CHOICE Sites and
the HealthGate Site, SelfCare shall thereafter pay to HealthGate
an amount equal to 15% of Net E-Commerce Revenues (in lieu of the
10% noted previously) derived from all subsequent sales on the
Co-Branded Site. Such payment shall be paid on a monthly basis
within 30 days after the end of each month during the Term,
SelfCare will provide to HealthGate a complete and detailed report
that includes, at a minimum, for such month: (i) the total Net
Advertising Revenue, (ii) the total Net E-Commerce Revenue for
such month and the aggregate Net E-Commerce Revenue for the
current Contract Year, (iii) the total payment due HealthGate from
SelfCare, if any, pursuant to this SECTION 8.4, (iv) the number of
Users and User Profile Data for Users who click through from the
Selected CHOICE Sites to the Co-Branded Site, including the
originating Selected CHOICE Site identification and who provide
User Profile Data (v) the number of Users and User Profile Data
for Users who click through from the Selected CHOICE Sites to the
Co-Branded Site and order Products and (vi) the aggregate
statistical and demographic characteristics of Users in (iv), (v)
and (vi). SelfCare shall pay to HealthGate amounts owed for a
given month pursuant to this Section 8.4 within thirty (30) days
after the end of such month during the Term.
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8.5. FORM OF PAYMENT. All payments required to be made hereunder by
SelfCare will be made to HealthGate in U.S. Dollars by wire
transfer of immediately available funds or by SelfCare check.
Except as otherwise provided herein, all payments required to be
made hereunder by HealthGate will be made to SelfCare by wire
transfer of immediately available funds.
8.6. LATE PAYMENTS. If either party should fail to make any payment due
under this Agreement by the date such payment is due, the overdue
payment will bear interest at the rate of one percent simple
interest per month or the maximum interest permitted by law,
whichever is less. Any payment (including the issuance of stock
pursuant to SECTION 8.7) which is due on a day that is not a
Business Day shall be payable on the next succeeding day that is a
Business Day.
8.7. EQUITY. On the Effective Date, $3,487,219 shall be payable to
HealthGate in shares of SelfCare's Common Stock (the "Shares"), or
such later date as SelfCare and HealthGate shall mutually agree
(the "Equity Closing Date"). SelfCare shall deliver 1,162,406
shares valued at $3.00 per share. On or prior to the Equity
Closing Date, HealthGate and SelfCare shall negotiate in good
faith and execute a Stock Transfer Agreement governing the
transfer of the Shares, which agreement shall contain standard
representations, warranties, covenants and other terms and
conditions reasonably satisfactory to both SelfCare and
HealthGate. On the Equity Closing Date, SelfCare and HealthGate
agree to execute and deliver a registration rights agreement
reasonably acceptable to SelfCare that provides HealthGate with
piggyback registration rights and requires HealthGate to agree to
a lock-up in connection with the Company's initial public
offering, for a period not to exceed the lesser of the period
applicable to the holders of the Company's preferred stock, as the
same may be subsequently amended in accordance with other
preferred shareholders, or 180 days.
9. OWNERSHIP OF HEALTHGATE PROPERTIES, CONTENT AND PROFESSIONAL OFFERINGS.
SelfCare acknowledges and agrees that HealthGate retains all right, title
and interest, or license to the HealthGate Properties, including without
limitation, graphics, audio and video, service marks, copyrights, logos
and trade names, and HealthGate's ownership or authority shall be
designated as such on the HealthGate Properties. SelfCare agrees that it
shall not use in any manner any HealthGate Properties' content unless
expressly authorized by HealthGate and specified in this Agreement.
Except as expressly provided herein, HealthGate grants no ownership or
title to SelfCare under any patent, patent application, trademark,
copyright or trade secret. HealthGate retains all rights, title and
interest in and to any and all intellectual property it creates for the
HealthGate Properties. HealthGate acknowledges and agrees that SelfCare
retains all right, title and interest, or license to the Co-Branded Site,
and all presentation material including without limitation, graphics,
audio and video, trademarks, service marks, copyrights, logos and trade
names. Except as expressly provided herein, SelfCare grants no ownership
or title to HealthGate under any patent, patent application, trademark,
copyright or trade secret. SelfCare retains all rights, title and
interest in and to any and all intellectual property it creates for the
Co-Branded Site.
10. LICENSES.
10.1. HEALTHGATE MARKS. HealthGate hereby grants to SelfCare a
non-exclusive, non-transferable, royalty-free license, effective
throughout the Term, to use, display and publish the HealthGate
Marks solely within the Co-Branded Site as permitted hereunder.
Any use of the HealthGate Marks by SelfCare must comply with any
reasonable usage guidelines communicated to SelfCare by HealthGate
from time to time and inure to the exclusive benefit of
HealthGate. Nothing contained in this Agreement will give SelfCare
any right, title or interest in or to the HealthGate Marks or the
goodwill associated therewith, except for the limited usage rights
expressly provided above. SelfCare acknowledges and agrees that,
as between SelfCare and HealthGate, HealthGate is the sole owner
of all rights in and to the HealthGate Marks.
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10.2. SELFCARE MARKS. SelfCare hereby grants to HealthGate a
non-exclusive, non-transferable, royalty free license, effective
throughout the Term, to use, display and publish the SelfCare
Marks solely within the Selected CHOICE Sites as permitted
hereunder. Any use of the SelfCare Marks by HealthGate must comply
with any reasonable usage guidelines communicated to HealthGate by
SelfCare from time to time and inure to the exclusive benefit of
SelfCare. Nothing contained in this Agreement will give HealthGate
any right, title or interest in or to the SelfCare Marks or the
goodwill associated therewith, except for the limited usage rights
expressly provided above. HealthGate acknowledges and agrees that,
as between HealthGate and SelfCare, SelfCare is the sole owner of
all rights in and to the SelfCare Marks.
11. RECORDS AND ACCOUNTS.
11.1. RECORDS AND ACCOUNTS. SelfCare agrees to keep, on a continuing
basis, full and accurate records and accounts, including, without
limitation all logs and reports, sufficient to permit HealthGate
to verify the accuracy of all reports submitted by SelfCare as
hereinabove required. HealthGate shall have the right, at its sole
expense, to examine such books and records, whether in electronic
format or otherwise, to the extent that such examination is
necessary and pertinent to the foregoing verification, during
reasonable business hours, through independent certified public
accountants. In the event such an examination reveals that any of
the reports submitted or payments made by SelfCare to HealthGate,
as hereinabove required, understated the monies owed by five
percent (5%) or more in any reporting period, then SelfCare shall,
in addition to the payment of the additional monies owed fees
determined by such examination, promptly pay to HealthGate the
reasonable cost of such examination.
12. REPRESENTATIONS AND WARRANTIES.
12.1. RESPONSIBILITY FOR THE CO-BRANDED SITE AND PRODUCTS. SelfCare
acknowledges and agrees that, as between HealthGate and SelfCare,
SelfCare will be solely responsible for any claims or other losses
associated with or resulting from the marketing or operation of
the Co-Branded Site, the offer or sale of any Products or services
by SelfCare or through the Co-Branded Site, or any content
provided on the Co-Branded Site other than content provided by
HealthGate
12.2. SELFCARE GENERAL REPRESENTATION. SelfCare hereby represents,
warrants and covenants to HealthGate that i) it is a corporation
duly organized, validly existing and in good standing under the
laws of the State of California; ii) it has full right, title,
authority and capacity to execute and perform this Agreement and
to consummate all of the transactions contemplated herein; iii)
the officer who executes and delivers this Agreement and all
documents to be delivered by SelfCare to HealthGate hereunder is
and shall be duly authorized to do so; iv) this Agreement
constitutes the valid and binding obligation of SelfCare
enforceable in accordance with the terms hereunder, except as the
same may be limited by bankruptcy, insolvency, moratorium, and
other laws of general application affecting the enforcement of
creditors' rights and by the availability of equitable remedies;
v) any written, audio or visual materials furnished by SelfCare
for or in connection with the Products or any other medical
instruments, supplies or other product and such Products, medical
instruments, supplies or other product will not violate, conflict
with or infringe upon any rights whatsoever (including without
limitation, any intellectual property, privacy or proprietary
right in any work) of any third party whatsoever; and vi) it is in
compliance with all federal, state, and local laws and
regulations, including all laws and regulations applicable to
food, medical devices, durable medical equipment, vitamins, and
drugs.
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12.3. HEALTHGATE GENERAL REPRESENTATION. HealthGate hereby represents,
warrants and covenants to SelfCare that i) it is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware; ii) it has full right, title,
authority and capacity to execute and perform this Agreement and
to consummate all of the transactions contemplated herein; iii)
the officer who executes and delivers this Agreement and all
documents to be delivered by HealthGate to SelfCare hereunder is
and shall be duly authorized to do so; and iv) this Agreement
constitutes the valid and binding obligation of HealthGate
enforceable in accordance with the terms hereunder.
12.4. No representation or warranty made by HealthGate or SelfCare in
this Agreement is being made as a personal representation or
warranty and each party hereto waives any judicial or other
recourse against any partner, officer, director or employee of the
other party hereto.
12.4.1. LIMITATION OF DAMAGES. NO PARTY WILL BE LIABLE FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. EXCEPT IN THE EVENT OF A CLAIM UNDER SECTION
13, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY IN AN AMOUNT GREATER THAN THE AMOUNTS PAYABLE TO
HEALTHGATE BY SELFCARE HEREUNDER.
12.4.2. NO WARRANTIES. THE IMPRESSIONS AND HEALTHGATE CONTENT ARE
PROVIDED "AS IS" AND THE INFORMATION CONTAINED THEREIN IS
NOT WARRANTED TO BE FREE FROM ERROR. HEALTHGATE DISCLAIMS
ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
IMPRESSIONS AND SELECTED CHOICE SITES.
13. INDEMNIFICATION.
13.1. HealthGate shall indemnify, defend and hold harmless SelfCare and
its affiliated companies, officers, directors, employees, agents,
and partners from and against any and all claims, losses or
damages, costs and expenses (including reasonable counsel fees)
arising out of any breach of any representation or warranty made
by HealthGate arising from the HealthGate Properties (including,
without limitation any claim based on infringement) or arising
from HealthGate's use of User Profile Data.
13.2. SelfCare shall indemnify, defend and hold harmless HealthGate and
its affiliated companies, officers, directors, employees, agents,
and partners from and against any and all claims, losses or
damage, costs and expenses (including reasonable counsel fees)
arising out of i) any breach of any representation or warranty
made by SelfCare; ii) any actual or alleged failure in the
security of the online ordering system causing an actual or
alleged damage, loss or liability of the consumer; iii) any claim,
suit or proceeding any product or service offered through the
Co-Branded Site including any claim, suit or proceeding arising
out of any theory of product liability, including, but not limited
to, actions in the form of tort, warranty or strict liability
concerning any product, process, or service made, used, or sold
pursuant to any right or license provided under this Agreement,
but excluding any claim based upon the use of the HealthGate
Properties absent any Promotions or other activity or content
placed on or used with those Properties as contemplated by this
Agreement;; (iv) any claim that the Co-Branded Site infringes a
third party's intellectual property rights, but excluding any
claim based upon the use of the HealthGate Properties absent any
Promotions or other activity or content placed on or used with
those Properties as contemplated by this Agreement; or (v) any
claim, suit or proceeding arising out of an actual or alleged
infringement
9
by SelfCare of a User's right to privacy or misuse of a User's
confidential information other than a claim based on HealthGate's
use of such information.
13.3. In any case in which indemnification is sought, the party seeking
indemnification (the "Indemnified Party") shall (i) promptly
notify the party from whom such indemnification is sought (the
"Indemnifying Party"); and (ii) afford the Indemnifying Party the
opportunity of defending such claim and controlling the
litigation, settlement or other disposition of such claim. The
Indemnified Party shall fully cooperate in connection with such
defense, settlement or other disposition and shall have the right,
but not the obligation, to join in and be represented by its own
counsel, at the Indemnified Party's own cost and expense. In no
event shall the Indemnifying Party be liable for loss of profits
or punitive, consequential or special damages assessed against
either party; provided, however, that the foregoing language will
not limit the Indemnifying Party's obligation to reimburse the
Indemnified Party for any punitive, consequential or special
damages awarded by reason of the willful misconduct or gross
negligence of the Indemnifying Party in connection with its
obligation under this Agreement.
13.4. SelfCare shall at its sole cost and expense procure and maintain
commercial general liability insurance in amounts not less than
$5,000,000 per incident and $15,000,000 annual aggregate naming
the HealthGate Indemnitees as additional insureds. Such commercial
general liability insurance shall provide (i) product liability
coverage and (ii) contractual liability for SelfCare's
indemnification obligation under this Agreement.
14. WAIVERS. Any waiver given one time by either party of any of the terms or
conditions of this agreement in any instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of
any subsequent breach thereof.
15. RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement shall
create an agency, partnership or joint venture between the parties or
render either party liable for the debts or obligations of the other.
Neither party is authorized to bind the other party in any respect.
16. GOVERNING LAW AND APPLICABLE JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth
of Massachusetts and shall be governed by any other applicable local or
federal law or regulation without reference to its conflict of laws
principles.
17. CONFIDENTIALITY.
17.1. Except as otherwise required by law, SelfCare agrees to keep this
Agreement and its contents confidential and not to disclose the
same to any third party (except employees, attorneys or
accountants hired by SelfCare or existing or potential investors
and their advisors, each of whom shall be advised of the
confidential nature of this Agreement and its contents) without
the prior written consent of HealthGate. In connection with the
performance of its services hereunder, SelfCare shall not disclose
or appropriate to its own use, or to the use of any third party,
at any time during or subsequent to the term of this Agreement,
certain proprietary information of HealthGate or any of
HealthGate's affiliated companies or partners, including, but not
limited to, web site strategy, contract proposals, financial
information, contract terms or operating procedures of HealthGate,
which HealthGate deems secret or confidential ("HealthGate
Proprietary Information"). SelfCare acknowledges the importance of
the HealthGate Proprietary Information and agrees to keep all such
information confidential, regardless of whether SelfCare currently
has such information or whether it hereafter becomes informed of
such information and whether SelfCare develops such information or
it is disclosed to SelfCare by sources other than HealthGate.
SelfCare further agrees to exercise the same care in handling such
information as it would exercise with similar information of its
own and, if requested, to return any such written information to
HealthGate in the event this Agreement is terminated.
Notwithstanding the foregoing, it is understood that the term
"HealthGate Proprietary Information" does not include information
that (i) is now or hereafter in the public domain; (ii) is
lawfully received from a third party with no restriction on its
further disclosure; or (iii) is
10
disclosed as required by law. Material and irreparable harm shall
be presumed if SelfCare breaches the provisions of this Section
17.1, and SelfCare, therefore, agrees that any court of competent
jurisdiction shall immediately enjoin any breach of this Section
17.1 upon the request of HealthGate or any of its affiliates,
without the requirement that any of such parties post bond. The
Provisions of this Section 17.1 shall survive the termination of
this Agreement, and upon a violation of the terms hereof, in
addition to the injunctive relief described herein, HealthGate and
its affiliates are entitled to each such other right or remedy as
they may have at law or it equity.
17.2. Except as otherwise required by law, HealthGate agrees to keep
this Agreement and its contents confidential and not to disclose
the same to any third party (except attorneys or accountants hired
by HealthGate or potential investors and their advisors, each of
whom shall be advised of the confidential nature of this Agreement
and its contents) without the prior written consent of SelfCare.
HealthGate shall not disclose or appropriate to its own use, or to
the use of any third party, at any time during or subsequent to
the term of this Agreement, certain proprietary information of
SelfCare or any of SelfCare's affiliated companies or partners,
including, but not limited to, web site strategy, contract
proposals, financial information, contract terms or operating
procedures of SelfCare, which SelfCare deems secret or
confidential ("SelfCare Proprietary Information"). HealthGate
acknowledges the importance of the SelfCare Proprietary
Information and agrees to keep all such information confidential,
regardless of whether HealthGate currently has such information or
whether it hereafter becomes informed of such information and
whether HealthGate develops such information or it is disclosed to
HealthGate by sources other than SelfCare. HealthGate further
agrees to exercise the same care in handling such information as
it would exercise with similar information of its own and, if
requested, to return any such written information to SelfCare in
the event this Agreement is terminated. Notwithstanding the
foregoing, it is understood that the term "SelfCare Proprietary
Information" does not include information that (i) is now or
hereafter in the public domain through no fault of HealthGate;
(ii) is lawfully received from a third party with no restriction
on its further disclosure; or (iii) is disclosed as required by
law. Material and irreparable harm shall be presumed if HealthGate
breaches the provisions of this Section 17.2, and HealthGate,
therefore, agrees that any court of competent jurisdiction shall
immediately enjoin any breach of this Section 17.2 upon the
request of SelfCare or any of its affiliates, without the
requirement that any of such parties post bond. The Provisions of
this Section 17.2 shall survive the termination of this Agreement,
and upon a violation of the terms hereof, in addition to the
injunctive relief described herein, SelfCare and its affiliates
are entitled to each such other right or remedy as they may have
at law or it equity.
18. MISCELLANEOUS.
18.1. NOTICE. Except as otherwise provided herein, all notices provided
for in this Agreement shall be in writing and shall be given by
first class certified mail postage prepaid, return receipt
requested, or by reputable overnight delivery service or
telecopier confirmed by mail sent the same day or delivered by
hand. All notices shall be sent to the principal offices of the
respective parties at the addresses shown below:
TO HEALTHGATE: TO SELFCARE:
HealthGate Data Corp. Medical Self Care, Inc.
00 Xxxxxxxxx Xxxxx, Xxxxx 000 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxx Xxxxx
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COPY TO:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
18.2. NO ASSIGNMENT. Neither party may assign this Agreement without the
prior written consent of the other party, which will not be
unreasonably withheld or delayed, but either party shall have the
right to assign all of its rights and liabilities hereunder to an
affiliate or to any person or entity that (i) acquires all or
substantially all of its operating assets (whether by asset sale,
stock sale, merger or otherwise) or (ii) results from a merger or
reorganization of such party pursuant to any plan of merger or
reorganization; provided the new entity accepts in writing all of
the party's rights, obligations and liabilities hereunder and such
entity is not a competitor of the other party. Any assignment in
violation of this Section 18.2 shall be null and void upon written
notice from the non-assigning party objecting to such assignment.
18.3. FORCE MAJEURE. Neither party shall be liable to the other for
failure to fulfill its obligations under this Agreement if such
failure is caused by reason of any act of God, labor dispute,
breakdown of facilities or servers, legal enactment, governmental
order or regulation or any other cause beyond each party's
respective control.
18.4. ENTIRE AGREEMENT; SECTION HEADINGS. This Agreement contains the
entire agreement and understanding of the parties relating to the
subject matter hereof, and supersedes all prior agreements,
arrangements, or understandings relating to the subject matter
hereof. This Agreement shall not be modified other than in
writing, signed by each of the parties hereto. The section
headings hereof are for the convenience of the parties only and
shall not be given any legal effect or otherwise affect the
interpretation of this Agreement.
18.5. SEVERABILITY. If any term or provision of this Agreement, or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
18.6. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which (when executed and delivered) shall
constitute an original instrument, but all of which together shall
constitute one and the same instrument. A telecopied signature
shall be deemed an original signature for this Agreement.
18.7. PRESS RELEASE. No party will make any public statement or other
announcement (including without limitation, issuing a press
release or pre-briefing any member of the press or other third
party) relating to the terms or existence of this Agreement
without the prior written approval of the other party.
Notwithstanding the foregoing and SECTION 17 (confidentiality),
the parties may issue an initial joint press release, the timing
and wording of which will be subject to each party's reasonable
approval, regarding the relationship between the parties.
18.8. TAXES. For all fees or charges payable hereunder by SelfCare to
HealthGate, SelfCare will pay or reimburse HealthGate for 50% of
any taxes (including all federal, state, or local taxes)
associated with HealthGate's provision of the services hereunder
to SelfCare, except that SelfCare will have no liability for any
taxes based on HealthGate's net assets or net income, or for which
SelfCare has an appropriate resale or other exemption. SelfCare
shall also be responsible for any taxes incurred on sale of or
revenue derived from the sale of Products.
12
18.9. DISPUTE RESOLUTION. In the event that any dispute arises
hereunder, the parties agree that prior to commencing litigation,
arbitration, or any other legal proceeding, each party shall send
an officer of such party to negotiate a resolution of the dispute
in good faith at a time and place as may be mutually agreed. Each
officer shall have the power to bind its respective party in all
material respects related to the dispute. If the parties cannot
agree on a time or place, upon written notice from either party to
the other, the negotiations shall be held at the principal
executive offices of HealthGate 21 days following such notice (or
on the next succeeding Business Day, if the 21st day is not a
Business Day).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
HealthGate Data Corp. Medical Self Care, Inc.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
---------------------------- ------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxx Xxxxxx
Title: Chief Executive Officer Title: President and Chief
Operating Officer
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Exhibit A
Specifications
14
