INTERNET SPECIALIST CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into this ---- day of ---------, 1997,
by and between Xxxxxxxxxxx.xxx, Incorporated, a Bermuda corporation, having a
principal place of business at Xxxxxxxxxxx.xxx Ltd., Xxxxxxx Xxxxx, 0xx Xxxxx,
33 Xxxx Street, XX Xxx XX 0000, Xxxxxxxx, XX 00, Xxxxxxx, hereinafter
"Xxxxxxxxxxx.xxx") and -----------------------, an individual aving a
principal
place of business at ----------------- (hereinafter "Specialist").
W I T N E S S E T H
Whereas, Xxxxxxxxxxx.xxx has developed a Site on the World Wide Web
portion
of the Internet for the purpose of providing a gateway for informational
access
to a comprehensive source of medical-related information geared toward the
clinical and informational needs of practicing physicians, health care
professionals and the general public;
Whereas, Xxxxxxxxxxx.xxx desires to have a Select a Specialist section on
its Site that allows Users of the Site to submit hypothetical questions to
specialist physicians.
Whereas, Xxxxxxxxxxx.xxx desires to have Specialist participate, as an
independent contractor, in Xxxxxxxxxxx.xxx's Site and in the Select a
Specialist service by providing medical-related information, promotion, and
expert advice tailored to hypothetical questions that Xxxxxxxxxxx.xxx
forwards to Specialist, and consultation regarding what information should be
on the Site; and
Whereas, Xxxxxxxxxxx.xxx and Specialist agree that the services will not
constitute the licensed practice of medicine;
Now, therefore, in consideration of the mutual covenants and promises set
forth herein, the parties hereto agree as follows.
1. Definitions. The following definitions shall apply for all purposes
of this Agreement:
(a) "Site" shall mean Xxxxxxxxxxx.xxx's services of providing and
maintaining on the World Wide Web portion of the Internet a Home Page which
provides informational access to a comprehensive source of medical-related
information geared toward the clinical and informational needs of practicing
physicians, health care professionals and the general public.
(b) "Select a Specialist" shall mean the portion of the Site where
a User can submit hypothetical questions to a specialist physician
participating
in the service. The User is able to review the credentials of the specialist
physicians, select one or more physicians that appear to be able to provide
the
information they are seeking, and submit a hypothetical question including
background information that they want information on. The User is instructed
that the Specialist is not the User's personal physician, and that the
Specialist will not know the identity of the User but will be asked the
question in a hypothetical format. In addition, the User will be advised to
discuss the answer to the hypothetical question with their health care
provider before taking any action if the answer has application to an actual
medical condition.
(c) "User" shall mean a person who accesses the Select a Specialist
portion of the Site and submits a question. The User could be another
physician
or a member of the general public. Xxxxxxxxxxx.xxx will not reveal the
identity
of the User to Specialist.
(d) "Work Product" shall mean all data, documentation, and
information, in whatever form, first produced or created by or for Specialist
in
the performance of work or the rendition of services under this Agreement.
(e) "Reports" shall mean all data, documentation, and information,
in whatever form, first produced or created by or for Specialist in responding
to questions that Xxxxxxxxxxx.xxx forwarded to Specialist.
2. Work to be Performed and Services to be Rendered.
(a) Specialist's Services to be Performed: Specialist agrees to
participate in Xxxxxxxxxxx.xxx's Select a Specialist service. Specialist
duties
for participating in the Select a Specialist service will include:
(i) Specialist will prepare a Report to any hypothetical
question Xxxxxxxxxxx.xxx forwards to Specialist, according to a standard
format. Specialist will then forward the Report to Xxxxxxxxxxx.xxx who will
make the Report available to the User;
(ii) Specialist agrees to provide the Report in a timely
manner. If Specialist cannot prepare the Report within five days of receipt
of
the hypothetical question, Specialist is required to notify Xxxxxxxxxxx.xxx,
so
that Xxxxxxxxxxx.xxx can notify User;
(iii) Specialist agrees to allow Xxxxxxxxxxx.xxx or a
designate to have access to their reports and review them for quality
assurance purposes. To ensure that the reports are developed in a
consistent manner from physician to physician and that the visitor receives a
report written at the right depth and reading level. This review will be
conducted in a professional manner. Changes to the report may be suggested
to enhance the value to the User, improve readability, adjust the amount of
information provided, or potentially reduce the legal exposure. Moreover,
Xxxxxxxxxxx.xxx may suggest that the tone of the report should be changed to
clarify that the report is only in response to a hypothetical question and
that the User should first meet with their health care provider before acting
on the report;
(iv) Specialist will provide Xxxxxxxxxxx.xxx with a current
photograph and CV as well as a sample question and report and a
self-description
in the format specified by Xxxxxxxxxxx.xxx. Specialist agrees to have these
materials published on the Site;
(v) Specialist will provide contact information (phone, fax,
pager, Internet ID, messaging system number, etc.), and keep Xxxxxxxxxxx.xxx
apprised of any changes. This information will be kept private and
confidential
and will not be disclosed to Users;
(vi) Specialist will maintain an active e-mail address and
keep Xxxxxxxxxxx.xxx informed of any changes thereto; and
(vii) Specialist will maintain normal professional
liability
insurance for medical malpractice. Xxxxxxxxxxx.xxx does not cover or
indemnify
the Specialist's legal fees and the cost of Specialist's tort defense or any
claims or damages arising out of participating in services offered on the
Site.
(b) Privileges Specialist May Be Entitled to: By participating in
the Select a Specialist service, Specialist is allowed to:
(i) Suggest articles for inclusion in the journal club
service portion of the Site;
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(ii) Contribute appropriate articles that the Specialist has
authored to the journal club service portion of the Site;
(iii) Identify medical conferences that Xxxxxxxxxxx.xxx
should cover;
(iv) Identify and or contribute material for the educational
material service portion of the Site;
(v) Participate in the support group service portion of the
Site on a monthly basis to build credibility and maintain visibility;
(vi) Participate in appropriate services as identified from
time to time, such as: real audio recordings, chat groups, audio interviews,
live on-line discussions, and related events;
(vii) Conduct interviews for columns in off-line
newsletters;
(viii) Be included in press releases;
(ix) Participate in appropriate radio and TV talk shows to
promote the Specialist, as well as the Xxxxxxxxxxx.xxx service;
(x) Promote the Xxxxxxxxxxx.xxx service in appropriate
situations, such as at conferences, in articles, interviews, etc.; and
(xi) Place the Universal Resource Locator (URL) for the
Xxxxxxxxxxx.xxx Site on Specialist's business cards, letterhead and
promotional
material.
(c) Xxxxxxxxxxx.xxx's Services to be Performed: Xxxxxxxxxxx.xxx
agrees to provide the following services:
(i) Whenever a User of the Select a Specialist portion of the
Site submits a hypothetical question to Xxxxxxxxxxx.xxx and designates
Specialist to answer the hypothetical question, Xxxxxxxxxxx.xxx will forward
the question to Specialist after reformatting the question and withholding
the demographic information that refers to User. Once Xxxxxxxxxxx.xxx
receives Specialist's Report, Xxxxxxxxxxx.xxx will forward it to the User;
(ii) Xxxxxxxxxxx.xxx will maintain the service with
appropriate firewalls and other security measures.
(iii) Xxxxxxxxxxx.xxx will promote the service with
appropriate on-line and off-line promotional activities.
(d) Confidentiality Requirements: Xxxxxxxxxxx.xxx and Select a
Specialist agree to maintain the confidentiality of patient information and
identity. Both parties agree that any release of confidential information
will
occur only in compliance with applicable, state, federal, or a country's laws.
3. Intellectual Property Rights in the Reports and Work Product.
(a) Specialist hereby grants to Xxxxxxxxxxx.xxx, and
Xxxxxxxxxxx.xxx hereby accepts, the entire commercial right, title, and
interest
of Specialist in and to the Reports and Work Product and in and to all
patents,
copyrights, trade secrets, and other proprietary rights in or based on the
Reports or Work Product.
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(b) Specialist and Xxxxxxxxxxx.xxx agree that if the Reports or
Work Product or any portion thereof is copyrightable, it shall be deemed to be
a "work made for hire," as such term is defined in the Copyright Laws of the
United States.
(c) Specialist shall cooperate with Xxxxxxxxxxx.xxx or its
designees and execute all documents of assignment, oaths, declaration and
other
documents, as may be prepared by Xxxxxxxxxxx.xxx, to effect the foregoing or
to
perfect or enforce any proprietary rights resulting from or related to this
Agreement. Such cooperation and execution shall be at no additional
compensation to Specialist; provided, however, that Xxxxxxxxxxx.xxx shall
reimburse Specialist for reasonable out-of-pocket expenses incurred.
(d) The Reports and Work Product may not be reprinted or
distributed for profit without first obtaining written permission from
Xxxxxxxxxxx.xxx.
4. Compensation.
(a) As compensation in full for the successful performance of all
work and services to be performed hereunder, including the grant of rights in
and to the Reports and Work Product, Xxxxxxxxxxx.xxx shall pay Specialist
according to a schedule set forth in Exhibit I which will be tied to the
number of Reports generated by the Specialist on a timely basis.
Specialist acknowledges that compensation, although calculated based
on number of reports, is actually for the overall participation in the various
services on the Site, as well as for the generation of Reports and the
assignment of intellectual property rights.
(b) Xxxxxxxxxxx.xxx is entitled to change the rate which it pays
to Specialist to reflect any change it makes in its overall charge to a User
for
using the Select a Specialist service.
(c) Xxxxxxxxxxx.xxx will withhold the fees for the first ten
Reports as compensation in order to offset the expenses of documentation,
programming, and other set up costs.
(d) Xxxxxxxxxxx.xxx has a "no questions asked" refund policy that
it offers to Users. This is intended to promote customer satisfaction, avoid
negative publicity and to protect the Specialist from legal or regulatory
exposure. Refunds will be paid out on request and the report will be deducted
from the number of reports to be paid in that period.
(e) Promotion of the Xxxxxxxxxxx.xxx service is in the mutual
interest of both parties and therefore promotional services will not be
compensated.
(f) Payments are made monthly by wire transfer to Specialist or an
organization identified by Specialist.
(g) Specialist is fully responsible for all income tax or other
taxes related to these payments. Xxxxxxxxxxx.xxx will not make withholding or
similar payments. Specialist will not be entitled to any benefits that may be
offered to Xxxxxxxxxxx.xxx employees or other personnel.
5. Covenant Not to Compete. For the term of this Agreement and for a
period of six (6) months following the termination of this Agreement,
Specialist
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agrees not to participate in a similar Internet service that provides
medical-related information over the Internet.
6. Term of Agreement.
(a) This Agreement shall be for a period of three (3) years from
the date of execution of this Agreement, unless terminated or canceled as
provided herein in Section 9.
(b) The term of any right under proprietary rights granted to
Xxxxxxxxxxx.xxx as a result of or related to this Agreement shall be for the
full term of such proprietary rights.
7. Warranties and Representations.
(a) Specialist warrants and represents that:
(i) The Work Product and the Reports generated pursuant to
this Agreement will be original works, and Specialist will not knowingly
submit
Reports that infringe on a third party's intellectual property rights;
(ii) When creating Reports, Specialist will always respond
using Xxxxxxxxxxx.xxx's standard format;
(iii) Specialist has the authority to enter into this
Agreement and to perform all obligations hereunder, including, but not limited
to, the
grant of rights and licenses to the Work Product and Background Rights and all
proprietary rights therein or based thereon;
(vi) Specialist has a license to practice medicine; and
(v) Specialist will have during the term of this Agreement,
appropriate malpractice insurance in an amount that satisfies Xxxxxxxxxxx.xxx.
(b) Xxxxxxxxxxx.xxx warrants and represents that:
(i) It will advise Users to submit all questions in a
hypothetical format; and
(ii) User's identity will be kept confidential and will not
be shared with Specialist (However, User is free to directly contact
Specialist
after User receives Specialist's Report).
8. Indemnities. Specialist shall indemnify and hold Xxxxxxxxxxx.xxx
harmless against any loss or liability to person or property arising out of
any
performance of Specialist under this Agreement, that Specialist knew or should
have known was improper or inappropriate.
9. Termination/Cancellation.
(a) This Agreement may be terminated or canceled by either party
upon the occurrence of any of the following events, and neither party shall
have
any liability to the other party for the exercise of such right.
(i) By either party, if the other party has breached a
covenant, obligation or warranty under this Agreement and such breach remains
uncured for a period of 30 days after notice thereof is sent to such other
party;
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(ii) By either party, if the other party ceases to conduct
business; or
(iii) By either party, if either party is notified or
becomes
aware that the Select a Specialist service violates a State's or Country's
laws.
(b) Xxxxxxxxxxx.xxx has the right to terminate the Agreement if
Specialist fails to generate Reports in a satisfactory and timely manner or
fails to contribute to the other information services of the Site.
(c) Xxxxxxxxxxx.xxx reserves the right to terminate or suspend the
Agreement if Specialist is under disciplinary review or has been convicted of
a
felony crime, or misdemeanor stemming from his/her work as a physician.
(d) Specialist reserves the right to terminate or suspend the
Agreement with 15 days written notice and without cause if at any time
Specialist determines that he/she cannot meet his/her obligations under the
terms of the
Agreement.
(e) In the event either party terminates or cancels this Agreement
pursuant to this Paragraph 9, Xxxxxxxxxxx.xxx shall have no further liability
to
Specialist, except to pay Specialist for the number of Reports generated and
received by Xxxxxxxxxxx.xxx through the date of termination/cancellation.
10. General.
(a) This Agreement is the sole and entire agreement between the
parties relating to the subject matter hereof, and supersedes all prior
understandings, agreements, and documentation relating to the subject matter
hereof. This Agreement may be amended only by an instrument executed by the
authorized representatives of both parties.
(b) Any termination, cancellation or expiration of this Agreement
notwithstanding, provisions which are intended to survive and continue shall
so
survive and continue, including but not limited to, the provisions of
Paragraphs
3, 7, 8, and 10.
(c) This Agreement shall be interpreted in accordance with the
substantive law of Bermuda.
(d) All notices, consents, approvals and other communications given
or made pursuant hereto shall be in writing and shall be deemed to have been
duly given when delivered personally or by overnight courier or three days
after being mailed by registered or certified mail (postage prepaid, return
receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice, except that
notices of changes of address shall be effective upon receipt).
(e) Specialist shall have no right to assign, sell, encumber, or
otherwise transfer any right or interest granted by this Agreement. Any
attempted assignment, sale, encumbrance, or transfer of any interest herein by
Specialist shall be null and void and constitute a material breach of this
Agreement.
In witness whereof the parties hereto have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of
the
date first above written.
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FOR XXXXXXXXXXX.XXX INCORPORATED
By:
Xxxxxx Xxxxxxxx, CEO
Dated: ____________, 1997
SPECIALIST
By:
Dated: ____________, 1997
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EXHIBIT I
Current Specialist Compensation
The current rate of compensation per Specialist Report is US$130.00
