[EXHIBIT 10.2]
Confidential Information
activePress Journal Hosting and Delivery Agreement
THIS AGREEMENT is effective as of April 20th, 1999, by and between HealthGate
Data Corp., a Delaware corporation ("HealthGate"), having an address at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Massachusetts Medical Society, a Massachusetts corporation (the "Society"),
having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Society is the owner and publisher of The New England Journal of
Medicine ("NEJM") and the Society desires to retain HealthGate to develop and
host an on-line web site for Content (as defined herein) related to NEJM;
WHEREAS, HealthGate, among other business activities, hosts and distributes
health and biomedical Content for publishers through the Internet using its
activePress service;
NOW THEREFORE, in consideration of the foregoing, the mutual promises set forth
in this Agreement and for other good and valuable consideration, the receipt and
adequacy of which is acknowledged by all parties, the parties hereby agree as
follows:
1. Site; Development; Implementation Plan. HealthGate shall design, develop,
and mount the Content (as defined in Section 3) on servers and host the
Content on a World Wide Web site with the address of ▇▇▇.▇▇▇▇.▇▇▇ (the
"Site"). In establishing the Site, HealthGate shall (i) mount the Content
on its Hardware, (ii) 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, and (iii) update the Content at least once
a week with updates provided by the Society. All parties will cooperate
with respect to the design and development of the Site. The parties,
through the Project Managers set forth in Section 2, shall meet and
develop an Implementation Plan consistent with this Agreement set forth on
Schedule A attached hereto. The Implementation Plan shall be mutually
agreed upon among all parties hereto and shall contain details, procedures
and specifications for the Site, including HealthGate's policies for
handling error reports.
2. Project Managers. Both parties agree to name a Project Manager, who shall
be responsible for arranging all meetings, visits, and consultations
between the parties, for the transmission and receipt of technical
information between the parties, and for coordinating project
implementation.
HealthGate: ▇▇▇▇ ▇▇▇▇▇▇, General Manager of activePress
The Society: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
All contact between HealthGate and the Society regarding the Content,
implementation, and maintenance shall be coordinated between the Project
Managers. Either party may substitute other individuals as Project Manager
from time to time upon written notice to the other party.
3. Content. The Society shall provide all Content, including text and
graphics, for the Site. The Society, at its expense, shall deliver the
Content, which shall be limited to The New England Journal of Medicine, in
electronic format to HealthGate as specified in the Implementation Plan.
As set forth in Section 17 below, the Society retains all ownership and
copyrights of the Content. The Implementation Plan shall include
specifications for including copyright notices and other notices of right
title and interest to the Content. HealthGate will not make or permit any
changes to the Content without the written consent of the Society.
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Confidential Information
4. Software and Other Features. HealthGate shall develop, license or
otherwise acquire software to operate the Site (collectively the
"Software"). HealthGate, at its cost and expense shall upgrade and
maintain all Software. Notwithstanding the foregoing, the Society shall,
separate from and in addition to those fees described in Section 11 below,
be responsible for all fees and expenses relative to the development of
additional functions or features not described in the Implementation Plan,
but requested by the Society.
5. Content and Software Back-up. HealthGate shall make and maintain back-up
copies of all Content and Software pursuant to a schedule set forth in the
Implementation Plan. HealthGate shall store said back-up materials in a
safe and secure environment, fit for the back-up media, and not located at
the same location as HealthGate's Hardware.
6. Telecommunications Access. HealthGate, at its cost and expense, shall
maintain adequate Internet access via telecommunications to the Site so
that users of the Site may access the Site approximately 24 hours per day,
and receive information from the Site at speeds and response times
substantially equivalent or superior to HealthGate's own web sites.
7. Server Hardware and Equipment. HealthGate shall maintain the Site on
HealthGate's web server and/or other servers through the Term of this
Agreement. HealthGate shall acquire and maintain all necessary equipment
and hardware (collectively the "Hardware") for Site. The Hardware shall be
capable of storing the Content. HealthGate shall replace and upgrade such
Hardware to satisfy the requirements of Section 6 (telecommunications
access). The Hardware shall be located at HealthGate's computer facilities
currently housed at Exodus Communications, Inc. Internet Data Center,
located in Waltham, Massachusetts.
8. Sales of Information. The Site will include functions to facilitate the
sale of information, such as articles, issues, etc. to users of the Site,
via a secure Server to non-subscribers of the Content. The Society shall
establish all fees ("Information Fees") and other terms and conditions for
such sales. HealthGate shall collect the Information Fees established by
the Society. Within 60 days of the end of each calendar month, HealthGate
shall forward to the Society the net Information Fees actually collected,
which shall be equal to the Information Fees less a Processing Fee for
each sale which shall be retained by HealthGate. The Processing Fee is
further described in Section 11(e).
9. Activity Reports. During the time that HealthGate hosts the Site,
HealthGate shall provide to the Society activity reports detailing
performance, access and usage of the Site, including, but not limited to,
the title of each article accessed, the number of times each article is
accessed, the number of articles sold, and other information that shall be
mutually agreed upon from time to time. HealthGate shall provide the
Society with activity reports concerning access to the Site within 30 days
of the end of any month. All information contained in the activity reports
shall be confidential information of the Society and any proprietary
rights therein shall be the sole and exclusive property of the Society.
10. Advertising. The Site shall be designed to include space for advertising.
All specifications concerning advertising space shall be determined by
mutual agreement of the Society and HealthGate and detailed in the
Implementation Plan. HealthGate shall use the activePress advertising
module to host, update, and administer advertising banners on the site.
Fees for these services are detailed in Section 11 (h) below. HealthGate
shall not have the right to sell advertising banners on the Site.
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Confidential Information
11. Fees.
(a) Annual maintenance. The Society shall remit to HealthGate $35,000
annually for site maintenance services outlined in this Agreement.
Payment shall be in made within 30 days of receipt of an invoice.
(b) Conversion. The Society shall remit to HealthGate a one-time $5,000
fee for each year of the Content converted for release via the Site,
provided that such Content is not covered in the Implementation
Plan. Payment shall be in made within 30 days of receipt of an
invoice.
(c) Storage. The Society shall remit to HealthGate an annual fee of
$5,000 for storage of the Content on the Hardware. Payment shall be
in made within 30 days of receipt of an invoice.
(d) Subscriber. The Society shall remit to HealthGate a one time $2.00
fee for each individual subscriber receiving an individual online
subscription to the Content for whom access to the Content on the
Site is granted.
(e) Non-subscriber. The Society shall remit a Processing Fee, as
described In Section 8 above, equal to 25% of each Information Fee
processed by HealthGate. The minimum Processing Fee shall be equal
to $3.00 per sales transaction processed by HealthGate.
(f) Per Page. The Society shall remit to HealthGate a fee of $0.01 (one
cent) per page for each free or Info-barter page of the Site viewed
by a user (except for NEJM subscribers who have registered for
online access) excluding the Site's home page. If the total number
of free and Info-barter pages viewed by all users exceeds 1,000,000
in each of any two consecutive months, both the Society and
HealthGate agree to negotiate in good faith a new Per Page fee
structure.
(g) Institution. The Society shall remit to HealthGate $ 10 or 5% of the
online institutional subscription fee, whichever is greater, for
each subscriber receiving an institutional subscription to the
Content on the Site.
(h) Advertising. The Society shall remit to HealthGate 5% of the gross
banner advertising fee for the administration of banner advertising
on the Site as described in Section 10.
(i) Activity reports. All payments and fees described in ▇▇▇▇▇▇▇ ▇▇ (▇),
(▇), (▇), (▇), and (h) shall be based upon the activity reports
referred to Section 9.
(j) Escrow Account. The Society shall pay all fees associated with the
escrow account described in Section 21(b).
(k) Late Payment. All late payments shall bear interest at a rate equal
to eighteen percent (18%) per annum until paid in full.
12. Exclusivity. The Society shall neither host nor grant to any other party
the right to host the Content on the Internet during the term of this
Agreement. However, nothing contained in this agreement shall restrict the
Society from licensing the Full Text (as defined herein) of the NEJM for
use in connection with any party's online service or other electronic
distribution.
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13. Distribution Rights. The Society grants to HealthGate the right to sell
individual articles and subscriptions to the Content through HealthGate's
own Web sites, subject to mutually agreeable terms negotiated between the
parties for this activity.
14. Initial Term. The Initial Term of this Agreement shall commence on the
date first noted above and, unless terminated earlier as set forth herein,
shall continue for a period of two (2) years after such date (the "Initial
Term").
15. Renewal. After the Initial Term, this Agreement shall renew for additional
consecutive periods of one (1) year subject to termination in accordance
with Section 16. Both parties agree to negotiate, in good faith, any
changes in payment terms for the subsequent term beginning 120 days before
the end of the Initial Term and for each subsequent annual term.
16. Termination. Either party may terminate this Agreement upon the last date
of the Initial Term or any subsequent renewal term by giving written
notice of termination to the other party no later than ninety (90) days
prior to the end of the Initial Term or of any subsequent one year term.
Upon termination by either party, HealthGate 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.
17. Intellectual Property Rights.
(a) HealthGate Property. HealthGate shall own and retain all right,
title and interest in (i) the Software (as defined in Section 4),
and (ii) the copyrights in the Software: and (iii) computer code
written by HealthGate for the format, appearance and presentation of
the Software and Site (collectively, the "HealthGate Properties"),
subject only to (x) the Society's right, title and interest in the
Content (as defined in Section 3) contained therein and any
derivative work based upon the Content, (y) the Society's trade
names, trademarks and service marks and (z) any other information of
the Society provided to HealthGate hereunder and (zz) the format,
appearance and presentation of the Site (collectively, "Society's
Property").
(b) Society's Property. The Society shall own and retain all right,
title and interest in the Society's Property.
(c) HealthGate Confidential Information. The Society understands and
acknowledges that the HealthGate Properties are subject to
protection as copyrighted works of authorship of HealthGate or
HealthGate's suppliers under the United States Copyright Act, and
represent valuable confidential or proprietary information of
HealthGate. Further, the Society understands and acknowledges that
any confidential information pertaining, inter alia, to HealthGate's
customers, finances, internal operations and methods of compiling,
manipulating, presenting and disseminating Software or information,
which is disclosed to the Society (collectively, "HealthGate
Confidential Information"), represent valuable confidential
information of HealthGate entitled to protection as trade secrets.
The Society shall keep confidential, and shall protect from
unauthorized disclosure by its employees and agents, the HealthGate
Confidential Information and all copies or physical embodiments
thereof in any media in its possession, and shall limit access to
such HealthGate Confidential Information to those of its personnel
who require such access in connection with the Society's use thereof
as permitted by this Agreement. The Society shall secure and protect
the HealthGate Confidential Information and any and all copies and
other physical embodiments thereof in any media in its possession in
a manner consistent with the steps taken by the Society to protect
its own trade secrets. The Society shall take appropriate action by
instruction or agreement with its employees who are permitted access
to the
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HealthGate Confidential Information or any copy or other physical
embodiment thereof in any media in its possession, to satisfy its
obligations hereunder. Promptly upon discovery that any person has
acquired possession, use or knowledge of any part of the HealthGate
Confidential Information other than as authorized by this Agreement,
the Society shall notify HealthGate of such fact and the surrounding
circumstances. The obligations of this Section 17(c) shall survive
any termination of this Agreement. The obligations of this Section
17(c) shall not apply to any information which (a) is generally
known to the public, or becomes so known other than by reason of a
breach by the Society of its obligations hereunder, (b) was known to
the Society prior to its disclosure by HealthGate, or (c) is learned
by the Society from a third party who is not in breach of an
obligation of confidentiality in making such disclosure.
(d) Society's Confidential Information. HealthGate understands and
acknowledges that any Society's Property contained in the Site, are
subject to protection as copyrighted works of authorship of the
Society, and represent valuable or proprietary confidential
information of the Society. Further, HealthGate understands and
acknowledges that the Society information pertaining, inter alia, to
the Society's subscribers, customers, finances, internal operations,
sales practices and procedures which is disclosed to HealthGate
(collectively, "Society's Confidential Information"), represent
valuable confidential information of the Society entitled to
protection as trade secrets. HealthGate shall keep confidential, and
shall protect from unauthorized disclosure by its employees and
agents, the Society's Confidential Information and all copies or
physical embodiments thereof in its possession, and shall limit
access to such Society's Confidential Information to those of its
personnel and personnel of its consultants or agents who require
such access in connection with HealthGate's use thereof as permitted
by this Agreement. HealthGate shall secure and protect the Society's
Confidential Information and any and all copies and other physical
embodiments thereof in its possession in a manner consistent with
the maintenance of the Society's rights and interest therein.
HealthGate shall take appropriate action by instruction or agreement
with its employees, agents and consultants who are permitted access
to the Society's Confidential Information or any copy or other
physical embodiment thereof, to satisfy HealthGate's obligations
hereunder. Promptly upon discovery that any person has acquired
possession, use or knowledge of any part of the Society's
Confidential Information other than as authorized by this Agreement.
HealthGate shall notify the Society of such fact and the surrounding
circumstances. The obligations of this Section 17(d) shall survive
any termination of this Agreement. The obligations of this Section
17(d) shall not apply to any information which (a) is generally
known to the pubic, or becomes so known other than by reason of a
breach by HealthGate of its obligations hereunder, (b) was known to
HealthGate prior to its disclosure by the Society, or (c) is learned
by HealthGate from a third party who is not in breach of an
obligation of confidentiality an making such disclosure.
(e) Public Authority Exceptions. The parties' respective obligations
under this Section 17 shall not apply where disclosure is required,
directed or ordered by statute, regulation or a public authority, in
legal or administrative proceedings, in connection with the sale of
securities in the event of the filing of a Form S-1 Registration
Statement or a similar statement for the sale of securities by
HealthGate with the Securities Exchange Commission ("SEC") or any
state authority or otherwise. Notwithstanding the foregoing, and so
that the other party may timely present its objections to such
disclosure, each party shall provide the other party with timely
notice of a request, requirement or demand to disclose such
information or matter which is either made by a public authority,
directed to a public authority or required by the rules and
regulations of statute, regulation or a public authority.
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18. Representations and Warranties.
(a) Authority. Each party hereby represents and warrants that it has the
full right, power and authority to enter into and perform this
Agreement, and this Agreement has been duly authorized, executed and
delivered and constitutes the valid and binding obligation of such
party enforceable in accordance with its terms.
(b) HealthGate. HealthGate hereby represents and warrants that: (i) it
has, and will have throughout the term of this Agreement, all right,
title and interest in and to the Software, except for items that are
in the public domain or that are obtained under valid licenses, (ii)
it has and will have the right to grant the license granted herein,
(iii) the HealthGate Property licensed hereunder does not and will
not infringe any trade name, trademark or copyright, and (iv) there
are no material suits, claims or proceedings currently pending or
threatened against HealthGate based upon use of the Software and
that HealthGate will promptly advise the Society of the pendency or
threat of any such suits, claims or proceedings relating to the
software arising during the term of this Agreement.
(c) The Society. The Society hereby represents and warrants that: (i) it
has, and will have throughout the term of this Agreement, all right,
title and interest in and to the Content and Society Properties,
except for items that are in the public domain or that are obtained
under valid licenses, (ii) it has and will have the right to grant
the license granted herein, (iii) the Society Content and Property
do not and will not infringe any trade name, trademark or copyright,
and (iv) there are no material suits, claims or proceedings
currently pending or threatened against the Society based upon the
Content and that the Society will promptly advise HealthGate of the
pendency or threat of any such suits, claims or proceedings relating
to the Content or the Site arising during the term of this
Agreement.
19. Indemnification.
(a) The Society's Indemnification. The Society shall indemnify, defend
and hold harmless HealthGate and its officers, employees, agents,
affiliates and subsidiaries against and from all losses, expenses,
damages and costs including, without limitation, reasonable
attorneys' fees, that may at any time be incurred by any of them by
reason of (i) any allegation, claim or suit threatened, made or
brought against any of them related to any matter covered by the
representations and warranties or set forth in Sections 18 (a) and
18 (c) above, and (ii) any allegation, claim or suit threatened,
made or brought against any of them that is based upon or arises
from any actual or alleged error, inaccuracy or other defect in the
Society's Content or Properties.
(b) HealthGate's Indemnification. HealthGate shall indemnify, defend and
hold harmless each Society and its officers, employees, agents,
affiliates and subsidiaries against and from all losses, expenses,
damages and costs including, without imitation, reasonable
attorney's fees, that may at any time be incurred by any of them by
reason of any allegation, claim or suit threatened, made or brought
against any of them related to any matter covered by the
representations and warranties set forth in Sections 18(a) and 18(b)
above.
(c) Notice; Defense of Claims. Each party shall give prompt written
notice to the other party of any claim for indemnification
hereunder, specifying to the extent known the amount and nature of
the claim, and any matter which in the opinion of such party is
likely to give rise to an indemnification claim. The indemnifying
party shall have the right to control the defense through counsel of
its choosing. The indemnified party shall have the right to the
extent of
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its interests to participate on its own behalf and at its
own expense in such matter or its settlement through
counsel of its choosing.
20. Exclusion of Implied Warranties and Limitation of Liability. EXCEPT AS SET
FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY OR REPRESENTATION TO THE
OTHER, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SHALL EITHER PARTY
BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY OTHER INDIRECT, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT. IN NO EVENT SHALL HEALTHGATE'S LIABILITY UNDER THIS AGREEMENT
EXCEED THE AMOUNT OF PAYMENTS MADE BY THE SOCIETY TO HEALTHGATE PURSUANT
TO THIS AGREEMENT.
21. Miscellaneous.
(a) License of Software. Notwithstanding any other term or provision of
this Agreement or the Implementation Plan, HealthGate retains all
right, title and interest to the Software (as defined in Section 4
hereof), computer code written by HealthGate for the design, format,
appearance and presentation of the Site, the Software and other
HealthGate Properties (as defined in Section 17(a) hereof). The
Agreement grants to the Society a non-exclusive, non-transferable
license to utilize the Software with respect to the Site during the
Term of this Agreement. Without limiting the generality of the
foregoing, HealthGate may utilize and/or license the Software and
other HealthGate Properties for itself or for others without any
compensation or liability to the Society, provided however that upon
expiration or termination of this Agreement, the Society may,
without any obligation to HealthGate, utilize the design, format,
appearance and presentation of the Site in any manner which the
Society deems appropriate.
(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 Society shall pay all fees associated with the escrow account.
The Society may not access the escrow account except in the case of
HealthGate's bankruptcy.
(c) Publicity. HealthGate shall not distribute or publicly display or
communicate the name or trademarks of the Society without the prior
written approval of the Society, whose approval shall not be
unreasonably withheld. The Society agrees to respond to any request
from HealthGate regarding the use of the name or trademarks of the
Society within ten (10) working days of the submission of a request;
however failure by the Society to respond shall not be deemed
approval. If the Society does not respond within these five (5)
working days of a request by HealthGate for such approval, the
Society's approval shall be assumed to be provided. Notwithstanding
the foregoing, the Society hereby consents to the use of its name
and trademarks, and the reference to this Agreement, and if
appropriate, the filing of this Agreement, in connection with any
filings made by HealthGate with the Securities and Exchange
Commission and any other applicable state securities regulators
concerning an initial or any other public offering of its
securities.
(d) Relationship of Parties. The relationship of the parties hereto
shall be that of independent contractors. Nothing herein shall be
construed to create any partnership, joint venture, or similar
relationship or to subject the parties to any implied duties or
obligations respecting the conduct of their affairs which are not
expressly stated herein. Neither party shall have any right or
authority to assume or create any obligation or responsibility,
either express or
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implied, on behalf of or in the name of the other party, or to bind
the other party in any matter or thing whatsoever.
(e) Notices. Notices to either party under or relating to this Agreement
shall be in writing to the address indicated on the first page of
this Agreement, Attention: President, and shall be deemed effective
when received, or on the second day following the date after
depositing the notice with a reputable, overnight delivery service
(such as FedEx or U.P.S.).
(f) Severability. The terms and conditions of this Agreement are
severable. If any term or condition of this Agreement is deemed to
be illegal or unenforceable under any rule of law, all other terms
shall remain in force. Further, the term or condition which is held
to be illegal or unenforceable shall remain in effect as far as
possible in accordance with the intention of the parties.
(g) Entire Agreement; Modifications. The parties hereto agree that this
Agreement represents the complete and exclusive statement of the
Agreement between the parties, and supersedes all prior proposals
and understandings, oral or written, relating to the subject matter
of this Agreement. This Agreement may be amended only in writing
executed by the parties hereto.
(h) Effect of Waiver. Failure by either party to enforce any provision
of this Agreement shall not be deemed a waiver of that provision or
of any other provision of this Agreement.
(i) Force Majeure. Neither party shall be responsible for any delay nor
failure in performance resulting from acts beyond the control of
such party. Such acts shall include but not be limited to an act of
God; an act of war; a riot; an epidemic, fire, flood or other
disaster; an act of government; and a strike or lockout; provided
that, in order to be excused from delay or failure to perform, such
party must act diligently to remedy the cause of such delay or
failure.
(j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
(k) Venue. Except with respect to any dispute subject to arbitration in
accordance with the provisions of Section 21 (l) below, each party
hereto hereby irrevocably agrees that any legal action or proceeding
arising out of this Agreement shall be brought only in the Superior
Court of The Commonwealth of Massachusetts in and for Middlesex
County or the United States District Court for the Eastern Division
of the District of Massachusetts (or, if such court does not have
subject matter jurisdiction over such dispute, in any other state or
federal court located in the Commonwealth of Massachusetts),
preserving, however, all rights of removal to a federal court under
28 U.S.C. ss.1441. Each party hereto irrevocably waives any
objection to the venue of the aforesaid courts in connection with
any legal action or proceeding against it arising out of this
Agreement. Each party hereto also agrees that any trial arising out
of or in connection with a claim against it in connection with this
Agreement shall be before the court and each party's right to a
trial by jury is hereby waived. Each party hereto irrevocably
consents to the service of process outside the territorial
jurisdiction of said courts in any such action or proceeding by
mailing copies thereof by registered United States mail, postage
prepaid, to its address as specified above.
(l) Arbitration. Any question, dispute, disagreement, or difference of
any kind whatsoever which may arise between the Society and
HealthGate under, out of, or in connection with this Agreement, or
the carrying out of the work hereunder (whether during the progress
of the work or after its completion, and whether before or after the
termination abandonment or
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breach of this Agreement) shall be tried to be settled amicably upon
mutual consultation with good faith, and in failing so shall be
submitted to arbitration in Boston, Massachusetts to a panel of one
arbitrator under the rules of the American Arbitration Association.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall take effect as an original, and
all of which, together, shall evidence one and the same Agreement.
(n) Section Headings; Exhibits. The section, subsection and Schedule
headings used herein are for reference and convenience only, and
shall not enter into the interpretation hereof. The Schedules
referred to herein and attached hereto, or to be attached hereto,
are incorporated herein to the same extent as if set forth in full
herein.
(o) Neutral Construction. The parties to this Agreement agree that this
Agreement was negotiated fairly between them at arm's length and
that the final terms of this Agreement are the product of the
parties negotiations. Each party warrants and represents that it has
sought and received legal counsel of its own choosing with regard to
the contents of this Agreement and the rights and obligations
affected hereby. The parties agree that this Agreement shall be
deemed to have been jointly and equally drafted by them, and that
the provisions of this Agreement therefore should not be construed
against a party or parties on the grounds that the party or parties
drafted or was more responsible for drafting the provision(s).
(p) Certain terms.
"HTML" means the series of commands for formatting web pages known
as hypertext markup language, and shall include any current
and future extensions thereto.
"Info-barter page" means any page available free to the user, but
which may require user registration for access, exclusive of
pages available only to NEJM subscribers who have registered
for online access.
"Internet" means the world-wide network of computers commonly
understood to provide some or all of the following features,
among others: electronic mail, file transfers through File
Transfer Protocol ("FTP"), Telnet access to local and remote
computers, Usenet Newsgroups, Gopher access to information on
local and remote computers, Wide Area Information Servers
("WAIS"), and World Wide Web access.
"World Wide Web" means all of the web pages that are accessible to a
typical computer user with appropriate access to the Internet
and a web browser.
"Full Text" means the editorial content of the NEJM print edition
"Content" means the editorial content of the NEJM print edition plus
additional features that may be provided in the online
environment.
(q) Employees. Neither HealthGate nor the Society shall hire or seek to
engage the services of, nor offer to pay commissions, compensation
or any other form of incentives to the employees or consultants of
the other for any purpose whatsoever without the express written
consent of the other party. This provision shall expire eighteen
(18) months after the termination of this Agreement.
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(r) Cooperation. Each party shall cooperate with the other party as is
reasonably necessary to further the purposes of this Agreement and
the other party's performance hereunder.
Executed as of the date set forth above, as a document under seal, by the duly
authorized representatives of the parties hereto.
HealthGate Data Corp
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
Massachusetts Medical Society
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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