Exhibit 5.1
We have omitted certain portions of this document and included them in the
confidential treatment request filed separately with the Commission. These
portions are marked with an asterisk (*).
EDUCATION SERVICES PROVIDER AGREEMENT
This Education Services Provider Agreement ("Agreement"), is entered
into as of October 1, 2001 ("Effective Date") between HealthStream, Inc., a
Tennessee corporation with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("HealthStream") and HCA
Information Technology & Services, Inc. a Tennessee Corporation with its
principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("IT&S").
WHEREAS, HealthStream provides training and education services to
healthcare organizations;
WHEREAS, HealthStream has entered into an agreement with Healthtrust
Purchasing Group, LP ("HPG") for the purpose of providing such Services to
members of HPG;
WHEREAS, IT&S and its affiliates are members of HPG and own and operate
healthcare provider organizations and have affiliations with other owners and
operators of healthcare provider organizations;
WHEREAS, IT&S wishes to access and utilize HealthStream's training and
education services and to make such services available to its affiliated
entities, and HealthStream has agreed to provide such training and education
services to IT&S;
WHEREAS, IT&S and HealthStream wish to provide for appropriate
consideration for the services obtained under this Agreement and each
acknowledge the sufficiency and adequacy of the value, concessions, and
recitations set forth herein;
NOW THEREFORE, IT&S and HealthStream agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
meanings assigned below:
1.1. "Authorized Users" shall mean persons who access portions of the
Services that may require user registration and authentication in
compliance with terms of HealthStream's Services. Persons accessing the
Services at more than one Provider location shall count as only one
Authorized User and be included in the number of Authorized Users for
their home location.
1.2. "Confidential Information" shall mean the User Data, individual
performance records of Authorized Users, the identity and individual
performance records of Providers, financial and tax information, the
object and source codes and documentation for proprietary software, and
such other information that is confidential or proprietary business
information and delivered or disclosed pursuant to this Agreement.
1.3. "Content" shall mean all the information, excluding User Data,
disseminated by HealthStream in providing the Services. Content
includes HealthStream Courseware, Third-Party Courseware, IT&S
Courseware, ▇▇▇▇▇▇ Content, promotional information, messages and
communication to Authorized Users, software (in object code format),
scripting, photos, text, video, graphics, sounds, images and other
material and services provided hereunder by HealthStream through the
Gateways, including the Gateways.
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1.4. "▇▇▇▇▇▇ Content" shall mean the Web-ready version of Delmar's Medical
Terminology, an interactive reference, practice and assessment tool
licensed to HealthStream by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Learning, a division of
Thomson Learning Inc., ("▇▇▇▇▇▇"), which is organized into three main
categories: Word Building, Body Systems, and Specialties. Technical
specifications include:
- MS IIS
- Macromedia Shockwave movies
- Plug-ins: Macromedia Flash, Real Video, Real Audio
- SQL Server
1.5. "Expiration Date" shall mean four years from the Effective Date.
1.6. "Gateways" shall mean the online Web sites enabled by HealthStream
Web-based applications that allow Authorized Users access to the
Services offered pursuant to the terms of this Agreement. Gateways are
designed to be IT&S or Provider specific in branding and identification
pursuant to Section 2 herein.
1.7. "HealthStream Courseware" shall mean those courses subscribed to by
IT&S that are the proprietary property of HealthStream and are provided
to Authorized Users through the Gateways pursuant to the terms of this
Agreement or any amendments hereto. HealthStream Courseware may include
both currently available courses as well as courses that may be
developed by HealthStream in the future.
1.8. "HHS" shall mean the Department of Health and Human Services.
1.9. "HPG" shall mean HealthTrust Purchasing Group, LP.
1.10. "IT&S Courseware" shall mean those courses based upon IT&S or Provider
materials and information that have been conformed for Web use by
HealthStream or those courses provided by IT&S or Providers to
HealthStream in Web-ready format. IT&S Courseware will be provided to
Authorized Users by HealthStream pursuant to the terms of this
Agreement.
1.11. "Learning Management System" or "LMS" shall mean the system for
managing, tracking, and reporting usage of courseware by Authorized
Users, including the online tracking of usage of courseware by
Authorized Users and attendance for classroom instruction.
1.12. "Personal Information" shall mean information submitted by the
Authorized Users of the Services for personal identification, profiling
and report generation. Such Personal Information may include the name,
employer, department, social security number, profession, address, and
past educational activities for Authorized Users.
1.13. "Provider" shall mean healthcare provider facilities that receive
Services under this Agreement.
1.14. "Regulatory Courses" shall mean the courses listed on Exhibit C
attached hereto that are a subset of HealthStream Courseware. IT&S
understands that the Regulatory Courses provided under this Agreement
are designed to provide generic training relating to course topics and
that the courses in no way eliminate the need for an on-site
facilitator to address site-specific training questions on issues
unique to any of IT&S's sites or as required by the Occupational Safety
and Health Administration (OSHA), Joint Commission on Accreditation of
Healthcare Organizations (JCAHO) or other regulatory agencies.
1.15. "Reports" shall mean standard and customized reports to be produced by
HealthStream with respect to use of the Services by Authorized Users,
including, but not limited to, those reports described on Exhibit D
attached hereto.
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1.16. "Services Fees" shall mean, collectively, the Learning and
Administrative Services Fee, IT&S Courseware Fee, Support Fee, Gateway
Initialization Fee, Report Creation Fees, Courseware Development Fees,
▇▇▇▇▇▇ Fee and Custom Development Fees, as well as any other fees paid
to HealthStream for Services or any other educational courses obtained
from or through HealthStream.
1.17. "Services" shall mean, collectively, the Learning Services,
Administrative Services, Support Services, Gateway Initialization
Services, Report Creation Services, Courseware Development Services,
Custom Development Services, access to the Learning Management System
and all other services as provided by HealthStream to IT&S pursuant to
the terms of this Agreement or any Work Order under, or amendment to
this Agreement.
1.18. "Third-Party Courseware" shall mean those courses licensed to
HealthStream by third-parties and which are provided to Authorized
Users through the Gateways pursuant to the terms of this Agreement or
any amendments hereto.
1.19. "User Data" shall mean the Personal Information and other data
submitted and generated by Authorized Users of the Services under this
Agreement. Both parties shall have access to User Data subject to
Sections 4.4, 4.5 and 4.6 herein.
2. SERVICES. For the Services Fees specified in Article 3 herein, HealthStream
hereby agrees to perform the Services for IT&S, Providers and its
Authorized Users based upon the terms of this Agreement.
2.1 Learning Services. HealthStream hereby agrees to maintain, at its cost,
Gateways on the World Wide Web so that Authorized Users may access,
register for and take courses (the "Learning Services") through the use
of a password on the Gateway. The Learning Services provided hereunder
will enable each Authorized User to:
A. Register on the Gateway;
B. Search, select, enroll and take courses;
C. Take exams and have exams graded and scored;
D. Access a personalized educational transcript that documents
each Authorized User's completed courses, completion dates
and test scores (the "Educational Transcript");
E. Utilize the LMS; and
F. Obtain Reports.
2.2. Administrative Services. The services provided pursuant to this Section
2.2 shall be known as the "Administrative Services."
2.2.1. Authorized User Control. HealthStream will provide control
services to allow specified IT&S and Provider personnel to
identify Authorized Users and assign courses to be used by
Authorized Users.
2.2.2. Reporting. HealthStream hereby agrees to create, store and
provide timely access to Reports to IT&S, Providers, and
Authorized Users.
2.3. Support Services. The Phone Support Services and Email Support Services
provided pursuant to this Section 2.3 shall be known as the "Support
Services."
2.3.1. Phone Support Services. IT&S's call center shall provide first
level support via telephone to Authorized Users to obtain
answers to questions regarding the routine provision of
Learning Services and Administrative Services ("Phone Support
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Services"). HealthStream hereby agrees to provide to IT&S's
call center Phone Support Services if personnel of IT&S cannot
resolve the issue. Phone Support Services shall be available
to the IT&S's call center from 8 AM to 5 PM Central Time,
Monday through Friday, except for normal holidays.
HealthStream shall expand this time to 7 AM to 7 PM Central
time effective January 1, 2002.
2.3.2. Email Support Services. IT&S's call center shall provide first
level support via electronic mail to Authorized Users to
obtain answers to questions regarding the routine provision of
Learning Services and Administrative Services ("Email Support
Services"). HealthStream hereby agrees to provide to IT&S's
call center Email Support Services if personnel of IT&S's call
center cannot resolve the issue. Electronic mail will be
answered during normal business hours, Central Time.
2.3.3. Error Correction Services. If IT&S or a Provider suspects that
an error is preventing provision of any of the Services or
that the Services are not being provided in compliance with
HealthStream's obligations under this Agreement, IT&S or a
Provider shall notify HealthStream of the suspected error or
deficiency and HealthStream shall use commercially reasonable
efforts to confirm such suspected error or deficiency and to
correct such within a reasonable length of time. If the
existence of an error or other deficiency cannot be confirmed
by HealthStream, then HealthStream and IT&S shall collaborate
to identify such error or deficiency. If the existence of an
error is confirmed by HealthStream, HealthStream shall correct
it as part of Support Services, but only to the extent that
the obligation to correct such error shall be in conformity
with Sections 6 (Warranty) and 12.6 (Force Majeure) of this
Agreement. However, provided that, HealthStream is obligated
to correct any defects addressed in items (a) through (e) of
Section 6.1.6 regardless of whether HealthStream had knowledge
of such defects. If the existence of a suspected error is
determined to exist because of any condition attributable to
IT&S or a Provider, IT&S agrees to pay HealthStream for its
error confirmation and remedial services at HealthStream's
prevailing hourly rate for HealthStream's personnel time, plus
reimbursement for reasonable travel and living expenses
incurred by HealthStream personnel in connection with such
service. Any invoice for such expenses shall be supported by
receipts. HealthStream will not initiate any remedial services
for which IT&S is obligated to pay HealthStream until IT&S
agrees to the scope and cost of such services.
2.3.4 Additional Services. In the event IT&S or any Provider
requests any support or services other than those included
under the terms of this Agreement, including consulting
services, HealthStream shall, depending upon the availability
of its personnel, furnish such support or support services
subject to additional fees, terms and conditions, if any, as
mutually agreed in a work order.
2.4. Gateway Initialization Services. HealthStream hereby agrees to set up
each Gateway for operation for each Provider according to the
specifications described in Exhibit A attached hereto (the "Gateway
Initialization Services"). Upon delivery of the Gateway Initialization
Services, Provider shall have twenty-five (25) business days to examine
the Gateway Initialization Services and inform HealthStream of a
failure to conform to the specifications contained in Exhibit A
attached hereto. If no such failure is communicated by Provider to
HealthStream within this time period, the Gateway Initialization
Services shall be deemed accepted. Such acceptance shall not relieve
HealthStream of its obligation to meet the specifications. If at any
time the Gateway Initialization Services fail to conform to the
specifications, HealthStream shall correct, modify or improve the
Gateway Initialization Services to meet the specifications.
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2.5. Custom Development Services. HealthStream will at the request of IT&S
develop additional features for the delivery of Learning Services and
Administrative Services, (the "Custom Development Services"). To
request Custom Development Services, IT&S or Provider will submit a
project work request to HealthStream in the format prescribed by
HealthStream to define the scope of the Custom Development Services on
a per project basis. After reviewing the project work request form and
conferring with IT&S or Provider as applicable, within a reasonable
period of time HealthStream will provide a statement of work to be
included in a work order substantially in the form of Exhibit E
attached hereto for both parties to approve prior to performing the
Custom Development Services. Each Work Order may have a provision for
either an incentive for on-time delivery or a penalty for late delivery
by HealthStream.
2.6. Courseware Development Services. HealthStream will at the request of
IT&S develop IT&S Courseware or customize HealthStream Courseware for
IT&S and Providers (the "Courseware Development Services"). To request
Courseware Development Services, IT&S or Provider will submit a project
work request to HealthStream in the format prescribed by HealthStream
to define the scope of the Courseware Development Services on a per
project basis. After reviewing the project work request form and
conferring with IT&S or Provider as applicable, within a reasonable
period of time HealthStream will provide a statement of work to be
included in a work order substantially in the form of Exhibit E
attached hereto for both parties to approve prior to performing the
Courseware Development Services. Each Work Order may have a provision
for either an incentive for on-time delivery or a penalty for late
delivery by HealthStream.
2.7. Enhancements. Any improvements and/or enhancements to the LMS and
theHealthStream Courseware which are developed solely at the discretion
of HealthStream and not pursuant to (i) any request by IT&S or any
other third-party for Custom Development Services or Courseware
Development Services or (ii) the Work Order(s) contemplated by Section
2.8 of this Agreement, shall be made available to IT&S and Authorized
Users at no additional cost to IT&S.
2.8. Learning Management System Enhancements. HealthStream and IT&S
acknowledge that they will meet to discuss the needs for any upgrades
and enhancements to the LMS, including, but not limited to, the
reporting of courseware usage and classroom attendance by individuals,
facilities, divisions, groups, and /or classes; and the performance of
administrative functions, such as, but not limited to, setting up and
planning for classes, courses and credits to be received for
participation in classes and taking courseware. The parties acknowledge
and agree that they shall meet within thirty (30) days of the Effective
Date to assess the current functions of the LMS, identify the functions
currently in development and establish a timetable for further
development with the understanding that the LMS shall include all of
the functions previously described in this Section 2.8. At these
meetings the parties will also discuss any additional modifications,
upgrades and enhancements to be made for the LMS, including any costs
to be incurred by either party for such modifications, upgrades and
enhancements. A Work Order shall be entered into by the parties to
reflect their understanding as to the modifications, upgrades and
enhancements to be developed.
2.9. Changes to HealthStream and Third-Party Courseware. HealthStream agrees
to provide IT&S: (i) at least sixty (60) days prior notice as to any
changes being made to the HealthStream Courseware; and (ii) notice
within three (3) business days of receiving notice itself from a
third-party courseware provider of any changes to Third Party
Courseware. In either case, notice shall be provided by letter or email
to IT&S addressed to the attention of IT&S Director of Education.
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3. SERVICE PLACEMENT AND FEES.
3.1. Services Placement. HealthStream grants IT&S the non-exclusive,
non-transferable right to contract the delivery of the Services to
Providers. Each Provider that contracts with IT&S for data processing
services shall be able to have access to the Services.
3.1.1 Any Provider facility that is sold to an independent third
party shall not continue to utilize the Services after the
closing date for such transaction. If a divested Provider is a
member of HealthTrust Purchasing Group, then HealthStream
agrees to make Services available to the divested Provider
under terms of the agreement between HealthStream and
HealthTrust Purchasing Group. If a divested Provider is not a
member of HealthTrust Purchasing Group, then HealthStream
agrees to make Services available to the divested Provider
under terms comparable to those available to HealthTrust
Purchasing Group members. In either case, if IT&S has an
agreement with the divested Provider for the provision of data
processing services continuing beyond the divestiture, then
pursuant to its data processing services agreement, IT&S will
assist the divested Provider with its transition to a direct
relationship with HealthStream for the provision of the
Services.
3.1.2 HealthStream shall have the right to license use of IT&S
Courseware through HealthStream's own Web sites for use by
other customers of HealthStream, in a manner and for a payment
to IT&S that shall be mutually agreed upon in writing by the
parties.
3.2 Service Fees. In consideration of the Services provided hereunder, IT&S
shall pay to HealthStream:
3.2.1. Fee for Learning and Administrative Services. A fee equal to *
per year per Authorized User (the "Learning and Administrative
Services Fee") shall be charged by HealthStream for providing
access to the Learning Services and Administrative Services,
including access to the courses set forth on Exhibit C, and
shall be billed at * per month per Authorized User. Billing
shall commence for each Authorized User once listed in
HealthStream's database. Access to any additional courses,
including other HealthStream Courseware and Third-Party
Courseware shall be at an additional cost. The population of
Authorized Users shall be calculated on a monthly basis.
3.2.2. IT&S Courseware. For purposes of this Agreement, the fee for
access to the IT&S Courseware provided through the Gateways is
contained in the Learning and Administrative Services Fee,
subject to payment by IT&S of hosting fees that shall be
negotiated on a case by case basis (the "IT&S Courseware
Fees").
3.2.3. Support Fee for Support Services. IT&S's call center will be
given un-metered access to the Support Services. For purposes
of this Agreement, the fee for support (the "Support Fee") is
contained in the Learning and Administrative Services Fee.
3.2.4. Gateway Initialization Fee for Gateway Initialization
Services. A one-time per Gateway fee equal to * for each
Gateway, billed monthly for each Gateway made operational and
accepted under Section 2.4 during the prior month (the
"Gateway Initialization Fee").
3.2.5. Report Creation Fee for Report Creation Services. Customized
reports in addition to those listed in Exhibit D attached
hereto will be created by HealthStream for IT&S and Providers
(the "Report Creation Services") at mutually agreed prices
(the "Report Creation Fee").
Page 6 of 27
3.2.6. Custom Development Fee. Fees for Custom Development Services
will be mutually agreed upon by both parties when the scope of
each courseware development project is identified (the "Custom
Development Fees").
3.2.7. Courseware Development Fee for Courseware Development
Services. Fees for Courseware Development Services will be
mutually agreed upon by both parties when the scope of each
courseware development project is identified (the "Courseware
Development Fees").
3.2.8. Fee for ▇▇▇▇▇▇ Content. In consideration of HealthStream
providing ▇▇▇▇▇▇ Content to Authorized Users, IT&S agrees to
pay to HealthStream * (the "▇▇▇▇▇▇ Fee") plus an additional
one time payment of * of the ▇▇▇▇▇▇ Fee * as a service fee for
HealthStream deploying, and managing the ▇▇▇▇▇▇ Content using
HealthStream's proprietary online course management system via
the Services, payable to HealthStream in two (2) equal annual
installments and due and payable to HealthStream according to
the following schedule:
- * on November 30, 2001; and
- * on November 30, 2002.
HealthStream shall pay the ▇▇▇▇▇▇ Fee to ▇▇▇▇▇▇. The fee
stated in Section 3.2.1 herein shall cover the right of IT&S
and Authorized Users to access the ▇▇▇▇▇▇ Content, and IT&S
shall not pay HealthStream or ▇▇▇▇▇▇ any additional fees for
providing ▇▇▇▇▇▇ Content to Authorized Users. IT&S shall have
access to the ▇▇▇▇▇▇ Content in consideration of the above
fees until March 1, 2005.
3.3 Payment. The Services Fees, and any fees set forth below, are due each
month upon receipt of an invoice from HealthStream, subject to Section
3.5 herein, and payable within thirty (30) days after receipt.
HealthStream will provide hard copy invoices detailing all Services
Fees. In addition, invoices shall be submitted electronically in
(*.txt) Text Only format in form and content as specified in Exhibit B
attached hereto, or as mutually agreed between the parties from time to
time.
3.4 Annual Commitment. IT&S makes a commitment to pay twelve million
dollars (US$12,000,000.00) in Services Fees over the Initial Term of
this Agreement (the "Total Commitment") as provided in Section 3.5. In
meeting the Total Commitment, IT&S shall pay at least * in Services
Fees during each year of the Initial Term (each an "Annual
Commitment"). Payments directly paid to HealthStream by Providers or
Authorized Users for the Services accessed through the Gateways shall
be credited to both the Total Commitment and the Annual Commitment. *
3.5 Annual and Total Commitment Reconciliations. Pursuant to each Annual
Commitment, provided HealthStream is in compliance with all material
obligations hereunder, IT&S agrees to pay HealthStream any shortfall
between any Services Fees billed during each year of the Initial Term
and each Annual Commitment of * within thirty (30) days of the end of
each year of this Agreement and, at the end of the Initial Term, any
shortfall between the total Services Fees received by HealthStream from
IT&S, Providers, Authorized Users * over the Initial Term, and the
Total Commitment of twelve million dollars ($12,000,000), within sixty
days following the end of the Initial Term. If in any contract year
Service Fees fail to reach the Annual Commitment, and IT&S pays the
applicable shortfall amount, then such shortfall amount shall be usable
by IT&S as a credit towards any Service Fees payable for the next
subsequent contract year in excess of that year's Annual Commitment. At
the end of each quarter during the fourth year of the Initial Term, the
parties shall determine whether the cumulative Services Fees received
by HealthStream from IT&S, Providers, Authorized Users *
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are less than the quarterly Services Fees targets of * for the end of
the first, second and third quarters, respectively (each a "Quarterly
Target"), with any difference between a Quarterly Target and the
cumulative amount of Services Fees actually received by HealthStream
being a "Commitment Difference." In the event a Commitment Difference
exists, HealthStream may ▇▇▇▇ the Commitment Difference to IT&S in the
first month of the following quarter. If in any quarter in the fourth
year of the Initial Term cumulative Services Fees fail to reach the
Quarterly Target, and IT&S pays the applicable shortfall amount as
billed, then such shortfall amount(s) shall be usable by IT&S as a
credit towards any Service Fees payable in any subsequent quarter
during the Initial Term in excess of that quarter's Quarterly Target.
Any difference remaining between the Total Commitment and the
cumulative Services Fees actually collected at the end of end of the
Initial Term shall be billed within sixty (60) days of the end of the
Initial Term.
3.6 Fees Related to Additional Products and Services. Except as otherwise
set forth in this Agreement, any modifications to the Services, which
are requested by IT&S, may be accompanied by additional fees as
determined by HealthStream, and approved in writing by IT&S prior to
initiation of such modification. If HealthStream initiates a
modification or enhancement on its own initiative without a request by
IT&S, then there will be no additional costs or fees for such
modification prior to the Expiration Date.
3.7 Payment Terms. All undisputed amounts due hereunder must be paid within
thirty (30) days after the date of receipt of an invoice (the "Due
Date"). For any payment not received within fifteen (15) days of its
Due Date, HealthStream shall have the right to assess past due amounts
at the rate of one percent (1%) per month; provided, however, if such
rate is not then lawful, HealthStream shall have the right to assess
any such payment at the highest lawful rate then available.
4. INTELLECTUAL PROPERTY.
4.1. Content. Content may be accessed by IT&S and any Authorized User only
for the purposes of viewing, browsing or ordering products and services
from HealthStream, subject to the restrictions described herein.
4.2. Prohibited Use of Content. The Content is protected in the U.S. and
internationally by a variety of laws, including without limitation,
copyright laws, trademark laws and other proprietary rights laws.
HealthStream is not granting IT&S or any Authorized User permission to
use the Content other than as expressly stated in this Agreement.
Except as stated herein and in Section 5 hereof, none of the Content
may be copied, reproduced, distributed, republished, downloaded,
displayed, posted or transmitted, in any form or by any means,
including without limitation, electronic, mechanical, photocopying, or
recording, without the prior written permission of HealthStream.
4.3. Trademarks. The trademarks, service marks, and logos (collectively, the
"Trademarks") used and displayed on the Content are registered and
unregistered trademarks of HealthStream, IT&S, Providers, Authorized
Users and others. Nothing in this Agreement, the Gateway or on any
HealthStream Web site should be construed as granting, by implication,
estoppel, or otherwise, any license or right to use any Trademark
displayed on the Gateway or on any HealthStream Web site, without the
express written permission of the Trademark owner. IT&S, Providers,
Authorized Users and HealthStream will refrain from issuing each
other's name or logo as a link to any network site unless establishment
of such a link is approved in advance and in writing by the owner of
the name or logo.
4.4. Confidential and Proprietary Information. With respect to the Custom
Development Services
Page 8 of 27
provided in Section 2 herein, HealthStream acknowledges that
Confidential Information provided by IT&S, Providers or Authorized
Users is protected by law. HealthStream will neither disclose such
information, directly or indirectly, nor use such information for any
purpose except to perform the services described in this Agreement,
except as provided below, or outlined in Sections 4.5 and 4.6 herein.
All documents or records of a disclosing party which may be used or
received by HealthStream shall remain exclusive property of the
disclosing party. IT&S, on behalf of itself and the Providers,
acknowledges that Confidential Information provided by HealthStream is
also protected by law. IT&S and the Providers will neither disclose
such information, directly or indirectly, nor use such information for
any purpose except to perform the services described in this Agreement.
Both parties shall take appropriate action, by instruction to or
agreement with its employees, agents and subcontractors, to maintain
the confidentiality of the Confidential Information. Both parties shall
exercise at least the same degree of care to safeguard the
confidentiality of the other party's Confidential Information as it
does to safeguard its own proprietary confidential information of equal
importance, but not less than a reasonable degree of care. Both parties
shall promptly notify the other party in the event that it learns of
any unauthorized release of Confidential Information. Neither party
shall have any obligation with respect to: (a) Confidential Information
publicly known prior to the disclosure or which becomes publicly known
through no wrongful act of the receiving party; (b) Confidential
Information that was in lawful possession of the recipient prior to the
disclosure, without any confidentiality obligation; (c) Confidential
Information that was independently developed by the recipient outside
the scope of this Agreement and without access to information received
from the other party pursuant to this Agreement; (d) Confidential
Information that was disclosed to the recipient by an unrelated third
party in lawful possession of the information and not in breach of any
confidentiality obligation with respect to such information; or (e)
Confidential Information required to be disclosed pursuant to
regulatory action or court order, provided adequate prior written
notice of any such request to product is given to the discloser of the
information. Upon the termination of this Agreement, both parties
shall: (i) immediately cease to use the Confidential Information; (ii)
return to the other party Confidential Information and all copies
thereof within thirty (30) days of the termination or destroy the
Confidential Information in accordance with the other party's policy
and all-applicable state and federal laws; or (iii) upon request,
certify in writing to the other party that it has complied with its
obligations set forth in (i) and (ii) above. The parties acknowledge
that monetary remedies may be inadequate to protect their rights with
respect to Confidential Information and that, in addition to legal
remedies otherwise available to either party, injunctive relief is an
appropriate judicial remedy to protect either party's rights in
Confidential Information. Either party may enforce the other party's
obligations hereunder by seeking equitable relief which remedy shall be
nonexclusive. Both parties agree to provide reasonable assistance and
cooperation upon the request of the other party in connection with any
litigation against third parties to protect Confidential Information
4.5. Aggregated Data. HealthStream agrees not to distribute any individually
identifiable User Data that may be collected or received by
HealthStream. IT&S grants HealthStream an unrestricted, royalty-free,
irrevocable license to maintain and distribute aggregated compilations
of User Data ("Aggregated Data") such that Personal Information and the
identity of IT&S and Providers is not included. Aggregated Data will be
used for measurement of performance norms for all HealthStream clients
and will likewise include performance information generated by other
HealthStream clients. The process of collecting and generating
Aggregated Data assists HealthStream clients to maximize the
effectiveness of the Services for their employees. HealthStream will
adhere to all HHS or United States governmental regulations regarding
privacy of User Data. The right to maintain and distribute
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Aggregated Data shall survive this Agreement. HealthStream will provide
IT&S with Aggregated Data upon request.
4.6. Licensing Organization Distribution. In the regular course of
performing the Services, HealthStream may distribute certain User Data
to licensing organizations for the benefit of Authorized Users upon
either their request or the request of IT&S or a Provider. The release
of such information is consistent with the current practice used by
Authorized Users themselves when reporting educational activity for
credit toward professional licensure. HealthStream will release only
the minimum information required by the licensing organizations to
adequately credit Authorized Users for educational activities
completed. The provisions of this Section 4.6 shall survive any
termination of this Agreement.
4.7. Title. Title to IT&S Courseware (including Web versions thereof subject
to this Section 4.7) remains in name of IT&S or Providers, as
applicable, and HealthStream shall not use IT&S Courseware except as
expressly allowed under this Agreement or as otherwise agreed to by the
parties. Subject to this Section 4.7, nothing in this Agreement, either
express or implied, shall give HealthStream any right, title or
ownership in and to IT&S Courseware. This Agreement does not grant
HealthStream a license to use or distribute the IT&S Courseware other
than as set forth herein. IT&S and Providers retain the right to
otherwise use or license IT&S Courseware in their sole discretion.
Title to HealthStream Courseware remains in name of HealthStream or its
licensors, as applicable, and IT&S and Providers shall not use
HealthStream Courseware except as expressly allowed under this
Agreement. HealthStream shall retain title to any software code it uses
to conform IT&S Courseware into a Web based format; provided that,
HealthStream grants IT&S and Providers a transferable, non-terminable,
worldwide, royalty free license to use such software code to the extent
necessary to make IT&S Courseware available to Providers as provided
under this Agreement.
5. IT&S AND AUTHORIZED USER CONDUCT.
5.1. Permitted and Prohibited Conduct. IT&S and any Authorized User may
access, download, or copy Content located on the Gateways, only for
non-commercial use within IT&S's organization, provided that IT&S
retains all copyright, trademark and other proprietary notices
contained in such Content in all printed and other copies.
Specifically, IT&S, Providers, and Authorized Users shall have the
right to make copies of Courseware only as required by regulatory
and/or accreditation organizations, or to comply with legal obligations
under any agreement with a governmental entity. IT&S and any Authorized
User may not de-compile, reverse engineer, modify, distribute,
transmit, display, perform, reproduce, publish, license, create
derivative works from, transfer, or sell any information, software,
products, or services obtained from the Gateways.
5.2. Prohibited Distribution. In no event may IT&S and any Authorized User,
directly or indirectly, sell or offer for sale any Content located on
the Gateways or upload, distribute, or otherwise publish Content in any
other form or medium.
5.3. Prohibited Infringement. Neither IT&S nor any Authorized User shall
knowingly upload to, or distribute or otherwise publish through the
Gateways any content that violates or infringes the rights of any
persons, including but not limited to, rights in copyrights, patents,
trademarks, trade secrets, and other proprietary rights.
5.4. Prohibited Information. IT&S nor any Authorized User shall knowingly
upload to, or distribute or otherwise publish through the Gateways any
content that (1) is libelous, threatening, defamatory, obscene,
indecent, pornographic, abusive, or could give rise to any civil or
criminal liability under U.S. or international law, or (2) includes any
bugs, viruses, worms,
Page 10 of 27
trojan horses, or other harmful properties. IT&S and any Authorized
User will not use the Gateways for, or to further, any illegal
purposes.
5.5. Prohibited Solicitation. Neither IT&S, HealthStream or any Authorized
User shall upload to, or distribute or otherwise publish through the
Gateways any content containing any solicitations of funds,
advertising, or solicitations for goods or services, without prior
written agreement between IT&S and HealthStream.
6. WARRANTIES AND REPRESENTATIONS.
6.1. HealthStream warrants and represents that:
6.1.1. all of the Services HealthStream performs under this Agreement
will be performed in a professional and workmanlike manner,
consistent with generally accepted industry standards, using
properly trained personnel and in conformance with standards
and specifications expressly stated herein;
6.1.2. HealthStream has all requisite power, authority and legal
right to execute, deliver and perform its obligations under
this Agreement and all of such actions have been duly and
validly authorized by all necessary proceedings on the part of
HealthStream;
6.1.3. no authorization, consent, approval, license, permit,
exemption or other action by, and no registration,
qualification, designation, declaration or filing with any
governmental authority is or will be necessary in connection
with the execution of this Agreement and HealthStream will
comply with all applicable laws and regulations in the
performance of its obligations under this Agreement;
6.1.4. the execution and delivery of this Agreement by HealthStream
does not and will not (a) violate any applicable law; or (b)
conflict with or result in a material breach of or default
under any agreement or instrument to which HealthStream is a
party or by which any of its properties is bound;
6.1.5. there is no pending action, suit or threatened proceeding by
or before any governmental authority against HealthStream that
in any way affects, or may affect, HealthStream's ability to
enter into this Agreement or perform any of HealthStream's
obligations hereunder;
6.1.6. to the best of HealthStream's knowledge, HealthStream's
performance of this Agreement and its provision of content
(other than IT&S Courseware), shall not (a) impair or infringe
on the intellectual property rights of any third party or any
rights of publicity or privacy; (b) violate any law, including
without limitation, the laws and regulations governing export
control, unfair competition, anti-discrimination or false
advertising; (c) be defamatory, trade libelous, or unlawfully
harassing; (d) be obscene, child pornographic or indecent; (e)
contain any viruses, Trojan horses, trap doors, Easter eggs,
worms, time bombs, or other computer programming routines
intended to damage, interfere with, intercept, or expropriate
any hardware, software, data or peripheral equipment system;
6.1.7. unscheduled system downtime will not exceed 3% in a given
calendar year (i.e. system up 97%) due to the Services being
unavailable as a result of application error and not related
to IT&S's Internet service provider, computer network or
anything else outside of HealthStream's control; and
6.1.8. any Content that has been represented as being accredited by
an accrediting body shall be so accredited or has been
represented as being in compliance with a regulatory agency
shall so comply.
Page 11 of 27
6.2. IT&S warrants and represents that:
6.2.1. IT&S has all requisite power, authority and legal right to
execute, deliver and perform its obligations under this
Agreement and all of such actions have been duly and validly
authorized by all necessary proceedings on the part of IT&S;
6.2.2. the execution and delivery of this Agreement by IT&S does not
and will not (a) materially violate any applicable law; or (b)
conflict with or result in a material breach of or default
under any agreement or instrument to which IT&S is a party or
by which any of its properties is bound;
6.2.3. IT&S shall not allow any other entity or third party to
purchase, license or sublicense the Services, except those
Providers as provided herein;
6.2.4. IT&S shall be responsible for any and all taxes, other than
HealthStream income tax, applicable to or in connection with
the services rendered by HealthStream pursuant to the terms of
this Agreement; and
6.2.5. the content submitted to HealthStream for the Gateway
Customization Services shall not knowingly infringe any
patents, copyrights, trade secrets, or other proprietary
rights of any third parties, and IT&S will have no reason to
believe that any such infringement or claims thereof could be
made by third parties.
7. DISCLAIMER OF WARRANTIES.
7.1. THE WARRANTIES EXPRESSED IN SECTION 6 HEREIN REPRESENT THE ENTIRE
WARRANTY OF HEALTHSTREAM WITH RESPECT TO THIS AGREEMENT, AND ARE IN
LIEU OF ANY AND ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR
IMPLIED.
7.2. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE "GATEWAYS" AND THE
"SERVICES" AND ALL OTHER OBLIGATIONS PROVIDED BY HEALTHSTREAM PURSUANT
TO THE TERMS OF THIS AGREEMENT ARE PROVIDED "AS-IS" WITHOUT ANY
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE.
7.3. DUE TO THE NUMBER OF SOURCES FROM WHICH "CONTENT" DELIVERED VIA THE
"SERVICES" IS OR WILL BE OBTAINED, AND THE INHERENT HAZARDS OF
ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES
IN SUCH CONTENT AND THE SERVICES. THE SERVICES COULD INCLUDE TECHNICAL
OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS. PERIODICALLY, CHANGES
MAY BE MADE IN THE CONTENT PROVIDED IN THE "SERVICES". HEALTHSTREAM
WARRANTS THAT IT WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO
ENSURE THE ACCURACY, COMPLETENESS, CURRENTNESS OF THE HEALTHSTREAM
COURSEWARE. HEALTHSTREAM DOES NOT CLAIM COMPREHENSIVENESS OR THE
ABSENCE OF ERRORS. HEALTHSTREAM ASSUMES NO INDIRECT RESPONSIBILITY FOR
THE USE OF THE SERVICES BY THE IT&S OR AUTHORIZED USERS. NEITHER PARTY,
AUTHORIZED USERS NOR THEIR LICENSORS SHALL BE LIABLE FOR LOSS OF
PROFITS, LOSS OF USE, OR INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY
DAMAGES AS A RESULT OF USE OF THE SERVICES OR THE CONTENT, EVEN IF
EXPRESSLY MADE AWARE OF THE POSSIBILITY THEREOF.
Page 12 of 27
7.4. EXCEPT IN THE EVENT OF HEALTHSTREAM'S BREACH OF THE WARRANTY MADE IN
SECTION 6.1 HEREOF, ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE
OBTAINED THROUGH THE USE OF THE GATEWAYS IS AT IT&S AND AUTHORIZED
USER'S OWN DISCRETION AND RISK AND IT&S IS SOLELY RESPONSIBLE AND
LIABLE FOR ANY DAMAGE TO IT&S OR AUTHORIZED USER'S COMPUTER SYSTEM OR
FOR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR
DATA. HEALTHSTREAM ASSUMES NO RESPONSIBILITY FOR THE USE OF THE
GATEWAYS BY IT&S OR ANY AUTHORIZED USER.
7.5. IN NO EVENT SHALL EITHER PARTY, AUTHORIZED USERS OR THEIR PARENT
COMPANIES AND AFFILIATES, OR ANY OF ITS OR THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, REPRESENTATIVES, OR LICENSORS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR OTHER
DAMAGES RESULTING FROM USE OF THE GATEWAYS, ITS CONTENT OR LINKS,
INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR
OTHER INTANGIBLES, EVEN IF A PARTY OR AUTHORIZED USER HAD BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
7.6. THE PROVISIONS OF THIS SECTION 7 SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT.
8. LINKS TO OTHER WEB SITES
HEALTHSTREAM MAKES NO REPRESENTATIONS WHATSOEVER ABOUT ANY OTHER WEB SITE THAT
IT&S OR ANY AUTHORIZED USER MAY ACCESS THROUGH HEALTHSTREAM'S WEB SITE OR THE
GATEWAYS. WHEN IT&S OR ANY AUTHORIZED USER ACCESSES A NON-HEALTHSTREAM WEB SITE,
IT IS INDEPENDENT FROM HEALTHSTREAM, AND HEALTHSTREAM HAS NO CONTROL OVER THE
CONTENT ON THAT WEB SITE. IN ADDITION, A LINK TO A NON-HEALTHSTREAM WEB SITE
DOES NOT MEAN THAT HEALTHSTREAM ENDORSES OR ACCEPTS ANY RESPONSIBILITY FOR THE
CONTENT, OR THE USE, OF SUCH WEB SITE. IT IS UP TO IT&S OR ANY AUTHORIZED USER
TO TAKE PRECAUTIONS TO ENSURE THAT WHATEVER IT&S OR ANY AUTHORIZED USER SELECTS
FOR IT&S OR ANY AUTHORIZED USER'S USE IS FREE OF SUCH ITEMS AS VIRUSES, WORMS,
TROJAN HORSES AND OTHER ITEMS OF A DESTRUCTIVE NATURE. HEALTHSTREAM MAKES NO
REPRESENTATION OR WARRANTY AS TO ANY THIRD PARTY PRODUCTS OR SERVICES.
9. LIMITATION OF LIABILITY
IN NO CASE SHALL THE AMOUNT OF DAMAGES PAYABLE BY ANY PARTY TO THE OTHER PARTY
FOR ANY CLAIM ARISING FROM THE SERVICES OR THIS AGREEMENT (INCLUDING, WITHOUT
LIMITATION, ITS WARRANTY PROVISIONS) EXCEED THE AMOUNTS PAID BY IT&S TO
HEALTHSTREAM UNDER THIS AGREEMENT DURING THE INITIAL TERM.
10. INDEMNITY
10.1. Indemnity by HealthStream. HealthStream shall defend, indemnify and
hold IT&S, Providers and Authorized Users, their officers, directors,
employees, consultants and agents harmless from any loss, liability,
damage, cost, or expense (including reasonable counsel fees and
litigation costs), arising out of any claims or suits that may be made
or brought against IT&S by reason of the breach or alleged breach by
HealthStream of the warranties or representations contained herein, or
by reason of any infringement or alleged infringement of
Page 13 of 27
any patent, trademark, copyright or trade secret right resulting from
the Services provided herein. HealthStream shall have the sole right to
conduct the defense of any such claim or action and all negotiations
for its settlement or compromise, unless otherwise mutually agreed upon
in writing, or unless HealthStream fails to assume its obligation to
defend and IT&S is required to do so to protect its interests.
10.2. Indemnity by IT&S. IT&S agrees to indemnify, defend and hold harmless
HealthStream, its officers, directors, employees, consultants and
agents from any and all third party claims, liability, damages and/or
costs (including but not limited to reasonable attorney's fees) arising
from IT&S or any Authorized User's violation of the terms and
conditions hereunder, arising out of any claims or suits that may be
made or brought against HealthStream by reason of the breach or alleged
breach by IT&S of the warranties or representations contained herein,
or by reason that the content in the IT&S Courseware infringes any
patent, trademark, copyright or trade secret right. IT&S shall have the
sole right to conduct the defense of any such claim or action and all
negotiations for its settlement or compromise, unless otherwise
mutually agreed upon in writing, or unless IT&S fails to assume its
obligation to defend and HealthStream is required to do so to protect
its interests.
10.3 This Article 10 shall survive the termination, cancellation or
expiration of these terms and conditions.
11. TERM AND TERMINATION.
11.1. Term. This Agreement shall be in effect until the Expiration Date (the
"Initial Term") and shall be automatically renewed for additional one
(1) year periods unless notification by either party is provided
forty-five (45) days in advance of the Expiration Date. During any
renewal term, either party may terminate this Agreement at any time
upon forty-five (45) days notice to the other party.
11.2. Termination or Cancellation. This Agreement may be terminated or
canceled upon the occurrence of one or more of the following events:
11.2.1 by either party if the other party seeks protection under the
bankruptcy laws (other than as a creditor) or any assignment
is made for the benefit of creditors or a trustee is appointed
for all or any portion of such party's assets;
11.2.2 by either party in the event that the other party hereto has
materially breached this Agreement; provided, however, that no
such termination shall be effective unless (i) the terminating
party provides the written notice ("Termination Notice") via
overnight courier to the other party setting forth the facts
and circumstances constituting the breach, and (ii) the party
alleged to be in default does not cure such default within ten
(10) business days following receipt of the Termination
Notice. In the event that the nature of the default specified
in the Termination Notice cannot be reasonably cured within
ten (10) business days following receipt of the Termination
Notice, a party shall not be deemed to be in default if such
party presents a schedule mutually agreeable to the other
party (in its reasonable discretion), within such ten (10) day
period, to cure the default, commences curing such default and
thereafter diligently executes the same to completion within
six (6) months. If the breach specified in the Termination
Notice is timely cured or cure is commenced and diligently
pursued, as provided above, the Termination Notice shall be
deemed rescinded and this Agreement shall continue in full
force and effect. Notwithstanding the foregoing, all
Termination Notices for non-payment must be cured within
thirty (30) days of receipt.
Page 14 of 27
11.3 Breach of Service Level Agreement. In the event of a breach by
HealthStream of the representation set forth in Section 6.1.7, the
Annual Commitments and the Total Commitment shall be reduced to take
into account any inability for IT&S, Providers and Authorized Users
to access HealthStream Courseware for any period in excess of the
time allowed in Section 6.1.7.
11.4 Post Termination Obligations. In the event of termination of this
Agreement by HealthStream due to a default by IT&S, Providers or
Authorized Users, all fees previously due or owing by IT&S, Providers
and Authorized Users as of the date of termination will be immediately
due and payable in full. In the event of termination of this Agreement
by IT&S due to a default by HealthStream, HealthStream shall reimburse
IT&S for any amounts paid by IT&S, Providers or Authorized Users for
Services not provided prior to termination. This is in addition to any
other remedies available to the parties at law.
12. MISCELLANEOUS
12.1 STATUTE OF LIMITATIONS. EXCEPT FOR ANY CLAIM FOR INDEMINTY UNDER
ARTICLE 10, ANY ACTION OR CLAIM AGAINST HEALTHSTREAM FOR ANY DAMAGES
ARISING OUT OF, OR RELATING TO THE TERMS OF THIS AGREEMENT OR
HEALTHSTREAM'S OBLIGATIONS HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR
AFTER COMPLETION OF SERVICES THAT ARE THE SUBJECT MATTER OF THE CLAIM.
12.2 Attorneys' Fees. In the event of breach by either party of any
provision contained in this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and costs incurred
in enforcement of the provisions of this Agreement against the
defaulting or breaching party.
12.3 Headings. Captions and headings to sections are included solely for
convenience and are not intended to affect the interpretation of any
provision of this Agreement.
12.4 Amendments in Writing. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth
in a writing that refers to this Agreement, expressly indicating an
intent by the parties to amend this Agreement and is executed by an
authorized representative of each party hereto. No failure or delay by
any party in exercising any right, power, or remedy will operate as a
waiver of any such right, power, or remedy.
12.5 Survival of Terms. Any provisions of this Agreement which by their
nature must survive termination in order to achieve the intent of the
parties, shall be deemed to survive termination.
12.6 Third Party Rights. Except for Providers and Authorized Users, this
Agreement is not intended and shall not be construed to create any
rights for any other third party.
12.7 Force Majeure. Neither party shall be liable nor deemed to be in
default of its obligations hereunder for any delay or failure in
performance under this Agreement or other interruption of service
resulting, directly or indirectly, from acts of God, civil or military
authority, act of war, accidents, natural disasters or catastrophes,
strikes, or other work stoppages or any other cause beyond the
reasonable control of the party affected thereby. However, each party
shall utilize it best good faith efforts to perform such obligations to
the extent of its ability to do so in the event of any such occurrence
or circumstances. If a single force majeure condition causes a delay or
failure in performance under this Agreement or other interruption of
service exceeding ninety (90) days, the non-affected party may
terminate subject to the requirements of Section 11.2.2 herein above by
providing a Termination Notice to the affected party.
Page 15 of 27
12.8 Independent Contractors. Each party to this Agreement is an independent
contractor and this Agreement shall not be construed as creating a
joint venture, partnership, agency or employment relationship between
the parties hereto nor shall either party have the right, power or
authority to create any obligation or duty, express or implied, on
behalf of the other.
12.9 Insurance. HealthStream shall maintain liability coverage for errors
and omissions with coverage of at least $1,000,000 per incident and
$2,000,000 in the aggregate. At the request of IT&S, HealthStream shall
provide a copy of the certificate of insurance. IT&S shall be promptly
notified at least thirty (30) days prior to any cancellation of policy
or reduction in coverage below the required amounts specified in this
Section 12.9.
12.10 Governing Law. This Agreement shall be governed by the laws of the
State of Tennessee without regard to its choice of law provisions.
12.11 Entire Agreement; Severability. This Agreement, together with the
schedules and other attachments referenced herein, contains a full and
complete expression of the rights and obligations of the parties
hereto. If any provision of this Agreement conflicts with any schedule
or attachment to this Agreement, this Agreement shall control with
respect to the subject matter of such attachment. This Agreement
supersedes any and all other previous agreements, written or oral, made
by the parties concerning the subject matter hereof including the
Online Education Services Provider Agreement dated February 10, 2000,
as amended. If any provision of this Agreement is finally held by a
court or arbitration panel of competent jurisdiction to be unlawful,
the remaining provisions of this Agreement shall remain in full force
and effect to the extent that the parties' intent can be lawfully
enforced. Without limiting the generality of the foregoing, it is
expressly agreed that the terms of any IT&S or Provider purchase order
will be subject to the terms of this Agreement and that any acceptance
of a purchase order by HealthStream will be for acknowledgment purposes
only and none of the terms set forth in the purchase order will be
binding upon HealthStream.
12.12 Notice. All notices required hereunder (except invoice or purchase
orders as provided herein) shall be in writing and shall be deemed to
have been duly given upon receipt, and shall be either delivered in
person, by registered or certified mail, postage prepaid, return
receipt requested, or by overnight delivery service with proof of
delivery, and addressed as follows:
To HealthStream: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Vice President and General Counsel
HealthStream, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To IT&S: Director, I/S Contracts
IT&S Information Technology & Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
and to: General Counsel
IT&S, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
12.13 Publicity. HealthStream and IT&S agree not to advertise or to use the
other party's name in any advertising, except as contemplated by this
Agreement or as may be required by law, without first obtaining written
consent from the other party, which consent shall not be unreasonably
withheld.
Page 16 of 27
12.14 Assignment, Subsidiaries, and Successors. It is understood and agreed
that the parties are entering into this Agreement not only for their
own benefit but also and equally for the direct benefit of their
subsidiaries and affiliates, present and future, and that each and
every right, benefit, remedy, and warranty accruing to the parties
hereunder likewise accrue to the subsidiaries and affiliates of the
parties, including but not limited to the right to enforce this
Agreement in their respective names. This Agreement shall inure to the
benefit of and be binding on any respective successors and permitted
assigns of the parties.
12.15 Change of Control. IT&S shall have the right to terminate this
Agreement in its entirety or with respect to certain Services, upon
thirty (30) days' prior notice in the event that more than 49%
ownership interest in HealthStream or its ultimate parent or any such
permitted assignee is transferred to an independent third party entity
(a "Change of Control"), in the event such transferee or assignee is or
is owned by an entity that owns or operates hospitals. HealthStream
shall not assign this Agreement in whole or in part to an unrelated
entity without the prior written consent of IT&S, which consent will
not be unreasonably withheld; provided, however, that no consent is
required if this Agreement is assigned or deemed assigned by operation
of law as part of a Change of Control, or if the Agreement is assigned
or deemed assigned as part of a transaction involving the transfer of
all or substantially all of the assets of HealthStream to an entity
that does not own or operate hospitals as set forth above.
12.16 Books and Records. Pursuant to the requirements of 42 CFR 420.300 et
seq., HealthStream agrees to make available to the Secretary of HHS,
the Comptroller General of the Government Accounting Office ("GAO") or
their authorized representatives, all contracts, books, documents and
records necessary to verify the nature and extent of the costs of the
services provided hereunder for a period of four (4) years after the
furnishing of services hereunder for any and all services furnished
under this Agreement. In addition, HealthStream hereby agrees to
require by contract that each subcontractor makes available to the HHS
and GAO, or their authorized representative, all contracts, books,
documents and records necessary to verify the nature and extent of the
costs of the services provided thereunder for a period of four (4)
years after the furnishing of services thereunder. HealthStream agrees
to comply at all times with the regulations issued by HHS, published at
42 CFR 1001, and which relate to HealthStream's obligation to report
and disclose discounts, rebates and other reductions to IT&S for
products purchased by IT&S under this Agreement. If HealthStream
carries out the duties of this Agreement through a subcontract worth
$10,000 or more over a twelve month period with a related organization,
the subcontract will also contain a clause substantially identical to
those contained in the foregoing sections of this Agreement to permit
access by IT&S, the Secretary, the United States Comptroller General
and their representatives to the related organization's books and
records. IT&S rights under this Section shall survive for a period of
four (4) years after termination or expiration of this Agreement.
12.17 Federal Healthcare Programs. HealthStream represents and warrants to
IT&S, Providers and their Affiliates that HealthStream and its
directors, officers, and employees (i) are not currently excluded,
debarred, or otherwise ineligible to participate in the Federal health
care programs as defined in 42 USC ss. 1320a-7b(f) (the "Federal
healthcare programs"); (ii) have not been convicted of a criminal
offense related to the provision of healthcare items or services but
have not yet been excluded, debarred, or otherwise declared ineligible
to participate in the Federal healthcare programs, and (iii) are not
under investigation or otherwise aware or any circumstances which may
result in HealthStream being excluded from participation in the Federal
healthcare programs. This shall be an ongoing representation and
warranty during the term of this Agreement and HealthStream shall
immediately notify IT&S of any change in the status of the
representations and warranty set forth in this section. Any material
breach of this section shall give IT&S the right to terminate this
Agreement immediately for cause.
Page 17 of 27
12.18 Audit and Reporting. IT&S shall have the right, during normal business
hours and with reasonable advance notice, to review and photocopy
HealthStream's books and records that pertain directly to the accounts
of IT&S, Providers, or Authorized Users. The audit may be conducted by
IT&S's employees or by an external auditing firm selected by IT&S. The
cost of audit, including the cost of the auditors and reasonable cost
of copies of books and records shall be paid by IT&S. IT&S shall have
no obligation to pay the cost incurred by employees and agents of
HealthStream in cooperating with IT&S in such audit. IT&S does not have
the right to review the books and records that pertain to the accounts
of other HealthStream customers or business partners. IT&S may not
conduct more than one such audit per year. Any personnel of IT&S shall
sign a mutually agreeable confidentiality agreement before such audit
is done.
12.19 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which
together shall constitute one and the same instrument.
12.20 Information System Security Policy. HealthStream acknowledges that IT&S
and its affiliates have an Information System Security Policy
(IS.SEC.001 et seq.) relating to the establishment of security measures
to protect information assets, whether stored in electronic form, hard
copy, or in any other manner, and that it has received a copy of this
policy. The Information System Security Policy is also available
through IT&S's Internet website at:
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇. HealthStream
agrees to comply with the applicable provisions of this Information
System Security Policy, as well as Information System Security
Standards referenced in the Policy. HealthStream acknowledges that the
legal, technical, or business requirements for security of Protected
Health Information may change and that IT&S shall have the right to
require new policies, processes and procedures, or to require
modifications to existing policies, processes and procedures during the
term of this Agreement. HealthStream shall either contact in writing
the appropriate IT&S representative responsible for the transaction
under this Services Agreement or check the above listed website address
(or its subsequent replacement) at least on a semiannually basis for
the purpose of inquiring as to and/or obtaining any updates to the
Information System Security Policy and the Information System Security
Standards. Upon receipt of revisions, HealthStream shall submit a plan
to IT&S to mitigate security risks associated with the policy and/or
standard revisions. In the event that HealthStream can demonstrate that
such new or modified requirements would impose inordinate costs on
HealthStream, HealthStream shall provide IT&S with written notice,
describing in detail the requirement at issue, and HealthStream's
calculation of the cost of implementation. Within thirty (30) days of
receiving such notice, IT&S may then suggest lower cost implementations
or waiving compliance in whole or part with the requirement . IT&S and
HealthStream agree that best security practices (e.g., National
Institute of Standards and Technology) shall be used as the basis for
evaluating a risk mitigation plan.
Page 18 of 27
IN WITNESS WHEREOF, and intending to be legally bound hereby, each
party hereto warrants and represents that this Agreement has been duly
authorized by all necessary corporate action and that this agreement has been
duly executed by and constitutes a valid and binding agreement of that party.
All signed copies of this Agreement shall be deemed originals.
HealthStream, Inc.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
HCA Information Technology & Services, Inc.
By:
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Page 19 of 27
LIST OF EXHIBITS
Exhibit A: Gateway Initialization Services
Exhibit B: Invoice Detail Report Format
Exhibit C: Courses Included in Learning and Administrative Services Fee
Exhibit D: List of Reports
Exhibit E: Work Order Template
Page 20 of 27
EXHIBIT A
GATEWAY INITIALIZATION SERVICES
HealthStream's Gateway Initialization Services will consist of the following
processes required to make each Gateway operational. The processes below are not
chronologically organized; selected processes below may be managed concurrently.
Additional processes may be required to ensure each Gateway is made operational
rapidly and efficiently.
1. Gateway Customization - HealthStream will modify each Provider Gateway
such that the name and or logo appear at the top of each page (except
pages used to display courseware). In addition, Provider Specific
Information will be used in textual format as applicable in the
Gateway.
Deliverables from Provider to complete Gateway Customization:
- Provide Provider logo (or name) for display on Gateway.
- Provide Provider name, parent company name, address, division,
region, phone number, etc. (the "Provider Specific
Information") for use as needed in Gateway.
- Approve Provider logo and Provider Specific Information in
Gateway.
2. User Import - HealthStream will import Provider Personal Information
into the database so that each Authorized User is recognized by the
Gateway.
Deliverables from Provider to complete User Import:
- Provide Personal Information for each Authorized User (per
separate specification).
- Approve integrity of Personal Information imported into the
database.
3. Administrative Orientation - HealthStream will provide an overview of
Gateway operation and administrative procedures to IT&S for IT&S to
provide to Provider personnel.
Deliverables from Provider to complete Administrative Orientation:
- Ensure key personnel from each Provider attend a HealthStream
Administrative Orientation sessions.
4. Gateway Pilot - HealthStream will facilitate a brief pilot of the
Gateway prior to use by the complete population of Authorized Users for
a given Provider. This pilot will ensure that Provider specific data is
operating as expected within the Gateway.
Deliverables from Provider to complete Gateway Pilot:
- Ensure computer hardware with appropriate software and
internet connection (per separate specification) is
operational at Provider's location.
- Ensure Provider administrative personnel test Gateway
performance (in conjunction with HealthStream personnel and
pilot processes).
Page 21 of 27
EXHIBIT B
INVOICE DETAIL REPORT FORMAT
The format below will be used by HealthStream in submitting invoice detail
reports on Services Fees. Each monthly invoice detail report will be comprised
of multiple transaction records. Each transaction record shall be a line of text
that is 110 continuous characters in length and will correspond to each Services
transaction that triggered a corresponding Service Fee. The character by
character standard for transaction records is outlined below.
Services Fees paid by Authorized Users directly pursuant to Section 3.4 will not
be included in the invoice detail report, but will be detailed in a separate
monthly report.
Character Item Length
Item Description IT&S Code Fixed Value Locations in Characters
---------------- --------- ----------- --------- -------------
1. Unit Number Pic X(05) 01-05 5
2. Type Pic X(01) 2 06 1
3. Incurred Month Pic 9(02) 07-08 2
4. Incurred Day Pic 9(02) 09-10 2
5. End Date (ccyymCMEd) Pic X(08) 11-18 8
6. Description Pic X(35) 19-53 35
7. Action Pic X(01) A 54 1
8. Charge Amount Pic $9(09)(cent)9(02) 55-65 2
9. Indicator Pic X(01) S 66 1
10. Cost Center Pic 9(04) 8888 67-70 4
11. Project Code Pic 9(03) 180 71-73 3
12. Display Pic ▇(▇▇) ▇▇▇▇▇▇▇▇▇▇ 74-83 10
13. GL Account Number Pic 9(06) 701831 84-89 6
14. Revenue Code Pic 9(03) 026 90-92 3
15. Filler Pic X(18) 000000000000000000 93-110 18
Notes:
A. Where a specific fixed value is listed, the exact number and/or letter
listed above must appear in the designated character locations for that
item. If no fixed value is provided, HealthStream shall insert the
appropriate information using the entire number of characters
permitted.
B. For Item 6 above, any unused characters are to be filled with "space"
characters so that Item 6 is 35 characters in length.
C. For Item 8 above, the first nine characters apply to the dollar amount
and the last two characters shall be the cents. There is no decimal
point. Zeros are to be used where no number is available for the
character, e.g., a charge of $101.59 will be recorded as "00000010159".
Page 22 of 27
EXHIBIT C
COURSES INCLUDED IN LEARNING AND ADMINISTRATIVE SERVICE FEES
REGULATORY COURSES
- Clinical
Blood Product Administration Part I
Blood Product Administration Part II
- Ergonomics
Carpal Tunnel Syndrome
Lifting and Transporting Patients
Preventing Slips, Trips and Falls
Working Safely with Your Back
- Infection Control
Standard Precautions: Blood and Body Fluids
Transmission Precautions: Airborne
Transmission Precautions: Contact and Droplet
- Management of the Environment of Care
Age Specific Competencies: Adults
Age Specific Competencies: Infants to Adolescents
Electrical Safety
Emergency Preparedness
Fire Safety
General Safety
Introduction to Latex Allergy
Patient Restraint and Seclusion
Patient Rights
Security and Workplace Violence
Working Safely with Hazardous Chemicals
- Management of Human Resources
The Art of Customer Service
Diversity in the Workplace
- Safety Management
Radiation Safety
- Performance Improvement
Corporate Compliance
Introduction to Performance Improvement
Performance Improvement in the Workplace
Sexual Harassment in the Workplace
THIRD-PARTY COURSEWARE
CENTER FOR MEDICARE AND MEDICAID SERVICES (CMS), PREVIOUSLY THE HEALTH CARE
FINANCING ADMINISTRATION, OR HCFA
Free of charge, HealthStream provides CMS compliance courses for any customer.
These courses cannot be used for HealthStream's commercial gain. Customers
should be made aware of their availability, but the courses should not be tied
to any incentives, products or statements, which could be construed as using the
course series for HealthStream's financial benefit.
Page 23 of 27
Fraud and Abuse
HCFA-1500
ICD-9-CM Diagnosis Coding
Adult Immunization
Medicare as a Secondary Payer (MSP)
Women's Health
Front Office Management
World of Medicare
Home Health Agency
HCFA-1450 (UB92)
Page 24 of 27
EXHIBIT D
REPORTS
Student Transcripts
Course Completion (Compliance)
Student Job Mapping
Instructor Resumes
Student Listing
Instructor led / Classroom Course Catalog
Instructors Scheduled Classes
HCA Custom Consolidated Education Compliance
ECO Quarterly Education Statistics (contracted by HCA and under development by
Healthstream)
Page 25 of 27
EXHIBIT E
WORK ORDER
HCA - Information, Technology & Services, Inc. ("IT&S") and HealthStream, Inc.
("HealthStream") agree that this work order is entered into as part of their
Educational Services Provider Agreement dated ______________ (the "Agreement")
for the purpose of having HealthStream provide the services set forth in Section
1 below. Terms not defined in this Work Order shall have the meanings ascribed
to them in the Agreement.
1. Title of Work:
2. Scope of Work: [provide as much detail as necessary to
describe the work being contracted, project descriptions or
any other information as to clarify the work or services being
contracted. Attached detailed statement of work or
specification if appropriate.]
3. Development Cost to IT&S:
4. Cost for Use: Included in Learning and Administrative Services
Fee.
5. Out of Pocket Expenses: IT&S shall pay all of Contractor's
out-of-pocket expenses; provided, however, no out-of-pocket
expenses in excess of $500 in the aggregate incurred by
Contractor shall be paid by IT&S unless previously agreed to
in writing by IT&S.
6. Delivery Schedule:
7. Ownership of Work Product:
8. Performance bonus: If HealthStream completes the required Work
under this Work Order within the Delivery Schedule stated
herein, IT&S agrees to pay HealthStream a performance bonus
equal to ________ percent ( %) of the Development Cost stated
above. [optional as additional or alternative language: If
HealthStream delivers the Work Product more than ___________
days following the date stated in the Delivery Schedule, then
the amount of the Development Cost shall be reduced by
____________ percent ( %) per week it is late in delivery.]
9. In the event of a conflict between the Terms of the Agreement
and the Terms of this Work Order, the Terms of this Work Order
shall control.
The parties identified herein indicate their acceptance of the terms in the
above identified Professional Services Agreement and this Work Order by the
signatures of their authorized representatives.
ACCEPTED BY IT&S: ACCEPTED BY HEALTHSTREAM:
HCA - INFORMATION TECHNOLOGY & HEALTHSTREAM, INC.
SERVICES, INC.
By: By:
------------------------------------ ------------------------------
(Signature) (Signature)
By: By:
------------------------------------ ------------------------------
(Printed/Typed) (Printed/Typed)
Page 26 of 27
Title: Title:
---------------------------------- ------------------------------
Date: Date:
---------------------------------- ------------------------------
Page 27 of 27