EXHIBIT 10.36
[GRAPHIC] CO-BRANDED CHOICE-TM- WEB SITE AGREEMENT
THIS CO-BRANDED CHOICE WEB SITE AGREEMENT ("Agreement") dated as of November
2, 1999, entered into by and between Columbia Information Systems, Inc.
("Licensee"), a Tennessee corporation with a notice address of ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and HealthGate Data Corp. ("HealthGate"), a
Delaware corporation with a notice address of ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, HealthGate provides access to information products and services
through the Internet using its proprietary CHOICE platform;
WHEREAS, HealthGate and Licensee wish to enter into an agreement providing
for the licensing of certain of HealthGate's products and services through a
health portal site and the CHOICE Web Sites.
NOW, THEREFORE, in consideration of the mutual promises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following terms shall have the following meanings:
1.1. "Affiliated Providers" shall mean C/HCA Providers, Triad Providers, or
LifePoint Providers.
1.2. "Authorized Users" shall mean (i) Licensee, (ii) Affiliated Providers and
HPG Members to which Licensee provides the HealthGate Products under this
Agreement, (iii) persons who access portions of the HealthGate Products
that may require user registration and authentication in compliance with
HealthGate's software licenses, and (iv) persons who access portions of
the HealthGate Products that may not require user registration and
passwords.
1.3. "C/HCA Providers" shall mean those healthcare providers owned, controlled
or operated by any entity owned or controlled by Columbia/HCA Healthcare
Corporation.
1.4. "CHOICE Web Sites" shall mean the eight (8) co-branded template web sites
designed, developed, and maintained for Licensee in accordance with this
Agreement.
1.5. "Confidential Information" shall mean the identity of patients, the
content of medical records, financial and tax information, information
regarding Medicare and Medicaid claims submission and reimbursements,
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.
1.6. "Expiration Date" shall mean November 1, 2002.
1.7. "GAO" shall mean the Government Accounting Office.
1.8. "HealthGate Products" shall mean the Portal, the CHOICE Web Sites, and
any customized CHOICE Web Site provided under this Agreement for an
Affiliated Provider or HPG Member as described in SCHEDULES A, B, AND C.
1.9. "HHS" shall mean the Department of Health and Human Services.
1.10. "HealthGate Trademarks" shall mean HealthGate's name, logos, trademarks,
servicemarks, and trade dress created or used by HealthGate.
1.11. "HPG Members" shall mean HealthTrust Purchasing Group, L.P. and
healthcare providers which are or become members of HealthTrust
Purchasing Group, LP.
1.12. "Information" shall mean that content and services provided by or through
HealthGate under this Agreement as set forth on SCHEDULE C.
1.13. "Information Partners" shall mean those entities that have licensed
HealthGate certain information or content included in the Information.
1.14. "Licensee Trademarks" shall mean Licensee's name, logos, trademarks,
servicemarks, and trade dress created or used by Licensee.
1.15. "LifePoint Providers" shall mean those healthcare providers owned,
controlled, or operated by any entity owned or controlled by LifePoint
Hospitals, Inc.
1.16. "Net Advertising Revenues" shall mean all advertising and sponsorship
monies received for advertising or sponsorship placements on the
HealthGate Products less the cost of preparing such displays or
placements, agency discounts, frequency discounts, sales commissions,
any other third party obligations or revenue sharing commitments, and any
sales or use taxes, if applicable, related to such advertising and
sponsorship placements.
1.17. "Net E-Commerce Revenues" shall mean the revenue for all products sold
through a customized CHOICE Web Site provided under this Agreement for
an Affiliated Provider or HPG Member less the cost of such product,
including the manufacturing, shipping, and storage of such product,
agency discounts, frequency discounts, sales commissions, any other third
party obligations or revenue sharing commitments, and any sales or use
taxes, if applicable, related to such product revenue.
1.18. "Portal" shall mean the co-branded health portal site designed,
developed, and maintained for Licensee in accordance with this Agreement.
1.19. "Provider Content" shall mean content developed, owned, or licensed by an
Affiliated Member of HPG Member and provided by the applicable Affiliated
Member or HPG Member to HealthGate.
1.20. "Related Materials" shall mean the software and content and materials
associated with the HealthGate Products, used to provide the Information.
1.21. "Termination Notice" shall mean a written notice of termination.
1.22. "Triad Providers" shall mean those healthcare providers owned,
controlled, or operated by any entity owned or controlled by Triad
Hospitals, Inc.
2. HEALTH PORTAL SITE; CO-BRANDED CHOICE WEB SITE; AUTHORIZED USERS; LICENSE;
PROHIBITED ACTIONS
2.1. HEALTH PORTAL SITE. HealthGate shall design, develop, and maintain the
Portal on the World Wide Web that can be accessed by Authorized Users for
Licensee in accordance with the functional requirements listed in SCHEDULE
A. The Portal shall be co-branded with both the Licensee's Trademarks and
HealthGate's Trademarks, in a manner acceptable to both parties.
2.2. CO-BRANDED CHOICE WEB SITE. HealthGate shall design, develop, and maintain
the CHOICE Web Sites for Licensee that can be accessed by Authorized Users
in accordance with the functional requirements listed in SCHEDULE B. The
CHOICE Web Sites shall be co-branded with both the Licensee's Trademarks
and HealthGate's Trademarks, in a manner acceptable to both parties.
2.3 CONTENT AND SERVICE. HealthGate shall provide to the Portal and/or for the
CHOICE Web Sites the content and services outlined in SCHEDULE C. Licensee
may use up to two thousand and eighty (2080) hours of HealthGate
development time (averaging forty (40) hours per week over fifty-two (52)
weeks) in the aggregate for developing the Portal and the CHOICE Web Sites.
2.4 LICENSE.
(a) HealthGate grants to Licensee a non-exclusive, non-transferable
license to provide access to the Information through the HealthGate
Products to Authorized Users. The rights granted by HealthGate shall
be for Licensee to use the HealthGate Products for itself, C/HCA
Providers, LifePoint Providers,
Triad Providers, and HPG Members. The maximum number of healthcare
providers to which Licensee can provide the HealthGate Products
shall be limited to a total of two hundred and eighty (280)
Affiliated Providers; provided, however, if Licensee provides any
HealthGate Products to any HPG Member, the total number of
healthcare providers to which Licensee can provide Healthcare
Products shall be limited to two hundred and fifty (250) healthcare
providers among Affiliated Providers and HPG Members.
(b) The Information and the Related Materials are the property of
HealthGate or an Information Partner and is protected by applicable
laws. Licensee shall abide by and shall use commercially reasonable
efforts to cause Authorized Users to abide by all copyright notices,
information, or restrictions contained in any Information accessed
through the HealthGate Products.
(c) Any rights not expressly granted in this Agreement with regard to
the HealthGate Products, the Information, and the Related Materials
are reserved to HealthGate and its Information Partners.
2.5 PERMITTED USES. During the term of this Agreement, Licensee and its
Authorized Users may:
(a) make searches of and access the Information;
(b) make a very limited number of hard copies of any search output that
does not contain a significant segment of a database, which copies
may be used only internally but may not be sold, provided that all
copyright and other notices contained in such Information are
maintained.
(c) make one copy of any search output in electronic form (i.e. diskette,
hard disk, or tape) to be used for editing or temporary storage only,
provided that all copyright and other notices contained in such
Information are maintained.
With respect to subsection 2.5(b), provided that Licensee, Affiliated
Providers, and HPG Members, and their respective physicians, employees,
agents, contractors, and subcontractors, (collectively, "Affiliated Users")
shall use commercially reasonable efforts to ensure that Authorized Users
who are not Affiliated Users abide by this provision and shall promptly
report to HealthGate any suspected or actual violations of subsection
2.5(b), Licensee and its Affiliated Users shall not be liable for any
breach of subsection 2.5(b) by Authorized Users who are not Affiliated
Users.
2.6 PROHIBITED ACTIONS. Licensee agrees that it is prohibited from and shall
not:
(a) de-compile or reverse engineer the HealthGate Products, the
Information, or any of the Related Materials;
(b) sell, re-license, distribute or commercially exploit the Information
or any of the Related Materials except as set forth in Sections 3.2
and 3.3 below.
(c) except as specifically permitted herein, make the Information
available through any means or media other than the HealthGate
Products;
(d) except as specifically permitted herein, modify, publish, transmit,
participate in the license, transfer or sale of, reproduce, create
derivative works from, distribute, perform, display, or in anyway
exploit the HealthGate Products, the Information or any of the Related
Materials, in whole or in part, without the prior written consent of
HealthGate.
DEVELOPMENT AND DELIVERY OF THE HEALTHGATE PRODUCTS
3.1 Delivery dates for the HealthGate Products are set forth on SCHEDULE D.
3.2 The HealthGate Products shall be designed to provide advertising and
sponsorship messages from commercial vendors to Authorized Users. Both
parties shall cooperate on obtaining advertising and sponsor messages and
on providing e-commerce opportunities on the Portal or a customized CHOICE
Web Site provided under this Agreement for an Affiliated Provider or HPG
Member. HealthGate shall have the exclusive right to sell and serve
advertising, sponsorship and e-commerce opportunities on the HealthGate
Products. Licensee shall have the right to approve all advertising,
sponsorship, and e-commerce opportunities on the Portal or customized
CHOICE Web Site provided under this Agreement for an Affiliated Provider
or HPG Member, including the method for displaying or causing the
advertising to be displayed, which approval shall not be unreasonably
withheld. HealthGate shall provide notice at least five (5) business days
before release of such messages by HealthGate and Licensee must approve
such messages within three (3) days of receipt of such notice otherwise
Licensee will be deemed to have approved any such message.
3.3 The HealthGate Products shall be designed to provide Licensee the
opportunity to serve promotional messages to Authorized Users. All such
messages shall be administered by HealthGate on behalf of Licensee.
HealthGate shall have the right to approve such promotional messages,
which approval shall not be unreasonably withheld. HealthGate shall
provide notice at least five (5) business days before release of such
messages by HealthGate and Licensee must approve such messages within
three (3) days of receipt of such notice otherwise Licensee will be deemed
to have approved any such message.
4. MARKETING AND RE-SELLING SITES
4.1 Licensee shall have the right to market and provide HealthGate Products
and services covered under this Agreement to Affiliated Providers and HPG
Members. HealthGate shall not market HealthGate Products and services
directly to the Affiliated Providers.
4.2 Any Affiliated Provider or HPG Member facility which is sold to an
independent third party may continue to utilize the HealthGate Products
provided Licensee is providing data processing services to such divested
entity. If Licensee is not continuing to provide data processing services
to such divested entity, then such entity shall have the right to continue
to use the HealthGate Products for the remainder of the current year, or
ninety (90) days, whichever is longer. After such time, the entity will
have to obtain its own license.
5. ACTIVEPRESS LIGHT WEB PUBLISHING SERVICES
5.1 HealthGate shall provide, at no additional charge, the following
activePress Light modules for the purpose of hosting and providing access
to Provider Content for up to fifty (50) Affiliated Providers and HPG
Members: content normalization, "linkMEDLINE" (links to the MEDLINE
database from article bibliographies), content review, content release, and
content access and control.
5.2 HealthGate shall provide all redundant hardware and software required for
activePress Light at the HealthGate facilities.
5.3 HealthGate shall provide, maintain, and upgrade as necessary all system
administration tools, Internet connections, and applicable bandwidth
required for activePress Light.
5.4 HealthGate shall make the Provider Content available through the Portal or
applicable customized CHOICE Web Site provided under this Agreement for an
Affiliated Provider or HPG Member utilizing activePress Light.
5.5 HealthGate shall provide a secure connection for uploading the Provider
Content to activePress Light on a monthly basis. HealthGate shall integrate
the Provider Content into activePress Light and then release the Provider
Content on the Web at a day and time to be determined by the applicable
Affiliated Provider or HPG Member. The applicable Affiliated Provider or
HPG Member shall provide each issue of the Provider Content in a
pre-defined tagged format, which shall be mutually agreed upon by Licensee
and HealthGate, at least five (5) business days prior to the designated Web
release date. The applicable Affiliated Provider or HPG Member shall be
responsible for all quality assurance for the actual content within the
five (5) business days.
5.6 HealthGate will create space for advertising banners on each page of the
Provider Content. Both parties shall cooperate on obtaining advertising
messages for the banners. HealthGate shall have the exclusive right to sell
and serve advertising on the banners. The applicable Affiliated Provider or
HPG Member shall have the right to approve all advertising on the banners,
including the method for displaying or causing the advertising to be
displayed, which approval shall not be unreasonably withheld. HealthGate
shall provide notice at least five (5) business days before release of such
messages by HealthGate and Licensee must approve such messages within three
(3) days of receipt of such notice otherwise Licensee will be deemed to
have approved any such message.
5.7 HealthGate, acting as an agent on behalf of the applicable Affiliated
Provider or HPG Member, shall have the right to sell individual articles
and subscriptions to the Provider Content through its own Web sites in a
manner that shall be mutually agreed upon by the parties.
6. FEES
6.1 LICENSE FEES. Annual fees payable by Licensee to HealthGate are set forth
in SCHEDULE E.
6.2 ADVERTISING AND SPONSORSHIP. As set forth in SCHEDULE E, Licensee shall
receive a commission based on Net Advertising Revenues and Net E-Commerce
Revenues.
6.3 ADJUSTMENTS IN FEES. The annual license fee due hereunder and set forth in
SCHEDULE E may be subject to an adjustment prior to the Expiration Date.
6.3.1 MOST FAVORED NATION PRICING TERMS. If HealthGate provides the same
HealthGate Product to another licensee at prices less than the prices
being paid by Licensee for all Affiliated Providers and HPG Members,
HealthGate and Licensee shall mutually agree to an appropriate
reduction in the price; provided, however the reduced price shall not
be less than the price paid by the other licensee.
6.3.2 DECREASE IN NUMBER OF CHOICE WEB SITES. If after full implementation
of this Agreement, the aggregate number of customized CHOICE Web
Sites provided under this Agreement for the Affiliated Providers
(including divested facilities where Licensee continues to provide
data processing services) falls below or is below two hundred (200)
facilities, the annual license fee will be reduced by $145,000 per
each reduction of ten (10) providers until the annual license fee is
$2,500,000; provided, however, that if the total number of Affiliate
Providers increases and exceeds two hundred and eighty (280)
providers, the annual fee will be increased by $145,000 per each
increase of ten (10) providers.
6.4 FEES RELATED TO ADDITIONAL PRODUCTS AND SERVICES. Notwithstanding anything
to the contrary contained in the fee adjustment procedures described in
this Agreement or the fee schedule set forth in SCHEDULE B, any
modification to the Information and/or the HealthGate Products, which are
requested by Licensee, may be accompanied by additional fees as determined
by HealthGate, and approved in writing by Licensee prior to initiation of
such modification. If HealthGate initiates a modification on its own
initiative without a request by Licensee, then there will be no additional
costs or fees for such modification prior to the Expiration Date.
6.5 LATE FEES. Any payment not received within ten (10) days of its due date
shall accrue interest at the rate of one and a half (1.5) percent per
month; provided, however, if such rate is not then lawful, any such payment
shall accrue interest at the highest lawful rate then available.
7. TERM AND TERMINATION
7.1 TERM. This Agreement shall be effective from the date first set forth above
until the Expiration Date, unless otherwise terminated as provided
hereunder.
7.2 TERMINATION WITHOUT CAUSE. Licensee shall have the right to terminate this
Agreement without cause on June 1, 2001; provided, however, that no
such termination shall be effective unless (i) Licensee provides a
Termination Notice via overnight courier to HealthGate and (ii) Licensee
remits $1,000,000 to HealthGate.
7.3 TERMINATION FOR BREACH. Either party shall have the right to terminate this
Agreement 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 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 shall, within
such ten (10) day period, present a schedule to cure the default, commences
curing such default and thereafter diligently executes the same to
completion within six 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 with thirty (30) days of receipt. In the
event the default specified in the Termination Notice cannot be reasonably
cured at all, a party shall be deemed to be in default.
7.4 POST TERMINATION OBLIGATIONS. In the event of termination of this Agreement
by any party, all fees previously due or owing by any party as of the date
of termination will be immediately due and payable in full.
8. HEALTHGATE TRADEMARKS AND TRADEMARKS OF OTHERS
8.1 HEALTHGATE TRADEMARKS. Notwithstanding the limited right to use the
HealthGate Trademarks on the HealthGate Products, Licensee recognizes and
acknowledges HealthGate is the sole owner of the HealthGate Trademarks; and
all rights therein and the goodwill pertaining thereto belong exclusively
to HealthGate. Accordingly, any use by Licensee of the HealthGate Products,
or of any HealthGate Trademarks pursuant to this Agreement, shall be
subject to HealthGate's approval, which HealthGate may deny or revoke at
any time if in HealthGate's sole judgment such use is not consistent with
the goodwill otherwise associated with the HealthGate Trademarks. Neither
this Agreement nor any rights granted hereunder will operate as a transfer
to Licensee or the HealthGate Products of any rights in or to any
HealthGate Trademark, except for the limited rights expressly granted under
this Agreement.
8.2 LICENSEE TRADEMARKS. Notwithstanding the limited right to use the Licensee
Trademarks on the HealthGate Products, HealthGate recognizes and
acknowledges Licensee is the sole owner of the Licensee Trademarks; and all
rights therein and the goodwill pertaining thereto belong exclusively to
Licensee. Accordingly, any use by HealthGate of the Licensee Trademarks
pursuant to this Agreement, shall be subject to Licensee's approval, which
Licensee may deny or revoke at any time if in Licensee's sole judgment such
use is not consistent with the goodwill otherwise associated with the
Licensee Trademarks. Neither this Agreement nor any rights granted
hereunder will operate as a transfer to HealthGate of any rights in or to
any Licensee Trademark, except for the limited rights expressly granted
under this Agreement.
8.3 THIRD PARTIES' TRADEMARKS. In entering into this license to Licensee,
HealthGate is also acting on behalf of its Information Partners.
9. WARRANTY, INDEMNIFICATION AND LIMITATION OF WARRANTIES AND LIABILITY
9.1 WARRANTY.
9.1.1 HealthGate warrants to Licensee that it has the full legal right to
grant the license granted under this Agreement. HealthGate warrants
to Licensee that the HealthGate Products, in the forms delivered to
Licensee by HealthGate and when properly used for the purpose and in
the manner specifically authorized by this Agreement do not infringe
upon any patent, copyright, or trademark and do not misappropriate a
trade secret or other proprietary right of any person. To the extent
HealthGate has received a warranty of title from a Licensor with
respect to any specific intellectual property, HealthGate hereby
warrants to Licensee that it or its licensor has title to such
intellectual property only.
9.1.2 HealthGate warrants to Licensee that for a period of ninety (90) days
from the date of delivery of the HealthGate Products or an upgrade
thereto to Licensee that the HealthGate Products shall substantially
perform in accordance with Licensee's specifications; provided,
however, that any ninety (90) day warranty period for an update shall
only apply to that update and not to the HealthGate Product otherwise
existing as of the date of the upgrade. Licensee's sole and exclusive
remedy for breach of this warranty shall be for HealthGate to modify
or correct the HealthGate Products. This warranty shall not apply to
any HealthGate Product which has been modified by Licensee or by any
other party other than HealthGate, or which has been used in any
other manner other than as authorized under this Agreement.
9.1.3 With respect to the development services provided in Section 2.3,
HealthGate warrants to Licensee
that any software products delivered to Licensee are not capable of
permitting any of the following: (1) unauthorized access to or
intrusion upon; (2) disabling of; (3) erasure of; or (4) interference
with any hardware, software, data or peripheral equipment; provided,
however, this warranty shall not apply to e-mails, electronic
transfers, or other database sharing.
9.1.4 HealthGate expressly warrants that HealthGate Products are currently
Year 2000 complaint. "Year 2000 compliant is defined to mean
HealthGate Products accurately and unambiguously process (including,
but not limited to, compare, calculate, manipulate, sequence,
display, and exchange data with other systems) data containing time
and/or dates prior to, at, and after the year 2000 without error or
interruption, and the products operate properly and in conformance
with applicable specifications, continuously, before, at, and after
the year 2000."
9.1.5 With respect to the development services provided in Section 2.3,
each of HealthGate's employees, agents or representatives assigned
to perform services hereunder shall have the proper skill, training
and background so as to be able to perform in a competent and
professional manner and all work will be so performed.
9.2 HEALTHGATE INDEMNITY. HealthGate shall defend or settle, at its own
expense, any cause of action or proceeding brought against Licensee which
is based on a claim that the use of the Information as provided hereunder
infringes any patent, copyright, trade secret or other proprietary right.
HealthGate shall indemnify and hold Licensee harmless against all damages,
judgments, and attorneys' fees arising out of the foregoing, provided that
Licensee gives HealthGate prompt written notice of such claim. If a claim
is made that the use of the Information as provided hereunder infringes any
patent, copyright, trade secret or other proprietary right, HealthGate
shall either procure for Licensee the right to continue using the
Information, modify it to make it non-infringing but continue to meet the
specifications therefor, or replace it with a similar non-infringing
content as determined by the sole discretion of HealthGate.
9.3 LICENSEE'S INDEMNIFICATION OBLIGATIONS. Excluding claims arising out of or
relating to the violation by HealthGate or an Information Partner of any
third party copyright, trade secrets, or trademark, Licensee, to the extent
permitted by applicable law, agrees to indemnify HealthGate and its
Information Partners and hold them harmless from and against any and all
claims of Licensee, Authorized Users or other third parties arising out of
or related to the use of the HealthGate Products, the Information or other
licensed materials, regardless of whether such claims were foreseeable by
HealthGate or the Information Partner. The provisions of this Section 9.3
will survive any termination.
9.4 DISCLAIMER OF WARRANTIES, LIMITATION TO WARRANTIES AND LIABILITIES.
THE WARRANTIES EXPRESSED IN SECTION 9.1 ABOVE REPRESENT THE ENTIRE
WARRANTY OF HEALTHGATE WITH RESPECT TO THIS AGREEMENT, AND ARE IN LIEU OF
ANY AND ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH HEALTHGATE DISCLAIMS.
DUE TO THE NUMBER OF SOURCES FROM WHICH INFORMATION ON THE HEALTHGATE
PRODUCTS IS OR WILL BE OBTAINED, AND THE INHERENT HAZARDS OF ELECTRONIC
DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS OR INACCURACIES IN SUCH
INFORMATION AND THE HEALTHGATE PRODUCTS. THE HEALTHGATE PRODUCTS COULD
INCLUDE TECHNICAL OR OTHER INACCURACIES OR TYPOGRAPHICAL ERRORS.
PERIODICALLY, CHANGES MAY BE MADE IN THE INFORMATION PROVIDED IN THE
HEALTHGATE PRODUCTS. HEALTHGATE AND ITS AFFILIATES, AGENTS AND ITS
INFORMATION PARTNERS CANNOT AND DO NOT WARRANT THE ACCURACY,
COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE INFORMATION AND CONTENT AVAILABLE THROUGH THE HEALTHGATE
PRODUCTS, OR THE HEALTHGATE PRODUCTS THEMSELVES, OR ANY OTHER INFORMATION
WHICH IS REFERENCED BY OR LINKED TO THE HEALTHGATE PRODUCTS. THE PRESENCE
IN OR ABSENCE FROM THE INFORMATION, RELATED MATERIALS, DATA, EVENTS,
RESEARCH OR DEVELOPMENTS DOES NOT IMPLY THE SPECIFIC EXISTENCE OR THE
NON-EXISTENCE THEREOF, NOR DOES HEALTHGATE CLAIM COMPREHENSIVENESS OR THE
ABSENCE OF ERRORS. HEALTHGATE ASSUMES NO RESPONSIBILITY FOR THE USE OF
THE HEALTHGATE PRODUCTS BY THE LICENSEE OR AUTHORIZED USERS. HEALTHGATE
AND ITS INFORMATION PARTNERS SHALL NOT BE LIABLE FOR LOSS OF PROFITS,
LOSS OF USE, OR INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES AS A
RESULT OF USE OF THE HEALTHGATE PRODUCTS OR THE INFORMATION, EVEN IF
EXPRESSLY MADE AWARE OF THE POSSIBILITY THEREOF. EXCEPT FOR ANY CLAIM FOR
INDEMNITY UNDER SECTION 9.2, IN NO EVENT MAY ANY ACTION BE BROUGHT
AGAINST HEALTHGATE, OR AN INFORMATION PARTNER ARISING OUT OF THIS
AGREEMENT MORE THAN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES,
DETERMINED WITHOUT REGARD TO WHEN THE LICENSEE OR AUTHORIZED USER SHALL
HAVE LEARNED OF THE ALLEGED DEFECT, INJURY, OR LOSS. IN NO EVENT SHALL
HEALTHGATE'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT
OF LICENSE FEES PAID BY LICENSEE PURSUANT TO THIS AGREEMENT (WHETHER SUCH
LIABILITY ARISES FROM BREACH OF WARRANTY, BREACH OF THIS CONTRACT OR
OTHERWISE, AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND
STRICT LIABILITY). THE PROVISIONS OF THIS SECTION 9.4 SHALL SURVIVE ANY
TERMINATION OF THIS AGREEMENT.
10. MISCELLANEOUS
10.1 With respect to the development services provided in Section 2.3,
HealthGate acknowledges that Confidential Information provided by
Licensee may also be protected by law. HealthGate will neither disclose
such information, directly or indirectly, nor use such information for
any purpose except to perform the services described in this Agreement.
Patient medical and financial files and all documents or records of
Licensee which may be used or received by HealthGate shall remain
exclusive property of Licensee.
Licensee, on behalf of itself and the Affiliated Providers and HPG
Members, acknowledges that Confidential Information provided by
HealthGate may also be protected by law. Licensee, the Affiliated
Providers and HPG Members will neither disclose such information,
directly or indirectly, nor use such information for any purpose except
to perform the services described in this Agreement.
Either party shall take appropriate action, by instruction to or
agreement with its employees, agents and subcontractors, to maintain the
confidentiality of the Confidential Information. Either party agrees to
execute written Confidentiality Agreements with its employees, agents,
and subcontractors addressing either party's obligations set forth in
this section. Either party shall promptly notify the other party in the
event that it learns of any unauthorized release of Confidential
Information.
Either party shall have no obligation with respect to:
(a) Confidential Information made available to the general public
without restriction by the other party or by an authorized third
party;
(b) Confidential Information rightfully known to either party
independently of disclosures by the other party under this
Agreement;
(c) Confidential Information independently developed by either party;
(d) Confidential Information that either party may be required to
disclosure pursuant to subpoena or other lawful process;
provided, however, that the party notifies the other party in a
timely manner to allow the other party to appear and protect its
interests; or
(e) Any information regarding any Authorized User of the HealthGate
Products obtained from or through their use of those products.
Upon the termination of this Agreement, either party shall:
(a) Immediately cease to use the Confidential Information.
(b) 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.
(c) Upon request, certify in writing to the other party that it has
complied with its obligations set forth in this Section.
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 hereby agrees to indemnity and hold harmless the other
party from and against any and all liability, loss, damage, claims or
causes of action and expenses associated therewith (including attorney's
fees) caused directly or indirectly by the party's breach of its
obligations under this Section 10.1. Either party may enforce the other
party's obligations hereunder by seeking equitable relief which remedy
shall be nonexclusive. Either party agrees 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.
10.2 INDEPENDENT CONTRACTOR. HealthGate and Licensee are and shall remain
independent contractors with respect to all matters pursuant to the
Agreement.
10.3 ASSIGNMENT. Licensee may sell, transfer, assign, or subcontract, any right,
license or obligation set forth in this Agreement without the express
advance written consent of HealthGate; provided, however, Licensee may not
sell, transfer, assign, or subcontract, any right, license or obligation
set forth in this Agreement to Medscape, WebMD, Healtheon, and ▇▇. ▇▇▇▇ or
any of their successors or assigns.
10.4 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 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.
10.5 NOTICES. 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 HealthGate: ▇▇▇▇ ▇▇▇▇▇▇
HealthGate Data Corp.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
To Licensee: Attn: Director, I/S Contracts
Columbia Information Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to any person listed herein or in an Exhibit, and to:
General Counsel
Columbia/HCA Healthcare Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
10.4 PUBLICITY. HealthGate and Licensee agree not to advertise or to use the
other party's name in any advertising, except as contemplated by this
Agreement, without first obtaining written consent from the other party,
which
consent shall not be unreasonably withheld.
10.5 BOOKS AND RECORDS. Pursuant to the requirements of 42 CFR 420.300 et seq.,
HealthGate agrees to make available to the Secretary of HHS, the
Comptroller General of 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, HealthGate 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.
HealthGate agrees to comply at all times with the regulations issued by
HHS, published at 42 CFR 1001, and which relate to HealthGate's obligation
to report and disclose discounts, rebates and other reductions to Licensee
for products purchased by Licensee under this Agreement.
If HealthGate 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 Licensee, the Secretary, the United States Comptroller
General and their representatives to the related organization's books and
records.
Licensee rights under this Section shall survive for a period of four (4)
years after termination or expiration of this Agreement.
HealthGate represents and warrants that it has not been excluded from
participation in any Federal healthcare program as defined in 42 U.S.C.
Section 1320a-7b(f).
10.6 AUDIT/REPORTING. Licensee shall have the right, during normal business
hours and with reasonable advance notice, to review and photocopy
HealthGate's books and records that pertain directly to the accounts of
Licensee, HPG Members, or Authorized Users. The audit may be conducted by
Licensee's employees or by an external auditing firm selected by Licensee.
The cost of audit, including the cost of the auditors and reasonable cost
of copies of books and records shall be paid by Licensee. Licensee shall
have no obligation to pay the cost incurred by employees and agents of
HealthGate in cooperating with Licensee in such audit. Licensee does not
have the right to review the books and records that pertain to the accounts
of other HealthGate customers or business partners. Licensee may not
conduct more than one such audit per year. Any personnel of Licensee shall
sign a mutually agreeable confidentiality agreement before such audit is
done.
10.7 THIRD PARTY RIGHTS. This Agreement is not intended and shall not be
construed to create any rights for any third party.
10.8 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
nonaffected party may terminate subject to the requirements of Section 7.5
above by providing a Termination Notice to the affected party.
10.9 INSURANCE. HealthGate shall maintain liability coverage for errors and
omissions with coverage of at least $1,000,000 per incident and
$3,000,000 in the aggregate. Licensee shall be provided a copy of the
certificate of insurance upon signing of this Agreement. Licensee 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 10.9.
10.10 LEGAL FEES. In the event of any litigation between the parties concerning
this Agreement, the prevailing party shall be awarded reasonable
attorney's fees and other costs and expenses incurred in connection with
such action.
10.11 GOVERNING LAW. The validity, interpretation, and performance of this
Agreement shall be governed by and construed in accordance with the laws
of the State of Tennessee.
10.12 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. 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 Licensee purchase order will be
subject to the terms of this Agreement and that any acceptance of a
purchase order by HealthGate will be for acknowledgment purposes only and
none of the terms set forth in the purchase order will be binding upon
HealthGate.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Agreement under seal as of and effective the date first written above:
HEALTHGATE DATA CORP. LICENSEE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Chief Executive Officer Title: President
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