Ex 10.3
STANDARD
DISTRIBUTOR AGREEMENT
between
Clinical Reference Systems, Ltd.
and
HealthGate Data Corp.
This agreement, entered into this 30th day of December, 1996 by and between
Clinical Reference Systems, Ltd., hereinafter referred to as "CRS", with offices
at 0000 X. Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, XX 00000-0000, and
HealthGate Data Corp., hereinafter referred to as "Distributor", with offices at
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000.
WHEREAS, Distributor owns and operates a world wide web site on the internet
which markets and distributes biomedical and health care related information to
institutions and individuals;
WHEREAS, CRS distributes CRS Product(s) (as defined below) in disk format:
WHEREAS, both Distributor and CRS wish to make available and license CRS
Product(s) through Distributor's world wide web site:
WHEREAS, Distributor has agreed to assist CRS, as set forth in this agreement,
in the demonstration, marketing, and sales and licensing of the CRS Product(s)
(see Exhibit A) to their current and future customers.
In consideration of the mutual covenants contained herein, the parties jointly
agree as follows:
I. Termination: This agreement shall be effective upon the date first above
written after execution by both parties and shall remain in effect for a
period of one year. After that time this agreement shall automatically
renew for additional one-year periods unless either party gives six (6)
months written notification of termination of the agreement. In any event,
this agreement shall terminate five years after it becomes effective.
Termination of this agreement shall suspend Distributors right to resell
CRS's Product(s) (see Exhibit A) and suspend CRS's right for collection of
any additional fees from Distributor other than those fees due and payable
upon the date of termination. However, termination shall not suspend or
alter either party's obligations for representations, warranties, and
indemnification under this agreement.
In the event of a material breach of this agreement by either party to
this agreement, the non-breaching party shall have the right to terminate
this agreement by giving written notice to the breaching party, provided
the breaching party is given sixty (60) days from notification of the
breach to remedy the breach. Said notice of termination shall state the
breach in sufficient detail that the breaching party will have a
reasonable opportunity to remedy it.
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II. CRS Agrees to Comply with the following:
A. CRS hereby appoints HealthGate Data Corp. as a Distributor for CRS
Product(s) and license described in Exhibit A attached hereto on the
terms and conditions of this agreement for the resale and license of
such products to current and prospective customers.
B. Provide 180 day written notice of any price changes.
C. Provide Distributor with a 50% discount off the retail price (see
Exhibit B).
D. Provide a set of marketing and sales materials.
E. Provide Product(s) as tagged ASCII files.
F. Provide toll-free customer support to Distributor's licensees with
respect to the content of the products.
G. Provide revisions, updates and upgrades to the CRS Product(s) as
ASCII tagged files as soon as such revisions, updates or upgrades
are made available to licensees of CRS Product(s) on disks.
H. Permit Distributor's sales and marketing representatives to
demonstrate CRS Product(s) on-line to potential licensees without
charge.
III. Distributor Agrees to Comply with the following:
A. Distributor shall pay CRS 50% of all license fees listed under
Exhibit B collected for CRS Product(s) as described in item III. J.,
below. Distributor has paid CRS $24,950 with the execution of the
agreement representing pre-payment of fixture licensing fees and
Distributor agrees to make additional pre-payments of licensing fees
to CRS on the six month anniversary of this Agreement if by such
date a total of $49,900 (including the $24,950 initial payment)
licensing fees has not otherwise been paid by Distributor to CRS.
B. Market, license, and sell CRS Product(s) to Distributor's existing
customer base and to future potential customers.
C. Provide CRS with the following information: hospital (customer)
name(s), address, and phone number of those customers who purchase
CRS Product(s) within 15 days of any installation, provided CRS
shall not contact such licenses without Distributor's consent.
o D. Have licensees enter into an Annual Renewable License in the form of
Exhibit C with changes thereto to reflect the on-line nature of the
license rather than a license of software on disks.
E. Provide customer support by telephone with respect to on-line
matters to all customers who license CRS Product(s) from
Distributor.
F. Provide Distributor sales personnel with CRS sales literature and
pricing information.
G. Distributor agrees to not use promotional/collateral materials
designed by Distributor to market/sell CRS Product(s) without prior
approval from CRS. CRS will not unreasonably withhold or delay its
approval, and that any request that is unanswered after ten working
days shall be deemed approved.
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H. Distributor is responsible for the on-line delivery, invoicing, and
collection of all licensing fees of CRS Product(s) by Distributor.
I. Remit payment to CRS within CRS terms of Net 30 days.
o J. To make the CRS Product(s) available on-line to potential licensees
through Distributor's world wide web site. Distributor will license
each product on an annual basis to licensees for the license prices
set forth in Exhibit B. The license of CRS Product(s) shall be
pursuant to the Annual Renewable License Agreement referred to in
item III. C., above. Distributor shall invoice for and collect all
license fees for the on-line CRS Product(s).
IV. CRS and Distributor Agree that:
A. This agreement is a non-exclusive agreement permitting Distributor
to market and sell the CRS Product(s). Distributor specifically
agrees not to sell CRS Product(s) to other dealers without the
express written permission of CRS.
B. This agreement may not be modified except in writing executed by
both parties.
C. This agreement supersedes previous, if any, CRS Distributor
Marketing Agreements.
D. Distributor is not and shall not be considered an employee,
representative, or agent of CRS. Distributor is an independent
contractor. Distributor and CRS are not authorized, to and agree
that they will not make any warranties of representations or assume
or create any obligations on each other's behalf.
E. This agreement shall be deemed to be a contract made under, and
shall be construed in accordance with the laws of the State of
Colorado.
F. Any controversy or claim arising out of or relating to the contract,
or any breach thereof, shall be settled by arbitration in accordance
with the Commercial Association Rules of the American Arbitration
Association, and judgment upon the reward rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof. The arbitration shall be held in Denver unless otherwise
agreed to by the parties.
G. Either party may assign, delegate, or transfer, by operation of law,
merger, sale or otherwise, this Agreement or any of the rights or
obligations hereunder.
V. Hold Harmless:
A. CRS agrees to indemnify Distributor and hold it harmless for, from
and against any and all costs, damages, liabilities, demands,
obligations or expenses (including, without limitation, reasonable
attorney fees) arising out of or relating to this agreement,
provided that Distributor provides CRS with prompt written notice of
all suits or threats or that CRS is not materially damaged by any
delay in receiving such notice.
B. Distributor agrees to indemnify CRS and hold it harmless for, from
and against any and all costs, damages, liabilities, demands,
obligations or expenses (including, without limitation, reasonable
attorney fees) for product misrepresentations by Distributor that
are not based upon information or materials provided by CRS,
misappropriation of trade secrets by Distributor (excluding claims
related to breaches of Section VII.B.), or infringement by
Distributor of CRS's other proprietary
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rights in the CRS Product(s), provided that CRS provides Distributor
with prompt written notice of all suits or threats or that
Distributor is not materially damaged by any delay in receiving such
notice.
VI. Trademarks:
Distributor may use the product name with Registration Symbol and
description for the CRS Product(s) in distributing CRS literature and
performing CRS Product(s) demonstrations. Distributor may not, however,
use any trademarks or tradenames of CRS without the prior written consent
of CRS.
VII. Warranty:
A. CRS warrants that it has developed and has title to the following
CRS Products: Pediatric Electronic Drug Reference, Pediatric
Advisor, Spanish/English Pediatric Advisor, Electronic Drug
Reference, Adult Health Advisor, Women's Health Advisor, Medication
Advisor, Behavioral Health Advisor, Senior Health Advisor, and
Clinical Navigator, the software which runs the CRS Products, and
documentation. The CRS Products and documentation contains
proprietary information of CRS which has not been disclosed to
others except under an obligation of confidentiality.
B. CRS warrants that it has the right and power to grant a license and
rights referred to in this agreement and warrants that the Products
and documentation do not violate the patents, copyrights, trade
secrets, or other proprietary rights of others.
C. CRS warrants that neither the CRS Products nor the documentation are
in the public domain.
VIII. Limitation of Liability:
Neither party shall be liable for incidental, indirect, special, or
consequential damages or loss of use, revenue, or profit even if the other
party has advised of the possibility of such damage.
IX. Disclaimer:
Except as expressly stated herein, neither party has made any warranties
or representations, expressed or implied, by operation of law otherwise,
concerning the Product or Products to be provided hereunder, the scope or
duration of any marketing effort which CRS and/or Distributor may
undertake, or the success of any such marketing effort. Neither party has
relied on any party, written or verbal, as an inducement to entering the
agreement.
CRS and Distributor have executed this agreement as of the day and year written
above.
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CLINICAL REFERENCE SYSTEMS, LTD.
By: /s/ Xxxxxxx Xxxxxxxx
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Signature
Name: Xxxxxxx Xxxxxxxx
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Please Print
Title: President
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HealthGate Data Corp.
By: /s/ Xxxx Xxxxxx
----------------------------------------------------------------------
Signature
Name: Xxxx Xxxxxx
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Please Print
Title: Vice President
-------------------------------------------------------------------
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EXHIBIT A - PRODUCT FACT SHEET
(Made Available in ASCII text flies)
Pediatric Advisor
Edited by Xxxxxx Xxxxxxx, M.D., the Pediatric Advisor provides advice for
parents on over 700 infant, child, and adolescent health problems. In
addition to medical topics, many aspects of newborn care and parenting
issues - such as child development, day care, discipline, and divorce -
are covered. Handouts generated by the program provide immediate
reinforcement of verbal instruction and enhance the public relations of
the practice. Use the program editor to modify or create handouts.
Adult Health Advisor
The Adult Health Advisor provides patient advice on over 400 medical and
surgical topics. Healthcare professionals can use the program editor to
modify or create handouts.
Women's Health Advisor (formerly OB/GYN Advisor)
The Women's Health Advisor provides patient advice on nearly 400
obstetric, gynecologic, and new baby care topics. Healthcare professionals
can use the program editor to modify or create handouts.
Behavioral Health Advisor
The Behavioral Health Advisor provides patient advice on over 300 common
behavioral and mental health topics. Book and publication lists and
telephone numbers of national mental health advocacy groups provide
additional resources. Adult and pediatric topics cover a wide variety of
issues.
Senior Health Advisor
The Senior Health Advisor contains several hundred patient education
topics written to help older adults understand common illnesses, as well
as the physical and emotional aspects of aging. Informational topics such
as how to choose a nursing home, writing a living will, and health
insurance for people with Medicare are included. Resource lists and
illustrations are also featured.
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EXHIBIT B
SUGGESTED ANNUAL RENEWABLE LICENSE PRICES
SITE WAN
PRICE PRICE
----- -----
PRODUCT
-------
Pediatric Advisor $2495 $9500
Adult Health Advisor $2495 $9500
Women's Health Advisor $2495 $9500
Behavioral Health Advisor $2495 $9500
Senior Health Advisor $2495 $9500
Site License means the use of the Product(s) on an unlimited number of single
computers or workstations as long as all the single computers and workstations
are located at the same institution, same city, and where all the users have the
same billing address.
WAN (Wide Area Network) means the use of the Product(s) on up to 100 computers
or workstations at different institutions or different cities that are connected
by a communications link.
Above prices are Annual Renewable Licenses (ARL).
ARL PRICING INCLUDES:
1. Toll-free customer support.
2. Information updates.
3. Newsletter and current and future product information.
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