EXHIBIT 10.1
ELECTRONIC JOURNAL SOFT XXXX DEVELOPMENT,
HOSTING AND MANAGEMENT AGREEMENT
This AGREEMENT is made the 20 March day of 1998
BETWEEN
1. HealthGate Data Corp., a Delaware corporation ("HealthGate"), having an
address at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, XXX
AND
2. Xxxxxxxxx Science Limited a company registered in England
("Xxxxxxxxx"), whose registered office is Xxxxx Xxxx, Oxford OX2 OEL,
England, and Munksgaard A/S, a company registered in Denmark
("Munksgaard"), having an address at 00 Xxxxx Xxxxxx, Xxxxxxxxxx XX-0000,
Xxxxxxx (together, Xxxxxxxxx and Munksgaard shall be referred to as "the
Publishers")
WHEREAS:
X. Xxxxxxxxx and Munksgaard, among other business activities, publish
journals;
B. HealthGate, among other business activities, creates, compiles and
distributes health and biomedical information through the Internet;
C. The Publishers desire to retain HealthGate to provide electronic
journal management services, including development of an on-line web site
for its journals, and other mutually agreed publications.
D. HealthGate will provide the Services.
E. HealthGate shall license to the Publishers the Proprietary Software and
provide appropriate operational documentation if the Publishers decide to
manage their own service from 28 February 2000.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions
In this Agreement, the following words and expressions shall have the
following meanings:
"Acceptance" or "Accepted" Means acceptance of any part or the whole of the
System by the Publishers when the System
has successfully passed the acceptance
tests in accordance with Clause 9 below
but for the avoidance of doubt does not
refer to the continuing Services after the
Site goes live
"Agreement" means this document and its Schedules and any
documents expressly incorporated herein by
reference and shall include any amendments
subsequently agreed.
"Content" means up to 200 Journals and any other material
related to the Journals which the
Publishers include in printed or
electronic form, or any part thereof
the "Development Timetable" means the timetable upon which the Development
Work is proposed to take place which is in
the implementation plan
the "Development Work" means the development work required to produce
the System (but excluding the ongoing
services after the Site goes live) based
upon the Specification and technical
documentation sufficient for the system to
be developed and extended including but
not limited to any deviations from the
original specification agreed to be
necessary during the development.
"Escrow Agreement" means the agreement(s) between the Publishers,
the escrow agent and HealthGate the terms
of which are specified in the Fourth
Schedule
the "Hardware" means the equipment and hardware referred to in
Clause 8, as upgraded from time to time,
and including extra hardware as a
contingency.
"Journal" means a Journal which the Publishers intend to
include on the Site
the "Licence" means the Licence granted in Clause 10
the "Proprietary Software" means HealthGate's own software which has been
or will be developed
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the "Services" the services to be performed by HealthGate to be
set out in the Specification, to include
but not limited to (i) any ongoing work in
the design and development of the Site;
(ii) mounting the Content on HealthGate's
Hardware; (iii) hosting and making the
Content and portions thereof accessible in
an online interactive mode for searching,
access, review, displaying in a web
browser or on computer terminals,
downloading, and printing on paper and;
(iv) providing access to Publishers'
subscribers and other third parties to the
Site through telecommunications access via
the Internet.
the "Site" means the world wide web site to be prepared for
the Publishers comprising all pages
including graphics, audio-visual effects,
software and all the material in
compliance with the Specification and all
parts of the System used for the Site
the "Software" means the Proprietary Software and the Third
Party Software including any source code
and operator manuals relating thereto, to
be developed or used and/or licensed by
HealthGate in accordance with this
Agreement
the "Specification" means the detailed user scenarios and
implementation plan prepared by HealthGate
and approved by the Publishers and annexed
in the First Schedule
the "System" means the system comprising the hardware,
software, services and peripherals
specified in the Specification and
including the Software all as the same is
to be supplied by HealthGate to suit the
Publishers' requirements
"System Completion Date" means 14 December 1998
"Third Party Software" means all software to be included in the System
owned by a third party, which shall be
licensed for use and/or distribution by
HealthGate as part of the System, and by
the Publishers and/or third parties if the
Services cease to be provided by
HealthGate.
"Use Fees" are the fees as set out in clause 19.4
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2. Appointment of HealthGate
The Publishers hereby appoint HealthGate and HealthGate hereby accepts
such appointment upon the terms and subject to the conditions of this
Agreement:
2.1. to carry out the Development Work within the Development Timetable;
2.2. to provide the Services for the period in Clause 3; and
2.3. to hand over the System as provided in Clauses 10, 18, 33 and the
other provisions of this Agreement.
The Publishers grant HealthGate an exclusive right to carry out the
Services, with the exception that the Publishers shall honour current
contracts with third parties and Publisher may publish and licence content
themselves as long as it does not materially reduce HealthGate's revenue.
For the purpose of determining HealthGate's revenue, Use Fees and Article
Fees shall not be taken into account.
3. Duration
3.1. This Agreement shall commence on 1 January 1998. The initial term of
the Services, unless terminated as set out herein, shall continue up
to and including 28 February 2000 ("the Initial Term").
3.2. Right of Renewal
The Publishers shall have the right to renew the term of the
Services as provided in this Agreement.
4. Development and Specification
4.1. HealthGate shall carry out the Development Work in accordance with
the Development Timetable and in accordance with the Specification
by the System Completion Date.
4.2. HealthGate hereby assign all present and future copyright in the
Xxxxxxxxx Specification to the Publishers.
4.3. Publishers grant to HealthGate a perpetual, royalty-free licence to
use the Specification.
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5. Milestones and Deliverables
5.1. If HealthGate fails to complete the System development by the System
Completion Date, unless such failure results from the Publishers'
default in performing its obligations under this Agreement or from
an extension of time agreed in writing, the Publishers may in their
discretion notify HealthGate accordingly, and if such failure is not
remedied within 28 calendar days, HealthGate, recognising the loss
caused to the Publishers, will on demand from the Publishers pay to
the Publishers a sum calculated at the rate of 1% of the value of
the contract in respect of every 28 days which elapse from the
System Completion Date to the actual date of completion of the
System. Such sums of money will be paid by HealthGate to the
Publishers not as a penalty but as and for the ascertained and
liquidated damages owing and payable by HealthGate to the Publishers
by reason of such failure to meet the System Completion Date.
5.2. If HealthGate fails to complete the System by the end of the tenth
week after the System Completion Date then the Publishers (unless
such failure demonstrably results from the Publishers' default in
the performance of its obligations under this Agreement) will be
entitled without prejudice to any other rights or remedies they may
have under this Agreement or at law or in equity to terminate this
Agreement immediately by written notice.
5.3. If any delay in meeting the System Completion Date is in any way due
to the Publishers' fault, HealthGate will nevertheless, if the
Publishers so requests, continue with the work on the Project with a
view to completing it as soon as reasonably possible in the
circumstances, and the Development Timetable will be adjusted
accordingly.
6. Project Management
6.1. HealthGate and the Publishers shall each designate the name,
address, telephone number, fax number, and e-mail address of a
Project Manager and a Deputy Project Manager. The Project Managers
shall be responsible for arranging all meetings, visits, and
consultations between the parties, and for the transmission and
receipt of technical information between the parties. The parties'
initial Project Manager and Deputy Project Manager is set forth on
the Third Schedule hereto.
6.2. If HealthGate has reason to believe that any estimate of any time is
likely to be exceeded or that it is likely that the Development
Timetable will not be complied with, HealthGate will immediately
inform the Publishers' Project Manager by written notice.
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7. Content
The Publishers, at their cost and expense, shall make available the
Content in loadable electronic format to HealthGate as specified in the
Specification. HealthGate shall remotely load the Content into a staging
area.
8. Procurement of Hardware
HealthGate shall maintain the Site on HealthGate's web server and/or other
servers through the term of this Agreement insofar as it relates to the
Services. HealthGate shall acquire and maintain all necessary equipment
and hardware (collectively the "Hardware") for Site. The Hardware shall be
capable of storing the Content, including future issues of the Journals
within the Content. HealthGate shall replace and upgrade such Hardware to
satisfy the requirements of the Specification. The Hardware for the Site
shall include redundancy so that the Site may remain operational despite
an equipment failure. The Hardware shall be located at HealthGate's
computer facilities in Malden, Massachusetts. The Hardware may be
relocated only with Publishers' written consent, which consent shall not
be unreasonably withheld. HealthGate, at its cost and expense, shall
maintain adequate access via telecommunications to the Site at service
levels that shall be maintained at the same extent as HealthGate provides
to its own users.
9. Testing, Acceptance and Delivery
9.1. Upon completion of the Development Work HealthGate and the
Publishers shall run acceptance tests to assure compliance with the
Specification. Load testing will be conducted at HealthGate. Such
period of acceptance testing shall not exceed 2 weeks from date of
delivery for testing.
9.2. Upon passing the acceptance tests, the System shall be deemed
Accepted
9.3. Upon Acceptance as provided in Clause 9.2 HealthGate shall deliver
into escrow the source code, source listings and information for the
Proprietary Software included in the System in accordance with the
terms of the Escrow Agreement.
9.4. In the event that the system fails to pass any of the prescribed
acceptance tests or fails to satisfy the Publishers' requirements,
the Publishers shall afford HealthGate the opportunity of
rectifying, replacing and retesting the System. In the event that
the System or any part thereof again fails to be accepted, such
acceptance shall not be unreasonably withheld, or to satisfy the
Publishers' requirements of which the Publishers shall be the sole
judge, the Publishers shall (as time is of the essence of this
Agreement) be entitled, in addition to any other rights it may have
under this Agreement or in law, to have HealthGate remove the
Content from the System (in whole or in part as the Publishers so
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instructs) and HealthGate shall be liable to refund forthwith any
moneys paid by the Publishers for such rejected System or part
thereof. Notwithstanding the foregoing, upon acceptance of System
launch, as noted in Clause 19.2.4, HealthGate shall be entitled to
retain all monies paid by Publishers to this point.
In such circumstances HealthGate shall be entitled to retain the
first $250,000 paid by the Publishers to develop the Specification.
10. Licence
10.1. Proprietary Software
HealthGate hereby grants to the Publishers a non-exclusive
non-transferable licence to use the Proprietary Software for the
purposes of this Agreement
Save in relation to the Publishers' logos, trademarks, and content,
HealthGate may use and/or licence the Proprietary Software for
itself or for others without any compensation or liability to the
Publishers.
All Proprietary Software and Source Code remain the property of
HealthGate. Publishers may not use either Proprietary Software or
Source Code held in escrow to develop a product that competes with
those services offered by HealthGate. HealthGate, in its sole
discretion, retains the right to determine if Publishers are
utilizing either the Proprietary Software or Source Code in
violation of this Agreement.
10.2. Option for Licence
10.2.1. On termination of the provision of the Services by
HealthGate to the Publishers for whatever reason, HealthGate
shall at the Publishers' option:
(i) grant to the Publishers a non-exclusive
non-transferable licence to use the Proprietary Software for
the purposes of using, developing, enhancing and maintaining
the Site and carrying out any or all of the activities
previously carried out by HealthGate or on its behalf under
this Agreement
(ii) exercise best endeavours to grant to the
Publishers a non-exclusive non-transferable licence to use
the Third Party Software for the Site when and to the extent
requested by the Publishers.
10.2.2. The annual fee for the licence in Clause 10.2.1 for the
Software, to include the Proprietary Software and the Third
Party Software, shall be $150,000 per annum, including
standard upgrades and maintenance, provided that if
HealthGate is not able to grant a licence of the Third Party
Software, then the Publishers shall be at liberty to licence
the Third Party Software from its owners and/or licensors
direct, and/or to
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license alternative software, and shall deduct the fees for
such licences from the $150,000 per annum for the Software.
10.2.3. The Publishers shall have the right to terminate the licence
referred to in Clause 10.2.1 by giving three months' notice
in writing to HealthGate.
11. Hosting
HealthGate will host the Site in accordance with the Specification for the
period for the Services in Clause 3.
12. Service Levels
12.1. HealthGate will provide the Services and shall meet the Service
Levels including but not limited to:
12.1.1. dealing promptly with queries or problems relating to the
use or performance of the Software and correcting or
procuring the correction of all material program errors;
12.1.2. identifying the location of any fault on the System,
ensuring the continuing satisfactory operation of the
System, taking all appropriate actions to ensure that the
System maintains its full functionality;
12.1.3. providing or procuring minor enhancements to the Software
including but not limited to updating data and formulae to
ensure that any changes in tax or other statutory
regulations or law are incorporated into the Software.
12.2. The Service Levels will be subject to review at any time by
agreement between the Project Managers and in any event will be
formally reviewed every 12 months during the term of this Agreement.
12.3. HealthGate will provide usage statistics relating to the Services as
described in the specification on a monthly basis, or such other
reasonable intervals as may be mutually agreed upon by the parties
from time to time.
12.4. HealthGate will perform the Services and meet the Specifications and
Service Levels set forth and referred to in this Agreement. In all
cases where HealthGate has not committed to a specific performance
standard, HealthGate will use reasonable care in providing the
Services.
13. Permitted Users, Pricing and Subscription Information
13.1. The Publishers shall have sole authority concerning determining
access to the Site. Except for the fees payable to HealthGate
described in Clause 14 hereof (document delivery), the Publishers
shall retain the sole and exclusive right to determine the prices
and fees payable and other terms and conditions applicable
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to the Publishers' subscribers and other third party users for
access to the Publishers' Content on the Site. The Site shall be
designed to permit automated loading and maintenance of subscription
data from the Publishers' fulfilment systems. The Specification
details the procedures for loading such subscription information
(including both bulk entry and single entry information) and timing
for access to the Site for users included on such updated
subscription data.
13.2. The Publishers grant to HealthGate a royalty-free licence for the
purpose of testing, demonstrating, and evaluating the Site.
13.3. For the avoidance of doubt the Publishers shall have the right to
permit third party intermediaries, (including but not limited to
Ovid, OCLC, Swets, X X Xxxxxxxxx, Munksgaard Direct and Xxxxxx) to
access the Site and to authorize access to users in terms within the
Publishers' sole discretion. The Use Fees as set out in Schedule 2
shall apply.
14. Document Delivery: Fees from Sales of Articles
14.1. The Site will include functions to facilitate the sale of individual
articles from the Journals and other items at the sole discretion of
the Publishers to non-subscribers and other third party users.
14.2. In relation to sales the Publishers make direct, the Publishers
shall establish copyright and other fees for such sales ("Article
Fees"). HealthGate shall collect the Article Fees established by
Publishers plus a service fee to be determined by HealthGate but in
any event the service fee may not exceed 30% of the Article Fee for
the particular article, or $US 4, whichever is the higher. Within 60
days of the end of each calendar month, HealthGate shall forward to
Publishers the net Article Fees actually collected (exclusive of
HealthGate's service fee).
14.3. The Publishers may also permit third party intermediaries to sell
individual articles and other items, on terms to be agreed between
the Publishers and such third party intermediaries. Neither the
Publishers nor the third party intermediaries shall be required to
pay a service fee or any other additional fee for this service, nor
shall HealthGate be permitted to collect a service fee, its
remuneration being as provided in Clause 19 and in Schedule 2 (Use
Fees).
15. Improvements
HealthGate shall replace and upgrade the Software to satisfy the
requirements of the Specification at no extra cost to the Publishers.
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16. Links
The Site shall support and include in-bound links, as may be mutually
agreed upon, to the Publishers' Content (including citations and
references within articles), from bibliographic databases, including
HealthGate, PubMed, ISI's Web of Science, and other sites, and as required
by the Publishers from time to time. HealthGate shall not be responsible
for setting up links from sites which it does not host. The Site shall
also support links with on-line content of other publishers, using
Document Object Identifier (DOI) and other standards, which may be
mutually agreed upon from time to time.
17. Right of Renewal
17.1 The Publishers shall have the right to renew the term of the
Services by notice in writing to HealthGate to be given on or before
30 September 1999. If the Publishers exercise their right to renew,
the term of the Services shall be extended by one further year, up
to and including 28 February 2001. The Use Fees shall remain the
same as in the Initial Period and the fee for the Services shall not
exceed $7000 for additional journals, $2000 maintenance fee on
existing journals and $2000 per Gigabyte.
17.2 If the Publishers exercise their right of renewal under Clause 17.1,
then the Publishers shall have a further right of renewal for each
of the subsequent three years, provided that the right to renew
shall be conditional upon the Publishers having exercised their
right in the previous year, and giving notice on or before the 30
September before the renewal is to take effect.
18. Assistance upon Termination
On termination of the provision of the Services by HealthGate to the
Publishers for any reason:
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18.1. HealthGate will liaise with the Publishers, making available for
such purposes such HealthGate liaison staff as the Publishers may
reasonably require, and acting in all good faith, to ensure a
mutually satisfactory license to the Publishers or, at the
Publishers' option, to a replacement contractor. The period of
liaison will commence as soon as notice has been given of
termination of this Agreement, and will continue for a maximum
period of 3 months after termination;
18.2. HealthGate agrees that at the time of termination of this Agreement,
it will render all assistance, provide all documentation and
undertake all actions to the extent necessary to effect an orderly
assumption of the Services by the Publishers or, at the Publishers'
option, by a replacement contractor;
18.3. If the Publishers so require, HealthGate will use its best
endeavours to procure the transfer at the Publishers' expense, to
the Publishers or to a third party nominated by the Publishers at
the Publishers' sole discretion, of any Third Party Software
licences HealthGate may have obtained in its own name in order to
provide the Services and used for that purpose exclusively; and
18.4. HealthGate will be obliged to satisfy the Publishers that it has
erased the Publishers Content and all copies, and that it has no
ability to reproduce the Publishers Content in any way.
The rights of the Publishers in this Clause 18 are in addition to
the rights in Clause 33.
19. Cost and Payment, Change Control Formula
19.1. The total price payable by the Publishers is set out in Clause 19.2
and the Use Fees in Clause 19.4, subject to the terms and conditions
in this Agreement, this price being a fixed price.
19.2. Subject to HealthGate performing its obligations hereunder,
HealthGate shall invoice the Publishers for payment as follows:
19.2.1. On 30 January 1998
$100,000
19.2.2. On 06 February 1998
$150,000
19.2.3. On acceptance of
Specification,
$150,000 or 27
February 1998
whichever is later
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19.2.4. On acceptance of
System launch
$150,000
19.2.5. On system completion
date $150,000
19.2.6. On 1 January 1999
$175,000
19.2.7. On 1 April 1999
$175,000
19.2.8. On 1 July 1999
$175,000
19.2.9. On 1 September 1999
$175,000
PROVIDED ALWAYS THAT if the Agreement is terminated in accordance with
Clause 9.4 then the financial provisions of that Clause will apply in
place of this Clause 19.
19.3. Invoices are payable within 60 days of receipt, with the exception
of payments due under Clause 19.2, which shall be payable on the due
date or on acceptance of the work, which ever is the later.
19.4. Use Fees
The Publishers shall make payments to HealthGate based upon "Use" of
the Content as set forth on the Second Schedule. For the purposes of
this Agreement, "Use" shall mean a retrieval or download by a
Publishers' subscriber of the full-text of an article. There shall
not be any additional use fees or charges for users' browsing of
table of contents or abstracts. Use Fees shall be billed by
HealthGate monthly and all payments are due by cheque by the end of
the following month after the date of the invoice.
19.5. Interest
Interest on late payment by either party shall be charged at 2%
above base rate for the time being of Barclays Bank plc in England.
This sub-Clause 19.5 shall survive termination under Clause 9.4.
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20. Advertising
20.1. The Site shall be designed to include space for advertising. All
specifications concerning advertising space shall be mutually agreed
upon from time to time and detailed in the Specification. The rate
structure for advertising shall be mutually agreed upon.
20.2. All advertising is subject to review and approval by the Publishers
and the Publishers reserve the right to refuse any proposed
advertisements. Revenues from advertisers utilizing the advertising
space shall be allocated between HealthGate and the Publishers. Each
party shall receive 30% of all advertising sales for advertising
sales originated by the other party (provided, in the event that
advertising is sold at rates less than fair market rates such 30%
figure shall be equitably increased to reflect the fair market value
of the advertising. Said fair market rates shall be determined by
mutual agreement of both parties). No deduction shall be made for
commissions payable to sales representatives or employees of any
party.
20.3. Within 60 days of the end of each calendar month, the parties shall
report to each other concerning revenues collected on advertising
sales and make appropriate payments to the other party for the
previous month's collections based on the foregoing formula.
20.4. In the event that any claim is made against either party in respect
of any advertisement. The expenses of dealing with any claim shall
be paid for in the same proportion as at Clause 20.2.
21. Support and Enhancement
HealthGate shall establish a telephone line for the purpose of providing
support to users of the Site, which support shall be free of charge to
such users. Such telephone line shall be answered pursuant to HealthGate's
standard protocol and shall be operational 5:00 A.M. to 10:00 P.M., US
Eastern Time, and be supported by voice mail at other times. Such
telephone line shall be operated at all times by one HealthGate employee.
HealthGate shall ensure that the employee is suitably qualified and
experienced for the purpose. If the parties determine that more than one
employee is necessary to handle all inquiries in a reasonably prompt,
professional and efficient manner, Publishers at their cost and expense
may request HealthGate to dedicate additional employees for such purpose.
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The Site shall include an e-mail function directly to HealthGate. All
e-mails received by HealthGate shall be answered within one business day.
The Site shall include a Frequently Asked Questions (FAQ) area and
detailed help screens as determined in the Specification. Both parties
agree to work together, through their duly appointed Project Managers, to
develop the FAQ area and the help screens.
22. HealthGate Responsibilities
22.1. HealthGate undertakes that in performing the Services it will use
commercially reasonable endeavours to comply with the Service Levels
including but not limited to System availability, specifications,
standards, functions and performance requirements.
22.2. HealthGate will provide all assistance that the Publishers may
reasonably require in accordance with this Agreement for the purpose
of evaluating Service Levels from time to time and resolving
operational problems in connection with the Services. All such
requests must come from either the Publishers Project Manager or
Deputy Project Manager.
22.3. HealthGate warrants that it owns or is authorised to use the
Computer Equipment for the purposes of supplying the Services.
22.4. Viruses
Each Party shall use its best efforts to ensure that no viruses,
worms or similar items ("Viruses") are introduced into any Software
System used under this Agreement. If a Virus is found in any such
Software System, HealthGate shall, promptly upon the discovery
thereof, use its best efforts to eliminate such Virus and
ameliorate the effect thereof. If such Virus causes a loss of
operational efficiency or data, HealthGate shall mitigate and
restore such loss as quickly as feasible.
22.5. Disabling Code
Save with the written consent of the Publishers, the Software and
System shall not include, nor shall HealthGate introduce into any
Software and/or the System, any code whose purpose is to disable or
reduce the efficiency of all or any portion of the Services.
23. Access to HealthGate
23.1. During the Term of this Agreement, HealthGate shall accommodate one
employee or representative of Publishers at HealthGate's office for
the purpose of reviewing and understanding the operation of the
Site. HealthGate and Publishers shall coordinate the schedule of
such employee so that he or she
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does not unduly interfere with HealthGate's operation of the Site or
HealthGate's other operations. The Publishers anticipate that such
employee will be at HealthGate's offices approximately 30 days per
year.
23.2. Audit Rights
23.2.1. The Publishers and/or their respective independent auditors,
at no expense to HealthGate, and upon twenty (20) Business
Days' written notice to HealthGate, shall have the right to
conduct an operational audit pertaining to the fees and the
Services rendered pursuant to this Agreement, including but
not limited to having HealthGate process through any system
test data supplied by the Publishers and/or their respective
auditors, operate audit software on any system or download
Publishers' Content and/or usage statistics to a computer
designated by the Publishers, and/or their respective
auditors. The operational audit will verify that HealthGate
is exercising reasonable data processing operational
procedures in its performance of the Services and confirm
that HealthGate is performing and observing its obligations
hereunder.
23.2.2. HealthGate shall make available for the Publishers and/or
the Publishers' auditors inspection all records relating to
the fees and to the Services provided pursuant to this
Agreement.
23.3. Regulatory Access (Eg HEFCE)
HealthGate and the Publishers acknowledge and agree that the
performance of the Services under this Agreement may be subject to
regulation and examination by the Publishers' regulatory agencies
and/or government and/or customer's contractors. The parties agree
that the records maintained and produced under this Agreement shall
at all times be available for examination and audit by governmental
agencies and/or governmental and/or customer's contractors having
rights in relation to and/or jurisdiction over the business of the
Publishers. Each party to this Agreement shall notify the other
party promptly of any formal request by an authorized agency or
contractor to examine records regarding the Publishers that are
maintained by HealthGate. Upon request, HealthGate shall provide any
relevant assurances to such agencies and shall subject itself to any
required examination or regulation. The Publishers shall reimburse
HealthGate for reasonable costs actually incurred due to any such
examination or regulation that is performed solely for the purpose
of examining data processing services performed by HealthGate for
the benefit of and at the request of the Publishers.
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24. Security and Disaster Recovery
24.1. HealthGate will ensure that all documents, data and Software are
kept under secure conditions with back up arrangements satisfactory
to the Publishers, to protect them effectively from unauthorised
access and so that they can be recovered from any malfunction of the
System.
24.2. Should the Publishers' Content and/or data be lost or destroyed,
HealthGate will be responsible for its prompt reconstruction as
quickly as possible with high priority allocation of time and
resources, having regard to the back-up frequency agreed with the
Publishers in the Specification.
24.3. HealthGate will not without the written consent of the Publishers
disclose any of the Publishers' data or Publishers' Content to any
third party.
24.4. HealthGate will take all reasonable precautions to minimise the
impact of any disaster relating to the Services.
24.5. Security for Facilities
HealthGate will perform all required security procedures at any
place where Services are performed by HealthGate. All personnel of
HealthGate will comply with the agreed security procedures with
respect to access to any facility, data and data files.
24.6. The Publishers and/or their auditors, at no expense to HealthGate,
and upon twenty (20)Business Days' written notice to HealthGate,
shall have the right to conduct a system backup and disaster
recovery audit with regard to the Services provided pursuant to this
Agreement. The system disaster and recovery audit will verify that
HealthGate is exercising reasonable procedures in the performance of
its system backup and disaster recovery obligations hereunder.
HealthGate shall allow the Publishers and/or their auditors access
to any site used by HealthGate as a backup facility, if HealthGate
can secure the rights for the Publishers and/or their auditors to
enter the backup facility.
24.7. Disaster Recovery
HealthGate shall maintain and continue to maintain throughout the
term of this Agreement, an off-site disaster recovery capability.
HealthGate shall present to the Publishers a disaster recovery plan
prior to the System Completion Date. HealthGate shall monitor each
such disaster recovery plan and keep it current.
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24.8. HealthGate shall use its best efforts to recover from a disaster and
to continue providing Services to the Publishers within a
commercially reasonable period. An executive summary of each such
disaster recovery plan, which may change from time to time, shall be
provided to the Publishers at no charge. HealthGate shall test each
disaster recovery plan annually and shall provide the Publishers
with a summary of its test results.
25. Third Party Software
25.1. HealthGate warrants that any Third Party Software is validly
licensed for running by HealthGate at the Site and for all the uses
permitted under this Agreement in fulfillment of the services for
the term of the Agreement and that it is authorised to grant the
rights to the Third Party Software licensed under this Agreement for
use on the Site.
25.2. HealthGate will fully indemnify the Publishers in respect of all
damages, costs and expenses incurred by the Publishers resulting
from any act or default of HealthGate in respect of the Third Party
Software.
26. Intellectual Property Rights
26.1. The copyright and any and all other intellectual property in any
report, financial specification documentation and information, and
usage statistics on whatever media, prepared or to be created by
HealthGate pursuant to this Agreement shall be the property of the
Publishers notwithstanding termination hereof unless otherwise
expressly agreed in writing by the Publishers. HealthGate hereby
assigns all right, title and interest in and to the same to the
Publishers.
26.2. Publishers' Content and Data
The parties hereto acknowledge and agree that the Publishers and/or
their licensors own and will continue to own all right, title and
interest in and to Publishers' Journals and other data, including
but not limited to usage statistics for the Services ("Publishers'
Data"). Upon the termination of this Agreement for any reason or,
with respect to any Publishers' Data, on such earlier date as the
Publishers shall determine that any of the same will no longer be
required by HealthGate in order to render Services to the
Publishers, Publishers' Data will be either erased from the data
files maintained by HealthGate. or if the Publishers so elect,
returned to the Publishers by HealthGate. The Publishers' Data may
not be utilized by HealthGate for any purpose except to provide
Services to the Publishers, nor may Publishers' Data or any part
thereof be disclosed, sold, assigned, leased or otherwise disposed
of to third parties by HealthGate or commercially exploited by or on
behalf of HealthGate, or any of its employees or agents.
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27. Warranty
HealthGate's warranty
27.1. HealthGate warrants to the Publishers that the Software on delivery
to the Publishers will conform substantially with the Specification.
27.2. HealthGate undertakes to correct by patch or new release (at its
option) that part of the Software which does not so comply PROVIDED
THAT such noncompliance has not been caused by any modification,
variation or addition to the Software not performed by HealthGate
27.3. Millennium Compliance
HealthGate warrants that (a) the occurrence in or use by the System
of dates on or after January 1, 2000 ("Millennial Dates") will not
adversely affect its performance at any level with respect to
date-dependent data, computation, output or other functions; and (b)
the System will create, store, receive, process and output
information related to or including Millennial Dates without error
or omissions.
Publisher's warranty
27.4. Each Publisher hereby represents and warrants that: (i) it has, and
will have throughout the term of this Agreement, all right, title
and interest in and to the Content, except for items that are in the
public domain or that are obtained under valid licenses, (ii) the
Publishers Content do not and will not infringe any tradename,
trademark or copyright, and (iii) there are not material suits,
claims or proceedings currently pending or threatened against any
Publisher based upon the Content and that Publishers will promptly
advise HealthGate of the pendency or threat of any such suits,
claims or proceedings relating to the Content or the Site arising
during the term of this Agreement.
27.5. HealthGate shall be solely responsible for the compliance by its
personnel with all laws and regulations of any pertinent countries
relating to data protection and privacy and/or transborder data
flow.
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28. Indemnities and Liability, Limitation of Liability
28.1. Indemnities and Liability
(a) Cross Indemnity - HealthGate and the Publishers each agree to
indemnify, defend and hold harmless the other from any and all
claims, actions, losses, damages, liabilities, costs and expenses,
including reasonable attorneys' fees and expenses, arising out of or
relating to the death or bodily injury of any agent, employee,
customer, business invitee or business visitor of the indemnitor, or
arising out of or relating to loss of or damage to tangible real or
tangible personal property, to the extent that such claim, action,
liability, loss, damage, cost or expense was proximately caused by
the indemnifying party's tortious act or omission, or by those of
its agents or employees.
(b) Patent Indemnity - HealthGate and the Publishers each agree to
indemnify, defend and hold harmless the other from any and all
claims, actions, damages, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses, arising out of any claims
of infringement of any patent, or a trade secret, or any copyright,
trademark, service xxxx, trade name or similar proprietary rights
conferred by contract or by common law or by any law of any
applicable jurisdiction alleged to have occurred because of the
system including but not limited to hardware, software, and data
provided by the indemnitor under this Agreement.
(c) Indemnification Procedures - With respect to third-party claims
subject to the indemnities set forth in this Clause 28, the
indemnitee shall notify the indemnitor promptly of any matters in
respect of which the foregoing indemnity may apply and of which the
indemnitee has knowledge and shall give the indemnitor full
opportunity to control the response thereto and the defense thereof;
including, without limitation, any agreement relating to the
settlement thereof; provided that the indemnitee shall have the
right to approve any settlement or any decision not to defend. The
indemnitee's failure to promptly give notice shall affect the
indemnitor's obligation to indemnify the indemnitee only to the
extent that the indemnitor's rights are materially prejudiced
thereby. The indemnitee may participate, at its own expense, in any
defense and any settlement directly or through counsel of its
choice. If the indemnitor elects not to defend, the indemnitee shall
have the right to defend or settle the claim as it may deem
appropriate, at the cost and expense of the indemnitor, which shall
promptly reimburse the indemnitee for all such costs, expenses and
settlements amounts.
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28.2. Limitations of Liability--Except in respect of personal injury or
death caused by the negligence of either party (for which by law no
limit applies), in the event either party shall be liable to the
other party on account of the performance or nonperformance of its
respective obligations under this Agreement, whether arising by
negligence, wilful misconduct or otherwise, the amount recoverable
by the other party for all events, acts or omissions shall not
exceed, in the aggregate, an amount equal to payments made under
this Agreement.
29. Source Code and Escrow
29.1. HealthGate and the Publishers shall enter and maintain in force the
Escrow Agreement for such period as the Publishers require.
29.2. Whenever a new version of the Proprietary Software is used for the
Site, HealthGate will promptly deposit a new version of the source
code and the operational documentation for that version under the
same Escrow Agreement, and notify the Publishers in writing that the
deposit has been made.
29.3. If no new version has been deposited in any 6 month period,
HealthGate will deposit a replacement copy of the then current
version of the source code of the Proprietary Software under the
Escrow Agreement and will notify the Publishers in writing.
30. Confidential Information
Neither party shall, other than with the prior written consent of the
other party, during or after the termination, determination or expiry of
this Agreement disclose directly or indirectly to any person, firm,
company or third party and shall only use for the purposes of this
Agreement, any information relating to the Agreement, the other party, its
business, trade secrets, customers, suppliers or any other information of
whatever nature which the party whose information it is or its licensees
or nominee may deem to be confidential and which the other party has or
shall hereafter become possessed of. For the avoidance of doubt the usage
statistics relating to the Site shall be the Publishers' confidential
information.
The foregoing provisions shall not prevent the disclosure or use by either
party of any information which is or hereafter, through no fault of the
other party, become public knowledge or to the extent permitted by law.
Nor shall they prevent the use by the Publishers of information for the
purposes of handing over or considering handing over the System to
themselves or to another contractor, PROVIDED THAT if the information is
disclosed to a third party the Publishers shall first enter a
confidentiality agreement with the third party in similar terms to this
Clause.
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31. Data Protection
The parties agree to ensure that they will at all times comply with the
provisions and obligations imposed by the Data Protection Xxx 0000, the EU
Data Protection Directive 95/46 and any implementing legislation in the
United Kingdom. Both parties agree to indemnify each other in respect of
any unauthorised disclosure of data by them.
32. Termination, Change of Control of HealthGate
32.1. Notwithstanding any provisions herein contained this Agreement may
be terminated forthwith by either party by notice in writing from
the party not at fault if any of the following events shall occur,
namely:
(i) if the other party shall commit any act of bankruptcy,
shall have a receiving order made against it, shall make or
negotiate for any composition or arrangement with or
assignment for the benefit of its creditors or if the other
party, being a body corporate, shall present a petition or
have a petition presented by a creditor for its winding up or
shall enter into any liquidation (other than for the purposes
of reconstruction or amalgamation), shall call any meeting of
its creditors, shall have a receiver of all or any of its
undertakings or assets appointed, shall be deemed by virtue of
the relevant statutory provisions under the applicable law to
be unable to pay its debts, or shall cease to carry on
business;
(ii) if the other party shall at any time be in default under
this Agreement and shall fail to remedy such default within 30
days from receipt of notice in writing from the first party
specifying such default.
If any such event referred to in this sub-clause shall occur,
termination shall become effective forthwith or on the date
set forth in such notice.
32.2. Either party may by notice in writing to the other party
terminate this Agreement, if any of the following events shall
occur, namely:
32.2.1. if either party is in breach of any term, condition or
provision of this Agreement or required by law and
fails to remedy such breach (if capable of remedy)
within 14 days of receipt of notice from the other
party specifying such breach;
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32.2.2. Change in control
If there is a change in Control of the first party,
the second party may, entirely at their own option and
without thereby becoming liable for any costs or
losses which the first party or its holding company or
any company in which it may hold shares may suffer as
a result terminate the Agreement by notice in writing
to first party.
For the purpose of this clause, a person shall have
"Control" of a company if he holds, directly or
indirectly, shares which together with shares held by
any persons acting in concert with him carry 50% or
more of the voting rights of that company and "Change
in Control" shall be interpreted accordingly. Words
and phrases defined in the City Code on Take-overs and
Mergers shall have the same meaning here.
32.3. Termination, howsoever or whenever occasioned shall be subject to
any rights and remedies either party may have under this Agreement
or in Law.
32.4. the following Clauses shall survive termination for whatever cause
of this Agreement: Clauses 4.2, 5, 10.2, 20.4, 23.2, 25-28, 30-34
inclusive.
33. Rights Upon Termination
Upon termination of this Agreement and for a period of six (6) months
thereafter, the Publishers will have the following rights and obligations:
33.1. Commencing upon any notice of termination by the Publishers,
HealthGate will comply with the Publishers' reasonable directions,
and will provide to the Publishers any and all termination
assistance reasonably requested by the Publishers to allow the
Services to continue and to facilitate the orderly transfer of
responsibility for the Services to the Publishers or a successor
provider of Services designated by the Publishers. The termination
assistance to be provided to the Publishers by HealthGate may
include the following:
33.1.1. Continuing to perform, for a reasonable period (as
determined by the Publishers) of up to six (6) months
following the termination date, any or all of the Services
then being performed by HealthGate.
33.1.2. Developing, together with the Publishers, a plan for the
orderly transition of Services ("Transition Plan") then
being performed by HealthGate from HealthGate to the
Publishers or such successor provider of Services.
33.1.3. Providing reasonable training for personnel of the
Publishers in the performance of the Services then being
transitioned to the Publishers or such successor provider of
Services.
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33.2. If HealthGate is then using any Equipment leased or owned by the
Publishers to provide services to any third party, HealthGate may
continue to use that Equipment for that purpose until such time as
HealthGate can reasonably transition to other equipment.
33.3. Upon receipt of written notice from the Publishers that HealthGate
is in default under this Agreement by failing to comply with the
requirements of this Clause 33, or that HealthGate is in default
under any provision regarding rights upon termination of this
Agreement, HealthGate shall have ten (10) business days in which to
cure such default. HealthGate acknowledges that, in the event
HealthGate fails to cure such default within the specified time
period, the Publishers would suffer irreparable harm, and
HealthGate, hereby agrees that the Publishers would in such event be
entitled to obtain from a court of competent jurisdiction an order
of specific performance, in addition to such other rights and
remedies to which it may be entitled at law or in equity under this
Agreement.
33.4. Upon the termination of this Agreement or HealthGate's engagement
whichever shall be the earlier, HealthGate or its personal
representative as the case may be, shall immediately deliver up to
the Publishers all correspondence, reports, documents,
specifications, papers, information (on whatever media) and property
belonging to the Publishers which may be in his possession or under
his control together with all confidential information or copyright
works belonging to the Publishers specified in Clauses 27 and 31
above.
34. General
34.1. Waiver
Failure or neglect by either party to enforce at any time any of the
provisions hereof shall not be construed nor shall be deemed to be a
waiver of that party's rights hereunder nor in any way affect the
validity of the whole or any part of this Agreement nor prejudice
that party's rights to take subsequent action.
34.2. Entire Agreement
This Agreement constitutes the entire agreement between the parties.
Each party confirms that it has not relied upon any representation
not recorded in this document or in its Schedules inducing it to
enter this Agreement. No variation of these terms and conditions
will be valid unless confirmed in writing by authorized signatories
of both parties.
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34.3. Assignment
HealthGate shall not transfer or assign the whole or any part of
this Agreement without the prior written consent of the Publishers.
34.4. Headings
he headings of the terms and conditions herein contained are
inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of any of the
terms and conditions of this Agreement.
34.5. Severability
In the event that any of these terms, conditions or provisions shall
be determined by any competent authority to be invalid, unlawful or
unenforceable to any extent, such term, condition or provision shall
to that extent be severed from the remaining terms, conditions and
provisions which shall continue to be valid to the fullest extent
permitted by law.
34.6. Notices
Any notice to be given by either party to the other may be sent by
registered post or airmail to the address to the other party as
appearing herein and if so sent shall be deemed to be served 4 days
following the date of posting, or may be sent by courier and if so
shall be deemed to be received when actually received.
34.7. Injunctive Relief
All claims within the scope of this Agreement that any party may
have against the other for monetary damages must, subject to Clause
29 (Source Code and Escrow), be pursued through the procedures
established in this Agreement. However, nothing in this Clause 34.7
will prevent any party from immediately seeking injunctive or other
equitable relief from any court having competent jurisdiction.
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34.8. Law
The parties hereby agree that this Agreement shall be construed in
accordance with English law. Any and all disputes between the
parties arising under or in connection with this Agreement which
cannot be resolved amicably by the parties, shall be resolved in the
courts located in London, England, except with respect to any action
brought by the Publishers against HealthGate, in which case
jurisdiction and venue shall be in Boston Massachusetts.
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Signing Provisions
SIGNED for and on behalf of the Publishers
by:
/s/ Xxxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxx
in the presence of:
/s/ [ILLEGIBLE] /s/ [ILLEGIBLE]
Date: 20.3.98 30.4.98
SIGNED for and on behalf of HealthGate
by:
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
in the presence of:
/s/ Xxxxx Xxxx
Date:
4.7.98
Schedules
1 Specification
2 Use Fees
3 Project Managers
4 Escrow
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