EXHIBIT 10.30
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This is a ("Agreement"),
effective as of the 29th of January, 1999 (the "Effective Date"), by and between
Adventist Health System Sunbelt Healthcare Corporation ("Adventist"), a Florida
not-for-profit corporation, and Empower Health Corporation ("EHC"), a Texas
corporation (individually a "party" and collectively, the "parties").
RECITALS
WHEREAS, EHC develops, markets and maintains an integrated suite of
Internet enabled, consumer oriented software applications and services,
including but not limited to, Xx. Xxxx'x Personal Medical Record System, Xx.
Xxxx'x Community, electronic commerce and electronic data interchange services,
and advertising and promotional services on the Internet at the wet site
xxxx://xxx.xxxxxx.xxx (collectively, the "EHC Web Site");
WHEREAS, EHC offers a service to healthcare providers, under Community
Partner Program Agreements, which enables such healthcare providers to associate
themselves with the EHC Web Site through: (a) a series of co-branded pages
located at a URL unique to the healthcare provider, which web pages are
customized for the healthcare provider, and (b) the right to link from such co-
branded pages to the EHC Web Site. Such co-branded healthcare provider sites
are referred to as Partner Communities (individually, a "Partner Community");
and
WHEREAS, Adventist desires to allow Adventist itself, its present and
future subsidiaries and health care organizations who are present customers on
HealthMagic, Inc.'s HealthCompass product (collectively the "Subscribing
Organizations") to execute Subscribing Organizations Community Partner Program
Agreements with EHC on a discounted basis, as well as allow other health care
organizations ("Other Organizations") to execute Standard Community Partner
Program Agreements with EHC.
NOW, THEREFORE, in consideration for the obligations stated in this
Agreement, and for other good and valuable consideration received by each of the
parties, the parties hereto agree as follows:
1. OFFER OF COMMUNITY PARTNER PROGRAM AGREEMENTS
During the Term of this Agreement, and as further described in Section 3
below, EHC agrees to execute the Subscribing Organizations Community Partner
Program Agreements (the "Subscriber CCP Agreements"), a form of which is
attached to this Agreement as Exhibit A, with the Subscribing Organizations and
the Standard Community Partner Program Agreements (the "Standard CCP
Agreements"), as adjusted pursuant to Section 4(b) of this Agreement, with Other
Organizations, a form of which is attached to this Agreement as Exhibit B.
Subscriber CCP Agreements and Standard CCP Agreements shall collectively be
referred to as "Community Partner Agreements."
2. PAYMENT BY ADVENTIST
(a) In accordance with the terms and conditions of this Agreement,
Adventist shall pay to EHC the sum of Five Hundred Thousand Dollars ($500,000)
upon execution of this Agreement in consideration for thirty-one (31) one year
licenses for Community Partner Agreements, which licenses shall be divided, at
Adventist's option, between Subscriber CPP Agreements and Standard CCP
Agreements. In addition, Adventist shall have the right to offer the opportunity
to enter into, and EHC agrees to execute, Subscriber CPP Agreements with
additional (beyond 31) Subscribing Organizations (as "not Initial Subscribing
Organizations") under the Subscriber CPP Agreement.
(b) Once the total number of Subscriber CCP Agreements and Standard CCP
Agreements entered into has collectively reached thirty-one (31) in number,
Adventist may not offer additional Standard CCP Agreements to Other
Organizations under the terms of this Agreement. Provided, however, that any
Subscriber CCP Agreement terminated under Section 1.2 of the Subscriber CCP
Agreement shall not count as one of the thirty-one Community Partner Agreements.
(c) In the event that EHC offers to a third party a license fee less than
the rate set forth in the Subscriber CCP Agreement, EHC shall offer to any
Subscribing Organization renewing a Subscriber CCP Agreement most favorite
nation pricing; provided that such most favored nation pricing shall be shifted
by an additional ten percent (10%) to the advantage of the Subscribing
Organization. This Section 3(c) shall survive termination of this Agreement. The
Subscribing Organizations are intended third party beneficiaries of this Section
3(c).
3. OTHER ORGANIZATIONS
(a) When Adventist provides an Other Organization to enter into a Standard
CCP Agreement, at rates to be determined by Adventist ("Other Organization
Subscriber Rates"), upon execution of the Standard CCP Agreement and payment of
the Other Organization Subscriber Rate to Adventist, if the Other Organization
Subscriber Rate charged to the Other Organization is less than Forty-Five
Thousand Dollars ($45,000), Adventist shall remit to EHC the difference between
Forty-Five Thousand Dollars ($45,000) and the Other Organization Subscriber Rate
paid by the Other Organization. Notwithstanding the foregoing, Adventist shall
obtain EHC's prior written consent before providing an Other Organization to
enter into a Standard CCP Agreement, which consent shall not be unreasonably
withheld or delayed and the sole justification for withholding such consent
shall be on the basis of reasonably protecting the high quality of EHC's
trademarks including the "Xx. Xxxx" name.
(b) The Standard CCP Agreement, a form of which is attached to this
Agreement as Exhibit B, shall be modified by the parties to create a Standard
CPP Agreement to effectuate the provisions of this Agreement, specifically
Section 4(a).
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4. CONFIDENTIALITY
(a) Either party (the "Disclosing Party") may from time to time disclose
Confidential Information to the other party (the "Recipient"). "Confidential
Information" means non-public information belonging to or in the possession or
control of a party which is of a confidential, proprietary or trade secret
nature that is furnished or disclosed to the other party under the Agreement:
(i) in tangible form and marked or designated in writing in a manner to indicate
its confidential, proprietary or trade secret nature, or (ii) in intangible form
and subsequently identified as confidential, proprietary or trade secret in a
writing provided to the receiving party within thirty (30) business days after
disclosure. During the term of this Agreement and for a period of two (2) years
thereafter, Recipient will keep in confidence and trust and will not disclose or
disseminate, or permit any employee, agent or other person working under
Recipient's direction to disclose or disseminate, the existence, source, content
or substance of any Confidential Information to any other person. Recipient will
employ at least the same methods and degree of care, but no less than a
reasonable degree of care, to prevent disclosure of the Confidential Information
as Recipient employs with respect to its own confidential patent data, trade
secrets and proprietary information. Recipient's employees and independent
contractors will be given to the Confidential Information only on a need-to-know
basis, and only if they have executed a form of non-disclosure agreement with
Recipient which imposes a duty to maintain the confidentiality of information
identified or described as confidential by Recipient and after Recipient has
expressly informed them of the confidential nature of the Confidential
Information. Recipient will not copy or load any of the Confidential Information
onto any computing device or store the Confidential Information electronically
except in circumstances in which Recipient has taken reasonable precautions to
prevent access to the information stored on such device or electronic storage
facility by anyone other than the persons entitled to receive the Confidential
Information hereunder. Notwithstanding the foregoing, confidential information
does not include information that the receiving party can establish (i) was, at
the time of disclosure to it, in the public domain, (ii) after disclosure to it,
is published or otherwise becomes part of the public domain through no fault of
the receiving party, (iii) was in possession of the receiving party at the time
of disclosure to it, as established by documentary evidence, (iv) was received
after disclosure to it from a third party who had a lawful right to disclose
such information, or (v) is legally required to be disclosed pursuant to a
judicial order.
(b) The obligation of confidentiality set forth in this Section 5 will
survive the termination or expiration of this Agreement.
5. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER
LOSS ARISING OUT OR RESULTING FROM THIS AGREEMENT EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each party will be liable for
direct damages only, in an
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amount not to exceed, in the aggregate for all claims, Five Hundred Thousand
Dollars ($500,000.00).
6. TERM AND TERMINATION
This Agreement will commence on the Effective Date and continue for three
(3) years (the "Term").
7. NOTICES
Any notice, request, instruction or other document or communication
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to be given upon (i) delivery in person, (ii) five (5) days
after being deposited in the mail, postage prepaid, for mailing by certified or
registered mail, (iii) one (1) day after being deposited with an overnight
courier, charges prepaid, or (iv) when transmitted by facsimile, with a copy
simultaneously sent as provided in clause (iii), in every case as follows:
For EHC: For Adventist:
Empower Health Corporation 000 Xxxxx Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxx Xxxxx Xxxxxx Xxxx, Xxxxxxx 00000-0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxx
Attn: Chief Financial Officer 407.975.1458 (facsimile)
or to such other address or addresses as may be specified in writing at any time
or from time to time by any party to the other parties hereto.
8. GENERAL
(a) This Agreement constitutes the entire understanding and agreement
between the parties, and supersedes all previous agreements (whether written or
oral) concerning the subject matter hereof. This Agreement may not be amended or
supplemented except by a written document executed by the parties to this
Agreement.
(b) Neither party may assign this Agreement nor any interest in this
Agreement without the prior written consent of the other party except that
either party may assign or transfer this Agreement without the consent of the
other party to an entity which acquires all or substantially all of the assets
of the assigning party or to any subsidiary or affiliate or successor in a
merger or acquisition of the assigning party.
(c) Any and all disputes, controversies and claims arising out of or
relating to this Agreement or concerning the respective rights or obligations of
the parties hereto shall be settled and determined by arbitration in Austin,
Texas before a panel of one (1) arbitrator pursuant to the Commercial Rules then
in effect of the American Arbitration Association. Each party shall have no
longer than three (3) days to present its position. Judgment upon the award
rendered may be
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entered in any court having jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order of enforcement. The
parties agree that the arbitrators shall have the powers to award damages,
injunctive relief and reasonable attorneys' fees and expenses to any party in
such arbitration.
(d) This Agreement shall be construed and enforced in accordance with the
laws of the State of Texas, but without giving effect to its laws or rules
relating to conflicts of laws.
(e) Except as may be required by applicable laws and regulations or a
court of competent jurisdiction, or as required to meet credit and financing
arrangements, or as required or appropriate in the reasonable judgment of either
party to satisfy the disclosure requirements of an applicable securities law or
regulation or any applicable accounting standard, neither party shall make any
public release respecting this Agreement and the terms hereof without the prior
consent of the other party.
(f) Neither party hereto shall be in default hereunder by reason of its
delay in the performance or failure to perform any of its obligations hereunder
for any event, circumstances, or cause beyond its control such as, but not
limited to, acts of God, strikes, lock-outs, general governmental orders or
restrictions, war, threat of war, hostilities, revolution, riots, epidemics,
power shortages, fire, earthquake, or flood. The party affected by any such
event shall notify the other party within a maximum period of fifteen (15) days
from its occurrence. The performance of this Agreement shall then be suspended
for as long as any such event shall prevent the affected party from performing
its obligations under this Agreement. If such suspension continues for more than
30 days, the other party may immediately terminate this Agreement and EHC will
remit a pro-rata refund of the fees paid by Customer.
(g) The provisions of this Agreement are severable, and in the event any
provision hereof is determined to be invalid or unenforceable, such invalidity
or unenforceability shall not in any way affect the validity or enforceability
of the remaining provisions hereof.
(h) The headings of the articles and several paragraphs of this Agreement
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(i) The waiver of a default hereunder by one party may be effected only by
a written acknowledgment signed by the other party and shall not constitute a
waiver of any other default. The failure of either party to enforce any right or
remedy for any one default shall not be deemed a waiver of said right or remedy
if the other party persists in such default or commits any other default, nor
shall such failure in any way affect the validity of this Agreement or any part
hereof.
(j) Nothing in this Agreement shall be deemed to constitute, create, give
effect to or otherwise recognize a partnership, joint venture or formal business
entity of any kind; and the rights and obligations of the parties shall be
limited to those expressly set forth herein. With the exception of Section 3(c)
above, there are no intended third party beneficiaries of any provision of this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives, effective as of the date set forth in
the introductory paragraph of this Agreement.
Adventist Health System Sunbelt Empower Health Corporation ("EHC")
HealthCare Corporation ("Adventist")
/s/ Xxxxxx X. Xxxxx /s/ X. Xxxxxxx
______________________________________ _____________________________________
(Signature) (Signature)
Xxxxxx X. Xxxxx Xxxxxx Xxxxxxx
______________________________________ _____________________________________
(Name Printed) (Name Printed)
Senior Vice President CEO
______________________________________ _____________________________________
(Title) (Title)
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