Confidential Information
ACTIVEPRESS JOURNAL HOSTING AND DELIVERY AGREEMENT
THIS AGREEMENT is effective as of 1st January 2000, by and between HealthGate
Data Corp., a Delaware corporation ("HealthGate"), having an address at 00
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 and Xxxxxxxxx
Science Limited, having an address at Xxxxx Xxxx, Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx
and Munksgaard International Publishers Limited of 00 Xxxxx Xxxxxx, Xxxxxxxxxx
XX 0000 Xxxxxxx (collectively the "Publisher").
WHEREAS, the Publisher is the owner and publisher of journals and the Publisher
desires to retain HealthGate to maintain, develop and host an on-line World Wide
Web ("Web") site for Content (as defined in SCHEDULE A attached hereto) relating
to its journals;
WHEREAS, HealthGate, among other business activities, hosts and distributes
health, biomedical and scientific Content for publishers through the Internet
using its activePress service;
NOW THEREFORE, in consideration of the foregoing, the mutual promises set forth
in this Agreement and for other good and valuable consideration, the receipt and
adequacy of which is acknowledged by all parties, the parties hereby agree as
follows:
1. SITE.
HealthGate shall design, develop, and mount the Content on servers and
host the Content on a Web site with the address of
xxxx://xxx.xxxxxxxxx-xxxxxxx.xxx (the "Site"). In establishing the
Site, HealthGate shall (i) mount the Content on its Hardware (as
defined in Section 7), (ii) make 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 users' Web-enabled computer equipment.
2. SITE SERVICE PLAN.
The Site Service Plan set forth in SCHEDULE B attached hereto contains
service and support specifications, including agreed communication
procedures for the notification and rectification of service errors.
3. CONTENT MAINTENANCE PLAN.
The Content Maintenance Plan set forth in SCHEDULE C attached hereto
contains details, procedures and specifications for posting Content to
the Site, including agreed processing objectives and communication
policies for handling error reports.
4. SOFTWARE MAINTENANCE AND DEVELOPMENT PLAN.
HealthGate has developed, licensed or otherwise acquired software to
operate the Site (collectively the "Software"). The Software
Maintenance Plan attached hereto contains details and descriptions of
the Software's functions and features and procedures for making minor
enhancements to the Software. HealthGate agrees to have Section 3 of
Schedule D implemented and approved by the Publisher by the effective
date of the agreement. The other sections of Schedule D shall be
implemented by HealthGate by the dates set out in the relevant sections
of Schedule D. Notwithstanding the foregoing, the Publisher may elect
to request the development of additional functions or features not
described in the Software Maintenance Plan. The fee for such
development described in Section 11 (e) is based upon the amount of
labor time (measured in hours) required by HealthGate to evaluate,
create and test each request.
5. PROJECT MANAGERS.
Both parties agree to name two Project Managers, who shall be
responsible for arranging all meetings, visits, and consultations
between the parties, for the transmission and receipt of technical
information between the parties, and for coordinating any agreed
implementations.
HealthGate: Xxxx Xxxxxx, Xxxxxxx Xxxxxx
Publisher: Xxx Xxxxxxxxx, Xxxx Xxxxx
All contact between HealthGate and the Publisher regarding the Site,
Content, Software and implementation and maintenance shall be
coordinated between the Project Managers. Either party may substitute
other individuals as Project Manager from time to time upon written
notice to the other party.
6. CONTENT AND SOFTWARE BACK-UP.
The Publisher shall provide all Content, including text and graphics,
for the Site. The Publisher, at its expense, shall deliver the Content
in electronic format to HealthGate as specified in the Content
Maintenance Plan. As set forth in Section 20 below, the Publisher
retains all ownership and copyrights of the Content. HealthGate will
not make or permit any changes to the Content without the written
consent of the Publisher. HealthGate shall make and maintain back-up
copies of all Content and Software pursuant to a schedule set forth in
the Site Service Plan. HealthGate shall store said back-up materials in
a commercially reasonable safe and secure environment and not located
at the same location as the Hardware.
7. SERVER HARDWARE AND EQUIPMENT.
HealthGate shall maintain the Site on HealthGate's Web server and/or
other servers through the Term of this Agreement. HealthGate shall
acquire and maintain all necessary equipment and hardware (collectively
the "Hardware") for the Site. The Hardware shall be capable of storing
the Content. HealthGate shall replace and upgrade, as needed, the
Hardware so that users of the Site may access the Site approximately 24
hours per day and receive information from the Site at speeds and
response times substantially equivalent to HealthGate's own Web site,
located at xxx.xxxxxxxxxx.xxx, from the United Kingdom.
8. SALES OF INFORMATION.
The Site will include functions to facilitate the sale of information,
such as articles, issues and subscriptions, to users of the Site via a
secure server to non-subscribers of the Content. The Publisher shall
establish all fees ("Information Fees") and other terms and conditions
for such sales. HealthGate shall collect the Information Fees
established by the Publisher. Within 60 days of the end of each
calendar month, HealthGate shall forward to the Publisher the net
Information Fees actually collected, which shall be equal to the
Information Fees less a Processing Fee for each sale which shall be
retained by HealthGate. The Processing Fee is further described in
Section 11 (f).
9. ACTIVITY REPORTS.
During the time that HealthGate hosts the Site, HealthGate shall
provide to the Publisher activity reports detailing performance, access
and usage of the Site. The Activity Reporting Plan is described
SCHEDULE E attached hereto. HealthGate agrees to have Schedule E
implemented and approved by the Publisher by the effective date of the
agreement.
10. ADVERTISING.
The Site shall be designed to include space for advertising. All
specifications concerning advertising space shall be determined by
mutual agreement of the Publisher and HealthGate. HealthGate shall use
the activePress advertising module to host, update, and administer
advertising banners on the site. The parties shall share the right to
sell advertising banners on the Site, but all advertising is subject to
prior review and approval by the Publisher, which approval shall not be
unreasonably withheld. Revenues from advertisers shall be allocated
between both parties as described in Section 11 (g) below.
11. SCHEDULE OF FEES.
(a) SITE MAINTENANCE. The Publisher shall remit to HealthGate
$145,000 annually for Site maintenance services outlined in
the Site Service Plan.
(b) CONTENT CONVERSION. The Publisher shall remit to HealthGate an
annual fee of $346,500 for converting for release via the Site
the Content which shall comprise up to 210 individual journal
titles. This fee shall apply whether or not the Publisher
supplies HealthGate with Content for 210 individual journal
titles. If the Publisher supplies HealthGate with Content from
more than 210 individual titles the Publisher shall remit to
HealthGate an annual fee of $1650 for each additional
individual journal title of the Content converted for release
via the Site. If content for a particular additional title is
not loaded in the first half of the year (i.e. it is not
loaded in the period January through June) and, instead, is
introduced for the first time and loaded in the second half of
the year (i.e. it is loaded in the period July through
December) the annual fee in the year it is first loaded shall
be $1000. Further, if the Publisher chooses to supply Content
from journal titles in excess of the initial 210 and these
additional titles shall be in the form of bibliographic
headers and PDF files only, then the annual conversion fee
shall be $1450.
Content Conversion fees will be reviewed by mutual agreement
each quarter to take account of potential savings as a result
of changes in working methods. For example, the content
conversion fees could be reduced if the publisher supplies
full-text content in XML.
(c) CONTENT STORAGE. The Publisher shall remit to HealthGate an
annual fee of $123,000 for 200 gigabytes of storage of the
Content on the Hardware. After one year the Publisher and
HealthGate will meet and review the requirement for additional
storage. The annual fee that the Publisher will pay HealthGate
for additional storage shall be no greater than $600 for each
additional gigabyte of storage of the Content on the Hardware
in excess of 200 gigabytes of storage.
(d) SOFTWARE MAINTENANCE. The Publisher shall remit to HealthGate
an annual license fee of $191,000 fee for maintaining the
Software as described in the Software Maintenance Plan. This
fee includes an allowance of 48 working days (equivalent to
384 hours) of development labor time per year for HealthGate
to make minor changes to the Software as requested by the
Publisher and agreed to by HealthGate, whose agreement shall
not be unreasonably withheld.
(e) SOFTWARE DEVELOPMENT. The Publisher shall remit to HealthGate
a fee of $1,200 for each 8 hours of labor time used for the
development of additional functions or features not described
in the Software Maintenance Plan.
(f) PROCESSING FEE. The Publisher shall remit a Processing Fee, as
described in Section 8 above, equal to 25% of each Information
Fee relating to the on-line sale of an individual journal
article processed by HealthGate. The minimum Processing Fee
shall be equal to $4.00 per sales transaction processed by
HealthGate. Information Fees relating to the sale of a Journal
subscription are not subject to a processing fee.
(g) ADVERTISING. Each party shall receive 30% of the gross
advertising revenue for advertising sales on the Site (as
described in Section 10) originated by the other party.
Advertising can be sold either on the basis of a per thousand
impressions rate or on the basis of a time-limited period,
subject to minimum fees of $10 per thousand impressions and
$100 per page per month.
(h) RE-SUPPLY AND RE-WORK OF CONTENT. The Publisher may re-supply
SGML Content and request HealthGate to convert it again for
release via the Site. The Publisher will use its best efforts
to re-supply less than 25 issues per month. The Publisher
shall remit to HealthGate a fee of $100 for each re-supplied
issue of a journal title per month in excess of 25 issues per
month for which the Publisher requests HealthGate to convert
again for release via the Site, subject to a maximum of $5,000
per financial quarter. The Publisher can re-supply for
conversion a particular issue to HealthGate up to a maximum of
two times. If an issue is re-supplied more than two times, the
Publisher shall remit to HealthGate a fee of $100 for each
additional re-supply of the issue. The Project Managers of
both parties can meet and agree to waive or adjust the
re-supply fee in exceptional circumstances, such as one where
the Publisher may request a systematic change to Content.
(i) ACTIVITY REPORTS. All payments and fees described in Section
11 (f) shall be based upon the relevant activity reports
described in the Activity Reporting Plan, as described in
Schedule E.
(j) ESCROW ACCOUNT. The Publisher shall pay all fees associated
with the escrow account described in Section 24 (b).
(k) PAYMENT. All payments in respect of the fee schedule shall be
in made within 30 days of receipt of an invoice. All late
payments shall bear interest at a rate equal to 1% per month
until paid in full.
12. PUBLISHER PAYMENT SCHEDULE.
Subject to HealthGate performing its obligations within the terms and conditions
of this Agreement, HealthGate shall invoice the Publisher for payment according
to the following annual schedule:
(a) (i) On 1 January of each year of the Agreement:
SOFTWARE MAINTENANCE - 50% of the annual software
maintenance fee.
CONTENT CONVERSION - 25% of the annual content conversion
fee of $346,500, plus 25% of the applicable fees for any
journal added to the Site beyond the 210 titles described in
Section 11 (b).
SITE MAINTENANCE - 25% of the annual site maintenance fee.
CONTENT STORAGE - 25% of the annual content storage fee.
(ii) On 1 April of each year of the Agreement:
SOFTWARE MAINTENANCE - 25% of the annual software
maintenance fee.
CONTENT CONVERSION - 25% of the annual content conversion fee
of $346,500, plus 25% of the applicable fees for any journal
added to the Site beyond the 210 titles described in Section
11 (b).
SITE MAINTENANCE - 25% of the annual site maintenance fee.
CONTENT STORAGE - 25% of the annual content storage fee.
(iii) On July 1 of each year of the Agreement:
SOFTWARE MAINTENANCE - 25% of the annual software maintenance
fee.
SITE MAINTENANCE - 25% of the annual site maintenance fee.
CONTENT CONVERSION - 25% of the annual content conversion fee
of $346,500, plus 25% of the applicable fees for any journal
added to the Site beyond the 210 titles described in Section
11 (b).
CONTENT STORAGE - 25% of the annual content storage fee.
(iv) On 1 October of each year of the Agreement
CONTENT CONVERSION - 25% of the annual content conversion fee
of $346,500, plus 25% of the applicable fees for any journal
added to the Site beyond the 210 titles described in Section
11 (b).
SITE MAINTENANCE - 25% of the annual site maintenance fee.
CONTENT STORAGE - 25% of the annual content storage fee.
(b) SOFTWARE DEVELOPMENT - Software development fees will be
invoiced on completion of the implementation of the functions
or features to which they relate, subject to the written
approval of the publisher that they perform according to the
Publisher's original specification of requirements. Extension
of the development time as a result of modifications by the
Publisher to the original specification will not be grounds
for delaying payment.
(c) OTHER FEES - All other fees shall be invoiced on a monthly
basis.
13. MILESTONES AND DELIVERABLES.
Any failure by HealthGate in meeting the throughput processing
objective time of 3 working days, as described in Schedule C, will
constitute a breach of this agreement and be subject to the procedure
for termination as defined in Section 17 (b). Further, if HealthGate
fails to process the Content of any journal issue within the processing
objective time of 3 working days, as described in Schedule C,
HealthGate, recognizing the loss caused to the Publisher, will on
demand pay to the Publisher an amount of money equivalent to the sum of
$2,000 per issue, subject to a maximum of $50,000 per financial
quarter, for all issues processed in each financial quarter.
Such sums of money will be paid by HealthGate to the Publisher not as a
penalty, but as and for the ascertained and liquidated damages owing
and payable by HealthGate to the Publisher by reason of such failure to
meet the processing objectives.
14. DISTRIBUTION RIGHTS.
The Publisher grants to HealthGate the right to sell individual
articles and subscriptions to the Content through HealthGate's own Web
sites, subject to mutually agreeable terms negotiated between the
parties for this activity.
15. INITIAL TERM.
The Initial Term of this Agreement shall commence on the date first
noted above and, unless terminated earlier as set forth herein, shall
continue for a period of two (2) years after such date (the "Initial
Term").
16. RENEWAL.
After the Initial Term, this Agreement shall renew for additional
consecutive periods of one (1) year subject to termination in
accordance with Section 17. Both parties agree to negotiate, in
good faith, any changes in payment terms for the subsequent term
beginning 120 days before the end of the Initial Term and for each
subsequent annual term.
17. TERMINATION.
(a) END OF TERM. Either party may terminate this Agreement upon
the last date of the Initial Term or any subsequent renewal
term by giving written notice of termination to the other
party no later than ninety (90) days prior to the end of the
Initial Term or of any subsequent one year term.
(b) BREACH. Either party may terminate this Agreement by giving
written notice of termination to the other party if that party
is in breach of any term, condition or provision of this
Agreement and fails to remedy such breach within thirty (30)
days of receipt of such notice.
(c) CHANGE OF CONTROL OF HEALTHGATE. The Publisher may terminate
this Agreement by giving written notice of termination to
HealthGate if there is a change in control of HealthGate. For
the purpose of this section, a person shall have "Control" of
HealthGate 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 HealthGate
and is a direct competitor of the Publisher. For the purpose
of this section, a "direct competitor" shall be defined as a
company that derives more than 50% of its sales revenues from
the activity of publishing scientific, technical and medical
journals.
(d) BANKRUPTCY. Either party may terminate this agreement 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.
Upon the termination of this Agreement, HealthGate or its personal
representative as the case may be, shall immediately deliver up to the
Publisher all correspondence, reports, documents, specifications,
papers, information (on whatever media) and property belonging to the
Publisher which may be in his possession or under his control together
with all confidential information or copyright works belonging to the
Publisher. HealthGate shall erase the Content from its servers and
otherwise discontinue any use of the content within ten (10) working
days of the date of the termination.
18. TERMINATION SUPPORT
In the event of termination of this Agreement by the Publisher pursuant
to Section 17, the Publisher will have the following rights and
obligations:
HealthGate will comply with the Publisher's reasonable directions, and
will provide the Publisher any and all termination assistance
reasonably requested by the Publisher to allow the Services to continue
and to facilitate the orderly transfer of responsibility for the Site
to the Publisher or a successor provider of the Site designated by the
Publisher. The Publisher agrees to pay HealthGate fees for services
associated with the transition. The rate and amount of such payment
shall be determined by both parties agreeing to meet and use their best
endeavors to develop a Post Termination Support plan.
The Termination assistance to be provided to the Publisher by
HealthGate may include the following:
(a) HealthGate will liaise with the Publisher, making available
for such purpose such HealthGate liaison staff as the
Publisher may reasonably require, and acting in all good
faith, to ensure a mutually satisfactory license of the
Software to the Publisher or, at the Publisher's 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;
(b) 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 Site by the
Publisher or, at the Publisher's option, by a replacement
contractor;
(c) If the Publisher so require, HealthGate will use its best
endeavours to procure the transfer at the Publisher's expense,
to the Publisher or to a third party nominated by the
Publisher at the Publisher's sole discretion, of any Third
Party Software licenses HealthGate may have obtained in its
own name in order to run the Site and used for that purpose
exclusively;
(d) HealthGate will develop, together with the Publisher, a plan
for the orderly transition of services ("Transition Plan")
then being performed by HealthGate from HealthGate to the
Publisher or such successor provider.
(e) HealthGate will provide reasonable training for personnel of
the Publisher in the performance of the services then being
transitioned to the Publisher or such successor provider of
Services
19. POST TERMINATION SUPPORT IN THE EVENT OF BANKRUPTCY
In the event of termination of this Agreement by the Publisher as a
result of HealthGate committing an act of bankruptcy as set forth in
17(d) and for a period of six (6) months thereafter, HealthGate will
provide the Termination Support set forth in Section 18 herein. In
addition, HealthGate will continue to perform, for a reasonable period
(as determined by the Publisher) of up to six (6) months following the
termination date, any or all of the services then being performed by
HealthGate.
In the event of HealthGate committing an act of bankruptcy as set
forth in 17(d), the Publisher agrees to pay HealthGate fees for
services associated with the transition. The rate and amount of such
payment shall be determined by both parties agreeing to meet and use
their best endeavors to develop a Post Termination Support Plan. This
plan would be subject to the relevant statutory provisions under the
applicable law.
20. INTELLECTUAL PROPERTY RIGHTS.
(a) HEALTHGATE PROPERTY. HealthGate or its licensors shall own and
retain all right, title and interest in (i) the Software and
(ii) any patents, copyrights, database rights or other
proprietary rights in the Software; and (iii) computer code
written by HealthGate for the format, appearance and
presentation of the Software and Site (collectively, the
"HealthGate Properties").
(b) PUBLISHER'S PROPERTY. The Publisher shall own and retain all
right, title and interest in the Content and any derivative
work based upon the Content; the Publisher's trade names,
trademarks and service marks; any other information of the
Publisher provided to HealthGate hereunder and the format,
appearance and presentation of the Site (collectively,
"Publisher's Property").
(c) HEALTHGATE CONFIDENTIAL INFORMATION. The Publisher understands
and acknowledges that the HealthGate Properties are subject to
protection as patented or copyrighted works of authorship of
HealthGate or HealthGate's suppliers under United States law,
and represent valuable confidential or proprietary information
of HealthGate. Further, the Publisher understands and
acknowledges that any confidential information pertaining,
inter alia, to HealthGate's customers, finances, internal
operations and methods of compiling, manipulating, presenting
and disseminating Software or information, which is disclosed
to the Publisher (collectively, "HealthGate Confidential
Information"), represent valuable confidential information of
HealthGate entitled to protection as trade secrets. The
Publisher shall keep confidential, and shall protect from
unauthorized disclosure by its employees and agents, the
HealthGate Confidential Information and all copies or physical
embodiments thereof in any media in its possession, and shall
limit access to such HealthGate Confidential Information to
those of its personnel who require such access in connection
with the Publisher 's use thereof as permitted by this
Agreement. The Publisher shall secure and protect the
HealthGate Confidential Information and any and all copies and
other physical embodiments thereof in any media in its
possession in a manner consistent with the steps taken by the
Publisher to protect its own trade secrets. The Publisher
shall take appropriate action by instruction or agreement with
its employees who are permitted access to the HealthGate
Confidential Information or any copy or other physical
embodiment thereof in any media in its possession, to satisfy
its obligations hereunder. Promptly upon discovery that any
person has acquired possession, use or knowledge of any part
of the HealthGate Confidential Information other than as
authorized by this Agreement, the Publisher shall notify
HealthGate of such fact and the surrounding circumstances. The
obligations of this Section 20(c) shall survive any
termination of this Agreement. The obligations of this Section
20(c) shall not apply to any information which (a) is
generally known to the public, or becomes so known other than
by reason of a breach by the Publisher of its obligations
hereunder, (b) was known to the Publisher prior to its
disclosure by HealthGate, or (c) is learned by the Publisher
from a third party who is not in breach of an obligation of
confidentiality in making such disclosure.
(d) PUBLISHER'S CONFIDENTIAL INFORMATION. HealthGate understands
and acknowledges that any Publisher's Property contained in
the Site, are subject to protection as copyrighted works of
authorship of the Publisher, and represent valuable or
proprietary confidential information of the Publisher.
Further, HealthGate understands and acknowledges that the
Publisher information pertaining, INTER ALIA, to the
Publisher's subscribers, customers, finances, internal
operations, sales practices, procedures and methods of
compiling, manipulating, presenting and disseminating
information which is disclosed to HealthGate (collectively,
"Publisher's Confidential Information"), represent valuable
confidential information of the Publisher entitled to
protection as trade secrets. HealthGate shall keep
confidential, and shall protect from unauthorized disclosure
by its employees and agents, the Publisher's Confidential
Information and all copies or physical embodiments thereof in
its possession, and shall limit access to such Publisher's
Confidential Information to those of its personnel and
personnel of its consultants or agents who require such access
in connection with HealthGate's use thereof as permitted by
this Agreement. HealthGate shall secure and protect the
Publisher's Confidential Information and any and all copies
and other physical embodiments thereof in its possession in a
manner consistent with the maintenance of the Publisher 's
rights and interest therein. HealthGate shall take appropriate
action by instruction or agreement with its employees, agents
and consultants who are permitted access to the Publisher's
Confidential Information or any copy or other physical
embodiment thereof, to satisfy HealthGate's obligations
hereunder. Promptly upon discovery that any person has
acquired possession, use or knowledge of any part of the
Publisher's Confidential Information other than as authorized
by this Agreement, HealthGate shall notify the Publisher of
such fact and the surrounding circumstances. The
obligations of this Section 20 (d) shall survive any
termination of this Agreement. The obligations of this Section
20 (d) shall not apply to any information which (a) is
generally known to the public, or becomes so known other than
by reason of a breach by HealthGate of its obligations
hereunder, (b) was known to HealthGate prior to its disclosure
by the Publisher, or (c) is learned by HealthGate from a third
party who is not in breach of an obligation of confidentiality
in making such disclosure.
(e) PUBLIC AUTHORITY EXCEPTIONS. The parties' respective
obligations under this Section 20 shall not apply where
disclosure is required, directed or ordered by statute,
regulation or a public authority, in legal or administrative
proceedings, including without limitation in connection with
the filing of statements to the Securities Exchange Commission
("SEC") regarding the sale of securities or any state
authority or otherwise. Notwithstanding the foregoing, and so
that the other party may timely present its objections to such
disclosure, each party shall provide the other party with
timely notice of a request, requirement or demand to disclose
such information or matter which is either made by a public
authority, directed to a public authority or required by the
rules and regulations of statute, regulation or a public
authority.
21. REPRESENTATIONS AND WARRANTIES.
(a) AUTHORITY. Each party hereby represents and warrants that it
has the full right, power and authority to enter into and
perform this Agreement, and this Agreement has been duly
authorized, executed and delivered and constitutes the valid
and binding obligation of such party enforceable in accordance
with its terms.
(b) HEALTHGATE. HealthGate 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
Software, except for items that are in the public domain or
that are obtained under valid licenses, (ii) it has and will
have throughout the term of this Agreement the right to grant
the license granted herein, and (iii) the HealthGate Property
licensed hereunder does not and will not infringe any trade
name, trademark or copyright.
(c) THE PUBLISHER. The 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
and Publisher Properties, except for items that are in the
public domain or that are obtained under valid licenses, (ii)
it has and will have the right to grant the license granted
herein, and (iii) the Publisher Content and Property do not
and will not infringe any trade name, trademark or copyright.
(d) MILLENNIUM COMPLIANCE. HealthGate warrants that (i) the
occurrence or use 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 (ii) the site will create,
store, receive, process and output information related to or
including Millennial Dates without error or omissions.
22. INDEMNIFICATION.
(a) THE PUBLISHER'S INDEMNIFICATION. The Publisher shall
indemnify, defend and hold harmless HealthGate and its
officers, employees, agents, affiliates and subsidiaries
against and from all losses, expenses, damages and costs
including, without limitation, reasonable attorneys' fees,
that may at any time be incurred by any of them by reason of
(i) any allegation, claim or suit threatened, made or brought
against any of them related to any matter covered by the
representations and warranties or set forth in Sections 21 (a)
and 21 (c) above, and (ii) any allegation, claim or suit
threatened, made or brought against any of them that is based
upon or arises from any actual or alleged error, inaccuracy or
other defect in the Publisher's Content or Properties.
(b) HEALTHGATE'S INDEMNIFICATION. HealthGate shall indemnify,
defend and hold harmless each Publisher and its officers,
employees, agents, affiliates and subsidiaries against and
from all losses, expenses, damages and costs including,
without limitation, reasonable attorney's fees, that may at
any time be incurred by any of them by reason of any
allegation, claim or suit threatened, made or brought against
any of them related to any matter covered by the
representations and warranties set forth in Sections 21 (a)
and 21 (b) above.
(c) NOTICE; DEFENSE OF CLAIMS. Each party shall give prompt
written notice to the other party of any claim for
indemnification hereunder, specifying to the extent known the
amount and nature of the claim, and any matter which in the
opinion of such party is likely to give rise to an
indemnification claim. The indemnifying party shall have the
right to control the defense through counsel of its choosing.
The indemnified party shall have the right to the extent of
its interests to participate on its own behalf and at its own
expense in such matter or its settlement through counsel of
its choosing.
23. EXCLUSION OF IMPLIED WARRANTIES AND LIMITATION OF LIABILITY.
EXCEPT AS SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY OR
REPRESENTATION TO THE OTHER, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY'S LIABILITY
UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS MADE BY THE
PUBLISHER TO HEALTHGATE PURSUANT TO THIS AGREEMENT.
24. MISCELLANEOUS.
(a) LICENSE OF SOFTWARE. Notwithstanding any other term or
provision of this Agreement or the Content Maintenance Plan,
HealthGate retains all right, title and interest to the
Software (as defined in Section 4 hereof), computer code
written by HealthGate for the design, format, appearance and
presentation of the Site, the Software, the Software
Maintenance Plan and other HealthGate Properties (as defined
in Section 20 (a) hereof). The Agreement grants to the
Publisher a non-exclusive, non-transferable license to utilize
the Software with respect to the Site during the Term of this
Agreement as provided in and subject to the terms of this
Agreement. Without limiting the generality of the foregoing,
HealthGate may utilize and/or license the Software and other
HealthGate Properties for itself or for others without any
compensation or liability to the Publisher, provided however
that upon expiration or termination of this Agreement, the
Publisher may, without any obligation to HealthGate utilize
the design, format, appearance and presentation of the Site in
any manner which the Publisher deems appropriate.
(b) SOFTWARE ESCROW. HealthGate agrees to place into escrow, at a
location to be mutually agreed upon by the parties, all
applicable source code used to provide the services outlined
in this Agreement. The Publisher shall pay all fees associated
with the escrow account. The Publisher may not access the
escrow account except in the case of HealthGate's bankruptcy.
(c) RELATIONSHIP OF PARTIES. The relationship of the parties
hereto shall be that of independent contractors. Nothing
herein shall be construed to create any partnership, joint
venture, or similar relationship or to subject the parties to
any implied duties or obligations respecting the conduct of
their affairs which are not expressly stated herein. Neither
party shall have any right or authority to assume or create
any obligation or responsibility, either express or implied,
on behalf of or in the name of the other party, or to bind the
other party in any matter or thing whatsoever.
(d) NOTICES. Notices to either party under or relating to this
Agreement shall be in writing to the address indicated on the
first page of this Agreement, Attention: President, and shall
be deemed effective when received, or on the second day
following the date after depositing the notice with a
reputable, overnight delivery service (such as FedEx or
U.P.S.).
(e) SEVERABILITY. The terms and conditions of this Agreement are
severable. If any term or condition of this Agreement is
deemed to be illegal or unenforceable under any rule of law,
all other terms shall remain in force. Further, the term or
condition which is held to be illegal or unenforceable shall
remain in effect as far as possible in accordance with the
intention of the parties.
(f) ENTIRE AGREEMENT; MODIFICATIONS. The parties hereto agree that
this Agreement represents the complete and exclusive statement
of the Agreement between the parties, and supersedes all prior
proposals and understandings, oral or written, relating to the
subject matter of this Agreement. This Agreement may be
amended only in writing executed by the parties hereto.
(g) EFFECT OF WAIVER. Failure by either party to enforce any
provision of this Agreement shall not be deemed a waiver of
that provision or of any other provision of this Agreement.
(h) FORCE MAJEURE. Neither party shall be responsible for any
delay nor failure in performance resulting from acts beyond
the control of such party. Such acts shall include but not be
limited to an act of God; an act of war; a riot; an epidemic,
fire, flood or other disaster; an act of government; and a
strike or lockout; provided that, in order to be excused from
delay or failure to perform, such party must act diligently to
remedy the cause of such delay or failure.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of England and Wales.
(j) VENUE. 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 Publisher against HealthGate, in which case
jurisdiction and venue shall be the Commonwealth of
Massachusetts, USA.
(k) ARBITRATION. Any question, dispute, disagreement, or
difference of any kind whatsoever which may arise between the
Publisher and HealthGate under, out of, or in connection with
this Agreement, or the carrying out of the work hereunder
(whether during the progress of the work or after its
completion, and whether before or after the termination
abandonment or breach of this Agreement) shall be tried to be
settled amicably upon mutual consultation with good faith, and
in failing so shall be submitted to arbitration in Boston,
Massachusetts to a panel of one arbitrator under the rules of
the American Arbitration Association.
(l) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall take effect as an original,
and all of which, together, shall evidence one and the same
Agreement.
(m) SECTION HEADINGS; EXHIBITS. The section, subsection and
Schedule headings used herein are for reference and
convenience only, and shall not enter into the interpretation
hereof. The Schedules referred to herein and attached hereto,
or to be attached hereto, are incorporated herein to the same
extent as if set forth in full herein.
(n) NEUTRAL CONSTRUCTION. The parties to this Agreement agree that
this Agreement was negotiated fairly between them at arm's
length and that the final terms of this Agreement are the
product of the parties' negotiations. Each party warrants and
represents that it has sought and received legal counsel of
its own choosing with regard to the contents of this Agreement
and the rights and obligations affected hereby. The parties
agree that this Agreement shall be deemed to have been jointly
and equally drafted by them, and that the provisions of this
Agreement therefore should not be construed against a party or
parties on the grounds that the party or parties drafted or
was more responsible for drafting the provision(s).
(o) EMPLOYEES. Neither HealthGate nor the Publisher shall hire or
seek to engage the services of, nor offer to pay commissions,
compensation or any other form of incentives to the employees
or consultants of the other for any purpose whatsoever without
the express written consent of the other party. This provision
shall expire twelve (12) months
after the termination of this Agreement.
(P) NO ASSIGNMENT. Neither party may sell, transfer, assign, or
subcontract, any right or obligation set forth in this
Agreement without the express advance written consent of the
other party, such consent shall not be unreasonably withheld.
(Q) COOPERATION. Each party shall cooperate with the other party
as is reasonably necessary to further the purposes of this
Agreement and the other party's performance hereunder.
Executed as of the date set forth above, as a document under seal, by the duly
authorized representatives of the parties hereto.
HealthGate Data Corp.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx
Chief Executive Officer
Xxxxxxxxx Science Limited and and Munksgaard International Publishers Limited
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
