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EXHIBIT 10.30
WEB CONTENT AGREEMENT
THIS WEB CONTENT AGREEMENT (the "Agreement") is entered into as of this
day of October 1999 (the "Effective Date") by and between xxxxxxxxxxxxx.xxx,
Inc. (hereinafter "xxxxxxxxxxxxx.xxx"), a corporation organized and existing
under the laws of Delaware and having a principal place of business at 000
Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000, and xxxxxxx.xxx, Inc.
(hereinafter "medibuy") having a principal place of business at _______________
xxxxxxxxxxxxx.xxx and medibuy are the parties to this Agreement.
BACKGROUND
A. xxxxxxxxxxxxx.xxx is an Internet-based services company providing
connectivity and information management services in the healthcare industry for
xxxxxxxxxxxxx.xxx Users through the xxxxxxxxxxxxx.xxx Site. xxxxxxxxxxxxx.xxx
desires to give xxxxxxxxxxxxx.xxx Users the ability to register on and use the
medibuy Site to purchase supplies and equipment.
B. medibuy is an Internet-based services company that enables medibuy
Users to conduct their procurement and selling activities through the medibuy
Services.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the adequacy and sufficiency of which consideration is hereby
acknowledged, xxxxxxxxxxxxx.xxx and medibuy agree as follows:
AGREEMENT
ARTICLE 1. DEFINITIONS
1.1. As used in this Agreement and Background Section, the following terms
have the stated meanings:
a. "CONFIDENTIAL INFORMATION" means both parties' valid and subsisting
trade secrets, confidential information, client lists, test codes,
test information, contact information and know-how and show-how
embodied in and/or related to the parties' products and services, as
evidenced by or embodied in any business or technical information,
idea, design, concept, technique, invention, discovery or
improvement, whether or not patentable, which is not generally
known. Confidential Information shall specifically include (i) the
terms and conditions of this Agreement, and (ii) any user
information and data, including, without limitation, registration
information, collected by either party under the terms of this
Agreement.
b. "MEDIBUY SITE" means any of the web sites owned and/or operated or
that come to be owned and/or operated by medibuy (e.g., the one
currently located at XXX.XXXXXXX.XXX at such URL or locations as
medibuy may designate.
c. "MEDIBUY SERVICES" means the services made available to
xxxxxxxxxxxxx.xxx Users from the medibuy Site via the Links as more
fully described in Exhibit C, and shall include such additional
services that medibuy makes available to xxxxxxxxxxxxx.xxx Users as
authorized under this Agreement.
d. "NET REVENUE" means all revenue paid to medibuy that is attributable
to transactions conducted by Joint Users (as defined below)
utilizing the medibuy Services, and which revenue is actually
received by medibuy during the term of this Agreement or the winding
down period provided for in Article 9, Section 9.4 of this
Agreement. The foregoing notwithstanding, the following items shall
be excluded
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from Net Revenue: (i) amounts that medibuy rebates to any Joint
Users or their affiliated group purchasing organization in respect
of purchases made by such Joint User; any credit card or other fees
charged to and payable by medibuy as a result of the method of
payment selected by Joint Users; (iii) any refund that medibuy makes
to any Joint User, which amount would have been included in Net
Revenue had it not been refunded; and (iv) vendor subscription fee
payments to medibuy.
e. "XXXXXXXXXXXXX.XXX SITE" means any of xxxxxxxxxxxxx.xxx's Internet
web sites targeted to persons and entities in the healthcare
industry (e.g., the one currently located at
"XXX.XXXXXXXXXXXXX.XXX") that xxxxxxxxxxxxx.xxx owns, maintains, is
directly or indirectly affiliated with, or hosts and on which
xxxxxxxxxxxxx.xxx is authorized by this agreement to place the links
and other information supplied by medibuy in order to effect the
purposes of this Agreement. Each web site may have multiple web
pages and may have a different domain name and/or IP address, and
may be hosted by one or more different servers in one or more
different locations.
f. "XXXXXXXXXXXXX.XXX USERS" means all persons or entities that have
registered with xxxxxxxxxxxxx.xxx to access any of the
xxxxxxxxxxxxx.xxx Sites.
g. "INTELLECTUAL PROPERTY RIGHTS" means the worldwide intangible legal
rights or interests evidenced by or embodied in: (i) any idea,
design, concept, method, process, technique, apparatus, invention,
discovery, or improvement, including any patents, trade secrets, and
know-how; (ii) any work of authorship, including any copyrights,
moral rights or neighboring rights; (iii) any trademark, service
xxxx, trade dress, trade name, or other indicia of source or origin;
and (iv) any other similar rights. The Intellectual Property Rights
of a party include all worldwide intangible legal rights or
interests that the party may have acquired by assignment or license
with the right to grant sublicenses.
h. "LINKS" means a direct link or links from the xxxxxxxxxxxxx.xxx Site
to the medibuy Site that will allow xxxxxxxxxxxxx.xxx Users to click
on a graphical and/or textual element located on the
xxxxxxxxxxxxx.xxx Site and be connected to the medibuy Site as more
fully described in Exhibit A.
i. "MARKS" means trademarks, trade names, brands, logos, service marks
and other such business identifiers.
j. "PERFORMANCE STANDARDS" means the requirements specified in Exhibit
C attached hereto.
k. "JOINT USER" means a xxxxxxxxxxxxx.xxx User who registers as a
medibuy User through the xxxxxxxxxxxxx.xxx Site.
ARTICLE 2. LICENSE
2.1 LICENSE TO XXXXXXXXXXXXX.XXX. Subject to the terms and conditions of
this Agreement, and solely for the purpose of promoting the objectives
of this Agreement, medibuy grants to xxxxxxxxxxxxx.xxx the revocable,
nonexclusive, worldwide license to provide xxxxxxxxxxxxx.xxx Users with
the ability to register as medibuy Users through the xxxxxxxxxxxxx.xxx
Site. Without limiting the foregoing, the license granted to
xxxxxxxxxxxxx.xxx hereby shall include the right to:
a. use, copy, adapt, distribute, publicly perform and publicly display,
incorporate, transmit, publish, promote, and advertise the medibuy
Site (or any portion thereof), as described in Exhibit A;
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b. establish Links or other pointers from the xxxxxxxxxxxxx.xxx Site to
the medibuy Site;
c. authorize xxxxxxxxxxxxx.xxx Users to use and access the medibuy
Services; and
d. use, reproduce, publicly perform, and publicly display medibuy's
Marks in connection with establishing the Links, and for the purpose
of facilitating the promoting and advertising of the medibuy
Services, provided that xxxxxxxxxxxxx.xxx makes no substantive
modifications to medibuy's Marks unless medibuy has approved such
substantive modification in writing.
This license shall include the right to display any third party marks or
proprietary information that is available by links to such third-party
site through the medibuy Site, but only to the extent that medibuy is
authorized by such third parties to display such marks or proprietary
information.
2.2 LICENSE TO MEDIBUY. Subject to the terms and conditions of this
Agreement, and solely for the purpose of promoting the objectives of
this Agreement, xxxxxxxxxxxxx.xxx grants to medibuy a revocable,
nonexclusive, worldwide license and right to use xxxxxxxxxxxxx.xxx's
Marks in making medibuy Services available to Joint Users. medibuy may
use xxxxxxxxxxxxx.xxx's Marks as permitted hereunder, provided that
medibuy makes no substantive modifications to xxxxxxxxxxxxx.xxx's Marks,
unless xxxxxxxxxxxxx.xxx has approved such substantive modification in
writing. medibuy may also use the xxxxxxxxxxxxx.xxx Marks in any
advertising or promotional material that accurately describes the nature
of the relationship created between xxxxxxxxxxxxx.xxx and medibuy under
this Agreement.
2.3 NO OTHER LICENSES. All rights not expressly granted to either party in
this Article or elsewhere in this Agreement are reserved. Nothing
contained in this Agreement shall be construed as conferring by
implication, estoppel, or otherwise upon either party any license or
other right, except for the licenses and rights expressly granted in
this Article 2 and solely for the purposes stated in said Article.
ARTICLE 3. GENERAL OBLIGATIONS OF THE PARTIES
3.1 MEDIBUY'S GENERAL OBLIGATIONS. medibuy shall be responsible for the
following duties, in addition to other duties that may be specified
herein:
a. MAINTENANCE, OPERATION, AND CONTINUED DEVELOPMENT OF MEDIBUY SITE.
medibuy shall be responsible for and shall use reasonable care in
maintaining and operating the medibuy Site and for the further
development of the medibuy Services described in Exhibit B. medibuy
shall use commercially reasonable efforts to complete the
developments in Exhibit B accordance with the deadlines associated
with them. medibuy shall inform xxxxxxxxxxxxx.xxx of any delay that
may occur in the scheduled completion of any of such developments.
The failure of medibuy to meet the schedule set forth in Exhibit B
shall not be considered a breach of this Agreement.
b. INTEGRATION OBLIGATIONS. medibuy shall perform those tasks necessary
to ensure that the medibuy Site is accessible through the
xxxxxxxxxxxxx.xxx Site, including, without limitation:
(i) developing the Links and delivering the Links to
xxxxxxxxxxxxx.xxx, including any digitized representations of
the medibuy Marks comprising the Links;
(ii) serving the medibuy Site, including the medibuy Services, upon
activation of the Links by a xxxxxxxxxxxxx.xxx User according
to the specifications set forth in Exhibit A;
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(iii) informing xxxxxxxxxxxxx.xxx promptly of all links within the
medibuy Site that may reasonably be construed to be links to a
competitor of xxxxxxxxxxxxx.xxx, and suppressing those links
on the medibuy Site when accessed through the
xxxxxxxxxxxxx.xxx Site; and
(iv) otherwise cooperating with xxxxxxxxxxxxx.xxx to establish and
maintain the Links and user interface and navigational
integration of the medibuy Site with the xxxxxxxxxxxxx.xxx
Site or any component thereof.
b. REGISTRATION. Each xxxxxxxxxxxxx.xxx User must register individually
with medibuy as described in the registration guidelines set forth
in Exhibit D attached hereto. Such registration will constitute
acceptance by the xxxxxxxxxxxxx.xxx User of all Terms and Conditions
of using medibuy's Site. medibuy assumes all responsibility for
reviewing and checking the user registration information to ensure
that each xxxxxxxxxxxxx.xxx User meets medibuy's criteria for using
the medibuy Services, and medibuy shall have no obligation to accept
or maintain the registration of a xxxxxxxxxxxxx.xxx User that does
not.
c. MEDIBUY SERVICES. medibuy shall make the medibuy Services available
to Joint Users according to the terms and conditions of this
Agreement. medibuy shall only make available to Joint Users the
services identified as medibuy Services in Exhibit B and such other
services as medibuy shall come to offer to provide medibuy Users
generally.
d. UPDATES. medibuy shall notify xxxxxxxxxxxxx.xxx of any updates or
modifications to the medibuy Site or medibuy Services that will have
a material effect on the performance of either party's obligations
under this Agreement at least one week prior to the release of such
updates or modifications on the medibuy Site. For purposes of this
provision, updates which are designed to refresh existing content to
reflect current and accurate information shall not trigger a notice
obligation under this provision.
e. EXPENSES. Unless otherwise expressly provided in this Agreement,
medibuy shall be solely responsible for all expenses it incurs in
the performance of its obligations hereunder, including, without
limitation, development, engineering and design expenses.
3.2 XXXXXXXXXXXXX.XXX GENERAL OBLIGATIONS. xxxxxxxxxxxxx.xxx shall be
responsible for the following duties, in addition to other duties that
may be specified herein:
a. MAINTENANCE AND OPERATION OF XXXXXXXXXXXXX.XXX SITE.
xxxxxxxxxxxxx.xxx shall be responsible and shall exercise reasonable
care in maintaining and operating the xxxxxxxxxxxxx.xxx Site, and
xxxxxxxxxxxxx.xxx shall also be responsible for performing those
tasks necessary to establish the Links.
b. EXPENSES. Unless otherwise expressly provided in this Agreement,
xxxxxxxxxxxxx.xxx shall be solely responsible for all expenses it
incurs in the performance of its obligations hereunder, including,
without limitation, development, engineering, design and promotional
expenses.
ARTICLE 4. PERFORMANCE STANDARDS; MAINTENANCE AND SUPPORT
4.1 PERFORMANCE STANDARD FOR MEDIBUY SERVICES. Each Party agrees that it
shall be solely responsible for ensuring that its Site meets or exceed
the Performance Standards.
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Either party's failure to comply with the Performance Standards shall be
considered a material breach of this Agreement, but it shall be subject
to the cure provisions set forth at Article 10, Section 10.3.
4.2 SUPPORT FOR MEDIBUY SERVICES. medibuy shall make available Support
Services to Joint Users that are at least the equivalent of the Support
Services provided to medibuy Users.
ARTICLE 5. PAYMENT AND FEES
5.1 REVENUE SHARING. (a) xxxxxxxxxxxxx.xxx shall be entitled to the
following percentages of Net Revenue that medibuy receives from
transactions conducted by each Joint User:
On Net Revenue received within the first twelve months
following the Joint User's registration: 50%
On Net Revenue received during the second twelve months
following the Joint User's registration: 20%
On Net Revenue received after the second twelve months
following the Joint User's registration: 8%
(b) Determining Net Revenue Due. At the conclusion of each calendar
month, medibuy shall scan its databases and records to determine the
Net Revenue received that month from transactions conducted on the
medibuy Site by each Joint User.
(c) medibuy shall pay to xxxxxxxxxxxxx.xxx the above percentage of the
Net Revenue received from all such accounts during each calendar
month, payable within thirty (30) days following the end of the
calendar month.
(d) xxxxxxxxxxxxx.xxx is not entitled to a share of subscription fees
collected by medibuy from its subscribers, which medibuy currently
collects only from vendors. However, if during the term of this
Agreement medibuy begins to collect subscription fees from buyers,
medibuy will include in Net Revenue those subscriptions fees that
are paid by Joint Users to register with medibuy.
5.2 BILLING. medibuy acknowledges and agrees that it shall administer all
aspects of billing under this Agreement, including, without limitation,
collecting and paying all taxes due on any payments made by Joint Users
to medibuy, but not including the payment of any taxes that
xxxxxxxxxxxxx.xxx may owe on payments that it receives from medibuy.
5.3 BILLING REPORTS. medibuy agrees to render monthly written reports
supporting the share of Net Revenue payable to xxxxxxxxxxxxx.xxx for
that month (the "Billing Reports"). Billing Reports for each month are
due by the 30th day of the following month. Billing Reports shall
include the information specified in Exhibit F.
5.4 RECORDS; AUDITS. medibuy shall keep and maintain reasonably detailed and
accurate records throughout the term of this Agreement and for three (3)
years thereafter. Upon reasonable prior written notice to medibuy, and
not more than once per quarter, xxxxxxxxxxxxx.xxx may during usual
business hours inspect and audit medibuy's books and records relevant to
the calculation of the portion of Net Revenue that is payable to
xxxxxxxxxxxxx.xxx under this Agreement. Such inspection or audit shall
occur at the place where those books and records are regularly
maintained. If xxxxxxxxxxxxx.xxx shall cause an audit to be made of
such books and records by an independent auditor, and if
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such audit shall find that amounts owed xxxxxxxxxxxxx.xxx have been
misstated, then the party who has received the benefit of such
misstatement shall immediately reimburse disadvantaged by such
misstatement, subject to the right of medibuy to contest the validity of
the audit. If the audit shows that the amount owed to xxxxxxxxxxxxx.xxx
was understated by five percent (5%) or more, and medibuy accepts the
validity of such audit, medibuy shall also immediately reimburse to
xxxxxxxxxxxxx.xxx the reasonable cost of such audit in addition to the
amounts shown to be payable by such audit, plus interest thereon. If
medibuy contests the validity of such audit, it shall be liable for the
costs of the audit only if it is determined by a court of competent
jurisdiction that medibuy underpaid xxxxxxxxxxxxx.xxx by 5% or more
during the period covered by the audit.
ARTICLE 6. MARKETING
6.1 PRESS RELEASES. Each party grants to the other party the right to
prepare and issue a press release announcing the general terms of this
Agreement and generally promoting the products. However, any press
release prepared under this Section 6.1 by either party must be approved
in writing by the other party prior to release.
6.2 HIGH RESOLUTION IMAGES. At a party's request, the other party shall
provide high resolution images of one or more of the graphical
representations of such party's Marks in electronic format for use in
advertising as permitted under this Agreement.
ARTICLE 7. INTELLECTUAL PROPERTY RIGHTS
7.1 OWNERSHIP. As between medibuy and xxxxxxxxxxxxx.xxx, each party shall
retain ownership of the Intellectual Property Rights in and to any
Content, Marks, materials, Confidential Information, or products or
services created or provided by such party pursuant to this Agreement.
Unless otherwise provided in this Agreement and, except for the licenses
granted under Article 2, neither party is acquiring any right, title, or
interest whatsoever in the other party's Intellectual Property Rights.
ARTICLE 8. CONFIDENTIAL INFORMATION
8.1 OBLIGATION OF CONFIDENCE. Each party shall (i) treat as confidential all
Confidential Information received from the other party; (ii) not use
such Confidential Information except as expressly permitted under this
Agreement; and (iii) not disclose such Confidential Information to any
third party without the other party's prior written consent. Without
limiting the foregoing, each party shall use at least the same degree of
care which it uses to prevent the disclosure of its own Confidential
Information of like importance, but in no event less than reasonable
care, to prevent the disclosure of Confidential Information disclosed to
it by the other party under this Agreement.
8.2 EXCEPTIONS. Information shall not be considered to be Confidential
Information if the receiving party proves with documentary or other
competent evidence that such information: (i) was known by the receiving
party, without an obligation to keep it confidential, prior to its
disclosure to the receiving party by the disclosing party, as is
evidenced by the receiving party's written records that existed at the
time the disclosure was made to the receiving party; (ii) is or becomes
lawfully available to the receiving party from a source other than the
disclosing party; (iii) was or becomes available to others in a
publication in tangible form through a source other than the receiving
party and through no fault of the receiving party; or (iv) is required
to be used or disclosed by an order of any court or other governmental
authority, but only to the extent required by such order, and only after
giving the party whose Confidential Information is to be disclosed
timely notice of such order and an opportunity to defend against it. The
parties agree that while certain items of the Confidential Information
may be publicly known, these
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items, when put together, often form combinations that are not publicly
known and are hence included within the Confidential Information. The
receiving party is not permitted to use the Confidential Information to
piece together a series of items of information from unconnected sources
and fit these items of information together to make a showing that all
or part of the Confidential Information was "public."
8.3 NON-DISCLOSURE AND NON-USE. Each party shall exert its reasonable
efforts to maintain the confidentiality of Confidential Information,
including, but not limited to, the execution of proprietary
nondisclosure agreements with employees and consultants, and the taking
of reasonable legal action to enforce compliance with the provisions of
this Article 8 by its directors, officers, employees, and any third
party to whom it is authorized to provide access to Confidential
Information of the other party. The parties agree not to use any
Confidential Information for any purpose except to fulfill their
obligations and duties under this Agreement.
8.4 REMEDIES. Unauthorized use by a party of the other party's Confidential
Information will diminish the value of such information, thereby causing
irreparable harm to the other party. Therefore, if a party breaches any
of its obligations with respect to confidentiality and unauthorized use
of Confidential Information hereunder, the other party shall be entitled
to equitable relief to protect its interests therein including, but not
limited to, injunctive relief.
ARTICLE 9. TERMINATION
9.1 TERM. This Agreement shall commence on the Effective Date and, unless
earlier terminated as provided below, shall remain in effect for three
(3) years. At the end of the first or any subsequent term, this
Agreement shall automatically extend for one (1) year, unless either
party gives written notice of termination not less than ninety (90) days
prior to the end of the then current term.
9.2 TERMINATION FOR CAUSE. Either party may, by notice in writing, terminate
this Agreement upon default by the other party. Default under this
Agreement shall include, but not be limited to, a material breach by
either party of any of the terms and conditions of this Agreement unless
cured in a timely manner as provided for in Section 10.3 below, an
adjudication of bankruptcy of either party under any bankruptcy or
insolvency law, the appointment by or for either party of a receiver for
its business or property, or the making of any general assignment of its
assets for the benefit of creditors.
9.3 RIGHT TO CURE. No breach of any term of this Agreement shall be deemed a
default giving rise to a right of termination unless the party claiming
to be aggrieved by such breach first provides written notice to the
breaching party of the precise nature of the breach and the breaching
party fails to cure the breach within thirty (30) days following its
receipt of such notice. In the event that the breach asserted is one
that cannot be reasonably cured within such (30) day period, no default
shall occur if the breaching party has commenced substantial and good
faith efforts to cure the breach and continues those efforts without
interruption until a cure is effected.
9.4 EFFECT OF TERMINATION. The termination of this Agreement shall be
without prejudice to any other rights or claims of either party against
the other, or any other remedy available to such party, including, but
not limited to, the right of xxxxxxxxxxxxx.xxx to recover all of the
amounts required to be paid by medibuy pursuant Article 5. To the extent
that medibuy continues the operation of the medibuy Site generally, upon
the termination or expiration of this Agreement for any reason medibuy
agrees to maintain the medibuy Site and make the medibuy Services
available to Joint Users according to the terms and conditions hereunder
for a period of two years, or a shorter period of time if so elected in
writing by xxxxxxxxxxxxx.xxx (the Winding Down Period), During the
Winding Down Period, xxxxxxxxxxxxx.xxx shall remove the links, Marks and
other references and
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connections to the medibuy Site that are contained on or available
through the xxxxxxxxxxxxx.xxx Site. During the Winding-Down Period,
xxxxxxxxxxxxx.xxx will continue to be entitled to receive its percentage
of Net Revenue as provided in Section 5.1 above, which Net Revenue is
actually received by medibuy prior to the end of the Winding Down
Period, and medibuy will remain obligated to account to
xxxxxxxxxxxxx.xxx therefor, but all other obligations of medibuy to
xxxxxxxxxxxxx.xxx shall cease upon termination and it shall owe to
xxxxxxxxxxxxx.xxx no obligation of any kind whatsoever following the
conclusion of the Winding Down Period, except as provided for in Section
9.5 below.
9.5 SURVIVAL. Notwithstanding the foregoing, the provisions of Articles 7,
8, 10, 11, and 12, shall survive termination or expiration of this
Agreement, together with any provisions of this Agreement which by their
terms survive expiration or termination of this Agreement. Any amounts
owed by medibuy to xxxxxxxxxxxxx.xxx hereunder shall continue to be
owed.
ARTICLE 10. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
10.1 XXXXXXXXXXXXX.XXX'S WARRANTIES AND DISCLAIMERS. xxxxxxxxxxxxx.xxx
represents and warrants that (i) xxxxxxxxxxxxx.xxx has full power and
authority to enter into this Agreement, to grant the licenses provided
for herein, and to perform its obligations hereunder, and its entry into
this Agreement does not violate any other agreement by which it is
bound; and (ii) xxxxxxxxxxxxx.xxx's conduct in performing this Agreement
shall at all times comply with all applicable federal, state, and local
laws, rules, and regulations in the United States.
10.2 MEDIBUY'S WARRANTIES AND DISCLAIMERS. medibuy represents and warrants
that (i) medibuy has the full power and authority to enter into this
Agreement, to grant the licenses provided for herein, and to perform its
obligations hereunder, and its entry into this Agreement does not
violate any other agreement by which it is bound; and (ii) medibuy's
conduct in performing this Agreement shall at all times comply with all
applicable federal, state, and local laws, rules, and regulations in the
United States.
10.3 NO OTHER REPRESENTATIONS. Each party agrees that it shall have no right
or authority, at any time, to make any representation or commitment on
behalf of the other party, or to make any representations or warranties,
guarantees or commitments with respect to other party, except as
expressly authorized in this Agreement or a separate writing signed by
the other party.
ARTICLE 11. MISCELLANEOUS
11.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of California where, under the
rules of such courts, venue may property lie, without reference to
conflict of law principles.
11.2 VENUE AND JURISDICTION. Exclusive jurisdiction and venue for all
disputes arising under this agreement shall be with the state or federal
courts located in Santa Clara, California, and the parties expressly
submit themselves to the personal jurisdiction of such courts.
11.3 SEVERABILITY. If any provision of this Agreement shall be held to be
illegal, invalid, or unenforceable by a court of competent jurisdiction,
that provision shall be deleted and the remainder of this Agreement
shall remain in full force and effect.
11.4 ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the complete
and exclusive statement of the agreement between the parties. All
previous representations are merged in this Agreement. This Agreement
may be modified only by a writing signed by the parties.
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11.5 ASSIGNMENT. This Agreement shall bind and inure to the benefit of the
parties hereto and their successors and assigns, including any person,
partnership, or corporation which may acquire all or substantially all
of a party's assets or business, or into which either may be
consolidated or merged. Unless otherwise allowed in this Agreement,
neither party shall assign, sublicense, or transfer this Agreement
without the prior written consent of the other party, and any attempt to
do so shall be void.
11.6 REPORTING FORMAT. Unless otherwise provided in this Agreement, all data
included in reports prepared by medibuy shall be provided to
xxxxxxxxxxxxx.xxx in MS Excel spreadsheets.
11.7 NOTICES. All notices and communications under this Agreement shall not
be valid unless in writing and shall be deemed to have been given on the
day of delivery or transmission if delivered by hand or if sent by
facsimile transmission (with receipt confirmed), or on the fifth
business day following the day of mailing if mailed, postage prepaid. In
any case, unless otherwise provided in this Agreement, delivery,
transmission, or mailing must be made to the party concerned as follows:
IF TO MEDIBUY: IF TO XXXXXXXXXXXXX.XXX:
xxxxxxx.xxx, Inc. xxxxxxxxxxxxx.xxx
0000 Xxxxxxxx Xxxx 000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000 Xxxxx 000
Xx Xxxx, XX 91941 Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx Attn: Xxxxxx Xxxx
11.8 CONSTRUCTION. Unless otherwise provided in this Agreement, the singular
includes the plural and vice versa.
11.9 NO WAIVER. Failure of any party to enforce any provision of this
Agreement will not constitute or be construed as a waiver of such
provision or of the right to enforce such provision. No waiver by a
party of any breach of any provision of this Agreement will constitute a
waiver of any other breach of that or any other provisions of this
Agreement.
11.10 RIGHT OF SETOFF. In the event that medibuy shall determine in good faith
that there is an amount due and owing to it from xxxxxxxxxxxxx.xxx
(e.g., due to an overpayment by medibuy) medibuy may setoff such amount
due to it against any future payments that medibuy is obligated to make
under this Agreement to xxxxxxxxxxxxx.xxx.
11.11 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be construed to
constitute or appoint either party as the agent, partner, or
representative of the other party for any purpose whatsoever, or to
grant to either party any rights or authority to assume or create any
obligation or responsibility, express or implied, for or on behalf of or
in the name of the other, or to bind the other in any way or manner
whatsoever.
11.12 HEADINGS. The headings in this Agreement are for purposes of convenience
and reference only and are not intended to affect the meaning or
interpretation of this Agreement.
11.13 COUNTERPARTS. This Agreement may be executed in duplicate and either
copy or both copies are considered originals.
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11.14 NO BIAS. This Agreement shall be interpreted as written and negotiated
jointly by the parties. It shall not be strictly construed against
either party, regardless of the actual drafter of the Agreement.
11.15 FORCE MAJEURE. If either party is unable to perform its obligations
under this Agreement due to circumstances beyond its reasonable control
(other than obligations for the payment of money), such obligations will
be suspended so long as those circumstances persist, provided that the
delaying party notifies the other party promptly of the delay and its
causes and uses commercially reasonable efforts to recommence
performance without delay.
Understood and Agreed:
FOR XXXXXXXXXXXXX.XXX FOR XXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXX By: /s/ XXXXXX XXXXXX
-------------------------------- ---------------------------------
Signature Signature
Xxxxxx X. Xxxx COO Xxxxxx Xxxxxx CEO
-------------------------------- ---------------------------------
Name and Title Name and Title
10/28/99 11-3-99
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Date Date
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