EXHIBIT 10.22
Standard Distribution Agreement
Original Equipment Manufacturer (OEM)
THIS AGREEMENT is entered into as of the 15th day of July 1998, by and
between HealthGate Data Corp., a Delaware corporation, having an address at 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (hereinafter referred to as
"HealthGate") and AHN Partners, L.P. d/b/a America's Health Network ("AHN") a
Delaware limited partnership, having an address at 0000 Xxxxxxxxx Xxxxxxx Xxxxx,
Xxxxxxx, XX 00000 (hereinafter referred to as "OEM").
WITNESSETH:
WHEREAS, OEM owns, operates or makes available, alone or in combination
with others, interactive information, communication and transactional services
and is a cable television programming network providing health information to
consumers (whether presently existing or hereafter developed referred to herein
as the "OEM Services"); and
WHEREAS, OEM has developed an interactive area on the World Wide Web in
which various content sources are available for use by Web users; and
WHEREAS, HealthGate offers the MEDLINE database and other databases
through HealthGate's internet sites, including HealthGate's internet sites
having the following URLs: xxxx://xxx.xxxxxxxxxx.xxx and xxxx://xxXXXX.xxx (the
"HealthGate Sites"); and any other URLs that HealthGate registers.
WHEREAS, OEM and HealthGate wish to enter into an agreement providing for
certain of HealthGate's databases to be embedded into an internet site
environment accessible to certain users of the OEM Services as described herein
(the "Co-Branded Site").
NOW, THEREFORE, in consideration of the mutual promises Let forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
I. OEM Site; Links to HealthGate Site; Authorized Users
1.1 OEM Site. OEM shall design, develop, maintain and host an internet
site (the "Co-Branded Site") of OEM's services, content and products on OEM's
website with links accessible only to Authorized Users (as defined in Section
1.2 below) to the Products (as defined in Section 2.1 below) on HealthGate's
Site.
1.2 Authorized Users. For the purposes of this Agreement, "Authorized
User" shall mean an individual, registered user of OEM's Services who is a
natural person and who registered for or has accessed OEM's services through an
individual personal computer. Without limiting the generality of the foregoing:
(i) institutions, companies, corporations or other entities are not Authorized
Users, and (ii) persons who access OEM's Services through an institution,
company, corporation or other entity either through such entity's intranet or
internet access pursuant to a corporate, company or institutional agreement with
the OEM are not Authorized Users.
1.3 Links to HealthGate Site: Interactions between Sites. HealthGate will
accept queries posed by an Authorized User on the Co-Branded Site and return to
the Authorized User the results of said queries to the Co-Branded Site.
All such interactions between the two sites will be conducted according to
mutually agreed upon design. The Co-Branded Site shall contain prominent
reference to HealthGate and prominently feature HealthGate's logo in a manner to
be approved by HealthGate.
In the event the parties do not mutually agree upon the interaction
standards within thirty (30) days of the date of this Agreement, such standards
shall be established by OEM to be consistent with the interaction standards
utilized by HealthGate in its other OEM arrangements.
II. Products on the Co-Branded Site
2.1 HealthGate Products. OEM Authorized Users shall have access via the
Co-Branded Site to the databases listed on Schedule A attached hereto (the
"Products").
2.2 Exclusivity. OEM agrees that during the term of this Agreement it
shall not provide links, access, or in any other way provide access from its
site to any other entity's products or services that are similar in nature to
those of HealthGate Products other than through HealthGate.
III. Fees
3.1 License Fees. OEM agrees to pay to HealthGate a monthly License Fee as
set forth in Schedule A.
3.2 Advertising and other Fee Arrangements. Arrangements concerning
advertising or other fee arrangements, if any, are set forth on Schedule C
attached hereto.
3.3 Professional Services and Custom Development (Setup charges).
Arrangements concerning other Professional services, if any, custom development
or setup fees, are set forth on Schedule C attached hereto.
3.4 Late Fees. All late fee payments shall accrue interest at the rate of
twelve percent (12%) per annum.
IV. Term and Termination
4.1 Term. This Agreement shall be effective on July 15, 1998, and shall
continue in effect until July 14, 1999 (the "Initial Scheduled Expiration
Date"), unless otherwise terminated as provided hereunder.
4.2 Renewal. Unless notice of intent not to renew is given by either party
at least ninety (90) days prior to the then current Scheduled Expiration Date,
this Agreement shall be automatically extended for an additional twelve month
period.
4.3 (a) Termination for Breach. Each party hereto shall have the right to
terminate this Agreement in the event that the other party has materially
breached this Agreement; provided, however, that no such termination shall be
effective unless (i) the terminating party provides at least ten (10) days
written notice (the "Termination Notice") to the other party setting forth the
facts and circumstances constituting the breach, and (ii) the party alleged to
be in default does not cure such default within (A) ten (10) days following
receipt of the Termination Notice in the case of a breach relating to a payment
due hereunder or (B) thirty (30) days following receipt of the Termination
Notice for all other non-payment breaches. In the event that the nature of the
default specified in the Termination Notice cannot be reasonably cured within
thirty (30) days following receipt of the Termination Notice, a party shall not
be deemed to be in default if such party has, within such thirty (30) day
period, presented an agreed upon plan to cure the default, or commences curing
such default and thereafter diligently prosecutes the same to completion. If the
breach specified in the Termination Notice is timely cured or cure is commenced
and diligently pursued, as provided above, the Termination Notice shall be
deemed rescinded end the Agreement shall continue in full force and effect.
(b) In the event the number of daily Page Views, as defined on Schedule A,
exceeds 30,000 and the parties, in good faith, cannot agree to mutually
acceptable rates, either party may terminate this Agreement.
4.4 Post Termination Obligations. (a) Payments. In the event of any
termination of this Agreement by either party, all fees previously due or
previously owing by either party as of the date of termination will be
immediately due and payable in full to the other party.
(b) Severance of Links and Discontinuance of Promotion of Co-Branded Site.
Within ten (10) business days of any termination by either party of this
Agreement, each party will delete all Links to the Co-Branded Site from each
party's respective Service and any of its menus, listings or directories and,
within thirty (30) business days of such termination, both parties will destroy
advertising or promotional materials, if any, containing any reference to the
other party or their products.
V. HealthGate Trademarks
5.1 HealthGate Trademarks. Notwithstanding the limited right to use
HealthGate's name, logo and other marks created or utilized by HealthGate
(collectively the "HealthGate Trademarks") on the Co-Branded Site, OEM
recognizes and acknowledges HealthGate is the sole owner of the HealthGate
Trademarks and all rights therein and the goodwill pertaining thereto belong
exclusively to HealthGate. OEM recognizes and acknowledges that HealthGate
Trademarks have acquired a secondary meaning and are associated with high
quality services and products available from HealthGate. Accordingly, any use of
any HealthGate Trademark pursuant to this Agreement by OEM or the Co-Branded
Site shall be subject to HealthGate's approval, which HealthGate may deny or
revoke at any time if in HealthGate's sole judgment such use in not consistent
with the goodwill otherwise associated with the HealthGate Trademarks.
OEM acknowledges and agrees that each HealthGate Trademark is and will
remain the exclusive property of HealthGate and all use by the Co-Branded Site
or OEM of any HealthGate Trademark will inure solely to the benefit of
HealthGate. Neither this Agreement nor any rights granted hereunder will operate
as a transfer to OEM nor the Co-Branded Site of any rights in or to any
HealthGate Trademark, except for the limited rights expressly granted under this
Agreement. OEM will not take any action that would undermine, conflict with, or
be contrary to the rights and interest of HealthGate, including, without
limitation, any use of, or attempt to register, any trademark, service xxxx or
trade name substantially similar to any HealthGate Trademark.
All advertising and promotional material for the Co-Branded Site, which
contains any HealthGate Trademark, shall be subject to review and approval by
HealthGate (which approval shall not be unreasonably withheld).
5.2 OEM Trademarks. Notwithstanding the limited right to use OEM's name, logo
and other marks created or utilized by OEM (collectively the "OEM's Trademarks")
on the Co-Branded Site, HealthGate recognizes and acknowledges OEM is the sole
owner of the OEM Trademarks and all rights therein and the goodwill pertaining
thereto belong exclusively to OEM. HealthGate recognizes and acknowledges that
OEM Trademarks have acquired a secondary meaning and arc associated with high
quality services and products available from OEM. Accordingly, any use of any
OEM Trademark pursuant to this Agreement by HealthGate or the Co-Branded Site
shall be subject to OEM's approval, which OEM may deny or revoke at any time if
in OEM's sole judgment such use in not consistent with the goodwill otherwise
associated with the OEM Trademarks.
HealthGate acknowledges and agrees that each OEM Trademark is and will
remain the exclusive property of OEM and all use by the Co-Branded Site or
HealthGate of any OEM Trademark will inure solely to tile benefit of OEM.
Neither this Agreement nor any rights
granted hereunder will operate as a transfer to HealthGate nor the Co-Branded
Site of any rights in or to any OEM Trademark, except for the limited rights
expressly granted under this Agreement. HealthGate will not take any action that
would undermine, conflict with, or be contrary to the rights and interest of
OEM, including, without limitation, any use of, or attempt to register, any
trademark, service xxxx or trade name substantially similar to any OEM
Trademark.
All advertising and promotional material for the Co-Branded Site, which
contains any OEM Trademark, shall he subject to review and approval by OEM
(which approval shall not be unreasonably withheld).
VI. Representations, Warranties and Related Agreements.
6.1 HealthGate's Representations and Warranties. HealthGate represents and
warrants that (i) it has the right and authority to enter into this Agreement,
(ii) the Products are either HealthGate's own and original creation or are
validly licensed to HealthGate for use by others or are in the public domain;
(iii) it has full ownership of the HealthGate Trademarks; iv) this Agreement
constitutes the valid and binding obligation of HealthGate enforceable in
accordance with the terms hereunder; v) any written, audio or visual materials
furnished by HealthGate for or in connection with the Co-Branded Site will not
violate, conflict with or infringe upon any rights whatsoever (including without
limitation, any intellectual property, privacy or proprietary right in any work)
of any third party whatsoever, specifically excluding any material independently
furnished by OEM to HealthGate; and vi) no claim, suit, action or other
proceeding has been threatened or is pending in connection with the Products
which would or might affect any of the rights granted herein to OEM.
6.2 Compliance with Laws. Except to the extent such obligation is
expressly assumed by OEM, HealthGate shall, at its own expense, comply with any
laws relating to the sale, lease, or license of the Products, and shall procure
all licenses and pay all fees and other charges required thereby.
6.3 OEM Representations and Warranties. OEM represents and warrants that
(i) it has the right to enter into this Agreement; (ii) this Agreement
constitutes the valid and binding obligation of OEM enforceable in accordance
with the terms hereunder; (iii) it has full ownership of the OEM Trademarks (iv)
any written, audio or visual materials furnished by OEM for or in connection
with the Co-Branded Site will not violate, conflict with or infringe upon any
rights whatsoever (including without limitation, any intellectual property,
privacy or proprietary right in any work) of any third party whatsoever,
specifically excluding any material independently furnished by HealthGate to
OEM; and (v) no claim, suit, action or other proceeding has been threatened or
is pending in connection with the Products which would or might affect any of
the rights granted herein to HealthGate.
6.4 Compliance With Laws; Prohibition on Resale and Relicensing of
Products. OEM shall require each of its customers and users to limit its actions
and use of the Products under the subscriber agreement (or similar agreement,
contract or arrangement) between OEM and its customer or user, to conform to
applicable laws regarding the export of re-export of any information, or any
process, product, or service, to countries specified as prohibited destinations,
including the Regulations of the U.S. Department of Commerce and/or the U.S.
State Department, to the extent applicable. Users of the Co-Branded Site shall
be prohibited from reselling or re-licensing the Products or any portion thereof
without the express written consent of OEM and HealthGate (which consent may be
withheld for any reason or for no reason). OEM shall use its best efforts to
enforce this prohibition and will place appropriate written limitations of the
use of the Products with all its customers or other users of the Co-Branded
Site. OEM shall have all Authorized Users register with OEM in a manner
acceptable to HealthGate and such registration information shall be available
for review by HealthGate upon written request. In the event HealthGate monitors
an excessive number of accesses to the Co-Branded Site from one domain and
HealthGate reasonably believes such accesses are due to an unauthorized
sublicensing or sale of any portion or all of HealthGate's Products, HealthGate
shall demand a reasonable cure by OEM within thirty (30) days of such notice
thereof.
VII. Administrators; Contact Persons.
7.1 Administrators. The parties each hereby designate an Administrator to
receive notices, and any other contact between parties pursuant to this
Agreement. Except as otherwise provided herein, all notices provided for in this
Agreement shall be in writing and shall be given by electronic mail, first
class certified mail postage prepaid, return receipt requested, by reputable
overnight delivery service, or by telecopier confirmed by the telecopier
confirmation report. All notices shall be sent to the principal offices of the
respective parties at the addresses shown below:
HealthGate's Administrator is;
Xxxx Xxxxxxx
HealthGate Data Corp.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
0-000-000-0000 x000 (voice)
0-000-000-0000 (fax)
xxxxxxxx@xxxxxxxxxx.xxx (electronic mail)
OEM's Administrator is:
Xxxxxx Xxxxxxx
AHN Partners, L.P. d/b/a America's Health Network
0000 Xxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
000 000 0000 (voice)
000 000 0000 (fax)
xxxxxxxx@xxx.xxx (electronic mail)
Either party may change its Administrator pursuant to written notice to
the other party containing an express reference to this Agreement.
VIII. DISPUTE RESOLUTION
8.1 Good Faith Discussions. The parties hereto agree to meet and confer In
good faith to resolve any problems or disputes that may arise under this
Agreement.
8.2 Arbitration. Any dispute or controversy between the parties, including
a fee dispute or a dispute arising from an alleged material breach of this
Agreement by a party, shall, on written request of one party served on the
other, be submitted to arbitration. Any arbitration shall be conducted before a
panel of three arbitrators in accordance with the then existing Rules for
Commercial Arbitration of the American Arbitration Association and judgment upon
any award rendered by the arbitrator(s) may be entered by any State or Federal
court having jurisdiction thereof. The parties intend that this agreement to
arbitrate be valid, enforceable and irrevocable. The decisions of the
arbitrators shall be final and conclusive upon all parties and judgment upon the
award may be entered in any court of competent jurisdiction. The arbitrators may
assess costs, including counsel fees, in such manner as they deem fair and
equitable. The arbitration shall be conducted in Boston, Massachusetts unless
otherwise mutually agreed by the parties.
8.3 Injunctive Relief. OEM and HealthGate each acknowledge that in the
event of a breach of certain sections of this Agreement, including, without
limitation Article V and Sections 4.4(b) and 6.4, either party may not have an
adequate remedy at law and will suffer irreparable damage and injury. Therefore,
in addition to any other remedy available, each party agrees that if it violates
any of the provisions of Article V or Sections 4.4(b) or 6.4, the other party
shall be entitled to seek injunctive relief by a court of competent
jurisdiction.
IX. Miscellaneous
9.1 Confidential Information. Unless otherwise agreed to in a writing
signed by the authorized representatives of both parties, neither party shall
provide the other party with information that is confidential or proprietary to
itself or any third party. Accordingly, no obligation of confidentiality of any
kind is assumed by, or shall be implied against, either party
by virtue of its discussions and/or correspondence with the other party or with
respect to any information received (in whatever form or whenever received) from
the other party under this Agreement or in activities related thereto.
9.2 Limitations on Damages. Neither party shall be entitled to indirect,
incidental, or consequential damages, including lost profits based on any breach
or default under this Agreement. In no event shall HealthGate be liable under
this Agreement to OEM for damages exceeding the amounts paid by OEM under this
Agreement nor shall OEM be liable under this Agreement to HealthGate for any
damages exceeding the amount equal to the monies paid by OEM under this
Agreement; provided, however, this limitation shall not apply to any liabilities
based on obligations to third parties.
For any period of time in which the HealthGate Site is not available to
Authorized Users or not properly functioning through the Co-Branded Site due to
actions or inaction's by HealthGate, OEM's remedy shall be limited to an
abatement of that portion of the monthly License Fee attributable to the period
of time of which the HealthGate Site is unavailable or not functioning.
9.3. Freedom of Action. Except as set forth in Section 2.2, nothing in
this Agreement shall be construed as prohibiting or restricting either party
from independently developing or acquiring and marketing materials and/or
programs that are competitive with the Co-Branded Site.
9.4 Independent Contractor. HealthGate OEM are and shall remain
independent contractors with respect to all work completed pursuant to the
Agreement. Nothing contained in this Agreement shall create an agency,
partnership or joint venture between the parties or render either party liable
for the debts or obligations of the other. Neither party is authorized to bind
the other party in any respect.
9.5 No Assignment. Neither party may not sell, transfer, assign, or
subcontract, any right or obligation set forth in this Agreement without the
express advance written consent of the other party.
9.6 Amendments in Writing. No amendment, modification, or waiver of any
provision of this Agreement shall be effective unless it is set forth in writing
that refers to this Agreement and is executed by an authorized representative of
both parties. No failure or delay by either party in exercising any right,
power, or remedy will operate as a waiver of any such right, power, or remedy.
9.7 Third Party Rights. This Agreement is not intended and shall nor be
construed to create any rights for any third party.
9.8 Force Majeure. Neither party shall be liable nor deemed to be in
default of its
obligations hereunder for any delay or failure in performance under the
Agreement or other interruption of Service resulting, directly or indirectly,
from acts of God, civil or military authority, act of the public enemy, war,
accidents, natural disasters or catastrophes, strikes, or other work stoppages
or any other cause beyond the reasonable control of the party affected thereby.
However, each party shall utilize it best good faith efforts to perform such
obligations to the extent of its ability to do so in the event of any such
occurrence or circumstances.
9.9 Governing Law. The validity, interpretation, and performance of this
Agreement shall be governed by and construed in accordance with the internal
laws and not the law of conflicts of the State of Florida.
9.10 Entire Agreement; Severability. This Agreement, together with the
Exhibits and other attachments referenced herein, contains a full and complete
expression of the rights and obligations of the parties. This Agreement
supersedes any and all other agreements, written or oral, made by the parties.
If any provision of this Agreement is finally held by a court or arbitration
panel of competent jurisdiction to be unlawful, the remaining provisions of this
Agreement shall remain in full force and effect to the extent that the parties'
intent can be lawfully enforced.
9.11 Exhibits. All exhibits and attachments referenced in this Agreement
are incorporated herein as though set forth in full. If any provision of this
Agreement conflicts with any Exhibit to this Agreement, this Agreement shall
control with respect to the subject matter of such Exhibit.
9.12 Captions & Headings. The headings, titles and captions of the
sections of this Agreement and the Exhibits and Attachments are inserted only to
facilitate reference, and they shall not define, limit, extend or describe the
scope or intent of this Agreement or any provision hereof or any Exhibit or
Attachment hereto, and they shall not constitute a party hereof or affect the
meaning or interpretation of this Agreement or any part hereof.
9.13 Exhibits. Any waiver given one time by either party of any of the
terms or conditions of this agreement in any instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of any
subsequent breach thereof.
9.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same Agreement. A telecopy of an original
signature shall be deemed an original signature.
PAGE>
IN WITNESS WHEREOF, duly authorized representatives of the parties have
executed this Agreement as of the date first written above:
HealthGate Data Corp. AHN PARTNERS, L.P.
By: America's Health Network, Inc.
Its Managing General Partner
By: /s/ Xxxxxxx X. Xxxxx By: /s/ J. Xxx Xxxxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxx Name: J. Xxx Xxxxxxxxxx
Title: Chief Executive Officer Title: President, AHN COM
