EXHIBIT 10.16
HEALTHCOMPASS SERVICES AGREEMENT
DATED February 16, 2000
HEALTHCOMPASS SERVICES AGREEMENT
THIS IS AN AGREEMENT ("Agreement") entered into on February 16, 2000 (the
"Effective Date") by and between [XXXXXXXXXXXXXXXX.XXX INC.], a [DELAWARE]
corporation with offices located at 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, XX 00000 (the "Licensee") and HealthMagic, Inc., a Delaware corporation
with offices located at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000
("HealthMagic" or "HMI"), by which HealthMagic agrees to license certain
proprietary software and other materials to Licensee on the terms and conditions
of this Agreement. In consideration of the obligations stated in this Agreement,
and other good and valuable consideration received by each of the parties, the
parties hereto agree as follows:
PURPOSE AND SCOPE OF AGREEMENT; DEFINITIONS
Purpose and Scope of Agreement
HealthMagic is a corporation engaged in developing, marketing and
providing innovative Internet-enabled health information technology systems and
applications including, without limitation, HealthCompass (as further defined
below). Licensee is a corporation engaged in the provision of internet-based
healthcare information, products and services, including through its main
portal, XXXXXXXXXXXXXXXX.XXX. The parties have entered into this Agreement to
set forth the terms and conditions on which: (i) HMI will grant Licensee the
right to establish links to HealthCompass from Licensee Web Sites (as defined
below); (ii) HMI will host HealthCompass; and (iii) HMI will grant Licensee the
right to use certain software tools.
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings given
below or in the context in which the term is used, as the case may be.
"Affiliate" shall mean, with respect to a party to this Agreement, any entity
that directly or indirectly controls, or is under common control with, or is
controlled by, such party. As used above, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") means
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Certifying Authority" shall mean HMI or such other trusted third-party central
administrator: (i) willing to verify the identities of those to whom it issues
certificates and their association with a given key; (ii) that have a
trustworthy public key (that is either publicized or provided with a certificate
from a higher level Certifying Authority attesting to the validity of its public
key); (iii) whose subject identification requirements engender a high level of
confidence to the certified name-key binding; and (iv) that are capable of
issuing Digital Certificates (including, without limitation, signing the Digital
Certificate) to authenticate the binding between the subject (end user's) name
and the subject's public key.
"Compass Man Design" shall have the meaning specified in 0.
"Digital Certificate" shall mean a digital certificate as defined by the
International Telecommunications Union ("ITU-T") X.509 standard, version 3. As a
general matter, a Digital Certificate: (i) is a document attesting to the
binding of a public key to an individual or other entity; (ii) enables the
verification of a claim that a specific public key does in fact belong to a
specific individual; and (iii) contains information including version, serial
number, signature algorithm ID, issuer name (i.e., the Certifying Authority that
issued the Digital Certificate), validity period, subject (user) name, subject
public-key information, issuer unique identifier, subject unique identifier,
extensions and the signature of the Certifying Authority that issued the Digital
Certificate on the foregoing. Digital Certificates are stored on the subject's
(end user's) computer.
"End User" shall mean an individual who has a unique HealthCompass account
number/registration number combination and whose personal health information is
stored in, or capable of being stored in, HealthCompass. As applied: (i) the
same individual may be assigned multiple unique account number/registration
number combinations, and thus would be counted as a separate End User for each
such unique combination (i.e., a member with 5 records constitutes 5 End Users);
and (ii) in the case of a family, each family member may have the same account
number but the registration number for each such family member would be
different.
"End-User Data" shall mean the information provided by End Users or on behalf of
End Users, with their authorization, in the process of using HealthCompass.
Ownership of End-User Data shall, as between HMI and Licensee, be and remain
with the End User and shall in no way be altered by this Agreement.
"Engaging Applications" shall mean applications designed to engage an end user
in the management of his or her health and which are complimentary to, utilize,
or interact with HealthCompass (e.g., by providing data or other input to
HealthCompass, or using data or other output generated by HealthCompass).
EXHIBIT A to this Agreement lists the Engaging Applications being provided by
HMI to Licensee (the "HMI Engaging Applications"). As specified in EXHIBIT A,
HMI Engaging Applications either (i) reside on HMI servers and are accessible
from HealthCompass Enabled Sites (as defined in 0) or (ii) are provided to
Licensee in run-time/executable form only for installation on Licensee servers.
HMI Engaging Applications are inclusive of any accompanying documentation. HMI
Engaging Applications include any and all Updates, Releases, new Versions,
modifications or derivative works of the HMI Engaging Applications produced by
HMI or on HMI's behalf and provided to Licensee.
"HealthCompass" shall mean HMI's proprietary Personal Medical Record consisting
of: (i) HMI proprietary interactive Internet-enabled pages which reside on HMI
servers, that are accessible from HMI licensed web sites containing links to
such pages through a digital certification process ("HealthCompass Enabled
Sites") and containing functionality enabling end users to retrieve, document,
track and populate their own personal health information in a secure fashion
from any HealthCompass Enabled Site; and (ii) HMI's proprietary database or
"Repository", housed on HMI's servers, that stores each End User's Health
Vectors. HealthCompass includes any and all Updates, Releases, new Versions,
modifications or derivative works of HealthCompass produced by HMI or on HMI's
behalf and provided to Licensee. HealthCompass is inclusive of any accompanying
documentation.
"HealthMagic Content" shall mean content for Internet-enabled pages provided to
Licensee under license by HealthMagic including HealthCompass pages and any HMI
Engaging Application pages.
"HealthQuery" shall mean an HMI proprietary XML-based application programmer
interface or "API" to the Repository. HealthQuery includes any and all Updates,
Releases, new Versions, modifications or derivative works of HealthQuery
produced by HMI or on HMI's behalf and provided to Licensee. HealthQuery is
inclusive of any accompanying documentation.
"Health Vectors" shall mean, for any particular HealthCompass End User,
collections of health-related data that profiles such End User in his or her
role as a health care consumer which data is generated through the use of the
Health Vector software embedded in HealthCompass. Different kinds of Health
Vectors include, but are not limited to: (i) health and illness data (e.g.,
health status, symptoms, important diagnoses, most recent encounters,
medications, recent treatments); (ii) interests and needs data (i.e.,
information used and requested by the End User); (iii) demographic data (e.g.,
name, mailing address, gender, age, race); (iv) registration data (e.g., plan
identification, member identification and enrollment information); and (v)
transaction data (i.e., a summary of the transactions encountered within the
service by the End User).
"Health Vectors Tool" shall mean certain HMI proprietary technology which
enables the tailoring of user/computer interactions based on the End User's
profile. As of the Effective Date the profile includes age, gender and health
interests but the Health Vectors Tool is architected to profile many different
dimensions each called a vector. Based on the specific health profile that is
comprised of various health data, screens are assembled that contain articles,
weblinks and preventive guidelines tailored to the individual for various
sections of a web service. Software deliverables include: (i) Content Attribute
Studio; (ii) Active X DLL that represents the application; (iii) Health Vector
Publisher; and (iv) the associated data base schema. The Health Vectors Tool is
provided in run-time/executable form only and is inclusive of any accompanying
documentation. The Health Vectors Tool includes any Updates, Releases, new
Versions, modifications or derivative works of the Health Vectors Tool produced
by HMI or on HMI's behalf and provided to Licensee.
"HMI Materials" shall mean HealthCompass, HMI Engaging Applications,
HealthQuery, Health Vectors Tool and related materials.
"Licensee Application" shall mean any application created by Licensee using
HealthQuery or the Health Vectors Tool, as well as any Engaging Applications
created by Licensee.
"Licensee Components" shall mean components of Licensee Applications exclusive
of any HMI Materials.
"Licensee Web Sites" shall mean: (i) the _____________ web site (the "Primary
HealthCompass Web Site"); (ii) any web sites co-branded with the Primary
HealthCompass Web Site (each such web site a "Co-Branded HealthCompass Web
Site"); and (iii) any web sites of institutional clients of Licensee into which
Licensee has, in the capacity of a content supplier, licensed access to
HealthCompass and/or any HMI Engaging Applications under a private label
strategy (each such web site a "Privately Labeled HealthCompass Web Site").
"Payment Period" shall have the meaning specified in 0.
"Personal Medical Record" shall mean an electronic repository or database
designed to store, on a long-term basis, an individual's personal health
information (including, without limitation, the health records maintained by
providers, health plans, laboratories, nursing homes, home care enterprises,
etc., as well as summaries of such information) and with or without a user
interface that enables the population, maintenance, display and reporting of
such information.
"Public Sites" shall mean Licensee Web Sites which are not Sponsored Sites.
"Release Number" shall mean the second decimal place in the number assigned to
any software by the supplier of such software (e.g., the Release Number of XYZ
6.1.23 would be 1). A new "Release" means a software upgrade that adds new
features, corrects bugs or defects and in which the Release Number is
incremented while the Version Number remains unchanged (e.g., XYZ 6.2.0 would be
a new Release as compared to XYZ 6.1.23).
"Sponsored Sites" shall mean Licensee Web Sites which are sponsored by a health
plan, integrated delivery system, health club or any other web site that has a
closed membership or a defined population.
"Update Number" shall mean the third decimal place in the number assigned to any
software by the supplier of such software (e.g., the Update Number of XYZ 6.2.23
would be 23). A new "Update" means a software upgrade that provides bug fixes or
other minor corrections in which the Version Number and Release Number remain
unchanged and, if the number assigned to the software by the supplier, the
Update Number is incremented (e.g., XYZ 6.1.24 would be a New Update as compared
to XYZ 6.2.23).
"Version Number" shall mean the first decimal place in the number assigned to
any software by the supplier of such software (e.g., the Version number of XYZ
6.2.23 would be 6). A new "Version" means a major software upgrade that adds
substantial new features or other significant changes in which the Version
Number is incremented (e.g., XYZ 7.0.0 would be a new Version as compared to XYZ
6.2.23).
LICENSE and proprietary rights
License
HMI hereby grants Licensee a five (5) year, nonexclusive, renewable,
nontransferable, world-wide right and license commencing on the Effective Date:
to access from, and display on, Licensee Web Sites, the Internet-enabled pages
contained in HealthCompass (and HMI server based HMI Engaging Applications) via
links to such pages from such web sites through a digital certification process
for the purposes of allowing End Users to access and use such Internet-enabled
pages. Licensee shall license access to HealthCompass (and HMI server based HMI
Engaging Applications) by such web sites on terms no less protective of HMI's
intellectual property than are the terms contained in this Agreement. Licensee
is not granted the right to distribute HealthCompass (or HMI server based HMI
Engaging Applications) other than linked through the Licensee Web Sites.
HMI SHALL BE GIVEN THE SAME ACCESS TO THE LICENSEE WEB SITES AS IS
GENERALLY GIVEN TO THE END USERS OF SUCH WEB SITES. HMI SHALL HAVE THE
RIGHT TO MODIFY ANY ASPECT OF HEALTHCOMPASS (OR HMI SERVER BASED HMI
ENGAGING APPLICATIONS) INCLUDING, BUT NOT LIMITED TO, STRUCTURE,
CONTENT OR OPERATION SO LONG AS SUBSTANTIALLY THE SAME, OR
SUBSTANTIALLY SIMILAR, FUNCTIONALITY IS MAINTAINED, PROVIDED HOWEVER,
THAT WITH RESPECT TO ANY SUCH MODIFICATION THAT WOULD REASONABLY BE
DEEMED TO BE SIGNIFICANT, HMI SHALL PROVIDE PRIOR NOTICE OF SAME TO
LICENSEE, WHICH SUCH NOTICE HMI SHALL ENDEAVOR TO PROVIDE AT LEAST
NINETY (90) DAYS PRIOR TO DISTRIBUTING SUCH MODIFICATION, AND LICENSEE
SHALL UPON RECEIPT OF SUCH NOTICE HAVE A BONA FIDE OPPORTUNITY TO
REVIEW AND COMMENT ON ANY SUCH MODIFICATION. EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, LICENSEE AGREES NOT TO MODIFY, AMEND,
REDUCE THE SIZE OF OR IN ANY WAY OBLITERATE ANY WARNINGS, NOTICES,
LIABILITY LIMITATIONS, OR OTHER LICENSE PROVISIONS WHICH ARE CONTAINED
IN HEALTHCOMPASS OR THE HMI ENGAGING APPLICATIONS. IN ADDITION,
LICENSEE SHALL NOT, WITHOUT HMI'S PRIOR WRITTEN CONSENT, REMOVE FROM
ANY LICENSEE WEB SITE ANY HMI ENGAGING APPLICATION; PROVIDED THAT
LICENSEE SHALL BE PERMITTED TO SUBSTITUTE ITS OWN OR OTHER ENGAGING
APPLICATIONS OF COMPARABLE OR BETTER FUNCTIONALITY AND QUALITY FOR HMI
ENGAGING APPLICATIONS ("SUBSTITUTE ENGAGING APPLICATIONS") LICENSEE
ACKNOWLEDGES AND AGREES THAT END-USER ACCESS TO, AND USE OF,
HEALTHCOMPASS THROUGH LINKS FROM THE LICENSEE WEB SITES TO
_______________ SHALL BE SUBJECT TO END-USER'S AGREEMENT WITH
HEALTHMAGIC'S STANDARD TERMS AND CONDITIONS FOR USE OF HEALTHCOMPASS
AND COMPLIANCE WITH HMI PROMULGATED PRIVACY STATEMENTS/POLICIES
SPECIFIC TO HEALTHCOMPASS. LICENSEE ACKNOWLEDGES AND AGREES THAT EACH
LICENSE WEB SITE SHALL CONTAIN AT LEAST ONE DIRECT LINK TO
HEALTHMAGIC'S CONSUMER MARKET SITE, _________________________, TO
PROVIDE END USERS WITH THE OPPORTUNITY TO LEARN MORE ABOUT HEALTHMAGIC
AND ITS PRODUCTS AND SERVICES.
To use HealthQuery and the Health Vectors Tool internally in its own business
(to the extent related to HealthCompass) to develop Licensee Applications;
provided, however, Licensee may not develop or contract for the creation of
Licensee Applications (including, without limitation, Licensee Engaging
Applications) that, in the reasonable discretion of HMI, compete with
HealthCompass, HealthQuery or the Health Vectors Tool.
IN CONSIDERATION OF THE REVENUE SHARING MODEL SET FORTH IN 0, LICENSEE
SHALL GRANT TO HMI A PERPETUAL, NONEXCLUSIVE, NONTRANSFERABLE,
WORLD-WIDE RIGHT AND LICENSE TO COPY, REPRODUCE, MODIFY, TRANSLATE AND
DISTRIBUTE (INCLUDING SUBLICENSING AND MARKETING) COPIES OF, AND TO
PREPARE, HAVE PREPARED, DERIVATIVE WORKS OF, AND TO PERFORM, DISPLAY
AND USE LICENSEE APPLICATIONS FOR HMI'S INTERNAL USE AND IN CONJUNCTION
WITH HEALTHCOMPASS; PROVIDED THAT HMI SHALL NOT BE PERMITTED TO PROVIDE
ACCESS TO, OR USE OF, ANY OF LICENSEE APPLICATIONS LICENSED TO HMI TO
HMI'S OTHER CLIENTS FOR A SIX (6) MONTH PERIOD BEGINNING ON THE DATE
SUCH LICENSEE APPLICATIONS WERE INITIALLY LICENSED TO HMI. SUCH
LICENSES, IF ANY, WILL INCLUDE ANY AND ALL UPDATES, RELEASES AND NEW
VERSIONS OF SUCH LICENSEE APPLICATIONS THAT MAY BE PROVIDED TO HMI FROM
TIME TO TIME. EXCEPT FOR THE WARRANTIES PROVIDED IN PART II.1.A(2)B)
AND 0, LICENSEE IS PROVIDING ANY SUCH LICENSEE APPLICATIONS SOLELY ON
AN "AS-IS" BASIS. LICENSEE WARRANTS THAT THE LICENSEE COMPONENTS
CONTAINED IN THE LICENSEE APPLICATIONS LICENSED TO HMI SHALL NOT, AT
THE TIME OF LICENSING TO HMI, INFRINGE ANY THIRD PARTY COPYRIGHTS,
PATENTS OR TRADEMARKS OR MISAPPROPRIATE ANY TRADE SECRETS RIGHTS OF A
THIRD PARTY. IF A THIRD PARTY BRINGS AN ACTION AGAINST HMI MAKING
ALLEGATIONS WHICH, IF TRUE, WOULD CONSTITUTE A BREACH OF THIS WARRANTY,
OR IF LICENSEE ANTICIPATES SUCH AN ACTION, LICENSEE SHALL HAVE THE
OPTION, AT ITS EXPENSE, TO: (I) MODIFY THE LICENSE APPLICATION TO BE
NONINFRINGING; OR (II) OBTAIN FOR HMI A LICENSE TO CONTINUE USING THE
LICENSEE APPLICATION. THIS 0 AND 0 STATE LICENSEE'S ENTIRE OBLIGATION
TO HMI AND HMI'S SOLE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL
PROPERTY INFRINGEMENT FOR LICENSEE APPLICATIONS. TO IMPLEMENT HMI
ENGAGING APPLICATIONS (EXCLUSIVE OF HMI SERVER BASED HMI ENGAGING
APPLICATIONS) AND LICENSEE APPLICATIONS ON LICENSEE SERVERS AND PERMIT
THE INTERNET-ENABLED PAGES CONTAINED IN SUCH APPLICATIONS TO BE
ACCESSED FROM, AND DISPLAYED ON, LICENSEE WEB SITES, SOLELY AS
INCORPORATED, INTEGRATED, BUNDLED, PACKAGED INTO, OR OTHERWISE PROVIDED
AS A PART OF OR FOR USE IN CONJUNCTION WITH HEALTHCOMPASS, VIA LINKS TO
SUCH PAGES FROM SUCH WEB SITES THROUGH A DIGITAL CERTIFICATION PROCESS.
LICENSEE SHALL LICENSE ACCESS TO SUCH APPLICATIONS BY SUCH WEB SITES ON
TERMS NO LESS PROTECTIVE OF HMI'S INTELLECTUAL PROPERTY THAN ARE THE
TERMS CONTAINED IN THIS AGREEMENT.
The licenses set forth in this 0 include any and all Updates, Releases and new
Versions of HealthCompass, HMI Engaging Applications, HealthQuery and Health
Vector Tool that may be provided to Licensee from time to time.
Licensee shall not modify, make derivative works of, translate, reverse
engineer, decompile, dissemble, reengineer, extract, as applicable, any ideas,
algorithms or procedures from the whole or any part of the HMI Materials or
otherwise create or attempt to create or permit, allow, or assist others to
create the source code for the HMI Materials or any portion thereof. Without
limiting the generality of the foregoing, Licensee shall not modify, edit,
abbreviate censor or limit HealthCompass content or contained in HMI Engaging
Applications.
Licensee agrees to reproduce and include HMI's copyright, trademark, and other
proprietary rights notices on any copies of the HMI Materials, including partial
copies and copied materials in derivative works.
HMI reserves all rights not expressly granted under this Agreement.
HMI Trademarks
TRADEMARK LICENSE GRANT.
HMI is the owner of the "Health Magic" trade name, "Health Talk" xxxx, U.S.
Trademark Application Number 75/323223, the "Compass Man Design", U.S. Trademark
Application Number 75/459701, as well as the rights to marks associated with
HealthCompass developed by HMI specifically for use with HealthCompass as
HealthCompass is presented on a customer's web site, whether a word, graphic,
animated or sound xxxx (the "HMI Marks"). During the Term, HMI grants to
Licensee a non-exclusive license to use the HMI Marks in conjunction and
integrated with HealthCompass (the "Licensed Activities"). Licensee will use the
HMI Marks solely in connection with the Licensed Activities. HMI does not grant
Licensee the right to use the HMI Marks in connection with any products,
services and/or business other than the Licensed Activities.
Licensee will always use the HMI Marks on and in connection with the Licensed
Activities in a style or size of print distinguishing it from accompanying
wording or text. Licensee will display the symbol "TM" to the right and slightly
above the last letter of the HMI Marks identified by HMI as requiring a "TM"
when displayed on promotional and other materials used in advertising and
rendering the Licensed Activities.
Except as contemplated by this Agreement, the license to use the HMI Marks
granted by 0 of this Agreement may not be assigned or otherwise transferred by
Licensee. HMI does not grant, and nothing in this Agreement will be construed as
granting, Licensee the right to license, sublicense or authorize others to use
the HMI Marks.
QUALITY CONTROL.
Licensee's use of the HMI Marks and the nature and quality of the Licensed
Activities promoted and marketed by Licensee under the HMI Marks will at all
times comply with HMI's written standards and specifications attached hereto as
EXHIBIT D (and including as such standards and specifications are revised by HMI
from time-to-time upon
written notice to Licensee). Licensee shall be permitted a reasonable period
of time to bring its use of the HMI Marks into conformance with any changes
in such standards and specifications. Licensee will permit HMI to reasonably
inspect any materials used by Licensee in the promotion and marketing of the
Licensed Activities under the HMI Marks and all other records relating to the
quality of such activities.
Licensee will provide HMI with "proofs" or draft "web pages" of all materials
used in the identification and or promotion of the Licensed Activities under the
HMI Marks for approval by HMI prior to their use which approval shall not be
unreasonably withheld or delayed. Materials used in the identification and/or
promotion of the Licensed Activities will include, but are not limited to,
business cards, stationery, letterhead, web pages and promotional materials.
If HMI notifies Licensee in writing that the Licensed Activities and/or any
materials used by Licensee in the promotion and marketing of the Licensed
Activities do not meet the quality standards of HMI as reasonably determined by
HMI, Licensee will cease use the HMI Marks in any manner or in connection with
the Licensed Activities and materials in question. If, within sixty (60) days
after receiving the above written notification from HMI, Licensee cures or
otherwise corrects to HMI's reasonable satisfaction the failure to meet the
quality standards of HMI, Licensee will be entitled to resume its use of the HMI
Marks in connection with the promotion and marketing of the Licensed Activities.
TRADEMARK OWNERSHIP.
Licensee acknowledges that, as between HMI and Licensee, HMI's rights in the HMI
Marks are valid, that each is the exclusive property of HMI, and can lawfully be
used only with the express license or consent of HMI. Specifically, as between
HMI and Licensee, Licensee acknowledges HMI's common law rights in the HMI
Marks. Licensee will not at anytime do, or cause to be done any act or thing
contesting or in any way impairing or intending to impair the validity of and/or
HMI's rights, title and interest in and to the HMI Marks.
Licensee will not in any manner represent that it owns the HMI Marks. Licensee
will not register or apply to register the HMI Marks either alone or in
combination with any other word(s) and/or design(s), in any country, state or
jurisdiction.
Licensee acknowledges that its use of the HMI Marks will not create any rights,
title, or interest in or to said xxxx in Licensee's favor, but that all use of
the HMI Marks by Licensee will inure to the benefit of HMI.
HMI MARKS IN LICENSEE WEB SITES. Subject to the other provisions of this 0,
Licensee agrees to place a HealthMagic logo (in the form of the Compass Man
Design at least 100x70 pixels in size) on all pages on the Licensee Web Sites
containing HealthMagic Content.
PROPRIETARY RIGHTS
As between HMI and Licensee, the HMI Materials are owned by and shall remain the
sole property of, HMI, contain, embody and are based on patented or patentable
inventions, trade secrets, copyrights and other intellectual property rights
(collectively, "IP Rights") owned or controlled by HMI and HMI shall continue to
be the sole owner of all IP Rights in and to the HMI Materials, including,
without limitation, any derivative works of the HMI Materials produced by HMI or
on HMI's behalf. Licensee agrees that it will provide all reasonable cooperation
and assistance to HMI, at HMI's expense, in taking any action necessary or
appropriate to establish, confirm and defend HMI's IP Rights, including, without
limitation, (i) transferring and assigning to HMI any rights, title and interest
that Licensee may have in and to the HMI Materials (to the extent, if any, that
ownership of the HMI Materials does not automatically vest in HMI by virtue of
this Agreement or otherwise) and (ii) the preparation, filing and prosecution of
patent, copyright and trademark applications and the offering of testimony and
other support in connection with any legal proceedings brought by or against HMI
relating to HMI's IP Rights.
As between HMI and Licensee, the Licensee Components are owned by and shall
remain the sole property of, Licensee, contain, embody and are based on IP
Rights owned or controlled by Licensee and Licensee shall continue to be the
sole owner of all IP Rights in and to the Licensee Components, including,
without limitation, any derivative works of Licensee Components produced by
Licensee. HMI agrees that it will provide all reasonable cooperation and
assistance to Licensee, at Licensee's expense, in taking any action necessary or
appropriate to establish, confirm and defend Licensee's IP Rights, including,
without limitation, (i) transferring and assigning to Licensee any rights, title
and interest that HMI may have in and to the Licensee Components (to the extent,
if any, that ownership of the Licensee Components does not automatically vest in
Licensee by virtue of this Agreement or otherwise) and (ii) the preparation,
filing and prosecution of patent, copyright and trademark applications and the
offering of testimony and other support in connection with any legal proceedings
brought by or against Licensee relating to Licensee's IP Rights.
NONCOMPETITION
Within the United States and within any other country in which HMI does business
and/or in which HealthCompass (or any portion thereof) is marketed and/or
licensed, Licensee shall not, outside of this Agreement or any other agreement
with HMI: (i) develop itself, contract for the creation of on its behalf, or
represent that it has any product(s) or service(s) that duplicate to any
significant degree the functionality of HealthCompass; (ii) support or
distribute any such products(s) or service(s); or (iii) enter into or maintain
contractual relationships with third parties under which a material portion of
the revenue Licensee receives pursuant to such relationships derives from the
sale or license by such third parties of any such product(s) or service(s).
Each party acknowledges and agrees that the restrictive covenants placed on such
party in this 0 are reasonable and necessary to protect the legitimate interests
of the other party and that any violation of such restrictive covenants will
result in irreparable injury to the other party. Each party hereby irrevocably
waives any right to challenge or otherwise attempt to invalidate any of the
restrictive covenants that such party is subject to, or any part(s) thereof.
Each party agrees that, in the event it violates any of the restrictive
covenants to which it is subject, the other party shall be entitled to
preliminary and permanent injunctive relief as well as an equitable accounting
of all earnings, profits and other benefits arising from such violation, which
rights shall be cumulative and in addition to any other rights or remedies to
which such other party may be entitled at law or in equity. If it is determined
that any of the restrictive covenants set forth in this 0, or any part(s)
thereof, are illegal or unenforceable, it is the parties' intent that the scope
of the covenant be reduced to conform to the requirements of law.
For so long as Licensee continues to use any of the HMI Materials, Licensee's
obligation under this 0 shall survive the termination of this Agreement for any
reason.
SET-UP, Maintenance and support services; Hosting Services
SET-UP SERVICES
Upon the Effective Date of this Agreement, HMI and Licensee shall commence (or
continue as the case may be) good faith discussions and cooperate towards
producing a mutually agreed upon document specifying the requirements for
setting up HealthCompass for Licensee (the "Release Definition"). HMI and
Licensee shall each perform the tasks required of it by the Release Definition
(with HMI's tasks referred to herein as the "Set-Up
Services"). HMI shall be responsible for overall management of setting
HealthCompass up for Licensee and shall use commercially reasonable efforts
to maintain the agreed upon schedule for final completion, and to identify
and resolve, or assist Licensee in the resolution of, any problems
encountered in the timely completion of each task. A work-in-progress draft
of the Release Definition is attached to this Agreement as EXHIBIT F in the
form of the HealthCompass Onsite for TheHealthChannel Requirements, dated
July 26, 1999.
MAINTENANCE AND SUPPORT SERVICES
EXHIBIT B to this Agreement describes the maintenance and support services for
the HMI Materials ("Maintenance and Support Services"). Maintenance and Support
Services will be provided by HMI on the terms set forth in EXHIBIT B.
HEALTHCOMPASS HOSTING.
HealthMagic will provide Licensee with services for hosting of HealthCompass on
the World Wide Web portion of the Internet (the "Hosting Services").
HealthCompass will provide the Hosting Services so that HealthCompass is
accessible from the Licensee Web Sites via the World Wide Web portion of the
Internet twenty-four (24) hours a day, seven (7) days a week, except for
scheduled maintenance and required repairs, and except for any loss or
interruption due to causes beyond HMI's control or which are not reasonably
foreseeable by HMI, including, but not limited to, interruption or failure of
telecommunication or digital transmission links and Internet slow-downs or
failures. HealthCompass will be hosted by HMI on HMI's own servers located
within a secure location at HMI's facilities or on servers specifically
designated for HMI at a third-party secured site provider selected by HMI.
Financial Structure
Set-Up and Maintenance Fees
As compensation for the Set-Up Services, Licensee shall pay HMI, via wire
transfer to an account designated by HMI, and within fifteen (15) days after the
Effective Date, a one-time fee of Ten Thousand Dollars ($10,000). Additional
amounts, if any, for the provision of the Set-Up Services shall be as set forth
in EXHIBIT F and paid in the manner specified therein.
Incremental payment, if any, for the provision of the Maintenance and Support
Services for the HMI Materials provided under this Agreement shall be as set
forth in EXHIBIT B and paid in the manner specified therein.
LICENSE FEES
Licensee will pay to HMI, via wire transfer to an account designated by HMI,
within fifteen (15) days of the beginning of each Payment Period during the
Term, [Six Thousand Two Hundred and Fifty Dollars ($6,250)] (the "Base Fee").
For the purposes of this Agreement, the Term shall be broken into successive
three (3) month "Payment Periods", with the first Payment Period beginning on
the Effective Date.
With respect to each Payment Period during the Term, HMI shall be entitled to
additional fees ("Additional Fees") for such Payment Period pursuant to the
revenue sharing provisions set forth in EXHIBIT E.
Licensee shall use commercially reasonable efforts to advertise, promote and
market HealthCompass to its End-Users and potential customers.
LICENSEE APPLICATIONS
The gross revenues, if any, generated by either party through any Licensee
Application created by Licensee using HealthQuery or the Health Vectors Tool
shall be shared equally between Licensee and HMI. If and to the extent revenues
generated by such a Licensee Application are subject to sharing pursuant to this
0 and also subject to any of the revenue sharing provisions in 0, such revenues
shall be shared pursuant to the applicable revenue sharing provisions in 0, with
the sharing of any revenues generated by such Licensee Applications which are
not subject to any of the revenue sharing provisions in 0 being determined by
this 0.
AUDITS
For three (3) years after the close of each Payment Period, Licensee shall keep
full and accurate books of accounts and copies of all documents and other
material necessary to calculate amounts due HMI pursuant to 0 and shall make
such books of accounts, documents and other materials available for inspection
by HMI upon HMI's reasonable notice and during normal business hours. In the
event such inspection reveals any underpayments in Licensee's payment
obligations and, taking into account any overpayments uncovered by the
inspection, the aggregate amount actually paid to HMI is less than the aggregate
amount due to HMI (the difference between such amounts hereinafter referred to
as the "Underpayment Amount"), Licensee will promptly pay to HMI the
Underpayment Amount plus interest calculated at the lower of one and one-half
percent (1.5%) per month or the highest interest rate permitted by law on the
Underpayment Amount, from the date of underpayment by Licensee until the date
HMI is paid the Underpayment Amount. In addition, if the Underpayment Amount
exceeds five percent (5%) of the amount due to HMI, Licensee will reimburse HMI
for its reasonable audit and inspection costs.
COST OF PERFORMANCE; TAXES
Except as otherwise set forth herein, neither party shall be obligated to pay
any other expenses which the other party may be liable for based upon or in
connection with the transactions contemplated by this Agreement.
LICENSEE SHALL PAY ALL TAXES ARISING OUT OF THIS AGREEMENT EXCEPT TAXES BASED
UPON THE NET INCOME OF HMI.
PAYMENT DUE
All amounts payable to HMI under this Agreement are to be paid in US Dollars by
wire transfer to an account designated by HMI. Such amounts shall be due and
payable in full in accordance with the time periods specified in this Agreement
for such amounts or, if no time period is specified, within fifteen (15) days of
the date Licensee receives an invoice from HMI for such amounts. Any payment not
made by Licensee when due under this Agreement will be subject to interest from
the date such payment was due through the date paid, at an annual rate of two
percent (2%) over the prevailing prime interest rate as fixed and published in
the Wall Street Journal in effect as of the date on which such payment should
have been paid to HMI. If any payment (and/or applicable interest)
remains unpaid for more than forty-five (45) days after the date due, HMI may
terminate this Agreement by providing written notice to Licensee.
Warranties
HMI WARRANTIES
HMI WARRANTS TO LICENSEE, AS OF THE EFFECTIVE DATE, AS FOLLOWS:
Subject to 0 below, HMI warrants that, during the thirty (30) days immediately
following the delivery of HealthCompass (the "Warranty Period"): (i) performance
of HealthCompass as delivered will not deviate materially from the documentation
accompanying HealthCompass; and (ii) any date sensitive software components
(i.e., software components the functionality of which includes processing,
providing and/or receiving date data) of HealthCompass will be year 2000
compliant (i.e., will, when used in accordance with associated documentation be
capable of correctly processing, providing and/or receiving date data from,
into, within or between the twentieth and twenty-first centuries). For purposes
of 0(ii) the Warranty Period shall be from the initial delivery of HealthCompass
until December 31, 2000. If Licensee believes there has been a breach of this
warranty and so notifies HMI in writing within the Warranty Period, then HMI
will promptly investigate the matter to determine the nature of the suspected
breach. If it is determined that there has been a breach of this warranty, then
HMI's sole obligation, and Licensee's exclusive remedy, will be for HMI to
correct or modify HealthCompass to make it perform as warranted.
Subject to 0 below, HMI warrants that the HMI Materials shall not: (a)
constitute, or contain material that would constitute, libel, defamation or
slander; or (b) constitute, or contain material that would constitute, an
invasion of the rights to publicity of any third party or other similar right.
Except as set forth in 0, to the extent the breach of this 0 is due to content
not developed or owned by HMI, HMI's exclusive liability and Licensee's sole
remedy for breach of this 0 shall be for HMI to remove any content which is the
subject of the warranty claim in a commercially reasonable timely fashion.
Subject to 0 below, HMI warrants that the HMI Materials do not infringe any
third party copyrights, issued U.S. patents or trademarks or misappropriate any
trade secrets rights of a third party. If a third party brings an action against
Licensee making allegations which, if true, would constitute a breach of this
warranty for which HMI is responsible, or if HMI anticipates such an action, HMI
shall have the option, at its expense, to: (i) modify the infringing item(s) to
be noninfringing without materially changing the functionality of such item(s);
or (ii) obtain for Licensee a license to continue using such item(s). This 0 and
0 state HMI's entire obligation to Licensee and Licensee's sole remedy with
respect to any claim of intellectual property infringement with respect to the
HMI Materials.
HMI is not responsible for any claimed breaches of the foregoing warranties set
forth in 0 caused by: (i) software or other materials furnished to HMI by
Licensee pursuant to this Agreement, (ii) modifications made to the HMI
Materials by anyone other than HMI and its authorized personnel working at HMI's
direction; (ii) the combination, operation or use of the HMI Materials with any
third-party equipment or software or other items that HMI did not supply to
Licensee (including, without limitation, any Licensee provided or developed
equipment or software); or (iii) failure to use any new or corrected versions of
HMI Materials made available by HMI.
HMI does not warrant that the HMI Materials will be error-free or that their
operation will be uninterrupted. Licensee acknowledges that it is solely
responsible for the results obtained from use of the HMI Materials.
LICENSEE WARRANTIES
Licensee warrants that the Licensee Components and non-HMI Content displayed or
appearing on, or otherwise a part of, the pages of the Licensee Web Sites
including, without limitation, advertisements and the content accessed by
selecting such advertisements, in conjunction with Licensee's use of
HealthCompass shall not: (a) constitute, or contain material that would
constitute, libel, defamation or slander; (b) constitute, or contain material
that would constitute, an invasion of the rights to publicity of any third
party; or (c) infringe upon the IP Rights of any third party.
WARRANTY DISCLAIMER
THE WARRANTIES EXPRESSLY SET FORTH IN THIS 0 BY EACH PARTY ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE.
OTHER TERMS AND CONDITIONS
GENERAL INDEMNIFICATION
Licensee shall defend at its expense, indemnify and hold HMI and its respective
officers, directors, shareholders, employees and agents harmless from, and pay
all settlements, costs and expenses (including, without limitation, costs of
investigation and reasonable legal fees and expenses), damages, liabilities and
awards, arising out of or relating to third party claims based on: (i) claimed
breach by Licensee of any of the warranties being provided by Licensee in 0 of
this Agreement; (ii) breach by Licensee of its security and other obligations
with respect to End User Data pursuant to 0; (iii) breach by Licensee of its
confidentiality obligations pursuant to 0 of this Agreement; (iv) Licensee's
negligence or intentional tortious conduct; or (v) use of or inability to use
the HMI Materials or the Licensee Web Sites.
HMI shall defend at its expense, indemnify and hold Licensee and its respective
officers, directors, shareholders, employees and agents harmless from, and pay
all settlements, costs and expenses (including, without limitation, costs of
investigation and reasonable legal fees and expenses), damages, liabilities and
awards, arising out of or relating to third party claims based on: (i) claimed
breach of any of the warranties being provided by HMI in 0 of this Agreement for
which HMI is responsible; (ii) claim that the execution by HMI of this Agreement
or compliance by HMI with its terms and conditions conflicts with or causes a
breach or violation of any other agreement; (iii) breach of its confidentiality
obligations pursuant to 0 of this Agreement; or (iv) HMI's negligence or
intentional tortious conduct.
INDEMNIFICATION PROCEDURES
NOTICE. Promptly after receipt by any entity entitled to indemnification under
this Agreement of notice of the commencement or threatened commencement of any
civil, criminal, administrative, or investigative action or proceeding involving
a claim in respect of which the indemnitee will seek indemnification pursuant to
the appropriate provision of this Agreement, the indemnitee shall promptly
notify the indemnitor of such claim in writing. No failure to so notify an
indemnitor shall relieve it of its obligations under this Agreement except to
the extent that it can demonstrate damages attributable to such failure. Within
fifteen (15) days following receipt of
written notice from the indemnitee relating to any claim, but no later than
ten (10) days before the date on which any response to a complaint or summons
is due, the indemnitor shall notify the indemnitee in writing if the
indemnitor elects to assume control of the defense and settlement of that
claim (a "Notice of Election"). The indemnitor shall reimburse the indemnitee
for all costs and expenses incurred by the indemnitee in responding to such
action or proceeding during the period between when the indemnitee has
notified the indemnitor of the claim in writing and when the indemnitor
delivers a Notice of Election in response or the expiration of the required
notice period for the Notice of Election to be delivered, whichever comes
first.
PROCEDURE FOLLOWING NOTICE OF ELECTION. If the indemnitor delivers a Notice of
Election relating to any claim within the required notice period, the indemnitor
shall be entitled to have sole control over the defense and settlement of such
claim; provided that (i) the indemnitee shall be entitled to participate in the
defense of such claim and to employ counsel at its own expense to assist in the
handling of such claim, and (ii) the indemnitor shall obtain the prior written
approval of the indemnitee before entering into any settlement of such claim or
ceasing to defend against such claim. After the indemnitor has delivered a
Notice of Election and has assumed its obligations under this 0 relating to any
claim in accordance with the preceding paragraph, the indemnitor shall not be
liable to the indemnitee for any legal expenses incurred by the indemnitee in
connection with the defense of that claim. In addition, the indemnitor shall not
be required to indemnify the indemnitee for any amount paid or payable by the
indemnitee in the settlement of any claim for which the indemnitor has delivered
a timely Notice of Election if such amount was agreed to without the written
consent of the indemnitor.
PROCEDURE WHERE NO NOTICE OF ELECTION IS DELIVERED. If the indemnitor does not
deliver a Notice of Election relating to any claim within the required notice
period, the indemnitee shall have the right to defend the claim in such manner
as it may deem appropriate, at the cost and expense of the indemnitor. The
indemnitor shall promptly reimburse the indemnitee for all such costs and
expenses.
LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, each party's entire
liability and the other party's exclusive remedy for damages from any event or
claim arising under or relating to this Agreement, for any cause whatsoever, and
regardless of the form of action, whether in contract or in tort or any other
theory of liability (including, without limitation, breach of warranty and
negligence), will be limited as follows:
Subject to 0, each party will be liable for direct damages only, in an amount
not to exceed, in the aggregate for all claims, the greater of: (a) the
cumulative amount paid or payable to HMI under this Agreement in the three (3)
month period immediately proceeding the event giving rise to such liability, or
(b) [Two Hundred and Fifty Thousand Dollars ($250,000)].
Subject to 0, in no event will either party be liable for any lost profits, loss
of business, loss of use, lost savings or other consequential, special,
incidental, indirect, exemplary or punitive damages, even if advised of the
possibility of such damages.
The limitations set forth in 0 and 0 shall not apply to: (i) claims that are the
subject of indemnification pursuant to 0; or (ii) claims arising out of the
breach of, 0, 0 or 0.
Each party shall have a duty to mitigate damages for which the other party is
responsible.
The remedies expressly stated in this Agreement are the sole and exclusive
remedies of either party. The limitations of liability set forth in this 0 will
survive the failure of any limited or exclusive remedy set forth in this
Agreement and the expiration or termination of this Agreement.
FORCE MAJEURE
Neither party will be deemed in default of this Agreement to the extent
that performance of its obligations, or attempts to cure any breach, are delayed
or prevented by reason of any act of God, cause outside of the party's
reasonable control or other force majeure; provided that, such party promptly
gives to the other party written notice
of the condition and undertakes commercially reasonable efforts to circumvent
the cause of the delay or minimize the extent of the delay. In any such
event, the time for performance or cure will be extended for a period equal
to the duration of the delay, not to exceed four (4) weeks. If the notifying
party does not resume performance of such obligations or cure such breach
before the end of such four (4) week period, the other party will be entitled
to terminate the Agreement immediately without any obligation or liability to
the delayed party for doing so.
NONDISCLOSURE
Each party acknowledges that it may be furnished with or may otherwise receive
or have access to non-public information which relates to past, present or
future research, development, improvements, inventions, processes, software,
techniques, designs or other technical data, contact lists or other compilations
for marketing or development, or regarding administrative, management, financial
or marketing activities of HMI, Licensee or other third parties which have
provided information to HMI or Licensee. "Confidential Information" is all
information (i) identified in written, graphic electronic or oral format by the
Disclosing Party as confidential, trade secret or proprietary information, or
(ii) by its nature or the circumstances surrounding its disclosure should
reasonably be regarded as Confidential Information. "Disclosing Party" is the
party disclosing Confidential Information. "Receiving Party" is the party
receiving Confidential Information. Without limiting the generality of the
foregoing, Confidential Information shall be deemed to include End-User Data and
data about End Users contained in Health Vectors and the terms and conditions of
this Agreement.
All Confidential Information furnished or otherwise disclosed to either party in
the course of performing this Agreement shall remain the property of and be
deemed proprietary and confidential to the Disclosing Party (with the exception
of End-User Data which shall, as between HMI and Licensee, be deemed to be
confidential to, and remain the property of, the disclosing End User). Without
limiting the foregoing, the Receiving Party agrees: (a) to the extent permitted
by applicable law, to hold such Confidential Information in strict confidence
and in trust for the Disclosing Party; (b) to use the same degree of care in
protecting the Confidential Information for which it protects its own such
confidential information of like nature, but in no instance with less than
reasonable care to protect such Confidential Information against unauthorized
use or disclosure; and (c) to restrict disclosure of such Confidential
Information to its employees who (i) are directly participating in the
performance of this Agreement; (ii) have a need to know such Confidential
Information; and (iii) have, upon the request of the Disclosing Party as a
prerequisite to the release of Confidential Information, executed an employee
nondisclosure agreement in a form mutually acceptable to the Disclosing Party
and the Receiving Party.
The Receiving Party further agrees that, with regard to Confidential Information
of the Disclosing Party which the Receiving Party has received or itself
generated, it will not disclose or allow to be disclosed any such Confidential
Information to any third party, including, without limitation, any subsidiary,
Affiliate, joint venture, any other contractual, cooperative, or affiliated
entity of the such third party, or any independent entity without the express
prior written consent of the Disclosing Party, which consent the Disclosing
Party may give or withhold in its sole discretion unless disclosure of such
Confidential Information is required by applicable law. If a Disclosing Party
consents to the disclosure of such Confidential Information to any such third
party, such disclosure shall not be made until Receiving Party, the Disclosing
Party and the third party have entered into a non-disclosure agreement in a form
acceptable to the Disclosing Party.
The Receiving Party shall not reproduce, disclose or use the Confidential
Information of the Disclosing Party, except for the sole purpose of performing
its obligations under this Agreement or in accordance with applicable law.
Without limiting the generality of the preceding sentence, the Receiving Party
may not use Confidential Information of the Disclosing Party which it has
received, collected or itself generated for purposes other than performing its
obligations under this Agreement without the prior written consent of the
Disclosing Party.
The limitations on reproduction, disclosure, or use of Confidential
Information shall not apply to, and neither party shall be liable for,
reproduction, disclosure, or use of any particular Confidential Information
of the other that was developed independently by the Receiving Party prior to
the receipt of any Confidential Information under this Agreement, as
evidenced by written documents prepared or received by such party prior to
the receipt of any Confidential Information under this Agreement; was
received without any obligation of confidentiality from a third party that
was rightfully in possession of such information and had the right to
disclose it to the Receiving Party without an obligation of confidentiality;
has been published or otherwise disclosed to others by the Disclosing Party
without restrictions, or has come within the public knowledge or become
generally known to the public without breach of this Agreement; is a
derivative of End-User Data (or data about end users contained in Health
Vectors) that: (i) is of a statistical/demographic nature and provided in an
anonymous form, as an aggregate of the similar information of multiple end
users that does not individually identify specific end users (e.g., the
number of HealthCompass end users who are males between the ages of 25 and 40
reporting a particular condition); or (ii) specific to a particular end user
but provided in a "blinded" fashion that does not reveal identifying data
about such end user (e.g., the age of the youngest HealthCompass end user in
a geographic area reporting a particular condition); is legally required to
be disclosed pursuant to a judicial order (provided that, prior to such
disclosure, the party ordered to make such a disclosure promptly informs the
other of the order). The party seeking the protection of any of items (1)
through (5) above shall bear the burden of proof with respect to any such
exception. Immediately upon receipt by the Receiving Party of any request to
release, disclose or use Confidential Information, where such release,
disclosure or use is required by applicable law and is otherwise in
contravention to the terms and conditions of this Agreement, Receiving Party
shall provide Disclosing Party written notice of such request. Such notice
shall be calculated to be sufficiently descriptive and in advance of any such
release, disclosure or use so as to allow Disclosing Party the opportunity to
raise any appropriate objections. Disclosing Party shall be solely
responsible for raising such objections and shall bear all costs, including
legal costs, associated with such objections. Confidential Information may be
disclosed on a need to know basis to the accountants and attorney of the
Receiving Party without the consent of the Disclosing Party.
Should the Receiving Party receive information with uncertain status, the
Receiving Party agrees to treat such information as Confidential Information
until it receives written verification from the Disclosing Party that such
information is not Confidential Information.
Neither the execution of this Agreement, nor the furnishing of any Confidential
Information by the Disclosing Party or the Receiving Party shall be construed as
granting to either party expressly, by implication, by estoppel or otherwise,
any license under any trademark, copyright, invention or other proprietary right
now or hereafter owned or controlled by the party furnishing such information.
Upon termination or expiration of this Agreement for any reason, the Receiving
Party shall, at the Disclosing Party's option, either return or destroy all
Confidential Information, and shall destroy all analyses, compilations,
forecasts, studies and other documents based upon or derived from such
Confidential Information, and in each case shall retain no copies and shall
cause an officer of the Receiving Party to certify in writing that it has
complied fully with its obligations under this 0.
With regard to Confidential Information which either party has received or
itself generated, in the event either party becomes aware of any release,
disclosure or use of such Confidential Information which has not been authorized
by this Agreement, it will promptly, at its sole expense, (i) notify the
Disclosing Party in writing; (ii) take such actions as may be necessary or
reasonably requested by the Disclosing Party to minimize such unauthorized
release, distribution or use and any damage to the Disclosing Party resulting
therefrom; and (iii) to the extent permitted by applicable law, cooperate in all
reasonable respects with the Disclosing Party to minimize any such release,
distribution, use and damage.
The provisions of this 0 shall survive the termination or expiration of this
Agreement for any reason for a period of five (5) years; provided, however, that
such provision shall continue to apply: (i) to End-User Data; and (ii) as
necessary to comply with any applicable laws, regulations, ordinances and codes.
RIGHTS IN DATA
Within ninety (90) days of the Effective Date, the parties shall in good faith
commence negotiations to mutually agree upon a set of standards to govern: (i)
the location of particular elements or types of End-User Data, as between
HealthCompass and the Licensee Web Sites; (ii) the presentation of derivatives
of End-User Data to third parties; (iii) physical and logical security measures
to safeguard against the unauthorized alteration of access to, or destruction or
loss of, End User Data; and (iv) other security policies related to HMI's and
Licensee's uses of End User Data (items (i) through (iv) collectively, the
"End-User Data Standards"). Such Standards will be based on, or take into
account standards or guidelines promulgated by: (i) federal or applicable state
or local governmental organizations; and (ii) industry recognized
groups/organizations. Once established and agreed upon, each party shall be
bound by and comply with such End-User Data Standards.
NOTWITHSTANDING 0 ABOVE:
HMI shall have: (i) the right to provide market research or data analysis on the
whole of HealthCompass (i.e., on all End User Data contained in HealthCompass
including, without limitation, the Licensee Sourced End User Data) to third
parties; and (ii) ongoing access to Licensee Sourced End User Data as necessary
to perform its obligations under this Agreement including, without limitation,
the ongoing maintenance, support and enhancement of HealthCompass. Licensee's
access to the End-User Data contained in HealthCompass of End-Users whose data
was entered into HealthCompass through a Licensee Web Site (and which has not
been removed by such End-User) (hereinafter referred to as "Licensee Sourced
End-User Data") shall generally be for the purpose of performing market research
of a statistical or demographic nature (specifically, trend spotting and making
observations about such end users). Licensee shall establish physical and
logical data security and protection measures no less stringent than those
maintained by HMI (or on HMI's behalf) to protect/secure/safeguard End-User Data
prior to viewing, displaying or maintaining copies of Licensee Sourced End-User
Data outside of HealthCompass.
SecuritY
DIGITAL SECURITY.
To restrict access to HealthCompass to authorized end users whose identity has
been verified, and to secure transmission of information over the Internet
between such end users and Licensee, when using HealthCompass, access to, and
use of, HealthCompass shall be protected by a Digital Certificate based
public-key encryption process. Accordingly, prior to using HealthCompass, End
Users shall be required to present a Digital Certificate to Licensee from an HMI
approved Certifying Authority. Upon End-User request, HMI will serve as the
Certifying Authority and issue an HMI Digital Certificate to the End-User. If
the End-User elects to obtain the Digital Certificate from an HMI approved
Certifying Authority (as opposed to HMI), the End-User will be responsible for
any costs associated with acquiring such Digital Certificate.
SECURITY AND PROTECTION OF END-USER DATA.
HMI shall use commercially reasonable efforts to institute and maintain industry
recognized "best practices" (limited to the commercial sector) for physical and
logical security measures to safeguard against the unauthorized alteration or
access to, or destruction or loss of, End User Data. As of the Effective Date,
HMI is a participant in several privacy programs that govern the privacy and
security of information over the Internet, including TRUSTe, HON code and the
Better Business Bureau (BBB Online). Without limiting the generality of the
foregoing, HMI shall comply with applicable mandatory standards promulgated by
federal or applicable state or local jurisdictions and relating to the
safeguarding of data that is of a same or similar nature to medical data in the
context of the Internet or World Wide Web; provided that failure by HMI to
comply with such applicable mandatory standards shall not be deemed to be a
breach of this Agreement where HMI provides Licensee with commercially adequate
assurances that such non-compliance does not place on Licensee any liability
that would not have existed in the absence of such non-compliance.
Licensee agrees that the Licensee Web Sites, as well as Licensee's use of the
Licensee Web Sites and HealthCompass, and Licensee's use of Licensee Sourced
End-User Data, shall be subject to the HMI promulgated security policies set
forth in EXHIBIT C and the relevant security requirements established in the
Health Insurance Portability and Accountability Act.
INSURANCE
Each party will have and maintain in force the following insurance coverages:
Comprehensive or Commercial General Liability Insurance, including Products,
Completed Operations Liability and Personal Injury, Blanket Contractual
Liability and Broad Form Property Damage Liability coverage for damages to any
property with a minimum limit of $1,000,000 per occurrence and $5,000,000 in the
aggregate.
Employee Dishonesty and Computer Fraud coverage for loss arising out of or in
connection with any fraudulent or dishonest acts committed by the employees or
agents of the insured party, acting alone or in collusion with others, including
the property and funds of others in their care, custody or control, in a minimum
amount of $5,000,000.
Errors and Omissions Liability Insurance covering the liability for financial
loss due to error, omission, negligence of employees and machine malfunction in
an amount of at least $5,000,000.
Software Errors and Omissions Liability Insurance covering the liability for
financial loss due to software errors and omissions in an amount of at least
$5,000,000.
Each party shall cause its insurers to issue certificates of insurance
evidencing that the coverages and policy endorsements required under this
Agreement are maintained in force and that not less than thirty (30) days
written notice shall be given to the other party prior to any modification,
cancellation or non-renewal of the policies.
TERM AND TERMINATION
The term of this Agreement shall commence upon the Effective Date and expire on
the fifth (5th) anniversary of the Effective Date (the "Initial Term"), unless
terminated earlier or extended in accordance with this Agreement. This Agreement
(including, without limitation, the license granted in 0) will automatically
renew for successive twelve (12) month periods unless either party notifies the
other in writing at least sixty (60) days prior to the end of the Initial Term
or any then-applicable renewal period that it desires this Agreement to expire
at the end of the Initial Term or renewal period. The Initial Term and any
renewal period(s) are collectively referred to herein as the "Term".
If either party believes that the other party has failed in any material respect
to perform its obligations under this Agreement, then that party may provide
written notice to the breaching party describing the alleged failure in
reasonable detail. If the breaching party does not, within one hundred and
eighty (180) calendar days after receiving such written notice, either (i) cure
the material failure or (ii) if the breach is not one that can reasonably be
cured within one hundred and eighty (180) calendar days, develop a plan to cure
the failure and diligently proceed according to the plan until the material
failure has been cured, then the non-breaching party may terminate this
Agreement for cause by providing written notice to the non-breaching party.
Termination of this Agreement will be in addition to, and not in lieu of, other
remedies available to the terminating party under this Agreement.
HMI may terminate this Agreement by giving Licensee prior written notice and
designating a date upon which such termination shall be effective if Licensee
makes a general assignment for the benefit of creditors, files a voluntary
petition of bankruptcy, suffers or permits the appointment of a receiver for its
business or assets, becomes subject to any proceeding under any bankruptcy or
insolvency law, whether domestic or foreign, that is not dismissed within one
hundred and twenty (120) days, or has wound up or liquidated, voluntarily or
otherwise.
Within thirty (30) days after the expiration or termination of this Agreement
for any reason: (i) Licensee shall cease all use of and, at HMI's election,
return to HMI or destroy the original and all copies (including partial copies)
of all software, documentation, all HMI Confidential Information, and any other
products or materials licensed or otherwise provided to Licensee under this
Agreement (including, without limitation, the HMI Materials) ("HMI Items"); (ii)
all rights granted to Licensee in and to such HMI Items shall terminate.
Licensee shall certify in writing to HMI that it has fully performed its
obligations under this paragraph.
LAW AND DISPUTES
This Agreement will be governed by the laws of the State of [South Carolina],
without regard to any provision of [South Carolina] law that would require or
permit the application of the substantive law of any other jurisdiction.
INFORMAL DISPUTE RESOLUTION.
Prior to the initiation of formal dispute resolution procedures, the parties
shall first attempt to resolve their dispute informally, as follows:
UPON THE WRITTEN REQUEST OF A PARTY, EACH PARTY SHALL APPOINT A
DESIGNATED REPRESENTATIVE WHOSE TASK IT WILL BE TO MEET FOR THE PURPOSE
OF ENDEAVORING TO RESOLVE SUCH DISPUTE. THE DESIGNATED REPRESENTATIVES
SHALL MEET AS OFTEN AS THE PARTIES REASONABLY DEEM NECESSARY IN ORDER
TO GATHER AND FURNISH TO THE OTHER ALL INFORMATION WITH RESPECT TO THE
MATTER IN ISSUE WHICH THE PARTIES BELIEVE TO BE APPROPRIATE AND GERMANE
IN CONNECTION WITH ITS RESOLUTION. THE REPRESENTATIVES SHALL DISCUSS
THE PROBLEM AND ATTEMPT TO RESOLVE THE DISPUTE WITHOUT THE NECESSITY OF
ANY FORMAL PROCEEDING. DURING THE COURSE OF DISCUSSION, ALL REASONABLE
REQUESTS MADE BY ONE PARTY TO ANOTHER FOR NONPRIVILEGED INFORMATION,
REASONABLY RELATED TO THIS AGREEMENT, SHALL BE HONORED IN ORDER THAT
EACH OF THE PARTIES MAY BE FULLY ADVISED OF THE OTHER'S POSITION. THE
SPECIFIC FORMAT FOR THE DISCUSSIONS SHALL BE LEFT TO THE DISCRETION OF
THE DESIGNATED REPRESENTATIVES.
Formal proceedings for the resolution of a dispute may not be commenced until
the earlier of:
THE DESIGNATED REPRESENTATIVES CONCLUDING IN GOOD FAITH THAT AMICABLE
RESOLUTION THROUGH CONTINUED NEGOTIATION OF THE MATTER DOES NOT APPEAR
LIKELY; OR THIRTY (30) DAYS AFTER THE INITIAL WRITTEN REQUEST TO
APPOINT A DESIGNATED REPRESENTATIVE PURSUANT TO PARAGRAPH (A) ABOVE
(THIS PERIOD SHALL BE DEEMED TO RUN NOTWITHSTANDING ANY CLAIM THAT THE
PROCESS DESCRIBED IN THIS 0 WAS NOT FOLLOWED OR COMPLETED).
0 shall not be construed to prevent a party from instituting, and a party is
authorized to institute, formal proceedings earlier to avoid the expiration of
any applicable limitations period, or to preserve a superior position with
respect to other creditors.
IMMEDIATE INJUNCTIVE RELIEF.
The parties agree that the only circumstance in which disputes between them
shall not be subject to the provisions of 0 is where a party makes a good faith
determination that a breach of the terms of this Agreement by the other party is
such that a temporary restraining order or other injunctive relief is the only
appropriate and adequate remedy. If a party files a pleading with a court
seeking immediate injunctive relief and this pleading is challenged by the other
party and the injunctive relief sought is not awarded in substantial part, the
party filing the pleading seeking immediate injunctive relieve shall pay all of
the costs and attorney's fees of the party successfully challenging the
pleading.
BINDING ARBITRATION.
Subject to 0 above, questions or disputes arising out of or relating to this
Agreement will be determined by binding arbitration in Columbia, South Carolina,
under the American Arbitration Association ("AAA") Commercial Arbitration Rules
with Expedited Procedures in effect on the date hereof, as modified by this
Agreement.
There will be one arbitrator selected by the parties within ten (10) days of the
arbitration demand or if not, by the AAA from its Large, Complex Case Panel (or
have similar professional credentials), who shall be an attorney with at least
fifteen (15) years commercial law experience. Any issues about whether a claim
is covered by this Agreement will be determined by the arbitrator.
As may be shown to be necessary to ensure a fair hearing: the arbitrator may
authorize limited discovery; and may enter pre-hearing orders regarding, without
limitation, scheduling, document exchange, witness disclosure and issues to be
heard. The arbitrator will not be bound by the rules of evidence or of civil
procedure, but may consider
such writings and oral presentations as reasonable people would use in the
conduct of their day-to-day affairs, and may require the parties to submit
some or all of their case by written declaration or such other manner of
presentation as the arbitrator may determine to be appropriate. The parties
intend to limit live testimony and cross-examination to the extent necessary
to ensure a fair hearing on material issues.
The parties agree that the arbitrator will be directed to use best efforts to:
(i) hold a private hearing within sixty (60) days after the initial demand for
arbitration; (ii) conclude the hearing within three (3) days; and (iii) provide
his or her written decision not later than fourteen (14) days after the hearing.
In making the decision and award, the arbitrator shall apply the applicable
substantive law. Absent fraud, collusion or willful misconduct by the
arbitrator, the arbitrator's award will be final, and judgment may be entered in
any court having jurisdiction thereof. The arbitrator will award attorney's fees
and costs to the prevailing party but will have no authority to award any
damages that are excluded by the terms and conditions of this Agreement. Either
party will have the right to apply at any time to a judicial authority for
appropriate injunctive or other interim or provisional relief, and will not by
doing so be deemed to have breached its agreement to arbitrate or to have
affected the powers reserved to the arbitrator.
Neither party nor the arbitrator may disclose the existence, content or results
of an arbitration without the prior written consent of both parties.
Both HMI and Licensee agree to comply fully with all relevant export laws and
regulations of the United States to ensure that no information
No proceeding, regardless of form, arising out of or related to this Agreement
may be brought by either party more than two (2) years after the accrual of the
cause of action, except that (i) proceedings related to violation of a party's
proprietary rights or any duty to protect Confidential Information may be
brought at any time within the applicable statute of limitations, and (ii)
proceedings for non-payment may be brought up to two (2) years after the date
the last payment was due.
GENERAL
Any notice or other communication required or permitted to be made or given by
either party pursuant to this Agreement will be in writing, and will be deemed
to have been duly given: (i) five (5) business days after the date of mailing if
sent by registered or certified U.S. mail, postage prepaid, with return receipt
requested; (ii) when transmitted if sent by facsimile, provided a confirmation
of transmission is produced by the sending machine and a copy of such facsimile
is promptly sent by another means specified in this section; or (iii) when
delivered if delivered personally or sent by express courier service. All
notices will be sent to the other party at its address as set forth below or at
such other address as such party will have specified in a notice given in
accordance with this section:
---------------------------------------------------------------------------------------------
In the case of Licensee: With a copy to:
---------------------------------------------------------------------------------------------
xxxxxxxxxxxxxxxx.xxx Inc.
0000 Xxxx Xxxxx Xxxxxxx Xxxxxxx & Beam
Suite 175 0 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000 Suite 350
Attn: Xxxxxxx Xxxxxx Xxxxxx, XX 00000
Fax: 000-000-0000 Attn: Xxxxx Xxxxxx
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
In the case of HMI: With a copy to:
---------------------------------------------------------------------------------------------
HealthMagic, Inc. Shaw, Pittman, Xxxxx & Xxxxxxxxxx
0000 Xxxx Xxxxxx 0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000 XxXxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx Attn: Xxxxxx Xxxxxxx, Esq.
Fax: 000-000-0000 Fax: 000-000-0000
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Each party will act in good faith in its performance of this Agreement and will
not unreasonably delay or withhold the giving of any consent, decision or
approval that is either requested by the other party or is reasonably required
by the other party in order to perform its responsibilities in accordance with
this Agreement.
Neither party may assign, delegate or otherwise transfer any right or obligation
set forth in this Agreement without the other party's prior written consent,
except that a party may assign any right or obligation set forth in this
Agreement to an Affiliate or to a successor entity in the event of a merger,
consolidation or sale of such party's business or all or substantially all of
such party's stock or assets, provided the assignee agrees in writing to assume
all of the assignor's obligations and liabilities under this Agreement, and
provided further that the substitution of the rights of the assignee for the
rights of the assignor does not materially increase the scope of Licensee's use
of HealthCompass or materially increase the burden or risk imposed on the other
party by this Agreement. Any purported assignment in violation of the preceding
sentence will be void and of no effect. This Agreement will be binding upon the
parties' respective successors and permitted assigns.
Except as otherwise permitted by the terms of this Agreement, all media
releases, public announcements, and public disclosures by either party relating
to this Agreement or the subject matter of this Agreement, including promotional
or marketing material, but not including announcements intended solely for
internal distribution or disclosures to the extent required to meet legal or
regulatory requirements beyond the reasonable control of the disclosing party,
shall be coordinated with and approved by other party prior to release.
Notwithstanding the preceding sentence, HMI may identify the Licensee as a
client and generally state the nature of HMI's relationship with the Licensee.
There are no intended third party beneficiaries of any provision of this
Agreement.
Licensee and HMI are and will remain independent contractors with respect to all
performance rendered pursuant to this Agreement. Neither Licensee nor any
employee or agent of Licensee will be considered an employee or agent of HMI for
any purpose. Neither HMI nor any employee or agent of HMI will be considered an
employee or agent of Licensee for any purpose. Neither party, nor its employees,
will have any authority to bind or make commitments on behalf of the other party
for any purpose, nor will it or they hold itself or themselves out as having
such authority. Each party will be solely responsible for supervising, providing
daily direction and control, paying the salaries (including withholding of
income taxes and social security), worker's compensation, disability benefits
and the like of its personnel.
The provisions of this Agreement will be deemed severable, and the
unenforceability of any one or more provisions will not affect the
enforceability of any other provisions. In addition, if any provision of this
Agreement, for any reason, is declared to be unenforceable, the parties will
substitute an enforceable provision that, to the maximum extent possible in
accordance with applicable law, preserves the original intentions and economic
positions of the parties.
No failure or delay by either party in exercising any right, power or remedy
will operate as a waiver of such right, power or remedy, and no waiver will be
effective unless it is in writing and signed by the waiving party. If either
party waives any right, power or remedy, such waiver will not waive any
successive or other right, power or remedy the party may have under this
Agreement.
Any provisions of this Agreement that by their sense and context contemplate
continued performance or observance by one or both parties following the
expiration or termination for any reason of this Agreement will survive any such
expiration or termination.
Headings used in this Agreement are for convenience of reference only, and will
not be used to interpret or construe this Agreement.
The Exhibits referred to in and attached to this Agreement are made a part of it
as if fully included in the text.
This Agreement constitutes the entire agreement between the parties, and
supersedes all other prior or contemporaneous communications between the parties
(whether written or oral) relating to the subject matter of this Agreement. This
Agreement may be modified or amended solely in a writing signed by both parties.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which shall constitute one and the same
instrument.
--------------------------------------------------------------------------------
By signing below, each party acknowledges that it has read this Agreement,
understands it and, intending to be legally bound by this Agreement, has caused
its authorized representative to execute this Agreement as of the date first
written above. HealthMagic, Inc. (HMI) TheHealthChannel (Licensee)
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- ------------------------------
Name:Xxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxx
------------------------- ---------------------------
Title:CBDO Title: Vice President Development
------------------------ ---------------------------
Page A-1
EXHIBIT A
HMI ENGAGING APPLICATIONS
Instant Medical History-TM- Pre-Visit Symptom Interview and Histories* Health at
Home-Registered Tradmark- Self-Care Guide* MedAppraise-Registered Tradmark-
Adult Health Survey (release date not established) * Medical Data
Source-Registered Tradmark- Medical Topics*
The HMI Engaging Applications listed above with an asterisk are being licensed
to HMI by third parties and licensed by HMI to Licensee under agreements between
HMI and such third parties (the "Third Party Content Agreements"). HMI does not
warrant, guarantee or covenant that any such HMI Engaging Application will
remain available for use by Licensee beyond the expiration or termination of the
Third Party Content Agreement under which HMI has been granted the right to
license such HMI Engaging Application to Licensee and Licensee acknowledges and
agrees that following the expiration or termination of such Third Party Content
Agreement Licensee may be required by HMI to cease use of such HMI Engaging
Application and return and/or destroy any components of such HMI Engaging
Application then in Licensee's possession. In the event Licensee is required to
cease use of any such HMI Engaging Application, HMI reserves the right to
provide Licensee with a functionally and qualitatively equivalent replacement
application.
HealthMagic may, from time-to-time, offer Licensee the opportunity to license
HMI Engaging Applications in addition to those listed above ("Additional HMI
Engaging Applications"); provided that any such offer for any particular
Additional HMI Engaging Application may be contingent upon payment of additional
fees to HealthMagic and/or agreement with additional or different terms and
conditions, which shall apply only with respect to the Additional HMI Engaging
Application being offered to Licensee.
Page B-1
Exhibit B
Maintenance and Support Services
[Note: To be completed]
Page C-1
Exhibit C
HMI Security Policies
[Note: To be completed]
Page D-1
Exhibit D
HMI Corporate Identity Standards
[Note: To be provided]
Page E-1
Exhibit E
Revenue Sharing
The Parties shall negotiate in good faith to reach a mutual agreement regarding
a revenue sharing structure on or before December 31, 1999. In the event the
Parties are unable to reach such an agreement by such time, HMI shall have the
right to add, insert and/or otherwise include advertising and other revenue
share opportunities as part of the HealthMagic Content linked to or otherwise on
the Licensee Web Sites with the net revenues generated by such opportunities
shared between HMI and Licensee with thirty percent (30%) of such revenues
allocated to Licensee and seventy percent (70%) of such revenues allocated to
HMI.
Exhibit F
Release Definition
[Note: See the HealthCompass Onsite for TheHealthC
