EXHIBIT 10.21
Standard Distribution Agreement
Original Equipment Manufacturer (OEM)
THIS AGREEMENT is entered into as of the 28th 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 Inteli-Health, Inc. ("InteliHealth"), a Delaware corporation,
having an address at 000x Xxxxxxx Xxxxx, Xxxx Xxxx, 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
(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 set 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 within which a section called the "Co-Branded Site" will be enabled 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 user of the Co-Branded Site who is a natural
person and who registered for or has accessed the Co-Branded Site 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 the Co-Branded Site 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 under
which the entity pays OEM specifically for access to the Co-Branded Site 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. In this
regard the Co-Branded Site will contain the same features, functionality and
performance as those similar products and services offered on the current
XxxxxxXxxx.xxx Site.
All such interactions between the two sites will be conducted according to
mutually agreed upon design, but will be characterized by the same functionality
and performance. The Co-Branded Site shall contain prominent reference to
HealthGate and prominently feature HealthGate's logo in a manner to be approved
by HealthGate, which approval will not be unreasonably withheld.
The parties will work diligently to agree upon the interaction design
within 30 days of the date of this agreement.
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, under contract with this agreement, other than
through HealthGate. Notwithstanding the foregoing, OEM is not prohibited from
providing links that point their users to other web sites that might contain
HealthGate type products, provided the purpose of the link is not to encourage
users to use the site as an alternative means to search the HealthGate type
products. Additionally, OEM is not prohibited from providing services that OEM
inherits through acquisitions from other companies that already offer products
or services that are similar in nature to those of HealthGate Products, under
contract with this agreement. HealthGate acknowledges that this paragraph does
not prohibit OEM's relationship with Xxxxxx Informatics.
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 B
attached hereto.
3.3 Professional Services and Custom Development (Setup charges).
Arrangements
concerning other Professional services, custom development or setup fees, if
any, 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 27, 1998, and shall
continue in effect until July 27, 1999 (the "Initial Scheduled Expiration
Date"), unless otherwise terminated as provided hereunder.
4.2 Adjustment of Fees: Renewal. All fees hereunder shall be fixed for the
duration of the initial term of this Agreement (and for any renewal term). If
HealthGate wishes to increase the License Fee for any renewal term, it shall
notify OEM in writing at least 90 days prior to the then-current Scheduled
Expiration Date. If OEM does not wish to renew this Agreement on the terms
contained in HealthGate's notice, it must notify HealthGate within 60 days of
its receipt of the notice. In the absence of such a notice from HealthGate,
unless notice of intent not to renew is given by either party at least sixty
(60) days prior to the then current Scheduled Expiration Date, this Agreement
shall be automatically extended for an additional twelve month period.
4.3 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 which is not legitimately in dispute by the parties or (B) thirty
(30) days following receipt of the Termination Notice for all other nonpayment
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 shall, within such thirty (30) day period, present an agreed upon
plan to cure the default, 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 and the
Agreement shall continue in full force and effect.
4.4 Post Termination Obligations. (a) Payments. In the event of any
termination of this Agreement by either party, all fees previously due or owing
by either party as of the date of termination which are not legitimately in
dispute 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, OEM will delete all Links to the Co-Branded Site from the OEM 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.
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") in accordance with this Agreement, 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 are 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 the 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
All advertising and promotional material for the Co-Branded Site, which
contains any OEM Trademark, shall be 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 frill ownership of the HealthGate Trademarks.
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
it has the right to enter into this Agreement.
6.4 Compliance With Laws: Prohibition on Resale and Relicensing of
Products. OEM shall require each Authorized User to acknowledge acceptance of
OEM's standard subscriber agreement, a copy of which will be provided to
HealthGate upon request. This agreement prohibits users of the Co-Branded Site
from reselling or re-licensing any content or materials available on the
Co-Branded Site without the express written consent from the appropriate
copyright owner. OEM shall have all Authorized Users register with OEM under
OEM's standard registration process and such registration information shall be
available for review by HealthGate upon written request for audit purposes only.
In no event may HealthGate use such information for any other purpose or
disclose or make available such information to any third party without OEM's
prior written consent.
6.5 Indemnification. Each party (the "indemnifying party") will indemnify,
defend and hold harmless the other party and its affiliated companies
(collectively, the "indemnified party") from and against all claims, suits and
proceedings, and any and all related liabilities, losses, expenses, damages and
costs (including, without limitation, reasonable attorneys' fees), including,
without limitation, any third-party claims alleging infringement of any
copyright, trademark or other intellectual property right or alleging libel,
defamation or invasion of privacy, arising from the use of any content,
products, software, trademarks, logos or other materials or information
(collectively, "Materials") (a) provided by the indemnifying party or (b)
accessible on the indemnifying party's Web site or via a link from the
indemnifying party's Web site, unless such Materials were originally provided by
the indemnified party.
The indemnified party will: promptly notify the indemnifying party of any
claim, suit, or proceeding for which indemnity is claimed; cooperate reasonably
with the indemnifying party at the latter's expense; and allow to the
indemnifying party to control the defense or settlement
thereof The indemnified party will have the right to participate in any defense
of a claim and/or to be represented by counsel of its own choosing at its own
expense. The indemnifying party's obligations under this section shall not apply
to any claims based upon the use of any Materials that have been altered by any
party other than the indemnifying party, the combination of any Materials with
any items not provided by the indemnifying party, or the display of any
Materials in a manner not approved by the indemnifying party, if and to the
extent such claim would not have arisen but for such alteration, combination or
display.
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.
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:
InteliHealth, Inc.
000x Xxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Attn: President
0-000-000-0000 (voice)
000-000-0000 (fax)
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 Mediation. In the event of any dispute regarding the terms of this
Agreement, including any Exhibit hereto, the parties agree, within thirty (30)
days following notice of one party to the other of the nature of the dispute, to
select a third party mediator as shall be acceptable to each of the parties. The
parties shall meet in good faith with the mediator for the purpose of resolving
the dispute. No decision or recommendation made by the mediator shall be
binding upon either party. If the dispute is not resolved within sixty (60) days
following the selection of the mediator, the parties may pursue any other remedy
available at law or in equity. The cost of the mediation shall be divided
equally between the parties. Notwithstanding anything herein to the contrary,
either party may proceed to a court of competent jurisdiction to obtain
injunctive relief at any time.
8.3 Injunctive Relief. Each party acknowledges 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, the non-breaching party may not have an
adequate remedy at law and may 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 non-breaching
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. This limitation shall not apply to any
liabilities based on obligations to third parties or the parties'
indemnification obligations described in Section 6.5 above. Except for the
foregoing sentence, in no event shall either party be liable under this
Agreement to the other for damages exceeding the amounts paid by OEM under this
Agreement.
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 inactions by HealthGate, except for HealthGate's obligations under
Section 6.5 above, 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 any products or services offered on the
Co-Branded Site.
9.4 Independent Contractor. HealthGate and OEM are and shall remain
independent contractors with respect to all work completed pursuant to the
Agreement.
9.5 No Assignment. Neither party may sell, transfer, assign, or
subcontract, any right or obligation set forth in this Agreement without the
express advance written consent of the other, except to such party's parent
company or in connection with the sale of all or substantially all of the
assets, business or stock of such 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 a
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 not 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 Commonwealth of Massachusetts.
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.
IN WITNESS WHEREOF, duly authorized representatives of the parties have executed
this Agreement as of the date first written above:
HealthGate Data Corp. Inteli-Health, Inc. (OEM)
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxx, M.D.
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxx, M.D.
Title: Chief Executive Officer Title: Chief Medical Officer
