Exhibit 10.35
DEVELOPMENT AND DISTRIBUTION AGREEMENT
BETWEEN
GE MEDICAL SYSTEMS
AND
HEALTHGATE DATA CORP.
JUNE 11, 2000
DEVELOPMENT AND DISTRIBUTION AGREEMENT
This Agreement, effective as of June 11, 2000, is between GE Medical
Systems, a division of General Electric Company, a corporation organized and
existing under the laws of the state of New York ("GEMS"), and HealthGate Data
Corp., a corporation organized and existing under the laws of the state of
Delaware ("HealthGate").
RECITALS
A. HealthGate owns or has rights to certain "HealthGate Products" (as
defined below) which are used in health, medicine, training and education.
B. GEMS owns or has rights to certain content, satellite broadcast
programming and branding and related goods and services which are used in
health, medicine, training and education, and which are used to distribute
information about, and to promote, its other goods and services.
C. The parties intend to develop certain enhanced or supplemented
embodiments of HealthGate Products (called "GEMS Products" herein, as defined
below) by integrating certain Marks (as defined below), content, programming,
linking and e-commerce capabilities of GEMS with the HealthGate Products. GEMS
is granted a limited worldwide right hereunder to distribute HealthGate Products
independently or as incorporated in the GEMS Products. The parties are to share
Revenue (as defined herein) in connection therewith.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants set forth below, the parties agree as follows:
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ARTICLE I
DEFINITIONS
Capitalized terms herein shall have the following meanings for purposes of
this Agreement:
1.1 "Agreement" has the meaning set forth in the preamble.
1.2 "HealthGate Products" means all present and all future releases,
versions and embodiments of the suite of HealthGate products and services
currently known as "CHOICE," that are developed for or marketed or sold to the
Healthcare Marketplace, including any future products or services having a
different name but substituting for or superseding, or performing the same or
equivalent function as, or competing with, CHOICE, but not including those
current products or services listed on EXHIBIT B attached hereto with respect to
which HealthGate is prohibited by existing obligations to content providers from
allowing distribution by GEMS.
1.3 "Healthcare Marketplace" means institutions, organizations and
corporations in the business of delivering patient care, including but not
limited to hospitals, multi-hospital systems, clinics, out-patient centers,
healthcare group purchasing organizations and integrated delivery networks.
1.4 "GEMS Products" means products resulting from HealthGate Products (i)
being enhanced or supplemented with content contributed by GEMS, regardless of
format, or (ii) to which Marks of GEMS are applied, or (iii) for which GEMS
contributes any development costs.
1.5 "Products" means HealthGate Products sold or deemed sold by GEMS and
GEMS Products, singly and jointly.
1.6 "Revenue" means all monetary consideration and the fair market value of
all non-monetary consideration actually received, not including any sales or
value-added taxes, and less
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any returns or refunds. In the case of Revenue in a currency other than United
States dollars, such Revenue shall be converted to United States dollars using
the exchange rate in effect on the last day of the calendar quarter during which
such Revenue is received.
1.7 "Confidential Information" means any information received by a party
that is marked "Confidential" or "Proprietary" or, in the case of information
that is disclosed orally, is reduced to writing and such writing is delivered to
the receiving party confirming the oral disclosure and identifying the oral
disclosure as "Confidential" within 30 days after the oral disclosure.
Confidential Information shall not include any information that the receiving
party can demonstrate, by a preponderance of the evidence, is already known to
it at the time of the disclosure, is in the public domain other than as
consequence of breach by it of its obligation hereunder not to disclose the
information, is received from another without an obligation of confidentiality,
or is thereafter independently developed by it without the use of any such
information.
1.8 "Marks" has the meaning set forth in Section 6.5 below.
1.9 "Control" has the meaning set forth in Section 13.3 below.
1.10 "Integration Support" has the meaning set forth in Article 2 below.
1.11 "Competitive Activities" means GEMS selling of any enterprise-wide
supplemental website healthcare content to the Healthcare Marketplace other than
as provided hereunder. As of the signing of this Agreement, "Competitive
Activities" shall mean those offered by WebMD, HealthCentral, xxxxxx.xxx and
AHN. "Competitive Activities" shall not include departmental and educational
solutions, shall not include GEMS' existing distribution arrangements with the
Health Channel, and shall not include TiP.
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1.12 "List Price" means, with respect to the sale of Products during a
calendar quarter, the lesser of (a) the list price for HealthGate Products last
published by HealthGate prior to such calendar quarter and (b) any discounted
prices at which HealthGate directly or indirectly distributes comparable volumes
of HealthGate Products to end users during such calendar quarter. "List Price"
does not include any sales or value-added taxes, surcharges, discounts, refunds
or credits.
ARTICLE II
DEVELOPMENT
2.1 DEVELOPMENT OF GEMS PRODUCTS. The parties will collaborate in the
development of GEMS Products by integrating into HealthGate Products those
portions of GEMS' content, programming, linking and branding and related goods
and services as may be designated by GEMS from time to time. The GEMS Products
will be directed toward specific areas of expertise of GEMS, including, but not
limited to, radiology, cardiology and women's health, and related educational
materials, and GEMS e-commerce applications. More specifically, the parties
anticipate that the GEMS Products will include continuing education and
continuing medical education, e-commerce, medical content, health and wellness
content and consulting services.
2.2. INTEGRATION SUPPORT. During the term of this agreement, HealthGate
will provide Integration Support (as defined below) to GEMS as follows:
(a) Upon receipt of a request for Integration Support from GEMS, each
of which shall be written with sufficient detail to enable HealthGate's
personnel to estimate the programming and other requirements thereof,
HealthGate shall promptly deliver to GEMS a written project outline which
will outline the scope of work and the number of
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man hours required to fulfill such request (each, a "Project Outline"). Any
modifications to the GEMS request for Integration Support shall require a
further request from GEMS and a further Project Outline from HealthGate.
(b) At its expense, HealthGate will provide up to 400 man-hours of
Integration Support to GEMS during each calendar quarter. Subject to
Section 2.2(c) below, all Integration Support provided to GEMS in excess of
400 man-hours during each calendar quarter shall be provided to GEMS on an
as available basis and at the expense of GEMS, based on the actual time and
materials costs incurred by HealthGate in providing such additional
Integration Support and on terms and conditions no less favorable than
those granted to others.
(c) Any time or material expenses incurred by HealthGate in excess of
the time and materials set forth in a Project Outline (as modified in
accordance with Section 2.2(a) above) shall be borne by HealthGate, and any
such excess man-hours shall not apply for any purpose against the 400
man-hours agreed to be provided under Section 2.2(b) above.
(d) "Integration Support" includes, but is not limited to, the
following services: review of requests submitted by GEMS as contemplated
under Section 2.2(a) above; preparation and delivery of Project Outlines;
and design and integration of proposed product enhancements, development,
testing and implementation of all necessary services and support for the
integration of GEMS' Marks, links to GEMS Websites and the integration of
GEMS' content and look and feel of GEMS into HealthGate Products for the
purpose of creating GEMS Products.
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2.3 CREATION OF DERIVATIVE WORKS. HealthGate will provide all necessary
technical support to GEMS in the creation, development and integration of
derivative works of and new content or features for GEMS Products, subject to
the ownership provisions of Article III below and such other terms and
conditions as agreed upon by the parties from time to time. Such terms and
conditions will be reasonable, and no less favorable to GEMS than those offered
by HealthGate to others under similar circumstances. The parties may mutually
agree for HealthGate to provide such support at the expense of GEMS, the shared
expense of GEMS and HealthGate, or the expense of HealthGate, which agreement
shall have the effect described in Article III and Section 7.2(b).
ARTICLE III
OWNERSHIP
3.1 OWNERSHIP OF GEMS PRODUCTS. GEMS will own all elements of GEMS Products
that constitute, or are derivative works of, GEMS' content, regardless of format
(including without limitation works of authorship, source and object code, and
databases). GEMS will own, and HealthGate hereby assigns and agrees to assign to
GEMS, all elements of GEMS Products for which GEMS contributes development
costs. Such assignment shall include all copyrights, trade secret rights and
other intellectual property rights thereto, with the unrestricted right to
reproduce, prepare derivative works, use, distribute, perform and display such
elements. HealthGate will have no rights to any such elements unless expressly
provided otherwise in writing by GEMS.
3.2 OWNERSHIP OF HEALTHGATE PRODUCTS. HealthGate shall retain ownership of
all content, components, portions, modules and embodiments of the HealthGate
Products contributed by HealthGate. HealthGate will own any elements of GEMS
Products that do not
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constitute, or are not derivative works of, GEMS content or for which GEMS does
not contribute development costs, including all copyrights, trade secret rights
and other intellectual property rights thereto, subject to the distribution
rights of GEMS under Section 4.1 below and other rights of GEMS hereunder.
HealthGate's content providers shall retain ownership of their content
incorporated in the HealthGate Products.
3.3 GEMS OWNERSHIP OF WORK FOR WHICH GEMS FUNDS DEVELOPMENT. All work,
including associated technology, developed by HealthGate and funded by GEMS
shall be owned by GEMS and all rights therein together with all intellectual
property rights shall be owned by GEMS, unless HealthGate delivers to GEMS clear
and convincing proof including corroborated records showing prior ownership of
such rights by HealthGate, and GEMS agrees with such ownership, in advance of
such development (the "Prior Work"). HealthGate hereby grants GEMS a
royalty-free, irrevocable, non-exclusive license to allow GEMS to copy, modify,
distribute, perform publicly the Prior Work, and to use any portions of any
associated technology, in connection with GEMS' commercialization of the
delivered work.
3.4 HEALTHGATE'S RIGHTS IN WORK FOR WHICH GEMS FUNDS DEVELOPMENT. GEMS
hereby grants to HealthGate a royalty-free, irrevocable, non-exclusive license
to allow HealthGate to copy, modify, distribute, perform publicly the technology
associated with the work for which GEMS funded development, but only outside the
field of medical imaging and patient monitoring and only without the involvement
of any competitors of GEMS including but not limited to those listed in EXHIBIT
C hereto.
3.5 ASSIGNMENTS. Except as provided in this Article III and subject to the
licenses and other rights under this Agreement, each party retains ownership of
its respective underlying intellectual property rights. Each party agrees to
take such action as may be reasonably required
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to effectuate the ownership provisions of this Article III, including without
limitation the execution and delivery of instruments of assignment, recordation
or registration, and the giving of truthful testimony.
3.6 ENFORCEMENT. Each party shall promptly notify the other of any
infringement or other violation by any third party of any patent, copyright,
trade secret, trademark or other intellectual property right related to the
Products. The party owning such right may enforce such right against such third
party, and the other party shall reasonably cooperate with such enforcement at
the enforcing party's expense. Any damages or other monetary recovery in the
enforcement action shall be retained by the enforcing party.
ARTICLE IV
DISTRIBUTION RIGHTS
4.1 GRANT OF RIGHTS GOVERNING GEMS PRODUCTS. HealthGate hereby grants to
GEMS and its affiliates an exclusive worldwide right and license to distribute,
and arrange for subdistribution through GEMS subdistributors that do not engage
in any activities that would be deemed Competitive Activities if engaged in by
GEMS, any elements of GEMS Products that do not constitute, or are not
derivative works of, GEMS' content or for which GEMS did not contribute
development costs, on such terms and conditions as GEMS may determine,
consistent with the provisions of this Agreement.
4.2 GRANT OF RIGHTS GOVERNING HEALTHGATE PRODUCTS. HealthGate hereby grants
to GEMS a nonexclusive worldwide right and license to distribute HealthGate
Products, on such terms and conditions as GEMS may determine, consistent with
the provisions of this Agreement in those instances in which a customer desires
to purchase HealthGate Products and the
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distribution to such customer does not violate any then-existing exclusive
distribution obligation of HealthGate and subject to HealthGate prior consent.
4.3 RESERVED.
4.4 UNAVAILABLE CONTENT. Promptly after the date of this Agreement,
HealthGate shall exert its best efforts with each of its content providers that
prohibit the distribution of their content through GEMS Products or otherwise
prohibit distribution by GEMS to waive such prohibition and allow such
distribution. HealthGate will regularly keep GEMS informed of HealthGate's
efforts and progress in obtaining such waivers.
4.5 PROHIBITED DISTRIBUTORS. HealthGate will not distribute or allow the
distribution of any HealthGate Products or any components, portions, modules or
other constituents of HealthGate Products, or any product or service competitive
to HealthGate Products, by any company listed in EXHIBIT C hereto; provided,
however, the limitation provided under this Section 4.5 shall only apply to the
Healthcare Marketplace and shall not limit HealthGate's ability to enter into
transactions or arrangements not involving the Healthcare Marketplace; and
provided further, HealthGate will be released from the limitation provided under
this Section 4.5 at its option upon 30 days prior notice to GEMS if GEMS engages
in any Competitive Activities.
4.6 TERMS OF DISTRIBUTION. The general terms and conditions of the
distribution of Products by GEMS will be as set forth in a Standard End User
License Agreement substantially in the form agreed upon by the parties from time
to time.
4.7 NO BEST EFFORTS OR RESTRICTIONS. Except as expressly set forth herein,
GEMS will not be restricted in its conduct of any activities by this Agreement;
the distribution activities of GEMS for the Products shall be as determined by
GEMS in its sole discretion subject to the
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terms and conditions of this Agreement; and GEMS shall not be obligated to
undertake any "best efforts" or any other particular commitment level.
4.8 MEETINGS. The parties will meet approximately each calendar quarter to
discuss market conditions and strategies for the effective sale and distribution
of the Products.
ARTICLE V
SERVICES AND SUPPORT
5.1 WEBSITE DESIGN AND HOSTING. HealthGate, at its expense, shall design,
develop, maintain, update, support and host the websites for all Products;
provided, however, with respect to products, services and applications that are
resident on non-HealthGate servers, HealthGate shall only be responsible for
maintaining the links between HealthGate's servers and such other servers.
Promptly upon request, HealthGate shall deliver to GEMS and, if required under
the applicable end user agreement, to customer's quarterly usage, tracking and
similar information related to each such customer's website, such information to
include, if applicable, page views, numbers of unique visitors, numbers of
visits to sections, advertisers' and sponsors' usage and click throughs.
5.2 RESERVED.
5.3 SURVIVAL OF SERVICES AND SUPPORT. HealthGate's provision of the
services described in this Article V shall survive termination or expiration of
this Agreement with respect to then active Products customers (i.e., those with
which an end user agreement is then in effect) and Products customers for which
there are commitments prior to termination or expiration.
5.4 RIGHT OF GEMS TO SUPPORT. If, during or after the term of this
Agreement, HealthGate fails to provide service to one or more Products customer
consistent with the level of service mutually deemed satisfactory from time to
time by HealthGate and GEMS, with such
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initial level of satisfactory service to be established by HealthGate and GEMS
within 60 days after the date of this Agreement, GEMS and HealthGate will meet
and work together in good faith to address and resolve any such service level
issue. If any such service level issue is not remedied in a timely manner such
that the level of service provided to such Products customers is not at least
equal to the then mutually agreed to level of service, HealthGate shall fully
cooperate with GEMS, to enable GEMS, at HealthGate's expense, to provide such
services; provided, however, HealthGate's liability under this Section 5.4 shall
be limited to the amount of actual revenue it shall have received from the sale
of Products to the affected customers.
ARTICLE VI
MARKETING
6.1 GEMS' MARKETING. GEMS and HealthGate will work collaboratively to
develop the overall strategic marketing plan for the Products in accordance with
this Article VI.
6.2 COOPERATION BY HEALTHGATE. HealthGate at its expense (except to the
extent provided otherwise in this Article VI) will cooperate as reasonably
requested by GEMS in marketing the Products. Without limiting the generality of
the foregoing sentence, HealthGate (i) on a timely basis will provide to GEMS
all relevant technical, marketing and other information regarding the Products
and will provide appropriate artwork for marketing communications; and (ii) in
advance of each calendar quarter will review with GEMS the HealthGate detailed
plan for the marketing of Products and HealthGate's plans for public relations
and enhancing and building company image and branding for such calendar quarter.
6.3 COOPERATION BY GEMS. GEMS will be responsible for the production and
distribution of marketing communications regarding GEMS Products. GEMS will
include the GEMS Products (and prices therefor) in its product catalog or
equivalent supporting materials.
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The GEMS Products may be included as a part of industry trade shows and
exhibitions in which GEMS participates, at GEMS discretion. The GEMS Products
may be included as a part of GEMS public advertising strategy, at GEMS
discretion. The expenses attributable to the inclusion of the GEMS Products in
such trade shows, exhibitions, and advertisements will be split evenly between
GEMS and HealthGate, provided that HealthGate approves such expenses in advance.
6.4 RESERVED.
6.5 BRANDING. Each party reserves all rights to any name, marks and logos
("Marks") it may have. GEMS will have the right, but not the obligation, to
include its Marks in the Products, and to prohibit the inclusion of the Marks or
advertising of any company if such company is in competition with GEMS in any
goods or services distributed by GEMS. The Products will include the names of
HealthGate and CHOICE, consistent with applicable General Electric Company
corporate guidelines including without limitation guidelines to avoid confusion
of customers, sales forces and others and to produce and maintain market
identity. Each use by HealthGate of any Marks of GEMS, whether in advertising or
marketing materials, company announcements or offering circulars, informational
materials, public events, or otherwise, shall be subject to the prior written
approval of GEMS and subject to applicable General Electric Company corporate
guidelines regarding branding. Neither party shall by this Agreement obtain any
right, title, or interest in or to any Marks of the other party or its
affiliates. Accordingly, neither party shall use any Marks confusingly similar
to or likely to cause confusion with the Marks of the other or of any other
person or entity. This Section 6.5 shall survive termination of this Agreement.
Violation of this Section 6.5 shall entitle the owner of the Xxxx to seek any
legal or equitable remedy it has, whether arising under this Agreement or
otherwise.
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ARTICLE VII
REVENUE SHARING
7.1 HEALTHGATE PRODUCTS. Unless otherwise agreed by the parties (as, for
example, to address promotional activities or volume accounts), all Revenues
collected by either party (i) for subscriptions to HealthGate Products sold by
GEMS, or (ii) for upgrades, services or enhancements thereto (but not including
GEMS Products, which are addressed in Section 7.2 below) sold by either party,
shall be divided such that 70% of the sales price is received by HealthGate and
the remainder is received by GEMS.
7.2 GEMS PRODUCTS. Unless otherwise agreed by the parties (as, for example,
to address promotional activities or volume accounts), all Revenues collected by
either party (i) for subscriptions to GEMS Products sold by GEMS, or (ii)
upgrades, services or enhancements thereto sold by either party, shall be
divided such that:
(a) 70% of the sales price of any HealthGate Products components in
such GEMS Products is received by HealthGate and the remainder is received
by GEMS, except as provided in Subsection (b) below.
(b) If such GEMS Products or upgrades, services or enhancements
thereto shall have been created or developed by HealthGate at its own
expense or partial expense by agreement of the parties under Section 2.3
above, then the division of Revenues shall be modified as the parties agree
upon in advance of such creation or development taking into consideration
the expense so incurred by HealthGate. Such modification shall pertain to
revenues associated with professional services. However, in the event that
a professional services engagement evolves as a result of GEMS'
distribution channels sales efforts in selling the GEMS Products, then GEMS
shall received 30% of the sale price for the GEMS Products associated with
the professional services engagement.
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7.3 ADVERTISING REVENUE. All Revenues collected by either party for
advertisements or other promotional material included in the Products during the
term of this Agreement shall be divided 90% to HealthGate and 10% to GEMS. GEMS
shall be guaranteed its 10% split regardless of whether the advertiser is a
national or local advertiser, or HealthGate's negotiated revenue sharing with
customers, or the terms of any sponsorship and advertising agreement.
7.4 E-COMMERCE. All Revenues collected by either party from e-commerce
offered on the Products not involving products or services of GEMS or its
affiliates, shall be divided 90% to HealthGate and 10% to GEMS. Any Revenues
collected by either party from e-commerce offered on the Products involving
products or services of GEMS or its affiliates, for one and one-half years
following the date of this Agreement, shall be retained 100% by GEMS, and any
such Revenues collected after such one and one-half year period shall be divided
as the parties negotiate in good faith considering (a) the level of effort
expended by each party to enable such e-commerce, (b) prevailing market
conditions, (c) comparable third party web-based distribution fees, (d) the
price points of GEMS Products, (e) the volume of sales and (f) in no event shall
be any less favorable to GEMS than the fees charged by HealthGate to others.
7.5 SURVIVAL OF REVENUE SHARING. The Revenue sharing arrangements set forth
in this Article VII shall survive the termination or expiration of this
Agreement with respect to (i) customers with an end user agreement then in
effect and (ii) customers for which GEMS has a signed commitment. GEMS shall
continue to share in the Revenue for such customers during the term of the
applicable end user agreement; however, GEMS shall not be entitled to Revenue
sharing for any renewal periods by such customers.
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ARTICLE VIII
ACCOUNTING
8.1 ACCOUNTING. Reconciliation of accounts in accordance with the Revenue
sharing arrangements set forth in Article VII above shall be made within 45 days
after each calendar quarter with respect to Revenues earned and received during
such calendar quarter, by each party delivering to the other party a check (or
by making a wire transfer or in such other reasonable manner as the receiving
party may direct) for the amount due without offset for any amount due from the
other party together with the report described in Section 8.2 below. Payments
made in accordance with this Section 8.1 shall be made based upon Revenues
earned during the applicable calendar quarter regardless of any extended payment
terms granted to a customer by HealthGate.
8.2 RECORDS. Each party shall keep complete and accurate records showing
its Revenues hereunder, for the term of this Agreement and a period of one year
thereafter. Each party shall deliver to the other party a written report
accompanying each of the payments described in Section 8.1 above setting forth
the share of Revenues due to the other party and the calculation thereof.
ARTICLE IX
WEBSITE LINKING
9.1 LINKING. HealthGate will make available the HealthGate Products for
linking to GEMS websites, and will provide all necessary formatting services and
support for such linking in a manner that is invisible to users. Such services
and support will be on such reasonable terms and conditions as the parties may
agree upon, and no less favorable to GEMS than those granted to others in
similar circumstances.
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ARTICLE X
WARRANTIES AND INDEMNITIES
10.1 REPRESENTATIONS AND WARRANTIES OF HEALTHGATE. HealthGate represents
and warrants to GEMS as follows:
(a) that HealthGate is a validly existing corporation in good standing
under the laws of the State of Delaware;
(b) that HealthGate has full corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder;
(c) that HealthGate has full right, power and authority to enter into
and perform its obligations under this Agreement, and that HealthGate has
the right to grant to and vest in GEMS all rights and licenses set forth in
this Agreement, free and clear of any and all claims, rights and
obligations whatsoever;
(d) that except for any portion of the Products that may be created by
GEMS, to the knowledge of HealthGate no part of the Products is or shall be
an imitation or copy of, or shall infringe upon, any other materials, or
shall violate or infringe upon any common law or statutory rights of any
person or entity, including without limitation rights relating to
defamation, contract, trademark, patent, copyright, trade secret, privacy
or publicity;
(e) that HealthGate has not sold, assigned, leased, licensed, or in
any other way disposed of or encumbered any of the rights or licenses
granted to GEMS in this Agreement other than a security interest granted to
Petra Capital LLC in connection with a subordinated loan to HealthGate; and
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(f) that all versions of the Products delivered to GEMS under this
Agreement shall be free from any specification nonconformities, significant
programming errors or defects in workmanship or materials and shall operate
and run in a reasonable and efficient business manner (including, with
respect to HealthGate's internal systems only, being free of any Year 2000
defects or nonconformities due to the passage of the year 1999). In the
event of any breach of this Section 10.1 (f), other than those based on any
Year 2000 defects or nonconformities due to the passage of the year 2000
not related to HealthGate's internal systems, HealthGate shall, at its sole
expense, immediately correct the nonconformity or other defect.
10.2 REPRESENTATIONS AND WARRANTIES OF GEMS. GEMS represents and warrants
to HealthGate as follows:
(a) that GEMS is a validly existing corporation in good standing under
the laws of the State of New York;
(b) that it has full corporate power and authority to execute and
deliver this Agreement and to perform the transactions contemplated
hereunder; and
(c) that, with respect to any portion of the GEMS Products that may be
created by GEMS, to the knowledge of GEMS no such portion of the GEMS
Products is or shall be an imitation or copy of, or shall infringe upon,
any other materials, or shall violate or infringe upon any common law or
statutory rights of any person or entity, including without limitation
rights relating to defamation, contract, trademark, patent, copyright,
trade secret, privacy or publicity.
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10.3 INDEMNITY. Each party will indemnify and hold harmless the other from
and against any liability, costs or expenses (including attorney fees) based
upon any action, claim or assertion inconsistent with the warranties and
representations of Section 10.1 or 10.2 above. The indemnified party shall
promptly notify the indemnifying party of any such action or assertion and shall
cooperate in the defense thereof. The indemnifying party shall have the right to
direct the defense of any such action, claim or assertion, subject to the
indemnified party's approval of any settlement thereof and the indemnified
party's right to take such actions as may be reasonably necessary to protect its
rights hereunder.
10.4 INSURANCE. HealthGate will maintain insurance coverage for product
liabilities and other claims arising from the Products in the policy amount of
$5 million combined single limit per occurrence and $5 million in the aggregate
(with a self-insured retention of $10,000 per occurrence and $50,000 aggregate).
During the term of the Agreement, HealthGate covenants to maintain such
insurance policy and to take such steps, as necessary, to name GEMS as an
additional insured under such insurance policy. Evidence of the existence and
amount of the insurance policy shall be provided by HealthGate to GEMS upon GEMS
written request.
10.5 NO OTHER WARRANTIES. THE WARRANTIES EXPRESSED IN THIS ARTICLE X ARE IN
LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED OR ARISING BY
PERFORMANCE, CUSTOM OR USAGE IN THE TRADE, AND THE PARTIES HEREBY DISCLAIM ALL
OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.6 NO CONSEQUENTIAL DAMAGES. Except as expressly set forth herein, in no
event shall either party be liable under, or in connection with, this Agreement
for any indirect, special,
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incidental, punitive or consequential losses, expenses or damages whatsoever,
including, but not limited to, loss of revenue or profits or increased costs as
a result of inability to operate, inability to fulfill contracts with third
parties, or similar matters or events. The limitations, exclusions and
disclaimers in this Agreement shall apply irrespective of the nature of the
cause of the action or demand, including but not limited to breach of contract,
negligence, tort or any other legal theory and shall survive any breach or
breaches and/or failure of the essential purpose of this Agreement, or any
remedy contained in this Agreement.
ARTICLE XI
CONFIDENTIALITY
11.1 OBLIGATION. Each party agrees that any Confidential Information
furnished or disclosed to it by the other party shall be treated as confidential
by it and used by it only as expressly authorized herein, that it shall not
disclose such Confidential Information to others without the prior written
consent of the disclosing party, and that it shall take all necessary measures
to protect the confidentiality of such Confidential Information that it takes to
protect its own similar proprietary or confidential information (and that such
measures shall in no event be less than those required by law to protect the
confidentiality and proprietary nature of such information), EXCEPT insofar as:
(a) expressly provided otherwise herein or in any other written
agreement with the disclosing party or required by law;
(b) such Confidential Information is necessarily disclosed by its use
in products manufactured and sold or otherwise disposed of by the
disclosing party; or
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(c) such Confidential Information is necessarily disclosed to bona
fide subcontractors of the receiving party provided that such
subcontractors agree to maintain such Confidential Information in
confidence and to protect such Confidential Information from disclosure to
others to the extent of the foregoing requirements of this Section and to
limit their use of such Confidential Information to fulfilling their
obligations as a subcontractor or supplier.
11.2 COOPERATIVE DEVELOPMENT. Without limiting the generality of Section
11.1 above, should any joint development effort be undertaken by the parties
involving software owned by GEMS, then GEMS may in its sole discretion make
source code for such software available to HealthGate to the extent reasonably
necessary for HealthGate to perform the development or maintenance obligations
agreed upon by the parties or provided hereunder. HealthGate shall not use such
source code or software except in performing such obligations and shall not
disclose it to anyone other than its employees who both (a) require access
thereto in order to allow HealthGate to perform such obligations and (b) have
agreed in writing to refrain from using or disclosing it other than as permitted
hereunder.
11.3 OTHER CONFIDENTIALITY AGREEMENT. Except to the extent modified
hereunder, all the obligations of the Confidentiality Agreement made as of March
25, 1999 between General Electric Company and HealthGate remain in full force
and effect as provided thereunder.
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ARTICLE XII
TERM AND TERMINATION
12.1 TERM. This Agreement shall be for a term of one year, automatically
renewed for successive one-year periods unless either party delivers to the
other party written notice of non-renewal at least 90 days prior to the end of
the initial term or any renewal term.
12.2 EARLY TERMINATION. If either party commits a material breach of this
Agreement, then the other party may deliver written notice of such breach to the
breaching party. If the breaching party fails to remedy such breach within 30
days after such notice, then the other party may terminate this Agreement by
written notice of termination. A material breach shall be deemed to include
without limitation any failure to remit in a timely manner amounts due under
Article VII above, any violation by HealthGate of the exclusive distribution
rights of GEMS under Article IV above, any breach of any of the representations
or warranties of Article X, any violation by HealthGate of any of the
Confidentiality Obligations of Article XI, and any dissolution, insolvency,
bankruptcy, appointment of a receiver or trustee, making of an assignment for
the benefit of creditors, the commencement of any proceeding (state or federal)
relating to the administration of creditors rights generally, or the failure
generally to pay debts as they become due.
12.3 REMEDIES. Upon any termination of this Agreement pursuant to this
Article XII, each party shall have all rights and remedies available to it
hereunder and at law or in equity, it being understood that the exercise of any
one remedy is not meant to be exclusive of any other remedy and that all
remedies hereunder are intended to be cumulative. Following termination, the
terminating party may suspend any and all performance hereunder except as
provided under Section 12.4 below.
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12.4 SURVIVAL AND POST-TERMINATION RIGHTS. The provisions of Sections 5.3,
5.4, 7.5 and Article VIII (to the extent provided in each such Section and
Article) and Articles I, X, XI and XIII and Sections 3.1 through 3.4, 4.7 and
6.5 shall survive any termination or expiration of this Agreement. No
termination or expiration shall in any way terminate or otherwise affect the
right of any user or customer of GEMS with respect to any Products.
ARTICLE XIII
MISCELLANEOUS
13.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with regard to the subject matter hereof. This
Agreement shall not be modified or supplemented except by a written instrument
signed by both parties.
13.2 NOTICES. Any notice required or permitted under this Agreement shall
be deposited in First Class Mail or sent by overnight courier addressed as
follows:
If to GEMS:
GE Medical Systems
0000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Director, E-Content
Mail Code: SN 476
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
GE Medical Systems
0000 Xxxxx Xxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: General Counsel
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If to HealthGate:
HealthGate Data Corp., Inc.
00 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxxx X. Xxxx, Esq.
Rich, May, Xxxxxxxx & Xxxxxxxx, P.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
13.3 NO ASSIGNMENT BY HEALTHGATE. Neither this Agreement nor any rights or
obligations may be assigned or transferred by HealthGate except with the written
consent of GEMS. GEMS may assign this Agreement freely to any affiliates of
GEMS, and may assign to non-affiliates of GEMS to the extent such assignments
are not contrary to pre-existing obligations by HealthGate to its content
providers (in which case HealthGate will exert its best efforts to obtain
waivers of such obligations). GEMS shall notify HealthGate of any assignment
that is not to a GEMS affiliate, and the assignee shall agree in writing to
assume all obligations of GEMS. Any transaction or series of related
transactions pursuant to which any entity or person (including without
limitation any of their respective affiliates) first acquires after the
effective date of this Agreement, directly or indirectly, an aggregate amount of
fifty percent (50%) or more voting control or fifty percent (50%) or more of the
equity securities ("Control") of HealthGate (or of any entity directly or
indirectly having Control of HealthGate) or by contract or otherwise obtains the
right to appoint at least fifty percent (50%) of the Board of Directors of
HealthGate (or any entity directly or indirectly having Control of HealthGate),
shall be deemed
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an assignment of rights under this Agreement for purposes of this Section 13.3.
Further, any sale, assignment, pledge, hypothecation, or exclusive license of
any of the copyrights, patents, trade secret rights or other intellectual
property rights in or relating to any of the Products (other than that security
interest referenced in Section 10.1(e) above) shall be deemed an assignment of
this Agreement for purposes of this Section 13.3. Any purported assignment or
other transaction in violation of this Section 13.3 shall be null and void and
of no force or effect.
13.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without reference to
any conflict of law principles.
13.5 ARBITRATION. Any dispute under this Agreement shall be finally
resolved by arbitration by a panel of three arbitrators (or such other number as
the parties may agree to) in New York, New York, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
arbitrators may award attorney fees to the prevailing party to the extent they
may deem appropriate. The parties hereto waive all rights to trial by jury in
any action, suit or proceeding brought to enforce or defend any rights or
remedies arising under or in connection with this Agreement, whether grounded in
tort, contract or otherwise.
13.6 CONFIDENTIALITY. No public announcements may be made of the contents
of this Agreement except as mutually agreed in writing.
13.7 RELATIONSHIPS OF THE PARTIES. Each party is an independent contractor
under this Agreement. No party shall have any express or implied right or
authority to assume or create any obligations on behalf of or in the name of the
other party or to bind the other party to any contract, agreement or undertaking
with any third party.
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13.8 INTERPRETATION. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. Whenever the words "included", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." References to a person are also to its successors and assigns, and
references to any statute are also to all rules, regulations and orders
promulgated thereunder. No rule of construction shall be applied to the
disadvantage of a party by reason of that party having been responsible for the
preparation of this Agreement or any part hereof.
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Executed on the dates set forth below.
GE MEDICAL SYSTEMS, a division of
GENERAL ELECTRIC COMPANY
By:
------------------------------------
Title:
---------------------------------
Date:
---------------------------------
HEALTHGATE DATA CORP.
By:
------------------------------------
Title:
---------------------------------
Date:
---------------------------------
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