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EXHIBIT 10.15
We have omitted certain portions of this document and filed them separately
with the Commission. These portions are marked with an asterisk (*).
WEB SITE LINKING AGREEMENT
This Web Site Linking Agreement is made as of this 2nd day of
September, 1999, by and between IDX Systems Corporation, a Vermont corporation
with its principal place of business at 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxxxx,
Vermont, and its present and future parents, subsidiaries and affiliates
("IDX") and HealthStream, Inc., a Tennessee corporation with its principal
place of business at 000 00xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx
("HealthStream").
PRELIMINARY STATEMENT
WHEREAS, IDX is a healthcare information systems company that develops
and markets information systems and related services to physicians, hospitals,
integrated delivery networks, management services organizations and other
healthcare providers. Through its division known as XXX.xxx, IDX is developing
and will sell internet-based content, e-commerce, patient communication,
practice management services and clinical tools, among other things, to
physicians, including, without limitation, a web-based product currently known
as the "Physician Homebase."
WHEREAS, HealthStream develops and markets computer-based continuing
medical education courses and materials via the internet.
WHEREAS, IDX and HealthStream desire to enter into this agreement to
provide for the joint marketing of their products and services to their
respective customers and to authorize IDX to provide a link from the XXX.xxx
Products to access HealthStream's products.
NOW, THEREFORE, IDX and HealthStream agree as follows:
1. WEB SITES AND CONTENT
1.1 XXX.xxx. IDX is the owner of the XXX.xxx Physician Homebase,
a web-based information service containing content and tools
for health care providers. IDX is the owner or licensee of
the content and tools (the "IDX Content") contained in the
Physician Homebase. Except as explicitly granted in this
Agreement, HealthStream obtains no right or license to the
Physician Homebase or any of the IDX Content associated with
the Physician Homebase.
1.2 HealthStream. HealthStream is the owner of the Training
Navigator(TM) ("T.NAV(R)") and T.NAV(R) iCommerce, web-based
training software programs that deliver training and
educational courses, including, without limitation, OSHA and
JCAHO mandated training, continuing medical education and
office training, now existing or developed in the future
(collectively, "Courses"), via the internet. HealthStream is
the owner or licensee of the Courses. Except as explicitly
granted in this Agreement,
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IDX obtains no right or license to T.NAV(R),
T.NAV(R)iCommerce, the Courses or any other content
associated the HealthStream Web Site (as defined below).
2. LINK DEVELOPMENT AND LICENSE
2.1 Link License. IDX is hereby granted the right to create and
maintain one or more links (the "Links") on the Physician
Homebase and any similar product developed or sold by IDX in
the future (the "XXX.xxx Products"). The Links shall allow
the user to view Courses and other content ("HealthStream
Content") available on HealthStream's web site currently
located at xxx.xxxxxxxxxxxx.xxx, or any successor web site
(the "HealthStream Web Site"), in a format mutually
acceptable to the parties. This license includes the
non-exclusive, worldwide right to use, display and perform
the T.NAV(R), T.NAV(R)iCommerce software products and the
Courses or HealthStream Content, and to authorize users of
the XXX.xxx Products to copy, download and/or print Courses
or HealthStream Content, or portions thereof, for their
medical practice use, in any media now existing or developed
in the future, except as specifically prohibited by notice
contained in the Courses or HealthStream Content. The Links
shall consist of one or more of HealthStream's Marks (as
defined below).
2.2 Development of Links. HealthStream shall cooperate with and
provide all necessary assistance to IDX in the development
and maintenance of the Links and the necessary integration
allowing users of the XXX.xxx Products to view and use
Courses on the XXX.xxx Products, including without
limitation, the development of an automated log-on process by
which users of the XXX.xxx Products may access Courses
without manually entering a password and registration
information collected at the XXX.xxx Products is passed
automatically to HealthStream. Each party shall bear its own
costs associated with the development of the Links and any
necessary integration tools. HealthStream shall provide a
sufficient number of user identifications and passwords as
requested by IDX from time to time.
2.3 Ownership of Developed Products. Any software interface or
other product developed by either of the parties in
accordance with Section 2.2 shall be and remain the sole and
exclusive property of the developing party. The
non-developing party hereby disclaims any right, title or
interest in or to such product and shall execute any
registration form or instrument that the developing party
reasonably deems necessary to confer all right, title and
ownership in and to such product to the developing party.
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2.4 Personalization. In accordance with IDX's requests,
HealthStream shall personalize the standard portions of the
HealthStream Web Site and T.NAV(R) iCommerce system that
appear on the XXX.xxx Products via the Links and that consist
of HealthStream's standard personalized features to reflect
the XXX.xxx Products user interface and brand image. Any
non-standard personalization requested by IDX shall be
performed in accordance with terms and conditions mutually
acceptable to the parties. HealthStream's personalization
shall not, however, confer on HealthStream any right, title
or interest in the IDX Marks (as defined below), associated
IDX trade dress or IDX Content.
2.5 Support. Each party shall provide web-based or telephone help
desk support for its respective products and services from
8:00 a.m. to 8:00 p.m. eastern time.
3. MARKETING EFFORTS
3.1 Joint Promotion Plan. Upon execution of this Agreement, the
parties shall issue a joint press release approved by both
parties announcing their business relationship. IDX shall
also promote the parties' business relationship in an
appropriate location on IDX's web site and shall send an
announcement of the business relationship in IDX's customer
newsletter. Within ninety (90) days of the Effective Date,
the parties shall agree to a joint promotion plan including
the promotion by HealthStream of the XXX.xxx Products and by
IDX of the HealthStream T.NAV(R)iCommerce product and the
Courses as a part of trade shows in which they participate
and as a part of HealthStream's and XXX.xxx's advertising
strategies.
3.2 Link to XXX.xxx Home Page. HealthStream shall install and
maintain a hypertext link at a mutually agreeable location on
the HealthStream Web Site to the XXX.xxx home page on the
World Wide Web.
3.3 IDX Marks. IDX hereby grants to HealthStream a non-exclusive
license during the term of this Agreement to use its
trademarks and service marks (the "IDX Marks") in connection
with HealthStream's marketing and linking obligations under
this Agreement. HealthStream's use of the IDX Marks shall not
confer on HealthStream any right, title or interest in and to
the IDX Marks, except for the limited license granted herein,
and HealthStream shall not use the IDX Marks in any way that
could harm IDX or the goodwill associated with its business
and the IDX Marks.
3.4 HealthStream Marks. HealthStream hereby grants to IDX a
non-exclusive license during the term of this Agreement to
use its trademarks and service marks (the "HealthStream
Marks") in connection with IDX's marketing and linking rights
and obligations under this Agreement. IDX's use of the
HealthStream Marks shall not confer on IDX any right, title
or interest in
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and to the HealthStream Marks, except for the limited license
granted herein, and IDX shall not use the HealthStream Marks
in any way that could harm HealthStream or the goodwill
associated with its business and the HealthStream Marks.
3.5 Demonstration Accounts. HealthStream shall provide IDX with a
reasonable number of demonstration accounts so that IDX may
demonstrate the T.NAV(R) iCommerce system to prospective
customers.
3.6 No Copying or Use. Except as explicitly authorized under this
Agreement, neither party shall copy or make any use of the
trademarks, service marks or web-site content of the other
party.
4. COURSE DEVELOPMENT
4.1 Referral by IDX. IDX may refer certain health care providers
or other organizations that have developed continuing medical
education or similar training course materials in print,
lecture or video format to HealthStream for HealthStream to
convert such materials into a web-based format for use as
Courses.
4.2 Academic Medical Education (AME) Program. XXX.xxx and
HealthStream agree to form a Development Consortium to
promote the online aggregation of academic continuing
healthcare education course work. To build this consortium,
XXX.xxx will contribute its existing relationships in the
Academic Medical Center market, and HealthStream will
contribute its expertise in managing online educational
content. As part of the agreement, XXX.xxx will work with
customers to move their continuing education curricula
online. HealthStream will create a central repository to
facilitate the distribution of continuing education credit to
physicians and other healthcare professionals across the
United States.
5. PROFILING INFORMATION
HealthStream shall provide IDX with monthly profiling reports
describing the Courses and HealthStream Content viewed or accessed by
IDX customers accessing the Courses and HealthStream Content via the
XXX.xxx Products and any other information collected by HealthStream
as to their use of the HealthStream Web Site. Such profiling reports
shall be presented in a format acceptable to both parties.
6. FEES
6.1 IDX Rebate. HealthStream shall pay to IDX * of all Net Revenue
charged by HealthStream for Courses or other products or
services sold by HealthStream to customers accessing the
HealthStream
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Web Site via the Links (the "IDX Rebate"). For purposes of
this Agreement, "Net Revenues" shall mean gross revenue less
discounts, rebates and/or refunds.
6.2 Payment Terms. HealthStream shall deliver to IDX monthly
sales statements detailing Net Revenues and fees paid to
HealthStream pursuant to Section 6.1 herein and shall pay the
IDX Rebate and the IDX Referral Fees within forty-five (45)
days after the end of each calendar month. A monthly finance
charge of 1% per month shall be assessed on all amounts that
are paid later than forty-five (45) days after the end of the
applicable month.
6.3 *. HealthStream warrants to IDX, as of the Effective Date and
throughout the term of this Agreement, that the fees paid to
IDX under this Agreement are and shall be * the fees paid by
HealthStream to * and that the list prices presented by
HealthStream to customers that access the HealthStream Web
Site via the Links are and shall be * the list prices
presented to other HealthStream customers. HealthStream shall
promptly notify IDX if another * customer is given a * fee or
list price and shall * the fee paid to IDX or price charged to
an IDX customer retroactive to the effective date of such *
list price for the other distributor or customer, subject to
IDX's obligation to comply with any financial or other
condition or obligation imposed on such * to obtain *. Upon
each anniversary of the execution of this Agreement,
HealthStream and IDX shall make a good faith determination
whether any other companies * in a similar manner as the then
current * and any such companies shall then be included in the
term * applicable in this Section 6.3.
6.4 Audits. During the term of this Agreement, IDX may cause an
audit to be made of the relevant books and records of
HealthStream no more than once per year for the sole purpose
of verifying royalty reports issued by HealthStream to IDX
and prompt adjustment shall be made to compensate for any
errors or omissions disclosed by such audit. Any such audit
shall be conducted during regular business hours at
HealthStream's offices and in such a manner as not to
interfere with HealthStream's normal business activities. IDX
shall pay for any such audit unless a discrepancy of more
than Five Thousand Dollars ($5,000) or five percent (5%) of
the amount that should have been reported is disclosed (a
"Material Discrepancy"). If a Material Discrepancy is
disclosed, HealthStream shall pay to IDX the costs associated
with the audit not to exceed Five Thousand Dollars ($5,000).
The auditor shall only disclose the correct data and amounts
as called for on the monthly sales statements. If IDX makes a
claim with
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respect to an audit, upon HealthStream's written request, DX
shall make available to HealthStream the records and reports
pertaining to such audit.
7. WARRANTIES
7.1 Warranties of IDX. IDX represents and warrants to
HealthStream that:
(a) it is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Vermont and has full power and authority to enter
into and consummate the transactions contemplated in
this Agreement;
(b) the execution, delivery and performance of this
Agreement does not violate the terms of any security
agreement, license or any other contract or written
instrument to which IDX is bound; and
(c) to the best of its knowledge, the Physician Homebase
and the IDX Content do not, and shall not, infringe
any patent, trademark, copyright or misappropriate
any trade secret of a third party.
7.2 Warranties of HealthStream. HealthStream represents and
warrants to IDX that:
(a) it is a corporation duly organized, validly existing
and in good standing under the laws of the State of
Tennessee and has full power and authority to enter
into and consummate the transactions contemplated in
this Agreement;
(b) the execution, delivery and performance of this
Agreement does not violate the terms of any security
agreement, license or any other contract or written
instrument to which HealthStream is bound;
(c) to the best of its knowledge, the HealthStream Web
Site, T.NAV(R), T.NAV(R) iCommerce and the Courses
do not infringe any patent, trademark, copyright or
misappropriate any trade secret of a third party;
(d) the HealthStream Web Site, T.NAV(R) and T.NAV(R)
iCommerce shall have the functions and features and
perform in accordance with any documentation
delivered by HealthStream to IDX, HealthStream
customers;
(e) to the best of its knowledge, the information
contained in the HealthStream Web Site and the
Courses is accurate and complete,
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is not misleading and is in accordance with
applicable professional standards;
(f) HealthStream shall maintain appropriate bandwidth,
storage space and access speed to permit timely
access to the HealthStream Web Site and Courses by
all customers; and
(g) the occurrence in or use by the HealthStream Web
Site, T.NAV(R)and T.NAV(R) iCommerce of dates on or
after January 1, 2000 (the "Millennial Dates") will
not have a material adverse effect on the
performance of the HealthStream Web Site,
T.NAV(R)and T.NAV(R)iCommerce with respect to
date-dependent data, computations, output or other
functions (including, without limitation,
calculating, computing or sequencing), and the
HealthStream Web Site, T.NAV(R)and T.NAV(R)iCommerce
will create, store and generate output data related
to or including the Millennial Dates without errors
or omissions to the extent that other information
technology and operating systems, used in
combination with the HealthStream Web Site,
T.NAV(R)and T.NAV(R) iCommerce, properly exchanges
date/time data with it.
8. INDEMNITY
8.1 Indemnification by IDX. IDX shall indemnify, defend and hold
HealthStream harmless from any and all damages or claims
(including reasonable attorneys' fees) arising from a claim
that the Physician Homebase or IDX Content infringes a
copyright, patent, trademark or misappropriates a trade
secret or from a breach of any of IDX's obligations or
warranties under this Agreement; provided that IDX is
notified promptly in writing of any such claim or breach and
has sole control over its defense or settlement, and
HealthStream provides reasonable assistance in the defense of
the same.
8.2 Indemnification by HealthStream. HealthStream shall
indemnify, defend and hold IDX harmless from any and all
damages or claims (including reasonable attorneys' fees)
arising from a claim that the HealthStream Web Site,
T.NAV(R), T.NAV(R) iCommerce or Courses infringe a copyright,
patent, trademark or misappropriates a trade secret or from a
breach of any of HealthStream's obligations or warranties
under this Agreement or that the information contained in the
HealthStream Web Site and the Courses is accurate and
complete, is not misleading and is in accordance with
applicable professional standards; provided that HealthStream
is notified promptly in writing of any such claim or breach
and has sole control over its defense or settlement, and IDX
provides reasonable assistance in the defense of the same.
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9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
EXCEPT AS EXPLICITLY PROVIDED IN SECTION 7 OF THIS AGREEMENT, NEITHER
PARTY MAKES ANY EXPRESS WARRANTY AND BOTH PARTIES DISCLAIM ALL IMPLIED
WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY
SHALL BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION
LOST PROFITS, UNLIQUIDATED INVENTORY, ETC.), INCIDENTAL, INDIRECT,
ECONOMIC, OR PUNITIVE DAMAGES EVEN IF THE OTHER PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION
10.1 Term. The term of this Agreement shall run from the Effective
Date until three (3) years after the Effective Date and shall
automatically renew for successive one (1) year terms unless
either party provides at least ninety (90) days written
notice to the other party.
10.2 Termination. At any time during the term of this Agreement, a
party may terminate the Agreement as follows:
(a) upon thirty (30) days written notice if the other
party is in material breach of the Agreement and
such breach is not cured within the thirty (30) day
notice period;
(b) if a petition for bankruptcy or appointment of a
receiver, or similar instrument, is filed by the
other party or a third party files such a petition
and such petition is not dismissed within ninety
(90) days;
(c) upon the parties' failure to reach mutual agreement
as to the format for presentation of Courses and
HealthStream Content on the XXX.xxx Products in
accordance with Section 2.1.
10.3 Survival of Certain Provisions. Sections 1, 6.4, 8, 9, 11,
12.5 and 12.7 shall survive the termination of this
Agreement.
11. CONFIDENTIALITY
Each party shall preserve and maintain the other party's proprietary
interest and the confidentiality of all sales and marketing material
and information and other data, documents, intellectual property and
materials of the other marked as confidential, known or that should
reasonably be known to be confidential, and received by the party,
except public domain information, information developed independently
by the party, or information acquired from a third party legally
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without a confidentiality restriction, and shall not use or divulge the
same except as approved by the other party in connection with the
party's performance under this Agreement.
12. MISCELLANEOUS
12.1 Independent Contractor. None of the provisions of this
Agreement is intended to create, nor shall any provision in
this Agreement be deemed or construed to create, any
relationship between HealthStream and IDX other than that of
independent entities contracting with each other under this
Agreement solely for the purpose of effecting the provisions
of this Agreement. Neither of the parties, nor any of their
employees, shall be construed to be the agent, the employer
or representative of the other.
12.2 Waiver. The failure of either party to enforce at any time
any of the provisions hereof shall not be construed to be a
waiver of such provisions or of the right of such party
thereafter to enforce any such provisions.
12.3 Assignment. Neither party shall assign, or transfer any
rights or obligations, under this Agreement either in whole
or in part, without the prior written consent of the other
party, which shall not be unreasonably withheld; provided
that either party may, without prior written consent, assign
this Agreement to any parent, subsidiary or affiliate in
connection with a business reorganization or to another
entity in connection with a merger, sale of all or
substantially all of its assets, so long as such entity is
not a competitor of the other party.
12.4 Force Majeure. Neither party shall be liable for any loss or
damage sustained by the other party because of any delay in
performance or noncompliance with any provision of this
Agreement that results from an act, event, omission, or cause
beyond its reasonable control and without its fault or
negligence, including but not limited to failure of
suppliers, shortage of raw materials, or other industrial
disturbances, civil commotion, riots, wars, fires,
explosions, floods earthquakes, volcanic eruptions,
embargoes, or acts of civil or military authority.
12.5 Notices. All notices in this Agreement shall be in writing
and shall be deemed to have been given when delivered
personally, or at the time received if sent by registered or
certified United States mail, return receipt requested,
postage prepaid, by Federal Express or similar delivery
service for overnight delivery, and addressed to the other
party as follows or at such address as such party from time
to time may indicate by written notice to the other party:
If to IDX: IDX Systems Corporation
0000 Xxxxxxxxx Xxxx
P.O. Box 1070
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Burlington, VT 05402-1070
Attn.: General Manager, XXX.xxx
With a copy to: General Counsel
If to HealthStream: HealthStream, Inc.
000 00xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxx, Xx., General Counsel
12.6 Entire Agreement. This Agreement is the complete agreement
regarding this distribution relationship and replaces any
prior oral or written communications between the parties.
12.7 Governing Law. This Agreement shall be construed and
controlled by the laws of the State of Vermont.
12.8 Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be contrary to law, the
remaining provisions of this Agreement will remain in full
force and effect. Without limiting the generality of the
preceding sentence, if any remedy set forth in this Agreement
is determined to have failed of its essential purpose, then
all other provisions of this Agreement, including the
limitation of liability and exclusion of damages shall remain
in full force and effect.
IDX SYSTEMS CORPORATION HEALTHSTREAM, INC.
By:/s/ Xxxxxx Pure By: /s/ Xxxxxx X. Xxxxx, Xx.
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Printed Name: Xxxxxx Pure Printed Name: /s/ Xxxxxx X. Xxxxx, Xx.
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Title: Vice President of Marketing Title: CEO
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Date: 9/2/99 Date: 9/2/99
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