EXHIBIT 10.24
Standard Distribution Agreement
Original Equipment Manufacturer (OEM)
THIS AGREEMENT is entered into as of the 3rd day of June 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 Xxxxxxxxx News Networks Inc. ("Xxxxxxxxx") a Delaware
corporation, having an address at 0000 Xxxxxxxxx Xx. N.E., Colony Square 100,
Suite 2400, Xxxxxxx, XX 00000 (hereinafter referred to as "OEM").
WITNESSETH:
WHEREAS, OEM owns, operates or makes available, alone or in combination
with others, interactive information, communication and transactional services
(whether presently existing or hereafter developed referred to herein as the
"OEM Services"); and
WHEREAS, OEM has developed a telecommunications service called Medcast
Networks. Medcast Networks is a news and information service for physicians and
other healthcare providers distributed to subscribers' desktops via the
Internet.
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 (the "Co-Branded Site") of OEM's services and products with links
accessible only to Authorized Users (as defined in Section 1.2 below) to the
Products (as defined in Section 2.1 below) on HealthGate's Site.
1.2 Authorized Users. For the purposes of this Agreement, "Authorized
User" shall mean an individual, registered user of OEM's Services who is a
natural person and who registered for or has accessed OEM's services through an
individual personal computer. Without limiting the generality of the foregoing:
(i) institutions, companies, corporations or other entities are not Authorized
Users, and (ii) persons who access OEM's Services through an institution,
company, corporation or other entity either through such entity's intranet or
internet access pursuant to a corporate, company or institutional agreement with
the OEM are
not Authorized Users. Notwithstanding the foregoing exclusions, a person who
accesses OEM's Services and has a separate individual registration
identification, has a separate individual user agreement with OEM and who pays
for OEM's Services individually (and not through an institution, company,
corporation or other entity) may be an Authorized User.
1.3 Links to HealthGate Site; Interactions between Sites. HealthGate will
accept queries posed by an Authorized User on the Co-Branded Site and return to
the Authorized User the results of said queries to the Co-Branded Site.
All such interactions between the two sites will be conducted according to
mutually agreed upon design. The Co-Branded Site shall contain prominent
reference to HealthGate and prominently feature HealthGate's logo in a manner to
be approved by HealthGate.
II. Products on the Co-Branded Site
2.1 HealthGate Products. OEM Authorized Users shall have access via the
Co-Branded Site to the databases listed on Schedule A attached hereto (the
"Products").
2.2 Exclusivity. OEM agrees that during the term of this agreement it
shall not provide links, access, or in any other way provide access from its
site to any other entity's products or. services that are similar in nature to
those of HealthGate Products other than through HealthGate.
III. Fees
3.1 License Fees. OEM agrees to pay to HealthGate a monthly License Fee as
set forth in Schedule A.
3.2 Advertising and other Fee Arrangements. Arrangements concerning
advertising or other fee arrangements, if any, are set forth on Schedule 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 June 15, 1998, and shall
continue in effect until June 14, 1999 (the "Initial Scheduled Expiration
Date"), unless otherwise terminated as provided hereunder.
4.2 Renewal. Unless notice of intent not to renew is given by either party
at least thirty (30) 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 or (B) thirty (30) days following receipt of the Termination
Notice for all other non-payment breaches. In the event that the nature of the
default specified in the Termination Notice cannot be reasonably cured within
thirty (30) days following receipt of the Termination Notice, a party shall not
be deemed to be in default if such party 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 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. OEM will not take any action that would undermine, conflict with, or
be contrary to the rights and interest of HealthGate, including, without
limitation, any use of, or attempt to register, any trademark, service xxxx or
trade name substantially similar to any HealthGate Trademark.
All advertising and promotional material for the Co-Branded Site, which
contains any HealthGate Trademark, shall be subject to review and approval by
HealthGate (which approval shall not be unreasonably withheld).
5.2 Notwithstanding the limited right to use OEM's name, logo and other
marks created or utilized by OEM (collectively the "OEM's Trademarks") on the
Co-Branded Site, HealthGate recognizes and acknowledges OEM is the sole owner of
the OEM Trademarks and all rights therein and the goodwill pertaining thereto
belong exclusively to OEM. HealthGate recognizes and acknowledges that OEM
Trademarks have acquired a secondary meaning and 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. HealthGate
will not take any action that would undermine, conflict with, or be contrary to
the rights and interest of HealthGate, including, without limitation, any use
of, or attempt to register, any trademark, service xxxx or trade name
substantially similar to any OEM Trademark.
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 full 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 of its customers and users to limit its actions
and use of the Products under the subscriber agreement (or similar agreement,
contract or arrangement) between OEM and its customer or user, to conform to
applicable laws regarding the export of re-export of any information, or any
process, product, or service, to countries specified as prohibited destinations,
including the Regulations of the U.S. Department of Commerce and/or the U.S.
State Department, to the extent applicable. Users of the Co-Branded Site shall
be prohibited from reselling or re-licensing the Products or any portion thereof
without the express written consent of OEM and HealthGate (which consent may be
withheld for any reason or for no reason). OEM shall be responsible for
enforcing this prohibition and having appropriate written limitations of the use
of the Products with all its customers or other users of the Co-Branded Site.
OEM shall have all Authorized Users register with OEM in a manner acceptable to
HealthGate and such registration information shall be available for review by
HealthGate upon written request.
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:
Xxxxxx X. Xxxxxxxx
Editor-in-Chief
GNN/Medcast
0000 Xxxxxxxxx Xx. X.X.
Xxxxxx Xxxxxx 100 Suite 2400
Xxxxxxx, XX 00000
404-266-8500 ext. 3011 (voice)
000-000-0000 (fax)
xxxx@xxxx.xxx (electronic mail)
Either party may change its Administrator pursuant to written notice to
the other party containing an express reference to this Agreement.
VIII. DISPUTE RESOLUTION
8.1 Good Faith Discussions. The parties hereto agree to meet and confer in
good faith to resolve any problems or disputes that may arise under this
Agreement.
8.2 Arbitration. Any dispute or controversy between the parties, including
a fee dispute or a dispute arising from an alleged material breach of this
Agreement by a party, shall, on written request of one party served on the
other, be submitted to arbitration. Any arbitration shall be conducted before a
panel of three arbitrators in accordance with the then existing Rules for
Commercial Arbitration of the American Arbitration Association and judgment upon
any award rendered by the arbitrator(s) may be entered by any State or Federal
court having jurisdiction thereof. The parties intend that this agreement to
arbitrate be valid, enforceable and irrevocable. The decisions of the
arbitrators shall be final and conclusive upon all parties and judgment upon the
award may be entered in any court of competent jurisdiction. The arbitrators may
assess costs, including counsel fees, in such manner as they deem fair and
equitable. The arbitration shall be conducted in Boston, Massachusetts unless
otherwise mutually agreed by the parties.
8.3 Injunctive Relief. OEM and CUSTOMER each acknowledge that in the event
of a breach of certain sections of this Agreement, including, without limitation
Article V and Sections 4.4(b) and 6.4, HealthGate may not have an adequate
remedy at law and will suffer irreparable damage and injury. Therefore, in
addition to any other remedy available, OEM agrees that if it violates any of
the provisions of Article V or Sections 4.4(b) or 6.4, HealthGate shall be
entitled to 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. In no event shall HealthGate
be liable under this Agreement to OEM 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, OEM's remedy shall be limited to an
abatement of that portion of the monthly License Fee attributable to the period
of time of which the HealthGate Site is unavailable or not functioning.
9.3. Freedom of Action. Except as set forth in Section 2.2, nothing in
this Agreement shall be construed as prohibiting or restricting either party
from independently developing or acquiring and marketing materials and/or
programs that are competitive with the Co-Branded Site.
9.4 Independent Contractor. HealthGate and OEM are and shall remain
independent contractors with respect to all work completed pursuant to the
Agreement.
9.5 No Assignment. OEM may not sell, transfer, assign, or subcontract, any
right or obligation set forth in this Agreement without the express advance
written consent of HealthGate.
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 Cautions & 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. Xxxxxxxxx News Networks
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxx Name: XXXXXX X. XXXXXXXX
Title: Chief Executive Officer Title: EDITOR-IN-CHIEF
