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EXHIBIT 10.26
We have omitted certain portions of this document and filed them separately
with the Commission. These portions are marked with an asterisk (*).
SOFTWARE LICENSING AND DISTRIBUTION AGREEMENT
This Software Licensing and Distribution Agreement ("Agreement") is
made by and between HealthStream, Inc., a Tennessee corporation having its
principal place of business at 000 00xx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxx 00000 ("HealthStream") and MedicaLogic, Inc., having its principal
place of business at 00000 X.X. Xxxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000
("Distributor").
BACKGROUND
WHEREAS, Distributor delivers Internet healthcare services targeted at
the healthcare community and consumers among others;
WHEREAS, HealthStream has developed and marketed and continues to
develop and market a computer-based education system known as the Training
Navigator(R) ("T.NAV(R)") that delivers and monitors World Wide Web based
content;
WHEREAS, Distributor and HealthStream wish to enter into a cooperative
effort to 1) deploy HealthStream branded educational offerings utilizing
T.NAV(R) technology and Distributor's distribution channels and 2) market the
goods and services incorporated therein;
WHEREAS, Distributor wishes to acquire a license and HealthStream has
agreed to grant a license to Distributor for the utilization of T.NAV(R) with
Distributor's Internet healthcare services;
WHEREAS, Distributor and HealthStream wish to provide appropriate
consideration for those efforts that each party has agreed to undertake;
WHEREAS, Distributor and HealthStream each acknowledge the sufficiency
and adequacy of the value, concessions, and recitations set forth herein;
NOW THEREFORE, Distributor and HealthStream agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the terms below shall have the following
meanings:
1.1. "Course" means healthcare related Internet based curricula designed to
be delivered by T.NAV(R).
1.2. "Distributor" means MedicaLogic, Inc. and any affiliated entity of
Distributor.
1.3. "Distributor Courses" means interactive courses that are the
proprietary property of Distributor including training and education
content including, but not limited to OSHA and JCAHO mandated training,
continuing medical education, and office training.
1.4. "Effective Date" means the later of the dates on which the parties sign
this Agreement.
1.5. "HealthStream" means HealthStream, Inc. and any Subsidiary of
HealthStream, Inc.
1.6. "HealthStream Courses" means interactive courses that are the
proprietary property of HealthStream or Third Party Content including
training and educational content including, but not limited to OSHA and
JCAHO mandated training, continuing medical education, and office
training.
1.7. "Internet" means the international network of computers and computer
networks accessible by the public at large of which the World Wide Web
is a subset.
1.8. "Intranet" means an internal network protected from unauthorized users
by a firewall and accessible only by individuals within the
organization serving the network.
1.9. "Launch Date" means the date on which the co-branded site becomes
available to users via xxx.xxxxxxxxxxx.xxx, or its successor website.
1.10. "Net Revenue" means gross revenue derived by Distributor or
HealthStream from Transactions Fees less discounts, rebates, and
refunds.
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1.11. "Subsidiary" means a company in which, on a class-by-class basis, more
than fifty percent (50%) of the stock entitled to vote for the election
of directors is owned or controlled by another company, but only so
long as such ownership or control exists.
1.12. "Third Party Content" means interactive content that is the proprietary
property of a third party to this Agreement.
1.13. "T.NAV(R)" is a registered trademark of HealthStream and is a computer
based training product that delivers and monitors World Wide Web based
content.
1.14. "T.NAV(R)" means HealthStream's computer based training product that
delivers and monitors World Wide Web based Content. T.NAV(R) is
available in multiple configurations, each containing common core
functionality with unique features applicable for a given application's
distribution and access requirements, e.g. Internet eCommerce,
Intranet, local area networks, etc. T.NAV(R) is a registered trademark
of HealthStream. T.NAV(R) is also branded as Training Navigator(R), a
registered trademark of HealthStream.
1.15. "Transaction Fees" means fees received by HealthStream for HealthStream
Courses or Distributor Courses delivered over the Internet via the
T.NAV(R) on Distributor's World Wide Web site.
ARTICLE 2
STRATEGIC RIGHTS GRANTS
2.1. During the term of this Agreement, Distributor shall:
2.1.1. include on Distributor's World Wide Web site a logo of the
HealthStream trademark and a hyperlink to the HealthStream
section of Distributor's World Wide Web site; and
2.1.2. work closely with HealthStream to develop a specific promotion
plan within ninety (90) days of the Effective Date, which will
include a minimum of one (1) marketing initiative per quarter.
Marketing initiatives may include, but are not limited to,
industry trade shows and exhibitions, seminars, direct
mailings, advertising in third-party publications, online
banner advertisement placements, and press releases. The
parties will work together in good faith to prepare a mutually
acceptable press release to announce this Agreement within
five (5) days of the Effective Date. Distributor will include
HealthStream in the marketing campaign for XxxxxxXxxxx.xxx's
member services launch. Distributor will include the
HealthStream name and, in its sole discretion and where it
deems appropriate, will include the use of the HealthStream
trademark logo on all Distributor marketing materials that
reference the Courses and education services being provided by
HealthStream.
2.2. During the term of this Agreement, HealthStream shall:
2.2.1. include on the partners page of its World Wide Web site a logo
of the Distributor trademark and a hyperlink to the
Distributor's World Wide Web site;
2.2.2. not include hyperlinks on the co-branded Web site to third
parties that directly compete with Distributor;
2.2.3. provide standard Personalization for Distributor, as defined
in Exhibit A;
2.2.4. work with Distributor to provide a mutually agreeable login
procedure for Distributor's users to access T.NAV, taking into
consideration Distributor's security and privacy needs,
HealthStream's new user registration needs and provision of an
overall good user experience, among other things; and
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2.2.5. work closely with Distributor to develop the specific
promotion plan described in Section 2.1.2 herein within ninety
(90) days of the Effective Date, which will include a minimum
of one (1) marketing initiative per quarter. Marketing
initiatives may include, but are not limited to, industry
trade shows and exhibitions, seminars, direct mailings,
advertising in third party publications, online banner
advertisement placements, and press releases. The parties will
work together in good faith to prepare a mutually acceptable
press release to announce this Agreement within five (5) days
of the Effective Date.
ARTICLE 3
LICENSE GRANTS
3.1. HealthStream grants the Distributor non-exclusive, royalty-free,
worldwide rights for T.NAV(R) to deliver HealthStream Courses over the
Internet.
3.2. Subject to the payment of the consideration set forth in Article 4,
Distributor grants HealthStream non-exclusive worldwide rights to
provide and host HealthStream Courses and Third Party Content and
education services on the co-branded portion of Distributor's World
Wide Web site, as determined by Distributor.
3.3. Any and all rights not expressly granted by either of the parties to
the other are reserved by the respective party claiming reservation of
that right.
ARTICLE 4
PRICE AND PAYMENT
4.1. During the term of this Agreement, HealthStream shall pay to
Distributor * of all Net Revenue derived from Transaction Fees. If the
number of Distributor-referred HealthStream new users exceeds * by the
first anniversary of the Launch Date, then HealthStream will pay
Distributor * of all Net Revenue derived from the Transaction Fees for
the * new user and each additional new user.
4.2. HealthStream agrees to deliver monthly sales statements that detail Net
Revenue and payment according to the percentages outlined in this
Article 4 to Distributor within forty five (45) days after the end of
each calendar month. These monthly reports shall indicate the total
number of Transactions for which either party derives revenue.
HealthStream shall submit monthly reports even if no royalties or other
amounts are due for such month. A monthly finance charge based on an
annual rate of prime plus 2% will be assessed on all amounts that are
paid later than forty five (45) days after the end of the last month.
4.3. Distributor and HealthStream will meet as necessary to review pricing,
discounting policy and the rationale behind any discounts granted for
HealthStream Courses and HealthStream Intranet products and services.
ARTICLE 5
INDEMNIFICATION
5.1. HealthStream represents and warrants that to the best of its knowledge:
5.1.1. T.NAV(R) does not infringe any copyright or patent enforceable
under the laws of any country; and
5.1.2. T.NAV(R) does not violate the trade secret rights of any third
party; and
5.1.3. HealthStream is the sole proprietor of the HealthStream
Courses and owns the copyright or otherwise has secured the
appropriate rights by license or otherwise to publish the
HealthStream Courses and Third-Party Content; and
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5.1.4. HealthStream has full power and authority, free of any rights
of any nature by any other person, to enter into this
Agreement and to grant the rights that are granted to
Distributor in this Agreement.
5.2. HealthStream agrees to indemnify, hold harmless, and defend Distributor
from any and all damages, costs, and expenses, including reasonable
attorneys' fees, incurred in connection with a claim that constitutes a
breach of the warranties set forth in Section 5.1 (hereinafter claims
under Subsections 5.1.1 through 5.1.4 shall collectively be referred to
as "Infringement Claims"); provided, HealthStream is notified promptly
in writing of an Infringement Claim and has sole control over its
defense or settlement, and Distributor provides reasonable assistance,
at HealthStream's expense, in the defense of the same.
5.3. HealthStream shall have no liability for any Infringement Claim based
on Distributor's:
5.3.1. use or distribution of T.NAV(R) after HealthStream's written
notice that Distributor should cease use or distribution of
T.NAV(R) due to an Infringement Claim, or
5.3.2. combination of T.NAV(R) with a non-HealthStream program or
data if such Infringement Claim would have been avoided by the
exclusive use of T.NAV(R).
5.4. For all Infringement Claims arising under Section 5.3, Distributor
agrees to indemnify and defend HealthStream from and against all
damages, costs, and expenses, including reasonable attorneys' fees but
only to the extent such continued use or combination by Distributor is
the cause of such Infringement Claim or additional damages. In the
event HealthStream notifies Distributor that it should cease
distribution of T.NAV(R) due to an Infringement Claim, Distributor may
terminate this Agreement.
5.5. Except to the extent that Distributor is responsible under Section 5.6
herein, HealthStream shall also indemnify, hold harmless and defend
Distributor from and against any and all claims, liabilities, losses,
damages, expenses and costs (including reasonable attorneys' fees and
costs) arising out of or relating to: (a) a breach of HealthStream's
representations or warranties under this Agreement; (b) the use and
functionality of the HealthStream Courses and Third Party Content as it
interfaces with the co-branded portion of Distributor's World Wide Web
site; (c) other information supplied or managed by HealthStream for the
co-branded portion of Distributor's World Wide Web site; (d) any
services or products available under HealthStream's World Wide Web site
not provided by Distributor under this Agreement and (e) the negligence
or intentional wrongdoing of HealthStream. HealthStream will pay
resulting costs, damages and legal fees finally awarded in such action
in a court or in a settlement which are attributable to such claim
provided that: (i) Distributor promptly notifies HealthStream in
writing of any such claim; (ii) HealthStream has sole control of the
defense and all related settlement negotiations, and (iii) Distributor
cooperates with HealthStream, at HealthStream's expense, in defending
or settling such claim.
5.6. Except to the extent that HealthStream is responsible under Section 5.5
herein, Distributor shall indemnify, hold harmless and defend
HealthStream from and against any and all claims, liabilities, losses,
damages, expenses and costs (including reasonable attorneys' fees and
costs) arising out of or relating to: (a) a breach of Distributor's
representations or warranties under this Agreement; (b) any content
provided by Distributor to HealthStream for use in the co-branded
portion of the Distributor's World Wide Web site in accordance with
this Agreement; (c) any services or products available under
Distributor's World Wide Web site not provided by HealthStream under
this Agreement; and (d) the negligence or intentional wrongdoing of
Distributor. Distributor will pay resulting costs, damages and legal
fees finally awarded in such action in a court or in a settlement that
are attributable to such claim provided that: (i) HealthStream promptly
notifies Distributor in writing of any such claim; (ii) Distributor has
sole control of the defense and all related settlement negotiations,
and (iii) HealthStream cooperates with Distributor, at Distributor 's
expense, in defending or settling such claim.
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ARTICLE 6
INTELLECTUAL PROPERTY PROVISIONS
6.1. Both parties will cause to appear on all marketing or promotional
materials concerning the healthcare related training courses, the other
party's copyright, trademark, or patent notices, as appropriate,
subject to such parties trademark usage guidelines, if any.
6.2. The parties agree that ownership of any invention conceived or
developed during the course of this Agreement shall vest in accordance
with the patent rules governing inventorship.
6.3. To the extent that source code is written by either party, title shall
vest in the party who has written such code.
6.4. Each party is responsible for protecting, documenting, and maintaining
its own intellectual property. Except as expressly set forth herein,
this Agreement does not grant either party any proprietary rights of
any type in the other party's materials, services or content.
6.5. Both parties acknowledge that, except as otherwise provided herein,
each party owns and retains all right, title and interest in and to its
own content provided to the other party.
6.6. HealthStream acknowledges that Distributor owns and retains all right,
title and interest in and to Distributor's World Wide Web site and all
Distributor's products, services and derivatives thereof arising from
the performance of this Agreement.
6.7. Distributor acknowledges that, except for the license granted to
Distributor in Section 3.1 herein, HealthStream owns and retains all
right, title and interest in and to T.NAV(R), the T.NAV(R) source code,
and the T.NAV(R) object code.
ARTICLE 7
PROHIBITION AGAINST ASSIGNMENT AND SUBLICENSE
This Agreement, and any rights or obligations hereunder, shall not be assigned
or sublicensed (except as permitted in this Article 7) by either party.
Notwithstanding the foregoing, this Agreement may be assigned to a successor in
interest to all of a party's assets or substantially all of a party's assets and
shall inure to the benefit of and be binding upon successors or purchasers of
substantially all of either party's assets.
ARTICLE 8
TERM OF AGREEMENT
Provided this Agreement has been properly executed by an officer of Distributor
and by an officer of HealthStream, the term of this Agreement ("Term") shall run
from the Effective Date until one (1) year after the Launch Date, and thereafter
be automatically extended for additional one (1) year periods unless either
party provides thirty (30) days written notice of termination to the
non-terminating party.
ARTICLE 9
DEFAULT AND TERMINATION
9.1. The non-defaulting party may terminate this Agreement in its entirety
if any of the following events of default occur:
9.1.1. if the defaulting party materially fails to perform or comply
with this Agreement or any provision hereof;
9.1.2. if the defaulting party fails to strictly comply with the
provisions of Article 12, 17.1, or makes an assignment in
violation of Article 7;
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9.1.3. if a party becomes insolvent or admits in writing its
inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors;
9.1.4. if a petition under any foreign, state, or United States
bankruptcy act, receivership statute, or the like, as they now
exist, or as they may be amended, is filed by a party; or
9.1.5. if such a petition is filed by any third party, or an
application for a receiver of a party is made by anyone and
such petition or application is not resolved favorably or
discharged to such party within ninety (90) days.
9.2. Termination due to a breach of Articles 7 or 12 or 17.1, shall be
effective upon notice. In all other cases termination shall be
effective sixty (60) days after notice of termination to the defaulting
party if the defaults have not been cured within such sixty (60) day
period. Unless otherwise stated in this Agreement, the rights and
remedies of the parties provided herein shall not be exclusive and are
in addition to any other rights and remedies provided by law or this
Agreement.
ARTICLE 10
OBLIGATIONS UPON TERMINATION
10.1. From and after termination or expiration of this Agreement, Distributor
shall not employ T.NAV(R) or any portion thereof that is owned by
HealthStream, as part or portion of any product that Distributor may
use, sell, assign, lease, license, or transfer to third parties. Both
parties shall cease and desist from all use of the other party's names
and associated trademarks and, upon request, deliver to the other party
or its authorized representatives or destroy all material upon which
those names and the associated trademarks appear.
10.2. Articles 5, 6, 10, 11, 13, 14, Section 15.1, and Article 17 shall
survive termination or expiration of this Agreement.
ARTICLE 11
WARRANTIES, LIMITATION OF LIABILITY AND REMEDIES
HealthStream represents and warrants that T.NAV(R) shall operate and perform
according to specifications included herein. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES. ANY AND ALL OTHER
IMPLIED WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING THOSE FOR MERCHANTABILITY
AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. 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. EXCEPT FOR BREACH OF THE CONFIDENTIALITY AND THE INDEMNITY
PROVISIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY'S LIABILITY TO
THE OTHER PARTY FOR DAMAGES ARISING FROM PERFORMANCE OR NONPERFORMANCE UNDER
THIS AGREEMENT SHALL EXCEED IN THE AGGREGATE THE TOTAL AMOUNTS PAID TO
DISTRIBUTOR BY HEALTHSTREAM DURING THE 12 MONTH PERIOD PRIOR TO SUCH CLAIM.
ARTICLE 12
SECURITY AND PRIVACY
12.1. The parties acknowledge that Distributor must at all times provide a
private and secure web site and linking environment for users of
Distributor's services including the co-branded site and links.
HealthStream may gather information from users of Distributor's
services in accordance with HealthStream's privacy statement located on
HealthStream's Web site and attached hereto as
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Exhibit C and incorporated herein by this reference. Other than as set
forth in Exhibit C hereto, security measures used in association with
the co-branded site shall be consistent with the guidelines stated in
Distributor's security white paper attached hereto as Exhibit B and
incorporated herein by this reference. At a minimum, the parties agree
to implement security measures consisting of digital certificates and
SSL encryption or both, as applicable. Where third-party links outside
the secure co-branded site exist, Distributor will have the option to
have those links removed with HealthStream's mutual consent. Due to
security and privacy risks posed by the inclusion of third-party links
outside the secure co-branded site, Distributor reserves the right to
implement a warning screen or other form of alert to be presented to
Distributor's users as they move from the Distributor's site to the
co-branded site and HealthStream agrees to cooperate and assist
Distributor with such implementation, if reasonably required.
Distributor, in consultation with HealthStream, shall have sole
discretion over the content and form of such warning. The parties also
agree as follows:
12.1.1. Other than for the limited business purposes outlined in
Exhibit C attached hereto, HealthStream shall in no way
attempt to ascertain, store, or collect any information
relating to the identity of Distributor's users and the
Distributor's applications being run by these users.
Prohibited actions, other than as outlined in Exhibit C
attached hereto, include, but shall not be limited to:
(i) any investigation of the Distributor user's IP
address including, but not limited to, reverse DNS,
traceroute, and whois information;
(ii) requesting from the Distributor's users, or retrieval
(i.e. through system processes), of personal
information including, but not limited to, the
Distributor's user's e-mail address, mailing address,
telephone number, and social security number;
(iii) requesting from the Distributor's user, or retrieval
(i.e. through system processes) of any
Distributor-specific authentication information
including, but not limited to, user identifications
and passwords, and digital certificates; and
(iv) requesting or retrieval (i.e. through system
processes) of any Distributor cookies or other system
process information including, but not limited to,
Java scripts and parent frame content.
12.2. Distributor, or a third-party entity retained by Distributor, shall be
entitled to audit the security measures implemented for the co-branded
site by HealthStream to determine compliance with the provisions of
this Article 12. If it is determined by audit or otherwise, that
HealthStream is not in compliance with the provisions of this section,
Distributor may terminate this Agreement immediately.
ARTICLE 13
AUDITS
13.1. During the term of this Agreement, the parties hereto agree to keep all
usual and proper records and books of account and all usual and proper
entries relating to each T.NAV(R) licensed consistent with generally
accepted accounting principles.
13.2. HealthStream may cause an audit to be made of the applicable
Distributor records that pertain to this Agreement for the sole purpose
of verifying royalty reports issued by Distributor to HealthStream and
prompt adjustment shall be made to compensate for any errors or
omissions disclosed by such audit. Any such audit shall be conducted by
an independent certified public
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accountant of national stature (e.g., Deloitte) selected by
HealthStream (other than on a contingent fee basis) and shall be
conducted during regular business hours at Distributor's offices and in
such a manner as not to interfere with Distributor's normal business
activities. Any such audit shall occur no more than once per calendar
year and within six (6) months of the end of the calendar year.
HealthStream shall pay for any such audit unless Material discrepancies
are disclosed. "Material" shall mean the lesser of Five Thousand
Dollars (US$5,000.00) or five percent (5%) of the amount that should
have been reported. If Material discrepancies are disclosed,
Distributor agrees to pay HealthStream the costs associated with the
audit not to exceed Five Thousand Dollars (US$5,000.00). The auditor
shall only disclose the correct data and amounts as called for on the
royalty reports. The auditor shall be bound by a signed nondisclosure
agreement in substantial form as the Mutual Confidential Disclosure
Agreement entered into by the parties to this Agreement on July 28th,
1999 and the auditor shall treat all information disclosed during the
course of the audit as confidential information as defined in such
nondisclosure agreement.
13.3. Distributor may cause an audit to be made of the applicable
HealthStream records and facilities for the sole purpose of verifying
any reports issued by HealthStream to Distributor, and prompt
adjustment shall be made to compensate for any errors or omissions
disclosed by such audit. Any such audit shall be conducted by an
independent certified public accountant of national stature (e.g.,
Deloitte) selected by Distributor (other than on a contingent fee
basis) and 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. Any such audit shall be paid
for by Distributor unless Material discrepancies are disclosed.
"Material" shall mean the lesser of Five Thousand Dollars (US$5,000.00)
or five percent (5%) of the amount that should have been reported. If
Material discrepancies are disclosed, HealthStream agrees to pay
Distributor for the costs associated with the audit not to exceed Five
Thousand Dollars (US$5,000.00). In no event shall audits be made more
frequently than annually unless the immediately preceding audit
disclosed a Material discrepancy. The auditor shall only disclose the
correct data and amounts as called for on the royalty reports. The
auditor shall be bound by a signed nondisclosure agreement in
substantial form as the Mutual Confidential Disclosure Agreement
entered into by the parties to this Agreement on July 28, 1999 and the
auditor shall treat all information disclosed during the course of the
audit as confidential information as defined in such nondisclosure
agreement.
13.4. Any statement shall affect neither the right to examine and audit nor
the right to receive an adjustment to the contrary, appearing on checks
or otherwise, unless expressly agreed to in writing by the party having
such right.
13.5. In the event that either party makes any claim with respect to an
audit, upon the audited party's written request the party who has
requested such audit will make available to the audited party the
records and reports pertaining to such audit prepared by the
independent auditor who performed such audit.
ARTICLE 14
NOTICES AND REQUESTS
All notices, authorizations, and requests in connection with this Agreement
shall be deemed given on the day they are deposited in the U.S. mails, postage
prepaid, certified or registered, return receipt requested, or sent by air
express courier, charges prepaid; and addressed as follows:
DISTRIBUTOR: MedicaLogic, Inc.
Attn: Xxxxxxx X. Sang
Business Development Manager
cc: General Counsel
000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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HEALTHSTREAM: HealthStream, Inc.
Attn: Xxxxxx X. Xxxxx, Xx.
General Counsel
000 00xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
or to such other address as the party to receive the notice or request so
designates by written notice to the other.
ARTICLE 15
CONTROLLING LAW
15.1. This Agreement shall be construed and controlled by the laws of the
State of California.
15.2. Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, joint venture or agency
relationship or as granting a franchise as defined in 16 CFR Section
436.2(a). The price and payment described in Article 4 of this
Agreement shall not be construed as a franchise fee.
ARTICLE 16
ATTORNEYS' FEES
If either HealthStream or Distributor employs attorneys to enforce any rights
arising out of or relating to this Agreement, the prevailing party in any
proceeding shall be entitled to recover its reasonable attorneys' fees, costs
and other expenses.
ARTICLE 17
GENERAL
17.1. All disclosures of proprietary and confidential information in
connection with this Agreement as well as the contents of this
Agreement shall be governed by the terms of the Mutual Confidential
Disclosure Agreement entered into between HealthStream and Distributor
on July 28, 1999.
17.2. This Agreement does not constitute an offer by HealthStream and it
shall not be effective until signed by both parties. Upon execution by
both parties, this Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof and
replaces and supplants all prior and contemporaneous communications. It
shall not be modified except by a written agreement signed on behalf of
Distributor and HealthStream by their respective duly authorized
representatives. Unless agreed to in a separate writing signed by both
parties, any statement appearing as a restrictive endorsement on a
check or other document which purports to modify a right, obligation or
liability of either party shall be of no force and effect.
17.3. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable, the
remaining provisions shall remain in full force and effect. If this
Agreement as it relates to any product(s) licensed hereunder shall be
held by a court of competent jurisdiction to be invalid, illegal, or
unenforceable or if this Agreement is terminated as to particular
product(s), this Agreement shall remain in full force and effect as to
the remaining product(s).
17.4. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of
the same or any other provisions hereof, and no waiver shall
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be effective unless made in writing and signed by an authorized
representative of the waiving party.
17.5. The Article headings used in this Agreement and the attached Exhibits
are intended for convenience only and shall not be deemed to supersede
or modify any provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
last date set forth below. All signed copies of this Agreement shall be deemed
originals.
MedicaLogic, Inc. HealthStream, Inc.
By: /s/ By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------ ---------------------------------
Title: COO Title: CEO
--------------------------- -------------------------------
Date: 2/8/00 Date: 2/8/00
--------------------------- -------------------------------
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EXHIBIT A
PERSONALIZATION ITEMS
HealthStream's online education Web site and T.NAV systems can be personalized
to reflect Distributor's brand image. The following items are standard elements
of that Personalization:
1. Left navigation bar light color
2. Left navigation bar dark color
3. The color that is the background of the main logo in the upper left
4. The color for the ad banner section
5. The light color for the catalog listing
6. The dark color for the catalog listing
7. The light color for the Your Menu listing
8. The dark for the Your Menu listing
9. The logo to display in the upper left
10. The name to display in the site (i.e. "Xxxxxxxxxxxx@xxxxxxxxxxx.xxx")
11. The phone number of technical support
12. The email for tech support
13. The address for tech support
14. The first custom link to display
15. The second custom link to display
16. The third custom link to display
17. The fourth custom link to display
18. The fifth custom link to display
19. The people support link to display
20. Code to pre-populate the discount field
21. Text to display on page for custom link 1
22. Text to display for custom link 2
23. Text to display for custom link 3
24. Text to display for custom link 4
25. Text to display for custom link 5
26. Text to display for the people support link
27. Default background color
28. The path and file to call when doing an auto-logoff
29. The background color for the title bar
Distributor and HealthStream
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EXHIBIT B
MEDICALOGIC SECURITY WHITE PAPER
[INSERT DOCUMENT]
Distributor and HealthStream
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EXHIBIT C
HEALTHSTREAM PRIVACY STATEMENT
HealthStream University may ask you to register and provide information that
personally identifies you ("Personal Information"), including when you register
for online courses. We use your Personal Information for two primary purposes:
- To target specific education to you on HealthStream University.
- To track and manage your continuing education credits.
Although HealthStream University does not provide your e-mail address, phone
number, or other personal information to third parties, we may aggregate
information from all of the HealthStream University users and create reports for
third parties.
To ensure Personal Information you provided to HealthStream University is
correct and current, you may review and update this information at any time at
the Personal Information section of your references. There, you can view and
edit Personal Information you already have given us.
HealthStream University uses cookies to authenticate users. We use cookies to
make sure our users are who they say they are.
A cookie is a small data file that certain Web sites write to your hard drive
when you visit them. A cookie file can contain information such as a user ID
that the site uses to track the pages you've visited. But the only personal
information a cookie can contain is information you supply yourself. A cookie
can't read data off your hard disk or read cookie files created by other sites.
If you've set your browser to warn you before accepting cookies, you will
receive the warning message with each cookie. Your browser needs to accept these
cookies for the HealthStream University site to function properly.
If for some reason you believe HealthStream University has not adhered to these
principles, please notify us by e-mail at xxxxxxxxx@xxxxxxxxxxxx.xxx and we will
use commercially reasonable efforts to promptly determine and correct the
problem.
Distributor and HealthStream
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