EXHIBIT 10.26
CONTINUING MEDICAL EDUCATION PROGRAMS
LICENSE AGREEMENT
This agreement ("AGREEMENT") is made as of April 1, 1996 ("EFFECTIVE
DATE") by and between TRUSTEES OF BOSTON UNIVERSITY (hereinafter referred to as
"LICENSOR"), a non-profit corporation duly organized and existing under the laws
of the Commonwealth of Massachusetts, on behalf of its School of Medicine, which
has a principal office at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
and HealthGate Data Corp. (hereinafter referred to as "LICENSEE"), a corporation
duly organized and existing under the laws of the State of Delaware and having
its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX
00000.
WITNESSETH
WHEREAS, LICENSOR holds the right to license the INFORMATION regarding
CONTINUING MEDICAL EDUCATION PROGRAMS as more fully described herein;
WHEREAS, LICENSOR wishes to make the INFORMATION commercially available
for searching, access, and review by LICENSEE'S CUSTOMERS; and
WHEREAS, LICENSEE wishes to obtain non-exclusive rights to provide online
interactive searching, access, and review of the INFORMATION and supply the
results in electronic form to LICENSEE'S CUSTOMERS; and
WHEREAS, LICENSOR wishes to make it possible for LICENSEE'S CUSTOMERS to
fulfill the requirements for obtaining credit for CME PROGRAMS electronically
and LICENSEE is willing to co-operate in this endeavor;
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NOW, THEREFORE, in consideration of the promises and agreements contained
herein, and for other good and valuable consideration, the receipt of which is
acknowledged by each of the parties hereto, the parties agree as follow:
ARTICLE 1 - DEFINITIONS
1.1 The following terms shall have the following meanings for purposes of this
AGREEMENT:
(a) "AGREEMENT" means the body of this Agreement and all Appendices
hereto, as the same may be amended from time to time in accordance
herewith. The following Appendices are attached hereto:
Appendix 1 - Continuing Medical Education Programs
Appendix 2 - Licensed Marks
Appendix 3 - Financial Arrangements
(b) "CME PROGRAMS" means the Continuing Medical Education Programs
listed in Appendix 1, which Appendix may be amended by LICENSOR from
time to time in its sole discretion by giving written notice thereof
to LICENSEE.
(c) "CUSTOMERS" means those individuals, institutions, and other
organizations who are authorized to gain access to one or more CME
PROGRAMS through LICENSEE.
(d) "INFORMATION" means the CME PROGRAMS, or such portions thereof as
are provided by LICENSOR to LICENSEE.
(e) "LICENSED MARKS" means the name, trademarks, and service marks
specified in Appendix 2, which Appendix may be amended by LICENSOR
from time to time in its sole discretion by giving written notice
thereof to LICENSEE.
(f) "LICENSOR PROPRIETARY INFORMATION" means any and all information
relating to the business of LICENSOR that may be obtained from any
source as a result of this Agreement, and the LICENSED MARKS.
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ARTICLE 2 - GRANT OF LICENSE
2.1 Subject to the terms and conditions set forth herein, LICENSOR grants to
LICENSEE a non-exclusive, non-transferable, worldwide license, hereinafter
referred to as "the LICENSE," to do the following, and LICENSEE agrees
that it shall do the following:
(a) Mount the INFORMATION on its computer facilities (presently located
in Malden, MA);
(b) Provide the INFORMATION in online interactive mode for searching,
access, and review and for printing on paper and displaying on
computer terminals by LICENSEE'S CUSTOMERS;
(c) Provide online access to the INFORMATION to LICENSEE'S CUSTOMERS
through telecommunication links, including, but not limited to
dial-up, the Internet, and leased lines, to its computer facilities;
and
(d) Use the LICENSED MARKS of LICENSOR listed in Appendix 2 solely for
the purpose of performing this AGREEMENT.
2.2 LICENSOR reserves the right to revoke the LICENSE as it applies to any
particular INFORMATION at any time if, in LICENSOR's sole opinion, such
INFORMATION or the related CME PROGRAM is no longer suitable, for any
reason, for use by LICENSEE'S CUSTOMERS, by giving written notice to
LICENSEE.
2.3 Except for those rights specifically provided for in the LICENSE, LICENSOR
retains all right, title and interest in and to the INFORMATION and the
LICENSED MARKS. Licensee hereby acknowledges that it will receive no
rights or licenses to the INFORMATION or the LICENSED MARKS independent of
or in addition to the rights expressly granted to it in this AGREEMENT.
Nothing in this AGREEMENT shall cause LICENSOR'S rights, title and
interest in the INFORMATION and the LICENSED MARKS to be reduced in any
way, nor cause LICENSEE or any of its CUSTOMERS to gain any ownership
rights in the INFORMATION or LICENSED MARKS. LICENSEE shall not, and shall
use its best efforts to ensure that its CUSTOMERS do not, use, duplicate
in hard copy, machine readable or any other form, distribute, modify, or
create derivative versions of the INFORMATION or use the LICENSED MARKS
except as specifically permitted herein.
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2.4 The parties agree to perform their obligations under this AGREEMENT in
strict adherence to the Accreditation Council for Continuing Medical
Education Essentials, Guidelines and Standards for Accreditation of
Sponsors of Continuing Medical Education, including the Standards for
Commercial Support of Continuing Medical Education and the Standards for
Interpreting the Essentials as Applied to Continuing Medical Education
Enduring Materials, as well as LICENSOR's own policies and practices
designed to ensure compliance with the highest standards of educational
integrity and quality, and applicable laws, regulations, rules, and orders
(collectively, the "ACCME/BU/Legal Standards"). Without limiting the
foregoing, it is understood that any commercial funding for the CME
PROGRAMS should be in the form of an educational grant made payable to
LICENSOR. Should either party be made aware of any actual or potential
conflict between any of the ACCME/BU/Legal Standards, and this AGREEMENT
or the arrangements contemplated hereby, such party shall promptly notify
the other party and the parties shall negotiate in good faith to modify
the AGREEMENT or their arrangements so as to ensure strict adherence to
all ACCME/BU/Legal Standards.
ARTICLE 3 - LICENSOR TO FURNISH INFORMATION
3.1 Subject to the terms and conditions set forth herein and to all necessary
approvals from third parties holding copyright or other rights and
interests in the INFORMATION, LICENSOR shall, at its own expense, furnish
to LICENSEE and LICENSEE shall accept from LICENSOR the following:
(a) Existing portions of the INFORMATION in machine-readable form where
possible.
(b) If machine readable form is not available, two (2) copies of the
printed version of the INFORMATION.
It is anticipated that the INFORMATION will include an examination and an
evaluation form for each CME PROGRAM.
3.2 It is understood by the parties that certain CME PROGRAMS involve the use
of materials, such as newsletters and articles in medical journals, that
are independently available through LICENSEE to its CUSTOMERS.
Notwithstanding anything herein to the contrary, LICENSEE shall be solely
responsible for obtaining the use of such materials in connection with the
CME PROGRAMS, including without limitation obtaining all
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necessary licenses and approvals. Such materials are excluded from the
INFORMATION to be provided herein by LICENSOR.
3.3 LICENSOR shall promptly replace all or part of the INFORMATION which was
unreadable or damaged or did not conform with this AGREEMENT when
furnished by LICENSOR to LICENSEE, at no additional charge, provided that
LICENSEE gives LICENSOR reasonably detailed written notice thereof. The
foregoing states LICENSOR's exclusive remedy for any defect, damage,
nonconformity, breach of warranty, or misrepresentation with respect to
the INFORMATION.
3.4 LICENSEE agrees to make available to LICENSOR two passwords which LICENSOR
may use to access the CME PROGRAMS for purposes of quality monitoring and
other internal uses as LICENSOR sees fit, at no extra charge to LICENSOR.
ARTICLE 4 - INFORMATION AND LICENSED MARKS: ACCESS AND CHANGES
4.1 LICENSEE shall design a file structure through which the INFORMATION will
be made commercially available on LICENSEE'S proprietary service. LICENSOR
agrees to use reasonable efforts to provide technical advice to LICENSOR
to assist in such file design. LICENSOR and LICENSEE shall also cooperate
on design of the system by which CUSTOMERS' examination results and
CUSTOMERS' program evaluation forms are transmitted to LICENSOR.
4.2 LICENSEE shall not make the INFORMATION available without prior written
approval by the LICENSOR of said file design, provided that such approval
shall not be unreasonably withheld.
4.3 LICENSEE agrees to use its best efforts to prevent the INFORMATION from
becoming available through LICENSEE to anyone who is not a CUSTOMER.
4.4 LICENSEE shall not make any changes whatsoever to the INFORMATION,
LICENSED MARKS, or other material supplied by LICENSOR under ARTICLE 3,
whether to the content, structure, design, or otherwise, without
LICENSOR'S prior written approval. If and when LICENSOR wishes to
implement any changes to the INFORMATION, LICENSED MARKS, or other
material supplied by LICENSOR under ARTICLE 3,
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LICENSEE shall request LICENSOR's approval by a written and reasonably
detailed notice thereof to LICENSEE as soon as practicable but in no event
less than three (3) months in advance. Section 4.2 above shall apply to
implemented changes.
ARTICLE 5 - FEES AND PAYMENTS
5.1 LICENSEE shall pay to LICENSOR the usage fees as specified in Appendix 3
for each CME PROGRAM used by each CUSTOMER of LICENSEE. LICENSEE shall
also collect on LICENSOR's behalf, and remit to LICENSOR, the CME
certification fees or like fees set by LICENSOR and payable by those
CUSTOMERS of LICENSEE who seek continuing medical education credit with
respect to the CME PROGRAMS, as specified in Appendix 3.
5.2 Any usage of a CME PROGRAM solely for purposes of demonstrating the CME
PROGRAM or LICENSEE'S products or services shall be free of fees to
LICENSOR, on the condition that it is understood by LICENSEE and its
potential CUSTOMERS that no certification or other evidence of completing
the CME PROGRAM shall be offered in connection with such demonstrations.
5.3 Fee payments required by Section 5.1 shall be based on usage of the CME
PROGRAMS, which LICENSEE shall report in monthly activity reports as
required under Section 6.2 of this AGREEMENT. Each payment shall be
accompanied by a statement setting forth in reasonable detail the
computation of the amount due. Each payment shall be due no later than
thirty (30) days following the due date for submission of the
corresponding activity report. Any payment that is overdue shall bear
interest at the rate of one and one-half percent (1.5%) per month until
paid.
5.4 Payment by LICENSEE of all fees and charges for services performed is to
be made by check, or in such other form as may be agreed upon between the
parties, delivered to LICENSOR in accordance with Section 15.5.
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ARTICLE 6 - ADDITIONAL OBLIGATIONS
6.1 (a) LICENSEE shall provide CUSTOMERS with instructions for completing
examinations for the CME PROGRAMS and obtaining CME credit from
LICENSOR, in accordance with LICENSOR's instructions.
(b) Immediately upon receipt of each completed examination, LICENSEE
shall grade the examination on LICENSOR's behalf and strictly in
accordance with LICENSOR's examination instructions, and shall
transmit examination results to the CUSTOMER.
(c) Each graded examination shall be immediately transmitted in full to
LICENSOR, together with the CUSTOMER'S program evaluation form.
(d) LICENSOR shall provide appropriate documentation to demonstrate
successful completion of the CME PROGRAMS to LICENSEE'S CUSTOMERS
who have successfully completed the CME PROGRAMS to LICENSOR's
satisfaction, paid the requisite fee, and are otherwise eligible to
receive such documentation in LICENSOR's sole determination.
LICENSOR reserves the right to make all determinations whatsoever
relating to the accreditation of, and the granting of continuing
medical education credit for, the CME PROGRAMS.
(e) LICENSOR and LICENSEE shall otherwise provide such cooperation and
assistance as is reasonably required to provide efficient and
effective access to the CME PROGRAMS to LICENSOR's CUSTOMERS
consistent with the provisions of this AGREEMENT.
6.2 LICENSEE shall provide LICENSOR with monthly activity reports of CME
PROGRAM usage, no later than thirty (30) days after the end of each
calendar month. These activity reports shall show, by CME PROGRAM, for
each month and cumulatively for the calendar year:
(i) the CME PROGRAM name
(ii) the number of LICENSEE'S CUSTOMERS who used the CME PROGRAM;
(iii) for each CUSTOMER who used the CME PROGRAM, the CUSTOMER'S
name and address, whether or not the CUSTOMER took an
examination on the CME PROGRAM, and if so, the examination
grade and certification fee paid; and
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(iv) detailed information to substantiate any claim for a bad debt
credit, as described in Appendix 3.
Submission of an activity report will be deemed to be an official
certificate of LICENSEE that the facts set forth in the activity report
are complete and accurate.
6.3 (a) LICENSEE shall maintain complete and accurate records of all
transactions involving the CME PROGRAMS for a minimum of two months
and shall provide such information, in addition to that required in
Section 6.2, as LICENSOR may reasonably request to verify the
accuracy of the monthly activity reports. In addition, LICENSEE
agrees to provide such other information as LICENSOR may reasonably
request from time to time regarding the subject matter of this
AGREEMENT.
(b) LICENSOR shall have the right, at its sole expense, upon reasonable
notice and during normal business hours, to inspect LICENSEE's
records relating to the subject matter of this AGREEMENT. In the
event that LICENSEE has underpaid LICENSOR by more than five percent
(5%) for any month, then LICENSEE shall pay the costs incurred by
LICENSOR for such inspection.
(c) Each party will hold the records and documents required or produced
under this AGREEMENT, including the contents of activity reports but
excluding LICENSOR PROPRIETARY INFORMATION (which is subject to
Section 15.7 below), in confidence and will not disclose such
records or documents to third parties without the other party's
prior written consent, except to their respective accountants,
attorneys, accrediting agencies, or others as required by law.
6.4 At LICENSEE's request, LICENSOR shall use reasonable efforts to notify (a)
recent recipients of continuing medical education credits from LICENSOR
and (b) recent recipients of the degree of Doctor of Medicine from the
Boston University School of Medicine, of the availability of the CME
PROGRAMS from LICENSEE, subject to the availability of current address
information and reimbursement of the costs of such notifications by
LICENSEE. The parties shall reasonably agree in advance upon the sums that
LICENSEE shall reimburse LICENSOR for the costs of such efforts.
ARTICLE 7 - WARRANTIES
7.1 LICENSOR hereby represents and warrants to LICENSEE as follows:
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(a) LICENSOR is a corporation duly organized and validly existing under
the laws of the Commonwealth of Massachusetts, and has the power and
authority to execute and deliver this AGREEMENT and to carry out the
transactions contemplated hereby. This AGREEMENT constitutes a valid
and binding obligation of LICENSOR, enforceable in accordance with
its terms;
(b) To the best of LICENSOR's knowledge, there are no actions, suits,
investigations or proceedings pending or threatened against LICENSOR
before any court, arbitrator or governmental body, and there are no
judgments or orders of any governmental authority applicable to
LICENSOR, which assert the invalidity of this AGREEMENT or seek to
prevent any of the transactions contemplated hereby;
(c) LICENSOR warrants that the INFORMATION furnished under ARTICLE 3,
was formulated with a reasonable standard of care and in conformance
with professional standards.
7.2 LICENSEE hereby represents and warrants to LICENSOR as follows:
(a) LICENSEE is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware, and has the
power and authority to execute and deliver this AGREEMENT and to
carry out the transactions contemplated hereby. This AGREEMENT
constitutes a valid and binding obligation of LICENSEE, enforceable
in accordance with its terms.
(b) To the best of LICENSEE's knowledge, there are no actions, suits,
investigations or proceedings pending or threatened against LICENSEE
before any court, arbitrator or governmental body, and there are no
judgments or orders of any governmental authority applicable to
LICENSEE, which assert the invalidity of this AGREEMENT or seek to
prevent any of the transactions contemplated hereby;
(c) All services performed by LICENSEE hereunder shall be performed in a
timely and professional manner.
7.3 EXCEPT AS EXPRESSLY STATED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
REPRESENTATION OR WARRANTY BY LICENSOR WITH RESPECT TO THE QUALITY,
CONDITION, USEFULNESS, DESIRABILITY, MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE OF THE INFORMATION, OR ANY OTHER MATTER WHATSOEVER.
EACH PARTY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY TO ANY
PERSON OTHER THAN THE OTHER PARTY. REFERENCE IS MADE TO SECTION
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3.3 FOR A STATEMENT OF LICENSOR'S EXCLUSIVE OBLIGATION WITH RESPECT TO ANY
BREACH OF WARRANTY OR MISREPRESENTATION WITH RESPECT TO THE INFORMATION.
ARTICLE 8 - INJUNCTIVE RELIEF
8.1 LICENSEE acknowledges that any use, duplication, distribution, disclosure,
or modification of any INFORMATION, LICENSED MARKS, or LICENSOR
PROPRIETARY INFORMATION in violation of this AGREEMENT will give rise to
irreparable injury to LICENSOR, which will not be adequately compensated
by monetary damages. Accordingly, LICENSEE agrees that LICENSOR shall be
entitled to seek and obtain injunctive relief against the breach or
threatened breach of LICENSEE's obligations with respect to the
INFORMATION, LICENSED MARKS, and LICENSOR PROPRIETARY INFORMATION, in
addition to any other legal remedies which may be available.
ARTICLE 9 - INFRINGEMENT
9.1 LICENSOR hereby agrees to defend any claims or actions brought against
LICENSEE in the United States by third parties asserting that any of the
INFORMATION as furnished by LICENSOR to LICENSEE hereunder constitutes an
infringement of any United States copyright or other intellectual property
right under United States law, subject to the following conditions:
(a) LICENSEE shall promptly notify LICENSOR of the infringement claim or
action, and shall provide such assistance in the defense thereof as
may reasonably be requested; and
(b) LICENSOR shall have the exclusive right to control the defense,
including settlement, of the infringement claim or action.
LICENSOR shall pay any monetary award entered in a final judgment in such
action to the extent such award is adjudged to arise from such
infringement.
9.2 Should any part of the INFORMATION or materials provided by LICENSOR
hereunder become, or in LICENSOR's opinion be likely to become, the
subject of any infringement claim, LICENSOR may elect to do one of the
following: procure the right to continue to
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make the INFORMATION or materials available, modify same to make them
non-infringing, or cease making the affected CME PROGRAM available to
CUSTOMERS or otherwise cease such activities as may be claimed to give
rise to infringement. LICENSEE shall provide such cooperation as LICENSOR
may reasonably request to accomplish the foregoing.
9.3 LICENSOR shall have no obligation under this ARTICLE 9 to the extent that
an alleged infringement claim arises out of any addition to or
modification of the INFORMATION, or other act or omission, by LICENSEE or
any of its agents or employees.
9.4 LICENSOR's obligations under this ARTICLE 9 are its exclusive obligations
with respect to any infringement or alleged infringement of any copyright
or other intellectual property right of third parties.
ARTICLE 10 - INDEMNIFICATION: LIMITATION OF LIABILITY.
10.1 Each party agrees to indemnify, defend, and hold the other party harmless
from and against any and all claims, actions, losses, damages, and
expenses, including reasonable attorneys' fees, to the extent caused by
its negligence, misconduct, or breach of this AGREEMENT.
10.2 In no event shall either party be liable for any consequential,
incidental, special or indirect damages, whether in contract, tort or
otherwise, including but not limited lost profits, loss of business, or
other economic loss, unless such damages arise out of intentional
misconduct, fraud, or conduct punishable as a criminal offense.
ARTICLE 11 - CUSTOMERS
11.1 LICENSEE shall place the following terms and conditions, together with
such other material as LICENSOR shall approve, on the entry page into the
CME PROGRAMS, and shall ensure that the CUSTOMERS acknowledge and agree to
such terms and conditions prior to gaining access to the CME PROGRAMS:
(a) The information provided in these CME Programs is intended solely
for the continuing medical education needs of healthcare
professionals. Individuals should not rely upon any information
provided in these CME Programs.
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(b) THE CME PROGRAMS ARE OFFERED "AS IS." HEALTHGATE DATA CORP. AND
BOSTON UNIVERSITY, JOINTLY AND INDIVIDUALLY, DISCLAIM ALL WARRANTIES
AND REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE CME
PROGRAMS AND THE INFORMATION CONTAINED THEREIN, INCLUDING WITHOUT
LIMITATION ANY AND ALL WARRANTIES OF TITLE, NONINFRINGEMENT,
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT
LIMITING THE FOREGOING, NEITHER ENTITY SHALL BE RESPONSIBLE FOR ANY
INACCURACY OR OMISSION IN THE INFORMATION CONTAINED IN THE CME
PROGRAMS, AND NEITHER SHALL HAVE ANY LIABILITY WHATSOEVER OF ANY
KIND RESULTING FROM ANY CLAIM OR ACTION ARISING OUT OF THE USE OF
THE CME PROGRAMS.
(c) HealthGate Data Corp. will grade the examinations that form a part
of the CME Programs in accordance with Boston University's
instructions. HealthGate Data Corp. shall have no responsibility
for, or any liability from, the improper grading, tabulation or
administration of any examination, provided that it has complied in
all respects with Boston University's examination instructions and
has not otherwise committed gross negligence or willful misconduct.
HealthGate Data Corp. will relay your graded examination to Boston
University but shall have no responsibility to report any
examination grade to any regulatory agency, medical association, or
other third party. Boston University reserves final authority over
the issuance of continuing medical education credit.
(d) In no event shall either HealthGate Data Corp. or Boston University
be liable for any consequential, incidental, special or indirect
damages, whether in contract, tort or otherwise, including but not
limited to lost profits, loss of business or other economic loss.
(e) No person shall have any right to use, duplicate in hard copy,
machine readable form or any other form, distribute, modify, or
create derivative versions of any CME Program, except as necessary
to complete the CME Program for purposes of obtaining continuing
medical education credit. Any violation of this provision shall be
prosecuted to the fullest extent of the law.
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ARTICLE 12 - INSURANCE
12.1 LICENSEE agrees to obtain and maintain in effect the following insurance
provided by a company or companies acceptable to LICENSOR:
(a) Comprehensive General Liability Insurance naming Trustees of Boston
University as an additional insured, subject to a combined single
limit of at least $1,000,000 each occurrence and $1,000,000 in the
aggregate for bodily injury and property damage. The aggregate
limits shall be maintained continuously during the life of this
AGREEMENT. This insurance shall include coverage for Independent
Contractors, covering operations of any and all subcontractors and
sub-subcontractors, and shall contain a Broad Form General Liability
endorsement.
(b) Errors and Omissions Insurance subject to a limit of at least
$1,000,000 each occurrence and $1,000,000 in the aggregate.
(c) Umbrella liability insurance subject to a limit of at least
$1,000,000 providing excess coverage over that specified in
sub-paragraph (a) above.
(d) Crime Insurance, including coverage for Employee Dishonesty,
Premises Coverage and Transit Coverage.
LICENSEE shall cause the LICENSOR to be named as an additional insured
under all liability insurance to the extent of its interests hereunder.
12.2 LICENSEE shall provide standard XXXXX certificates of the foregoing
insurance, in triplicate, to the LICENSOR upon execution of this AGREEMENT
and thereafter within thirty (30) days after the anniversary dates of the
insurance. Such certificates shall show any special coverage or provisions
required and shall provide for not less than thirty (30) days' prior
written notice to the LICENSOR in the event of cancellation, material
change, or intent not to renew.
ARTICLE 13 - DURATION
13.1 This AGREEMENT shall become effective on April 1, 1996 and shall terminate
on June 30, 1997, unless it is sooner terminated by either party pursuant
to ARTICLE 14 or unless it is renewed.
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13.2 This AGREEMENT shall be automatically renewed on an annual basis unless
one party advises the other in writing at least ninety (90) days prior to
the end of the original or any renewal period that it elects not to renew
this AGREEMENT, or wishes to renegotiate the terms of this AGREEMENT.
ARTICLE 14 - TERMINATION
14.1 Either party shall be entitled to terminate this AGREEMENT for cause by
giving written notice in writing to the other party that the other party
has failed to meet one or more of its obligations under this AGREEMENT. In
such case, the other party will have thirty (30) days to meet the stated
obligation(s) and, if it does not do so, this AGREEMENT will automatically
terminate effective the last day of the thirty (30) day period.
14.2 Either party may terminate this AGREEMENT with or without cause at any
time by giving not less than ninety (90) days' written notice of
termination to the other party.
14.3 In connection with the termination of this AGREEMENT by either party,
LICENSEE shall prominently post notices to CUSTOMERS of the termination of
availability of the CME PROGRAMS on its Web site and/or such other
locations, at such times, and in such manner as LICENSOR shall reasonably
request. In the case of termination pursuant to Section 14.2, such notice
to CUSTOMERS shall be posted no later than five (5) business days after
the notice of termination has been given or received by LICENSEE, as the
case may be.
14.4 Upon termination of this AGREEMENT, all rights and obligations under this
AGREEMENT will cease, except those rights and obligations that arose prior
to termination, such as the obligation by LICENSEE to make the payments to
LICENSOR required under this AGREEMENT, and those rights and obligations
whose intended benefit was not or could not be fully obtained prior to
termination, including without limitation the parties' indemnification
obligations, which shall survive.
14.5 Upon termination of this Agreement, each party shall be prohibited from
using any portion of the INFORMATION, LICENSED MARKS, or materials
supplied to it by the other party under the terms of this AGREEMENT and
shall, as directed by the other party, either return all copies of same to
the other party or erase, destroy, or eliminate them. Without
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limiting the foregoing, immediately upon termination, LICENSEE shall erase
from computer magnetic media, and make unsuitable for the uses licensed
under this AGREEMENT, all INFORMATION received from LICENSOR.
ARTICLE 15 - MISCELLANEOUS PROVISIONS
15.1 Neither party shall be liable for delays or failures in performance under
this AGREEMENT to the extent resulting from causes beyond the reasonable
control of such party, and the times for performance under this AGREEMENT
shall be extended by the duration of any such inability to perform,
provided that such party has promptly notified the other party of the
existence of such cause and has used its best efforts to mitigate its
consequences. Such causes shall include Acts of God, lockouts, labor
actions, riots, acts of war, epidemics, government regulations
subsequently imposed, fire, earthquakes, or other natural disasters. In
the event that one party's performance is delayed for thirty (30) or more
days in accordance with this Section, the other party shall have a right
to terminate this AGREEMENT by giving written notice to such
non-performing party.
15.2 Neither party shall grant any assignment, sublicense, or other transfer of
any of its rights or obligations under this AGREEMENT, by operation of law
or otherwise, without the prior written approval of the other party, which
shall not be unreasonably withheld, and any such assignment, sublicense,
or other transfer without such approval shall be void. It is understood,
however, that LICENSEE's provision of online interactive searching, access
and review of the CME PROGRAMS to LICENSEE's CUSTOMERS in accordance with
this AGREEMENT shall not be deemed to be a sublicense or other transfer of
rights by LICENSEE.
15.3 This AGREEMENT sets forth the entire understanding of the parties on the
subject matter hereof, and supersedes all previous oral or written
representations or agreements relating to the rights and duties provided
for herein.
15.4 Except as expressly provided herein with respect to Appendices 1 and 2,
this AGREEMENT may not be modified, amended, or waived except by written
agreement of both parties. The failure of either party to enforce or
exercise, at any time or for any period of time, any term of this
AGREEMENT does not constitute, and shall not be construed as, a waiver of
such term and shall in no way effect that party's later right to enforce
it.
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15.7 During the term of this AGREEMENT and for a period of three (3) years
following its termination, LICENSEE shall regard and preserve as
confidential any and all LICENSOR PROPRIETARY INFORMATION. LICENSEE shall
not, without first obtaining the LICENSOR's written consent, disclose to
any person, firm or enterprise or use for its own benefit any LICENSOR
PROPRIETARY INFORMATION.
During the term of this AGREEMENT and for a period of three (3) years
following its termination, LICENSOR agrees that, unless it has obtained
LICENSEE's prior written consent, LICENSOR shall keep confidential any
materials or information designated by LICENSEE in writing as
"Confidential Information" at the time of its delivery to the LICENSOR and
which is not LICENSOR PROPRIETARY INFORMATION, and shall prevent
disclosure of the same to any person, firm or enterprise other than
for purposes specifically relating to the LICENSOR's permitted uses.
Notwithstanding the foregoing, the LICENSOR shall not be required to take
any steps to keep confidential and prevent disclosure of any such
information other than those steps the LICENSOR normally takes to protect
its own similar confidential information.
Both LICENSOR and LICENSEE agree not to disclose this AGREEMENT or the
terms of this AGREEMENT, to third parties, except to their respective
accountants, attorneys, accrediting agencies, or others as required by
law.
15.8 The relationship of the parties is that of independent contractors, and no
agency, employment, partnership, joint venture, or any other relationship
is created by this AGREEMENT.
15.9 This AGREEMENT shall be interpreted and enforced in accordance with the
laws of the Commonwealth of Massachusetts excluding that body of law known
as conflicts of laws.
- Page 17 of 18 -
IN WITNESS WHEREOF LICENSOR AND LICENSEE have caused this AGREEMENT to be
executed and delivered by their duly authorized representatives.
HEALTHGATE DATA CORP. TRUSTEES OF BOSTON UNIVERSITY
(LICENSEE) (LICENSOR)
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------- -------------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxxx
------------------------- -------------------------
Title: Executive Vice-President Title: Assistant Treasurer
------------------------- -------------------------
- Page 18 of 18 -
