This Agreement is made and entered into this 5th day of January, 1999 by
and among C. Everett Koop, M.D. ("Koop") and Empower Health Corporation, a Texas
WHEREAS Koop has/is assisting EHC in the development of its consumer-
centric healthcare management information system for use on EHC's web site
drkoop.com, and elsewhere, and, which is specifically set forth in EHC's
Business Plan, dated October 6, 1997;
NOW THEREFORE for and in consideration of the premises, and the mutual
covenants and promises herein set forth, the parties hereto hereby agree as
1. Term and Termination: The term of this Agreement will begin effective
on the date hereof and will extend for an initial term of five years. Unless
otherwise terminated as provided for below, the Agreement will automatically
renew for consecutive three-year terms. The Agreement may be terminated by
either party upon written notice 120 days before the expiration of any Term.
This Agreement may also be terminated by either party in the event of a breach
or default by the other party. Provided termination is not the result of a
breach or default by EHC, EHC shall have the right on a non-exclusive basis for
three years following termination to rebrand and sell approved Products bearing
the Koop Name (the "Rebranding Period"). In the event that termination occurs as
a result of a breach or default by EHC all rights to use the Koop Name shall
cease immediately upon termination.
2. Right To Use Services: During the Term and subject to all other
provisions of this Agreement, Koop agrees that EHC shall have the right to use
the Koop name, image or likeness (hereinafter the "Koop Name") in connection
with the Company's healthcare related software services and products
(collectively the "Products") in accordance with Clause 5 below.
3. Fees and Payment: For all rights and privileges and services
rendered or provided for hereunder by Koop, EHC shall pay Koop a royalty on
all EHC's Revenues as reflected on EHC's Profit and Loss Statement
(thereinafter "EHC's Revenues"). EHC will pay Koop a 2% royalty on all
Revenues received from all gross revenues, including, but not limited to,
sales of Direct to Consumer advertising revenues, hospital partnership
programs, "Dr. Koop's Community" software, products and services. The 2%
royalty will be paid to Koop for the commercial life of the aforementioned
products or until termination of this Agreement and expiration of the
Rebranding Period, if any. Future EHC products which bear the Koop Name shall
pay a royalty between 2% and 4% of Net Sales. For future EHC products, the EHC
Board of Directors will determine the actual royalty percentage paid to Koop,
not less than 2%.
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and not more than 4% in its reasonable discretion. Said royalties will be
paid quarterly with a lag term of less than ninety days.
4. Competitive Protection: Effective as of the date of this Agreement and
continuing throughout the Term, Koop agrees that except as provided for herein,
Koop will not render services in the form of advertising and/or publicizing of
any items, products or services which are directly competitive with EHC's
Products sold pursuant to this Agreement (hereinafter collectively the
"Competitive Products") nor will Koop permit or authorize the use of the Koop
name and/or likeness (photograph and/or drawing), voice, signature and/or
endorsement in connection with any such Competitive Products, except as may be
used for the non-profit activities of the Koop Institute.
(i) Dr. Koop shall not participate in the development, production
or promotion of any Competitive Products during the term of this Agreement or
any renewal term or during the rebranding period, if any.
5. Right of Review: The following elements of each Product shall be
subject to Koop's prior review and written approval, which approval shall not be
unreasonably withheld and shall be rendered within ten working days of receipt
of the element of the Product. Koop shall have the right to delegate his
approval rights hereunder to another person in consultation with and after
notice to EHC. During the term of the Agreement, should Koop die, the executor
of his estate will manage all rights, royalties and any other considerations
related to this Agreement.
(i) Content and format, including manuscripts and other written
materials included with the Products, including drafts, and the final version.
(ii) Extent and content of all medical and technical information.
(iii) Professional medical consultants and advisors.
(vi) Means of advertising, promoting and selling the product,
including the Koop Name.
(vii) All advertising and promotional materials created, developed or
used in connection with the Products.
(viii) Any use of the Koop Name.
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(ix) Any use not expressly contemplated by this Agreement.
EHC and Koop shall work together to establish systems and procedures for
updating the Products based on advances in the field of medicine.
6. Default Provisions:
(a) In the event that either party ("Defaulting Party")
(i) Materially or repeatedly defaults in the performance of
any of its duties or obligations set forth in this Agreement and such
default is not substantially cured within thirty (30) days after
written notice is given by the other party specifying the default; or
(ii) Defaults in the payment of any amount due to the other
party under this Agreement and does not cure the default within thirty
(30) days after written notice is given by the other party specifying
the default; and
(iii) Provided, that upon a default under Section 6(i) and/or
(ii) by one party under this Agreement, the cure period for the next
default by such party shall be reduced (but not below zero days) by
ten (10) days.
Then the other party may, by giving written notice to such effect to
the Defaulting Party, terminate this Agreement as of the date
specified in such notice of termination.
(b) Notwithstanding anything to the contrary herein contained, the
termination of the Agreement shall not relieve the parties of their obligations
to make payments previously earned.
7. Obligations Limited to Payments: The obligations to Koop hereunder
shall be fully performed and discharged as stipulated in Section 3, except for
those obligations that arise pursuant to the provisions for indemnifications
contained in Section 9. It is understood that Koop is not an employee of EFIC
and shall not be entitled to any rights or benefits granted to employees of EHC
and by reason of the rendering hereunder of services by Koop.
8. Covenant of EHC: EHC covenants and agrees that it will not knowingly
permit, do or commit any act or thing that would degrade, tarnish or deprecate
Koop or the Koop public image in society or standing in the community, or
9. Indemnity: EHC agrees to indemnify and hold harmless Koop, his
employees, assignees, and heirs against any and all claims, damages, liabilities
(including, but not limited to, liability for personal injury and liability for
breach of confidentiality), costs and expenses, including without limitation,
reasonable legal fees and costs arising out of the use of any material furnished
by EHC in connection with the services performed, or resulting from any patient
or third party action of any kind, or resulting in any way from the sale of
Products pursuant to this
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Agreement, or incurred for or by reason of the breach of EHC of any of the
obligations, warranties, agreements, covenants or representations herein
contained. Koop shall provide prompt written notice of any claim hereunder and
EHC shall have the right to defend same.
10. Notices: Any notice or other communication (including payment
hereunder) required or permitted to be given hereunder shall be in writing and
shall be hand delivered or sent next-day delivery by a company where a receipt
is given to the address as follows:
To EHC: Empower Health Corporation
8920 Business Park Drive
Austin, TX 78759
To Koop: C. Everett Koop, M.D.
Koop Institute at Dartmouth
Hanover, NH 03755
C. Everett Koop, M.D.
3 Ivy Pointe Way
Hanover, NH 03755
Any such notice, direction or other instrument aforesaid, if delivered,
shall be deemed to have been given or made on the date on which it was delivered
or if sent next-day delivery shall be deemed to have been given or made on the
day following the day on which it was sent provided that any one of the parties
hereto may change its address by written notice to the other according to the
terms hereof and in such event this paragraph shall be deemed to be amended
11. Informed Consent, Confidentiality and Security: EHC represents and
warrants that when and if it introduces a program identified here as "Personal
Medical Records" that it will obtain appropriate and fully informed patient
consent to the receipt, retention, use and transfer of that patient's personal
or medical data and that such informed consent complies with all applicable
federal, state and local laws and regulations. EHC further represents and
warrants that it shall take reasonable precautions to assure accuracy of and to
protect against negligent disclosure of and unauthorized access to all patients'
personal and medical data.
12. Other Representations and Warranties:
By Koop: EHC may apply for trademarks which incorporate the Dr. Koop
name. Koop represents and warrants that he has the right to enter into this
Agreement and that he is free to grant the rights granted herein.
By EHC: EHC represents and warrants that:
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1. It has the right to enter into this Agreement and that it is free
to grant the rights granted herein.
2. The Products will not infringe the patent, copyright, trade
secret, or property rights of any third party.
3. All aspects of the product, distribution and promotion of the
Products shall comply with all applicable laws and regulations.
4. It is not a party to any agreement that will be breached by or
that prohibits it entering into or performing this Agreement.
13. Trademark Assignment and License: EHC represents and warrants that it
has filed applications based on actual use with the United States Trademark
Office to register various marks, the status of which are as follows:
(i) PERSONAL MEDICAL RECORDS: the United States Trademark Office
pending number is 75/404,948;
(ii) DR. KOOP'S COMMUNITY: application filed with no pending number
assigned as of the execution of this Agreement; and
(iii) drkoop.com: application filed with no pending number assigned
as of the execution of this Agreement.
All of the above, hereinafter the "Trademarks," are referenced for the
good and services described herein. Upon termination of the Agreement and
rebranding period (if any), EHC shall assign its right, title and interest in
the Trademarks including the goodwill contained therein to Koop and any other
marks registered by EHC pursuant to this Agreement. Except as set forth
herein, EHC acknowledges that it has no rights in the Trademarks and that
nothing contained in this Agreement or in any other document shall vest any
ownership rights in the Koop name.
(a) Ownership and Publicity: EHC does not and may not claim any
right, title or interest in or to Koop's name or likeness, and acknowledges that
all rights therein are and remain the property of Koop.
(b) Insurance: Prior to sale, promotion or distribution of any
Product other than reasonable, limited test marketing, EHC shall secure all
necessary and customary insurance, including a standard comprehensive general
liability insurance policy providing standard product liability protection,
directors and officers insurance and errors and omissions insurance listing Koop
as a named insured. Such insurance shall be in a form reasonably acceptable to
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Koop and shall require the insurer to give Koop at least thirty (30) days' prior
written notice of any modifications or cancellations.
(c) Entire Agreement: This Agreement constitutes the complete and
exclusive statement of the agreement between Koop and EHC with respect to the
subject matter herein set forth and supersedes all prior agreements by and
between the parties.
(d) Amendments: This Agreement may not be amended, altered or
terminated except in writing.
(e) Inurement: This Agreement shall be binding upon the parties
hereto and their respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
(f) Language: The language used in this agreement shall be deemed to
be language chosen by the parties thereto to express their mutual intent and no
rule of strict construction against any party shall apply to any term or
(g) Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
(h) Termination: Upon any termination and except as provided for
herein, all rights to use Dr. Koop's name and likeness shall terminate.
(i) Arbitration: Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator in a location to be agreed to by the parties,
and judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof and shall not be appealable.
(j) Gender: Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders and vice versa, as the context may require.
(k) Counterparts: This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which taken together shall
constitute but one agreement.
15. Records: EHC shall keep company books and accounts in accordance with
generally accepted accounting practices and grants to Dr. Koop the right, upon
reasonable notice, to examine EHC's books of account.
16. Assignment and Change of Control: Neither party may assign its rights
and obligations under this Agreement without the prior written consent of the
other. In the event of a change of control as hereinafter defined, this
Agreement shall terminate and all rights in the
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Koop Name granted hereunder immediately revert to Koop. A Change of Control
shall be defined and agreed to by the Parties hereto.
IN WITNESS WHEREOF THIS AGREEMENT IS EXECUTED AS OF THE DATE FIRST WRITTEN
Empower Health Corporation
\s\ C. Everett Koop \s\ Donald W. Hackett
C. Everett Koop, M.D. Donald W. Hackett, President
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DESCRIPTION: CONSULTING LETTER AGREEMENT DATED 10/01/97
October 1, 1997
C. Everett Koop, M.D.
Personal Medical Records, Inc.
5924 Maplewood Park Place
Bethesda, MD 20814
Dear Dr. Koop,
This letter shall reduce to writing our various conversations regarding your
efforts as a consultant for Personal Medical Records, Inc. (PMRi). It is
understood by the parties to this agreement that this agreement is separate and
apart from the likeness agreement between you and PMRi.
This agreement, when fully executed, shall obligate PMRi and yourself, as
1. TERM OF AGREEMENT: The term of this consulting agreement shall be for three
years starting on October 1, 1997 effective through September 30, 2000.
2. SERVICES TO BE RENDERED BY DR. C. EVERETT KOOP (Koop):
a. Koop shall be a Director and assume the position of Chairman of the
Board of PMRi for the term of this agreement.
b. Koop shall help organize and manage PMRi's Medical Advisory Board.
c. From time to time, at the request of PMRi, Koop shall be asked to speak
at health, medical or computer conferences and at PMRi client's and
potential client's headquarters; in such cases, Koop shall have the
option to refuse any and all such requests.
Page 1 of 3
d. Koop shall have the right to review and approve content developed by
third parties for use by PMRi in their business development.
a. For services rendered, Koop shall be paid a consulting fee as follows:
October 1997 through September 1998 $100,000
Payable monthly as follows:
October 1997 - August 1998 $8333.33
September 1998 $8333.37
October 1998 through September 1999 $135,000
Payable monthly as follows:
October 1998 - September 1999 $11,250.00
October 1999 through September 2000 $150,000
Payable monthly as follows:
October 1999 - September 2000 $12,500.00
Monthly fees will be paid from this agreement; no invoices will be
sent by Koop to PMRi.
Payment will be made to C. Everett Koop and mailed to:
Dr. C. Everett Koop
5924 Maplewood Park Place
Bethesda, MD 20814
4. EXPENSES: Travel and lodging expenses shall be reimbursed monthly; Koop
shall provide receipts for all expenses when available; expenses shall be
submitted to PMRi and paid monthly to Koop.
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5. This agreement constitutes the entire agreement between the parties and
supersedes any and all previous consulting agreements written or oral.
6. This agreement shall be construed under the laws of the State of Texas.
Agreed to and Accepted By:
\s\ C. Everett Koop Date October 1, 1997
C. Everett Koop
Agreed to and Accepted By:
\s\ Donald Hackett Date October 1, 1997
Page 3 of 3
DESCRIPTION: LICENSE AGREEMENT DATED 7/13/98
THIS LICENSE AGREEMENT ("Agreement") is made and entered into this 13th day of
July, 1998 (the "Effective Date'), by and between Empower Health Corporation,
located at 3006 Longhorn Boulevard, Suite 105, Austin, Texas ("Empower Health
Corporation"), and Maltum Information Services, Inc., located at 3200 Cherry
Creek South Drive, Suite 300, Denver, Colorado 80209 ("Multum"), a wholly-owned
subsidiary of Cerner Corporation ("Cerner").
Empower Health Corporation is in the business of providing patient-centric,
health care tools via the Internet to the consumer market. Multum is in the
business of providing expert clinical information services to the healthcare
industry. The parties desire to enter into a non-exclusive relationship whereby
Empower Health Corporation will embed Multum's SDK drug information service
together with all Updates (as defined below) (the "Service"), described in
Exhibit A, as an integral part of Empower Health Corporation's Dr. Koop's
Community(TM) ("Dr. Koop's Community"), described in Exhibit B (and all future
releases and modifications), which will be accessible via the Internet (the
"Integrated Service") and made Available to Empower Health Corporation's
licensed users ("End-Users"). The "Integrated Service" shall include the
Service as made available through Dr. Koop's Community.
In consideration of the foregoing, the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
The initial three (3) year term ("Initial Term") of this Agreement will
commence on the Effective Date and will automatically renew for two (2)
successive one (1) year periods thereafter ("Renewal Terms"), unless prior
written notice of termination is provided by either party not less than
sixty (60) days prior to or thirty days (30) after the end of the then
current term. The Initial Term and any Renewal Terms are referred to
herein as the "Term."
2. LICENSE GRANT
A. Multum hereby grants to Empower Health Corporation a non-exclusive non-
transferable license to use the Service in the United States during the
Term of this Agreement in the manner contemplated by this Agreement.
This license shall include but not be limited to the right to: (i) copy
the Service for use and distribution by Empower Health Corporation to
End-Users, solely as permitted by this Agreement; (ii) use the Service
for internal purposes in a non-clinical setting for backup, archival,
support, testing, training and demonstration purposes; (iii) install
the Service through "Dr. Koop's Community" for each Empower Health
Corporation End-User; (iv) license/sublicense the Service to Empower
Health Corporation's End-Users; (v) market and demonstrate the Service
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Empower Health Corporation License Agreement 7/16/98 1
Users or potential End-Users of "Dr. Koop's Community," and (vi)
advise End-Users or potential End-Users to the availability of the
Service through "Dr. Koop's Community."
The Service is for use by Empower Health Corporation only as
contemplated by this Agreement. Empower Health Corporation shall not,
other then as specifically contemplated by this Agreement, knowingly
cause or permit others to copy, duplicate, redistribute, loan, rent,
retransmit, publish, license or sublicense or otherwise transfer, or
commercially exploit, the Service or the Integrated Service, in whole
or part. Empower Health Corporation shall not, and shall not knowingly
cause or permit others to, prepare derivative works or incorporate the
Service, in whole or part, in any other system or work or reverse
engineer, decompile, disassemble, decrypt, translate, alter, adapt or
modify the Service or the Integrated Service, in whole or part, other
than as is specifically contemplated by this Agreement.
B. The parties acknowledge that the Integrated Service is made available
freely on-line via the Internet and that End-Users may access the
Integrated Service without restriction (subject to the provisions of
Section 3 herein).
C. The parties agree that this license grant does not extend for use of
the Service as part of a bundled package sold by Empower Health
Corporation ("Interactive Care Community," or such other name as
Empower Health Corporation may call it) to any entity, relative to "Dr.
Koop's Community" co-branded web site sales (or a similar bundled
package sale). The parties agree to mutually negotiate in good faith a
separate fee and payment structure that will cover a license grant for
use of the Service as part of an "Interactive Care Community." In the
event the parties are unable to agree on a mutually acceptable fee and
payment structure, access to the Service on "Dr. Koop's Community"
shall be deleted as part of such bundled package sale.
3. RESPONSIBILITIES OF EMPOWER HEALTH CORPORATION
Subject to the terms and conditions stated herein, Empower Health
A. Pay all fees set forth in Schedule II attached hereto, along with any
taxes relating thereto.
B. Provide to and support the use of (subject to Multum's obligation as
set forth in Schedule I of this Agreement) the Integrated Service by
Empower Health Corporation End-Users during the term of this Agreement
at its own expense in accordance with Empower Health Corporation's
standard terms and conditions applicable to End-Users.
C. Include the Service as part of the Integrated Service in sales to all
End-Users of "Dr. Koop's Community," in exchange for payment of the
fees set forth in Schedule II of this Agreement; provided, however,
that Multum acknowledges
Empower Health Corporation License Agreement 7/16/98 2
that any End-User not wishing to use the Service may request Empower
Health Corporation to exclude the Service from the license or turn off
D. Provide to Multum quarterly usage (including number of users and number
of times used), marketing and demographic information ("Usage Data')
for End-Users, of the Integrated Service. Usage Data is defined as the
number of interactions with the Service and the number of data sheets
per drug requested by End-Users. Both parties agree that disclosure of
Usage Data shall be subject to all applicable laws related to privacy
E. Provide to Multum identification of any End-User usage pattern for the
Integrated Service that is an outlier to the average usage pattern.
F. Ensure that the license or use agreements to which End-Users adhere
("On-Line Service Agreement") shall provide for the use of the
G. Empower Health Corporation will receive from Multum delivery of Service
drug updates, enhancements, material clinical updates and new versions
("Updates"). Empower Health Corporation is responsible for prompt
delivery of such Updates to End-Users.
H. Include in all forms of the Integrated Service, whether it be displayed
electronically or printed, the Service text without modification and in
its entirety as provided to by Multum,
I. Include Multum's copyright notice on the first page of any text or
reports printed that involve data or functionality from the Service, as
follows: "Copyright (appropriate year) Multum Information Services,
J. Provide to the End-User, upon first use, the language found in Exhibit
C ("End-User Service Agreement") regarding Multum's warranty of the
Service and limitation of damages, or such language as is modified from
time to time by Multum. Empower Health Corporation shall have the right
to approve and/or modify such language insofar as it refers to Empower
Health Corporation's products or services. Any such modifications shall
be made only with the prior written approval of Multum. The parties
agree that the language to be included shall clearly specify that the
Service and "Dr. Koop's Community" are separate products provided by
K. Provide to the End-User the following language ("End-User Service
Advisory"), at the bottom of each page of the Service, in connection
with any use of the Integrated Service.
"Every effort has been made to ensure that the information
provided by Multum is accurate, up-to-date, and complete, but no
guarantee is made to that effect. In addition, the drug
information contained herein may be time sensitive
Empower Health Corporation License Agreement 7/16/98 3
and should not be utilized as a reference resource beyond date
Multum's drug information does not endorse drugs, diagnose
patients, or recommend therapy. Multum's drug information is a
reference resource designed as supplement to, and not a
substitute for, the expertise, skill, knowledge and judgment of
healthcare practitioners in patient care. The absence of a
warning for a given drug or drug combination in no way should be
construed to indicate that the drug or drug combination is safe,
effective or appropriate for any given patient.
Multum Information Services, Inc. does not assume any
responsibility for any aspect of healthcare administered with the
aid of information Multum provides.
Copyright 1998 Multum Information Services, Inc. The information
contained herein is not intended to cover all possible uses,
directions, precautions, warnings, drug interactions, allergic
reactions, or adverse effects. If you have questions about the
drugs you are taking, check with your doctor, nurse, or
L. Provide End-User warranties relating to those portions of the
Integrated Service as are comprised of "Dr. Koop's Community" and
warrant any work performed by Empower Health Corporation as required
under the terms of this Agreement .
M. Be responsible for all third-party license fees for software necessary
to run the Integrated Service, as may be required for proper
4. EXTERNAL COMMUNICATIONS AND MARKETING MATERIALS
All materials developed by Empower Health Corporation and/or Multum for
marketing, distribution, public relations and promotion of the relationship
with the other party, must first be approved by the other party, which
approval shall not be unreasonably withheld and provided in a mutually
agreeable format. Review of materials by both parties will occur within
ten (10) business days of receipt of the marketing materials by the other
party. All marketing materials referencing the Integrated Service for
distribution to End-Users shall be submitted to the other party for
approval prior to such distribution, which approval shall not be
unreasonably withheld. Multum will provide pre-approved marketing
materials and text which, if used by Empower Health Corporation in their
entirety, will not require further approval. All such materials shall be
deemed to have been received within three (3) days after mailing to the
address set forth in Section 14 below.
Empower Health Corporation License Agreement 7/16/98 4
The On-Line Service Agreement, purchase order and billing for the Integrated
Service will be between the End-User and Empower Health Corporation and Multum
shall have no liability or obligation to such End-User except as expressly
provided in this Agreement. Empower Health Corporation shall indemnify, defend
and hold Multum and its officers, directors, parent company and agents harmless
from any claims, liabilities, obligations. judgments, causes of actions, costs
and expenses (including reasonable attorney's fees) of an End-User relating to
such On-Line Service Agreement, purchase order or billing (unless such claims
relate solely to the Service and/or Multum's actions or omissions).
6. OWNERSHIP AND USE
A. This Agreement pertains to the license of rights to use software, and
does not provide for the sale or other transfer of title to software.
B. Empower Health Corporation has and will have exclusive title to and
ownership of all of its products, including "Dr. Koop's Community" and
of all of its sub-parts and components, and of all modifications,
alterations, customizations, or revisions thereof, and of all software,
source code, and trade secrets, and proprietary research, equations,
screens, techniques, methodology, analysis programming or know-how
C. Multum has and shall have exclusive title to and ownership of all of
its products, including the Service and of all of its sub-parts and
components, and of all updates, modifications, alterations,
customizations, or revisions thereof, and of all software, source code,
and trade secrets, and proprietary research, equations, screens,
techniques, methodology, analysis, programming or know-how thereof.
D. Each party retains all rights not expressly granted herein. Nothing in
this Agreement constitutes a waiver of either party's rights to its
property under U.S. Copyright laws, under any other federal or state
law, or under the laws of any other country or territory. Neither party
has any right, permission or license to use or disclose any of the
other party's products or confidential information, including "Dr.
Koop's Community," the Service or any sub-part, component, module,
modification or output thereof, or associated information or product,
other than as is expressly set forth in this Agreement or as is
subsequently agreed to by the parties in writing. This Agreement shall
not result in either party's being obligated to grant the other party
any other rights in any product, program, software or business entity.
7. WARRANTY, INDEMNITY AND DAMAGE LIMITATION
A. Warranty and Indemnity Regarding Licensed Software
1. Multum warrants that it has authority to grant Empower Health
Corporation a license to use the Service as contemplated by this
Agreement. Multum also warrants that it shall deliver the Service
Empower Health Corporation License Agreement 7/16/98 5
from the rightful claims of any third party for infringement of
U.S. patents, trademarks and copyrights.
2. Empower Health Corporation's exclusive remedy with respect of
breach of the foregoing warranties shall be that Multum will hold
Empower Health Corporation harmless and defend at Multum's own
expense, and will pay the costs and damages incurred by Empower
Health Corporation and/or made in settlement or awarded as a result
of, any action brought against Empower Health Corporation based on
an allegation of such infringement with respect to any item of the
Service. If Multum is notified promptly by Empower Health
Corporation in writing of any such action or allegation of
infringement, and if Multum shall have had sole control of the
defense of any such action and all negotiations for its settlement
3. Multum shall not have any obligation to Empower Health Corporation
under any provision in this Section 7.A if the alleged infringement
claim is (i) based upon the use of the Service in a manner or
environment, or for any purpose, for which Multum did not design or
license it or (ii) based on information incorporated into the
Service by Empower Health Corporation or (iii) the result of a
modification or addition made by Empower Health Corporation. Multum
disclaims all other liability for violation, misappropriation or
infringement of intellectual property rights, including but not
limited to incidental and consequential damages.
B. Software Warranty
1. Multum warrants that all services provided to Empower Health
Corporation shall be performed in a competent and workmanlike
manner and the Service as delivered to Empower Health Corporation
meets and shall continue to meet substantially all functionality
described herein as Exhibit A in all material respects and the
Service will be substantially free from defects in materials and
workmanship when operated in accordance with the documentation and
intended use as contemplated by this Agreement.
2. Empower Health Corporation warrants that all services provided to
End-Users shall be performed in a competent and workmanlike manner
and the Integrated Service as delivered to End-Users will perform
in accordance to documentation for as long as Empower Health
Corporation supports End-User.
C. Limitation of Damages
Except in the case of fraud or willful misconduct by a party, the
parties agree that in the event that either party brings a claim or
action against the other party arising out of the terms of this
Agreement, in no event shall either party be liable
Empower Health Corporation License Agreement 7/16/98 6
to the other party for special, punitive, exemplary, indirect,
incidental or consequential damages, whether or not such damages are
foreseeable, and irrespective of the theory or cause of action upon
which the damages might be based.
8. FORCE MAJEURE
Neither Empower Health Corporation nor Multum shall have the
responsibility for any delay or failure of performance resulting from
causes beyond its control and without its fault or negligence.
A. This Agreement and License shall terminate upon the earlier of:
1. Termination by either party in accordance with the provisions of
Section 9.B below; or
2. A party's failure to comply with any material provision of this
Agreement in which case termination shall be subject to the
provisions of Section 9.C below.
B. Either party may terminate this Agreement and the license granted
hereunder by giving written notice of the intended termination to the
other party in accordance with the provisions of Section 1 of this
Agreement. Giving written notice in accordance with the provisions of
Section 14 below shall effect such termination.
C. If either party fails or becomes unable to observe or perform a
material contractual obligation under this Agreement, the non-
defaulting party may give written notice to the non-performing party
specifying the material failure. The non-performing party shall have
thirty (30) days from the date the non-defaulting party notified it of
the material failure in which to cure the default or remedy the
inability to perform. If said party is unable to do so, the other party
may terminate this Agreement upon the expiration of the thirty (30) day
period by giving written notice of said termination in accordance with
the provisions of Section 14 below.
D. Upon termination of this Agreement by Multum pursuant to the provisions
of Section 9.C herein, or Schedule II, 1.A, each party shall, within
ten (10) business days, return to the other party, at its own expense,
all documents, software and other materials or deliverables (including
all copies of manuals, demo units and client lists) received from the
other party or containing any of the other party's products or trade
secret, in whole or in part (and all copies thereof), and shall certify
in writing to the other party that all such materials have been so
returned. Each party shall also delete all electronically stored
versions of the other party's software and/or products and destroy all
copies of such software and/or products, and shall certify in writing
to the other party that this has been done. Empower Health Corporation
will prevent further End-User access to the Service and remove the
Service from "Dr. Koop's Community."
Empower Health Corporation License Agreement 7/16/98 7
All such certifications shall be provided within thirty (30) days of
the date of termination of the Agreement.
E. Except in the case of termination of this Agreement by Multum pursuant
to the provisions of Section 9.C herein, Empower Health Corporation
retains the right to continue to support End-User use of and access to
the Integrated Service for a period of sixty (60) days. Fees owed to
Multum for use of the Service shall continue to be paid during this
period. Upon the expiration of the sixty (60) day period, Empower
Health Corporation shall delete the Service from "Dr. Koop's
Community," thus preventing End-User use of and access to the Service.
F. Upon termination of this Agreement by either party, payment for
services performed by Multum, license fees and expenses incurred
through the date of termination shall become immediately due and
payable by Empower Health Corporation to Multum.
The parties shall submit any dispute under this Agreement to binding
arbitration in Denver, Colorado under the then-prevailing rules of the
American Arbitration Association. Judgment upon any award in such
arbitration may be entered and enforced in any court of competent
A. Multum and Empower Health Corporation
1. Each party hereto shall hold, and cause its respective officers,
directors, employees, stockholders, consultants and advisors
(collectively, "party representatives") to hold, in strict
confidence, unless compelled to disclose by judicial or
administrative process or by other requirements of applicable law
or judicial decree, all written documents and information
concerning the other party furnished to it by any other party or
its party representatives in connection with the parties'
respective duties and obligations contemplated by this Agreement
(except to the extent that such information can be shown to have
been (i) previously known by the party to which it was furnished,
(ii) in the public domain through no fault of such party, (iii)
later lawfully acquired from other sources by the party to which it
was furnished), or (iv) independently developed by or for the
receiving party without any use of the confidential information of
the disclosing party. Neither party shall release, or disclose to
any other person or entity (or otherwise use) such information
except strictly in connection with the parties' duties and
obligations contemplated hereby.
2. Notwithstanding the foregoing, nothing in this Section 11 shall
prohibit the parties from disclosing the Integrated Service,
Empower Health Corporation License Agreement 7/16/98 8
documentation and sales and marketing materials to End-Users of the
Integrated Service its contemplated by this Agreement.
3. Due to the sensitive nature of Multum's pricing, Empower Health
Corporation shall only disclose the fees paid to Multum for the
Service on a need to know basis to Empower Health Corporation
employees who have confidentiality agreements with Empower Health
Corporation and shall require such employees to treat such fees
confidentially. Empower Health Corporation shall not otherwise
disclose the fees to Empower Health Corporation End-Users or any
4. The fact that either party has entered into agreements, including
this Agreement, concerning the use or license of any of its
products shall not be deemed to place any confidential information
or trade secret of that party in the public domain or to cause the
same to be considered to be public knowledge.
5. The receiving party shall notify the disclosing parry of the
identity of any consultant or independent contractor to whom the
receiving party wishes to disclose any of the disclosing party's
Confidential Information. The receiving party agrees not to
disclose the disclosing party's confidential information to any
consultant and/or independent contractor without the prior written
consent of the disclosing party and unless and until such
consultant or independent contractor has signed a Confidentiality
Agreement in a form acceptable to the disclosing party,
6. Each party's obligations under this Section 11 shall survive the
termination and/or the full performance of this Agreement.
7. Empower Health Corporation understands that Cerner (including its
affiliates) may be in a business similar to or the same as Empower
Health Corporation. Cerner (including its affiliates) and Empower
Health Corporation may already have developed, be in the process of
developing, or plan to develop products, services and information
similar to those owned or developed by the other. Nothing contained
herein shall be construed to prohibit either Cerner (including its
affiliates) or Empower Health Corporation from so doing as long as
it does so independently and without using confidential information
disclosed by the other hereunder.
If any provision of this Agreement shall be deemed by a court of competent
jurisdiction to be unenforceable or illegal, then the remaining terms and
provisions of this Agreement shall remain in full force and effect and such
unenforceable or illegal provision shall be deemed stricken for so long as
it remains unenforceable or illegal.
Empower Health Corporation License Agreement 7/16/98 9
A. This Agreement constitutes the entire agreement of Empower Health
Corporation and Multum with respect to the subject matter hereof and
supersedes all other prior and contemporary agreements and
understandings regarding the subject matter hereof. No provision of
this Agreement may be terminated, modified or waived unless such
termination, modification or waiver is set forth in writing executed by
authorized representatives of Empower Health Corporation and Maltum.
B. This Agreement and the license issued hereunder shall be binding upon
and inure to the benefit of the parties, their respective successors
and/or assigns. This Agreement and the license issued hereunder shall
not be assigned without prior written consent of the other party, and
any attempted assignment shall be void without such written consent.
Such consent will not be unreasonably withheld.
C. The terms of this Agreement shall in all respects be governed by,
construed, and interpreted in accordance with the laws of the State of
Colorado without regard to the conflict of laws principles thereof.
D. Empower Health Corporation and Multum agree that as Multum adds new
product/service(s) to its consumer-focused product line to be made
available to third parties, the new product/service(s), upon approval
by both parties, may be incorporated, by addendum, as part of the
Integrated Service offered pursuant to this Agreement along with any
fees associated with such products and/or services.
E. Each party represents and warrants that it:
1. Is not subject to, and will not assume, any obligation inconsistent
with its obligations hereunder; and
2. Is not subject to any restriction that is violated by any
disclosure of information it makes or receives hereunder.
F. Each party warrants and affirms that the person signing this Agreement
on behalf of that party is duly authorized and empowered by that party
to do so, and that such person has the right and the authority to bind
that party to this Agreement.
G. This Agreement may be executed in several counterparts and may be
executed by different parties on different counterparts, all of which
together shall constitute one and the same instrument, and shall become
effective when one or more counterparts have been signed by each of the
H. The Headnotes throughout this Agreement are for convenient reference
only, and shall in no way be deemed to limit, modify, or add to the
interpretation, construction or meaning or any provision of this
Empower Health Corporation License Agreement 7/16/98 10
I. In performing their obligations hereunder, the parties are acting as
separate and independent entities and neither party is an agent or
employee of the other party. This Agreement shall not be interpreted so
as to cause either party to be responsible to any third party for the
acts, omissions or products of the other party.
All notices and communications required or permitted under this Agreement
shall be in writing and any communication or delivery hereunder shall be
deemed to have been duly made if actually delivered, or three (3) days
after mailing, if mailed by registered or certified mail, postage prepaid,
addressed as follows:
If to Empower Health Corporation:
3006 Longhorn Boulevard, Suite 105
Austin, Texas 78758
If to Multum Information Services, Inc.:
Multum Information Services, Inc.
3200 Cherry Creek South Drive
Denver, Colorado 80209
Attn: Managing Director
Either party may, by written notice so delivered to the other, change the
address to which delivery shall thereafter be made.
IN WITNESS WHEREOF, Empower Health Corporation and Multum have executed this
Agreement this ____ day of July, 1998.
Executed on behalf of Executed on behalf of
Empower Health Corporation Multum Information Services, Inc.
By: \s\ Donald Hackett By: \s\ Clifford W. Illig
Name: Donald Hackett Name: Clifford Illig
Title: Chief Executive Officer Title: President
Empower Health Corporation License Agreement 7/16/98 11
SCHEDULE I -BASIC
CORPORATE SERVICE AND SUPPORT
1. Multum will provide the following Corporate Service and Support services to
Empower Health Corporation (subject to the Corporate Service and Support
fees set forth in Schedule II of this Agreement).
A. During the Initial Term of this Agreement, Maltum shall provide the
following Corporate Services and Support:
Emergency Technical Support 24 hours per day, 7 days per week
B. During the Term of the Agreement, Consulting Services will be
available from Multum, upon request by Empower Health Corporation at a
rate of * * * . All travel and living expenses related to providing
the requested Consulting Services will be the responsibility of
Empower Health Corporation. * * *
C. Multum will provide a twenty-four (24) hour telephone support hotline.
In the event that the Service is unavailable to Dr. Koop's Community
through reasons that are solely controlled by Multum, Multum agrees to
remedy the problem within a forty-eight (48) hour period from the time
2. Optional Corporate Service and Support Package:
In addition to the foregoing services, Empower Health Corporation may elect
to purchase from Multum the following optional services on an annual basis
for an additional * * * .
8 hours of training
12 hours of customer support/consulting
If elected, please initial and date
Empower Health Corporation Date
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
SCHEDULE II - BASIC SDK
FEES AND PAYMENTS
A. Basic SDK License Fees:
Based on the provision of Section 3.A herein, the license fee for
Empower Health Corporation * * * . The parties agree to mutually
negotiate in good faith (within six (6) months of the Effective Date) a
transaction license fee derived from Usage Data provided by Empower
Health Corporation to Multum pursuant to the provisions of Section 3.D
of the Agreement, which will be used in calculating license fees to be
applied for use of the Service for the following twelve months. Within
30 days of the end of each subsequent twelve month period, the parties
agree to mutually negotiate in good faith a transaction fee for the
following twelve month period. In the event the parties are unable to
mutually agree on a transaction fee for any period, either party may
terminate the Agreement with 30 days' notice in accordance with
provisions in Section 14 of the Agreement, without penalty. The parties
agree that the minimum license fee for any subsequent twelve month
period will be * * *.
B. Software Development Kit (SDK) Fee:
Empower Health Corporation will pay a one-time SDK fee of * * * to
C. Corporate Service and Support Fee:
Empower Health Corporation will pay Multum a yearly service and
support fee of * * * per year, beginning in year two of this
D. Optional Service and Support Package Fee:
If elected, Empower Health Corporation will pay Multum a yearly
service and support fee of * * * per year.
E. Multum has the option to change the fee schedule upon renewal of this
Agreement with ninety (90) days' prior written notice to Empower Health
F. Multum reserves the right to conduct an independent audit of Empower
Health Corporation's invoices and billing records relating to the Fees
paid to or due to Multum under this Agreement for the sole purpose of
establishing that the Fees paid to Multum by Empower Health Corporation
are accurate. Multum may conduct such audits no more than quarterly.
Each such audit shall be conducted during normal business hours upon
reasonable notice to and agreement by Empower Health Corporation.
Multum will be responsible for all costs and * * * expenses relating to
each such audit. Empower Health Corporation will maintain records
according to generally accepted accounting principles.
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
A. For years beginning one year from the Effective Date and beyond,
applicable License Fees will be billed quarterly by Multum and will be
due upon receipt. If required, based on the mutually agreed upon fees,
Empower Health Corporation will present Multum with an aggregate number
of licenses used at the end of each quarter and Multum will submit an
invoice for that amount.
B. The SDK fee will be due thirty (30) days after the Effective Date.
C. The Corporate Service and Support Package Fee will be billed quarterly
and due upon receipt.
D. If purchased, the Optional Corporate Service and Support Package Fee
will be billed quarterly and due upon receipt.
Multum Information Services, Inc.
Basic SDK Software Components
For purposes of this Agreement, the SDK drug information services (the
"Service") being offered to Empower Health Corporation are:
The SDK (Software Development Kit) provides extremely powerful development tools
that offer drug knowledge bases and expert drug information to new or existing
clinical information systems. Multum Information Services, Inc. ("Multum") has
developed the SDK as a suite of flexible, modular components that can be
embedded into clinical systems as distinct, functional components. It may be
helpful to think of the SDK as a subsystem and the clinical information system
into which it can be embedded as a parent application.
Multum provides development interfaces that easily blend into the native
environment of the parent application. By designing subsystem components that
fit smoothly into an existing software development environment, Multum products
help to minimize the overall development costs. SDK comes equipped with fully
referenced documentation in several programming languages and databases, all
developed with a three-tiered distributed processing back-end. This API is
supplied in C++ Class Libraries or OLE Automation servers.
SDK - Basic Clinical Components
. Provides clinician-friendly drug names.
. Allows customers to map external drug names to Multum knowledge bases.
Interactions - Drug-Drug & Drug-Food
. Checks for drug-drug and drug-food interactions against a patient's current
medication regimen and against medications about to be ordered.
. Analyzes both active medications and those that might still be active in the
patient (based on the drug's elimination half-life).
. Provides a list of drugs involved when an interaction occurs, along with the
level of severity of the interaction (minor, moderate, severe), a textual
description of the interaction, and on-line references.
. Provides recommended courses of action when appropriate within the textual
Drug Allergy Cross-Reactivity Checking
. Provides allergy information checked against the patient's current drug
regimen, against medications about to be ordered, and against the patient's
. Generates a cross-reaction warning for allergic cross-reactivides described
in the medical literature that includes the drug or drug category involved, a
textual description of the reaction, and one or more references for the
. Provides side effect information in descending order of importance based on
both severity and frequency of the side effect.
. Provides side effect information in two levels; the first level consists of
general side effect information organized by organ system and frequency; the
second level of information, when available, incorporates greater detail
including specific studies, case reports, their methodology, and the
differences between study data.
. Includes references to the primary medical literature and has key-word
. Provides a textual description of the pharmacological properties of a
selected drug with primary literature references.
. Provides information regarding the chemical category. mechanism of action and
indications (both labeled and non-labeled with appropriate identification).
. Includes references to the primary medical literature.
Pregnancy and Lactation Precautions
. Identifies and describes both safe and unsafe use of the drug in pregnancy.
. Provides, when appropriate, pregnancy warnings for drugs that are known to
alter reproductive capabilities when taken by male patients.
. Provides lactation warning text that indicates both safe and unsafe use in
. Provides severity flags for two levels of severity and includes primary
. Provides a description of important warnings and contraindications (not
otherwise addressed by Allergy Checking, Pregnancy and Lactation Precautions)
for particular drugs.
. No severity levels are provided. All presented warnings are considered
Patient Education Leaflets
. Provides patient teaching information drug monographs in both 6th grade
English and North American Spanish.
. Adheres to the FDA's 1996 MedGuide recommendations.
. Provides the ability to print or display Patient Education Leaflets with each
. Includes important side effect, drug interaction, and drug administration
. Allows customization and formatting of leaflets by end-user site.
. Provides a poly-hierarchical classification system for drugs.
. Provides all therapeutic categories and sub-categories for each drug.
. Provides all drugs for any given therapeutic category.
. Provides article references for all informational services offered--including
Allergies, Pharmacology, Side Effects, Warnings, Pregnancy and Lactation
Precautions, and Interactions.
. Presented in the National Library of Medicine format with unique internal
Multum Information Services, Inc. retains all rights for determining what
modifications, amendments or alterations ("Product Changes") shall be made to
any or all of the Services. Any Product Changes shall be determined and made at
Multum Information Service's sole discretion.
Description of Empower Health Corporation
To be provided by Empower Health Corporation
The Service is a service provided to you by Multum Information Services, Inc.
("Multum"). The Services and "Dr. Koop's Community" are separate products
provided by separate entities.
Disclaimer of Warranties
THE CUSTOMER ACKNOWLEDGES THAT THE SERVICE AND ANY EQUIPMENT ARE PROVIDED ON AN
"AS IS" BASIS. EXCEPT FOR WARRANTIES WHICH MAY NOT BE DISCLAIMED AS A MATTER OF
LAW, MULTUM MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS OR WARRANTIES REGARDING
THE ACCURACY OR NATURE OF THE CONTENT OF THE SERVICE, WARRANTIES OF TITLE,
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The CUSTOMER acknowledges that updates to the Service are at the sole discretion
of Multum. Multum makes no representations or warranties whatsoever, express or
implied, with respect to the compatibility of the Service, or future releases
thereof, with any computer hardware or software, nor does Multum represent or
warrant the continuity of the features or the facilities provided by or through
the Service as between various releases thereof.
Any warranties expressly provided herein do not apply if: (i) the CUSTOMER
alters, mishandles or improperly uses, stores or installs all, or any part, of
the Service, (ii) the CUSTOMER uses, stores or installs the Service on a
computer system which fails to meet the specifications provided by Multum, or
(iii) the breach of warranty arises out of or in connection with acts or
omissions of persons other than Multum.
Assumption of Risk Disclaimer of Liability, Indemnity
THE CUSTOMER ASSUMES ALL RISK FOR SELECTION AND USE OF THE SERVICE AND CONTENT
PROVIDED THEREON OR ANY EQUIPMENT FURNISHED IN CONNECTION THEREWITH. MULTUM
SHALL NOT BE RESPONSIBLE FOR ANY ERRORS, MISSTATEMENTS, INACCURACIES OR
OMISSIONS REGARDING CONTENT DELIVERED THROUGH THE SERVICE OR ANY DELAYS IN OR
INTERRUPTIONS OF SUCH DELIVERY.
THE CUSTOMER ACKNOWLEDGES THAT MULTUM: (A) HAS NO CONTROL OF OR RESPONSIBILITY
FOR THE CUSTOMER'S USE OF THE SERVICE OR CONTENT PROVIDED THEREON, (B) HAS NO
KNOWLEDGE OF THE SPECIFIC OR UNIQUE CIRCUMSTANCES UNDER WHICH THE SERVICE OR
CONTENT PROVIDED THEREON MAY BE USED BY THE CUSTOMER, (C) UNDERTAKES NO
OBLIGATION TO SUPPLEMENT OR UPDATE CONTENT OF THE SERVICE, OR (D) HAS NO
LIABILITY TO ANY PERSON FOR ANY DATA OR INFORMATION INPUT ON THE SERVICE BY THE
CUSTOMER TO THE SERVICE.
MULTUM SHALL NOT BE LIABLE TO ANY PERSON (INCLUDING BUT NOT LIMITED TO THE
CUSTOMER AND PERSONS TREATED BY OR ON BEHALF OF THE
CUSTOMER) FOR, AND THE CUSTOMER AGREES TO INDEMNIFY AND HOLD MULTUM HARMLESS
FROM ANY CLAIMS, LAWSUITS, PROCEEDINGS, COSTS, ATTORNEY'S FEES, DAMAGES OR OTHER
LOSSES (COLLECTIVELY, "LOSSES") ARISING OUT OF OR RELATING TO (A) THE CUSTOMER'S
USE OF THE SERVICE OR CONTENT PROVIDED THEREON OR ANY EQUIPMENT FURNISHED IN
CONNECTION THEREWITH AND (B) ANY DATA OR INFORMATION INPUT ON THE SERVICE BY
CUSTOMER, IN ALL CASES INCLUDING BUT NOT LIMITED TO LOSSES FOR TORT, PERSONAL
INJURY, MEDICAL MALPRACTICE OR PRODUCT LIABILITY. FURTHER, WITHOUT LIMITING THE
FOREGOING, IN NO EVENT SHALL MULTUM BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS
OF BUSINESS, OR DOWN TIME, EVEN IF MULTUM HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, THE INFORMATION CONTAINED WITHIN THE SERVICE IS INTENDED FOR USE
ONLY BY PHYSICIANS AND OTHER HEALTHCARE PROFESSIONALS WHO SHOULD RELY ON THEIR
CLINICAL DISCRETION AND JUDGMENT IN DIAGNOSIS AND TREATMENT, AS BETWEEN THE
CUSTOMER AND MULTUM, THE CUSTOMER HEREBY ASSUMES FULL RESPONSIBILITY FOR
INSURING THE APPROPRIATENESS OF USING AND RELYING UPON THE INFORMATION IN VIEW
OF ALL ATTENDANT CIRCUMSTANCES, INDICATIONS, AND CONTRAINDICTIONS.
Liability of Multum to the CUSTOMER
Under no circumstances shall Multum be liable to the CUSTOMER or any other
person for any direct, indirect, exemplary, special or consequential damages
arising out of or relating to the CUSTOMER'S use of or inability to use the
Service or the Content of the Service provided thereon or any Equipment
furnished in connection therewith. Multum's total liabilities in connection
with this Agreement, whether arising under contract or otherwise, are limited to
the fees received by Multum under this Agreement specifically relating to the
CUSTOMER's service or product which is the subject of the claim.