Community Partner Program Agreement
EMPOWER HEALTH CORPORATION
COMMUNITY PARTNER PROGRAM AGREEMENT
This Community Partner Program Agreement (the "Agreement") is made and
entered into as of _________________________, 1999 (the "Effective Date") by and
between Empower Health Corporation ("EHC"), a Texas corporation with offices at
8920 Business Park Drive, Austin, Texas 78759, and [FULL HOSPITAL NAME], a
[STATE] corporation ("Customer") with its principal place of business located at
WHEREAS, EHC develops, markets and maintains an integrated suite of
Internet enabled, consumer oriented software applications and services,
including but not limited to, Dr. Koop's Personal Medical Record System, Dr.
Koop's Community, electronic commerce and electronic data interchange services,
and advertising and promotional services on the Internet at the web site
http://drkoop.com (collectively, the "EHC Web Site");
WHEREAS, EHC offers a service to healthcare providers which enables
such healthcare providers to associate themselves with the EHC Web Site through:
(a) a series of co-branded pages located at a URL unique to the healthcare
provider, which web pages are customized for the healthcare provider, and (b)
the right to link from such co-branded pages to the EHC Web Site. Such
co-branded healthcare provider sites are referred to as Partner Communities
(individually, a "Partner Community"); and
WHEREAS, Customer is a healthcare provider who desires to establish a
Partner Community bearing its name (the "[HOSPITAL NAME] Partner Community") for
use by Customer and Customer's member physicians, providers and plan members
("Customer's Subscribers"); and EHC is willing to develop for Customer the
[HOSPITAL NAME] Partner Community and to grant to Customer the right for
Customer's Subscribers to access the EHC Web Site through the [HOSPITAL NAME]
Partner Community, in accordance with the terms and conditions this Agreement.
NOW, THEREFORE, in consideration of the obligations set forth below,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1.1. EHC SERVER. EHC will design, create, and host for Customer, for
the fees set forth in Article 6, the [HOSPITAL NAME] Partner Community which
incorporates Customer's Content (as defined below) and which has the features
and functions as set forth on Exhibit A attached hereto. The [HOSPITAL NAME]
Partner Community shall consist of up to ten (10)
HTML pages. While Customer and EHC shall collaborate on the "look and feel" of
the [HOSPITAL NAME] Partner Community, the [HOSPITAL NAME] Partner Community
will be designed to have substantially the same "look and feel" as the EHC Web
Site. During the term of this Agreement, EHC shall host such Partner Community
on a server or servers owned by EHC (the "EHC Server").
(a) EHC shall use commercially reasonable efforts to ensure
that the [HOSPITAL NAME] Partner Community is accessible at all times; provided,
however, that EHC shall not be responsible for downtime or other problems caused
by any public network, including the Internet or communications carrier; and
(b) Customer hereby acknowledges and agrees that access by
Customer and Customer's Subscribers to the [HOSPITAL NAME] Partner Community and
the EHC Web Site are subject to the terms and conditions of EHC's standard terms
and conditions of use, as set forth on Exhibit B attached hereto ("Standard
Terms"). EHC may from time to time change its Standards Terms by providing
written notice to Customer and by posting such updated Standard Terms to the
[HOSPITAL NAME] Partner Community and EHC Web Site.
1.2. CUSTOMER CONTENT. Customer shall provide to EHC within ten (10)
days from the Effective Date the content for the HTML pages (the "Customer
Content") in a suitable electronic format to be incorporated into the [HOSPITAL
NAME] Partner Community. EHC reserves the right to reject any Customer Content
which EHC determines in its sole discretion is unsuitable for inclusion in the
[HOSPITAL NAME] Partner Community.
1.3. HTML PAGES APPROVAL PROCESS. Within twenty (20) days from EHC's
receipt of the Customer Content, EHC will design and make available to Customer
the [HOSPITAL NAME] Partner Community for Customer's review either by providing
a copy to Customer or by providing non-public (i.e., password protected) access
via the Internet or other means of remote access to the [HOSPITAL NAME] Partner
Community. Customer shall either accept (which acceptance shall not be
unreasonably withheld) the [HOSPITAL NAME] Partner Community or shall provide
written notice to EHC within five (5) business days describing in reasonable
detail any problems or deficiencies noted by Customer in the [HOSPITAL NAME]
Partner Community. If Customer does provides such written notice of deficiencies
within the five (5) business day period, EHC shall correct such deficiencies and
shall thereafter again submit the [HOSPITAL NAME] Partner Community to Customer
for acceptance as provided above. If EHC does not receive any notice of
deficiencies within the notice period, Customer shall be deemed to have given
constructive approval of the [HOSPITAL NAME] Partner Community. Upon Customer's
acceptance of the [HOSPITAL NAME] Partner Community, such Partner Community
shall be made publicly available. Thereafter, Customer may update the content on
a monthly basis by providing to EHC updated Customer Content and EHC shall
update the content of such HTML pages within ten (10) days after receipt of such
updated Customer Content.
1.4. OTHER SERVICES. EHC shall also provide to Customer, upon request,
the services described on the attached Exhibit C at the prices set forth on
1.5. PROJECT MANAGER. Customer shall designate a project manager with
the responsibility and authority to carry out Customer's obligations under this
Agreement and who will be available to EHC as reasonably required.
TRADEMARKS AND OTHER PROPRIETARY MATTERS.
2.1. TRADEMARK LICENSE. Subject to the terms and conditions of this
Agreement, EHC hereby grants to Customer a limited license to use the EHC
trademarks as set forth on Exhibit D (the "EHC Marks") solely for purposes of
using, marketing and promoting the [HOSPITAL NAME] Partner Community during the
Term (as defined below), provided that Customer shall, in each instance, obtain
EHC's written approval for use of the EHC Marks in any such collateral
materials, which consent shall not be unreasonably withheld.
2.2. RESERVATION OF RIGHTS. Customer acknowledges and agrees that (i)
the EHC Marks are and shall remain the sole property of EHC; (ii) nothing in
this Agreement shall convey to Customer any right of ownership in the EHC Marks;
(iii) Customer shall not now or in the future contest the validity of the EHC
Marks; and (iv) Customer shall not in any manner take any action that would
impair the value of, or goodwill associated with, such marks. Customer
acknowledges and agrees that all use of EHC Marks by Customer shall inure to the
benefit of EHC.
2.3. QUALITY STANDARDS AND MAINTENANCE. The parties acknowledge and
agree that it is necessary for EHC to maintain uniform standards governing all
facets of the EHC Web Site in order to provide users worldwide with high quality
and consistent levels of service, and to protect the reputation and goodwill
associated with the EHC Web Site. Accordingly, Customer agrees that the quality
of goods and services offered under the [HOSPITAL NAME] Partner Community shall
be at least as high as the quality of the goods and services offered by EHC with
respect to the EHC Web Site. Customer agrees to comply with such specific
standards for use of the EHC Marks as EHC may, in its discretion, establish and
modify from time to time.
2.4. USE OF NAME AND LIKENESS. Customer shall not have any right to
use the name and/or likeness of Dr. C. Everett Koop or to make any statements,
whether written or oral, which state or otherwise imply, directly or indirectly,
any endorsement from or affiliation with Dr. Koop in any manner whatsoever
without the prior written consent of EHC, which consent may be withheld in EHC's
OWNERSHIP OF DATA
3.1. EHC requests its users, including Customer's Subscribers
(collectively "Individual Users"), to provide personal information when they
sign up for certain services including requesting information on a specific
disease, chat rooms and forums ("User Data"). Such User Data is owned by each
Individual User and EHC does not use or disclose any such User Data without the
consent of the Individual User.
3.2. EHC shall provide to Customer any and all User Data for which the
Individual User has specifically authorized release to Customer. In the event
that an Individual User grants rights to Customer for use of his User Data,
Customer shall use its best efforts to keep User Data confidential and shall
only use such data in an ethical manner. Customer may use User Data for its owns
purposes, but User Data may not be disclosed, sold, assigned, leased or
otherwise disposed of to third parties by Customer.
3.3. The User Data shall be EHC Confidential Information under Article
7 and shall in addition be subject to the terms of this Article 3. Customer
shall afford the User Data the same level of protection as it affords its own
patient data. Customer shall be liable for the conduct of its employees, agents
and representatives who in any way breach this Amendment. Customer's obligations
to treat the User Data as Confidential Information under Article 7 and this
Article 3 shall continue in perpetuity following termination of this Amendment.
REPRESENTATIONS AND WARRANTIES; LIMITATIONS
4.1. EHC WARRANTY. EHC represents and warrants for the benefit of
Customer that the EHC Web Site and other content provided by EHC (the
"Information") does not and will not infringe any copyright of any third party
and does not and will not constitute a defamation or invasion of the rights of
privacy or publicity of any kind of any third party.
4.2. CUSTOMER WARRANTY. Customer represents and warrants for the
benefit of EHC that (i) the Customer Content shall not infringe any copyright of
any third party and does not and will not constitute a defamation or invasion of
the rights of privacy or publicity of any kind of any third party; (ii) Customer
and Customer's Subscribers use of the [HOSPITAL NAME] Partner Community and EHC
Web Site shall be in accordance with the Standard Terms; and (iii) that it is
not an entity or an affiliate of any entity which engages in the manufacture or
wholesale distribution of tobacco or tobacco products (such activities are
collectively referred to as "Tobacco Industry Affiliation"). Customer hereby
acknowledges that neither EHC nor its suppliers directly or indirectly practice
medicine or dispense medical services as part of EHC Web Site.
4.3. INDEMNIFICATION BY EHC. EHC agrees to indemnify and hold harmless
Customer, its officers, directors, employees and agents from and against any
claims, demands, causes of action and judgments (including reasonable attorneys'
fees and court costs) (collectively, "Customer Claims") by any third party
arising out of any breach or alleged breach of any of EHC's representations and
warranties contained in Section 4.1, provided that Customer gives EHC prompt
written notice of the assertion of any such Customer Claim. EHC shall have the
option to undertake and control the defense and settlement of any such Customer
Claim; provided, however, that Customer may participate in any such proceeding
at its own expense with counsel of its own choosing.
4.4. INDEMNIFICATION BY CUSTOMER. Customer agrees to indemnify and
hold harmless EHC, its officers, directors, employees and agents from and
against any claims, demands, causes of action and judgments (including
reasonable attorneys' fees and court costs)
(collectively, "EHC Claims") by any third party arising out of: (i) any breach
or alleged breach of any of Customer's representations and warranties contained
in this Agreement; (ii) Customer Content and/or Customer's participation in the
EHC Web Site through its sponsorship of, without limitation, chat rooms, forums
and healthcare topics; and (iii) any representation or warranties made by
Customer to a third party with respect to the [HOSPITAL NAME] Partner Community
or EHC Web Site which representation or warranty by Customer is inconsistent
with the terms and conditions of this Agreement or the Standard Terms, provided
that EHC gives Customer prompt written notice of the assertion of any such EHC
Claim. Customer shall have the option to undertake and control the defense and
settlement of any such EHC Claim; provided, however, that (i) EHC may
participate in any such proceeding at its own expense with counsel of its own
choosing, and (ii) Customer shall not settle any such EHC Claim in a manner that
adversely affects EHC unless EHC agrees to such settlement in writing.
LIMITATION OF LIABILITY
5.1. WARRANTY. THIS AGREEMENT IS AN AGREEMENT FOR SERVICES.
NOTWITHSTANDING THE FOREGOING AND EXCEPT AS SET FORTH IN SECTION 4.1, EHC
SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE [HOSPITAL NAME] PARTNER
COMMUNITY, EHC WEB SITE, INFORMATION AND SERVICES PROVIDED HEREUNDER, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, AND NOT BY
WAY OF LIMITATION, EHC DOES NOT WARRANT THAT THE [HOSPITAL NAME] PARTNER
COMMUNITY OR THE EHC WEB SITE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION OR
THAT ANY FILES AVAILABLE FOR DOWNLOAD FROM THE EHC WEB SITE WILL BE FREE OF
INFECTION BY VIRUSES, WORMS OR OTHER UNAUTHORIZED CODE. As used herein,
"Unauthorized Code" shall mean harmful program or data incorporated into files
which destroys, erases, damages or otherwise disrupts the normal operation of
the user's computer systems or allows for unauthorized access to the user's
5.2. DAMAGES. IN NO EVENT SHALL EHC BE LIABLE TO CUSTOMER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER
LOSS ARISING OUT OR RESULTING FROM THIS AGREEMENT EVEN IF EHC HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE
NEGLIGENCE OR OTHER FAULT OF EHC AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS
IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY. Notwithstanding
the foregoing and except as set forth in Section 4.3, in no event shall EHC's
liability arising out of this Agreement exceed the total amount of fees actually
paid by Customer to EHC during the immediately proceeding six (6) month period.
[DELETE WHICH EVERY PAYMENT CLAUSE THAT DOES NOT APPLY]
6.1. FEES. In consideration of the license granted in Article 2, and
for the Services, Customer shall pay EHC the fee of $[AMOUNT] (the "Fees") as
follows. Such Fees shall be paid in twelve (12) consecutive monthly installments
of $[AMOUNT] with the first payment due and payable on the Effective Date.
FEES. In consideration of the license granted in Article 2, and for the
Services, Customer shall pay EHC the fee of $[AMOUNT] (the "Fees") on execution
of this Agreement.
6.2. INTEREST AND COLLECTION COSTS. Any payment not received within
thirty days of the due date as set forth on an invoice should be considered
delinquent. Interest shall accrue on delinquent payments at the rate of one and
one-half percent (1.5%) per month or the highest rate permitted by applicable
law, whichever is less.
6.3. TAXES. The Fees do not include local, state or federal sales,
use, excise, personal property or similar taxes or levies. Any and all such
taxes or levies, however designated, paid by EHC (other than taxes based on net
income of EHC) attributable to this Agreement shall be paid by Customer upon
invoice to Customer.
7.1. CONFIDENTIALLY OBLIGATIONS. Either party (the "Disclosing Party")
may from time to time disclose Confidential Information to the other party (the
"Recipient"). "Confidential Information" is all nonpublic information concerning
the business, technology, internal structure and strategies of the Disclosing
Party which is conveyed to the Recipient orally or in tangible form and is
either marked as "confidential" or which is identified as "confidential" prior
to disclosure. The parties acknowledge and agree that all User Data, and any
portions thereof, is deemed Confidential Information regardless of whether it is
identified as confidential. During the term of this Agreement and for a period
of two (2) years thereafter, Recipient will keep in confidence and trust and
will not disclose or disseminate, or permit any employee, agent or other person
working under Recipient's direction to disclose or disseminate, the existence,
source, content or substance of any Confidential Information to any other
person. Recipient will employ at least the same methods and degree of care, but
no less than a reasonable degree of care, to prevent disclosure of the
Confidential Information as Recipient employs with respect to its own
confidential patent data, trade secrets and proprietary information. Recipient's
employees and independent contractors will be given access to the Confidential
Information only on a need-to-know basis, and only if they have executed a form
of non-disclosure agreement with Recipient which imposes a duty to maintain the
confidentiality of information identified or described as confidential by
Recipient and after Recipient has expressly informed them of the confidential
nature of the Confidential Information. Recipient will not copy or load any of
Information onto any computing device or store the Confidential Information
electronically except in circumstances in which Recipient has taken all
necessary precautions to prevent access to the information stored on such device
or electronic storage facility by anyone other than the persons entitled to
receive the Confidential Information hereunder.
7.2. PERMITTED DISCLOSURES. The commitments in this Section 7 will not
impose any obligations on Recipient with respect to any portion of the received
information which: (i) is now generally known or available or which, hereafter
through no act or failure to act on the part of Recipient, becomes generally
known or available; (ii) is rightfully known to Recipient at the time of
receiving such information; (iii) is furnished to Recipient by a third party
without restriction on disclosure and without Recipient having actual notice or
reason to know that the third party lacks authority to so furnish the
information; (iv) is independently developed by Recipient; or (v) is required to
be disclosed by operation of law or by an instrumentality of the government,
including but not limited to any court, tribunal or administrative agency.
7.3. USER DATA. User Data is subject to additional obligations of
confidentiality as described in Article 3 above.
TERM AND TERMINATION
8.1. TERM. The term of this Agreement shall commence upon the
Effective Date and shall continue for one year (the "Term"). Thereafter, this
Agreement shall may be renew for successive terms of one year by mutual
agreement of the parties.
8.2. TOBACCO AFFILIATION. Upon commencing any activities relating to
Tobacco Industry Affiliation, Customer shall promptly notify EHC of its intent
to undertake Tobacco Industry Affiliation. Upon receipt of such notice or upon
learning of any such Tobacco Industry Affiliation from a third party, EHC shall
have the right to immediately terminate this Agreement without liability of any
8.3. TERMINATION FOR BREACH. If either party is in default of any
material provision of this Agreement and such default is not corrected within
thirty (30) days of receipt of written notice, the other party shall have the
right to terminate this Agreement.
8.4. TERMINATION FOR INSOLVENCY. Either party shall also have the
right to terminate this Agreement by writing immediately if the other party (i)
voluntarily or involuntarily becomes the subject of a petition in bankruptcy or
of any proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors; or (ii) admits in writing its
inability to pay its debts as they become due.
8.5. SURVIVAL. The rights and obligations under Articles 3, 4, and 7
and Sections 5.2 and 9.3 shall survive after the expiration or earlier
termination of this Agreement.
9.1. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties, and supersedes all previous
agreements (whether written or oral) concerning the subject matter hereof. This
Agreement may not be amended or supplemented except by a written document
executed by the parties to this Agreement.
9.2. ASSIGNMENT. Customer may not assign this Agreement nor any
interest in this Agreement without the prior written consent of EHC.
9.3. ARBITRATION. Any and all disputes, controversies and claims
arising out of or relating to this Agreement or concerning the respective rights
or obligations of the parties hereto shall be settled and determined by
arbitration in Austin, Texas before a panel of one (1) arbitrator pursuant to
the Commercial Rules then in effect of the American Arbitration Association.
Each party shall have no longer than 3 days to present its position. Judgment
upon the award rendered may be entered in any court having jurisdiction or
application may be made to such court for a judicial acceptance of the award and
an order of enforcement. The parties agree that the arbitrators shall have the
power to award damages, injunctive relief and reasonable attorneys' fees and
expenses to any party in such arbitration.
9.4. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas, but without giving effect to its
laws or rules relating to conflicts of laws.
9.5. PUBLICITY. Except as may be required by applicable laws and
regulations or a court of competent jurisdiction, or as required to meet credit
and financing arrangements, or as required or appropriate in the reasonable
judgment of either party to satisfy the disclosure requirements of an applicable
securities law or regulation or any applicable accounting standard, neither
party shall make any public release respecting this Agreement and the terms
hereof without the prior consent of the other party.
9.6. NOTICE. All notices, statements, and reports required or
permitted by this Agreement shall be in writing and deemed to have been
effectively given and received five (5) days after the date of dispatch by
certified or registered mail, postage prepaid, to the party to whom any such
notice, statement, or report is to be given, addressed as follows:
For EHC: For Customer:
Empower Health Corporation ___________________
Personal Medical Records, Inc. ___________________
8920 Business Park Drive ___________________
Austin, TX 78759 ___________________
Attn: Chief Financial Officer
Either party may change its address for the purpose of this paragraph by notice
given pursuant to this paragraph.
9.7. FORCE MAJEURE. Neither party hereto shall be in default hereunder
by reason of its delay in the performance or failure to perform any of its
obligations hereunder for any event, circumstance, or cause beyond its control
such as, but not limited to, acts of God, strikes, lock-outs, general
governmental orders or restrictions, war, threat of war, hostilities,
revolution, riots, epidemics, power shortages, fire, earthquake, or flood. The
party affected by any such event shall notify the other party within a maximum
period of fifteen (15) days from its occurrence. The performance of this
Agreement shall then be suspended for as long as any such event shall prevent
the affected party from performing its obligations under this Agreement.
9.8. SEVERABILITY. The provisions of this Agreement are severable, and
in the event any provision hereof is determined to be invalid or unenforceable,
such invalidity or unenforceability shall not in any way affect the validity or
enforceability of the remaining provisions hereof.
9.9. HEADINGS. The headings of the articles and several paragraphs of
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
9.10. WAIVER. The waiver of a default hereunder by one party may be
effected only by a written acknowledgment signed by the other party and shall
not constitute a waiver of any other default. The failure of either party to
enforce any right or remedy for any one default shall be deemed a waiver of said
right or remedy if the party persists in such default or commits any other
default, nor shall such failure in any way affect the validity of this Agreement
or any part hereof.
9.11. INDEPENDENT PARTIES. Nothing in this Agreement shall be deemed to
constitute, create, give effect to or otherwise recognize a partnership, joint
venture or formal business entity of any kind; and the rights and obligations of
the parties shall be limited to those expressly set forth herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
Empower Health Corporation: [FULL HOSPITAL NAME]:
STANDARD OFFERING: $100K
. Host co-branded web pages at its facilities dedicated to Customer. This
will consist of a maximum of 10 distinct web pages.
. Co-Branding will be effected through banner space on the standard
headers and borders that establish the look and feel for the Dr. Koop's
Community web pages. These headers and borders will appear on all ten
pages of the [HOSPITAL NAME] Partner Community.
. Provide a web-based toolkit to assist the customer's webmasters in
adding links to the customer's primary web site (or the [HOSPITAL NAME]
Partner Community) that point into specific areas of the EHC Website as
needed by Customer.
. List the Customer's web site, in its appropriate geographic region, as
part of the EHC Web Site regional directory.
. Provide technical and administrative support for online chat rooms and
forums. Moderators and topics are to supplied by Customer.
SELF-ASSESSMENT APPLICATION: $50K, EHC AGREES TO WAIVE THE FIRST YEAR PAYMENT
EHC will provide a web-based medical self-assessment application. This
application will, after soliciting answers to important questions, return to the
user a medical narrative summarizing the results of the question and answer
SECURE MESSAGING: $50K
EHC will provide a secure messaging service for use among all registered users
in EHC Web Site and the [HOSPITAL NAME] Partner Community. EHC will also provide
a look-up directory service to assist users in finding other users and medical
personnel to whom messages may be sent.
DIGITAL CERTIFICATES: $50K
EHC will provide digital certificates to those users in the [HOSPITAL NAME]
Partner Community who need an extra level of security and identification. EHC
will provide the long-term management of these certificates including
certificate re-issuing, certificate revocation, and certificate archiving.