Agreement - MedStrong International Corp. and ScoutNews LLC
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Company: Client: MedStrong International Corporation
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Healthscout News Service, A product of ScoutNews LLC, 83 East Corporate Headquarters
Avenue, Suite 107, Norwalk, CT 06851 500 Silver Spur Road, Suite 303
www.healthscoutnews.com Rancho Palos Verdes, CA 90274
www.medstrong.com
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Primary Contact: Primary Contact:
Jay Helmer, Director of Business Development
203-855-1400 Ext 103 Attn: Bakey Farrar
jhelmer@healthscoutnews.com Vice President of Communications
310-544-9900
David Rouatt, Managing Director bakey_farrar@medstrong.com
203-855-1400 Ext 101
drouatt@healthscoutnews.com
Technical Contact:
Van Lam
Technical Contact: van_lam@warrantech.com
Scott Roberts, Technical Producer
203-855-1400 Ext
sroberts@healthscoutnews.com
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AGREEMENT, made as of the 28th day of January 2001, by and between The
Healthscout News Service, a product of ScoutNews LLC. a Delaware corporation
with a place of business at 83 East Avenue, Suite 107, Norwalk, CT 06851 (The
Company), and MedStrong International Corporation (The Affiliate) a ________
corporation with a place of business at 500 Silver Spur Road, Suite 303 Rancho
Palos Verdes, CA 90274
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A. HealthScout News Feed
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Affiliate will license HealthScout Health News, FDA Approvals and news letter
content for use on the Affiliate's URL, and will utilize and store the news feed
content on the Affiliate's server. The HealthScout news feed will include the
following:
1. Daily feed of "Today's Top Stories", "WebSCOUT/Today's Health Headlines" and
`FYI"
2. Daily Subsets of these feeds: [see Exhibit A]
3. Daily feed of FDA Approvals
4. Topic flags, for use to incorporate the stories with the Affiliate service
5. Twelve months of story archives
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B. DESCRIPTION OF SERVICES TO BE PROVIDED BY AFFILIATE
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1. Arrange for receipt of the HealthScout News Service standard formatted news
feed by FTP or HTTP, in xml or name/value pair format..
2. Provide HealthScout News Service ATTRIBUTION on articles displayed on the
Affiliate's server and additional HealthScout news branding, as mutually
agreed.
3. Obtain PRIOR WRITTEN CONSENT from HealthScout for any translation, editing
or redistribution of content, except for the use of newsletter content being
sent to individuals.
4. Pay HealthScout QUARTERLY licensing fees on a timely basis.
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C. HEALTHSCOUT NEWS SERVICE FEES
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1. Affiliate will pay a monthly fee of $1,000 for the news feed for use on two
MedStrong company urls's.
2. Affiliate will pay an additional 10% per url per month when implemented
(example: 3 urls = $1,100 per month).
3. Affiliate will pay an initial ONE-TIME SET-UP FEE OF $250.00.
4. FEES ARE PAYABLE QUARTERLY, BILLED AT THE START OF EACH CALENDAR QUARTER
5. The news feed will commence when The HealthScout News Service receives a
signed contract with an initial 3-month payment and set-up fee. PAYMENT
SHOULD BE MADE OUT TO SCOUTNEWS LLC AND SENT ATTENTION: ANDREW SHERMAN, CFO,
SCOUTNEWS LLC, 2150 JOSHUA'S PATH, SUITE 102, HAUPPAUGE, NY 11788.
6. News feeds, which commence during a quarter, will require the initial
3-month payment. Over-payments for the initial quarter will be reconciled in
the next quarterly billing. Amounts will be calculated on a daily pro-rata
basis.
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1. TERM
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This term of this Agreement shall be for one (1) year commencing on February 1,
2002. Thereafter, this Agreement shall automatically renew annually at the same
terms and conditions unless either party gives the other party written notice of
an intention not to renew at least sixty (60) days prior to the end of the
then-current term.
However, either party also may terminate this Agreement at any time as follows:
1. Upon thirty days written notice to the other party of a material breach by
such other party, provided that if the breach is cured within said notice
period this Agreement shall continue in full force and effect.
2. Immediately upon written notice to the other party in the event such other
party admits in writing its inability to pay its debts as they become due,
becomes the subject of any voluntary or involuntary bankruptcy proceeding
that is not dismissed within sixty (60) days, or makes an assignment for the
benefit of its creditors.
The HealthScout News Service, a Service of ScoutNews LLC
83 East Avenue, Suite 105, Norwalk, CT 06851
203-855-1400
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E. OWNERSHIP OF CONTENT
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HealthScout owns all right, title and interest in and to all content furnished
to Affiliate, as well as to all aspects of the HealthScout name and service.
HealthScout Content shall bear the logo, copyright notice(s) and other
reservation of rights notices or legends provided by HealthScout. Content
furnished by Company shall be used by Affiliate solely for the information of
its visitors to the Affiliate URL. Affiliate shall not otherwise publish,
distribute, use or make available any such Company Content for any other
purpose, without ADVANCE WRITTEN CONSENT from Company.
News feed content supplied by HealthScout will include a transparent 1-pixel GIF
image used to track page views. The GIF image may not be removed or altered by
Affiliate.
Affiliate may not solicit or encourage other sites or services to link directly
to the Company Content on Affiliate's site without the prior written consent of
Company. To the extent technologically feasible, Affiliate shall not permit Any
third party to frame Affiliate's site such that any Company Content appears on
the same screen as such third party's site or service. To the extent that it is
not technologically feasible to prevent such framing, Affiliate shall cooperate
with Company in causing such third party to cease and desist from such framing.
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F. TERMS OF USE OF NEWS FEED/CONTENT.
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All Company Content furnished by Company shall be used by Affiliate solely for
the information of its service customers/site visitors. All Company Content
furnished by Company, including article headline listings, shall bear
attribution, the logotype (and/or Company name), copyright notice(s) and other
reservation of rights notices or legends furnished by Company with such Company
Content (which shall include a prohibition against republication or
redistribution), and none of the foregoing shall be removed or altered by
Affiliate.
As between the parties hereto, Company owns all right, title and interest in and
to all Company Content furnished to Affiliate, as well as to all aspects of the
HealthScout name and service, including but not limited to the software and
algorithms that operate said service.
Affiliate shall not build archival files for any commercial purposes using any
Company Content, and none shall be held in Affiliate's computers or stored in
any other medium for longer than the contract term. Affiliate agrees to retain
no more than twelve (12) months of archives. If Affiliate wishes to include the
HealthScout service or any portion thereof into a commercial archived product,
both parties agree to negotiate in good faith an addendum to this Agreement to
cover such activity.
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G. WITHDRAWAL OF SERVICE.
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Company may cancel all or part of its services hereunder if the provision
thereof (a) becomes the subject of a claim of infringement of any third party's
rights, (b) depends upon an agreement between Company and a third party and that
agreement is terminated, or (c) is adjudicated to be illegal or contrary to any
applicable law or public policy. If this paragraph applies, Company's maximum
liability shall be the refund of any advance amounts paid by Affiliate for the
cancelled portion of the services. In the event of a cancellation of the
services in whole or in part, notwithstanding any other provision herein to the
contrary, the Company shall refund that amount of prepaid fees applicable to the
cancelled service and Affiliate shall be relieved on any payment obligation
relating to such cancelled service on an ongoing basis.
The HealthScout News Service, a Service of ScoutNews LLC
83 East Avenue, Suite 105, Norwalk, CT 06851
203-855-1400
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H. CONFIDENTIALITY
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In the course of performance of this Agreement, each party may acquire knowledge
or information that the other party reasonably designates as confidential and
proprietary, including but not limited to access to software or other
information about the operation of the Healthscout service. Each party agrees to
hold all such information in strict confidence, and not to disclose any such
information to third parties or use any such information for its own benefit.
This paragraph shall not apply to information that: (a) the receiving party
possesses prior to acquiring it from the other; (b) becomes available to the
public or trade through no violation by the receiving party of this paragraph;
(c) is given to the receiving party by a third party not under a confidentiality
obligation to the disclosing party; or (d) is developed by the receiving party
independently of and without reliance on confidential or proprietary information
provided by the disclosing party.
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I. LIMITATION OF LIABILITY.
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(a) Company shall use commercially reasonable efforts to insure the
accuracy of the Company Content it furnishes, but does not guarantee the
sequence, accuracy or completeness of any such Company Content and shall not be
liable in any way to Affiliate, its customers or anyone else who may use the
information or content or to whom the information or content may be furnished,
for any delays, inaccuracies, unavailability, errors or omissions there from or
in the transmission or delivery of all or any party thereof or for any damage
arising there from or occasioned thereby unless due to the gross negligence or
willful misconduct of Company.
(b) Except as otherwise expressly stated in this Agreement, COMPANY
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE
LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR ANY OTHER
DAMAGES ARISING FROM THE UNAVAILABILITY OF THE COMPANY CONTENT OR THE CO-BRANDED
SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE.
(c) In no event shall either party be liable to the other or anyone
else for any consequential, punitive, special, indirect or any other damages
arising from the availability, use of, or reliance upon any information or
content furnished hereunder, whether in contract, tort or otherwise, even if
advised of the possibility of such damages.
(d) Notwithstanding anything to the contrary contained herein, in no
event will the aggregate liability of Company exceed the total amount of the
compensation actually paid to it hereunder during the twelve (12) months
immediately prior to the date on which the alleged damages were claimed to have
been incurred, regardless of the form of action.
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J. INDEMNIFICATION.
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(a) Affiliate will indemnify, defend and hold harmless Company, its
officers, employees, directors, affiliated companies and agents from and against
any and all third-party claims, actions, demands and lawsuits ("Claims") and all
resulting costs, liabilities, damages and expenses, including reasonable
attorneys' fees ("Costs") arising out of (i) allegations that information and
content furnished by Affiliate hereunder violates the rights of any third party;
provided that the relevant claim does not arise from any modification by Company
or any other person not under Affiliate's control, or (ii) Affiliate's violation
of any term, condition, representation or warranty herein.
The HealthScout News Service, a Service of ScoutNews LLC
83 East Avenue, Suite 105, Norwalk, CT 06851
203-855-1400
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(b) Company shall indemnify, defend and hold harmless Affiliate, its
officers, employees, directors, affiliated companies and agents from and against
any and all third-party Claims and all resulting Costs arising out of: (i)
allegations that information and content furnished by Company hereunder violates
the rights of any third party; provided that the relevant claim does not arise
from any modification by Affiliate or any other person not under Company's
control, or (ii) Company's violation of any term, condition, representation or
warranty herein.
(c) Each party shall give the other prompt notice of any claim covered
by this Section, and the indemnifying party shall have the right and duty to
assume the control of the defense thereof with counsel reasonably acceptable to
the other party. The indemnified party may take part in the defense at its own
expense after the indemnifying party assumes the control thereof.
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K. FORCE MAJEURE.
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Neither party shall be liable for failure to perform hereunder due to acts of
war, public enemy, government, or any person engaged in subversive activity,
riot or sabotage; due to Acts of God, including but not limited to fire, flood,
storm, accident, explosion or other catastrophe, casualties, epidemic or
quarantine restrictions; due to strikes or other labor stoppages, slowdowns or
disputes; or due to delays by suppliers of material or services, inability to
obtain transportation, or any other cause beyond its reasonable control whether
similar or dissimilar to any cause listed herein. In the event of such delay,
the affected party shall promptly notify the other, and the parties shall
consult for the purpose of taking whatever remedial action is mutually deemed
appropriate.
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I. GENERAL
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The parties to this Agreement are independent contractors. Except as otherwise
expressly provided herein, nothing herein creates any joint venture,
partnership, agency, employment, fiduciary or other relationship between the
parties, and neither party is authorized to make contracts or commitments in the
name of or on behalf of the other without the other party's prior written
approval.
This Agreement shall be governed by the laws of the State of Connecticut without
regard to principles of conflicts of laws.
For: AFFILIATE Signed:
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Name: Date:
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Title:
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For: SCOUTNEWS LLC AND THE HEALTHSCOUT NEWS SERVICE Signed:
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Name: DAVID A. ROUATT Date:
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Title: MANAGING DIRECTOR
The HealthScout News Service, a Service of ScoutNews LLC
83 East Avenue, Suite 105, Norwalk, CT 06851
203-855-1400
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Exhibit A: News Feed Content to be Supplied to Affiliate
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Daily News Feed
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Description Today's Top Stories: 8-10 stories each day
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that covers the latest in the health world.
These are articles that are timely, written
for the consumer who wants up-to-the-minute
news about health and medicine.
Today's Health Headlines:
------------------------ A daily news roundup of
breaking stories in the world of health.
FYI: Three short helpful hints about your
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health each day.
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Story 15+ stories per day
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Headline Yes: all stories
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Blurb Yes: all stories
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Topic Flags 800+
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Editor's Message N/A
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Graphics 1 graphic per lead news story
(approximately 4 per day)
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Format XML
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Delivery Clients downloads news feed file using FTP
or HTTP protocol
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The HealthScout News Service, a Service of ScoutNews LLC
83 East Avenue, Suite 105, Norwalk, CT 06851
203-855-1400