Exhibit 10.18
Content Agreement with EarthLink Network, Inc.
dated October 27, 1999
CONTENT AGREEMENT
This Content Agreement (the "Agreement"), effective as of
October 27, 1999 (the "Effective Date"), is made and entered into by
and between EarthLink Network, Inc. (as "EarthLink"), a Delaware
corporation, and XxxxxxXxxxxxx.xxx ("HealthChannel"), a Delaware
corporation.
RECITALS
WHEREAS, EarthLink is an Internet service provider which owns,
licenses, operates or distributes online information, communication,
and transaction services through the EarthLink/Sprint Service;
WHEREAS, HealthChannel is an online provider of health and medical information,
which owns, operates and maintains the HealthChannel Site;
WHEREAS, the parties desire that HealthChannel provide the HealthChannel Content
through the Co-Branded Site (as hereinafter defined) and as a customizable
provider option of health news on the EarthLink Personal Start Page; and
WHEREAS, the parties desire that EarthLink provide links from
the EarthLink Site to the Co-Branded Site so that EarthLink Members and
Internet users may access such HealthChannel Content.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and other valuable and sufficient consideration, the
receipt of which is hereby acknowledged, EarthLink and HealthChannel
agree as follows:
TERMS
I. DEFINITIONS. THE FOLLOWING DEFINITIONS SHALL APPLY TO THE AGREEMENT:
A. "AFFILIATE" MEANS, WITH RESPECT TO EITHER PARTY, ANY PERSON OR
ENTITY AT ANY TIME CONTROLLING, CONTROLLED BY OR UNDER COMMON
CONTROL WITH THAT PARTY.
B. "CO-BRAND" MEANS THAT A PARTY WILL CAUSE ITS WEB PAGE TO
DISPLAY THE OTHER PARTY'S MARKS IN A MANNER THAT IS EQUAL IN
PROMINENCE AND POSITION TO ITS OWN MARKS APPEARING THEREON.
C. "CO-BRANDED SITE" MEANS A VERSION OF THE HEALTHCHANNEL SITE
CREATED, PROVIDED AND MAINTAINED BY HEALTHCHANNEL WHICH IS
CO-BRANDED WITH THE EARTHLINK/SPRINT MARKS.
D. "COMPANY INFORMATION" MEANS COLLECTIVELY THE CONFIDENTIAL
INFORMATION AND TRADE SECRETS OF THE DISCLOSING PARTY. COMPANY
INFORMATION ALSO INCLUDES INFORMATION WHICH HAS BEEN DISCLOSED
TO THE DISCLOSING PARTY BY A THIRD PARTY, AND THAT THE
DISCLOSING PARTY IS OBLIGATED TO TREAT AS CONFIDENTIAL OR
SECRET. EARTHLINK'S COMPANY INFORMATION INCLUDES, WITHOUT
LIMITATION, THE NAMES, CONTACT AND FINANCIAL INFORMATION
(INCLUDING, BUT NOT LIMITED TO CREDIT CARD INFORMATION AND
E-MAIL ADDRESSES) OF EARTHLINK MEMBERS. HEALTHCHANNEL'S
COMPANY INFORMATION INCLUDES, WITHOUT LIMITATION, THE NAMES,
CONTACT AND FINANCIAL INFORMATION (INCLUDING, BUT NOT LIMITED
TO CREDIT CARD INFORMATION AND E-MAIL ADDRESSES) OF USERS WHO
ACCESS THE CO-BRANDED SITE AND VOLUNTARILY AND DIRECTLY
PROVIDE HEALTHCHANNEL WITH SUCH INFORMATION.
E. "CONFIDENTIAL INFORMATION" MEANS ANY AND ALL INFORMATION
RELATED TO THE SERVICES AND/OR BUSINESS OF A PARTY THAT DOES
NOT CONSTITUTE A TRADE SECRET AND THAT IS TREATED AS
CONFIDENTIAL OR SECRET BY THE PARTY (THAT IS, IT IS THE
SUBJECT OF EFFORTS BY THE DISCLOSING PARTY THAT ARE REASONABLE
UNDER THE CIRCUMSTANCES TO MAINTAIN ITS SECRECY) INCLUDING,
BUT NOT LIMITED TO, THE TERMS AND CONDITIONS OF THIS
AGREEMENT. "CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE
INFORMATION (a) ALREADY LAWFULLY KNOWN TO OR INDEPENDENTLY
DEVELOPED BY THE RECEIVING PARTY, (b) DISCLOSED IN PUBLISHED
MATERIALS, (c) GENERALLY KNOWN TO THE PUBLIC, OR (d) LAWFULLY
OBTAINED FROM ANY THIRD PARTY WITHOUT ANY OBLIGATION OF
CONFIDENTIALITY.
F. "CONTROL," "CONTROLLING" AND "CONTROLLED" MEANS POSSESSING,
DIRECTLY OR INDIRECTLY, THE POWER TO DIRECT OR CAUSE THE
DIRECTION OF THE MANAGEMENT AND POLICIES OF AN ENTITY OR OTHER
PERSON, WHETHER THROUGH OWNERSHIP OF VOTING SECURITIES, BY
CONTRACT OR OTHERWISE.
G. "EARTHLINK COMPETITIVE SERVICES" MEANS ANY INTERNET ACCESS
SERVICES, TELEPHONE SERVICES (WHETHER LONG DISTANCE, WIRELESS
OR LOCAL), INTERNET TELEPHONY SERVICES, TELECOMMUNICATIONS
SERVICES (INCLUDING WITHOUT LIMITATION, ISDN, FRAME RELAY,
ADSL, ETC.), WEB HOSTING SERVICES, E-MAIL SERVICES (FREE OR
OTHERWISE), START PAGE SERVICES, OR PORTAL SERVICES, EXCEPT
EARTHLINK AND SPRINT AND THOSE SERVICES AND PRODUCTS OFFERED
BY EARTHLINK AND SPRINT.
H. "EARTHLINK MEMBER" MEANS ANY AUTHORIZED USER OF THE
EARTHLINK/SPRINT SERVICE.
I. "EARTHLINK PERSONAL START PAGE" REFERS GENERICALLY TO
EARTHLINK'S PERSONAL START PAGE, AND GENERALLY AS SAME MAY BE
MODIFIED BY EARTHLINK MEMBERS FROM TIME TO TIME AND IN THEIR
DISCRETION.
J. "EARTHLINK PREMIERE PARTNERS" MEANS A THIRD PARTY ENTERING
INTO OR WHICH HAS ENTERED INTO AN EXTENSIVE CO-PROMOTIONAL
PARTNERSHIP WITH EARTHLINK WHICH EARTHLINK DESIGNATES ITS
"PREMIERE PARTNERSHIP PROGRAM" OR SUCH OTHER NAME AS EARTHLINK
MAY DEVISE FROM TIME TO TIME. EARTHLINK WILL IDENTIFY ITS
PREMIERE PARTNERS IN WRITING TO HEALTHCHANNEL AS NEEDED TO
IMPLEMENT THE TERMS OF THIS AGREEMENT.
K. "EARTHLINK SITE" MEANS, COLLECTIVELY, ALL PAGES OF EARTHLINK'S
VARIOUS WEB SITES, THE EARTHLINK PERSONAL START PAGE AND ANY
OTHER WEB PAGES OWNED BY EARTHLINK AVAILABLE THROUGH
XXX.XXXXXXXXX.XXX (SPECIFICALLY EXCLUDING ANY PAGES OWNED OR
HOSTED BY THIRD PARTIES, REGARDLESS OF WHETHER OR NOT THEY
DISPLAY THE EARTHLINK/SPRINT MARKS).
L. "EARTHLINK/SPRINT SERVICE" MEANS THE STANDARD EARTHLINK
NARROWBAND DIAL-UP INTERNET ACCESS SERVICE.
M. "GUARANTEED REFERRALS" SHALL HAVE THE MEANING SET FORTH IN
SECTION 2.2(c).
N. "HEALTHCHANNEL CONTENT" MEANS THE HEALTH NEWS, INFORMATION AND
SERVICES THAT HEALTHCHANNEL PROVIDES THROUGH THE HEALTHCHANNEL
SITE, AND AS MAY BE EXPANDED FROM TIME TO TIME IN
HEALTHCHANNEL'S SOLE DISCRETION.
O. "HEALTHCHANNEL HEADLINES" MEANS THE NEWS HEADLINES, PROVIDED
BY HEALTHCHANNEL, THAT WILL APPEAR IN THE HEALTH NEWS AREA OF
THE EARTHLINK PERSONAL START PAGE. SUCH HEALTHCHANNEL
HEADLINES SHALL LINK TO THE FULL TEXT STORIES ON THE
CO-BRANDED SITE.
P. "HEALTHCHANNEL ICON" MEANS ANY GRAPHICAL OR TEXTUAL ICON WHICH
IS CAPABLE OF HYPERLINKING FROM THE EARTHLINK SITE TO THE
CO-BRANDED SITE INCLUDING, BUT NOT LIMITED TO, ANY BANNER
ADVERTISEMENTS AND PROMOTIONAL PLACEMENTS.
Q. "HEALTHCHANNEL SITE" MEANS, COLLECTIVELY, ALL POINTS OF
PRESENCE AND/OR SERVICES MAINTAINED FROM TIME TO TIME BY OR ON
BEHALF OF HEALTHCHANNEL OR ITS AFFILIATES ON THE INTERNET AT
(i) THE URL XXXXXXXXXXXXX.XXX (AND ANY REPLACEMENT OR
SUCCESSOR THERETO), (ii) EACH OTHER URL HAVING THE
XXXXXXXXXXXXX.XXX DOMAIN (AND ANY REPLACEMENT OR SUCCESSOR
THERETO), AND (iii) SUCH OTHER URLS AS HEALTHCHANNEL MAY
NOTIFY EARTHLINK FROM TIME TO TIME IN HEALTHCHANNEL'S SOLE
DISCRETION.
R. "INITIAL TERM" SHALL HAVE THE MEANING SET FORTH IN SECTION 6.1
HEREIN.
S. "MARKS" MEANS ANY TRADEMARK, TRADE NAME, SERVICE XXXX, LOGO,
SLOGAN AND COPYRIGHT AND PROPRIETARY NOTICES ASSOCIATED WITH A
PARTY'S PRODUCTS OR SERVICES.
T. "REFERRAL" MEANS EACH CLICK THROUGH TO THE HEALTHCHANNEL SITE
FROM THE EARTHLINK SITE, INCLUDING WITHOUT LIMITATION, EACH
CLICK THROUGH TO THE CO-BRANDED SITE FROM THE HEALTHCHANNEL
CONTENT AND HEALTHCHANNEL ICON.
U. "REFERRALS FEE(S)" SHALL HAVE THE MEANING SET FORTH IN SECTION
2.1(h).
V. "RENEWAL TERM(S)" SHALL HAVE THE MEANING SET FORTH IN SECTION
6.1 HEREIN.
W. "SPRINT" MEANS, COLLECTIVELY, SPRINT CORPORATION AND SPRINT
COMMUNICATIONS COMPANY L.P.
X. "TERM" MEANS THE INITIAL TERM AND ANY RENEWAL TERM(S) OF THIS
AGREEMENT AS DEFINED IN SECTION 6.1 HEREIN.
Y. "TERRITORY" MEANS THE UNITED STATES AND, AS MUTUALLY AGREED
UPON BY THE PARTIES, OTHER AREAS.
Z. "TRADE SECRETS" MEANS ALL NON-PUBLIC INFORMATION WHETHER
TANGIBLE OR INTANGIBLE RELATED TO THE SERVICES OR BUSINESS OF
THE DISCLOSING PARTY THAT (a) DERIVES ECONOMIC VALUE, ACTUAL
OR POTENTIAL, FROM NOT BEING GENERALLY KNOWN TO OR READILY
ASCERTAINABLE BY OTHER PERSONS WHO CAN OBTAIN ECONOMIC VALUE
FROM ITS DISCLOSURE OR USE; AND (b) IS THE SUBJECT OF EFFORTS
BY THE DISCLOSING PARTY THAT ARE REASONABLE UNDER THE
CIRCUMSTANCES TO MAINTAIN ITS SECRECY, INCLUDING, WITHOUT
LIMITATION, (i) MARKING ANY INFORMATION REDUCED TO TANGIBLE
FORM CLEARLY AND CONSPICUOUSLY WITH A LEGEND IDENTIFYING ITS
CONFIDENTIAL OR TRADE SECRET NATURE; (ii) IDENTIFYING ANY ORAL
COMMUNICATION AS CONFIDENTIAL OR SECRET IMMEDIATELY BEFORE,
DURING, OR AFTER SUCH ORAL COMMUNICATION; OR (iii) OTHERWISE
TREATING SUCH INFORMATION AS CONFIDENTIAL OR SECRET. ASSUMING
THE CRITERIA IN CLAUSES (a) AND (b) ABOVE ARE MET, TRADE
SECRETS INCLUDES INFORMATION, WITHOUT REGARD TO FORM,
INCLUDING, BUT NOT LIMITED TO, TECHNICAL AND NON-TECHNICAL
DATA, FORMULAS, PATTERNS, DESIGNS, COMPILATIONS, COMPUTER
PROGRAMS AND SOFTWARE, DEVICES, INVENTIONS, METHODS,
TECHNIQUES, DRAWINGS, PROCESSES, FINANCIAL DATA, FINANCIAL
PLANS, PRODUCT PLANS, LISTS OF ACTUAL OR POTENTIAL CUSTOMERS
AND SUPPLIERS WHICH ARE NOT COMMONLY KNOWN BY OR AVAILABLE TO
THE PUBLIC, RESEARCH, DEVELOPMENT, AND EXISTING AND FUTURE
PRODUCTS.
II. OBLIGATIONS OF THE PARTIES.
A. DUTIES AND OBLIGATIONS OF HEALTHCHANNEL. IN CONNECTION WITH
THIS AGREEMENT, HEALTHCHANNEL SHALL HAVE THE FOLLOWING DUTIES AND
OBLIGATIONS:
1. CONTENT LICENSE. During the Term and Renewal Term(s),
if any, and subject to the provision of Section 2.3
herein, HealthChannel grants to EarthLink and each of
its Affiliates a nonexclusive, nonsublicenseable,
royalty-free, worldwide license to use, reproduce,
display, and distribute the HealthChannel Content
including, but not limited to, teasers, headlines,
summaries and portions of the HealthChannel Content
in connection with links to or from, or in
conjunction with, the EarthLink Site, EarthLink
Personal Start Page or in or on any other media
including, but not limited to, any promotional
material or any of EarthLink's partners' Web sites,
but in each case only to the extent reasonably
necessary for EarthLink to perform as contemplated by
this Agreement. EarthLink agrees not to remove,
conceal or reposition any copyright or other
proprietary notice, legal disclaimer, or any
credit-line or date-line contained in the
HealthChannel Content (or otherwise create the
impression that Earthlink is the owner of the
HealthChannel Content). EarthLink agrees to use the
HealthChannel Content only in accordance with
applicable laws and the terms of this Agreement.
EarthLink agrees not to modify or edit any of the
HealthChannel Content without HealthChannel's prior
written consent which consent HealthChannel may
withhold in its reasonable discretion.
2. CONTENT STANDARDS. HealthChannel shall not provide
any HealthChannel Content that: (a) infringes any
intellectual property or publicity/privacy right; (b)
violates any law or regulation; (c) is defamatory,
obscene, harmful to minors or child pornographic; (d)
contains any viruses, Trojan horses, worms, time
bombs, cancelbots or other computer programming
routines that are intended to damage, detrimentally
interfere with, surreptitiously intercept or
expropriate any system, data or personal information;
or (e) is materially false, misleading or inaccurate.
3. OWNERSHIP. Except as otherwise provided in this
Agreement, as between HealthChannel and EarthLink:
(a) HealthChannel retains all right, title and
interest in and to all intellectual property rights
embodied in or associated with the HealthChannel
Content. There are no implied licenses under this
Agreement, and any rights not expressly granted to a
licensee hereunder are reserved by the licensor or
its suppliers. Neither party shall exceed the scope
of the licenses granted hereunder.
4. TRADEMARK LICENSE. During the Term, and subject to
the provisions of Section 2.3 herein, HealthChannel
grants to EarthLink and each of its Affiliates a
nonexclusive, nonsublicensable, royalty-free,
worldwide license to use, reproduce, display, and
distribute HealthChannel's Marks (as defined in
Exhibit B) in connection with links to or from, or in
conjunction with, the EarthLink Site, the EarthLink
Personal Start Page, or in or on any
other media including, but not limited to, any
promotional material or any of EarthLink's partners'
Web sites, but in each case only to the extent as
reasonably necessary for EarthLink to perform as
contemplated by this Agreement. EarthLink agrees not
to remove, conceal or reposition any copyright or
other proprietary notice, legal disclaimer, or any
credit-line or date-line contained in the
HealthChannel Content (or otherwise create the
impression that Earthlink is the owner of the
HealthChannel Content). EarthLink agrees to use the
HealthChannel Marks only in accordance with
applicable laws and the terms of this Agreement.
5. TRADEMARK RESTRICTIONS. HealthChannel may terminate
the foregoing trademark license if, in its reasonable
discretion, EarthLink's use of the Marks tarnishes,
blurs or dilutes the quality associated with the
Marks or the associated goodwill and such problem is
not cured within ten (10) days of notice of breach.
Title to and ownership of HealthChannel's Marks shall
remain with HealthChannel. EarthLink shall use the
HealthChannel Marks exactly in the form provided and
in conformance with any trademark usage policies
provided by HealthChannel. EarthLink shall not take
any action inconsistent with HealthChannel's
ownership of the HealthChannel Marks, and any
benefits accruing from use of such HealthChannel
Marks shall automatically vest in HealthChannel.
6. THE SERVICES. HealthChannel shall provide the
HealthChannel Content through the Co-Branded Site in
full compliance with the Service Specifications set
forth in EXHIBIT C hereto. HealthChannel shall be a
customizable health news provider option on the
EarthLink Personal Start Page. HealthChannel shall
update its HealthChannel Headlines on a regular basis
so as to maintain its freshness of content and
newsworthiness. The HealthChannel Content accessible
through the EarthLink Site shall only link to the
Co-Branded Site. HealthChannel shall design, create,
edit, manage, update and maintain the Co-Branded Site
for the purpose of providing Internet users with
access to the HealthChannel Content on a twenty-four
(24) hours per day, seven (7) days per week basis,
such that the HealthChannel Content provided through
the EarthLink Site and on the Co-Branded Site will
retain parity with the HealthChannel Content provided
by HealthChannel to any third party or through the
main HealthChannel Site in terms of freshness of
content, services and features. HealthChannel shall
Co-Brand every page of the Co-Branded Site that is
accessible by EarthLink Members. During the Term,
HealthChannel agrees to (i) work diligently with
EarthLink to promote the HealthChannel Content on the
EarthLink Site, and (ii) assist EarthLink in a
commercially reasonable manner to xxxxxx usage and
enjoyment of the HealthChannel Content by EarthLink
Members on an on-going basis.
7. GUARANTEED REFERRALS FEE. In exchange for the
Guaranteed Referrals more fully described in
Paragraph 2.2(c), HealthChannel shall pay to
EarthLink a nonrefundable fee of Thirty-Six Thousand
Dollars ($36,000) (the "Guaranteed Referrals Fee") as
follows: (1) twenty-five percent (25%) ($9,000) on
the Effective Date, or on a Renewal Date, as
applicable; (ii) twenty-five percent (25%) ($9,000)
within thirty (30) days following the end of three
(3) months after the Effective Date, or of a Renewal
Date, as applicable; (iii) twenty-five (25%) ($9,000)
within thirty (30) days following the end of six (6)
months after the Effective Date, or of a Renewal
Date, as applicable; and (iv) twenty-five percent
(25%) ($9,000) within thirty (30) days following the
end of nine (9) months after the Effective Date, or
of a Renewal Date, if applicable.
8. ADDITIONAL REFERRALS. In addition to the Guaranteed
Referrals Fee, HealthChannel shall pay to EarthLink
the sum of Ten Cents ($.10) per each Referral
generated under this Agreement in excess of the
Guaranteed Referrals (the "Referrals Fee"). The
Referrals Fee shall be paid to EarthLink on a
cumulative basis within two weeks following the end
of each calendar month that the Referrals are
generated during the Initial Term and each Renewal
Term, if any, accompanied by a report from
HealthChannel supporting each Referrals Fee.
9. CUSTOMER SUPPORT. HealthChannel shall provide, in a
professional and workmanlike manner, customer support
regarding the HealthChannel Content offered to
EarthLink Members through the Co-Branded Site, and
the purchasing and ordering thereof. HealthChannel
hereby agrees and acknowledges that such customer
support shall be accessible by EarthLink Members
twenty-four (24) hours a day, seven (7) days a week,
through a toll free telephone number to be provided,
paid for and maintained exclusively by HealthChannel,
which shall be referenced in the Co-Branded Site.
10. COMPETITIVE ADVERTISING. HealthChannel shall not
display advertising of any kind (co-operative or
otherwise) for, or otherwise promote in any way, any
EarthLink Competitive Services on any page of the
Co-Branded Site.
11. PREMIERE PARTNERS. HealthChannel shall set aside and
reserve an amount of space situated on the uppermost
portion of the screen in every page of the Co-Branded
Site, which space shall be suitably sizable, in
EarthLink's reasonable discretion, in order to
incorporate branding from EarthLink Premiere
Partners. EarthLink Premiere Partners appearing on
the Co-Branded Site will not include any providers
that are primarily engaged in the health and medical
information industry. HealthChannel shall, upon
EarthLink's direction, incorporate such EarthLink
Premiere Partners branding into the space referenced
above in any or all pages of the Co-Branded Site.
HealthChannel agrees and acknowledges that EarthLink
may, in its sole discretion, from time to time add or
remove such EarthLink Premiere Partners branding from
the Co-Branded Site and that HealthChannel will work
together with EarthLink to incorporate any
modifications to such EarthLink Premiere Partners
branding. This presence must include at least one
logo, GIF or HTML link, or branding, and an amount of
text which shall be determined in EarthLink's sole
discretion. The parties will work together to create
designs that are suitable, in EarthLink's sole
discretion, for each and all of these Co-Branded
pages, and HealthChannel will provide EarthLink with
design specifications and sample designs within
fifteen (15) days after the Effective Date in order
to allow EarthLink to generate new EarthLink Premiere
Partners branding. HealthChannel shall execute any
changes to pages of the Co-Branded Site required
under this Section 2.1(k).
12. USER INFORMATION. HealthChannel shall not send
unsolicited emails to any EarthLink Member.
HealthChannel may send promotional email messages to
EarthLink Members who elect to receive such emails,
through a registration process with HealthChannel
through which HealthChannel offers to the EarthLink
Member an opportunity to receive HealthChannel's
promotional email messages, and each HealthChannel
promotional email message will offer to the recipient
a means by which the recipient may unsubscribe to
such emailing list. Under no circumstances will
HealthChannel send or enable others to send email
messages to EarthLink Members which promote EarthLink
Competitive Services. In no event shall HealthChannel
offer to any third party a list which would permit
such third party to identify the HealthChannel user
as an EarthLink Member.
13. REPORTS. Within fifteen (15) days after the last day
of each calendar month, each party will provide the
other party with a monthly report of Referrals and
user traffic generated hereunder from the EarthLink
Site to the Co-Branded Site.
14. AUDIT. During the Term of the Agreement, and during
the one (1) year period immediately following the
Term, EarthLink shall have the right, upon reasonable
notice, during normal business hours, at EarthLink's
own expense, through an independent auditor chosen by
EarthLink, to audit HealthChannel's books, records
and logs that relate solely to the Guaranteed
Referrals Fee, the Referrals Fee or other payments
owed to EarthLink hereunder. If an audit of the
appropriate records, books of account or logs reveals
that HealthChannel has understated the amounts owed
to EarthLink under this Agreement for the
period under audit, then HealthChannel shall promptly
pay any amounts owed to EarthLink. If the amount of
underpayment for the period under audit equals or
exceeds five percent (5%) of the total amount owed
during such period, then HealthChannel shall reimburse
EarthLink for all reasonable costs and expenses
incurred in connection with conducting the audit.
15. TECHNICAL IMPLEMENTATION. HealthChannel shall work in
good faith with EarthLink Member Services and Support
regarding all technical implementation and
performance issues under this Agreement.
16. LATE PAYMENT. All amounts owed by HealthChannel to
EarthLink hereunder not paid when due and payable
will bear interest from the date such amounts are due
and payable at the rate of 1.5% per month (or the
maximum rate allowed by law).
B. DUTIES AND OBLIGATIONS OF EARTHLINK. IN CONNECTION WITH THIS
AGREEMENT, EARTHLINK SHALL HAVE THE FOLLOWING DUTIES AND
OBLIGATIONS:
1. TRADEMARK LICENSE. During the Term, and subject to
the provisions of Section 2.3, EarthLink grants to
HealthChannel a nonexclusive, nonsublicenseable,
nontransferable, fully paid-up license throughout the
Territory to display the EarthLink/Sprint Marks (as
defined in EXHIBIT A), the Premiere Partners' marks
and logos, and any and all intellectual property
rights contained therein exclusively on the
Co-Branded Site or in or on promotional material, but
only as such use is reasonably necessary for
HealthChannel to perform as contemplated by this
Agreement.
2. TRADEMARK RESTRICTIONS. EarthLink may terminate the
foregoing trademark license if, in its reasonable
discretion, HealthChannel's use of the EarthLink
Marks tarnishes, blurs or dilutes the quality
associated with the EarthLink Marks or the associated
goodwill and such problem is not cured within ten
(10) days of notice of breach. Title to and ownership
of EarthLink's Marks shall remain with EarthLink.
HealthChannel shall use then EarthLink Marks exactly
in the form provided and in conformance with any
trademark usage policies provided by EarthLink.
HealthChannel shall not create any combination Marks
with the EarthLink Marks. HealthChannel shall not
take any action inconsistent with EarthLink's
ownership of the EarthLink Marks, and any benefits
accruing from use of such EarthLink Marks shall
automatically vest in EarthLink.
3. GUARANTEED REFERRALS. During the Initial Term of this
Agreement or any Renewal Term, EarthLink shall
provide Three Hundred Sixty Thousand (360,000)
Referrals to HealthChannel (the "Guaranteed
Referrals"). If upon the scheduled date for
expiration of the Initial Term or Renewal Term,
EarthLink has failed to provide the Guaranteed
Referrals during such Initial Term or Renewal Term,
then such Initial Term or Renewal Term shall be
automatically extended until HealthChannel has
received, in the aggregate, the Guaranteed Referrals
and such failure shall not constitute a breach of
this Agreement; provided, however, that the Initial
Term or Renewal Term shall not be so extended if this
Agreement is terminated by either party early in
accordance with Sections 2.3, 3.1(b), 3.2(c), 6.2 or
EXHIBIT C of this Agreement.
4. MANAGING THE CONTENT. EarthLink shall include the
HealthChannel Content as a customizable health news
provider on the EarthLink Personal Start Page.
EarthLink shall place three (3) to five (5)
HealthChannel Headlines within the health news area
of the EarthLink Personal Start Page. Notwithstanding
the foregoing, HealthChannel acknowledges and agrees
that EarthLink Members may cause the health news
provider accessible through the EarthLink Site to be
provider(s) other than HealthChannel. HealthChannel
acknowledges and agrees that EarthLink has other
promotional programs
through which certain partners promote the EarthLink/
Sprint Service and provide new EarthLink Members to
EarthLink. HealthChannel further acknowledges and
agrees that certain promotional partners require the
ability to restrict the advertising that appears on
the EarthLink Site of EarthLink Members brought to
EarthLink through such promotional partner. Therefore,
HealthChannel agrees that EarthLink retains the right
to remove the HealthChannel Content from the EarthLink
Site (at EarthLink's sole discretion), in the event
that a promotional partner of EarthLink requires that
such a deletion or move be made, and then such
deletion or move will only be effective as regards the
EarthLink Site accessible by EarthLink Members brought
to EarthLink through the requesting promotional
partner.
C. PROMOTIONAL MATERIAL/PRESS RELEASES. EACH PARTY REQUIRES THAT
EACH USE OF ITS MARKS OR THE MARKS OF ITS LICENSORS BE IN
ACCORDANCE WITH EXHIBIT A, IN THE CASE OF EARTHLINK, AND
EXHIBIT B, IN THE CASE OF HEALTHCHANNEL. PRIOR TO THE INITIAL
LAUNCH OF ANY WEB PAGES OR OTHER INTERNET LOCATIONS BRANDED
WITH THE OTHER PARTY'S MARKS INCLUDING, BUT NOT LIMITED TO,
THE CO-BRANDED SITE OR THE RELEASE OF ANY MARKETING,
ADVERTISING, PRESS RELEASES, OR OTHER PROMOTIONAL MATERIALS
THAT REFERENCE THE OTHER PARTY AND/OR THE OTHER PARTY'S MARKS,
THE RELEASING PARTY SHALL SUBMIT A WRITTEN REQUEST FOR
APPROVAL TO THE OTHER PARTY TOGETHER WITH A COPY OF THE
MATERIALS TO BE RELEASED, WHICH REQUEST SHALL BE MADE NO LESS
THAN TEN (10) BUSINESS DAYS PRIOR TO THE REQUESTED RELEASE
DATE (THE OTHER PARTY SHALL NOT UNREASONABLY WITHHOLD OR DELAY
THE GRANTING OF ITS APPROVAL THEREOF).
D. PRESS RELEASES. HEALTHCHANNEL ACKNOWLEDGES AND AGREES THAT
EARTHLINK SHALL, WITHOUT DELAY, AND SCHEDULED IN REASONABLE
CONSULTATION WITH HEALTHCHANNEL, MAKE THE FIRST PUBLIC
ANNOUNCEMENT REGARDING THIS AGREEMENT AND THE PARTIES'
RELATIONSHIP ESTABLISHED HEREBY. ALL OTHER PRESS RELEASES ARE
SUBJECT TO BOTH PARTIES' PRIOR WRITTEN CONSENT.
E. NON-EXCLUSIVE ENGAGEMENT. HEALTHCHANNEL AGREES THAT EARTHLINK
MAY, IN ITS SOLE DISCRETION, RETAIN THIRD PARTIES WHICH
PROVIDE SERVICES AND FUNCTIONS SIMILAR OR IDENTICAL TO THE
HEALTHCHANNEL CONTENT AND ANY OTHER SERVICES OR FUNCTIONS
BEING PROVIDED BY HEALTHCHANNEL UNDER THIS AGREEMENT FOR
INCLUSION IN THE EARTHLINK SITE, AS EARTHLINK MAY CHOOSE IN
ITS SOLE DISCRETION. HEALTHCHANNEL FURTHER AGREES THAT
EARTHLINK MAY PROVIDE, IN ITS SOLE DISCRETION, PROMOTIONS
THROUGH THIRD PARTIES THAT ARE THE SAME AS OR SIMILAR TO THE
EARTHLINK PROMOTIONS PROVIDED HEREIN.
III. REPRESENTATIONS AND WARRANTIES.
A. EARTHLINK. EARTHLINK REPRESENTS AND WARRANTS TO HEALTHCHANNEL
THAT:
1. EarthLink has the power and authority to enter into
and perform its obligations under this Agreement; and
2. EarthLink has the full right to grant or otherwise
permit HealthChannel to use EarthLink's Marks, the
Premiere Partners' marks and logos and is aware of no
claims by any third parties adverse to any of such
intellectual property rights except for Sprint's
ownership of its Marks contained in the co-branded
EarthLink/Sprint Marks. If EarthLink's intellectual
property rights are alleged or held to infringe the
intellectual property rights of a third party,
EarthLink shall, at its own expense, and in its sole
discretion, (i) procure for HealthChannel the right
to continue to use the allegedly infringing
intellectual property or (ii) replace or modify the
intellectual property to make it non-infringing;
provided, however, if neither option is possible or
economically feasible and if the inability to use
such intellectual property would cause a material
breach of this Agreement (as determined by
HealthChannel), HealthChannel may immediately
terminate this Agreement upon notice to EarthLink.
B. HEALTHCHANNEL. HEALTHCHANNEL REPRESENTS AND WARRANTS TO
EARTHLINK THAT:
1. HealthChannel has the power and authority to enter
into and perform its obligations under this
Agreement;
2. HealthChannel and the HealthChannel Content shall at
all times comply with all local, state and federal
laws, rules and regulations of the United States
applicable to the Co-Branded Site, the HealthChannel
Content and HealthChannel's performance under this
Agreement; and
3. HealthChannel has the full right to grant or
otherwise permit EarthLink to access the Co-Branded
Site, to use the HealthChannel Content and to use
HealthChannel's Marks, and is aware of no claims by
any third parties adverse to any of such intellectual
property rights. If HealthChannel's intellectual
property rights are alleged or held to infringe the
intellectual property rights of a third party,
HealthChannel shall, at its own expense, and in its
sole discretion, (i) procure for EarthLink the right
to continue to use the allegedly infringing
intellectual property or (ii) replace or modify the
intellectual property to make it non-infringing;
provided, however, that if neither option is possible
or economically feasible and if the inability to use
such intellectual property would cause a material
breach of this Agreement (as determined by
EarthLink), EarthLink may immediately terminate this
Agreement upon notice to HealthChannel.
IV. CONFIDENTIALITY. EACH PARTY ACKNOWLEDGES THAT COMPANY
INFORMATION MAY BE DISCLOSED TO THE OTHER PARTY DURING THE
COURSE OF THIS AGREEMENT. EACH PARTY AGREES THAT IT SHALL TAKE
REASONABLE STEPS, WHICH SHALL INCLUDE, AT A MINIMUM, THE STEPS
IT TAKES TO PROTECT ITS OWN COMPANY INFORMATION, TO PREVENT
THE DUPLICATION OR DISCLOSURE OF COMPANY INFORMATION, OTHER
THAN BY OR TO ITS EMPLOYEES OR AGENTS WHO MUST HAVE ACCESS TO
THE COMPANY INFORMATION TO PERFORM SUCH PARTY'S OBLIGATIONS
HEREUNDER, AND TO FINANCIAL INVESTORS, LENDING INSTITUTIONS
AND EACH OF THEIR ACCOUNTANTS AND LEGAL COUNSEL, WHO SHALL
EACH AGREE TO COMPLY WITH THE TERMS OF THIS SECTION 4. EACH
PARTY AGREES THAT IF IT IS REQUIRED BY LAW TO DISCLOSE THE
OTHER PARTY'S COMPANY INFORMATION, SUCH DISCLOSING PARTY MUST
FIRST GIVE WRITTEN NOTICE OF SUCH REQUIRED DISCLOSURE TO THE
OTHER PARTY AND MAKE A REASONABLE EFFORT TO OBTAIN A
PROTECTIVE ORDER REQUIRING THAT THE COMPANY INFORMATION SO
DISCLOSED BE USED ONLY FOR THE PURPOSES FOR WHICH DISCLOSURE
IS REQUIRED. EACH PARTY SHALL PROTECT THE OTHER PARTY'S
COMPANY INFORMATION DURING THE TERM AND FOR TWO (2) YEARS
AFTER THE TERMINATION OF THIS AGREEMENT.
V. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
A. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF
PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY, MULTIPLE, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON
CONTRACT, TORT (INCLUDING WITHOUT LIMITATION,
NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL
OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER
PARTY SHALL MAKE REPRESENTATIONS OR WARRANTIES TO ANY
END USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY
AND IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY REPRESENTATION OR WARRANTY MADE
TO ANY END USER OR THIRD PARTY BY THE OTHER PARTY.
THESE LIMITATIONS SHALL SURVIVE AND APPLY
NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES
PROVIDED FOR IN THE AGREEMENT. THE LIMITATIONS SET
FORTH IN THIS SECTION 5.1 SHALL NOT APPLY TO THE
PARTIES' INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 5.3 BELOW OR TO THE PARTIES' INJUNCTIVE
RELIEF REMEDIES SET FORTH IN SECTION 5.4 BELOW.
B. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY
SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE
EARTHLINK/SPRINT SERVICE, THE CO-BRANDED SITE, THE
HEALTHCHANNEL SITES OR THE HEALTHCHANNEL CONTENT OR
OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING
FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
C. INDEMNITY. EACH PARTY AGREES TO INDEMNIFY, DEFEND AND
HOLD HARMLESS THE OTHER PARTY AND ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS
FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES,
DAMAGES, PENALTIES AND CLAIMS AND ALL RELATED COSTS
AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
RELATED TO CLAIMS MADE BY THIRD PARTIES AGAINST THE
INDEMNIFIED PARTY ALLEGING THAT THE INDEMNIFYING
PARTY'S MARKS OR OTHER INTELLECTUAL PROPERTY INFRINGE
THE PATENTS, COPYRIGHTS, TRADEMARKS OR SERVICE MARKS
OR OTHER INTELLECTUAL PROPERTY RIGHTS OF SUCH THIRD
PARTIES. HEALTHCHANNEL AGREES TO FURTHER INDEMNIFY,
DEFEND AND HOLD HARMLESS EARTHLINK FROM AND AGAINST
ALL THIRD PARTY CLAIMS, CAUSES OF ACTION, LIABILITIES
AND ALL ASSOCIATED REASONABLE COSTS AND EXPENSES
RELATING TO ANY TRANSACTIONS DIRECTLY CONDUCTED
THROUGH, OR THE QUALITY OR NATURE OF PRODUCTS OR
SERVICES APPEARING ON OR PROVIDED DIRECTLY THROUGH,
THE HEALTHCHANNEL CONTENT OR THE CO-BRANDED SITE,
SPECIFICALLY EXCLUDING PREMIERE PARTNERS' PRODUCTS OR
SERVICES AND EARTHLINK'S PRODUCTS OR SERVICES. EACH
PARTY AGREES TO PROMPTLY NOTIFY THE INDEMNIFYING
PARTY IN WRITING OF ANY INDEMNIFIABLE CLAIM. THE
INDEMNIFIED PARTY SHALL COOPERATE IN ALL REASONABLE
RESPECTS WITH THE INDEMNIFYING PARTY AND ITS
ATTORNEYS IN THE INVESTIGATION, TRIAL, DEFENSE AND
SETTLEMENT OF SUCH CLAIM AND ANY APPEAL ARISING
THEREFROM. THE INDEMNIFIED PARTY MAY PARTICIPATE IN
SUCH INVESTIGATION, TRIAL, DEFENSE AND SETTLEMENT OF
SUCH CLAIM AND ANY APPEAL ARISING THEREFROM, THROUGH
ITS ATTORNEYS OR OTHERWISE, AT ITS OWN COST AND
EXPENSE. NO SETTLEMENT OF A CLAIM THAT INVOLVES A
REMEDY OTHER THAN THE PAYMENT OF MONEY BY THE
INDEMNIFYING PARTY SHALL BE ENTERED INTO WITHOUT THE
CONSENT OF THE INDEMNIFIED PARTY, WHICH CONSENT WILL
NOT BE UNREASONABLY WITHHELD.
D. INJUNCTIVE RELIEF. THE PARTIES HEREBY AGREE AND
ACKNOWLEDGE THAT VIOLATION BY ONE PARTY OF THE
PROVISIONS OF SECTIONS 2.1(l) OR 4 MAY CAUSE
IRREPARABLE HARM TO THE OTHER PARTY NOT ADEQUATELY
COMPENSABLE BY MONETARY DAMAGES. IN ADDITION TO OTHER
RELIEF, IT IS AGREED THAT EACH PARTY MAY SEEK
TEMPORARY AND PERMANENT INJUNCTIVE RELIEF TO PREVENT
ANY ACTUAL OR THREATENED VIOLATION OF SUCH PROVISIONS
AS PROVIDED BY LAW.
XIV. TERM, RENEWAL AND TERMINATION.
A. TERM. THE INITIAL TERM OF THIS AGREEMENT SHALL BE ONE
(1) YEAR FROM THE EFFECTIVE DATE OF THIS AGREEMENT
(THE "INITIAL TERM"). AFTER THE INITIAL TERM, THIS
AGREEMENT SHALL AUTOMATICALLY RENEW (ANY SUCH RENEWAL
DATE REFERRED TO HEREIN AS A "RENEWAL DATE") FOR
SEPARATE, CONSECUTIVE ONE (1) YEAR TERMS ("RENEWAL
TERM(S)") UNLESS WRITTEN NOTICE OF TERMINATION IS
GIVEN BY EARTHLINK THIRTY (30) DAYS PRIOR TO THE
EXPIRATION OF THE INITIAL OR RENEWAL TERM. IF THE
GUARANTEED REFERRALS ARE NOT MET DURING ANY INITIAL
TERM OR RENEWAL TERM(S), ANY SUCH TERMS WILL BE
EXTENDED UNTIL SUCH GUARANTEED REFERRAL AMOUNT IS
MET, ACCORDING TO SECTION 2.2(c) OF THIS AGREEMENT.
B. TERMINATION. THIS AGREEMENT MAY BE TERMINATED BY THE
PARTIES AS FOLLOWS:
1. Either party may terminate this Agreement at
any time in the event of a material breach
by the other party of this Agreement that
remains uncured thirty (30) days after the
breaching party's receipt of written notice
of the breach;
2. Either party may terminate this Agreement
immediately if the other party is unable to
pay its debts as due, or enters into or
files (or has filed or commenced against it)
a petition, arrangement, action or other
proceeding seeking relief or protection
under the bankruptcy
laws of the United States or similar laws of
the United States or any state of the United
States; and
3. Either party may terminate this Agreement,
at its option, upon thirty (30) days written
notice in the event that either party
discontinues its website. In the event of
termination pursuant to this section, the
parties will have no further obligation to
each other following the effective date of
the termination, and all fees payable in
advance, if any, shall be prorated as of the
effective date of the termination, with
appropriate refunds made.
C. EFFECTS OF TERMINATION. WITHIN SEVENTY TWO (72) HOURS AFTER
TERMINATION OF THIS AGREEMENT FOR ANY REASON, EACH PARTY
SHALL: (i) PURGE ALL MARKS AS USED IN CONNECTION WITH THIS
AGREEMENT FROM ANY AND ALL COMPUTER SYSTEMS, FILES, OR STORAGE
MEDIA WITHIN THEIR POSSESSION OR CONTROL; (ii) RETURN TO THE
OTHER PARTY ANY AND ALL DOCUMENTS OR OTHER MEDIA EMBODYING ANY
USE OF THE OTHER PARTY'S MARKS; AND (iii) CERTIFY TO THE OTHER
PARTY IN WRITING THAT IT HAS COMPLIED WITH THE FOREGOING
OBLIGATIONS. UPON ANY TERMINATION OR OTHER EXPIRATION OF THIS
AGREEMENT, EACH OF THE RESPECTIVE LICENSES GRANTED IN SECTIONS
2.1(a), 2.1(d) AND 2.2(a) AND ALL OTHER RIGHTS OF THE PARTIES
UNDER THIS AGREEMENT SHALL TERMINATE, EXCEPT THAT,
NOTWITHSTANDING ANY OF THE FOREGOING, THE RIGHTS AND
OBLIGATIONS UNDER SECTIONS 2.1(l), 2.1(n), 2.1(p), 4, 5, 6.3,
6.4 AND 7 HEREIN SHALL CONTINUE IN FULL FORCE AND EFFECT.
D. NO DAMAGES OR INDEMNIFICATION FOR TERMINATION. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY FOR ANY COSTS OR DAMAGES OF
ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR
FOR INDEMNIFICATION, SOLELY ON ACCOUNT OF THE LAWFUL
TERMINATION OF THIS AGREEMENT, EVEN IF INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES.
XI. GENERAL PROVISIONS.
A. INDEPENDENT CONTRACTORS. THE PARTIES TO THIS AGREEMENT ARE
INDEPENDENT PARTIES AND NOTHING HEREIN SHALL BE CONSTRUED AS
CREATING AN EMPLOYMENT RELATIONSHIP BETWEEN THE PARTIES.
NEITHER PARTY IS AN AGENT OR REPRESENTATIVE OF THE OTHER PARTY
AND NEITHER PARTY SHALL HAVE ANY RIGHT, POWER OR AUTHORITY TO
ENTER INTO ANY AGREEMENT FOR OR ON BEHALF OF, OR INCUR ANY
OBLIGATION OR LIABILITY, OR TO OTHERWISE BIND, THE OTHER
PARTY. THE AGREEMENT SHALL NOT BE INTERPRETED OR CONSTRUED TO
CREATE AN ASSOCIATION, AGENCY, JOINT VENTURE OR PARTNERSHIP
BETWEEN THE PARTIES OR TO IMPOSE ANY LIABILITY ATTRIBUTABLE TO
SUCH A RELATIONSHIP UPON EITHER PARTY.
B. ENTIRE AGREEMENT. THE AGREEMENT, INCLUDING ANY EXHIBITS
ATTACHED HERETO, CONSTITUTES THE ENTIRE UNDERSTANDING AND
AGREEMENT WITH RESPECT TO ITS SUBJECT MATTER, AND SUPERSEDES
ANY AND ALL PRIOR OR CONTEMPORANEOUS REPRESENTATIONS,
UNDERSTANDINGS AND AGREEMENTS WHETHER ORAL OR WRITTEN BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT,
ALL OF WHICH ARE MERGED IN THIS AGREEMENT.
C. SEVERABILITY OF PROVISIONS. IN THE EVENT THAT ANY PROVISION OF
THIS AGREEMENT IS FOUND TO BE INVALID OR UNENFORCEABLE
PURSUANT TO JUDICIAL DECREE OR DECISION, THE REMAINDER OF THIS
AGREEMENT SHALL REMAIN VALID AND ENFORCEABLE ACCORDING TO ITS
TERMS.
D. ASSIGNMENT. THE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER MAY NOT, WHETHER VOLUNTARILY OR INVOLUNTARILY,
DIRECTLY OR INDIRECTLY, BE ASSIGNED, SUBLICENSED, SOLD OR
OTHERWISE TRANSFERRED (INCLUDING BY OPERATION OF LAW) BY
HEALTHCHANNEL, INCLUDING, WITHOUT LIMITATION, TO ANY
SUCCESSOR-IN-INTEREST TO ANY OF HEALTHCHANNEL'S ASSETS,
WITHOUT THE PRIOR WRITTEN CONSENT OF EARTHLINK, WHICH CONSENT
SHALL BE GIVEN OR NOT IN EARTHLINK'S SOLE DISCRETION. ANY
ASSIGNMENT IN VIOLATION OF THE TERMS HEREOF SHALL BE VOID AND
OF NO FORCE OR EFFECT. ASSIGNMENT TO AN AFFILIATE OF
HEALTHCHANNEL WILL NOT BE PROHIBITED BY THIS CLAUSE.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY,
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF EARTHLINK
HEREUNDER, SHALL BE
AUTOMATICALLY ASSIGNED TO AND ASSUMED BY WWW HOLDINGS, INC.
(TO BE RENAMED EARTHLINK NETWORK, INC.") UPON THE MERGER OF
EARTHLINK AND MINDSPRING ENTERPRISES, INC. INTO WWW HOLDINGS,
INC. AND HEALTHCHANNEL SHALL HAVE NO RIGHT TO TERMINATE THIS
AGREEMENT AS A RESULT OF SUCH ASSIGNMENT AND ASSUMPTION.
E. GOVERNING LAW; JURISDICTION; ATTORNEYS' FEES. THE AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF CALIFORNIA WITHOUT GIVING
EFFECT TO APPLICABLE CONFLICT OF LAWS PROVISIONS. ALL ACTIONS
WITH RESPECT OF THIS AGREEMENT SHALL BE BROUGHT IN THE FEDERAL
AND STATE COURTS HAVING JURISDICTION WITHIN LOS ANGELES,
CALIFORNIA, AND THE PARTIES EXPRESSLY CONSENT TO THE PERSONAL
JURISDICTION OF SUCH COURTS. IN THE EVENT ANY LITIGATION OR
OTHER PROCEEDING IS BROUGHT BY EITHER PARTY IN CONNECTION WITH
THIS AGREEMENT, THE PREVAILING PARTY IN SUCH LITIGATION OR
OTHER PROCEEDING SHALL BE ENTITLED TO RECOVER FROM THE OTHER
PARTY ALL COSTS, ATTORNEYS' FEES AND OTHER EXPENSES INCURRED
BY SUCH PREVAILING PARTY IN SUCH LITIGATION.
F. NOTICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT,
ALL NOTICES REQUIRED HEREUNDER SHALL BE IN WRITING AND SHALL
BE GIVEN BY PERSONAL DELIVERY, OVERNIGHT COURIER SERVICE, OR
FIRST CLASS MAIL POSTAGE PREPAID, TO THE PARTIES AT THEIR
RESPECTIVE ADDRESSES SET FORTH BELOW IN THIS SECTION 7.6, OR
AT SUCH OTHER ADDRESS(ES) AS SHALL BE SPECIFIED IN WRITING BY
SUCH PARTY TO THE OTHER PARTY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THIS SECTION 7.6. ALL NOTICES SHALL BE DEEMED
EFFECTIVE UPON PERSONAL DELIVERY, OR THREE (3) BUSINESS DAYS
FOLLOWING DEPOSIT WITH ANY OVERNIGHT COURIER SERVICE OR WITH
THE U.S. POSTAL SYSTEM, FIRST CLASS POSTAGE ATTACHED, IN
ACCORDANCE WITH THIS SECTION 7.6. NOTICES SHALL BE SENT AS
FOLLOWS:
if to HealthChannel: Xxxxxx Xxxxxxxx, C.O.O.
xxxxxxxxxxxxxxxx.xxx, Inc
0000 X. Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xx 00000
with a copy to: Xxxxx Xxxxxxx
Xxxxxxx & Beam
Two Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xx 00000
If to EarthLink: EarthLink Network, Inc.
0000 Xxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Director of Legal Affairs
with copies to: Xxxxxx Xxxxxxxxx, V.P. Business
Development
Xxxxxx Xxxxxxx, V.P. Business Affairs
EarthLink Network, Inc.
0000 Xxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
G. NON-SOLICITATION. DURING THE TERM OF THIS AGREEMENT AND FOR A
PERIOD OF TWELVE (12) MONTHS FOLLOWING THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT, NEITHER PARTY MAY DIRECTLY OR
INDIRECTLY, SOLICIT, DIVERT OR HIRE AWAY, OR ATTEMPT TO
SOLICIT, DIVERT OR HIRE AWAY ANY PERSON EMPLOYED BY THE OTHER
PARTY WITH WHOM SUCH PARTY HAD REGULAR CONTACT WITH DURING THE
COURSE OF ITS PERFORMANCE UNDER THIS AGREEMENT, UNLESS SUCH
PERSON'S EMPLOYMENT HAS BEEN TERMINATED FOR AT LEAST SIX (6)
MONTHS OR UNLESS THE OTHER PARTY GIVES ITS PRIOR CONSENT TO
SUCH HIRING, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD.
NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL PREVENT
EITHER PARTY FROM CONSIDERING FOR EMPLOYMENT OR HIRING ANY
INDIVIDUAL, WHETHER OR NOT AN EMPLOYEE OF THE OTHER PARTY, WHO
HAS
RESPONDED TO A GENERAL SOLICITATION FOR EMPLOYMENT FROM
EITHER PARTY IN A NEWSPAPER ANNOUNCEMENT OR OTHER PUBLIC
SOLICITATION.
H. WAIVER. NO WAIVER OF ANY PROVISION OF THIS AGREEMENT, OR ANY
RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT,
SHALL BE EFFECTIVE, EXCEPT PURSUANT TO A WRITTEN INSTRUMENT
SIGNED BY THE PARTY OR PARTIES WAIVING COMPLIANCE, AND ANY
SUCH WAIVER SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE
AND FOR THE SPECIFIC PURPOSE STATED IN SUCH WRITING.
I. HEADINGS. THE SECTION AND PARAGRAPH HEADINGS USED IN THIS
AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND SHALL NOT
AFFECT THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
J. AMENDMENT. THE TERMS AND CONDITIONS OF THIS AGREEMENT MAY NOT
BE MODIFIED OR AMENDED OTHER THAN BY A WRITING SIGNED BY BOTH
PARTIES.
K. SPRINT INTELLECTUAL PROPERTY RIGHTS. EARTHLINK MARKETS ITS
INTERNET ACCESS SERVICES UNDER THE EARTHLINK/SPRINT BRAND.
THEREFORE, BOTH EARTHLINK AND SPRINT MARKS ARE LIKELY TO
APPEAR ON ANY WEB PAGE THAT INCLUDES AN EARTHLINK/SPRINT
BRAND. TO THE EXTENT THAT SUCH SPRINT BRANDS OR MARKS ARE
USED, HEALTHCHANNEL ACKNOWLEDGES AND AGREES THAT SPRINT IS A
THIRD PARTY BENEFICIARY HEREUNDER AND HAS THE RIGHT TO ENFORCE
ANY PROVISION OF THIS AGREEMENT THAT RELATES TO ANY
INTELLECTUAL PROPERTY OR MARKS OF EARTHLINK OR SPRINT.
L. FORCE MAJEURE. EITHER PARTY SHALL BE EXCUSED FROM ANY DELAY OR
FAILURE IN PERFORMANCE HEREUNDER CAUSED BY REASON OF ANY
OCCURRENCE OR CONTINGENCY BEYOND ITS REASONABLE CONTROL,
INCLUDING BUT NOT LIMITED TO, ACTS OF GOD, EARTHQUAKE, LABOR
DISPUTES AND STRIKES, RIOTS, WAR, COMMON CARRIER
INTERRUPTIONS, BREAKDOWN IN FACILITIES AND GOVERNMENTAL
REQUIREMENTS. NOTWITHSTANDING THE FOREGOING, A CHANGE IN
ECONOMIC CONDITIONS OR TECHNOLOGY SHALL NOT BE DEEMED A FORCE
MAJEURE EVENT. THE OBLIGATIONS AND RIGHTS OF THE PARTY SO
EXCUSED SHALL BE EXTENDED ON A DAY-TO-DAY BASIS FOR THE PERIOD
OF TIME EQUAL TO THAT OF THE UNDERLYING CAUSE OF THE DELAY.
M. EXECUTION IN COUNTERPARTS AND BY FACSIMILE. THE AGREEMENT MAY
BE EXECUTED IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL, BUT ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE BUT
ONE AND THE SAME INSTRUMENT. THE AGREEMENT MAY BE EXECUTED AND
DELIVERED BY FACSIMILE AND THE PARTIES AGREE THAT SUCH
FACSIMILE EXECUTION AND DELIVERY SHALL HAVE THE SAME FORCE AND
EFFECT AS DELIVERY OF AN ORIGINAL DOCUMENT WITH ORIGINAL
SIGNATURES, AND THAT EACH PARTY MAY USE SUCH FACSIMILE
SIGNATURES AS EVIDENCE OF THE EXECUTION AND DELIVERY OF THIS
AGREEMENT BY ALL PARTIES TO THE SAME EXTENT THAT AN ORIGINAL
SIGNATURE COULD BE USED.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the Effective Date set forth above.
EARTHLINK NETWORK, INC. XXXXXXXXXXXXX.XXX
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------- -------------------
Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx, C.O.O.
V.P. Business Development Xxxxxxxxxxxxxxxx.xxx, Inc.
EarthLink Network, Inc. 0000 X. Xxxxx Xxxxxxx #000
0000 Xxx Xxxx Xxxxx Xxxxxxx Xxxxx, Xx 00000
Xxxxxxxx, Xxxxxxxxxx 00000 Phone: (000) 000.0000
Phone: (000) 000-0000 Fax: (000) 000.0000
Fax: (000) 000-0000
EXHIBIT A
EARTHLINK MARKS
--------------------------------------------------------------------------------
NOTE: THIS EXHIBIT A MAY BE AMENDED FROM TIME TO TIME AS REQUIRED BY EARTHLINK
AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
TRADEMARKS, TRADE NAMES, LOGOS AND OTHER PRODUCT AND PROPRIETARY IDENTIFIERS.
EarthLink Network-Registered Trademark-
EarthLink Network TotalAccess-TM-
EarthLink Network-Registered Trademark- is a registered trademark of EarthLink
Network, Inc.
EarthLink Network TotalAccess-Registered Trademark- is a trademark of EarthLink
Network, Inc.
EarthLink Sprint-SM- and the EarthLink Sprint logo are registered trademarks of
EarthLink Network, Inc. and Sprint Corporation
--------------------------------------------------------------------------------
EXHIBIT B
HEALTHCHANNEL MARKS
--------------------------------------------------------------------------------
NOTE: THIS EXHIBIT B MAY BE AMENDED FROM TIME TO TIME AS REQUIRED BY
HEALTHCHANNEL AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
TRADEMARKS, TRADE NAMES, LOGOS AND OTHER PRODUCT AND PROPRIETARY IDENTIFIERS.
Thehealthchannel.com-TM- The Health Channel.com-TM-
[LOGO]
The Health Channel.com-TM-
Answers. Where and when you want them-TM-
RxDirect-TM- RxDirect@Thehealthchannel.
Com-TM-
RxDirect.com-TM- House CallS-TM-
Digital City Hospital-TM- The Health Metropolis-TM-
The Medicine Chest-TM- Doctors Exchange-TM-
The Medicine Bag-TM-
--------------------------------------------------------------------------------
EXHIBIT C
SERVICE SPECIFICATIONS
1. SERVICE INTERRUPTIONS. For the purposes of this Agreement, the
following issues are defined as "Service Interruptions":
a) "Complete Outage". means the Co-Branded Site is not reachable by
EarthLink Members for fifteen (15) minutes or more; provided however, that
HealthChannel may perform major system upgrades and/or service maintenance on a
scheduled and pre-announced basis which may put the Co-Branded Site down for up
to eight (8) hours.
b) "Partial Outage". means the Co-Branded Site is reachable by less than
ninety percent (90%) of EarthLink Members, or the response time for a 50K HTML
page is greater than thirty (30) seconds.
c) "URL Errors". means any errors in URL's, missing pages, or typos in
URLs including any HealthChannel error that causes EarthLink to present an
incorrect URL on the EarthLink Site, or which causes EarthLink to attempt to
harvest information from an incorrect URL.
d) "Data Handling Errors". means any incorrect handling of user data, such
as where an end user registers for a service that is then not delivered in the
manner promoted to the end user.
2. RESPONSE TEAM. HealthChannel will at all times during the Term, and any
Renewal Term(s), and at HealthChannel's sole cost and expense, maintain, on a
twenty-four (24) hour, seven (7) days a week basis, a contact person responsible
for monitoring the Co-Branded Site. The contact person will be available to
EarthLink on a twenty-four (24) hour, seven (7) days a week basis by phone and
email for consultation on Service Interruption issues and to assist in the
restoration of service following a Service Interruption. HealthChannel will
provide EarthLink with the names and phone numbers and email addresses of its
contact person, and ensure that any changes to the contact information is
provided to EarthLink.
3. ESCALATION PROCEDURES.
a) In the event of a Complete Outage, the HealthChannel contact person
will contact EarthLink as soon as possible following HealthChannel's
identification of a Service Interruption and will notify EarthLink of the nature
of the Service Interruption and the estimated time of resumption of service.
HealthChannel's contact person will keep the EarthLink notified of progress in
resolving the Service Interruption. If the Service Interruption is estimated to
last longer than thirty (30) minutes, EarthLink will have the option, at
EarthLink's sole discretion, of:
i) removing any links or references to the Co-Branded
Site from the EarthLink Site until such time that the Service
Interruption ceases; or
ii) to redirect any links to any web address experiencing
a Service Interruption, to an explanatory page of EarthLink's
choosing. EarthLink may publish such explanatory page, and may
choose in its sole discretion the wording of any explanatory
messages on such page.
In the event HealthChannel experiences more than two (2) Complete Outages in any
six (6) month period, EarthLink may terminate the Agreement immediately upon
written notice to HealthChannel.
b) Partial Outage. Shall be managed by HealthChannel in all respects
identically to a Complete Outage, except that EarthLink will not have the right
to remove any link or reference to the Co-Branded Site.
In the event HealthChannel experiences more than four (4) Partial Outages in any
six (6) month period, EarthLink may terminate the Agreement immediately upon
written notice to HealthChannel.
c) URL Errors and Data Handling Errors. EarthLink will contact
HealthChannel with regards to any URL Error or Data Handling Error, and
HealthChannel will work in a commercially reasonable manner to repair such
Service
Interruption. EarthLink may remove any links or references on the EarthLink Site
to the Co-Branded Site until such time as the Service Interruption is repaired
to EarthLink's reasonable satisfaction. If the URL Error or Data Handling Error
is not corrected within seventy two (72) hours of first notification, EarthLink
would have the right to permanently remove any links or references on the
EarthLink Site to the Co-Branded Site.
4. HEALTHCHANNEL NOTICE. HealthChannel will give EarthLink no less than
fifteen (15) days prior notice of any changes to its URLs, harvest
specifications, or any of its processes and procedures that will affect the
manner in which EarthLink harvests information off of the Co-Branded Site.
