EXHIBIT 10.13
Service Xxxx License and Access Agreement
-----------------------------------------
This Service Xxxx License and Access Agreement ("Agreement") is made as of
this 18/th/ day of August, 1999 ("Effective Date"), between xxxx.xxx, Inc., a
Delaware corporation ("Licensee") and Bergen Xxxxxxxx Drug Company, a California
corporation ("Licensor").
1. License to Service Marks. Licensor hereby grants to Licensee, during
------------------------
the term of the Internet Fulfillment Services Agreement dated July 1, 999
between the parties ("Fulfillment Agreement"), unless sooner terminated in
accordance with this Agreement, a non-exclusive, revocable (as expressly set
forth herein) license ("License") for the use of the Service Marks "Good
Neighbor", "Good Neighbor Pharmacy" and "PlusCare", and their associated
goodwill, which Licensor owns (collectively, "Licensed Marks") solely in
connection with Licensee's business, subject to the terms and conditions
contained in this Agreement on a royalty-free basis. Licensee acknowledges that
Licensor is the owner of all proprietary rights in and to the Licensed Marks and
that Licensee acquires no right, title or interest in and to the same
whatsoever, other than the right to use the Licensed Marks in accordance with
the terms of this Agreement. Licensee will immediately notify Licensor in
writing of any infringement or limitation of the Licensed Marks that may come to
Licensee's attention.
2. Quality Specifications. Since the activities of Licensee will reflect
----------------------
on the Licensed Marks, Licensee will operate its business with diligence and
vigor, will maintain the highest possible ethics and will maintain its
operations in a manner that will reflect the high standards and quality
attributable to the Licensed Marks. Licensee will fully comply in all material
respects with all laws, rules and regulations applicable to Licensee's business
and the conduct thereof. Except as otherwise set forth in this Agreement,
Licensee will use the Licensed Marks only in accordance with Licensor's
reasonable specifications regarding the Licensed Marks, including without
limitation, specifications concerning standards of quality, use, advertising and
promotion, as such specifications may be modified from time to time in the sole
discretion of Licensor but on reasonable prior notice to Licensee before
Licensee is required to comply ("Quality Specifications"). If at any time
services provided by Licensor fail to conform to the Quality Specifications,
Licensor will so notify Licensee of such non-conformance. Upon such
notification, Licensor will promptly cease the services provided by it which do
not adhere to the Quality Specifications, until such time as the standards of
quality contained in the applicable Quality Specifications have been met to the
reasonable satisfaction of Licensor.
3. Conditions Applicable to Appearance of Licensed Marks.
-----------------------------------------------------
(a) Use Specifications. Licensee will comply with conditions set
------------------
forth in any prior written notice provided to Licensee from time-to-time by
Licensor with respect to the style, appearance and manner of use of the Licensed
Marks ("Use Specifications"). Any use of the Licensed Marks not specifically
provided for by such Use Specifications
1
will be adopted by Licensee only upon prior written approval of Licensor not to
be unreasonably withheld or delayed. In addition, Licensor may request that
notices reasonably acceptable to Licensor be used on or with Licensee's services
and marketing materials (which marketing materials are subject to Licensor's
prior written consent, which consent will not be unreasonably withheld) bearing
the Licensed Marks to identify the licensed use under this Agreement.
(b) Co-Branding. All future marketing activities by Licensee may,
-----------
upon the express agreement of the parties, feature a co-branded service xxxx
agreeable to the parties. Licensee will seek approval from Licensor, which
approval may not be unreasonably withheld or delayed, prior to (i) launching any
online or offline advertising or marketing campaign using the Licensed Marks, or
(ii) posting any Good Neighbor Pharmacy related material on Licensee's web site,
or other advertiser web sites.
(c) Licensor's Approval. In addition, prior to any application of the
-------------------
Licensed Marks to any of Licensee's related marketing materials (as permitted
under this Agreement), Licensee will provide any samples of such marketing
materials (including web site designs) to Licensor for final review and
approval, such approval to be not unreasonably withheld or delayed. Marketing
material which uses any of the Licensed Marks or which refers to Licensor or any
parent or other affiliate of Licensor will conform to the Use Specifications, as
amended from time to time on prior written notice to Licensee. All such
Licensee-initiated marketing material is expressly subject to prepublication
review and approval not to be unreasonably withheld or delayed with respect to,
but not limited to, content, style, appearance, composition, timing, and media.
One copy of all such marketing material will be provided to Licensor at least
thirty (30) days prior to anticipated publication. The parties acknowledge and
agree, however, that Licensee will not be required to seek the prior approval of
Licensor in connection with the day-to-day operation of the Licensee web sites,
and changes thereto, provided that the operations of the web sites at all times
substantially comply with the then-current Use Specifications and any other
relevant policies or designs pre-approved by Licensee pursuant to this
Agreement.
4. Protection of Licensed Marks.
----------------------------
(a) Validity. Licensee admits the validity of, and agrees not to
--------
challenge the Licensed Marks. Licensee also agrees that any and all rights that
may be acquired by the use of the Licensed Marks by Licensee will inure to the
sole benefit of Licensor. Licensee agrees to execute all papers reasonably
requested by Licensor at Licensor's expense to effect the recording of Licensee
as a registered user of the Licensed Marks. Licensee may not use any of the
Licensed Marks or any part thereof as part of its corporate name nor use any
name or xxxx confusingly similar to the Licensed Marks.
(b) Confusing Marks. Licensee further agrees not to register in any
---------------
country any name or xxxx resembling or confusingly similar to the Licensed
Marks. If any application for registration is or has been filed in any country
by Licensee which relates
2
to any name or xxxx which, in the sole opinion of Licensor, is confusingly
similar, deceptive or misleading with respect to any of the Licensed Marks,
Licensee will immediately abandon any such application or registration or, at
Licensor's sole discretion, assign it to Licensor. Licensee will reimburse
Licensor for all reasonable costs and expenses of any opposition, cancellation
or related legal proceedings, including attorney's fees, instigated by Licensor
or its authorized representative, in connection with any such registration or
application.
(c) Third Party Infringement. In the event that Licensee learns of
------------------------
any infringement or threatened infringement of the Licensed Marks or any
passing-off or learns that any third party claims any Licensed Xxxx is liable to
cause deception or confusion to the public, Licensee will promptly notify
Licensor, giving particulars and providing necessary information and assistance
to Licensor at Licensor's expense in the event that Licensor decides that
proceedings should be commenced or defended. Any such proceedings will be at
Licensor's expense and any recoveries will be Licensor's sole property. Nothing
in this Agreement, however, will be deemed to require Licensor to enforce the
Licensed Marks against others.
(d) Compliance with Laws. In addition to Licensee's compliance with
--------------------
all laws and regulations applicable to Licensee's performance of this Agreement,
Licensee will comply in all material respects with all laws applicable to proper
use and designation of trademarks and service marks in the countries in which
Licensee uses the Licensed Marks. If Licensee becomes aware of any laws
applicable to Licensed Marks that are inconsistent with this Agreement, Licensee
will promptly notify Licensor of such inconsistency. Licensor may, at its
option, either waive the performance of such inconsistent provisions or
terminate the license and rights granted under this Agreement to the extent in
conflict with such laws.
5. No Assignment or Sublicense. The benefit of the service xxxx licenses
---------------------------
granted under this Agreement are personal to Licensee and Licensee may not,
without the prior written consent of Licensor, assign the Licensed Marks, nor
part with any of its rights or obligations under this Agreement, nor grant or
purport to grant any sublicense in respect to the Licensed Marks.
6. Term and Termination of License.
-------------------------------
(a) Term. Unless sooner terminated in accordance with the terms of
----
this Agreement or the Fulfillment Agreement, the service xxxx license granted
under this Agreement will commence on the Effective Date and will continue in
effect for the duration of the Fulfillment Agreement, including any extensions
and renewals. Notwithstanding any provision of this Agreement to the contrary,
this Agreement will immediately terminate upon termination or expiration of the
Fulfillment Agreement.
(b) Rights Upon Termination. Upon termination or expiration of the
-----------------------
licenses and rights granted under this Agreement, by operation of law or
otherwise, all rights (including the right to use the Licensed Marks),
privileges and obligations arising under
3
this Agreement (except the obligations in Section 4) will cease to exist and
Licensee will immediately discontinue completely all further use of the Licensed
Marks.
(c) Material Breach. In the event of a material breach of this
---------------
Agreement by either party, the non-breaching party may terminate this Agreement
upon thirty (30) days written notice to the breaching party and such termination
will be effective on the thirty-first (31st) day after receipt of an express
written notice of breach if (a) the breaching party does not correct such
material breach within such thirty (30) day cure period, or (b) in the case of a
material breach that is correctable but is not reasonably capable of being
corrected within such thirty (30) day cure period, the breaching party does not
take reasonably practicable steps to correct such breach and to prevent a
recurrence. The following will be considered to be material breaches:
1. Licensee using any trademarks, services marks, trade or
business names contrary to the provisions of this Agreement;
or
2. Licensee offering services bearing any of the Licensed Marks
in which such service fails in a material fashion to meet any
of the standards set forth in the applicable Quality
Specifications or Use Specifications; or
3. Licensee refusing or neglecting any request by Licensor for
marketing materials, advertising copy, stationary or other
materials as provided under this Agreement; or
4. Licensee using the Licensed Marks with services or on
marketing materials or referencing Licensor or its parent or
other affiliates, without conforming to Licensor's written
instructions; or
5. Licensee assigning or purporting to assign any of the rights
granted in this Agreement to others without Licensor's express
prior written consent.
7. Certain Representations and Covenants. Licensor is the true and
--------------------------------------
lawful owner of and has the right to use and license the Licensed Marks.
Licensor has no knowledge of any third party claim to the effect that any aspect
of the Licensed Marks infringes any other trademark, service xxxx or trade name.
The Licensed Marks are registered in the U.S. Patent and Trademark Office and
such registrations are valid, subsisting and have not been cancelled and are
registered in the categories/classes shown in Exhibit A.
8. Networks Access.
---------------
(a) Access. Licensor will provide Licensee with access to Licensor's
------
network of independently owned and operated Good Neighbor Pharmacies and
"PlusCare" network and the covered lives in the PlusCare network to facilitate
the ordering, adjudication, if applicable, and in-store pick up of prescription
medicine by the Licensee's consumers ("GNP/PlusCare Access"). The parties will
work together in
4
good faith to provide for GNP/PlusCare Access and to pursue the resolution of
any logistical issues with respect to the integration with Licensee's web site
and e-commerce services.
1. GNP & Pharmacy Access. Specifically, Licensor will work to
---------------------
make available and create on an as-needed basis the ability
for Licensee to accept and fulfill orders for prescription
products through GNP and PlusCare pharmacies, with a consumer
able to pick-up such an order within [**] or, if such service
is available from the local pharmacy, to have it delivered
locally. Licensor will be Licensee's exclusive pharmaceutical
provider for such services and, in the event Licensee proposes
a specific need for similar services from additional locations
or from stores with different capabilities, Licensor will have
thirty (30) days from receipt of such specific criteria to
propose a plan to meet such need. If Licensor's proposed plan,
including proposed timelines, does not reasonably meet
Licensee's needs, Licensee may utilize alternate resources. In
providing such services, the parties will strive for the
broadest possible national coverage.
2. Managed Care Organization Access. The parties will work
--------------------------------
diligently to develop a strategic business plan to expand
beyond Licensor's current PlusCare network participation by
managed care organizations ("MCO"), including insurers, third
party payers, healthcare maintenance organizations (HMOs),
pharmaceutical benefit managers (PBMs), third party
administrators (TPAs), pharmaceutical service administrative
organizations (PSAOs), employers, coalitions and others. The
parties will designate specific resources to develop such
strategic plan. The plan will identify specific geographic
areas, demographic groups and types of MCOs to target, will
delegate specific actions between the parties and will set
goals and timelines. The parties will jointly implement the
plan, including presentations, bid responses and proposals,
and RFP responses and Licensor will be Licensee's exclusive
provider for such implementation with MCOs. Licensee will
coordinate all such interactions with Licensor and will not
enter into any agreements with MCOs without Licensor's prior
written consent. In the event Licensee identifies a need for
new or additional services for an existing MCO or the need to
establish a relationship with a new MCO, Licensor will have
sixty (60) days from receipt of such specific criteria to
propose a plan to meet such need. If Licensor's proposed plan,
including proposed timelines, does not reasonably meet
Licensee's needs, Licensee may utilize alternate resources.
(b) Representations. Licensor's Good Neighbor Pharmacy
Network has 4,000 independent pharmacies (more than 1,800 Level I and 2,500
Level II Stores) and Licensor's PlusCare Provider Network has approximately 75
million PBM covered
**Confidential treatment has been
requested with respect to the
information contained within the
"[**]" markings. Such marked
portions have been omitted from
this filing and have been filed
separately with the Securities and
Exchange Commission.
5
lives. Licensor will not grant GNP/PlusCare Access to certain of Licensee's
competitors for a period ending August 17, 2000. Such competitors are Xx.xxx,
Xxxx.xxx and Xxxxxxxxx.xxx and, until September 30, 1999, to XxxxxxXx.xxx.
9. Notices. Any notices must be in writing and will be valid if sent by
-------
registered or certified mail, postage prepaid, in any post office in the United
States, or by confirmed facsimile, hand delivery or overnight courier, addressed
as follows:
If to Licensor: With a Copy to:
-------------- --------------
Bergen Xxxxxxxx Drug Company Bergen Xxxxxxxx Corporation
0000 Xxxxxxxxxxxx Xxxxx 0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: E.V.P. Sales & Marketing Attn: E.V.P., Chief Legal Officer
Facsimile: (000) 000-0000 & Secretary
Facsimile: (000) 000-0000
If to Licensee:
--------------
xxxx.xxx, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Facsimile: (415) ____________
All notices sent by confirmed facsimile will be deemed to be effective on
the date of transmission. All notices sent by courier will be deemed to be
effective on the date of receipt or refusal. In case either party changes its
address to which notice is to be received, written notice of such change will be
given without delay to the other party. Notice may be given by any authorized
representative including counsel.
10. Section Headings. The headings as to the contents of particular
----------------
Sections are for convenience only and are in no way to be construed as part of
this Agreement or as a limitation of the scope of the particular Sections to
which they refer.
11. Entire Agreement. This Service Xxxx License and Access Agreement,
----------------
together with the Quality Specifications and Use Specifications, constitutes the
entire agreement between the parties with respect to its subject matter and
merges and supersedes all previous communications, warranties, representations,
and agreements, oral or written, between the parties with respect to such
subject matter. No amendment or modification of this Agreement will be binding
on either party unless reduced to writing and duly executed by an authorized
representative of both parties. Failure to enforce or any delay in enforcing
any right under this Agreement by any party will not be construed as a waiver
nor will it be deemed a waiver of any other right such party may otherwise have
at law or in equity.
6
In Witness Whereof, this Agreement has been executed on behalf of each of
the parties by their duly authorized representatives as of the Effective Date.
Bergen Xxxxxxxx Drug Company
By: /s/ Xxxxx Xxxxxxx
----------------------------------------------
xxxx.xxx, Inc.
By: /s/ Xxxxxxx Xx Xxxxx
----------------------------------------------
7
