CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.29
Virtual Internet Provider (VIP) Agreement
This Virtual Internet Provider Agreement (the "Agreement") is made in the city
of Fairfax, Virginia, this 11th day of September, 1998 (the "Effective Date"),
between UUNET Technologies, Inc., a Delaware corporation, whose address is 0000
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("UUNET"), and WebMD, Inc., whose
address is 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Reseller").
The parties hereto agree and bind themselves as follows:
1. SERVICE. UUNET will sell, and Reseller will purchase, services for the
interconnection of Reseller's end users with the Internet. UUNET agrees that
its Internet access services provided to Reseller will be of a quality usual and
customary in the industry for similarly situated companies, and if UUNET
consistently fails to meet this standard, Reseller's sole remedy shall be to
terminate this Agreement without penalty upon 30 days' written notice if UUNET
has not improved service quality during this notice period. UUNET agrees to
provide Reseller with a toll-free number to report problems relating to network
integrity. This number is to be used only by Reseller and may not be released
to Reseller's customers. UUNET's relationship under this Agreement is solely
with Reseller and not with any of Reseller's end users. Reseller is responsible
for all end-user customer support, billing, and collections.
2. PRICING. The prices set forth in the attached Schedule A apply to PPP dial-
up traffic and VIP radius server interoperability. For all other services,
UUNET's list prices apply unless other prices have been specifically
established. Reseller agrees to pay the Minimum Amount of $/***/ as set forth in
Schedule A if billing is based on actual service charges, as calculated pursuant
to Schedule A, would be less than the Minimum Amount.
3. TERMS and CONDITIONS. Reseller agrees to comply with the Network Services
Terms and Conditions set forth in the attached Schedule B and the Technical
Agreement for Network Interoperability, as set forth in the attached Schedule C.
Reseller further agrees to require its end users to comply with and acknowledges
the terms and conditions in substance identical to those in Sections One, Two,
Three, Four and Five of Schedule B. Reseller shall defend, indemnify, and hold
harmless UUNET against any claims resulting from Reseller's or its customers'
use of UUNET's services.
4. TESTING. The full effectiveness of this Agreement will be contingent upon
the completion of technical testing to the mutual and reasonable satisfaction of
both parties during
_______________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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the period of 15 days beginning on or after August 15, 1998. If either party
shall reasonably declare the testing results to be unsatisfactory at the
conclusion of the 15-day period, the parties shall have another ten days to
correct the problem. If such correction is not completed at the end of such ten
day period to the mutual and reasonable satisfaction of the parties, this
Agreement will terminate with no further liability to either party. If no such
declaration is made, acceptance of technical testing shall be presumed, and the
Agreement shall remain in effect. Commercial service under the Agreement shall
begin on or after September 1, 1998. Monthly minimum amounts as set forth in
Schedule A will begin to accrue from the date of the satisfactory completion of
technical testing. If testing is completed during the course of a month, the
first month's minimum amount will be prorated to reflect the number of days in
the month for which the monthly minimum amounts shall accrue.
5. TERM. The term of this Agreement is one year from the Effective Date, which
term shall be automatically renewed for additional sixty day terms, provided
that neither party has delivered to the other a written notice of intent not to
renew for the forthcoming term. Such notice of intent shall be given not less
than 60 days in advance of the end of the then-current term. In the sixty days
prior to completion of the initial term, the parties shall negotiate, in good
faith, all appropriate revisions to Schedule A as well as a possible extension
of this Agreement's term.
6. TERMINATION.
(a) For Cause. Either party may terminate this Agreement for cause without
penalty in the event that the other party breaches any material term of this
Agreement. Prior to such termination, the party intending to terminate shall
first give the other party written notice of its intent to terminate which shall
clearly describe problem(s) constituting cause. The other party will have 30
days from the date of receipt of such notice to correct the problem. If the
problem is not corrected within such period, the party intending to terminate
may terminate this Agreement on such 30th day. Reseller shall cooperate with
UUNET in enforcing the Acceptable Use Policy in Section 2 of Schedule B. If
Reseller shall violate such acceptable use policy, or permit such violation, and
does not immediately act to remedy such violation when it becomes aware of it,
UUNET may after good faith discussions of the violation with Reseller's
management, terminate this Agreement without penalty with ten days' written
notice. If any amounts due and owing by Reseller remain unpaid 60 days after
date of invoice, UUNET may terminate this Agreement immediately upon written
notice without penalty.
(b) For Convenience. Reseller may terminate this Agreement for convenience
90 days after giving UUNET written notice. In the event of such termination,
Reseller will pay UUNET *** % of the amount obtained by subtracting the charges
paid for service prior to termination from the Minimum Amount set forth in
Schedule A, in addition to paying all amounts due and owing as of such
termination.
7. CONFIDENTIALITY; NO PUBLICITY. The prices and terms of this Agreement shall
_______________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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be held confidential by each party, as shall each party's confidential or
proprietary information, the parties' respective performance under this
Agreement, the quality of UUNET network performance, and any data provided by
UUNET to Reseller regarding performance of the UUNET network. Neither party
shall disclose any such information to third parties, except as permitted
pursuant to this Section 7, and each party shall disseminate such information
among its employees only on a need-to-know basis. To the extent a party wishes,
or is required by applicable law or regulation, to disclose the existence or
terms of this Agreement or performance thereunder, such party shall notify the
other party in advance of such disclosure and shall provide the other party, to
the maximum extent practicable, the opportunity to comment upon such proposed
disclosure. Each party shall be entitled to all available legal and equitable
remedies in the event of a breach of this Section 7. In addition, either party,
may terminate this Agreement for cause upon ten days' notice and without penalty
in the event of any breach of this Section.
8. NO USE OF UUNET TRADEMARKS. Reseller may not use the name, logo or any
other trademarks or service marks of UUNET in any advertising, signage,
marketing materials, brochures or any other materials in any medium without
UUNET's express advance written permission. Any such permitted use shall be only
within guidelines provided by UUNET. Reseller's breach of this Section 8 shall
be a material breach of this Agreement constituting cause for termination
pursuant to Section 6(a) by UUNET.
9. FORECASTS. Reseller recognizes UUNET's reliance upon the reasonable
accuracy of usage forecasts for network expansion and engineering. During the
first week of each calendar month during the term of this Agreement Reseller
shall provide UUNET with its best forecast of users and hours for the next six
months. Reseller shall also provide UUNET with any information as to marketing
programs which will be helpful in determining expected future loads,
particularly any information relevant to expected loads in particular
geographical locations POPs. Reseller's failure to provide such forecasts at
such specified times shall be a material breach of this Agreement constituting
cause for termination pursuant to Section 6(a) by UUNET in its absolute
discretion.
10. RELATIONSHIP OF PARTIES. No agency, partnership, joint venture or
employment is created as a result of this Agreement. Neither party is authorized
to bind the other in any respect whatsoever.
11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
STATED OR IMPLIED HEREIN, NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR
ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES SUFFERED BY THE OTHER OR BY ANY
ASSIGNEE OR OTHER TRANSFEREE OF THE OTHER, EVEN IF INFORMED IN ADVANCE OF THE
POSSIBILITY OF SUCH DAMAGES, EXCEPT IN CONNECTION WITH THE INDEMNIFICATION
PROVISIONS OF SECTION 3 OF THIS AGREEMENT AND SECTION 2 OF SCHEDULE B.
12. ASSIGNMENT. This Agreement shall not be assignable by either party hereto
without the prior written consent of the other party.
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13. BINDING EFFECT. Except as herein otherwise specifically provided, this
Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, heirs, administrators, executors, successors and
assigns.
14. FORCE MAJEUR. No party shall be liable by reason of any failure or delay in
the performance of its obligations due to strikes, riots, fires, explosions,
acts of God, war, governmental action or any other cause which is beyond the
reasonable control of such party and which such party addresses with reasonable
diligence and speed.
15. GOVERNING LAW. This Agreement and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the Commonwealth
of Virginia, excluding its laws relating to conflicts of laws.
16. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the attached Schedules
constitute the entire understanding and agreement between the parties and
supersede any and all prior or contemporaneous oral or written communications
with respect to the subject matter hereof. This Agreement shall not be modified,
amended or in any way altered except by an instrument in writing signed by the
parties.
17. WAIVER. No failure on the part of either party to exercise, and no delay in
exercising, any right or remedy hereunder shall operate as a waiver thereof; no
shall any single or partial exercise of any right or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right or
remedy granted hereby or by law.
18. NOTICE. Each notice required or permitted under this Agreement shall be
given in writing. Such notice shall be sent by first class mail, postage prepaid
and marked for delivery by certified or registered mail, return receipt
requested, addressed to the parties listed below at their respective places of
business, or at such other addresses of which notice has been given to the
addressing party:
If to Reseller: If to UUNET Technologies, Inc.:
WebMD, Inc. UUNET Technologies, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 000 0000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel Attention: General Counsel
Fax: 000-000-0000 Fax: 000-000-0000
Such notice shall be deemed delivered upon personal delivery; five days after
deposit in the U.S. mail, one day after deposit with such overnight courier, and
upon actual confirmation of receipt of a facsimile.
19. PLURAL/GENDER. Whenever from the context it appears appropriate, each term
stated in either the singular or the plural shall include the singular and the
plural, and pronouns
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stated in the masculine, the feminine or the neuter gender shall include the
masculine, feminine and neuter. The term "person" means any individual,
corporation, partnership, trust or other entity.
20. SEVERABILITY. If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
21. COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, but all of which, when taken together,
shall constitute one and the same instrument. It shall not be necessary for all
parties to execute the same counterpart hereof.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first
above written.
WebMD, Inc. UUNET Technologies, Inc.
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxx
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Title: Executive Vice President Title: Vice President Sales
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SCHEDULE A
Dial-Up and VIP Radius Server Interoperability Pricing; Minimum Monthly
Amount
1. Dial-Up Pricing
By the fifth calendar day of each month Reseller shall notify UUNET of the total
subscribers to Reseller's service in the prior month ("Subscribers"). Reseller
will be charged $*** per month for each Subscriber to Reseller's service as
reported by Reseller, verified by the network identifier used by UUNET and (if
necessary) ultimately confirmed by the audits provided for in Section 4 below.
If in any two consecutive calendar months the "Average Usage" derived by ***,
the parties will engage in good faith renegotiation of the pricing terms in this
schedule, and UUNET shall have the right to terminate this Agreement upon ten
days' written notice if new pricing terms are not promptly agreed upon by the
parties.
The above rates are for PPP dial-up traffic in the continental United States
only.
ISDN connectivity, toll-free access, international and non-continental US
service will be provided upon Reseller's request and only if UUNET is able to
offer such services, and pricing for such services shall be attached to this
Agreement as an additional schedule.
2. Annual Minimum Amount
Reseller agrees to pay UUNET a Minimum Amount of $*** for service provided in
the twelve months following September 1, 1998. In the event that actual service
charges during the period are less than $***, then Reseller shall pay UUNET in
September 1999 the difference between the Minimum Amount and the actual service
charges.
For purposes of determining whether billing based on actual service charges
exceeds or is less than the Minimum Amount, actual service charges will include
billing for dial-up (including international, ISDN and toll-free usage, if any),
but will not include one-time billing fees, VIP radius server interoperability
or charges related to leased lines.
3. VIP Radius Server Pricing
Reseller will pay a one-time installation charge of $*** due upon execution of
this Agreement and a $*** per month fee for Radius server interoperability
(includes use of one user realm/suffix).
_______________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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4. Audits
UUNET shall have reasonable access to Reseller's data and records during normal
business hours to verify that Reseller's Subscriber reports are accurate and
complete.
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SCHEDULE B
Virtual Internet Provider Terms and Conditions
1. UUNET exercises no control over the content of the information passing
through UUNET's host computers and points of presence ("UUNET's Network").
Except as otherwise provided for in Section One of the Agreement, UUNET makes no
warranties of any kind, whether express or implied, for the service it is
providing. UUNET also disclaims any warranty of merchantability or fitness for a
particular purpose. UUNET will not be responsible for any damage Reseller
suffers. This includes damages resulting from loss of data due to delays,
nondeliveries, misdeliveries, or service interruptions. Use of any information
obtained via UUNET's Network is at the user's own risk. UUNET specifically
denies any responsibility for the accuracy or quality of information obtained
through its services.
2. All use of the UUNET Network and the service must comply with the then-
current version of the UUNET Acceptable Use Policy ("Policy") available at the
following URL: xxx.xx.xxx/xxxxxxxxx. UUNET reserves the right to amend the
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Policy from time to time, effective upon posting of the revised Policy at the
URL. UUNET reserves the right to suspend the service or terminate this Agreement
effective upon notice for a violation of the Policy. Customer agrees to
indemnify and hold harmless UUNET from any losses, damages, costs or expenses
resulting from any third party claim or allegation ("Claim") arising out of or
relating to use of the service, including any Claim which, if true, would
constitute a violation of the Policy.
3. UUNET offers two B channel ISDN connectivity, but both B channels may not
be able to be used in conjunction with each other on every session.
4. Resale to other individuals and organizations is permitted, but they may
not further resell the services.
5. Payment is due 30 days after date of invoice. Accounts are in default if
payments is not received within 30 days after date of invoice. Accounts unpaid
60 days after date of invoice may have service interrupted. Only a written
request to terminate service relieves Reseller of the obligation to pay the
monthly account charge. Accounts in default are subject to an interest charge
equal to the lesser of 1.5% per month, or the maximum rate permitted by law, on
the outstanding balance.
6. These Terms and Conditions supersede all previous representations,
understandings, or agreements and shall prevail notwithstanding any variance
with terms and conditions of any order submitted. Use of UUNET's Network
constitutes acceptance of these Terms and Conditions.
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SCHEDULE C
Technical Agreement For Network Interoperability
1. Reseller agrees to secure a minimum TI connection from UUNET and operate
its own Radius server. Such server will perform user validation functions and
will be maintained in a secure environment. Reseller also will maintain this
server with reasonably current versions of the Radius protocols as provided by
UUNET.
2. Reseller agrees to use software and procedural safeguards to insure that
only accurate routing for networks to be used by Reseller's customers is
transmitted from Reseller's Radius server into UUNET's network, and to use best
efforts to immediately remedy any problems leading to transmission of incorrect
routing information.
3. Reseller agrees to assign each end user customer a unique identification
number for billing purposes, and to reasonably cooperate with UUNET in
establishing the structure of this identification number.
4. Reseller and UUNET each agree to cooperate with the other in identifying
and resolving any security infringements which involve Reseller's customers and
UUNET's Network, in accordance with UUNET's policies as in effect from time to
time.
5. Reseller acknowledges and agrees that any billing data supplied by UUNET on
an interim basis (more frequently than monthly) is an estimate and may not be
relied upon for 100% accuracy.
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