EXHIBIT 10.14
@HOME NETWORK/XXXXXX.XXX INC.
CONTENT LICENSE AND DISTRIBUTION AGREEMENT
At Home Corporation, a Delaware corporation with principal offices at 000
Xxxxxxxx, Xxxxxxx Xxxx, XX 00000 ("@Home") and Empower Health Corporation, d.b.a
XxXxxx.xxx, Inc., a Texas corporation with principal offices at 0000 Xxxxxxxx
Xxxx Xxxxx, Xxxxxx, XX, 00000 ("XxXxxx.xxx") hereby enter into this
@Home/XxXxxx.xxx Content License and Distribution Agreement (this "Agreement")
as of March 10 (the "Effective Date") to establish XxXxxx.xxx Content on the
@Home Service in accordance with the terms and subject to the conditions of this
Agreement.
In consideration of the representations, warranties and covenants contained
herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties agree to be bound by the terms and conditions
of this Agreement.
At Home Corporation Empower Health Corporation
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxxx Xxxx
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Name: Xxxxx Xxxxxxx Name: Xxxxxx Xxxx
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Title: S.V.P. @Home Network Title: Chief Operating Officer,
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xxxxxx.xxx, Inc.
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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated * * *. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
@HOME NETWORK/XXXXXX.XXX
CONTENT LICENSE AND DISTRIBUTION AGREEMENT
The parties agree as follows:
1. Definitions. Capitalized terms shall have the meanings set forth in this
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Section 1 or as elsewhere defined in the body of the Agreement.
(a) "@Home Service" means the @Home Network broadband service offering
of Internet access for personal computers created by @Home and @Home's
Distribution Affiliates in connection with @Home's provision of Internet access
via the cable infrastructure and delivered to paying @Home residential PC
service subscribers at speeds in excess of 128kbs as of the Effective Date.
(b) "Above the Fold" means situated within that portion of a page that
is designed to be visible on a standard computer screen with a resolution of 800
pixels by 600 pixels without requiring the user to scroll horizontally or
vertically through the page.
(c) "Benchmark Subscriber Levels" means, the estimate of the total
number of paying @Home subscribers to the @Home Service by particular dates as
set forth in Attachment A hereto.
(d) "Contract Year" means a period beginning on the Effective Date or
any anniversary thereof, and ending one year later.
(e) "Cover Feature" means the portion of the Channel or Sub-Channel
Home Page that is produced daily by the @Home editorial staff.
(f) "Distribution Affiliates" means at any given time, @Home's then-
current domestic distribution affiliates who offer the @Home Service.
(g) "Impression" means a single viewing of a page. An Impression is
recorded whether or not the viewer acts on an advertisement located on that
page.
(h) "XxXxxx.xxx Content" means a collection of web pages, or portion
thereof, on the @Home Service programmed by, and provided to @Home by,
XxXxxx.xxx.
(i) "XxXxxx.xxx" means the World Wide Web site with URL: Error!
Bookmark not defined.
(j) "LifeStyle Channel" means a collection of web pages on the @Home
Service that are grouped together by a persistent, dedicated navigation HTML
button currently labeled "LifeStyle", which is directly accessible from the main
navigation menu of the @Home Service.
(k) "LifeStyle Home Page" means the first page accessed when entering
the LifeStyle Channel.
(l) "Net Advertising Revenue" means the gross advertising and
sponsorship revenue collected by @Home which is directly attributable solely to
XxXxxx.xxx Content, less third party
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agency commissions and seller sales costs to be computed as 15% of the gross
advertising and sponsorship revenue generated from XxXxxx.xxx Content.
(m) "Net Transaction Revenue" means the gross transaction revenue
received by XxXxxx.xxx from @Home Subscribers less direct cost of goods sold
(COGS).
(n) "Health Home Page" means the first page accessed when entering the
Health Sub-Channel.
(o) "Quarterly Period" means with respect to any Contract Year, a three
month period starting at either: (i) the beginning of such Contract Year; (ii)
three months after the beginning of such Contract Year; (iii) six months after
the beginning of such Contract Year; or (iv) nine months after the beginning of
such Contract Year.
(p) "Semiannual Period" means, with respect to any Contract Year, a six
month period starting at either: (i) the beginning of such Contract Year; or
(ii) six months after the beginning of such Contract Year.
2. @Home Channel Contribution.
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(a) Persistent Channel Navigation. During the term of this Agreement,
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@Home will provide one button in the LifeStyle Channel navigation bar dedicated
to accessing "Health" (the "Health Button"). The Health Button will: (i) receive
persistent placement, (ii) be accessible from any page within the LifeStyle
Channel area, and (iii) link to XxXxxx.xxx Content. The button will appear Above
the Fold in a position that encourages use of the @Home Lifestyle Channel. In
addition, @Home may, in its sole discretion, add additional navigational
elements or links across the @Home Service which link to all or part of
XxXxxx.xxx Content.
(b) Anchor Tenancy. @Home agrees that during the term of the Agreement,
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XxXxxx.xxx will be the Anchor Tenant content provider on @Home for the Health
Sub-channel. For purposes of this agreement, "Anchor Tenant" means:
(i) XxXxxx.xxx Channel Branding. @Home will place the XxXxxx.xxx
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brand (as designated by the parties) on the Health Home Page and all subsequent
XxXxxx.xxx co-created pages. The logo and branding shall be mutually agreed upon
and shall comply with @Home and XxXxxx.xxx trademark usage guidelines and will
demonstrate that all Xx.Xxxx.xxx content is powered by Xx.Xxxx.xxx, and will
include, at a minimum, a hyperlinked tagline "Provided by xxxxxx.xxx" that links
to xxx.xxxxxx.xxx.
(ii) XxXxxx.xxx Content Appearance on the Health Home Page.
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XxXxxx.xxx Content from the within the Health sub-channel will receive
persistent and prominent placement on the Health Home Page. Both parties will
work together to determine the optimal mix of XxXxxx.xxx Content to integrate
into the Health Home Page to provide the optimal user experience and to
encourage broad use of the Health sub-channel.
(iii) @Home will promote XxXxxx.xxx Content on the Health Home Page
at a level greater than that given to other third party content providers that
are primarily engaged in the distribution of Health content in the Health Sub-
Channel.
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(iv) From time to time, @Home may create features based on Health
related stories. Where appropriate in @Home's discretion, @Home will
contextually link such features to the XxXxxx.xxx Content offering.
(v) Where XxXxxx.xxx Content beneficially supplements an @Home
Cover Feature, @Home will make reasonable efforts to link to such XxXxxx.xxx
Content from the Cover Feature.
(c) Editorial Autonomy. Notwithstanding the provisions of Section 2(b)
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above, XxXxxx.xxx's status as an Anchor Tenant shall in no way affect @Home's
editorial discretion. Such discretion includes (by way of example only and
without limitation):
(i) Linkage to information sources within or outside of the
LifeStyle Channel or @Home Service on a basis which provides preferential
treatment to such other sources in cases where XxXxxx.xxx Content provides only
tangentially related or less extensive coverage for a Cover Feature topic than
do such other sources.
(ii) Placement of @Home editorial features within the LifeStyle
Channel or other Channels or Sub-Channels across the @Home Service.
(iii) Local programming by the Distribution Affiliates.
(d) Product Development and Product Creation. All facets of the Health
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Sub-Channel will be created, designed, and administered by the @Home Network
editorial and production staffs. XxXxxx.xxx will play an integral role in the
product development and day-to-day editorial decisions but final discretion will
be in @Home.
(e) New Distribution Channels or Service Applications. If @Home creates
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additional software or standalone desktop applications which supplement the
@Home Service and which contain content with a lifestyle or health focus, then
@Home agrees to make good faith efforts to assist XxXxxx.xxx in gaining
premier/preferred positioning with such application.
(f) Right of First Refusal on Additional Content. @Home agrees to offer
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XxXxxx.xxx first right of refusal to fulfill any health related content to be
implemented on the @Home Network for the term of this agreement. XxXxxx.xxx will
have * * * days to respond to this request, stating intentions to provide or not
provide the requested content, services or otherwise. If XxXxxx.xxx agrees to
provide this health content, @Home and XxXxxx.xxx will negotiate in good faith
and mutually agree on an acceptable time frame for delivery of the content,
services or otherwise. If the parties cannot so agree or XxXxxx.xxx does not
respond within such * * * day period, @Home will be free to negotiate with third
parties to fulfill any such health related content needs of @Home.
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*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with the respect to the omitted portions.
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3. @Home Marketing Contribution
(a) Ad Inventory. At part of its consideration hereunder, @Home will
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provide XxXxxx.xxx with * * * Above the Fold advertising Impressions in each
contract year at no additional cost to promote the XxXxxx.xxx Content on @Home.
The advertisements will be cross-promoted across the @Home Channels (run of
site) such as "Finance", "LifeStyle", "Entertainment", and "Technology". @Home
will also provide creative services to assist the production of up to three
B*Box advertisements over the term of the agreement. In addition, @Home will
offer XxXxxx.xxx additional b*box impressions at pricing based upon the most
favorable rate card currently provided to @Home's advertising customers.
(b) Outbound Marketing. Home will use reasonable efforts to encourage
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its Distribution Affiliates to include XxXxxx.xxx in any content-related
external marketing pieces. These marketing pieces may be expected, at a minimum,
to include the XxXxxx.xxx logo but may also include the XxXxxx.xxx descriptions,
screen shots, video of the @Home Service which includes XxXxxx.xxx Content, etc.
Possible marketing avenues may include, but are not limited to, cable TV spots,
newspaper ads, xxxx stuffers, postcards, door hangers, direct mail, and take-one
brochures. Subject to XxXxxx.xxx's pre-approval, XxXxxx.xxx will provide @Home
with guidelines for how to describe/display XxXxxx.xxx in @Home outbound
marketing efforts.
(c) Other Online Marketing. @Home and XxXxxx.xxx will work together to
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include XxXxxx.xxx in other appropriate online mechanisms for showcasing
XxXxxx.xxx Content and other offerings as these mechanisms are developed.
(d) Usage Data. To the extent both parties are legally and contractually
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permitted, they will provide each other with aggregated usage data concerning
access (site visitation, videos downloaded, etc.) by visitors to the Health Sub-
Channel and Xxxxxx.xxx. This data will be used for internal use only. Usage data
reports will be provided quarterly and as reasonably requested by both parties.
The reports will be delivered in the format most commonly collected by each
party. All usage data will be considered Confidential Information of the
collecting party (as such term is defined in Section 17 below). Both parties
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agree that, unless each is previously legally or contractually otherwise
required, they will not provide usage data specific to the LifeStyle Channel or
XxXxxx.xxx that has not been aggregated with other data to any third-party,
other than Distribution Affiliates, without the other party's prior consent.
(e) Links to XxXxxx.xxx. @Home will provide hyperlinks to the
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XxXxxx.xxx web site. These links will be contextually embedded in the content
served on the @Home Network, which will link the user to the relevant commerce,
interactive community or interactive tool located on the XxXxxx.xxx web site.
The contextually relevant content may include, but is not limited to, the news
shelf, related sites, top stories, cover stories, and other pages or sub-
channels within the navigation menu.
_______________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with the respect to the omitted portions.
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4. @Home Network and Distribution Contribution.
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(a) @Home Distribution. @Home will distribute XxXxxx.xxx Content through
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all means by which it distributes its national content to subscribers using
personal computers as of the Effective Date.
(b) Channel Serving and Distribution. @Home will provide backbone
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transport, caching, and network management associated with the distribution of
XxXxxx.xxx Content and any related content to @Home subscribers over the @Home
Network. Without limiting any rights @Home may have under applicable laws,
XxXxxx.xxx agrees that @Home may promote (as contemplated by this Agreement),
transport (i.e. transmit and serve), cache on proxy servers, replicate on
replication servers and reproduce on related storage devices operated by @Home
and its Distribution Affiliates, the content provided by XxXxxx.xxx to @Home for
the Health Sub-Channel.
5. XxXxxx.xxx Contribution.
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(a) XxXxxx.xxx Content. XxXxxx.xxx Content shall consist of Health
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content that is rich in graphics, text, and video and will include, at a
minimum, Health data supplied by XxXxxx.xxx to be redistributed on @Home as
follows:
1. Diseases and Conditions centers
2. Health Topics
3. Health and Wellness centers
4. Xx. Xxxx'x Health Site Reviews (over 650 health sites)
5. Accredited Medical Institutional content (Dartmouth/Koop
Institute/ UPENN)
6. Medical Encyclopedia content (Expected 5/99)
7. Xx. Xxxxx Xxxxxxxxx'x daily health column and "Ask Dr. Xxxxx"
archives
8. Xx. Xxxx'x Online Drugstore and Pharmacy
9. Xx. Xxxx'x editorial health news
10. Interactive Community support groups
11. Access to Xx. Xxxx'x Community Partner Program content
12. "In the Spotlight" events and transcripts
(b) Active Web Presence. During the term of this Agreement, XxXxxx.xxx
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will maintain at all times an Active Web Presence. For the purpose of this
Agreement, "Active Web Presence" means the maintenance of the XxXxxx.xxx World
Wide Web site at a level at least equal to the level of performance and
functionality as offered on the Effective Date (including breadth and depth of
offerings, services and suppliers).
(c) Quality of Services. If the quality of the primary features and
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functions of XxXxxx.xxx Content (including, frequency of updates, breadth and
depth of coverage, usability, etc.) are not substantially equal to or better
than the analogous functions and features provided by XxXxxx.xxx or by
XxXxxx.xxx for their distribution partners, then @Home may so notify XxXxxx.xxx
in writing of such deficiencies, including a description of how XxXxxx.xxx
Content is deficient. Within thirty (30) days of receiving such notice
XxXxxx.xxx will provide @Home with a reasonable plan for rectifying such
deficiencies. Such plan must be completed as soon as possible and in no event
later than ninety (90) days after the date XxXxxx.xxx received the notice of
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deficiency. If XxXxxx.xxx fails to provide such plan or to implement it within
such periods, or if such implementation does not rectify the specified
deficiencies, then @Home may terminate this Agreement in its entirety or may
terminate all or any portion of the rights granted to XxXxxx.xxx pursuant to
Section 2 above.
(d) Customer Support. Customer support related to XxXxxx.xxx Content
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will be provided by XxXxxx.xxx. XxXxxx.xxx shall provide @Home with customer
support telephone numbers, e-mails and contacts and @Home agrees to forward any
requests for customer support to the designated personnel and email mailboxes.
(e) Link Back. XxXxxx.xxx, Inc agrees to include on a "hot link" back
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to @Home from all XxXxxx.xxx stories that @Home links to from the @Home service.
In other words, XxXxxx.xxx will include a "link back" for those @Home
subscribers connecting to a XxXxxx.xxx story on XxXxxx.xxx via an @Home HTML
link.
6. Joint @Home/XxXxxx.xxx Contribution.
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(a) Technical Specifications. XxXxxx.xxx and @Home will mutually agree
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upon the technical specifications for XxXxxx.xxx Content. If @Home makes changes
in the applicable technical specifications, XxXxxx.xxx will make good faith
efforts to promptly comply with such changes.
(b) User Interface and Content. @Home and XxXxxx.xxx will mutually
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agree on the user interface design (which shall be consistent with the @Home
look-and-feel) and on the types of content which appear in the Health Sub-
Channel. @Home and XxXxxx.xxx will mutually agree upon the broadband content
specifications (e.g., video size, frame rate etc.) for XxXxxx.xxx broadband
related content. If @Home makes changes in the applicable broadband content
specifications, XxXxxx.xxx will make good faith efforts to promptly comply with
such changes.
(c) @Home User Interface Change. @Home reserves the right to make
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changes to the @Home Service user interface at its discretion; provided that
@Home will give XxXxxx.xxx reasonable prior notice of any change that is likely
to have a material impact on XxXxxx.xxx promotional placements or advertising
Impressions (including, among other things, the size, functionality, prominence
or relative importance of such placements or advertisements). To the extent
commercially practicable, @Home will consult with XxXxxx.xxx regarding
adjustments (if any) required by XxXxxx.xxx in connection with such changes.
7. Cash Compensation.
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(a) Guaranteed Service Payments to @Home. The parties have agreed that
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the total value of the services provided by @Home for development, promotion,
and carriage during the term of the agreement (as outlined hereunder) are * * *
in Contract Year One and * * * in Contact Year Two.
_______________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with the respect to the omitted portions.
.Page 7
(b) Payment Schedule. Service Payments shall be made in cash during the
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Contract Year (the "Cash Payments") and such Cash Payments will become due in
quarterly installments. Each Cash Payment shall be paid within thirty (30) days
preceding the relevant Quarterly Period according to the following payment
schedule:
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Quarter Contract Year One Contract Year Two
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Q1 * * * * * *
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Q2 * * * * * *
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Q3 * * * * * *
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Q4 * * * * * *
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(c) Method of Payment. Cash Payments will be made by check or wire
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transfer to the following account: Silicon Valley Bank Santa Xxxxx, Routing/
Transit # 000000000, For Credit of: At Home Corporation, Credit Account #
3300113199, By Order of: XxXxxx.xxx, Inc.
8. Other Financial Considerations.
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(a) Advertising Revenue. @Home has now and shall retain at all times
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during the Agreement the exclusive right to sell advertising inventory on the
LifeStyle Channel (including the Health Sub-Channel and any other Sub-Channels
which may be established now or in the future which feature XxXxxx.xxx Content).
* * *
(b) Video News Content Inventory. XxXxxx.xxx has the exclusive right to
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sell sponsorships of XxXxxx.xxx video content which are embedded directly in any
video that is shipped to @Home by XxXxxx.xxx. XxXxxx.xxx will retain all revenue
generated by such sponsorships embedded in XxXxxx.xxx video content.
(c) Transaction Revenue. XxXxxx.xxx will remit to @Home * * * of its
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Net Transaction Revenue generated from @Home subscribers on XxXxxx.xxx.
(d) Payment Frequency. All Net Advertising Revenue and Net Transaction
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Revenue amounts owed from one party to the other shall be paid within thirty
(30) days following the end of each Semiannual Period of the Contract Year.
_______________
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with the respect to the omitted portions.
.Page 8
(e) Payment Adjustment. If, at the end of any Contract Year, the
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actual @Home Subscriber level is greater than 120% or less than 80% of the
Benchmark Subscriber Levels, then the Cash Payment for the succeeding Contract
Year shall be increased or decreased, respectively, as follows:
(i) Subscriber Excess. If the actual @Home Subscriber Level is
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greater than 120% of the Benchmark Subscriber Level, then such succeeding year's
Cash Payment shall be increased by an amount equal to: the difference between
the actual Subscriber Level minus the Benchmark Subscriber Level divided by the
Benchmark Subscriber Level, multiplied by the Cash Payment for the preceding
Contract Year ("Excess Cash Payment"). In no event shall the Excess Cash Payment
exceed two times such preceding year's Cash Payment. Such increased amount will
be paid to @Home with the payment for the next Quarterly Period, or if such
preceding Contract Year is the final Contract Year then within thirty (30) days
of the end of such Contract Year.
(ii) Subscriber Shortfall. If the actual Subscriber Level is less
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than 80% of the Benchmark Subscriber Level, then such succeeding year's Cash
Payment shall be decreased by an amount equal to: the difference between the
Benchmark Subscriber Level and the actual Subscriber Level divided by the
Benchmark Subscriber Level, multiplied by the Cash Payment for the preceding
Contract Year. Such decreased amounts will be deducted by XxXxxx.xxx from the
succeeding Contract Year's Cash Payment and if such amount is owed for the final
Contract Year, @Home will, at its option, refund such amount or extend the term
of this Agreement. The extension of the term (in days) shall be equal to {1
minus the (quotient of the Actual Subscriber Level and the Benchmark Subscriber
Level) multiplied by the number of days in a calendar year}.
9. Commencement. Both parties agree to use reasonable commercial efforts to
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launch the XxXxxx.xxx Content on @Home on or before (30) days from the Effective
Date.
10. Term and Termination.
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(a) Initial Term. The initial term of this Agreement will begin on the
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Effective Date and will end *** unless otherwise terminated by the parties as
set forth in this Section 10.
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(b) Automatic Termination. This Agreement will terminate automatically
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if @Home no longer offers the Health Sub-Channel, or a practical equivalent, to
@Home subscribers.
(c) Contract * * * Option. Either party has the right to terminate the
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agreement * * * if * * *. The terminating party will provide 60 days written
notice to the other party. In the event of a termination by either party
pursuant to this Section 10(c), all Net Advertising, Net Transaction, and Net
Payments (per Section 7) revenues or fees owed from one party to the other will
be paid within thirty (30) days following the close of business on which such
termination occurs.
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*** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
. Page 9
(d) * * *
(e) Termination Due to Breach. Either party may terminate this Agreement,
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effective upon thirty (30) days' written notice, if the other party fails to
cure any material breach of its obligations under this Agreement within thirty
(30) days following written notice to such party.
(f) No Liability for Termination. Neither @Home nor XxXxxx.xxx will have
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any liability to the other merely as a result of termination of this Agreement
in accordance with this Section 10, however all amounts earned but unpaid as of
such termination shall be due and payable to either party in accordance with the
terms set forth in this Agreement.
(g) Purge of XxXxxx.xxx Content. Upon the termination of this Agreement
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for any reason whatsoever, @Home shall promptly delete or purge from its systems
any and all XxXxxx.xxx Content and all copies thereof and @Home immediately
shall cease using any and all XxXxxx.xxx Content. Notwithstanding the foregoing,
@Home may retain the XxXxxx.xxx Content in its archives to the extent necessary
for regulatory or other purposes related to the archiving of information and not
for redistribution or use of the content therein.
11. Public Announcement. Both parties will periodically promote the
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XxXxxx.xxx/@Xxxx relationship through mutually agreed upon (as to timing and
content) press releases and other announcements. Prior to the initial public
announcement about the relationship under this Agreement, the disclosing party
will obtain consent of the other party, which consent shall not be unreasonably
withheld.
12. Business Marks. @Home and XxXxxx.xxx each will have the right, without
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charge, to use in promoting the XxXxxx.xxx Content and the @Home Service the
other's business name and any trade names, trademarks and service marks
(collectively, "MARKS") that @Home may adopt for use with the @Home Service and
that XxXxxx.xxx may adopt for use with the XxXxxx.xxx Content distributed and
used by @Home. However, any such use must be identical to use by the party that
owns the Xxxx, and as approved by the owner in writing in advance, or otherwise
in accordance with any Xxxx usage guidelines communicated by the owner. The
owner retains all goodwill and all other rights thereto, and the other party
obtains no goodwill or any other rights thereto as a result of the use of the
owner's Marks. Except as explicitly set forth herein, no other licenses or
rights are granted or implied.
13. Representatives and Warranties. Each party to this Agreement represents and
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warrants to the other party that: (a) such party has the full corporate right,
power and authority to enter into this Agreement and to perform the acts
required of it hereunder; (b) the execution of this Agreement by such party, and
the performance by such party of its obligations and duties hereunder, do not
and will not violate any agreement to which such party is a party or by which it
is otherwise bound; and (c) when executed and delivered by such party, this
Agreement will constitute the legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms.
_________________
*** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
. Page 10
14. Limitation Of Liability. @HOME, @HOME'S DISTRIBUTION AFFILIATES AND
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XXXXXX.XXX WILL NOT BE LIABLE TO ONE ANOTHER, UNDER ANY LEGAL OR EQUITABLE
THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY
KIND, SUFFERED BY OR OTHERWISE COMPENSABLE TO THE OTHER, ARISING OUT OF, UNDER
OR RELATING TO THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL @HOME OR @HOME'S DISTRIBUTION AFFILIATES HAVE ANY
LIABILITY OF ANY NATURE OR AMOUNT WHATSOEVER TO XXXXXX.XXX ARISING OUT OF, UNDER
OR RELATING TO ANY FAILURE OF THE DISTRIBUTION OF THE CONTENT OR ANY PART
THEREOF OR ANY SOFTWARE PROGRAM, SOFTWARE OR WEB SITE LINK OR LINK MECHANISM, OR
OTHER MATERIAL OR ITEMS THROUGH THE @HOME NETWORK OR OTHERWISE (INCLUDING BUT
NOT LIMITED TO ANY SUCH FAILURE OF DISTRIBUTION RESULTING FROM A DISTRIBUTION
AFFILIATES' ELECTION NOT TO DISTRIBUTE MATERIAL OR ITEMS OR DUE TO TECHNICAL
DIFFICULTIES OR OTHERWISE).
15. Proprietary Rights Generally. @Home and XxXxxx.xxx each retain any and all
right, title and interest in and to all intellectual property of any nature
(including patents, rights under patent applications and patents issuing on such
applications, trade secrets, copyrights, trademarks and other business names
(including goodwill in such marks), among others), subject to the rights granted
by the parties in SECTION 12 (concerning rights with respect to business marks)
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and SECTION 3(D) (concerning rights with respect to usage information) of this
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Agreement or as may be provided in the Attachments to this Agreement. @Home and
XxXxxx.xxx each agree to reproduce, and agree not to remove or obscure
proprietary rights legends (such as copyright notices, among others) or license
terms and conditions included with any intellectual property deliverable
provided in connection with this Agreement. XxXxxx.xxx agrees to ensure that the
XxXxxx.xxx Content and the XxXxxx.xxx Marks and their use, reproduction and
distribution (alone and not in combination with other material or items) do not
infringe the intellectual property rights of any third party. If, as a result of
any collaboration by @Home or XxXxxx.xxx under this Agreement, they become joint
owners of intellectual property by operation of law, then they will cooperate,
subject to prudent business judgment, to establish, register, maintain and
protect such intellectual property.
16. Indemnification. Each party will indemnify the other party and its
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customers and affiliates for, and hold them harmless from, any loss, expense
(including reasonable attorney's fees and court costs), damage or liability
arising out of any claim, demand or suit resulting from (a) a breach of any of
its respective covenants or warranties under this Agreement, (b) the failure of
such party to have all rights and authority necessary in order to fulfill or
perform its obligations pursuant to this Agreement in compliance with applicable
laws; (c) the infringement of intellectual property rights of any third party or
the violation of any law by such parties' contributions and/or performance
hereunder (e.g., in the case of XxXxxx.xxx, the XxXxxx.xxx Content, and in the
case of @Home, the @Home Service), and (d) the violation of any laws concerning
obscenity, defamation, infringement, rights of privacy or publicity, harassment
or export controls caused by the development, use, reproduction, publication or
distribution of such parties' respective contributions to the @Home Service. As
a condition to indemnification (a) the indemnified party will promptly inform
the indemnifying party in writing of any such claim, demand or suit and the
indemnifying party will fully cooperate in the defense thereof; and (b) the
indemnified party will not agree to the settlement of any such claim, demand or
suit prior to a final judgment thereon without the consent of the indemnifying
party.
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17. Confidential Information.
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(a) Definition. "Confidential Information" means all non-public
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confidential and proprietary information which the disclosing party identifies
in writing as confidential before or within thirty (30) days after disclosure to
the receiving party or which, under the circumstances surrounding disclosure,
the receiving party should have understood was delivered in confidence.
(b) Nondisclosure. Each party agrees (a) to hold the other party's
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Confidential Information in strict confidence, (b) not to disclose such
Confidential Information to any third party, and (c) not to use the other
party's Confidential Information for any purpose other than to further this
Agreement. Each party may disclose the other party's Confidential Information to
its responsible employees, and, in the case of @Home, the employees of @Home's
Distribution Affiliates, with a bona fide need to know such information and
subject to a nondisclosure agreement, but only to the extent necessary to carry
out this Agreement. Each party agrees to instruct all such employees not to
disclose such Confidential Information to third parties, including consultants,
without the prior written permission of the disclosing party.
(c) Exceptions. Notwithstanding the foregoing, Confidential Information
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will not include information which (i) is now, or hereafter becomes, through no
act or failure to act on the part of the receiving party, generally known or
available to the public; (ii) was acquired by the receiving party before
receiving such information from the disclosing party and without restriction as
to use or disclosure; (iii) is hereafter rightfully furnished to the receiving
party by a third party, without restriction as to use or disclosure; (iv) is
information which the receiving party can document was independently developed
by the receiving party without use of the disclosing party's Confidential
Information; (v) is required to be disclosed by law, provided that the receiving
party uses reasonable efforts to give the disclosing party reasonable notice of
such required disclosure and to limit the scope of material disclosed; (vi) is
disclosed with the prior written consent of the disclosing party; or (vii) is
XxXxxx.xxx Content provided by XxXxxx.xxx pursuant to this Agreement.
(d) Return. Upon the disclosing party's request, the receiving party will
------
promptly return to the disclosing party all tangible items containing or
consisting of the disclosing party's Confidential Information.
(e) Injunctive Relief. Each party acknowledges that all of the disclosing
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party's Confidential Information is owned solely by the disclosing party (or its
licensors) and that the unauthorized disclosure or use of such Confidential
Information would cause irreparable harm and significant injury to the
disclosing party, the degree of which may be difficult to ascertain.
Accordingly, each party agrees that the disclosing party will have the right to
obtain an immediate injunction enjoining any breach of this SECTION 17, as well
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as the right to pursue any and all other rights and remedies available at law or
in equity in the event of such a breach.
18. Warranty Disclaimers. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT: (a)
--------------------
@HOME DOES NOT MAKE ANY WARRANTIES CONCERNING THE @HOME NETWORK OR THE @HOME
SERVICE, EXPRESS, IMPLIED OR OTHERWISE, (b) @HOME SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT WITH RESPECT TO THIRD PARTY RIGHTS, AND (c) THE @HOME NETWORK,
THE @HOME SERVICE, AND ANY AND ALL
. Page 12
CONTENT AND TOOLS AND RELATED DELIVERABLES PROVIDED BY @HOME IN CONNECTION WITH
THIS AGREEMENT ARE PROVIDED BY @HOME "AS IS".
19. General Provisions.
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(a) Governing Law and Venue. This Agreement and any disputes arising
-----------------------
under, in connection with, or relating to this Agreement will be governed by the
laws of the State of California, excluding its conflicts of law rules. The state
and federal courts in San Mateo County, California will have exclusive venue and
jurisdiction for such disputes, and the parties hereby submit to personal
jurisdiction in such courts. The prevailing party in any such dispute will be
entitled to recover costs of suit (including the reasonable fees of attorneys
and other professionals).
(b) Notices. All notices or other communications to or upon @Home or
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XxXxxx.xxx under this Agreement shall be by telecopy or in writing and
telecopied, mailed, or delivered to each party at its address set forth in the
introductory paragraph of this Agreement or such other address or telecopier
number as either party shall notify the other. All such notices and
communications: when sent by delivery service, shall be effective on the third
business day following the deposit with such service; when mailed, first class
postage prepaid and addressed as aforesaid in the mails, shall be effective upon
receipt; when delivered by hand, shall be effective upon delivery; and when
telecopied, shall be effective upon confirmation of receipt.
(c) Compliance with Laws. Subject to the express provisions of this
--------------------
SECTION 19(C), each party agrees to comply with applicable laws in connection
-------------
with this Agreement. XxXxxx.xxx agrees, in particular, Dr. Xxxx.xxx Content will
comply with all laws concerning obscenity, defamation, infringement, rights of
privacy, harassment and export controls, among others, and to ensure that the
use, reproduction and distribution of the XxXxxx.xxx Content in and of itself,
does not violate such laws or related legal rights of third parties.
(d) Assignment. Neither party may assign or transfer its rights or
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obligations under Agreement without the prior written permission of the other
party (which permission shall not be unreasonably withheld or delayed); provided
--------
that either party may assign its rights and obligations under this agreement to
any commonly controlled affiliate or wholly-owned subsidiary without the consent
of the other party so long as the original party remains liable for its
obligations hereunder. Any transferee must agree to accept the burdens as well
as the benefits of this Agreement. Any attempt to transfer, sublicense or assign
any of the rights or duties hereunder in violation of this Section is hereby
prohibited and shall be null and void. Subject to the foregoing, this Assignment
shall inure to the benefit of and be binding upon the parties and their
successors and assigns.
(e) Relationship of Parties. Neither this Agreement nor the parties'
-----------------------
business relationship established hereunder will be construed as a partnership,
joint venture or agency relationship or as granting a franchise. Accordingly,
neither party shall have any right to act on behalf of the other party for any
purpose. The parties represent to one another that they have consulted legal
counsel in reviewing and/or negotiating this Agreement.
(f) Waiver. No waiver of any breach of any provision of this Agreement
------
will be considered to be a waiver of any prior, concurrent or later breach of
the same provisions or different provisions, and will not be effective unless
made in writing and signed by an officer of the waiving party.
. Page 13
(g) Amendments. This Agreement may only be amended by a written agreement
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or addendum signed by duly authorized representatives of both parties.
(h) Survival. Sections 12, 14, 15, 16, 17, 18, and 19 of this Agreement,
-------- ---------------------------------------
along with any other provisions which by their nature extend beyond termination
of this Agreement shall survive termination. Termination shall not affect either
party's obligation to pay amounts due prior to termination or which (under the
terms of this Agreement) become due following termination.
(i) Force Majeure. Neither party will have liability to the other party
-------------
under, in connection with or for any reason relating to this Agreement as a
result of any failure of performance by or on behalf of such party as a result
of an event of "force majeure". For purposes of this Agreement, "force majeure"
means an event beyond a party's reasonable control whether or not foreseeable
and includes, in any case, the following events that may prevent or
significantly hinder such party from performing this Agreement or acting in
connection with this Agreement: armed conflicts, famine, floods, Acts of God,
labor strikes or shortages, governmental decree or regulation, court order,
severe weather, fire, earthquake, failure of suppliers, unavailability of
communications transport facilities and breakdowns in communications transport
facilities.
(j) Distribution Affiliates. Notwithstanding any other term of this
-----------------------
Agreement, XxXxxx.xxx acknowledges and agrees that the Distribution Affiliates
will have the right under certain circumstances to elect not to distribute the
XxXxxx.xxx Content and promotional material and that, pursuant to its agreement
with such Distribution Affiliates, @Home may be subject to restrictions
regarding the promotion or distribution of the XxXxxx.xxx Content and
promotional materials. XxXxxx.xxx agrees not to bring any action or threaten to
bring any action against the Distribution Affiliates or @Home in connection with
any such election, restriction or failure to distribute.
(k) Entire Agreement. This Agreement, including its Attachments,
----------------
constitutes the entire understanding of @Home and XxXxxx.xxx with respect to its
subject matter and supersedes all prior agreements between @Home and XxXxxx.xxx.
. Page 14
ATTACHMENT A
BENCHMARK SUBSCRIBER LEVELS
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Calendar Year Projected Benchmark Subscribers (Year End)
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1999 * * *
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2000 * * *
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________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
. Page 15
