EXHIBIT 10.7
CONFIDENTIAL TREATMENT REQUESTED
INTERACTIVE SERVICES AGREEMENT
This agreement (the "Agreement"), effective as of October, 1997 (the
"Effective Date"), is made and entered into by and between America Online, Inc.
("AOL"), a Delaware corporation, with its principal offices at 00000 XXX Xxx,
Xxxxxx, Xxxxxxxx 00000, and Ask-A-Doc, Inc. (or such other name as may be used
with prior notice to AOL) ("Interactive Content Provider" or "ICP"), a Delaware
corporation, with its principal offices at 00 Xxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxxxxxx 00000 (each a "Party" and collectively the "Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site (as defined below) through the AOL Network (as defined below), subject to
the terms and conditions set forth in this Agreement. Defined terms used but not
defined in the body of this Agreement or in Exhibit C shall be as defined on
Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 Anchor Tenancy. Beginning on the Launch Date and continuing during the
remainder of the Term, ICP shall receive anchor tenant distribution within the
Health Channel offered on the AOL Service, as follows: AOL shall (a)
continuously and prominently place an agreed-upon ICP logo or banner on the
Health Channel main screen and the Health Channel's Illness & Treatments and
Support Groups Experts subscreens (or, with respect to any such screens, any
specific successors thereof) (collectively, the "Screens"); (b)provide ICP with
the keyword "Ask-A-Doctor" which shall Link to the Welcome Mat(s) (as defined
below); and (c) list ICP in AOL's "Directory of Services" and "Find" features.
AOL shall also use reasonable efforts to program the ICP Internet Site, or
Content therefrom, into the Health Channel's Healthy Living subscreen.
1.1.1 Changes to AOL Service. AOL reserves the right to redesign or
modify the organization, structure, "look and feel," navigation and other
elements of the AOL Service. In the event such modifications materially affect
the placements for ICP described above, AOL will work with ICP in good faith to
provide ICP with a comparable package of placements which are reasonably
satisfactory to ICP.
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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 as [***]. A complete version of this
exhibit has been filed separately with the Securities and Exchange Commission.
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1.1.2 Soft Launch. In order to optimize the ICP Internet Site for
distribution hereunder as specified in Section 5, beginning on the Soft Launch
Date and continuing for a period of thirty (30) days thereafter, AOL shall make
the ICP Internet Site available for distribution on a limited basis to AOL
internal and employee accounts (or such other group that is a subset of all AOL
Members, as AOL may determine in its discretion).
1.1.3 Health Channel [***]
1.2 Content. The ICP Internet Site shall consist of the Content (including
a detailed plan of the scope and depth of the Content and the technologies to be
used to present and deliver such Content) described on Exhibit A hereto. ICP
shall not authorize or permit any third party to distribute any other Content of
ICP through the AOL Network absent AOL's prior written approval. The inclusion
of any additional Content for distribution through the AOL Network (including,
without limitation, any features, functionality or technology) not expressly
described on Exhibit A shall be subject to AOL's prior written approval.
1.3 License. ICP hereby grants AOL a worldwide license to use, market,
license, store, distribute, display, communicate, perform, transmit, and promote
the ICP Internet Site (or any portion thereof) through the AOL Network as AOL
may determine in its sole discretion, including without limitation the right to
integrate Content from the ICP Internet Site by Linking to specific areas on the
ICP Internet Site, provided that the presentation of any such Content on the AOL
Network shall conform with the specifications set forth on Exhibit D. Subject to
such right and license, ICP retains all right, title to and interest in the ICP
Internet Site.
1.4 Management. ICP shall design, create, edit, manage, update, and
maintain the ICP Internet Site. Except as specifically provided for herein, AOL
shall have no obligations of any kind with respect to the ICP Internet Site. ICP
shall be responsible for any hosting or communication costs associated with the
ICP Internet Site (including, without limitation, the costs associated with (i)
any agreed-upon direct connections between the AOL Network and the ICP Internet
Site or (ii) a mirrored version of the ICP Internet Site). ICP shall ensure
that, at all times during the Term, the ICP Internet Site and all Content
contained in or through such site complies with all governmental regulations
regarding the provision of medical advice. AOL Members shall not be required to
go through a registration process (or other similar process) in order to access
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and use the ICP Internet Site, provided that if ICP elects to have all users to
the ICP Internet Site go through a registration process (or other similar
process) in order to access and the site, then ICP shall be permitted to require
AOL Members to go through the identical process.
1.5 Notices; Licensed Content. ICP agrees that it will include language
approved by AOL in the ICP Internet Site and the Welcome Mats (as defined below)
indicating that (i) ICP is solely responsible for the ICP Internet Site and
Welcome Mats, and (ii) AOL is not responsible for the Content contained in the
ICP Internet Site or Welcome Mats, or any expense, loss or damage arising out of
services provided through the ICP Internet Site or Welcome Mats, or arising from
any other use of the ICP Internet Site or Welcome Mats (e.g., "in no event shall
AOL or any of its agents, employees, representatives or affiliates be in any
respect legally liable to you or to any third party in connection with any
opinions, advice or information contained herein or in any response" and "AOL
makes no warranty or guarantee as to the accuracy, completeness, correctness,
timeliness, or usefulness of any opinions, advice or information contained
herein or in any response").
(b) At all times during the Term ICP shall maintain an insurance
policy or policies reasonably satisfactory to AOL and adequate in amount
to insure ICP against all liability associated with the Content on the ICP
Internet Site. ICP shall also include AOL as a named insured party on such
policy or policies. ICP shall provide AOL with a written copy of such
policy or policies no later than sixty (60) days prior to the Soft Launch
Date and thereafter during the Term upon request of AOL.
1.6 Carriage Fee. Subject to Section 6.1 regarding renewal for a third
year of carriage, ICP shall pay AOL as follows: (a) $[***] on the Effective
Date; (b) $[***] on the date that is 90 days after the Effective Date; (c)
upon the Soft Launch; and (d) $[***] in 24 equal monthly installments of
$[***] each beginning on the Launch Date and continuing every thirty (30)
days after the Launch Date.
1.7 Impressions Guarantee. AOL shall provide ICP with at least 23 million
Impressions per year (measured from the Launch Date from ICP's presence on the
AOL Network hereunder (the "Impressions Guarantee"). A minimum of 85% of the
Impressions Guarantee shall be generated from ICP's presence on the Screens and
the Health Channel's Healthy Living subscreen, as specified in Section 1.1, and
the remaining impressions, if any, may be generated from ICP's presence on other
appropriate screens on the AOL Network as AOL may determine in its discretion.
For the purposes of this Agreement, ICP's presence on an AOL screen shall
conform to the specifications set forth on Exhibit D, provided that only screens
that contain a link to
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the ICP Internet Site or the Welcome Mat (as defined herein) will count against
the Impressions Guarantee. The Term shall be extended without additional
carriage fees payable by ICP until the Impressions Guarantee is met.
2. PROMOTION
2.1 Cooperation. Each Party shall cooperate with and reasonably assist the
other Party in supplying material for marketing and promotional activities.
2.2 Interactive Site. ICP shall include the following promotions within
each ICP Interactive Site during the Term: (i) a continuous promotional button
for AOL appearing "above the fold" on the first screen of the ICP Interactive
Site; and (ii) a Link to a location of AOL's choosing where users can obtain
promotional information about AOL products and services and/or download or order
AOL's then-current version of the AOL client software (for which ICP shall earn
bounties for New Members as specified on Exhibit E). ICP shall also provide AOL
with at least 20% of the remnant advertising/promotional space on the ICP
Internet Site, at no cost to AOL, for AOL promotions.
2.3 Publications, etc. ICP shall use commercially reasonable efforts to
prominently and regularly promote AOL and the ICP Internet Site's availability
through the AOL Service in publications, programs, features or other forms of
media over which ICP exercises at least partial editorial control.
2.4 Keyword. In any instances when ICP makes promotional reference to an
ICP Interactive Site, including any listings of the applicable "URL(s)" for such
web site(s) (each a "Web Reference"), ICP shall include a listing of the
applicable AOL "keyword" of comparable prominence to the Web Reference.
2.5 Preferred Access Provider. When promoting AOL, ICP shall promote AOL
as the preferred access provider through which a user can access the ICP
Internet Site (and ICP shall not implement or authorize any other promotions on
behalf of any third parties which are inconsistent with the foregoing). In this
regard, with respect to any ICP Interactive Site accessible or operating through
any operating system (including without limitation any Microsoft system) (an
"Operating System"), ICP shall (a) include in any such ICP Interactive Site a
prominent "Try AOL" feature (and controls and software relating to such feature)
that will cause a user of such site to link directly to AOL access software
located or present on or within the Operating System, so that the user who
already is an AOL
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Member or who does not have Internet access will be connected to the AOL
registration screen, the AOL service, the AOL application setup program or
elsewhere as determined by AOL, and (b) use or support any AOL provided software
or feature that directs a user of such ICP Interactive Site who does not have
Internet access to the AOL application setup program located or present on or
within the Operating System (instead of the Internet Referral Server or any
similar service or successor thereto).
2.6 Direct Marketing. The parties shall execute any New Member acquisition
programs, and ICP shall earn bounties for such programs, as specified described
in Exhibit E attached hereto.
3. REPORTING
3.1 Usage Data. AOL shall make available to ICP a monthly report
specifying for the prior month aggregate usage and Impressions with respect to
ICP's presence on the AOL Network. In addition, to the extent AOL is caching the
ICP Internet Site, AOL shall supply ICP with monthly reports reflecting
aggregate impressions by AOL Members to the cached version of the ICP Internet
Site during the prior month. ICP will supply AOL with monthly reports which
reflect total impressions by AOL Members to the ICP Internet Site during the
prior month, total impressions by all users to the ICP Internet Site during the
prior month and any transactions involving AOL Members at the ICP Internet Site
during the period in question. ICP shall also provide AOL with "click-though"
data with respect to the promotions specified in Section 2.
3.2 Promotional Commitments. ICP shall provide to AOL a monthly report
documenting its compliance with any promotional commitments it has undertaken
pursuant to Section 2 in the form attached as Exhibit F hereto.
4. ADVERTISING AND MERCHANDISING
4.1 Advertising Sales. AOL owns all right, title and interest in and to
the advertising and promotional spaces within the AOL Network (including,
without limitation, advertising and promotional spaces on any AOL forms or pages
which are included within, preceding, framing or otherwise associated with the
ICP Internet Site). The specific advertising inventory within any such AOL forms
or pages shall be as reasonably determined by AOL. ICP owns all right, title and
interest in and to the advertising and promotional spaces within ICP Internet
Site and/or Welcome Mat(s) (as defined below).
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4.2 AOL Programming. If the parties agree that during the Term ICP will
provide exclusive to AOL or differentiated (e.g., from programming available
outside of the AOL Network) online programming ("AOL Programming"), the Parties
shall enter into a separate addendum to this Agreement setting forth the terms
which will govern the AOL programming, including without limitation the
advertising, surcharge, and transactions revenue, if any, derived from the AOL
programming, and any applicable revenue sharing and other charges.
5. CUSTOMIZATION OF SITES
5.1 Performance. ICP shall optimize the ICP Internet Site for distribution
hereunder according to AOL specifications and guidelines to ensure that (i) the
functionality and features within the ICP Internet Site are optimized for the
client software then in use by a majority of AOL Members and (ii) the forms used
in the ICP Internet Site are designed and populated in a manner intended to
minimize delays when AOL Members attempt to access such forms, as follows:
(a) ICP shall design the ICP Internet Site to support the Windows
version of the Microsoft Internet Explorer 3.0 browser, and make
commercially reasonable efforts to support all other AOL browsers, listed
at: xxxx://xxxxxxxxx.xxxx. xxx.xxx/XxxxXxxxx.xxxx and set forth on Exhibit
G hereto;
(b) ICP shall configure the server from which it serves the ICP
Internet site to examine the HTTP User-Agent field in order to identify
the AOL User-Agents listed at:
xxxx://xxxxxxxxx.xxxx.xxx.xxx/Xxxx0Xxxx.xxxx and as set forth on Exhibit G
hereto (the "AOL User-Agents"); and
(c) ICP shall design its web site to support HTTP 1.0 or later
protocol as defined in RFC 1945 (available at
xxxx://xx.xxxxxxxx.xxx/xxx/xxx0000.xxxx) and to adhere to AOL's parameters
for refreshing cached information listed at
xxxx://xxxxxxxxx.xxxx.xxx.xxx/XxxxxXxxx.xxxx.
AOL reserves the right to review the ICP Internet Site to determine
whether such sites are compatible with AOL's then-available client and
host software and the AOL network.
5.2 Customization. ICP shall customize the ICP Internet site for AOL
Members as follows: ICP shall identify the AOL User-Agents as specified above,
and use such identification in order to:
(a) create a customized home page "welcome mat" for the AOL audience
for each area on the ICP Internet Site linked to
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from the AOL Network on a continuous basis (each a "Welcome Mat");
(b) ensure that AOL members linking to the ICP Internet Site do not
receive advertisements, promotions or links for any entity reasonably
construed to be in competition with AOL and that such advertisements,
promotions and links are not otherwise in conflict with AOL advertising
policies and any AOL exclusivities; and
(c) provide continuous navigational ability for AOL members to
return to an agreed-upon point on the AOL service (for which AOL shall
supply the proper address) from ICP Internet site (e.g., the point on the
AOL service from which the ICP Internet Site is Linked).
5.3 Links on ICP Internet Site. The Parties will work together on mutually
acceptable links (including links back to AOL) within the ICP Internet Site in
order to create a robust and engaging AOL member experience. ICP shall take
reasonable efforts to insure that AOL traffic is generally either kept within
the ICP Internet Site or channeled back into the AOL Network. To the extent that
AOL notifies ICP in writing that, in AOL's reasonable judgment, Links from such
site cause an excessive amount of AOL traffic to be diverted outside of such
site and the AOL Network in a manner that has a detrimental effect on the
traffic flow of the AOL audience, then ICP shall immediately reduce the number
of Linds out of such site(s). In the event that ICP cannot or does not so limit
diverted traffic from the ICP Internet Site, AOL reserves the right to terminate
the Links from the AOL Network to the ICP Internet Site at issue and ICP shall
only be responsible to pay a pro-rata share of the carriage fees otherwise owed
by ICP hereunder for the period for which the Links are in place.
6. TERM AND TERMINATION.
6.1 Term. Unless earlier terminated as set forth herein, the initial term
of this Agreement shall be from the Effective Date until the date that is two
(2) years from the Launch Date, provided that for two (2) years after expiration
of the Term, AOL shall continue to have the option to Link to the ICP Internet
Site.
6.1.1 Third Year Extension by AOL. AOL may extend the Agreement
for an additional year upon AOL's then-standard terms and conditions and with
payments by ICP to AOL of $[***] (paybale in monthly installments in advance
of $[***] beginning on the date that is two(2) years from the Launch Date) by
providing ICP with written notice thereof no later than sixty (60) days prior
to the expiration of the initial term (the "Put Notice").
6.1.2 Third Year Extension by ICP
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[***]
6.2 Termination for Breach. Either party may terminate this Agreement at
any time in the event of a material breach by the other Party which remains
uncured after thirty (30) days written notice thereof; provided that AOL will
not be required to provide a notice to ICP in connection with any failure by ICP
to make payments pursuant to Section 1.6 (and the cure period shall therefore
begin upon the occurrence of the failure to pay). In addition, if any claims,
suit, action or proceeding is brought which gives rise to a claim for
indemnification under Section VI of Exhibit c hereto, AOL shall have the right
to terminate this Agreement upon fifteen (15) days prior notice.
6.3 Termination for Bankruptcy/Insolvency. Either Party may terminate this
Agreement immediately following written notice to the other Party if the other
Party: (i) ceases to do business in the normal course, (ii) becomes or is
declared insolvent or bankrupt, (iii) is the subject of any proceeding related
to its liquidation or insolvency (whether voluntary or involuntary) which is not
dismissed within ninety (90) calendar days or (iv) makes an assignment for the
benefit of creditors.
7. TERMS AND CONDITIONS: The legal terms and conditions set forth on Exhibit
C attached hereto are hereby made a part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the Effective Date.
AMERICA ONLINE, INC. ASK-A-DOC, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx, M.D.
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Print Name: Xxxxx Xxxxxxxx Print Name: Xxxxx X. Xxxxxx, M.D.
-------------------------- ---------------------
Title: President, Creative Development, Title: Chairman
AOL Networks --------------------------
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Date: 10/27/97 Date: October 10, 1997
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Tax ID/EIN#
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EXHIBIT A
Description of Content
[***]
EXHIBIT A-1
Real Time Medical Advice Content Sites
[***]
EXHIBIT B
DEFINITIONS. The following definitions shall apply to this Agreement:
AOL Service. The U.S. version of the America Online brand service (excluding
Digital City, XXX.xxx, NetFind or any similar "sub" service that may be
distributed by or through the America Online brand service).
Affiliate. Any agent, distributor or franchisee of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
AOL Look and Feel. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL Member(s). Authorized users of the AOL Network, including any sub-accounts
using the AOL network under an authorized master account.
AOL Network. (i) The America Online(R) brand service, (ii) any international
versions of the America Online service through which AOL or its affiliates elect
to offer the ICP Internet Site and (iii) any other product or service owned,
operated, distributed or authorized to be distributed by or through AOL or its
Affiliates worldwide through which such party elects to offer the ICP Internet
Site (which may include, without limitation, Internet sites promoting AOL
products and services and any "offline" information browsing products of AOL or
its Affiliates).
Confidential Information. Any information relating to or disclosed in the course
of the Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "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, (d)
lawfully obtained from any third party or (e) required or reasonably advised to
be disclosed by law.
Content. Information, materials, features, products, services, opinions, advice,
advertisements, promotions, links, pointers, technology and software.
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ICP Interactive Site. Any interactive site or area which is managed, maintained
or owned by ICP or its agents or to which ICP provides and/or licenses
information, content or other materials, including, by way of example and
without limitation, (i) an ICP site on the world Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network or interactive environment such as Microsoft's proposed
"Active Desktop."
ICP Internet Site. The Internet site and content, currently located at
URL:http://________, which are managed, maintained or owned by ICP or its agents
or to which ICP licenses information, content or other materials.
Impression. An AOL Member's viewing of any screen on the AOL Network containing
ICP's presence.
Launch Date. One hundred and eighty (180) days from the Effective Date.
Link. The mechanism by which a user at one world wide web site can automatically
move to another world wide web site and other sites on the Internet or by which
an AOL Member can move from a site on the AOL Network to a site on the world
wide web or another site on the AOL Network.
New Member. Any person or entity (a) who registers for the AOL Network using
ICP's special promotion identifier and (b) from whom AOL or an Affiliate of AOL
collects at least three monthly usage fees for the use of the AOL Network.
Soft Launch Date. One hundred and fifty (150) days from the Effective Date.
Term. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of the Agreement.
EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
Content. ICP represents and warrants that all Content contained within the ICP
Internet Site (i) will conform to AOL's applicable Terms of Service, the terms
of this Agreement and any other standard, written AOL policy, (ii) will not
infringe on or violate any copyright, trademark, U.S. patent or any other third
party right, and (iii) will not contain any content which violates any
applicable law or regulation (collectively, the "Rules"). In the event that AOL
notifies ICP in writing that any such Content, as reasonable determined by AOL,
(i) does not comply or adhere to the Rules or (ii) is inconsistent with AOL's
programming objectives (e.g., content relating to other topics or services than
as specified on Exhibit A, then ICP shall use its best efforts to block access
by AOL Members to such Content. In the event that ICP cannot, through its best
efforts, block access by AOL Members to such Content in question, then ICP shall
provide AOL prompt written notice of such fact. AOL may then, at its option,
either (i) restrict access from the AOL Network to the Content in question using
technology available to AOL or (ii) in the event access cannot be restricted,
direct ICP to remove any such Content until such time as the Content in question
is no longer displayed. ICP will cooperate with AOL's reasonable requests to the
extent AOL elects to implement any such access restrictions.
Contests. ICP shall take all steps necessary to ensure that any contest,
sweepstakes or similar promotion conducted or promoted through the ICP Internet
Site (a "Contest") complies with all applicable federal, state and local laws
and regulations. ICP shall provide AOL with (i) at least thirty (30) days prior
written notice of any Contest and (ii) upon AOL's request, an opinion from ICP's
counsel confirming that the contest complies with all applicable federal, state
and local laws and regulations.
AOL Look and Feel. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site (the "AOL Frames"). AOL may, at its discretion,
incorporate navigational icons, links and pointers or other Content into such
AOL Frames.
Operations. AOL shall be entitled to require reasonable changes to the ICP
Internet Site to the extent such site will, in AOL's good faith judgment,
adversely affect operations of the AOL Network.
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Duty to Inform. ICP shall promptly inform AOL of any information related to the
ICP Internet Site which could reasonably lead to a claim, demand or liability of
or against AOL and/or its Affiliates by any third party.
Response to Questions/ Comments; Customer Service. ICP shall respond promptly
and professionally to questions, comments, complaints and other reasonable
requests regarding the ICP Internet Site by AOL Members or on request by AOL,
and shall cooperate and assist AOL in promptly answering the same.
Statements to Third Parties. ICP shall not make, publish, or otherwise
communicate, or cause to be made, published, or otherwise communicated, any
deleterious remarks whatsoever to any third parties concerning AOL or its
affiliates, directors, officers, employees or agents, including without
limitation, AOL's business projects, business capabilities, performance of
duties and services or financial position.
Production Work. In the event that ICP requests any AOL production assistance,
ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "Production Plan"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production and maintenance work and (iii) the estimated development
schedule for such work. To the extent the Parties reach agreement regarding
implementation of agreed-upon Production Plan, such agreement shall be reflected
in a separate work order signed by the Parties. To the extent ICP elects to
retain a third party provider to perform any such production work, work produced
by such third party provider must generally conform to AOL's production
Standards & Practices (a copy of which will be supplied by AOL to ICP upon
request). The specific production resources which AOL allocates to any
production work to be performed on behalf of ICP shall be as determined by AOL
in its sole discretion.
Training and Support. AOL shall make available to ICP standard AOL training and
support programs necessary to produce any AOL areas hereunder. ICP can select
its training and support program from the options then offered by AOL. ICP shall
be responsible to pay the fees associated with its chosen training and support
package. In addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's travel and lodging
costs when training is conducted at ICP's offices).
II. TRADEMARKS
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Trademark License. In designing and implementing any marketing, advertising,
press releases or other promotional materials related to this Agreement and/or
referencing the other Party and/or its trade names, trademarks and service marks
(the "Promotional Materials") and subject to the other provisions contained
herein, ICP shall be entitled to use the following trade names, trademarks and
servicemarks of AOL: the "America Online(R)" brand service, "AOLTM"
service/software and AOL's triangle logo; and AOL and its Affiliates shall be
entitled to use the trade names, trademarks and service marks of ICP
(collectively, together with the AOL marks listed above, the "Marks"); provided
that each Party: (i) does not create a unitary composite xxxx involving a Xxxx
of the other Party without the prior written approval of such other Party and
(ii) displays symbols and notices clearly and sufficiently indicating the
trademark status and ownership of the other Party's Marks in accordance with
applicable trademark law and practice.
Rights. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the Other Party.
Quality Standards. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Part, for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
Promotional Materials/Press Releases. Each Party will submit to the other Party,
for its prior written approval, which shall not be unreasonably withheld or
delayed, any Promotional Materials; provided, however, that either Party's use
of screen shots relating to the distribution under this Agreement for
promotional purposes shall not require the approval of the other Party so long
as the AOL Network is clearly identified as the source of such screen shots.
Once approved, the Promotional Materials may be used by a Party and its
affiliates for the purpose of such promotion therein and reused for such purpose
until such approval is withdrawn with reasonable prior notice. In the event such
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approval is withdrawn, existing inventories of Promotional Materials may be
depleted.
Infringement Proceedings. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring,
proceedings alleging infringement of its Mark's or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) 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; (iii) 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; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it shall
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the Term and for a period of
three (3) years following expiration or termination of this Agreement, to
prevent the duplication or disclosure of Confidential Information of the other
Party, other than by or to its employees or agents who must have access to such
Confidential Information to perform such Party's obligations hereunder, who
shall each agree to comply with this Section of this Agreement.
V. RELATIONSHIP WITH AOL MEMBERS
Solicitation of Subscribers. During the Term and for the two-year period
following the expiration or termination of this Agreement, neither ICP nor
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its agents will use the AOL Network to (i) solicit or participate in the
solicitation of AOL Members when that solicitation is for the benefit of any
entity (including ICP) which could reasonably be construed to be or become in
competition with AOL or (ii) promote any services which could reasonably be
construed to be in competition with services available through AOL including,
but not limited to, services available through the Internet (e.g., the ICP
Internet Site). ICP may not send any AOL Member e-mail communications on or
through the Network without a "Prior Business Relationship." For purposes of
this Agreement, a "Prior Business Relationship" shall mean that the AOL Member
has either (i) purchased Products from IPC through the AOL Network or (ii)
voluntarily provided information to ICP through a contest, registration, or
other communication, which included clear and conspicuous notice to the AOL
Member that the information provided by the AOL Member could result in an e-mail
being sent to that AOL Member by ICP or its agents.
Collection of Member information. ICP is prohibited from collecting AOL Member
screennames from public or private areas of the AOL Network, except as
specifically provided below. ICP shall ensure that any survey, questionnaire or
other means of collecting Member information including, without limitation,
requests directed to specific AOL Member screennames and automated methods of
collecting screennames (an "Information Request") complies with (i) all
applicable law and regulations, (ii) AOL"s applicable Terms of Service, and
(iii) any privacy policies which have been issued by AOL Privacy Policies").
Each Information Request shall clearly and conspicuously specify to the AOL
Members at issue the purpose for which Member Information collected through the
Information Request shall be used (the "Specified Purpose").
Use of Member Information. ICP shall restrict use of the Member Information
collected through an Information Request to the Specified Purpose. In no event
shall ICP (i) provide AOL Member names, screennames, addresses or other
identifying information ("Member Information") to any third party (except to the
extent specifically (a) permitted under the AOL Privacy Policies or (b)
authorized by the AOL Members in question) or (ii) otherwise use any Member
Information in contravention of the above section regarding "Solicitation of
Members."
VI. TREATMENT OF CLAIMS
Liability. UNDER NO CIRCUMSTANCES SHALL AOL BE LIABLE TO ICP FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ICP HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE USE OF OR
INABILITY TO USE THE AOL
6
NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS PROVIDED
BELOW IN THE "INDEMNITY" SECTION, AOL SHALL NOT BE LIABLE TO ICP FOR MORE THAN
THE AGGREGATE AMOUNTS EARNED BY AOL UNDER THIS AGREEMENT AS OF THE DATE OF THE
APPLICABLE CLAIM.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK, OR
ANY AOL PUBLISHING TOOLS, INCLUDING ANY IMPLIED WARRANTY 0F MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY
OF AOL NETWORK OR THE ICP INTERNET SITE.
Indemnity. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable outside and in-house
attorneys' fees ("Liabilities"), resulting from the indemnifying Party's
material breach of any obligation, duty, representation or warranty of this
Agreement, except where Liabilities result from the gross negligence or knowing
and willful misconduct of the other Party. In addition, ICP will defend,
indemnify, save and hold harmless AOL and the officers, directors, agents,
affiliates, distributors, franchisees and employees of AOL from any and all
Liabilities arising out of or in connection with any actual or threatened claim,
suit, action, demand, liability or proceeding of any kind by any person or
entity based on or arising out of any Content (including, without limitation,
opinions and advice) appearing within the ICP Internet site.
Claims. Each Party agrees to (i) promptly notify the other Party in writing of
any indemnifiable claim and give the other Party the opportunity to defend or
negotiate a settlement of any such claim at such other Party's expense and (ii)
cooperate fully with the other Party, at that other Party's expense, in
defending or settling such claim. AOL reserves the right, at its own expense, to
assume the exclusive defense and control of any matter otherwise subject to
indemnification by ICP hereunder, and in such event, ICP shall have no further
obligation to provide indemnification for such matter hereunder.
Acknowledgement. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT
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WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THEM OF ALL
RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS CONTEMPLATED
HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES AND LIABILITY
CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE CIRCUMSTANCES AND EXTENT
OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL BE ENFORCEABLE INDEPENDENT
OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS
AGREEMENT.
VII. MISCELLANEOUS
Auditing Rights. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement each Party shall have the right, at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other Party which are directly
related to amounts payable to the Party requesting the audit pursuant to this
Agreement. Any such audit may be conducted after twenty (20) business days prior
written notice, subject to the following. Such audits shall not be made more
frequently than once every twelve months. No such audit of AOL shall occur
during the period beginning on June 1 and ending October 1. In lieu of providing
access to its Records as described above, a Party shall be entitled to provide
the other Party with a report from an independent certified public accounting
firm confirming the information to be derived from such Records.
Excuse. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
Independent Contractors. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. 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 of, or to
otherwise bind, the other Party. This 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
8
such a relationship upon either Party.
Notice. Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing and shall be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network, (ii) on the delivery date if
delivered personally to the Party to whom the same is directed; (iii) one
business day after deposit with a commercial overnight carrier, with
written-verification of receipt or (iv) five business days after the mailing
date, whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available, to the person(s) specified below at
the address of the Party set forth in the first paragraph of this Agreement.
No Waiver. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
Return of Information. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials specified the other Party.
Survival. Sections IV, V, VI, and VII of this Exhibit C, shall survive the
completion, expiration, termination or cancellation of this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
Amendment. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
9
Further Assurances. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by any other Party for the implementation or continuing
performance of this Agreement.
Assignment. ICP shall not assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of AOL. Subject
to the foregoing, this Agreement shall be fully binding upon, inure to the
benefit of and be enforceable by the Parties hereto and their respective
successors and assigns.
Construction; Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in fall force and effect.
Remedies. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the Commonwealth of
Virginia except for its conflicts of laws principles. Each Party irrevocably
consents to the exclusive jurisdiction of the courts of the Commonwealth of
Virginia and the federal courts situated in the Commonwealth of Virginia, in
connection with any action to enforce the provisions of this Agreement, to
recover damages or other relief for breach or default under this Agreement, or
otherwise arising under or by reason of this Agreement.
Export Controls. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
Headings. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
Counterparts. This Agreement
10
may be executed in counterparts, each of which shall be deemed an original and
all of which together shall constitute one and the same document.
EXHIBIT D
Format For ICP's Presence on the AOL Network
Any ICP trademark or logo
Any headline or picture from ICP content
Any teaser, icon, Link to ICP Internet Site or Welcome Mat
Any other Content which originates from, describes or promotes ICP or ICP's
Content
EXHIBIT E
New Member Acquisition Programs
A. Download button on ICP web site -- bounties shall be Ten Dollars ($10) for
each New Member.
EXHIBIT F
CERTIFICATE OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS AND EXCLUSIVITY
Pursuant to Section 2 of the Interactive Services Agreement between ____________
("ICP") and America Online, inc. ("AOL"), dated as of __________, 1997 (the
"Agreement"), the following report is delivered to AOL for the month ending
________ (the "Month"):
I. Promotional Commitments
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Month:
Type of Date(s) of Duration/Circulation Relevant
Promotion Promotion of Promotion Contract
Section
1.
2.
3.
IN WITNESS WHEREOF, this Certificate has been executed this ____ day of _______,
199_.
Ask-A-Doctor, Inc.
By:
------------------
Print Name: Xxxxx Xxxxxx, M.D.
------------------
Title: Chairman
--------
Date: October 10, 1997
----------------
EXHIBIT G
TECHNICAL SPECIFICATIONS
1. BROWSER Table (attached hereto)
2. User-Agent Table (attached hereto)
2
Confidential
AMENDMENT TO INTERACTIVE SERVICES AGREEMENT
This Amendment to Interactive services Agreement (this "Amendment"),
dated as of April __, 1998, is between America Online, Inc ("AOL"), a Delaware
corporation, with offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and
Ask-A-Doc, Inc. ("ICP") a Delaware corporation, with offices at 00 Xxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxxx 00000. AOL and ICP may be referred to individually as
"Party" and collectively as "Parties."
BACKGROUND
AOL and MP entered into an Interactive Services Agreement effective
as of October 1, 1997 (the "Agreement"). The Parties desire to amend the
Agreement to reflect their agreement with respect to the timing of payments due
to AOL from ICP pursuant to the Agreement and the payment of additional carriage
fees by ICP in return for AOL"s forebearance as to payments that are currently
due. Defined terms used but not defined in this Amendment shall be as defined in
the Agreement.
In consideration of the premises, mutual covenants and agreements
herein and other good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged, the Parties, intending to be legally bound
hereby, agrees as follows:
TERMS
1. Until May 16, 1998 (the "Forebearance Date"), AOL shall forebear and shall
take no action to enforce ICP"s obligations to pay the carriage fees which
are currently due, or which become due prior to the Forebearance Date,
pursuant to Section 1.6 of the Agreement.
2. On the Forebearance Date, ICP shall pay AOL (i) all carriage fees due
and unpaid as of the Forebearance Date and (ii) and additional [***]
($[***])(the "Additional Carriage Fee"). The Additional Carriage Fee is
in addition to the carriage fees described in Section 1.6 of the
Agreement and is not an advance payment of such carriage fees. From and
after the Forebearance Date, all payments due under the Agreement shall
become due and be paid by ICP in accordance with, and on the dates set
forth in, the Agreement.
3. Except as amended by this Agreement, the Agreement is ratified and
confirmed in all respects and continues in full force and effect.
3
4
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first written above.
AMERICA ONLINE, INC. ASK-A-DOC, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------- ------------------------------------
Print Name: Xxxxx Xxxxxxxx Print Name: Xxxxx X. Xxxxxxx
--------------------- ----------------------------
Title: President, AOL Interactive Title: Vice President
Services ---------------------------------
---------------------------------
Confidential
SECOND AMENDMENT TO INTERACTIVE SERVICES AGREEMENT
This Second Amendment to Interactive Services Agreement (this
"Second Amendment"), dated as of August 20, 1998, between America Online, Inc.
("AOL"), a Delaware corporation with offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx
00000, and America's Doctor, Inc. ("ICP") a Delaware corporation, with offices
at 00 Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000. AOL and ICP may be referred to
individually as a "Party" and collectively as "Parties."
BACKGROUND
AOL and ICP entered into an Interactive Services Agreement effective
as of October 1, 1997 (the "Agreement") and an Amendment to Interactive Services
Agreement dated as of April __, 1998 (the "Amendment"). The Parties desire to
amend the Agreement and the Amendment to reflect their agreement with respect to
the timing of payments due to AOL from ICP pursuant to the Agreement and the
length of the term of the Agreement. Defined terms used but not defined in this
Amendment shall be as defined in the Agreement.
In consideration of the premises, mutual covenants and agreements
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound
hereby, agrees as follows:
TERMS
1. Term. The initial term of the Agreement shall be extended through June 21,
2000.
2. Carriage Fees. All amounts not yet paid by ICP to AOL as of the date of
this Second Amendment shall be paid according to the following schedule:
ICP shall pay AOL [***] ($[***]) on or before September 21, 1998.
Thereafter, ICP shall pay AOL [***] dollars ($[***]) on or before the 21st
day of each month during the initial term, up through and including
April 21, 2000. After April 21, 2000 and continuing through the expiration
of the initial term, no further payments by ICP to AOL shall become due.
3. Wired Payments. All payments by ICP hereunder shall be paid in immediately
available, non-refundable U.S. funds wired to the "America Online"
account, Account Number , or such other account of which AOL
shall give ICP written notice.
4. Except as amended by this Second Amendment, the Agreement is ratified and
confirmed in all respects and continues in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date
first written above.
2
AMERICA ONLINE, INC. AMERICA'S DOCTOR, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx, M.D.
----------------------------- ------------------------------------
Print Name: Xxxxx Xxxxxxxx Print Name: Xxxxx X. Xxxxxx, M.D.
---------------------- ----------------------------
Title: President, AOL Interactive Title: Chairman and CEO
Services ---------------------------------
----------------------------------
Date: Date: 8/20/98
---------------------------- ----------------------------------
