Exhibit 10.19
CONTENT LICENSE AGREEMENT
This agreement ("Agreement") is entered into as of the 11th day of December,
1998 ("Effective Date"), by and between Excite, Inc., a Delaware corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Empower
Health Corporation, a Texas corporation, located at 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxxxxx Xxxxx, Xxxxxx, XX 00000 ("Content Provider").
RECITALS
A. Excite maintains sites on the Internet at xxxx://xxx. xxxxxx.xxx (the
"Excite Site") and at xxxx://xxx.xxxxxxxxxx.xxx (the "Webcrawler Site"), and
owns and/or manages related Web sites worldwide (collectively, the "Excite
Network") which, among other things, allow its users to search for and
access content and other sites on the Internet.
B. Excite also maintains and/or manages certain Web pages which may be
delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies (collectively, "Broadcast Pages") which may incorporate
content supplied to Excite by third parties for the purpose of providing
value to Excite users and providing access to the content, products and/or
services of such third parties.
C. Content Provider owns or has the right to distribute certain health content
and maintains a related site on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Content Provider Site").
D. Excite and Content Provider wish to distribute Content Provider's content
through the Excite Network and/or Broadcast Pages.
Therefore, the parties agree as follows:
1. CONTENT PROVIDED TO EXCITE
a) Content Provider will provide to Excite the content described in
Exhibit A (the "Content"). The Content will comply with the description a
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technical specifications attached hereto as Exhibit A; provided, however, that
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Content Provider does not warrant that the Content is error free. Content
Provider warrants that Content will comply with the description and technical
specifications contemplated by this Agreement.
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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.
b) Excite may incorporate the Content into certain pages in the Excite
Network (the "Content Pages) and reasonable excerpts or portions of the
Content may be incorporated into Broadcast Pages, at Excite's
discretion.
c) Content Provider will have sole control and responsibility over the data
and information contained in the Content. Content Provider and Excite
will mutually agree on reasonable legal and medical disclaimers for the
Content Pages and the Broadcast Pages.
d) Content Provider will get prominent branding on the Content Pages. The
exact type and placement of the branding will be mutually determined by
Content Provider and Excite.
e) Content Provider and Excite will determine mutually agreeable methods
for the transmission and incorporation of updates to the Content. Other
than updates to the Content, Content Provider will not alter the Content
without Excite's prior consent; provided, however, that Content Provider
may promptly and without prior consent of Excite make any changes in the
Content to correct errors and the like, or to remove any defamatory
materials or any other materials that Content Provider can demonstrate
via user feedback are offensive to a reasonable number of users of
Content Provider Site.
f) Excite will have sole control over the "look and feel" of the Excite
Network. Excite will have sole control over the content, composition,
"look and feel" and distribution of the Broadcast Pages. Excite will
have sole responsibility for providing, hosting and maintaining, at its
expense, the Excite Network and for providing and delivering the
Broadcast Pages.
g) Content Provider will have sole responsibility for providing, at its
expense, the Content to Excite.
h) Content Provider will be able to provide the Content to other partners
at its discretion.
2. ADVERTISING; USAGE REPORTS; PUBLICITY
a) Excite will be solely responsible for selling any advertising on the
Excite Network.
b) Excite will pay Content Provider on a quarterly basis * * * of the "Net
Advertising Revenue" that accrues to Excite during the term of this
Agreement from banner advertising that appears on "Advertising Pages."
"Net Advertising Revenue" means all banner advertising revenue that
accrues to Excite during the applicable payment period * * ** * * .
"Advertising Pages" mean Content Pages that display the Content or any
portion thereof and with respect to which at least a majority of the
content (excluding advertisements) on such pages is composed of the
Content. "Advertising Pages" specifically exclude Excite and Webcrawler
search results pages.
c) Payments by Excite to Content Provider will be due within thirty (30)
days of the end of each calendar quarter.
d) With each payment, Excite will provide to Content Provider documentation
reasonably detailing the calculation of the payment.
e) Excite will maintain accurate records with respect to the calculation of
all payments due under this Agreement. Content Provider may, upon no
less than thirty (30) days' prior written notice to Excite and no more
than once per year, cause an independent Certified Public Accountant to
inspect the records of Excite reasonably related to the calculation of
such payments during Excite's normal business hours. The fees charged by
such Certified Public Accountant in connection with the inspection will
be paid by Content Provider, unless any such inspection reveals any
underpayment of fees by Excite of greater than ten percent (10%) in
which event Excite shall reimburse Content Provider for any reasonable
fees charged by such Certified Public Accountant in connection with such
inspection.
f) Excite will provide Content Provider via email usage reports containing
the total number of page views generated by links from the Excite
Network to the Advertising Pages. Each Usage Report will cover a
calendar month and will be delivered within fifteen (15) days following
the end of the applicable month.
g) Except as otherwise set forth in this Agreement, neither party will make
any public statement, press release or other announcement relating to
the terms of or existence of this Agreement without the prior written
approval of the other.
3. CONTENT OWNERSHIP AND LICENSE
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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.
a) Content Provider will retain all right, title and interest in and to the
Content worldwide (including, but not limited to, ownership of all
copyrights and other intellectual property rights therein). Subject to
the terms and conditions of this Agreement, Content Provider hereby
grants to Excite a non-exclusive, worldwide license to use, reproduce,
distribute, transmit and publicly display the Content in accordance with
this Agreement and to sub-license the Content to Excite's wholly-owned
subsidiaries or to joint ventures in which Excite participates for the
sole purpose of using, reproducing, distributing, transmitting and
publicly displaying the Content in accordance with this Agreement.
Excite's only payment obligation to Content Provider in consideration
for such license is set forth in Section 2.
b) Excite will retain all right, title, and interest in and to the Excite
Network and the Broadcast Pages worldwide (including, but not limited
to, ownership of all copyrights, look and feel and other intellectual
property rights therein).
4. TRADEMARK OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, including any
goodwill associated therewith, subject to the limited license granted to
Excite hereunder. Any use of any such trademarks by Excite shall inure
to the benefit of Content Provider and Excite shall take no action that
is inconsistent with Content Provider's ownership thereof.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, including any
goodwill associated therewith, subject to the limited license granted to
Content Provider hereunder. Any use of any such trademarks by Content
Provider shall inure to the benefit of Excite and Content Provider shall
take no action that is inconsistent with Excite's ownership thereof.
c) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as specifically
described in this Agreement. All such use shall be in accordance with
each party's reasonable policies regarding advertising and trademark
usage as established from time to time.
d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
(i) As the parties may agree in writing; or
(ii) To the extent permitted by applicable law.
5. TERM
The term of this Agreement will begin on the Effective Date and will end one
year thereafter. This Agreement will automatically renew for additional
terms of one year each, unless either party notifies the other in writing at
least thirty (30) days prior to automatic renewal that it does not wish to
renew this Agreement.
6. TERMINATION
a) Either party may terminate this Agreement if the other party materially
breaches its obligations hereunder and such breach remains uncured for
thirty (30) days following the notice to the breaching party of the
breach, with the following exceptions:
(i) In the event of three or more material errors, failures or outages
of the Content in any thirty (30) day period, Excite may elect to
immediately terminate this Agreement upon the third such event by
written notice to Content Provider and enter into other
arrangements for the acquisition of similar content:
(ii) Content Provider will ensure that the Content will at all times be
at least comparable to or better any other source of similar
topical content available on the Internet in terms of the following
factors, taken as a whole: (i) breadth and depth of coverage, (ii)
timeliness of content updates and (iii) reputation and ranking
based on a cross-section of third party reviewers in terms of
topics covered, accuracy of included information and other
qualitative factors. In the event that Content Provider fails to
meet these quality criteria, Excite may terminate this Agreement on
thirty (30) days' written notice and enter into other arrangements
for the acquisition of similar content.
b) All payments that have accrued prior to the termination or expiration of
this Agreement will be payable in full within thirty (30) days thereof.
c) The provisions of this Section 6 (Termination), Section 7
(Confidentiality), Section 8 (Warranty and Indemnity), Section 9
(Limitation of Liability) and Section 10 (Dispute Resolution) will
survive any termination or expiration of this Agreement.
7. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
activities that is proprietary and confidential, which shall include all
business, financial, technical and other information of a party marked
or designated by such party as "confidential" or "proprietary," or
information which, by the nature of the
circumstances surrounding the disclosure, ought in good faith to be
treated as confidential.
b) Confidential Information will not include information that (i) is in or
enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without restriction
on disclosure and without breach of a nondisclosure obligation or (iii)
the receiving party knew prior to receiving such information from the
disclosing party or develops independently without reference to the
Confidential Information of the disclosing party.
c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except as
expressly permitted in this Agreement and (ii) that it will take all
reasonable measures to maintain the confidentiality of all Confidential
Information of the other party in its possession or control, which will
in no event be less than the measures it uses to maintain the
confidentiality of its own information of similar importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required by
law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) The information contained in the Usage Reports provided by each party
hereunder will be deemed to be the Confidential Information of the
disclosing party.
f) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed without
the written consent of the other party.
8. WARRANTY AND INDEMNITY
a) Content Provider warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, any and
all Content provided to Excite hereunder.
b) Except for the Content, Excite warrants that it owns, or has obtained
the right to distribute and make available as specified in this
Agreement the Content Pages and Broadcast Pages.
c) Content Provider will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents from
any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
(i) Its breach of any warranty, representation or covenant in this
Section 8; or
(ii) Any claim that the Content infringes or violates any third party's
copyright, patent, trade secret, trademark, right of publicity or
right of privacy or contains any defamatory content; or
(iii) Any claim that the Content and/or its display on the Excite
Network violate any state, federal or local laws, regulations or
statues, including but not limited to, restrictions on the
practice of medicine; or
(iv) Any claim of personal injury or product liability with respect to
the Content displayed to consumers on the Excite Network.
Excite will promptly notify Content Provider of any and all such claims
and will reasonably cooperate with Content Provider with the defense
and/or settlement thereof, which defense and/or settlement shall be
controlled by Content Provider, provided that, if any settlement
requires an affirmative obligation of, results in any ongoing liability
to or prejudices or detrimentally impacts Excite in any way and such
obligation, liability, prejudice or impact can reasonably be expected to
be material, then such settlement shall require Excite's written consent
(not to be unreasonably withheld or delayed) and Excite may have its own
counsel in attendance at all proceedings and substantive negotiations
relating to such claim.
d) Excite will indemnify, defend and hold harmless Content Provider, its
affiliates, officers, directors, employees, consultants and agents from
any and all third, party claims, liability, damages and/or costs
(including but not limited to, attorneys fees) arising from:
(i) Its breach of any warranty, representation or covenant in this
Section 8; or
(ii) Any claim arising from content displayed on the Excite Network
other than the Content, and any claim arising from any modification
made to the Content by Excite or by Content Provider at the
direction of Excite.
Content Provider will promptly notify Excite of any and all such claims
and will reasonably cooperate with Excite with the defense and/or
settlement thereof, which defense and/or settlement shall be controlled
by Excite, provided that, if any settlement requires an affirmative
obligation of, results in any ongoing liability to or prejudices or
detrimentally impacts Content Provider in any way and such obligation,
liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require Content Provider's written
consent (not to be unreasonably withheld or delayed) and Content
Provider may have its own counsel in attendance at all proceedings and
substantive negotiations relating to such claim.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY
IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
REGARDING SUCH SUBJECT MATTER.
9. LIMITATION OF LIABILITY
a) EXCEPT UNDER SECTION 10(c) and 10(d), IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE.
b) EXCEPT UNDER SECTION 10(c), THE LIABILITY OF CONTENT PROVIDER FOR
DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY
OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS
PAYABLE TO EXCITE UNDER THIS AGREEMENT.
c) EXCEPT UNDER SECTION 10(d), THE LIABILITY OF EXCITE FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL
THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS ACTUALLY PAID TO
CONTENT PROVIDER.
10. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties' obligations
regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is no
adequate remedy at law. Therefore, in the event of any breach or
threatened breach of a party's obligations regarding trademarks, service
marks or trade names or confidentiality, the aggrieved party will be
entitled to seek equitable relief in addition to its other available
legal remedies in a court of competent jurisdiction. For the purposes of
this section only, the parties consent to venue in either the state
courts of the county in which Excite has its principal place of business
or the United States District Court for the Northern District of
California.
b) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation within 30 days after notice of dispute is provided to
the other party, the parties will refer the dispute(s) to the American
Arbitration Association for resolution through binding arbitration by a
single arbitrator pursuant to the American Arbitration Association's
rules
applicable to commercial disputes. The arbitration will be held in the
county in which Excite has its principal place of business.
11. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
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part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required in
connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets. Any attempt to assign this
Agreement other than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of California, notwithstanding the
actual state or country of residence or incorporation of Content
Provider.
c) Notice. Any notice under this Agreement will be in writing and delivered
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by personal delivery, express courier, confirmed facsimile, confirmed
email or certified or registered mail, return receipt requested, and
will be deemed given upon personal delivery, one (1) day after deposit
with express courier, upon confirmation of receipt of facsimile or email
or five (5) days after deposit in the mail. Notices will be sent to a
party at its address set forth below or such other address as that party
may specify in writing pursuant to this section.
d) No Agency. The parties are independent contractors and will have no
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power or authority to assume or create any obligation or responsibility
on behalf of each other. This Agreement will not be construed to create
or imply any partnership, agency or joint venture.
e) Force Majeure. Any delay in or failure of performance by either party
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under this Agreement will not be considered a breach of this Agreement
and will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts of
God, power outages and governmental restrictions.
f) Severability. In the event that any of the provisions of this Agreement
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are held to be unenforceable by a court or arbitrator, the remaining
portions of the Agreement will remain in full force and effect.
g) Entire Agreement. This Agreement is the complete and exclusive agreement
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between the parties with respect to the subject matter hereof,
superseding any prior agreements and communications (both written and
oral) regarding such subject matter. This Agreement may only be
modified, or any rights under it waived, by a written document executed
by both parties.
Empower Health Corporation Excite, Inc.
By: \s\ Xxxxxx X. Xxxxxxx By: \s\ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxx
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Title: Chief Executive Officer Title: Executive Vice President/
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Chief Financial Officer
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Date: 12/22/98 Date: 12/16/98
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0000 Xxxxxxxx Xxxx Xxxxx 000 Xxxxxxxx
Xxxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000
Xxxxxx, XX 00000 000-000-0000 (voice)
000-000-0000 (voice) 000-000-0000 (fax)
EXHIBIT A
CONTENT DESCRIPTION AND TECHNICAL SPECIFICATIONS
The content will include content, currently presented on xxxx://xxx.xxxxxx.xxx
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or any other Health related presentations directly produced or authored by
Content Provider:
1) X.X.X.X. Database
2) University of Pennsylvania editorial content
3) Reuters news and articles
4) Xx. Xxxxx Xxxxxxxxx'x column and editorial content
5) Multum Database, pharmaceutical/drug information
6) Government Documents and databases as they become available
7) Other content to be mutually agreed upon
Updates to the Content may include new and additional information and
corrections for errors or other misinformation.
Content Provider will meet Excite's technical specifications for the delivery
and maintenance of the Content by January 2, 1999. An FTP site, the databases
and an agreed to retrieval and update methodology will be in place by January 2,
1999.
Changes to the contents format, delivery and timeliness will be mutually agreed
to between Excite and Xx. Xxxx.
