Exhibit 10.31
AMENDED AND RESTATED NBCI STRATEGIC ALLIANCE AGREEMENT
HEALTHGATE DATA CORP.
This Amended and Restated NBCi Strategic Alliance Agreement (the
"Agreement") is made and entered into as of March 22, 2001 (the "Restated
Agreement Effective Date") between NBC Internet, Inc., a Delaware corporation,
with a principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("NBCi") and HealthGate Data Corp., a Delaware corporation, with its
principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company").
Whereas, the Company and NBCi, as successor by assignment to Snap! LLC
("Snap") and ▇▇▇▇.▇▇▇, Inc. ("Xoom"), are parties to that certain Snap Strategic
Alliance Agreement, dated October 29, 1999 (as amended by that certain letter
agreement, dated December 14, 1999, by and among the Company, NBCi, Snap, Xoom
and Medical Self Care, Inc. and by that Second Amendment to Snap Strategic
Alliance Agreement, dated September 1, 2000, by and among the Company, NBCi,
Snap and Xoom, the "Existing Agreement"); and
WHEREAS, the Company and NBCi (together, the "Parties") desire to make
certain amendments to the Existing Agreement and to restate the Existing
Agreement, as so amended, in the form of this Agreement, in order to augment
their strategic alliance and to better reflect their evolving businesses;
NOW, THEREFORE, the Parties hereby agree as follows:
1. EFFECTIVE DATES. The terms and conditions of the Existing Agreement
shall govern the relationship between the Parties prior to the date of
this Agreement with respect to the subject matter thereof. Upon the
execution and delivery of this Agreement by the Parties, this Agreement
shall supercede in all respects the effectiveness of the Existing
Agreement in defining the relationship between the Parties from and
after the date of this Agreement with respect to the subject matter
thereof and hereof.
2. CERTAIN DEFINITIONS. As used in this Agreement, the terms set forth
below shall have the following meanings:
2.1. "Above the Fold" means that a particular item on a Web page is
viewable on a computer screen at an 800 x 600 pixels resolution
when the User first accesses such Web page, without scrolling
down to view more of the Web page.
2.2. "Content Anchor Tenant" means a Web content provider whose
position is greater in size and prominence than that of any
non-affiliated third party within the relevant NBCi Site page or
area of a page for health-related content.
2.3. "Best of Breed" means (i) those personal health and/or medical
content available on the Internet with the most advanced and
commercially successful, functionality, performance, content,
and features, whether utilitarian or aesthetic, and (ii) the
ability of the Company Site to scale easily with only additional
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hardware and to accommodate, at a minimum, the peak traffic
volume of the third most visited Internet personal health and/or
medical site.
2.4. "Business Day" shall mean any day on which banks in both New
York City and Los Angeles and the New York Stock Exchange are
open for the conduct of regular business.
2.5. "CHOICE Sites" means the Web sites created for hospitals and
other third-party health providers by the Company utilizing the
Company's CHOICE eHealth Platform.
2.6. "Commerce Offering" means any text, content, links or promotions
providing a direct or indirect opportunity for Users on the NBCi
Sites or the Company Site to engage in a commerce, purchase,
trade, exchange, or purchase transaction, whether paid or
unpaid, or any registration or membership opportunity for Users
to provide User Profile Data, including, without limitation,
content purchase opportunities, registration or membership
sign-up opportunities, for-fee or subscription-based content or
services, other purchase opportunities for products or services
offered by the Company directly or indirectly, links to any such
opportunities presented to Users on the NBCi Sites or the
Company Site, or other content areas of those Sites.
2.7. "Company Content" means (i) the Company's and its licensors'
text links, logos, graphic links, and other materials, tools,
content, or text that are delivered by the Company to NBCi
hereunder and/or available on the Company Site including the
content described in Exhibit A and Exhibit D and (ii) Company
Marks.
2.8. "Company Database" means User Profile Data and any other
information relating to Users of the Company Site or other
customers of the Company or purchasers of Company Products who
have had information about them collected or otherwise obtained
by the Company, or for the Company's use or benefit, for the
purpose of direct marketing or other communication activities,
and all updates or additional information that may be added to
such database during the Term.
2.9. "Company Marks" means the Company's and its licensors' (other
than NBCi) trademarks, trade names, service marks and logos that
may be delivered by the Company to NBCi hereunder.
2.10. "Company Products" means all products and services offered
through the Company Site.
2.11. "Company Site" means the Web site operated by the Company,
including the Corporate Home Page, and all subsequent pages and
sub-directories which incorporate the NBCi Design Template and
which are located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇, together
with any mirror sites, and successors to any of the foregoing,
which comprise the Company's consumer oriented Web site.
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2.12. "Competitor" means a Web site or person providing products or
services that compete with products or services provided by
NBCi, as NBCi shall determine from time to time.
2.13. "Contract Year" means Year One, Year Two Year Three, Year Four,
or Year Five, as applicable.
2.14. "Corporate Home Page" means the initial, top level display page
of the Company Site located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, which
may only contain information about the Company, its various
products (which shall not include any links to or mention
products similar in nature to the relationship contemplated
pursuant to this Agreement), the Company's investor relations
information, and other information which may be mutually agreed
upon by the Parties from time to time.
2.15. "Effective Date" means October 29, 1999.
2.16. "Health Channel" means the Health Channel on the NBCi Sites.
2.17. "Health Content Portal(s)" means the specific aggregations of
linked content within areas of the Health Channel organized
around the Company Content, and relating to personal health and
medical information, products and services.
2.18. "Inventory Pages" means each page of the Company Site, other
than the Corporate Home Page and CHOICE Sites.
2.19. "Look and Feel" means the look and feel, trade dress, User
interface and flow of User experience of an Internet site.
2.20. "NBCi Marks" means any trademarks, trade names, service marks
and logos that are delivered by NBCi or any NBCi subsidiary to
the Company hereunder.
2.21. "NBCi Member" means a User who has registered to become a member
of one of NBCi's, or one of NBCi's subsidiaries',
registration-based services, including without limitation, the
NBCi Sites and the free email service available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇.
2.22. "NBCi Product Manager" means an employee of NBCi or an NBCi
subsidiary, or an independent contractor, holding editorial
authority and responsibility for a portal, site, collection,
area, center or page on the NBCi Sites.
2.23. "NBCi Sites" means: (i) subject to the "Distributor" (as defined
in SECTION 5.1 below) exclusion in SECTION 5.1, any and all
search and aggregation "portal" Web sites, whether operated by
NBCi, or a third party under the "NBCi" brand, including,
without limitation, the Web site located at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇,
together with any mirror sites, any co-branded editions of such
sites or portions thereof that have been or may be developed for
Distributors; and (ii) if NBCi so elects within its sole
discretion, the Enhanced Site and/or the International Editions,
subject to SECTION 5.2.
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2.24. "User" means any end-user of the Web.
2.25. "User Profile Data" means data regarding a User provided by the
User on the NBCi Sites, Company Site (excluding the Corporate
Home Page) or otherwise to NBCi or the Company, including
without limitation the User's name, e-mail address, street
address, telephone number and other information about the User.
2.26. "Web" means the World Wide Web part of the Internet.
2.27. "Wires" means NBCi's email newsletters sent to NBCi Members by
NBCi or one of its subsidiaries.
2.28. "Year One" means the thirteen month period beginning on the
Effective Date and ending upon the day before the thirteen month
anniversary of the Effective Date.
2.29. "Year Two" means the twelve month period beginning on the
thirteen month anniversary of the Effective Date and ending upon
the day before the twenty-five month anniversary of the
Effective Date.
2.30. "Year Three" means the twelve month period beginning on the
twenty-five month anniversary of the Effective Date and ending
upon the day before the thirty-seven month anniversary of the
Effective Date.
2.31. "Year Four" means the twelve month period beginning on the
thirty-seven month anniversary of the Effective Date and ending
upon the day before the forty-nine month anniversary of the
Effective Date.
2.32. "Year Five" means the twelve month period beginning on the
forty-nine month anniversary of the Effective Date and ending
upon the day before the sixty one month anniversary of the
Effective Date.
3. COMPANY CONTENT; COMPANY SITE; PERFORMANCE; AND ACCOUNT MANAGEMENT.
3.1. COMPANY CONTENT. Company agrees to provide NBCi with all Company
Content described in EXHIBIT A and EXHIBIT D as soon as
practicable after the Restated Agreement Effective Date, and no
later than ten days after the such date, except for Company
Content which the Company is prohibited by written contract to
deliver and which the Company has identified as such in a
written notice to NBCi at or prior to the time of delivery of
Company Content; provided, however, that the Company will use
its best efforts during the sixty days from and after the
Restated Agreement Effective Date to obtain the consent(s) of
the other parties to such contracts to deliver and use Company
Content as contemplated by this Agreement. During such sixty day
period from and after the Restated Agreement Effective Date, so
long as the Company is using its best efforts to obtain such
consents, NBCi will not use on the NBCi Sites content, such as
content not provided by the Company, that NBCi would otherwise
have the right to use on the NBCi Sites pursuant to SECTION 4.1.
Unless and until the Company obtains the required consents of
the relevant counter parties, NBCi will not use on the NBCi
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Sites any content for which use on the NBCi Sites is prohibited
by the terms of a written contract to which the Company is a
party and which the Company has identified as such in a written
notice to NBCi at or prior to the time of delivery of Company
Content. In the event that the Company fails to obtain the
consents of relevant counter parties to deliver all Company
Content as contemplated by this Agreement during the sixty days
from and after the Restated Agreement Effective Date, then the
Company shall continue to use its best efforts to obtain all of
such consents. Subject to the foregoing, NBCi may use and
display, at NBCi's sole discretion, anywhere on the NBCi Sites,
the Company Content with the exception of the Content Portals
created by the Company for the Content Anchor Tenant pages,
which are subject to SECTION 4.1. Such display and use by NBCi
of the Company Content will not constitute the Company as the
Content Anchor Tenant of any part of the NBCi Sites, other than
pursuant to SECTION 4.1, and no payments will be required by
either Party with respect to such display and use of Company
Content. The Company shall ensure that the Company Content
remains at all times current by continually providing NBCi with
timely updates to the Company Content. Furthermore, under no
circumstances shall Company Content include any content of a
Competitor.
3.2. XML FEED. The Company shall provide to NBCi an XML feed (or an
alternative feed reasonably requested by NBCi) of the Company
Content, including the Company Content described in EXHIBIT A
and EXHIBIT D and the Company Content described in SECTION 3.1.
Subject to SECTION 4.1, such content shall be incorporated into
NBCi's Health Channel at the discretion of NBCi, maintaining any
applicable trademarks or branding as required by the Company in
its agreements with its content providers. The Company agrees to
use commercially reasonable efforts to minimize the amount and
prominence of such trademarks and branding.
3.3. CHANGES TO COMPANY CONTENT. Should the Company wish to
materially reduce, alter, diminish or eliminate content from the
Company Content or the Company Site (a "Content Change"), the
Company shall obtain prior written approval from NBCi for such
action. Notwithstanding the foregoing, the Company shall, in its
reasonable discretion, have the right to replace, substitute and
update the content in order to maintain the content as Best of
Breed. Notwithstanding the foregoing, the Company shall not
undertake a Content Change on channels, sections, or pages of
the Company Content or the Company Site which would impair
NBCi's ability to fulfill NBCi contractual obligations to
deliver advertising inventory, fixed placements or sponsorship
opportunities to a third party. NBCi shall promptly notify the
Company if any such advertising inventory, fixed placement or
sponsorship opportunity commitments include offering advertising
inventory, fixed placements or sponsorship opportunities in the
content area of the Company Site so as to allow adequate
editorial planning. In addition, any such commitments shall not
impact the editorial independence of the Company nor shall such
commitments prevent the Company from maintaining the content as
Best of Breed.
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3.4. NEW COMPANY CONTENT. The Company will provide to NBCi new
Company Content including chronic disease centers and additional
interactive features including a travel planner and a pregnancy
calendar, or mutually agreed upon alternatives. The new Company
Content shall be provided at no cost to NBCi and shall be
mutually agreed upon by the Parties and provided by the Company
within a mutually agreed upon time frame. The Company shall own
all content developed pursuant to this Section 3.4.
3.5. NBCI DESIGN TEMPLATE. The Company shall implement the NBCi
Design Template, as described in the attached EXHIBIT B, which
may be modified by NBCi from time to time, on all pages of the
Company Site except for the Corporate Home Page. NBCi shall give
the Company at least sixty days notice in the event it intends
to change the NBCi Design Template.
3.6. THIRD PARTY CONTENT PORTALS. As directed by NBCi, the Company
will implement placement for mutually agreed upon, such approval
to not be unreasonably withheld, Content Portals provided by
third parties ("Third Party Content Portals") on the Inventory
Pages, subject to any restrictions on the Company contained in
the Company's current content provider agreements. A written
copy of any such restrictions will be provided to NBCi. Such
Third Party Content Portals must clearly be identified as either
advertising or not produced by the Company, or other similar
identification mutually agreed upon by the Parties acting
reasonably. Third Party Content Portals may take the form of
headlines, images and video images as mutually agreed upon by
the Parties.
3.7. NBCI CONTENT PORTALS. The Company will integrate a minimum of
two mutually agreed upon, such approval to not be unreasonably
withheld, NBCi Content Portals (the "NBCi Content Portals") into
the CHOICE Sites. The form of such integration shall be mutually
agreed upon by the Parties and subject to the approval of
relevant Company Choice Partner Program customers. Such NBCi
Content Portals may include, but shall not be limited to, health
news and general news, and may take the form of text links,
headlines, images and video images as mutually agreed upon by
the Parties.
3.8. NBCI SEARCH BOX. The Company will integrate an NBCi Search Box
into the CHOICE Sites. The form of such integration shall be
mutually agreed upon by the Parties and subject to the approval
of relevant Company Choice Partner Program customers. The
Company will also market NBCi's Global Brain internal search
technology to its the Choice Partner Program Web sites
customers. The form of such marketing shall be mutually agreed
upon by the Parties.
3.9. ADVERTISING ON THE COMPANY SITE. NBCi shall own and have the
right to use, sell, barter and exchange for value, and serve or
serve through a third party, all of the advertising inventory,
fixed placements and sponsorship opportunities (collectively,
the "Inventory") on the Inventory Pages. As directed by NBCi,
the Company agrees to incorporate NBCi designated ad serving
tags on all Inventory Pages where not otherwise prohibited by
contractual obligations. NBCi shall
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allow the Company to purchase up to twenty five percent (25%) of
the available unsold or uncommitted Inventory on the Inventory
Pages, as determined in NBCi's sole discretion, for the purpose
of resale by the Company to third parties. The Company shall
purchase such inventory at a discount of thirty percent (30%)
from NBCi's standard rate card at the time. The Company must
comply with any advertising or competitor restrictions as
determined by NBCi. The Company acknowledges that its staff and
employee time will be required to implement and maintain the
advertising, fixed placements and sponsorship opportunities from
the Inventory sold by NBCi. The Company will agree to provide
all good faith and best efforts to implement all advertising,
fixed placements and sponsorship opportunities from the
Inventory sold by NBCi within a mutually agreed upon period of
time, such agreement by the Company not to be unreasonably
withheld, and to maintain such advertising, fixed placements and
sponsorship opportunities for the term of the commitment. The
Company will provide a written list of the Company's
advertising, sponsorship and promotional customers to NBCi,
subject to the Company's existing contractual privacy
restrictions, by April 15, 2001. The Company shall provide
introductions to the Company's advertising, sponsorship and
promotional customers for NBCi's business development and sales
representatives within a reasonable period of time after the
Restated Agreement Effective Date. The Company may label
advertising (other than banner ads), fixed placements, and
sponsorship opportunities placed on the Company Site by NBCi
with mutually agreeable language that identifies them as a
sponsorship or advertisement.
3.10. PROMOTION OF COMPANY SITE. The Company agrees to promote the
Company Site from the Corporate Home Page. Such promotion shall
include, but shall not be limited to, the following: 1) a direct
link or button on the Corporate Home Page to each of the major
content areas of the NBCi Health Channel where the Company has
Content Anchor Tenant positions; 2) a Consumer Health Channel
direct link or button that will link to a mutually agreed upon
jump page within the NBCi Sites or the Inventory Pages; and 3) a
direct link or button that will link to a mutually agreeable
MEDLINE search page within the NBCi Site or the Inventory Pages
as mutually agreed by the parties. All such promotional
enhancements shall be made by March 31, 2001.
3.11. TRAFFIC REDIRECT. Except as provided in the following sentence,
the Company shall (i) redirect all traffic from the Company Site
to ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇ or another URL or URLs designated
by NBCi so that NBCi shall receive credit for all page views or
impressions as measured by third party organizations including,
but not limited to, Media Metrix and (ii) take all actions
reasonably requested by NBCi to permit NBCi to count such page
views towards NBCi's traffic. The previous sentence shall not
apply to (i) the traffic to the Corporate Home Page; and (ii)
any traffic related to the CHOICE Sites.
3.12. LINKS; PERFORMANCE STANDARDS. The Company will be responsible
for ensuring that each link embedded within Company Content on
the NBCi Site takes the User to the appropriate area within the
Company Site (other than links to the
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Health Channel for which NBCi will be responsible), and that
such sites function with reasonable reliability and in a
commercially reasonable manner throughout the Term. In
particular, the Company agrees that the Company Site will comply
with the performance standards set forth in EXHIBIT C attached
hereto throughout the Term. Any failure by the Company to comply
with this Section will be deemed to be a material breach of this
Agreement.
3.13. BEST OF BREED. During the Term, in the event that NBCi, in its
reasonable discretion, determines that the Company has failed to
maintain the Company Site and Company Content as Best of Breed
in any material respect, NBCi shall have the right to (a) remove
any deficient Company Content from the NBCi Sites and remove any
and all links on the NBCi Sites to the Company Site (in which
case NBCi may require that the Company remove NBCi Marks from
the Company Site) until the Company has corrected such failure
and/or (b) terminate this Agreement in accordance with SECTION
8.2. NBCi acknowledges that all Company Content and the Company
Site are Best of Breed as of the Restated Agreement Effective
Date.
3.14. ACCOUNT MANAGEMENT.
3.14.1. ACCOUNT AND CONTACT MANAGERS. For the purposes of this
Agreement, ▇▇▇▇ ▇▇▇ shall be NBCi's account manager for
the Company and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be the Company's
contact manager for NBCi (collectively, the "Managers").
Subject to SECTIONS 15.12 and 15.13, the Managers shall
be the primary points of contact for inquiries and
requests, and each Manager shall provide the other with
such information and assistance as may be reasonably
requested by the other from time to time. Either Party
to this Agreement may change its designated Manager by
giving the other Party written notice of such change.
3.14.2. QUARTERLY MEETINGS. At least once each quarter, the
Managers shall discuss the reports provided under
SECTION 9 and any other items under this Agreement
either Manager wishes to bring to the attention of the
other Manager.
3.14.3. COMPANY STAFFING. The Company shall provide commercially
reasonable staffing, consisting of an average of at
least 10 full time employees during each calendar
quarter during the Term, including a product manager and
engineering and product staff, dedicated to the Company
Content and the Company Site in order to maintain,
update and provide the Company Content at the current
level of quality, availability and depth or as described
in this Agreement.
4. ANCHOR TENANCY.
4.1. CONTENT ANCHOR TENANT OF CERTAIN HEALTH CHANNEL CONTENT AREAS.
During the Year Two and Year Three, NBCi will feature the
Company as the Content Anchor
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Tenant within the following major content areas within the
Health Channel: Drugs & Medications, Women's Health, and Men's
Health. NBCi Product Managers shall from time to time determine
the major content areas in which the Company shall be featured
as the Content Anchor Tenant subject to the Company's approval
which shall not be unreasonably withheld. Subject to this
SECTION 4, NBCi may, in the exercise of its reasonable
discretion, make changes to the design and functionality of the
Health Channel including, without limitation, the names of major
content areas; provided, however, that major content areas
similar to, or addressing the categories listed above, or a
mutually agreeable alternative, shall exist on the Health
Channel during the Term. As the Content Anchor Tenant of certain
major content areas of the Health Channel, the Company will
receive the most prominent positioning within each of such major
content areas. During the Term, there shall be no other Content
Anchor Tenant of any of the major content areas of the Health
Channel in which the Company is then the Content Anchor Tenant;
provided, however, that other major content areas, content not
provided by the Company, subject to the terms of SECTION 3.1,
and/or links to other, non-Company site may exist on the same
Web page and elsewhere within the Health Channel. The Company
acknowledges that NBCi may feature Content Anchor Tenants other
than the Company on any major content area within the Health
Channel that is not one of the major content areas of the Health
Channel in which the Company is the Content Anchor Tenant. NBCi
and the Company shall negotiate in good faith to incorporate
additional health-related Company Content, so long as such
content is Best of Breed, within the content areas of the Health
Channel in which the Company is not the Content Anchor Tenant,
provided; however, NBCi shall not be obligated to negotiate with
respect to such Company Content if an agreement with Company
regarding such Company Content would be interpreted or operate
to cause NBCi to breach any existing contract or agreement
between NBCi and any other party, or impair the rights of any
such contract party pursuant to an existing contract or
agreement with NBCi. On the Health Channel, the Company will
have the right to program up to three Health Content Portals,
each measuring no larger than approximately 150 x 400 pixels,
with relevant content and links to relevant content on the
Company Site and to relevant content on the Choice Sites, or to
other sites, as mutually agreed upon by the Parties. Company
will provide the appropriate Company Content, subject to the
reasonable discretion of an NBCi Product Manager, for the Health
Content Portals. The NBCi Product Manager may provide the
Company with reasonable assistance to enable the Company to
effectively design the Health Content Portals. Subject to this
SECTION 4.1, the NBCi Product Manager will determine the size
and location, and the Look and Feel, of the Health Content
Portals; provided, however, that the Health Content Portals will
begin Above the Fold within the major content areas of the
Health Channel in which the Company is the Content Anchor
Tenant.
4.2. HARVESTING. Except as set forth in SECTION 3.1, the Company
shall, beginning on the Restated Agreement Effective Date,
provide all Company Content as required under this SECTION 4
pursuant to NBCi's harvesting technical specifications, as
updated in NBCi's sole discretion from time to time, including
those described in
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▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇, or any other successor
URLs designated by NBCi. NBCi shall have the right, in its sole
discretion, to harvest such Company Content in a manner
requiring a User of the NBCi Sites to "click through" as many as
two Web pages within the NBCi Sites before the User is
transferred to the Company Site. Harvested Company Content will
maintain the NBCi Sites' Look and Feel and will include branding
for the Company using Company Marks, in such form and placement
as an NBCi Product Manager shall determine in his or her sole
discretion. Harvested Company Content shall not include any
Commerce Offering, except at NBCi's sole discretion. The Company
shall ensure that all Company Content remains at all times
current by continually providing NBCi with timely updates to the
Company Content. Under no circumstances shall Company Content
include any content of a Competitor or reference a Competitor.
4.3. INTERNAL PROMOTIONS. Subject to the discretion of an NBCi
Product Manager, during the Term, NBCi shall promote and link
the Health Channel within and throughout the NBCi Sites. Subject
to the discretion of an NBCi Product Manager, the Company may
receive internal promotional links within relevant sub-areas of
the NBCi Sites that link to the Company Site. Such relevant
sub-areas may include, without limitation, the following: Local,
Entertainment, and Living. NBCi, in its sole discretion, has the
right to create, maintain or discontinue any of the foregoing
sub-areas on the NBCi Sites. In addition, NBCi may include a
link to the Health Channel and/or Company Site within issues of
a Wire, as determined by NBCi in its sole discretion.
4.4. HOSTING. NBCi will host the Health Channel, the Health Content
Portals and any Company Content harvested pursuant to SECTION
4.2 on its servers, servers within its control, or servers of a
third party under contract with NBCi, and will provide all
computer hardware, software and personnel necessary to operate
and maintain the Health Channel, the Health Content Portals and
any harvested Company Content as functional pages accessible to
Users.
4.5. ADVERTISING. NBCi shall own and have the right to use or sell
all of the advertising inventory, fixed placements and
sponsorship opportunities on the Health Channel and on the
Company Content it may harvest. The Company acknowledges that
any advertising, fixed placements and sponsorship opportunities
for and/or links to other sites similar to or in competition
with the Company may exist in the Health Channel.
Notwithstanding anything in this Agreement to the contrary, any
third party content or links may exist on any area of the Health
Channel. Moreover, other than as expressly set forth herein,
NBCi shall have the right to display any third party links,
media, banner advertisements, other promotions, and/or paid or
unpaid editorial content anywhere on the NBCi Sites.
4.6. COMPANY LOGO. NBCi shall provide a clickable Company logo on the
Health Content Portals that shall link to the Corporate Home
Page or another mutually agreed upon page or URL operated by the
Company.
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4.7. NBCI INTERACTIVE NEIGHBORHOOD CITY CENTER LINKS. As mutually
agreed by the Parties, NBCi shall create links within each
applicable NBCi Interactive Neighborhood City Center on the NBCi
Sites to the appropriate Choice Sites.
5. CO-BRANDED, ENHANCED, INTERNATIONAL EDITIONS AND NON-PC DEVICES.
5.1. CO-BRANDED EDITIONS. The Company acknowledges that NBCi produces
co-branded editions of the NBCi Sites for various resellers,
distributors, other licensees and/or joint venture partners
(collectively the "Distributors"). In some cases, such
Distributors are entitled to replace NBCi's default content with
other content within their own co-branded editions of any NBCi
Site. Notwithstanding any other provisions of this Agreement, if
any such Distributor has exercised its right to replace Company
Content with other content, then NBCi will not be required to
display Company Content within such Distributor's co-branded
edition of the NBCi Sites. If NBCi does display the Company
Content within a co-branded edition of any NBCi Site, such
display will be governed by this Agreement.
5.2. ENHANCED AND INTERNATIONAL EDITIONS. NBCi has created an
enhanced, high-speed version of the NBCi Sites focused on rich
media content (together with any successor service(s) or site(s)
thereof and any co-branded editions of such service that have
been or may be developed for NBCi 's third party distribution
partners and licensees, the "Enhanced Sites") and may desire to
include appropriate rich media Company Content within the
Enhanced Sites. NBCi is currently considering creating one or
more international editions of the NBCi Sites to reflect
appropriate localized and local partner content ("International
Editions") and may desire to include localized Company Content
within the International Site. At NBCi's sole discretion, all
terms and conditions contained in this Agreement related to the
"NBCi Sites" may also apply to the Enhanced Site and
International Editions, but subject to Section 3.1. The Company
hereby acknowledges that NBCi, in its sole discretion, may use
appropriate content, promotions and other material provided by
the Company within the Enhanced Sites and the International
Editions, and all licenses set forth in this Agreement are
hereby expanded to include the Enhanced Sites and International
Editions. The Company acknowledges that the Look and Feel of the
Enhanced Site will be designed for a high-bandwidth audience and
therefore may substantially differ from the Look and Feel of the
primary NBCi Sites and that the placement and format of any
Company Content may need to be modified in the Enhanced Site.
The Company further acknowledges that the Look and Feel of the
International Editions will be localized for the relevant target
audience (e.g., in terms of language, culture, and ethnicity)
and therefore may substantially differ from the Look and Feel of
the primary NBCi Sites and that the placement and format of any
Company Content may need to be modified in the International
Site. In the event that the Company does not have the legal
right to deliver to NBCi any Company Content for use as
contemplated by this Agreement in certain geographical markets,
then the Company will use its best efforts to obtain the
consent(s) of the other parties to such contracts to deliver and
use all Company
11
Content as contemplated by this Agreement in such geographical
markets. So long as the Company is using its best efforts to
obtain such consents, NBCi will not, unless and until such
consent is obtained, use on any International Edition such
content for which delivery to or use on the International
Edition in a certain geographical location is prohibited by the
terms of a written contract to which the Company is a party.
5.3. NON-PC DEVICES. The Company acknowledges that NBCi may display
Company Content through non-PC devices, except for Company
Content which the Company is prohibited by written contract to
display through non-PC devices and which the Company has
identified as such in a written notice to NBCi at or prior to
the time of delivery of Company Content; provided, however, that
the Company will use its best efforts throughout the Term to
obtain the consent(s) of the other parties to such contracts to
allow the display of Company Content by NBCi through non-PC
devices as contemplated by this Agreement. The Look and Feel of
the NBCi Sites accessed by any non-PC device will be modified by
NBCi in order to suit such devices, and therefore may
substantially differ from the Look and Feel of the primary NBCi
Sites. The Company further acknowledges that placement, content
and format of any Company Content may need to be modified
accordingly for such non-PC devices, including less prominent
placement or abridged content. If Company Content will be
displayed through versions of the NBCi Sites on non-PC devices
as described above, NBCi will provide the Company with
commercially reasonable specifications for any modifications to
Company Content necessary to allow such displays, and the
Company will use commercially reasonable efforts to assist NBCi
in modifying Company Content in accordance with such
specifications.
6. USER PROFILE DATA, COMMERCE OFFERINGS, AND DIRECT MARKETING.
6.1. DATA OWNERSHIP. NBCi will be the sole owner of any information
that NBCi collects from Users through the NBCi Sites. The
Company and NBCi shall jointly own any information collected
from Users through the Company Site, with the exception of
information collected from Users on the Corporate Home Page or
the Choice sites or any other pages as mutually agreed upon by
the Parties, which information shall be solely owned by the
Company. Further, if a User whose User Profile Data is contained
in the Company Database receives an email from NBCi pursuant to
SECTION 6.4 and purchases products offered in such email through
NBCi or an affiliated Web site, then the User Profile Data for
such User shall be owned jointly by NBCi and the Company from
and after the time of such purchase.
6.2. USE OF INFORMATION AND CONFIDENTIALITY. Each Party will have the
right to use any information provided by the other Party
pursuant to SECTION 9 subject to the confidentiality
restrictions set forth in SECTION 15.4. Notwithstanding the
foregoing, all data collected from Users through the Company
Site will be subject to the then current privacy policy of NBCi,
unless specifically made subject to the terms of the Company
privacy policy; provided that in such cases the Company's
12
privacy policy with respect to NBCi's access to, and use and
disclosure of, data collected from such Users may not be more
restrictive than the then-current privacy policy of NBCi.
6.3. NBCI MEMBER REGISTRATION. If any Company Content accessed
through links appearing on the NBCi Sites or the Company Site
contains any Commerce Offering that requires the User to
register or submit any User Profile Data, then NBCi has the
right in its sole discretion to, and the Company will provide
assistance to, cause any of the following: (i) the Web page that
requests the User Profile Data, (ii) any other page relating to
the Commerce Offering, or (iii) a separate NBCi Member
registration page, to present the User with an opportunity to
register to become an NBCi Member.
6.4. DIRECT MARKETING. During the Term, NBCi shall have the right to
use, with the prior approval of the Company which approval shall
not be unreasonably withheld, the information contained in the
Company Database for direct marketing purposes as set forth in
this Section. NBCi shall have a right to execute, or cause to be
executed, at least one promotional email offer per month
approved by the Company, which approval shall not be
unreasonably withheld, to all or some of the Users described in
the Company Database. Such email offers shall be drafted by
NBCi, approved by Company (and such approval shall not be
unreasonably withheld) and will appear to come from "HealthGate
and NBCi". Such email messages may have links to the NBCi Sites
or the Company Site, as NBCi shall decide in its sole
discretion. Products offered in such emails may include NBCi's
products or services or third party products and/or services
that NBCi has the right to offer, and NBCi shall select all of
such products to be offered in its sole discretion. NBCi shall
also have the option to create and host "sell" pages for any
marketing campaign, arrange for purchase orders to be processed
and fulfilled, and for customer service and inventory matters to
be coordinated in relation to the products offered in emails
distributed pursuant to this Section, as NBCi shall determine in
its sole discretion. NBCi shall send a copy of the email offer
to the Company at least forty-eight hours prior to the time at
which the email messages are to be sent. The Company may reject,
but not unreasonably, promotional email offers proposed by NBCi.
7. PAYMENTS AND CREDITS.
7.1. ANCHOR TENANCY FEES. For the Content Anchor Tenant positions on
the Health Channel during Year Two, the Company will pay NBCi
$2,523,809 as follows:
$591,750 upon the signing of this Agreement
$630,750 by July 1, 2001
$200,000 by August 1, 2001
$630,750 by October 1, 2001
$303,893 by January 1, 2002
$166,666 by April 1, 2002
13
For the Content Anchor Tenant positions on the Health Channel
during Year Three, the Company will pay NBCi $2,357,143 as
follows:
$589,286 by April 1, 2002
$252,551 by May 1, 2002
$252,551 by June 1, 2002
$252,551 by July 1, 2002
$252,551 by August 1, 2002
$252,551 by September 1, 2002
$252,551 by October 1, 2002
$252,551 by November 1, 2002.
7.2. ADVERTISING REVENUE SHARE. NBCi shall pay to the Company 20% of
"Net Revenues" (as defined below) associated with all
advertising, fixed placements and sponsorship opportunities sold
by NBCi on the Inventory Pages. "Net Revenues" shall be defined
as gross revenues actually received by NBCi from the sale of
advertising, fixed placements and sponsorship opportunities on
pages of the Inventory Pages less all associated advertising
agency commissions, third party ad serving costs, sales
commissions and advertising related production costs (all such
commissions and costs shall not exceed 20% of the gross
revenue). NBCi shall make such payments within forty-five (45)
days after the end of each calendar quarter and shall accompany
such payments with a statement setting forth NBCi's calculation
of Net Revenues for such quarter. NBCi agrees to provide monthly
reports to Company outlining an estimate of Net Revenues for the
previous month. Notwithstanding the foregoing, the quarterly
statements shall govern all advertising reports and payments
made by NBCi to the Company.
7.3. PAYMENT. All payments required to be made hereunder by NBCi to
the Company will be made to the Company by wire transfer or
certified check, and in immediately available funds. All
payments required to be made hereunder by the Company to NBCi
will be made to NBCi by wire transfer, and in immediately
available funds as follows:
Union Bank of Calif.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Account Name: NBCi Advertising Account
ABA #: ▇▇▇▇▇▇▇▇▇
Acct #: 6450151708
Swift Code: #▇▇▇▇▇▇▇▇▇
If the Company should fail to make any payment due under this
Agreement by the date such payment is due, the overdue payment
will bear interest at the rate of one and one-half percent
simple interest per month or the maximum interest permitted
14
by law, whichever is less. Any payment which is due on a day
which is not a Business Day shall be payable on the next
succeeding day that is a Business Day.
7.4. STOCK WARRANT. In further consideration of the good and valuable
consideration provided to the Company hereunder, on the Restated
Agreement Effective Date the Company shall issue to NBCi a Stock
Purchase Warrant (the "Warrant") for the purchase of 200,000
shares of Common Stock of the Company in the form attached
hereto as EXHIBIT E. On or before April 20, 2001, the Company
shall enter into a separate Registration Rights Agreement with
NBCi, reasonably acceptable to NBCi, granting piggyback
registration rights to each holder of Company Common Stock
purchased pursuant to the Warrant with respect to such shares.
If the Company fails to enter into a Registration Rights
Agreement reasonably acceptable to NBCi by such date, such
failure shall constitute a material breach under this Agreement.
7.5. INVOICE PROCEDURE. NBCi shall send the Company all invoices
hereunder to the attention of the Company's Chief Financial
Officer, and who has the authority to authorize the payment of
such invoices.
8. TERM; TERMINATION.
8.1. TERM. The term of this Agreement will begin on the Effective
Date and end on the last day of the sixty-first month after the
Effective Date, unless otherwise terminated or extended as set
forth in this Agreement (the "Term").
8.2. TERMINATION FOR CAUSE. Either NBCi or the Company may terminate
this Agreement at any time by giving written notice of
termination to the other Party if the other Party commits a
material breach of its obligations hereunder that is not cured
within thirty days after notice thereof from a non-breaching
Party; provided, however, that if the Company fails to make a
payment as required hereunder, NBCi may terminate this Agreement
fifteen days following the date of notice of such non-payment if
any such payment is not made within fifteen days after the
Company's receipt of such notice. NBCi may terminate this
Agreement immediately, and shall have no further obligation
under this Agreement, if the Company adopts a plan of complete
liquidation or dissolution; becomes insolvent; makes an
assignment for the benefit of creditors; makes or sends notice
of a bulk transfer; calls a meeting of its creditors with
respect to its inability to pay its obligations owed to such
creditors on customary terms; defaults under any agreement,
document or instrument relating to the Company's indebtedness
for borrowed money; ceases to do business as a going concern; a
petition is filed by or against the Company under any bankruptcy
or insolvency laws; or the Company experiences a change in its
ownership, such that a person, corporation or other legal entity
with a direct competitive interest (i.e., owns or operates a
search and aggregation portal site on the Web) holds an equity
interest in the Company, without NBCi's prior, written consent
to such ownership.
15
8.3. TERMINATION REGARDING COMPANY CONTENT. NBCi may terminate this
Agreement at any time by giving written notice of termination to
the Company if the Company fails to timely deliver, pursuant to
SECTION 3.1, any material part of the Company Content, including
updates, and such failure is not cured within ten days after the
Company's receipt of notice thereof from NBCi.
8.4. TERMINATION BY NBCI. NBCi, in its sole discretion, shall have
the right to terminate this Agreement upon 30 days written
notice to the Company.
8.5. CONSEQUENCES OF TERMINATION. Upon the termination or expiration
of this Agreement, all licenses granted hereunder shall
immediately terminate and each Party shall return or destroy all
Confidential Information of the other Party in its possession.
All jointly owned User Profile Data will continue to be jointly
owned by the Parties upon termination or expiration of this
Agreement, subject to the provisions of SECTION 6. Within 30
days of the termination or expiration of this Agreement, the
Company will provide NBCi will final reports covering the
information to be provided to NBCi under this Agreement
(including, for example, User Profile Data and the information
required under SECTION 9.1) through the date of such termination
and expiration. Upon termination of this Agreement for any
reason, all monies paid by the Company to NBCi hereunder prior
to the termination shall be deemed non-refundable except as
expressly stated otherwise in this Agreement. In the event this
Agreement is terminated by either Party prior to the end of Year
Three then the Company shall pay to NBCi, on or prior to the
effective date of such termination, all accrued Anchor Tenancy
Fees through the effective date of such termination (calculated
on a daily straight-line pro-rata basis based on the fees
specified in SECTION 7.1 for Year Two ($2,357,143) and Year
Three ($2,523,809)). Finally, in the event this Agreement is
terminated by NBCi pursuant to SECTION 8.2 and/or SECTION 8.3 or
in the event the Company requests that NBCI renegotiate the
Agreement, then the Company shall continue to pay 65% of all
fees payable by the Company to NBCi during the remainder of the
Term as liquidated damages. Such payments shall be due and
payable on the dates they would have been due and payable if the
termination or renegotiation had not occurred. The Company
acknowledges that NBCi has entered into this Agreement at the
Company's request. The Parties acknowledge and agree that it
would be impractical to estimate the amount of any damages that
could arise out of any material breach of this Agreement or
termination pursuant to SECTION 8.2 and/or SECTION 8.3, or out
of any request for renegotiation by the Company and agree that
the amount of liquidated damages described above is a reasonable
estimate of the actual damages that NBCi would suffer and incur
as a result of such breach or termination of this Agreement or
request for renegotiation. The Company shall receive as a credit
against the amounts due from the Company to NBCi pursuant to
this SECTION 8.5 any amounts due the Company from NBCi pursuant
to SECTION 7.2. No Party shall be liable to the other for
damages of any sort resulting solely from terminating this
Agreement in accordance with its terms.
9. REPORTS, RECORDS, AND ACCOUNTS.
16
9.1. COMPANY REPORTS. Within 15 days after the end of each month
during the Term, the Company will provide to NBCi a complete and
detailed report that includes, at a minimum, for such month: (i)
the total page views on the Company Site, excluding the
Corporate Home Page, (ii) the total number of page views on the
Inventory Pages, (iii) the total number of page views of the
CHOICE Sites containing NBCi Content Portals or an NBCi Search
Box, (iv) the total number of page views on any NBCi URL
redirected pages, (v) the number of pages turned per visit to
the Company Site, (vi) the number of unique visitors to the
Company Site, (vii) the number of unique Users to the Company
Site from the Health Channel, (viii) the number of Users and
User Profile Data for all Users of the Company Site (other than
the CHOICE Sites and the Corporate Home Page), and (ix) the
aggregate statistical and demographic characteristics of Users
in (vi), (vii), and (viii). NBCi will tag each User of the
Company Site originating from the NBCi Sites using a cookie or
other similar technology to assist the Company in obtaining the
foregoing data.
9.2. RECORDS AND ACCOUNTS. Both parties agree to keep, on a
continuing basis during the Term and for two (2) years after the
Term, full and accurate records and accounts, including, without
limitation all logs and reports, sufficient to permit the other
party to verify the accuracy of all reports submitted by the
Company as hereinabove required. Both parties shall have the
right, at its sole expense, to examine such books and records,
whether in electronic format or otherwise, to the extent that
such examination is necessary and pertinent to the foregoing
verification, during reasonable business hours and at the other
party's principal place of business, using its employees or
principals, or through outside, authorized representatives.
10. LICENSES.
10.1. COMPANY CONTENT. The Company hereby grants to NBCi and its
subsidiaries a non-exclusive, non-transferable, royalty-free
license, effective throughout the Term, to use, display and
publish the Company Content solely as permitted hereunder in any
medium or through any technology now known or hereafter devised.
In the event the Enhanced Sites and/or the International
Editions are deemed included within this Agreement pursuant to
SECTION 5.2, or, subject to SECTION 5.3, NBCi elects to display
Company Content through non-PC devices, the Company hereby
further grants to NBCi and its subsidiaries a non-exclusive,
non-transferable, royalty-free license, effective throughout the
Term, to modify and create derivative works of the Company
Content solely as permitted hereunder. In the event the
International Editions are deemed included within this Agreement
pursuant to SECTION 5.2, the Company shall in good faith modify
the Company Marks to incorporate changes reasonably suggested by
NBCi for the relevant target audience (e.g., complying with
local laws or avoiding the use of offensive terms in the local
language). Any use of the Company Content by NBCi must comply
with any reasonable usage guidelines communicated by the Company
to NBCi from time to time.
17
10.2. NBCI MARKS. NBCi hereby grants to the Company a non-exclusive,
non-transferable, royalty free license, effective throughout the
Term, to use, display and publish the NBCi Marks solely within
the Company Site as permitted hereunder. Any use of the NBCi
Marks by the Company must comply with any reasonable usage
guidelines communicated to the Company by NBCi from time to
time.
10.3. TRADEMARK USAGE GUIDELINES. Each Party (the "Trademark
Licensee") agrees that the trademarks of the other Party (the
"Trademark Licensor"), used alone or with other elements,
together with the goodwill of the business symbolized thereby,
are and at all times shall remain the property of Trademark
Licensor, that this Agreement constitutes a license, and that no
ownership interest in and to Trademark Licensor's marks is
intended to be transferred by this Agreement. Trademark Licensee
recognizes the value of the goodwill associated with Trademark
Licensor's marks, that such marks have acquired secondary
meaning in the mind of the public, and that all use of such
marks, including all goodwill generated by each Party's use and
use by permitted sub-licensees of such marks shall accrue and
inure to the benefit of and be on behalf of Trademark Licensor.
Trademark Licensee shall do nothing inconsistent with Trademark
Licensor's ownership of Trademark Licensor's marks. Trademark
Licensee agrees that it (i) shall not register or apply for
registration of any element of Trademark Licensor's marks
licensed to it under this Agreement, (ii) shall not assert any
adverse claim based upon use of such marks, and (iii) shall not
challenge or contest Trademark Licensor's ownership of such
marks, the validity of such marks, or the validity of the
licenses granted herein. Trademark Licensee agrees to limit its
use of Trademark Licensor's marks to the marks as licensed, and
not to form any combination marks with Trademark Licensor's
marks. If such domain name is deemed a combination ▇▇▇▇, neither
Party shall use the domain name for any purpose except as
expressly provided herein or attempt to register the domain name
with any government office, and the Parties will jointly
cooperate on any enforcement action of infringement of the
domain name. All rights in Trademark Licensor's marks not
expressly granted hereunder by Trademark Licensor are reserved
by Trademark Licensor and may be exercised by Trademark Licensor
or any of its other licensees concurrently herewith. Trademark
Licensee shall make no use of Trademark Licensor's marks other
than as expressly permitted hereunder.
11. RESPONSIBILITY FOR THE SITES AND PRODUCTS. The Company acknowledges and
agrees that, as between the Company and NBCi, the Company will be
solely responsible for any claims or other losses associated with or
resulting from the marketing or operation of the Company Site or the
offer or sale of any Company Products by the Company or through the
Company Site, or through emails delivered by NBCi or the Company. NBCi
is not authorized to make, and agrees not to make, any representations
or warranties concerning the Company Products.
12. LIMITATION OF DAMAGES. EXCEPT IN THE EVENT OF A CLAIM UNDER SECTION
8.5, NO PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT,
18
CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING
NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT IN THE EVENT OF A CLAIM UNDER SECTION 14 OR
SECTION 15.4, OR PAYMENTS PURSUANT TO SECTION 7 OR SECTION 8.5, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT
GREATER THAN THE AMOUNTS PAYABLE TO NBCI BY THE COMPANY HEREUNDER. THIS
SECTION 12 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
13. NO WARRANTIES. THE NBCI SITES, HEALTH CHANNEL, HEALTH CONTENT PORTALS
AND COMPANY CONTENT ARE PROVIDED "AS IS" AND THE INFORMATION CONTAINED
THEREIN IS NOT WARRANTED TO BE FREE FROM ERROR. NBCI AND THE COMPANY
DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE NBCI SITES, HEALTH CHANNEL,
HEALTH CONTENT PORTALS AND COMPANY CONTENT.
14. MUTUAL INDEMNIFICATION.
14.1. INDEMNIFICATION BY NBCI. Subject to SECTION 14.3, NBCi shall
indemnify, defend and hold the Company harmless from and against
any costs, losses, liabilities and expenses, including all court
costs, reasonable expenses and reasonable attorney's fees
(collectively, "Losses") that the Company may suffer, incur or
be subjected to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether commenced
or threatened, arising out of or as a result of operation of the
NBCi Sites (except in cases where the Company is required to
indemnify NBCi under SECTION 14.2).
14.2. INDEMNIFICATION BY THE COMPANY. Subject to SECTION 14.3, the
Company shall indemnify, defend and hold each of NBCi and its
subsidiaries harmless from and against any Losses that NBCi or
its subsidiaries may suffer, incur or be subjected to by reason
of any legal action, proceeding, arbitration or other claim by a
third party, whether commenced or threatened, arising out of or
as a result of (i) the use of Company Content by NBCi in
accordance with this Agreement; (ii) the operation of the
Company Site; (iii) the offer or sale of Company Products by the
Company on or through the Company Site, or any emails sent by
NBCi or a third party pursuant to SECTION 6.4, or (v) the
authorized and legal use of the Company Database.
14.3. INDEMNIFICATION PROCEDURES. If any party entitled to
indemnification under this Section (an "Indemnified Party")
makes an indemnification request to the other, the Indemnified
Party shall permit the other Party (the "Indemnifying Party") to
control the defense, disposition or settlement of the matter at
its own expense; provided that the Indemnifying Party shall not,
without the consent of the
19
Indemnified Party (which consent shall not be unreasonably
withheld or delayed) enter into any settlement or agree to any
disposition that imposes an obligation on the Indemnified Party.
The Indemnified Party shall notify the Indemnifying Party
promptly of any claim for which Indemnifying Party is
responsible and shall cooperate with the Indemnifying Party in
every commercially reasonable way to facilitate defense of any
such claim; provided that the Indemnified Party's failure to
notify Indemnifying Party shall not diminish Indemnifying
Party's obligations under this Section except to the extent that
Indemnifying Party is materially prejudiced as a result of such
failure. An Indemnified Party shall at all times have the option
to participate in any matter or litigation through counsel of
its own selection and at its own expense.
14.4. SURVIVAL. This SECTION 14 shall survive termination or
expiration of this Agreement for five years, and for so long
thereafter as (but only with respect to) any claims of which an
Indemnifying Party has been notified remain unresolved.
15. MISCELLANEOUS.
15.1. ASSIGNMENT. Except as provided in this SECTION 15.1, the Company
may not assign any of its rights under this Agreement nor
delegate any of its duties hereunder to another person or legal
entity without the prior written consent of NBCi, which consent
shall not be unreasonably withheld; provided, however, that if
the assignee of the Company is a competitor of NBCi, NBCi shall
have the right to withhold its consent to such assignment in its
sole discretion. NBCi shall have the right to assign all or any
portion of its rights and liabilities hereunder to any person or
entity, other than a competitor of the Company, who acquires
from NBCi a majority interest in the relevant assets subject to
this Agreement. Either Party shall have the right to assign all
of its rights and liabilities hereunder to any person or entity,
other than an competitor of NBCi in the case of the Company,
that (i) acquires all or substantially all of the Party's
operating assets (whether by asset sale, stock sale, merger or
otherwise) or (ii) results from a merger or reorganization of
the Party pursuant to any plan of merger or reorganization. This
Agreement shall inure to the benefit of and be binding upon the
Parties hereto, their respective trustees, successors, permitted
assignees, and legal representatives.
15.2. RELATIONSHIP OF PARTIES. The Parties hereto are independent
contractors and nothing contained in this Agreement will be
construed to create a joint venture, partnership or the
relationship of principal and agent between any of the Parties
hereto, nor to impose upon either Party any obligations for any
losses, debts or other obligations incurred by the other Party
except as expressly set forth herein.
15.3. APPLICABLE LAW; FORUM. This Agreement will be construed in
accordance with and governed by the laws of the State of
California, without regard to principles of conflicts of law.
The Parties hereto consent to the exclusive jurisdiction of any
local, state or federal court in which an action is commenced
and located in accordance with the terms of this Section and
that is located in San Francisco,
20
California. The Parties further agree not to disturb such choice
of forum, and if not resident in such state, waive the personal
service of any and all process upon them, and consent that such
service of process may be made by certified or registered mail,
return receipt requested, addressed to the Parties as set forth
herein.
15.4. CONFIDENTIALITY. In connection with the activities contemplated
by this Agreement, each Party may have access to confidential or
proprietary technical or business information of the other
Party, including without limitation (i) proposals, ideas or
research related to possible new products or services; (ii)
financial statements and other financial information; (iii) any
reporting information in SECTION 9; and (iv) the terms of this
Agreement and the relationship between the Parties
(collectively, "Confidential Information"). Each Party will take
precautions to protect the confidentiality of each of the other
Party's Confidential Information, which precautions will be at
least equivalent to those taken by such Party to protect its own
Confidential Information, and in no event will such precautions
be less than are reasonable under the circumstances. Except as
required by law or as necessary to perform under this Agreement,
neither Party will knowingly disclose the Confidential
Information of the other Party or use such Confidential
Information for its own benefit or for the benefit of any third
party. Each Party's obligations in this Section with respect to
any portion of the other Party's Confidential Information shall
terminate when the Party seeking to avoid its obligation under
such Section can document that: (i) it was in the public domain
at or subsequent to the time it was communicated to the
receiving Party ("Recipient") by the disclosing Party
("Discloser") through no fault of Recipient; (ii) it was
rightfully in Recipient's possession free of any obligation of
confidence at or subsequent to the time it was communicated to
Recipient by Discloser; (iii) it was developed by employees or
agents of Recipient independently of and without reference to
any information communicated to Recipient by Discloser; (iv) it
was communicated by the Discloser to an unaffiliated third party
free of any obligation of confidence; or (v) the communication
was in response to a valid order by a court or other
governmental body, was otherwise required by law or was
necessary to establish the rights of either Party under this
Agreement.
15.5. PRESS RELEASE. The Company will not make any public statement or
other announcement (including without limitation, issuing a
press release or pre-briefing any member of the press or other
third party) relating to the terms or existence of this
Agreement without the prior written approval of NBCi.
Notwithstanding the foregoing and SECTION 15.4, the Parties may
issue an initial joint press release regarding the relationship
between the Parties. The Company agrees that NBCi will draft and
time the release of such initial and any subsequent press
releases; provided, however, that the Company shall have the
right to review the use of the Company Marks and any other
references to the Company in drafts of such press releases.
15.6. INJUNCTIVE RELIEF. Each Party agrees that in the event of a
breach or alleged breach of SECTIONS 15.4 or 15.5 that the other
Party shall not have an adequate
21
remedy at law, including monetary damages, and that the other
Party shall consequently be entitled to seek a temporary
restraining order, injunction, or other form of equitable relief
against the continuance of such breach, in addition to any and
all remedies to which any other party shall be entitled.
15.7. NATURE OF AGREEMENT. The Parties agree that this Agreement is a
lease agreement for Internet space and that both Parties have
obligations under this Agreement. The obligations are such that
the failure of either Party to perform their respective
obligations would constitute a material breach of the Agreement.
If the Bankruptcy Courts were to review the nature of this
Agreement, both Parties agree that it would be considered an
executory contract and/or unexpired lease under ss. 365 of the
Bankruptcy Code, 11 U.S.C et. seq., unless the Agreement is
terminated prior to the filing of a petition for bankruptcy
relief.
15.8. CAPTIONS AND SECTION HEADINGS. Captions and section headings
used in this Agreement are for convenience only and are not a
part of this Agreement and shall not be used in construing it.
Except as otherwise specifically provided, any reference in this
Agreement to a section or exhibit shall be deemed to be a
reference to such section or exhibit of this Agreement.
15.9. SURVIVAL. Termination or expiration of this Agreement for any
reason shall not release any party from any liabilities or
obligations set forth in this Agreement which (i) the Parties
have expressly agreed shall survive any such termination or
expiration, or (ii) remain to be performed or by their nature
would be intended to be applicable following any such
termination or expiration.
15.10. TAXES. For all fees or charges payable hereunder by the Company
to NBCi, the Company will pay or reimburse NBCi for 50% of any
taxes or fees (including all federal, state, or local taxes)
associated with NBCi's provision of the services hereunder to
Company, except that Company will have no liability for any
taxes based on NBCi's net assets or net income, or for which
Company has an appropriate resale or other exemption.
15.11. FORCE MAJEURE. If any Party shall be delayed in its performance
of any obligation hereunder or be prevented entirely from
performing any such obligation due to causes or events beyond
its reasonable control, including without limitation any act of
God, fire, strike or other labor problem, such delay or
non-performance shall be excused and the time for performance
shall be extended to include the period of such delay or
non-performance.
15.12. DISPUTE RESOLUTION. In the event that any dispute arises
hereunder, the Parties agree that prior to commencing
litigation, arbitration, or any other legal proceeding, each
Party shall send an officer of such Party to negotiate a
resolution of the dispute in good faith at a time and place as
may be mutually agreed. Each officer shall have the power to
bind its respective Party in all material respects related to
the dispute. If the Parties cannot agree on a time or place,
upon written notice from either Party to the other, the
negotiations shall be held at the principal
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executive offices of NBCi 21 days following such notice (or on
the next succeeding Business Day, if the 21st day is not a
Business Day).
15.13. NOTICES. All notices given pursuant to this Agreement, shall be
in writing, in English, shall be sent by certified or registered
air mail with postage prepaid, return receipt requested, by
facsimile, overnight express mail, or by hand delivery. Such
notices shall be deemed given and received upon confirmation of
receipt, if sent by facsimile; the day after delivery if by
overnight express mail; or upon delivery if hand delivered; or
upon receipt of mailing, if sent by certified or registered
mail; and shall be addressed to the Parties as set forth above
on the first page of this Agreement, or to such other addresses
as the Parties may designate in writing from time to time or as
appropriate based on the course of conduct of the Parties.
15.14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed a duplicate original
and all of which, when taken together, shall constitute one and
the same document.
15.15. CONSTRUCTION OF TERMS. Unless the context clearly intends to the
contrary, words singular or plural in number shall be deemed to
include the other. References herein to specific Web sites, Web
pages and any areas therein, as well as Web links and URLs,
include any successors thereto.
15.16. SEVERABILITY. In the event any provision of this Agreement shall
be held to be unenforceable in any jurisdiction, such provision
shall, as to such jurisdiction, be ineffective to the extent of
such unenforceability; but the remaining provisions of this
Agreement shall remain in full force and effect, and any such
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
The Parties shall use their best efforts to replace the
provision that is unenforceable with an enforceable provision
approximating to the extent possible the original intent of the
Parties.
15.17. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement between the Parties with respect to the subject
matter hereof and supersedes any prior oral or written
agreements. This Agreement may not be amended except in writing
signed by both Parties. Each Party acknowledges and agrees that
the other has not made any representations, warranties or
agreements of any kind, except as expressly set forth herein.
All exhibits attached to this Agreement are incorporated hereby
and shall be treated as if set forth herein.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives on the dates indicated below.
NBC INTERNET, INC. HEALTHGATE DATA CORP.
By: By:
-------------------------------------- -----------------------------------
(Signature) (Signature)
Name: Name:
-------------------------------------- -----------------------------------
(Please print) (Please print)
Title: Title:
-------------------------------------- -----------------------------------
Date: Date:
-------------------------------------- -----------------------------------
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