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CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT 10.34
DISTRIBUTION AND
CROSS PROMOTION AGREEMENT
This DISTRIBUTION AND CROSS PROMOTION AGREEMENT ("Agreement"), by and
between MICROSOFT CORPORATION ("Microsoft"), a Washington corporation with its
principal offices at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000, WEBTV NETWORKS, INC.
("WebTV"), a California corporation and a wholly-owned subsidiary of the
Microsoft Corporation, 0000 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, MSNBC
INTERACTIVE NEWS, L.L.C. ("MSNBC"), a Delaware limited liability company, with
its principal office at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-0000; and WEBMD,
INC. ("WebMD"), a Georgia corporation with its principal offices at 400 The
Lenox Building, 0000 Xxxxxxxxx Xxxx XX Xxxxxxx, Xxxxxxx 00000 is made and
entered into as of the later of the two signature dates ("Execution Date") below
and shall be effective as of May 6, 1999 (the "Effective Date").
RECITALS
WHEREAS, WebMD owns and operates a network of sites on the World Wide
Web currently titled "WebMD," with a home page currently located at
xxxx://xxx.xxxxx.xxx, which site is devoted to providing individuals, healthcare
providers, and others with a comprehensive range of healthcare-related
information and services;
WHEREAS, the WebMD Site is currently divided into a freely accessible
section aimed at individuals seeking healthcare information for themselves and
family members, and a subscription-based section containing healthcare
information and services targeted at physicians;
WHEREAS, Microsoft owns and operates a network of Web sites currently
titled "MSN," with a home page currently located at xxxx://xxx.xxx.xxx, which
network includes a variety of topic-specific offerings;
WHEREAS, the parties desire to develop a new topic-specific offering for
MSN, WebTV and MSNBC on health-related issues incorporating content from the
WebMD Consumer Site (as defined below);
WHEREAS, the parties further desire to provide various links between
pages located on the MSN, WebTV, and MSNBC health channels and other MSN, WebTV,
and MSNBC sites and pages, to pages located on the WebMD Site (including without
limitation the Medical Professionals Section (as defined below)), and vice
versa;
WHEREAS, the parties further desire to set forth the terms under which
Microsoft will sponsor a fixed number of membership subscriptions to the Medical
Professionals Section of the WebMD Site, and WebMD will share certain revenues
generated by the Medical Professionals Section of the WebMD Site; and
WHEREAS, the parties also desire to promote certain of each other's
products and services and a broad technology platform for providing healthcare
related information and services.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereby agree as follows:
1. DEFINITIONS
1.1 "MSN HEALTH SECTION" shall mean internet web pages containing
health-related information and services for consumers which is to be located at
xxxx://xxx.xxxxxx.xxx.xxx or such other similar or replacement universal
resource locator ("URL") which Microsoft may determine from time to time in its
sole discretion. The MSN Health Section may be titled the "MSN Health Channel"
or such other name as Microsoft may in its sole discretion determine.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
2
1.2 "SPECIFICATIONS" shall mean the content specifications ("Content
Specifications") and the technical specifications ("Technical Specifications")
for the Health Channel attached hereto as Exhibits A-1 and A-2, respectively,
and any modifications thereto that are made in accordance with Section 2.1
below. With respect to the WebTV Health Channel and the MSNBC Health Section, as
discussed in Section 3.1 below, the Specifications shall mean the relevant
provisions of Exhibits A-1 and A-2 (as identified in Section 3.1), together with
any other Specifications provided by WebTV and MSNBC, respectively.
1.3 "NETWORK FRAMEWORK" shall mean the page formatting requirements
provided in the SDK, and the In Service Promotion Box, whether or not included
in such SDK. The Network Framework shall also include all necessary coding for
ad-serving, whether or not included in the SDK.
1.4 "XXX.XXX SOFTWARE DEVELOPMENT KIT" OR "SDK" shall mean the
software development kit provided by Microsoft to WebMD and other licensed MSN
web site developers containing the Network Framework and other information and
materials necessary for WebMD and such other developers to distribute their
content within MSN, including all revisions, upgrades, updates, and new versions
of such SDK. This definition shall include similar SDKs provided by WebTV and/or
MSNBC for the WebTV Health Channel and MSNBC Health Section, respectively, as
discussed in Section 3.1 below.
1.5 "IN SERVICE PROMOTION BOX" shall mean the promotional box
featured on each page within MSN that contains a rotating promotional link to
other content within MSN. An example of the current In Service Promotion Box is
attached hereto as Exhibit B.
1.6 "USER INFORMATION" shall mean both Aggregate Information and
Personal Information pertaining to an end user ("User").
1.7 "AGGREGATE INFORMATION" shall mean information that describes
the habits, usage patterns and/or demographics of Users as a group but does not
indicate the identity of any particular User, and information about an
individual User presented in a form distinguishable from information relating to
other Users but not in a form that enables the recipient to personally identify
any User.
1.8 "PERSONAL INFORMATION" shall mean information about a User
permitting such User to be specifically identified and may include, but not be
limited to (i) User name, (ii) User email or postal address, and the (iii)
User's personally identifying transaction data. In no event, however, shall
Personal information include confidential health care information regulated by
federal or state law.
1.9 "MSN YELLOW PAGES" shall mean that section of the MSN Site
(currently contained within and served by MSN Sidewalk) that provides end users
with a directory listing of certain contact and business information (e.g.,
addresses, phone numbers) for certain companies, and professionals, including
without limitation physicians, pharmacies, nutrition centers, other healthcare
related businesses, etc..
1.10 "ADVERTISING" shall mean advertising, promotions, sponsorships,
ecommerce distribution opportunities and all other revenue generating placements
and services ("Advertising").
1.11 "MICROSOFT TECHNOLOGY PLATFORM" shall mean those Microsoft
technologies that are recommended pursuant to the MCS Agreement (as defined in
Section 4 below), which may include one or more of the following technologies:
Microsoft BackOffice and any of its components, Windows NT Server, SQL Server,
Commerce Server, Site Server, Microsoft Windows Media Player, Microsoft Internet
Explorer, MSN Messenger Service, Microsoft Outlook and Outlook Express for an
email client or other such appropriate Microsoft email technology (except as
prevented by existing contracts as of the Execution Date), including any updates
and upgrades thereto released during the term.
1.12 "MICROSOFT REVENUE" shall mean all recognized net revenue (i.e.,
gross revenue less any direct product costs, as applicable) earned and billed
during the Term of this Agreement, (i) that is received by Microsoft from (a)
Advertising on the MSN Health Section including any and all localized versions
of the MSN Health
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
3
Section for which WebMD is providing a Localized Health Channel pursuant to
Section 2.3 below, (b) transactions or placements in the health shopping area of
MSN Shopping (based on the proportion of traffic coming from the MSN Health
Section) and (c) Advertising placed/sold by Microsoft on the WebMD Site as
provided in this Agreement; (ii) that is received by MSNBC from Advertising on
the MSNBC Health Section including any and all localized versions of the MSNBC
for which WebMD is providing localized healthcare related information for
consumers pursuant to Section 2.3 below; and (iii) that is received by WebTV
from Advertising on a WebTV Health Channel. In the case of contracts that
include elements outside the MSN Health Section, MSNBC Health Section, and/or
WebTV Health Channel, Microsoft Revenue shall include the share of revenue
received by Microsoft that is attributable to the relevant MSN Health Section,
MSNBC Health Section, and/or WebTV Health Channel.
1.13 "WEBMD CONSUMER SITE" shall mean that part of the WebMD Web site
currently located at the URL xxxx://xxx.xxxxx.xxx or any successor site(s)
thereof which is directed at a consumer market.
1.14 "WEBMD SITE" shall mean the WebMD Web site currently located at
the URL xxxx://xxx.xxxxx.xxx or any successor site(s) thereof, including but not
limited to the WebMD Consumer Site, the Medical Professionals Section, any and
all Localized WebMD Sites (as defined in Section 2.3(c)(ii) below).
1.15 "MEDICAL PROFESSIONALS SECTION" shall mean that part of the
WebMD Site currently located at the URL xxxx://xxx.xxxxx.xxx or any successor
site(s) thereof that targets medical professionals, including without limitation
the Non-Health Related Section and the Health Related Section. As of the
Effective Date, the Medical Professionals Section targets medical physicians,
but the Medical Professionals Section shall also include comparable WebMD Site
pages targeted at other specific sectors of the professional medical community
(e.g., nurses, dentists).
1.16 "MSN SITE" shall mean all web sites in the xxx.xxx domain.
1.17 "HOUSE ADVERTISING INVENTORY" shall mean the specific amount of
regular advertising inventory on the MSN Site, or on the Link Exchange network
of sites, for which Microsoft owns or controls the advertising inventory, that
is specifically set aside by Microsoft to promote topic-specific areas and other
features of the MSN Site, and all inventory specially created for this purpose.
For example, as of the Effective Date, House Advertising Inventory includes the
In Service Promotion Box, blue banner at the top of the MSN Site home page, and
the "Today on MSN" module. As of the Effective Date, Microsoft estimates that
House Advertising Inventory comprises approximately 10% of the total advertising
inventory on the MSN Site and on the Link Exchange network of sites, for which
Microsoft owns or controls the advertising inventory. The parties acknowledge
and agree, however, that such percentage may increase or decrease during the
Term of this Agreement, and that Microsoft is not bound to maintain the House
Advertising Inventory at any particular percentage of the total advertising
inventory.
1.18 "NON-HEALTH RELATED SECTION" shall mean that part(s) of the
Medical Professionals Section designed to present to End User Members offers,
services and information, currently of a non-health-related type, which part (a)
is currently called "My Desk" and previously was called "the Lounge," but may be
called by other names during the course of this Agreement, and (b) may include
multiple parts of the Medical Professionals Section without limitation.
1.19 "HEALTH RELATED SECTION" shall mean that part(s) of the Medical
Professionals Section designed to present to End User Members health-related
resource and reference materials, offers, services and information, which part
(a) is currently called the "Health Related Section," but may be called by other
names during the course of this Agreement, and (b) may include multiple parts of
the Medical Professionals Section without limitation.
1.20 "HEALTH CHANNEL" shall mean internet web pages containing
health-related information and services for consumers, which Health Channel is
to be developed and managed between the parties pursuant to the terms of this
Agreement, and shall at all times during the Term provide the content for
approximately * of the sections on the MSN Health Section, subject to the
following: such percentage may be increased at any time by Microsoft in its sole
discretion but may only be decreased by mutual agreement of the parties.
International versions of the Health Channel that are authorized under Section
2.3 of this Agreement may appear
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
4
within different URLs and names than those contained in the definition of the
MSN Health Section, as determined by Microsoft in its sole discretion.
1.21 "YEAR" shall mean a twelve month period. For purposes of this
Agreement, Year 1 shall mean the twelve month period commencing on the Effective
Date, Year 2 shall mean the twelve month period commencing on the first year
anniversary of the Effective Date, Year 3 shall mean the twelve month period
commencing on the second anniversary of the Effective Date, and so on.
1.22 "WEBMD BASIC MEMBERSHIPS" means any subscription entered into by
a registered End User Member to access the Medical Professionals Section. The
term "WebMD Basic Memberships" does not include any subscription offerings that
do not include access to the Medical Professionals Section.
1.23 "WEBMD MEMBERSHIP MONTH" means one month of a WebMD Basic
Membership entered into by an End User Member.
1.24 "MICROSOFT-SPONSORED WEBMD MEMBERSHIPS" means each WebMD
Membership Month that Microsoft sponsors pursuant to the terms of this
Agreement. Microsoft-sponsored WebMD Memberships shall not include any WebMD
Membership Months under a WebMD Membership that has been cancelled, terminated,
or remained inactive during any four months period of the membership.
1.25 "BASE MEMBERSHIP FEE" shall mean the lesser of (i) $29.95 per
month *.
1.26 "END USER MEMBERS" means end users who access the Medical
Professionals Section of the WebMD Site.
1.27 "WEBMD ADVERTISING/SPONSORSHIP REVENUES" means all recognized
revenue earned and billed during the Term of this Agreement that is received by
WebMD from *.
1.28 "WEBMD UPSELL REVENUES" means all recognized net revenue (i.e.,
gross revenue less any direct product costs other than costs of distribution)
earned and billed during the Term of this Agreement, * (a) that is received by
WebMD from the sale of * and (b) that is received by WebMD from the sale of*.
1.29 "WEBMD E-COMMERCE REVENUES" means all recognized net revenue
(i.e., gross revenue less any direct product costs other than costs of
distribution) earned and billed during the Term of this Agreement that is
received by WebMD from *. WebMD E-Commerce Revenues include, without limitation,
revenues generated from *.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
5
2. HEALTH CHANNEL REQUIREMENTS AND RELATIONSHIP WITH MSN HEALTH SECTION
2.1 DEVELOPMENT AND MAINTENANCE. WebMD shall develop, maintain, and
host the Health Channel and the home page of the MSN Health Section in
accordance with this Section 2 and the Specifications. Further, WebMD's
development, maintenance, hosting, servicing, support and all other activities
with respect to the Health Channel (including without limitation those versions
of the Health Channel provided to WebTV and MSNBC) and the home page of the MSN
Health Section, and the content, materials, features, technology or services
included therein or associated therewith, shall at all times be equal or
superior to that (a) of the WebMD Site, (b) to that received from WebMD by other
WebMD co-branded channels, and (c) to that received by any third party to whom
WebMD provides similar content, materials, features, technology or services.
(a) LAUNCH. The parties agree to cooperate in good faith to
create a "transition page" that will be available within * following the
Effective Date so that users may access the WebMD Site from the MSN
Site. WebMD agrees to launch (i.e. make available to the public) the
Health Channel no later than the earlier of July 1, 1999 or the launch
of any other health-related content, features or services on behalf of
any third party (except content provided to Lycos pursuant to a contract
in effect as of the Execution Date), and that upon such launch each page
in the first two levels of the Health Channel shall incorporate the
Network Frameworks in accordance with the Technical Specifications.
WebMD further agrees that within * following the Effective Date and
thereafter during the Term of this Agreement, all pages on all levels
within the Health Channel shall incorporate the Network Frameworks in
accordance with the Technical Specifications and shall otherwise comply
with the Specifications.
(b) MODIFYING THE SPECIFICATIONS. The Content Specifications
may be modified by mutual agreement of the parties, which agreement
shall not be unreasonably withheld by any party. WebMD shall implement
any such modifications pursuant to a schedule agreed upon by the
parties. The parties agree to review the Content Specifications at least
quarterly to assess the quality and competitiveness of and overall
strategy for the Health Channel. The first such review shall occur
within thirty (30) days following the Effective Date. The Technical
Specifications may be modified pursuant to Exhibit A-2 and otherwise by
mutual agreement of the parties, which agreement shall not be
unreasonably withheld by any party.
(c) MICROSOFT OVERSIGHT AND CONTENT.
(i) Microsoft has the right, in its sole discretion,
to require WebMD to remove content from the Health Channel. In
the event that Microsoft determines in its sole discretion that
the presence of certain content on the Health Channel poses an
immediate concern, WebMD shall remove such content within
twenty-four hours of Microsoft's written request. Where
Microsoft does not consider content to pose an immediate
concern, but nonetheless determines, in its sole discretion,
that content should be removed, WebMD shall remove such content
within such longer period of time as Microsoft reasonably
determines is appropriate.
(ii) Microsoft may request that WebMD cover certain
topics, content, features, events or other areas or material on
the Health Channel. If Microsoft makes such a request in
writing, WebMD shall respond within ten (10) business days
whether WebMD desires to provide such content, features, events
or other areas or material. If WebMD agrees to provide such
topics, content, features, events or other areas or material,
WebMD shall incorporate such topics, content, features, events
or other areas or material into the Health Channel as soon as
commercially reasonable following such agreement but in no event
within more than forty-five (45) days from the time it agrees to
provide such topics, content, features, events or other areas or
material. If WebMD declines to provide the topics, content,
features, events or other areas or material or fails to provide
it within the requisite amount of time, then Microsoft shall be
free to provide the topics, content, features, events or other
areas or material (either directly or through a third party),
and WebMD shall cooperate with Microsoft to incorporate such
topics, content, features, events or
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
6
other areas or material into the Health Channel within ten (10)
business days of Microsoft's providing the topics, content,
features, events or other areas or material to WebMD for
incorporation or such other reasonable period of time as the
parties mutually agree. In addition to the foregoing, WebMD
shall incorporate any legal or other notices onto the Health
Channel that Microsoft in its sole discretion considers
necessary, within twenty-four (24) hours of Microsoft's written
request. The parties shall meet on a regular basis, but in no
event less frequently than once each calendar quarter to discuss
the Health Channel and the WebMD Site, provided that the first
such meeting shall take place no later than twenty (20) business
days from the Execution Date, and further provided that in
addition to any other obligations it has to Microsoft, WebMD
shall use reasonable efforts to incorporate into the Health
Channel any topics, content, features, events or other areas or
material etc. that Microsoft suggests during such meetings
according to the same schedule as is set forth above in this
Section.
(iii) Recognizing the importance of maintaining the
strength, market presence, integrity and positive user
experience of the Health Channel, WebMD will consult with
Microsoft before removing or modifying any material topics,
content, features, events or other areas or material on the
Health Channel.
(iv) Further, subject to the terms of this Agreement,
including but not limited to this Section 2.1 and the Dispute
Mechanism set out in Exhibit A-1(2), if WebMD has included a
section for a particular topic as part of the Health Channel,
then Microsoft shall not include a section covering the same
topic in the non-Health Channel portion of the MSN Health
Section. In addition, if Microsoft has included a section for a
particular topic in the non-Health Channel portion of the MSN
Health Section then, subject to any contracts in existence
between Microsoft and any third party concerning the provision
of such section or any part thereof, in the event that WebMD
later proposes providing a section for such topic as part of the
Health Channel, Microsoft and WebMD shall use commercially
reasonable efforts to combine Microsoft's existing section and
WebMD's proposed section so that they are offered as one, or
alternatively if mutually agreed between the parties replace
Microsoft's section with WebMD's section. Finally, at
Microsoft's request and discretion, WebMD may provide content,
features, technology, or services, etc. to Microsoft for
inclusion in the non-Health Channel Section of the MSN Health
Section in a way that distinguishes it from those included in
the Health Channel.
(d) ADVERTISING/REVENUE GENERATION SPACE. The Health Channel
shall include Advertising space as specified in the Specifications
and/or Network Frameworks. In addition, WebMD shall accommodate all
requests from Microsoft for additional Advertising space on the Health
Channel to support the goal of revenue maximization, and shall implement
such requests as soon as reasonable.
(e) MSNBC CONTENT. WebMD shall include that health news and
editorial that is provided to WebMD by MSNBC, on all versions of the
Health Channel. Unless otherwise specified by MSNBC and Microsoft, MSNBC
shall be the sole provider of health news and editorial that is provided
on the Health Channel.
2.2 BRANDING. The Health Channel shall include a joint credit
immediately below the Network Framework header but otherwise at the top of the
page, on all Web pages included within the Health Channel, which credit shall
read Health Channel "by WebMD" or such other word or words as are mutually
approved by the parties, and shall be at least as prominent as the Microsoft
branding appearing in the Network Framework header. All use of Microsoft's
names, brands (including without limitation MSN) or logo(s) as may be authorized
by Microsoft under this Agreement shall be in accordance with the trademark
License granted in Section 11 of this Agreement and/or the Logo Guidelines
(attached as Exhibit D), as appropriate.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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2.3 INTERNATIONAL DISTRIBUTION OF THE HEALTH CHANNEL.
(a) NEW MARKETS PROVIDED BY WEBMD.
(i) In the event that WebMD seeks to create
localized health-related content for consumers, for a topic
specific, front page offering on local MSN portals ("Localized
Health Channel") in a given market, WebMD shall submit written
notice ("New Market Notice") of same to the appropriate
Microsoft contact, as designated by Microsoft, which New Market
Notice shall include a detailed description of WebMD's plans for
such market. The market identified in such WebMD notice shall be
deemed a "Targeted Market." Microsoft agrees that, subject to
(A) the terms of contracts existing as of the Execution Date,
(B) the provisions of this Section 2.3, and/or (C) a
determination by Microsoft that the proposal described in the
New Market Notice is not commercially reasonable for the given
market (but in no event, however, shall Microsoft's
determination be based on whether Microsoft could obtain greater
consideration from a party other than WebMD for a localized
health channel, and further in no event shall Microsoft require
WebMD to make any additional payments with regard to providing a
Localized Health Channel for such Targeted Market), WebMD will
become the provider of a Localized Health Channel on the MSN
portal for such Targeted Market. Subject to and not including
any content provided under the terms of any contracts existing
as of the date of the New Market Notice, the Localized Health
Channel shall at all times provide the content for approximately
* of the sections on any localized MSN Health Section for a
Targeted Market provided that such percentage may be increased
at any time by Microsoft in its sole discretion but may only be
decreased by mutual agreement of the parties. Microsoft shall
notify WebMD within ten (10) business days of the New Market
Notice if WebMD's proposal is rejected. WebMD shall only submit
New Market Notices within sixty (60) days of the Effective Date
or during the first week of any calendar quarter during the
Term, provided that WebMD may not submit any New Market Notices
during the last six months of the Term.
(ii) Once approved, if WebMD fails to make the
localized content for any Targeted Market available for
incorporation onto the relevant MSN portal within a reasonable
period of time following but in no event more than six months of
the New Market Notice (which deadline may be extended by mutual
agreement of the parties), such Targeted Market shall be removed
from the Targeted Market list, the foregoing restriction in
sub-Section 2.3(a)(i) above on Microsoft shall no longer apply
and WebMD may not deliver another New Market Notice with respect
to such market.
(iii) For all intents and purposes under this
Agreement, any Localized Health Channels provided by WebMD
hereunder shall be deemed included in the definition of and
considered part of the Health Channel under this Agreement, and
the parties rights and obligations with respect to such
Localized Health Channels shall be the same as they are with
regard to the Health Channel, provided that Sections 3.6, 3.7,
and 3.8 of this Agreement shall only apply with regard to
Localized Health Channels if and when a localized version of the
relevant Microsoft technology or property is available, and if
the criteria set forth in the relevant sections are satisfied.
(b) RIGHT OF FIRST REFUSAL. Subject to the terms of
contracts existing as of the Execution Date, in the event that (i)
Microsoft desires to create a Localized Health Channel as part of a
localized MSN Health Section for a particular market, other than a
current Targeted Market; or (ii) a third party offers Microsoft the
opportunity to obtain a Localized Health Channel in a market other than
a current Targeted Market; then Microsoft will so notify WebMD in
writing ("MS Market Notice") and provide WebMD with the opportunity to
provide such Localized Health Channel (on at least the same terms and
conditions as offered by the third party for category (ii)). WebMD will
respond affirmatively or negatively to such MS Market Notice within ten
(10) business days of receipt thereof. If WebMD agrees to provide such
content, then (x) WebMD shall make such localized content available for
incorporation as a Localized Health Channel onto the relevant MSN portal
within the time frame set forth in the MS Market Notice, but not less
than forty-five (45) days from the date of the MS Market Notice and (y)
subject to contracts
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THE OMITTED PORTIONS.
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existing as of the Effective Date, the Localized Health Channel shall at
all times provide the content for approximately * of the sections on any
localized MSN Health Section, provided that such percentage may be
increased at any time by Microsoft in its sole discretion but may only
be decreased by mutual agreement of the parties. If WebMD declines an
opportunity to provide localized content under this Section 2.3(b) or
fails to provide it within the time frame set forth in the MS Market
Notice, then Microsoft may itself or through third parties develop such
a Localized Health Channel for the MSN portal in the relevant market
("MS Market"), in which case WebMD may not deliver a New Market Notice
with respect to such market and Microsoft is not required to provide any
further MS Market Notice with respect to such Market. Notwithstanding
the foregoing, the definition of "Microsoft Revenues" shall be extended
to include corresponding revenues derived from such Localized Health
Channel.
(c) INTERNATIONAL BUSINESS DEVELOPMENT AND LOCALIZATION
SUPPORT.
(i) Microsoft agrees to use reasonable efforts to
support WebMD's expansion of its online services into
international markets by providing consultation within the
market and making introductions within the market to local
contacts where relevant. Further, Microsoft will assign a
business development manager located in mutually agreed upon
markets to have, at a minimum, quarterly meetings in the market
with WebMD personnel, to provide to WebMD certain standard
reports developed by Microsoft regarding the market and the
local MSN portal (which reports shall be treated as Microsoft or
WebMD Confidential Information, as appropriate, in accordance
with Section 10 below), and to make introductions to local
contacts in particular markets where Microsoft has such
contacts.
(ii) Microsoft agrees to use reasonable efforts to
support WebMD's expansion of its online services into
international markets ("Localized WebMD Sites") by providing
reasonable consultation on localization strategy and techniques
to the level that Microsoft reasonably believes is reasonably
necessary for WebMD to reasonably make available to end users
localized language sites in Germany, France, the United Kingdom
and Switzerland by the one (1) year anniversary of the Effective
Date; provided that Microsoft shall in no way be responsible for
WebMD's failure to make such sites available within the
specified time.
(d) NON-LOCALIZED INTERNATIONAL CONTENT. Microsoft will work
with WebMD during the first 30 days following the Effective Date to
discuss opportunities for offering worldwide non-localized Health
Channel content as part of a potential international front page offering
on the topic of health on existing international MSN portals ("Worldwide
Non-Local Offering"), as relevant and appropriate, and subject to the
approval of the local portal programming managers which such approval
shall not be unreasonably withheld. Any such international health topic
area shall be non-exclusive and shall not be considered part of the
Health Channel for the purposes of this Agreement, nor will the markets
in which it may be offered be deemed a Targeted Market. The definition
of "Microsoft Revenue" shall be extended to include corresponding
revenues derived from such Worldwide Non-Local Offering. Without
limiting the non-exclusivity with respect to any specific market
described above, provided that the parties are offering a Worldwide
Non-Local Offering under this Section within one hundred eighty (180)
days of the Execution Date, then, subject to any agreements in effect as
of the Execution Date, Microsoft shall not enter into any other
agreements with third parties for a Worldwide Non-Local Offering.
(e) INTEGRATION. WebMD acknowledges that the international
MSN Web Sites are run on different platforms and with different tools
than the United States version. When WebMD does create a Localized
Health Channel and/or Worldwide Non-local Offering for a given market in
accordance with this Section 2.3, such content shall be integrated into
the local MSN portal in accordance with the requirements for the local
MSN portal.
(f) CHANNEL PROMOTION. In the event that WebMD creates
Localized Health Channels pursuant to this Section 2.3, Microsoft agrees
to promote such Channels in the same manner as it promotes other front
page links on the relevant local MSN portal, and WebMD agrees to promote
the Localized Health Channel on its localized WebMD Consumer Site in the
relevant market in the same fashion as it promotes the Health Channel on
the WebMD Consumer Site in the United States. In addition, Microsoft
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shall promote health-related Web events in each Localized Health Channel
to the extent and a number of times, if at all, that Microsoft
reasonably determines are appropriate for each market. The content of
such health-related Web events shall be provided by WebMD and subject to
Microsoft's approval, in its sole discretion.
(g) EXPRESSLY EXCLUDED MARKETS. Notwithstanding any other
provision in this Agreement, in no event shall any rights or obligations
under this Agreement apply to Australia, New Zealand, or Papua New
Guinea.
2.4 INTEGRATION/CROSS PROMOTION/ADVERTISING REQUIREMENTS.
(a) STANDARD INTEGRATION INTO MSN AND BASIC PROMOTION.
Microsoft shall offer the MSN Health Section as a front page link on the
XXX.xxx home page. As a front page link, the MSN Health Section will be
promoted on the MSN Site in a manner equivalent to all other major topic
specific offerings. This promotion may include without limitation, for
as long as any front page link receives such promotion:
(i) providing a front page link to the MSN Health
Section on the XXX.xxx home page.
(ii) displaying the MSN Health Section at the bottom
of Network Framework as one of the MSN services, for as long as
such listings include all front page links in the Network
Framework.
(iii) receiving general cross-linking across the MSN
Health Section (including the Health Channel pages on a pro-rata
basis with all other pages in the MSN Health Section) and other
MSN front page links.
(iv) the Health Channel receiving an average of * of
the House Advertising Inventory in (with the specific type of
inventory to be in Microsoft's discretion), which shall in all
cases include no less than * impressions per year, together with
equal opportunity for the Health Channel to participate in other
advertising elements in the House Advertising Inventory that are
provided to all other front page links, subject to Microsoft's
standard selection processes. WebMD will present to Microsoft
(a) WebMD's proposed advertisements to be placed in the Health
Channel's portion of the House Advertising Inventory specified
herein, and (b) WebMD's proposed promotional priorities for the
Health Channel and WebMD's proposed specific wording for such
promotions. Notwithstanding the foregoing, Microsoft reserves
final editorial discretion and approval over the advertisements
and promotions for the Health Channel including those placed
under this sub-Section (iv).
(v) equal opportunity for the MSN Health Section to
participate in all limited-time editorial packages on the MSN
Site offered to other front page links. From time to time,
Microsoft shall develop a certain topical theme ("Editorial
Package") such as, by way of an example, "Technology,"
"Holiday," "Resolutions 99," and "Love Month," during which time
WebMD shall be given the opportunity to submit Health Channel
content relevant to the Editorial Package. Should Microsoft, at
its discretion, decide to accept the submitted Health Channel
content with the Editorial Package, it will promote the Health
Channel's content associated with the Editorial Package.
(vi) inclusion of a MSN Health Section content module
as a personalization option on the "personalize page" in the
current version of MSN, for so long as such feature exists and
beginning when Microsoft next has a reasonable opportunity to
modify the personalization platform in such fashion in its sole
discretion.
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(vii) in the next version of MSN Search, prioritized
inclusion of promotion and links to the MSN Health Section in
health-related searches, to the extent other front page links
are offered such prioritization.
(b) ADDITIONAL PROMOTIONAL PROGRAMS. In addition to the
basic promotion described above, Microsoft shall provide the Health
Channel with the following additional promotional opportunities:
(i) ADDITIONAL ADVERTISING INVENTORY. Microsoft
agrees to provide the Health Channel with an additional average
of * of the House Advertising Inventory (for a total of at least
an average of *) (with the specific type of inventory to be in
Microsoft's discretion), which shall in all cases include no
less than * impressions per year. WebMD will present to
Microsoft WebMD's proposed advertisements to be placed in the
Health Channel's portion of the House Advertising Inventory
specified herein. Notwithstanding the foregoing, Microsoft
reserves final editorial discretion and approval over the
advertisements for the Health Channel including those placed
under this sub-Section (i).
(ii) PROMOTION OF HEALTH RELATED WEB EVENTS.
Microsoft agrees to promote to users of Windows Media Player at
least one Health Channel-related Web event per month during the
Term of this Agreement through the MSN Web Events front page
link and across other MSN front page links, for as long as a MSN
Web Events front page link exists. The amount and nature of such
promotion shall be at Microsoft's discretion.
(iii) ADDITIONAL INTEGRATION WITH OTHER MSN CHANNELS.
Microsoft will endeavor to provide the Health Channel with
specific distribution opportunities with certain MSN channels
such as, by way of example, "Women Central," "Travel," and
"Sports." The final nature of such distribution opportunities
for the Health Channel, if at all, will be subject to discussion
and final approval of Microsoft.
(iv) SHOPPING AREA FOR HEALTH CHANNEL. Microsoft
agrees to provide a link from the health shopping area of the
MSN Shopping area to the MSN Health Section.
(c) RELATIONSHIP OF HEALTH CHANNEL TO OTHER PARTS OF THE MSN
HEALTH SECTION. For purposes of this Section 2.4, the Health Channel
shall be treated equal to or better than any other third party,
non-Microsoft affiliate, provider of content for the MSN Health Section.
(d) MICROSOFT'S ADVERTISING ON THE WEBMD SITE. WebMD shall
provide Microsoft with access to sufficient Advertising space on the
WebMD Site * Advertising in such Advertising space on the WebMD Site.
During the thirty (30) days following the Execution Date the parties
shall mutually agree on how to manage the available Advertising
inventory on the WebMD Site and on the rates for such space, which
rates shall be commercially reasonable. Microsoft will not be permitted
to make placements of health care related Advertising on the WebMD Site
without WebMD's express approval. All revenue generated from such
placements shall be considered Microsoft Revenue. WebMD shall at a
minimum include an amount of Advertising space on the WebMD Site that
is equal to or greater than that provided on the Health Channel and
shall accommodate all requests from Microsoft for additional
Advertising space on the WebMD Site. Notwithstanding the foregoing, in
no event shall WebMD be required to create new categories of
Advertising space under this Section.
2.5 RESTRICTIONS.
(a) ON WEBMD. WebMD agrees not to provide * for
distribution on the Internet, * except that WebMD may, pursuant to an
agreement in effect between * as of the Execution Date, provide * for
distribution on the Internet. Further, in the event that WebMD enters
into an agreement * to provide * for distribution on the Internet,
WebMD agrees to provide Microsoft with * before the launch of such * on
the Internet*
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(b) ON MICROSOFT. Microsoft agrees that, except with regard
to content provided by MSNBC and content provided by Microsoft or third
parties pursuant to this Agreement, including Sections 2.1 and 2.3 above
and Sections 3.3 and 3.5 below, WebMD shall be the sole provider of
health-related information on the Health Channel.
2.6 USER INFORMATION.
(a) OWNERSHIP/USE. Microsoft and WebMD shall jointly own any
and all User Information (i) collected by WebMD from Users of the Health
Channel as well as Users of the WebMD Consumer Site whose use of the
WebMD Site originated on the Health Channel or any MSN Site, (ii)
relating to End User Members with Microsoft-sponsored WebMD Memberships,
and (iii) relating to End User Members who receive WebMD Memberships
through Microsoft or Microsoft distribution partners, and WebMD shall
provide such User Information to Microsoft on a monthly basis in such
format as reasonably requested by Microsoft. Likewise, Microsoft shall
provide any User Information it collects on the Health Channel to WebMD
on a monthly basis in such format as is reasonably requested by WebMD.
WebMD may use the User Information during the Term of this Agreement
solely for the purpose of fulfilling the product or service for which
the information was collected, provided, however, that such information
shall be treated in the same fashion as Confidential Information
pursuant to Section 10 below and specifically, without limitation, shall
not be provided to any third party nor used on behalf of any third
party, including but not limited to, for promoting or advertising any
third party, without Microsoft's prior written consent. Notwithstanding
the foregoing, Microsoft hereby approves WebMD using and providing to
third parties Aggregate Information to be used in research projects. Any
other use of the User Information during the Term by WebMD shall be by
mutual agreement of the parties. Upon termination of this Agreement,
each party may retain the User Information collected pursuant to this
Agreement and no party shall restrict the other's use in any way and
WebMD shall provide to Microsoft all User Information pertaining to the
MSN Users of the WebMD Health Communities (as defined in Section 3.7
below), provided that WebMD may not provide such User Information to any
third party nor use such User Information on behalf of any third party,
including but not limited to, for promoting or advertising any third
party, without Microsoft's prior written consent. For the avoidance of
doubt, except where the parties jointly use the User Information, each
party shall be responsible for ensuring that its own use of the User
Information complies with all User consent requirements, including but
not limited to as provided in Section 2.6(b) below.
(b) CONSENT. In addition to the foregoing, any collection,
disclosure or use of Personal Information by WebMD shall be subject to
the Users' consent, and the business practices and User privacy policies
of the site from which it is collected (e.g., the Health Channel, an MSN
Site, WebMD Consumer Site or Medical Professionals Section). The
business practices and policies of each such site shall permit, as their
default, WebMD to grant Microsoft the rights required by this Section
2.6, unless the User specifically requests otherwise, and in all cases
shall comply with any applicable laws governing the collection,
dissemination and use thereof. "Consent" as used in this Agreement shall
mean the approval of an adult, and in the case of minor children, the
approval of the child's parent or legal guardian. WebMD and Microsoft
shall mutually agree on the Health Channel user interface for the
collection of Personal Information. Microsoft shall determine the
privacy policy for the Health Channel.
3. OTHER MICROSOFT RELATED PROPERTIES
3.1 WEBTV/MSNBC.
(a) WEBTV
(i) WEBTV HEALTH CHANNEL. WebMD shall develop,
maintain, and host the health channel for WebTV ("WebTV Health
Channel"). Subject to any inconsistencies with the provisions of
this Section 3.1(a) (in which case the terms of this Section
3.1(a) shall control) and subject to agreements in effect as of
the Execution Date, the following Sections of this Agreement
shall apply to WebTV and WebMD with regard to such WebTV Health
Channel: Sections 2.1,
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2.6, 3.5, 9, 10, 11.1(c)-(d), 11.2(a)-(b), 12.9, 13, 14.6, 15,
16, 18, Exhibit A-1 paragraphs (A)(3)-(5) and (C), and Exhibit
A-2.
(ii) WEBTV. As part of meeting their obligations
under Section 3.1(a) above, WebMD and WebTV shall meet during
the first ninety days after the Effective Date ("WebTV
Exploratory Period") to discuss in good faith the specific
processes and requirements for development, maintenance, and
hosting by WebMD of a WebTV Health Channel. If the parties fail
to come to agreement during the WebTV Exploratory Period, then
no party shall have any further obligation to the other with
regard to a WebTV Health Channel.
(iii) MINIMUM CONTENT REQUIREMENTS. If WebMD creates a
WebTV Health Channel by agreement with WebTV pursuant to Section
3.1(a)(i) and (ii) above, all content, materials, features,
technology, services, etc. included by WebMD within the WebTV
Health Channel (a) shall be the sole responsibility of WebMD and
shall be developed and maintained in accordance with Section B
of Exhibit A-1, (b) shall be relevant to the topic and
particular section of the WebTV Health Channel in which they are
included, (c) shall be of high quality in all ways, including
with respect to editorial content and volume, as determined by
comparison to other sources of similar information available on
the Internet and in no event shall the WebTV Health Channel
contain a smaller volume of pages as the WebMD Consumer Site or
Health Channel contains, unless approved or requested byWebTV,
(d) *, (e) shall be regularly updated by WebMD so as to meet the
requirements of sub-sections (b), (c) and (d) above and
end-users preferences, and (f) subject to the foregoing
requirements in (a)-(e), shall be the same or substantially
similar as (i.e., in substance, a mirror of) the materials
available to end users accessing the WebMD Consumer Site at any
time during the Term of this Agreement. With respect to this
subsection 3.1(a), WebTV shall have the right and obligation to
invoke the Dispute Mechanism set forth in Exhibit A-1(2).
(b) MSNBC
(i) MSNBC HEALTH CHANNEL. MSNBC shall develop,
maintain, host and--except as specifically set out in this
Agreement--in all ways have sole discretion and control over all
aspects of that section of the MSNBC Web site (currently located
at xxxx://xxx.xxxxx.xxx or such other URL as MSNBC shall
determine in its sole discretion) or any successor site(s)
thereof ("MSNBC Site") dedicated to providing health related
information and services for consumers ("MSNBC Health Section")
including but not limited to its content, features,
technologies, services, etc., its appropriate frameworks and
Specifications (including content Specifications and technical
Specifications). Subject to any inconsistencies with the
provisions of this Section 3.1(b) (in which case the terms of
this Section 3.1(b) shall control) and subject to agreements in
effect as of the Execution Date, the following Sections of this
Agreement shall apply to MSNBC and WebMD with regard to such
MSNBC Health Section: Sections 2.1; 2.3(a), (b), (e), and (g);
2.6, 3.5, 9, 10, 11.1(c), 11.2(a)-(b), 12.9, 13, 14.6, 15, 16,
18, Exhibit A-1 paragraphs (A)(3)-(5) and (C), and Exhibit A-2.
(ii) Subject to contracts in existence as of the
Execution Date, WebMD shall be the primary provider of health
care related information other than (A) news and editorial, (B)
content from NBC News and MSNBC cable, and (C) wire and WSJ/Dow
Xxxxx services on the MSNBC Health Section.
(iii) Notwithstanding sub-Section 3.1(b)(ii) above,
MSNBC shall create a special WebMD section (the "MSNBC Health
Channel") of the MSNBC Health Section and MSNBC shall have the
sole discretion to include or not include any content, features,
technologies, services, etc. provided by WebMD on the MSNBC
Health Channel.
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(iv) Without limiting or modifying in any way
sub-Section 3.1(b)(ii) above, with respect to contracts in
existence as of the execution Date between MSNBC and third
parties for the provision of healthcare related information to
MSNBC for the MSNBC Health Channel, at the natural termination
or expiration of each such contract (which shall be determined
under such contracts and as between MSNBC and WebMD in MSNBC's
sole discretion), MSNBC shall use commercially reasonable
efforts to replace such third party healthcare related
information with healthcare related information provided by
WebMD. For the avoidance of doubt, content, features, and
anything in those areas specified in sub-Section
3.1(b)(ii)(A)-(C) above are not subject to replacement by WebMD
content.
(v) WebMD will provide such support as is required
to assist MSNBC in incorporating the MSNBC Health Channel or
links thereto into the MSNBC Health Section, including but not
limited to incorporating such MSNBC frameworks or Advertising
space as may be required to include WebMD's healthcare related
information in the MSNBC Health Channel.
(vi) MSNBC may request that WebMD cover certain
topics, content, features, events or other areas or material for
inclusion in the MSNBC Health Channel. If MSNBC makes such a
request in writing, WebMD shall respond within ten (10) business
days whether WebMD desires to provide such content, features,
events or other areas or material. If WebMD agrees to provide
such topics, content, features, events or other areas or
material, WebMD shall provide such topics, content, features,
events or other areas or material for incorporation into the
MSNBC Health Channel as soon as commercially reasonable
following such agreement but in no event within more than
forty-five (45) days from the time it agrees to provide such
topics, content, features, events or other areas or material. If
WebMD declines to provide the topics, content, features, events
or other areas or material or fails to provide it within the
requisite amount of time, then MSNBC shall be free to provide
the topics, content, features, events or other areas or material
(either directly or through a third party). In addition to the
foregoing, WebMD shall incorporate any legal or other notices
onto all or any part that WebMD provides for the MSNBC Health
Channel that MSNBC in its sole discretion considers necessary,
within twenty-four (24) hours of MSNBC's written request. The
parties shall meet on a regular basis, but in no event less
frequently than once each calendar quarter to discuss the MSNBC
Health Section, the MSNBC Health Channel and the WebMD Site,
provided that the first such meeting shall take place no later
than sixty (60) business days from the Execution Date, and
further provided that in addition to any other obligations it
has to MSNBC, WebMD shall use reasonable efforts to provide to
MSNBC for incorporation into the MSNBC Health Channel any
topics, content, features, events or other areas or material
etc. that MSNBC suggests during such meetings according to the
same schedule as is set forth above in this Section.
(vii) MINIMUM CONTENT REQUIREMENTS. All content,
materials, features, technology, services, etc. provided by
WebMD for the MSNBC Health Channel or the WebMD section of the
MSNBC Health Channel (a) shall be the sole responsibility of
WebMD and shall be developed and maintained in accordance with
Section B of Exhibit A-1, (b) shall be relevant to the topic and
particular section of the MSNBC Health Channel in which they are
included, (c) shall be of high quality in all ways, including
with respect to editorial content and volume, as determined by
comparison to other sources of similar information available on
the Internet and in no event shall the MSNBC Health Channel have
access to a smaller volume of pages as the WebMD Consumer Site
or Health Channel contains, unless approved or requested by
Microsoft or NBC, (d) *(e) shall be regularly updated by WebMD
so as to meet the requirements of sub-sections (b), (c) and (d)
above and end-users preferences, and (f) subject to the
foregoing requirements in (a)-(e), that available for MSNBC to
incorporate into the MSNBC Health Channel shall be the same or
substantially similar as (i.e., in substance, a mirror of) the
materials available to end users accessing the WebMD Consumer
Site at any time during the Term of this Agreement. With respect
to sub-Sections (c) and (d) above of this sub-Section (vii),
MSNBC shall have the right and obligation to invoke the Dispute
Mechanism set forth in Exhibit A-1(2).
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(viii) BRANDING AND PROMOTION. Subject to contracts in
existence as of the Execution Date, (A) MSNBC shall include on
each page of the MSNBC Health Channel a WebMD credit as
reasonably mutually determined by the parties, and on every page
of the MSNBC Health Channel WebMD will receive branding above
the fold in a mutually agreeable position, such branding element
shall link to an appropriate page in the MSN Health Section, (B)
MSNBC shall include a link to the MSNBC Health Section on the
front page of the MSNBC Site and each other page of the MSNBC
Site that includes links to the other topic specific front page
links, (C) MSNBC shall include a secondary-level navigation link
to the MSN Health Section on each page of the MSNBC Site, (D) on
each page of the MSNBC Health Channel, MSNBC shall include a
link to that part of the MSN Health Section covering the
relevant information as on the MSNBC Health Section page, and
(E) MSNBC shall provide the MSNBC Health Channel with a rotation
of at least one promotion on the front page of the MSNBC Site
each day subject to MSNBC's sole editorial discretion to feature
other news, information, events, etc., for example to
accommodate news cycles and breaking news events.
(ix) TERM. Notwithstanding any other provision of
this Agreement, the term of this Agreement solely with respect
to the MSNBC Health Channel shall expire three (3) years
following the Effective Date, unless earlier terminated as
provided under Section 13 below.
3.2 INTERNET ACCESS. Subject to WebMD's contractual obligations to
Compuserve as of the Execution Date, WebMD agrees that Microsoft's MSN Internet
Access ("MSN IA") shall be the sole internet access service advertised, promoted
and/or distributed by WebMD, including on the WebMD Site, and including, but not
limited to with respect to narrow band, broadband or otherwise, provided that
the parties shall consult and may agree on alternative broadband providers.
Within thirty (30) days following the Effective Date, WebMD shall deliver to
Microsoft a marketing plan ("MSN IA Marketing Plan") containing WebMD's general
proposal for advertising, promoting and/or distributing MSN Internet Access
during the first six months of the Term of this Agreement. Two months in advance
of the following six month period and of each remaining six month period
thereafter during the Term of the Agreement, WebMD shall present to Microsoft an
update to the MSN IA Marketing Plan to cover the subsequent six months. The MSN
IA Marketing Plan shall be subject to Microsoft's approval, which approval shall
not be unreasonably withheld, and shall include at least one promotional event
each quarter. Microsoft and WebMD will mutually determine which parts of the MSN
IA Plan and each updated MSN IA Plan will be implemented in what time frame,
what changes, if any, will be made to the proposed programs during each six
month period and which party will be responsible for what aspects of each
program. The parties shall work together to create and distribute the elements
for all such promotions with WebMD creating, maintaining, hosting and
distributing those materials necessary to implement such promotion, and
Microsoft providing the Internet Access package offer, fulfilling the offers as
set forth herein and maintaining the customer service relationship. Microsoft
commits to include the following as part of the Internet Access package offered
to WebMD users subscribing to MSN IA as a result of one of the programs agreed
on pursuant to this Section 3.2:
(a) Unlimited monthly Internet access according to MSN's
standard terms and conditions at a price to be determined by Microsoft
in its sole discretion, provided that Microsoft currently intends to
charge WebMD participants in the approved MSN IA programs described
herein no more than the standard consumer pricing;
(b) Default home page is the current standard default
available from MSN, provided that Microsoft agrees to provide a
co-branded or redirect to the WebMD home page by no later than
September, 1999; and
(c) Multiple email accounts including an MSN email account
and unlimited Hotmail accounts.
Microsoft shall provide co-branded marketing sign-up packages to all WebMD
participants in the approved MSN IA programs described herein, including CD's,
mailing and packaging materials. Such marketing sign-up packages will
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be provided at Microsoft's expense for the first 1,000,000 marketing sign-up
packages and postage costs for up to 500,000 marketing sign-up packages.
Expenses for providing additional marketing sign-up packages and postage costs
shall be borne by WebMD. With respect to User Information, the provisions of
Section 2.6 above and Section 11.4 below shall apply. In the event that
Microsoft intends in its sole discretion to stop offering MSN IA, Microsoft
shall give WebMD at least ninety (90) days' advance written notice of its
intention, and WebMD shall immediately stop offering any MSN IA programs and no
party shall have any further obligations under this Section 3.2.
3.3 HEALTH CHANNEL DIRECTORY. The only health care-related
directory(ies) included on the Health Channel shall be those health care-related
directory(ies) designated by Microsoft from time to time during the Term in its
sole discretion, which may include, without limitation: (a) Microsoft's health
care-related directory (currently part of the MSN Yellow Pages) as it exists
from time to time during the Term or any part or successor thereof; (b) WebMD's
health care-related directory as it exists from time to time during the Term or
any part or successor thereof; (c) any health care-related directory provided by
some third party; or (d) any combination of (a), (b) and (c) immediately above.
The parties agree that Microsoft may, in its discretion, create a combined
health care-related directory for the Health Channel that incorporates WebMD's
health care-related directory listings. In the event that Microsoft elects to
create such a combined directory, the parties shall work together in good faith
to do so. WebMD shall include the health care-related directory(ies) designated
by Microsoft in the Health Channel.
3.4 OTHER MICROSOFT PROPERTIES. Except as prevented by any contracts
between WebMD and third parties existing as of the Execution Date, WebMD agrees
that Microsoft and its affiliates shall be the *; provided that WebMD may elect
in its sole discretion not to provide content, features or services for any
area. The foregoing shall exclude, however, solely with regard to the Health
Related Section of the Medical Professional Section, any Microsoft *, unless
mutually agreed upon by the parties. In the event that WebMD makes available to
end users any non-web-based email technology, whether through the distribution
of work stations or otherwise, Microsoft shall be the sole provider of such
technology for such distribution and shall provide such technology under
standard terms and conditions for such distribution; provided that such
Microsoft technology be Microsoft Outlook or such other Microsoft technology
designated by Microsoft. Without limitation, being the * means that *.
3.5 MSN MODULE.
(a) WebMD shall include a module for MSN ("MSN Module")
either above the fold of a 640 x 480 screen size resolution with a
standard browser configuration, or on the second screen (of a 640 x 480
screen size resolution with a standard browser configuration), on each
page of the WebMD Site, which MSN Module shall be in a form determined
by Microsoft in its sole discretion. The MSN Module may be modified from
time to time as determined by Microsoft in its sole discretion and WebMD
shall replace any existing MSN Module with any such updated MSN Module
within a reasonable time following Microsoft's notice of such
modifications. The MSN Module may at a minimum include a "Go to MSN"
logo link, two (2) rotating text links from a pool of five (5) text
links, and a single promotional text link, which text links will be
mutually determined by Microsoft and WebMD. An example of what the MSN
Module may look like appears in the mock-up attached hereto as Exhibit
C. The MSN Module and any modification thereto shall be subject to
Microsoft's written approval. WebMD's placement and use of the "Go to
MSN" logo link shall be in accordance with the Logo Guidelines attached
hereto as Exhibit D.
(b) The only search service(s) included on the Health
Channel shall be the search service(s) designated by Microsoft from time
to time during the Term in its sole discretion, which may include,
without limitation: (i) Microsoft's MSN Web Search as it exists from
time to time during the Term or any part or successor thereof; (ii)
WebMD's search service and technology as it exists from time to time
during the Term or any part or successor thereof; (iii) any search
service or technology provided by some third party; or (iv) any
combination of (i), (ii) and (iii) immediately above. At Microsoft's
sole discretion, Microsoft may create a combined search service for the
Health Channel that incorporates WebMD's search services. In the event
that Microsoft elects to create such a combined service, the parties
shall work together in good faith to do so. At Microsoft's request,
WebMD shall provide Microsoft with database mapping from technical
disease names to common names for use in MSN Web Search. WebMD shall
include the search service designated by Microsoft in the Health
Channel.
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3.6 MICROSOFT ONLINE ID PROGRAM. WebMD agrees to test, evaluate, and
use, take sign ups for and accept the Ids for Microsoft's proprietary
authentication service ("Passport") on both the Health Channel and the WebMD
Site, and all of WebMD's existing profiling and authentication mechanisms will
also take sign ups for and accept the Ids for Passport. WebMD shall use Passport
in accordance with the terms of the Microsoft Online ID Evaluation Program
Agreement attached hereto as Exhibit E and such further standard terms and
conditions that are offered in addition to or as a replacement for those
currently contained in such agreement. The parties acknowledge and agree that
WebMD may accept other authentication mechanisms on the WebMD Site. WebMD
agrees, however, that Passport will be the only authentication mechanism
distributed (i.e., take sign ups) on the Health Channel and WebMD Consumer Site
other than WebMD's proprietary authentication mechanisms. WebMD's obligations
under this Section 3.6 shall extend to any localized WebMD Consumer Site, to the
extent that a localized version of Passport is available for the relevant
market.
3.7 MSN COMMUNITIES. Microsoft agrees to migrate, as soon as
commercially feasible, users of the current Microsoft owned and moderated
health-related communities found within Microsoft's MSN Web Communities channel,
over to the WebMD health-related communities on the WebMD Site ("WebMD Health
Communities") provided that, for the avoidance of doubt, no party shall have any
obligations hereunder with respect to user-created communities in the MSN Web
Communities channel. WebMD shall create and manage only one section devoted to
health-related communities which shall be the WebMD Health Communities and all
health-related communities created and/or managed by WebMD shall be part of the
WebMD Health Communities. At all times during the Term the WebMD Health
Communities shall have no less than * distinct communities by the end of Year 1.
Microsoft shall promote, as soon as commercially feasible as determined by
Microsoft in its sole discretion, the WebMD Health Community from its MSN Web
Communities channel by providing, among other things, hypertext address links,
equally prominent promotion with other Microsoft-owned and moderated
communities. WebMD agrees to promote non-health related Microsoft-owned and
moderated MSN Web Communities on the WebMD Site and the Health Channel in a
manner such that promotion of such communities shall be as prominent and in all
places as any promotion of any other comparable non-health related communities,
and otherwise where appropriate with the content and context, on the WebMD Site
and Health Channel respectively. At a minimum, WebMD shall include on each page
of the WebMD Health Communities area a text link to the MSN Web Communities
channel, the text of which shall be mutually agreed upon. WebMD agrees that, as
soon as commercially feasible, the Health Channel Community shall be available
to end users in a read-only format as well as a participatory format, and that
any Health Channel users who desire to only read files in the Health Channel
Community shall not be required to formally join the Health Channel Community by
filling out a user questionnaire. WebMD shall incorporate the Network Frameworks
on each WebMD Health Communities' page served to users that originate from the
Health Channel in accordance with the SDK and the WebMD Health Communities shall
otherwise be presented to end users so that it resembles and functions like the
non-health related communities found within Microsoft's MSN Web Communities
channel. For purposes of clarity, the Health Channel shall include the WebMD
Health Communities. The provisions of this Section 3.7 shall apply to any
localized WebMD Consumer Site, to the extent that local MSN Web Communities are
available for the relevant market, and subject to the approval of the local MSN
portal manager. WebMD shall develop, maintain, and host those things necessary
and reasonably requested by Microsoft to implement the foregoing.
3.8 OTHER MICROSOFT INTERNET SERVICES. Except as prevented by any
contracts between WebMD and third parties existing as of the Execution Date,
upon notice from Microsoft that any such service or technology is available for
distribution, WebMD agrees, as soon as commercially feasible, to prominently
implement on the WebMD Site, and prominently provide end users with access from
the WebMD Site to, each Microsoft Internet service and technology that is
available on the MSN Site, including, but not limited to, MSN Web Search,
Microsoft Chat, MSN Messenger Service, Hotmail, a Microsoft business,
e-commerce, communication service and technology, which includes a common format
and process for exchanging products, business information, promotional
information and other business data over the Internet, and a Microsoft web
hosting service and technology, which includes software and tools that enable
web site creation and hosting, and all other Microsoft Internet services not
otherwise specifically addressed in other Sections of this Agreement that are
available on the MSN Site ("Other Microsoft Internet Services") pursuant to
Microsoft's standard user interface and distribution terms. To such end,
Microsoft shall provide WebMD with such materials, technology and support as it
routinely provides to other third parties distributing such technologies. In the
event that WebMD offers Other Microsoft Internet Services on the WebMD Site in
accordance with the foregoing, WebMD shall not promote any competing
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THE OMITTED PORTIONS.
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technology on the WebMD Site, other than during a commercially reasonable
transition period for discontinuing any such promotion. WebMD's obligations
under this Section 3.8 are subject to WebMD's contractual obligations existing
as of the Effective Date, and shall extend to any localized WebMD Consumer Site,
to the extent that a localized version of the Other Microsoft Internet Services
is available for the relevant market. WebMD shall develop, maintain, and host
that which is necessary and reasonably requested by Microsoft to implement the
services and technologies specified in this Section 3.8. Upon mutual agreement,
the parties shall work together and with appropriate third parties to create
appropriate industry standards.
4. USE/PROMOTION OF MICROSOFT TECHNOLOGY PLATFORM
4.1 USE OF THE MICROSOFT TECHNOLOGY PLATFORM. WebMD agrees, at
WebMD's expense, to make Microsoft technology, including the Microsoft
Technology Platform, WebMD's primary technology platform for developing,
staging, operating and maintaining both the front and back ends of the Health
Channel and the WebMD Site in accordance with this Section 4.
4.2 MCS CONSULTING AGREEMENT. In conjunction with its obligations in
Section 4.1 above, WebMD agrees to convert, at WebMD's expense and within one
year of the Effective Date, any current operating systems and other technology
identified pursuant to the MCS review described herein used in developing,
staging, operating, and maintaining the WebMD Site over to a PC-based platform
that uses relevant Microsoft technology, including the Microsoft Technology
Platform products. Such conversion shall be sufficiently comprehensive so that
the majority of WebMD's systems shall utilize Microsoft technology, including
the Microsoft Technology Platform products, and will consist of an architectural
review of existing systems, and the development and implementation of a
transition plan in conjunction with Microsoft Consulting Services ("MCS") as
further set forth in the MCS agreement and work order ("Work Order") attached
hereto as Exhibit F (collectively "MCS Agreement"). WebMD agrees to engage MCS
pursuant to the MCS Agreement to assist WebMD in conducting the architectural
review, developing a transition plan, and implementing such transition plan.
This conversion shall include integration of Microsoft products that contain
substantively similar functionality as the following combination of products:
Internet Information Server, Site Server, SQL Server, Windows NT Server, and
Microsoft's messaging technologies, including updates and upgrades thereto.
WebMD and Microsoft agree to commence the architectural review as more fully
described in the Work Order, within forty five (45) days of the Effective Date
and to complete the architectural review within forty five (45) days of
commencement. Based on the outcome of the architectural review, the parties
shall agree within one additional week on a transition schedule ("Transition
Schedule"), which shall include at a minimum an agreed upon additional MCS work
order ("Transition Schedule Work Order") detailing the parties' responsibilities
under the Transition Schedule. The transition shall be completed no later than
360 days following the Effective Date, unless the parties agree otherwise in the
Transition Schedule. In the event that any delays caused by MCS result in a
delay in any deadline or schedule described herein, such deadline or schedule
shall be revised to take into account the MCS-caused delays.
4.3 PROMOTION OF MICROSOFT TECHNOLOGY PLATFORM. WebMD agrees that,
once the conversion process described in Section 4.2 above has been completed,
Microsoft may reference the WebMD Site in promotional and marketing materials as
a showcase or reference site for Microsoft technology used by WebMD. Further,
WebMD agrees to prominently promote the Microsoft technology, including the
Microsoft Technology Platform products, used by WebMD by prominently mentioning
such products in WebMD marketing materials including those aimed at physicians
and consumers, including without limitation in press releases, sales literature,
and promotional brochures. Prior to the completion of the conversion process
described in Section 4.2 above, WebMD agrees to prominently promote the
Microsoft technology, including the Microsoft Technology Platform products, as
preferred by WebMD by prominently mentioning such products in WebMD marketing
materials including those aimed at physicians and consumers, including without
limitation in press releases, sales literature, and promotional brochures.
4.4 MCS CONSULTANT EXPENSE. Notwithstanding anything to the contrary
in Section 4.1 and 4.2 above and the attached MCS Agreement, its attached Work
Order or any subsequent Work Order, in exchange for all amounts paid to
Microsoft by WebMD for Microsoft Consulting Services under Section 4.1 and 4.2,
the MCS Agreement and all Work Orders, Microsoft shall provide over the Term of
the Agreement Advertising, marketing
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and/or promotional programs for content and/or services on the WebMD Site by
Microsoft or any party referred by Microsoft in a total value of no less than
the amount, matched dollar for dollar, of the payments made by WebMD for MCS
Consulting Services up to *. For the avoidance of doubt, WebMD will be
responsible for all reasonable travel and associated expenses incurred in the
delivery of all MCS services, including, but not limited to, the consultant
hours and additional consultant hours specified above.
4.5 WEBMD ADOPTION AND PROMOTION OF MICROSOFT TECHNOLOGIES. WebMD
shall adopt, and Microsoft and WebMD will work together to promote and
establish, Microsoft's interoperability framework for healthcare ("MICROSOFT
HEALTHCARE INTEROPERABILITY FRAMEWORK"). The Microsoft Healthcare
Interoperability Framework is a multilevel standard designed to provide
interoperability between applications and systems across desktops PCs, servers,
networks, and legacy systems in the healthcare industry. The Microsoft
Healthcare Interoperability Framework includes the Active X for Healthcare
standard and BizTalk (which together include components of COM, DCOM, COM+, and
XML or other enhancements).
4.6 ELECTRONIC COMMERCE PLATFORMS. Over an agreed-upon period of
time, Microsoft will use reasonable efforts to facilitate dialog among other key
industry partners on the development of multiple electronic commerce platforms
that bridge Physicians, Hospitals, Payors, Employers and Suppliers and the
integration of such platforms with the Medical Professionals Section's
functionality.
4.7 DISTRIBUTED APPLICATIONS. Microsoft will use reasonable efforts
to encourage its major ISV alliance partners to develop key distributed
applications based on Microsoft technologies that would operate in conjunction
with the functionality and content of the WebMD Site, including the development
of distributed applications that would reside within the employer domain and
that would provide enhanced positioning to WebMD as an intranet-based offering.
4.8 BILLING INITIATIVES. Microsoft will use reasonable efforts to
explore the development of an electronic EOB delivery system for implementation
on the Medical Professionals Section, based on available technology.
5. MARKETING/HEALTHCARE TECHNOLOGY AREA
WebMD agrees, for the term of this Agreement, to incorporate a
"Healthcare Technology" Section into the Medical Professionals Section no more
than two levels down from the top level page of the Medical Professionals
Section, that provides tips and background information about Microsoft
technology and exclusively promotes Microsoft technologies and Microsoft
authorized independent software vendors. The Healthcare Technology section shall
be located above-the-fold (at a screen resolution of 640 x 480 with a standard
browser configuration) wherever placed. Further, WebMD agrees to prominently
integrate links to the Healthcare Technology section from other parts of the
WebMD Site where technology in the healthcare industry is discussed. The
content, layout and presentation of the Healthcare Technology section shall be
determined by Microsoft, provided that WebMD shall have the right to approve
such content, layout and presentation, which approval shall not be unreasonably
withheld.
6. SALES OBLIGATIONS
6.1 HEALTH CHANNEL ADVERTISING. Microsoft shall be solely
responsible for selling and managing all Advertising on the Health Channel.
Microsoft and WebMD will meet regularly to discuss sales strategies for selling
Advertising to hospitals, HMOs, clinics, pharmaceutical companies, medical
device companies, medical/surgical supply companies, life sciences companies,
pharmacies, and health insurance companies.
6.2 CO-MARKETING COMMITMENT. Microsoft shall itself, or shall ensure
that the Authorized Transferees (as defined in the Master Agreement entered into
as of April 10, 1999 between the parties) or other third parties , provide,
during the period beginning on the Effective Date and ending on the second year
anniversary of the Effective Date, a combined total value of no less than *, and
WebMD shall provide a total of no less than the same amount matched dollar for
dollar, on Advertising, marketing and/or promotional programs for content and/or
services reflecting the combined brands of WebMD and the other parties'
contributing money to each such program and approved in advance by all of the
parties' contributing money to each such program. For example, such
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THE OMITTED PORTIONS.
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programs may be co-presented by WebMD and MSN, or Web MD and Microsoft, or WebMD
and Authorized Transferees, or WebMD and a Microsoft independent software vendor
("ISV"), or WebMD, MSN and an Authorized Transferee, etc. All such programs
shall be presented in offline (i.e., not on the Internet) arenas, e.g., on air,
trade shows, print medium, etc., or online as mutually agreed between the
parties. The parties agree that fifty percent (50%) of the amounts spent under
this Section shall be devoted to demand-generation marketing campaigns for those
specific Microsoft distribution partners identified by Microsoft.
7. MICROSOFT-SPONSORED WEBMD MEMBERSHIPS
7.1 GENERAL. Microsoft agrees to sponsor up to five (5) million
WebMD Membership Months during the Term of this Agreement, *, pursuant to the
terms and conditions set forth in this Section 7. As used herein, the term
"sponsor" means that Microsoft will pay WebMD the Base Membership Fee for each
such WebMD Membership, in accordance with Section 12.4 below. If, at any time
during the Term of this Agreement, however, WebMD no longer implements a
subscription revenue model, or ceases to engage in product upsell or ecommerce
transactions, Microsoft and WebMD will make a commensurate modification to the
obligation set forth in this Section 7.1, which modification shall take into
consideration the loss of these revenue streams and Microsoft's ability to
recoup amounts paid hereunder, provided that in no circumstances shall
Microsoft's obligation set forth in this Section 7.1 be increased beyond the
five (5) million WebMD Membership Months contemplated herein.
7.2 DISTRIBUTION PLAN. The parties agree to cooperate in good faith
to develop a mutually agreed upon plan for promoting, offering, and distributing
the Microsoft-sponsored WebMD Memberships ("DISTRIBUTION PLAN"). Notwithstanding
Section 7.1, no Microsoft-sponsored WebMD Memberships shall be offered under
this Agreement until the parties have agreed upon the Distribution Plan. The
Distribution Plan will include, among other elements, the following:
(a) estimates of the number of Microsoft-sponsored WebMD
Memberships to be in effect on a quarterly basis during the Term of this
Agreement, and steps to be taken by WebMD to promote active usage of the
Medical Professionals Section by End User Members and potential End User
Members;
(b) in any given year during the first three years of the
Term (including without limitation the calendar year 2000), no more than
* shall be provided;
(c) all promotions and offerings of Microsoft-sponsored
WebMD Memberships shall require a minimum twelve (12) month
subscription;
(d) if an End User Member with a Microsoft-sponsored WebMD
Membership fails to access the Medical Professionals Section at least
once every four (4) months, then such End User Member's WebMD Membership
shall no longer qualify as a Microsoft-sponsored WebMD Membership and
Microsoft shall no longer be required to sponsor such End User Member's
Membership even if WebMD allows the End User Member to continue to
access the Medical Professionals Section;
(e) Microsoft shall be entitled to offer Microsoft-sponsored
WebMD Memberships, directly or indirectly through third parties, to End
User Members; and
(f) for each End User Member of a Microsoft-sponsored WebMD
Membership, a plan for WebMD to devote at least * on training on the use
of the Medical Professionals Section.
7.3 WARRANT AGREEMENT. Notwithstanding the foregoing, in the event
that the agreement regarding the issuance of certain warrants from WebMD to
Microsoft (which agreement is under final negotiation by the parties as of May
3, 1999) ("WARRANT AGREEMENT") is not executed by the parties within ten (10)
days of the execution of this Agreement, then, at Microsoft's option, the
provisions of this Section 7 and the provisions in Section 12.4 shall be null
and void and neither party shall have any further obligation or liability under
such Sections.
8. MICROSOFT TRAINING AND PROMOTION OF WEBMD SERVICE
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8.1 INTERNAL MICROSOFT TRAINING. Microsoft shall use reasonable
efforts to promote the functionality offered by the Medical Professionals
Section of the WebMD Site to those portions of Microsoft's sales and marketing
force that specifically target healthcare customers or Microsoft independent
software vendors that create software specifically designed for healthcare
customers using Microsoft products.
8.2 MARKETING PLAN. The parties agree to cooperate in good faith to
develop a mutually agreed upon plan for promoting the WebMD Site and related
services ("MARKETING PLAN"). The Marketing Plan will include, among other
elements, the following:
(a) Microsoft will use reasonable efforts to jointly call,
with WebMD's sales force, Microsoft's fifty (50) largest enterprise
customers (by headcount), as appropriate, for the purposes of promoting
a WebMD/MSN solution as an intranet application, as soon as practicable
given product development and planning considerations;
(b) Microsoft will include, at no charge to WebMD, WebMD
banners, as approved by Microsoft, in the printed version of the Medical
Industry Directory and feature WebMD on the
xxx.xxxxxxxxx.xxx/xxxxxxxx/xxxxxx web site, subject to Microsoft's
standard terms, policies and editorial considerations applicable to
third party banners and features;
(c) Microsoft will use reasonable efforts to assist WebMD in
submitting editorial content to the editors of Windows in Healthcare
magazine; and
(d) Microsoft and WebMD, together with such other Microsoft
healthcare channel partners as Microsoft and WebMD mutually agree upon,
will commit to have joint booth space at mutually acceptable strategic
Microsoft Partner Pavilions at selected healthcare tradeshows sponsored
by Microsoft or where Microsoft has a significant presence. Examples of
potential tradeshows include HIMSS, NMHCC, MGMA, and the Windows on
Healthcare Conference.
9. PROPRIETARY RIGHTS
The parties agree that except as expressly licensed to WebMD in this
Agreement or a separate license agreement, Microsoft, WebTV, and MSNBC,
respectively, shall retain all right, title, and interest in any and all
materials delivered by Microsoft, WebTV and MSNBC to WebMD pursuant to this
Agreement. The parties further agree that except as expressly licensed to
Microsoft, WebTV, and MSNBC in this Agreement or a separate license agreement,
WebMD and/or its suppliers shall retain all right, title and interest in and to
the WebMD Content (as defined in Section 14.1 below). No party shall have any
rights to any materials, content, feature or technology, etc. provided by the
other party hereunder except as specifically provided in this Agreement and
shall not alter, modify, copy, edit, format, translate, create derivative works
of or otherwise use any materials, content, feature or technology, etc. provided
by the other party except as explicitly provided herein or approved in advance
in writing by the other party. If any parties agree to jointly develop any
content, materials, services, technology, features or otherwise, ownership of
such development shall be detailed in a separate agreement prior to the start of
any development.
10. CONFIDENTIALITY
10.1 Microsoft, WebTV, MSNBC, and WebTV acknowledge and agree that
the terms and conditions of the Microsoft Corporation Non-Disclosure Agreement
dated as of even date herewith ("NDA"), attached hereto as Exhibit H, are
incorporated into this Agreement and that all of the terms of this Agreement
(including but not limited to its existence) and all discussions and
negotiations related thereto are considered Confidential Information as defined
in the NDA. In the event that any of the incorporated terms of the NDA are
inconsistent with or conflict with this Agreement, then the terms of this
Agreement shall control.
10.2 Each Party may disclose the terms and conditions of this
Agreement to its employees, affiliates and its immediate legal and financial
consultants on a need to know basis as required in the ordinary course of that
Party's business, provided that such employees, affiliates and/or legal and/or
financial consultants agree in writing in advance of disclosure to be bound by
this Section 11, and may disclose Confidential Information as required by
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THE OMITTED PORTIONS.
21
government or judicial order, provided each Party gives the other Party prompt
notice of such order and complies with any protective order (or equivalent)
imposed on such disclosure. Further, the parties acknowledge that this
Agreement, or portions thereof, may be required under applicable law to be
disclosed, as part of or an exhibit to a party's required public disclosure
documents. If any party is advised by its legal counsel that such disclosure is
required, it will notify the other in writing and the parties will jointly seek
confidential treatment of this Agreement to the maximum extent reasonably
possible, in documents approved by both parties and filed with the applicable
governmental or regulatory authorities. The parties may disclose Aggregate
Information subject to any User-initiated or other prohibition contemplated
under Section 2.6. The parties may disclose any Personal Information as
permitted by the User to whom it pertains, subject to Section 2.6.
10.3 Each Party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure or use of Confidential Information
and that each Party may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent
jurisdiction.
11. LICENSES
11.1 BY MICROSOFT/MSNBC.
(a) TRADEMARK LICENSE.
(i) Microsoft hereby grants to WebMD a
non-exclusive, non-transferable, personal license to use the
Microsoft MSN logos as provided by Microsoft under this
Agreement for use as part of the Network Frameworks header and
footer (the "MSN Logos"), and any other Microsoft trademark or
logo as may be provided by written notice from Microsoft for use
under this Agreement (the Microsoft Marks"), solely in
connection with the Health Channel and in accordance with the
terms of this Agreement, including the use specifications in
Exhibit G. Except as provided in this Trademark License, this
Agreement does not grant WebMD any right, title, interest, or
license in or to any of Microsoft's names, logos, trade dress,
designs, or other trademarks. Unless otherwise provided herein
or agreed upon by the parties, WebMD's use shall be mutually
approved in advance.
(ii) WebMD acknowledges, as between WebMD and
Microsoft, Microsoft's sole ownership of the MSN Logos and
Microsoft Marks worldwide and all associated goodwill. WebMD's
use of the MSN Logos and Microsoft Marks, as between the
parties, shall inure solely to the benefit of Microsoft. WebMD
hereby assigns and shall assign in the future to Microsoft all
rights it may acquire by operation of law or otherwise in the
MSN Logos and Microsoft Marks, including all applications or
registrations therefore, along with the goodwill associated
therewith.
(iii) WebMD shall fully correct and remedy any
deficiencies in its use of the MSN Logos, Microsoft Marks and/or
the quality of the Health Channel where the MSN Logos or
Microsoft Marks appear, upon reasonable notice from Microsoft.
(iv) Microsoft shall have the sole right to and in
its sole discretion may commence, prosecute or defend, and
control any action concerning the MSN Logos or Microsoft Marks.
WebMD shall not during the Term of this Agreement contest the
validity of, by act or omission jeopardize, or take any action
inconsistent with, Microsoft's rights or goodwill in the MSN
Logos or Microsoft Marks in any country, including attempted
registration of the MSN Logos or Microsoft Marks, or use or
attempted registration of any xxxx confusingly similar thereto.
(b) DISTRIBUTION OF THE MSN INTERNET TECHNOLOGIES. Microsoft
grants to WebMD a limited, non-exclusive, non-transferable, royalty-free
license to use, copy, execute, display, perform, and distribute the
object code version of the client software ("Client Software"), if any,
for each MSN Internet Service solely to provide such Client Software to
end-users in conjunction with such end user's use of each respective MSN
Internet Service from within the Health Channel and WebMD Site; provided
that any
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inconsistency between this Section 11.1(b) and any license grant
specifically contained in any Exhibit or any documentation provided with
any Client Software shall be resolved in favor of such Exhibit or
documentation. The following restrictions apply to the license granted
in the preceding paragraph:
(i) WebMD shall not use the Client Software for any
purpose other than as set forth in this Agreement.
(ii) WebMD shall not rent, lease, sell, sublicense,
assign, or otherwise transfer the Client Software.
(iii) WebMD may not reverse engineer, decompile or
disassemble any Client Software or any components thereof.
(iv) WebMD may not distribute any Client Software on
a stand-alone basis, e.g., other than in conjunction with the
Health Channel and/or the WebMD Site.
(v) WebMD shall maintain and not alter or remove any
copyright, trademark, and other protective notices contained in
the Client Software.
(vi) WebMD's distribution of the Client Software
shall be pursuant to a license agreement that shall include: (A)
a license grant with a statement of ownership consistent with
the terms of this Agreement; (B) a prohibition against reverse
engineering, decompiling and disassembly of code; (C) a
disclaimer of all express and implied warranties and conditions;
(D) a disclaimer of direct, indirect, consequential, incidental,
or special damages on behalf of WebMD's suppliers; (D) the U.S.
Government restricted rights clause as provided herein and (E) a
prohibition against further redistribution of the Client
Software by end users.
All rights not expressly granted herein are reserved by
Microsoft. Microsoft and its suppliers shall retain title and all
ownership rights to the Client Software.
(c) DISTRIBUTION OF MSNBC CONTENT. MSNBC licenses to WebMD
solely such rights as are necessary for WebMD to incorporate the MSNBC
content into, and use MSNBC content as part of the Health Channel
pursuant to Section 2.1(e) above, and solely in accordance with MSNBC's
specific instructions with regard to any specific content. All rights
not expressly granted herein are reserved by MSNBC. MSNBC and its
suppliers shall retain title and all ownership rights to the MSNBC
content.
(d) WEBTV TRADEMARK LICENSE. In accordance with the
development, hosting, and maintenance of a WebTV Health Channel pursuant
to Section 3.1(a) above, WebTV and WebMD shall enter into a separate
agreement regarding any use by WebMD of any WebTV trademarks on or in
association with such WebTV Health Channel, as the parties may mutually
agree.
11.2 BY WEBMD.
(a) TRADEMARK LICENSE.
(i) WebMD hereby grants to Microsoft, MSNBC, and
WebTV a non-exclusive, non-transferable, personal license to use
the WebMD logos (the "WebMD Logos") attached hereto as Exhibit
I, and any other WebMD trademark or logo as may be provided by
written notice from WebMD for use under this Agreement (the
"WebMD Marks"), solely in connection with the Health Channel,
WebTV Health Channel, MSNBC Health Section, and Microsoft's
distribution of WebMD Offerings and in accordance with the terms
of this Agreement. Except as provided in this Trademark License,
this Agreement does not grant Microsoft any right, title,
interest, or license in or to any of WebMD's names, logos, trade
dress, designs, or other trademarks. Unless
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otherwise provided herein or agreed upon by the parties,
Microsoft's use shall be mutually approved in advance.
(ii) Microsoft, WebTV and MSNBC acknowledge, as
between Microsoft, WebTV, MSNBC and WebMD only, WebMD's sole
ownership of the WebMD Logos and WebMD Marks worldwide and all
associated goodwill. Microsoft's, WebTV's, and MSNBC's use of
the WebMD Logos and WebMD Marks, as between the parties, shall
inure solely to the benefit of WebMD. Microsoft, WebTV and MSNBC
hereby assign and shall assign in the future to WebMD all rights
they may acquire by operation of law or otherwise in the WebMD
Logos and WebMD Marks, including all applications or
registrations therefore, along with the goodwill associated
therewith.
(iii) Microsoft, WebTV, and MSNBC shall fully correct
and remedy any deficiencies in their respective use of the WebMD
Logos and WebMD Marks and/or the quality of the Health Channel,
WebTV Health Channel, or MSNBC Health Channel (respectively) or
co-branded offerings that incorporate all or portions of the
Healthcare Professionals Section (with regard to Microsoft)
where the WebMD Logos and/or WebMD Marks appear, upon reasonable
notice from WebMD.
(iv) WebMD shall have the sole right to and in its
sole discretion may commence, prosecute or defend, and control
any action concerning the WebMD Logos and WebMD Marks. Neither
Microsoft, WebTV or MSNBC shall during the Term of this
Agreement contest the validity of, by act or omission
jeopardize, or take any action inconsistent with, WebMD's rights
or goodwill in the WebMD Logos or WebMD Marks in any country,
including attempted registration of the WebMD Logos or WebMD
Marks, or use or attempted registration of any xxxx confusingly
similar thereto.
(b) DISTRIBUTION OF THE HEALTH CHANNEL. Except as prevented
by any contracts between WebMD and third parties existing as of the
Execution Date, WebMD licenses to Microsoft, MSNBC and WebTV all such
rights as are necessary to permit each of them, on a worldwide basis, to
use, copy, modify (subject to the terms of this Agreement), translate,
execute, display, perform, distribute, transmit, broadcast in any
fashion, through any means, to any party, as part of the MSN Site,
WebTV, the MSNBC Site or other similar Microsoft, WebTV or MSNBC
offering (e.g., on a portable device), the Health Channel, including,
but not limited to all content, features, technologies, materials,
components, branding, and other parts thereof and including but not
limited to by way of Microsoft, WebTV, and/or MSNBC hosting the Health
Channel on servers owned or designated by Microsoft, WebTV, and/or
MSNBC. For avoidance of doubt, Microsoft Revenue shall include
recognized net revenue earned and billed during the Term of this
Agreement that is received by Microsoft, WebTV and MSNBC from
Advertising on similar Microsoft, WebTV or MSNBC offerings (as
referenced above) that incorporate the Health Channel pursuant to the
terms of this Section 11.2(b). Notwithstanding the foregoing, within
thirty (30) days of the Execution Date, WebMD shall provide Microsoft,
MSNBC and WebTV with a list of all content, features, technologies,
materials, components, branding, and other parts on the WebMD Site and
Health Channel for which WebMD, pursuant to agreements in effect as of
the Execution Date, cannot provide the foregoing rights ("Excluded
Content"). WebMD shall use best efforts to, within one year of the
Execution Date, either obtain comparable replacement content for such
Excluded Content, or to otherwise obtain the necessary rights so that
WebMD can grant Microsoft, MSNBC and WebTV the foregoing rights to such
Excluded Content.
(c) DISTRIBUTION OF MEDICAL PROFESSIONALS SECTION. During
the Term of this Agreement, WebMD shall not, directly or indirectly, *
WebMD Offering (as defined below) (i) to or in conjunction with * or
(ii) that contain *. During the Term of this Agreement, if WebMD,
directly or indirectly, * WebMD Offering (i) to or in conjunction with *
or (ii) that contain * then WebMD shall * in such WebMD Offering. WebMD
shall keep Microsoft reasonably informed regarding all WebMD Offerings
planned or under development. For the purposes of this Agreement, "WEBMD
OFFERING" mean any co-branded or third party-branded Internet, intranet,
broadcast or other electronic offering of health-related content,
23
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
24
features, services, or technology that incorporates all or portions of
the Medical Professionals Section. In addition, WebMD hereby licenses to
Microsoft all such rights as are necessary to permit Microsoft to use,
copy, execute, display, perform, distribute, transmit, and/or broadcast
in any fashion, through any means, to any party, WebMD Offerings,
including upon mutual agreement of the parties, distribution by
Microsoft or its licensees hosting such WebMD Offerings on servers owned
or designated by Microsoft or its licensees.
12. PAYMENTS
In addition to payments required elsewhere in this Agreement and under
the MCS Agreement, WebMD agrees to pay Microsoft the amounts set forth in this
Section 12.
12.1 ADVANCE PAYMENT FROM WEBMD TO MICROSOFT.
(a) YEARS 1 TO 5. In consideration for the rights granted
hereunder, WebMD hereby agrees to pay Microsoft the following
non-refundable yearly sums to be paid in equal quarterly installments
within each Year, with the first installment due on the Effective Date
(or the appropriate anniversary thereof) and subsequent installments due
each ninety days thereafter for the remainder of the Term until paid:
(i) In Year 1: a total of * ("First Year Fee") in *;
(ii) In Year 2: a total of * ("Second Year Fee") in
*;
(iii) In Year 3: a total of * ("Third Year Fee") in *;
(iv) In Year 4: a total of * ("Fourth Year Fee") in
*;
(v) In Year 5: a total of * ("Fifth Year Fee") in *.
(vi) Notwithstanding the foregoing, in the event an
agreement providing for an investment by Microsoft of a minimum
of One Hundred Million Dollars ($100,000,000) in WebMD
("Investment Agreement") is not executed by the parties on the
Execution Date of this Agreement, then, at WebMD's option, the
first and second installments due under this Section 12.1(a),
will be due on the earlier of the occurrence of any of the
following:
(1) The execution by the parties of the
Investment Agreement; or
(2) WebMD's closing of an initial offering
to the public of its common stock pursuant to a
registration statement effective under the Securities
Act of 1933, as amended ("IPO") or the closing of any
other private or public financing by WebMD; or
(3) Any transaction under which there is a
change in control of WebMD, excluding the acquisition of
WebMD by Healtheon Corporation but otherwise including
without limitation (a) a merger or any other combination
of WebMD with another party where the shareholders of
WebMD prior to such merger or combination own less than
sixty-five percent (65%) of the merged or combined
entity after such merger or combination; (b) any
transaction or series of transactions whereby a third
party acquires direct or indirect power to control the
management and policies of WebMD, as applicable, whether
through the acquisition of voting securities, by
contract, or otherwise; (c) the sale or other transfer
of any part of the WebMD Site or any other substantial
portion of WebMD assets (whether in a single transaction
or series of transactions), subject to Section 18.3
below.
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
25
If WebMD delays payment of the first and second installments in
accordance with this Section 12.1(a)(vi), then Microsoft may in
its discretion delay payment of the First Year Guarantee and
Second Year Guarantee (as defined below) for an equal period.
(b) ADVANCE PAYMENT FOR EXTENDED TERM/PAYMENTS FROM
MICROSOFT. In the event that Microsoft elects to extend this Agreement
pursuant to Section 13.2 below, WebMD hereby agrees to pay Microsoft the
following non-refundable yearly sums to be paid in equal quarterly
installments within each Year, with the first installment due on the
appropriate anniversary of the Effective Date and subsequent
installments due each ninety days thereafter for the remainder of the
Extended Term until paid:
(i) In Year 6: a total of * ("Sixth Year Fee"), in *
installments;
(ii) In Year 7: a total of * ("Seventh Year Fee"),
in *.
12.2 MICROSOFT REPORTS AND ADDITIONAL PAYMENTS. Within forty five
(45) days following the end of each quarter of each Year (or as may be otherwise
mutually agreed between the parties to satisfy WebMD's SEC reporting
requirements), Microsoft will submit to WebMD a written report detailing
Microsoft's Revenues for the preceding fiscal quarter ("Microsoft Revenue
Reports"). In consideration for the rights granted by WebMD in the Warrant
Agreement, Microsoft agrees to make the payments described below, which payments
shall be submitted contemporaneously with the Microsoft Revenue Report for the
last quarter of each Year, as appropriate.
(a) PAYMENTS BY MICROSOFT TO WEBMD IN YEARS 1 TO 5.
(i) During Year 1 of this Agreement, Microsoft
agrees to pay WebMD * of the Microsoft Revenues, until such time
as WebMD has received a total amount equal to the First Year
Fee, at which time Microsoft agrees to pay WebMD * of the
Microsoft Revenues as detailed in the Year 1 Revenue Reports for
the remainder of Year 1; provided that if *;
(ii) During Year 2 of this Agreement, Microsoft
agrees to pay WebMD * of the Microsoft Revenues, until such time
as WebMD has received a total amount equal to the Second Year
Fee, at which time Microsoft agrees to pay WebMD * of the
Microsoft Revenues as detailed in the Year 2 Revenue Reports for
the remainder of Year 2; provided that if *;
(iii) During the Year 3 of this Agreement, Microsoft
agrees to pay WebMD * of the Microsoft Revenues, until such time
as WebMD has received a total amount equal to the Third Year
Fee, at which time Microsoft agrees to pay WebMD * of the
Microsoft Revenues as detailed in the Year 3 Revenue Reports for
the remainder of Year 3; provided that if *;
(iv) During the Year 4 of this Agreement, Microsoft
agrees to pay WebMD * of the Microsoft Revenues, until such time
as WebMD has received a total amount equal to the Fourth Year
Fee, at which time Microsoft agrees to pay WebMD * of the
Microsoft Revenues as detailed in the Year 4 Revenue Reports for
the remainder of Year 4; provided that if *;
(v) During the Year 5 of this Agreement, Microsoft
agrees to pay WebMD * of the Microsoft Revenues, until such time
as WebMD has received a total amount equal to the Fifth Year
Fee, at which time Microsoft agrees to pay WebMD * of the
Microsoft Revenues as detailed in the Year 5 Revenue Reports for
the remainder of Year 5; provided that if *.
(b) PAYMENTS BY MICROSOFT TO WEBMD IN THE EXTEND TERM.During
Year 6, if any, of the Term of this Agreement, Microsoft agrees to pay
WebMD *) of the Microsoft Revenues until such time as WebMD has received
a total amount equal to the Sixth Year Fee, at which time Microsoft
agrees to pay WebMD * of the Microsoft Revenue as detailed in the Year 6
Revenue Reports for the remainder of Year 6. During Year 7, if any, of
the Term of this Agreement, Microsoft agrees to pay WebMD * of the
Microsoft Revenues until such time as WebMD has received a total amount
equal to the Seventh Year Fee, at which time Microsoft agrees to pay
WebMD * of the Microsoft Revenue as detailed in the Year 7 Revenue
Report for the remainder of Year 7.
25
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
26
12.3 WEBMD ADDITIONAL PAYMENTS. WebMD agrees to make the following
additional payments, which payments shall be submitted within forty five (45)
days following the end of the last quarter of each Year, as appropriate: During
the each Year of the Term of this Agreement, WebMD agrees to pay Microsoft a *.
12.4 PAYMENTS FOR MICROSOFT SPONSORSHIP COMMITMENT
(a) WEBMD REPORTS AND INVOICE. On a quarterly basis, WebMD
shall provide Microsoft with a report ("WEBMD QUARTERLY REPORT") that
contains the following information, in accordance with any reporting
forms that may be provided by Microsoft:
(i) the number of Microsoft-sponsored WebMD
Memberships during the just-completed quarter
(including initial date of registration, End
User Member location, and identity of party(ies)
that assisted in the distribution of the End
User Member's Microsoft-sponsored WebMD
Membership);
(ii) the amount payable by Microsoft based upon (i)
the total number of Microsoft-sponsored WebMD
Memberships during the just-completed quarter
and (ii) the Base Membership Fee;
(iii) the total number of Microsoft-sponsored WebMD
Memberships sponsored by Microsoft since the
Effective Date; and
(iv) the amount of Promotional Payments due from
WebMD to Microsoft in accordance with Section
12.4(b) below.
WebMD shall send the WebMD Quarterly Reports and corresponding invoices
to Microsoft no later than thirty days following the end of each fiscal
quarter.
(b) PAYMENT BY MICROSOFT. Microsoft agrees to pay invoices
properly submitted in accordance with this Section 12.4 within forty
five (45) days after Microsoft's receipt of the same.
12.5 DISTRIBUTION PAYMENTS BY WEBMD. To facilitate distribution of
WebMD Memberships by Microsoft, WebMD agrees to pay * for each WebMD Membership
Month that Microsoft sponsors hereunder ("DISTRIBUTION PAYMENTS"). Such payments
shall be due, with regard to the Microsoft-sponsored WebMD Memberships in effect
during a given quarter, thirty (30) days after issuance of the WebMD Quarterly
Report for such quarter. Following written notice by Microsoft, WebMD shall
direct all or some of the Distribution Payments due hereunder to third parties
designated by Microsoft.
12.6 REVENUE SHARING FOR MEDICAL PROFESSIONALS SECTION.
(a) WEBMD ADVERTISING/SPONSORSHIP REVENUES. WebMD will pay
Microsoft * of all WebMD Advertising/Sponsorship Revenues pertaining to
or derived from the Microsoft-sponsored WebMD Memberships and
DuPont-sponsored WebMD memberships until such time as Microsoft has
recouped, through the payments contemplated by this Section 12.6(a), all
amounts paid by Microsoft to WebMD for Microsoft-sponsored WebMD
Memberships provided under this Agreement, at which point WebMD will pay
Microsoft * of all WebMD Advertising/Sponsorship Revenues pertaining to
or derived from the Microsoft-sponsored WebMD Memberships and
DuPont-sponsored WebMD memberships for the remainder of the Term of this
Agreement. *
(b) WEBMD UPSELL REVENUES. WebMD will pay Microsoft * of all
WebMD Upsell Revenues pertaining to or derived from the
Microsoft-sponsored WebMD Memberships and DuPont-
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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
27
sponsored WebMD memberships, during the Term of this Agreement. *
(c) WEBMD E-COMMERCE REVENUES. WebMD will pay Microsoft * of
all WebMD E-Commerce Revenues pertaining to or derived from the
Microsoft-sponsored WebMD Memberships and DuPont-sponsored WebMD
memberships, during the Term of this Agreement. *
(d) CALCULATION AND PAYMENTS. On a quarterly basis, WebMD
shall provide Microsoft with a written statement together with payment
for the amounts shown thereby to be due to Microsoft under this Section
12.6. Such statement shall be in a format approved by Microsoft that
details, at a minimum, (i) the aggregate WebMD Advertising/Sponsorship
Revenues, WebMD Upsell Revenues, and WebMD E-Commerce Revenues for the
just completed quarter; (ii) Microsoft's allocated portion of such
revenues; and (iii) such other information as Microsoft deems necessary
to determine the amounts payable to Microsoft under this Section 12.6
12.7 GENERAL. Receipt or acceptance by the parties of any reports
furnished pursuant to this Agreement or any sums paid hereunder shall not
preclude such party from questioning the correctness thereof at any time, up to
six (6) months after receipt of the report or payment, and in the event that any
mistake is discovered in any such report or payment, and the party making the
mistake is apprised of it, such party shall immediately rectify the mistake.
12.8 AUDITS.
(a) BY WEBMD. During the Term of this Agreement, Microsoft
agrees to keep all usual and proper records and books of account and all
usual and proper entries and other documentation relating to Microsoft
Revenue and all payments to be made by Microsoft hereunder. During the
Term and for a period of six (6) months following the expiration or
termination of this Agreement, WebMD shall have the right to cause an
audit and/or inspection to be made of such records of Microsoft in order
to verify statements issued by Microsoft and Microsoft's compliance with
the terms of this Agreement. Any such audit shall be conducted by an
independent certified public accountant selected by WebMD (other than on
a contingent fee basis) and reasonably acceptable to Microsoft. Any
audit and/or inspection shall be conducted during regular business hours
at Microsoft's facilities upon at least thirty (30) days prior written
notice. Such audits shall be made no more often than once every twelve
(12) months.
(b) BY MICROSOFT. During the Term of this Agreement, WebMD
agrees to keep all usual and proper records and books of account and all
usual and proper entries and other documentation relating to the WebMD
Quarterly Reports and all user and other reports submitted or to be
submitted by WebMD hereunder. During the Term and for a period of six
(6) months following the expiration or termination of this Agreement,
Microsoft shall have the right to cause an audit and/or inspection to be
made of such records of WebMD in order to verify statements issued by
WebMD and WebMD's compliance with the terms of this Agreement. Any such
audit shall be conducted by an independent certified public accountant
selected by Microsoft (other than on a contingent fee basis) and
reasonably acceptable to WebMD. Any audit and/or inspection shall be
conducted during regular business hours at WebMD's facilities upon at
least thirty (30) days prior written notice. Such audits shall be made
no more often than once every twelve (12) months.
12.9 COSTS. Except as expressly provided herein, all costs incurred
by any party in fulfilling any of its obligations under this Agreement shall be
borne by that party, without reimbursement from the other party.
27
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
28
13. TERM/DEFAULT/TERMINATION
13.1 TERM. This Agreement shall commence on the Effective Date and
continue, except as provided in Section 3.1(b)(ix) above, for a period of five
(5) years following the earlier of (a) the thirtieth day following the Effective
Date or (b) the date on which the transition page (referenced in Section 2.1(a))
is publicly available, unless earlier terminated or extended as provided in this
Section 13 (the "Term").
13.2 RENEWAL. The Term of this Agreement can be extended by Microsoft
in its sole discretion for successive additional periods of one (1) year each
("Extended Term") pursuant to the same terms and conditions set forth herein. To
exercise the foregoing renewal option, Microsoft shall provide WebMD with
written notice of same at least ninety (90) days prior to the expiration of the
original Term of this Agreement.
13.3 TERMINATION FOR CAUSE
(a) BY MICROSOFT/WEBMD. In addition to any other rights
and/or remedies that such party may have under the circumstances, all of
which are expressly reserved, and except as expressly provided in
Section 13.3(b) below, Microsoft and WebMD may terminate this Agreement
at any time if:
(i) the other party (i.e., Microsoft or WebMD) is in
material breach of any warranty, representation, term, condition
or covenant of this Agreement, other than those contained in
Section 10, and fails to cure that breach within forty-five (45)
days after written notice thereof; or
(ii) The other party is in material breach of Section
10; or
(iii) the other party becomes insolvent or makes any
assignment for the benefit of creditors or similar transfer
evidencing insolvency; or suffers or permits the commencement of
any form of insolvency or receivership proceeding; or has any
petition under any bankruptcy law filed against it, which
petition is not dismissed within sixty (60) days of such filing;
or has a trustee or receiver appointed for its business or
assets or any part thereof.
(b) BY WEBTV, MSNBC, WEBMD.
(i) Notwithstanding any other provision of this
Agreement, and in addition to any other rights and/or remedies
that such party may have under the circumstances, WebMD shall be
entitled to terminate this Agreement solely with respect to the
WebTV Health Channel, at any time if WebTV is in material breach
of any warranty, representation, term, condition or covenant
made by WebTV under this Agreement, other than those contained
in Section 10, and fails to cure that breach within forty-five
(45) days after written notice thereof, or is in material breach
of Section 10. Further, WebMD shall be entitled to terminate
this Agreement solely with respect to the MSNBC Health Section,
at any time if MSNBC is in material breach of any warranty,
representation, term, condition or covenant made by MSNBC under
this Agreement, other than those contained in Section 10, and
fails to cure that breach within forty-five (45) days after
written notice thereof, or is in material breach of Section 10.
(ii) Correspondingly, in addition to any other rights
and/or remedies that such party may have under the
circumstances, WebTV shall be entitled to terminate this
Agreement solely with respect to the WebTV Health Channel, at
any time if WebMD is in material breach of any warranty,
representation, term, condition or covenant made by WebMD under
this Agreement solely with regard to the WebTV Health Channel,
other than those contained in Section 10, and fails to cure that
breach within forty-five (45) days after written notice thereof,
or is in material breach of Section 10 (with regard to WebTV
confidential information), and neither MSNBC nor
28
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
29
Microsoft shall have a right of termination with regard to
any such breach. Further, in addition to any other rights and/or
remedies that such party may have under the circumstances, MSNBC
shall be entitled to terminate this Agreement solely with
respect to the MSNBC Health Section, at any time if WebMD is in
material breach of any warranty, representation, term, condition
or covenant made by WebMD under this Agreement solely with
regard to the MSNBC Health Section, other than those contained
in Section 10, and fails to cure that breach within forty-five
(45) days after written notice thereof, or is in material breach
of Section 10 (with regard to MSNBC confidential information),
and neither WebTV nor Microsoft shall have a right of
termination with regard to any such breach. For purposes of
clarification, nothing herein shall limit Microsoft's right of
termination under Section 3.3(a) above with regard to any
material breach by WebMD that affects more than the WebTV Health
Channel or the MSNBC Health Section.
(c) SURVIVAL. Termination under Sections 13.3(a)(i)-(iii),
and 13(b) shall be effective immediately upon written notice. In the
event of termination hereunder, the following sections shall survive:
Section 2.6 (as appropriate as provided therein), the first sentence of
Section 4.3, Sections 9, 10, 12.8, 13.4, 14, 15, 18.2, 18.4, and 18.5.
13.4 EFFECT OF TERMINATION.
(a) Upon termination, and subject to Section 13.3(b) above,
each Party shall, at the other Party's direction, return or certify
destruction of Confidential Information of such other Party. No Party
shall be liable to the other for damages of any sort resulting solely
from terminating this Agreement in accordance with its terms. If
Microsoft terminates this Agreement pursuant to Section 13.3 on any date
that is more than ninety (90) days after the Effective Date, then WebMD
shall pay Microsoft all sums due and owing as of the date of
termination, and further shall pay Microsoft two additional quarterly
installments on the Advance Payments set forth in Section 12.1(a) or
12.1(b) (whichever section is applicable as of the date of termination).
If WebMD terminates this Agreement pursuant to Section 13.3 on any date
that is more than ninety (90) days after the Effective Date, then
Microsoft shall pay WebMD all sums due and owing as of the date of
termination, and further shall pay WebMD an amount equal to *
immediately preceding the quarter in which the termination occurs * .
(b) Upon expiration or termination of this Agreement, each
party shall provide reasonable assistance to the other for such
reasonable time and upon such terms and conditions as shall be mutually
agreed upon in order to assure an orderly transition and wind down in
such a manner as shall minimize disruption to the Users. The goal of the
parties is to ensure a smooth and seamless transition for the user to
maintain a high level of customer satisfaction. Subject to the
foregoing, following expiration or termination of this Agreement, WebMD
shall immediately provide Microsoft, WebTV, and MSNBC with all User
Information WebMD collected prior to the expiration and termination
which WebMD is required to provide under Sections 2.6 and 3.1(a) and (b)
above. To the extent such rights have been or are obtained from User and
subject to Section 2.6, each party may retain and continue to use all
User Information in its possession following the expiration or
termination of the Agreement.
14. WARRANTIES AND INDEMNIFICATION.
14.1 WEBMD WARRANTIES. WebMD warrants and represents that: (i) it has
sufficient authority to enter into this Agreement and to grant the rights set
forth herein; (ii) it has not previously and will not grant any rights to any
third party that are inconsistent with the rights granted to Microsoft, MSNBC
and/or WebTV herein; (iii) all materials delivered by WebMD to Microsoft and/or
included in the Health Channel pursuant to this Agreement, excluding content
provided by Microsoft (directly or through a third party) or MSNBC and used in
accordance with their instructions ("WebMD Content") are owned or licensed by
WebMD and do not infringe the copyrights, trademarks, service marks or any other
personal or proprietary right of any third party; (iv) to the best of WebMD's
knowledge after reasonable inquiry, the WebMD Site and Health Channel and all
actions occurring on the WebMD
29
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
30
Site and Health Channel are in compliance with all applicable laws, including,
but not limited to laws governing confidential health care information (i.e.,
the Health Insurance Portability and Accountability Act of 1996 (HIPAA)); and
(v) the Health Channel and all WebMD Content contained therein comply with the
Specifications; (vi) WebMD will not upload or permit any upload of any messages,
data, images or programs, excluding those provided to WebMD by Microsoft and
uploaded in accordance with all Microsoft's directions, to the Health Channel or
any Microsoft property or equipment, that would violate the property rights of
others, including unauthorized copyrighted text, images, programs or trade
secrets or other confidential and/or proprietary information, or trademarks or
service marks used in an infringing fashion; (vii) the WebMD Content, to the
best of WebMD's knowledge after reasonable inquiry, is factually accurate and
does not contain any information, instruction or formula that might be injurious
to anyone's physical well-being, and that it does not, and its use by Microsoft
as permitted in this Agreement will not, defame or disparage any third party;
(viii) WebMD shall be a member in good standing in the TRUSToE privacy program
by the earlier of the Effective Date or the availability of the transition page
described in Section 2.1(a) above, and shall remain such or be a member in good
standing of another industry-recognized online privacy organization during the
Term, WebMD shall adhere to information gathering, dissemination, privacy
protection and other practices specified in the TRUSToE license agreement
available at xxxx://xxx.xxxxxx.xxx, as such agreement may be amended from time
to time or such other organization's license, and with respect to the Health
Channel, WebMD's policy program shall be consistent with the privacy policy
displayed to end-users as part of the template; and (ix) WebMD has the right to
include all parts, including but not limited to content, materials and services,
and excluding Advertising, of the WebMD Consumer Site in the Health Channel and
the right to grant to Microsoft all rights granted by WebMD to Microsoft under
this Agreement, subject only to contracts in existence as of the Execution Date
which create the limitations set forth in Exhibit __ hereto.
14.2 MICROSOFT, MSNBC AND WEBTV WARRANTIES. Microsoft warrants and
represents that: (i) it has sufficient authority to enter into this Agreement,
(ii) all materials delivered by Microsoft to WebMD pursuant to this Agreement
(excluding any trademarks and logos) do not infringe the copyrights, trademarks,
service marks or any other personal or proprietary right of any third party;
(iii) to the best of its knowledge after reasonable inquiry, MSN and all actions
occurring on the foregoing are in compliance with all applicable laws; and (iv)
Microsoft is a member in good standing in the TRUSToE privacy program, and shall
remain such or be a member in good standing of another industry-recognized
online privacy organization during the Term of this Agreement, and Microsoft
shall adhere to information gathering, dissemination, privacy protection and
other practices specified in the TRUSToE license agreement available at
xxxx://xxx.xxxxxx.xxx, as such agreement may be amended from time to time or
such other organization's license. MSNBC warrants and represents that it has
sufficient authority to enter into this Agreement. WebTV warrants and represents
that it has sufficient authority to enter into this Agreement.
14.3 INDEMNIFICATION BY WEBMD. WebMD will indemnify Microsoft, MSNBC
and WebTV from and against any loss, claim, liability, damage, action or cause
of action (including, without limitation, reasonable attorneys' fees) brought
against Microsoft by a third party and arising from or related to (a) the WebMD
Content; (b) any materials or data provided by WebMD or at WebMD's direction to
Microsoft; (c) any act or omission which if true would be a breach by WebMD of
this Agreement; (d) any claim that the WebMD Site or Health Channel, or any
action occurring on the WebMD Site or Health Channel, violates any applicable
laws; (e) any claim that WebMD Content on the Health Channel is not factually
accurate or contains information, instructions or formulas that are injurious to
person's physical well-being, or defame or disparage a third party; (f) any
information subject to HIPAA regulation or (g) the Medical Professionals
Section; provided that Microsoft cooperates as set forth in Section 14.5.
Microsoft reserves the right to immediately discontinue the placement of the
Health Channel or to otherwise require the removal of any portion of the Health
Channel and/or any links to the WebMD Site as provided in this Agreement,
pending the satisfactory resolution of such matter, in the event that Microsoft
receives a claim from a third party which alleges that the Health Channel, or
any part thereof, or a section of the WebMD Site directly linked to by Microsoft
or any portion thereof or any materials delivered hereunder: (a) violates any
applicable laws, and/or (b) infringes the copyrights, trademarks, service marks
or any other proprietary right of any third party; provided that Microsoft in
good faith believes that such allegation has merit and provided that Microsoft
may only discontinue or remove the relevant portion of the Health Channel or
links impacted by or referenced in the claim.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
31
14.4 INDEMNIFICATION BY MICROSOFT. Microsoft will indemnify WebMD
from and against any loss, claim, liability, damage, action or cause of action
(including, without limitation, reasonable attorneys' fees) brought against
WebMD by a third party and arising from or related to any material contained
within the Network Framework, any materials provided by Microsoft to WebMD, or
any breach by Microsoft of the foregoing warranties, provided that WebMD
cooperates as set forth in Section 14.5. WebMD reserves the right to immediately
replace the relevant content from the Health Channel as provided in this
Agreement, pending the satisfactory resolution of such matter, in the event that
WebMD receives a claim from a third party which alleges that the Health Channel
or any portion thereof or any materials delivered hereunder: (a) violates any
applicable laws, and/or (b) infringes the copyrights, trademarks, service marks
or any other proprietary right of any third party; provided that WebMD in good
faith believes that such allegation has merit.
14.5 INDEMNIFICATION PROCESS. If any action shall be brought against
a Party (the "Claimant") in respect to which indemnity may be sought from the
another Party (the "Indemnifying Party") pursuant to the provisions of this
Section, the Claimant shall promptly notify the Indemnifying Party in writing,
specifying the nature of the action and the total monetary amount sought or
other such relief as is sought therein. The Claimant shall cooperate with the
Indemnifying Party at the Indemnifying Party's expense in all reasonable
respects in connection with the defense of any such action. The Indemnifying
Party may upon written notice to Claimant undertake to control and conduct all
proceedings or negotiations in connection therewith, assume and control the
defense thereof, and if it so undertakes, it shall also undertake all other
required steps or proceedings to settle or defend any such action, including the
employment of counsel which shall be reasonably satisfactory to Claimant, and
payment of all reasonably incurred expenses. Claimant shall have the right to
employ separate counsel to provide input into the defense, at Claimant's own
cost. The Indemnifying Party shall reimburse Claimant upon demand for any
payments made or loss suffered by it at any time after the date of tender, based
upon the judgment of any court of competent jurisdiction or pursuant to a bona
fide compromise or settlement of claims, demands, or actions, in respect to any
damages to which the foregoing relates. The Indemnifying Party shall not settle
any claim or action under this Section 14.5 on Claimant's behalf without first
obtaining Claimant's written permission, which permission shall not be
unreasonably withheld.
14.6 PRODUCTS OR SERVICES DELIVERED UNDER THE TERMS OF THIS AGREEMENT
SHALL BE SUBJECT TO THE TERMS OF THE LIMITED WARRANTY STATEMENT, IF ANY,
SPECIFIED BY THE DELIVERING PARTY FOR THE SPECIFIC PRODUCT OR SERVICE. CERTAIN
SOFTWARE PRODUCTS MAY BE PROVIDED TO THE OTHER PARTY "AS IS" WITHOUT WARRANTY OR
CONDITION OF ANY KIND, IF SO DESIGNATED BY THE LICENSOR. FOR SUCH PRODUCTS, THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF SUCH SOFTWARE IS ASSUMED BY THE
RECEIVING PARTY AND ITS CUSTOMERS AND SUBLICENSEES, IF ANY. THE WARRANTIES SET
FORTH IN SECTIONS 14.1, 14.2, AND THIS SECTION 14.6 ARE THE ONLY WARRANTIES MADE
BY THE PARTIES. EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR
REPRESENTATION EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. NO
PARTY WARRANTS THAT ACCESS TO OR USE OF THE SITES OR CHANNELS WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT ANY SOFTWARE OR SERVICES WILL MEET ANY
PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, WEBMD EXPRESSLY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY PROVIDED HEREIN, MICROSOFT HAS NOT MADE ANY EXPRESS OR IMPLIED
REPRESENTATIONS, ASSURANCES AND/OR WARRANTIES REGARDING THE NUMBER OF CLICK
THROUGHS OR WEBMD SITE WEB PAGE VIEWS WHICH MAY BE GENERATED BY THE PLACEMENT OF
LINKS HEREUNDER AND THAT WEBMD HAS NOT RELIED ON ANY STATEMENTS BY MICROSOFT OR
ANY THIRD PARTIES IN RELATION THERETO IN ENTERING INTO THIS AGREEMENT.
15. LIMITATION OF LIABILITIES
NO PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
32
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL
NOT APPLY TO ANY PARTY'S (A) ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE
RELIEF; (B) OBLIGATIONS UNDER SECTION 10 OR THE NDA; AND (C) INDEMNIFICATION
OBLIGATIONS UNDER SECTION 14.
16. NON-EXCLUSIVITY; PRESS RELEASES
16.1 Except as specifically stated herein, nothing in this Agreement
will be construed as restricting any Party's ability to acquire, license,
develop, manufacture or distribute for itself, or have others acquire, license,
develop, manufacture or distribute for itself, content, software, news, sites,
search services, search results or the like, which is the same or similar to
that contemplated by this Agreement, or to market, promote and distribute same
in addition to that contemplated by this Agreement.
16.2 No party will issue any press release or make any public
announcement(s) relating in any way whatsoever to this Agreement or the
relationship established by this Agreement without the express prior written
consent of the other party, which consent shall not be unreasonably withheld.
However, the parties acknowledge that this Agreement, or portions thereof, may
be required under applicable law to be disclosed, as part of or an exhibit to a
party's required public disclosure documents. If any party is advised by its
legal counsel that such disclosure is required, it will notify the other in
writing and the parties will jointly seek confidential treatment of this
Agreement to the maximum extent reasonably possible, in documents approved by
both parties and filed with the applicable governmental or regulatory
authorities.
17. INSURANCE
17.1 Effective with the inception and throughout the Term of this
Agreement, WebMD shall procure and maintain the following insurance coverage.
Such insurance shall be in a form and with insurers reasonably acceptable to
Microsoft, and shall comply with the following minimum requirements: Commercial
General Liability Insurance of the Occurrence Form with policy limits of not
less Three Million Dollars ($3,000,000) combined single limit each occurrence
for Bodily Injury and Property Damage combined, and Two Million Dollars
($2,000,000) Personal and Advertising Injury Limit; and
17.2 WebMD shall procure and maintain the following insurance
coverage. Such insurance shall be in a form and with insurers reasonably
acceptable to Microsoft, and shall comply with the following minimum
requirements: Errors & Omissions Liability / Professional Liability Insurance
with policy limits of not less than Four Million Dollars ($4,000,000) each claim
with a deductible of not more than $50,000.00. Such insurance shall include
coverage for infringement of proprietary rights of any third party, including
without limitation copyright and trademark infringement as related to WebMD's
performance under this Agreement. The Errors & Omissions Liability /
Professional Liability Insurance retroactive coverage date will be no later than
the Effective Date of this Agreement. Upon expiration or termination of this
Agreement, WebMD will maintain an extended reporting period providing that the
claims first made and reported to the insurance WebMD within one year after the
end of this Agreement will be deemed to have been made during the policy period.
Promptly upon execution of the Agreement, WebMD shall provide to
Microsoft proof evidencing full compliance with the insurance requirements set
forth herein. WebMD shall notify Microsoft in writing if WebMD's insurance
coverage is to be canceled or materially altered so as to not comply with the
requirements of this section with such notice to provided be no later than the
later of (i) at least thirty (30) days in advance of the cancellation or (ii)
twenty-four (24) hours after WebMD receives notice of the cancellation.
18. GENERAL PROVISIONS
18.1 INDEPENDENT CONTRACTORS. The Parties are independent contractors
with respect to each other, and nothing in this Agreement shall be construed as
creating an employer-employee relationship, a partnership, agency relationship
or a joint venture between the Parties.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
33
18.2 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York as though entered into by New York residents and to be
performed entirely within the State of New York. The parties consent to
exclusive jurisdiction and venue in the state and federal courts sitting in New
York. In any action or suit to enforce any right or remedy under this Agreement
or to interpret any provision of this Agreement, the prevailing Party shall be
entitled to recover its costs, including reasonable attorneys' fees.
18.3 ASSIGNMENT. No party may transfer, assign or sublicense this
Agreement, or any rights and/or obligations hereunder, whether by contract or by
operation of law, except with the express written consent of the other parties,
and any attempted transfer, assignment or sublicense by a party in violation of
this Section shall be void and shall constitute a material default and breach of
this Agreement. For purposes of this Agreement, an "transfer" under this Section
shall be deemed to include, without limitation, the following: (a) a merger or
any other combination of an entity with another party where the shareholders of
WebMD prior to such merger or combination own less than sixty-five percent (65%)
of the merged or combined entity after such merger or combination; (b) any
transaction or series of transactions whereby a third party acquires direct or
indirect power to control the management and policies of WebMD or Microsoft, as
applicable, whether through the acquisition of voting securities, by contract,
or otherwise; (c) the sale or other transfer of any part of the business
obligated or benefiting from this Agreement or any other substantial portion of
assets (whether in a single transaction or series of transactions), or (d) the
transfer of any rights or obligations in the course of a liquidation or other
similar reorganization of an entity. Subject to the provisions of this Section,
this Agreement shall be binding upon and inure to the benefit of each party and
their respective successors and assigns. Any transfer, assignment or sublicense
approved by a party will at a minimum require that the party to which this
Agreement, or any rights and/or obligations hereunder, is transferred, assigned
or sublicensed succeeds the transferring, assigning, or sublicensing party as to
all obligations (including the obligations set forth in this Section 18.3) of
the transferring, assigning or sublicensing party.
18.4 CONSTRUCTION. In the event that any provision of this Agreement
conflicts with governing law or if any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (i) such
provision shall be deemed to be restated to reflect as nearly as possible the
original intentions of the Parties in accordance with applicable law, and (ii)
the remaining terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect. This Agreement has been negotiated by the
Parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against any party. The section headings used in this Agreement are intended for
convenience only and shall not be deemed to affect in any manner the meaning or
intent of this Agreement or any provision hereof.
18.5 NOTICES. All notices and requests in connection with this
Agreement shall be given in writing and shall be deemed given as of the day they
are received either by messenger, delivery service, or in the United States of
America mail, postage prepaid, certified or registered, return receipt
requested, and addressed as follows:
To WebMD: To Microsoft:
--------- -------------
WebMD, Inc. Microsoft Corporation
400 The Lenox Building One Microsoft Way
3399 Peachtree Road NE Redmond, WA 98052-6399
Xxxxxxx, Xxxxxxx 00000
Phone: 000.000.0000 Phone: 000.000.0000
Fax: 000.000.0000 Fax: 000.000.0000
Attention: General Counsel Attention: Senior Business Dev't Mgr./Finance
Copy to: Chief Financial Officer Copy to: Law & Corporate Affairs, US Legal
(not effective for notice purposes) Fax: 000.000.0000
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
34
To WebMD: To Microsoft:
--------- -------------
To MSNBC: To WebTV:
MSNBC WebTV Networks, Inc.
Xxx Xxxxxxxxx Xxx 0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xx. Xxxx, XX 00000
Attention: Dir. Business Dev't Attention: V.P. Network Media Group
Phone: 000.000.0000 Phone: 000.000.0000
Fax: 000.000.0000 Fax: 000.000.0000
Copy to: Microsoft Law & Copy to: Corporate Counsel
Corporate Affairs, US Legal Fax: 000.000.0000
Fax: 000.000.0000
or to such other address as a Party may designate pursuant to this notice
provision.
18.6 EXHIBITS. The following Exhibits are part of this Agreement and
are hereby incorporated by reference:
Exhibit A-1 Health Channel Content Specifications
Exhibit A-2 Health Channel Technical Specifications
Exhibit B In Service Promotion Box
Exhibit C MSN Module
Exhibit D Logo Guidelines
Exhibit E MS Online ID Evaluation Program
Exhibit F MCS Agreement and Work Order
Exhibit G Use Specifications for the MSN Logos
Exhibit H Non-Disclosure Agreement
Exhibit I WebMD Logos
Exhibit J-1 Medical Professionals Section List #1
Exhibit J-2 Medical Professionals Section List #2
18.7 ENTIRE AGREEMENT. This Agreement shall not be effective until
signed by both Parties. This Agreement constitutes the entire agreement between
the Parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous agreements or communications. This Agreement shall not be
modified except by a written agreement dated subsequent to the date of this
Agreement and signed on behalf of WebMD and Microsoft by their respective duly
authorized representatives. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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The parties have caused this Agreement to be executed by their duly
authorized representatives as of the Effective Date.
MICROSOFT CORPORATION WEBMD, INC.
By By
------------------------------- --------------------------------------
Name (Print) Name (Print)
--------------------- ----------------------------
Title Title
---------------------------- -----------------------------------
Date Date
----------------------------- ------------------------------------
MSNBC INTERACTIVE NEWS, L.L.C WEBTV NETWORKS, INC.
(Signing solely with regard to (Signing solely with regard to
Sections 2.1, 2.3(a), (b), (e), and Sections 2.1, 2.6, 3.5, 9, 10,
(g), 2.6, 3.5, 9, 10, 11.1(c), 11.1(c)-(d), 11.2(a)-(b), 12.9, 13,
11.2(a)-(b), 12.9, 13, 14.6, 15, 16, 14.6, 15, 16, 18, Exhibit A-1
18, Exhibit A-1 paragraphs paragraphs (A)(3)-(5) and (C), and
(A)(3)-(5) and (C), and Exhibit A-2) Exhibit A-2)
By By
------------------------------- --------------------------------------
Name (Print) Name (Print)
--------------------- ----------------------------
Title Title
---------------------------- -----------------------------------
Date Date
----------------------------- ------------------------------------
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
