EXHIBIT 10.11
AGREEMENT
THIS AGREEMENT (the "Agreement"), is made and entered into as of June
1, 1999 (the "Effective Date") by and between Xxx Interactive Media, Inc.
("CIM"), with offices at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 and Cybear,
Inc. ("Provider"), with offices at 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000.
PREAMBLE
WHEREAS, CIM operates World Wide Web sites and other online and
interactive services under various domain names. In accordance with the terms of
this Agreement, CIM seeks to incorporate into certain CIM sites certain content
developed or otherwise provided by Provider, and Provider seeks to provide such
content. CIM and Provider also seek to cooperate in promoting the CIM Site and
other matters pursuant to the terms of this Agreement.
NOW, THEREFORE, for good and adequate consideration, the receipt and
sufficiency of which is hereby acknowledged, CIM and Provider (each a "Party" or
"party" and collectively the "Parties" or "parties"), intending to be legally
bound, hereby agree to the follow terms and conditions:
1. PROVISION OF CONTENT/GRANT OF LICENSE. During the term hereof, Provider
hereby agrees to provide CIM the content as described in ATTACHMENT A (attached
hereto and incorporated by reference herein) ("Provider Content") for
incorporation by CIM into those CIM web sites (each a "CIM Site" and
collectively, the "CIM Site(s)") listed on ATTACHMENT B (attached hereto and
incorporated by reference herein). During the term of this Agreement, Provider
hereby grants to CIM an exclusive, fully paid, royalty free (subject to any
payment terms, if any, set forth herein), world-wide right and license to use,
copy, store, publicly display and distribute the Provider Content, for use as
described herein and on ATTACHMENT A.
2. EXCLUSIVITY. Subject to any contrary terms, if any, set forth in ATTACHMENT A
regarding exclusivity, nothing in this Agreement shall preclude CIM from
entering into an agreement with any third party under which the third party
provides CIM services that are the same as, or similar to, the services provided
by Provider under this Agreement.
3. TERM/EXTENSION/TERMINATION.
(a) TERM. The term of this Agreement ("Term") shall commence as of the
Effective Date and shall continue for a period of twenty five (25)
months unless otherwise terminated according to the terms set
forth below under this Agreement and on ATTACHMENT A. In
recognition of CIM commencing its fulfillment of its obligations
under the Agreement prior to the Commencement Date (as defined in
ATTACHMENT A), Provider shall hereby remit to CIM certain payments
set forth under Section 6 to ATTACHMENT A.
(b) EXTENSION. During the twenty third (23rd) month of this Agreement
(i.e., April 1, 2000) Provider, in its discretion, shall maintain
the right, on an exclusive basis, to enter into good faith
negotiations with CIM to discuss any extension to the initial Term
("Renegotiation Period"). Provider must exercise the foregoing
right by delivering to CIM written notice of its intent within ten
(10) business days prior to the Renegotiation Period. In the event
the parties mutually agree to any such extension, such terms shall
be set forth in a separate agreement to be executed by the parties
on or before the expiration of this Agreement. If, however, at the
end of the Renegotiation Period the parties have failed to execute
a mutually agreed to extension to this Agreement, both parties
shall thereby be free to enter into negotiations with any third
party of their choosing.
(c) TERMINATION. In addition to any rights of termination either party
may maintain under ATTACHMENT A, either party may terminate this
Agreement and, in addition to all other rights and remedies it may
have under law or equity, be relieved of all further obligations
hereunder (except such confidentiality and indemnification
obligations set forth herein), in the event of a material breach
of the Agreement by the other party if such breach is not cured
within twenty (20) days from receipt of notice of the occurrence
and nature of such breach at the address of such breaching party
as specified herein.
(d) EFFECT OF TERMINATION. Upon the expiration, termination or
cancellation of the Agreement, CIM shall retain all right, title
and interest in and to all CIM Content (as defined in Section 6(b)
below), including any derivative works hereby created, and
Provider shall retain all right, title and interest in and to all
Provider Content provided under this Agreement. Upon the
termination, expiration or cancellation of this Agreement (the
"Termination Date"), (i) the rights and licenses granted by each
party to the other pursuant to this Agreement shall automatically
terminate, (ii) where applicable, each party shall ship to the
other, within thirty (30) days from such Termination Date, all
tangible items in its possession which are proprietary to the
other that were used in connection with this Agreement, (iii) each
party shall remove and cease to use the other party's content
(i.e., the CIM Content and the Provider Content) provided
hereunder, (iv) as soon as practicable, CIM and Provider shall
eliminate from their respective web sites (where applicable) any
marks or branding related to the other party (i.e., the Provider
Marks and the CIM Marks, respectively, each as defined herein
below), and (v) where applicable, all amounts which accrued under
this Agreement as of the Termination Date shall immediately become
due and payable. For purposes of this Agreement, the term
"derivative works" shall NOT mean to include web pages hosted by
Provider or its agent which are comprised of content
developed, created or otherwise provided by Provider and/or
Provider's licensor's.
4. USE OF PROVIDER CONTENT IN CIM SITE.
(a) USE OF PROVIDER CONTENT. Unless otherwise provided under
ATTACHMENT A, CIM shall maintain the right to incorporate Provider
Content into the CIM Site(s), at its reasonable discretion, and
shall retain editorial control over the CIM Site(s) and the use of
Provider Content in the CIM Site(s) and any areas contained
therein. In addition, CIM, in its reasonable discretion, shall
maintain the right to remove from service any given CIM Site;
PROVIDED, HOWEVER, that CIM provide Provider no fewer than thirty
(30) days' prior written notice of its intent to remove a CIM Site
from service.
(b) RIGHT TO DECLINE OR REMOVE PROVIDER CONTENT. CIM reserves the
right to remove, or not display, any of the Provider Content on
the CIM Site(s) if it: (a) is of unsatisfactory technical quality
for display on the CIM Site(s) or is not compatible with any
software or hardware used by CIM or its vendors, (b) does not
conform with CIM's standards for content on the CIM Site(s), as
may be communicated by CIM to Provider from time to time, (c) is
alleged to contain, or in CIM's reasonable judgment contains,
libelous or slanderous material, or (d) is alleged to violate, or
in CIM's reasonable judgment violates, any applicable law or the
personal or proprietary rights of any person or other entity
(including without limitation rights of copyright, trademark,
privacy or publicity).
5. DELIVERY OF PROVIDER CONTENT. Provider agrees to deliver the Provider Content
to CIM consistent with the specifications (including specifications as to manner
and media) and, where applicable, the production schedules specified herein or
on ATTACHMENT A, or as otherwise agreed upon by the parties from time to time.
The parties agree that time shall be of the essence with respect to each date
specified for the creation and delivery of the Provider Content by Provider to
CIM.
6. OWNERSHIP OF CONTENT.
(a) PROVIDER CONTENT. Nothing in this Agreement shall effect a
transfer of copyright from Provider to CIM in the Provider
Content, and, upon providing Provider Content for incorporation
into the CIM Site(s), Provider shall retain any rights of
copyright in such content that it possessed prior to providing
such content to CIM, subject only to the license granted to CIM to
use such content as described in this Agreement.
(b) CIM CONTENT. CIM shall own all rights, including all rights of
copyright, trademark, service xxxx and any other proprietary
rights in all content and materials created by CIM or its
licensors, including any derivative works created by CIM using
Provider Content as part of the CIM Site(s) (collectively, the
"CIM Content"). Notwithstanding CIM's ownership of the copyright
in such derivative works, Provider shall at all
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times retain all rights, including all rights of copyright,
trademarks and any other proprietary rights in and to any Provider
Content contained in such derivative works.
7. TRADEMARK LICENSES.
(a) PROVIDER MARKS. During the Term, Provider hereby grants CIM a
non-exclusive, royalty-free, world-wide right and license to use
its name, logos, trademarks and service marks (collectively, the
"Provider Marks") in print, audio, on-line and off-line
advertising in conjunction with any CIM Content and/or the CIM
Site, as well as within the CIM Site. CIM acknowledges and agrees
that Provider owns and otherwise has the exclusive right to use
and to license the Provider Marks and, except as expressly
provided under this Agreement, Provider shall, in each instance,
have the right to prior review and approval or disapproval of
CIM's use of the Provider Marks, such approval not to be
unnecessarily withheld or delayed.
(b) CIM MARKS. During the Term, CIM hereby grants Provider a
non-exclusive, royalty-free, world-wide right and license to use
its logos, trademarks and service marks (collectively, the "CIM
Marks") in print, audio, on-line and off-line advertising in
conjunction with the CIM Site(s) and any Provider Content.
Provider acknowledges and agrees that CIM owns and otherwise has
the exclusive right to use and to license the CIM Marks and,
except as expressly provided under this Agreement, CIM shall, in
each instance, have the right to prior review and approval or
disapproval of Provider's use of the CIM Marks, such approval not
to be unnecessarily withheld or delayed.
8. PROMOTIONAL/MARKETING EFFORTS. Provider and CIM agree to promote the CIM
Site(s) and/or the Provider Content according to the terms set forth in
ATTACHMENT A, or as otherwise agreed to by the parties from time to time. Such
promotion shall be subject to each party's prior written consent, not to be
unnecessarily withheld or delayed.
9. FINANCIAL CONSIDERATIONS/ADVERTISING.
(a) FINANCIAL CONSIDERATIONS. In consideration for CIM's services
under this Agreement, Provider shall remit to CIM the fees set
forth in ATTACHMENT A.
(b) ADVERTISING. During the term of this Agreement, CIM shall maintain
the right to sell advertising banners and/or sponsorships
(collectively, the "Ad(s)") on the CIM Site(s), including any
co-branded web pages containing the Provider Content. Unless
otherwise provided under ATTACHMENT A, CIM shall host any and all
such Ads on its servers and shall retain all revenues generated
from such sales. Any additional terms with respect to the sale of
Ads on any co-branded web pages developed by CIM or Provider
within the CIM Site(s) and/or any web site owned or controlled by
Provider (if any) shall be set forth in ATTACHMENT A.
10. OPERATION AND MAINTENANCE OF CIM SITE(S). CIM shall host or arrange for the
hosting of the CIM Site(s), the functioning of which shall be monitored 24 hours
per day, 7 days per week, 365 days per year. CIM shall provide or arrange for
the provision of service, support and maintenance on hardware and software, such
support to be provided by technical support personnel proficient in the
operation and maintenance of all hardware and software used in operation and
maintenance of the CIM Site(s).
11. EXISTING PROVIDER WEBSITE. Where applicable, during the term of this
Agreement, any existing Provider web site(s) containing similar content to the
Provider Content provided under this Agreement shall also contain a CIM branded
HTML logo(s) applicable to a given CIM Site(s), allowing web users to navigate
from such Provider web site to the Provider Content implemented on a given CIM
Site(s), or such other areas of a given CIM Site(s) as CIM reasonably deems to
be appropriate. Provider agrees that any such HTML logo(s) shall be prominently
implemented on the Provider web site(s). CIM shall provide such HTML logo(s) to
Provider according to Provider's technical specifications.
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12. STATISTICAL INFORMATION ON PROVIDER CONTENT. Where applicable according to
terms of this Agreement, and technically feasible, CIM shall provide Provider a
report of the number of impressions received by pages of the CIM Site(s)
containing Provider Content and such information and statistics as may be
reasonably requested by Provider and reasonably available for CIM to collect and
provide. Provider acknowledges that such information, if provided, shall be
deemed CIM confidential information as contemplated by the nondisclosure
provisions under this Agreement.
13. REPRESENTATIONS AND WARRANTIES.
(a) GENERALLY. Each party hereby represents and warrants that: (i) it
is a corporation duly organized and validly existing and in good
standing under the laws of the state of its incorporation; (ii) it
has full power, authority and the right to enter into this
Agreement and to perform its obligations hereunder; and (iii) it
has obtained all permits, licenses, and other governmental
authorizations and approvals required for its performance under
this Agreement.
(b) CIM WARRANTIES. CIM represents and warrants that no CIM Content
shall violate or infringe any common law or statutory right of any
person or other entity including, without limitation, any
contractual rights, U.S. proprietary rights, U.S. trademark, U.S.
service xxxx or U.S. patent rights, or any rights of privacy or
publicity, nor shall it violate any law or regulation. CIM further
represents and warrants that no CIM Content shall be unlawful or
defamatory, nor shall it contain any instructions, recipes or
formulas that, if implemented, would result in injury.
(c) PROVIDER WARRANTIES. Provider represents and warrants that it has
all the rights necessary to permit CIM to post to the Provider
Content on the web according to the terms of this Agreement, and
that no Provider Content shall violate or infringe any common law
or statutory right of any person or other entity including,
without limitation, any contractual rights, U.S. proprietary
rights, U.S. trademark, U.S. service xxxx or U.S. patent rights,
or any rights of privacy or publicity, nor shall it violate any
law or regulation. Provider further represents and warrants that
no Provider Content shall be unlawful or defamatory, nor shall it
contain any instructions, recipes or formulas that, if
implemented, would result in injury. In addition, Provider further
represents and warrants that it shall not deliver Provider Content
to CIM that Provider knows or reasonably should have known is
materially incomplete and/or materially inaccurate.
14. EXCLUSION OF CERTAIN WARRANTIES AND LIABILITIES. Any and all other
representations and warranties of any kind whatsoever, express or implied,
regarding the operation of the CIM Site(s) and the quality of the Provider
Content, or either party's performance under this Agreement, including
representations and warranties as to the operation, functionality, lack of
interruption or resources of the CIM Site(s), are expressly EXCLUDED. Without
limiting the foregoing, EACH PARTY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except for each parties'
indemnification and confidentiality obligations established under this
Agreement, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
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INDIRECT, ECONOMIC, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCURRED BY THE OTHER
PARTY, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR
LOST BUSINESS, EVEN IF THE OTHER PARTY HAS ADVISED THAT SUCH DAMAGES ARE
POSSIBLE AS A RESULT OF ANY BREACH OF WARRANTY.
15. INDEMNIFICATION. Each party hereto shall at all times indemnify, defend, and
hold harmless the other party, its parent, directors, officers, employees,
agents, successor and permitted assigns from and against any and all claims,
demands, cause of actions, damages, liabilities, costs and expenses, including,
without limitation, fees and disbursements of counsel incurred by the
indemnified party in any action or proceeding between the indemnifying party and
the indemnified party or between the indemnified party and any third party or
otherwise to the extent that it is based upon a claim that: (i) if true, would
constitute a breach of any of the indemnifying party's representations,
warranties, or agreements hereunder; (ii) arises out of the gross negligence or
willful misconduct of the indemnifying party; or (iii) arises out of the
performance and/or non performance of the indemnifying party. In claiming any
indemnification hereunder, the party claiming indemnification (the "Claimant")
shall provide the other party with written notice of any claim which the
Claimant believes falls within the scope of the foregoing sentences. The
Claimant may, at its own expense, assist in the defense if it so chooses,
provided that the other party shall control such defense and all negotiations
relative to the settlement of any such claim and further provided that any
settlement intended to bind the Claimant shall not be final without the
Claimant's written consent.
16. NON-DISCLOSURE/PUBLICITY. Neither CIM nor Provider shall disclose to any
person or entity, directly or indirectly, without the prior approval of the
other, (i) the terms of this Agreement, or (ii) any other non-public information
relating to the other party obtained by virtue of this Agreement, except on a
confidential basis to its business, legal and financial advisors or as required
to be disclosed under applicable law or by legal process; PROVIDED, HOWEVER,
that the general existence of this Agreement shall not be treated as
confidential and all press releases and other publicity concerning this
Agreement shall be jointly planned and implemented by the parties. In
furtherance of the foregoing, during the term of this Agreement, Provider shall
not, and Provider shall not permit its respective, directors, officers,
employees, agents, advisors or affiliates to, issue any press release or
otherwise make any public statement or announcement concerning this Agreement;
PROVIDED, HOWEVER, Provider may provide such information concerning this
Agreement as is required by law, regulation or court order to be furnished to a
governmental agency; provided, further, however, that, notwithstanding any other
provision of this Agreement, Provider shall consult with CIM prior to the
disclosure of any information regarding the terms of this Agreement or otherwise
relating to CIM or its business or operations in the context of any registration
statement or periodic report filed by Provider with the Securities and Exchange
Commission and, to the extent requested by CIM, Provider will use reasonable
efforts to obtain confidential treatment for the relevant portions of this
Agreement or any other disclosure that is proposed to be made in such
registration statement or periodic report.
17. FORCE MAJEURE. Neither party shall be deemed in default or otherwise liable
under this Agreement due to its inability to perform its obligations by reason
of any fire, earthquake, flood, substantial snowstorm, epidemic, accident,
explosion, casualty, strike, lockout, labor controversy, riot, civil
disturbance, act of public enemy, embargo, war, act of God, or any municipal,
county, state or national ordinance or law, or any executive, administrative or
judicial order (which order is not the result of any act or omission which would
constitute a default hereunder), or any failure or delay of any transportation,
power, or communications system or any other or similar cause beyond that
party's control (collectively, a "Force Majeure Event"). In the event a Force
Majeure Event occurs and continues for five (5) consecutive days (the "Grace
Period"), thereby preventing CIM from fulfilling its material obligations under
this Agreement, Provider shall maintain the right to suspend payment of the
Monthly Installment (as defined in ATTACHMENT A, Section 6) until such time as
CIM cures such Force Majeure Event and thereby resumes its fulfillment of such
material obligations under this Agreement. In furtherance of the foregoing
sentence, Provider shall be entitled to receive a prorated deduction from such
Monthly Installment(s) based on the number of calendar days, exceeding the Grace
Period, CIM fails to fulfill its material obligations under this Agreement.
Notwithstanding the foregoing sentences, in the event a Force Majeure Event
occurs and is not cured within thirty (30) days from its inception, the party
NOT claiming such Force Majeure Event shall maintain the right to cancel this
Agreement, whereby neither party
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shall maintain any further obligations under this Agreement except with respect
to their respective indemnification and confidentiality obligations.
18. GOVERNING LAW. This Agreement and all matters or issues related thereto
shall be governed by the laws of the State of Georgia without regard to its
choice of law rules.
19. ASSIGNMENT. Neither party shall sell, assign, mortgage or otherwise transfer
any of its rights or obligations under this Agreement without the consent of the
other party, such consent not to be unreasonably withheld, conditioned or
delayed, nor shall any of said rights or obligations be assigned or transferred
by operation of law or otherwise without such consent. In the event of any
assignment or transfer, the approved assignee shall agree to accept and abide by
all of the terms and conditions of this Agreement.
20. RELATIONSHIP OF PARTIES. Neither this Agreement nor the cooperation of the
parties contemplated herein shall be deemed or construed to create any
partnership, joint venture or agency relationship between CIM and Provider.
Neither party is, nor shall either party hold itself out to be, vested with any
power or right to bind the other party contractually or act on behalf of the
other party as a broker, agent or otherwise.
21. SEVERABILITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. In the event any provision of this Agreement is determined to
be invalid, unenforceable or otherwise illegal, such provision shall be deemed
restated, in accordance with applicable law, to reflect as nearly as possible
the original intentions of the parties, and the remainder of the Agreement shall
be in full force and effect.
22. WAIVER. No term or condition of this Agreement shall be deemed waived, and
no breach shall be deemed excused, unless such waiver or excuse is in writing
and is executed by the party against whom such waiver or excuse is claimed.
23. NOTICES. All notices hereunder shall be in writing and shall be sent by
certified mail, return receipt requested, or by overnight courier service, to
the address set forth below, or to such other addresses as may be stipulated in
writing by the parties pursuant hereto. Unless otherwise provided, notice shall
be effective on the date it is officially recorded as delivered by return
receipt or equivalent.
To CIM: Xxxxx Xxxxxx
Xxx Interactive Media, Inc.
000 Xxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to: General Counsel
Xxx Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
To Provider: [See Address above]
With a copy to: General Counsel
Andrx Corporation
0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
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24. ENTIRE AGREEMENT. This Agreement, including all Attachments, contains the
entire agreement and understanding between the parties with regard to the
subject matter hereof, and supersedes all prior and contemporaneous oral or
written agreements and representations. Any amendment of this Agreement shall be
in writing and signed by both parties.
25. SURVIVAL OF TERMINATION. The obligations of the parties under this Agreement
that by their nature would continue beyond expiration, termination or
cancellation of this Agreement (including, without limitation, Sections 3(d), 6,
13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26) shall survive any
such expiration, termination or cancellation.
26. HEADINGS. The section headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretations of
this Agreement.
28. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original and all of which taken together shall
constitute one and the same Agreement. The parties may sign facsimile copies of
this Agreement which shall each be deemed originals.
IN WITNESS WHEREOF, the parties have hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the Effective Date.
CYBEAR, INC. XXX INTERACTIVE MEDIA, INC.
By: /s/ Xxxxxx Xxxxxxx, M.D. By: /s/ J. Xxxxx Xxxxx
------------------------ ------------------------------
Name: Xxxxxx Xxxxxxx, M.D. Name: J. Xxxxx Xxxxx
------------------------ ------------------------------
Title: President & CEO Title: VP, Chief Financial Officer
------------------------ ------------------------------
Date: 6/1/99 Date: 6/2/99
------------------------ ------------------------------
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ATTACHMENT A
1. DESCRIPTION OF PROVIDER CONTENT: In furtherance of Section 1 to the
Agreement, Provider Content shall be defined as follows:
Content relating to fitness, nutrition, men's and women's health, medical
databases, breaking medical stories and frequently updated medical
features.
2. DEVELOPMENT, DELIVERY AND IMPLEMENTATION OF THE PROVIDER CONTENT. In
addition to the terms set forth in the Agreement, Provider and CIM agree
to the following terms and conditions:
a. Provider shall maintain the right, and the obligation, to implement
the Provider Content, developed by or on behalf of Provider, within a
portal real estate box (the "Portal Box," an example of which is provided
in ATTACHMENT C, for illustration purposes only). While ATTACHMENT C is
for illustration purposes only, each such Provider Portal Box shall be
developed by CIM and implemented by CIM on the upper most right-hand
corner of the Content Area (as defined below). In addition, the Portal
Box shall be implemented above-the-scroll on the homepage of the Health
Channel, as well as implemented on those Health Channel web pages
containing editorial content developed solely by a subsidiary or
affiliate owned or controlled by CIM or its parent company (e.g., the
Atlanta Journal Constitution) or web pages solely containing Provider
Content. Except for CIM's implementation of the Portal Box according to
the foregoing sentences, any implementation of the Provider Portal Box on
Health Channel web pages containing third party content shall be at CIM's
sole discretion.
b. Within each Provider Portal Box CIM shall implement a Provider HTML
logo ("Provider Logo") which shall link, at Provider's option, either to
the Provider Site or to a Co-branded Page (as defined below in this
ATTACHMENT A). Provider shall deliver to CIM the Provider Logo according
to CIM's specifications. In addition, the Provider Portal Box shall also
contain headlines that link to Provider Content. Such headlines contained
within the Provider Portal Box shall link, at Provider's option, either
to a co-branded web page ("Co-branded Page") which shall act as a bridge
between a given CIM Site(s) and the Provider Site (as defined below in
this ATTACHMENT A). CIM, at its expense, shall host and maintain each
Co-branded Page. Each such Co-branded Page shall contain a summary of
stories and/or features listed in the Provider Portal Box or as otherwise
listed on the Health Channel.
c. The parties acknowledge that each Provider Portal Box represents * of
the available real estate allocated for content, above the scroll, on all
web pages in each Health Channel within each CIM Site(s). For purposes of
this ATTACHMENT A, the term "Health Channel(s)" shall be defined as a
health related area on each of the CIM Site(s).
d. Subject to the terms of the Agreement, Provider shall maintain the
right, and the obligation, to provide additional Provider Content (the
"Additional Provider Content") which shall be implemented throughout each
Health Channel in those areas CIM designates as content areas ("Content
Areas," an example of which is provided in ATTACHMENT C for illustration
purposes only). Provider shall maintain the right, and the obligation, to
implement Additional Provider Content in * of the Content Area on each
Health Channel. Provider acknowledges that such Additional Provider
Content shall be rotated throughout the Health Channel web pages. CIM
shall reasonably determine the placement and frequency of such rotations.
Where feasible, all Additional Provider Content provided under the
Agreement shall be branded with Provider's name or another's name if
mutually agreed to. (For purposes of this ATTACHMENT A, all references to
Provider Content shall be meant to include Additional Provider Content).
e. Provider shall be solely responsible for developing, implementing,
updating and maintaining a web site (the "Provider Site") dedicated
toward providing consumers current, accurate, and comprehensive health
related materials and information. Provider agrees and acknowledges that
the Provider Content and the Provider Site shall be
* Confidential portions omitted and filed separately with the Commission.
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implemented no later than September 1, 1999 (12:00 a.m. EST) (the
"Commencement Date"), and that, on such date, the Provider Content and
the Provider Site shall be accessible to web users and shall be
functional in all material respects. In addition to any warranties set
forth under the Agreement, Provider hereby warrants and represents that,
during the term of the Agreement, it shall use commercially reasonable
efforts to ensure that the Provider Content provided under the Agreement,
as well as the Provider Site's content, look and feel, and functionality,
are comparable in quality and quantity to other prominent national online
U.S. health care information providers.
f. Subject to the terms of the Agreement, and during the term of the
Agreement, Provider shall deliver to CIM updated Provider Content at
least once per calendar week covering the following seven (7) day period,
or at least once during every twenty four (24) hour period covering the
next days' Provider Content required for implementation under the
Agreement. In addition, during the term of the Agreement, Provider shall
update the content on the Provider Site, including substantial and
material updates to the Provider Site homepage, no fewer than once during
every twenty four (24) hour period.
g. Should Provider fail to remit to CIM the Monthly Installment for July
1999 according to the terms herein, CIM, in its discretion, shall
maintain the right to terminate the Agreement upon ten (10) days prior
written notice to Provider and thereby retain the Initial Installment Fee
* (as defined in Section 6 below of this ATTACHMENT A) as its sole and
exclusive right and remedy, and in lieu of any rights it may have at law
or in equity with respect to Provider's economic obligations hereunder
and Provider's obligations to deliver content according to the terms
hereof. Notwithstanding the forgoing sentence, CIM shall at all times
maintain its rights at law or in equity with respect to Provider's breach
of Sections 13(a) and/or 13(c) of the Agreement (including CIM's right to
seek indemnification from Provider for any such breach related thereto),
and any breach by Provider of Sections 6(b), 7(b), and/or 16 of the
Agreement. The foregoing sentence shall survive any expiration,
cancellation or termination of this Agreement.
h. Except for a breach by Provider as contemplated under Section 2(g)
above, in the event Provider commits any other breach of this Agreement,
CIM, in its discretion, may terminate the Agreement according to the
terms hereof, in addition to securing any and all rights or seeking any
and all remedies it shall thereby maintain at law or in equity.
3. USE OF PROVIDER CONTENT.
a. If not currently implemented as of the Effective Date of the
Agreement, CIM will cause the implementation of a Health Channel on each
of the CIM Sites on or before the Commencement Date.
b. CIM shall implement the Provider Content in accordance with the terms
set forth in the Agreement and this ATTACHMENT A. Notwithstanding the
foregoing, the parties agree that CIM shall maintain editorial control of
the Health Channels and the CIM Sites, and shall reasonably determine,
from time to time, whether any Provider Content is inappropriate for
publication by CIM on a given Health Channel. If such a determination is
made, CIM shall promptly advise Provider of the Provider Content CIM
believes is inappropriate and reasons therefor. In addition, except for
the Provider Portal Box, CIM shall maintain the right to rotate all
content, including the Provider Content, throughout the Content Area;
PROVIDED, HOWEVER, that CIM shall adhere to the percentage of available
content to be allocated to Provider under this ATTACHMENT A.
c. Notwithstanding anything contained herein to the contrary, the Portal
Box, any Provider Logos, any Provider Content and/or Additional Provider
Content (collectively, the "Provider Material") delivered to CIM under
this Agreement for implementation on the Health Channel (pursuant to the
terms hereof), or otherwise, BEFORE THE COMMENCEMENT DATE shall in no
event contain any references to Provider's name and/or any Provider
Marks. While CIM shall ensure that no such references are implemented on
the Portal Box and that the Provider Logos are implemented on the
Co-branded Page, Provider will ensure that any such Provider Content
and/or Additional Provider Content has been sufficiently edited by
Provider such that no Provider Content and/or any Additional Provider
Content contains references to Provider's name and/or the Provider Marks.
CIM shall maintain the limited right, but not the obligation, to
attribute such Provider Content to CIM or to negate implementing any
attribution rights to the Portal
* Confidential portions omitted and filed separately with the Commission.
page 9 of 12
Box, the Provider Content and/or any Additional Provider Content
delivered to CIM PRIOR to the Commencement Date. The parties further
agree that the Portal Box, any Provider Logos, any Provider Content
and/or any Additional Provider Content delivered to CIM under this
Agreement ON OR AFTER the Commencement Date shall be fully attributed to
Provider according to the terms hereof and that, except for the licenses
provided to CIM under the Agreement, CIM shall obtain, no rights to such
Provider Marks or Provider Content by virtue of its permitted usage under
the preceding sentence.
4. PROMOTIONAL/MARKETING EFFORTS.
a. CIM shall provide Provider * advertising impressions for each twelve
(12) month period during the term of the Agreement (the "Provider Ad
Impressions," comprised of banner and/or button advertisements). Such
Provider Ad Impressions shall be used to promote Provider's products and
shall be distributed throughout the CIM Site(s) on an average of *
impressions distributed per month during the Term of the Agreement.
During the Term of the Agreement, CIM, at its expense, shall develop one
set of banner advertisements (i.e., two) and one set of buttons (i.e.,
two) per month to promote the Provider Site. Such banners and buttons
shall be subject to Provider's reasonable approval prior to their
publication throughout the CIM Sites.
b. On an annual basis, during the Term of the Agreement, CIM, at its
expense, shall cause for the delivery of * advertising impressions (i.e.,
banner advertisements and/or button advertisements) promoting the Health
Channels. Such advertising impressions shall be distributed throughout
the CIM Site(s). In addition, CIM, at its discretion, shall periodically
implement various editorial tag lines and teasers in various areas of the
CIM Site(s) which shall promote the Health Channels.
5. EXCLUSIVITY.*
6. FINANCIAL CONSIDERATIONS.
* Confidential portions omitted and filed separately with the Commission.
page 10 of 12
In consideration of CIM's services provided under the Agreement,
including, but not limited to, CIM commencing the fulfillment of its
obligations under the Agreement and this ATTACHMENT A prior to the
Commencement Date, Provider shall remit to CIM a total of three million
six hundred and twenty-five thousand dollars ($3,625,000) payable during
the Term of the Agreement (the "Provider Fee"). Payment of the Provider
Fee shall be allocated as follows:
|_| Within five (5) business days from the Effective Date, Provider
shall remit to CIM * which shall be applied toward the cost of
implementing, updating and maintaining the Provider Portal Boxes,
Provider Content, the Additional Provider Content, and where
applicable, the Provider Ad Impressions (the "Initial Installment
Fee"). A portion of the Initial Installment Fee * shall be applied
toward Provider's Monthly Installment (as defined below) for June
1999 and the remainder of the Initial Installment Fee * will be
applied toward Provider's Monthly Installment for December 1999.
|_| Commencing as of July 1, 1999 and continuing during the remainder
of Term of the Agreement (i.e., the next twenty four months),
Provider shall remit to CIM the balance of the Provider Fee (i.e.,
three million four hundred and fifteen thousand dollars
($3,415,000) in monthly installments (the "Monthly
Installment(s)") of one hundred forty-five thousand dollars
($145,000) payable to CIM on or before the first day of each such
month toward the cost of implementing, updating and maintaining
the Provider Portal Boxes, Provider Content, the Additional
Provider Content, and where applicable, the Provider Ad
Impressions. * Provider agrees that all Monthly Installment
payments under this Section 6 shall be invoiced by CIM and
remitted by Provider on the first day of the month during which
CIM provides its services to Provider under the Agreement.
In addition to the foregoing, Provider shall maintain the right to implement the
Provider Portal Box and the Additional Content on two (2) additional CIM Sites *
PROVIDED, HOWEVER, that Provider delivers to CIM a written request to include
either web site under the Agreement, and that CIM expressly agrees in writing to
such inclusion. Provider agrees to remit to CIM an additional * for the
inclusion of either such web site(s). In the event CIM removes from service any
given CIM Site listed under ATTACHMENT B, CIM and Provider shall in good faith
mutually evaluate the impact (if any) such removal may have on the aggregate
number of impressions to the Provider Content through the remaining CIM Sites
for the remainder of the term of the Agreement. In the event both parties
mutually determine the such removal of a CIM Site will result in a substantial
and material reduction in the number of impressions to the Provider Content for
the remainder of the term of the Agreement, the parties shall in good faith
negotiate a reasonable work-around which may include, but shall not be limited
to, an extension to the original term of the Agreement to allow for the delivery
of additional impressions to make up any agreed to shortfall, the addition of
new CIM Site(s) not originally included under ATTACHMENT B, and/or a reasonable
reduction of the fees paid by Provider to CIM under the Agreement, taking into
account the reduction in the number of anticipated impressions to have been
provided through the removed CIM Site, the ability of CIM to make-up any such
loss of impressions during the initial term of the Agreement, as well as the
time remaining under the initial term of the Agreement as of the date such CIM
Site is removed from service.
CYBEAR, INC. XXX INTERACTIVE MEDIA, INC.
By: /s/ Xxxxxx Xxxxxxx, M.D. By: /s/ J. Xxxxx Xxxxx
------------------------ --------------------------------
Name: Xxxxxx Xxxxxxx, M.D. Name: J. Xxxxx Xxxxx
------------------------ --------------------------------
Title: President & CEO Title: V.P., Chief Financial Officer
------------------------ --------------------------------
Date: 6/1/99 Date: 6/2/99
------------------------ --------------------------------
* Confidential portions omitted and filed separately with the Commission.
page 11 of 12
ATTACHMENT B
THE CIM SITE(S)
EXISTING CIM SITE(S)
--------------------
MARKET PRODUCT NAME
------ ------------
Atlanta XxxxxxXxxxxxx.xxx
Austin Xxxxxx000.xxx
Charlotte XxXxxxxxxxx.xxx
Dayton XxxxxxXxxxxx.xxx
Grand Junction XXXxxxxxxx.xxx
Greenville Xxxxxxxxx.xxx
Longview Xxxx-Xxxxxxx.xxx
Los Angeles XX0000.xxx
Miami XxXxx.xxx
New Orleans XxxxxxXxxXxxxxxx.xxx
Omaha XxxxxxxxXxxxx.xxx
Orange County XXXxx.xxx
Orlando XXXxxxxxx.xxx
Pittsburgh XxxxXxxxxxxxxx.xxx
Providence XXX.xxx
San Diego XxxXxxxxXxxxxxx.xxx
San Francisco XxxXxxxxxx.xxx
Seattle XxxxxxxXxxxxxx.xxx
Syracuse Xxxxxxxxx.xxx
Tampa Xxxxx0000.xxx
Waco XxxxxxXxxx.xxx
West Palm Beach XxXXX.xxx
CIM'S SPECIALTY SITE
--------------------
XxxxxXxxxxxxx.xxx
FUTURE CIM SITE(S)
------------------
Birmingham
El Paso
Las Vegas
Oklahoma City
San Antonio
Tulsa
page 12 of 12
