SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is entered
into as of September 12, 1997 ("Agreement Date") between IVI PUBLISHING, INC., a
Minnesota corporation, for itself and its subsidiaries, affiliates and related
entities, and all successors and assigns and their respective officers,
directors, shareholders, employees and agents (collectively, "IVI"), and the
MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH, a Minnesota non-profit
foundation, for itself and its subsidiaries, affiliates and related entities,
including, without limitation, Mayo Medical Ventures ("MMV"), and all successors
and assigns and their respective officers, directors, employees and agents
(collectively, "Mayo").
RECITALS
A. IVI and Mayo are parties to the Electronic Publishing License,
Development and Marketing Agreement dated April 28, 1993 ("1993 Agreement") and
the 1994 License, Development and Marketing Agreement dated September 27, 1994
("1994 Agreement").
B. Various disagreements have arisen between IVI and Mayo, particularly
regarding their respective rights and duties under the 1994 Agreement with
respect to the O@sis website ("O@sis Site," as more fully defined below) that
has been jointly developed by IVI and Mayo.
C. The parties have had extensive settlement discussions over several
months in which each of Mayo and IVI has been represented by independent legal
counsel. As a result of those discussions, the parties have concluded it is in
their respective best interests to settle and compromise all known and unknown
claims related to or arising out of such disagreements, as set forth in this
Agreement.
D. Subject to the terms hereof, it is the intention of the parties that
IVI deliver to Mayo (by license, sublicense or transfer of ownership) all of its
rights in the O@sis Site (other than with respect to the Third Party Software)
such that Mayo will be able to operate the O@sis Site in the same manner as it
is operated by IVI as of the Agreement Date, provided, however, that IVI shall
continue to own and be free to exploit all IVI Copyrights, IVI Technology and
Source Code and any other intellectual property rights of IVI to the extent that
title to such rights has not been completely transferred and assigned to Mayo
hereunder.
E. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the 1994 Agreement.
AGREEMENTS
1. DEFINITIONS.
As used herein, the following terms shall have the meanings set forth
below:
(a) "Audiovisual Rights" means the IVI Copyrights for the data, images,
sounds, text, graphics, audiovisuals, animations, music, photographs,
motion pictures, files, data or materials of the O@sis Site as
perceived, seen or heard by an end user of such website, but excluding
the IVI Copyrights for the underlying software within the IVI
Technology that produces such data, images, sounds, text, graphics,
audiovisuals, animations, music, photographs, motion pictures, files,
data or materials.
(b) "Net Revenues" means all revenues arising out of or resulting from
the O@sis Site or any non-O@sis Internet-related project, as the case
may be, that are actually received by Mayo from third parties between
the Agreement Date and December 31, 2001, net of Mayo's sales
commissions, discounts or refunds actually paid or given, taxes or
duties of any kind (exclusive of income or similar taxes), insurance
and/or freight, to the extent each of the foregoing is reasonable and
documented and is actually paid or granted to an unaffiliated third
party; provided, however, that if Mayo holds an equity position in an
unaffiliated third party at the time a payment affecting Net Revenues
is made to such third party, for purposes of calculating Net Revenues
Mayo shall only be permitted to deduct the amount of such payment less
the percentage of Mayo's equity ownership in such third party (e.g., if
Mayo has a deduction to Net Revenues by virtue of a payment to an
unaffiliated third party of $100,000, by virtue of the fact that Mayo
owns a 5% equity share in such third party, Mayo will only be able to
deduct 95% of $100,000, or $95,000, when calculating Net Revenues). Net
Revenues shall also exclude any revenues from Mayo products sales or
medical services but shall include any revenues derived from content
accessible on or through the O@sis Site or non-O@sis Internet related
project, as the case may be.
(c) "O@sis Content" means all New Materials included in or developed
for the O@sis Site (which includes, without limitation, all medical
knowledge and know-how provided by Mayo medical personnel), images,
sounds and interfaces that an end user sees, hears and/or uses when
accessing and using the O@sis Site, including, without limitation, any
data, images, sounds, text, graphics, audiovisuals, animations, music,
photographs, motion pictures, files, data, materials, object or source
codes (including any HTML codes), user interfaces and graphical user
interfaces, and all other information reasonably related to the access,
operation and/or use of the O@sis Site, such as its server access logs
and archive logs, but excluding the USP Content, all as of the
Agreement Date.
(d) "O@sis Licensed Rights" means all of IVI's intellectual property
rights in and to the O@sis Technology (including, without limitation,
CGI scripts, javascripts and configuration files for Third Party
Software), other than the Audiovisual Rights, as of the Agreement Date.
(e) "O@sis Purchased Rights" means the Audiovisual Rights and all of
IVI's other intellectual property rights in and to the O@sis Content,
but excluding all of the O@sis Licensed Rights and Third Party
Software, as of the Agreement Date.
(f) "O@sis Site" means the O@sis website jointly developed by IVI and
Mayo under the 1994 Agreement and operated by IVI and Mayo as of the
Agreement Date, including any modification thereof or successor site on
the Internet which may thereafter be developed or operated by or for
Mayo.
(g) "O@sis Technology" means the IVI Technology (which, for purposes of
this Agreement, includes, without limitation, javascripts, CGI scripts
and configuration files for Third Party Software), IVI Copyrights
(except for the Audiovisual Rights therein), Source Code and all
underlying software, digitizations, algorithms, program logic,
interactive program structures and like technology that is used to make
the O@sis Content and USP Content available to end users of the O@sis
Site as of the Agreement Date.
(h) "Third Party Software" means the third-party software licensed to
IVI as of the Agreement Date and listed on Exhibit A attached hereto.
(i) "USP Content" means the pharmaceutical database available on the
O@sis Site as of the Agreement Date that is licensed by IVI from The
United States Pharmacopeial Convention, Inc. ("USP").
2. CONVEYANCE AND ASSIGNMENT OF RIGHTS.
Subject to the terms and conditions of this Agreement, IVI hereby
sells, and Mayo hereby purchases, the following right, title and interest in and
to the O@sis Site as follows:
(a) IVI hereby grants to Mayo a limited, non-exclusive,
non-transferable (except as expressly provided below in this Section
2), perpetual, irrevocable, paid-up and worldwide license to the O@sis
Licensed Rights, solely for Mayo, its agents or its third party vendors
to create, deliver, edit, manipulate, configure, test and publish the
O@sis Content or modifications thereof for Mayo on the O@sis Site and
or any other Internet site which is majority owned or controlled by
Mayo;
(b) IVI hereby assigns and transfers to Mayo all the O@sis Purchased
Rights; and
(c) pursuant to the terms of Section 6(g) below, IVI hereby grants to
Mayo the limited sublicense to the USP Content, as more fully set forth
in Exhibit G attached hereto.
A partial and illustrative listing of the files, libraries, directories,
components and rights that constitute the O@sis Content is attached as Exhibit B
hereto. Mayo may, in its sole discretion, upon at least thirty (30) days prior
written notice to IVI, assign the license to the O@sis Licensed Rights granted
hereunder solely in connection with the transfer, sale and/or assignment of the
O@sis Site in its entirety, provided, that Mayo continues to be primarily
obligated with respect to, and shall pay to IVI all O@sis Royalties and
Non-O@sis Royalties required hereunder with respect to such O@sis Site and other
non-O@sis Internet-related projects, as such terms are defined below. Further,
such assignment shall not terminate or affect in any way Mayo's (i) license
granted hereunder to the O@sis Licensed Rights with respect to any Internet site
(other than the O@sis Site) which is majority owned or controlled by Mayo, or
(ii) obligations to IVI hereunder or under any other agreement then in effect
between IVI and Mayo.
3. SETTLEMENT CONSIDERATION.
In exchange for the transfer, license and sublicense of IVI's rights in
and to the O@sis Site pursuant to Section 2 above, Mayo shall pay or provide to
IVI the following consideration:
(a) Cash. Mayo shall pay IVI Two Million Seven Hundred Thousand Dollars
($2,700,000) by wire transfer of immediately available funds
simultaneously with the full execution of this Agreement, less an
offset of Forty-Three Thousand Sixty-Three Dollars ($43,063) that is
attributable to currently due and payable reimbursements for Mayo's
expenses for EP Versions under the 1994 Agreement (for which Mayo has
previously submitted its standard form invoices to IVI).
(b) Prepayment of Transition Services Fee. Mayo shall pay IVI an
additional Three Hundred Thousand Dollars ($300,000) by wire transfer
of immediately available funds simultaneously with the full execution
of this Agreement to prepay the service fee for the Transition
Services, which service fee shall be non-refundable.
(c) Waiver of Reimbursement and Other Payments. Mayo hereby waives and
releases IVI's obligation to (i) reimburse Mayo's expenses associated
with the provision of content and support for the O@sis Site for the
period of January 1, 1997 through the end of the 1994 Agreement term,
and (ii) make any other payments to Mayo under or in respect of the
1994 Agreement other than (A) in connection with EP Versions that Mayo
and IVI have jointly developed or may in the future jointly develop
under the 1994 Agreement, or (B) as required by that certain letter
agreement dated May 25, 1995 (the "AHN Letter") between IVI and Mayo
regarding the Agreement dated May 25, 1995 (the "AHN Agreement")
between IVI and America's Health Network, Inc., or (C) as IVI and Mayo
may otherwise hereafter agree in writing.
(d) Future Services. Mayo shall invite IVI to bid on a contract or
contracts for calendar years 1998 and/or 1999 (if, in fact, such
support contracts are sought by Mayo) to be the external support and
service provider for the O@sis Site, at whatever service level, rate or
compensation is deemed by Mayo, in its discretion, to be most
beneficial to Mayo. If IVI decides to submit a bid, Mayo may reject
such bid for any or no reason, and IVI shall have no implied right to
supply future services to Mayo or to challenge any decision Mayo makes
as to such future services to the extent such services are to be
provided by or on behalf of any third party vendor. The foregoing
notwithstanding, Mayo's evaluation of any bid made by IVI shall be
consistent with and governed by any bidding and bid evaluation process
established or implemented by Mayo for all bidders with respect to a
given contract.
(e) O@sis Royalties. Mayo shall pay IVI twelve percent (12%) royalties
on all Net Revenues arising out of or resulting from the O@sis Site
("O@sis Royalties"). Mayo and IVI further agree as follows with respect
to O@sis Royalties:
(i) for the avoidance of doubt, proceeds from the following,
without limitation, shall be included in Net Revenues which
give rise to O@sis Royalties: sponsorships of the O@sis Site,
advertising on the O@sis Site, and/or subscription revenues or
licensing fees received for access to the O@sis Site, for
content included on or accessed through the O@sis Site, for
publications or premium content delivered on-line through the
O@sis Site, for downloading of content from the O@sis Site, or
for access to and use of chat rooms or bulletin boards on the
O@sis Site;
(ii)for the avoidance of doubt, proceeds from the following,
without limitation, shall not be included in Net Revenues
which give rise to O@sis Royalties: retail or wholesale sales
of tangible items such as a printed or CD ROM edition of the
Mayo Family Healthbook; subscriptions to Mayo-sponsored or
endorsed publications that are delivered in printed form, CD
ROMs or any other format except on-line through the O@sis
Site; clothing or souvenirs bearing O@sis or other Mayo logos;
and any tangible healthcare products or medical services; and
(iii) that Mayo may, in its sole discretion, discontinue the
publication or availability of the O@sis Site, in whole or in
part, at any time, and that Mayo does not guarantee the
amount, if any, of O@sis Royalties to be paid to IVI
hereunder.
(f) Non-O@sis Royalties. Mayo shall pay IVI ten percent (10%) royalties
on all Net Revenues arising out of or resulting from any non-O@sis
Internet-related projects commenced (as evidenced by an executed
agreement) between the Agreement Date and December 31, 1999 ("Non-O@sis
Royalties"). Mayo non-O@sis Internet-related projects commenced after
December 31, 1999 shall not be subject to any IVI royalties. For
purposes of this Agreement, a "non-O@sis Internet-related project"
shall be any Internet website or other application accessible through
the Internet, other than the O@sis Site, which Mayo creates, allows or
causes to be created, or to which Mayo licenses to publish or otherwise
grants access to, Mayo or third party content. Mayo and IVI further
agree as follows with respect to Non-O@sis Royalties:
(i) for the avoidance of doubt, the following type of
proprietary networks, without limitation, shall be deemed a
"non-O@sis Internet-related project":
(A) a corporate intranet that is established by or in
cooperation with Mayo and is generally only
accessible to employees and agents of a corporation
or other entity (but excluding all internal Mayo
intranets); and
(B) an extranet between two or more corporations or
entities that permits an electronic exchange of
information between such corporations and/or
entities, such as by electronic data interchange (but
excluding all extranets of the types generally
described in the next sentence where Mayo itself is
the customer or healthcare provider of the other
party). An example where Mayo itself is a customer
would be Mayo's electronic purchasing and ordering of
hospital or medical supplies from a vendor, and an
example of where Mayo itself is a provider would be
Mayo's electronic processing of insurance
reimbursement claims with a self-insured employer
which uses Mayo as a provider of healthcare services
for its insured employees.
(ii) for the avoidance of doubt, Mayo's delivery of continuing
medical education ("CME") programs to medical professionals
via the Internet shall be deemed a "non-O@sis Internet-related
project," provided, however, in calculating the Net Revenues
from such CME programs, in addition to the terms of Section
1(b) above, Mayo shall include, without limitation, any
sponsorship revenues for such program and may also deduct its
actual direct costs of such programs, all as demonstrated by
Mayo's books and records kept in accordance with generally
accepted accounting practices consistently applied. For the
avoidance of doubt, the following type of costs included on
Mayo's books and records, without limitation, shall be deemed
actual direct costs of a CME program to the extent consistent
with Mayo's general accounting practices: wages, benefits and
general administrative costs allocated to a particular doctor
or employee during the time period such doctor prepares,
presents, supports or administers a CME program; materials
used in the preparation of, or distributed as part of a CME
program; expenses of presenting and/or preparing a CME course
for presentation in any media as a non-O@sis Internet-related
project.
(iii) for avoidance of doubt, the following shall not be
deemed a "non-O@sis Internet-related project": any Mayo
operated or supervised database or record of actual private
patient medical information that is accessible only by
authorized users (e.g., healthcare providers and third party
payors), and related patient educational information that is
primarily accessible and used by authorized health care
providers, via the Internet.
(iv) that Mayo may, in its sole discretion, pursue or
consummate non-O@sis Internet-related projects, but Mayo is
not obligated in any way to do so, and that Mayo does not
guarantee the amount, if any, of Non-O@sis Royalties to be
paid to IVI hereunder.
(g) Pre-Paid Royalties. Due to the exclusion of certain hardware and
the Third Party Software from the assets related to the O@sis Site
being sold, licensed or otherwise transferred to Mayo hereunder, the
parties agree that Mayo shall credit an aggregate of Ninety-Six
Thousand Dollars ($96,000) against any O@sis Royalties and Non-O@sis
Royalties otherwise due to IVI. Accordingly, Mayo shall not be required
to begin paying any O@sis Royalties or Non-O@sis Royalties otherwise
due to IVI hereunder unless and until the aggregate amount of such
royalties otherwise due exceeds Ninety-Six Thousand Dollars ($96,000).
(h) IVI Stock. Mayo shall assign over and transfer back to IVI, free
and clear of all liens and other encumbrances, good and valid title to
Four Hundred Ninety Thousand (490,000) shares of IVI common stock (some
of which is currently restricted and some of which is not restricted)
that was previously issued to Mayo as part of the consideration for the
1993 Agreement and 1994 Agreement. Mayo shall deliver the stock
certificates evidencing all such shares to IVI, properly endorsed or
accompanied by a duly executed instrument of transfer, on the Agreement
Date. Mayo and IVI hereby agree that, upon such assignment and
transfer, the Stock Purchase Agreements dated as of April 28, 1993 and
September 27, 1994, respectively, between Mayo and IVI are hereby
terminated in all respects and are of no further force and effect.
(i) Waiver of Minimum Royalties on EP Versions. Mayo hereby waives and
releases the minimum guaranteed royalties (but not actual running
royalties) on the EP Versions, as that term is defined in the 1993
Agreement, published by IVI under the 1993 Agreement.
4. TRANSITION SERVICES
IVI shall provide to Mayo the transition and technical support
services ("Transition Services") for the O@sis Site for a period of three (3)
months from the Agreement Date, subject to the following terms and conditions:
(a) At its sole discretion, Mayo may have third party vendors providing
support and services with respect to the O@sis Site during the time IVI
is also providing Transition Services to Mayo, as long as such third
party vendors do not interfere with or unreasonably burden IVI's
reasonable performance of such Transition Services and subject to such
vendors' execution of appropriate non-disclosure agreements (in form
and substance reasonably satisfactory to IVI as provided below) with
Mayo to the extent such vendors may require access to any IVI
proprietary information, whether or not included within the O@sis
Licensed Rights. Mayo shall provide IVI with such non-disclosure
agreement(s) for review and approval, which approval shall not be
unreasonably withheld. If IVI fails to notify Mayo of any required
changes to such non-disclosure agreement within five (5) business days
after its receipt by IVI and its counsel listed herein, then it shall
be deemed approved by IVI. In such non-disclosure agreements, Mayo
shall use reasonable best efforts to make IVI an express third party
beneficiary thereof to the extent that such vendors will have access to
IVI's proprietary information.
(b) Such Transition Services shall be performed in the same
professional, diligent and timely manner and, absent written agreement
of the parties to the contrary, shall consist of the same level and
manner of technical support, administrative services, development
efforts (including, without limitation, development of the O@sis Site
in accordance with the specifications of Microsoft Explorer 4.0) and
resources (including personnel, server hardware, Third Party Software
and other software) that IVI has provided during the six (6) months
immediately prior to the Agreement Date to develop, support, publish,
update and make available the O@sis Site to users via the Internet.
(c) After the Agreement Date, once per week during the period that IVI
is providing Transition Services to Mayo, IVI shall deliver to Mayo a
complete and accurate object code and source code copy of all updates
to the O@sis Site made by or for IVI during the prior week, as such
updates exist, less the Third Party Software. The parties shall
mutually arrange for the delivery of each such copy to Mayo, with Mayo
paying all shipping costs associated with such deliveries.
(d) In addition, as part of such Transition Services, IVI shall provide
to Mayo, its agents and any external third party vendors for the O@sis
Site, if any, all reasonable technical assistance, support and
cooperation needed in order for Mayo, its agents and/or such third
party vendors to operate, maintain and update the O@sis Site
independent of IVI, including, without limitation, reasonable
assistance in obtaining any licenses needed for Third Party Software;
provided, however, that all such Transition Services must be consistent
with IVI's in-house capabilities and resources as of the Agreement Date
and shall not require IVI to incur any additional or incremental
out-of-pocket costs with respect thereto or to provide access to or
transfer any IVI know-how or trade secrets to any such third party
vendor beyond that included within the O@sis Purchased Rights or the
O@sis Licensed Rights and only to the extent such third party vendor
has executed an IVI-approved non-disclosure agreement as provided in
Section 4(a) above.
(e) IVI hereby commits to provide, upon Mayo's written request, up to
another three (3) months of such Transition Services, which may be
purchased by Mayo at its option at the rate of One Hundred Thousand
Dollars ($100,000) per month, payable month by month in advance;
provided, that IVI may but shall not be required to provide any such
Transition Services following the 180th day after the Agreement Date.
(f) In its sole discretion, Mayo may discontinue the Transition
Services at any time upon seven (7) days prior written notice thereof
to IVI, provided, there shall be no refund of the prepaid service fee
for such Transition Services. Upon the effective date of such notice,
IVI shall cease publication of the O@sis Site and Mayo or its agent
shall thereafter be solely responsible for publication of the O@sis
Site upon its own server. IVI and Mayo shall render reasonable
cooperation to each other to ensure a smooth transition of the O@sis
Site.
(g) As part of the Transition Services, IVI shall provide to Mayo the
same level and type of service (including, without limitation, the same
method of access to the USP Content by end users who access the O@sis
Site via the Internet) with respect to the USP Content on the O@sis
Site as of the Agreement Date, provided that IVI's license to the USP
Content from USP remains in full force and effect.
5. AMENDMENT OF 1993 AND 1994 AGREEMENTS.
(a) Conforming Amendments to 1993 Agreement. The 1993 Agreement is
hereby amended as set forth in Exhibit C attached hereto. Except as so
amended, the 1993 Agreement shall otherwise remain in full force and
effect.
(b) Parties' Continued Performance Under the 1993 Agreement. As of the
Agreement Date, Mayo shall have no further obligation to provide IVI
with any more Source Material for publication under the 1993 Agreement,
and neither party shall have any liability whatsoever to the other
party for any failure of the parties to jointly develop and publish any
of the ten (10) titles described in Exhibit A-1 to A-10 of the 1993
Agreement or any other title proposed by either party pursuant to the
terms thereof; provided, however, that the parties agree to publish one
or more of the ten (10) titles described in Exhibit A-1 to A-10 of the
1993 Agreement, when and if IVI provides Mayo with written notice of
IVI's intention to publish such title or titles and reasonable evidence
of IVI's financial ability and commitment to do so (including, without
limitation, delivery to Mayo of a business plan for such title(s)), all
within the term of the 1993 Agreement. In addition, IVI acknowledges
that the license to the Mayo Trademarks granted to IVI pursuant to
Section 4.1 of the 1993 Agreement shall only apply to EP Versions of
Source Material already produced under the 1993 Agreement as of the
Agreement Date and any other EP Versions produced thereunder, and, with
respect to each such EP Version, IVI's license to use the Mayo
Trademarks shall terminate upon expiration of the applicable Sell-Off
Period for each such existing EP Version. In no event shall IVI use the
Mayo Trademarks in any other manner. Unless otherwise specifically
defined in this Agreement, all capitalized terms used in this Section
5(b) are as defined in the 1993 Agreement.
(c) Conforming Amendments to 1994 Agreement. The 1994 Agreement is
hereby amended as set forth in Exhibit D attached hereto. Except as so
amended, the 1994 Agreement shall otherwise remain in full force and
effect.
(d) Termination of Certain Rights under 1994 Agreement. As of the
Agreement Date, all licenses granted by Mayo to IVI for the Source
Material and New Materials (other than Short Clips included therein
which exist as of the Agreement Date) under the 1994 Agreement that
constitute part of the O@sis Purchased Rights are hereby terminated,
provided that IVI shall continue to have such licenses granted under
the 1994 Agreement only to the extent reasonably necessary for IVI to
continue to publish and distribute any EP Version jointly developed by
the parties under the 1994 Agreement as of the Agreement Date hereof
and to perform the Transition Services hereunder until such services
are terminated. Furthermore, all licenses granted by either party to
the other party under the 1994 Agreement to use the Mayo Trademarks or
the IVI Trademarks, as may be the case, are hereby terminated except as
expressly permitted by the licenses granted in Section 4.1 or Section
4.2 of the 1994 Agreement, as applicable, in connection with each such
EP Version published and/or distributed by IVI.
(e) Parties' Continued Performance Under the 1994 Agreement. All EP
Versions published prior to the Agreement Date, but pursuant to the
terms of the 1994 Agreement, shall be governed by the amended terms of
the 1994 Agreement as stated herein. As of the Agreement Date, Mayo
shall have no further obligation to provide IVI with any more Source
Material for publication of any additional EP Versions under the 1994
Agreement, except as required for the Short Clips described in Section
6(a) below or as the parties may otherwise agree, and neither party
shall have any liability whatsoever to the other party for any failure
of the parties to jointly develop and publish any of the five (5)
titles described in Exhibit D of the 1994 Agreement or any other Title
proposed by either party pursuant to the terms thereof; provided,
however, that the parties agree to publish one or more of the five (5)
Titles described in Exhibit D of the 1994 Agreement, when and if IVI
provides Mayo with written notice of IVI's intention to publish such
title or titles and reasonable evidence of IVI's financial ability and
commitment to do so (including, without limitation, delivery to Mayo of
a business plan for such title(s)), all within the term of the 1994
Agreement.
6. OTHER OBLIGATIONS OF THE PARTIES.
The parties shall also fulfill the following obligations, as
applicable:
(a) AHN Letter; Short Clips. From and after the Agreement Date, IVI
shall remain obligated to reimburse Mayo, pursuant to the terms of the
1994 Agreement, for Mayo's expenses incurred as a result of the AHN
Letter, and Mayo shall continue to provide Source Material to IVI to
produce Short Clips pursuant to the terms of the AHN Letter and as
otherwise agreed by the parties. All Short Clips shall be governed by
the terms of the 1994 Agreement as amended herein, provided, however,
notwithstanding the exclusive license for electronic publication of
such Short Clips granted to IVI under such 1994 Agreement prior to its
amendment hereunder, Mayo may, at its discretion, from and after the
Agreement Date, also use and publish all such Short Clips, in whole or
in part, as content on the O@sis Site or any other non-O@sis
Internet-related project for which Non-O@sis Royalties would be payable
to IVI, subject to the restrictions on distribution of the Licensor
Materials (as defined therein) imposed by that certain letter agreement
dated June 8, 1995 between Mayo and AHN. IVI shall provide copies of
all Short Clips to Mayo within fifteen (15) business days after IVI
receipt of Mayo's written reasonable request therefor.
(b) Other Existing Agreements. Notwithstanding Section 3(e) or (f)
above, (i) Mayo shall not be required to pay any O@sis Royalties,
Non-O@sis Royalties or any other amounts whatsoever to IVI as a result
of the letter agreement between Mayo and American Home Products
Corporation dated April 3, 1996, and the Website License Agreement
between Mayo and AHP dated January 1, 1997 (collectively, "AHP
Agreements"); (ii) any amounts received by Mayo as a result of the
Content License Agreement between Mayo and Disney Online dated August
22, 1997 shall be treated as Non-O@sis Royalties hereunder ("Disney
Agreement"); (iii) the License Agreement dated April 24, 1991, as
amended (the "1991 Agreement"), by and among Xxxxxxx Xxxxxx Company,
Mayo and IVI shall remain in full force and effect in accordance with
its terms; and (iv) as of the Agreement Date, Mayo shall assume all
obligations to make any and all payments due or past due under that
certain agreement dated December 2, 1996, by and among Mayo, IVI and
Infomed Services Ltd.
(c) Escrow Requirements. Within thirty (30) days after the Agreement
Date, the parties shall execute an escrow agreement, similar in form
and substance to the escrow agreement executed in conjunction with the
1993 Agreement and 1994 Agreement and with the same escrow agent, so
that all materials related to the Mayo Clinic Family Healthbook CD ROM,
and all future versions thereof published by IVI, will be deposited in
escrow by IVI on a regular basis. Mayo shall pay all expenses of the
escrow agent related to the establishment and maintenance of such
escrow.
(d) Prohibited Uses of Names, URLs and Trademarks. From and after the
Agreement Date, IVI shall not use, nor cause or permit any third party
to use in any manner, whether directly or indirectly, the name "O@sis"
or any similar name, the URL "xxx.xxxx.xxx.xxx" and all extensions
thereof (i.e., "xxx.xxxx.xxx.xxx/xxxx/xxxxxx/xxx/xxxxx. htm"), all of
which are hereby released and assigned by IVI to Mayo. Mayo shall not
use, nor cause or permit any third party to use in any manner, whether
directly or indirectly, the name "OnHealth" or any similar name, the
name "Healthnet" or any similar name, or the URLs
"xxx.xxxxxxxxx.xxx.xxx", "xxxxxxxx.xxx" and "xxx.xxxxxxxx.xxx" and all
extensions of the foregoing, all of which are hereby released and
assigned by Mayo to IVI. The foregoing prohibition, assignment and
release includes, without limitation, using or registering for use any
tradename, trademark, service xxxx, domain name, product name, service
name or moniker, anywhere in the world. Mayo acknowledges and agrees
that IVI owns the "xxx.xxx" domain name, subject to Mayo's right to use
the URL "xxx.xxxx.xxx.xxx".
(e) Redirected Access. Upon Mayo's written request and, if no such
request is made, upon the effective date of the termination notice for
the Transition Services, IVI shall promptly redirect, or cause to be
redirected, regardless of whether IVI is providing Transition Services
(or is Mayo's designated support and service provider as referenced in
Section 3(d) above) for the O@sis Site, all requests for the O@sis Site
that use the URL address "xxx.xxxx.xxx.xxx" or "xxxxxxxxx.xxx.xxx", or
any extensions thereof, to the URL(s) that Mayo designates in writing
to IVI, but only to the extent such designated URL is the new address
for the O@sis Site, for a minimum of two (2) years after any such
request or effective date of termination by Mayo of the Transition
Services. In addition, upon such a request from Mayo, IVI shall
promptly cause all products thereafter produced pursuant to any
agreement between the parties (e.g., EP Versions of the Source Material
produced under the 1993 Agreement or the 1994 Agreement) to link to the
new URL designated by Mayo in writing, instead of the URL
"xxx.xxxx.xxx.xxx", but only to the extent such URL is the new address
for the O@sis Site.
(f) Support of Healthwatch. Mayo shall continue to support the
Healthwatch feature of the O@sis Site, solely in connection with Mayo
products and services such as the publications and/or EP Versions, as
applicable, jointly developed by the parties pursuant to the 1991
Agreement, the 1993 Agreement and/or the 1994 Agreement, in a manner
and at a level consistent with the support provided by IVI during the
six (6) month period immediately prior to the Agreement Date; provided,
that Mayo may discontinue its support of Healthwatch after the earlier
of (i) the date when Mayo no longer owns or operates the O@sis Site, or
(ii) all of IVI's license rights under each of the 1991 Agreement, the
1993 Agreement and the 1994 Agreement terminate or expire.
(g) USP Content License Terms. As provided in the Sublicense Agreement
attached hereto as Exhibit G, Mayo shall pay IVI a sublicense fee of
One Thousand Dollars ($1,000) per month for the sublicense of the USP
Content granted by IVI to Mayo thereunder.
(h) IVI's Use of O@sis Purchased Rights. For any portion of the O@sis
Content (including, without limitation, the interface and presentation
of the USP Content) in use by IVI on a website (excluding the O@sis
Site) as of the Agreement Date, IVI shall discontinue all use thereof
within sixty (60) days of the Agreement Date.
7. REPRESENTATIONS AND WARRANTIES OF IVI.
In connection with its execution and delivery of this Agreement, IVI
hereby represents and warrants to Mayo as follows:
(a) Authorization. IVI has the corporate power and authority to execute
and consummate this Agreement and the transactions contemplated hereby
and such execution, consummation and transaction have been duly
authorized by all requisite corporate actions on the part of IVI;
(b) No Liens or Encumbrances. The O@sis Purchased Rights, O@sis License
Rights and USP Content being conveyed or licensed to Mayo hereunder are
free and clear of any liens and encumbrances, including specifically
the security interest of IVI's secured convertible debenture holders;
(c) No Conflicts. The execution and delivery of this Agreement and
consummation of the transactions contemplated hereby will not violate
any term or condition of any material agreement to which IVI is a party
or by which IVI is bound, provided that no such representation or
warranty is made by IVI with respect to (i) the 1991 Agreement, (ii)
the 1993 Agreement, (iii) the 1994 Agreement, (iv) the Anchor Brand
Content Provider Agreement dated as of October 30, 1995 between IVI and
AT&T Corp. (the "AT&T Agreement"), (v) the Active Desktop Marketing &
Promotion Agreement, Gold ICP - Channel Guide dated as of June 3, 1997,
by and among Mayo, IVI and Microsoft Corporation (the "Microsoft
Agreement"), and (vi) the letter agreement dated November 21, 1996
between IVI and CompuServe Incorporated (the "CompuServe Agreement");
(d) Government and Third Party Approvals. All governmental or third
party approvals, if required for the execution and consummation of this
Agreement and the transactions contemplated hereby, have been duly
obtained, including, without limitation, any third party software or
other intellectual property rights included in the O@sis Purchased
Rights, O@sis Licensed Rights and USP Content, provided that no such
representation and warranty is made by IVI with respect to (i) the 1991
Agreement, (ii) the 1993 Agreement, (iii) the 1994 Agreement, (iv) the
AT&T Agreement, (v) the Microsoft Agreement, and (vi) the CompuServe
Agreement.
(e) Ownership; No Third Party Claims. IVI owns all right, title and
interest in, or has the right to transfer or license, as applicable,
the O@sis Purchased Rights, the O@sis Licensed Rights and the USP
Content, and their transfer, assignment, license or sublicense to Mayo
hereunder, to IVI's knowledge, does not and will not violate any third
party's rights, provided that no such representation and warranty is
made by IVI with respect to (i) the 1991 Agreement, (ii) the 1993
Agreement, (iii) the 1994 Agreement, (iv) the AT&T Agreement, (v) the
Microsoft Agreement, and (vi) the CompuServe Agreement. To IVI's
knowledge, (i) there are no third party claims challenging IVI's
ownership of, or right to license or sublicense, the O@sis Purchased
Rights, the O@sis Licensed Rights and the USP Content being
transferred, assigned, licensed or sublicensed hereunder or IVI's right
to execute and consummate this Agreement and the transactions
contemplated hereby, and (ii) the use of the O@sis Purchased Rights and
the O@sis Licensed Rights as contemplated hereby will not infringe upon
the patent, copyrights, trade secrets, trademarks or other rights of
any third party; and
(f) No Bankruptcy Proceedings or Plans. To IVI's knowledge, after due
investigation, IVI is not named as a debtor in any voluntary or
involuntary bankruptcy case and has no present plan to commence a
voluntary bankruptcy case within ninety (90) days after the Agreement
Date.
(g) O@sis Software and Data. IVI warrants to Mayo that the copy of the
O@sis Site on electronic media delivered to Mayo, in object and source
code form as described in Section 9(e) below, and in object code and
source code form as described in Section 4(c) above: (i) is a complete
and accurate copy of the O@sis Site, less the Third Party Software, as
of the date and time such copy is made, (ii) includes all software,
content (including, without limitation, all graphics, text, audio,
javascript, HTML and CGI scripts), data, materials, files, directories
and functionality available to users who access the O@sis Site via the
Internet as of the date and time such copy is created, less the Third
Party Software, and (iii) does not contain any code that is intended to
disable or shut down surreptitiously, in whole or in part, the O@sis
Site or the equipment on which it is installed and accessed.
(h) Entitlement to Royalties. IVI is not entitled to, nor has it
received, any income arising out of or resulting from the O@sis Site
prior to the Agreement Date.
8. REPRESENTATIONS AND WARRANTIES OF MAYO.
In connection with its execution and delivery of this Agreement, Mayo
hereby represents and warrants to IVI as follows:
(a) Authorization. Mayo has the corporate power and authority to
execute and consummate this Agreement and the transactions contemplated
hereby and such execution, consummation and transaction have been duly
authorized by all requisite corporate actions on the part of Mayo.
(b) No Conflicts. The execution and delivery of this Agreement and
consummation of the transactions contemplated hereby will not violate
any term or condition of any material agreement to which Mayo is a
party or by which Mayo is bound, provided that no such representation
or warranty is made by Mayo with respect to (i) the 1991 Agreement,
(ii) the 1993 Agreement, (iii) the 1994 Agreement, and (iv) the
Microsoft Agreement.
(c) Government and Third Party Approvals. All governmental or third
party approvals, if required for the execution and consummation of this
Agreement and the transactions contemplated hereby, have been duly
obtained, provided that no such representation and warranty is made by
Mayo with respect to (i) the 1991 Agreement, (ii) the 1993 Agreement,
(iii) the 1994 Agreement, and (iv) the Microsoft Agreement.
(d) Entitlement to Royalties. Mayo is not entitled to, nor has it
received, any income (other than the revenues Mayo has received or will
receive pursuant to the AHP Agreements and Disney Agreement) arising
out of or resulting from the O@sis Site and/or any non-O@sis
Internet-related projects, prior to the Agreement Date.
(e) IVI Stock. (i) Mayo has good and valid title to the 490,000 shares
of IVI common stock being transferred to IVI pursuant to Section 3(h)
(the "IVI Stock") free and clear of any liens or other encumbrances,
other than the restrictions imposed by the respective Stock Purchase
Agreements by which such shares were originally issued by IVI to Mayo;
(ii) the IVI Stock constitutes all of the capital stock of IVI owned by
Mayo; and (iii) Mayo has no right to acquire any capital stock or other
equity interest or participation in the revenues or profits of IVI,
except for payment of royalties and other amounts as expressly provided
in the various agreements between the parties which remain in force and
effect after the Agreement Date.
9. CONDITIONS TO CLOSING OF SETTLEMENT.
This Agreement, including, without limitation, Mayo's obligation to pay
the consideration described in Section 3 above, is subject to the satisfaction
of the following conditions set forth in items (a) through (f) of this Section
9, which satisfaction shall be evidence by Mayo's execution and delivery of this
Agreement:
(a) Mayo's receipt of duly certified officers' certificates from IVI,
indicating that IVI has obtained the requisite board approvals for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, in form and substance reasonably
acceptable to Mayo's counsel.
(b) Mayo's receipt of (i) the duly executed consent of Xxxxxxxxxx &
Xxxxx, P.A., as Agent for the holders of IVI's Convertible Secured
Debentures under that certain Inter-Creditor Agreement dated November
22, 1996, and that certain Security Agreement dated November 22, 1996
to release the O@sis Purchased Rights from the security interest and
"Collateral" rights referenced in the foregoing documents to the extent
necessary to permit the consummation of the transactions contemplated
hereby, (ii) copies of the duly executed consents of such holders,
which show that the requisite percentage (at least 51%) of such holders
duly executed the applicable consent, and (iii) copies of all UCC-3
Release filings necessary in order for the O@sis Purchased Rights and
O@sis Licensed Rights to be released from the security interest and
"Collateral" rights referenced in the documents listed in item (i)
above.
(c) Mayo's receipt of a legal opinion from the law firm of Xxxxxxxxxx &
Xxxxx, P.A., substantially in the form attached as Exhibit E hereto.
(d) Mayo's reasonable testing, for the period ending at 1:00 p.m.,
Central Daylight Time, Friday, September 12, 1997, of a copy of the
O@sis Site at a location in Rochester, Minnesota to be specified by
Mayo, and Mayo's good faith determination that such copy is a complete
and accurate version of the O@sis Site as of the date such copy was
made, less Third Party Software.
(e) Delivery, free and clear of any liens or encumbrances, of the hard
drive containing the above referenced test copy in source and object
code to Mayo's possession and control.
(f) Mayo's receipt of a true and accurate copy of a letter from IVI to
Microsoft Corporation stating that IVI wishes to assign its rights and
delegate its duties under the Microsoft Agreement to Mayo.
(g) IVI's receipt by wire transfer of the $2,957,937 payment described
in Section 3(a) above.
10. ROYALTY PAYMENTS.
(a) Royalties. All O@sis Royalties and Non-O@sis Royalties shall be
payable to IVI on a quarterly basis within sixty (60) days of the end
of each calendar quarter for the periods indicated in Section 3(e) and
3(f), respectively. Each such payment shall be accompanied by a
reasonably detailed statement setting forth the basis for Mayo's
calculations of such royalties for the quarterly period. All payments
shall be in U.S. dollars and made by check.
(b) Audit Rights. To confirm proper calculation and payment of the
O@sis Royalties and/or Non-O@sis Royalties, as the case may be, IVI
shall have the following audit rights:
(i) IVI and its auditor shall have access to inspect Mayo's
books and records with respect to such royalties for up to the
previous three (3) years during Mayo's normal business hours,
at a mutually convenient time and upon reasonable prior
notice;
(ii) IVI may not have more than one (1) audit per year and may
not audit the same royalty period more than once;
(iii) any audit shall be at IVI's own expense unless the audit
reveals an underpayment of royalties of at least ten percent
(10%) of the sum owed or twenty thousand dollars ($20,000),
whichever is greater, in which case Mayo shall reimburse IVI's
reasonable costs incurred in the audit;
(iv) any auditor selected by IVI shall be subject to Mayo's
reasonable approval and shall execute a confidentiality
agreement as a condition to such access, restricting the use
of such Mayo data to assuring IVI's proper calculation and
payment of such royalties;
(v) Mayo's own auditors may witness any IVI audit; and
(vi) these IVI audit rights shall terminate on December 31,
2002.
11. CONFIDENTIALITY OF SETTLEMENT TERMS.
(a) The terms of this Agreement are and shall remain confidential.
(b) Any breach of the confidentiality provisions of this Agreement by
either party to this Agreement or its agents or attorneys shall be
considered a material breach of the Agreement.
(c) The parties agree upon a statement that they will respond to any
questions from third parties concerning the relationship of the parties
and conclusion of the disagreements with respect to the O@sis Site
solely in a manner consistent with the disclosure in the joint press
release described in Section 11(d)(iv) below.
(d) Notwithstanding the foregoing, each party is and shall be entitled:
(i) to disclose and discuss the terms and conditions of this
Agreement with its legal counsel and with its accountants or
tax advisors, provided such persons have agreed to keep all
such information confidential and not disclose such
information to any other person or entity;
(ii) to make such disclosures as are necessary for any
governmental taxing authority or as required by law, subpoena
or any court order;
(iii) to comply with the rules of any stock exchange or the
rules and regulations of the Securities and Exchange
Commission (or any equivalent state regulatory body) in
respect of legally required disclosures of material facts and
circumstances; and
(iv) to issue the joint press release for distribution to the
media and interested third parties, a copy of which is
attached hereto as Exhibit F.
(e) The parties agree to inform each other or the other's legal counsel
promptly and in writing in the event any subpoena or other process is
served upon any of them attempting to obtain any of the information
protected from disclosure by this Agreement.
12. MUTUAL NON-DISPARAGEMENT.
Neither party shall, at any time, disparage, demean or criticize the
technology, products or management of the other party and its subsidiaries,
affiliates and related entities, or do or say anything to cause injury to the
reputation of the other party and its subsidiaries, affiliates and related
entities or their respective officers, directors, shareholders, employees, or
products. Notwithstanding the foregoing, neither party shall be prohibited from
publicly correcting through any media (in a non-disparaging manner) any factual
errors made by the other party with respect to the parties' dealings, this
Agreement or any other agreements or dealings between the parties.
13. INDEMNIFICATION.
(a) IVI hereby indemnifies and holds Mayo, its officers, directors,
employees and agents harmless from all liability, demands, damages,
expenses, losses, fees (including reasonable attorney's fees) and
settlements for any breach of the representations and warranties made
by IVI herein.
(b) Mayo hereby indemnifies and holds IVI, its officers, directors,
employees and agents harmless from all liability, demands, damages,
expenses, losses, fees (including reasonable attorney's fees) and
settlements for any breach of the representations and warranties made
by Mayo herein.
14. MUTUAL RELEASE.
Except for any claims (including, without limitation, claims for
failure to pay royalties or required reimbursement of expenses or payment of
fees) related to the EP Versions produced by IVI for Mayo under the terms of any
agreement between the parties, including, without limitation, the 1993 Agreement
and the 1994 Agreement, the parties agree as follows:
(a) IVI does hereby release, acquit and forever discharge Mayo from any
and all manner of action or actions, suits, arbitrations, claims,
damages, levies, and executions, whether known or unknown, liquidated
or unliquidated, fixed or contingent, direct or indirect, permanent or
progressive, which it ever had, has or ever can, shall or may have or
claim to have against Mayo, or any of them, for or by reason of any
cause, matter or thing whatsoever prior to the date of this Agreement,
including but not limited to claims arising out of or related to the
1994 Agreement.
(b) Mayo, and each of them, do hereby release, acquit and forever
discharge IVI from any and all manner of action or actions, suits,
arbitrations, claims, damages, levies, and executions, whether known or
unknown, liquidated or unliquidated, fixed or contingent, direct or
indirect, permanent or progressive, which they or any of them ever had,
has or ever can, shall or may have or claim to have against IVI for or
by reason of any cause, matter or thing whatsoever prior to the date of
this Agreement, including but not limited to claims arising out of or
related to the 1994 Agreement.
(c) Each of Mayo and IVI covenants not to xxx or bring any other
proceeding against the other or any party released herein on account of
any claim released hereby.
15. NO ADMISSION OF LIABILITY BY EITHER PARTY.
It is specifically understood and agreed that the execution of this
Agreement is part of a settlement and compromise of potential claims between the
parties and, accordingly, this Agreement and the consummation of the
transactions contemplated hereby are not to be construed as an admission of any
liability or fault whatsoever by either IVI or Mayo.
16. ADVICE OF INDEPENDENT OUTSIDE LEGAL COUNSEL.
The undersigned parties, by execution hereof, specifically acknowledge
that they are, and have been, represented by their own independent legal counsel
in connection with the negotiation, drafting and signing of this Agreement and
the matters referred to above, that the undersigned parties understand and fully
agree to each, all and every provision of this Agreement, and that they have
received a copy of this Agreement. If there is any dispute between the parties
as to the meaning of any provision of this Agreement, the interpretation thereof
shall be without regard to which party may have drafted such provision.
17. ENTIRE AGREEMENT.
This Agreement and the Exhibits attached hereto (which are incorporated
herein by this reference) constitute the entire agreement of the parties
relating to the subject matter hereof and specifically supersedes and cancels
the letter agreement between IVI and Mayo dated August 20, 1997, and there are
no agreements or understandings (oral or written) among the parties with respect
to the subject matter hereof other than those set forth or referred to herein or
therein. The Recitals set forth in the opening of this Agreement are also
incorporated herein and constitute an important part of this Agreement.
18. GOOD FAITH COOPERATION.
The parties shall execute any and all additional documents that may be
required to carry out the purposes of this Agreement, including, without
limitation, any other documents reasonably requested by Mayo or its legal
counsel to perfect Mayo's right, title and interest in and to the O@sis
Purchased Rights or any portion thereof, the license of the O@sis Licensed
Rights and/or the sublicense of the USP Content.
19. WAIVER OR AMENDMENT.
The terms of this Agreement may be modified, amended, or any provisions
hereof waived only by mutual consent of the parties hereto as reflected in a
writing executed fully by all signatories hereto.
20. BINDING EFFECT.
This Agreement shall be binding upon the parties and their respective
heirs, successors and assigns only after its execution by both parties.
21. NOTICES.
Any notice or request required or permitted under or related to this
Agreement shall be in writing and provided in one of the following methods to
the persons and address noted below, or to such other persons or addresses as
either party may hereafter furnish in writing to the other party:
(a) Delivered personally, which notice or request is effective upon
receipt;
(b) Sent by certified or registered U.S. mail, postage prepaid, which
notice or request is effective upon written confirmation of receipt;
(c) Sent by overnight courier, which notice or request is effective
upon confirmation of receipt; or
(d) By facsimile, which notice or request is effective upon
confirmation of receipt by the receiving party.
To IVI: IVI Publishing, Inc.
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: President
Facsimile: 612/996-6001
With a copy to: Xxxx, Xxxxxx & Xxxxxxxxx
Xxx Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Pucker
Facsimile: 312/269-1747
To Mayo: Mayo Medical Ventures
000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Director
Facsimile: 507/284-5410
With a copy to: Xxxxxx & Xxxxxxx LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: 612/340-8827
22. VENUE; LAW; MATERIAL BREACH; ATTORNEY FEES.
Either party may seek damages or injunctive relief, as the case may be,
in the United States District Court for the District of Minnesota, if federal
jurisdiction is available, or in any District Court for the State of Minnesota,
for any material breach of this Agreement if the breaching party has not cured
such breach within thirty (30) days of written notice thereof from the
non-breaching party; provided, however, that Mayo shall not bring any proceeding
related to, or pursuant to, this Agreement in any court sitting in Olmsted
County, Minnesota. The prevailing party in any such legal proceeding shall be
entitled to its reasonable costs and attorney fees in addition to any other
relief which may be granted by such court.
23. SEVERABILITY.
To the extent that any provision of this Agreement shall be determined
to be invalid or unenforceable, the invalid or unenforceable portion of such
provision shall be deleted from this Agreement, and the validity and
enforceability of the remainder of such provision and of this Agreement shall be
unaffected.
24. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which, taken together, shall constitute one
agreement. The parties agree that telefaxed copies of signatures will be
sufficient to exchange at the closing meeting, with original signature pages to
be supplied and exchanged at a later date.
25. CLOSING AND DATE OF CLOSING.
A closing meeting for the execution, delivery and/or exchange of the
documents, payments, and other consideration required by this Agreement, not yet
executed and delivered by the parties prior to the Agreement Date shall be held
at the offices of Xxxxxx & Xxxxxxx LLP. The closing shall be at a date and time
to be agreed upon by counsel for the parties, but in no event later than 4:00
p.m., Central Daylight Time, Friday, September 12, 1997.
26. EXPENSES.
All costs and expenses incurred by either party in connection with the
negotiation, drafting, execution and delivery of this Agreement, including the
attorney's fees of such party, shall be paid by the party incurring such costs
and expenses.
27. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement is intended, nor shall it be construed, to
confer any rights or benefits upon any person or entity other than Mayo and IVI,
and no other person or entity shall have any rights or remedies hereunder.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IVI PUBLISHING, INC. MAYO FOUNDATION FOR
MEDICAL EDUCATION AND RESEARCH
/s/ Xxx Xxxxxxx /s/ Xxxx X. Xxxxxx
Signature Signature
Xxx Xxxxxxx Xxxx X. Xxxxxx
Name Name
CEO & PRESIDENT
Title Title
