Exhibit 10.9
INCIID
This agreement, made this 15th day of January 1999, is made by and between
INCIID (the International Council on Infertility Information Dissemination), a
Virginia nonprofit corporation exempt from federal income tax under section 501
(c)(3) of the Internal Revenue Code, with its principle place of business
located at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, and principle
place of business located at 00000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx Xxxxxxxx 000000,
and Xxxxxxxxxxx.xxx Limited, hereinafter referred to a s "Mediconsult", a
Bermuda corporation, with it principal place of business located at
------------ -----------------------------------------------------.
WHEREAS INCIID, as a nonprofit, tax-exempt corporation relies of the
support of its sponsors and contributors to make its activities and programs
possible; and
WHEREAS, Mediconsult desires to support the mission and activities of
INCIID by becoming the exclusive sponsor of INCIID's Internet site; and
WHEREAS, Mediconsult seeks to drive visitors from XXX.XXXXXX.XXX (the
"Site") to its World Wide Web sites, including XXX.XXXXXXXXXXX.XXX (the
"Mediconsult Web site"), to acquire new and repeat visitors, to increase traffic
for healthcare content, and to reinforce the Mediconsult brand; and
WHEREAS, INCIID and Mediconsult now desire to enter into this Agreement
whereby Mediconsult shall be the exclusive sponsor of INCIID Web sites, subject
to the terms and conditions stated herein;
THEREFORE, INCIID and Mediconsult agree as follows:
1. EXCLUSIVE SPONSOR. Mediconsult agrees to become the exclusive sponsor of
INCIID's Internet web site located at XXX.XXXXXX.XXX. As exclusive sponsor,
Mediconsult will have the sole right to place sponsor messages on the web site
and that no advertising links, promotional information or marketing materials
from third parties shall be placed or displayed on the Site without the prior
written approval of Mediconsult. However, INCIID staff will introduce
Mediconsult to its existing and potential sponsors and encourage these sponsors
to continue and expand their sponsorship messages on the web site. In addition,
INCIID will not (a) sell, or permit any other person or entity to sell, any
advertising or products or services or make any links on or to the Site; (b)
use, or permit any other person or entity to use, all or any part of INCIID's
user information database; (c) license, link or otherwise make its content
available on the World Wide Web to any other person or entity; or (d) own or
operate any other Web site for which Mediconsult is not the exclusive sponsor as
herein provided.
2. SPONSORSHIP FEE. As the exclusive sponsor of INCIID's Internet web site,
Mediconsult agrees to donated Five-Hundred-Thousand Dollars (500,000.00) in cash
or common stock of Xxxxxxxxxxx.xxx per year for each and every year of the terms
of this agreement. It is agreed and understood by INCIID that the donation is to
be used to directly support INCIID's activities with respect to it web site and
that at least 80% of the donation will be so used. It is further agreed and
understood that a majority of INCIID staff time, including the time of its
current President and Executive Director, will be spent on the INCIID web site.
In addition, INCIID will not (a) sell, or permit any other person or entity to
sell, any advertising or products or services or make any links on or to the
Site; (b) use, or permit any other person or entity to use, all or any part of
INCIID's user information database; (c) license, link or otherwise make its
content available on the World Wide Web to any other person or entity; or (d)
own or operate any other Web site for which Mediconsult is not the exclusive
sponsor as herein provided.
INCIID Agrees to the extent possible, to transfer any and all current sponsor
agreements to Mediconsult as of the beginning date of this Agreement. The manner
of execution of the transfer will be agreed between all parties. Revenue from
existing INCIID sponsorship agreements will be apportioned based on the full
length of the agreement and the period of that agreement that overlaps with this
.
The donation shall be payable in equal, quarterly funding of One Hundred
Twenty-Five Thousand Dollars ($125,00.00) each, payable on or before January 15,
1April 15, July 15, and October 15 of each calendar year throughout the term of
this Agreement. In addition, Mediconsult shall pay a royalty equal to ten
percent (10%) of any revenues that exceed $500,000.00 per year that Mediconsult
generated that are directly related to sponsorship of the INCIID Internet site.
[Any sponsor recognition or message that appears, in any form, on the INCIID web
site will be considered a sponsorship directly related to the INCIID site for
purposes of this Agreement.] Products or services on or purchased through a
Mediconsult web site will not be directly related to the INCIID site. Royalty
payments shall be paid quarterly, during the quarter in which Mediconsult
received sub-sponsorship fees, according to the sponsorship fee payment schedule
detailed within this paragraph.
Mediconsult agrees to maintain and preserve full, complete and accurate books,
records, and accounts in accordance with generally accepted accounting
principles of any and all sponsorship and other fees received directly related
to the INCIID web site and this Agreement. Mediconsult shall provide quarterly
reports of these earning to INCIID, along with its quarterly sponsorship and
royalty payments to INCIID. INCIID or an independent certified public accountant
designated by it an reasonably acceptable to Mediconsult shall have the right at
all reasonable times during normal business hours upon reasonable prior notice,
at its expense, to review the books, records, [including sub-sponsor contracts],
in addition, INCIID will not (a) sell, or permit any other person or entity to
sell, any advertising or products or services or make any links on or to the
Site; (b) use, or permit any other person or entity to use, all or any part of
INCIID's user information database; (c) license, link or otherwise make its
content available on the World Wide Web to any other person or entity; or (d)
own or operate any other Web site
3
for which Mediconsult is not the exclusive sponsor as herein provided in
addition to interest form the date such amount was due until paid, at one and
one-half percent (1.5) per month or the maximum rate permitted by law, whichever
is less. If an inspection discloses an understatement in any report of five
percent (5%) or more, Mediconsult shall, in addition reimburse INCIID for any
and all out-of-pocket costs and expenses of such accountant connected with the
inspection
3. RECOGNITION. To recognize and acknowledge Mediconsult's donation, INCIID
agrees to:
o Include Mediconsult's name and logo on INCIIDS's Internet site,
identifying Mediconsult as the exclusive sponsor of the website.
o Incorporate navigation bars, links and other navigational devices
reasonably requested by Mediconsult to enable visitors to navigate
both INCIID's site and Mediconsult's site more easily;
o Provide other recognition of Mediconsult's sponsorship as mutually
agreed between the parties and as permitted by the rules and
regulations of the Internal Revenue Service with respect to
nonprofit organizations exempt form tax under section 501(C)(3) of
the Internal Revenue Code.
o Allow such sponsorship as agreed upon by Mediconsult and INCIID to
appear on the web site.
o Share linking between the INCIID and Mediconsult websites.
o Enable visitors to the Site or purchase products or services through
Mediconsult's sites. INCIID acknowledges that Users who purchase
goods or services will be deemed to be visitors of Mediconsult and
subject to all rules, policies and operating procedures concerning
visitors, orders, customer service and sales. Mediconsult may change
its policies and operating procedures at any time.
Mediconsult agrees to be solely responsible for any and all costs related to
special programming or coding necessary to include sponsor messages on the
INCIID web site.
4. REPORTING. INCIID shall report to Mediconsult regarding the programs and
activities of the INCIID website at least quarterly, In addition, INCIID agrees
to make its web site log files available to Mediconsult for Mediconsult's own
analysis, including allowing Mediconsult to send such files off INCIID's server
for such analysis by Mediconsult. INCIDD further agrees to allow programming
changes to take place on its web site, and to add additional software as
requested to do so by Mediconsult, to support Mediconsult's reporting and
analysis activities. Mediconsult agrees to be responsible for the cost of any
software and any requested programming, which software and changes INCIID agrees
to implement on its web site. Quarterly reports shall include:
o Budget reports;
o Website content information including reports on prior, new and
future content plans; and
o Other information as mutually agreed between Mediconsult and INCIID.
4
5. OWNERSHIP. The parties understand and agree that all information residing
on their respective websites is and shall remain the sole and exclusive
property of website owner, including but not limited to copyright to the
information. The parties understand and agree that materials and
information jointly developed by INCIID and Mediconsult, such as but not
limited to transcripts of auditoriums sponsored jointly by INCIID and
Mediconsult, regardless of the equipment used to conduct, or the "place"
of such auditoriums, shall be and remain the joint property of INCIID and
Mediconsult, It is further agreed and understood that INCIID shall not
develop any web site content for use on any website other than the Site,
or jointly with any other sponsor during the term of this Agreement,
unless such joint content development is mutually agreed to in advance by
Mediconsult. INCIID hereby grants to Mediconsult, during the term of this
Agreement and any extensions or renewals thereof, an exclusive,
royalty-free license to establish hyperlinks between the parties' Web
Sites and to use INCIID's trade names, logos, trademarks and service marks
(the "INCIID Marks") as is reasonably necessary to establish and promote
such hyperlinks and to otherwise perform its obligations under this
Agreement; provided, however, that any promotional materials or usages
containing any of the INCIID Marks will be subject to INCIID's prior
written approval.
INCIID and Mediconsult warrant that they have the right to use all
materials and information included on their respective websites, including
owning and/or holding copyright and trademark rights to xxx any and all
such materials an information, and that all content and other similar
information and materials used on their respective websites is lawful and
does not violate any federal, state or local laws and regulations and is
not legally threatening or obscene.
6. TERM. The term of this agreement shall be for three (3) years, beginning
January 1, 1999 and ending December 31, 2001. This agreement may be
renewed for subsequent three (3) year terms upon the mutual written
consent of both parties. - The parties agree to discuss, in good faith,
prior to the end of the initial term, the status of the relationship of
the parties and the terms of this Agreement. Notwithstanding the
foregoing, if the parties agree to renew this Agreement, the terms of the
Agreement, including without limitation the compensation terms stated in
Section 2 below, shall remain in full force and effect without amendment.
However, if before the expiration of the initial term INCIID receives a
bona fide offer from a third party to become the exclusive sponsor of or
have another exclusive relationship with the Site on financial terms more
advantageous to INCIID than those stated in Section 2 herein and provides
Mediconsult with written notice and a copy of such offer, Mediconsult will
have the right, by notice to INCIID in writing within thirty (30) days of
receiving such notice, to match the financial terms offered by such third
party for the renewal term. If Mediconsult notifies INCIID that it is
willing to renew this Agreement upon the amended
5
financial terms, then those terms shall be applied to the renewal term,
notwithstanding anything in this Agreement to the contrary. If Mediconsult
does not notify INCIID that it is willing to amend the financial terms of
this Agreement for the renewal term within thirty (30) days of receiving
such notice, then INCIID shall have fifteen (15) days thereafter to give
Mediconsult written notice to terminate this Agreement at the end of the
initial term and may then enter into an agreement with such third party on
the amended terms last offered to Mediconsult.
7. TERMINATION. This agreement may only be terminated by the non-breaching
parties upon the material breach of any of its terms, including but not
limited to the failure of INCIID to acknowledge Mediconsult's sponsorship
of INCIID's website pursuant to the terms of this Agreement or
Mediconsult's failure to timely pay sponsorship and/or royalty fees
pursuant to the terms of this Agreement,. As follows: Upon a material
breach of the contract, non-breaching party shall give the thirty (30)
days to cure the breach. If the breach is not cured within the 30-day
period. The contract will terminate immediately at the end of the 30-day
cure period. This agreement may also be terminated upon mutual written
agreement of the parties. Notwithstanding the foregoing, if such breach
involves the payment of money and is not cured or otherwise resolved by
the parties in writing within fifteen (15) days after receipt by
Mediconsult of such notice, INCIID shall be entitled to initiate an audit
under Section 2. In the event of such an audit, if the Auditor shall
render an award of monetary damages payable to INCIID, and such amount
shall remain unpaid for ten (10) days after Mediconsult receives a copy of
such judgment from INCIID, INCIID shall be entitled to terminate this
Agreement.
Upon termination of this agreement for any reason, Mediconsult shall pay,
in full, all sponsorship and royalty fees due through and including the
termination date within 30 days of the termination date, and shall have no
further responsibilities for any quarterly payments. Royalty fees are
payable when earned and after receipt by Mediconsult. Following
termination, the parties agree to contin8e to honor any sub-sponsorship
agreements undertaken by Mediconsult prior to the termination date in
accordance with the terms of the Agreement, including INCIID's continued
recognition of such sub-sponsorships on its web site provided that
Mediconsult or such Sub-sponsor continues to make payment to INCIID for
any and all royalties arising from such sponsorships.
8. CONTINUOUS SERVICE. Both INCIID and Mediconsult will use reasonable
efforts to provide continuous availability of their respective websites on
the Internet. It is understood and agreed between the parties to this
Agreement that availability of the websites will be subject to periodic
interruption files, and downtime related to equipment or services outside
the control of the parties, including public and private
telecommunications services or Internet nodes or facilities. The parties
agree that they and their respective officers, employees and agents shall
not be liable for any direct, indirect, incidental, special or
6
consequential damages that result form such periodic interruptions in
service. On a [quarterly] basis, INCIID will use its best efforts to
provide Mediconsult with mutually agreed data concerning search and
browsing behavior on the Site, to the extent such behavior reasonably
could relate to online promotions or sales of goods or services.
Mediconsult shall treat such data as Confidential Information and will not
use it except in accordance with reasonable guidelines to be agreed by the
parties. Notwithstanding anything contained in this Section, INCIID will
not be required to deliver to Mediconsult any user data in violation of
its then-existing policies regarding the protection of user information.
9. FORCE MAJEURE . The parties' performance of this Agreement is subject to
acts of God, war, government regulation, terrorism, disaster, strikes,
civil disorder, or any other emergency beyond the control of the parties
making it inadvisable, illegal, or impossible to perform their obligations
under this Agreement. Either party may suspend their performances under
this Agreement as necessitated by the particular act of God, for any one
or more of such reasons upon written notice to the other without
liability, penalty, or cancellation fees.
10. INDEMNIFICATION. INCIID agrees to indemnify, defend and hold harmless
Mediconsult, its officers, employees and agents, from any and all demands,
liabilities, losses, costs and claims, including reasonable attorney's
fees and costs of litigation, that may arise or result directly or
indirectly from INCIID's entering into this Agreement, including INCIID's
activities with respect to its Internet web site, any breach of this
Agreement or the violation of third-party property rights by any materials
provided by it for display on the Site, except for any claim that arises
form the gross negligence of INCIID, its officers, employees and agents.
11. CONFIDENTIALITY. The terms and conditions of this Agreement, as well as
any information, records or proprietary information exchanges between the
parties with respect to this Agreement, will remain confidential to the
parties, unless otherwise mutually agreed in writing to be disclosed by
the parties or where required by law to disclose the information. It is
agreed and understood, however, that the parties may disclose such
information to their accountants, legal financial and marketing advisors,
and employees as necessary for the performance of this Agreement, provided
that such person s agree to treat the information as confidential.
12. MISCELLANEOUS. This Agreement, and INCIID Sponsorship Addendum attached
hereto, contains the entire agreements and understanding between the
parties with respect to the subject matter discussed in this Agreement and
supersedes any prior oral or written agreement, commitments,
understandings or communications between the parties. This Agreement shall
be governed by and construed in accordance with the laws of the State of
New York. If any part of this Agreement shall be found or held invalid or
unenforceable by any court or
7
governmental agency of competent jurisdiction, such invalidity, or
unenforceability shall not affect the remainder of this Agreement which
shall survive and be construed as if such invalid or unenforceable part
had not been contained, Herein. In the vent that a dispute arises between
the parties, both parties agree that it should be arbitrated pursuant to
the rules of the American Arbitration Association (AAA) at the office of
the AAA maintained in New York City. If any party to this Agreement
breaches any of the terms of this Agreement, then that party shall pay to
the non-defaulting party all of the non-defaulting part's costs and
expenses, including but not limited to reasonable attorney's fees and
costs of litigation and arbitration, incurred by the non-defaulting party
in enforcing the terms of this Agreement. This Agreement shall be binding
upon the parties hereto, their assigns, successors, heirs, executors and
administrators.
13. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original. But all of which together shall
constitute one and the same instrument.
By our signatures we agree on behalf of our respective organizations to
the terms and conditions of this sponsorship agreement as of the first
date specified above.
FOR XXXXXXXXXXX.XXX, LIMITED FOR THE INTERNATIONAL COUNCIL ON
INFERTILITY INFORMATION DISSEMINATION, INC.
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx Xxxxx Grant
----------------------- --------------------------
Xxxxxx Xxxxxxxx, CEO Xxxxxxx Xxxxx Grant, President
8
