EXHIBIT 10.12
CONTENT LICENSE AGREEMENT
This agreement ("Agreement") is entered into as of the 11th day of December,
1998 ("Effective Date"), by and between Excite, Inc., a Delaware corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Empower
Health Corporation, a Texas corporation, located at 0000 Xxxxxxxx Xxxx Xxxxx,
Xxxxxxxx Xxxxx, Xxxxxx, XX 00000 ("Content Provider").
RECITALS
A. Excite maintains sites on the Internet at xxxx://xxx. xxxxxx.xxx (the
"Excite Site") and at xxxx://xxx.xxxxxxxxxx.xxx (the "Webcrawler Site"),
and owns and/or manages related Web sites worldwide (collectively, the
"Excite Network") which, among other things, allow its users to search for
and access content and other sites on the Internet.
B. Excite also maintains and/or manages certain Web pages which may be
delivered to users worldwide via email, desktop "channels" or Internet
"push" technologies (collectively, "Broadcast Pages") which may incorporate
content supplied to Excite by third parties for the purpose of providing
value to Excite users and providing access to the content, products and/or
services of such third parties.
C. Content Provider owns or has the right to distribute certain health content
and maintains a related site on the Internet at xxxx://xxx.xxxxxx.xxx (the
"Content Provider Site").
D. Excite and Content Provider wish to distribute Content Provider's content
through the Excite Network and/or Broadcast Pages.
Therefore, the parties agree as follows:
1. CONTENT PROVIDED TO EXCITE
a) Content Provider will provide to Excite the content described in
Exhibit A (the "Content"). The Content will comply with the
description a technical specifications attached hereto as Exhibit A;
provided, however, that Content Provider does not warrant that the
Content is error free. Content Provider warrants that Content will
comply with the description and technical specifications contemplated
by this Agreement.
b) Excite may incorporate the Content into certain pages in the Excite
Network (the "Content Pages) and reasonable excerpts or portions of
the Content may be incorporated into Broadcast Pages, at Excite's
discretion.
c) Content Provider will have sole control and responsibility over the
data and information contained in the Content. Content Provider and
Excite will mutually agree on reasonable legal and medical disclaimers
for the Content Pages and the Broadcast Pages.
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Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
d) Content Provider will get prominent branding on the Content Pages. The
exact type and placement of the branding will be mutually determined
by Content Provider and Excite.
e) Content Provider and Excite will determine mutually agreeable methods
for the transmission and incorporation of updates to the Content.
Other than updates to the Content, Content Provider will not alter the
Content without Excite's prior consent; provided, however, that
Content Provider may promptly and without prior consent of Excite make
any changes in the Content to correct errors and the like, or to
remove any defamatory materials or any other materials that Content
Provider can demonstrate via user feedback are offensive to a
reasonable number of users of Content Provider Site.
f) Excite will have sole control over the "look and feel" of the Excite
Network. Excite will have sole control over the content, composition,
"look and feel" and distribution of the Broadcast Pages. Excite will
have sole responsibility for providing, hosting and maintaining, at
its expense, the Excite Network and for providing and delivering the
Broadcast Pages.
g) Content Provider will have sole responsibility for providing, at its
expense, the Content to Excite.
h) Content Provider will be able to provide the Content to other partners
at its discretion.
2. ADVERTISING; USAGE REPORTS; PUBLICITY
a) Excite will be solely responsible for selling any advertising on the
Excite Network.
b) Excite will pay Content Provider on a quarterly basis * * * of the
"Net Advertising Revenue" that accrues to Excite during the term of
this Agreement from banner advertising that appears on "Advertising
Pages." "Net Advertising Revenue" means all banner advertising revenue
that accrues to Excite during the applicable payment period * * *.
"Advertising Pages" mean Content Pages that display the Content or any
portion thereof and with respect to which at least a majority of the
content (excluding advertisements) on such pages is composed of the
Content. "Advertising Pages" specifically exclude Excite and
Webcrawler search results pages.
c) Payments by Excite to Content Provider will be due within thirty (30)
days of the end of each calendar quarter.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
d) With each payment, Excite will provide to Content Provider
documentation reasonably detailing the calculation of the payment.
e) Excite will maintain accurate records with respect to the calculation
of all payments due under this Agreement. Content Provider may, upon
no less than thirty (30) days' prior written notice to Excite and no
more than once per year, cause an independent Certified Public
Accountant to inspect the records of Excite reasonably related to the
calculation of such payments during Excite's normal business hours.
The fees charged by such Certified Public Accountant in connection
with the inspection will be paid by Content Provider, unless any such
inspection reveals any underpayment of fees by Excite of greater than
ten percent (10%) in which event Excite shall reimburse Content
Provider for any reasonable fees charged by such Certified Public
Accountant in connection with such inspection.
f) Excite will provide Content Provider via email usage reports
containing the total number of page views generated by links from the
Excite Network to the Advertising Pages. Each Usage Report will cover
a calendar month and will be delivered within fifteen (15) days
following the end of the applicable month.
g) Except as otherwise set forth in this Agreement, neither party will
make any public statement, press release or other announcement
relating to the terms of or existence of this Agreement without the
prior written approval of the other.
3. CONTENT OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and to
the Content worldwide (including, but not limited to, ownership of all
copyrights and other intellectual property rights therein). Subject to
the terms and conditions of this Agreement, Content Provider hereby
grants to Excite a non-exclusive, worldwide license to use, reproduce,
distribute, transmit and publicly display the Content in accordance
with this Agreement and to sub-license the Content to Excite's wholly-
owned subsidiaries or to joint ventures in which Excite participates
for the sole purpose of using, reproducing, distributing, transmitting
and publicly displaying the Content in accordance with this Agreement.
Excite's only payment obligation to Content Provider in consideration
for such license is set forth in Section 2.
b) Excite will retain all right, title, and interest in and to the Excite
Network and the Broadcast Pages worldwide (including, but not limited
to, ownership of all copyrights, look and feel and other intellectual
property rights therein).
4. TRADEMARK OWNERSHIP AND LICENSE
a) Content Provider will retain all right, title and interest in and to
its trademarks, service marks and trade names worldwide, including any
goodwill associated therewith, subject to the limited license granted
to Excite hereunder. Any use of any such trademarks by Excite shall
inure to the benefit of Content Provider and
Excite shall take no action that is inconsistent with Content
Provider's ownership thereof.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, including any
goodwill associated therewith, subject to the limited license granted
to Content Provider hereunder. Any use of any such trademarks by
Content Provider shall inure to the benefit of Excite and Content
Provider shall take no action that is inconsistent with Excite's
ownership thereof.
c) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each party's reasonable policies regarding advertising
and trademark usage as established from time to time.
d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
(i) As the parties may agree in writing; or
(ii) To the extent permitted by applicable law.
5. TERM
The term of this Agreement will begin on the Effective Date and will end
one year thereafter. This Agreement will automatically renew for additional
terms of one year each, unless either party notifies the other in writing
at least thirty (30) days prior to automatic renewal that it does not wish
to renew this Agreement.
6. TERMINATION
a) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach remains
uncured for thirty (30) days following the notice to the breaching
party of the breach, with the following exceptions:
(i) In the event of three or more material errors, failures or
outages of the Content in any thirty (30) day period, Excite
may elect to immediately terminate this Agreement upon the
third such event by written notice to Content Provider and
enter into other arrangements for the acquisition of similar
content:
(ii) Content Provider will ensure that the Content will at all times
be at least comparable to or better any other source of similar
topical content available on the Internet in terms of the
following factors, taken as a whole: (i) breadth and depth of
coverage, (ii) timeliness of content updates and (iii)
reputation and ranking based on a cross-section of third party
reviewers in terms of topics covered, accuracy of included
information and other qualitative factors. In the event that
Content Provider fails to meet these quality criteria, Excite
may terminate this Agreement on thirty (30) days' written
notice and enter into other arrangements for the acquisition of
similar content.
b) All payments that have accrued prior to the termination or expiration
of this Agreement will be payable in full within thirty (30) days
thereof.
c) The provisions of this Section 6 (Termination), Section 7
(Confidentiality), Section 8 (Warranty and Indemnity), Section 9
(Limitation of Liability) and Section 10 (Dispute Resolution) will
survive any termination or expiration of this Agreement.
7. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
activities that is proprietary and confidential, which shall include
all business, financial, technical and other information of a party
marked or designated by such party as "confidential" or "proprietary,"
or information which, by the nature of the circumstances surrounding
the disclosure, ought in good faith to be treated as confidential.
b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently
without reference to the Confidential Information of the disclosing
party.
c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all
Confidential Information of the other party in its possession or
control, which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) The information contained in the Usage Reports provided by each party
hereunder will be deemed to be the Confidential Information of the
disclosing party.
f) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
8. WARRANTY AND INDEMNITY
a) Content Provider warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, any and
all Content provided to Excite hereunder.
b) Except for the Content, Excite warrants that it owns, or has obtained
the right to distribute and make available as specified in this
Agreement the Content Pages and Broadcast Pages.
c) Content Provider will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
(i) Its breach of any warranty, representation or covenant in this
Section 8; or
(ii) Any claim that the Content infringes or violates any third
party's copyright, patent, trade secret, trademark, right of
publicity or right of privacy or contains any defamatory
content; or
(iii) Any claim that the Content and/or its display on the Excite
Network violate any state, federal or local laws, regulations
or statues, including but not limited to, restrictions on the
practice of medicine; or
(iv) Any claim of personal injury or product liability with respect
to the Content displayed to consumers on the Excite Network.
Excite will promptly notify Content Provider of any and all such
claims and will reasonably cooperate with Content Provider with the
defense and/or settlement thereof, which defense and/or settlement
shall be controlled by Content Provider, provided that, if any
settlement requires an affirmative obligation of, results in any
ongoing liability to or prejudices or detrimentally impacts Excite in
any way and such obligation, liability, prejudice or impact can
reasonably be expected to be material, then such settlement shall
require Excite's written consent (not to be unreasonably withheld or
delayed) and Excite may have its own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
d) Excite will indemnify, defend and hold harmless Content Provider, its
affiliates, officers, directors, employees, consultants and agents
from any and all third, party claims, liability, damages and/or costs
(including but not limited to, attorneys fees) arising from:
(i) Its breach of any warranty, representation or covenant in this
Section 8;
or
(ii) Any claim arising from content displayed on the Excite Network
other than the Content, and any claim arising from any
modification made to the Content by Excite or by Content
Provider at the direction of Excite.
Content Provider will promptly notify Excite of any and all such
claims and will reasonably cooperate with Excite with the defense
and/or settlement thereof, which defense and/or settlement shall be
controlled by Excite, provided that, if any settlement requires an
affirmative obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Content Provider in any way and
such obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require Content
Provider's written consent (not to be unreasonably withheld or
delayed) and Content Provider may have its own counsel in attendance
at all proceedings and substantive negotiations relating to such
claim.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND
HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
REGARDING SUCH SUBJECT MATTER.
9. LIMITATION OF LIABILITY
a) EXCEPT UNDER SECTION 10(c) and 10(d), IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE.
b) EXCEPT UNDER SECTION 10(c), THE LIABILITY OF CONTENT PROVIDER FOR
DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY
OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS
PAYABLE TO EXCITE UNDER THIS AGREEMENT.
c) EXCEPT UNDER SECTION 10(d), THE LIABILITY OF EXCITE FOR DAMAGES OR
ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS ACTUALLY
PAID TO CONTENT PROVIDER.
10. DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is
no adequate remedy at law. Therefore, in the
event of any breach or threatened breach of a party's obligations
regarding trademarks, service marks or trade names or confidentiality,
the aggrieved party will be entitled to seek equitable relief in
addition to its other available legal remedies in a court of competent
jurisdiction. For the purposes of this section only, the parties
consent to venue in either the state courts of the county in which
Excite has its principal place of business or the United States
District Court for the Northern District of California.
b) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation within 30 days after notice of dispute is provided
to the other party, the parties will refer the dispute(s) to the
American Arbitration Association for resolution through binding
arbitration by a single arbitrator pursuant to the American
Arbitration Association's rules applicable to commercial disputes. The
arbitration will be held in the county in which Excite has its
principal place of business.
11. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required
in connection with a merger, reorganization or sale of all, or
substantially all, of such party's assets. Any attempt to assign this
Agreement other than as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of Content
Provider.
c) Notice. Any notice under this Agreement will be in writing and
delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed given upon personal delivery, one (1)
day after deposit with express courier, upon confirmation of receipt
of facsimile or email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set forth below or such
other address as that party may specify in writing pursuant to this
section.
d) No Agency. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint venture.
e) Force Majeure. Any delay in or failure of performance by either party
under this Agreement will not be considered a breach of this Agreement
and will be excused to the extent caused by any occurrence beyond the
reasonable control of such
party including, but not limited to, acts of God, power outages and
governmental restrictions.
f) Severability. In the event that any of the provisions of this
Agreement are held to be unenforceable by a court or arbitrator, the
remaining portions of the Agreement will remain in full force and
effect.
g) Entire Agreement. This Agreement is the complete and exclusive
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a written document
executed by both parties.
Empower Health Corporation Excite, Inc.
By: \s\ Xxxxxx X. Xxxxxxx By: \s\ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxx
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Title: Chief Executive Officer Title: Executive Vice President/Chief
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Financial Officer
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Date: 12/22/98 Date: 12/16/98
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0000 Xxxxxxxx Xxxx Xxxxx 000 Xxxxxxxx
Xxxxxxxx Xxxxx Xxxxxxx Xxxx, XX 00000
Xxxxxx, XX 00000 415-568-6000 (voice)
000-000-0000 (voice) 000-000-0000 (fax)
EXHIBIT A
CONTENT DESCRIPTION AND TECHNICAL SPECIFICATIONS
The content will include content, currently presented on xxxx://xxx.xxxxxx.xxx
or any other Health related presentations directly produced or authored by
Content Provider:
1) X.X.X.X. Database
2) University of Pennsylvania editorial content
3) Reuters news and articles
4) Xx. Xxxxx Xxxxxxxxx'x column and editorial content
5) Multum Database, pharmaceutical/drug information
6) Government Documents and databases as they become available
7) Other content to be mutually agreed upon
Updates to the Content may include new and additional information and
corrections for errors or other misinformation.
Content Provider will meet Excite's technical specifications for the delivery
and maintenance of the Content by January 2, 1999. An FTP site, the databases
and an agreed to retrieval and update methodology will be in place by January 2,
1999.
Changes to the contents format, delivery and timeliness will be mutually agreed
to between Excite and Xx. Xxxx.
