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Exhibit 10.42
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
CONFIDENTIAL
INTERACTIVE SERVICES AGREEMENT
This Interactive Services Agreement (this "Agreement"), effective as of
September 3, 1999 (the "Effective Date"), is made and entered into by and
between America Online, Inc. ("AOL"), a Delaware corporation, with its principal
offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, and Medscape, Inc.
("Interactive Content Provider" or "ICP"), a Delaware corporation, with its
principal offices at 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 (each a
"Party" and collectively the "Parties").
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site and ICP Programming through the AOL Network, subject to the terms and
conditions set forth in this Agreement. Defined terms used but not otherwise
defined in this Agreement shall be as defined on Exhibit B attached hereto.
TERMS
1. DISTRIBUTION; PROGRAMMING
1.1 PROGRAMMING AND DISTRIBUTION. Beginning on a mutually agreed
upon date(s) after the Effective Date, AOL shall provide ICP
with the promotions set forth on Exhibit A-1. The promotions
described on Exhibit A-1 and any other promotions provided by
AOL to ICP shall be referred to as the "Promotions." Subject
to ICP's reasonable approval, AOL will have the right to
fulfill its promotional commitments with respect to any of the
foregoing by providing ICP comparable promotional placements
in appropriate alternative areas of the AOL Network. In
addition, if AOL is unable to deliver any particular
Promotion, AOL will work with ICP to provide ICP, as its sole
remedy, a comparable promotional placement. Except to the
extent expressly described herein, the exact form, placement
and nature of the Promotions shall be determined by AOL in its
reasonable editorial discretion. ICP shall comply with the
programming requirements and provide the Content set forth on
Exhibit A and AOL's provision of Promotions in connection with
any particular AOL Property shall be conditioned upon ICP's
compliance with the programming requirements and provision of
the Content set forth on Exhibit A for such AOL Property.
1.2 CONTENT. The ICP Programming (a) shall consist of the Content
described on the programming plan attached as Exhibit A-2 (the
"PROGRAMMING PLAN"), (b) shall not contain any pointers or
links to any other area on or outside the AOL Network, other
than as expressly described on Exhibit A-2 with respect to
such ICP Programming without AOL's prior written consent, (c)
shall not contain any direct pointers or links to any products
or services which ICP sells in accordance with Section 4.4,
without AOL's prior written consent, and (d) shall not contain
any pointers or links to an area that is promoting any ICP
Tools without AOL's prior written consent. The ICP Internet
Site shall only consist of Content principally focused on
consumer healthcare issues and shall initially focus on those
areas described in the Programming Plan. The ICP Internet Site
shall not contain any pointers or links to an area that is
promoting any ICP Tools other than the Approved ICP Tools. ICP
shall inform AOL of relevant search terms and terminology
associated with popular areas and functionality within the ICP
Internet Site and ICP Programming for AOL's promotional and
Content integration purposes. The inclusion of any additional
Content for distribution through the AOL Network (including,
without limitation, any features, functionality or technology)
not expressly described on Exhibit A shall be subject to AOL's
prior written approval.
1.3 LICENSE. ICP hereby grants AOL (including but not limited to
CompuServe, Digital City, Netscape, ICQ and MovieFone) a
worldwide license to use, market, store, distribute,
reproduce, display, adapt, communicate, perform, transmit, and
promote the ICP Internet Site, the ICP
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Programming and the Licensed Content (or any portion thereof)
through the AOL Network as AOL may determine in its sole
discretion, including without limitation the right to
integrate Content from the ICP Internet Site and/or ICP
Programming by linking to specific areas thereon, provided
that the link to any such Content on the AOL Network shall
conform to the specifications of an ICP Presence. Any Linked
Consumer Versions shall be subject to the foregoing license.
In addition, any Linked ICP Interactive Sites shall be subject
to the foregoing license to the extent consistent with
Medscape's underlying rights to materials on such sites.
1.4 MANAGEMENT. ICP shall design, create, edit, manage, review,
update (as close to daily as commercially reasonable or as
otherwise specified herein), and maintain the ICP Internet
Site, ICP Programming and the Licensed Content in a timely and
professional manner and in accordance with the terms of this
Agreement and shall keep the Licensed Content current,
materially accurate and well-organized at all times. ICP shall
ensure that the Licensed Content within the ICP Internet Site
and ICP Programming is equal to or better than any comparable
Content distributed by ICP through any other ICP Interactive
Site in all material respects, including without limitation,
quality, breadth, timeliness, functionality, features, prices
of products and services and terms and conditions, except to
the extent inclusion of such Content would otherwise violate
this Agreement and except as otherwise expressly stated on
Exhibit A. Except as specifically provided for herein, AOL
shall have no obligations of any kind with respect to the ICP
Internet Site or ICP Programming. ICP shall be responsible for
any hosting or communication costs associated with the ICP
Internet Site and ICP Programming (including any Linked
Interactive Sites), including, without limitation, the costs
associated with (i) any agreed-upon direct connections between
the AOL Network and the ICP Internet Site or ICP Programming
or (ii) a mirrored version of the ICP Internet Site.
Notwithstanding any other terms of this Agreement, AOL Members
shall not be required to go through a registration process (or
any similar process) in order to access and use the ICP
Internet Site, ICP Programming or the Licensed Content. AOL
(consistent with AOL's privacy policies and terms of service)
will make available the data necessary to authenticate AOL
Members on the ICP Internet Site. ICP may ask AOL Members for
additional, optional information for the purpose of
customizing the ICP Programming, ICP Internet Site, or the
Licensed Content. During the Term and for the two (2) year
period after the expiration or termination thereof, ICP shall
allow AOL Members to access and use any ICP Interactive Site
on terms and conditions no less favorable than the terms and
conditions available to other users of such ICP Interactive
Site. In the event ICP fails to comply with any material term
of this Agreement, including without limitation ICP's
obligations under this Section 1.4 or its promotional
obligations under Section 2, AOL will have the right (in
addition to any other remedies available to AOL hereunder) to
decrease the promotion it provides to ICP hereunder and/or to
decrease or cease any other contractual obligation of AOL
hereunder until such time as ICP corrects its non-compliance,
in which event AOL will be relieved of the proportionate
amount of any promotional commitment made to ICP by AOL
hereunder corresponding to such decrease in promotion.
1.5 IMPRESSIONS TARGET. AOL shall provide ICP with at least
* Impressions from ICP's presence on the AOL Network (the
"Impressions Target") during the Term. On or about each
anniversary of the Effective Date (or more frequently as the
Parties desire), AOL and ICP shall discuss (a) whether AOL is
on track to meet the Impressions Target (taking into account
variations in Impressions delivery (e.g., front-loading of
impressions with launch of the ICP Internet Site, account
ramp-up, seasonality, promotional events, technical problems,
new Content acquired) of ICP promotion on the AOL Network) and
(b) future plans to ensure that the Impressions Target is met
or mutually altered. AOL shall use reasonable efforts to
implement any such mutually agreed plan in accordance
therewith. In the event AOL provides an excess of any annual
Impressions target in any year, the Impressions target for the
subsequent year shall be reduced by the amount of such excess.
Any shortfall in Impressions at the end of a year will not be
deemed a breach of this Agreement by AOL; instead such
shortfall will be added to the Impressions target for the
subsequent year. In addition, AOL, shall use reasonable
efforts to ensure that Impressions
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delivery amounts due in any year shall be spread evenly across
such year other than the first year of the Agreement (when
Impressions may be front-loaded for launch of the ICP Internet
Site, at AOL's discretion). For the purposes of this
Agreement, ICP's presence on an AOL screen shall conform to
the specifications of an ICP Presence, provided that only
screens that contain a Link to the ICP Internet Site or ICP
Programming will count against the Impressions Target. Any
shortfall in Impressions from a particular AOL Property or
area within an AOL Property may be made up by overdelivery of
Impressions in another AOL Property or area. In the event that
the Impressions Target is not met (or will not, in AOL's
reasonable judgment, be met) during the Term, then as ICP's
sole remedy, at AOL's option (i) the Term shall be extended
for up to six (6) months without additional carriage fees
payable by ICP, and during such extension period, AOL shall
provide ICP with the remaining Impressions in the form of
advertising space within the AOL Network of comparable value
to the undelivered Impressions (as reasonably determined by
AOL), provided that if AOL still has not met the Impressions
Target after such six (6) month period, AOL will provide a
pro-rata refund based on the amount of undelivered
Impressions, (ii) AOL shall, from time to time during the
Term, provide ICP with the remaining Impressions in the form
of advertising space within the AOL Network of comparable
value to the undelivered Impressions (as reasonably determined
by AOL), (iii) AOL shall pay ICP an amount equal to the value
of the undelivered Impressions in the form of advertising
credits or cash at the then-current rate card, or (iv) some
combination thereof.
2. CROSS-PROMOTION
2.1 COOPERATION. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing and
promotional activities. When promoting ICP or for any ICP
Presence, AOL will use commercially reasonable efforts to
comply with the requirements of EXHIBIT D with respect to use
of ICP's name and marks.
2.2 CROSS-PROMOTION - CONSUMER VERSIONS. Within the Consumer
Versions, ICP shall include (collectively, the "AOL Promos"),
at AOL's discretion, either (i) a prominent "Try AOL" or "Try
CompuServe" feature (at least 90 x 30 pixels or 70 x 70 pixels
in size), with placement on the standard/personalized home
page (i.e. the first screen if no splash screen) at ICP's
reasonable discretion, through which users can obtain
promotional information about AOL products or services
designated by AOL and, at AOL's option, download or order the
then-current version of client software for such AOL products
or services; or (ii) a prominent promotional button (at least
90 x 30 pixels or 70 x 70 pixels in size), with placement of
the button at ICP's reasonable discretion, on the
standard/personalized home page of the Consumer Versions, to
promote such AOL products or services as AOL may designate
(for example, the America Online brand service, the CompuServe
brand service, the XXX.xxx site, the Digital City services or
the AOL Instant Messenger service). AOL shall pay ICP
then-standard AOL online bounty rates for qualified new AOL
and CompuServe members that are acquired through Try AOL and
Try CompuServe buttons. AOL will provide the creative content
to be used in the AOL Promos. ICP shall post (or update, as
the case may be) the creative content supplied by AOL within
the spaces for the AOL Promos within five days of its receipt
of such content from AOL. Without limiting any other reporting
obligations of the Parties contained herein, ICP shall provide
AOL with monthly written reports specifying the number of
impressions to the pages containing the AOL Promos during the
prior month. In the event that AOL elects to serve the AOL
Promos to the Consumer Versions from an ad server controlled
by AOL or its agent, ICP shall take all reasonable operational
steps necessary to facilitate such ad serving arrangement,
including, without limitation, inserting HTML code designated
by AOL on the pages of the Consumer Versions on which the AOL
Promos will appear. In addition, within any Consumer Versions,
ICP shall provide prominent promotion for the relevant AOL
Keyword(TM) Search Terms associated with the ICP Internet Site
and links from the Consumer Versions to the relevant topic
areas on AOL's XXX.xxx site on any page/screen on the Consumer
Versions where ICP mentions or promotes its partners.
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2.3 OTHER MEDIA. In ICP's advertisements and promotions (not
including news programming drop-ins that are at CBS's
editorial discretion) of its Consumer Versions in any media,
ICP will include specific references or mentions (orally where
possible) of the availability of the ICP Internet Site through
the America Online(R) brand service (or other AOL Property as
mutually agreed to by the Parties) at least * of the time
within each campaign and each type of promotion (i.e. at least
* of each print campaign, at least * of each radio campaign,
at least * of each television campaign, etc.) (the "ICP
Mentions Commitment"). Such references or mentions shall be
reasonably prominent in any (a) print or "out of home" (e.g.,
buses, billboards, point-of-purchase, and other "place based"
promotions) promotions, television advertisements and radio
advertisements. In any event, such references or mentions
shall be at least as prominent as any references that ICP
makes to any ICP Interactive Site (by way of site name,
related company name, URL or otherwise). Without limiting the
generality of the foregoing, ICP's listing of the "URL" for
any Consumer Versions pursuant to this Section will be
accompanied by a reasonably prominent listing of the "keyword"
term on AOL for the ICP Internet Site (e.g. "America Online
Keyword: Medscape"), which listing shall conform to the
keyword guidelines attached hereto as Exhibit G. All such
references or mentions of AOL, and the use of AOL's
trademarks, trade names and service marks in connection
therewith, shall be in accordance with Section II of Exhibit
C. In those instances where ICP's advertisements and
promotions of its Consumer Versions do not include specific
references or mentions of the availability of the ICP Internet
Site through AOL, ICP agrees that it shall not promote,
reference or mention any Named Entity with respect to any
television advertisements and promotions on CBS. In the event
that ICP is unable to consistently deliver the ICP Mentions
Commitment over any particular time period, in addition to any
other remedies that AOL may have under this Agreement, AOL, at
its election, can require that ICP compensate for such
shortfall either by: (i) extending the Term for up to six (6)
months without additional carriage fees payable by ICP, and
during such extension period, ICP shall provide AOL with the
remaining ICP Mentions Commitment in the form of space in
ICP's promotions or advertising of comparable value to the
undelivered ICP Mentions Commitment (as reasonably determined
by ICP), provided that if ICP still has not met the ICP
Mentions Commitment after such six (6) month period, ICP will
pay AOL an amount equal to the value of the undelivered ICP
Mentions Commitment in the form of cash at the then-current
comparable rate cards based on the amount of undelivered ICP
Mentions Commitment, (ii) ICP shall, from time to time during
the Term, provide AOL with the remaining ICP Mentions
Commitment in the form of space on its advertising or
promotional campaigns of comparable value to the undelivered
ICP Mentions Commitment (as reasonably determined by ICP), or
(iii) some combination thereof. In addition, ICP shall use
commercially reasonable efforts to include in its
advertisements and promotions of the ICP Interactive Sites in
any media specific references or mentions of AOL in connection
with ICP's relationship with AOL.
2.4 PREFERRED ACCESS PROVIDER. When promoting AOL, ICP shall
promote AOL as an online services partner through which a user
can access the ICP Internet Site (and ICP shall not implement
or authorize any other promotions on behalf of any third
parties which are inconsistent with the foregoing).
2.5 COMPONENT PRODUCTS.
2.5.1 Consumer Versions. ICP agrees to the following
conditions for integration, use or promotion of the
following tools or functionality on the Consumer
Versions:
A. ICP shall use the AOL namespace for all user
registration on the ICP Internet Site and ICP shall
connect its own registration system to the AOL
registration systems through standard integration
mechanisms in manner that is mutually acceptable to
the parties. In addition, with respect to AOL
namespace and user registration technology, and
consistent with the Privacy Policies of the parties
(i) ICP agrees to collect the data requested by AOL
and transfer such data to AOL in a real time data
transfer, and (ii) AOL shall have
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the right to pass-through applicable data (e.g. AOL
screennames) to ICP to the extent necessary for
proper functionality and performance of such
namespace and user registration technology.
B. Subject to paragraph D below, ICP, to the extent
such AOL's tools and functionalities satisfy ICP's
reasonable calendar functionality requirements, shall
integrate its customized health diary functionality
with AOL's Web-hosted calendaring functionality and
tools to provide customized calendars to all users of
the Consumer Versions. As part of such integration,
ICP will create all events in event data format
compatible with the AOL calendar so that health
events and events added to ICP's customized health
diary can also, at the option of the user, be
automatically added to the AOL calendar.
C. Subject to paragraph D below, to the extent that
ICP includes a real time instant online messaging
functionality on the Consumer Versions, ICP will use
AOL Instant Messenger(TM) and/or ICQ(TM) for such
functionality.
D. ICP may develop, integrate, use or promote its own
specific tools and/or functionalities or those
developed by Softwatch Ltd. ("Softwatch") or another
third party within a subcategory of paragraphs B or C
above other than any third party tools and/or
functionalities by any Interactive Service and/or
Named Entity provided that (i) AOL does not
then-currently offer such tool or functionality that
meets ICP's reasonable system requirements, (ii) ICP
first provides AOL with the opportunity to do such
development work on commercially reasonable terms and
conditions, (iii) any instant messaging tools or
functionalities developed shall use AOL's back-end
system and protocols, (iv) with respect to any
calendaring functionalities, events created shall, at
the option of the user, have the ability to be
automatically added to AOL calendar. Notwithstanding
paragraphs B and C above, with respect to the
Consumer Versions, not including the ICP Internet
Site, ICP may integrate and use the instant
messaging, chat, buddy list and discussion forum
self-contained tools and functionalities that have
been developed by Softwatch as of the Effective Date
on the Consumer Versions other than the ICP Internet
Site, provided however, that ICP will integrate
instant messaging functionalities with AOL's instant
messaging tools and functionalities before ICP's next
release of the Consumer Versions but in no event
later than 6 months after the Effective Date.
E. With regard to consumer oriented health management
tools, including but not limited to PMR Service, ICP,
on the ICP Internet Site, shall not integrate, use or
promote any such health management tools other than
the Approved ICP Tools without AOL's prior written
consent, not to be unreasonably withheld. If ICP
chooses to create or modify an ICP Tool to add
backend connectivity functionality, and that
functionality involves the same provider of backend
connectivity as any other health management tool
offered or distributed on the AOL Network, AOL agrees
that it would be unreasonable not to approve such an
ICP Tool solely on the basis of its backend
connectivity features. In addition, AOL agrees to use
its commercially reasonable efforts to ensure that
any provider of backend connectivity available on or
distributed through the AOL Network offers ICP a
reasonable opportunity to negotiate for the provision
of the same backend connectivity to ICP on the
Consumer Versions.
F. In the event ICP wishes to integrate, use or
promote tools and functionalities other than the
tools and functionalities in paragraphs A, B, C and E
above (including but limited to (i)
community/communications tools (e.g., chat, message
boards, voice message, IP telephony, email, address
book, web-based email and greeting cards but
specifically excluding real time instant online
messaging functionality), (ii) navigation services
(e.g., search and directory products, white pages,
and yellow pages); (iii)
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personalization services (e.g., homesteading,
hosting, and data exchange ); and (iv)
commerce/content aggregation services, ICP agrees
that (a) AOL shall have a commercially reasonable
opportunity to provide AOL's tools and
functionalities on commercially reasonable terms and
conditions prior to the integration and/or use of any
non-AOL tools and functionality, and (b) with respect
only to the ICP Internet Site, it will not promote or
co-brand with any third party tools and/or
functionalities of any Interactive Service and/or
Named Entity as long as AOL offers a reasonably
competitive product
G. In addition, to the extent required by underlying
ownership of the relevant intellectual property, AOL
hereby grants ICP a non-exclusive license to use and
promote all tools and functionalities developed by
AOL for ICP under this Agreement during the Term and
for a period of 4 years following any termination of
this Agreement, solely to the limited extent and for
the express purposes contemplated hereunder, with
terms and conditions of the license to be mutually
agreed upon during the term.
2.5.2. ICP Interactive Sites. In the event ICP wishes to
integrate, use or promote tools and functionalities
in the categories identified in this Section on the
ICP Interactive Sites other than the Consumer
Versions, ICP agrees that AOL shall have a
commercially reasonable opportunity to provide AOL's
tools and functionalities on commercially reasonable
terms and conditions prior to the integration and/or
use of any non-AOL tools and functionality.
3. REPORTING; PAYMENT;
3.1 AOL USAGE REPORTING. AOL shall make available to ICP a
detailed monthly report specifying for the prior month
aggregate usage and Impressions with respect to ICP's presence
on the AOL Network, which are similar in substance and form to
the reports provided by AOL to other content partners similar
to ICP.
3.2 ICP INTERNET SITE REPORTING. ICP will supply AOL (i) with
monthly reports which reflect total impressions by AOL Members
to the ICP Internet Site during the prior month, (ii) to the
extent applicable under this Agreement, the number of and
dollar value associated with the transactions involving AOL
Members and, to the extent consistent with applicable laws,
regulations, and privacy policies, any registration
information obtained from AOL Members (including but not
limited to the information obtained pursuant to Section 1.4)
at the ICP Internet Site during the period in question. ICP
represents that all URLs related to the ICP Internet Site are
listed on Exhibit A-2 and ICP shall provide AOL with an update
of such list promptly upon any change thereto.
3.3 CROSS-PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a
monthly report documenting its compliance with any promotional
commitments it has undertaken pursuant to this Agreement in
the form attached as Exhibit E hereto, and ICP shall provide
AOL with "click-through" data with respect to the promotions
specified in Section 2 for the prior quarter.
3.4 CARRIAGE AND PROMOTIONAL FEE. ICP shall pay AOL $33,000,000
(the "Guaranteed Payment") as follows: $3,000,000 is due on
the Effective Date, and (A) in the event that an ICP Liquidity
Event does not occur within three (3) months of the Effective
Date, then $3,000,000 is due on the third (3rd) month
anniversary of the Effective Date, $9,000,000 is due the
earlier of (a) within 15 days of an ICP Liquidity Event, or
(b) the nine (9) month anniversary of the Effective Date,
$9,000,000 is due on the twelfth (12th) month anniversary of
the Effective Date, and $9,000,000 is due on the 24 month
anniversary of the Effective Date; or (B) in the event that an
ICP Liquidity Event does occur within three (3) months of the
Effective Date, then $10,000,000 is due within 15 days of an
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ICP Liquidity Event, $10,000,000 is due on the twelfth (12th)
month anniversary of the Effective Date, and $10,000,000 is
due on the 24 month anniversary of the Effective Date. In the
event that an ICP Liquidity Event does not occur within three
(3) months of the Effective Date, then ICP may elect to
terminate the Agreement upon written notice within five (5)
days of the three (3) month anniversary of the Agreement to
AOL (the "ICP Termination Notice") and on such termination ICP
(i) shall not be obligated to make any further payments
pursuant to this Section 3.4 (including the $3,000,000 payment
otherwise due on the third (3rd) month anniversary of the
Effective Date), and (ii) AOL's rights under any unvested
portion of the Performance Warrant described in Section 3.6.2
will be extinguished; provided, however, that AOL, at its sole
discretion, upon receipt of the ICP Termination Notice can
provide notice to ICP within fifteen (15) days of receipt of
the ICP Termination Notice electing to forego payment of the
second $3,000,000 payment due and the Agreement shall not be
terminated and shall continue until otherwise terminated under
the terms hereunder and such $3,000,000 payment shall be due
and payable upon an ICP Liquidity Event to AOL. In the event
that an ICP Liquidity Event does not occur within six (6)
months of the Effective Date, then either Party may terminate
the Agreement upon written notice within fifteen (15) days of
the six (6) month anniversary of the Agreement to the other
Party, and on such termination ICP (i) shall not be obligated
to make any further payments pursuant to this Section 3.4, and
(ii) AOL's rights under any unvested portion of the
Performance Warrant described in Section 3.6.2 will be
extinguished. In the event the Agreement is terminated at the
six (6) month anniversary the additional $3,000,000 payment
shall only remain due and payable to AOL if there is an ICP
Liquidity Event within twelve (12) months from the Effective
Date.
3.5 PAYMENT TERMS. All payments by ICP hereunder shall be paid in
immediately available, non-refundable U.S. funds wired to the
"America Online" account, at the account and bank information
previously supplied to ICP prior to the Effective Date, or
such other account of which AOL shall give ICP reasonable
prior written notice.
3.6 WARRANTS. ICP shall grant to AOL two (2) separate warrants to
purchase shares of common stock of ICP, forms of which are
attached hereto as Exhibits H and I. In accordance with the
terms and conditions contained therein, the two warrants which
shall be executed and delivered contemporaneously herewith
shall provide as follows:
3.6.1 in partial consideration for AOL's execution and
delivery of this Agreement, ICP shall grant to AOL a
fully-vested warrant (the "TIME WARRANT") to purchase
up to 1,352,158 shares of common stock of ICP
("COMMON STOCK") at an exercise price of $10.00 per
share;
3.6.2 in partial consideration for the accomplishment of
certain Performance thresholds, ICP shall grant to
AOL a warrant (the "PERFORMANCE WARRANT") to purchase
up to 1,352,158 shares of Common Stock at an exercise
price and vesting schedule in accordance with the
Performance Warrant terms; and
3.6.3 in the event of any early termination of the
Agreement due to a termination by a material breach
by AOL under Section 7.2 or a termination of the
Agreement under Section 7.3, AOL's rights under any
unvested portion of the Performance Warrant will be
extinguished.
3.7 ALTERNATIVE REVENUE STREAMS. In the event ICP or any of its
affiliates creates or desires to create, as a direct result of
any Promotions, any new revenue stream, not including any
revenue streams of ICP from market or clinical research
activities, as a result of such Promotions other than
Transaction Revenues or revenues from advertising and
sponsorships (an "ALTERNATIVE REVENUE STREAM"), ICP will
promptly inform AOL in writing of ICP's desire to market
products and/or services through the AOL Service, XXX.xxx,
Netscape Netcenter, the CompuServe
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Service, Digital City and/or XxxxxXxxxx.xxx, which would
produce an Alternative Revenue Stream, and the Parties will
negotiate in good faith regarding whether ICP will be allowed
to market such new products and/or services through the
Promotions, and if so, the equitable portion of revenues from
such Alternative Revenue Stream (if applicable) that will be
shared with AOL pursuant to this Agreement.
4. ADVERTISING AND MERCHANDISING
4.1 ADVERTISING SALES. AOL owns all right, title and interest in
and to the advertising and promotional spaces within the AOL
Network (including, without limitation, advertising and
promotional spaces on any AOL forms or pages preceding or
framing the ICP Internet Site or ICP Programming and any AOL
pages on which ICP Programming resides). The specific
advertising inventory within any such AOL forms or pages shall
be as reasonably determined by AOL.
4.2 INTERACTIVE COMMERCE. To the extent ICP directly sells any
merchandise directly through the ICP Internet Site and/or ICP
Programming, such merchandise shall be subject to (i) the
then-current requirements of AOL's merchant certification
program, and (ii) AOL's standard terms and conditions
applicable to its interactive marketing partners. In the event
AOL objects to any products, goods or services directly
offered through the ICP Internet Site and/or the ICP
Programming, AOL shall notify ICP of those products, goods or
services to which AOL objects, and ICP hereby agrees to
discontinue offering such products, goods or services directly
through the ICP Internet Site and/or the ICP Programming upon
receipt of such notice. ICP will take all reasonable steps
necessary to conform its promotion and sale of products
directly through the ICP Internet Site and ICP Programming (if
any) (the "Products") to the then-existing technologies
identified by AOL which are optimized for the applicable AOL
Property including, without limitation, any "quick checkout"
tool which AOL may implement to facilitate purchase of
Products by AOL Members directly through the ICP Internet
Site. ICP shall not conduct any merchandising directly through
the ICP Internet Site or ICP Programming through auctions,
clubs or any method other than a direct sales format without
AOL's prior written consent. ICP will provide AOL with a
monthly report in a mutually agreed upon format to be
delivered to AOL in an automated manner, detailing the sales
activity during such period. To the extent applicable, such
sales reports shall contain information substantially similar
to the following (and any other information reasonably
required for measuring revenue activity by ICP through the ICP
Internet Site(s) or reasonably requested by AOL): (i) summary
sales information by day (date, number of Products, number of
orders, total Transaction Revenues); and (ii) detailed sales
information (order date/timestamp (if technically feasible),
purchaser name and screen-name, SKU or Product description).
Further, to the extent ICP directly sells any merchandise
through the ICP Internet Site and/or ICP Programming that is
similar to merchandise sold directly on the Consumer Versions,
ICP will generally promote through the ICP Internet Site any
special or promotional offers for such merchandise made
available by or on behalf of ICP through the Consumer Versions
or any other distribution channel targeted at consumers. In
addition, if ICP directly sells any merchandise through the
ICP Internet Site or the ICP Programming, ICP shall promote
through the ICP Internet Site on a regular and consistent
basis special offers exclusively available to AOL Members
("AOL EXCLUSIVE OFFERS"). ICP shall, at all applicable times,
feature at least one AOL Exclusive Offer for AOL Members
(except as otherwise mutually agreed upon by the Parties). The
AOL Exclusive Offer made available by ICP shall provide a
substantial member benefit to AOL Members, either by virtue of
a meaningful price discount, product enhancement, unique
service benefit or other special feature. ICP will provide AOL
with reasonable prior notice of AOL Exclusive Offers and other
special offers so that AOL can, in its editorial discretion,
market the availability of such offers.
5. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
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5.1 PERFORMANCE. ICP shall optimize all ICP Programming and the
ICP Internet Site for distribution hereunder according to AOL
specifications and guidelines (including, without limitation,
any HTML publishing guidelines) and the Operating Standards
set forth on Exhibit F attached hereto.
5.2 CUSTOMIZATION. ICP shall customize all ICP Programming and the
ICP Internet Site for AOL Members as follows:
5.2.1 ICP shall customize and co-brand the ICP Internet
Site for distribution over certain AOL Properties as
more particularly described on Exhibit A-3. The
customization and co-branding described in Exhibit
A-3 represents the manner in which AOL currently
contemplates that such customization and co-branding
will appear. ICP shall make any reasonable changes to
the customization and/or co-branding requirements of
any AOL Property that may occur during the Term.
5.2.2 ICP shall ensure that AOL Members accessing the ICP
Programming or linking to the ICP Internet Site do
not receive any advertisements, promotions, links, or
pointers (i) for any entity reasonably construed to
be in competition with AOL or any AOL Property, (ii)
for any entity in an Exclusive Category without AOL's
prior written consent, or (iii) otherwise in
violation of the applicable AOL Property's
then-standard advertising policies.
5.2.3 ICP shall provide continuous navigational ability for
AOL Members to return to an agreed-upon point on the
applicable AOL Property (for which AOL shall supply
the proper address) from ICP Internet Site or ICP
Programming (e.g., the point on the applicable AOL
Property from which such site is linked), which, at
AOL's option, may be satisfied through the use of a
hybrid browser format. ICP shall ensure that
navigation back to the AOL Network from the ICP
Internet Site, whether through a particular pointer
or link, the "back" button on an Internet browser,
the closing of an active window, or any other return
mechanism, shall not be interrupted by ICP through
the use of any intermediate screen or other device
not specifically requested by the user, including
without limitation through the use of any html pop-up
window or any other similar device. Rather, such AOL
traffic shall be pointed directly back to the AOL
Network as designated by AOL.
5.3 LINKS ON ICP INTERNET SITE. The Parties will work together on
mutually acceptable links (including links back to AOL) within
the ICP Internet Site in order to create a robust and engaging
AOL member experience. ICP shall take reasonable efforts to
ensure that AOL traffic is generally either kept within the
ICP Internet Site or ICP Programming or channeled back into
the AOL Network. To the extent that AOL notifies ICP in
writing that, in AOL's reasonable judgment, links from the ICP
Internet Site or ICP Programming cause an excessive amount of
AOL traffic to be diverted outside of such site and the AOL
Network in a manner that has a detrimental effect on the
traffic flow of the AOL audience, then ICP shall immediately
reduce the number of links out of such site(s). In the event
that ICP cannot or does not so limit diverted traffic from
such site, AOL reserves the right to terminate such links from
the AOL Network to such site.
5.4 REVIEW. ICP shall allow appropriate AOL personnel to have
access, upon reasonable notice and at reasonable times, to all
ICP Programming and the ICP Internet Site for the purpose of
reviewing such sites to determine compliance with the
provisions of this Section 5.
6. PARTNER MARKETING
During the 90 day period following the Effective Date, ICP shall use
commercially reasonable efforts to provide AOL with information and
data reasonably requested by AOL for determining the feasibility and
likely success of a marketing test for AOL and CompuServe CD-ROM
distribution. In the event that, at any time during the Term, ICP
proposes to market, bundle, or proposes to enter into an agreement
with, or
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solicit, a third party with respect to the marketing of, a US-based,
internet service provider (including both narrow and broad-band
providers) targeted at users of the Consumer Versions (e.g., through a
CD-ROM distribution, software download, or otherwise) ("Other ISPs")
other than the AOL Service or the CompuServe Service, then ICP shall
notify AOL and offer AOL the right of first negotiation for ICP to
market the AOL Service and CompuServe, upon terms to be mutually agreed
to by the Parties after good faith negotiations, provided that the AOL
Service and/or the CompuServe Service offers comparable services to
Other ISPs. In the event that AOL fails to accept the offer to exercise
such right of first negotiation within thirty (30) days after ICP makes
such offer to AOL, then ICP and AOL shall reduce to writing the latest
terms on which ICP was willing to offer AOL the right to market
exclusively the AOL Service and/or CompuServe Service, after good faith
negotiations between AOL and ICP. Thereafter, ICP may offer such rights
to a third party on the written terms described in the preceding
sentence; provided, however, that if ICP proposes to enter into an
agreement with such third party on any term or provision which is more
favorable to the third party than as set forth in such written terms,
then prior to such agreement ICP shall, by written notice to AOL, offer
such right to AOL on the same terms and conditions offered to such
third party. AOL shall have thirty (30) days from the date it receives
such revised offer to accept or reject such revised offer. Failure by
AOL to notify ICP of its acceptance or rejection of such revised offer
within the thirty (30) day period shall be deemed a rejection of such
revised offer. The rights granted to AOL in this Section 6 shall be
irrevocable during the Term.
7. TERM, TERMINATION, SITE AND CONTENT PREPARATION, PRESS RELEASES.
7.1. TERM. Unless earlier terminated as set forth herein, the
initial term of this Agreement shall commence on the Effective
Date and expire three (3) years from the Effective Date. This
Agreement may be extended by mutual written agreement of the
Parties. AOL shall also have the right to extend this
Agreement for one (1) additional nine (9) month period
following expiration of the initial term ( the "Extension
Term"). AOL shall exercise its option to extend this Agreement
by providing ICP with written notice of such election no later
than thirty (30) days prior to the expiration of the initial
term. During the Extension Term: (i) ICP will not be required
to pay any additional carriage or promotional fees in excess
of the Guaranteed Payments pursuant to Section 3.5; (ii) AOL
will not be required to undertake any promotional/placement
obligations hereunder; and (iii) all other terms and
conditions of this Agreement shall remain in full force and
effect during the Extension Term. Upon the expiration or
earlier termination of this Agreement, AOL may, at its
discretion, continue to promote one or more "pointers" or
links from the AOL Network to an ICP Interactive Site and
continue to use ICP's trade names, trade marks and service
marks in connection therewith (collectively, a "Continued
Link").
7.2 TERMINATION FOR BREACH. Either Party may terminate this
Agreement at any time in the event of a material breach by the
other Party which remains uncured after thirty (30) days
written notice thereof.
7.3 BUY-OUT RIGHT. At any time during the ninety (90) day period
beginning twenty four (24) months after the Effective Date
(the "Buy-Out Period"), AOL shall have the right to terminate
this Agreement by providing ICP written notice (the "Buy-Out
Right"). In the event AOL elects to exercise its Buy-Out
Right, AOL shall pay ICP * (the "Buy-Out Fee"), within thirty
(30) days of the date of such exercise, provided, that if
there is a shortfall in the amount of Impressions that were
projected to be delivered as of the date AOL exercises its
Buy-Out Right (based upon an even, straight-line distribution
of the Impressions Target), AOL shall increase the Buy-Out Fee
by an amount equal to the value of such Impressions. The
Parties acknowledge and agree that the payment contemplated by
this Section 7.3 is solely a termination fee agreed to by the
Parties, and shall not be used to determine any damages
payable by either Party to the other Party hereunder, which
shall be determined in accordance with the remainder of this
Agreement (including, without limitation, Section VI of
Exhibit C hereof) and applicable law.
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7.4 SPECIAL TERMINATION BY AOL. AOL shall have the right to
terminate this Agreement immediately by providing ICP written
notice in the event any material claim or proceeding is
brought against ICP for professional negligence or wrongdoing,
including without limitation, regarding malpractice or
practicing medicine without the appropriate license(s), which
claim appears on its face to be potentially meritorious and
appears to have the potential for significantly damaging or
tarnishing the reputation of the ICP or AOL, provided that any
such termination right is exercised within one hundred twenty
(120) days after AOL has knowledge of any such material claim
or proceeding hereunder.
7.5 TERMINATION FOR BANKRUPTCY/INSOLVENCY OR CHANGES IN BUSINESS.
Either Party may terminate this Agreement immediately
following written notice to the other Party if the other Party
(i) ceases to do business in the normal course, (ii) becomes
or is declared insolvent or bankrupt, (iii) is the subject of
any proceeding related to its liquidation or insolvency
(whether voluntary or involuntary) which is not dismissed
within ninety (90) calendar days or (iv) makes an assignment
for the benefit of creditors.
7.6 TERMINATION ON CHANGE OF CONTROL.
7.6.1 In the event of a Change of Control of ICP to a Named
Entity during the Initial Term, AOL shall have the
right to terminate the Agreement by providing fifteen
(15) days prior written notice and AOL will receive
its next Guaranteed Payment installment, if any, and
any Performance Warrants, if not already vested,
shall automatically vest.
7.6.2 In the event of a Change of Control of ICP to any
third party other than a Named Entity during the
Initial Term and other than to CBS Corporation and
National Data Corporation, AOL, at its option,
(i) can elect to terminate the Agreement and receive
no further payments; or (ii) can elect to continue
the Agreement, provided that AOL will receive the
entire remainder of the Guaranteed Payment due under
this Agreement.
7.6.3 Any termination right arising under this Section 7.6
must be exercised within ninety (90) days of the
effective date of such Change of Control.
7.7 ADDITIONAL CONDITIONS. AOL shall have the right to terminate,
in whole or in part, AOL's promotional obligations hereunder
and the programming rights granted to ICP hereunder if :
7.7.1 ICP no longer employs a nationally recognized
high-quality editorial staff and independent
editorial board to monitor its content;
7.7.2 At any time 180 days after the Effective Date, the
Consumer Versions, taken as a whole, are not one of
the top five (5) ranked health Content and tools
Interactive Sites, not including Xx.Xxxx and AOL
Health, for at least two (2) consecutive months in
terms of both traffic (as measured by page views or
active registered users) and audience reach (as
measured by share or percentage of Internet online
users) based on statistics as reported by Media
Metrix or similar organization reasonably determined
by the Parties as long as AOL is providing ICP the
Impressions Target under the terms of this Agreement;
and
7.7.3 At any time the Consumer Versions, taken as a whole,
are not one of the top five (5) health Content and
tools Interactive Sites for at least two (2)
consecutive months, in terms of quality (x) based on
a cross-section of independent third-party reviewers
who are recognized authorities in the healthcare
industry, and (y) with respect to all material
quality averages or standards in such industry,
including without limitation, quality, breadth,
depth, timeliness, accuracy, reliability of the
Content; privacy and security; functionality,
features, ease of use and user interface of the site;
and prices and terms and conditions of Products
offered on the site as long as AOL is providing ICP
the Impressions Target under the terms of this
Agreement.
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7.8 SITE AND CONTENT PREPARATION. ICP shall achieve Site and
Content Preparation for each property listed in Exhibit A
within the time frames specified in Exhibit A-3. "Site and
Content Preparation" shall mean that ICP shall have completed
all necessary production work for the relevant ICP Internet
Site or ICP Programming and any other related areas or screens
(including programming all Content thereon); customized and
configured the relevant ICP Internet Site or ICP Programming
in accordance with this Agreement; and completed all other
necessary work (including, without limitation, undergone all
AOL site testing set forth on Exhibit F) to prepare the
relevant ICP Internet Site or ICP Programming and any other
related areas or screens to launch on the AOL Network as
contemplated hereunder. In the event ICP has not achieved Site
and Content Preparation within the applicable time frame, then
in addition to any other remedies available, the Impressions
Target set forth in Section 1.5 shall be reduced on a pro rata
basis based on the number of days after such time period that
ICP achieves Site and Content Preparation divided by 365. In
the event ICP has not achieved Site and Content Preparation
within sixty (60) days after the expiration of applicable time
period, then in addition to any other remedies available, AOL
shall have the right to terminate this Agreement by giving ICP
written notice thereof. If ICP is delayed in achieving Site
and Content Preparation due to a failure by AOL to perform its
obligations under this Agreement and ICP notifies AOL in
writing of such failure and the resulting delay, then the time
periods referenced in this Section shall each be extended by
the amount of time of ICP's delay solely attributable to such
failure by AOL.
7.9 PRESS RELEASES. Each Party will submit to the other Party, for
its prior written approval, which will not be unreasonably
withheld or delayed, any press release or any other public
statement ("Press Release") prepared by such Party regarding
the transactions contemplated hereunder. Once approved, a
press release or statement may continue to be distributed
without additional approval so long as its contents remain
relevant (e.g. timely), truthful and not misleading.
Notwithstanding the foregoing, either Party may issue Press
Releases and other disclosures as required by law or as
reasonably advised by legal counsel without the consent of the
other Party and in such event, the disclosing Party will
provide at least five (5) business days prior written notice
of such disclosure unless a shorter time frame is required by
law or in the reasonable opinion of counsel. The failure to
obtain the prior written approval of the other Party where
required shall be deemed a material breach of this Agreement.
8. ADDITIONAL OPPORTUNITIES
If AOL elects to distribute a version of the AOL Service through a
broadband distribution channel, AOL shall use reasonable efforts to
discuss an opportunity for ICP to distribute ICP's content in such
broadband version. In addition, during the Term, ICP shall use best
efforts to (i) use the e-commerce application software and
infrastructure software developed by Netscape Communications
Corporation and/or the Sun-Netscape Alliance, and (ii) enter into any
relevant agreements with Netscape Communications Corporation and/or the
Sun-Netscape Alliance as soon as commercially practicable after
signing, provided that (i) such software and agreements are competitive
and appropriate for ICP integration; (ii) that AOL uses commercially
reasonable efforts to obtain pricing for ICP that is no less favorable
than the pricing generally available to AOL, and (iii) conversion costs
from existing platforms used by ICP are not commercially unreasonable.
In addition, ICP shall fully discuss in good faith with AOL any
concerns or issues that would prevent ICP from using the e-commerce
application software and infrastructure software developed by Netscape
Communications Corporation and/or the Sun-Netscape Alliance.
9. TERMS AND CONDITIONS. The terms and conditions set forth on the
Exhibits attached hereto are hereby made a part of this Agreement.
[the following page is signature page]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the Effective Date.
AMERICA ONLINE, INC. MEDSCAPE, INC.
By: _______________________________ By: __________________________
Print Name: ________________________ Print Name: ___________________
Title: ______________________________ Title: _______________________
Date: ______________________________ Date: ________________________
Tax ID/EIN#: __________________
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EXHIBIT A-1: CARRIAGE PLAN
Three Year Term
CHANNEL AREA TYPE IMPRESSIONS
-----------------------------------------------------------------------------------------------------------------------------------
LEVEL ONE: CONTENT *
INTEGRATION
AOL, XXX.xxx, CompuServe, Health As detailed in attached Permanent placements and
Netcenter, Digital City programming plans integrated content
(Exhibit A-2)
LEVEL TWO: CONTEXTUAL All placements listed *
INTEGRATION below are rotations, not
permanent links
AOL Lifestyles ROS
Families
Womens
Sports
Health
Other comparable As mutually agreed by the
promotions parties.
Netscape Lifestyles Womens, Mens and other Contextual link
Families Teens, Senior Contextual link
Womens
Sports Sports Medicine Contextual link
Health
Other comparable As mutually agreed by the
promotions parties.
LEVEL THREE: BROAD REACH *
AOL Run of Service Banner rotation
E-mail Banner rotation
People Connection Banner rotation
Member Directory Banner rotation
Other comparable As mutually agreed by the
promotions parties.
XXX.xxx Home Page Banner rotation
Run of Hometown Banner rotation
Run of Service Banner rotation
CHANNEL AREA TYPE IMPRESSIONS
Instant Messenger Banner rotation
Other comparable As mutually agreed by the
promotions parties.
CompuServe Run of Service Banner rotation
XxxxxXxxxx.xxx Run of Banner rotation
Service
Other comparable As mutually agreed by the
promotions parties.
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Netcenter Netcenter Run of Service Banner rotation
Other comparable As mutually agreed by the
promotions parties.
Digital City City Main Page Banner rotation
Run of Service Banner rotation
Other comparable As mutually agreed by the
promotions parties.
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A-3: CUSTOMIZATION AND CO-BRANDING REQUIREMENTS
ICP INTERNET SITES. ICP shall create, at its sole expense, a fully customized
site for each of the AOL Properties in the time frames specified below and
warrants that it also shall implement, at its sole expense, any appropriate
infrastructure additions to the ICP Internet Site to support the projected
traffic growth on such ICP Internet Sites. Such customization shall include,
without limitation:
(a) Standard Customization
(i) the inclusion of a toolbar (the parameters, specifications and
format of which are listed below) at the top and bottom of
each page of the ICP Internet Site, which, among other things,
will provide navigation back to the AOL Network;
(ii) various additional co-branding elements as specified below;
(iii) the creation of links in connection with communication
services on the ICP Internet Sites to the corresponding or
equivalent communication services or areas of the ICP Internet
Site of the appropriate AOL Property (e.g., chat from the ICP
Internet Site of the AOL Service will link to the chat area on
the AOL Service); and
(iv) the linking of each ICP Internet Site to an URL which contains
the location code for the appropriate AOL brand (e.g.,
xxx.xxxxxxxx.xxx.xxx) or any such other URL as determined by
AOL in its sole discretion).
(b) AOL Service. Please see attached co-branding mockup. Phase I Launch (all
Phase I content available) by 60 days after ISA Launch Date; Phase II by 120
days after the Effective Date.
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[GRAPHIC OMITTED]
Graphic shows guidelines for the customization and co-branding of sites created
by Medscape for each of the AOL properties. The graphic includes guidelines for
the AOL cobrand eyebrow relating to typographic art, positioning, spacing and
type specifications.
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(c) XXX.xxx
ICP shall create a version of the ICP Internet Site customized for distribution
through XXX.xxx (the "XXX-XXX.xxx Site") by (w) developing the XXX-XXX.xxx Site
as a "cul de sac" site containing no links outside of the XXX-XXX.xxx Site other
than to XXX.xxx, other AOL or third party Content determined by AOL, or
advertisements permitted under this Agreement, (x) displaying on each page of
the XXX-XXX.xxx Site headers and footers of size and type determined by AOL and
which contain both XXX.xxx and ICP branding, links to XXX.xxx, a Netfind search
box and one promotional space to be programmed by AOL pursuant to this
Agreement, (y) programming each page of the XXX-XXX.xxx Site with a co-branded
domain name (e.g., xxxxxxxx.xxx.xxx) and (z) matching the look and feel of
XXX.xxx on the XXX-XXX.xxx Site. ICP will, in accordance with the Programming
Plan, and subject to the terms of this Agreement, (1) provide AOL with Content
for the areas and screens of XXX.xxx described in the Programming Plan, and (2)
program and manage the Content on the XXX-XXX.xxx Site for distribution through
XXX.xxx. All terms and conditions of this Agreement applicable to the ICP
Internet Site shall apply to the XXX-XXX.xxx Site except as expressly otherwise
stated. Phase I Launch by 60 days after the ISA Launch Date; Phase II by 120
days after the Effective Date.
(d) CompuServe Service
ICP/CompuServe co-branded as follows: (a) the ICP-CompuServe Site will be framed
on each page across the top and along the left side using the then-current
navigation of the CompuServe Health Channel and the left side navigation will
comprise the Health Channel navigation bar; (b) ICP shall eliminate the use of
"pop-up" windows, screens and similar types of functionality in connection with
the display of advertising, promotions or sponsorships on the ICP-CompuServe
Site; (c) ICP shall program each page of the ICP-CompuServe Site with a
co-branded domain name (e.g., xxxxxxxx.xxxxxxxxxx.xxx) and (e) ICP shall match
the look and feel of CompuServe Service Health Channel on the ICP-CompuServe
Site. Phase I Launch by 90 days after the ISA Launch Date; Phase II by 150 days
after the Effective Date.
(e) Netscape Netcenter. ICP/Netscape Netcenter co-branded as follows: (x)
displaying on each page of the ICP-Netcenter Site headers, footers and
navigation sidebar of size and type determined by AOL and which contain both
Netscape and ICP branding, links to Netscape Netcenter, a search box, one
promotional space to be programmed by AOL pursuant to this Agreement, and
advertising space as desired by ICP ; (y) programming each page of the
ICP-Netcenter Site with a co-branded domain name (e.g., xxxxxxxx.xxxxxxxx.xxx)
and (z) matching the look and feel of Netscape Netcenter on the ICP-Netcenter
Site. Within navigation sidebar, where subdepartments exist under Netcenter
Department headings, these will be broken out for navigational purposes. Launch
by 60 days after the ISA Launch Date; Phase II by 120 days after the Effective
Date.
(f) Digital City. ICP/Digital City co-branded as follows: (x) displaying on each
page of the ICP-Digital City Site headers and footers of size and type
determined by AOL and which contain both Digital City and ICP branding, and
links to Digital City; (y) programming each page of the ICP-Netcenter Site with
a co-branded domain name (e.g., xxxxxxxx.xxxxxxxxxxx.xxx) and (z) matching the
look and feel of Digital City on the ICP-Digital City Site. Launch by 120 days
after ISA Launch Date; Phase II by 150 days after the Effective Date, provided
that with respect to the local content programming, ICP shall have an additional
thirty (30) days to complete Phase II.
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
AFFILIATE. Any agent, distributor or franchisee of AOL, or an entity in which
AOL holds at least a nineteen percent (19%) equity interest.
XXX.XXX. AOL's primary Internet-based Interactive Site marketed under the
"XXX.XXX(TM)" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) XxxxxXxxxx.xxx, Netscape Netcenter, any
other CompuServe or Netscape products or services or interactive sites, (d)
"ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)" or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any programming or Content area offered by or
through the U.S. version of the America Online(R) brand service which was
operated, maintained or controlled by the former AOL Studios division, (g) any
yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, (h) any property, feature, product or service which AOL or its affiliates
may acquire subsequent to the Effective Date and (i) any other version of an
America Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "XXX.XXX(TM)" brand, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions and any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer.
AOL LOOK AND FEEL. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL MEMBER(S). Authorized users (including any sub-accounts under an authorized
master account) of the AOL Network.
AOL NETWORK. (i) The AOL Service, (ii) XXX.xxx, (iii) CompuServe Service, (iv)
XxxxxXxxxx.xxx, (v) Netscape Netcenter (vi) Digital City and (vii) any other
product or service owned, operated, distributed or authorized to be distributed
by or through AOL or its Affiliates worldwide through which such party elects to
offer the ICP Internet Site, ICP Programming and/or Licensed Content (which may
include, without limitation, AOL-related Internet sites, "offline" information
browsing products, MovieFone, or ICQ).
AOL PROPERTY. Any product, service or property owned, operated, marketed,
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, XXX.xxx, and
CompuServe Service, XxxxxXxxxx.xxx, Digital City and Netscape Netcenter.
AOL PURCHASER. (i) Any person or entity who enters the ICP Internet Site or the
ICP Programming from the AOL Network including, without limitation, from any
third party area therein (to the extent entry from such third party area is
traceable through both Parties' commercially reasonable efforts), and generates
Transaction Revenues (regardless of whether such person or entity provides an
e-mail address during registration or entrance to the ICP Internet Site which
includes a domain other than an "XXX.xxx" domain); and (ii) any other person or
entity who, when purchasing a product, good or service through ICP Programming
or an ICP Internet Site, provides an XXX.xxx domain name as part of such person
or entity's e-mail address and provided that any person or entity who has
previously satisfied the definition of AOL Purchaser will remain an AOL
Purchaser, and any subsequent purchases by such person or entity (e.g., as a
result of e-mail solicitations or any off-line means for receiving orders
requiring purchasers to reference a specific promotional identifier or tracking
code) will also give rise to Transaction Revenues hereunder (and will not be
conditioned on the person or entity's satisfaction of clauses (i) or (ii)
above).
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) XXX.xxx and any other AOL Interactive Site,
(b) the international versions of an America Online service (e.g., AOL Japan),
(c) the CompuServe(R) brand service and any other CompuServe products or
services, (d) Netscape Netcenter(TM) and any other Netscape(R) products or
services, (e) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM),"
"Digital City(TM)," "NetMail(TM)," "Real Fans", "Love@AOL", "Entertainment
Asylum," "AOL Hometown" or any similar independent product, service or property
which may be offered by, through or with the U.S. version of the America
Online(R) brand service, (f) any programming or content area offered by or
through the U.S. version of the America Online(R) brand service over which AOL
does not exercise complete operational control (including, without limitation,
Content areas controlled by other parties and member-created Content areas), (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through the U.S. version of the America
Online(R) brand service, (h) any property, feature, product or service which AOL
or its affiliates may acquire subsequent to the Effective Date and (i) any other
version of an America Online service which is materially different from the
narrow-band U.S. version of the America Online brand service, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded version of the service and any version distributed
through any broadband distribution platform or through any platform or device
other than a desktop personal computer.
APPROVED ICP TOOLS. Those tools listed on Exhibit J, which ICP may amend upon
mutual agreement of the Parties and those tools developed by ICP or a third
party in conformance with the requirements of Section 2.5(D) and Section 2.5 (F)
of this Agreement.
BACKEND. The engine and management system that interface with PMR Service and
those portions that interface and connect from such engine and management
systems to back-end, non-consumer users/suppliers/vendors for the PMR Service.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party (provided that a reorganization, merger or consolidation in which the
stockholders of ICP immediately prior to such reorganization, merger or
consolidation hold at least a majority of the total voting power of all classes
of voting stock of ICP upon consummation of such reorganization, merger or
consolidation shall not constitute a "Change of Control") or (b) the acquisition
by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more
than 50% of either (i) the then outstanding shares of common stock of such
party; or (ii) the combined voting power of the then outstanding voting
securities of such party entitled to vote generally in the election of
directors. An initial public offering (IPO) of equity securities in ICP or a
private placement for the exclusive purpose of providing operating funds to ICP
shall not constitute a Change of Control.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"xxxxxxxxxx.xxx", "xxxxxx.xxx" and "xx.xxx", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (f) any co-branded or
private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services or functionality materially
different from the Content, distribution, services or functionality associated
with the standard, narrow-band U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed through
any platform or device other than a desktop personal computer, (h) any property,
feature, product or service which CompuServe or its affiliates may
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acquire subsequent to the Effective Date, (i) the America Online brand service
and any independent product or service which may be offered by, through or with
the U.S. version of the America Online brand service and (j) the HMI versions of
the CompuServe brand service.
XXXXXXXXXX.XXX. CompuServe's primary Internet-based Interactive Site marketed
under the "XxxxxXxxxx.xxx(TM)" brand, specifically excluding (a) the CompuServe
Service and AOL Service, (b) any international versions of such site, (c)
XXX.xxx, Netscape Netcenter, any other AOL or Netscape products or services or
interactive sites, (d) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "NetMail(TM)" or any similar independent product or service
offered by or through such site or any other AOL or CompuServe Interactive Site,
(e) any programming or Content area offered by or through such site over which
AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (f) any programming or Content area offered by or through the U.S.
versions of the America Online(R) brand service or CompuServe brand service
which was operated, maintained or controlled by the former AOL Studios division,
(g) any yellow pages, white pages, classifieds or other search, directory or
review services or Content offered by or through such site or any other AOL or
CompuServe Interactive Site, (h) any property, feature, product or service which
AOL or its affiliates may acquire subsequent to the Effective Date and (i) any
other version of an AOL or CompuServe Interactive Site which is materially
different from CompuServe's primary Internet-based Interactive Site marketed
under the "XxxxxXxxxx.xxx(TM)" brand, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any
co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
CONSUMER VERSIONS. Those versions of the ICP Interactive Site and the Medscape
Site, together with any associated ICP Tools, that are developed, customized,
maintained and/or promoted towards the consumer market including all versions
related to ICP's relationship with CBS (e.g, CBS Medscape), excluding, however,
those versions of the ICP Interactive Site and the Medscape Site that are
developed, customized, maintained and/or promoted exclusively for the
professional and industrial market (e.g. MedscapeRN, Medscape Allied Health
Professional, etc.)
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
DIGITAL CITY. The standard, narrow-band U.S. version of Digital City's local
content offerings marketed under the Digital City(R) brand name, specifically
excluding (a) the AOL Service, XXX.xxx or any other AOL Interactive Site, (b)
any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown," "My News" or any similar independent
product, service or property which may be offered by, through or with the
standard narrow band version of Digital City's local content offerings, (e) any
programming or Content area offered by or through such local content offerings
over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through such local content
offerings, (g) any property, feature, product or service which AOL or its
affiliates may acquire subsequent to the Effective Date, (h) any other version
of a Digital City local content offering which is materially different from the
narrow-band U.S. version of Digital City's local content offerings marketed
under the Digital City(R) brand name, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any
co-branded version of the offerings and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer, and (i) Digital City-branded offerings in any local
area where such offerings are not owned or operationally controlled by AOL, Inc.
or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads).
EXCLUSIVE CATEGORY. Telecommunications services (including long distance,
wireless, prepaid calling card, post-paid calling card, on-line sign-up, online
billing information, IP Telephony, click-to-call, and universal massaging),
brokerage services, and credit/charge Cards.
ICP INTERACTIVE SITE. Any interactive site or area (other than ICP Programming),
including without limitation the Medscape Site and any publicly-available,
customized, mirrored or private-labeled site or area (e.g., versions for local
hospitals and broadcast affiliates), which is managed, maintained or owned by
ICP or its agents or to which ICP provides and/or licenses information, content
or other materials, including, by way of example and without limitation, (i) an
ICP site on the World Wide Web portion of the Internet or (ii) a channel or area
delivered through a "push" product such as the Pointcast Network or interactive
environment such as Microsoft's proposed Active Desktop. ICP Interactive Site
specifically excludes (a) any international versions of such site, (b) any third
party sites that by contract do not permit ICP to place advertising or
promotional materials on such sites (e.g., a hospital intranet), and (c) any
interactive site distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer.
ICP INTERNET SITE. Each of the Consumer Versions customized for distribution
through the AOL Network in accordance with this Agreement.
ICP LIQUIDITY EVENT. (a) An initial public offering (IPO) of equity securities
in ICP; (b) any investment or series of investments, including debt and equity
investments, of $10,000,000 or above in the aggregate; (c) a merger,
consolidation, business combination or other transaction (a "MERGER
TRANSACTION") in which ICP is not the surviving entity; (d) sale, spin-off or
other transfer of all or substantially all of ICP's assets to any third party;
(e) a liquidation or dissolution of ICP; or (f) within any period of twelve (12)
consecutive months, any "person" or "group" (each as defined in Section 13(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) not
including CBS Corporation, who becomes the "beneficial owner" (as defined in
Rule 13 d-3 under the Exchange Act) of more than thirty-five percent (35%) of
the total voting power of all classes of voting stock of the Company.
ICP PRESENCE. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the ICP Internet Site or ICP Programming
and/or (d) other Content which originates from, describes or promotes ICP or
ICP's Content.
ICP PROGRAMMING. Any (a) area within the AOL Network or outside the AOL Network
but exclusively available to AOL Members, which area is developed, programmed,
and/or managed by ICP, in whole or in part, pursuant to this Agreement and all
Content thereon (including, without limitation, message boards, chat and other
AOL Member-supplied content areas contained therein) including, without
limitation, any co-branded site or page, and community centers, and (b) Content
provided to AOL by ICP pursuant to this Agreement for distribution on or through
the AOL Network other than on the ICP Internet Site.
ICP TOOL. An interactive utility other than a standard web page owned, operated,
marketed, distributed, or authorized to be distributed by or through ICP or its
agents as a functional part of the ICP Interactive Site that displays results
based on data entered by an end-user, including but not limited to the PMR
Service.
IMPRESSION. User exposure to an ICP Presence, as such exposure may be reasonably
determined and measured by AOL in accordance with its standard methodologies and
protocols.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i)
online/Internet connectivity services (e.g., an Internet service provider such
as AT&T Worldnet, Mindspring, etc.); (ii) an interactive site or service
featuring a broad selection of aggregated third party interactive content (or
navigation thereto) (e.g., an online service or search and directory service
such as Yahoo, Excite, Alta Vista, etc.) and/or marketing a broad selection of
products and/or services across numerous interactive commerce categories (e.g.,
an online mall or other leading online commerce site such as Xxxxxx.xxx); (iii)
communications software capable of serving as the principal means through which
a user creates, sends or receives electronic mail or real time or "instant"
online messages (whether by telephone,
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computer, two empty soup cans strung together on a wire, or other means) (e.g.,
Microsoft instant messaging, WebChat, etc.), including without limitation,
electronic greeting cards; or (iv) ) a persistent desktop client designed to
allow access to (i), (ii) or (iii).
INTERACTIVE SITE. Any interactive site or area, including, by way of example and
without limitation, (i) an ICP site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network or interactive environment such as Microsoft's Active
Desktop.
ISA LAUNCH DATE. The date that is the earlier of (a) fifteen (15) days from the
Effective Date, or (b) the date of launch of any Consumer Versions.
KEYWORD(TM) SEARCH TERMS. The Keyword(TM) online search terms made available on
the AOL Service for use by AOL Members, combining AOL's Keyword(TM) online
search modifier with a term or phrase specifically related to ICP (and
determined in accordance with the terms of this Agreement).
LINKED CONSUMER VERSIONS. Any Consumer Version which is also a site or area
outside of the AOL Network which is linked to ICP Programming (through a
"pointer" or similar link) subject to approval by AOL in accordance with the
terms and conditions of this Agreement
LINKED INTERACTIVE SITE. Any site or area outside of the AOL Network which is
linked to ICP Programming (through a "pointer" or similar link) subject to
approval by AOL in accordance with the terms and conditions of this Agreement.
LINKED ICP INTERACTIVE SITE. Any ICP Interactive Site which is also a Linked
Interactive Site.
LICENSED CONTENT. All Content provided by ICP or its agents through the ICP
Internet Site and/or the AOL Network in connection with the subject matter of
this Agreement, including without limitation all ICP Programming.
MEDSCAPE SITE. The Internet site and Content, currently located at
URL:xxxx://xxx.xxxxxxxx.xxx and all related URLs (including without limitation
any publicly-available third party affiliated versions of such site (e.g.,
customized, mirrored, private labeled sites (e.g., versions for private
hospitals, broadcast affiliates)), which are managed, maintained or owned by ICP
or its agents or to which ICP licenses information, content or other materials.
Medscape Site specifically excludes (a) any international versions of such site,
(b) any third party sites that by contract do not permit ICP to place
advertising or promotional materials on such sites (e.g., a hospital intranet),
and (c) any interactive site distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer
NAMED ENTITY. The following entities: (A) AT&T, Sprint, Microsoft, *, *,
Excite@home, Disney/Xx.Xxxxxxx/Infoseek, *, *, *, MCI, Xxxx Atlantic, GTE, SBC,
US West, Xxxx South, NBC, Time Warner, Viacom, News Corp. and (B) * and (C)
affiliates of any such entities in section A or B of this paragraph in which the
entity listed in A or B holds at least a thirty-five percent (35%) equity
interest, except that any equity holdings of entities in paragraphs (A) and (B)
in Xxxxxxxxx.xxx based on the percentage of ownership as of the Effective Date
shall not cause Xxxxxxxxx.xxx to come within the meaning of "affiliate" for the
purposes of this paragraph (C). AOL may from time to time may amend this
definition by adding reasonably comparable parties to companies in section A of
this paragraph and providing ICP with five (5) days prior written notice
thereof, except where such amendment would trigger any additional AOL rights
with respect to an already-executed agreement of ICP. Notwithstanding the
foregoing, Named Entities shall not include CBS Corporation and National Data
Corporation.
NETSCAPE NETCENTER. AOL's primary Internet-based Interactive Site marketed under
the "Netscape Netcenter(TM)" brand and located at xxx.xxxxxxxx.xxx or such other
URL as AOL may designate specifically excluding (a) the AOL Service and XXX.xxx
(b) any international versions of such site, (c) XxxxxXxxxx.xxx, any other
CompuServe products or services or interactive sites, "ICQ," "AOL NetFind(TM),"
"AOL Instant Messenger(TM)," "NetMail(TM)" or any similar independent product or
service offered by or through the Netcenter site or any other AOL Interactive
Site, (d) any programming or Content area offered by or through such site over
which AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (e) any programming or Content area offered by or through the U.S.
version of the America Online(R) brand service which was operated, maintained or
controlled by the former AOL Studios division, (f) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through such site or any other AOL Interactive Site, (g) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to the Effective Date and (h) any other version of an America Online
Interactive Site which is materially different from AOL's primary Internet-based
Interactive Site marketed under the Netscape Netcenter brand, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded versions and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer.
PMR SERVICE. An application and related tools and utilities that collect and/or
display and/or communicate personalized healthcare information, communicates
and/or act as a repository or database of personal healthcare information and/or
personal medical records, and/or permit users to input data into such repository
or database and/or manage, transmit or organize any of the foregoing. The PMR
Service includes, without limitation, any software programs and business logic
that effectuate any collection, manipulation, and/or storage of data and/or any
transfer of data to and from the consumer user interface of the PMR Service and
the data repository of the PMR Service.
PRIVACY POLICIES. AOL's standard privacy policies, available on the AOL Service
at the keyword term "Privacy" and Medscape's standard privacy policies,
available on the Medscape Site by following the hyperlink "Privacy Policy."
PRODUCT. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Members directly or indirectly through (i) the ICP Internet Site (including
through any Interactive Site linked thereto) or ICP Programming (including any
Linked Interactive Site), (ii) any other electronic means directed at AOL
Members (e.g., e-mail offers), or (iii) an "offline" means (e.g., toll-free
number) for receiving orders related to specific offers within the ICP Internet
Site or ICP Programming requiring purchasers to reference a specific promotional
identifier or tracking code, including, without limitation, products sold
through surcharged downloads (to the extent expressly permitted hereunder).
TERM. The period beginning on the Effective Date and ending upon the expiration
or earlier termination of this Agreement.
TRANSACTION REVENUES. Aggregate amounts paid by AOL Purchasers in connection
with the sale, licensing, distribution or provision of any Products, including,
in each case, handling, shipping, service charges, and excluding, in each case,
(a) amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
CONTENT. ICP represents, warrants and covenants that all Content contained
within the ICP Internet Site and ICP Programming and all Licensed Content (i)
does and will conform to AOL's applicable Terms of Service, the terms of this
Agreement and any other standard, written policy of AOL and any applicable AOL
Property, as provided to ICP by AOL or made generally available to the public,
(ii) does not and will not infringe on or violate any copyright, trademark, U.S.
patent, rights of publicity, moral rights or any other third party right,
including without limitation, any music performance or other music related
rights, and (iii) does not and will not contain any Content which violates any
applicable law or regulation ((i), (ii) and (iii) collectively, the "RULES"). In
the event that AOL notifies ICP in writing that any such Content, as reasonably
determined by AOL, does not comply or adhere to the Rules, then ICP shall use
its commercially reasonable best efforts to block access by AOL Members to such
Content. In the event that ICP cannot, through its commercially reasonable best
efforts, block access by AOL Members to such Content in question, then ICP shall
provide AOL prompt written notice of such fact. AOL may (in addition AOL's other
rights under this Agreement, at law or in equity) then, at its option, either
(i) restrict access from the AOL Network to the Content in question using
technology available to AOL or (ii) in the event access cannot be restricted,
direct ICP to remove any such Content. ICP will cooperate with AOL's reasonable
requests to the extent AOL elects to implement any such access restrictions.
HEALTH AND MEDICAL INFORMATION CONTENT. ICP represents, warrants and covenants
that: (a) ICP will not engage in or facilitate any practice or service on or
through the ICP Programming or the ICP Internet Site that would constitute the
illegal or unlicensed practice of medicine, the practice of pharmacy, or other
regulated professional practice in the health care area, as defined by
applicable state and federal laws, rules and government regulations and/or the
regulations, policies or guidelines of any applicable professional or
accrediting organization; (b) ICP possesses all necessary governmental
authorizations, approvals, consents, licenses, permits, certificates or other
rights and permissions to conduct its business as contemplated by this
Agreement; (c) if any of the Licensed Content professes to provide expert,
professional or other specialty advice or Content (such as, without limitation,
medical or psychological, religious, financial, etc.), ICP shall ensure that all
such Licensed Content is prepared or reviewed by licensed, insured and qualified
practitioners/professionals in such field with expertise on the particular topic
and such Licensed Content complies with applicable standards of the applicable
profession and all applicable laws and regulations; (d) any physicians used to
answer questions from visitors to the ICP Internet Site will be experienced,
qualified and competent to provide answers to the questions posed to them, and
possess any necessary special qualifications, training, or certification
appropriate in the areas in which they answer questions, and will be properly
licensed by the appropriate governing body of each jurisdiction where the nature
of heir conduct through the ICP Internet Site would require such licensing; and
(e) it will promptly provide AOL with such information as AOL may from time to
time reasonably request for the purpose of verifying ICP's compliance with its
obligations under this paragraph. In the event AOL reasonably determines that
there has been a violation of any of the foregoing covenants or if AOL
reasonably determines that any Content within the ICP Programming or the ICP
Internet Site may reasonably be expected to expose AOL or its Affiliates to
legal or financial liability or other adverse consequences, then AOL may (in
addition AOL's other rights under this Agreement, at law or in equity), at its
option, either (i) restrict access from the AOL Network to the Content in
question using technology available to AOL or (ii) in the event access cannot be
restricted, direct ICP to remove any such Content. ICP will cooperate with AOL's
reasonable requests to the extent AOL elects to implement any such access
restrictions.
AOL NETWORK DISTRIBUTION. The distribution, placements and/or promotions
described in this Agreement or otherwise provided to ICP by AOL shall be used by
ICP solely for its own benefit, will link to and promote solely the Licensed
Content within the ICP Internet Site or ICP Programming expressly described on
Exhibit A and will not be resold, traded, exchanged, bartered, brokered or
otherwise offered or transferred to any third party or contain any branding
other than ICP's branding. Further, the Content of all such distribution,
placements and promotions shall be subject to AOL's policies relating to
advertising and promotion, including those relating to AOL's exclusivity
commitments and other contractual preferences to third parties; provided that
the foregoing shall not be deemed to limit AOL's obligations to ICP hereunder.
CHANGES TO AOL PROPERTIES. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Service, XXX.xxx, CompuServe Service, XxxxxXxxxx.xxx, Digital City, Netscape
Netcenter or any other AOL Property, including without limitation, by adding or
deleting channels, subchannels and/or screens. If AOL eliminates or modifies an
area on an AOL Property in a manner that substantially modifies the nature of
the distribution required under this Agreement in a material adverse fashion,
AOL will work with ICP in good faith to provide ICP with comparable distribution
reasonably satisfactory to ICP.
ACCESSIBILITY; KIDS & TEEN POLICIES. AOL reserves the right, in its reasonable
discretion at any time, to designate the ICP Internet Site, ICP Programming and
all linked Interactive Sites, or any portions thereof, as Content targeted to
Kids (children ages 12 and under), Young Teens (children 13-15) and/or Mature
Teens (16-17). In the event ICP disagrees with AOL's designation, ICP shall not
distribute or provide the Content in question on or through the ICP Internet
Site or ICP Programming until the Parties agree upon the proper designation of
such Content. ICP shall ensure that all Content (including all advertising)
distributed on or through the ICP Internet Site or ICP Programming which is
targeted to the above age groups, including but not limited to Content
designated as such by AOL, complies with any relevant AOL policy (Kids, Young
Teens, Mature Teens) including any viewruling obligations. Without limiting the
generality of the foregoing or any other provision of this Agreement, ICP shall
(i) provide clear and prominent notice of collection practices and all possible
uses of information before collecting personal identifying information from
Kids, Young Teens or Mature Teens online; (ii) never post personal identifying
information about Kids, Young Teens or Mature Teens online or sell or otherwise
disclose such information to third parties; (iii) all advertorial advertising
and sponsorships shall be clearly labeled as "advertorial" or with similar
language and (iv) ensure that all chat rooms and message boards are monitored on
a daily basis by staff that has undergone AOL Community Leader training; and
each chat room shall (a) open and close in accordance with a posted schedule
(i.e., no 24/7 access), and (b) have a special "help" area for Kids, Young Teens
and/or Mature Teens, as applicable. ICP shall notify AOL in writing whenever it
intends to distribute Content for these age groups on or through the ICP
Internet Site and/or ICP Programming to ensure proper age restriction
categorization.
MEMBER PAGE. AOL will have no obligation with respect to the Content and
services available on or through any Member Page including, but not limited to,
any duty to review or monitor any such Content and services. AOL expressly
disclaims any liability to ICP for the Content and services contained in any
Member Page or any expense, claim, demand, costs, loss or damage arising out of
any use of the ICP-provided Content available from, without limitation, a
Community Center or the ICP Internet Site. ICP agrees to release AOL and its
affiliates, including partners, directors, officers, employees and agents from
any and all claims, rights and recourses for such loss or damage.
CONTESTS. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the ICP Internet Site and/or ICP Programming (a
"CONTEST") complies with all applicable laws and regulations, except for
Contests sponsored by AOL. ICP shall provide AOL with (i) at least thirty (30)
days prior written notice of any Contest and (ii) upon AOL's request, an opinion
from ICP's counsel confirming that the Contest complies with all applicable
federal, state and local laws and regulations.
DISCLAIMERS. Upon AOL's request, AOL agrees to include within the ICP Internet
Site and/or ICP Programming a disclaimer (the specific form and substance to be
mutually agreed upon by the Parties) indicating that all Content (including any
products and services) is provided solely by ICP and not AOL, and any
transactions are solely between ICP and AOL Members using or purchasing such
Content and AOL is not responsible for any loss, expense or damage arising out
of the Licensed Content or services provided through the ICP Internet Site or
ICP Programming. In addition, ICP shall prominently provide a notice/disclaimer
on all areas and features in the ICP Programming substantially as follows: "We
provide this area and its features for educational and entertainment purposes
only, and not as a substitute for your physician or other health care
professional. If you need medical or psychological services, please contact a
qualified, licensed health care professional in your area. You should always
follow the advice of your physician or other health care professional, rather
than any information contained on our service." ICP shall not in any manner
state that AOL recommends or endorses ICP or its Content. The Parties will
review
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the above disclaimer from time to time with the intent of minimizing each
Party's exposure to liability.
INSURANCE. At all times during the Term, ICP shall maintain insurance coverage
no less than: $2 million commercial general liability per occurrence; $2 million
commercial general liability insurance in the aggregate; $5 million errors &
omissions liability per occurrence and aggregate; and either $5 million in
additional umbrella insurance (i.e., covering commercial general liability and
errors & omissions) or as much such umbrella insurance that ICP may obtain by
spending $24,250 for annual premiums; provided that ICP hereby agrees to
increase its spending for such annual premium by $5,000 for each year of the
Term (until ICP reaches such $5 million coverage threshold). ICP shall include
AOL as a named insured party on all such policy or policies. ICP shall provide
AOL with a copy of such policy or policies within sixty (60) days after the
Effective Date, failing which, in addition to all other available remedies, AOL
shall be entitled to delay the launch of the Licensed Content on the AOL
Network. From time to time upon AOL's request, ICP shall provide AOL with
certificates from the respective insurance company(ies) confirming ICP's
compliance with this paragraph. ICP shall promptly notify AOL of any material
adverse change in such policy or policies.
REWARDS PROGRAMS. ICP shall not offer, provide, implement or otherwise make
available on the ICP Internet Site or ICP Programming any promotional programs
or plans that are intended to provide customers with rewards or benefits in
exchange for, or on account of, their past or continued loyalty to, or patronage
or purchase of, the products or services of ICP or any third party (e.g., a
promotional program similar to a "frequent flier" program), unless such
promotional program or plan is provided exclusively through AOL's "AOL Rewards"
program, accessible on the AOL Service at Keyword: "AOL Rewards."
NAVIGATION. In cases where an AOL Member performs a search for ICP through any
search or navigational tool or mechanism that is accessible or available through
the AOL Network (e.g., promotions, Keyword Search Terms, or any other
navigational tools), AOL shall have the right to direct such AOL Member to the
ICP Internet Site, or any other ICP Interactive Site determined by AOL in its
reasonable discretion.
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site or ICP Programming (the "AOL FRAMES"). AOL may, at
its discretion, incorporate navigational icons, links and pointers or other
Content into such AOL Frames.
OPERATIONS. AOL shall be entitled to require reasonable changes to the ICP
Internet Site and ICP Programming to the extent such site will, in AOL's good
faith judgment, adversely affect operations of the AOL Network; provided that
this sentence shall not be deemed to grant AOL any editorial control with
respect to the ICP Internet Site and ICP Programming.
CLASSIFIEDS. ICP shall not implement or promote any classifieds listing features
through ICP Programming without AOL's prior written approval. Such approval may
be conditioned upon, among other things, ICP's conformance with any
then-applicable service-wide technical or other standards related to online
classifieds.
MESSAGE BOARDS; CHAT ROOMS AND COMPARABLE VEHICLES. Any Content submitted by ICP
or its agents within message boards, chat rooms or any comparable vehicles will
be subject to the license grant relating to submissions to "public areas" set
forth in the AOL Terms of Service. ICP acknowledges that it has no rights or
interest in AOL Member submissions to message boards, chat rooms or any other
vehicles through which AOL Members may make submissions within the AOL Network.
ICP will refrain from editing, deleting or altering, without AOL's prior
approval, any opinion expressed or submission made by an AOL Member within ICP
Programming except in cases where ICP has a good faith belief that the Content
in question violates an applicable law, regulation, third party right or the
applicable AOL Property's Terms of Service.
DUTY TO INFORM. ICP shall promptly inform AOL of any information related to the
ICP Internet Site, ICP Programming or the Licensed Content which could
reasonably lead to a claim, demand or liability of or against AOL and/or its
Affiliates by any third party.
RESPONSE TO QUESTIONS/COMMENTS; CUSTOMER SERVICE. ICP shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the ICP Internet Site, ICP Programming or the Licensed Content by AOL
Members or on request by AOL, and shall cooperate and assist AOL in promptly
answering the same. ICP shall have sole responsibility for customer service
(including, without limitation, order processing, billing, shipping, etc.) and
AOL shall have no responsibility with respect thereto. ICP shall comply with all
applicable requirements of any federal, state or local consumer protection or
disclosure law.
PRODUCTION WORK. In the event that ICP requests any AOL production assistance,
ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "PRODUCTION PLAN"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding implementation of
agreed-upon Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. All fees to be paid to AOL for any such
production work shall be paid in advance. To the extent ICP elects to retain a
third party provider to perform any such production work, work produced by such
third party provider must generally conform to AOL's production standards
available at Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP shall be as
determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Anchor Tenant Button and the ICP Internet Site ("ROUTINE
SERVICES"), ICP will pay the then-standard fees charged by AOL for such Routine
Services.
PRODUCTION TOOLS. AOL shall determine in its sole discretion, which of its
proprietary publishing tools (each a "PUBLISHING TOOL") shall be made available
to ICP in order to develop and implement the Licensed Content during the Term
(e.g., to build Rainman sites). ICP shall be granted a nonexclusive license to
use any such Tool, which license shall be subject to: (i) ICP's compliance with
all rules and regulations relating to use of the Publishing Tools, as published
from time to time by AOL, (ii) AOL's right to withdraw or modify such license at
any time, and (iii) ICP's express recognition that AOL provides all Publishing
Tools on an "as is" basis, without warranties of any kind.
LAUNCH DATE. In the event that any terms contained herein relate to or depend on
the launch date of the ICP Internet Site or other property contemplated by this
Agreement, which launch date is later than the Effective Date, then it is the
intention of the Parties to record such launch date in a written instrument
signed by both Parties promptly following such launch date; provided that, in
the absence of such a written instrument, the launch date shall be as reasonably
determined by AOL based on the information available to AOL.
KEYWORDS. Any Keyword Search Terms to be directed to the ICP Internet Site shall
be (i) subject to availability for use by ICP and (ii) limited to the
combination of the Keyword(TM) search modifier combined with a registered
trademark of ICP. AOL reserves the right to revoke at any time ICP's use of any
Keyword Search Terms which do not incorporate registered trademarks of ICP. ICP
acknowledges that its utilization of a Keyword Search Term will not create in
it, nor will it represent it has, any right, title or interest in or to such
Keyword Search Term, other than the right, title and interest ICP holds in ICP's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, ICP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement; provided that the foregoing shall not be
deemed to limit ICP in obtaining trademark or copyright protection in any term
or phrase not incorporating the AOL Keyword(TM) search modifier. This Section
shall survive the completion, expiration, termination or cancellation of this
Agreement.
ACCOUNTS. To the extent AOL has granted ICP any accounts on the AOL Service, ICP
will be responsible for the actions taken under or through its accounts, which
actions are subject to AOL's applicable Terms of Service and for any surcharges,
including, without limitation, all premium charges, transaction charges, and any
applicable communication surcharges incurred by any account issued to ICP, but
ICP will not be liable for charges incurred by any account relating to AOL's
standard monthly usage fees and standard hourly charges, which charges AOL will
bear. Upon the termination of this Agreement, all accounts, related screen names
and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any such account.
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II. TRADEMARKS
TRADEMARK LICENSE. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "PROMOTIONAL MATERIALS") and subject to the other
provisions contained herein, ICP shall be entitled to use the following trade
names, trademarks and service marks of AOL: the "America Online(R)" brand
service, "AOL(TM)" service/software and AOL's triangle logo and, in connection
therewith, ICP shall comply with the AOL styleguide available at keyword: "style
guide"; and AOL and its Affiliates shall be entitled to use the trade names,
trademarks and service marks of ICP (collectively, together with the AOL marks
listed above, the "MARKS"); provided that each Party: (i) does not create a
unitary composite xxxx involving a Xxxx of the other Party without the prior
written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
This Section II shall survive the completion, expiration, termination or
cancellation of this Agreement.
RIGHTS. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Materials publicly disseminated by such
Party which utilize the other Party's Marks. Each Party shall comply with all
applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after initial public announcement
of the business relationship between the Parties in accordance with the approval
and other requirements contained herein, either Party's subsequent factual
reference in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licensed Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the distribution of the Licensed Content through the AOL Network and reused for
such purpose until such approval is withdrawn with reasonable prior notice. In
the event such approval is withdrawn, existing inventories of Promotional
Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not materially violate any material agreement to which such Party is a
party or by which it is otherwise bound; (iii) when executed and delivered by
such Party, this Agreement will constitute the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms; (iv) such Party's Promotional Materials will neither infringe on any
copyright, U.S. patent or any other third party right nor violate any applicable
law or regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure containing
Confidential Information without the consent of the other Party, to the extent
such disclosure is required by law, rule, regulation or government or court
order. In such event, the disclosing Party will provide at least five (5)
business days prior written notice of such proposed disclosure to the other
Party (unless a shorter period is required by an applicable legal requirement)..
Further, in the event such disclosure is required of either Party under the
laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such Party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing body
that such portions and other provisions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Securities and Exchange
Commission or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body.
V. RELATIONSHIP WITH AOL MEMBERS
SOLICITATION OF SUBSCRIBERS. (a) During the term of this Agreement and for a two
year period thereafter, ICP will not use the AOL Network (including, without
limitation, the e-mail network contained therein) to solicit AOL Members on
behalf of another Interactive Service. More generally, ICP will not send
unsolicited, commercial e-mail (i.e., "spam") or other online communications
through or into AOL's products or services, absent a Prior Business
Relationship. For purposes of this Agreement, a "PRIOR BUSINESS RELATIONSHIP"
will mean that the AOL Member to whom commercial e-mail or other online
communication is being sent has voluntarily either (i) engaged in a transaction
with ICP or (ii) provided information to ICP through a contest, registration, or
other communication, which included clear notice to the AOL Member that the
information provided could result in commercial e-mail or other online
communications being sent to that AOL Member by ICP or its agents. Any
commercial e-mail or other online communications to AOL Members which are
otherwise permitted hereunder will (a) include a prominent and easy means to
"opt-out" of receiving any future commercial e-mail communications from ICP and
(b) shall also be subject to AOL's then-standard restrictions on distribution of
bulk e-mail (e.g., related to the time and manner in which such e-mail can be
distributed through or into the AOL product or service in question).
(b) ICP shall ensure that its collection, use and disclosure of information
obtained from AOL Members under this Agreement ("MEMBER INFORMATION") complies
with (i) all applicable laws and regulations and (ii) AOL's standard privacy
policies, available on the AOL Service at the keyword term "Privacy" (or, in the
case of the ICP Internet Site, ICP's standard privacy policies so long as such
policies are prominently published on the site and provide adequate notice,
disclosure and choice to users regarding ICP's collection, use and disclosure of
user information). ICP will not disclose Member Information collected hereunder
to any third party in a manner that identifies AOL Members as end users of an
AOL product or service or use Member Information collected under this Agreement
to market another Interactive Service.
(c) AOL shall ensure that its collection, use and disclosure of information
obtained from Medscape with respect to Medscape members under this Agreement
complies with (i) all applicable laws and regulations and (ii) Medscape's
standard privacy policies, available on the Medscape Site by following the
hyperlink "Privacy Policy."
EMAIL NEWSLETTERS. With the exception of Medscape's MedPulse, which is provided
on an opt-out basis to registered members of Medscape's professional service,
any email newsletters sent to AOL Members by ICP or its agents during the Term
shall (i) be subject to AOL's policies on use of the email functionality,
including but not limited to AOL's policy on unsolicited bulk email, (ii) be
sent only to AOL Members requesting to
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receive such newsletters, (iii) not contain Content which violates AOL's Terms
of Service, and (iv) not contain any advertisements, marketing or promotion for
any other Interactive Service.
AOL MEMBER COMMUNICATIONS. With the exception of communications to registered
members of its professional site, to the extent ICP is otherwise permitted to
send communications to AOL Members during the Term (in accordance with the other
requirements contained herein): in any such communications initiated by ICP to
AOL Members on or off the ICP Internet Site (including, without limitation,
e-mail solicitations), ICP will limit the subject matter of such communications
to those categories of products, services and/or content that are specifically
contemplated by this Agreement and will not actively encourage AOL Members to
take any action inconsistent with the scope and purpose of this Agreement,
including without limitation, the following actions: (i) using an Interactive
Site other than the ICP Internet Site for the purchase of Products, (ii) using
Content other than the Licensed Content; (iii) bookmarking of Interactive Sites;
or (iv) changing the default home page on the AOL browser. Additionally, with
respect to such AOL Member communications, in the event that ICP encourages an
AOL Member to purchase products through such communications, ICP shall ensure
that (a) the AOL Network is expressly promoted as the primary means through
which the AOL Member can access the ICP Internet Site (including without
limitation by stating the applicable Keyword Search Term and including direct
links to specific offers within the ICP Internet Site) and (b) any link to the
ICP Internet Site will link to a page which indicates to the AOL Member that
such user is in a site which is affiliated with the AOL Network.
CUSTOMER DATA; AOL DATA. Any data generated from ICP Programming or ICP Tools
located on the ICP Internet Site, including, without limitation, customer names,
addresses and medical information frequency but excluding credit card
information and AOL screennames (the "CUSTOMER DATA"), shall be and remain the
joint property of both Parties. ICP agrees that AOL may use and have reasonable
access to the Customer Data subject to the terms of this Agreement and the
Privacy Policies; provided that both Parties shall use customer-specific medical
profile information on a customer-by-customer basis in accordance with the
Privacy Policies and any applicable laws or regulations. AOL agrees that ICP may
use and have reasonable access to the Customer Data subject to the terms of this
Agreement and the Privacy Policies; provided that ICP (a) shall comply with the
foregoing paragraphs of this Section V of this Exhibit C, (b) shall provide
users the right to have their Customer Data deleted from any database created by
or on behalf of ICP, and (c) shall not have the right to use the Customer Data
to market or promote any consumer direct information, services or products
reasonably construed to be in competition with AOL or any AOL Property. Any data
provided by AOL to ICP (e.g., usage reports) (the "AOL DATA") shall be and
remain the property of AOL, and the AOL Data will be promptly returned to AOL by
ICP in the form in which such data is maintained by ICP or, if AOL so elects,
will be destroyed, upon (i) AOL's request, (ii) expiration or termination of
this Agreement for any reason, or (iii) with respect to any particular AOL Data,
on such earlier date that the same is no longer required by ICP in order to
provide the services required hereunder. ICP will not use the AOL Data for any
purpose other than that of providing such services, nor will the AOL Data, or
any part thereof, be disclosed, sold, assigned, leased, or otherwise disposed of
to third parties by ICP or commercially exploited by or on behalf of ICP, its
employees or agents. ICP will not possess or assert any lien or other right
against or to the AOL Data. The Parties agree to amend the provisions of this
paragraph from time to time to in good faith to the extent necessary to comply
with applicable law, rule or regulation; provided that if any such amendment to
the provisions of this paragraph has, or is likely to have, an adverse effect on
either Party, then such Party may refer such matter to the Management Committee
for resolution.
VI. TREATMENT OF CLAIMS
LIABILITY. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE
THE AOL NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS
(COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT THE FOREGOING SHALL NOT
RESTRICT A PARTY'S RIGHTS FOR INDEMNIFICATION FOR THIRD PARTY CLAIMS AS SET
FORTH IN THE "INDEMNITY" SECTION BELOW. EXCEPT AS PROVIDED BELOW IN THE
"INDEMNITY" SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE
THAN ONE FOURTH OF THE GUARANTEED PAYMENT; PROVIDED THAT EACH PARTY SHALL REMAIN
LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER
PARTY UNDER THE PROVISIONS OF THIS AGREEMENT; AND PROVIDED FURTHER THAT THE
FOREGOING LIABILITY CAP SHALL NOT APPLY TO (1) EITHER PARTY'S BREACH OF THIS
AGREEMENT INVOLVING FRAUD, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OR (2)
EITHER PARTY'S ACTION OR FAILURE TO ACT THAT IT KNEW, OR SHOULD HAVE KNOWN,
WOULD CONSTITUTE A BREACH OF ANY TERM, CONDITION OR OBLIGATION UNDER THIS
AGREEMENT.
NO ADDITIONAL WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK,
ANY AOL PUBLISHING TOOLS, OR THE LICENSED CONTENT, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, EACH OF AOL AND ICP SPECIFICALLY
DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY OF AOL NETWORK OR THE ICP
INTERNET SITE.
INDEMNITY. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("LIABILITIES"), resulting from the indemnifying Party's material breach of any
obligation, representation, or warranty of this Agreement.
If a Party entitled to indemnification hereunder (the "INDEMNIFIED PARTY")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "ACTION"), the Indemnified Party
shall give the other Party (the "INDEMNIFYING PARTY") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. The Indemnified Party shall cooperate,
at the expense of the Indemnifying Party, with the Indemnifying Party and its
counsel in the defense and the Indemnified Party shall have the right to
participate fully, at its own expense, in the defense of such Action. If a
dispute arises over whether the Party requesting indemnification hereunder is so
entitled, the Party requesting indemnification shall be free, without prejudice
to any of such Party's rights hereunder, to compromise or defend (and control
the defense of) such Action. Any compromise or settlement of an Action shall
require the prior written consent of both Parties hereunder, such consent not to
be unreasonably withheld or delayed.
ACKNOWLEDGMENT. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim, controversy or disagreement (each
a "DISPUTE") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute within such
timeframe, the Dispute shall be submitted to the
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Management Committee for resolution. For ten (10) days after the Dispute was
submitted to the Management Committee, the Management Committee shall have the
exclusive right to resolve such Dispute; provided further that the Management
Committee shall have the final and exclusive right to resolve Disputes arising
from any provision of this Agreement which expressly or implicitly provides for
the Parties to reach mutual agreement as to certain terms. If the Management
Committee is unable to amicably resolve the Dispute during the ten (10) day
period, then the Management Committee will consider in good faith the
possibility of retaining a third party mediator to facilitate resolution of the
Dispute. In the event the Management Committee elects not to retain a mediator,
the Dispute will be subject to the resolution mechanisms described below.
"MANAGEMENT COMMITTEE" shall mean a committee made up of a senior executive from
each of the Parties for the purpose of resolving Disputes under this Section and
generally overseeing the relationship between the Parties contemplated by this
Agreement. Neither Party shall seek, nor shall be entitled to seek, binding
outside resolution of the Dispute unless and until the Parties have been unable
to amicably resolve the dispute as set forth in this paragraph (a) and then,
only in compliance with the procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights, including
but not limited to intellectual property and confidentiality, and (ii) any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a)), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("COMMERCIAL RULES") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("COMPLEX
PROCEDURES"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("DEMAND"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages only.
Any award by the arbitrators shall be accompanied by a written opinion setting
forth the findings of fact and conclusions of law relied upon in reaching the
decision. The award rendered by the arbitrators shall be final, binding and
non-appealable, and judgment upon such award may be entered by any court of
competent jurisdiction. The Parties agree that the existence, conduct and
content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "ATTORNEYS' FEES"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "ARBITRATION
COSTS") shall be born equally by the parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"NON-ARBITRATION CLAIMS") shall be brought in a court of competent jurisdiction
in the State of New York. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the State of New York and the federal courts
situated in the State of New York, over any and all Non-Arbitration Claims and
any and all actions to enforce such claims or to recover damages or other relief
in connection with such claims or to enforce a judgment rendered in an
arbitration proceeding.
VIII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("RECORDS"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL shall have the right, at its expense, to
direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of ICP that are directly related to
amounts payable to AOL pursuant to this Agreement. For the sole purpose of
ensuring compliance with this Agreement, ICP shall have the right, at its
expense, to direct an independent certified public accounting firm subject to
strict confidentiality restrictions to conduct a reasonable and necessary
copying and inspection of portions of the Records of AOL that are directly
related to amounts payable to ICP pursuant to this Agreement. Any such audit may
be conducted after twenty (20) business days prior written notice, subject to
the following. Such audits shall not be made more frequently than once every
twelve months. No such audit of AOL shall occur during the period beginning on
June 1 and ending October 1. No such audit of ICP shall occur during the period
beginning on December 1 and ending April 1.
EXCUSE. Neither Party shall be liable for, or be considered in breach of or
default under this Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname "AOLNotice" in
the case of AOL or Xxxxxxxx_Xxxxxx@xxxx.xxxxxxxx.xxx in the case of ICP) or by
confirmed facsimile; (ii) on the delivery date if delivered personally to the
Party to whom the same is directed; (iii) one business day after deposit with a
commercial overnight carrier, with written verification of receipt; or (iv) five
business days after the mailing date, whether or not actually received, if sent
by U.S. mail, return receipt requested, postage and charges prepaid, or any
other means of rapid mail delivery for which a receipt is available. In the case
of AOL, such notice will be provided to both the Senior Vice President for
Business Affairs (fax no. 000-000-0000) and the Deputy General Counsel (fax no.
000-000-0000), each at the address of AOL set forth in the first paragraph of
this Agreement. In the case of ICP, such notice will also be provided to the
General Counsel of ICP (fax 000-000-0000). Except as otherwise specified herein,
ICP's notice address shall be the address for ICP set forth in the first
paragraph of this Agreement or such other address specified in writing by ICP,
with the other relevant notice information, including the recipient for notice
and, as applicable, such recipient's fax number or AOL e-mail address, to be as
reasonably identified by XXX.
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XX XXXXXX. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials specified by the other Party.
SURVIVAL. Sections IV, V, VI, VII and VIII of this Exhibit C, shall survive the
completion, expiration, termination or cancellation of this Agreement. In
addition, all relevant payment terms of this Agreement and any provision which,
by its nature, must survive the completion, expiration, termination or
cancellation of this Agreement, shall survive the completion, expiration,
termination or cancellation of this Agreement.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
ASSIGNMENT. Neither Party shall assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of the other
Party. Assumption of this Agreement by any successor to either Party (including,
without limitation, by way of merger or consolidation) shall be subject to the
other Party's prior written approval. Subject to the foregoing, this Agreement
shall be fully binding upon, inure to the benefit of and be enforceable by the
Parties hereto and their respective successors and assigns.
SUBCONTRACTORS. To the extent ICP utilizes consultants or subcontractors to
perform a material portion of its obligations under this Agreement, such
consultants and/or subcontractors shall be subject to AOL's prior written
approval and ICP shall provide AOL with direct contact information for the
employees of such consultants and/or subcontractors who are responsible for
performing such obligations, which employees shall be available during business
hours for consultation with AOL. AOL specifically acknowledges and approves
ICP's existing contract with Softwatch, Ltd., for web development services, and
with Exodus Communications for web hosting services.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified, the rights and remedies granted to a
Party under this Agreement are cumulative and in addition to, and not in lieu
of, any other rights or remedies which the Party may possess at law or in
equity.
APPLICABLE LAW. This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the State of New York except for its
conflicts of laws principles.
EXPORT CONTROLS. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
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EXHIBIT D
USE OF ICP MARKS
MEDSCAPE
[GRAPHIC OMITTED]
Graphic shows pages from
document establishing basic
guidelines for the use of the
Medscape Corporate Logo
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EXHIBIT E
CERTIFICATION OF COMPLIANCE WITH COMMITMENTS
REGARDING PROMOTIONS
Pursuant to Section 3.3 of the Interactive Services Agreement between
______________ ("ICP") and America Online, Inc. ("AOL"), dated as of
_________________, 1999 (the "Agreement"), the following report is delivered to
AOL for the period beginning _____________ and ending __________ (the "Period"):
I. PROMOTIONAL COMMITMENTS
ICP hereby certifies to AOL that ICP completed the following promotional
commitments during the Period:
TYPE OF PROMOTION DATE(S) OF DURATION/CIRCULATION OF RELEVANT CONTRACT
PROMOTION PROMOTION SECTION
-----------------------------------------------------------------------------------------------
1.
-----------------------------------------------------------------------------------------------
2.
-----------------------------------------------------------------------------------------------
3.
IN WITNESS WHEREOF, this Certificate has been executed this ___ day of
___________, 199_.
___________________________________
By: _______________________________
Print Name: ________________________
Title: ______________________________
Date: ______________________________
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EXHIBIT F
OPERATING STANDARDS
1. ICP Internet Site Infrastructure. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated
with the ICP Internet Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet
traffic demands on the ICP Internet Site from the AOL Network. ICP will
design and implement the network between the AOL Service and ICP Internet
Site such that (i) no single component failure will have a materially
adverse impact on AOL Members seeking to reach the ICP Internet Site from
the AOL Network and (ii) no single line under ICP's reasonable control
will run at more than 70% average utilization for a 5-minute peak in a
daily period. In this regard, ICP will provide AOL, upon request, with a
detailed network diagram regarding the architecture and network
infrastructure supporting the ICP Internet Site. In the event that ICP
elects to create a custom version of the ICP Internet Site in order to
comply with the terms of this Agreement, ICP will bear responsibility for
all aspects of the implementation, management and cost of such customized
site.
2. Optimization; Speed. ICP will use commercially reasonable efforts to
ensure that: (a) the functionality and features within the ICP Internet
Site are optimized for the client software then in use by AOL Members; and
(b) the ICP Internet Site is designed and populated in a manner that
minimizes delays when AOL Members attempt to access such site. At a
minimum, ICP will ensure that the ICP Internet Site's data transfers
initiate within fewer than fifteen (15) seconds on average. Prior to
commercial launch of any material promotions described herein, ICP will
permit AOL to conduct performance and load testing of the ICP Internet
Site (in person or through remote communications), with such commercial
launch not to commence until such time as AOL is reasonably satisfied with
the results of any such testing.
3. Technical Problems. ICP agrees to use commercially reasonable efforts to
address material technical problems (over which ICP exercises control)
affecting use by AOL Members of the ICP Internet Site (an "ICP Technical
Problem") promptly following notice thereof. In the event that ICP is
unable to promptly resolve an ICP Technical Problem following notice
thereof from AOL (including, without limitation, infrastructure
deficiencies producing user delays), AOL will have the right to regulate
the promotions it provides to ICP hereunder until such time as ICP
corrects the ICP Technical Problem at issue.
4. Monitoring. ICP will ensure that the performance and availability of the
ICP Internet Site is monitored on a continuous (24 X 7) basis. ICP will
provide AOL with contact information (including e-mail, phone, pager and
fax information, as applicable, for both during and after business hours)
for ICP's principal business and technical representatives, for use in
cases when issues or problems arise with respect to the ICP Internet Site.
5. Security. ICP will utilize Internet standard encryption technologies
(e.g., Secure Socket Layer - SSL) to provide a secure environment for
conducting transactions and/or transferring private member information
(e.g. credit card numbers, banking/financial information, and member
address information) to and from the ICP Internet Site. ICP will
facilitate periodic reviews of the ICP Internet Site by AOL in order to
evaluate the security risks of such site. ICP will promptly remedy any
security risks or breaches of security as may be identified by AOL's
Operations Security team.
6. Technical Performance.
i. ICP will design the ICP Internet Site to support the AOL-Client
embedded versions of the Microsoft Internet Explorer 3.XX and 4.XX
browsers (Windows and Macintosh), the Netscape Browser 4.XX and make
commercially reasonable efforts to support all other AOL browsers
listed at: "xxxx://xxxxxxxxx.xxxx.xxx.xxx."
ii. To the extent ICP creates customized pages on the ICP Internet Site
for AOL Members, ICP agrees to develop and employ a methodology to
detect AOL Members (e.g., examine the HTTP User-Agent field in order
to identify the "AOL Member-Agents" listed at: xxxx://xxxxxxxxx.
xxxx.xxx.xxx" and referenced under the heading "Browser Detection.")
iii. ICP will periodically review the technical information made
available by AOL at xxxx://xxxxxxxxx.xxxx.xxx.xxx.
iv. ICP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing
or preventing the caching of information in AOL's proxy system as
outlined in the document provided at the following URL:
xxxx://xxxxxxxxx.xxxx.xxx.xxx. ICP is responsible for the
manipulation of these parameters in web based objects so as allow
them to be cached or not cached as outlined in RFC 1945.
v. Prior to releasing material, new functionality or features through
the ICP Internet Site ("New Functionality"), ICP will use
commercially reasonable efforts to either (i) test the New
Functionality to confirm its compatibility with AOL Service client
software and (ii) provide AOL with written notice of the New
Functionality so that AOL can perform tests of the New Functionality
to confirm its compatibility with the AOL Service client software.
Should any new material, new functionality or features through the
ICP Internet Site be released without notification to AOL, AOL will
not be responsible for any adverse member experience until such time
that compatibility tests can be performed and the new material,
functionality or features qualified for the AOL Service.
7. AOL Internet Services Partner Support. AOL will provide ICP with access to
the standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL
makes generally available to similarly situated web-based partners. AOL
support will not, in any case, be involved with content creation on behalf
of ICP or support for any technologies, databases, software or other
applications which are not supported by AOL or are related to any ICP area
other than the ICP Internet Site. Support to be provided by AOL is
contingent on ICP providing to AOL demo account information (where
applicable), a detailed description of the ICP Internet Site's software,
hardware and network architecture and access to the ICP Internet Site for
purposes of such performance and the coordination load testing as AOL
elects to conduct.
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8. ICP Programming. The terms and conditions of this Exhibit applicable to
the ICP Internet Site shall apply equally to any ICP Programming that is
(a) programmed in HTML or (b) web-based.
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EXHIBIT G
KEYWORD GUIDELINES
PRINT/GRAPHIC
- Preferred listing: (AOL Logo appears) America Online Keyword: Medscape
America Online Keyword: Medscape
- If necessary, due to space constraints, listing may (pending approval)
appear as follows:
AOL KEYWORD: MEDSCAPE
- Every effort should be made to have 'America Online' spelled out
- Capitalization - listing should appear in initial caps only
Note: When America Online is abbreviated to AOL - AOL must appear in
all caps.
K of Keyword must always be capitalized
- Font, Font style and Size must all be consistent
- Listing size must be of equal prominence to that of any/all other URLs
featured
BROADCAST/RADIO
- America Online Keyword must announced entirely (even if an accompanying
graphic is set with AOL versus America Online)
Example voiceover would read:
"For more information, please visit America Online Keyword: Medscape"
- AOL must approve all uses prior to usage
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