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EXHIBIT 10.26
Confidential Treatment Requested
CO-BRANDING AGREEMENT
This Co-Branding Agreement (this "Agreement") by and between
VerticalNet, Inc., a Pennsylvania corporation having a principal place of
business at 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx, XX 00000
("VerticalNet"), and Xxxxxxxx.xxx, Inc., a Delaware corporation having a
principal place of business at 0000-0 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, XX 00000
("Neoforma"), is dated as of November 19, 1999 (the "Effective Date").
In consideration of the mutual covenants herein, and intending to be
legally bound hereby, the Parties agree as follows:
1. DEFINITIONS.
1.1 ADVERTISING shall mean any paid advertisements, links, pointers,
sponsorships, buttons, banners, navigation, or any other placements or
promotions or similar services or rights on a Site, but excluding Advertising
that is not paid for or which is part of an overall partnering or revenue
sharing arrangement and any Product Listings.
1.2 AFFILIATE shall mean, when used with reference to a Party, any
individual or entity directly or indirectly controlling, controlled by or under
common control with such Party. For purposes of this definition, "control" means
the direct or indirect ownership of at least 50% of the outstanding voting
securities of a Party, or the right to control the policy decisions of such
Party.
1.3 CAREER CENTER GROSS MARGIN shall have the meaning ascribed thereto
in Section 10.5.1.
1.4 CO-BRANDED CAREER CENTER shall mean the Site located at an URL to be
mutually agreed upon (which agreement shall not be unreasonably withheld or
delayed) containing a VerticalNet Xxxx and a Neoforma Xxxx listing openings for
positions and posting other career information in the medical and healthcare
fields substantially in the form of the existing "Career Center" portions of the
VerticalNet Medical Online Communities.
1.5 CO-BRANDED SITES shall mean the Co-Branded Career Center and the
Co-Branded Training and Education Center.
1.6 CO-BRANDED TRAINING AND EDUCATION CENTER shall mean the Site located
at an URL to be mutually agreed upon (which agreement shall not be unreasonably
withheld or delayed) containing a VerticalNet Xxxx and a Neoforma Xxxx listing
training and education offerings in the medical and healthcare fields
substantially in the form of the existing "Training and Education" portions of
the VerticalNet Medical Online Communities.
1.7 CONFIDENTIAL INFORMATION shall mean all proprietary and confidential
information of a Party, including, without limitation, trade secrets, technical
information, business information, sales information, customer and potential
customer lists and identities, product sales plans, sublicense agreements,
inventions, developments, discoveries, software, know-how, methods, techniques,
formulae, data, processes and other trade secrets and proprietary ideas, whether
or
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not protectable under patent, trademark, copyright or other areas of law, that
the other Party has access to or receives and which, if disclosed in writing, is
marked as "Confidential Information," or if disclosed orally, is confirmed in
writing to be "Confidential Information" within five days of such oral
disclosure, but does not include information that (a) is or becomes publicly
available through no fault of the receiving Party; (b) was already known to the
receiving Party at the time it was disclosed to the receiving Party, as
evidenced by written records of the receiving Party; (c) is independently
developed by or on behalf of the receiving Party without reference or access to
such information, as evidenced by written records of the receiving Party; or (d)
is received from a third party who is under no obligation of confidentiality to
the disclosing Party.
1.8 DEDUCTIBLES shall mean credits for claims, allowances, seller
rebates or returned goods, commissions paid to any third parties, and sales,
service, excise, use, value-added and other similar taxes (excluding income
taxes) actually paid.
1.9 INITIAL TERM shall mean the Effective Date through the day prior to
the second anniversary of the Effective Date, unless earlier terminated pursuant
to Section 11.
1.10 INTELLECTUAL PROPERTY shall mean any and all trade secrets,
patents, copyrights, trademarks, URLs, trade dress, brand features, know-how and
similar rights of any type under the laws of any applicable governmental
authority, including, without limitation, all applications and registrations
relating to any of the foregoing.
1.11 INTELLECTUAL PROPERTY RIGHTS shall mean all rights in and to
Intellectual Property.
1.12 LABORATORY PRODUCTS shall mean any equipment, instruments or other
products used for scientific research and analysis in the field of human health
care, including, but not limited to, the categories of equipment, instruments
and products listed on EXHIBIT A, (i) that is (a) previously used and is being
resold by or on behalf of the prior end-user purchaser or (b) previously sold
but unused and is being resold by or on behalf of the prior end-user purchaser,
and (ii) excluding Medical Products.
1.13 LABORATORY PRODUCTS LISTINGS shall mean any VerticalNet Laboratory
Product Listings and Neoforma Laboratory Product Listings.
1.14 LABORATORY PRODUCTS NET REVENUE shall mean the Transaction Fees
derived from the promotion and sale of the Neoforma Product Listings for
Laboratory Products through the Co-Branded Sites, less any Deductibles.
1.15 LINK shall mean a link (including, but not limited to, a hyperlink,
button or banner) that connects two Sites in a manner so that when a user clicks
on the link, the user is transferred directly from one Site to a second Site. A
"Link from Site A to Site B" indicates that Site A is the Site of origin and
Site B is the Site to which the user is linked.
1.16 MEDICAL PRODUCTS shall mean any equipment, including capital
equipment, instruments and other products used for in-patient diagnostic or
treatment purposes in the field of human health care, excluding Laboratory
Products.
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1.17 MEDICAL PRODUCTS LISTINGS shall mean any VerticalNet Medical
Product Listings and Neoforma Medical Product Listings.
1.18 MEDICAL PRODUCTS NET REVENUE shall mean the Transaction Fees
derived from the sale of New Medical Products and Used and Excess Medical
Products through the Neoforma Sites, less any Deductibles.
1.19 NEOFORMA AUCTION shall mean the functionality and services provided
at the "auction" portion of the Neoforma Site.
1.20 NEOFORMA CAREER CONTENT shall have the meaning ascribed thereto in
Section 4.5.
1.21 NEOFORMA COMPETITORS shall mean Xxxxxxx.xxx, Xxxxxxxx.xxx,
Xxxxxxxxxxxx.xxx and Xxxxxxx.xxx. During the Term, Neoforma may add to this
defined term additional third parties whose primary purpose is the multi-vendor
online sale of Medical Products.
1.22 NEOFORMA CONTENT shall mean the Neoforma Career Content and the
Neoforma T&E Content.
1.23 NEOFORMA DELIVERABLE shall mean any good, service or other item to
be delivered or made available by Neoforma.
1.24 NEOFORMA GAR shall mean Neoforma GAR, Inc.
1.25 NEOFORMA HOME PAGE shall mean the home page located at the Neoforma
Site.
1.26 NEOFORMA LABORATORY PRODUCTS LISTING shall mean a Neoforma Product
Listing relating to a Laboratory Product that is not already listed on a
VerticalNet Site.
1.27 NEOFORMA LINK shall mean a Link that contains a Neoforma Xxxx and
will take users of other Sites to the Neoforma Home Page.
1.28 NEOFORMA XXXX shall mean any trademark, service xxxx, trade name,
domain name, design or logo of Neoforma.
1.29 NEOFORMA MEDICAL PRODUCTS LISTING shall mean a Neoforma Product
Listing relating to a Medical Product that is not already covered by a
VerticalNet Medical Product Listing on Neoforma Plan and/or Neoforma Shop.
1.30 NEOFORMA PLAN shall mean the "plan" portion of the Neoforma Site.
1.31 NEOFORMA PRODUCT LISTING shall mean a Product Listing of Neoforma
for Medical Products or Laboratory Products, including any Neoforma Product
Listings for Laboratory Products made available hereunder by Neoforma to
VerticalNet.
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1.32 NEOFORMA RESOURCES HOME PAGE shall mean the Site located at
xxxx://xxx.xxxxxxxx.xxx/xx/xxxxx.xxxx?XxxxXxxxxXxxxxx&xxxxxxxxxx_xxxx&xxxXxxx
resources&subHdrTab=0&dir=resources (or a successor Site thereto).
1.33 NEOFORMA SHOP shall mean the "shop" portion of the Neoforma Site.
1.34 NEOFORMA SITE shall mean any Site owned and operated by Neoforma,
including, but not limited to, the Site located at xxx.xxxxxxxx.xxx (or any
successor Sites to any of the foregoing).
1.35 NEOFORMA T&E CONTENT shall have the meaning ascribed thereto in
Section 5.5.
1.36 NET ADVERTISING REVENUE shall mean the gross amount collected by a
Party from a third party for the sale of Advertising, less any Deductibles.
1.37 NEW MEDICAL PRODUCTS shall mean new, unused Medical Products.
1.38 PARTY shall mean VerticalNet or Neoforma.
1.39 PRODUCT LISTING shall mean a listing of a third party's product at
a Site in exchange for a fee, commission, or other compensation for purposes of
promoting the sale of such third party's product to a third party purchaser,
including, without limitation, sales by auction.
1.40 QUALIFIED LEAD shall mean a customer referred by Neoforma to
VerticalNet that is not, at the time of referral, a customer of VerticalNet,
which customer has agreed to place a listing on (a) the Co-Branded Career Center
and/or (b) the Co-Branded Training and Education Center.
1.41 RENEWAL TERM shall have the meaning ascribed thereto in Section
11.1.
1.42 SITE shall mean a site located on the World Wide Web portion of the
Internet.
1.43 TERM shall mean the Initial Term and any Renewal Terms.
1.44 TRAINING AND EDUCATION GROSS MARGIN shall have the meaning ascribed
thereto in Section 10.5.2.
1.45 TRANSACTION ORIGINATION PARTY shall mean the Party from whose Site
a third party clicked through, using a Link, to a Site containing a Product
Listing resulting in the purchase of the product promoted in such Product
Listing by such third party.
1.46 TRANSACTION FEE shall mean any payments, including, without
limitation, fees and commissions, but collected by a Party from a third party in
consideration for goods or services, excluding any Advertising for the benefit
of a third party, provided or promoted at one or more Sites operated or
controlled by such Party.
1.47 URL shall mean a universal resource locator used for purposes of
identifying a page located on the Internet.
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1.48 USED AND EXCESS MEDICAL PRODUCTS shall mean (a) previously used
Medical Products being resold by or on behalf of the prior end-user purchaser
and (b) previously sold but unused Medical Products being resold by or on behalf
of the prior end-user purchaser.
1.49 VERTICALNET AUCTION shall mean, in VerticalNet's discretion, the
Site located at xxx.xxxx.xxx (or a successor Site thereto) or the "Auction"
portion of the Site located at xxx.xxxxxxxxxxxxxxx.xxx."
1.50 VERTICALNET BUYER'S GUIDE shall mean the "Buyer's Guide" portion of
the VerticalNet Medical Online Communities (or a successor Site thereto).
1.51 VERTICALNET COMPETITOR shall mean any Site primarily directed to
the sale or auction of Laboratory Products.
1.52 VERTICALNET CONTENT shall have the meaning ascribed thereto in
Section 6.1.
1.53 VERTICALNET DELIVERABLE shall mean any good, service or other item
to be delivered or made available by VerticalNet.
1.54 VERTICALNET LABORATORY PRODUCTS LISTING shall mean a VerticalNet
Product Listing relating to a Laboratory Product that is not already covered by
a Neoforma Medical Product Listing on a VerticalNet Site.
1.55 VERTICALNET LINK shall mean a Link that contains a VerticalNet Xxxx
and will take users of other Sites to a page of a VerticalNet Site.
1.56 VERTICALNET XXXX shall mean any trademark, service xxxx, trade
name, domain name, design or logo of VerticalNet.
1.57 VERTICALNET MEDICAL ONLINE COMMUNITIES shall mean the Sites located
at xxx.xxxxxxx.xxx, xxx.xxxxxxxxxxxxxxx.xxx, xxx.xxxxxxxxxxxxxxxxxxx.xxx, and
xxx.xxxxxx.xxx (or any successor Sites to any of the foregoing).
1.58 VERTICALNET MEDICAL PRODUCTS LISTING shall mean a VerticalNet
Product Listing relating to a Medical Product that is not already listed on
Neoforma Plan and Neoforma Shop.
1.59 VERTICALNET PRODUCT LISTING shall mean a Product Listing of
VerticalNet for Medical Products or Laboratory Products, including any
VerticalNet Product Listings made available hereunder by VerticalNet to
Neoforma.
1.60 VERTICALNET PRODUCT SHOWCASE shall mean the "Product Showcase"
portion of the VerticalNet Medical Online Communities.
1.61 VERTICALNET SITE shall mean any Site owned and operated by
VerticalNet, including, but not limited to, the VerticalNet Medical Online
Communities, the Co-Branded Sites and the Site located at xxx.xxxxxxxxxxx.xxx
(or a successor Site to any of the foregoing).
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2. MEDICAL PRODUCTS.
2.1 Within 30 days after the Effective Date, VerticalNet shall provide a
copy of all VerticalNet Medical Product Listings for Used and Excess Medical
Products existing as of the Effective Date to Neoforma for use on Neoforma Plan,
Neoforma Shop and Neoforma Auction on an exclusive basis (even as to
VerticalNet), to the extent VerticalNet has the right to do so.
2.2 Within 30 days after the Effective Date, VerticalNet shall provide a
copy of all VerticalNet Medical Product Listings for New Medical Products
existing as of the Effective Date to Neoforma for use on Neoforma Plan, Neoforma
Shop and Neoforma Auction on an exclusive basis (even as to VerticalNet), to the
extent VerticalNet has the right to do so. VerticalNet shall use commercially
reasonable efforts to acquire consent from its customers to provide all
VerticalNet Medical Product Listings for New Medical Products existing as of the
Effective Date to Neoforma.
2.3 From time to time during the Term, VerticalNet shall provide a copy
of all VerticalNet Medical Product Listings received by VerticalNet after the
Effective Date to Neoforma as such Product Listings are made available to
VerticalNet for use on Neoforma Plan, Neoforma Shop and Neoforma Auction on an
exclusive basis (even as to VerticalNet), to the extent VerticalNet has the
right to do so. VerticalNet shall use commercially reasonable efforts to acquire
consent from its customers to provide all VerticalNet Medical Product Listings
for New Medical Products received by VerticalNet after the Effective Date to
Neoforma.
2.4 Notwithstanding the foregoing, VerticalNet's activities in
connection with its "Storefronts" and "E-Commerce Centers" (as conducted today,
in a fashion substantially similar to the manner in which such activities are
conducted today or as otherwise mutually agreed upon by the parties, which
agreement shall not be unreasonably withheld or delayed) shall not be considered
to be a breach of Section 2.1, 2.2 or 2.3.
2.5 VerticalNet hereby grants Neoforma an exclusive license, even as to
VerticalNet, to use, modify, enhance, reproduce, display, perform and transmit
the VerticalNet Medical Product Listings, subject to and in accordance with the
terms, conditions and provisions of this Agreement, to the extent that
VerticalNet has the right to do so.
2.6 Neoforma shall list each VerticalNet Product Listing on Neoforma
Plan or Neoforma Shop or Neoforma Auction. The look-and-feel of the VerticalNet
Product Listings as displayed on Neoforma Plan, Neoforma Shop and Neoforma
Auction shall be substantially consistent with the look-and-feel of the other
Medical Products Listings displayed on such Sites, unless otherwise agreed upon
by the Parties.
2.7 VerticalNet shall add a Neoforma Link to each VerticalNet Buyer's
Guide labeled "Neoforma Search" (or as otherwise mutually agreed upon by the
Parties), substantially consistent with the prototype attached hereto as EXHIBIT
B, which Links shall be as prominent as the other Links on such Sites. If a user
of a VerticalNet Buyer's Guide clicks on such button, such user shall be linked
to a Site containing a VerticalNet frame surrounding the appropriate search
results on Neoforma Shop. As soon as is commercially reasonable, and in any
event, no later that the first anniversary of the Effective Date, such search
results shall only contain
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Product Listings for New Medical Products. Notwithstanding the foregoing, if, at
any time, Neoforma lists Used and Excess Medical Products on Neoforma Shop,
VerticalNet may remove or relocate the Neoforma Link described in this Section
2.7, in VerticalNet's reasonable discretion.
2.8 Neoforma hereby grants VerticalNet the right to frame all pages of
the Neoforma Sites that contain Medical Products Listings with a frame
containing VerticalNet Marks substantially consistent with the prototype
attached hereto as EXHIBIT C, which framed pages shall only be accessible from
the VerticalNet Sites. VerticalNet shall place a Link on the homepage of each
VerticalNet Medical Online Community under "Marketplace" to such framed pages of
the Neoforma Sites.
2.9 Neoforma shall host and maintain Neoforma Plan, Neoforma Shop and
Neoforma Auction. Neoforma owns and shall continue to own the domain name and
the URL used in connection with its business, including but not limited to,
Neoforma Plan, Neoforma Shop and Neoforma Auction.
2.10 VerticalNet shall not enter into any agreement with a Neoforma
Competitor for the on-line listing of Medical Products or place any Link to the
Site of a Neoforma Competitor on the VerticalNet Medical Online Communities.
2.11 During the Term, VerticalNet shall not use its Site located at
xxx.xxxxxxxx.xxx to conduct online auctions of Medical Products.
3. LABORATORY PRODUCTS.
3.1 Within 30 days after the Effective Date, Neoforma shall provide a
copy of all Neoforma Laboratory Product Listings existing as of the Effective
Date to VerticalNet for use on the VerticalNet Sites on an exclusive basis (even
as to Neoforma), to the extent Neoforma has the right to do so. Notwithstanding
the foregoing, the provisions of Sections 3.1 through 3.8 shall not apply to any
Laboratory Product sold through live (non-virtual) auctions conducted by
Neoforma (through Neoforma GAR or otherwise) for which no Product Listing is
made; provided, however, that Neoforma shall use commercially reasonable efforts
to acquire Product Listings for all such Laboratory Products. If Neoforma
receives a set of Product Listings packaged as a "lot," Neoforma shall use
commercially reasonable efforts to provide all Laboratory Product Listings
contained in such "lot" to VerticalNet in accordance with this Agreement.
3.2 From time to time during the Term, Neoforma shall provide a copy of
all Neoforma Laboratory Product Listings received by Neoforma after the
Effective Date to VerticalNet as such Product Listings are made available to
Neoforma for use on the VerticalNet Sites on an exclusive basis (even as to
Neoforma).
3.3 Neoforma hereby grants VerticalNet an exclusive license, even as to
Neoforma, to use, modify, enhance, reproduce, display, perform and transmit the
Neoforma Laboratory Product Listings, subject to and in accordance with the
terms, conditions and provisions of this Agreement, to the extent Neoforma has
the right to do so.
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3.4 VerticalNet shall list each such Neoforma Product Listing on the
VerticalNet Auction. Neoforma shall provide each Neoforma Product Listing to
VerticalNet in the form of the template attached hereto as EXHIBIT D. The
look-and-feel of the Neoforma Product Listings as displayed on the VerticalNet
Auction shall be substantially consistent with the look-and-feel of the other
Laboratory Products Listings displayed on the VerticalNet Auction, unless
otherwise agreed upon by the Parties.
3.5 VerticalNet hereby grants Neoforma the right to frame all pages of
the VerticalNet Auction that contain Laboratory Products Listings with a frame
containing Neoforma Marks, which framed pages shall only be accessible from the
Neoforma Sites.
3.6 VerticalNet shall host and maintain the VerticalNet Auction.
VerticalNet owns and shall continue to own the domain name and the URL used in
connection with the VerticalNet Auction.
3.7 Neoforma shall add Links labeled "Laboratory" or "Laboratory
Equipment" (or as otherwise mutually agreed upon by the Parties) to a Site
containing a Neoforma frame surrounding the VerticalNet Auction from Neoforma
Plan, Neoforma Shop and Neoforma Auction, which Links shall be as prominent as
the other Links on such Sites.
3.8 Neoforma shall not enter into, and shall cause its Affiliates to not
enter into, any agreement with a third party for the on-line listing of
Laboratory Products on a VerticalNet Competitor or place any Link to a
VerticalNet Competitor on the Neoforma Sites.
3.9 Within four weeks after the Effective Date, the Parties will
collaborate to establish a close mutually-beneficial arrangement between
Neoforma GAR and VerticalNet.
4. CO-BRANDED CAREER CENTER
4.1 VerticalNet shall design, develop and implement a Co-Branded Career
Center and shall use commercially reasonable efforts to implement the Co-Branded
Career Center as soon as possible following the Effective Date, and in any
event, no later than February 1, 2000. The Co-Branded Career Center shall
contain employment listings from the "Career Center" portion of each VerticalNet
Medical Online Community. The overall "look and feel" of the Co-Branded Career
Center shall be mutually agreed upon by the Parties and shall be substantially
in the form of EXHIBIT E. VerticalNet shall host and maintain the Co-Branded
Career Center in accordance with the terms and conditions set forth in this
Agreement. Neoforma may maintain and/or add other career resource links to the
Neoforma Sites; provided, however, that Neoforma shall not place any Links on
any Neoforma Site to a Site that is primarily a career center and shall not
place a Neoforma Link on any Site that is primarily a career center.
4.2 The Co-Branded Career Center shall contain Links to the "Career
Center" portion of each VerticalNet Medical Online Community.
4.3 After the Co-Branded Career Center is implemented, VerticalNet shall
notify Neoforma in writing at least five days prior to making any material
change to the Co-Branded Career Center. If Neoforma does not notify VerticalNet
of its rejection of such change within five days, Neoforma shall be deemed to
have approved such change.
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4.4 VerticalNet shall register and own the domain name and the URL used
in connection with the Co-Branded Career Center, subject, however, to Neoforma's
agreement on the name to be used for the URL, which domain name and URL shall be
mutually agreed upon by the Parties.
4.5 From time to time during the Term, Neoforma shall provide Qualified
Leads to VerticalNet for job listings for inclusion, at VerticalNet's then
current listing rate, in the Co-Branded Career Center and, in VerticalNet's sole
discretion, on any other VerticalNet Site. VerticalNet shall be responsible for,
and shall have sole control of, all credit, billing and collection in connection
with the Qualified Leads. Neoforma shall have no authority to make collections
on behalf of VerticalNet.
4.6 Neoforma hereby grants VerticalNet an exclusive license to use,
modify, enhance, reproduce, display, perform and transmit the Neoforma Career
Content, subject to and in accordance with the terms, conditions and provisions
of this Agreement. VerticalNet shall not disclose, transfer or otherwise provide
the Neoforma Career Content to any third party, except as otherwise permitted
under this Agreement.
4.7 Neoforma shall place a Link on the Neoforma Resources Home Page
(unless otherwise mutually agreed upon by the Parties) labeled "Career Center"
(or a mutually agreeable substitute for such term) in a mutually agreeable
location and size that will directly transfer users to the Co-Branded Career
Center, which Links shall be as prominent as (a) the other Links on such Site
and (b) the "Career" Link on such Site on the Effective Date. Neoforma shall not
place any Link on a Neoforma Site to, or a Neoforma Link on the Site of, any
other provider or host of a service similar to the Co-Branded Career Center or
to any other career service websites.
4.8 VerticalNet hereby grant Neoforma the right to frame all pages of
the Co-Branded Career Center with a frame, which framed pages shall only be
accessible from the Neoforma Sites.
5. CO-BRANDED TRAINING AND EDUCATION SITE
5.1 VerticalNet shall design, develop and implement a Co-Branded
Training and Education Center and shall use commercially reasonable efforts to
implement the Co-Branded Training and Education Center as soon as possible
following the Effective Date. The Co-Branded Training and Education Center shall
contain training and education listings from the "Training and Education"
portion of each VerticalNet Medical Online Community. The overall "look and
feel" of the Co-Branded Training and Education Center shall be mutually agreed
upon by the Parties and shall be substantially in the form of EXHIBIT F.
VerticalNet shall host and maintain the Co-Branded Training and Education Center
in accordance with the terms and conditions set forth in this Agreement.
5.2 The Co-Branded Training and Education Center shall contain Links to
the "Training and Education" portion of each VerticalNet Medical Online
Community.
5.3 After the Co-Branded Training and Education Center is implemented,
VerticalNet shall notify Neoforma in writing at least five days prior to making
any material change to the Co-Branded Training and Education Center. If Neoforma
does not notify VerticalNet of its rejection of such change within five days,
Neoforma shall be deemed to have approved such change.
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5.4 VerticalNet shall register and own the domain name and the URL used
in connection with the Co-Branded Training and Education Center, subject,
however, to Neoforma's agreement on the name to be used for the URL, which
domain name and URL shall be mutually agreed upon by the Parties.
5.5 On the Effective Date, Neoforma shall provide a copy of all listings
for inclusion, at VerticalNet's reasonable business discretion and at
VerticalNet's then current listing rate, in the Co-Branded Training and
Education Center and, in VerticalNet's sole discretion, on any other VerticalNet
Site (the "Neoforma T&E Content") on an exclusive basis (even as to Neoforma).
Neoforma shall provide the Neoforma T&E Content to VerticalNet. VerticalNet
shall be responsible for, and shall have sole control of, all credit, billing
and collection in connection with the Neoforma T&E Content. Neoforma shall have
no authority to make collections on behalf of VerticalNet.
5.6 From time to time during the Term, Neoforma shall provide Qualified
Leads to VerticalNet for job listings for inclusion, at VerticalNet's then
current listing rate, in the Co-Branded Training and Education Center and, in
VerticalNet's sole discretion, on any other VerticalNet Site.
5.7 Neoforma hereby grants VerticalNet an exclusive license to use,
modify, enhance, reproduce, display, perform and transmit the Neoforma T&E
Content, subject to and in accordance with the terms, conditions and provisions
of this Agreement. VerticalNet shall not disclose, transfer or otherwise provide
the Neoforma T&E Content to any third party, except as otherwise permitted under
this Agreement.
5.8 Neoforma shall place a Link on the Neoforma Resources Home Page
(unless otherwise mutually agreed upon by the Parties) labeled "Training and
Education" (or mutually agreeable substitutes for such terms) in a mutually
agreeable location and size that will directly transfer users to the Co-Branded
Training and Education Center, which Links shall be as prominent as (a) the
other Links on such Site and (b) the "Training" Link on the Site on the
Effective Date. Neoforma shall not place any Link on a Neoforma Site to, or a
Neoforma Link on the Site of, any other provider or host of a service similar to
the Co-Branded Training and Education Center or to any other training or
education service websites.
6. VERTICALNET CONTENT
6.1 VerticalNet shall from time to time provide or make available to
Neoforma, for use in accordance with the provisions of this Agreement, the title
and an abstract of (a) all original content created from time to time by the
managing editor of the VerticalNet Medical Online Communities, and (b) the
content created from time to time by guest columnists for the VerticalNet
Medical Online Communities (the "VerticalNet Content"), to the extent such
columnists have approved the provision of such content by VerticalNet to
Neoforma.
6.2 VerticalNet hereby grants to Neoforma a non-exclusive,
non-transferable license to use, reproduce, display and transmit the VerticalNet
Content, solely in connection with the operation of the Neoforma Site, subject
to and in accordance with the terms, conditions and provisions of this
Agreement. Neoforma may reproduce, display and transmit any VerticalNet
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Content for up to three weeks on the Neoforma Site, and after the expiration of
such three week period Neoforma shall cease to reproduce, display and transmit
such VerticalNet Content and shall remove such VerticalNet Content from the
Neoforma Site.
6.3 On each page of the Neoforma Site that contains all or a portion of
the VerticalNet Content, Neoforma shall place a VerticalNet Link to the
VerticalNet Site that contains the full text of such VerticalNet Content in a
mutually agreeable location and size.
6.4 Neoforma shall not remove any titles or any trademark, copyright or
patent notices, or any proprietary or restricted rights notices that appear on
the VerticalNet Content. All such titles and notices must be reproduced on all
permitted copies of the VerticalNet Content.
7. ADVERTISING
7.1 ADVERTISEMENTS ON THE NEOFORMA SITE.
7.1.1 During the Term, VerticalNet shall have the non-exclusive
right (except as to Neoforma) to arrange for the sale of Advertising on Neoforma
Plan (and any other parts of the Neoforma Sites within which Neoforma elects to
include Advertising) to third parties. During the Term, the parties shall meet
from time to time to discuss the Advertising inventory available for sale. Any
Advertising inventory that Neoforma appoints VerticalNet to arrange to sell
shall not also be appointed to any third party to arrange for sale to third
parties.
7.1.2 VerticalNet will use commercially reasonable efforts to
sell advertisements on the Neoforma Sites. The advertising policies (including
rates and procedures) applicable to VerticalNet's sale of advertising for the
Neoforma Sites will be established by Neoforma (the "Neoforma Advertising
Policies"). Neoforma shall promptly notify VerticalNet of any changes to the
Neoforma Advertising Policies.
7.1.3 VerticalNet shall provide notice to Neoforma of each
advertiser that agrees to place an advertisement on a Neoforma Site on the terms
and conditions contained in the then current Neoforma Advertising Policies.
Neoforma shall then have three business days after receipt of such notice to (a)
accept or reject such advertiser, in its reasonable business discretion, and (b)
notify VerticalNet of its decision. If, at the end of such three-day period,
Neoforma has not responded to such notice, Neoforma shall be deemed to have
accepted such advertiser. Neoforma shall then work with the advertiser to
facilitate the placement of the advertisement and maintain such advertisement on
the agreed-upon page of a Neoforma Site. Neoforma shall have the right to
terminate its agreement with any such advertiser in its reasonable business
discretion. Neoforma shall be responsible for, and shall have sole control of,
all credit, billing and collection with the advertisements on the Neoforma
Sites. VerticalNet shall have no authority to make collections on behalf of
Neoforma.
7.1.4 During the Term, Neoforma shall not place any
advertisements on a Neoforma Site for any VerticalNet Competitor.
7.2 ADVERTISEMENTS ON THE CO-BRANDED SITES.
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7.2.1 During the Term, VerticalNet shall have the exclusive
right to arrange for the sale of all advertising on the Co-Branded Sites,
subject to reasonable approval of each such advertiser by Neoforma. Neoforma
shall have two days to consider each VerticalNet request for approval of the
sale of advertising on a Co-Branded Site. If, at then end of such two-day
period, Neoforma has neither approved nor denied a request, VerticalNet's
request shall be deemed approved.
7.2.2 VerticalNet will use reasonable efforts to sell
advertisements on the Co-Branded Sites subject to VerticalNet's then current
advertising policies (including rates and procedures).
8. CO-MARKETING ACTIVITIES
8.1 ADVERTISING CAMPAIGNS. VerticalNet and Neoforma shall use
commercially reasonable efforts to co-promote the VerticalNet Medical Online
Communities, the Co-Branded Sites, the VerticalNet Buyer's Guide, Neoforma Plan,
Neoforma Shop and Neoforma Auction in mutually agreeable advertising, collateral
marketing material and sales force activities. All co-promotion advertising
materials produced by or on behalf of either Party (the "Originating Party")
shall be subject to the written approval of the other Party (the "Receiving
Party"), which approval shall not to be unreasonably withheld, delayed or
conditioned. The Receiving Party shall notify the Originating Party of its
approval or disapproval of such advertising materials as soon as practicable,
but in any event within five business days after Receiving Party's receipt
thereof. Any failure of the Receiving Party to respond within such five business
day period shall be deemed disapproval of the advertising materials in question.
8.2 REGISTRATION. The parties shall use commercially reasonable efforts
to coordinate their registration systems to create a "pass-through" registration
system for users first accessing the other's Sites. If a user first accesses a
Neoforma Site from a VerticalNet Site, such user shall be considered a
VerticalNet user for the purposes of this Agreement, to the extent such user
identifies him/her/itself, or Neoforma can reasonably identify such user, as a
VerticalNet user. If a user first accesses a VerticalNet Site from a Neoforma
Site, such user shall be considered a Neoforma user for the purposes of this
Agreement, to the extent such user identifies him/her/itself, or VerticalNet can
reasonably identify such user, as a Neoforma user.
8.3 CROSS-PROMOTION. The Parties shall place Links to each other's Sites
in mutually agreeable locations and sizes on their respective Sites as soon as
practicable, and in no event more than 15 days after the Effective Date. The
Links shall remain on the Sites during the Term; provided, however, that such
Links may be removed or relocated if the Parties mutually agree thereto.
8.4 NEWSLETTERS.
8.4.1 NEOFORMA NEWSLETTERS. If Neoforma distributes a newsletter
to its users or customers, Neoforma shall promote the VerticalNet Auction, the
Co-Branded Career Center and the Co-Branded Training and Education Center in
each such newsletter, in a manner consistent with the manner in which other
third party promotions are set forth in such newsletters.
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8.4.2 VERTICALNET NEWSLETTERS. VerticalNet shall allow Neoforma
to place sponsorships at no additional charge for Neoforma Shop, Neoforma Plan
or Neoforma Auction in the VerticalNet newsletter distributed to its subscriber
base two times during each calendar month, in a manner consistent with the
manner in which other third party sponsorships are set forth in such
newsletters.
8.5 LINKS.
8.5.1 Throughout the first six months after the Effective Date,
VerticalNet shall place button Links to Neoforma Shop or Neoforma Auction on (a)
[*] of all available third-party advertising inventory on the home pages of the
VerticalNet Medical Online Communities. Thereafter, VerticalNet shall place
button Links to Neoforma Shop or Neoforma Auction on unsold third-party
advertising inventory (up to [*] of the total third party advertising inventory)
on the home pages of the VerticalNet Medical Online Communities as frequently as
VerticalNet places internal advertisements on such advertising inventory and (b)
the site located at xxx.xxxxxxxx.xxx.
8.5.2 Throughout the Term, VerticalNet shall place button Links
to Neoforma Shop or Neoforma Auction on (a) the VerticalNet Buyer's Guides (as
described in Section 2.7) and VerticalNet Auction, and (b) the "News Analysis,"
"Product Center" and "Discussion Forums" portions of the VerticalNet Medical
Online Communities.
9. INTELLECTUAL PROPERTY
9.1 Except as set forth in Section 2.10, nothing in this Agreement shall
be construed as preventing VerticalNet from implementing VerticalNet Links on
any other Site.
9.2 Except as set forth in Sections 3.8 and 5.8, nothing in this
Agreement shall be construed as preventing Neoforma from implementing Neoforma
Links on any other Site.
9.3 VerticalNet hereby grants to Neoforma a non-exclusive,
non-transferable, royalty-free, right and license to link to the VerticalNet
Sites through a VerticalNet Link. VerticalNet shall furnish Neoforma with a full
color representation of each VerticalNet Link at least two days prior to its
scheduled placement on a page of the Neoforma Site. If VerticalNet subsequently
modifies any VerticalNet Link or the URL associated with such VerticalNet Link,
it shall furnish a representation of same to Neoforma, which Neoforma shall
substitute for the prior version within two days after receipt thereof.
VerticalNet shall have final approval over all VerticalNet Links on the Neoforma
Site.
9.4 Neoforma hereby grants VerticalNet a non-exclusive,
non-transferable, royalty-free, right and license to link to the Neoforma Sites
through a Neoforma Link. Neoforma shall furnish VerticalNet with a full color
representation of each Neoforma Link at least two days prior to its scheduled
placement on the Co-Branded Sites or a VerticalNet Medical Online Community. If
Neoforma subsequently modifies any Neoforma Link or the URL associated with such
Neoforma Link, it shall furnish a representation of same to VerticalNet, which
VerticalNet shall substitute for the prior version within two days after receipt
thereof. Neoforma shall have final approval over all Neoforma Links on the
Co-Branded Sites or a VerticalNet Medical Online Community.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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9.5 Except for the express rights granted to Neoforma under this
Agreement, Neoforma acknowledges and agrees that the Intellectual Property of
VerticalNet is and shall remain the sole property of VerticalNet and nothing in
this Agreement shall confer in Neoforma any right of ownership or license rights
in VerticalNet's Intellectual Property. In addition, Neoforma shall not now or
in the future contest the validity of VerticalNet's Intellectual Property.
9.6 Except for the express rights granted to VerticalNet under this
Agreement, VerticalNet acknowledges and agrees that the Intellectual Property of
Neoforma is and shall remain the sole property of Neoforma and nothing in this
Agreement shall confer in VerticalNet any right of ownership or license rights
in Neoforma's Intellectual Property. In addition, VerticalNet shall not now or
in the future contest the validity of Neoforma's Intellectual Property.
9.7 Neoforma agrees to use the VerticalNet Marks in accordance with the
terms of this Agreement and with good trademark practices including, but not
limited to, protecting the value of the goodwill residing in such Intellectual
Property.
9.8 VerticalNet agrees to use the Neoforma Marks in accordance with the
terms of this Agreement and with good trademark practices including, but not
limited to, protecting the value of the goodwill residing in such Intellectual
Property.
9.9 Except as explicitly set forth herein, nothing in this Agreement
shall be construed as preventing either Party from developing other co-branded
versions of its materials, data, information and content.
10. COMMERCIAL TERMS
10.1 DEVELOPMENT FEE. On the Effective Date, Neoforma shall pay to
VerticalNet a one-time, non-refundable fee in the amount of [*] in consideration
of VerticalNet's design, development and implementation of the Co-Branded Sites
pursuant to Sections 4.1 and 5.1, respectively.
10.2 PROMOTIONAL FEES. In consideration of the performance by
VerticalNet of its obligation to promote the Neoforma Shop, Neoforma Plan and
Neoforma Auction under Section 8.2, Neoforma shall pay to VerticalNet a
promotional fee equal to [*], payable in eight equal quarterly and
non-refundable installments of [*], with the first installment payable on the
Effective Date, the second installment payable on the [*] month anniversary of
the Effective Date, the third installment payable on the [*] month anniversary
of the Effective Date, the fourth installment payable on the [*] month
anniversary of the Effective Date, the fifth installment payable on the [*]
month anniversary of the Effective Date, the sixth installment payable on the
[*] month anniversary of the Effective Date, the seventh installment payable on
the [*] month anniversary of the Effective Date and the eighth and final
installment payable on the [*] month anniversary of the Effective Date.
10.3 MEDICAL PRODUCTS LISTINGS.
10.3.1 During each 12 month period during the Initial Term that
commences on the Effective Date or an anniversary of the Effective Date (each, a
"Contract Year"),
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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commissions shall accrue in an amount equal to [*] of any Medical Products Net
Revenues during such Contract Year resulting from (a) any VerticalNet Medical
Products Listing or (b) any Neoforma Medical Products Listing for which
VerticalNet was the Transaction Origination Party. From and after the point when
such accrued commissions equal [*] in any Contract Year (such [*] of accrued
commissions shall not be payable by Neoforma), Neoforma shall pay to VerticalNet
commissions equal to [*] of any Medical Products Net Revenues during such
Contract Year resulting from (a) any VerticalNet Medical Products Listing or (b)
any Neoforma Medical Products Listing for which VerticalNet was the Transaction
Origination Party.
10.3.2 After the Initial Term, Neoforma shall pay to VerticalNet
commissions equal to [*] of any Medical Products Net Revenues during such
Contract Year resulting from (a) any VerticalNet Medical Products Listing or (b)
any Neoforma Medical Products Listing for which VerticalNet was the Transaction
Origination Party.
10.4 LABORATORY PRODUCTS LISTINGS. During the Term, VerticalNet shall
pay to Neoforma commissions equal to [*] of any Laboratory Products Net Revenues
during such Contract Year resulting from (a) any Neoforma Laboratory Products
Listing or (b) any VerticalNet Laboratory Products Listing for which Neoforma
was the Transaction Origination Party.
10.5 CO-BRANDED SITES.
10.5.1 CO-BRANDED CAREER CENTER. VerticalNet will pay Neoforma
[*] of the Career Center Gross Margin. "Career Center Gross Margin" shall mean
the listing fees related to the Neoforma Career Content and e-commerce revenue
derived during the Term from users of the Co-Branded Career Center (less
Deductibles).
10.5.2 CO-BRANDED TRAINING AND EDUCATION CENTER. VerticalNet
will pay Neoforma [*] of the Training and Education Gross Margin. "Training and
Education Gross Margin" shall mean the listing fees related to the Neoforma T&E
Content and e-commerce revenue derived during the Term from users of the
Co-Branded Training and Education Center (less Deductibles).
10.6 ADVERTISING REVENUE.
10.6.1 Except as set forth in Section 10.6.4, during the Term,
VerticalNet shall not share any revenue derived from advertisements hosted on
any VerticalNet Site with Neoforma; provided, however, that if Neoforma brings
VerticalNet a Qualified Ad Lead (as defined below) for a new customer that turns
into a sale of advertising on a VerticalNet Medical Online Community,
VerticalNet shall pay to Neoforma a commission of [*] of the Net Advertising
Revenue resulting from such sale of advertising. As used in this Section 10.6.1,
a "Qualified Ad Lead" shall mean a customer referred to VerticalNet by Neoforma
that is not, at the time of referral, a customer of VerticalNet, and which
customer has agreed to place an advertisement on a VerticalNet Medical Online
Community on the terms and conditions contained in VerticalNet's then current
advertising policies.
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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10.6.2 VerticalNet shall have the first right to sell renewals
of Advertising originally sold by VerticalNet on the Neoforma Sites until 30
days after the then current term of such Advertising expires.
10.6.3 Neoforma shall pay to VerticalNet a commission of [*] of
the Net Advertising Revenue received during the Term for the initial placement
and renewals of Advertising sold by VerticalNet on the Neoforma Sites. In
addition, if Neoforma sells Advertising to a third party on the Neoforma Sites
independently from VerticalNet and if Neoforma previously rejected Advertising
by such party when proposed by VerticalNet pursuant to Section 7.1.3, or
terminated without cause a prior agreement with such third party that had
resulted from such a proposal by VerticalNet, then Neoforma shall pay [*] of the
Net Advertising Revenue resulting from such Advertising during the Term to
VerticalNet. Neoforma shall provide prompt notice to VerticalNet of each
advertiser that has agreed with Neoforma to place an advertisement on a Neoforma
Site.
10.6.4 VerticalNet shall pay to Neoforma a commission of [*] of
the Net Advertising Revenue received by VerticalNet during the Term for
Advertising on the Co-Branded Sites.
10.7 PAYMENT TERMS. Except as otherwise provided in this Agreement, each
Party shall provide the other Party with all amounts due under this Agreement
for the prior calendar quarter within 30 days after the end of each calendar
quarter during the Term. Each payment shall be accompanied by a statement
detailing the amount of applicable gross revenue received, the calculation of
the amount due to the other Party and the amount of the payment accompanying
such statement. All payments due to either Party hereunder shall be made in
immediately available U.S. funds, without set-off or counterclaim, less any
taxes, duties, charges, withholdings, restrictions or conditions of any nature
imposed or levied by any governmental taxing or other authority.
10.8 TAXES. All payments required under this Agreement are exclusive of
federal, state, local and foreign taxes, duties, tariffs, levies and similar
assessments. When applicable, such taxes shall appear as separate items on a
Party's invoice or statement of the other Party. Payment of such taxes or
charges shall be the responsibility of the Party whose obligation it is under
this Agreement to make the payment in respect of which such taxes are assessed,
excluding any taxes based upon the other Party's net income. In lieu thereof, a
Party shall provide the other Party with a tax or levy exemption certificate
acceptable to the taxing or levying authority.
10.9 AUDITS. During the 18-month period following the payment by one
Party of any amount due under this Agreement to the other Party, the Party
receiving payment (the "Auditing Party") shall have the right, at its own
expense, to have an independent "Big Five" accounting firm (the "Auditor") audit
the financial records of the other Party (the "Audited Party") relating to such
payment to verify the accuracy of the Audited Party's financial records in order
to verify the amount of the payments owed and/or paid. The Auditing Party may
cause the Auditor to perform such an audit not more than once in any 12-month
period, unless a prior audit within the past two years revealed that the amount
owed by the Audited Party to the Auditing Party was underpaid in excess of 8% of
the amount owed, in which case an audit may be performed no more frequently than
twice in any 12-month period. If the amount owed by the Audited Party to
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
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the Auditing Party was underpaid, the Audited Party shall pay the additional
amount owed and all accrued interest thereon to the Auditing Party within 15
days of notice of such underpayment to the Audited Party. If the amount owed by
the Audited Party to the Auditing Party was underpaid in excess of 10% of the
amount owed, the fees of such audit shall also be paid to the Auditing Party
within 15 days of notice of such to the Audited Party. If the amount owed by the
Audited Party to the Auditing Party was overpaid, the Auditing Party shall
return the excess amount paid to the Auditing Party within 15 days of notice of
such underpayment to the Auditing Party. The Auditing Party shall give
reasonable advance written notice to the Audited Party, and each audit shall be
conducted during normal business hours and in a manner that does not cause
unreasonable disruption to the conduct of business by the Audited Party.
10.10 INTEREST. All payments not paid by the date such payments are due
shall bear interest from the due date to the date payments are actually paid at
the rate of the lower of (a) 1% per month or (b) the maximum rate permitted by
law.
11. TERM AND TERMINATION
11.1 AUTOMATIC RENEWAL. This Agreement will automatically renew at the
end of the Initial Term or a subsequent renewal term on a year to year basis
(each, a "Renewal Term"), unless either Party notifies the other at least 30
days prior to the end of the Initial Term or then current Renewal Term, as
applicable, of its intention not to renew this Agreement (a "Termination
Notice").
11.2 TERMINATION FOR CAUSE. Either Party may terminate this Agreement
immediately upon written notice to the other Party in the event any material
breach of a material term of this Agreement by such other Party that remains
uncured 30 days in the case of a breach of a payment obligation, or 45 days for
all other breaches, after notice of such breach was received by such other
Party; provided, however that if such breach is not reasonably capable of cure
within the applicable cure period, the breaching Party shall have an additional
180 days to cure such breach so long as the cure is commenced within the
applicable cure period and thereafter is diligently prosecuted to completion as
soon as possible.
11.3 UPON TERMINATION. Upon termination of this Agreement, (a) each
Party's liability for any charges, payments or expenses due to the other Party
that accrued prior to the date of termination shall not be extinguished by
termination, and such amounts (if not otherwise due on an earlier date) shall be
immediately due and payable on the termination date; (b) VerticalNet shall be
responsible for all charges, payments or expenses incurred by it in connection
with the removal of the Neoforma Links, Neoforma Content and Neoforma Product
Listings from the Co-Branded Sites and all other VerticalNet Sites; (c) Neoforma
shall be responsible for all charges, payments or expenses incurred by it in
connection with the removal of the VerticalNet Links, VerticalNet Content and
VerticalNet Product Listings from the Neoforma Sites; (d) all rights of Neoforma
to use, display, reproduce or publish the VerticalNet Marks shall immediately
cease, (e) all rights of VerticalNet to use, display, reproduce or publish the
Neoforma Marks shall immediately cease, (f) all rights of Neoforma to use,
display, reproduce and transmit the VerticalNet Content and VerticalNet Product
Listings shall immediately cease and Neoforma shall, at VerticalNet's cost,
return one copy of the VerticalNet Content and VerticalNet Product Listings for
Medical Products to VerticalNet in electronic format and destroy all other
copies of
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such content, (g) all rights of VerticalNet to use, create derivative works of,
reproduce, display, perform and transmit the Neoforma Content and Neoforma
Product Listings shall immediately cease and VerticalNet shall, at Neoforma's
cost, return one copy of the Neoforma Content and the Neoforma Product Listings
for Laboratory Products to Neoforma in electronic format and destroy all other
copies of such content, (h) all rights of VerticalNet to arrange for the sale of
advertising on the Neoforma Sites shall immediately cease, (i) VerticalNet shall
retain ownership of the domain names and URLs at which the VerticalNet Sites
(including, but not limited to, the Co-Branded Sites) are located, and (j)
Neoforma shall retain ownership of the domain names and URLs at which the
Neoforma Sites (including, but not limited to Neoforma Plan and Neoforma Shop)
are located. If a Termination Notice is sent, the parties shall promptly meet to
discuss a phase-out of the Co-Branded Sites and all Links and transfers of
Product Listings set forth herein.
12. DISPUTE RESOLUTION
12.1 NEGOTIATION AND ESCALATION. If any controversy or claim arises
relating to this Agreement, the Parties will attempt in good faith to negotiate
a solution to their differences, including progressively escalating any
controversy or claim through senior levels of management. If negotiation does
not result in a resolution within 30 days of when one Party first notifies the
other of the controversy or claim, either Party may resort to arbitration under
Section 12.2.
12.2 ARBITRATION. Any controversy or claim between the Parties
concerning any breach or alleged breach of this Agreement or performance or
nonperformance of any obligation under this Agreement which cannot be resolved
by negotiation will be resolved by binding arbitration under this Section 12.2
and the then-current Commercial Rules and supervision of the American
Arbitration Association (the "AAA"). If any part of this Section 12.2 is held to
be unenforceable, it will be severed and will not affect either the duty to
arbitrate or any other part of this Section 12.2. The arbitration will be held
in Philadelphia, Pennsylvania, before a sole disinterested arbitrator who is
knowledgeable in business information and the Internet and experienced in
handling commercial disputes. The arbitrator shall be appointed jointly by the
Parties hereto within 30 days following the date on which the arbitration is
instituted. If the Parties are unable to agree upon the arbitrator within such
30-day period, the AAA shall be instructed to select such arbitrator within 15
days thereafter. The arbitrator's award will be final and binding and may be
entered in any court having jurisdiction. The arbitrator will not have the power
to award punitive or exemplary damages, or any damages excluded by, or in excess
of, any damage limitations expressed in this Agreement. Issues of arbitrability
will be determined in accordance solely with the federal substantive and
procedural laws relating to arbitration; in all other respects, the arbitrator
will be obligated to apply and follow the substantive law of the Commonwealth of
Pennsylvania.
12.3 EQUITABLE RELIEF. Notwithstanding anything to the contrary in this
Agreement, in the event of an alleged violation of Article 13 of this Agreement
by either Party, the Party alleging such a violation may seek temporary
injunctive or other appropriate equitable relief from any court of competent
jurisdiction pending appointment of an arbitrator. The Party requesting such
relief shall simultaneously file a demand for arbitration of the dispute, and
shall
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request that the American Arbitration Association proceed under its rules for an
expedited hearing.
12.4 COSTS. Unless the arbitrator, if any, determines otherwise, each
Party will bear its own attorneys' fees and other costs associated with the
negotiation and arbitration provided for by this Article 12, except that costs
and expenses of the arbitrators shall be shared equally. If court proceedings to
stay litigation or compel arbitration are necessary, the Party who
unsuccessfully opposes such proceedings will pay all associated costs, expenses
and attorneys' fees that are reasonably incurred by the other Party.
12.5 TWO YEAR LIMITATION. Except for claims under Sections 15.4 and 15.5
hereof, neither Party may bring a claim or action regardless of form, arising
out of or related to this Agreement, including any claim of fraud or
misrepresentation, more than two years after the cause of action accrues or
becomes known, whichever is later.
12.6 CONFIDENTIALITY. In order to facilitate the resolution of
controversies or claims between the Parties with respect to each Party hereto,
such controversies or claims, including details regarding negotiations,
arbitration and settlement terms, shall be treated as Confidential Information
of the other Party hereto in accordance with Article 13.
12.7 REMEDIAL MEASURES. In the event of (a) any material remediable
breach of this Agreement by the other Party which remains uncured 30 days after
notice of such breach (other than a breach of a payment obligation) was received
by the other Party or (b) any material breach which cannot be cured, the
non-breaching Party may take reasonable remediable measures at the cost of the
breaching Party without prejudice and in addition to any other rights arising
from such breach. In addition, the non-breaching Party shall take reasonable
steps to mitigate damages arising out of such breach.
13. CONFIDENTIALITY
13.1 CONFIDENTIALITY OBLIGATIONS. Except as permitted elsewhere under
this Agreement, each Party agrees to take Reasonable Steps (as defined below)
(a) to receive and maintain the Confidential Information of the other Party in
confidence, (b) not to disclose such Confidential Information to any third
parties and (c) to promptly notify the disclosing Party upon learning of any
law, rule, regulation or court order that purports to compel disclosure of any
Confidential Information of the disclosing Party and to reasonably cooperate
with the disclosing Party in the exercise of the disclosing Party's right to
protect the confidentiality of such Confidential Information. Neither Party
hereto shall use all or any part of the Confidential Information of the other
Party for any purpose other than to perform its obligations under this
Agreement. The Parties will take Reasonable Steps (as defined below) to ensure
that their employees, representatives and agents comply with this provision. As
used herein, "Reasonable Steps" means at least the same degree of care that the
receiving Party uses to protect its own Confidential Information, and, in no
event, no less than reasonable care.
13.2 EXCLUSIONS. Nothing contained herein shall prevent a Party from
disclosing Confidential Information pursuant to any applicable law, rule,
regulation or court order; provided, however, that such Party complies with the
notice provisions of Section 13.1(c) to the
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extent permissible under applicable laws, rules, regulations or court orders.
Such disclosure shall not alter the status of such information hereunder for all
other purposes as Confidential Information.
13.3 TERMINATION. Upon termination of this Agreement, all Confidential
Information shall be returned to the disclosing Party or destroyed unless
otherwise specified or permitted elsewhere under this Agreement. The
confidentiality obligations contained in this Article 13 shall survive
termination of this Agreement for a period of three years.
13.4 INJUNCTION. Each Party acknowledges and agrees that the provisions
of this Article 13 are reasonable and necessary to protect the other Party's
interests in its Confidential Information, that any breach of the provisions of
this Article 13 may result in irreparable harm to such other Party, and that the
remedy at law for such breach may be inadequate. Accordingly, in the event of
any breach or threatened breach of the provisions of this Article 13 by a Party
hereto, the other Party, in addition to any other relief available to it at law,
in equity or otherwise, shall be entitled to seek temporary and permanent
injunctive relief restraining the breaching Party from engaging in and/or
continuing any conduct that would constitute a breach of this Article 13,
without the necessity of proving actual damages or posting a bond or other
security.
13.5 PUBLICITY. Except as may be required by applicable laws, rules or
regulations (including those arising under any securities laws), neither Party
will originate any publicity, news release or other public announcement, written
or oral, whether to the public press or otherwise, concerning the relationship
between the Parties or the transactions described in this Agreement without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld or delayed. In the event disclosure is required by
applicable law, rules or regulations, then the Party required to so disclose
such information shall, to the extent possible, provide to the other Party for
its approval (such approval not to be unreasonably withheld) a written copy of
such public announcement at least five business days prior to disclosure.
Notwithstanding the foregoing, either Party shall have the right to make a press
release with respect to its entering into this Agreement; provided that such
Party provides to the other Party a copy of the proposed press release no less
than five business days prior to its proposed release and that the contents of
such press release shall be subject to the other Party's consent, which consent
shall not be unreasonably delayed or withheld.
14. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents, covenants and
warrants to the other Party that:
14.1 It has the corporate power to enter into this Agreement and to
grant the rights and licenses granted herein and otherwise perform this
Agreement;
14.2 It is not a Party to any agreement or understanding and knows of no
law or regulation that would prohibit it from entering into and performing this
Agreement or that would conflict with this Agreement; and
14.3 When executed and delivered by it, this Agreement will constitute a
legal, valid and binding obligation of it, enforceable against it in accordance
with this Agreement's terms.
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15. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION.
15.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, VERTICALNET HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO ANY AND ALL VERTICALNET DELIVERABLES, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
15.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEOFORMA HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR
STATUTORY, WITH RESPECT TO ANY AND ALL NEOFORMA DELIVERABLES, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT.
15.3 LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A BREACH BY
EITHER PARTY OF ARTICLE 13, THE INDEMNIFICATION OBLIGATIONS OF NEOFORMA UNDER
SECTIONS 15.4(c) AND (d) AND THE INDEMNIFICATION OBLIGATIONS OF VERTICALNET
UNDER SECTION 15.5(c) AND (d), NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH A BREACH BY EITHER PARTY OF ARTICLE
13, THE INDEMNIFICATION OBLIGATIONS OF NEOFORMA UNDER SECTION 15.4(c) AND (d)
AND THE INDEMNIFICATION OBLIGATIONS OF VERTICALNET UNDER SECTION 15.5(c) AND
(d), EACH PARTY'S LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED $1,000,000.
15.4 INDEMNIFICATION BY NEOFORMA. Neoforma shall indemnify and hold
harmless VerticalNet and its officers, directors, employees and agents from and
against any and all losses, claims, damages, liabilities, obligations,
penalties, judgments, awards, costs, expenses and disbursements, including
without limitation, the costs, expenses and disbursements, as and when incurred,
of investigating, preparing or defending any action, suit, proceeding or
investigation asserted by a third party, caused by, relating to, based upon,
arising out of or in connection with (a) any breach by Neoforma of the
representations, warranties or agreements made by it under this Agreement, (b)
negligence, recklessness or intentional misconduct on the part of Neoforma or
its Affiliates or its officers, directors, employees, agents or consultants, (c)
any claim that the Neoforma Content, Neoforma Product Listings, Neoforma Sites
or a Neoforma Xxxx violates, infringes or misappropriates any Intellectual
Property Rights or any other right of any third party, or (d) the use of a
VerticalNet Xxxx or a VerticalNet Deliverable outside of the license rights
granted herein.
15.5 INDEMNIFICATION BY VERTICALNET. VerticalNet shall indemnify and
hold harmless Neoforma and its officers, directors, employees and agents from
and against any and all losses,
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claims, damages, liabilities, obligations, penalties, judgments, awards, costs,
expenses and disbursements, including without limitation, the costs, expenses
and disbursements, as and when incurred, of investigating, preparing or
defending any action, suit, proceeding or investigation asserted by a third
party, caused by, relating to, based upon, arising out of or in connection with
(a) any breach by VerticalNet of the representations, warranties or agreements
made by it under this Agreement, (b) negligence, recklessness or intentional
misconduct on the part of VerticalNet or its officers, directors, employees,
agents or consultants, (c) any claim that the VerticalNet Content, VerticalNet
Product Listings, VerticalNet Sites or a VerticalNet Xxxx violates, infringes or
misappropriates any Intellectual Property Rights or any other right of any third
party, or (d) the use of a Neoforma Xxxx or a Neoforma Deliverable outside of
the license rights granted herein.
15.6 INDEMNITEE OBLIGATIONS. Each person seeking to be reimbursed,
indemnified, defended and/or held harmless under Sections 15.4 or 15.5 (each, an
"Indemnitee") shall (a) provide the Party obliged to indemnify such Indemnitee
with prompt written notice of any claim, suit, demand or other action for which
such Indemnitee seeks to be reimbursed, indemnified, defended or held harmless
(each, a "Claim"), which notice shall include a reasonable identification of the
alleged facts giving rise to such Claim; (b) grant such Party reasonable
authority and control over the defense and settlement of any such Claim; and (c)
reasonably cooperate with such Party and its agents in defense of any such
Claim. Each Indemnitee shall have the right to participate in the defense of any
Claim for which such Indemnitee seeks to be reimbursed, indemnified, defended or
held harmless, by using attorneys of such Indemnitee's choice, at such
Indemnitee's expense. Any settlement of a Claim for which any Indemnitee seeks
to be reimbursed, indemnified, defended or held harmless under this Article
shall be subject to the prior written approval of such Indemnitee, such approval
not to be unreasonably withheld, conditioned or delayed.
15.7 ESSENTIAL PART OF BARGAIN. The Parties acknowledge that the
disclaimers and limitations set forth in this Article 15 are an essential
element of this Agreement between the Parties and that the Parties would not
have entered into this Agreement without such disclaimers and limitations.
16. MISCELLANEOUS
16.1 GOVERNING LAW. This Agreement shall be governed by and interpreted
under the laws of the Commonwealth of Pennsylvania without regard to its
conflicts of law provisions.
16.2 NO ASSIGNMENT. Except as otherwise set forth herein, neither Party
shall transfer, assign or cede any rights or delegate any obligations hereunder,
in whole or in part, whether voluntarily or by operation of law, without the
prior written consent of the other Party, which consent may be withheld at the
other Party's reasonable business discretion; provided, however, that either
Party may transfer this Agreement without prior written consent of the other
Party to an Affiliate or in connection with a merger or sale of all or
substantially all of the stock or assets of such Party.
16.3 GOOD FAITH. The Parties undertake to display to each other the
utmost good faith, consistent with their respective rights and obligations set
forth in this Agreement.
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16.4 INDEPENDENT CONTRACTORS. In connection with this Agreement, each
Party is an independent contractor. This Agreement does not, and shall not be
construed to, create an employer-employee, agency, joint venture or partnership
relationship between the Parties. Neither Party shall have any authority to act
for or to bind the other Party in any way, to alter any of the terms or
conditions of any of the other Party's standard forms of invoices, sales
agreements, warranties or otherwise, or to warrant or to execute agreements on
behalf of the other or to represent that it is in any way responsible for the
acts, debts, liabilities or omissions of the other Party.
16.5 NOTICES. All notices, reports, payments and other communications
required or permitted to be given under this Agreement (each, a "Notice") shall
be in writing and shall be given either by personal delivery against a signed
receipt, by express delivery using a nationally recognized overnight courier, or
by facsimile. All Notices shall be properly addressed as follows, or to such
other addresses as may be specified in a Notice given hereunder:
If to VerticalNet: with a copy to:
Attn: General Counsel Attn: Xxxxx X. Xxxxxxx
VerticalNet, Inc. VerticalNet, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000 000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxxxx 00000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
If to Neoforma: with a copy to:
Attn: Chief Financial Officer Attn: Xxxxx X. Xxxx, Esq.
Neoforma, Inc. Fenwick & West LLP
0000-0 Xxxxx Xxxxxxxxx Xxx Xxxx Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000 Xxxx Xxxx, XX 00000
Fax No.: 000-000-0000 Fax No.: 000-000-0000
A Notice shall be deemed to be effective upon personal delivery or, if sent via
overnight delivery, upon receipt thereof. A Notice sent via facsimile is deemed
effective on the same day (or if such day is not a business day, then on the
next succeeding business day) if such facsimile is sent before 5:00 p.m.
Philadelphia time and on the next day (or if such day is not a business day,
then on the next succeeding business day) if such Notice is sent after 5:00 p.m.
Philadelphia time.
16.6 AMENDMENT OR MODIFICATION. No subsequent amendment, modification or
waiver of any of the provisions of this Agreement shall be effective unless in
writing and signed by the Parties.
16.7 ENTIRE AGREEMENT. This Agreement sets out the entire agreement
between the Parties with respect to the subject matter of this Agreement and
supersedes all prior agreements, proposals, arrangements and communications,
whether oral or written, with respect to the subject matter hereof.
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16.8 SEVERABILITY. If any provision of this Agreement is held by a
tribunal of competent jurisdiction to be illegal, invalid, or otherwise
unenforceable in any jurisdiction, then to the fullest extent permitted by law
(a) the same shall not effect the other terms or provisions of this Agreement,
(b) such term or provision shall be deemed modified to the extent necessary in
the tribunal's opinion to render such term or provision enforceable, and the
rights and obligations of the Parties shall be construed and enforced
accordingly, preserving to the fullest extent the intent and agreements of the
Parties set forth herein and (c) such finding of invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
such term or provision in any other jurisdiction.
16.9 NO WAIVER. Failure to enforce any term of this Agreement is not a
waiver of future enforcement of that or any other term. No term or provision of
this Agreement will be deemed waived and no breach excused unless such waiver or
excuse is in writing and signed by the Party against whom enforcement of such
waiver or excuse is sought.
16.10 SURVIVAL. Sections 10.7-10.10, 11.3 and 12-16; any payment
obligations of the Parties hereunder accruing prior to the date of termination;
and any other provision herein expressly surviving termination or necessary to
interpret the rights and obligations of the Parties in connection with the
termination of the term of this Agreement will survive the termination or
expiration of this Agreement.
16.11 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is
intended to confer benefits, rights or remedies unto any person or entity other
than the Parties and their permitted successors and assigns.
16.12 WAIVER OF JURY TRIAL. Each Party hereby irrevocably waives all
rights a Party may have to a trial by jury in any legal action or proceeding
arising out of or in connection with this Agreement or the transactions
contemplated hereby.
16.13 TITLES. The headings appearing at the beginning of the Sections
contained in this Agreement have been inserted for identification and reference
purposes only and shall not be used to determine the construction or
interpretation of this Agreement. The nomenclature of the defined terms in this
Agreement shall only be used for the construction of this Agreement, and are not
to be used for any other purpose, including, but not limited to, interpretation
for accounting purposes.
16.14 FORCE MAJEURE. Neither Party shall be held to be in breach of this
Agreement by reason of a force majeure event, including, but not limited to, act
of God, delay in transportation, fire, flood, earthquake, storm, war, act of a
public enemy, civil commotion or any law, rule, regulation, order or other
action by any public authority or any other matter reasonably beyond a Party's
control. To the extent failure to perform is caused by such a force majeure
event, such Party shall be excused from performance hereunder so long as such
event continues to prevent such performance, and provided the non-performing
Party takes all reasonable steps to resume full performance.
16.15 COMPLIANCE WITH LAWS. Each Party shall comply with all prevailing
laws, rules and regulations and obtain all necessary approvals, consents and
permits required by the applicable
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agencies of the government of the jurisdictions that apply to its activities or
obligations under this Agreement.
16.16 EXECUTION IN COUNTERPARTS, FACSIMILES. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument. This
Agreement shall become binding when any one or more counterparts hereof,
individually or taken together, bear the signatures of both Parties hereto. For
the purposes hereof, a facsimile copy of this Agreement, including the signature
pages hereto, shall be deemed an original.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the Parties to the Agreement by their duly authorized
representatives have executed this Agreement as of the date first written above.
VERTICALNET, INC. XXXXXXXX.XXX, INC.
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXXXXX XXXXXXXXXX
-------------------------------- ---------------------------------
Xxxxx X. Xxxxxxx
Vice President, Business Development
and International Title: CFO
------------------------------
27
EXHIBIT A
CATEGORIES OF LABORATORY PRODUCTS
PRODUCT GROUPING PRODUCT CLASSIFICATION POINTS TO
---------------- ---------------------- ---------
Analytical Instruments Analytical Inst-other Analytical Inst-other
Analytical Instruments Atomic Absorption Atomic Absorption
Analytical Instruments Balances Balances
Analytical Instruments Chemistry Analyzers Chemistry Analyzers
Analytical Instruments Chrom-Data Chrom-Data
Analytical Instruments Chrom-GC Chrom-GC
Analytical Instruments Chrom-HPLC Chrom-HPLC
Analytical Instruments Chrom-Other Chrom-Other
Analytical Instruments Chrom-TLC Chrom-TLC
Analytical Instruments Colorimeter Colorimeter
Analytical Instruments Computer Equipment Computer Equipment
Analytical Instruments Electron Microscope Electron Microscope
Analytical Instruments Electronics - Lab Electronics - Lab
Analytical Instruments Elemental Analysis Elemental Analysis
Analytical Instruments Infrared IR/UVVIS/XRAY
Analytical Instruments Mass Spectrometer Mass Spectrometer
Analytical Instruments Particle Size Particle Size
Analytical Instruments pH / ISE pH / ISE
Analytical Instruments Physical Property Test Physical Property Test
Analytical Instruments Polarimeter Polarimeter
Analytical Instruments Spectrophotometer Spectrophotometer
Analytical Instruments Temperature Equip Temperature Equip
Analytical Instruments Titrators Titrators
Analytical Instruments Universal Tester Universal Tester
Analytical Instruments UV / VIS IR/UVVIS/XRAY
Analytical Instruments Viscometer Viscometer
Analytical Instruments X-Ray IR/UVVIS/XRAY
Biotechnology Biotech-other Biotech-other
Biotechnology Electrophoresis Electrophoresis
Biotechnology Fermenters Fermenters
Biotechnology Microplates Microplates
Biotechnology Molecular Biology Molecular Biology
Biotechnology Scintillation Counters Scintillation Counters
Clinical Laboratory Clinical Lab - Other Clinical Lab - Other
Clinical Laboratory Blood / Gas Analyzers Blood / Gas Analyzers
Clinical Laboratory Blood Collection Blood Collection
Clinical Laboratory Clinical Chemistry Analyzer Clinical Chemistry Analyzer
Clinical Laboratory Hematology Hematology
Clinical Laboratory Medical Equipment Medical Equipment
Clinical Laboratory Microbiology Microbiology
28
Clinical Laboratory Other Body Fluid Analyzer Other Body Fluid Analyzer
Clinical Laboratory Slide Stainers Histology
Glassware Beakers Beakers
Glassware Bottles Bottles
Glassware Condensers Condensers
Glassware Flasks Flasks
Glassware Funnels Funnels
Glassware Glass-other Glass-other
Glassware Tubes Tubes
Glassware Vials Vials
Lab Equipment Animal Care Animal Care
Lab Equipment Antiques Antiques
Lab Equipment Autoclaves Autoclaves
Lab Equipment Baths, Water/Oil/Dry Baths, Water/Oil/Dry
Lab Equipment Books/Manuals Books/Manuals
Lab Equipment Centrifuge Centrifuge
Lab Equipment Chillers Chillers
Lab Equipment Cleaners Cleaners
Lab Equipment Critical Environments Critical Environments
Lab Equipment Digesters Digesters/Mixers
Lab Equipment Environmental Xxxxxxxx Environmental Xxxxxxxx
Lab Equipment Evaporators Evaporators
Lab Equipment Filtration Filtration
Lab Equipment Fraction Collectors Fraction Collectors
Lab Equipment Freeze Dry/Lyoph Freeze Dry/Lyoph
Lab Equipment Freezers / Refrigerators Freezers / Refrigerators
Lab Equipment Fume Hoods Fume Hoods
Lab Equipment Furnaces Furnaces
Lab Equipment Furniture - Lab Furniture - Lab
Lab Equipment Glove Boxes Glove Boxes
Lab Equipment Heating Apparatus Heating Apparatus
Lab Equipment Histology Histology
Lab Equipment Hotplates / Stirrers Hotplates / Stirrers
Lab Equipment Incubators Incubators
Lab Equipment Lab Equipment - Other Lab Equipment - Other
Lab Equipment Liquid Handling / Pipettors Liquid Handling / Pipettors
Lab Equipment Metallurgical Metallurgical
Lab Equipment Microtomes Histology
Lab Equipment Mixers Digesters/Mixers
Lab Equipment Mobile Lab Mobile Lab
Lab Equipment Motors Motors
Lab Equipment Optics Optics
Lab Equipment Ovens Ovens
Lab Equipment Petroleum Lab Petroleum Lab
Lab Equipment Pharmaceutical Pharmaceutical
Lab Equipment Photography Photography
29
Lab Equipment Process / Pilot Process / Pilot
Lab Equipment Pumps Pumps
Lab Equipment Radioactivity Radioactivity
Lab Equipment Recorders Recorders
Lab Equipment Regulators / Gauges Regulators / Gauges
Lab Equipment Robotics Robotics
Lab Equipment Safety Safety
Lab Equipment Semi-Conductor Semi-Conductor
Lab Equipment Shakers Shakers
Lab Equipment Stirrers / Hotplates Stirrers / Hotplates
Lab Equipment Vacuum Vacuum
Lab Equipment Valves / Fittings Valves / Fittings
Lab Equipment Water Purification Water Purification
LabSupplies Chemicals Chemicals
LabSupplies Plasticware Plasticware
LabSupplies Supplies Supplies
Microscopes Image Analysis Image Analysis
Microscopes Microscope Accessories Microscope Accessories
Microscopes Microscope Parts Microscope Parts
Microscopes Microscopes Microscopes
Test/Measurement Multimeter Multimeter
Test/Measurement Oscilloscopes Oscilloscopes
Test/Measurement Power Supply Power Supply
Test/Measurement Test/Meas-other Test/Meas-other
Test/Measurement Timers/Controllers Timers/Controllers
Test/Measurement Volt/Amp/Ohm Meters Volt/Amp/Ohm Meters
30
EXHIBIT B
31
[GRAPHIC OF WEB PAGE -- Features]
32
EXHIBIT C
33
[GRAPHIC OF WEB PAGE -- Vertical Side Pages]
34
[GRAPHIC OF WEB PAGE -- Specialty Shop]
35
EXHIBIT D
LABORATORY PRODUCT LISTING TEMPLATE PRODUCT LISTING TEMPLATE
A Microsoft Excel Spreadsheet containing the following columns:
----------- ----------- -------------- ---------- ---------------------- ----------- -----------
NAME CATEGORY MFG/BRAND MODEL # ORIGINAL ITEM PRICE HEIGHT WEIGHT
----------- ----------- -------------- ---------- ---------------------- ----------- -----------
NAME CATG FLDA FLDB FLDC FLDD FLDE
----------- ----------- -------------- ---------- ---------------------- ----------- -----------
------------- ----------- -------------- ---------------- ------------------- ------------------
CAPACITY QUANTITY STARTING BID RESERVE PRICE BID INCREMENTS(1) START DATE/TIME(2)
------------- ----------- -------------- ---------------- ------------------- ------------------
FLDG QNTY MINB RSRV INCR STRT
------------- ----------- -------------- ---------------- ------------------- ------------------
(1) default is [*]
(2) default is today
--------------- -------- -------------- -------- ----------- ---------------- ------------------
DURATION(3) ITEM # APPROX. AGE SKU LOCATION SALESPERSON DESCRIPTION
--------------- -------- -------------- -------- ----------- ---------------- ------------------
XXXX FLD1 FLD2 FLDF FLDH FLDI DESC
--------------- -------- -------------- -------- ----------- ---------------- ------------------
(3) default is 7 days
--------------- --------------------- -------- ----------- ------------------ ------------------
SELLER ID# IMAGE LOCATION
--------------- --------------------- -------- ----------- ------------------ ------------------
SELL IMAG
--------------- --------------------- -------- ----------- ------------------ ------------------
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
36
This page describes each of the fields used in the Excel spreadsheet for bulk
uploads. Please put details in the spreadsheet named Bulk Upload Spreadsheet. It
is very important that you do not change the field names or their order on the
spreadsheet.
-----------------------------------------------------------------------------------------------
NAME* The title by which you want the item called. i.e. Sartorius Microbalance.
This field is 60 characters long but more details will fit in the
description section. The name needs to be descriptive and distinct. There
cannot be two items with the same name. Add a delineating feature such as
model number or size to the name.
-----------------------------------------------------------------------------------------------
CATEGORY* This field requires a number not word. See the enclosed list. If you do not
find a category that fits your product, please contact us. We can add
categories.
-----------------------------------------------------------------------------------------------
MFG/BRAND Manufacturer or brand name
-----------------------------------------------------------------------------------------------
MODEL # Model number
-----------------------------------------------------------------------------------------------
ORIGINAL ITEM If known, this can be an incentive to buyers who then see your lower price.
PRICE
-----------------------------------------------------------------------------------------------
HEIGHT Include feet or inches.
-----------------------------------------------------------------------------------------------
WEIGHT Include pounds or ounces.
-----------------------------------------------------------------------------------------------
CAPACITY Specific information about the equipment i.e. "x" gallons/hr, "y"
sheets/minute, etc.
-----------------------------------------------------------------------------------------------
QUANTITY* This field requires only a number not each, case, etc.
-----------------------------------------------------------------------------------------------
STARTING BID* This is the amount at which the bidding will start. It
should be lower than your reserve price, if you set one.
Please use whole dollars.
-----------------------------------------------------------------------------------------------
RESERVE PRICE This is the amount you wish to receive for your product. If you set a
reserve price, your item cannot be sold for less than the reserve. Please
use whole dollars.
-----------------------------------------------------------------------------------------------
BID INCREMENTS* $5 is the default, but feel free to change this to
reflect your product's price using whole dollars.
-----------------------------------------------------------------------------------------------
START DATE/TIME* This field must be filled out like the following
example: 04/08/99 15:00 (MM/DD/YY 24:mm) A start time must be
included.
-----------------------------------------------------------------------------------------------
DURATION* The default for this field is 7 days. The options are 1, 3, 5, 7, 21 and 30.
-----------------------------------------------------------------------------------------------
ITEM # Catalog number if the product came from a manufacturer's or distributor's
catalog
-----------------------------------------------------------------------------------------------
APPROX. AGE New, used, demo, reconditioned
-----------------------------------------------------------------------------------------------
SKU Each, box, case
-----------------------------------------------------------------------------------------------
LOCATION Where the equipment is currently located/resides.
-----------------------------------------------------------------------------------------------
SALESPERSON For XxxxxXxxxxxxx.xxx internal tracking.
-----------------------------------------------------------------------------------------------
DESCRIPTION This field is only 1250 characters long. Use basic writing format here.
Complete sentences are desired rather than a list of features. If you copy
and paste from an outside source, please check to see that
there are no tabs or returns in the paragraph.
-----------------------------------------------------------------------------------------------
SELLER ID#* This is your six-digit ID number you received when you registered.
-----------------------------------------------------------------------------------------------
IMAGE LOCATION A picture of your item is very helpful in selling
your item and will greatly enhance its listing appearance. The
picture needs to be in JPEG or GIF format. You can send these
on a separate disk or email if desired. Please enclose a list
delineating which picture goes with which item.
-----------------------------------------------------------------------------------------------
* indicates required fields
** indicates fields with fieldnames to be determined and whose position
within the columns is to be determined
37
EXHIBIT E
FORM OF CO-BRANDED CAREER CENTER
[GRAPHIC OF WEB PAGE -- the global healthcare marketplace]
38
EXHIBIT F
FORM OF CO-BRANDED TRAINING AND EDUCATION CENTER
[GRAPHIC OF WEB PAGE -- the global healthcare marketplace]
