EXHIBIT 10.12
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is entered into by and between Buena
Vista Internet Group, a corporation duly organized under the laws of California,
with its principal place of business at 0000 Xxxxxxxxxx Xxxx., Xxxxx Xxxxxxxxx
Xxxxxxxxxx 00000, hereinafter referred to as "BVIG", and xxxxxx.xxx, Inc., a
corporation organized under the laws of the State of Delaware with its principal
place of business at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx
00000, hereinafter referred to as "Content Partner" or "XxXxxx.xxx".
WITNESSETH:
WHEREAS, BVIG hosts and maintains a web site known as "Disney's xxxxxx.xxx" (the
"Service" or "Xxxxxx.xxx") located at xxx.xxxxxx.xxx through which information
targeted towards parents and families is provided to its users ("Users"); and
WHEREAS, Content Partner operates an Internet site located at xxx.xxxxxx.xxx
(the "XxXxxx.xxx Site" or the "Content Partner Service") and is the provider of
information described in Appendix A hereto ("Health Content").
WHEREAS, BVIG desires to create a clearly designated area on Xxxxxx.xxx devoted
to Health Content (the "Health Channel") and BVIG and Content Partner desire
Content Partner to provide such content for such channel. Health Content
provided by Content Partner hereunder, as set forth on Appendix A-1 hereto,
shall be referred to herein as "Content Partner Content".
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, BVIG and Content Partner hereby agree as follows:
1 LICENSE; OBLIGATIONS OF CONTENT PARTNER; OBLIGATIONS OF BVIG
1.1 Subject to the terms and conditions of this Agreement, Content
Partner hereby grants to BVIG and its subsidiaries and Affiliates, a
fully-paid, worldwide, irrevocable (during the term), non-exclusive
right and license to use, reproduce, adapt, incorporate, integrate,
distribute and otherwise exploit the Content Partner Content on the
Service and other BVIG sites as specified in Section 1.9 below, and,
in conjunction with BVIG's activities pursuant to this Agreement, to
exploit the applicable copyrights, trade names, trade dress,
trademarks and other intellectual property rights of Content Partner
on the Service. The terms set forth in the Appendices attached
hereto shall also apply to this Agreement.
As used herein, "Affiliate" means with respect to a party to this
Agreement, any entity that directly or indirectly controls, or is
under common control with, or is controlled by, such party;
"control" (including, with its correlative meanings, "controlled by"
and "under common control with") means possession, directly or
indirectly, of the power to direct or cause the direction of
management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
1.2 BVIG shall create the Health Channel which shall contain Content
Partner Content and/or Links (defined in Section 1.7) to Content
Partner Content. The Health Channel is further described on Appendix
A.
_____________________________
Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the
confidentiality request. Omissions are designated as * * *. A complete
version of this exhibit has been filed separately with the Securities and
Exchange Commission.
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1.3 Content Partner shall host most of the Content Partner Content on
Content Partner's servers. Certain Content Partner Content hosted by
Content Partner and accessed by Users shall, at BVIG's option,
appear within a BVIG-designed branded frame ("Family.com-Wrapped
Pages"),, or within pages on the DrKoop Site with no wrapper
(collectively "Pages"). The Family.com-Wrapped Pages shall, at
BVIG's option, consist of either (a) a custom configuration of
portions of the Content Provider Content selected by BVIG which
shall appear within a Xxxxxx.xxx branded frame which includes the
Xxxxxx.xxx navigation bar; or (b) Go-Wrapped Pages created under the
Distribution Agreement between Content Partner and Infoseek
Corporation of even date herewith (the "Distribution Agreement").
The advertising and sponsorships on the Family.com-Wrapped Pages
shall be determined by Content Partner, subject to Appendix A,
Section 7. The Family.com-Wrapped Pages shall appear to the viewer
to be located at xxx.xxxxxx.xxxxxx.xxx. The parties will mutually
agree on the format for the Family.com-Wrapped Pages wrapper.
Content Partner shall cooperate and assist BVIG by promptly
answering questions and complaints regarding any Content Partner
Content. Each party shall promptly inform the other party of any
event or circumstance, and provide all information pertaining to
such event or circumstance, related or arising from this Agreement
which could lead to a claim or demand against the other party by any
third party. The parties acknowledge that, unless otherwise agreed,
Users will not be required to pay a fee to view any Family.com-
Wrapped Pages or to view a page on the XxXxxx.xxx Site which Users
accessed through a link from Xxxxxx.xxx.
1.4 Content Partner will deliver to BVIG all Content Partner Content to
be hosted by BVIG in a mutually agreeable format, electronically via
modem or Internet access (e.g. Internet ftp or Internet e-mail).
Content Partner agrees to certify that all deliveries hereunder were
made electronically. Content Partner will make updates to the
Content Partner Content available to BVIG on a regular mutually
agreed upon basis. BVIG shall have the right, but not the
obligation, to remove from Xxxxxx.xxx, or direct Content Partner to
remove from the Family.com-Wrapped Pages, any Content Partner
Content which BVIG, in its reasonable discretion, determines to be
offensive, in poor taste, or otherwise objectionable.
1.5 Subject to the exceptions set forth below, during the term of this
Agreement, Content Partner shall be the exclusive provider of Health
Content for the Health Channel. * * *
1. * * *
2. Health Content provided to BVIG by news or data feeds or
Freelancers;
3. Any Health Content created internally by BVIG or its Affiliates;
4. * * *
5. BVIG's standard advertising banner business conducted outside
the Health Channel;
6. News and Editorial Content of any kind (As used herein,
"Editorial Content" means opinion pieces related to current
events and magazine articles that may relate to health;
* * *
7. New Content or products that are not available from XxXxxx.xxx
as further described in Appendix A, Section B 2; and
8. Any Health Content obtained from a third party which is marketed
under the "Disney" brand (such as, "Disney's Health
Encyclopedia").
As used herein, "Freelancers" shall mean independent parties who
receive a fee for their services and who are not (to BVIG's
knowledge) full time employees of any XxXxxx.xxx Direct
Competitor as set forth on Appendix E.
___________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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XxXxxx.xxx acknowledges that the following shall not constitute a
breach of this Section 1.5: (a) the BVIG search technology may
search the sites * * *; (b) BVIG may provide search-related products
that may include results from any third parties; and (c) any third
party may be included in service/product provider directories on
Xxxxxx.xxx.
1.6 * * *
1.7 The response times which XxXxxx.xxx shall use to remedy and/or
correct any material limitations or errors in any Content Partner
Content made available by or through XxXxxx.xxx that BVIG brings to
XxXxxx.xxx's attention or about which XxXxxx.xxx otherwise becomes
aware are specified in Appendix C; * * * XxXxxx.xxx agrees not to
override browser back button functionality to prevent Users who link
to the XxXxxx.xxx Site from the Service from returning to the
Service. As used herein "Link" means a so-called "hot link" in
graphical and/or textual format located on a web site which takes
the User directly to another web site.
1.8 Each party will be responsible for its respective telecommunications
charges with respect to the provision of respective portions of the
Content Partner Content to BVIG and to Users. Except as expressly
provided herein, BVIG retains the right to adapt or otherwise alter
the design, look, and any other attributes of the Service and
Service pages, and the placement of the Content Partner Content on
the Service. BVIG will use commercially reasonable efforts to
incorporate into the Content Partner Content error corrections, as
provided and identified as such by Content Partner; provided,
however that if Content Partner advises BVIG in writing during
normal business hours that failure to promptly correct an error
could result in serious physical injury to a User, BVIG shall
exercise best commercially reasonable efforts to expedite the
correction of such error.
1.9 Xxxxxx.xxx may place up to ten articles of Content Partner Content
per month as part of the archival database for the Service during
the term of the Agreement. The archival database may be searched
from Xxxxxx.xxx as well as other BVIG sites that include the
Xxxxxx.xxx database in their search.
1.10 User Registration. XxXxxx.xxx shall ensure that its privacy policy
applicable to the XxXxxx.xxx Site and the Family.com-Wrapped Pages,
to the extent applicable to its performance under this Agreement, is
consistent with the BVIG's privacy policy for Xxxxxx.xxx, as such
may be changed from time to time, including but not limited to
including a mechanism that allows Users to opt in to XxXxxx.xxx's
sharing of User data (not including personal medical information)
with BVIG. The parties will work together to implement a shared
registration solution for Users accessing DrKoop functionality.
1.11 XxXxxx.xxx User Data. * * * XxXxxx.xxx shall make available to BVIG,
via a method and timing to be mutually agreed upon, all names and
email addresses of all new Xx.Xxxx.xxx Users who register on the
Family.com-Wrapped Pages or who have accessed the XxXxxx.xxx Site
from a Link on Xxxxxx.xxx, provided that such User has opted in for
sharing his/her data with BVIG and provided such disclosure is not
prohibited by law or regulation. In addition, except as prohibited
by law, Xx.Xxxx.xxx shall provide to BVIG all available data (in
aggregate, anonymous form only) concerning Users who access the
Pages from Links on Xxxxxx.xxx, concerning products and/or services
purchased by such
______________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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Users, survey and promotion responses, and other demographic
information concerning such Users. Notwithstanding the foregoing,
XxXxxx.xxx shall not provide personal medical information to BVIG,
including, without limitation, personal medical records. BVIG may
use such information for its internal business purposes and may
provide such aggregate, anonymous information to third parties as it
deems appropriate in connection with its operations; provided,
however that such aggregate, anonymous data may not be identified to
third parties as XxXxxx.xxx User data. Xxxxxx.xxx User data must be
aggregated with other BVIG User data before being provided to a
third party.
1.12 BVIG User Data. BVIG shall own all right, title and interest in and
to and the exclusive right to use all BVIG User Data generated on
all pages of the Service hosted by BVIG.
1.13 Access. The Health Channel shall be accessible by Users through no
more than one hyperlink from the Xxxxxx.xxx home page. Further, BVIG
shall maintain the Health Channel, in a manner consistent with its
development and operation of the other Channels within the Service.
1.14 * * *
2 FEES AND PAYMENTS
Each party will make payments to the other party in the amounts and at
the times specified in Appendix D. Each party will be responsible for the
proper payment of all taxes, including sales, excise and value added
taxes, which may be levied in connection with its payments to the other
party, exclusive of taxes based upon the other party's net income.
3 CONFIDENTIAL INFORMATION
3.1 Either BVIG or Content Partner may disclose to the other (the
"Receiving Party") certain information that the disclosing party
deems to be confidential and proprietary ("Proprietary
Information"), and technical and other business information of the
disclosing party that is not generally available to the public.
3.2 The Receiving Party agrees to use Proprietary Information solely in
conjunction with its performance under this Agreement and not to
disclose or otherwise use such information in any fashion. The
Receiving Party, however, will not be required to keep confidential
such Proprietary Information that becomes generally available
without fault on its part; is already rightfully in the Receiving
Party's possession without restriction prior to its receipt from the
disclosing party; is independently developed by the Receiving Party;
is disclosed by third parties without similar restrictions; is
rightfully obtained by the Receiving Party from third parties
without restriction; or is otherwise required by law or judicial
process.
3.3 Unless required by law or to assert its rights under this Agreement,
and except for disclosure on a "need to know basis" to its own
employees, and its legal, investment, financial and other
professional advisers on a confidential basis, each party agrees not
to disclose the terms of this Agreement or matters related thereto
without the prior written consent of the other party.
4 REPRESENTATIONS AND WARRANTIES
________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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4.1 Content Partner represents and warrants that it is the owner of the
Content Partner Content and/or has the right to grant the rights
hereunder. Content Partner represents and warrants to BVIG that it
holds the necessary rights to permit the use of Content Partner
Content by BVIG for the purpose of this Agreement; that its entry
into this Agreement does not violate any agreement with any other
party; that its performance under this Agreement will conform to
applicable U.S. laws and government rules and regulations; that to
the best of its knowledge, after reasonable inquiry, the Content
Partner Content is true, accurate and does not contain material
omissions; Content Partner further represents and warrants to BVIG
that the use, reproduction, distribution, transmission, or display
of Content Partner Content will not (a) violate any laws or any
rights of any third parties, including, but not limited to, such
violations as infringement or misappropriation of any U.S.
copyright, patent, trademark, trade dress, trade secret, music,
image, or other proprietary or property right, false advertising,
unfair competition, defamation, invasion of privacy or publicity
rights, moral or otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of any
person or entity; or (b) contain any material that is: unlawful,
harmful, fraudulent, threatening, abusive, harassing, defamatory,
vulgar, obscene, profane, hateful, racially, ethnically, or
otherwise objectionable, including, without limitation, any material
that supports, promotes or otherwise encourages wrongful conduct
that would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state or
national laws.
4.2 Content Partner represents and warrants that, * * *, the systems and
technology utilized to operate the XxXxxx.xxx Site and the GO
Network Wrapped Pages are compliant with the following Year 2000
requirements: (a) the occurrence in or use by such systems of dates
before, on or after January 1, 2000 will not adversely affect the
performance of such systems with respect to date-dependent data,
computations, output, or other functions (including, without
limitations, calculating, comparing and sequencing); and (b) such
systems will not abnormally end or provide invalid or incorrect
results as a result of date dependent data.
4.3 BVIG represents and warrants * * *
4.4 BVIG represents and warrants to Content Partner that * * *
5 LIMITATION OF LIABILITY; DISCLAIMER
5.1 EXCEPT FOR EITHER PARTY'S LIABILITY FOR THIRD PARTY CLAIMS AS
SPECIFIED IN SECTION 9 BELOW OR IN APPENDIX A, SECTION B(4), DAMAGES
ARISING FROM PERSONAL INJURY, OR EITHER PARTY'S BREACH OF SECTION 3,
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE,
EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
5.2 EXCEPT AS SET FORTH IN SECTION 4, NEITHER PARTY MAKES ANY, AND EACH
PARTY ACKNOWLEDGES THAT THE OTHER HAS NOT MADE ANY, AND HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING THE SERVICE, THE XXXXXX.XXX SITE, THE CONTENT
PARTNER CONTENT, OR THE OPERATION OF THE CONTENT PARTNER CONTENT ON
THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
_______________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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PARTNER CONTENT, OR THE OPERATION OF THE CONTENT PARTNER CONTENT ON
THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6 TERM AND TERMINATION
6.1 This Agreement shall be effective on the date executed by both
parties ("Effective Date") and shall continue in force for an
initial term ending thirty-six (36) months from the Execution Date
(as defined in Appendix A, Section B.1.a). Upon prior mutual written
agreement, the then current term of this Agreement may be renewed at
the end of such initial term and * * * thereafter for * * * renewal
terms. * * *
6.2 XxXxxx.xxx will make best commercially reasonable efforts for the
Pages to meet the following performance standards The applicable
performance standards are as follows:
* * *
6.3 BVIG shall make best commercially reasonable efforts for that
portion of the Health Channel hosted by BVIG ("Health Channel" as
used in this Section 6.3) to meet the following external performance
standards. Such performance standards are as follows:
* * *
6.4 * * *
6.5 The following sections shall survive the termination or expiration
of this Agreement: 1.11 (first sentence only), 1.12, 2, 3, Article 4
(as to claims arising prior to termination or expiration or claims
based on events arising prior to termination or expiration) 5, 8.1
(first and second sentences only), 8.2, 9, and 10.
6.6 Upon the termination or expiration of this Agreement, each party
shall (a) promptly return all Proprietary Information, and other
information, documents, manuals and other materials belonging to the
other party, except as may be otherwise provided in this Agreement;
(b) promptly pay all amounts due and payable as of the date of such
expiration or termination; and (c) promptly remove the other party's
content, branding, links, and any other material provided under this
Agreement from its respective sites and services.
6.7 During the term of this Agreement, BVIG shall not enter into any
agreements to permit the sale or distribution of tobacco or tobacco
products on the Health Channel. Notwithstanding the foregoing,
Content Partner acknowledges and agrees that information concerning
tobacco and tobacco products may be displayed in standard search and
directory result format on the Health Channel in response to the
search queries of Users.
7 FORCE MAJEURE
Neither party will be liable for delay or default in the performance of
its obligations under this Agreement (other than for non-payment) if such
delay or default is caused by conditions beyond its reasonable control,
including, but not limited to, fire, flood, accident, earthquakes,
telecommunications line failures, storm, acts of war, riot, government
interference, strikes and/or
_______________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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walk-outs. The party experiencing the force majeure event shall provide
the other party with notice as soon as reasonably possible under the
circumstances. In the event of a force majeure event which lasts longer
than fifteen (15) days, the party not experiencing the force majeure
event may terminate this Agreement upon prior written notice to the other
party.
8 ADVERTISING AND PROMOTION; PUBLICITY
8.1 Content Partner shall not issue or permit the issuance of any press
releases or publicity regarding, or grant any interview, or make any
public statements whatsoever concerning, this Agreement, Xxxxxx.xxx
BVIG or its Affiliates, without prior coordination with and written
approval from BVIG, which approval may be granted or withheld in
BVIG's sole discretion. BVIG shall not issue or permit the issuance
of any press releases or publicity regarding, or grant any
interview, or make any public statements whatsoever concerning this
Agreement or Content Partner without prior coordination with and
written approval from Content Partner, which approval may be granted
or withheld in Content Partner's sole discretion. Notwithstanding
the foregoing, after execution of this Agreement, and during the
term of the Agreement, XxXxxx.xxx * * * shall reasonably cooperate
with BVIG in the issuance of a press release, mutually agreed to
between the parties, announcing this Agreement. All such
endorsements must receive BVIG's prior review and approval. Except
and only to the extent specifically set forth in this Agreement,
XxXxxx.xxx shall not acquire any right under this Agreement to use
any BVIG trademarks or logos or the names "Disney" or "Xxxxxx.xxx"
(either alone or in conjunction with or as a part of any other word
or name) or any fanciful characters or designs of any BVIG
affiliate, (a) in any advertising, publicity, or promotion; (b) to
express or to imply any endorsement of its own products or services;
or (c) in any other way.
8.2 BVIG shall not have any right to use the name and/or likeness of Dr.
C Xxxxxxx Xxxx or to make any statements, whether written or oral,
which state or otherwise imply, directly or indirectly, any
endorsement from or affiliation with Xx. Xxxx in any manner
whatsoever without the prior written consent of XxXxxx.xxx, which
consent may be withheld in XxXxxx.xxx's sole discretion.
8.3 Content Partner and BVIG may undertake such joint marketing efforts
as may be mutually agreed upon from time to time, but neither party
is obligated to undertake any such efforts.
9 INDEMNIFICATION
9.1 Content Partner agrees to defend, indemnify and hold BVIG and their
officers, directors, agents and employees harmless from and against
any and all claims, demands, liabilities, actions, judgments, and
expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to (i)
any breach or alleged breach of any of Content Partner's
representations and warranties set forth in Section 4.1; (ii) any
breach of an international law, rule or regulation or international
third party proprietary right (as if Content Partner had made the
representations and warranties equivalent to those set forth in
Section 4.1 regarding US laws, regulations and proprietary rights);
* * * Content Partner shall bear full responsibility for the defense
(including any settlements) of any such claim; provided however,
that (a) Content Partner shall keep BVIG informed of, and consult
with BVIG in connection with the progress of such litigation or
settlement; and (b) Content Partner shall not have any right,
without BVIG's written consent,
_____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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to settle any such claim if such settlement arises from or is part
of any criminal action, suit or proceeding or contains a stipulation
to or admission or acknowledgment of, any liability or wrongdoing
(whether in contract, tort or otherwise) on the part of BVIG or
otherwise requires BVIG to take or refrain from taking any material
action (such as the payment of fees).
9.2 BVIG agrees * * * Content Partner and its officers, directors,
agents and employees * * * BVIG shall bear full responsibility for
the defense (including any settlements) of any such claim; provided,
however, that (a) BVIG shall keep Content Partner informed of, and
consult with Content Partner in connection with the progress of such
litigation or settlement; and (b) BVIG shall not have any right,
without Content Partner's written consent, to settle any such claim
if such settlement arises from or is part of any criminal action,
suite or proceeding or contains a stipulation to or admission or
acknowledgment of, any liability or wrongdoing (whether in contract,
tort or otherwise) on the part of Content Provider or otherwise
requires Content Partner to take or refrain from taking any material
action (such as the payment of fees).
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10 GENERAL TERMS AND CONDITIONS
10.1 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 to incur any obligation or
liability for, or to otherwise bind, the other party. This Agreement
shall not be interpreted or construed to create an association,
joint venture, co-ownership, co-authorship, or partnership between
the parties or to impose any partnership obligation or liability
upon either party.
10.2 Neither party shall assign, sublicense or otherwise transfer
(voluntarily, by operation of law or otherwise) this Agreement or
any right, interest or benefit under this Agreement, without the
prior written consent of the other party; provided, however, that
either party may assign this Agreement to any entity that acquires
all or substantially all of the assets or shares (or controlling
shares) of such party; provided that the acquiring entity is not a
direct competitor of the other party. Any attempted assignment,
sublicense or transfer by a party in derogation hereof shall be null
and void. 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. Any
change of control of either party shall be deemed an "assignment"
for purposes of this Section 10.2; provided, however, that as long
as control is not transferred to a competitor of the nonassigning
party, it shall be an approved xxxxxxxxxx.Xx used herein, "change of
control" shall include any event (including, without limitation, a
merger, sale, liquidation, transfer, encumbrance or other
disposition) which results in a change of the control of a party. As
used in this Section 10.2 "change of control" shall mean a change in
the legal, beneficial or equitable ownership, directly or
indirectly, of more than fifty (50%) of a class of capital stock
having voting rights of either party.
10.3 No change, amendment or modification of any provision of this
Agreement or waiver of any of its terms will be valid unless set
forth in writing and signed by the party to be bound thereby.
10.4 This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of California.
Each party irrevocably consents to the exclusive jurisdiction of any
state or federal court for or within Los Angeles County, California
over any action or proceeding arising out of or related to this
Agreement, and waives any objection to venue or inconvenience of the
forum in any such court.
10.5 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.
10.6 Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing, will
reference this Agreement, and shall be deemed to have been delivered
and given (a) when delivered personally; (b) three (3) business days
after having been sent by registered or certified U.S. mail, return
receipt requested, postage and charges prepaid; or (c) one (1)
business day after deposit with a commercial overnight courier, with
written verification of receipt. All communications will be sent to
the addresses set forth below or to such other address as may be
designated by a party by giving written notice to the other party
pursuant to this Section 10.6.
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If to BVIG: If to Content Partner:
BUENA VISTA INTERNET GROUP XXXXXX.XXX, INC.
0000 Xxxxxxxxxx Xxxx. 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx, XX 00000 Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxx Attention: __________________
Tel: (000) 000-0000 Tel: ______________________
Fax:(000) 000-0000 Fax:________________
With a copy to:
Legal Department
Fax: (000) 000-0000
10.7 This Agreement and the Appendices attached hereto and incorporated
herein by reference constitutes the entire agreement between the
parties and supersede any and all prior agreements or understandings
between the parties with respect to the subject matter hereof. Neither
party shall be bound by, and each party specifically objects to, any
term, condition or other provision or other condition 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 purchase order, correspondence or
other document, unless the party to be bound thereby specifically
agrees to such provision in writing.
10.8 The headings used in this document are for convenience only and are
not to be construed to have legal significance. 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, 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 the remainder of this Agreement shall remain in
full force and effect.
BUENA VISTA INTERNET GROUP XXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
----------------------------------- -----------------------------------
Authorized Signature Authorized Signature
Print Name: Xxxxx Xxxxxxx Print Name: Xxxxxx Xxxxxxx
--------------------------- ---------------------------
Title: Sr. V.P. Business and Legal Title: CEO
-------------------------------- --------------------------------
Affairs
--------------------------------
Date: 4/9/99 Date: 4/9/99
--------------------------------- ---------------------------------
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APPENDIX A
A. HEALTH CONTENT
1. "Health Content" means content that relates to human health
conditions, medicine, and the treatment of disease * * *
B. HEALTH CHANNEL DESCRIPTION
1. a. The Health Channel shall comprise one or more pages and shall
include a XxXxxx.xxx branded area featuring relevant Headlines
from the XxXxxx.xxx Site selected by Xxxxxx.xxx. "Headline" means
a title of an article, application, graphic or other Content
Provider Content. The Headlines shall be Links to the applicable
Health Content within the Pages either hosted by BVIG or
Xx.Xxxx.xxx. The Headlines may be pulldown menus or other kinds
of Links and may also include a brief description of the content
(subject to the obligations set forth in Section B 4 below). Each
page of the Health Channel shall include a Xxxxxx.xxx button
which will be Linked to the XxXxxx.xxx site or the Xxxxxx.xxx
Wrapped Pages, as determined by BVIG. The Health Channel shall be
available to Users within 60 days of the Effective Date. The date
on which the Health Channel is made available to Users is
referred to herein as the "Execution Date."
b. At least * * * of the content on the Health Channel's home page
shall be Content Provider Content or Headlines, provided
Xxxxxx.xxx's editorial team, in its reasonable discretion,
identifies relevant Content Provider Content/Headlines to reach
this * * * threshold. At least * * * of the Links on the Health
Channel shall go directly to the Family.com-Wrapped Pages or the
XxXxxx.xxx Site, provided Xxxxxx.xxx's editorial team identifies,
in its reasonable discretion, relevant Content Provider
Content/Headlines to reach this * * * threshold. The * * * may
link to Xxxxxx.xxx pages that contain other Health Content
(subject to Section B 2b) and other content.
c. Xxxxxx.xxx may also choose in its sole discretion to host and
display in full on Xxxxxx.xxx up to 10 articles per month from
the Content Provider Content. Each such article will include a
mutually agreed Link to the XxXxxx.xxx Site.
d. BVIG shall promote the Health Channel in a manner commensurate
with BVIG's promotion of the other Xxxxxx.xxx Channels.
2. a. XxXxxx.xxx shall provide Health Content and tools to Xxxxxx.xxx
in areas and subjects as specified by BVIG. BVIG and XxXxxx.xxx
shall mutually upon a schedule for the display of Content
Provider Content which may include implementation of the
following features within 90 days of the Effective Date:
. Weekly articles
. Periodic online chats with experts provided by XxXxxx.xxx
. At least one photo for each article and illustrations,
graphs, statistical tables and charts wherever appropriate
. Weekly replies from experts affiliated with XxXxxx.xxx to
Xxxxxx.xxx user questions
. Search
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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b. In the event that BVIG desires Health Content and/or tools,
medium and/or functionality not available from Content Partner at
the time of BVIG's request ("New Content"), it shall provide
XxXxxx.xxx with written notice of its desire to obtain such New
Content, which notice shall include a specification therefor, and
a delivery schedule in reasonable detail to allow XxXxxx.xxx to
evaluate the scope of the development project (the "Request").
c. * * *
3. All Links pointing to the XxXxxx.xxx Site from the Service shall
provide Links back to the same area of the Service.
4. Notwithstanding the foregoing, BVIG shall not modify, edit, abbreviate
or censor Content Partner Content, but BVIG shall have the right not
to include such content on any pages of Xxxxxx.xxx. In the event that
BVIG modifies; including without limitation, creating summaries, any
portion of the Content Partner Content without the prior written
approval of Content Provider, BVIG shall be solely responsible for any
liability arising from such unauthorized modifications and shall
indemnify and hold Content Partner harmless from such liability.
5. * * *
6. At BVIG's request, XxXxxx.xxx shall send to BVIG's facilities a
minimum of one (1) on-site designer/producer/engineer during the term
of this Agreement for a mutually agreed upon duration for purposes of
assisting BVIG in building the Health Channel and integrating the
Content Partner Content therein.
7. * * * XxXxxx.xxx shall comply with the following restrictions with
respect to the sale of advertising on the Xxxxxx.xxx Wrapped Pages:
a. XxXxxx.xxx shall place on the Xxxxxx.xxx Wrapped-Pages and on any
portion of the XxXxxx.xxx Site which includes only promotions for
or links to the Xxxxxx.xxx Wrapped-Pages only "run of site"
advertising and shall not include in such locations any
advertising from any * * * without BVIG's prior written consent,
which may be granted or withheld in BVIG's sole discretion.
b. XxXxxx.xxx may sell sponsorships which appear on the
Family.com-Wrapped Pages, provided that (i) such sponsorships
comply with BVIG's current Advertising Guidelines and (ii) DrKoop
does not sell Family.com-Wrapped Pages sponsorships as a stand
alone opportunity and without BVIG's prior approval do not
reference Xxxxxx.xxx when discussing sponsorship opportunities.
c. Content Provider shall comply with BVIG's then current
standard advertising policy.
d. XxXxxx.xxx shall not transmit any so-called "interstitials"
or "pop-up ads" to users of Xxxxxx.xxx or the Xxxxxx.xxx Wrapped-
Pages.
8. At present, BVIG intends that all Health Content provided to users of
BVIG's site "Xxxxxx.xxx" shall be provided via Links to Xxxxxx.xxx. *
* *
9. Any promotions and/or links to Xxxxxx.xxx provided by XxXxxx.xxx shall
be approved in advance by BVIG.
___________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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10. All Content Partner Content shall carry Content Partner's legal
disclaimer, a copy of which is included on Xxxxxxxx X-0, which may be
revised from time to time by Content Provider. Other than Headlines,
this disclaimer shall be presented in its entirety any time Content
Partner Content is displayed. In addition, certain third party content
which is provided by Content Partner may have additional requirements
for displaying, such as including the logo of the original content
provider (for example, Dartmouth Medical content must carry the
branding and logo of the Dartmouth Medical School), which requirements
are described on Appendix A-1. Content Partner will provide further
details concerning such requirements at the time Content Partner
Content is submitted for inclusion in the Service.
11. Advertising
a. Commencing on Execution Date, BVIG shall deliver * * * of
XxXxxx.xxx Ad Banners at a cpm of * * * on a "run of site" basis
across Xxxxxx.xxx. * * * of such impressions shall be delivered
by September 15, 1999 and the remainder shall be delivered within
the first year of this Agreement. The terms and conditions of the
BVIG's then-current "Advertising Sales Terms and Conditions"
shall apply to such advertising. Copies of such terms and
conditions are available from BVIG on request.
b. Provided XxXxxx.xxx is current on all payments described above,
BVIG agrees to purchase * * * Ad Banner impressions on the
XxXxxx.xxx Site at a cpm of * * * of the impressions shall be
delivered during the first year of this Agreement and the
remaining * * * be delivered as determined by BVIG over the first
two (2) years of this Agreement.
___________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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APPENDIX A-1
This Appendix A-1 sets forth existing Content Provider Content as of the
Effective Date. All Content Provider Content includes, in addition to the
requirements listed below, xxxxxx.xxx branding. Content Partner may revise this
Appendix from time to time, to reflect new content added to the XxXxxx.xxx Site,
and to reflect the termination or expiration of third party agreements, which
revisions shall be subject to BVIG's reasonable approval; notwithstanding the
foregoing, Content Partner shall maintain the quality and quantity of Content
Provider Content available to BVIG throughout the term of the Agreement.
CATEGORY SOURCE COPYRIGHT DISTRIBUTION DISCLAIMER LOGO
RIGHTS REQUIRED NEEDED
----------------------------------------------------------------------------------------------------------
DISEASE
Dartmouth Xxxxxx.xxx any use Standard Yes
X. Xxxxxxxxx Xxxxxx.xxx any use Standard Yes
Public Domain - NIH Xxxxxx.xxx any use Standard Yes
Patient Associations Individual deals - Standard No
please inquire about
specifics with
xxxxxxx@xxxxxx.xxx
----------------------------------------------------------------------------------------------------------
EXPERT Xxxxxx Xxxxxx - Xxxxxx.xxx any use Standard No
CONTENT Nutrition
Xxxxxx Xxxxx - Xxxxxx.xxx any use Standard No
Fitness
Xxxxxx Xxxxxx - Xxxxxx.xxx any use Standard No
Smoking
Xxxxxxxxx Xxxxxxxx Xxxxxx.xxx any use Standard No
- Insurance
----------------------------------------------------------------------------------------------------------
PHARMACY Xxx Xxxxxxx JG Limited offline use Standard No
Multum Multum Standard + Multum Yes
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INSURANCE X. Xxxxxx / T. Xxxxxx.xxx any use Standard No
Xxxxx
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
CLINICAL public domain any use Standard No
TRIALS
----------------------------------------------------------------------------------------------------
COMMUNITY Day in my life Xxxxxx.xxx any use Standard No
In the Spotlight Individual deals - Standard No
please inquire
----------------------------------------------------------------------------------------------------
No
HEALTH SITE Xxxxxx.xxx any use Standard
REVIEWS
STANDARD DISCLAIMER
This information is not intended to be a substitute for professional medical
advice. You should not use this information to diagnose or treat a health
problem or disease without consulting with a qualified healthcare provider.
Please consult your healthcare provider with any questions or concerns you may
have regarding your condition.
MULTUM DISCLAIMER
Every effort has been made to ensure that the information provided by Multum is
accurate, up-to-date, and complete, but no guarantee is made to that effect. In
addition, the drug information contained herein may be time sensitive and should
not be utilized as a reference resource beyond the date hereof. Also requires
user to accept Terms of Use when such content is first displayed.
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APPENDIX B
* * *
____________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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APPENDIX C
ERROR CORRECTION SCHEDULE
The response times within which XxXxxx.xxx shall remedy and/or correct any
material limitations or errors in any Content Partner Content made available by
or through XxXxxx.xxx that Users of Xxxxxx.xxx bring to XxXxxx.xxx's attention
or about which XxXxxx.xxx otherwise becomes aware are specified below.
XxXxxx.xxx shall acknowledge receipt of the problem description, and, in the
time frames specified below, remedy and/or correct the problem.
Program/Error Severity Levels Problem/Error Correction Time
----------------------------- -----------------------------
* * *
___________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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APPENDIX D
FEES AND PAYMENTS
A. FEES AND PAYMENTS
1. XxXxxx.xxx shall pay to BVIG a content/program placement fee of six
million dollars ($6,000,000) (five hundred thousand dollars of which
is attributable as a production fee as described below) and, in
consideration for the ad impressions to the delivered under Appendix
A, Section 12a., an advertising fee of one million five hundred
thousand dollars ($1,500,000) payable to BVIG on the schedule
specified below.
2. BVIG shall pay to XxXxxx.xxx an advertising fee of two million dollars
($2,000,000) for the ad impressions to be provided under Appendix A,
Section 12b over * * * of this Agreement, provided this Agreement is
not terminated.
B. PAYMENT SCHEDULE
1. Content/Placement Fee to BVIG:XxXxxx.xxx shall pay to BVIG a non-
refundable, up-front production fee payment * * *
2. * * *
C. OTHER
1. BVIG (or its agents) shall receive all monies derived from
advertising, product sales, and all other activities and transactions
on all pages of Xxxxxx.xxx. XxXxxx.xxx shall receive all monies
derived from advertising, product sales and all other activities and
transactions on the Family.com-Wrapped Pages and the XxXxxx.xxx Site.
2. All BVIG invoices are to be mailed to:
xxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: _______________________
All payments are to be mailed to:
Buena Vista Internet Group
0000 Xxxxxxxxxx Xxxx.
Xxxxx Xxxxxxxxx, XX 00000
Attention: Accounts Payable
___________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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XXXXXXXX X
* * *
__________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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APPENDIX F
* * *
_________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
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