CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.56
CONTENT LICENSE AGREEMENT
This Agreement, dated as of December 31, 1998, between InteliHealth, Inc.
("InteliHealth") and WebMD, Inc. ("Customer"). As of August 17, 1998, Endeavor
Technologies, Inc. changed its corporate name to WebMD, Inc. This Agreement
replaces in its entirety that certain Co-Branded Site and Linking Agreement,
dated as of July 1, 1998, between Endeavor Technologies, Inc. and InteliHealth.
This Agreement describes the terms and conditions under which Customer will
receive InteliHealth content for publication on its Web site.
1. DESCRIPTION OF CONTENT; ACCESS.
(a) InteliHealth grants to Customer for the Term of this Agreement the non-
exclusive right and license to utilize the content described on Exhibit A hereto
to (the "Content") in accordance with this Agreement and upon the General Terms
and Conditions set forth in Exhibit D hereto. During the Term of this Agreement,
InteliHealth further agrees to make available to Customer the Content in
accordance with the performance criteria set forth on Exhibit B hereto and in a
format reasonably acceptable to Customer and as otherwise provided herein.
(b) Within 14 days of the Effective Date hereof, InteliHealth will create a
template that does not include the InteliHealth "chrome", including but not
limited to all advertising, menu bars (currently on the left of the page),
InteliHealth banners and site branding and establish URLs by which Customer may
access the Content. Following the set-up of these URLs, Customer will be able to
access the Content without first having to contact InteliHealth personnel. These
URLs will be accessible at all times InteliHealth's Web site
(xxx.xxxxxxxxxxxx.xxx) is accessible. InteliHealth agrees that the custom
template will not include any InteliHealth site navigation elements, advertising
or sponsorship serving, and any frame set or chrome (unless mutually agreed to).
All intracontent navigational links contained within the Content will point only
to other content that is subject to (i) the parameters establish by the custom
template and (ii) the terms of this Agreement. Notwithstanding the foregoing,
any intracontent navigational links within the Content may be removed or
inactivated by Customer.
(c) Customer acknowledges that the Content made available to it will change
over the course of the Term (as defined below) as InteliHealth changes the
content on its own site in the normal course of its business or due to licensing
restrictions placed in it from other parties. InteliHealth will make good faith
efforts to replace content it removes with comparable content if Customer
reasonably deems it to be a priority.
(d) During the Term of this Agreement, Customer will provide to InteliHealth
two Customer physician demonstration accounts solely for the purpose of
InteliHealth's monitoring of Customer's compliance with the terms of this
Agreement with regard to use of the Content. Any other use of such accounts
shall be prohibited.
2. PUBLICATION ON CUSTOMER WEB SITE.
(a) Customer will publish the Content on its Web site located at xxx.xxxxx.xxx
(the "Customer Web Site"). In addition, Customer will post links or other
notices on all Content pages regarding Customer's standard copyright notice
and/or disclaimers. Such links or other notices to be mutually agreed to by the
parties.
(b) The parties will mutually agree on the final presentation of the Content
(so that InteliHealth can ensure compliance with the requirements of its
licensors) provided that such presentation shall consist only of bylines and
attribution associated with specific Content and no other branding shall be
associated with the Content or the Customer's site generally. In any event,
Customer may not include any branding in connection with the Content, other than
that of InteliHealth, Xxxxx Xxxxxxx or the licensor of the Content, so as to
create the impression that Customer or any other third party is the owner of
such content.
(c) Under no circumstances may Customer (i) cache or otherwise store the
Content or (ii) resell, distribute, sublicense or otherwise transfer the Content
to any third party, except as specifically provided for herein or when mutually
agreed to in writing. However, Customer may enter into co-branding or other co-
promotional arrangements with third parties under which such third parties'
branding will be associated with the Content, provided that (A) the content at
all times is only accessible on the Customer Web Site and Customer's servers,
(B) such third parties may not be companies which produce or distribute
pornography, tobacco, firearms or alcohol, and (C) such arrangements comply with
the terms and conditions of this Agreement. In the event such a third party
wishes to display or distribute the Content on its Web site, InteliHealth will
provide the license rights and technical and other resources required for such
an arrangement on mutually-agreeable terms.
3. ADVERTISING AND SPONSORSHIPS.
(a) InteliHealth may not sell advertising and sponsorships in connection with
the Content distributed on the Customer Web Site. Customer may sell advertising
and sponsorships in connection with the Content and will be solely responsible
for managing and serving all advertising inventory.
(b) Customer agrees that all advertising and sponsorships (i) will comply with
InteliHealth's standard advertising guidelines (Exhibit C) and (ii) that no
advertising or sponsorships may be sold to companies which produce or distribute
pornography, tobacco, firearms or alcohol.
(c) The parties agree to negotiate in good faith to reach a further agreement
on appropriate advertising and sponsorship royalty split, if any. The failure to
obtain such an agreement in the future shall not invalidate any part of this
Agreement nor the parties' respective rights hereunder.
(d) Solely in connection with the good faith discussions between the parties
set forth in Section 3(c) above, Customer agrees to provide InteliHealth usage
information at least
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quarterly regarding pageviews and revenue information associated with the
Content. The failure to provide such information shall not constitute a material
breach of this Agreement.
4. FEES AND EXPENSES.
(a) During the Term (as defined below), Customer will pay InteliHealth an
annual fee of $*** (the "Annual Fee"), payable in three installments. Provided
that the template described in Section 1(b) above is functional within the time
frame set forth in the same Section 1(b) and to the reasonable satisfaction of
Customer, Customer agrees to pay the first installment of $*** within 21 days of
the Effective Date of this Agreement. If the template is not functional,
Customer agrees to pay the first installment within 7 days of the date such
template is functional. The remaining two installments of $*** each will become
due within 30 days of the six month anniversary of the Effective Date hereof and
within 30 days of the nine month anniversary of the Effective date respectively.
(b) Except as set forth in this Agreement, each party will be responsible for
its own production, editorial and creative work and for any other costs or
expenses incurred in connection with this Agreement.
(c) The parties may work together to develop mutually agreeable terms and
conditions for the implementation of the InteliHealth Online Store on the
Customer Web Site.
5. TERM AND TERMINATION.
(a) The term of this Agreement (the "Term") will be one (1) year from the date
first above written (the "Effective Date"), unless terminated as set forth
below.
(b) Either party may terminate this Agreement without cause upon 30 days prior
written notice to the other party, provided that such notice is delivered no
earlier than 30 days prior and no later than 30 days following the six month
anniversary of the Effective Date.
(c) In addition to termination rights set forth in subsection (b) above, either
party may terminate this Agreement at any time during the Term hereof upon
written notice (i) in the event of a material breach by the other party that has
not been cured within 30 days of written notice of such breach, or (ii) in the
event all or substantially all of the assets, stock or business of the other
party are transferred to a competitive third party.
(d) In the event either party terminates this Agreement as set forth in
subsections (b) and (c) above, Customer will be relieved from any further
payment obligations under Section 4 above for the remainder of the Term and the
demonstration accounts for Customer's Web Site provided to InteliHealth
hereunder shall be cancelled.
________________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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The attached General Terms and Conditions are a party of this Agreement, and the
signatures below constitute acceptance of the foregoing terms and the General
Terms and Conditions.
INTELIHEALTH, INC. WEBMD, INC.
By: /s/ Xxxx X. Xxxx MD By: /s/ W. Xxxxxxx Xxxxxx
------------------------------- --------------------------------
Name: Xxxx X. Xxxx MD Name: W. Xxxxxxx Xxxxxx
----------------------------- ------------------------------
Title: Chief Medical Officer Title: Executive Vice President
---------------------------- -----------------------------
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EXHIBIT A
DESCRIPTION OF CONTENT
CONSUMER CONTENT
The Consumer Content may include the following and may be subject to periodic
changes, additions, deletions and/or substitutions consistent with the intent of
this agreement. This content may reside only on consumer areas of the Customer
Web Site.
TODAY'S NEWS MINUTE
-------------------
Brief look at a key development in health.
XXXXXXX ASK THE DOC
-------------------
Answers to readers medical questions from experts at Xxxxx Xxxxxxx.
XXXXXXX Q&AS
------------
Insight from Xxxxx Xxxxxxx experts putting the latest developments in health in
perspective. Q&A format.
TODAY IN HEALTH HISTORY
-----------------------
Brief fun and informative anecdotes from the history of medicine.
XXXXX XXXXXXX HEALTH INSIDER
----------------------------
An inside look at the latest medical breakthroughs and practical advice from the
Xxxxx Xxxxxxx Health Insider newsletter.
ADULT HEALTH ADVISOR
--------------------
Patient information on a variety of topics indexed from A to Z.
*POLLEN MAPS
------------
U.S. maps depicting overall air quality, overall pollen, grass pollen, weed
pollen, tree pollen, plus lists of above data by city for more than 50 cities.
THE WEEK IN HEALTH
------------------
Conversational roundup of key health news of the previous seven days.
HEALTH ZONES
------------
High quality material written by Xxxxx Xxxxxxx and other branded sources.
NEWS
----
Daily news and information from a variety of sources.
SEARCH
------
Users can search for health information by keyword
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DRUG SEARCH
-----------
Users can search for medication information
GENERAL INFOFINDER
------------------
A drop-down list that takes users directly to information on 40 diseases and
conditions
PERSONAL RISK REPORT
--------------------
Provides users with an assessment of their health and advice on minimizing
future risks
INTERACTIVE HEALTH
------------------
Quizzes, Radiology Gallery, Odometers and other interactive applications
HOSPITAL LOCATOR SEARCH
-----------------------
Users can search a national database of hospitals
USDA NUTRITION DATABASE
-----------------------
Readers can plug in different foods to find the nutritional value
ASK-THE-DOC
-----------
Users can access our featured Ask-the-Doc question and our Ask-the-Doc archive
DAILY DESKERCISE
----------------
Provides users each day with a different brief stretching exercise they can do
at their desk
PROMOTIONAL TOOLS AND CONTENT
-----------------------------
Packages consisting of timely combination of copy, graphics and links. Topics
range from news-driven to calendar and event-driven.
Typical packages may contain some or all of the following categories:
. "See Also" a set of related links you can use to support a breaking
news or calendar-driven story
. "Stand-Alone" Text, graphics and related links packaged together that
you can place on your site
. "Special" Text, graphics and related links you can put on your site
that also link to a larger co-brand or mini site on that topic created
by InteliHealth, Women's Health or other timely topics may be
incorporated.
. "Editorial Calendar", a look ahead at content and promotions we will
--------------------
be featuring throughout the next six months
MISCELLANEOUS
Custom and/or embargoed content incorporating above components specifically
developed for Web MD may also be developed as mutually agreed to between both
parties.
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PROFESSIONAL CONTENT
The Professional Content may include the following and may be subject to
periodic changes, additions, deletions and/or substitutions consistent with the
intent of this agreement. This content may reside only on professional areas of
the Customer Web Site.
NEWS
----
Daily news and information from a variety of sources.
RESOURCES
---------
Lists of links to quality resources for the health professional.
CONTINUING EDUCATION
--------------------
Continuing Education programs from a variety of sources.
SPECIALTY AREAS
---------------
Quality information written by InteliHealth or aggregated from a variety of high
quality sources.
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EXHIBIT B
PERFORMANCE CRITERIA
1. PERFORMANCE
a) Average less than *** seconds response time for ***% of requests.
Measures server response time only, not network transmission time.
b) Average ***% up time. This would be exclusive of regularly scheduled
maintenance. Scheduled maintenance is defined as maintenance for which
48 hours advance notice has been given for the required down time.
c) Post a mutually-acceptable message in the event of a system outage.
d) InteliHealth will measure its performance against the foregoing
criteria on a monthly basis.
2. MONITORING/REPORTING
a) Provide details on the method used to monitor performance times.
b) Provide quarterly reporting which details server up time with the
following details per period:
i) average response time
ii) actual daily response time detail
iii) average server up time
iv) actual daily server up time
c) This information will be e-mailed to the appropriate contact within
Customer on the first Monday of each quarter for the previous
quarter's reports.
3. ESCALATION PROCEDURES
a) Notify Customer via the following e-mail addresses in case of a
service outage:
i) xxxxxx@xxxxx.xxx
ii) xxxxxxxx@xxxxx.xxx
b) Notify Customer within 30 minutes of InteliHealth's awareness of a
service outage that lasts greater than 30 minutes. Status information
to include:
i) reason for the outage
ii) ETA for service restoral
______________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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c) If Customer experiences a service outage of greater than 30 minutes
and has not been notified by e-mail by InteliHealth, Customer will
contact the Senior System Administrator at InteliHealth by pager at
xxxx-xxx@xxxxxxxxxxxx.xxx and will be given the information listed
-------------------------
in 3.b).
d) Continue to notify Customer with updated status for the duration of
the outage.
e) Provide a monthly outage report. This report should include:
i) the cause of the problem
ii) method used to correct the problem
iii) measures InteliHealth will take to prevent further occurrences
4. PENALTIES
a) In the event that InteliHealth fails to meet the performance objective
defined in Section 1(a) in any given month, a penalty of $*** will be
due Customer.
b) In the event that InteliHealth fails to meet the performance objective
defined in Section 1(b) in any given month, InteliHealth will credit
Customer an amount equal to: ***
c) In the event that InteliHealth fails to meet the performance objective
defined in Section 1(c) in any given month, a penalty of $*** will be
due Customer.
d) InteliHealth will pay the foregoing penalties (if any) on a quarterly
basis, with payment accompanying each quarterly report.
e) Failure by InteliHealth to meet these performance objectives for ***
consecutive months or *** out of *** months shall constitute a breach
of this Agreement and Customer will have the right to terminate this
Agreement in accordance with the terms hereof. Customer agrees that
the penalties and right of termination described above shall
constitute Customer's sole and exclusive remedy, and InteliHealth's
sole and exclusive obligation, for failure to meet the performance
criteria described herein.
_______________
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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EXHIBIT C
INTELIHEALTH ADVERTISING AND SPONSORSHIP GUIDELINES
. InteliHealth, in all cases, maintains complete editorial independence in
our writing. We do not allow advertisers, licensees or 3rd party sponsors
to make changes to any content without InteliHealth's prior written
consent.
. It must be clear that all advertisements and sponsorships are paid
messages.
. All advertisements and sponsorships will be clearly separate from all
health content.
. No advertising or sponsorships for firearms, alcohol, tobacco or
pornographic products.
. InteliHealth will not sell any information to a third party that would
allow it to identify an individual's medical condition(s). InteliHealth
reserves the right to sell data that does not identify individual users,
and to use the information in connection with its own products and
services.
. The Health Home online store is provided as a service of InteliHealth. In
accordance with our strict editorial policies, neither Xxxxx Xxxxxxx nor
any other Information Providers endorse specific products on this service.
. InteliHealth content must be presented in a manner which does not imply
endorsement of products or services, or any sponsors, advertisers,
licensees, or any other third parties.
. Advertisements and sponsorships should not 1) diminish the reputation of
InteliHealth or its partners or 2) diminish the quality of InteliHealth or
its' partners content, products or services.
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EXHIBIT D
GENERAL TERMS AND CONDITIONS
1. For the purposes of these General Terms and Conditions, the term "Content"
shall include all Content (as defined above) and any other content,
information, software, tools or materials made available by InteliHealth or
accessible on any InteliHealth service under this Agreement.
2. InteliHealth grants to Customer a nonexclusive, worldwide right to display
the Content on the Customer Web Site in accordance with the terms of this
Agreement. In addition, each party grants to the other a nonexclusive,
nontransferable, royalty-free right to display the trademarks and logos
made available by such party, subject to the terms of this Agreement and
such party's standard trademark usage guidelines (a copy of which will be
provided by each party). All other rights to a party's intellectual
property shall remain with such party or its licensors.
3. Customer agrees not to modify or edit any Content without InteliHealth's
prior written consent, provided that Customer may alter the format of the
Content if necessary to display the Content appropriately so long as
Customer does not alter in any way the text or substance of the Content.
Customer may not display the final version of the Content on the Customer
Web Site until InteliHealth has approved its release, and InteliHealth
agrees not to unreasonably withhold such approval. If InteliHealth does not
approve of the version of the Content as displayed on the Customer Web
Site, InteliHealth will promptly notify Customer of the necessary
modifications. Following such release, InteliHealth will promptly notify
Customer of any changes which may become necessary to keep the Content
accurate and current. If Customer is unable to effect these changes after
using commercially reasonable efforts, Customer will promptly cease using
the Content, unless otherwise agreed to by the parties. Notwithstanding
anything in this Agreement to the contrary, InteliHealth reserves the
right, in its sole discretion, to modify the publication schedule of the
Content and/or to determine not to publish any Content.
4. Unless specified elsewhere in this Agreement, Customer will pay any fees
due within thirty (30) days of its receipt of an Invoice, together with any
usage information or other mutually agreed upon reporting. InteliHealth may
cease delivery of Content in the event any payment is more than 30 days
overdue. Customer will keep accurate records in connection with this
Agreement which are sufficient for the calculation of the amounts due and
will make such records available to InteliHealth and its representatives at
the places where such records are customarily kept for inspection during
normal business hours, provided that such inspections (a) occur only on
reasonable advance notice, (b) do not occur more frequently than once every
six (6) months during the term of this Agreement (and for one year
thereafter), and (c) are conducted at InteliHealth's expense (unless such
inspection reveals an underpayment by Customer of more than five percent
(5%), in which case Customer shall reimburse InteliHealth for the cost of
the inspection).
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5. Customer agrees not to remove, conceal or reposition any copyright or other
proprietary notice, legal disclaimer, or any credit-line or date-line
contained in the Content (or otherwise create the impression that Customer
is the owner of the Content). Customer agrees to use the Content in
accordance with all applicable laws and the terms of this Agreement.
6. Notwithstanding anything to the contrary contained in this Agreement,
InteliHealth may immediately remove any Content in whole or in part, in the
event the Content or any portion of the Content: (i) becomes the subject of
a claim that such Content infringes the ownership rights of any third party
or that InteliHealth otherwise does not have the right to permit others to
access such Content, (ii) depends on an agreement between InteliHealth and
a third party, and such agreement is modified or terminated for any reason
or breached by the third party and as a result InteliHealth is unable to
continue to provide all or part of the Content upon terms reasonably
acceptable to InteliHealth; (iii) becomes illegal or contrary to any
applicable law; (iv) is no longer provided by InteliHealth generally to
third parties; or (v) in InteliHealth's sole opinion, or in the opinion of
any government regulatory authority, the provision of such Content
materially jeopardizes the health or safety of any person using or relying
upon the Content, in which case Customer will cooperate with InteliHealth
to minimize the potential for jeopardy to human health or safety.
7. Within a reasonable time after expiration or termination of this Agreement
(but in no event more than thirty (30) days), Customer will (a) remove all
Content from its site and computers and otherwise return or destroy all
materials or information provided to it hereunder, and, if requested by
InteliHealth, Customer will certify as such to InteliHealth in writing, and
(b) pay InteliHealth all amounts owed to it under this Agreement, prorated
to the effective date of termination, if appropriate.
8. Each party (the "Indemnifying party") will indemnify, defend and hold
harmless the other party and its affiliated companies from and against all
claims, suits and proceedings and any and all related liabilities, losses,
expenses, damages and costs (including, without limitation, reasonable
attorneys' fees), including, without limitation, any third-party claims
alleging infringement of any copyright, trademark or other intellectual
property right or alleging libel, defamation or invasion of privacy,
arising from the use of any Content, products, software, trademarks, logos
or other materials or information (collectively, "Materials") (a) provided
by the indemnifying party or (b) accessible on the indemnifying party's Web
site or via a link from the indemnifying party's Web site, unless such
Materials were originally provided by the other party.
The indemnified party will: promptly notify the indemnifying party of any
claim, suit, or proceeding for which indemnity is claimed; cooperate
reasonably with the indemnifying party at the latter's expense; and allow
to the indemnifying party to control the defense or settlement thereof. The
indemnified party will have the right to participate in any defense of a
claim and/or to be represented by counsel of its own choosing at its own
expense. InteliHealth obligations under this section shall not apply to any
claims to the extent such claims are based upon (a) use of any Materials
that have been altered by
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Customer or any party other than InteliHealth, the combination of any
Materials with any items not provided by InteliHealth, or the display of
Materials in a manner not approved by InteliHealth in accordance with this
Agreement, if such claim would not arisen but for such alteration,
combination or display, or (b) use of any Materials after receiving notice
from InteliHealth that such Materials may give rise to any such claim.
9. Neither party makes any representations, warranties or guarantees of any
kind, either express or implied (including, without limitation, any
warranties of merchantability or fitness for a particular purpose), with
respect to (a) their respective Web sites, or the functionality,
performance or results of use thereof, or (b) any content, software,
templates, usage statistics, or other materials or information provided to
the other party in connection with this Agreement.
10. Neither party will have any liability for any (a) special, indirect,
incidental, consequential, or exemplary damages in connection with this
Agreement or (b) damages of any type suffered or incurred by either party
or any third party arising out of (i) any faults, interruptions or delays
in delivery or displaying the Content, (ii) any use of or reliance on the
Content by any person or (iii) any inaccuracies, errors or omissions in the
Content. Each party's total liability for monetary damages shall not exceed
the total amount of fees paid to InteliHealth hereunder. The foregoing
limitations shall not apply to each party's rights or damage awards under
applicable intellectual property laws.
11. During the term of this Agreement, and for a period of two years
thereafter, each party shall retain in confidence any information provided
to it by the other party and marked, labeled or otherwise designated as
confidential or proprietary, unless the information sought to be disclosed
(a) is publicly known at the time of disclosure, (b) is lawfully received
from a third party not bound in a confidential relationship with the other
party, (c) is published or otherwise made known to the public by the other
party, (d) was generated independently without reference to the other
party's confidential information, or (e) is required to be disclosed under
a court order.
12. Neither party shall be responsible for any failure to perform its
obligations under this Agreement (other than obligations to pay money)
caused by an event reasonably beyond its control, including but not limited
to, the infrastructure of the Internet, wars, riots, labor strikes, natural
disasters or any law, regulation, ordinance or other act or order of any
court, government or governmental agency.
13. Neither party will issue any press release or other public statement
regarding this Agreement without the other party's prior written consent,
except that InteliHealth may include Customer's name in any list of the
participants in the Program. Notices delivered under this Agreement may be
given by letter, facsimile or email (with hard copy confirmation) and will
be effective when received. If any provisions of this Agreement are held by
a court of competent jurisdiction to be illegal, invalid or unenforceable,
the remaining provisions shall continue in full force and effect. The
parties hereto are independent contractors. This Agreement shall not create
an agency, partnership, joint venture or any other form of legal
association, and neither party shall
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have the right to bind the other to any agreement with a third party or to
incur any obligation or liability on behalf of the other party. This
Agreement contains the entire understanding of the parties with respect to
the transactions and matters contemplated hereby, supersedes all previous
communications, understandings and agreements (whether oral or written),
and cannot be amended except by a writing signed by both parties. This
Agreement will be construed in accordance with the laws of the Commonwealth
of Pennsylvania. The terms of Paragraph 4 through 13 will survive
expiration or termination of this agreement.
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