EXHIBIT 10.2
CONTENT LICENSE AGREEMENT BETWEEN
INTEGRATIVE MEDICINE COMMUNICATIONS, INC. AND XXXXXXXXXXXXXXXX.XXX
DATED MARCH 24, 2000
CONTENT LICENSE AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into as of this 24th
day of March, 2000 (the "Effective Date") by and between Integrative Medicine
Communications, Inc., a Massachusetts corporation with its principal place of
business at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 ("IMC"), and
xxxxxxxxxxxxxxxx.xxx, a Delaware Corporation with its principal place of
business at 0000 Xxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000
("Host"). (IMC and Host are hereinafter sometimes referred to individually as a
"Party" and collectively as the "Parties.")
WHEREAS, Host [is building and will maintain] [maintains] a website on the
World Wide Web with an address of xxxx://xxx.xxxxxxxxxxxxxxxx.xxx (the
"Website"), on which it posts third-party content; and
WHEREAS, Host wishes from time to time to post on the Website certain
proprietary content owned or licensed by IMC, as more particularly described on
Exhibit A hereto (the "Content").
NOW, THEREFORE, in consideration of the mutual promises and in accordance
with the terms and conditions hereinafter set forth, the Parties agree as
follows:
1. GRANT OF LICENSE
1.1 Upon the terms and subject to the conditions and restrictions set forth
herein, IMC hereby grants to Host the non-exclusive, non-assignable,
non-transferable right and license to reproduce and display ("Post") Content as
follows: (i) Host may Post Consumer Content (as defined in Exhibit A) on the
Website beginning the effective date of this agreement; and (ii) Host may Post
Professional Content (as defined in Exhibit A) beginning ninety days after the
effective date of this agreement.
1.2 Visitors to or users of the Website ("Users") must be required to
register and obtain an access code to utilize the Professional Content as
defined in Exhibit A.
1.3 The grant of these licenses shall not be construed to grant any greater
proprietary or other right in the Content than expressly set forth in Section
1.1.
2. PAYMENTS
2.1 As consideration for the rights and license granted to Host hereunder
for the Consumer Content, Host shall pay IMC an annual license fee equal to
$80,000 payable in monthly increments of $6,667. The first payment is due upon
execution of this agreement. Subsequent payments shall be due on the first day
of each subsequent month.
2.2 In addition, as consideration for the rights and license granted to
Host hereunder for the Professional Content, the annualized license fee shall be
increased to $120,000 with monthly payments increasing to $10,000. This increase
will begin six months after the execution of this agreement until the end of the
Initial Term or Renewal Term as defined in Section 7.1.
2.3 Payments not paid to IMC by Host when due shall bear interest following
the date due at an annual rate of ten percent (10%) until paid.
3. PROVISION OF CONTENT
IMC shall provide the Content to Host in HyperText Markup Language (HTML)
format (or another mutually agreed upon format) within 30 days following the
execution by the Parties of this Agreement and Host's payment of the initial fee
due hereunder. Delivery of Content by IMC hereunder may be made by e-mail, or by
any other method mutually agreed upon by the Parties. "Renewal Term" (as defined
in Section 7.1) payments will remain at $10,000 per month.
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4. MODIFICATION AND POSTING OF CONTENT
The Host shall not, without the prior written approval of IMC in each
instance: (a) modify or alter the Content in any respect, except as to software
coding format to the extent reasonably necessary to post the Content on the
Website and to match the Website's stylistic features; or (b) display portions,
excerpts or subsets of any monograph within the Content. If Host desires to
modify or alter the Content in any manner requiring IMC's written approval or to
display an excerpt from a monograph independently of the entire monograph, Host
shall first submit the proposed modification, alteration or excerpt (as the case
may be) to IMC for review and approval prior to any display or use thereof. IMC
will notify Host of its approval or disapproval of such modification, alteration
or excerpt within ten (10) business days after its receipt of such notice and,
in the event of disapproval, of its reason therefor. Any excerpt from a
monograph permitted hereunder shall be accompanied by a hyperlink to another
page on the Website on which the subject monograph is displayed in its entirety.
Host assumes full responsibility for any modifications, alterations or excerpts
to or from the Content made or used pursuant to this Section notwithstanding
IMC's approval of same, and agrees to indemnify, defend and hold harmless IMC,
its officers, directors, employers, agents, successors and assigns, authors,
editors and licensors from and against any and all losses, liabilities, damages,
costs and expenses directly or indirectly arising out of or resulting from same.
5. NOTICES, CREDIT AND DISCLAIMERS
5.1 On each screen of text within the Website containing any material
from the Content, Host shall include: (a) notices, in form and substance
satisfactory to IMC, of IMC's or its licensors' (as the case may be) ownership
of the copyright in the Content and ownership of any trademarks associated
therewith, and the date of release or publication of the Content or portions
thereof and any updates or supplements thereto, (b) an acknowledgment, in form
and substance satisfactory to IMC, of the source of the Content and of IMC as
the copyright owner and/or publisher thereof (including any logo provided from
time to time by IMC and a notation of the book or other publication from which
such Content was excerpted or derived and any trademarks associated therewith);
and (c) a link in a prominent place (to a URL to be provided by IMC) to allow
Users the option to purchase the book or other publication from which such
Content was derived.
5.2 Host shall include at the bottom of each monograph from the
Content to be displayed on the Website the following disclaimer and/or such
additional or other appropriate disclaimers and warnings as IMC may reasonably
request from time to time:
"The information contained above is general in nature, and is not intended
as a guide to self-medication by consumers or meant to substitute for
advice provided by your own physician or other medical professional. The
reader is advised to consult with a physician or other medical professional
and to check product information (including package inserts) for changes
and new information regarding dosage, precautions and contra indication
before administering any drug, herb or supplement discussed herein. No
claims or endorsements are made for any drug, herb, supplement, compound,
therapy or treatment discussed herein. Neither the editors nor the
publisher accepts any responsibility for the accuracy of the information or
the consequences from use or misuse of the information contained herein."
6. ADDITIONAL AGREEMENTS BY HOST
6.1 IMC shall have the right, at any time and from time to time at no
cost to IMC, to access the
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Website and view the Content as displayed thereon for purposes of verifying
Host's compliance with the provisions of this Agreement. As "Users" are required
to obtain access codes to utilize the portion of the Website where the
Professional Content is posted, Host shall assign to IMC three no-charge user
access codes to the Website.
6.2 Host shall correct any errors or inaccuracies in the Content
introduced or caused by Host or its agents or contractors promptly after
learning of the existence of such errors or inaccuracies. Host shall promptly
make corrections and changes to the editorial content requested by IMC for the
purpose of (i) correcting material errors, omissions or inaccuracies or (ii)
complying with any judicial, governmental or administrative decision, rule or
order or settlement agreement by which IMC is bound or (iii) avoiding potential
liability from continued publication of such materials.
6.3 The right of Host to use any trade names or trademarks of IMC or
its licensors (collectively, "Trademarks") is limited to the display of such
Trademarks in conjunction with the Content as displayed in the Website and in
promotional materials for the Website, such use to be in such form and in such
manner as has been specifically approved in writing in each instance by IMC. All
such use of the Trademarks shall accrue to the benefit of IMC and its licensors,
as the case may be. Host will not use any Trademarks in any other manner without
the prior written consent of IMC.
6.4 Host shall be responsible for compliance, at its own expense, with
all federal, state, local and foreign laws, rules, regulations, ordinances and
orders of any governmental body, department or agency or judicial authority,
applicable to its display, publication, distribution, dissemination or other use
of the Content and the Trademarks pursuant to this Agreement.
6.5 Host hereby agrees to indemnify, defend and hold harmless IMC, its
officers, directors, employees, agents, successors and assigns, authors, editors
and licensors from and against any and all loss, liability, damage, cost and
expense arising directly or indirectly out of (i) any breach by Host of its
obligations under this Agreement; (ii) Host's transcription, digitization, or
other processing or transmission of the Content or portions thereof; (iii) the
operation of the Website or the manner in which the Content is displayed, posted
or utilized on the Website; or (iv) the content of the Website other than the
editorial content of any Content licensed hereunder or portions thereof.
7. TERMINATION
7.1 This Agreement shall commence upon the Effective Date and shall
continue in force for a term (the "Term") which shall consist of an initial Term
(the "Initial Term") of one year. It shall be automatically renewed for
additional successive one year Terms ("Renewal Term(s)") unless one Party shall
give written notice of termination to the other Party no later than 60 days
prior to the expiration of the Initial Term or the then current Renewal Term, as
applicable, or unless otherwise terminated as hereinafter provided.
7.2 In the event that either Party commits a breach of this Agreement,
upon written notice ("Breach Notice") from the non-defaulting Party, the
defaulting Party shall use its best efforts to cure such breach within 30 days
after the receipt of the Breach Notice. If such breach is not cured within 30
days of receipt of the Breach Notice, the non-defaulting Party may give written
notice ("Termination Notice") to the defaulting Party of the non-defaulting
Party's election to terminate this Agreement on a date specified in the
Termination Notice. Such right of termination shall not be exclusive of any
other remedies or means of redress to which the non-defaulting Party may be
lawfully entitled.
7.3 If either Party: (i) makes an assignment for the benefit of
creditors; (ii) becomes insolvent;
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(iii) files a voluntary petition for bankruptcy; (iv) acquiesces to an
involuntary bankruptcy petition; (iv) is adjudicated as bankrupt; or (v) ceases
to do business, the other Party, at its option, may immediately terminate this
Agreement upon giving written notice thereof.
7.4 The provisions of Sections 6.5, 7.4, 7.5, 8, 9 and 10
shall survive the expiration or early termination of this Agreement for any
reason. In addition, the following rights and obligations of the Parties shall
survive any expiration or termination of this Agreement to the degree necessary
to permit their complete fulfillment or discharge: (i) the obligation of Host to
pay the applicable payments accrued under Section 2; and (ii) any cause of
action or claim of either Party, accrued or to accrue, because of any breach or
default by other Party.
7.5 In the event of termination or expiration of this
Agreement for any reason, Host shall immediately cease posting the Content on
the Website and cease all use of the Content and any Trademarks for any purpose.
In addition, Host shall destroy all versions and copies of the Content in
whatever form or medium in Host's custody or under Host's control. An officer of
Host shall certify such action in writing to IMC.
8. OWNERSHIP OF THE CONTENT
8.1 Host agrees and acknowledges that, as between the Parties, IMC or
its licensors own all right, title and interest in and to the Content and the
Trademarks, including, without limitation, all patent rights, copyrights,
trademark rights, trade secret rights and other intellectual property rights
therein. Host shall take no action inconsistent with such ownership, and shall
not at any time do or cause to be done any act or thing contesting or in any way
impairing or tending to impair any part of such right, title and interest. Host
acknowledges that its use of the Content and the Trademarks as herein provided
shall not create any right, title and interest therein in Host's favor. Host
further agrees not to copy, reproduce, sell, license, subscribe, lease,
distribute, disseminate, broadcast, webcast or otherwise use the Content or
portions thereof other than as expressly permitted herein.
8.2 Host shall post notices and disclaimers in form and substance
satisfactory to IMC to inform Users who have access to Content or portions
thereof by or through the Website (i) that they may only use the Content or
portions thereof exclusively as a reference or informational tool for their
personal use; and (ii) that they may not reproduce or distribute the Content or
portions thereof for any commercial or other purpose.
8.3 Host shall promptly notify IMC of any unauthorized use or
infringement of the Content (or portions thereof) or the Trademarks by Users or
others of which Host becomes aware. IMC shall have the right, at its expense, to
bring an action on account of such unauthorized uses or infringements. Host
shall cooperate with IMC in such action in such manner as the IMC may reasonably
request at IMC's cost and expense.
8.4 IMC shall indemnify, defend, and hold Host harmless from and
against any and all losses, expenses, damages, liabilities, taxes, penalties,
assessments, judgments, and costs (including reasonable attorneys' fees)
(collectively, "Liabilities") arising out of any third party claims, actions or
proceedings brought against Host so far as same are based upon a claim that the
Content, in the form provided by IMC to Host hereunder, infringes any U.S.
patent, copyright, trade secret, trademark or other intellectual property right;
PROVIDED THAT Host provides IMC with prompt written notice of any claims and
reasonable assistance and sole authority to defend or settle such claims. IMC
shall have no obligation pursuant to this Section to the extent that such
Liabilities arise out of the breach of this Agreement or any other action or
failure to act by the Host. If any portion of the Content is, or in IMC's
reasonable opinion is likely to become, the subject of a claim of infringement,
IMC may, at its option, (i) procure for Host the right to continue using such
Content; (ii) replace or modify such Content so that it becomes non-infringing;
or (iii) if the remedies in (i) or (ii) are not reasonably available to IMC
despite IMC's commercially reasonable efforts, terminate Host's right to use
such
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Content without liability to Host hereunder. This Section sets forth IMC's sole
liability and Host's sole remedy with respect to any claims of intellectual
property infringement relating to this Agreement.
9. CONFIDENTIALITY
The terms and provisions of this Agreement, any amounts paid to IMC
hereunder, and any and all other confidential business information disclosed by
either Party to the other, including, without limitation, information concerning
their respective businesses and plans, products, and customers shall be
considered to be and treated by the Parties as "Confidential Information" for
purposes of this Agreement. Each Party agrees to maintain the other Party's
Confidential Information in confidence and not to use such other Party's
Confidential Information for any purpose other than as set forth in this
Agreement. All such information disclosed shall remain the sole property of the
Party disclosing it, and the receiving Party shall have no interest in or rights
to that information except as expressly set forth in this Agreement. In the
event of a breach of this Section 9, the non-defaulting Party shall be entitled
to equitable and injunctive relief in addition to any other available remedies.
10. LIMITATION OF LIABILITY
10.1 IMC MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT
TO THE CONTENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING
BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the
preceding sentence, HOST understands, acknowledges and agrees that: (a) due to
constant changes in information resulting from ongoing research and clinical
experience, differences in opinion among authorities, unique individual
circumstances and the possibility of human error in compiling the Content, it is
possible that information in the Content may be or become inaccurate or
incorrect, either generally or in specific applications; and (b) IMC makes no
representations or warranties with respect to, and assumes no responsibility or
liability for, the accuracy or correctness of the Content or the consequences of
any use or misuse of the Content by HOST or any healthcare practitioner, patient
or other person accessing the Content, whether on or through the Website or
otherwise.
10.2 UNDER NO CIRCUMSTANCES, SHALL IMC BE LIABLE FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF IMC HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE USE, PUBLICATION,
OR TRANSMISSION OF THE CONTENT OR THE BREACH OF ANY PROVISION OF THIS AGREEMENT,
SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST
BUSINESS. IMC'S TOTAL LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT, UNDER ANY CIRCUMSTANCES,
EXCEED THE AGGREGATE AMOUNT PAID TO IMC HEREUNDER.
11. MISCELLANEOUS
11.1 RECITALS. The recitals herein constitute an integral part of the
agreement reached by the Parties and are to be considered as such.
11.2 BREACH OR DEFAULT. The waiver by either Party of a breach or
default of any provision of this Agreement by the other Party shall not
constitute a waiver by such Party of any succeeding breach of the same or other
provision; nor shall any delay or omission on the part of either Party to
exercise or avail itself of any right, power or privilege that it has or may
have hereunder operate as a waiver of any such right, power or privilege by such
Party.
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11.3 FORCE MAJEURE. Neither Host nor IMC shall be liable for any
breach of this Agreement occasioned by any cause beyond the reasonable control
of such party, which for purposes of this Agreement shall mean governmental
action, war, riot, or civil commotion, fire, floods, labor disputes, restraints
affecting shipping or credit, delay of carrier, black-outs, xxxxx-outs, computer
generated worms, viruses, and other self-destructing code, a substantial change
to the commercial structure of the Internet or any other causes which could not
with reasonable diligence be controlled or prevented by the parties.
11.4 HEADINGS. The headings of the Sections of this Agreement are for
convenience only and will not be of any effect in construing the meanings of the
Sections and subsections.
11.5 COUNTERPARTS; FACSIMILE. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any signed copy of this
Agreement delivered by facsimile transmission shall for all purposes be treated
as if it were delivered containing an original signature of the party whose
signature appears in the facsimile.
11.6 NO ASSIGNMENT. Host may not assign this Agreement or any of its
rights hereunder or delegate any of its obligations hereunder without the prior
written consent in each instance of IMC.
11.7 INVALIDITY. If any covenant or other provision of this Agreement
is invalid, illegal, or incapable of being enforced by reason of any rule of
law, administrative order, judicial decision or public policy, all other
conditions and provisions of this Agreement shall, nevertheless, remain in full
force and effect.
11.8 NO JOINT VENTURE. Nothing in this Agreement nor the relations
between the Parties of this Agreement shall be construed to constitute a
partnership or joint venture between the Parties of this Agreement. Neither
Party shall have the right or authority to bind or obligate the other Party in
any manner whatsoever and shall not expressly or impliedly incur any liability
or obligation on behalf of the other Party.
11.9 NOTICES. All notices or other communications that shall or may be
given pursuant to this Agreement, shall be in writing, in English, and shall be
sent by certified or registered mail, return receipt requested with postage
prepaid, by facsimile, telex or cable communication, or by hand delivery. Such
communications shall be deemed given and received upon dispatch, if sent by
facsimile, telex, or cable communication; or upon delivery if hand delivered; or
within five (5) days of mailing, if sent by certified or registered mail, and
shall be addressed to the parties as set forth below or to such other addresses
as the parties may designate in writing from time to time.
IF TO IMC: Integrative Medicine Communications, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Brieter, Controller
Fax: (000) 000-0000
IF TO HOST: xxxxxxxxxxxxxxxx.xxx
0000 Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, VP, Business Development
Fax: (000) 000-0000
COPY TO: Xxxxxxx & Beam
0
Xxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Fax: (000) 000 0000
11.11 GOVERNING LAW. This Agreement shall be governed by the laws of
the Commonwealth of Massachusetts, without regard to conflicts of law
principles. Any action, suit or other proceeding arising out of or based upon
this Agreement shall be brought in the courts of the Commonwealth of
Massachusetts or any federal court located in such state, and the Host
irrevocably consents and submits to the exclusive jurisdiction of such courts
for the purpose of any such action, suit or proceeding.
11.12 ENTIRE AGREEMENT. This Agreement, including the exhibits
attached hereto, state the entire agreement between the Parties relating to the
subject matter hereof and supersedes any and all prior Agreements and
communications, written or oral, with respect thereto. No waiver, amendment or
modification of this Agreement may be made except by an instrument in writing
signed by both Parties or, in the case of a waiver, by the Party waiving
compliance.
IN WITNESS WHEREOF, each of the Parties has caused a duly authorized
officer or agent to execute the Agreement to be effective as of the Effective
Date set forth in the opening paragraph of this Agreement.
INTEGRATIVE MEDICINE
COMMUNICATIONS, INC. XXXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------ --------------------------
Signature Signature of Authorized Officer
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx Vice President, Business Development
Director, Electronic Products
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EXHIBIT A
CONTENT
CONSUMER CONTENT
- Patient Education Condition, Herb and Supplement Monographs from
INTEGRATIVE MEDICINE ACCESS: PROFESSIONAL GUIDE TO CONDITIONS, HERBS &
SUPPLEMENTS (including updates and photographic images for the herb
monographs)
Copyright: 2000 Integrative Medicine Communications
- Drug/Herb Interaction Database (when available)
Copyright: To be provided upon availability
- Drug/Supplement Interaction Database (when available)
Copyright: To be provided upon availability
- Drug/Nutrient Depletion Database (when available)
Copyright: To be provided upon availability
- HERBAL MEDICINE: EXPANDED COMMISSION E MONOGRAPHS (including photographic
images)
Copyright: 2000 American Botanical Council
Published by: Integrative Medicine Communications
- INTEGRATIVE MEDICINE COMMUNICATIONS HERB & DIETARY SUPPLEMENT REPORT
electronic monthly newsletter
Copyright: 2000 Integrative Medicine Communications
- AN INTEGRATIVE MEDICINE PRIMER
Copyright: Integrative Medicine Communications
PROFESSIONAL CONTENT
- Professional Condition, Herb and Supplement Monographs from INTEGRATIVE
MEDICINE ACCESS: PROFESSIONAL GUIDE TO CONDITIONS, HERBS & SUPPLEMENTS
(including updates and photographic images for the herb monographs)
Copyright: 2000 Integrative Medicine Communications
- Drug/Herb Interaction Database (when available)
Copyright: To be provided upon availability
- Drug/Supplement Interaction Database (when available)
Copyright: To be provided upon availability
- Drug/Nutrient Depletion Database (when available)
Copyright: To be provided upon availability
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