Exhibit 10.11
Content Agreement with EarthLink Network, Inc.
dated October 27, 1999
CONTENT AGREEMENT
THIS CONTENT AGREEMENT (the "Agreement"), effective as of October 27, 1999 (the
"Effective Date"), is made and entered into by and between EarthLink Network,
Inc. (as "EarthLink"), a Delaware corporation, and XxxxxxXxxxxxx.xxx
("HealthChannel"), a Delaware corporation.
RECITALS
WHEREAS, EarthLink is an Internet service provider which owns, licenses,
operates or distributes online information, communication, and transaction
services through the EarthLink/Sprint Service;
WHEREAS, HealthChannel is an online provider of health and medical information,
which owns, operates and maintains the HealthChannel Site;
WHEREAS, the parties desire that HealthChannel provide the HealthChannel Content
through the Co-Branded Site (as hereinafter defined) and as a customizable
provider option of health news on the EarthLink Personal Start Page; and
WHEREAS, the parties desire that EarthLink provide links from the EarthLink Site
to the Co-Branded Site so that EarthLink Members and Internet users may access
such HealthChannel Content.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
other valuable and sufficient consideration, the receipt of which is hereby
acknowledged, EarthLink and HealthChannel agree as follows:
TERMS
DEFINITIONS. The following definitions shall apply to the Agreement:
"AFFILIATE" MEANS, WITH RESPECT TO EITHER PARTY, ANY PERSON OR ENTITY AT ANY
TIME CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL WITH THAT PARTY.
"CO-BRAND" MEANS THAT A PARTY WILL CAUSE ITS WEB PAGE TO DISPLAY THE OTHER
PARTY'S MARKS IN A MANNER THAT IS EQUAL IN PROMINENCE AND POSITION TO ITS OWN
MARKS APPEARING THEREON.
"CO-BRANDED SITE" MEANS A VERSION OF THE HEALTHCHANNEL SITE CREATED, PROVIDED
AND MAINTAINED BY HEALTHCHANNEL WHICH IS CO-BRANDED WITH THE EARTHLINK/SPRINT
MARKS.
"COMPANY INFORMATION" MEANS COLLECTIVELY THE CONFIDENTIAL INFORMATION AND TRADE
SECRETS OF THE DISCLOSING PARTY. COMPANY INFORMATION ALSO INCLUDES INFORMATION
WHICH HAS BEEN DISCLOSED TO THE DISCLOSING PARTY BY A THIRD PARTY, AND THAT THE
DISCLOSING PARTY IS OBLIGATED TO TREAT AS CONFIDENTIAL OR SECRET. EARTHLINK'S
COMPANY INFORMATION INCLUDES, WITHOUT LIMITATION, THE NAMES, CONTACT AND
FINANCIAL INFORMATION (INCLUDING, BUT NOT LIMITED TO CREDIT CARD INFORMATION AND
E-MAIL ADDRESSES) OF EARTHLINK MEMBERS. HEALTHCHANNEL'S COMPANY INFORMATION
INCLUDES, WITHOUT LIMITATION, THE NAMES, CONTACT AND FINANCIAL INFORMATION
(INCLUDING, BUT NOT LIMITED TO CREDIT CARD INFORMATION AND E-MAIL ADDRESSES) OF
USERS WHO ACCESS THE CO-BRANDED SITE AND VOLUNTARILY AND DIRECTLY PROVIDE
HEALTHCHANNEL WITH SUCH INFORMATION.
"CONFIDENTIAL INFORMATION" MEANS ANY AND ALL INFORMATION RELATED TO THE SERVICES
AND/OR BUSINESS OF A PARTY THAT DOES NOT CONSTITUTE A TRADE SECRET AND THAT IS
TREATED AS CONFIDENTIAL OR SECRET BY THE PARTY (THAT IS, IT IS THE SUBJECT OF
EFFORTS BY THE DISCLOSING PARTY THAT ARE REASONABLE UNDER THE CIRCUMSTANCES TO
MAINTAIN ITS SECRECY) INCLUDING, BUT NOT LIMITED TO, THE TERMS AND CONDITIONS OF
THIS AGREEMENT. "CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE INFORMATION (a)
ALREADY LAWFULLY KNOWN TO OR INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY, (b)
DISCLOSED IN
PUBLISHED MATERIALS, (c) GENERALLY KNOWN TO THE PUBLIC, OR (d) LAWFULLY
OBTAINED FROM ANY THIRD PARTY WITHOUT ANY OBLIGATION OF CONFIDENTIALITY.
"CONTROL," "CONTROLLING" AND "CONTROLLED" MEANS POSSESSING, DIRECTLY OR
INDIRECTLY, THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND
POLICIES OF AN ENTITY OR OTHER PERSON, WHETHER THROUGH OWNERSHIP OF VOTING
SECURITIES, BY CONTRACT OR OTHERWISE.
"EARTHLINK COMPETITIVE SERVICES" MEANS ANY INTERNET ACCESS SERVICES, TELEPHONE
SERVICES (WHETHER LONG DISTANCE, WIRELESS OR LOCAL), INTERNET TELEPHONY
SERVICES, TELECOMMUNICATIONS SERVICES (INCLUDING WITHOUT LIMITATION, ISDN, FRAME
RELAY, ADSL, ETC.), WEB HOSTING SERVICES, E-MAIL SERVICES (FREE OR OTHERWISE),
START PAGE SERVICES, OR PORTAL SERVICES, EXCEPT EARTHLINK AND SPRINT AND THOSE
SERVICES AND PRODUCTS OFFERED BY EARTHLINK AND SPRINT.
"EARTHLINK MEMBER" MEANS ANY AUTHORIZED USER OF THE EARTHLINK/SPRINT SERVICE.
"EARTHLINK PERSONAL START PAGE" REFERS GENERICALLY TO EARTHLINK'S PERSONAL START
PAGE, AND GENERALLY AS SAME MAY BE MODIFIED BY EARTHLINK MEMBERS FROM TIME TO
TIME AND IN THEIR DISCRETION.
"EARTHLINK PREMIERE PARTNERS" MEANS A THIRD PARTY ENTERING INTO OR WHICH HAS
ENTERED INTO AN EXTENSIVE CO-PROMOTIONAL PARTNERSHIP WITH EARTHLINK WHICH
EARTHLINK DESIGNATES ITS "PREMIERE PARTNERSHIP PROGRAM" OR SUCH OTHER NAME AS
EARTHLINK MAY DEVISE FROM TIME TO TIME. EARTHLINK WILL IDENTIFY ITS PREMIERE
PARTNERS IN WRITING TO HEALTHCHANNEL AS NEEDED TO IMPLEMENT THE TERMS OF THIS
AGREEMENT.
"EARTHLINK SITE" MEANS, COLLECTIVELY, ALL PAGES OF EARTHLINK'S VARIOUS WEB
SITES, THE EARTHLINK PERSONAL START PAGE AND ANY OTHER WEB PAGES OWNED BY
EARTHLINK AVAILABLE THROUGH XXX.XXXXXXXXX.XXX (SPECIFICALLY EXCLUDING ANY PAGES
OWNED OR HOSTED BY THIRD PARTIES, REGARDLESS OF WHETHER OR NOT THEY DISPLAY THE
EARTHLINK/SPRINT MARKS).
"EARTHLINK/SPRINT SERVICE" MEANS THE STANDARD EARTHLINK NARROWBAND DIAL-UP
INTERNET ACCESS SERVICE.
"GUARANTEED REFERRALS" SHALL HAVE THE MEANING SET FORTH IN SECTION 2.2(c).
"HEALTHCHANNEL CONTENT" MEANS THE HEALTH NEWS, INFORMATION AND SERVICES THAT
HEALTHCHANNEL PROVIDES THROUGH THE HEALTHCHANNEL SITE, AND AS MAY BE EXPANDED
FROM TIME TO TIME IN HEALTHCHANNEL'S SOLE DISCRETION.
"HEALTHCHANNEL HEADLINES" MEANS THE NEWS HEADLINES, PROVIDED BY HEALTHCHANNEL,
THAT WILL APPEAR IN THE HEALTH NEWS AREA OF THE EARTHLINK PERSONAL START PAGE.
SUCH HEALTHCHANNEL HEADLINES SHALL LINK TO THE FULL TEXT STORIES ON THE
CO-BRANDED SITE.
"HEALTHCHANNEL ICON" MEANS ANY GRAPHICAL OR TEXTUAL ICON WHICH IS CAPABLE OF
HYPERLINKING FROM THE EARTHLINK SITE TO THE CO-BRANDED SITE INCLUDING, BUT NOT
LIMITED TO, ANY BANNER ADVERTISEMENTS AND PROMOTIONAL PLACEMENTS.
"HEALTHCHANNEL SITE" MEANS, COLLECTIVELY, ALL POINTS OF PRESENCE AND/OR SERVICES
MAINTAINED FROM TIME TO TIME BY OR ON BEHALF OF HEALTHCHANNEL OR ITS AFFILIATES
ON THE INTERNET AT (i) THE URL XXXXXXXXXXXXX.XXX (AND ANY REPLACEMENT OR
SUCCESSOR THERETO), (ii) EACH OTHER URL HAVING THE XXXXXXXXXXXXX.XXX DOMAIN (AND
ANY REPLACEMENT OR SUCCESSOR THERETO), AND (iii) SUCH OTHER URLS AS
HEALTHCHANNEL MAY NOTIFY EARTHLINK FROM TIME TO TIME IN HEALTHCHANNEL'S SOLE
DISCRETION.
"INITIAL TERM" SHALL HAVE THE MEANING SET FORTH IN SECTION 6.1 HEREIN.
"MARKS" MEANS ANY TRADEMARK, TRADE NAME, SERVICE XXXX, LOGO, SLOGAN AND
COPYRIGHT AND PROPRIETARY NOTICES ASSOCIATED WITH A PARTY'S PRODUCTS OR
SERVICES.
"REFERRAL" MEANS EACH CLICK THROUGH TO THE HEALTHCHANNEL SITE FROM THE EARTHLINK
SITE, INCLUDING WITHOUT LIMITATION, EACH CLICK THROUGH TO THE CO-BRANDED SITE
FROM THE HEALTHCHANNEL CONTENT AND HEALTHCHANNEL ICON.
"REFERRALS FEE(S)" SHALL HAVE THE MEANING SET FORTH IN SECTION 2.1(h).
"RENEWAL TERM(S)" SHALL HAVE THE MEANING SET FORTH IN SECTION 6.1 HEREIN.
"SPRINT" MEANS, COLLECTIVELY, SPRINT CORPORATION AND SPRINT COMMUNICATIONS
COMPANY L.P.
"TERM" MEANS THE INITIAL TERM AND ANY RENEWAL TERM(S) OF THIS AGREEMENT AS
DEFINED IN SECTION 6.1 HEREIN.
"TERRITORY" MEANS THE UNITED STATES AND, AS MUTUALLY AGREED UPON BY THE PARTIES,
OTHER AREAS.
"TRADE SECRETS" MEANS ALL NON-PUBLIC INFORMATION WHETHER TANGIBLE OR INTANGIBLE
RELATED TO THE SERVICES OR BUSINESS OF THE DISCLOSING PARTY THAT (a) DERIVES
ECONOMIC VALUE, ACTUAL OR POTENTIAL, FROM NOT BEING GENERALLY KNOWN TO OR
READILY ASCERTAINABLE BY OTHER PERSONS WHO CAN OBTAIN ECONOMIC VALUE FROM ITS
DISCLOSURE OR USE; AND (b) IS THE SUBJECT OF EFFORTS BY THE DISCLOSING PARTY
THAT ARE REASONABLE UNDER THE CIRCUMSTANCES TO MAINTAIN ITS SECRECY, INCLUDING,
WITHOUT LIMITATION, (i) MARKING ANY INFORMATION REDUCED TO TANGIBLE FORM CLEARLY
AND CONSPICUOUSLY WITH A LEGEND IDENTIFYING ITS CONFIDENTIAL OR TRADE SECRET
NATURE; (ii) IDENTIFYING ANY ORAL COMMUNICATION AS CONFIDENTIAL OR SECRET
IMMEDIATELY BEFORE, DURING, OR AFTER SUCH ORAL COMMUNICATION; OR (iii) OTHERWISE
TREATING SUCH INFORMATION AS CONFIDENTIAL OR SECRET. ASSUMING THE CRITERIA IN
CLAUSES (a) AND (b) ABOVE ARE MET, TRADE SECRETS INCLUDES INFORMATION, WITHOUT
REGARD TO FORM, INCLUDING, BUT NOT LIMITED TO, TECHNICAL AND NON-TECHNICAL DATA,
FORMULAS, PATTERNS, DESIGNS, COMPILATIONS, COMPUTER PROGRAMS AND SOFTWARE,
DEVICES, INVENTIONS, METHODS, TECHNIQUES, DRAWINGS, PROCESSES, FINANCIAL DATA,
FINANCIAL PLANS, PRODUCT PLANS, LISTS OF ACTUAL OR POTENTIAL CUSTOMERS AND
SUPPLIERS WHICH ARE NOT COMMONLY KNOWN BY OR AVAILABLE TO THE PUBLIC, RESEARCH,
DEVELOPMENT, AND EXISTING AND FUTURE PRODUCTS.
OBLIGATIONS OF THE PARTIES.
DUTIES AND OBLIGATIONS OF HEALTHCHANNEL. IN CONNECTION WITH THIS
AGREEMENT, HEALTHCHANNEL SHALL HAVE THE FOLLOWING DUTIES AND OBLIGATIONS:
CONTENT LICENSE. During the Term and Renewal Term(s), if any, and subject to the
provision of Section 2.3 herein, HealthChannel grants to EarthLink and each of
its Affiliates a nonexclusive, nonsublicenseable, royalty-free, worldwide
license to use, reproduce, display, and distribute the HealthChannel Content
including, but not limited to, teasers, headlines, summaries and portions of the
HealthChannel Content in connection with links to or from, or in conjunction
with, the EarthLink Site, EarthLink Personal Start Page or in or on any other
media including, but not limited to, any promotional material or any of
EarthLink's partners' Web sites, but in each case only to the extent reasonably
necessary for EarthLink to perform as contemplated by this Agreement. EarthLink
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
HealthChannel Content (or otherwise create the impression that Earthlink is the
owner of the HealthChannel Content). EarthLink agrees to use the HealthChannel
Content only in accordance with applicable laws and the terms of this Agreement.
EarthLink agrees not to modify or edit any of the HealthChannel Content without
HealthChannel's prior written consent which consent HealthChannel may withhold
in its reasonable discretion.
CONTENT STANDARDS. HealthChannel shall not provide any HealthChannel Content
that: (a) infringes any intellectual property or publicity/privacy right; (b)
violates any law or regulation; (c) is defamatory, obscene, harmful to minors or
child pornographic; (d) contains any viruses, Trojan horses, worms, time bombs,
cancelbots or other computer programming routines that are intended to damage,
detrimentally interfere with, surreptitiously intercept or expropriate any
system, data or personal information; or (e) is materially false, misleading or
inaccurate.
OWNERSHIP. Except as otherwise provided in this Agreement, as between
HealthChannel and EarthLink: (a) HealthChannel retains all right, title and
interest in and to all intellectual property rights embodied in or associated
with
the HealthChannel Content. There are no implied licenses under this
Agreement, and any rights not expressly granted to a licensee hereunder are
reserved by the licensor or its suppliers. Neither party shall exceed the
scope of the licenses granted hereunder.
TRADEMARK LICENSE. During the Term, and subject to the provisions of Section 2.3
herein, HealthChannel grants to EarthLink and each of its Affiliates a
nonexclusive, nonsublicensable, royalty-free, worldwide license to use,
reproduce, display, and distribute HealthChannel's Marks (as defined in Exhibit
B) in connection with links to or from, or in conjunction with, the EarthLink
Site, the EarthLink Personal Start Page, or in or on any other media including,
but not limited to, any promotional material or any of EarthLink's partners' Web
sites, but in each case only to the extent as reasonably necessary for EarthLink
to perform as contemplated by this Agreement. EarthLink 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 HealthChannel
Content (or otherwise create the impression that Earthlink is the owner of the
HealthChannel Content). EarthLink agrees to use the HealthChannel Marks only in
accordance with applicable laws and the terms of this Agreement.
TRADEMARK RESTRICTIONS. HealthChannel may terminate the foregoing trademark
license if, in its reasonable discretion, EarthLink's use of the Marks
tarnishes, blurs or dilutes the quality associated with the Marks or the
associated goodwill and such problem is not cured within ten (10) days of notice
of breach. Title to and ownership of HealthChannel's Marks shall remain with
HealthChannel. EarthLink shall use the HealthChannel Marks exactly in the form
provided and in conformance with any trademark usage policies provided by
HealthChannel. EarthLink shall not take any action inconsistent with
HealthChannel's ownership of the HealthChannel Marks, and any benefits accruing
from use of such HealthChannel Marks shall automatically vest in HealthChannel.
THE SERVICES. HealthChannel shall provide the HealthChannel Content through the
Co-Branded Site in full compliance with the Service Specifications set forth in
EXHIBIT C hereto. HealthChannel shall be a customizable health news provider
option on the EarthLink Personal Start Page. HealthChannel shall update its
HealthChannel Headlines on a regular basis so as to maintain its freshness of
content and newsworthiness. The HealthChannel Content accessible through the
EarthLink Site shall only link to the Co-Branded Site. HealthChannel shall
design, create, edit, manage, update and maintain the Co-Branded Site for the
purpose of providing Internet users with access to the HealthChannel Content on
a twenty-four (24) hours per day, seven (7) days per week basis, such that the
HealthChannel Content provided through the EarthLink Site and on the Co-Branded
Site will retain parity with the HealthChannel Content provided by HealthChannel
to any third party or through the main HealthChannel Site in terms of freshness
of content, services and features. HealthChannel shall Co-Brand every page of
the Co-Branded Site that is accessible by EarthLink Members. During the Term,
HealthChannel agrees to (i) work diligently with EarthLink to promote the
HealthChannel Content on the EarthLink Site, and (ii) assist EarthLink in a
commercially reasonable manner to xxxxxx usage and enjoyment of the
HealthChannel Content by EarthLink Members on an on-going basis.
GUARANTEED REFERRALS FEE. In exchange for the Guaranteed Referrals more fully
described in Paragraph 2.2(c), HealthChannel shall pay to EarthLink a
nonrefundable fee of Thirty-Six Thousand Dollars ($36,000) (the "Guaranteed
Referrals Fee") as follows: (1) twenty-five percent (25%) ($9,000) on the
Effective Date, or on a Renewal Date, as applicable; (ii) twenty-five percent
(25%) ($9,000) within thirty (30) days following the end of three (3) months
after the Effective Date, or of a Renewal Date, as applicable; (iii) twenty-five
(25%) ($9,000) within thirty (30) days following the end of six (6) months after
the Effective Date, or of a Renewal Date, as applicable; and (iv) twenty-five
percent (25%) ($9,000) within thirty (30) days following the end of nine (9)
months after the Effective Date, or of a Renewal Date, if applicable.
ADDITIONAL REFERRALS. In addition to the Guaranteed Referrals Fee, HealthChannel
shall pay to EarthLink the sum of Ten Cents ($.10) per each Referral generated
under this Agreement in excess of the Guaranteed Referrals (the "Referrals
Fee"). The Referrals Fee shall be paid to EarthLink on a cumulative basis within
two weeks following the end of each calendar month that the Referrals are
generated during the Initial Term and each Renewal Term, if any, accompanied by
a report from HealthChannel supporting each Referrals Fee.
CUSTOMER SUPPORT. HealthChannel shall provide, in a professional and workmanlike
manner, customer support regarding the HealthChannel Content offered to
EarthLink Members through the Co-Branded Site, and the purchasing
and ordering thereof. HealthChannel hereby agrees and acknowledges that such
customer support shall be accessible by EarthLink Members twenty-four (24)
hours a day, seven (7) days a week, through a toll free telephone number to
be provided, paid for and maintained exclusively by HealthChannel, which
shall be referenced in the Co-Branded Site.
COMPETITIVE ADVERTISING. HealthChannel shall not display advertising of any kind
(co-operative or otherwise) for, or otherwise promote in any way, any EarthLink
Competitive Services on any page of the Co-Branded Site.
PREMIERE PARTNERS. HealthChannel shall set aside and reserve an amount of space
situated on the uppermost portion of the screen in every page of the Co-Branded
Site, which space shall be suitably sizable, in EarthLink's reasonable
discretion, in order to incorporate branding from EarthLink Premiere Partners.
EarthLink Premiere Partners appearing on the Co-Branded Site will not include
any providers that are primarily engaged in the health and medical information
industry. HealthChannel shall, upon EarthLink's direction, incorporate such
EarthLink Premiere Partners branding into the space referenced above in any or
all pages of the Co-Branded Site. HealthChannel agrees and acknowledges that
EarthLink may, in its sole discretion, from time to time add or remove such
EarthLink Premiere Partners branding from the Co-Branded Site and that
HealthChannel will work together with EarthLink to incorporate any modifications
to such EarthLink Premiere Partners branding. This presence must include at
least one logo, GIF or HTML link, or branding, and an amount of text which shall
be determined in EarthLink's sole discretion. The parties will work together to
create designs that are suitable, in EarthLink's sole discretion, for each and
all of these Co-Branded pages, and HealthChannel will provide EarthLink with
design specifications and sample designs within fifteen (15) days after the
Effective Date in order to allow EarthLink to generate new EarthLink Premiere
Partners branding. HealthChannel shall execute any changes to pages of the
Co-Branded Site required under this Section 2.1(k).
USER INFORMATION. HealthChannel shall not send unsolicited emails to any
EarthLink Member. HealthChannel may send promotional email messages to EarthLink
Members who elect to receive such emails, through a registration process with
HealthChannel through which HealthChannel offers to the EarthLink Member an
opportunity to receive HealthChannel's promotional email messages, and each
HealthChannel promotional email message will offer to the recipient a means by
which the recipient may unsubscribe to such emailing list. Under no
circumstances will HealthChannel send or enable others to send email messages to
EarthLink Members which promote EarthLink Competitive Services. In no event
shall HealthChannel offer to any third party a list which would permit such
third party to identify the HealthChannel user as an EarthLink Member.
REPORTS. Within fifteen (15) days after the last day of each calendar month,
each party will provide the other party with a monthly report of Referrals and
user traffic generated hereunder from the EarthLink Site to the Co-Branded Site.
AUDIT. During the Term of the Agreement, and during the one (1) year period
immediately following the Term, EarthLink shall have the right, upon reasonable
notice, during normal business hours, at EarthLink's own expense, through an
independent auditor chosen by EarthLink, to audit HealthChannel's books, records
and logs that relate solely to the Guaranteed Referrals Fee, the Referrals Fee
or other payments owed to EarthLink hereunder. If an audit of the appropriate
records, books of account or logs reveals that HealthChannel has understated the
amounts owed to EarthLink under this Agreement for the period under audit, then
HealthChannel shall promptly pay any amounts owed to EarthLink. If the amount of
underpayment for the period under audit equals or exceeds five percent (5%) of
the total amount owed during such period, then HealthChannel shall reimburse
EarthLink for all reasonable costs and expenses incurred in connection with
conducting the audit.
TECHNICAL IMPLEMENTATION. HealthChannel shall work in good faith with EarthLink
Member Services and Support regarding all technical implementation and
performance issues under this Agreement.
LATE PAYMENT. All amounts owed by HealthChannel to EarthLink hereunder not paid
when due and payable will bear interest from the date such amounts are due and
payable at the rate of 1.5% per month (or the maximum rate allowed by law).
DUTIES AND OBLIGATIONS OF EARTHLINK. In connection with this Agreement,
EarthLink shall have the following duties and obligations:
TRADEMARK LICENSE. During the Term, and subject to the provisions of Section
2.3, EarthLink grants to HealthChannel a nonexclusive, nonsublicenseable,
nontransferable, fully paid-up license throughout the Territory to display the
EarthLink/Sprint Marks (as defined in EXHIBIT A), the Premiere Partners' marks
and logos, and any and all intellectual property rights contained therein
exclusively on the Co-Branded Site or in or on promotional material, but only as
such use is reasonably necessary for HealthChannel to perform as contemplated by
this Agreement.
TRADEMARK RESTRICTIONS. EarthLink may terminate the foregoing trademark license
if, in its reasonable discretion, HealthChannel's use of the EarthLink Marks
tarnishes, blurs or dilutes the quality associated with the EarthLink Marks or
the associated goodwill and such problem is not cured within ten (10) days of
notice of breach. Title to and ownership of EarthLink's Marks shall remain with
EarthLink. HealthChannel shall use then EarthLink Marks exactly in the form
provided and in conformance with any trademark usage policies provided by
EarthLink. HealthChannel shall not create any combination Marks with the
EarthLink Marks. HealthChannel shall not take any action inconsistent with
EarthLink's ownership of the EarthLink Marks, and any benefits accruing from use
of such EarthLink Marks shall automatically vest in EarthLink.
GUARANTEED REFERRALS. During the Initial Term of this Agreement or any Renewal
Term, EarthLink shall provide Three Hundred Sixty Thousand (360,000) Referrals
to HealthChannel (the "Guaranteed Referrals"). If upon the scheduled date for
expiration of the Initial Term or Renewal Term, EarthLink has failed to provide
the Guaranteed Referrals during such Initial Term or Renewal Term, then such
Initial Term or Renewal Term shall be automatically extended until HealthChannel
has received, in the aggregate, the Guaranteed Referrals and such failure shall
not constitute a breach of this Agreement; provided, however, that the Initial
Term or Renewal Term shall not be so extended if this Agreement is terminated by
either party early in accordance with Sections 2.3, 3.1(b), 3.2(c), 6.2 or
EXHIBIT C of this Agreement.
MANAGING THE CONTENT. EarthLink shall include the HealthChannel Content as a
customizable health news provider on the EarthLink Personal Start Page.
EarthLink shall place three (3) to five (5) HealthChannel Headlines within the
health news area of the EarthLink Personal Start Page. Notwithstanding the
foregoing, HealthChannel acknowledges and agrees that EarthLink Members may
cause the health news provider accessible through the EarthLink Site to be
provider(s) other than HealthChannel. HealthChannel acknowledges and agrees that
EarthLink has other promotional programs through which certain partners promote
the EarthLink/Sprint Service and provide new EarthLink Members to EarthLink.
HealthChannel further acknowledges and agrees that certain promotional partners
require the ability to restrict the advertising that appears on the EarthLink
Site of EarthLink Members brought to EarthLink through such promotional partner.
Therefore, HealthChannel agrees that EarthLink retains the right to remove the
HealthChannel Content from the EarthLink Site (at EarthLink's sole discretion),
in the event that a promotional partner of EarthLink requires that such a
deletion or move be made, and then such deletion or move will only be effective
as regards the EarthLink Site accessible by EarthLink Members brought to
EarthLink through the requesting promotional partner.
PROMOTIONAL MATERIAL/PRESS RELEASES. Each party requires that each use of its
Marks or the Marks of its licensors be in accordance with EXHIBIT A, in the case
of EarthLink, and EXHIBIT B, in the case of HealthChannel. Prior to the initial
launch of any Web pages or other Internet locations branded with the other
party's Marks including, but not limited to, the Co-Branded Site or the release
of any marketing, advertising, press releases, or other promotional materials
that reference the other party and/or the other party's Marks, the releasing
party shall submit a written request for approval to the other party together
with a copy of the materials to be released, which request shall be made no less
than ten (10) business days prior to the requested release date (the other party
shall not unreasonably withhold or delay the granting of its approval thereof).
PRESS RELEASES. HealthChannel acknowledges and agrees that EarthLink shall,
without delay, and scheduled in reasonable consultation with HealthChannel, make
the first public announcement regarding this Agreement and the parties'
relationship established hereby. All other press releases are subject to both
parties' prior written consent.
NON-EXCLUSIVE ENGAGEMENT. HealthChannel agrees that EarthLink may, in its sole
discretion, retain third parties which provide services and functions similar or
identical to the HealthChannel Content and any other services or functions being
provided by HealthChannel under this Agreement for inclusion in the EarthLink
Site, as EarthLink may choose
in its sole discretion. HealthChannel further agrees that EarthLink may
provide, in its sole discretion, promotions through third parties that are
the same as or similar to the EarthLink promotions provided herein.
REPRESENTATIONS AND WARRANTIES.
EARTHLINK. EarthLink represents and warrants to HealthChannel that:
EarthLink has the power and authority to enter into and perform its obligations
under this Agreement; and
EarthLink has the full right to grant or otherwise permit HealthChannel to use
EarthLink's Marks, the Premiere Partners' marks and logos and is aware of no
claims by any third parties adverse to any of such intellectual property rights
except for Sprint's ownership of its Marks contained in the co-branded
EarthLink/Sprint Marks. If EarthLink's intellectual property rights are alleged
or held to infringe the intellectual property rights of a third party, EarthLink
shall, at its own expense, and in its sole discretion, (i) procure for
HealthChannel the right to continue to use the allegedly infringing intellectual
property or (ii) replace or modify the intellectual property to make it
non-infringing; provided, however, if neither option is possible or economically
feasible and if the inability to use such intellectual property would cause a
material breach of this Agreement (as determined by HealthChannel),
HealthChannel may immediately terminate this Agreement upon notice to EarthLink.
HEALTHCHANNEL. HealthChannel represents and warrants to EarthLink that:
HealthChannel has the power and authority to enter into and perform its
obligations under this Agreement;
HealthChannel and the HealthChannel Content shall at all times comply with all
local, state and federal laws, rules and regulations of the United States
applicable to the Co-Branded Site, the HealthChannel Content and HealthChannel's
performance under this Agreement; and
HealthChannel has the full right to grant or otherwise permit EarthLink to
access the Co-Branded Site, to use the HealthChannel Content and to use
HealthChannel's Marks, and is aware of no claims by any third parties adverse to
any of such intellectual property rights. If HealthChannel's intellectual
property rights are alleged or held to infringe the intellectual property rights
of a third party, HealthChannel shall, at its own expense, and in its sole
discretion, (i) procure for EarthLink the right to continue to use the allegedly
infringing intellectual property or (ii) replace or modify the intellectual
property to make it non-infringing; provided, however, that if neither option is
possible or economically feasible and if the inability to use such intellectual
property would cause a material breach of this Agreement (as determined by
EarthLink), EarthLink may immediately terminate this Agreement upon notice to
HealthChannel.
CONFIDENTIALITY. Each party acknowledges that Company Information may be
disclosed to the other party during the course of this Agreement. Each party
agrees that it shall take reasonable steps, which shall include, at a minimum,
the steps it takes to protect its own Company Information, to prevent the
duplication or disclosure of Company Information, other than by or to its
employees or agents who must have access to the Company Information to perform
such party's obligations hereunder, and to financial investors, lending
institutions and each of their accountants and legal counsel, who shall each
agree to comply with the terms of this Section 4. Each party agrees that if it
is required by law to disclose the other party's Company Information, such
disclosing party must first give written notice of such required disclosure to
the other party and make a reasonable effort to obtain a protective order
requiring that the Company Information so disclosed be used only for the
purposes for which disclosure is required. Each party shall protect the other
party's Company Information during the Term and for two (2) years after the
termination of this Agreement.
LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR
INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING WITHOUT
LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NEITHER PARTY SHALL MAKE REPRESENTATIONS OR WARRANTIES TO ANY END
USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY AND IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR ANY REPRESENTATION OR WARRANTY MADE TO
ANY END USER OR THIRD PARTY BY THE OTHER PARTY. THESE LIMITATIONS SHALL
SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE LIMITED REMEDIES
PROVIDED FOR IN THE AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION 5.1
SHALL NOT APPLY TO THE PARTIES' INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 5.3 BELOW OR TO THE PARTIES' INJUNCTIVE RELIEF REMEDIES SET FORTH IN
SECTION 5.4 BELOW.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES,
AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING THE EARTHLINK/SPRINT SERVICE, THE CO-BRANDED SITE,
THE HEALTHCHANNEL SITES OR THE HEALTHCHANNEL CONTENT OR OTHERWISE RELATING TO
THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
INDEMNITY. Each party agrees to indemnify, defend and hold harmless the other
party and its officers, directors, employees, agents, successors and assigns
from and against any and all losses, liabilities, damages, penalties and claims
and all related costs and expenses (including reasonable attorneys' fees)
related to claims made by third parties against the indemnified party alleging
that the indemnifying party's Marks or other intellectual property infringe the
patents, copyrights, trademarks or service marks or other intellectual property
rights of such third parties. HealthChannel agrees to further indemnify, defend
and hold harmless EarthLink from and against all third party claims, causes of
action, liabilities and all associated reasonable costs and expenses relating to
any transactions directly conducted through, or the quality or nature of
products or services appearing on or provided directly through, the
HealthChannel Content or the Co-Branded Site, specifically excluding Premiere
Partners' products or services and Earthlink's products or services. Each party
agrees to promptly notify the indemnifying party in writing of any indemnifiable
claim. The indemnified party shall cooperate in all reasonable respects with the
indemnifying party and its attorneys in the investigation, trial, defense and
settlement of such claim and any appeal arising therefrom. The indemnified party
may participate in such investigation, trial, defense and settlement of such
claim and any appeal arising therefrom, through its attorneys or otherwise, at
its own cost and expense. No settlement of a claim that involves a remedy other
than the payment of money by the indemnifying party shall be entered into
without the consent of the indemnified party, which consent will not be
unreasonably withheld.
INJUNCTIVE RELIEF. The parties hereby agree and acknowledge that violation by
one party of the provisions of Sections 2.1(l) or 4 may cause irreparable harm
to the other party not adequately compensable by monetary damages. In addition
to other relief, it is agreed that each party may seek temporary and permanent
injunctive relief to prevent any actual or threatened violation of such
provisions as provided by law.
TERM, RENEWAL AND TERMINATION.
TERM. The initial term of this Agreement shall be one (1) year from the
Effective Date of this Agreement (the "Initial Term"). After the Initial Term,
this Agreement shall automatically renew (any such renewal date referred to
herein as a "Renewal Date") for separate, consecutive one (1) year terms
("Renewal Term(s)") unless written notice of termination is given by EarthLink
thirty (30) days prior to the expiration of the Initial or Renewal Term. If the
Guaranteed Referrals are not met during any Initial Term or Renewal Term(s), any
such terms will be extended until such Guaranteed Referral amount is met,
according to section 2.2(c) of this Agreement.
TERMINATION. This Agreement may be terminated by the parties as follows:
Either party may terminate this Agreement at any time in the event of a material
breach by the other party of this Agreement that remains uncured thirty (30)
days after the breaching party's receipt of written notice of the breach;
Either party may terminate this Agreement immediately if the other party is
unable to pay its debts as due, or enters into or files (or has filed or
commenced against it) a petition, arrangement, action or other proceeding
seeking relief or protection under the bankruptcy laws of the United States or
similar laws of the United States or any state of the United States; and
EITHER PARTY MAY TERMINATE THIS AGREEMENT, AT ITS OPTION, UPON THIRTY (30) DAYS
WRITTEN NOTICE IN THE EVENT THAT EITHER PARTY DISCONTINUES ITS WEBSITE. IN THE
EVENT OF TERMINATION PURSUANT TO THIS SECTION, THE PARTIES WILL HAVE NO FURTHER
OBLIGATION TO EACH OTHER FOLLOWING THE EFFECTIVE DATE OF THE TERMINATION, AND
ALL FEES PAYABLE IN ADVANCE, IF ANY, SHALL BE PRORATED AS OF THE EFFECTIVE DATE
OF THE TERMINATION, WITH APPROPRIATE REFUNDS MADE.
EFFECTS OF TERMINATION. WITHIN SEVENTY TWO (72) HOURS AFTER TERMINATION OF THIS
AGREEMENT FOR ANY REASON, EACH PARTY SHALL: (i) PURGE ALL MARKS AS USED IN
CONNECTION WITH THIS AGREEMENT FROM ANY AND ALL COMPUTER SYSTEMS, FILES, OR
STORAGE MEDIA WITHIN THEIR POSSESSION OR CONTROL; (ii) RETURN TO THE OTHER PARTY
ANY AND ALL DOCUMENTS OR OTHER MEDIA EMBODYING ANY USE OF THE OTHER PARTY'S
MARKS; AND (iii) CERTIFY TO THE OTHER PARTY IN WRITING THAT IT HAS COMPLIED WITH
THE FOREGOING OBLIGATIONS. UPON ANY TERMINATION OR OTHER EXPIRATION OF THIS
AGREEMENT, EACH OF THE RESPECTIVE LICENSES GRANTED IN SECTIONS 2.1(a), 2.1(d)
AND 2.2(a) AND ALL OTHER RIGHTS OF THE PARTIES UNDER THIS AGREEMENT SHALL
TERMINATE, EXCEPT THAT, NOTWITHSTANDING ANY OF THE FOREGOING, THE RIGHTS AND
OBLIGATIONS UNDER SECTIONS 2.1(l), 2.1(n), 2.1(p), 4, 5, 6.3, 6.4 AND 7 HEREIN
SHALL CONTINUE IN FULL FORCE AND EFFECT.
NO DAMAGES OR INDEMNIFICATION FOR TERMINATION. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY COSTS OR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGES, OR FOR INDEMNIFICATION, SOLELY ON ACCOUNT OF THE LAWFUL
TERMINATION OF THIS AGREEMENT, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES.
GENERAL PROVISIONS.
INDEPENDENT CONTRACTORS. THE PARTIES TO THIS AGREEMENT ARE INDEPENDENT PARTIES
AND NOTHING HEREIN SHALL BE CONSTRUED AS CREATING AN EMPLOYMENT RELATIONSHIP
BETWEEN THE PARTIES. NEITHER PARTY IS AN AGENT OR REPRESENTATIVE OF THE OTHER
PARTY AND NEITHER PARTY SHALL HAVE ANY RIGHT, POWER OR AUTHORITY TO ENTER INTO
ANY AGREEMENT FOR OR ON BEHALF OF, OR INCUR ANY OBLIGATION OR LIABILITY, OR TO
OTHERWISE BIND, THE OTHER PARTY. THE AGREEMENT SHALL NOT BE INTERPRETED OR
CONSTRUED TO CREATE AN ASSOCIATION, AGENCY, JOINT VENTURE OR PARTNERSHIP BETWEEN
THE PARTIES OR TO IMPOSE ANY LIABILITY ATTRIBUTABLE TO SUCH A RELATIONSHIP UPON
EITHER PARTY.
ENTIRE AGREEMENT. THE AGREEMENT, INCLUDING ANY EXHIBITS ATTACHED HERETO,
CONSTITUTES THE ENTIRE UNDERSTANDING AND AGREEMENT WITH RESPECT TO ITS SUBJECT
MATTER, AND SUPERSEDES ANY AND ALL PRIOR OR CONTEMPORANEOUS REPRESENTATIONS,
UNDERSTANDINGS AND AGREEMENTS WHETHER ORAL OR WRITTEN BETWEEN THE PARTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, ALL OF WHICH ARE MERGED IN
THIS AGREEMENT.
SEVERABILITY OF PROVISIONS. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS
FOUND TO BE INVALID OR UNENFORCEABLE PURSUANT TO JUDICIAL DECREE OR DECISION,
THE REMAINDER OF THIS AGREEMENT SHALL REMAIN VALID AND ENFORCEABLE ACCORDING TO
ITS TERMS.
ASSIGNMENT. THE AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER MAY NOT,
WHETHER VOLUNTARILY OR INVOLUNTARILY, DIRECTLY OR INDIRECTLY, BE ASSIGNED,
SUBLICENSED, SOLD OR OTHERWISE TRANSFERRED (INCLUDING BY OPERATION OF LAW) BY
HEALTHCHANNEL, INCLUDING, WITHOUT LIMITATION, TO ANY SUCCESSOR-IN-INTEREST TO
ANY OF HEALTHCHANNEL'S ASSETS, WITHOUT THE PRIOR WRITTEN CONSENT OF EARTHLINK,
WHICH CONSENT SHALL BE GIVEN OR NOT IN EARTHLINK'S SOLE DISCRETION. ANY
ASSIGNMENT IN VIOLATION OF THE TERMS HEREOF SHALL BE VOID AND OF NO FORCE OR
EFFECT. ASSIGNMENT TO AN AFFILIATE OF HEALTHCHANNEL WILL NOT BE PROHIBITED BY
THIS CLAUSE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THIS
AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF EARTHLINK HEREUNDER, SHALL BE
AUTOMATICALLY ASSIGNED TO AND ASSUMED BY WWW HOLDINGS, INC. (TO BE RENAMED
EARTHLINK
NETWORK, INC.") UPON THE MERGER OF EARTHLINK AND MINDSPRING ENTERPRISES, INC.
INTO WWW HOLDINGS, INC. AND HEALTHCHANNEL SHALL HAVE NO RIGHT TO TERMINATE
THIS AGREEMENT AS A RESULT OF SUCH ASSIGNMENT AND ASSUMPTION.
GOVERNING LAW; JURISDICTION; ATTORNEYS' FEES. THE AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF CALIFORNIA WITHOUT GIVING EFFECT TO APPLICABLE CONFLICT OF LAWS
PROVISIONS. ALL ACTIONS WITH RESPECT OF THIS AGREEMENT SHALL BE BROUGHT IN THE
FEDERAL AND STATE COURTS HAVING JURISDICTION WITHIN LOS ANGELES, CALIFORNIA, AND
THE PARTIES EXPRESSLY CONSENT TO THE PERSONAL JURISDICTION OF SUCH COURTS. IN
THE EVENT ANY LITIGATION OR OTHER PROCEEDING IS BROUGHT BY EITHER PARTY IN
CONNECTION WITH THIS AGREEMENT, THE PREVAILING PARTY IN SUCH LITIGATION OR OTHER
PROCEEDING SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ALL COSTS,
ATTORNEYS' FEES AND OTHER EXPENSES INCURRED BY SUCH PREVAILING PARTY IN SUCH
LITIGATION.
NOTICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL NOTICES REQUIRED
HEREUNDER SHALL BE IN WRITING AND SHALL BE GIVEN BY PERSONAL DELIVERY, OVERNIGHT
COURIER SERVICE, OR FIRST CLASS MAIL POSTAGE PREPAID, TO THE PARTIES AT THEIR
RESPECTIVE ADDRESSES SET FORTH BELOW IN THIS SECTION 7.6, OR AT SUCH OTHER
ADDRESS(ES) AS SHALL BE SPECIFIED IN WRITING BY SUCH PARTY TO THE OTHER PARTY IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS SECTION 7.6. ALL NOTICES SHALL
BE DEEMED EFFECTIVE UPON PERSONAL DELIVERY, OR THREE (3) BUSINESS DAYS FOLLOWING
DEPOSIT WITH ANY OVERNIGHT COURIER SERVICE OR WITH THE U.S. POSTAL SYSTEM, FIRST
CLASS POSTAGE ATTACHED, IN ACCORDANCE WITH THIS SECTION 7.6. NOTICES SHALL BE
SENT AS FOLLOWS:
IF TO HEALTHCHANNEL: XXXXXX XXXXXXXX, C.O.O.
XXXXXXXXXXXXXXXX.XXX, INC
0000 X. XXXX XXXXXXX
XXXXX 000
XXXXXXX XXXXX, XX 00000
WITH A COPY TO: XXXXX XXXXXXX
XXXXXXX & BEAM
TWO XXXXXXX XXXXX
XXXXX 000
XXXXXX, XX 00000
IF TO EARTHLINK: EARTHLINK NETWORK, INC.
0000 XXX XXXX XXXXX
XXXXXXXX, XXXXXXXXXX 00000
ATTN: DIRECTOR OF LEGAL AFFAIRS
WITH COPIES TO: XXXXXX XXXXXXXXX, V.P. BUSINESS DEVELOPMENT
XXXXXX XXXXXXX, V.P. BUSINESS AFFAIRS
EARTHLINK NETWORK, INC.
0000 XXX XXXX XXXXX
XXXXXXXX, XXXXXXXXXX 00000
NON-SOLICITATION. During the Term of this Agreement and for a period of twelve
(12) months following the termination or expiration of this Agreement, neither
party may directly or indirectly, solicit, divert or hire away, or attempt to
solicit, divert or hire away any person employed by the other party with whom
such party had regular contact with during the course of its performance under
this Agreement, unless such person's employment has been terminated for at least
six (6) months or unless the other party gives its prior consent to such hiring,
such consent not to be unreasonably withheld. Notwithstanding the foregoing,
nothing herein shall prevent either party from considering for employment or
hiring any individual, whether or not an employee of the other party, who has
responded to a general solicitation for employment from either party in a
newspaper announcement or other public solicitation.
WAIVER. No waiver of any provision of this Agreement, or any rights or
obligations of either party under this Agreement, shall be effective, except
pursuant to a written instrument signed by the party or parties waiving
compliance, and any such waiver shall be effective only in the specific instance
and for the specific purpose stated in such writing.
HEADINGS. The section and paragraph headings used in this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
AMENDMENT. The terms and conditions of this Agreement may not be modified or
amended other than by a writing signed by both parties.
SPRINT INTELLECTUAL PROPERTY RIGHTS. EarthLink markets its Internet access
services under the EarthLink/Sprint brand. Therefore, both EarthLink and Sprint
Marks are likely to appear on any Web page that includes an EarthLink/Sprint
brand. To the extent that such Sprint brands or Marks are used, HealthChannel
acknowledges and agrees that Sprint is a third party beneficiary hereunder and
has the right to enforce any provision of this Agreement that relates to any
intellectual property or Marks of EarthLink or Sprint.
FORCE MAJEURE. Either party shall be excused from any delay or failure in
performance hereunder caused by reason of any occurrence or contingency beyond
its reasonable control, including but not limited to, acts of God, earthquake,
labor disputes and strikes, riots, war, common carrier interruptions, breakdown
in facilities and governmental requirements. Notwithstanding the foregoing, a
change in economic conditions or technology shall not be deemed a Force Majeure
event. The obligations and rights of the party so excused shall be extended on a
day-to-day basis for the period of time equal to that of the underlying cause of
the delay.
EXECUTION IN COUNTERPARTS AND BY FACSIMILE. THE AGREEMENT MAY BE EXECUTED IN
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH TAKEN
TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. THE AGREEMENT MAY BE
EXECUTED AND DELIVERED BY FACSIMILE AND THE PARTIES AGREE THAT SUCH FACSIMILE
EXECUTION AND DELIVERY SHALL HAVE THE SAME FORCE AND EFFECT AS DELIVERY OF AN
ORIGINAL DOCUMENT WITH ORIGINAL SIGNATURES, AND THAT EACH PARTY MAY USE SUCH
FACSIMILE SIGNATURES AS EVIDENCE OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT
BY ALL PARTIES TO THE SAME EXTENT THAT AN ORIGINAL SIGNATURE COULD BE USED.
IN WITNESS WHEREOF, THE PARTIES HAVE DULY EXECUTED AND DELIVERED THIS
AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH ABOVE.
EARTHLINK NETWORK, INC. XXXXXXXXXXXXX.XXX
BY: /S/ XXXXXX XXXXXXXXX BY: /S/ XXXXXX XXXXXXXX
-------------------- -------------------
XXXXXX XXXXXXXXX XXXXXX XXXXXXXX, C.O.O.
V.P. BUSINESS DEVELOPMENT XXXXXXXXXXXXXXXX.XXX, INC.
EARTHLINK NETWORK, INC. 0000 X. XXXXX XXXXXXX #000
0000 XXX XXXX XXXXX XXXXXXX XXXXX, XX 00000
XXXXXXXX, XXXXXXXXXX 00000 PHONE: (000) 000.0000
PHONE: (000) 000-0000 FAX: (000)000.0000
FAX: (000) 000-0000
EXHIBIT A
EARTHLINK MARKS
NOTE: THIS EXHIBIT A MAY BE AMENDED FROM TIME TO TIME AS REQUIRED BY EARTHLINK
AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
TRADEMARKS, TRADE NAMES, LOGOS AND OTHER PRODUCT AND PROPRIETARY IDENTIFIERS.
EarthLink Network-Registered Tradmark-
EarthLink Network TotalAccess-TM-
EarthLink Network-Registered Tradmark- is a registered trademark of EarthLink
Network, Inc.
EarthLink Network TotalAccess-TM- is a trademark of EarthLink Network, Inc.
EarthLink Sprint-SM- and the EarthLink Sprint logo are registered trademarks of
EarthLink Network, Inc. and Sprint Corporation
EXHIBIT B
HEALTHCHANNEL MARKS
NOTE: THIS EXHIBIT B MAY BE AMENDED FROM TIME TO TIME AS REQUIRED BY
HEALTHCHANNEL AND ALL SUCH AMENDMENTS SHALL BE INCORPORATED HEREIN.
TRADEMARKS, TRADE NAMES, LOGOS AND OTHER PRODUCT AND PROPRIETARY IDENTIFIERS.
Thehealthchannel.com-TM- The Health Channel.com-TM-
The Health Channel.com-TM-
Answers. Where and when you want them-TM-
RxDirect-TM-
RxDirect@thehealthchannel.com-TM-
RxDirect.com-TM- House Calls-TM-
Digital City Hospital-TM- The Health Metropolis-TM-
The Medicine Chest-TM- Doctors Exchange-TM-
The Medicine Bag-TM-
EXHIBIT C
SERVICE SPECIFICATIONS
1. SERVICE INTERRUPTIONS. For the purposes of this Agreement, the
following issues are defined as "Service Interruptions":
a) "Complete Outage". means the Co-Branded Site is not reachable by
EarthLink Members for fifteen (15) minutes or more; provided however, that
HealthChannel may perform major system upgrades and/or service maintenance on a
scheduled and pre-announced basis which may put the Co-Branded Site down for up
to eight (8) hours.
b) "Partial Outage". means the Co-Branded Site is reachable by less than
ninety percent (90%) of EarthLink Members, or the response time for a 50K HTML
page is greater than thirty (30) seconds.
c) "URL Errors". means any errors in URL's, missing pages, or typos in
URLs including any HealthChannel error that causes EarthLink to present an
incorrect URL on the EarthLink Site, or which causes EarthLink to attempt to
harvest information from an incorrect URL.
d) "Data Handling Errors". means any incorrect handling of user data, such
as where an end user registers for a service that is then not delivered in the
manner promoted to the end user.
2. RESPONSE TEAM. HealthChannel will at all times during the Term, and any
Renewal Term(s), and at HealthChannel's sole cost and expense, maintain, on a
twenty-four (24) hour, seven (7) days a week basis, a contact person responsible
for monitoring the Co-Branded Site. The contact person will be available to
EarthLink on a twenty-four (24) hour, seven (7) days a week basis by phone and
email for consultation on Service Interruption issues and to assist in the
restoration of service following a Service Interruption. HealthChannel will
provide EarthLink with the names and phone numbers and email addresses of its
contact person, and ensure that any changes to the contact information is
provided to EarthLink.
3. ESCALATION PROCEDURES.
a) In the event of a Complete Outage, the HealthChannel contact person
will contact EarthLink as soon as possible following HealthChannel's
identification of a Service Interruption and will notify EarthLink of the nature
of the Service Interruption and the estimated time of resumption of service.
HealthChannel's contact person will keep the EarthLink notified of progress in
resolving the Service Interruption. If the Service Interruption is estimated to
last longer than thirty (30) minutes, EarthLink will have the option, at
EarthLink's sole discretion, of:
i) removing any links or references to the Co-Branded
Site from the EarthLink Site until such time that the Service
Interruption ceases; or
ii) to redirect any links to any web address experiencing
a Service Interruption, to an explanatory page of EarthLink's
choosing. EarthLink may publish such explanatory page, and may
choose in its sole discretion the wording of any explanatory
messages on such page.
In the event HealthChannel experiences more than two (2) Complete Outages in any
six (6) month period, EarthLink may terminate the Agreement immediately upon
written notice to HealthChannel.
b) Partial Outage. Shall be managed by HealthChannel in all respects
identically to a Complete Outage, except that EarthLink will not have the right
to remove any link or reference to the Co-Branded Site.
In the event HealthChannel experiences more than four (4) Partial Outages in any
six (6) month period, EarthLink may terminate the Agreement immediately upon
written notice to HealthChannel.
c) URL Errors and Data Handling Errors. EarthLink will contact
HealthChannel with regards to any URL Error or Data Handling Error, and
HealthChannel will work in a commercially reasonable manner to repair such
Service
Interruption. EarthLink may remove any links or references on the EarthLink
Site to the Co-Branded Site until such time as the Service Interruption is
repaired to EarthLink's reasonable satisfaction. If the URL Error or Data
Handling Error is not corrected within seventy two (72) hours of first
notification, EarthLink would have the right to permanently remove any links
or references on the EarthLink Site to the Co-Branded Site.
4. HEALTHCHANNEL NOTICE. HealthChannel will give EarthLink no less than
fifteen (15) days prior notice of any changes to its URLs, harvest
specifications, or any of its processes and procedures that will affect the
manner in which EarthLink harvests information off of the Co-Branded Site.
