TELEVISIONS, INC
WORLD WIDE WEB SERVER AGREEMENT
AGREEMENT made as of March 6, 1996, by and between TeleVisions, Inc., a
Massachusetts corporation located at 00 Xxxx Xxxxxx Xxxxx #00, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("TVI"), and Xxxxxxxxxxx.xxx, Limited, a corporation
organized under the laws of the Commonwealth of the Bahamas, with a principle
place of business at Continental Xxxxxxxx 0xx Xxxxx, Xxxxxx Xxxxxx, P.O. Box
HM 2903, Xxxxxxxx, XX LX, Bermuda ("Client").
WHEREAS, Client desires to obtain software and receive consulting
services to develop a World Wide Web ("WWW") server, for the purpose of
transmitting information related to its business over the Internet.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, as set forth below, the parties
agree as follows:
1. DEFINITIONS. The terms set forth below shall in this Agreement,
have the following respective meanings:
(a) "Access Log Data" means data collected by WWW Server in normal
operation, consisting of IP addresses, document names, times of
viewer access to documents ("hits").
(b) "CGI Script" means common gateway interface script.
(c) "Client" means Xxxxxxxxxxx.xxx Limited
(c1) "Client Business" means services of providing a directory and format
for subscribing physician to communicate with members of the public
on the Internet and for members of the public to establish medical
support groups among themselves for communication by e-mail,
utilizing the WWW Server Agreement, in a confidential, general
manner on health issues, and including the related services of
advertising for medical equipment suppliers, and access to publicly
available medical literature, and other related content services and
features for use on the Server, as requested by Client and in
compliance with the terms contained in this Agreement.
(c2) "Client Information" means any information provided to TVI by Client
or information transmitted by visitor or Client on the WWW Server,
whether or not the content, purpose or use of such information is
permitted by this Agreement.
(d) "DAT" means, 4mm digital audio tape.
(e) "digital content" means digital images, audio, video, text; not
including CGI Scripts, Access Log Data, user input data.
(f) "digital form" means, as to textual content, in Microsoft Word, Word
Perfect, Adobe Pagemaker, Adobe Illustrator, or Quark Express; as to
images, provided in TIFF or GIF form; and as to hard copy printout,
provided for layout information.
(g) "domain name" means a locatable address on the Internet.
(h) "forms interface" means an interface viewed by the viewer software
that allows user input (e.g., user demographics). The forms
interface is interpreted via CGI scripts.
(i) "FTP" means File Transfer Protocol, a method of transferring files
from one computer to another computer via the Internet.
(j) "GIF" means CompuServe's graphics interchange file format.
(k) "HTML" means, Hypertext Markup Language.
(1) "HTML Hit" means, the delivery of a single HTML document component
to a client visitor.
(m) "HTML Link (link)" means, a hypertext link between two WWW
documents.
(n) "HTTP" means hypertext transmission protocol.
(o) "Internet" means, the global computer network commonly referred to
as the internet.
(p) "IP address" means unique numeric identifier associated with a
computer attached to the Internet (IP: Internet Protocol).
(q) "TIFF" means, tagged image file format.
(r) "TVI" means, TeleVisions, Inc.
(s) "TVI Software" shall have the meaning set forth in Paragraph 3
hereof.
(t) "user input data" means, data collected via user input (forms) and
CGI scripts.
(u) "visitor" means anyone who accesses any Client Information utilizing
the Server, as measured by Access Log Data, and shall also include
anyone or entity who provides their name to Client for the purpose
of participating in any manner in the services which are part of the
Client Business.
(v) "VRML" means virtual reality markup language.
(w) "WWW" means, world-wide web, a hypertext-based distributed
information system.
(x) "WWW Document" means, text, graphics, audio, video combined
singularly or into a composite viewable component existing as a
single screen (player) on a WWW client viewer.
(y) "WWW Server" means a HTTP-compliant software application for the
delivery of documents.
2. Client WWW Server.
(a) TVI shall construct, install and configure a WWW Server for
Client Information for use only for Client Business in compliance with the
terms and conditions of this Agreement, which server will reside on computer
hardware and Internet connection provided by Client. Subject to the terms
contained in Paragraph 3 below, the Server shall include the following
features and services:
(i) A Client "Home Page" on the Internet which will provide a
directory and format for subscribing physician to communicate
with members of the public on the Internet and for members of
the public to establish medical support groups among
themselves for communication by e-mail, product offerings,
sales literature, and contact methods.
(ii) An interactive interface for providing comments and
suggestions about the WWW Server to the Client staff. This
feedback information will be captured and stored on the server
for examination by Client. This software would replace the
current "mail-to" technology and works in conjunction with all
browser types.
(iii)An automated statistics generation package. Statistics
regarding the number of documents downloaded, visitor domain
names, and the most popular documents, for each Journal Club,
Support Groups, Drug Information and other sub categories will
be updated automatically every night. Configuration shall
include the installation and configuration of scripts to
handle automated updates, and data archiving.
(iv) Automated security monitoring software (MD5 Document Checksum
Software). This software will generate checksums of each
document on the WWW Server. Every 15 minutes the software
will examine the WWW Server documents to check for any
unauthorized document modification. If any mismatches are
detected (i.e. unauthorized document changes), a Client
operator is automatically sent a page.
(v) An administration area on the WWW Server which will contain
WWW Server statistics, visitor comments, information requests
and all other data generated by the Server. The
administration area will be protected by password. The
password will be provided to Client for access purposes.
(vi) A staging server, on hardware provided by Client, for the
development and legal marketing approval by Client of new WWW
Server content and features.
(vii)Browser "Sniffer" Software. This software detects a visitor's
browser type and routes the user to different content trees
based on the features that the browser supports. Initially,
this software will be configured to route known browsers which
support HTML 3.0 tables to a special document tree with table
support. The browsers which are routed to the HTML 3.0
document tree can be configured and changed.
(viii)HTML Pre-Processor Software. This software permits
embedded preprocessor commands in HTML documents. The
software operates on a master document tree and exports
multiple document trees based on the specified tags.
This software will be used in phase I to create three
content trees. One will adhere to the HTML 2.0
specification and another will adhere to the HTML 3.0
specification. Finally, there will be a text only
content tree.
(ix) WebPager Software. This software monitors a WWW site for
connectivity, disk space usage, and CPU load. A Client
operator is immediately paged upon the detection of any
problems.
(x) Installation of a searchable database. The searchable
database will create indexes of the content nightly and
contain a graphic forms interface directly to the Server to
facilitate advanced searching.
(xii)Customer Information/Order Forms (user requests are accepted
on server, encrypted, and sent to the staging server. No
information on requests are stored on the production server.
(xiii)Subscription form for e-mailed Journal Club/Support
Group topic service.
(xvi) Literature Search Form.
(xv) Physician subscriber recruitment advertising Form
(xvi)Automated e-mail to physician specialists and medical services
or equipment supplier advertisers.
(b) Additional phases with new functionality and content shall be listed
in order of priority and upon terms and conditions to be mutually agreed upon
between TVI and Client. These phases will then be incorporated as the Client
Web Server matures.
3. TVI SOFTWARE.
(a) TVI has developed proprietary software and software tools which
are contained in or used with the Server (such software and software tools and
all translations, alterations, adaptions or derivatives of same prepared or
developed by TVI are, collectively, the "TVI Software"). Client acknowledges
and understands that TVI retains all right, title and interest in and to the
TVI Software contained in or used with the WWW Server, and in all
translations, alterations, adaptations, or derivatives of the TVI Software,
and all physical material in which any such TVI Software is embodied, whether
tangible or intangible property rights. Client by execution and performance
of this Agreement, does not receive any rights, title or interest in the TVI
Software, except as expressly set forth in Paragraph 3(b). Notwithstanding
the foregoing, Client agrees to execute and deliver to TVI an assignment of
all Client's right, title, and interest in and to any patent, copyright, trade
secret or other proprietary right in any TVI Software, including, without
limitation, any software and tools, or any component of same, developed by TVI
in connection with TVI's performance under this Agreement. Client hereby
irrevocably appoints TVI as its attorney-in-fact to execute and deliver on
behalf of Client such assignments in the event Client is unable or unwilling
to execute and deliver same following request by TVI. Client shall not
modify, alter, make derivatives from, reverse engineer, decompile or
disassemble any portion of the TVI Software, nor use the TVI Software in any
manner except on the Server, and always subject to the terms and conditions of
this Agreement.
(b) Subject to the terms and conditions of this Agreement, TVI
hereby grants to the Client, and Client accepts, a nontransferable site
license for TVI Software including, without limitation, all tools developed
under this Agreement, for internal use solely by the Client, during the term
hereof and, for such tools which are developed under this Agreement, rather
than preexisting TVI Software, after the term hereof. Notwithstanding any
provision of this Agreement, subject to the foregoing site license TVI retains
exclusive property rights to all ideas, writings, inventions, products,
methods, techniques, discoveries, improvements, and technical or business
innovations developed by TVI in the course of performing its obligations under
this Agreement, and to all trade secrets, copyrights, patents and other
intellectual property rights derived therefrom.
4. FEES. (a) As compensation for the services to be provided by TVI to
Client herein, Client shall pay TVI the fees in the amounts set forth in
Schedule A attached hereto and made a part hereof. Invoice procedure and the
manner of payment are set forth in Schedule B attached hereto and made a part
hereof.
5. CLIENT INFORMATION. Client retains ownership of all digital content
contained in the Client Information, and hard-copy materials containing the
Client Information. Upon termination of this Agreement, TVI will return on
DAT tape or a Syquest cartridge, all digital content of Client Information
provided by Client.
6. CONFIDENTIAL INFORMATION. (a) In connection with the performance of
its obligations under this Agreement for Client, it is understood that the
Client may disclose to TVI, or TVI may have access to, information, data and
material concerning the Client's business and operations, Client's plans,
programs, Internet connection, systems, drawings, specifications, marketing,
distribution, methods, technology, materials, equipment, and information
concerning Client Business, all of which is confidential, proprietary and
secret ("Confidential Information"). Notwithstanding the foregoing,
Confidential Information shall not include information or material which
either (i) was already known to TVI free of any obligation to keep it
confidential at the time of its disclosure; or (ii) is or becomes publicly
known through no wrongful act or TVI; or (iii) is rightfully received from a
third person having no direct or indirect secrecy or confidentiality
obligation to Client with respect to such information or material; or (iv) is
independently developed by an employee, agent or contractor of TVI not
associated with the performance of TVI services hereunder and who did not have
any direct or indirect access to the information or material; or (v) is
disclosed to a third person by Client without similar restrictions on such
third person's rights; or (vi) is expressly approved by written authorization
of Client in advance for release by TVI; or (vii) any Client Information
published by Client on the WWW Server.
(b) TVI shall not disclose any Confidential Information to any
third party, nor shall TVI use any Confidential Information for any purpose
other than the performance of TVI's services for the Client. Subject to the
exclusion terms contained in the last sentence of subparagraph 6(a), all
materials furnished to TVI by the Client shall be considered Confidential
Information, shall remain the property of the Client and shall be returned to
the Client promptly upon the termination of this Agreement or at the Client's
earlier request. TVI shall not copy, reproduce or appropriate for its benefit
(other than for the performance of TVI's obligations under this Agreement) or
the benefit of any third party, any of the Confidential Information. Without
limiting the generality of the foregoing, TVI shall not use on behalf of any
other TVI client or for any other purpose other than its performance
hereunder, or disclose to any such other TVI client in the course of
performing Internet services for any other client, any Confidential
Information relating to Client Business provided by Client to TVI hereunder.
7. CLIENT REPRESENTATIONS. Client warrants, covenants and represents
to TVI that (i) it is a corporation organized and in good standing under the
laws of the Commonwealth of the Bahamas; (ii) Client has the absolute right to
use and to provide to TVI for the purposes contemplated by this Agreement, all
materials (digital content) provided at any time by Client to TVI; and (iii)
Client has obtained all permits, consents, licenses, or approvals required by
any governmental or other authority under any jurisdiction or location in
order for Client to conduct the Client Business.
8. COMPLIANCE WITH LEGAL REQUIREMENTS. During the term of this
Agreement and for so long thereafter as Client, in accordance with the terms
contained in Paragraph 3 hereof, uses any TVI Software, Client covenants and
agrees that Client at its sole cost and expense, will promptly comply with all
requirements of law, regulations, statutes, rules which in any manner apply to
the Client Business and will procure and maintain (and require visitors, if
applicable, to maintain), all permits, licenses and other authorizations
required in any location worldwide for its or any visitors actual use from
time to time of the WWW Server for Client Business.
9. ACCEPTABLE USE POLICY.
(a) TVI is not responsible for unacceptable use by Client or
visitors. Client and visitors are bound by acceptable use policy of the
Internet. TVI reserves the right to terminate this Agreement immediately upon
any Client or visitor unacceptable use based upon Internet acceptable use
policy.
(b) Client shall be wholly responsible for determining the
applicable Internet use policies governing Client's specific use of the
Server. Client shall be solely responsible for its compliance and visitors
complying with such Internet use policy. This shall include but is not
limited to the United States National Science Foundation Appropriate Use
Policy and General Guidelines for USENET Etiquette.
(c) The following items, without limiting the generality of any
provision of this Paragraph 9, are considered unacceptable use for content on
the WWW Server:
(i) Threatening, obscene, or harassing materials;
(ii) Pornographic/Adult materials; and
(iii) Using the WWW Server for illegal activity.
(d) TVI will review alleged violations of this acceptable use
policy on a case-by-case basis. TVI may terminate this Agreement upon clear
violations of this policy which are not promptly remedied by Client.
(e) Client agrees to notify all subscribers, visitors and
advertisers of acceptable use policies. This will be done to advertisers in
the authoring process.
10. INSURANCE. Client shall use its best efforts to obtain prior to
delivery to Client of the completed WWW Server, but in any event, by June 1,
1996, and maintain during the term of this Agreement and for so long
thereafter as Client, in accordance with the terms contained in Paragraph 3
hereof, uses any TVI Software, comprehensive general liability insurance for
an amount of not less than $2,000,000.00 combined single limit on an
occurrence basis for bodily injury and property damage, including without
limitation, products liability and contractual liability, issued by an
insurance company acceptable to TVI qualified in Massachusetts to issue
policies and carrying an A.M. Best rating of at least A+. The insurance shall
name TVI as an additional insured, shall contain a standard cross-liability
endorsement, shall continue in full force and effect for at least thirty days
after TVI receives notice of cancellation, termination or material alteration.
The insurance policy shall be primary without contribution from any other
insurance carried by TVI. Client shall deliver to TVI a certificate for such
insurance complying with the requirements herein prior to June 1, 1996, and
for renewals thereof at least 20 days prior to the lapse of any such policy.
Notwithstanding the foregoing, Client shall obtain and maintain such other
insurance and in such amounts as TVI may require during the term of this
Agreement.
11. INDEMNITY. Client agrees to indemnify and hold harmless TVI, its
directors, officers, employees, agents and affiliates, from and against any
loss, cost and expense (including reasonable attorneys fees), damages and
liability arising directly or indirectly from any claim (whether groundless or
otherwise) or threatened claim, lawsuits, damages, fines and penalties, and
all expenses and attorneys' fees in connection with same arising directly or
indirectly from: (i) the services performed by TVI hereunder, unless caused
solely by the negligence or willful misconduct of TVI; (ii) the Client
Business; (iii) any use or alleged use of the WWW Server by Client or any
visitor, or activities by and among any visitors or any visitor and Client,
whether occurring by communication using the WWW Server or otherwise; (iv) any
claim or allegation that the materials (digital content) provided by Client to
TVI, or any portion thereof, infringe upon any property rights (whether
copyright, trademark, trade secrets, or otherwise) of a third party; (v) any
claim or allegation that Client or TVI or any visitor has transmitted or
exported data in violation of any US Export Administration Acts by its use of
the WWW Server; and (vi) any claim or allegation that there has been an actual
or alleged wiretap or interception of data by third parties. In the event of
any such claim or threatened claim, wherever initiated, Client agrees to
defend TVI against such claim or threatened claim, at Client's sole cost and
expense, using counsel approved by Client.
12. LIMIT OF LIABILITY.
(a) Client shall be solely responsible for the Client content
transmitted by the Server provided by TVI to Client, including, without
limitation, the Client Information and any use or alleged use made of same by
anyone wherever located. TVI assumes no responsibility for infringement of
any third party intellectual property rights in the process of establishing
the Server based in any manner upon the use of Client Information, or for
unauthorized duplication as a result of its performance under this Agreement.
TVI shall also not be liable either in contract or in tort, for protection
from unauthorized access of Client's data transmissions or for unauthorized
access to or alteration, theft or destruction of Client's data files,
programs, procedures or information through accident, fraudulent means or
devices, or any other method by anyone. Client shall bear all risk of loss
of, or destruction of, any Client Information, during its transmission on, or
use of, the WWW Server and the Internet.
(b) Neither this Agreement nor the performance of services
hereunder by TVI shall in no manner be deemed an authorization or endorsement
by TVI of any use of the Server by Client or visitors, whether such use is
expressly permitted hereby or otherwise.
(c) Client understands and agrees that the Server and the
facilities provided thereby are not necessarily private or confidential, and
TVI shall not be liable in any manner for any security or access breaches
involving the WWW Server, Client Information or use thereof.
(d) IN NO EVENT SHALL TVI BE LIABLE TO CLIENT FOR ANY DAMAGES
RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF TVI IN THE DELIVERY OF
THE WWW SERVER OR IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. IN NO
EVENT SHALL TVI BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
PERFORMANCE OR BREACH HEREOF, EVEN IF TVI HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF. TVI'S LIABILITY TO CLIENT HEREUNDER, IF ANY, SHALL IN NO EVENT
EXCEED THE TOTAL OF THE AMOUNTS PAID TO TVI HEREUNDER BY CLIENT.
(e) IN NO EVENT SHALL TVI BE LIABLE TO CLIENT FOR ANY DAMAGES
RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF TVI IN THE DELIVERY OF
THE WWW SERVER OR IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT.
13. GOVERNING LAW AND CHOICE OF VENUE. This Agreement, in every
respect, is governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, except any choice of law principles of
Massachusetts that may direct the interpretation or enforcement of this
Agreement to the law of any other jurisdiction, notwithstanding that a party
hereto are or may be a resident of another jurisdiction. The parties agree
that any action relating to or arising out of this Agreement or the
transactions contemplated hereby shall be brought in the state or federal
courts of Middlesex County, Massachusetts and that the courts of that county
shall be the sole venue for such actions and Client waives any defense that
Middlesex County, Massachusetts, is an inconvenient or improper venue. Client
hereby submits to the jurisdiction of the state or federal courts of Middlesex
County, Massachusetts and expressly agrees that service of process for any
such action shall be deemed satisfied by service by certified mail return
receipt requested, postage prepaid, to Client at its address set forth below
its signature below. Client waives any defenses that such service is
insufficient or improper or that such court does not have proper jurisdiction
over Client.
14. AGENT. Client agrees prior to delivery of Server, but in any
event prior to June 1, 1996, to execute and deliver to The Prentice Hall
Corporation System, Inc. ("PHCS") the Appointment of Agent Under Agreement, in
the form hereto as attached as Exhibit A and made part hereof, together with
the fee required thereunder. Client agrees to extend such agency for such
term as required by TVI for so long as Client continues to use any TVI
Software.
15. PUBLICITY. Client hereby permits TVI to publicly disclose that
Client uses TVI services subject to approval of the Client. TVI hereby
permits Client to publicly disclose that Client uses TVI Services.
Notwithstanding the foregoing, each of TVI and Client agree to maintain this
Agreement in confidence, not discuss its contents nor provide a copy of this
Agreement to any third party other than its legal and financial advisors,
except with the prior written consent of the other party.
16. TERMINATION. (a) Either party may terminate this Agreement without
cause after one year from the date hereof, upon sixty (60) days advance
notice. In addition, either party may terminate this Agreement at any time
for cause or breach of the terms of this Agreement, upon fourteen (14) days
notice of default and the failure to cure such default within such fourteen
(14) day period. Upon termination, all rights and remedies of either party
arising from any defaults shall remain in effect and survive any termination.
In the event of termination by Client for TVI default, TVI agrees to refund a
portion of the fees paid by Client under Paragraph 2 of Schedule A for the
month of termination on a pro rated basis. (b) In addition, TVI may terminate
this Agreement effectively immediately, if Client has not obtained the
insurance naming TVI as an additional insured and otherwise complying with the
insurance coverage provisions of Paragraph 10 hereof, prior to delivery to
Client of the completed Server, but in any event, by June 1, 1996. In the
event of such termination, the provisions of Paragraph 17 shall apply such
that, without limiting the generality of the foregoing, the provisions of
Paragraph 3 shall survive such termination.
17. OBLIGATIONS ON TERMINATION/EXPIRATION. Upon termination, all rights
and remedies of either party arising from any defaults shall remain in effect
and survive any termination. The provisions of all Paragraphs except for
Paragraphs 1, 2, 15, 16, and 18 shall survive any termination of this
Agreement.
18. NOTICES. Any notice in connection with this Agreement shall be in
writing and will be deemed duly given, upon delivery, in person or by first
class mail, or by facsimile (with a copy by one of the other foregoing
methods), addressed to the respective party at the address set forth below its
name, or to such other addresses as the parties may give each other in writing
from time to time.
19. INDEPENDENT CONTRACTORS. The parties agree and acknowledge that
they are operating as independent contractors and that, except pursuant to the
terms contained in Paragraph 14, nothing in this Agreement shall be construed
as granting any party the authority to bind the other party in any manner
whatsoever.
20. DELAY OR OMISSIONS. No delay or omission in exercising any right,
power, or remedy of either party hereto, upon any breach or default of the
other party hereto, shall impair any such right, power or remedy, nor shall it
be construed to be a waiver of any such breach or default, or any acquiescence
therein, or of or in any similar breach or default thereafter occurring. To
be effective, any waiver, consent or approval of any kind on the part of
either party hereto of any breach or default under this Agreement, or any
waiver of any provision of this Agreement, must be in writing. Unless
otherwise specified in this Agreement, all remedies of a party for a breach of
this Agreement shall be cumulative.
21. MISCELLANEOUS. This Agreement contains the entire Agreement between
the parties, and no other agreement (verbal or written) concerning the subject
matter hereof exists between the parties. This Agreement may be amended only
by means of a writing signed by both parties. Client acknowledges that it has
reviewed the terms of this Agreement and has had the opportunity prior to
signing this agreement, to have its attorney review the agreement. If any
provision of this Agreement is held by a court of competent jurisdiction to be
illegal or invalid, the remaining provisions will not be affected, and the
rights and obligations of the parties will be construed and enforced as if
this Agreement did not contain the invalid or illegal provision. This
Agreement may not be assigned in whole or in part by either party without the
express prior written consent of the other party, which consent may be
withheld or denied in its sole discretion; provided, however, that in
connection with an acquisition of all or substantially all of the capital
stock or assets of Client, TVI hereby consents to an assignment by Client of
this Agreement to any company domiciled in the United States whose capital
stock is traded publicly on a national stock exchange in the United States, or
an affiliate of such company.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
in duplicate the day and year first written above.
TeleVisions, Inc. Mediconsult. com, Limited
By:/s/Xxxxx X. Xxxx By:/s/Xxxxxx Xxxxxxxx
Xxxxx X. Xxxx, Treasurer Xxxxxx Xxxxxxxx, Director
Address: Address:
00 Xxxx Xx., Xxxxx #00 Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 0xx Xxxxx, Xxxxxx Xxxxxx
Tel: (000) 000-0000 X.X. Xxx XX 0000
Fax: (000) 000-0000 Xxxxxxxx, XX LX, Bermuda
Tel: 000.000.0000
Fax: 000.000.0000
SCHEDULE A
COMPENSATION
Non-refundable installation fee of $89,000.00, which includes the fee to
create, configure, and install the server graphics, templates and navigation,
visitor comments, server statistics, server administration area, Browser
"Sniffer" Software, WebPager Software, a searchable database, Customer
Information/Order Forms, subscription form for e-mailed Journal Club/Support
Group topic service, Literature Search form, Recruitment Advertising Form,
Automated e-mail to Specialists and Advertisers, and initial content authoring
as further described in items 2(i) through 2(xiv) of the Agreement, which such
establishment fee includes the following use limits:
The number of WWW documents to convert to HTML that are not in standard
template form for the task described further in item 2(i) of the Agreement
shall not exceed 300. For content conversion of additional content exceeding
300 documents, conversion tasks shall be billed at the rate of $45 per hour.
There will not be a limit to the number of WWW documents that are submitted in
HTML template form. Templates shall be provided by TVI.
Software development in excess of the features described in section 2 of the
Agreement shall be billed at the rate of $90 per hour, or as agreed upon fixed
price additions to this Agreement, and shall be subject to mutually agreed
upon licensing terms, and shall always be subject to the terms contained in
Section 3 of the Agreement.
Monthly maintenance fee of $4,000.00 to commence upon the full operation of
the WWW Server including the completion of all interactive features as further
described by items 2(i) through 2(xiv) of the Agreement, which such monthly
maintenance fee includes up to 40 hours of consulting time per month, to be
used for any task related to operation or improvement of the Server.
2. Monthly co-location lease of $1,500.00 per month to commence upon the
operation of the Client WWW Server to public visitors, which such monthly
lease fee includes the use of TVI's Internet connection, the security
precautions under paragraph 8(a) of the Agreement, and system backup.
3. Future developments of the server features can include but are not limited
to VRML, JAVA, secure transactions, commercial software integration, on-line
software distribution, demonstration software distribution, contests, surveys,
games, on-line documentation, private registration, additional database
interfaces, and personalized content delivery. Billing for future
developments over and above the 40 hours allocated in the maintenance
agreement will be as follows: software developments will be billed at the
hourly rate of $90, while content development will be billed at the hourly
rate of $45.
SCHEDULE B
BILLING
Invoices will be sent via US mail. Invoices will be monthly, billed on the
1st of the month for the previous month. Payment is due within 30 days. Late
payments will be assessed a penalty at the rate of 1% per month or portion
thereof. If the billing period is not a full month, all monthly charges are
pro-rated.
One third of the installation fee ($30,000) is due upon execution of this
Agreement. Within 60 days of TVI completing half of the tasks described in
items 2(i) through 2(xv) of the Agreement, an additional one-third of the
installation fee ($29,500) is due. Upon the completion to Clients reasonable
satisfaction of the Server as further described in items 2(i) through 2 (xv)
of the Agreement, the remaining one third of the installation fee ($29,500) is
due.
Client shall be responsible for payment of all applicable federal, state, and
local taxes and governmental fees associated with the services provided by
TVI, excluding TVI income taxes.
[AMENDMENT]
November 27, 1996
TeleVisions, Inc.
00 Xxxx Xx., Xxxxx #00
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
ATTN: Xxxxx X. Xxxx, Treasurer
RE: World Wide Web Server Agreement dated March 6, 1996 (the "Agreement"),
by and between TeleVisions, Inc., a Massachusetts corporation ("TVI")
and Xxxxxxxxxxx.xxx, Limited, a Bermuda corporation ("Client")
Dear Xx. Xxxx:
Reference is made to the Agreement, a copy of which is attached hereto as
Exhibit 1 and mde a part hereof. Capitalized terms used herein but not defined
herein shall have the meanings set forth in the Agreement.
Whereas, TVI and Client desire to amend the Agreement in order to make
Xxxxxxxxxxx.Xxx, Inc., a Colorado corporation ("Mediconsult Colorado"), which is
the holder of all the issued and outstanding capital stock of Client, a party to
the Agreement.
Whereas, Mediconsult Colorado desires to become a party to the Agreement.
Accordingly, TVI, Client and Mediconsult Colorado agree that:
1. Mediconsult Colorado and Client, jointly and severally, hereby agree to
be bound by the Agreement and all obligations of Client to TVI under the
Agreement shall also be the joint and several obligations of Mediconsult
Colorado to TVI under the Agreement. Mediconsult Colorado represents and
warrants to TVI that it is the sole holder of all the issued and outstanding
capital stock of Client.
2. Mediconsult Colorado and Client each understand and agree that TVI
shall have no obligation to deliver the WWW Server to Client unless and until
Mediconsult Colorado (rather than Client) has complied with the requirements of
Paragraph 14 of the Agreement.
The Agreement, as amended hereby, remains in full force and effect.
If you are in agreement with the foregoing, kindly sign a copy of this
latter and return same to me, whereupon this will become a binding agreement
between TVI, Client and Mediconsult Colorado.
Very truly yours,
Xxxxxxxxxxx.xxx, Limited
By:/s/Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President
hereunto duly authorized
Xxxxxxxxxxx.xxx, Inc.
By:/s/Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President
hereunto duly authorized
AGREED AND CONFIRMED:
TeleVisions, Inc.
By:/s/Xxxxx X. Xxxx
Xxxxx X. Xxxx, Treasurer
EXHIBIT A
XXXXXXXXXXX.XXX, INC.
APPOINTMENT OF AGENT UNDER AGREEMENT
Reference is made to the WWW Server Agreement (the "Agreement") dated March
6, 1996 between TeleVisions, Inc., a Massachusetts corporation ("TVI"), and
Xxxxxxxxxxx.xxx, Limited, a corporation organized under the laws of the
Commonwealth of Bahamas ("MediCon"), as amended by letter agreement dated
November 27, 1996, among TVI, MediCon and Xxxxxxxxxxx.xxx, Inc., a corporation
organized under the laws of the State of Colorado ("MediCon Colorado"). MediCon
Colorado hereby appoints The Xxxxxxxx-Xxxx Corporatoin System, Inc. ("PHCS")
located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as its agent for
service of process in connection with any proceeding in the courts of the
Commonwealth of Massachusetts and of the Federal Courts of the United States
of America for the District sitting in the Commonwealth of Massachusetts
relating to any suit, action or other proceeding arising out of the
Agreement. The primary address for the receipt of process by PHCE serviced
under this appointment shall be 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
The appointment shall be effective from December 1, 1996 through December 1,
2001 (the "Term") being a rounded total of five (5) years.
The responsibility of PHCS shall be to send the summons or other legal
process received during the Term by a recognized national express courier
service to the address of MediCon Colorado set forth below under its
signature. MediCon Colorado will provide PHCS in writing with any changes
to its address. PHCS shall have no responsibility for the receipt or non-
receipt by MediCon Colorado of such summons or other legal process. Should
such summons or legal process be returned to PHCS for any reason, PHCS shall
have no responsibility other than to return such summons or other legal
process to the sender by first class mail.
MediCon Colorado agrees to indemnify, hold harmless and defend PHCS from
and against any and all claims, damages, liabilities and causes of action
(including attorneys fees and costs) imposed upon, incurred by or asserted
against PHCS, directly or indirectly, relating to or arising out of the
Agreement; provided, however, that the indemnification shall not extend to
willful misconduct or gross negligence by PHCS. This paragraph will survive
the expiration or termination of the Term and of the Agreement.
MediCon Colorado agrees to pay PHCS a fee of Nine-Five Dollars ($95.00) for
the first year and Seventy-Five Dollars ($75.00) for each additional year per
party represented by PHCS for services rendered hereunder, payable in advance
for the full Term. The cumulative total fee is Three Hundred Ninety-Five
Dollars ($395.00). This appointment will be irrevocable for the full Term
upon payment of this fee. The fee is not refundable, in full or in part,
for any reason, including the premature ending of this appointment.
AGREED:
Xxxxxxxxxxx.xxx, Inc. The Xxxxxxxx-Xxxx Corporation System, Inc.
By:/s/Xxxxxx Xxxxxxxx By:------------------------------------
Xxxxxx Xxxxxxxx Assistant Vice President
President 00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Address for Process:
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx XX 00, XXXXXXX
