EXHIBIT 10.12
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is entered into by and between Buena
Vista Internet Group, a corporation duly organized under the laws of California,
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as "BVIG", and ▇▇▇▇▇▇.▇▇▇, Inc., a
corporation organized under the laws of the State of Delaware with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, hereinafter referred to as "Content Partner" or "▇▇▇▇▇▇.▇▇▇".
WITNESSETH:
WHEREAS, BVIG hosts and maintains a web site known as "Disney's ▇▇▇▇▇▇.▇▇▇" (the
"Service" or "▇▇▇▇▇▇.▇▇▇") located at ▇▇▇.▇▇▇▇▇▇.▇▇▇ through which information
targeted towards parents and families is provided to its users ("Users"); and
WHEREAS, Content Partner operates an Internet site located at ▇▇▇.▇▇▇▇▇▇.▇▇▇
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(the "▇▇▇▇▇▇.▇▇▇ Site" or the "Content Partner Service") and is the provider of
information described in Appendix A hereto ("Health Content").
WHEREAS, BVIG desires to create a clearly designated area on ▇▇▇▇▇▇.▇▇▇ devoted
to Health Content (the "Health Channel") and BVIG and Content Partner desire
Content Partner to provide such content for such channel. Health Content
provided by Content Partner hereunder, as set forth on Appendix A-1 hereto,
shall be referred to herein as "Content Partner Content".
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, BVIG and Content Partner hereby agree as follows:
1 LICENSE; OBLIGATIONS OF CONTENT PARTNER; OBLIGATIONS OF BVIG
1.1 Subject to the terms and conditions of this Agreement, Content Partner
hereby grants to BVIG and its subsidiaries and Affiliates, a fully-
paid, worldwide, irrevocable (during the term), non-exclusive right
and license to use, reproduce, adapt, incorporate, integrate,
distribute and otherwise exploit the Content Partner Content on the
Service and other BVIG sites as specified in Section 1.9 below, and,
in conjunction with BVIG's activities pursuant to this Agreement, to
exploit the applicable copyrights, trade names, trade dress,
trademarks and other intellectual property rights of Content Partner
on the Service. The terms set forth in the Appendices attached hereto
shall also apply to this Agreement.
As used herein, "Affiliate" means with respect to a party to this
Agreement, any entity that directly or indirectly controls, or is
under common control with, or is controlled by, such party; "control"
(including, with its correlative meanings, "controlled by" and "under
common control with") means possession, directly or indirectly, of the
power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise).
1.2 BVIG shall create the Health Channel which shall contain Content
Partner Content and/or Links (defined in Section 1.7) to Content
Partner Content. The Health Channel is further described on Appendix
A.
__________________
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated ***. A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.
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1.3 Content Partner shall host most of the Content Partner Content on
Content Partner's servers. Certain Content Partner Content hosted by
Content Partner and accessed by Users shall, at BVIG's option, appear
within a BVIG-designed branded frame ("Family.com-Wrapped Pages"),, or
within pages on the DrKoop Site with no wrapper (collectively
"Pages"). The Family.com-Wrapped Pages shall, at BVIG's option,
consist of either (a) a custom configuration of portions of the
Content Provider Content selected by BVIG which shall appear within a
▇▇▇▇▇▇.▇▇▇ branded frame which includes the ▇▇▇▇▇▇.▇▇▇ navigation bar;
or (b) Go-Wrapped Pages created under the Distribution Agreement
between Content Partner and Infoseek Corporation of even date herewith
(the "Distribution Agreement"). The advertising and sponsorships on
the Family.com-Wrapped Pages shall be determined by Content Partner,
subject to Appendix A, Section 7. The Family.com-Wrapped Pages shall
appear to the viewer to be located at ▇▇▇.▇▇▇▇▇▇.▇▇▇▇▇▇.▇▇▇. The
parties will mutually agree on the format for the Family.com-Wrapped
Pages wrapper. Content Partner shall cooperate and assist BVIG by
promptly answering questions and complaints regarding any Content
Partner Content. Each party shall promptly inform the other party of
any event or circumstance, and provide all information pertaining to
such event or circumstance, related or arising from this Agreement
which could lead to a claim or demand against the other party by any
third party. The parties acknowledge that, unless otherwise agreed,
Users will not be required to pay a fee to view any Family.com-Wrapped
Pages or to view a page on the ▇▇▇▇▇▇.▇▇▇ Site which Users accessed
through a link from ▇▇▇▇▇▇.▇▇▇.
1.4 Content Partner will deliver to BVIG all Content Partner Content to be
hosted by BVIG in a mutually agreeable format, electronically via
modem or Internet access (e.g. Internet ftp or Internet e-mail).
Content Partner agrees to certify that all deliveries hereunder were
made electronically. Content Partner will make updates to the Content
Partner Content available to BVIG on a regular mutually agreed upon
basis. BVIG shall have the right, but not the obligation, to remove
from ▇▇▇▇▇▇.▇▇▇, or direct Content Partner to remove from the
Family.com-Wrapped Pages, any Content Partner Content which BVIG, in
its reasonable discretion, determines to be offensive, in poor taste,
or otherwise objectionable.
1.5 Subject to the exceptions set forth below, during the term of this
Agreement, Content Partner shall be the exclusive provider of Health
Content for the Health Channel. ***
1. ***
2. Health Content provided to BVIG by news or data feeds or
Freelancers;
3. Any Health Content created internally by BVIG or its Affiliates;
4. ***
5. BVIG's standard advertising banner business conducted outside the
Health Channel;
6. News and Editorial Content of any kind (As used herein, "Editorial
Content" means opinion pieces related to current events and
magazine articles that may relate to health; ***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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7. New Content or products that are not available from ▇▇▇▇▇▇.▇▇▇ as
further described in Appendix A, Section B 2; and
8. Any Health Content obtained from a third party which is marketed
under the "Disney" brand (such as, "Disney's Health
Encyclopedia").
As used herein, "Freelancers" shall mean independent parties who
receive a fee for their services and who are not (to BVIG's
knowledge) full time employees of any ▇▇▇▇▇▇.▇▇▇ Direct Competitor
as set forth on Appendix E.
▇▇▇▇▇▇.▇▇▇ acknowledges that the following shall not constitute a
breach of this Section 1.5: (a) the BVIG search technology may search
the sites *** (b) BVIG may provide search-related products that may
include results from any third parties; and (c) any third party may be
included in service/product provider directories on ▇▇▇▇▇▇.▇▇▇.
1.6 ***
1.7 The response times which ▇▇▇▇▇▇.▇▇▇ shall use to remedy and/or correct
any material limitations or errors in any Content Partner Content made
available by or through ▇▇▇▇▇▇.▇▇▇ that BVIG brings to ▇▇▇▇▇▇.▇▇▇'s
attention or about which ▇▇▇▇▇▇.▇▇▇ otherwise becomes aware are
specified in Appendix C; *** ▇▇▇▇▇▇.▇▇▇ agrees not to override browser
back button functionality to prevent Users who link to the ▇▇▇▇▇▇.▇▇▇
Site from the Service from returning to the Service. As used herein
"Link" means a so-called "hot link" in graphical and/or textual format
located on a web site which takes the User directly to another web
site.
1.8 Each party will be responsible for its respective telecommunications
charges with respect to the provision of respective portions of the
Content Partner Content to BVIG and to Users. Except as expressly
provided herein, BVIG retains the right to adapt or otherwise alter
the design, look, and any other attributes of the Service and Service
pages, and the placement of the Content Partner Content on the
Service. BVIG will use commercially reasonable efforts to incorporate
into the Content Partner Content error corrections, as provided and
identified as such by Content Partner; provided, however that if
Content Partner advises BVIG in writing during normal business hours
that failure to promptly correct an error could result in serious
physical injury to a User, BVIG shall exercise best commercially
reasonable efforts to expedite the correction of such error.
1.9 ▇▇▇▇▇▇.▇▇▇ may place up to ten articles of Content Partner Content
per month as part of the archival database for the Service during the
term of the Agreement. The archival database may be searched from
▇▇▇▇▇▇.▇▇▇ as well as other BVIG sites that include the ▇▇▇▇▇▇.▇▇▇
database in their search.
1.10 User Registration. ▇▇▇▇▇▇.▇▇▇ shall ensure that its privacy policy
applicable to the ▇▇▇▇▇▇.▇▇▇ Site and the Family.com-Wrapped Pages, to
the extent applicable to its performance under this Agreement, is
consistent with the BVIG's privacy policy for ▇▇▇▇▇▇.▇▇▇, as such may
be changed from time to time, including but not limited to including a
mechanism that allows Users to opt in to ▇▇▇▇▇▇.▇▇▇'s sharing of User
data (not including personal medical information) with BVIG. The
parties will work together to implement a shared registration solution
for Users accessing DrKoop functionality.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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1.11 ▇▇▇▇▇▇.▇▇▇ User Data. *** ▇▇▇▇▇▇.▇▇▇ shall make available to BVIG,
via a method and timing to be mutually agreed upon, all names and
email addresses of all new ▇▇.▇▇▇▇.▇▇▇ Users who register on the
Family.com-Wrapped Pages or who have accessed the ▇▇▇▇▇▇.▇▇▇ Site from
a Link on ▇▇▇▇▇▇.▇▇▇, provided that such User has opted in for sharing
his/her data with BVIG and provided such disclosure is not prohibited
by law or regulation. In addition, except as prohibited by law,
▇▇.▇▇▇▇.▇▇▇ shall provide to BVIG all available data (in aggregate,
anonymous form only) concerning Users who access the Pages from Links
on ▇▇▇▇▇▇.▇▇▇, concerning products and/or services purchased by such
Users, survey and promotion responses, and other demographic
information concerning such Users. Notwithstanding the foregoing,
▇▇▇▇▇▇.▇▇▇ shall not provide personal medical information to BVIG,
including, without limitation, personal medical records. BVIG may use
such information for its internal business purposes and may provide
such aggregate, anonymous information to third parties as it deems
appropriate in connection with its operations; provided, however that
such aggregate, anonymous data may not be identified to third parties
as ▇▇▇▇▇▇.▇▇▇ User data. ▇▇▇▇▇▇.▇▇▇ User data must be aggregated with
other BVIG User data before being provided to a third party.
1.12 BVIG User Data. BVIG shall own all right, title and interest in and
to and the exclusive right to use all BVIG User Data generated on all
pages of the Service hosted by BVIG.
1.13 Access. The Health Channel shall be accessible by Users through no
more than one hyperlink from the ▇▇▇▇▇▇.▇▇▇ home page. Further, BVIG
shall maintain the Health Channel, in a manner consistent with its
development and operation of the other Channels within the Service.
1.14 Warrants. At BVIG's option, upon execution of this Agreement,
Content Partner will provide BVIG with warrants for the right to
purchase sixty thousand (60,000) shares of Content Partner's common
stock pursuant to a Warrant Agreement between Content Partner and BVIG
containing terms no less favorable to BVIG than the terms of the
Warrant Agreement between Content Partner and Infoseek Corporation
attached to the Distribution Agreement.
2 FEES AND PAYMENTS
Each party will make payments to the other party in the amounts and at the
times specified in Appendix D. Each party will be responsible for the proper
payment of all taxes, including sales, excise and value added taxes, which
may be levied in connection with its payments to the other party, exclusive
of taxes based upon the other party's net income.
3 CONFIDENTIAL INFORMATION
3.1 Either BVIG or Content Partner may disclose to the other (the
"Receiving Party") certain information that the disclosing party deems
to be confidential and proprietary ("Proprietary Information"), and
technical and other business information of the disclosing party that
is not generally available to the public.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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3.2 The Receiving Party agrees to use Proprietary Information solely in
conjunction with its performance under this Agreement and not to
disclose or otherwise use such information in any fashion. The
Receiving Party, however, will not be required to keep confidential
such Proprietary Information that becomes generally available without
fault on its part; is already rightfully in the Receiving Party's
possession without restriction prior to its receipt from the
disclosing party; is independently developed by the Receiving Party;
is disclosed by third parties without similar restrictions; is
rightfully obtained by the Receiving Party from third parties without
restriction; or is otherwise required by law or judicial process.
3.3 Unless required by law or to assert its rights under this Agreement,
and except for disclosure on a "need to know basis" to its own
employees, and its legal, investment, financial and other professional
advisers on a confidential basis, each party agrees not to disclose
the terms of this Agreement or matters related thereto without the
prior written consent of the other party.
4 REPRESENTATIONS AND WARRANTIES
4.1 Content Partner represents and warrants that it is the owner of the
Content Partner Content and/or has the right to grant the rights
hereunder. Content Partner represents and warrants to BVIG that it
holds the necessary rights to permit the use of Content Partner
Content by BVIG for the purpose of this Agreement; that its entry into
this Agreement does not violate any agreement with any other party;
that its performance under this Agreement will conform to applicable
U.S. laws and government rules and regulations; that to the best of
its knowledge, after reasonable inquiry, the Content Partner Content
is true, accurate and does not contain material omissions; Content
Partner further represents and warrants to BVIG that the use,
reproduction, distribution, transmission, or display of Content
Partner Content will not (a) violate any laws or any rights of any
third parties, including, but not limited to, such violations as
infringement or misappropriation of any U.S. copyright, patent,
trademark, trade dress, trade secret, music, image, or other
proprietary or property right, false advertising, unfair competition,
defamation, invasion of privacy or publicity rights, moral or
otherwise, or rights of celebrity, violation of any antidiscrimination
law or regulation, or any other right of any person or entity; or (b)
contain any material that is: unlawful, harmful, fraudulent,
threatening, abusive, harassing, defamatory, vulgar, obscene, profane,
hateful, racially, ethnically, or otherwise objectionable, including,
without limitation, any material that supports, promotes or otherwise
encourages wrongful conduct that would constitute a criminal offense,
give rise to civil liability, or otherwise violate any applicable
local, state or national laws.
4.2 Content Partner represents and warrants that, *** the systems and
technology utilized to operate the ▇▇▇▇▇▇.▇▇▇ Site and the GO Network
Wrapped Pages are compliant with the following Year 2000 requirements:
(a) the occurrence in or use by such systems of dates before, on or
after January 1, 2000 will not adversely affect the performance of
such systems with respect to date-dependent data, computations,
output, or other functions (including, without limitations,
calculating, comparing and sequencing); and (b) such systems will not
abnormally end or provide invalid or incorrect results as a result of
date dependent data.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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4.3 BVIG represents and warrants, *** that the systems and technology
utilized by BVIG to operate the Service are compliant with the
following Year 2000 requirements: (a) the occurrence in or use by such
systems of dates before, on or after January 1, 2000 will not
adversely affect the performance of such systems with respect to date-
dependent data, computations, output, or other functions (including,
without limitations, calculating, comparing and sequencing); and (b)
such systems will not abnormally end or provide invalid or incorrect
results as a result of date dependent data.
4.4 BVIG represents and warrants to Content Partner that *** this
Agreement does not violate any agreement with any other party; that
its performance under this Agreement will conform to applicable U.S.
laws and government rules and regulations; that the BVIG proprietary
technology as utilized by the Service does not infringe any U.S.
copyright, patent, trademark, trade dress or trade secret of any
person or entity, and that BVIG Content (as defined in this Section
4.4) will not (a) violate any U.S. laws or any rights of any third
parties, including, but not limited to, such violations as
infringement or misappropriation of any copyright, patent, trademark,
trade dress, trade secret, music, image, or other proprietary or
property right, false advertising, unfair competition, defamation,
invasion of privacy or publicity rights, moral or otherwise, or rights
of celebrity, violation of any antidiscrimination law or regulation,
or any other right of any person or entity; or (b) contain any
material that is: unlawful, harmful, fraudulent, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful, racially,
ethnically, or otherwise objectionable, including, without limitation,
any material that supports, promotes or otherwise encourages wrongful
conduct that would constitute a criminal offense, give rise to civil
liability, or otherwise violate any applicable local, state, or
national laws. As used herein, "BVIG Content" means any content on
the Health Channel that has been authored and created solely by BVIG.
5 LIMITATION OF LIABILITY; DISCLAIMER
5.1 EXCEPT FOR EITHER PARTY'S LIABILITY FOR THIRD PARTY CLAIMS AS
SPECIFIED IN SECTION 9 BELOW OR IN APPENDIX A, SECTION B(4), DAMAGES
ARISING FROM PERSONAL INJURY, OR EITHER PARTY'S BREACH OF SECTION 3,
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE,
EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
5.2 EXCEPT AS SET FORTH IN SECTION 4, NEITHER PARTY MAKES ANY, AND EACH
PARTY ACKNOWLEDGES THAT THE OTHER HAS NOT MADE ANY, AND HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE SERVICE, THE ▇▇▇▇▇▇.▇▇▇ SITE, THE CONTENT
PARTNER CONTENT, OR THE OPERATION OF THE CONTENT PARTNER CONTENT ON
THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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6 TERM AND TERMINATION
6.1 This Agreement shall be effective on the date executed by both parties
("Effective Date") and shall continue in force for an initial term
ending thirty-six (36) months from the Execution Date (as defined in
Appendix A, Section B.1.a). Upon prior mutual written agreement, the
then current term of this Agreement may be renewed at the end of such
initial term and each anniversary date thereafter for one (1) year
renewal terms. Notwithstanding the foregoing, either party may
terminate this Agreement effective as of the second anniversary of the
Execution Date by providing at least 120 days prior written notice to
the other party. If this Agreement is not terminated as of the
second anniversary of the Execution Date, the Agreement shall continue
in full force and effect for another twelve (12) months (unless
terminated for cause during said 12 month period).
6.2 ▇▇▇▇▇▇.▇▇▇ will make best commercially reasonable efforts for the
Pages to meet the following performance standards The applicable
performance standards are as follows:
***
6.3 BVIG shall make best commercially reasonable efforts for that portion
of the Health Channel hosted by BVIG ("Health Channel" as used in
this Section 6.3) to meet the following external performance
standards. Such performance standards are as follows:
***
6.4 ***
6.5 The following sections shall survive the termination or expiration of
this Agreement: 1.11 (first sentence only), 1.12, 2, 3, Article 4 (as
to claims arising prior to termination or expiration or claims based
on events arising prior to termination or expiration) 5, 8.1 (first
and second sentences only), 8.2, 9, and 10.
6.6 Upon the termination or expiration of this Agreement, each party shall
(a) promptly return all Proprietary Information, and other
information, documents, manuals and other materials belonging to the
other party, except as may be otherwise provided in this Agreement;
(b) promptly pay all amounts due and payable as of the date of such
expiration or termination; and (c) promptly remove the other party's
content, branding, links, and any other material provided under this
Agreement from its respective sites and services.
6.7 During the term of this Agreement, BVIG shall not enter into any
agreements to permit the sale or distribution of tobacco or tobacco
products on the Health Channel. Notwithstanding the foregoing,
Content Partner acknowledges and agrees that information concerning
tobacco and tobacco products may be displayed in standard search and
directory result format on the Health Channel in response to the
search queries of Users.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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7 FORCE MAJEURE
Neither party will be liable for delay or default in the performance of its
obligations under this Agreement (other than for non-payment) if such delay
or default is caused by conditions beyond its reasonable control,
including, but not limited to, fire, flood, accident, earthquakes,
telecommunications line failures, storm, acts of war, riot, government
interference, strikes and/or walk-outs. The party experiencing the force
majeure event shall provide the other party with notice as soon as
reasonably possible under the circumstances. In the event of a force
majeure event which lasts longer than fifteen (15) days, the party not
experiencing the force majeure event may terminate this Agreement upon
prior written notice to the other party.
8 ADVERTISING AND PROMOTION; PUBLICITY
8.1 Content Partner shall not issue or permit the issuance of any press
releases or publicity regarding, or grant any interview, or make any
public statements whatsoever concerning, this Agreement, ▇▇▇▇▇▇.▇▇▇
BVIG or its Affiliates, without prior coordination with and written
approval from BVIG, which approval may be granted or withheld in
BVIG's sole discretion. BVIG shall not issue or permit the issuance of
any press releases or publicity regarding, or grant any interview, or
make any public statements whatsoever concerning this Agreement or
Content Partner without prior coordination with and written approval
from Content Partner, which approval may be granted or withheld in
Content Partner's sole discretion. Notwithstanding the foregoing,
after execution of this Agreement, and during the term of the
Agreement, ▇▇▇▇▇▇.▇▇▇ *** shall reasonably cooperate with BVIG in the
issuance of a press release, mutually agreed to between the parties,
announcing this Agreement. All such endorsements must receive BVIG's
prior review and approval. Except and only to the extent specifically
set forth in this Agreement, ▇▇▇▇▇▇.▇▇▇ shall not acquire any right
under this Agreement to use any BVIG trademarks or logos or the names
"Disney" or "▇▇▇▇▇▇.▇▇▇" (either alone or in conjunction with or as a
part of any other word or name) or any fanciful characters or designs
of any BVIG affiliate, (a) in any advertising, publicity, or
promotion; (b) to express or to imply any endorsement of its own
products or services; or (c) in any other way.
8.2 BVIG shall not have any right to use the name and/or likeness of Dr. C
▇▇▇▇▇▇▇ ▇▇▇▇ or to make any statements, whether written or oral, which
state or otherwise imply, directly or indirectly, any endorsement from
or affiliation with ▇▇. ▇▇▇▇ in any manner whatsoever without the
prior written consent of ▇▇▇▇▇▇.▇▇▇, which consent may be withheld in
▇▇▇▇▇▇.▇▇▇'s sole discretion.
8.3 Content Partner and BVIG may undertake such joint marketing efforts as
may be mutually agreed upon from time to time, but neither party is
obligated to undertake any such efforts.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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9 INDEMNIFICATION
9.1 Content Partner agrees to defend, indemnify and hold BVIG and their
officers, directors, agents and employees harmless from and against
any and all claims, demands, liabilities, actions, judgments, and
expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to (i)
any breach or alleged breach of any of Content Partner's
representations and warranties set forth in Section 4.1; (ii) any
breach of an international law, rule or regulation or international
third party proprietary right (as if Content Partner had made the
representations and warranties equivalent to those set forth in
Section 4.1 regarding US laws, regulations and proprietary rights);
(ii) any injury to person or property caused by any products or
services sold by Content Partner, or any User's use of or reliance on
the Content Partner Content; (iii) any other claim with respect to
Content Partner, Content Partner Content, or products or services sold
by or through Content Partner, or (iv) Content Partner's sales or
marketing practices. Content Partner shall bear full responsibility
for the defense (including any settlements) of any such claim;
provided however, that (a) Content Partner shall keep BVIG informed
of, and consult with BVIG in connection with the progress of such
litigation or settlement; and (b) Content Partner shall not have any
right, without BVIG's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action, suit or
proceeding or contains a stipulation to or admission or acknowledgment
of, any liability or wrongdoing (whether in contract, tort or
otherwise) on the part of BVIG or otherwise requires BVIG to take or
refrain from taking any material action (such as the payment of fees).
9.2 BVIG agrees to defend, indemnify and hold Content Partner and its
officers, directors, agents and employees harmless from and against
any and all claims, demands, liabilities, actions, judgments, and
expenses, including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related to (i)
any breach or alleged breach of any of BVIG's representations and
warranties set forth in Section 4.4; (ii) any injury to person or
property caused by any BVIG products or BVIG services sold by BVIG on
the Health Channel, or any User's use of or reliance on the BVIG
Content displayed on the Health Channel; or (iii) any breach of an
international law, rule or regulation or international third party
proprietary right (as if BVIG had made the representations and
warranties equivalent to those set forth in Section 4.4 regarding US
laws, regulations and proprietary rights). BVIG shall bear full
responsibility for the defense (including any settlements) of any such
claim; provided, however, that (a) BVIG shall keep Content Partner
informed of, and consult with Content Partner in connection with the
progress of such litigation or settlement; and (b) BVIG shall not have
any right, without Content Partner's written consent, to settle any
such claim if such settlement arises from or is part of any criminal
action, suite or proceeding or contains a stipulation to or admission
or acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of Content Provider or
otherwise requires Content Partner to take or refrain from taking any
material action (such as the payment of fees).
10 GENERAL TERMS AND CONDITIONS
10.1 The parties to this Agreement are independent contractors. Neither
party is an agent, representative or partner of the other party.
Neither party shall have any right, power or authority to enter into
any agreement for or on behalf of, or to incur any obligation or
liability for, or to otherwise bind, the other party. This Agreement
shall not be interpreted or construed to create an association, joint
venture, co-ownership, co-authorship, or partnership between the
parties or to impose any partnership obligation or liability upon
either party.
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10.2 Neither party shall assign, sublicense or otherwise transfer
(voluntarily, by operation of law or otherwise) this Agreement or any
right, interest or benefit under this Agreement, without the prior
written consent of the other party; provided, however, that either
party may assign this Agreement to any entity that acquires all or
substantially all of the assets or shares (or controlling shares) of
such party; provided that the acquiring entity is not a direct
competitor of the other party. Any attempted assignment, sublicense or
transfer by a party in derogation hereof shall be null and void.
Subject to the foregoing, this Agreement shall be fully binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and assigns. Any change of control of
either party shall be deemed an "assignment" for purposes of this
Section 10.2; provided, however, that as long as control is not
transferred to a competitor of the nonassigning party, it shall be an
approved ▇▇▇▇▇▇▇▇▇▇.▇▇ used herein, "change of control" shall include
any event (including, without limitation, a merger, sale, liquidation,
transfer, encumbrance or other disposition) which results in a change
of the control of a party. As used in this Section 10.2 "change of
control" shall mean a change in the legal, beneficial or equitable
ownership, directly or indirectly, of more than fifty (50%) of a class
of capital stock having voting rights of either party.
10.3 No change, amendment or modification of any provision of this
Agreement or waiver of any of its terms will be valid unless set forth
in writing and signed by the party to be bound thereby.
10.4 This Agreement shall be interpreted, construed and enforced in all
respects in accordance with the laws of the State of California. Each
party irrevocably consents to the exclusive jurisdiction of any state
or federal court for or within Los Angeles County, California over any
action or proceeding arising out of or related to this Agreement, and
waives any objection to venue or inconvenience of the forum in any
such court.
10.5 The failure of either party to insist upon or enforce strict
performance by the other party of any provision of this Agreement or
to exercise any right under this Agreement shall not be construed as a
waiver or relinquishment to any extent of such party's right to assert
or rely upon any such provision or right in that or any other
instance; rather the same shall be and remain in full force and
effect.
10.6 Any notice, approval, request, authorization, direction or other
communication under this Agreement shall be given in writing, will
reference this Agreement, and shall be deemed to have been delivered
and given (a) when delivered personally; (b) three (3) business days
after having been sent by registered or certified U.S. mail, return
receipt requested, postage and charges prepaid; or (c) one (1)
business day after deposit with a commercial overnight courier, with
written verification of receipt. All communications will be sent to
the addresses set forth below or to such other address as may be
designated by a party by giving written notice to the other party
pursuant to this Section 10.6.
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If to BVIG: If to Content Partner:
Buena Vista Internet Group ▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇ Attention: __________________
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: ______________________
Fax:(▇▇▇) ▇▇▇-▇▇▇▇ Fax:________________
With a copy to:
Legal Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.7 This Agreement and the Appendices attached hereto and incorporated
herein by reference constitutes the entire agreement between the
parties and supersede any and all prior agreements or understandings
between the parties with respect to the subject matter hereof. Neither
party shall be bound by, and each party specifically objects to, any
term, condition or other provision or other condition which is
different from or in addition to the provisions of this Agreement
(whether or not it would materially alter this Agreement) and which is
proffered by the other party in any purchase order, correspondence or
other document, unless the party to be bound thereby specifically
agrees to such provision in writing.
10.8 The headings used in this document are for convenience only and are
not to be construed to have legal significance. In the event that any
provision of this Agreement conflicts with the law under which this
Agreement is to be construed or if any such provision is held invalid
by a court with jurisdiction over the parties to this Agreement, such
provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the parties in accordance with
applicable law, and the remainder of this Agreement shall remain in
full force and effect.
BUENA VISTA INTERNET GROUP ▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------- ------------------------------
Authorized Signature Authorized Signature
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------- ----------------------
Title: Sr. V.P. Business and Legal Affairs Title: CEO
------------------------ ---------------------------
Date: 4/9/99 Date: 4/9/99
------------------------- ----------------------------
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APPENDIX A
A. HEALTH CONTENT
1. "Health Content" means content that relates to human health conditions,
medicine, and the treatment of disease ***
B. HEALTH CHANNEL DESCRIPTION
1. a. The Health Channel shall comprise one or more pages and shall
include a ▇▇▇▇▇▇.▇▇▇ branded area featuring relevant Headlines from
the ▇▇▇▇▇▇.▇▇▇ Site selected by ▇▇▇▇▇▇.▇▇▇. "Headline" means a
title of an article, application, graphic or other Content Provider
Content. The Headlines shall be Links to the applicable Health
Content within the Pages either hosted by BVIG or ▇▇.▇▇▇▇.▇▇▇. The
Headlines may be pulldown menus or other kinds of Links and may
also include a brief description of the content (subject to the
obligations set forth in Section B 4 below). Each page of the
Health Channel shall include a ▇▇▇▇▇▇.▇▇▇ button which will be
Linked to the ▇▇▇▇▇▇.▇▇▇ site or the ▇▇▇▇▇▇.▇▇▇ Wrapped Pages, as
determined by BVIG. The Health Channel shall be available to Users
within 60 days of the Effective Date. The date on which the Health
Channel is made available to Users is referred to herein as the
"Execution Date."
b. At least *** of the content on the Health Channel's home page shall
be Content Provider Content or Headlines, provided ▇▇▇▇▇▇.▇▇▇'s
editorial team, in its reasonable discretion, identifies relevant
Content Provider Content/Headlines to reach this *** threshold. At
least *** of the Links on the Health Channel shall go directly to
the Family.com-Wrapped Pages or the ▇▇▇▇▇▇.▇▇▇ Site, provided
▇▇▇▇▇▇.▇▇▇'s editorial team identifies, in its reasonable
discretion, relevant Content Provider Content/Headlines to reach
this *** threshold. The other *** may link to ▇▇▇▇▇▇.▇▇▇ pages that
contain other Health Content (subject to Section B 2b) and other
content.
c. ▇▇▇▇▇▇.▇▇▇ may also choose in its sole discretion to host and
display in full on ▇▇▇▇▇▇.▇▇▇ up to 10 articles per month from the
Content Provider Content. Each such article will include a mutually
agreed Link to the ▇▇▇▇▇▇.▇▇▇ Site.
d. BVIG shall promote the Health Channel in a manner commensurate with
BVIG's promotion of the other ▇▇▇▇▇▇.▇▇▇ Channels.
2. a. ▇▇▇▇▇▇.▇▇▇ shall provide Health Content and tools to ▇▇▇▇▇▇.▇▇▇ in
areas and subjects as specified by BVIG. BVIG and ▇▇▇▇▇▇.▇▇▇ shall
mutually upon a schedule for the display of Content Provider
Content which may include implementation of the following features
within 90 days of the Effective Date:
. Weekly articles
. Periodic online chats with experts provided by ▇▇▇▇▇▇.▇▇▇
. At least one photo for each article and illustrations, graphs,
statistical tables and charts wherever appropriate
. Weekly replies from experts affiliated with ▇▇▇▇▇▇.▇▇▇ to
▇▇▇▇▇▇.▇▇▇ user questions
. Search
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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b. In the event that BVIG desires Health Content and/or tools, medium
and/or functionality not available from Content Partner at the time
of BVIG's request ("New Content"), it shall provide ▇▇▇▇▇▇.▇▇▇ with
written notice of its desire to obtain such New Content, which
notice shall include a specification therefor, and a delivery
schedule in reasonable detail to allow ▇▇▇▇▇▇.▇▇▇ to evaluate the
scope of the development project (the "Request").
c. ***
3. All Links pointing to the ▇▇▇▇▇▇.▇▇▇ Site from the Service shall
provide Links back to the same area of the Service.
4. Notwithstanding the foregoing, BVIG shall not modify, edit, abbreviate
or censor Content Partner Content, but BVIG shall have the right not to
include such content on any pages of ▇▇▇▇▇▇.▇▇▇. In the event that BVIG
modifies; including without limitation, creating summaries, any portion
of the Content Partner Content without the prior written approval of
Content Provider, BVIG shall be solely responsible for any liability
arising from such unauthorized modifications and shall indemnify and
hold Content Partner harmless from such liability.
5. ***
6. At BVIG's request, ▇▇▇▇▇▇.▇▇▇ shall send to BVIG's facilities a minimum
of one (1) on-site designer/producer/engineer during the term of this
Agreement for a mutually agreed upon duration for purposes of assisting
BVIG in building the Health Channel and integrating the Content Partner
Content therein.
7. ***
a. ▇▇▇▇▇▇.▇▇▇ shall place on the ▇▇▇▇▇▇.▇▇▇ Wrapped-Pages and on any
portion of the ▇▇▇▇▇▇.▇▇▇ Site which includes only promotions for
or links to the ▇▇▇▇▇▇.▇▇▇ Wrapped-Pages only "run of site"
advertising and shall not include in such locations any advertising
from any *** without BVIG's prior written consent, which may be
granted or withheld in BVIG's sole discretion.
b. ▇▇▇▇▇▇.▇▇▇ may sell sponsorships which appear on the Family.com-
Wrapped Pages, provided that (i) such sponsorships comply with
BVIG's current Advertising Guidelines and (ii) DrKoop does not sell
Family.com-Wrapped Pages sponsorships as a stand alone opportunity
and without BVIG's prior approval do not reference ▇▇▇▇▇▇.▇▇▇ when
discussing sponsorship opportunities.
c. Content Provider shall comply with BVIG's then current standard
advertising policy.
d. ▇▇▇▇▇▇.▇▇▇ shall not transmit any so-called "interstitials" or
"pop-up ads" to users of ▇▇▇▇▇▇.▇▇▇ or the ▇▇▇▇▇▇.▇▇▇ Wrapped-
Pages.
8. At present, BVIG intends that all Health Content provided to users of
BVIG's site "▇▇▇▇▇▇.▇▇▇" shall be provided via Links to ▇▇▇▇▇▇.▇▇▇. ***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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9. Any promotions and/or links to ▇▇▇▇▇▇.▇▇▇ provided by ▇▇▇▇▇▇.▇▇▇ shall
be approved in advance by BVIG.
10. All Content Partner Content shall carry Content Partner's legal
disclaimer, a copy of which is included on ▇▇▇▇▇▇▇▇ ▇-▇, which may be
revised from time to time by Content Provider. Other than Headlines,
this disclaimer shall be presented in its entirety any time Content
Partner Content is displayed. In addition, certain third party content
which is provided by Content Partner may have additional requirements
for displaying, such as including the logo of the original content
provider (for example, Dartmouth Medical content must carry the
branding and logo of the Dartmouth Medical School), which requirements
are described on Appendix A-1. Content Partner will provide further
details concerning such requirements at the time Content Partner
Content is submitted for inclusion in the Service.
11. Advertising
a. Commencing on Execution Date, BVIG shall deliver *** of ▇▇▇▇▇▇.▇▇▇
Ad Banners at a cpm of *** on a "run of site" basis across
▇▇▇▇▇▇.▇▇▇. *** of such impressions shall be delivered by September
15, 1999 and the remainder shall be delivered within the first year
of this Agreement. The terms and conditions of the BVIG's then-
current "Advertising Sales Terms and Conditions" shall apply to
such advertising. Copies of such terms and conditions are available
from BVIG on request.
b. Provided ▇▇▇▇▇▇.▇▇▇ is current on all payments described above,
BVIG agrees to purchase *** Ad Banner impressions on the ▇▇▇▇▇▇.▇▇▇
Site at a cpm of *** of the impressions shall be delivered during
the first year of this Agreement and the remaining *** shall be
delivered as determined by BVIG over the first two (2) years of
this Agreement.
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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APPENDIX A-1
This Appendix A-1 sets forth existing Content Provider Content as of the
Effective Date. All Content Provider Content includes, in addition to the
requirements listed below, ▇▇▇▇▇▇.▇▇▇ branding. Content Partner may revise this
Appendix from time to time, to reflect new content added to the ▇▇▇▇▇▇.▇▇▇ Site,
and to reflect the termination or expiration of third party agreements, which
revisions shall be subject to BVIG's reasonable approval; notwithstanding the
foregoing, Content Partner shall maintain the quality and quantity of Content
Provider Content available to BVIG throughout the term of the Agreement.
Category Source Copyright Distribution Disclaimer Logo
Rights Required Needed
========================================================================================================
Disease
Dartmouth ▇▇▇▇▇▇.▇▇▇ any use Standard Yes
▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.▇▇▇ any use Standard Yes
Public Domain - ▇▇▇▇▇▇.▇▇▇ any use Standard Yes
NIH
Patient Individual deals - Standard No
Associations please inquire about
specifics with
▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
=============================================================================================
Expert ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇.▇▇▇ any use Standard No
Content Nutrition
▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇.▇▇▇ any use Standard No
Fitness
▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇.▇▇▇ any use Standard No
Smoking
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.▇▇▇ any use Standard No
- Insurance
=============================================================================================
Pharmacy ▇▇▇ ▇▇▇▇▇▇▇ JG Limited offline use Standard No
Multum Multum Standard + Yes
Multum
15 of 21
==============================================================================================
Insurance ▇. ▇▇▇▇▇▇ / T. ▇▇▇▇▇▇.▇▇▇ any use Standard No
▇▇▇▇▇
==============================================================================================
==============================================================================================
Clinical public domain any use Standard No
Trials
==============================================================================================
Community Day in my life ▇▇▇▇▇▇.▇▇▇ any use Standard No
In the Spotlight Individual deals - Standard No
please inquire
==============================================================================================
No
Health Site ▇▇▇▇▇▇.▇▇▇ any use Standard
Reviews
Standard Disclaimer
This information is not intended to be a substitute for professional medical
advice. You should not use this information to diagnose or treat a health
problem or disease without consulting with a qualified healthcare provider.
Please consult your healthcare provider with any questions or concerns you may
have regarding your condition.
Multum Disclaimer
Every effort has been made to ensure that the information provided by Multum is
accurate, up-to-date, and complete, but no guarantee is made to that effect. In
addition, the drug information contained herein may be time sensitive and should
not be utilized as a reference resource beyond the date hereof. Also requires
user to accept Terms of Use when such content is first displayed.
16 of 21
APPENDIX B
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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APPENDIX C
ERROR CORRECTION SCHEDULE
The response times within which ▇▇▇▇▇▇.▇▇▇ shall remedy and/or correct any
material limitations or errors in any Content Partner Content made available by
or through ▇▇▇▇▇▇.▇▇▇ that Users of ▇▇▇▇▇▇.▇▇▇ bring to ▇▇▇▇▇▇.▇▇▇'s attention
or about which ▇▇▇▇▇▇.▇▇▇ otherwise becomes aware are specified below.
▇▇▇▇▇▇.▇▇▇ shall acknowledge receipt of the problem description, and, in the
time frames specified below, remedy and/or correct the problem.
Program/Error Severity Levels Problem/Error Correction Time
----------------------------- -----------------------------
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
18 of 21
APPENDIX D
FEES AND PAYMENTS
A. Fees and Payments
1. ▇▇▇▇▇▇.▇▇▇ shall pay to BVIG a content/program placement fee of six
million dollars ($6,000,000) (five hundred thousand dollars of which
is attributable as a production fee as described below) and, in
consideration for the ad impressions to the delivered under Appendix
A, Section 12a., an advertising fee of one million five hundred
thousand dollars ($1,500,000) payable to BVIG on the schedule
specified below.
2. BVIG shall pay to ▇▇▇▇▇▇.▇▇▇ an advertising fee of two million dollars
($2,000,000) for the ad impressions to be provided under Appendix A,
Section 12b over the first two year period of the term of this
Agreement, provided this Agreement is not terminated.
B. Payment Schedule
1. Content/Placement Fee to BVIG:▇▇▇▇▇▇.▇▇▇ shall pay to BVIG a non-
refundable, up-front production fee payment ***
2. ***
C. Other
1. BVIG (or its agents) shall receive all monies derived from
advertising, product sales, and all other activities and transactions
on all pages of ▇▇▇▇▇▇.▇▇▇. ▇▇▇▇▇▇.▇▇▇ shall receive all monies
derived from advertising, product sales and all other activities and
transactions on the Family.com-Wrapped Pages and the ▇▇▇▇▇▇.▇▇▇ Site.
2. All BVIG invoices are to be mailed to:
▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: _______________________
All payments are to be mailed to:
Buena Vista Internet Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Accounts Payable
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
19 of ▇▇
▇▇▇▇▇▇▇▇ ▇
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
20 of 21
APPENDIX F
***
__________________________
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
21 of 21
