SUBLICENSE AGREEMENT
This Agreement is entered into to be effective as of September 12, 1997
by and between IVI Publishing, Inc., a Minnesota corporation, 0000 Xxxxxx Xxxxx
Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000 ("IVI") and Mayo Foundation for Medical
Education and Research, a Minnesota non-profit corporation, 000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 ("Mayo").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Grant of Sublicense. Subject to the terms and conditions of this
Agreement, IVI grants and Mayo accepts a limited, personal, nontransferable,
nonexclusive sublicense of IVI's license to use the Databases, as that term is
defined in the License Agreement by and between the United States Pharmacopeial
Convention, Inc. ("Licensor") and IVI dated July 1, 1996, as amended by the
Renewal and Amendment dated July 1, 1997, and as further amended by the
Amendment and Acknowledgment executed by USP as of September ___, 1997 (the "USP
License Agreement"), solely for use on Mayo's health information website known
as the "Oasis" (the "Health Site"). Mayo is prohibited from sublicensing any of
it rights hereunder to any party other than its employees, end-user customers.
Mayo agrees to abide by all of the terms and conditions relating to the use of
the Databases contained in the USP License Agreement, which are incorporated
herein by reference. During the term of this Agreement, Mayo shall allow the
Licensor to have unlimited access to the Health Site, without charge.
2. Limitations. Mayo agrees that it will permit its customers to access
and use the Databases only in accordance with the terms and provisions of the
USP License Agreement. Mayo shall not and agrees not to authorize others to copy
(except for non-professional personal use), modify, alter, revise, paraphrase,
omit, change, display, store, time-share, rent, lease, sublicense, publish,
distribute, transmit, transfer, assign, sell, incorporate in other products or
services or the products or services of any other entity, or commercially
exploit in any manner whatsoever the Databases or any portion thereof. Mayo
further agrees to take all reasonable steps to protect the Databases from
unauthorized access.
3. Royalties. In exchange for the sublicense granted pursuant to this
Agreement, Mayo agrees to pay IVI royalties of $1,000.00 per month. Monthly
royalty payments are due in advance on the first business day of each month. The
monthly royalty payment shall be pro rated for any partial calendar month during
the term of this Agreement.
4. Advertising Restrictions. Mayo agrees that it shall at no time take
any action or make any statement that could discredit or harm in any manner the
good reputation of Licensor or its products or services. This includes, but is
not limited to, creating hyper-text links from the Health Site to other sites on
the Internet, as well as juxtaposing advertising or other materials that
constitute "labeling" or any other illegal act, that are likely to create or are
intended to create the impression that Licensor endorses the goods or services
of other individuals, companies or organizations, or that other individuals,
companies or organizations endorse the goods or services of Licensor. Floating
advertisement "banners" at the top or bottom of an Internet screen are
permissible only if all of the following conditions are met: (a) Licensor's
information is clearly separated from the Information in the banner; (b) the
advertisement is clearly not advertising Licensor's goods or services; (c)
juxtaposition of the banner does not imply an endorsement of the subject matter
of the advertisement; and (d) the juxtaposition does not constitute "labeling"
or any other illegal act.
5. Proprietary Rights. Mayo acknowledges and agrees that the Databases,
all copies thereof and all methods for structuring, organizing, sequencing and
indexing it constitute valuable trade secrets of Licensor and are proprietary to
and confidential information of Licensor (as used in this paragraph, "Licensor"
shall mean Licensor and/or its vendors, suppliers or contractors). Title to the
Databases and all applicable copyrights, trade secrets, patents and other
intellectual and property rights in it are and remain with Licensor. All other
aspects of the Databases, including, without limitation, data, methods of
processing, specific design and structure, the interaction of documents
contained therein and unique design techniques employed therein as well as
document storage and quality assurance methodologies, shall remain the sole and
exclusive property of Licensor and shall not be sold, used, revealed, disclosed
or otherwise communicated, directly or indirectly, by Mayo to any person,
company or institution whatsoever. No title to or ownership of the Databases, or
any part thereof, or any aspect related to or trade secret involved with the
Databases is hereby transferred to Mayo.
6. Software Security. Mayo shall implement appropriate security
software acceptable to Licensor to ensure protection of the Databases. Mayo
shall maintain such accepted security software during the full term of this
Agreement. If Mayo fails to implement or maintain such appropriate security
software, IVI shall terminate this Agreement if after providing written notice
to Mayo, Mayo fails to cure such failure within seventy-two (72) hours after
delivery of such notice.
Mayo agrees that violation of any provision of this Section may result in
irreparable injury to IVI and Licensor for which there may not be any adequate
remedy at law. As a result, Mayo agrees that in addition to any other remedies
available to it, IVI and/or Licensor may bring an action or actions for
injunctive relief, including a temporary restraining order, preliminary
injunction or permanent injunction and reasonable attorney's fees and costs.
7. Corrections. In the event IVI or Licensor discovers a critical or a
medically significant error or omission in any of the Licensor information
provided under this Agreement to Mayo, IVI shall notify Mayo by telephone or
facsimile message immediately after the error or omission has been discovered.
Mayo agrees to promptly correct the error on the Health Site.
8. Disclaimers/Notices. Mayo shall include the following language in
the general disclaimer which provides users access to the Health Site:
"The information in this leaflet has been selectively abstracted from
USP DI(R) for use as an educational aid and does not offer all possible
uses, actions, precautions, side effects, or interactions of this
medicine. It is not intended as medical advice for individual problems.
The information about drugs contained in this database is general in
nature and is intended for use as an educational aid. It does not cover
all possible uses, actions, precautions, side effects, or interactions
of these medicines, nor is the information intended as medical advice
for individual problems or for making an evaluation as to the risks and
benefits of taking a particular drug."
"NOTICE: The information contained herein has been devised without
reference to cultural, dietary, societal, language, prescribing or
dispensing conditions (including those imposed by law), other than
those of the Untied States, which might affect the information
provided."
"The text that a user may be viewing at any one time, or may print, may
contain only a portion of the full Leaflet or USP monograph. The entire
USP DI(R) should be consulted for complete information."
"Information is for personal use any may not be sold or redistributed."
Mayo also agrees to include on the Health Site the appropriate copyright and
trademark notices as required by Licensor under Sections 10 and 11 of the USP
License Agreement.
9. Limited Warranty: Exclusion of Damages. Mayo acknowledges, and shall
require each person given access to the Health Site to acknowledge, that any
collection or any compilation of data entails the likelihood of some human and
machine errors, omissions, delays, interruptions, and losses, including
inadvertent loss of data or damage to media, that may give rise to loss or
damage. Accordingly, Mayo agrees THAT THE DATABASES ARE PROVIDED "AS IS";
NEITHER LICENSOR NOR IVI MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO
ITS ACCURACY, COMPLETENESS, OR CURRENTNESS; AND LICENSOR AND IVI SPECIFICALLY
DISCLAIM ANY OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF MAYO'S
PROGRAM IS WITH MAYO. NEITHER LICENSOR NOR IVI WARRANTS THAT THE INFORMATION
CONTAINED IN THE DATABASES WILL MEET MAYO'S REQUIREMENTS OR THAT THE OPERATION
OF THE DATABASES WILL BE ERROR-FREE. LICENSOR SOLELY WARRANTS THE ELECTRONIC
MEDIA ON WHICH THE DATABASES ARE FURNISHED TO BE FREE FROM DEFECTS IN MATERIALS
AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE
OF DELIVERY TO MAYO. NEITHER LICENSOR NOR IVI SHALL NOT BE LIABLE ON ACCOUNT OF
ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. MAYO AGREES THAT IN NO EVENT WILL
LICENSOR OR IVI BE LIABLE FOR THE RESULTS OF MAYO'S USE OF THE DATABASES, OR ITS
INABILITY OR FAILURE TO CONDUCT ITS BUSINESS, OR FOR DIRECT, INDIRECT, SPECIAL
OR CONSEQUENTIAL DAMAGES. MAYO FURTHER AGREES THAT IN NO EVENT WILL THE TOTAL
AGGREGATE LIABILITY OF LICENSOR AND IVI FOR ANY CLAIMS, LOSSES, OR DAMAGES
ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED HEREUNDER, WHETHER IN
CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE TOTAL AMOUNT PAID BY MAYO TO
IVI DURING THE PRECEDING TWELVE-MONTH PERIOD, EVEN IF LICENSOR AND/OR IVI HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS, OR DAMAGE. THE
FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY
REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
If the foregoing limitations are held to be unenforceable, Licensor's and IVI's
liability for damages under this Sublicense Agreement to Mayo shall in any event
not exceed the total amount of royalties paid by Mayo hereunder.
10. Remedies. Licensor's and IVI's entire liability and Mayo's
exclusive remedy if a Database fails to meet the Limited Warranty set forth in
Section 9 above shall be:
a) the replacement of any diskette not meeting USP's "Limited
Warranty," or
b) if IVI is unable to deliver a diskette which is free of
defects in materials or workmanship, IVI may terminate this
Agreement by returning the Databases.
11. Indemnification. Mayo agrees to indemnify and hold IVI harmless
from any and all liability that IVI may have to USP under the indemnification
provision set forth in Section 16(a) of the USP License Agreement which result
Mayo's use of the Databases under the terms of this Sublicense Agreement and/or
resulting from any third party claim relating to the material contained on the
Health Site.
12. Term and Termination.
a) Term. This Agreement shall commence as of the effective date
set forth on the first page of this Agreement and shall
automatically expire upon the termination or expiration of the
USP License Agreement, unless earlier terminated pursuant to
the provisions of subparagraph b) or c) below, or Section 6
herein.
b) Termination by Mayo. Mayo shall have the right to terminate
this Agreement, with or without cause, upon delivery of thirty
(30) days prior written notice to IVI.
c) Termination for Breach. If Mayo fails to perform or breaches
any term or provision of this Agreement, IVI may terminate
this Agreement effective twenty (20) days after delivery of
written notice to Mayo describing the breach and the proposed
cure; provided, however, this Agreement shall not terminate if
such breach is cured within such twenty (20) day period.
d) Effect of Termination. Upon expiration or termination of this
Agreement, Mayo agrees to immediately return to IVI all
materials originally delivered by IVI to Mayo relating to the
Databases.
13. Relationship of Parties. Nothing in this Agreement shall be
construed to constitute or appoint either party as the agent, partner, or
representative of the other party for any purpose whatsoever, or to grant to
either party any rights or authority to assume or create any obligation or
responsibility, express or implied, for or on behalf of or in the name of the
other, or to bind the other in any way or manner whatsoever.
14. General Provisions.
a) Entire Agreement and Amendments. This Agreement constitutes
the entire Agreement between the parties relating to the
Databases. This Agreement shall not be amended or modified
except by a written document signed by both parties.
b) Waiver. No purported waiver of any provision of this Agreement
shall be binding unless set forth in a written document signed
by the party to be charged thereby. Any waiver shall be
limited to the circumstance or event specifically referenced
in the written waiver document and shall not be deemed to be a
waiver of any other term of this Agreement or of the same
circumstance or event upon any recurrence thereof.
c) Severability. If any part of this Agreement is held to be
unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect.
d) Notices. All notices required under this Agreement shall not
be valid unless set forth in writing and shall be deemed to
have been duly given: (i) when received if delivered in
person; (ii) the next business day if delivered by facsimile
transmission (with receipt confirmed) or if delivered by
reputable overnight delivery service for next business day
delivery; or (iii) on the fifth (5th) business day after
depositing in the U.S. mail for delivery by air mail, return
receipt requested, postage prepaid and addressed to the
appropriate party at the addresses set forth on the first page
hereof. If either party should change its address or facsimile
number, such party shall give written notice to the other
party of the new address and/or new facsimile number in the
manner set forth above, but any such notice shall not be
effective until actually received by the addressee.
e) Assignment. This Agreement may not be assigned by Mayo by
operation of law or otherwise to any other person, persons,
firms or corporations without the express written approval of
IVI and Licensor.
f) Governing Law. This Agreement shall be interpreted and
construed in accordance with the laws of the State of
Minnesota.
The parties hereto have executed this Agreement in a manner appropriate
to each to be effective as of the date set forth above.
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IVI PUBLISHING, INC. MAYO FOUNDATION FOR
MEDICAL EDUCATION AND
RESEARCH
/s/ Xxx Xxxxxxx /s/ Xxxx X. Xxxxxx
Signature Signature
Xxx Xxxxxxx Xxxx X. Xxxxxx
Name Name
CEO & President (blank)
Title Title
