CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.45
INTERNET CUSTOMIZATION AND ACCESS SERVICES AGREEMENT
This Internet Customization and Access Service Agreement (the "Agreement")
is entered into this 18th day of December, 1998 (the "Effective Date") between
CompuServe Interactive Services, Inc., a Delaware corporation, whose address is
0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxx 00000 ("Company") and WebMD,
Inc., a Georgia corporation, whose address is 0000 Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 ("WebMD").
The parties hereto agree and bind themselves as follows:
(1) DEFINITIONS.
(a) "Company Services" shall mean the Internet Access Service and any other
services to be provided by Company under this Agreement.
(b) "End User" shall mean any person or entity to whom the End User
Software is distributed pursuant to this Agreement.
(c) "Fulfillment Date" shall mean the earlier of (i) the date that the
fulfillment materials are first available for delivery to End Users or (ii)
sixty (60) days after the Effective Date.
(d) "Internet Access Service" shall mean the standard personal computer-
based, narrow-band U.S. versions or the CompuServe(R) brand online service that
provides access to the Internet, either via dial-up connections locally or via a
local or toll-free telephone number provided by Company hereunder.
(e) "Interactive Service" shall mean an entity offering on or more of the
following: (i) online or Internet connectivity services (e.g., an Internet
service provider); (ii) a broad selection of aggregated third party interactive
content (or navigation thereto) (e.g., an online service or search and directory
service); (iii) communications software capable of serving as the principal
means through which a user creates, sends and receives electronic mail or real
time online messages.
(f) "Joint Marketing Plan" shall mean a plan for the marketing of the
services contemplated herein to be developed and mutually agreed upon by the
Parties within thirty (30) days of the Effective Date. Such Plan shall
thereafter be reviewed at least once every six (6) months and amended by the
Parties from time to time as necessary to advance the Parties' mutual planning
objectives and take account of changes contemplated by this Agreement.
(g) "Subscriber" shall mean any End User who is registered with Company as
an authorized current user of the Internet Access Service.
(h) "End User Software" shall mean the object code version of the Company's
standard software for End Users to utilize the Internet Access Service.
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(i) "Host Software" shall mean the object code version of the software
located on Company's computer hardware that delivers content to Subscribers as
such software shall be modified for WebMD pursuant to Section 2(a) hereof.
(j) "Support and Service Agreement" shall mean an agreement for the
provision of technical support to Subscribers and all other WebMD subscribers
with regard to the Company Services and the WebMD Site, which agreement shall be
developed and mutually agreed upon by the Parties within *** days of the
Effective Date. Such agreement shall thereafter be reviewed at least once every
*** months and amended by the Parties from time to time as necessary to
advance the Parties' mutual planning objectives and take account of changes
contemplated by this Agreement.
(k) "Technical Integration Plan" shall mean a plan for technical
integration of the services contemplated hereunder to be developed and mutually
agreed upon by the Parties within thirty (30) days of the Effective Date. Such
Plan shall thereafter be reviewed at least once every six (6) months and amended
by the Parties from time to time as necessary to advance the Parties' mutual
planning objectives and take account of changes contemplated by this Agreement.
(l) "WebMD Site" shall mean the WebMD homepage on the World Wide Web
located at the location specified on Exhibit 2, as such Site may be changed,
modified or further developed during the term of this Agreement.
(2) COMPANY OBLIGATIONS.
(a) CUSTOMIZATION. Company, at *** cost and expense, will customize
the Host Software as specified on Exhibit 2 as is reasonably necessary and
technically feasible to redirect Subscribers to an automated WebMD start page.
(b) Company will provide WebMD with the then current End User Software in
object code form for distribution by WebMD pursuant to this Agreement, Company
hereby grants WebMD a non-exclusive license to distribute and promote the End
User Software and related documentation during the Term, solely to the limited
extent and for the express purposes contemplated hereunder.
(c) INTERNET ACCESS. Company shall provide Internet Access to each End User
who requests such service during the term of this Agreement on the standard
terms and conditions for the provisions of Internet Access Services set forth on
Exhibit I and at the rate listed on Exhibit 2 hereto. In no event shall WebMD
modify or add any surcharges to the fees charged by Company for the Internet
Access Service.
(d) E-MAIL ADDRESSES. As a part of the Company Services, Company shall
provide each End User with either (i) *** personal e-mail address with its
Internet Access Service known as "CompuServe Classic" (versions 4x and below) or
(ii) a primary e-mail address plus *** additional addresses as sub-accounts
to Subscribers with Company's new service currently known as "CompuServe 2000"
for use in connection with the other Company Services provided hereunder. The
Parties hereby acknowledge that WebMD provides
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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professional e-mail addresses and messaging services through its virtual
receptionist product to End Users as a standard feature of a WebMD subscription.
All WebMD links, toolbars and other directional indications will point to the
virtual receptionist and other electronic communication features included with
the applicable WebMD subscription. The e-mail toolbar in the Company browser
used as a part of the End User Software will point to the Company e-mail
services provided as part of this Agreement. The above listed features will be
mutually agreed to by the Parties and set forth in the Technical Integration
Plan.
(e) COMPANY USER SUPPORT SERVICE. As more specifically set forth in the
Support and Service Agreement, Company will provide its standard End User
service to WebMD, including a unique toll number, available 24 hours a day,
7 days a week to handle questions relating to the Internet Access Service,
including registration, installation and billing questions, and the Software
provided hereunder.
(f) REPORTING; BILLING. WebMD shall be responsible for billing all
Subscribers under the rate(s) set forth in Exhibit I on a monthly basis
("Subscribers' Fees") and remitting such Subscriber Fees to Company as provided
below. Company shall provide its standard reports on the Company Services,
including without limitation, information on the number of Subscribers and total
billed revenue. Company shall invoice WebMD for all active Subscribers no later
than the last Saturday of each month. WebMD shall pay all undisputed invoices no
later than *** days from the date CompuServe sends such invoices.
WebMD shall use commercially reasonable efforts to resolve all disputed invoices
within thirty (30) days. Company shall make such standard reports available
electronically to WebMD in a mutually agreeable file format suitable to permit
WebMD to incorporate such reported data into its bills to Subscribers. Company
and WebMD shall make customized reports, including reports in electronic format,
available to WebMD at WebMD's reasonable request. WebMD bears sole risk of
collection for delinquent accounts, except to the extent the delinquency results
from service problems caused by Company, and provided that WebMD can terminate
service for delinquent accounts immediately. Each Party shall maintain complete,
clear and accurate records of all expenses, revenues, fees, transactions and
related documentation (including agreements) in connection with the performance
of financial obligations under this Agreement ("Records"). All such Records
shall be maintained for a minimum of *** years following termination of
this Agreement. For the sole purpose of ensuring compliance with this Agreement,
each Party shall have the right, at its expense, to direct an independent
certified public accounting firm subject to strict confidentiality restrictions
to conduct a reasonable and necessary copying and inspection of portions of the
Records of the other Party which are directly related to amounts payable to the
Party requesting the audit pursuant to this Agreement. Any such audit may be
conducted after *** business days prior written notice, subject to the
following. Such audits shall not be made more frequently than once every twelve
months. No such audit of Company shall occur during the period beginning on
*** and ending ***. No such audit of WebMD shall be conducted during the
period beginning on December 1 and ending January 1. In lieu of providing access
to its Records as described above, a Party shall be entitled to provide the
other Party with a report from an independent certified public accounting firm
confirming the information to be derived from such Records.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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(g) INSTANT MESSENGER SERVICE. Company shall provide as part of the End
User Software or make available through electronic access on the Internet the
"CompuServe Instant Messenger" software to Subscribers and to all other WebMD
subscribers, regardless of their Internet service provider, all as more
specifically set forth in the Technical Integration Plan. The distribution of
the Instant Messenger software shall be subject to Company's then-current terms
and conditions.
(h) USER SUPPORT AND SUPPORT OF ADDITIONAL SOFTWARE. Company shall provide
a toll-free telephone number to receive End User trouble calls regarding the
WebMD Site and other issues as more fully set forth in the Support and Service
Agreement. Based on a mutually agreeable script, Company may encourage WebMD
subscribers who use the Company dial-up support to change their Internet service
provider to a full or "bring your own access" Company account, all as more
specifically set forth in the separate Support and Service Agreement.
(i) COMPANY FULFILLMENT RESPONSIBILITIES. Company, at its sole cost, shall
be responsible for the creation and reproduction of the fulfillment materials
set forth on Exhibit 2 attached hereto ("Company Fulfillment Materials"), all as
more specifically set forth in the Joint Marketing Plan.
(j) USE OF COMPANY FORUMS. As one of the Company Services, each Subscriber
shall have access to Company public forums. All such forums will maintain the
Company branding and links to Company membership information. Company also
agrees to explore and negotiate in good faith toward the development of creating
private forums for all other WebMD subscribers. In addition, Company will
explore and negotiate in good faith to create a method of providing access to
Company public forums by non-subscribing consumers accessing the WebMD Site who
are also non-Company subscribers. Notwithstanding the above, Company shall not
be required to provide non-Company subscribers with access to such forums if it
will have a material adverse impact on the Company.
(3) WEBMD OBLIGATIONS.
(a) MINIMUM SUBSCRIPTION COMMITMENTS. WebMD will generate a minimum of ***
Subscribers within eight (8) months and *** Subscribers within twelve (12)
months of the Fulfillment Date. If the eight (8) month hurdle described above is
not met, WebMD will perform a direct mail campaign (or a mutually agreeable
campaign of similar size) to *** physicians or similar target, which will
primarily market the Company Services. If the twelve (12) month hurdle described
above is not met, WebMD will perform at its own expense a second direct mail
campaign (or a mutually agreeable campaign of similar size) to ***, then
currently licensed physicians or similar target which will primarily market the
Company Services. In addition, if the twelve (12) month hurdle is not met,
Company may no longer use WebMD as the exclusive distribution channel to the
medical community and Company may choose to terminate this Agreement, either
upon thirty (30) days prior written notice to WebMD. If Company fails to provide
such notice within thirty (30) days of the date of the twelve (12) month hurdle,
this Agreement shall continue in full force in accordance with the terms hereof.
***Omitted pursuant to a request for confidential treatment and filed separately
with the Commission.
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(b) WEBMD FULFILLMENT RESPONSIBILITIES. WebMD, at its sole cost, will be
responsible for the distribution to End Users of the fulfillment materials
listed on Exhibit 2 ("Fulfillment Materials"). WebMD will conduct an initial
general distribution of the Fulfillment Materials to *** potential End Users,
all as more specifically set forth in the Joint Marketing Plan. Company shall be
the exclusive Internet Access Service provided on the Fulfillment Materials for
End Users with personal computers.
(c) PROMOTIONAL OFFERS. Once per calendar quarter, WebMD will undertake a
promotional offer to WebMD subscribers to encourage End Users using other
Internet service providers through individual, personal computers to switch to
the Company Services, all as more specifically set forth in the Joint Marketing
Plan.
(d) MANAGEMENT OF WEBMD SITES. WebMD will manage, review, delete, edit,
create, update and otherwise manage the WebMD Site and the Anchor Tenant Site
(described below) (collectively, the "Sites). WebMD will ensure that the Sites
are current, accurate and well-organized at all times.
(e) SOLICITATION OF COMPUSERVE USERS. During the term of this Agreement
neither WebMD nor its agents will (i) solicit, or participate in the
solicitation of Subscribers when that solicitation is for the benefit of an
Interactive Service (including WebMD, if the solicitation is intended to cause
Subscribers to use another provider for online access) that is in competition
with Company, its parent or affiliates or (ii) use the Company Services to
promote any product or service (excluding the products and services offered by
WebMD that are competitive with those Company exclusive advertising and commerce
relationships set forth on Exhibit 3 hereto. Neither WebMD nor its agents may
use the Company Services to promote products or services of third parties. For a
period of one year after the expiration or termination of this Agreement, WebMD
will not directly market, including without limitation direct contact by mail,
e-mail or telemarketing, an online access provider that is in competition with
Company to WebMD subscribers who are also Subscribers.
(f) COLLECTION OF SUBSCRIBER INFORMATION. WebMD is prohibited from
collecting Subscribers' screen names e-mail addresses or other individually
identifying information ("User Information") from public or private areas within
the Company Service unless WebMD has a separate, business relationship with such
Subscribers. For purposes of this section, a "prior, business relationship"
shall mean that Subscribers either engaged in a transaction with WebMD or
voluntarily provided information to WebMD.
(4) JOINT OBLIGATION.
(a) CONTENT. WebMD shall at its own expense design, create, edit, manage,
update, and maintain a custom "consumer" version of its health community for
Company ("Anchor Tenant Site"). Company agrees to feature WebMD as the anchor
tenant in Company's Health Channel. The top three (3) pages of the Anchor Tenant
Site shall be co-branded to include the CompuServe and WebMD brand names ("Co-
Branded Pages"). The Parties shall, in good faith, use reasonable commercial
efforts to develop and implement a Technical Integration Plan relative to the
design, development and management of the Anchor Tenant Site. Such
***Omitted pursuant to a request for confidential treatment and filed separately
with the Commission.
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Technical Integration Plan shall include reasonable commercial standards for
WebMD's responsibilities in managing and hosting the Anchor Tenant Site. Company
owns all right, title and interest in and to the advertising and promotional
spaces (i) within the Internet Access Service (including, without limitation,
advertising and promotional spaces on any Company forms or pages which are
included within, preceding, framing or otherwise associated with the Anchor
Tenant Site and (ii) on the Co-Branded Pages. WebMD will own all right, title
and interest in and to the advertising and promotional spaces within the WebMD
Site but excluding the Co-Branded Pages. WebMD will not serve on the Co-Branded
Pages advertising or commerce that is competitive with those Company exclusive
advertising and commerce relationships set forth on Exhibit 3 hereto or with
Interactive Services that are in competition with the Company. The provisions of
this Subsection will be more specifically set forth in the Technical Integration
Plan.
(b) BRANDING. Company and WebMD will mutually agree to an appropriate level
of Company branding in the WebMD Site all as more fully set forth in the
Technical Integration Plan. This branding will be used for both branding and
navigation to the Company main menu. WebMD will place a Company link on the
bottom frame of the WebMD portal as long as a customer is not a member of
another affinity WebMD program, and Company will have preferred placement in the
WebMD "lounge" area, all as more specifically set forth in the Technical
Integration Plan.
(c) COMMERCIAL RELATIONSHIPS. WebMD is free to create commercial
relationships and promote those relationships on the WebMD portal and Web Site.
Company is free to create commerce relationships and promote those relationships
on the Company Services.
(d) OPERATION STANDARDS. Company shall be responsible for all
communications, hosting costs and expenses associated with the Internet Access
Service and will provide all computer hardware and software necessary for End
Users and Subscribers to access the Internet Access Service. WebMD shall be
responsible for all communications, hosting costs and expenses associated with
the WebMD Site and will provide all computer hardware and software necessary for
End Users and Subscribers to access the WebMD Site and Anchor Tenant Site. Each
Party will ensure that the performance and availability of their respective
services and sites are monitored on a continuous, 24/7 basis and remain
competitive in all material respects with the performance and availability of
other similar services based on similar form technology.
(5) TERM AND TERMINATION.
(a) TERM. This Agreement shall commence on the Effective Date, and shall
continue in effect for two (2) years after the Fulfillment Date (the "Initial
Term"), unless earlier terminated as provided herein. Upon prior, mutual written
consent, the parties may extend the term of this Agreement for additional one
(1) year terms.
(b) Termination. Either Party may terminate this Agreement immediately upon
the occurrence of any of the following events: (i) if the other Party breaches a
material term of this
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Agreement and fails to cure such breach within thirty (30) days following the
nonbreaching Party's written notice of such breach which shall specify the
conditions to be cured in reasonable detail; (ii) if the other Party dissolves,
discontinues or terminates its business, or if any bankruptcy, reorganization,
insolvency, dissolution or similar proceeding is instituted by or against it and
is not dismissed within sixty (60) days, or if it makes any assignment for the
benefit of creditors or takes any corporate action in furtherance of the
foregoing; or (iii) if the Parties fail to develop and execute either the Joint
Marketing Plan, the Technical Integration Plan or the Support and Service
Agreement. Upon termination of the Agreement pursuant to either Section 5(a) or
5(b) of this Agreement, Company may engage in separate billing arrangements with
Subscribers.
(6) INTELLECTUAL PROPERTY RIGHTS.
(a) SOFTWARE. Except as expressly provided in Section 6(b), all components
of the End User Software, Host Software and all intellectual property rights
therein are and shall be owned by Company. In the event that the Software should
become, or in Company's opinion is likely to become, the subject of a claim of
infringement of any patent, copyright, trademark or trade secret, then Company
may, at its option: (i) procure the right to continue using the Software; or
(ii) replace or modify the Software to make it noninfringing with functionally
equivalent software.
(b) TRADEMARKS AND OTHER PROPRIETARY MARKS. The parties acknowledge and
agree that the other Party may specify certain trade names, trademarks, service
marks, logos and other proprietary marks ("Marks") of the other Party that will
be required to appear packaging, advertising and promotional materials and that
all usage of any such Marks shall be in accordance with the guidelines that the
parties will communicate to each other on their accepted usage. All promotional
materials that use the other Party's Xxxx, including the use of such Marks on
packaging, disks, documentation and advertising shall be mutually agreed to by
the Parties. Each Party acknowledges the other Party's intellectual property
rights in and to each of their respective Marks, and, except as provided in this
paragraph, nothing in this Agreement shall be construed to grant either Party
any rights in or to the other Party's Marks. Except as expressly authorized in
advance in writing, each Party shall not use any xxxx of the other Party in any
advertising, marketing, technical, packaging or other materials. Neither Party
shall challenge or contest the ownership of the Marks or validity of the Marks.
Neither Party shall do anything that is inconsistent with such ownership and
agrees that all use of the Marks shall inure to the benefit of and be on behalf
of the owner of the Marks. Neither Party shall set up any adverse claim against
the Party owning the Marks based on its use of the Marks as may be authorized
hereunder. Each Party shall employ best efforts to use the Marks in a manner
that does not denigrate from the owner's rights in the Marks and will take no
action that will interfere with or diminish its rights in the Marks. Neither
Party shall adopt, use or register any Xxxx, corporate name, or certification
xxxx or other designation similar to, or containing in whole or in part, the
Marks not owned by it.
All rights not expressly granted herein related to the Marks are
reserved by the owner. Neither Party may use the Marks in a manner other than as
expressly described herein. All rights that either Party has acquired or may
acquire in Marks owned by the other Party in
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conjunction with this Agreement, including all associated goodwill, shall be the
property of the owner of the Marks solely and hereby are assigned to such owner.
Except as otherwise expressly provided herein, neither Party shall assign,
transfer or sublicense its rights under this Section in any manner without the
prior written consent of the other Party. Any attempted assignment or transfer
in violation of the provisions hereof, by operation of law or otherwise, shall
be void. Neither Party shall use a Xxxx in any manner which, in Xxxx owner's
reasonable judgment, will diminish or otherwise damage such owner's goodwill in
the Xxxx, including, but not limited to uses which could be deemed to be
obscene, pornographic, excessively violent or otherwise in poor taste or
unlawful, or which purpose or objective is to encourage unlawful activities.
Each Party acknowledges and agrees that a breach by it of this Section may cause
the other Party or its licensor(s) irreparable damage that cannot be remedied in
monetary damages in an action at law, and may also constitute infringement of
the Marks. In the event of any breach that could cause irreparable harm to the
owner of the Marks, or cause some impairment or dilution of its reputation or
Marks, such owner shall be entitled to an immediate injunction, in addition to
any other available legal or equitable remedies.
(7) CONFIDENTIALITY.
(a) For purposes of this Section 7, the following terms shall have the
meanings as specified below:
(i) "Trade Secrets" means information which: (A) derives economic
value, actual or potential, from not being generally known to, and not being
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and, (B) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
(ii) "Confidential Information" means information, other than Trade
Secrets, that is of value to its owner and is treated as confidential.
(iii) "Proprietary Information" means Trade Secrets and Confidential
Information.
(b) Each party ("Receiving Party") agrees to hold the Proprietary
Information of the other party ("Disclosing Party") in strictest confidence and
not to, directly or indirectly, copy, reproduce, distribute, duplicate, reveal,
report, publish, disclose, cause to be disclosed, or otherwise transfer the
Proprietary Information of the Disclosing Party to any third party, or utilize
the Proprietary Information of the Disclosing Party for any purpose whatsoever
other than as specifically authorized by this Agreement. With regard to the
Trade Secrets, this obligation shall continue for so long as such information
constitutes a trade secret under applicable law. With regard to the Confidential
Information, this obligation shall continue for the term of this Agreement and
for a period of five years thereafter. The Receiving Party acknowledges and
agrees that the Proprietary Information of the Disclosing Party is and shall at
all times remain the sole and exclusive property of the Disclosing Party and in
the event of termination or expiration of this Agreement for any reason, the
Receiving Party shall return immediately to the Disclosing Party all Proprietary
Information of the Disclosing Party and any copies thereof in its possession or
under its control. Upon the return of such Proprietary
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Information, the Receiving Party shall provide the Disclosing Party with a
signed written statement certifying that it has returned all Proprietary
Information of the Disclosing Party and any copies thereof to the Disclosing
Party.
(c) Without limiting the general obligations specified in subparagraph (b)
above, the Receiving Party agrees to implement the following security steps in
order to protect the confidentiality and security of the Proprietary Information
of the Disclosing Party:
(i) Implement internal procedures to limit, control and supervise
the use of the Proprietary Information of the Disclosing Party.
(ii) Make the Proprietary Information of the Disclosing Party
available only to full-time employees of the Receiving Party who have executed
written agreements requiring them to recognize the proprietary and confidential
nature of the Proprietary Information of the Disclosing Party and to comply with
the nondisclosure obligations set forth herein.
(iii) Notify the Disclosing Party in writing of any suspected or
known breach of the obligations and/or restrictions set forth in this Section 7.
(iv) Use those security procedures it uses for its own proprietary
information that it protects against unauthorized disclosure, appropriation or
use.
(8) LIMITATION OF LIABILITY. NEITHER PARTY SHALL HAVE LIABILITY TO ANY OTHER
FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE THEREOF (EVEN IF THAT
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH
OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE COMPANY
SERVICES, THE WEBMD SITE, THE ANCHOR TENANT SITE, OR ARISING FROM ANY OTHER
PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR
ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES");
PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY
DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO
INDEMNIFICATION PURSUANT TO SECTION 9 BELOW. LIABILITY ARISING UNDER THIS
AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES.
(9) INDEMNITY.
(a) COMPANY. Company agrees to defend, indemnify and hold WebMD and the
officers, directors, agents, affiliates, distributors, franchisees and employees
of WebMD harmless from and against any and all claims, losses, damages, actions,
liabilities, expenses, or costs, including reasonable attorneys fees, arising
out of any claim, demand, action, suit, investigation, arbitration or other
proceeding by a third party based on (a) any assertion that any of the Company
Services or the Software, alone or in combination, infringes the patent,
copyright, trademark, intellectual property or similar rights or trade secret
rights of such third
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party, (b) violation by Company of any administrative order, applicable law,
governmental regulations, (c) Company's violation of its terms of service with
respect to Subscribers.
(b) WEBMD. WebMD agrees to defend, indemnify and hold Company and the
officers, directors, agents, affiliates, distributors, franchisees and employees
of Company harmless from and against any and all claims, losses, damages,
actions, liabilities, expenses, or costs, including reasonable attorneys fees,
arising out of any claim, demand, action, suit, investigation, arbitration or
other proceeding by a third party based on (a) any assertion that the WebMD Site
infringes the patent, copyright, trademark, intellectual property or similar
rights or trade secret rights of such third party, or (b) violation by WebMD of
any administrative order, applicable law or governmental regulation.
(10) DISCLAIMERS.
(a) COMPANY'S DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES
NOT MAKE ANY AND IT HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE COMPANY SERVICES, OR ANY PORTION
THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY
SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY ECONOMIC OR OTHER BENEFIT THAT
WEBMD MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
(b) WEBMD DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WEBMD DOES NOT
MAKE ANY AND WEBMD HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES REGARDING
THE WEBMD SITE, WEBMD'S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, WEBMD SPECIFICALLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY REGARDING ANY ECONOMIC OR OTHER BENEFIT THAT COMPANY
MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
(10) FORCE MAJEURE. No party shall be liable for a delay in the performance of
its obligations and responsibilities under this Agreement due to causes beyond
its reasonable control, including, but not limited to, prohibitions or
requirements of applicable laws, failures or delays in transportation or
communication, failure or substitutions of equipment, labor disputes, accidents,
shortages of labor, fuel, raw materials or equipment or technical failures,
provided that the delayed party has taken reasonable measures to notify the
other, in writing, of the delay. The time for completion of any obligation to
which this provision applies shall be extended for a period equivalent to the
delay.
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(11) EXCLUSIVITY. During the term of this Agreement and subject to the Minimum
Subscription Commitments of WebMD set forth in Section 3(a) hereof, Company
shall not market, sell or distribute Company-branded Internet services with any
other medical service Internet aggregator, including without limitation,
*** and ***; provided, however, Company may bundle a non-
branded Internet access service with any such medical service Internet
aggregator. During the term of this Agreement, WebMD shall not enter into
agreements with third parties for Internet service provider services (excluding
America Online, Inc.), supplied through a personal computer, and otherwise
substantially similar to those contemplated hereunder. For purposes of this
Section, "substantially similar shall mean the combination of dial-up Internet
access, customized web browser software and end-user support services provided
by such third Party.
(12) NOTICES. All notices, requests, demands, or communications required or
permitted shall be in writing, delivered personally or by overnight courier
service, or by facsimile or First Class U.S. Mail to the respective addresses
set forth at the beginning of the Agreement (or at such other addresses as shall
be given in writing by either Party to the other), and, in the case of WebMD,
with a copy to: Corporate Counsel, WebMD, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000; in the case of Company, with a copy to: Vice President
of Business Affairs, with a copy to the Assistant General Counsel, CompuServe
Interactive Services, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000. All
notices, requests, demands or communications shall be deemed effective upon
receipt.
(13) GOVERNING LAW. The substantive law of the State of Ohio, excluding its
conflicts principles shall govern this Agreement.
(14) RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be construed
to make either Party an agent, joint venturer or partner of or with the other,
and neither Party shall have the right or authority to legally bind the other in
any manner.
(15) ASSIGNMENT. Neither Party may assign its rights nor obligations under this
Agreement to any third Party without the written consent of the other Party,
such consent not to be unreasonably withheld.
(16) WAIVER; REMEDIES CUMULATIVE. No failure or delay (in whole or in part) on
the part of any party to exercise any right or remedy shall operate as a waiver
thereof, nor affect any other right or remedy. All rights and remedies hereunder
are cumulative and are not exclusive of any other rights or remedies provided
hereunder or by law.
(17) SEVERABILITY. If any provision contained in this Agreement is or becomes
invalid, illegal, or unenforceable in whole or in part, such invalidity,
legality, or unenforceability shall not affect the remaining provisions and
portions of this Agreement.
(18) COUNTERPARTS. This Agreement may be signed in counterparts, and each
counterpart shall be a part of the same whole. Both parties shall comply with
all laws, regulations and other legal requirements that apply to this Agreement.
***Omitted pursuant to a request for confidential treatment and filed separately
with the Commission.
11
(19) ENTIRE AGREEMENT. This agreement contains the entire agreement of the
Parties with respect to the subject matter herein, and supersedes all prior and
contemporaneous proposals, discussions, agreements, understandings and
communications, whether written or oral and may be amended only in writing
executed by both parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
WEBMD, INC. COMPUSERVE INTERACTIVE SERVICES, INC.
By: /s/ W. Xxxxxxx Xxxxxx By: /s/ Mayo X. Xxxxx
-------------------------- --------------------------
Name: W. Xxxxxxx Xxxxxx Name: Mayo X. Xxxxx
-------------------------- --------------------------
Title: Exec V P Title: President
-------------------------- --------------------------
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EXHIBIT I
TERMS AND CONDITIONS OF SOFTWARE USE
[TO BE ATTACHED]
13
EXHIBIT 2
DESCRIPTION OF END USER SOFTWARE
--------------------------------
Company will provide pursuant to the terms of the Agreement to WebMD and
its End Users the standard Internet Company software package, including an
Internet browser, dial-up registration capability.
DESCRIPTION OF HOST SOFTWARE
Such specifications are to be more fully set forth in the Technical Integration
Plan, but in any event shall include without limitation, the following: Subject
to the terms of the Agreement, Company shall customize the Host Software as is
reasonably necessary and technically feasible to create an automated process to
lead users to the on-line start page will be the WebMD portal front page;
Company agrees to redirect appropriate toolbar icons and pulldowns to WebMD
news, sports, stock quote and travel areas.
FULFILLMENT MATERIALS
Company, at *** cost and expense, shall include the following
fulfillment materials in the End User fulfillment packages:
(1) Diskettes or CD's containing the Software;
(2) Package labels;
(3) Container and/or mailer; and
(4) Promotional code, which must be prominently displayed.
INTERNET ACCESS RATES
*** per month for unlimited hours of local access each month. Company's
current fee structure generally available to its customer base is attached
hereto.
OTHER COMPANY INFORMATION
The URL of the WebMD Site is http:xxx.xxxxx.xxx.
***Omitted pursuant to a request for confidential treatment and filed separately
with the Commission.
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EXHIBIT 3
COMPANY EXCLUSIVE ADVERTISING AND COMMERCE RELATIONSHIPS
15
