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Exhibit 10.40
FIRSTDATABANK
Point-of-Care Knowledge Bases
FIRST DATA BANK
STANDARD LICENSE AGREEMENT
This LICENSE AGREEMENT made and entered into at San Bruno, California as of the
Effective Date noted on Exhibit 1 (attached and made a part hereof) between
FIRST DATABANK, INC., a wholly owned subsidiary of The Hearst Corporation, a
Delaware Corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("First DataBank") and LICENSEE identified in Exhibit 1.
WHEREAS:
1. First DataBank owns or is a Licensee of, and licenses or sublicenses
various copyrighted databases of medical, pharmaceutical and
nutritional information, and periodic updates thereto ("Databases"),
related access software products ("Toolkits") and user manuals
("Manuals") referred to collectively, as the "FDB Knowledge Bases";
2. Licensee desires to obtain the use of one or more of the FDB Knowledge
Bases with the Licensee's electronic information system or other
computer system (the "System") as described in the Declaration of Use
(Exhibit 1);
3. Subject to the terms and conditions of this Agreement, First DataBank
is willing to grant to Licensee a nonexclusive license or sublicense to
use the FDB Knowledge Bases indicated in Exhibit 1.
NOW, THEREFORE, in consideration of the premises and of the covenants and
Agreements hereinafter set forth, it is agreed as follows:
1. DEFINITIONS OF CERTAIN TERMS. As used in this Agreement:
a) "Licensed Products" means those FDB Knowledge Bases indicated in
Exhibit 1 as being licensed to Licensee;
b) "Effective Date" is the date stated in Exhibit 1 and is the
effective date of this Agreement;
c) "Fee Term" means the twelve month period beginning on the
Effective Date and each successive twelve month period.
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2. LICENSE. Subject to the terms and conditions of this Agreement, First
DataBank grants and Licensee accepts the following limited,
non-transferable and non-exclusive license or sublicense:
a) To use the Licensed Products solely for its business operations, as
defined in Exhibit 1 during the term of this Agreement;
b) To the extent Exhibit 1 permits bundling of any or all of the Licensed
Products, Licensee agrees to add substantial value to the Licensed
Products contained in the bundle;
c) Except as expressly granted in Exhibit 1, License shall have no right
to use, modify, reproduce or distribute the Licensed Products, nor the
right to license third parties to exercise any rights with regard to
the Licensed Products;
d) License shall have no right to use the Licensed Products on behalf of
any third party, on a service bureau basis or otherwise unless (i)
such services are specifically permitted in Exhibit 1, and (ii) such
third party has entered into a license Agreement with Licensee or
First DataBank and First DataBank has been paid the required license
fee;
e) Under no circumstances shall Licensee use the Licensed Products, or
any portion thereof, to develop a competitive product, regardless of
what is set forth in Exhibit 1;
f) Licensee shall obtain no implied license rights to the Licensed
Products. Any rights not expressly granted to Licensee in this
Agreement shall be retained by First DataBank;
g) Although some tangible objects may be delivered to Licensee pursuant
to this Agreement, title to such objects shall not pass to Licensee,
and this Agreement is not for the sale of goods. The Licensed Products
shall be delivered to Licensee within twenty (20) working days from
the effective date on Exhibit 1. Updates thereto shall be delivered
with the frequency and in the format indicated in Exhibit 1.
3. TERM AND TERMINATION.
a) This Agreement and license shall continue for a term of three (3)
years from the Effective Date and thereafter shall automatically renew
for successive one (1) year periods at each renewal date at the
effective renewal rate, unless notice of non-renewal is provided in
accordance with 3.b, below;
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b) At least sixty (60) days before commencement of the renewal date,
First DataBank shall send to Licensee written notice of the applicable
renewal rate. Either party may give notice of non-renewal in its sole
and absolute discretion, without cause and without stating any reason
therefor. First DataBank or Licensee shall give written notice of
non-renewal to the other at least thirty (30) days prior to the end of
the term then in effect. If Licensee fails to give notice of non-
renewal pursuant to this subsection, Licensee shall be deemed to have
agreed to the applicable renewal rate for the next Fee Term;
c) Either party may terminate this license on thirty (30) days written
notice, if the other party has materially beached any provision of
this Agreement, and such breach has not been cured within such thirty
(30) day period;
d) Upon termination of this Agreement, Licensee shall immediately cease
use of the Licensed Products, and shall take such steps as are
necessary to prohibit further use of the Licensed Products within
Licensee's System and shall furnish First DataBank a written
description of the steps so taken. Termination of this Agreement shall
automatically terminate all sublicenses of the Licensed Products
granted by Licensee. Within thirty (30) days of termination, Licensee
shall return to First DataBank all copies or duplicates thereof of the
Licensed Products.
4. PAYMENT OF LICENSEE FEES. In consideration of the grant of the license,
Licensee agrees to pay the Fees ("License Fees") listed in Exhibit 1.
License Fees may consist of Annual Fees plus User Fees as specified in
Exhibit 1. The Annual Fee for the first Fee Term is payable by Licensee to
First DataBank on the Effective Date and Annual Fees for subsequent Fee
Terms are due and payable on each anniversary of the Effective Date. End
User Fees, when applicable, are billed quarterly and are due and payable
upon receipt of an invoice from First DataBank. Licensee's obligation to
pay License Fees for periods preceding termination will survive termination
of this Agreement.
5. IMPLEMENTATION. Licensee assumes all responsibility to program, or obtain
compatible software, for use of the Databases. All programming shall be
done in accordance with specifications included in Database Manuals and
supplements and other documentation provided by First DataBank. Licensee
agrees that when programmed, the System shall display Copyright Notices,
Disclaimers, and Expiration Dates as specified in individual Database and
Licensed Products Manuals.
6. COVENANTS OF LICENSEE. Licensee hereby agrees with First DataBank as
follows:
a) Licensee will alter, amend, modify, or change in any respect, any of
the Licensed Products unless authorized to do so by First DataBank or
unless such changes are clearly identified as Licensee modifications.
Licensee assumes all liability for any such Licensee modification;
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b) Licensee will not use the name of First DataBank, Inc. or "First
DataBank", the names of any of the First DataBank Knowledge Bases, or
any trademark owned by or licensed to First DataBank, except as
authorized in writing;
c) Licensee shall reimburse First DataBank at First DataBank's direct
cost for all shipping and delivery and for all First DataBank
originated magnetic media received by Licensee from First DataBank;
d) Licensee will hold the terms of this Agreement in strictest confidence
releasing them only to employees of Licensee requiring such
information and not to release or disclose them to any other party;
e) CONFIDENTIAL INFORMATION. Licensee acknowledges that the Licensed
Products are the proprietary property of First DataBank and that the
processes, formulas and methodology used in producing the Licensed
Products are valuable trade secrets. Licensee shall hold in confidence
and take reasonable measure, but not less than the measures taken by
Licensee to safeguard its own confidential information, to safeguard,
to prohibit access to, copying of, or disclosure of all confidential
information and materials provided by First DataBank under this
License, including, but not limited to, the Licensed Products and all
information contained therein, any updates to the Licensed Products,
and the User's Manuals. Licensee shall not disclose the terms of this
Agreement, except as required by law.
f) Licensee will pay all taxes, however designated, including sales and
use taxes and state and local privilege or excise taxes arising out of
this Agreement and the transaction contemplated hereby;
g) That as long as this Agreement is in effect, and for a one (1) year
period thereafter, Licensee shall maintain complete records with
respect to the use of the Licensed Products, and the number and type
of end user sites, if any. During normal business hours, at reasonable
intervals but no more often than quarterly, and upon reasonable
notice, First DataBank or its designated representative may audit and
review those records necessary to confirm that the fees paid to First
DataBank are correct and that Licensee has complied with all of the
terms of this Agreement, including but not limited to, the Declaration
of Use and Fee and Payment Schedule set forth in Exhibit 1;
h) USAGE. Licensee shall use the Licensed Products solely for Licensee's
business purposes as described in Exhibit 1, "Declaration of Use".
Licensee may not, without the prior written consent of First DataBank,
transmit the Licensed Products to other data processing systems or
units that are "on-line" with Licensee's data processing unit, or use
the Licensed Products, or any data derived
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from the Licensed Products in a computer service business, network,
time-sharing, multiple CPU, or multiple user arrangements including
the Internet and Intranets, except as, if applicable, explicitly
identified in Exhibit 1. Licensee shall not copy, reproduce, store in
a retrieval system, sell, assign, pledge, sublicense, convey,
transfer, redistribute, transmit, grant other rights in, or permit any
unauthorized use of the Licensed Products, or any of them, in any form
or by any media (electronic, mechanical, photocopy, recording, or
otherwise), on either a permanent or temporary basis to any third
party except as authorized in Exhibit 1. Licensee may use an outside
Data Recovery Center provided First DataBank is notified in writing
within thirty (30) days of such location. In such case, the terms of
this Agreement shall be fully applicable.
i) Licensee hereby covenants and agrees to indemnify and hold First
DataBank harmless from and against any liability, loss, injury or
expense (including reasonable attorneys' fees and court costs) imposed
upon, incurred or suffered by First DataBank by reason of Licensee's
negligence.
j) Licensee acknowledges and agrees that the covenants and Agreements
made in this Paragraph 6 are made for the benefit of First DataBank
and shall survive the termination of this Agreement. In the event of
any breach by Licensee of the terms of this Agreement, in addition to
other relief to which First DataBank shall be entitled, First DataBank
shall be entitled to terminate this License.
7. PROPRIETARY RIGHTS INDEMNIFICATION. First DataBank shall hold harmless and
defend Licensee against suits based solely on a claim that the use of
Licensed Products by Licensee under this Agreement infringes on any U.S.
patent, copyright, trademark, or other property right, provided that
Licensee gives First DataBank prompt written notice of such suits and
permits First DataBank to control the defense thereof.
8. DISCLAIMERS.
a) Licensee shall inspect and test Licensed Products upon receipt
thereof. The Licensed Products are deemed proper and correct unless,
within ten (10) working days after receipt thereof, Licensee provides
First DataBank with written notice and documentation of any error in
the Licensed Products;
b) First DataBank has utilized reasonable care in collecting and
reporting the information contained in the Licensed Products and has
obtained such information from sources believed to be reliable. First
DataBank, however, does not warrant the accuracy of codes, prices or
other data contained in the Licensed Products. Information reflecting
prices is not a quotation or offer to sell or purchase. The clinical
information contained in the Licensed Products is intended as a
supplement to, and not a substitute for, the knowledge, expertise,
skill, and
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judgment of physicians, pharmacists, or other healthcare professionals
in patient care. The absence of a warning for a given drug or drug
combination should not be construed to indicate that the drug or drug
combination is safe, appropriate or effective in any given patient.
c) FIRST DATABANK MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OTHER THAN THOSE IN THIS LICENSE AGREEMENT, AND FURTHER MAKES
NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY
OF THE DATA FROM WHICH THE LICENSED PRODUCTS ARE COMPILED, NOR THE
COMPATIBILITY OF THE LICENSED PRODUCTS WITH LICENSEE'S HARDWARE AND
SYSTEMS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
d) IN NO EVENT SHALL FIRST DATABANK BE LIABLE TO LICENSEE OR ANY THIRD
PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, RELIANCE, OR
SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF
FIRST DATABANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
e) IN NO EVENT SHALL FIRST DATABANK'S LIABILITY EXCEED THE AMOUNT PAID TO
IT BY LICENSEE FOR THE CURRENT TERM OF THIS LICENSE AGREEMENT,
REGARDLESS OF THE FORM OF THE ACTION OR CLAIM, AND REGARDLESS OF
WHETHER THE ACTION OR CLAIM IS BASED ON ANY ALLEGED ACT OR OMISSION OF
FIRST DATABANK, INCLUDING BUT NOT LIMITED TO ANY ACTION BASED ON
NEGLIGENCE, BREACH OF WARRANTY OR BREACH OF CONTRACT.
9. PROFESSIONAL RESPONSIBILITY. Licensee acknowledges that the professional
duty to the patient in providing healthcare services lies solely with the
healthcare professional providing patient care services. Licensee takes
full responsibility for the use of information provided by the Licensed
Products in patient care and acknowledges that the use of the Licensed
Products in no way is intended to replace or substitute for professional
judgment. First DataBank does not assume any responsibility for actions of
Licensee which may result in any liability or damages due to malpractice,
failure to warn, negligence or any other basis. Licensee shall ensure that
all healthcare professionals using the Licensed Products are aware of the
limitations of the use of the Licensed Products.
10. USE OF PATIENT EDUCATION. Licensee agrees to include one of the following
two disclaimers at the top of any patient education information material
provided to patients from the Patient Education Knowledge Databases:
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NOTE: The following information is intended to supplement, not
substitute for, the expertise and judgment of your physician,
pharmacist or other healthcare professional. It should not be
construed to indicate that the use of the drug is safe, appropriate,
or effective for you. Consult your healthcare professional before
taking this drug.
or
NOTE: The information in this monograph is not intended to cover all
possible uses, directions, precautions, drug interactions, or adverse
affects. This information is generalized and is not intended as
specific medical advice. If you have questions about the medicines you
are taking or would like more information, check with your doctor,
pharmacist or nurse.
11. ASSIGNMENT. This license and Licensee's rights hereunder may not be
assigned or otherwise transferred, voluntarily or by operation of law. Any
purported assignment of the rights or delegation of the duties under this
Agreement by Licensee shall be void unless prior written consent is secured
from First DataBank.
12. FORCE MAJEURE. Failure of First DataBank to perform or delay in the
performance of First DataBank's obligations under this Agreement due to any
cause or event not reasonably within First DataBank's control, including
but not limited to casualty, labor disputes, failure of equipment,
compliance with governmental authority or Act of God, shall not constitute
a breach of this Agreement and First DataBank's performance shall be
executed during such period of delay.
13. NOTICES. Notices hereunder shall be delivered by hand, air courier or
certified mail with return receipt requested to the address of the Licensee
identified on Exhibit 1, and shall be deemed delivered three (3) days after
mailing.
14. CHOICE OF LAW; VENUE. This Agreement shall be governed by and construed in
accordance with the laws of the United States and the State of California,
as applied to Agreements entered into and to be performed entirely within
California between California residents. The application of the United
Nations Convention for Contracts for the International States of Goods is
hereby expressly excluded. In the event of any dispute concerning this
Agreement or the Licensed Products, suit may be brought only in a court of
competent jurisdiction in the U.S. District Court of the Northern District
of California or the California Superior Court for the County of San Mateo.
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15. ENTIRETY; AMENDMENTS. This Agreement, including all Exhibits hereto,
constitutes the complete and exclusive statement of the Agreement between
the parties which supersedes all prior Agreements, proposals, oral or
written, and all other communications between the parties relating to the
subject matter of this Agreement. All amendments to this Agreement shall be
in writing signed by both parties.
16. NO WAIVER. No term or provision hereof shall be deemed waived and no such
breach excused unless such waiver or consent shall be in writing and signed
by the party claimed to have waived or consented. Any consent by a party
to, or waiver of a breach by the other, whether express or implied, shall
not constitute a consent for, or waiver of, or excuse for any other
different subsequent breach.
17. SEVERABILITY. If any provision of this Agreement is declared by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as the
effective date on Exhibit 1.
FIRST DATABANK
DATED: July 21, 1999 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇
Name (Print)
Contract Administration Manager
Title
LICENSEE
DATED: July 1, 1999 Medscape, Inc.
Licensee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Signature
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name (Print)
Director, Business Development
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Title
EXHIBIT 1
LICENSEE REPRESENTATIONS
DECLARATION OF USE
FEE AND PAYMENT SCHEDULES
ADDITIONAL TERMS AND CONDITIONS
This Exhibit 1 is a part of the Standard License Agreement between First
DataBank and Licensee and identifies Licensee, the Databases, Declaration of
Use, License Fees, and Additional Terms (if any) applicable to that Agreement.
The Effective Date of this Agreement is April 1, 1997.
A. LICENSEE REPRESENTATIONS
Licensee Name: Medscape, Inc.
Street Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone (voice): ▇▇▇-▇▇▇-▇▇▇▇
Telephone (fax): ▇▇▇-▇▇▇-▇▇▇▇
email address:
B. KNOWLEDGE BASES: Unless otherwise specified, Knowledge Bases are updated
monthly.
1.1 Databases - Master Files
NATIONAL DRUG DATA FILE (TM) (NDDF)
DRUG-FOOD INTERACTION MODULE
MINIMUM/MAXIMUM DAILY DOSE
PRECAUTION MODULES (Geriatric, Pediatric, Pregnancy
Lactation)
DRUG-DISEASE CONTRAINDICATIONS
PATIENT EDUCATION MODULE, English
INDICATIONS MODULE
QUICK MEDICAL REFERENCE (QMR), updated as available
NUTRITIONIST IV, updated biannually
C. DECLARATION OF USE:
1. Licensee shall use NDDF, DRUG-FOOD INTERACTION MODULE,
MINIMUM/MAXIMUM DAILY DOSE, PRECAUTION MODULES, DRUG-
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DISEASE CONTRAINDICATIONS and INDICATIONS MODULE exclusively as a source of
drug product information to support the operation of Licensee's Internet
healthcare/medical information system on a single site (▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇)
on the World Wide Web (The Internet) at the site identified above in
Section A. It is understood the Licensed Products shall be accessed through
the Therapeutic Topics menu, Reference Tab and used to provide healthcare
information to healthcare professionals. Use by CUSTOMER excludes
redistribution or use of data to or for use in pharmacy or medical practice
management systems which support drug dispensing, prescription pricing,
claims preparation, or clinical medical records management applications, or
any other clinical application.
2. Licensee shall use the PATIENT EDUCATION MODULE, English exclusively as a
source of drug product information to support the operation of Licensee's
Internet healthcare/medical information system on a single site
(▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇) on the World Wide Web (The Internet) at the site
identified above in Section A. It is understood the Licensed Products shall
be accessed through the Patient Information Tab and used to provide patient
education information to consumers. Use by CUSTOMER excludes redistribution
or use of data to or for use in pharmacy or medical practice management
systems which support drug dispensing, prescription pricing, claims
preparation, or clinical medical records management applications, or any
other clinical application.
3. Licensee shall use QMR and NUTRITIONIST IV exclusively as a source of drug
product information to support the operation of Licensee's Internet
healthcare/medical information system on a single site (▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇)
on the World Wide Web (The Internet) at the site identified above in
Section A. It is understood the Licenses Products shall be accessed through
the Reference Tab and the Patient Information Tab to provide diagnostic
support and nutritional analysis to healthcare professionals. Use by
CUSTOMER excludes redistribution or use of data or for use in pharmacy or
medical practice management systems which support drug dispensing,
prescription pricing, claims preparation, or clinical medical records
management applications, or any other clinical application.
D. FEE AND PAYMENT SCHEDULE:
1.1 Definitions
Limited exclusive sponsorship of a therapeutic indication within a topic
area:
Each Topic Area (located on the Medscape Home Page) is limited to 5
sponsors. Since Medscape only sells one sponsorship for a therapeutic
indication within a topic area, it is considered exclusive.
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Example:
Limited exclusivity's within the Infectious Diseases Topic
Area will be restricted to only one of the following: oral
antibiotic, injectable antibiotic, anti-fungal, anti-viral,
and vaccine.
Revenue pool:
40% of each Topic Area sponsorships allocated over the life of
the sponsorship commitment.
Example:
40% *$200,000=$80,000
$80,000 divided by 12 months = $6,667
$6,667 = will be added to monthly revenue pool
1.2 Revenue Shares:
First DataBank will be compensated for advertising/sponsorship
sales revenue as indicated below. Revenue shares are based on
actual dollars received by Medscape, net of agency
commissions.
Sponsorships sold on Products supported by First DataBank
content:
Medscape sells a sponsorship
- Medscape earns 60% of sale
- FDB earns 40% of sale
First DataBank sells a sponsorship
- FDB earns 60% of sale
- Medscape earns 40% of sale
Example:
First DataBank sells a $125,000 rotation, First DataBank earns
$75,000; Medscape earns $50,000.
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2.1 Definitions
Value per Pageview
A Partners Value per Pageview reflects a Partners level of
commitment to Medscape. For instance, if a Partner is actively
selling Medscape sponsorship packages or products, and also
has an exclusive Agreement with Medscape, their level of
commitment to the success of Medscape is higher. Therefore,
their Value per Pageview is more valuable.
A Partners Value per Pageview is calculated as follows:
Monthly, revenue pool, divided by total Medscape pageview,
multiplied by the respective Partners category classification.
Example:
$200,000 monthly revenue pool divided by 1 million pageviews =
$.20
$.20 *category class #2 (60%) = $.12
$.12 = Partners Value per Pageview.
2.2 Revenue Shares
First DataBank earns a share of the monthly revenue pool. This
share is based on FDB's value per pageview multiplied by FDB's
content exposures.
First DataBank's value per pageview is derived by taking the
monthly revenue pool, dividing it by the total Medscape
pageviews, and then multiplying it by First DataBanks category
classification.
Example:
Monthly Revenue Pool: $200,000
Total Medscape Pageviews: 1,000,00
First DataBank's Category Classification: #2 (or 60%)
First DataBank's content exposures: 10,000
First DataBank's value per pageview = ($200,000/1,000,000)*60%
= $.12
First DataBank's monthly revenue share = $12*10,000 = $1,200
3.1 Definitions
Category Classification
Category Classifications are based on an exclusive contract
vs. a non-exclusive contract and a Partner actively selling
vs. inactive.
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Category Classification Schedule:
Medscape Sales non-exclusive exclusive
-------------- ------------- ---------
Inactive 1 2
Active 2 3
Percentage of Monthly Revenue Pool based upon Category
Classification:
Category Class % of Mo. Revenue Pool Entitlement
-------------- ---------------------------------
Category #1: 30%
Category #2 60%
Category #3 100%
3.2 Revenue Shares
30% commission on First DataBank's sales of a limited
exclusive sponsorship within the Medscape Topic Areas, which
will sell for $200,000 for 12 months.
Example:
*30% of $200,000 or $60,000
E. ADDITIONAL TERMS AND CONDITIONS:
1. For the purposes of this Agreement, a healthcare professional is
defined as any trained healthcare provider such as pharmacists, nurses
and doctors.
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