EXHIBIT 10.39
SNAP STRATEGIC ALLIANCE AGREEMENT
HEALTHGATE DATA CORP.
This Strategic Alliance Agreement (the "Agreement") is made and entered into as
of October 29, 1999 (the "Effective Date") between Snap! LLC, a Delaware limited
liability company, with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Snap"), ▇▇▇▇.▇▇▇, Inc., a Delaware corporation
with its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Xoom"), and HealthGate Data Corp., a Delaware
corporation, with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"). Pursuant to this
Agreement, Snap will provide various services to the Company to assist the
Company in promoting its Internet site and the products and services offered
through its Internet site. Accordingly, the parties hereby agree as follows:
1. BACKGROUND.
1.1. The Company operates an Internet site located at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇,which is designed to provide
Internet-based personal health and medical information,
products and services to online consumers.
1.2. Snap operates a search and aggregation "portal" site on the
Web.
1.3. Xoom operates a direct marketing site on the Web.
1.4. Snap has entered into an Agreement and Plan of Contribution
and Merger, dated as of May 9, 1999 with Xoom and others, and
the Second Amended and Restated Agreement and Plan of
Contribution, Investment and Merger dated as of July 8, 1999
with National Broadcasting Company, Inc. ("NBC") and others
(collectively, as such agreements may be amended, the "Merger
Agreements") pursuant to which the existing businesses of
Xoom, Snap and other assets of NBC will be combined to form
NBC Internet, Inc. ("NBCi"). The closing of the transactions
contemplated by the Merger Agreements is expected to occur
prior to December 31, 1999 (the "NBCi Closing"). Following the
NBCi Closing, Xoom and Snap may assign their rights and
obligations hereunder to NBCi. If the NBCi Closing does not
occur, Snap and Xoom shall remain as separate parties under
this Agreement, unless this Agreement is terminated by one of
the parties as provided herein.
2. CERTAIN DEFINITIONS. As used in this Agreement, the terms set forth
below shall have the following meanings:
2.1. "Above the Fold" means that a particular item on a Web page is
viewable on a computer screen at an 800 x 600 pixels
resolution when the User first accesses such Web page, without
scrolling down to view more of the Web page.
2.2. "Anchor Tenant" means a preferred Web content provider whose
position is greater in size and prominence than that of any
non-affiliated third party within the relevant Snap Site page
or area of a page.
1
2.3. "Best of Breed" means (i) those personal health and/or medical
content and shopping services available on the Internet with
the most advanced and commercially successful, functionality,
performance, content, and features, whether utilitarian or
aesthetic, and (ii) the ability of the Company Site and the
Co-Branded Site to scale easily with only additional hardware
and to accommodate, at a minimum, the peak traffic volume of
the third most visited Internet personal health and/or medical
site.
2.4. "Business Day" shall mean any day on which banks in both New
York City and Los Angeles and the New York Stock Exchange are
open for the conduct of regular business.
2.5. "Click Thrus" means any type of link from the Snap Sites or
Wires that a User (as tagged by Snap pursuant to SECTION 11.2)
depresses or "clicks-on" and that delivers the User to the
Company Site or the Co-Branded Site.
2.6. "Co-Branded Site" means the co-branded version of the Company
Site, and successors to the foregoing, that is created
pursuant to SECTION 5.
2.7. "Commerce Offering" means any text, content, links or
promotions providing a direct or indirect opportunity for
Users on the Snap Sites or the Co-Branded Site to engage in a
commerce, purchase, trade, exchange, or purchase transaction,
whether paid or unpaid, or any registration or membership
opportunity for Users to provide User Profile Data, including,
without limitation, content purchase opportunities,
registration or membership sign-up opportunities, for-fee or
subscription-based content or services, other purchase
opportunities for products or services offered by the Company
directly or indirectly, links to any such opportunities
presented to Users on the Snap Sites or the Co-Branded Site,
or other content areas of the Snap Sites or Co-Branded Site.
2.8. "Company Content" means the Company's and its licensors' text
links, logos, graphic links, and other materials, tools,
content, or text that are delivered by the Company to Snap
hereunder.
2.9. "Company Database" means User Profile Data and any other
information relating to Users of the Company Site or other
customers of the Company or purchasers of Company Products who
have had information about them collected or otherwise
obtained by the Company, or for the Company's use or benefit,
for the purpose of direct marketing or other communication
activities, and all updates or additional information that may
be added to such database during the Term.
2.10. "Company Marks" means the Company's and its licensors'
trademarks, trade names, service marks and logos that may be
delivered by the Company to Snap hereunder.
2.11. "Company Products" means all personal health and medical
products and related services offered through the Company Site
or the Co-Branded Site.
2.12. "Company Site" means the Internet site operated by the Company
at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with any mirror sites,
and successors to any of the foregoing.
2.13. "Competitor" means a Web site or person providing products or
services that compete with products or services provided by
Snap, as Snap shall determine from time to time.
2
2.14. "Contract Year" shall mean Year One, Year Two or Year Three,
as applicable.
2.15. "Front Door Highlight Link" means a text link on the front
door of the Snap Site, including any one of the three front
doors of the Snap Site: Home, Local, and My Snap, and any
other front door created by Snap in the future for the Snap
Site. Snap, in its sole discretion, may cease use of the Front
Door Highlight Link at any time for any reason. In such an
event, the parties shall mutually agree on a specific
Promotion of substantially equivalent value to replace the
Front Door Highlight Link and such specific Promotion shall
for all purposes of this Agreement be deemed a Front Door
Highlight Link.
2.16. "Front Door Window" means the promotional box on the front
door of the Snap Site, including any one of the three front
doors of the Snap Site: Home, Local, and My Snap, and any
other front door created by Snap in the future for the Snap
Site. Snap, in its sole discretion, may cease use of the Front
Door Window at any time for any reason. In such an event, the
parties shall mutually agree on a specific Promotion of
substantially equivalent value to replace the Front Door
Window and such specific Promotion shall for all purposes of
this Agreement be deemed a Front Door Window
2.17. "Health Channel" means the Health Channel on the Snap Sites.
2.18. "Health Content Portal(s)" means the specific aggregations of
linked content within areas of the Health Channel organized
around the Company Content, and relating to personal health
and medical information, products and services.
2.19. "Impression" means the display of any Promotion on any Snap
Site.
2.20. "Initial Registration Date" means the effective date of the
Registration Statement.
2.21. "Keyword Promotions" means any Promotion tied to one of the
keywords selected pursuant to Exhibit A attached hereto.
2.22. "Launch Date" means the date during the period set forth in
SECTION 5.4 on which the Co-Branded Site functions properly
and is made accessible to Users.
2.23. "Look and Feel" means the look and feel, User interface and
flow of User experience of an Internet site.
2.24. "Promotions" means (i) banners, buttons, windows, portals,
Keyword Promotions, Front Door Windows, text links, and other
promotions that are offered by Snap now or in the future and
link directly to the Company Site and/or the Co-Branded Site
from the Snap Sites; (ii) text links within email newsletters
distributed by Snap (including, without limitation, Wires) and
other promotions that are offered by Snap now or in the future
and link directly to the Company Site and/or the Co-Branded
Site; and/or (iii) a Front Door Highlight Link that links to
the Health Channel.
2.25. "Registration Statement" means the first registration
statement for a public offering of securities of the Company
on Form S-1, pursuant to and in accordance with the
requirements of the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, in which the
gross proceeds to the Company of such offering exceed
$20,000,000.
3
2.26. "Snap Marks" means any trademarks, trade names, service marks
and logos that may be delivered by Snap to the Company
hereunder.
2.27. "Snap Member" means a User who has registered to become a
member of one of Snap's registration-based services including,
without limitation, the Snap Sites and the free email service
available at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇.
2.28. "Snap Product Manager" means a Snap employee or independent
contractor holding editorial authority and responsibility for
a portal, site, collection, area, center or page on the Snap
Sites.
2.29. "Snap Sites" means: (i) subject to the "Distributor" (as
defined in SECTION 6.1 below) exclusion in SECTION 6.1, any
and all search and aggregation "portal," direct marketing and
Web commerce sites, whether operated by Snap or a third party
under the "Snap" brand, including, without limitation, the Web
site located at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇ and, if the NBCi Closing
occurs, ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇, ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ and
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with any mirror sites,
any co-branded editions of such site that have been or may be
developed for Distributors, and successors to the foregoing;
(ii) if Snap so elects within its sole discretion, the
Enhanced Site and/or the International Editions, subject to
SECTION 6.2 and (iii) if Snap so elects within its sole
discretion, the Web site located at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇ and
successors thereto, and NBC's network of affiliate Web
stations' Web sites, as updated from time to time by Snap in
its sole discretion.
2.30. "Snap Wire" means Snap's weekly email newsletter sent by Snap
to Snap Members.
2.31. "User" means any end-user of the Web.
2.32. "User Profile Data" means data regarding a User provided by
the User on the Snap Sites or the Co-Branded Site or otherwise
to Snap or the Company, including without limitation the
User's name, e-mail address, telephone number and other
information about the User.
2.33. "Web" means the World Wide Web part of the Internet.
2.34. "Wires" means, collectively, Snap Wires and Xoom Wires.
2.35. "Xoom Marks" means any trademarks, trade names, service marks
and logos delivered by Xoom to the Company hereunder.
2.36. "Xoom Wire" means Xoom's email newsletter sent by Xoom to
Users who have registered to become a member of the Web site
located at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇.
2.37. "Year One" means the thirteen month period beginning on the
Effective Date and ending upon the day before the thirteen
month anniversary of the Effective Date.
2.38. "Year Two" means the twelve month period beginning on the
thirteen month anniversary of the Effective Date and ending
upon the day before the twenty-five month anniversary of the
Effective Date.
4
2.39. "Year Three" means the twelve month period beginning on the
twenty-five month anniversary of the Effective Date and ending
upon the day before the thirty-seven month anniversary of the
Effective Date.
3. PROMOTIONS; CONTENT; PERFORMANCE; AND ACCOUNT MANAGEMENT.
3.1. PROMOTION DESIGN. The Company will design any graphics and
other materials required for the Promotions and will supply
digital copies of such materials to Snap on the Launch Date.
Such materials will be designed and delivered in accordance
with Snap's reasonable technical and editorial guidelines, as
updated from time to time, including those set forth at
▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇ or any successor URL designated by
Snap. If the Company delivers such materials to Snap after the
Launch Date, then for each day thereafter, a pro-rata number
of the Impressions and Click Thrus required to be delivered
pursuant to this Agreement will be deemed to have been
delivered by Snap.
3.2. COMPANY CONTENT. Company agrees to provide Snap with the
Company Content as soon as practicable after the Effective
Date, and no later than ten days after the Effective Date,
except for Company Content which the Company is prohibited by
written contract to deliver and which the Company has
identified as such in a written notice to Snap at or prior to
the time of delivery of Company Content; provided, however,
that the Company will use its best efforts during the sixty
days from and after the Effective Date to obtain the
consent(s) of the other parties to such contracts to deliver
and use Company Content as contemplated by this Agreement.
During such sixty day period from and after the Effective
Date, so long as the Company is using its best efforts to
obtain such consents, Snap will not use on the Snap Sites
content, such as content not provided by the Company, that
Snap would otherwise have the right to use on the Snap Sites
pursuant to SECTION 4.1. Unless and until the Company obtains
the required consents of the relevant counterparties, Snap
will not use on the Snap Sites any content for which use on
the Snap Sites is prohibited by the terms of a written
contract to which the Company is a party and which the Company
has identified as such in a written notice to Snap at or prior
to the time of delivery of Company Content. In the event that
the Company fails to obtain the consents of relevant
counterparties to deliver all Company Content as contemplated
by this Agreement during the sixty days from and after the
Effective Date, then the Company shall continue to use its
best efforts to obtain all of such consents. The Company shall
ensure that the Company Content remains at all times current
by continually providing Snap with timely updates to the
Company Content. Furthermore, under no circumstances shall
Company Content include any content of a Competitor.
3.3. IMPRESSION AND CLICK THRU DELIVERIES.
3.3.1. IMPRESSIONS. Beginning on the Launch Date, Snap will
use commercially reasonable efforts to deliver a
total number of Impressions in the aggregate dollar
amounts of $7,500,000 during Year One, $7,500,000
during Year Two and $7,500,000 during Year Three.
Delivery of the Impressions hereunder will be based
on a schedule and placement guidelines selected by
Snap in its reasonable discretion, taking into
consideration the reasonable requests of the Company,
and at a 30% discount from the rates set forth in the
applicable Snap's standard rate card attached hereto
as EXHIBIT B; provided, however, that if all of the
rates set forth in Snap's then current standard rate
card decrease during the Term by more than 15%
relative to all of the rates set forth in EXHIBIT B,
then the number of Impressions to be reasonably
calculated by Snap and to be delivered by Snap
5
hereunder shall increase in proportion to the amount
of decrease in rates in excess of the aforementioned
15%, with the number such additional Impressions to
be reasonably calculated by Snap and to be delivered
by Snap at such time and in such manner as Snap in
its sole discretion shall decide during the remainder
of the Term. Any Impression not listed in the
applicable Snap standard rate card shall be assigned
the value of a comparable Impression on such rate
card by Snap.
3.3.2. UNDERDELIVERY. If Snap fails to deliver the required
number of Impressions during the Term, the Company
agrees that Snap shall have an additional six months
to deliver such Impressions on any Web site operated
by Snap, Xoom or NBC, at Snap's discretion, taking
into consideration the reasonable requests of the
Company. If Snap underdelivers on the required number
of Impressions during such additional six months,
Snap will refund to the Company the pro rata amount
of the media fees set forth in SECTION 9.3 for such
undelivered Impressions. Snap shall not underdeliver
the required number of Impressions during any year of
the Term by greater than 15% of the number of
Impressions required to be delivered by Snap pursuant
to SECTION 3.3.1 during such year.
3.3.3. OVERDELIVERY. In the event that Snap delivers in
excess of the number of Impressions required to be
delivered pursuant to this SECTION 3.3 during any of
Year One, Year Two or Year Three, then such
over-delivery of Impressions, which shall not exceed
10% of the total number of Impressions required to be
delivered by SECTION 3.3.1 for such year, shall be
credited towards satisfaction of the next year's
obligations for Snap to deliver Impressions until all
obligations through the end of the Term have been
fulfilled, after which the Company will pay for any
additional Keyword Promotions delivered, with payment
to be at Snap's then applicable rate card charges for
Keyword Promotions.
3.3.4. CLICK THRU DELIVERY. During the Term, Snap will use
reasonable efforts to deliver Click Thrus to the
Co-Branded Site or the Company Site.
3.4. LINKS; PERFORMANCE STANDARDS. The Company will be responsible
for ensuring that each link embedded within a Promotion takes
the User to the appropriate area within the Company Site or
the Co-Branded Site (other than links to the Health Channel
for which Snap will be responsible), and that such sites
function with reasonable reliability and in a commercially
reasonable manner throughout the Term. In particular, the
Company agrees that the Company Site and the Co-Branded Site
will comply with the performance standards set forth in
EXHIBIT C attached hereto throughout the Term. Any failure by
the Company to comply with this Section will be deemed to be a
material breach of this Agreement. In the event of such
breach, Snap shall be deemed to have delivered Impressions and
Click Thrus required to be delivered pursuant to this
Agreement on a daily, straight-line, pro-rata basis for the
duration of such breach.
3.5. BEST OF BREED. During the Term, in the event that Snap, in its
reasonable discretion, determines that the Company has failed
to maintain the Company Site, Company Content, or the
Co-Branded Site as Best of Breed in any material respect, Snap
shall have the right to terminate this Agreement in accordance
with SECTION 10.2 and shall have the right to remove any
deficient Company Content from the Snap Sites and the
Co-Branded Site until the Company has corrected such failure.
Snap acknowledges that all Company Content and the Company
Site are Best of Breed as of the Effective Date.
6
3.6. ACCOUNT MANAGEMENT.
3.6.1. ACCOUNT AND CONTACT MANAGERS. For the purposes of
this Agreement, ▇▇▇▇ ▇▇▇ shall be Snap's account
manager for the Company and ▇▇▇▇ ▇▇▇▇▇▇ shall be the
Company's contact manager for Snap (collectively, the
"Managers"). Subject to SECTION 17.12, the Managers
shall be the primary points of contact for inquiries
and requests, and each Manager shall provide the
other with such information and assistance as may be
reasonably requested by the other from time to time.
Either party to this Agreement may change its
designated Manager by giving the other party written
notice of such change.
3.6.2. QUARTERLY MEETINGS. At least once each quarter, the
Managers shall discuss the Company's Promotions for
the next quarter, the effectiveness of the last
quarter's Promotions, the reports provided under
SECTION 11, and any other items under this Agreement
either Manager wishes to bring to the attention of
the other Manager.
4. ANCHOR TENANCY.
4.1. ANCHOR TENANT OF CERTAIN HEALTH CHANNEL CONTENT AREAS. After
the Launch Date and during the Term, Snap will feature the
Company as the Anchor Tenant within seven of the following
nine major content areas within the Health Channel:
Alternative Medicine, Drugs & Medications, Diseases &
Conditions, Nutrition, Women's Health, Sexual Health, Men's
Health, Child & Youth Health and Public Health. The Company
shall specify in writing its preference for the seven major
content areas in which it wishes to be featured as Anchor
Tenant at least thirty days prior to the Launch Date. Snap
Product Managers shall determine the major content areas in
which the Company shall be featured as the Anchor Tenant.
Subject to this SECTION 4, Snap may, in the exercise of its
reasonable discretion, make changes to the design and
functionality of the Health Channel including, without
limitation, the names of major content areas; provided,
however, that major content areas similar to, or addressing
the general categories listed above shall exist within the
Health Channel during the Term. As the Anchor Tenant of seven
major content areas of the Health Channel, the Company will
receive the most prominent positioning within each of such
major content areas. During the Term, there shall be no other
Anchor Tenant of any of the seven major content areas of the
Health Channel in which the Company is then the Anchor Tenant;
provided, however, that other major content areas, content not
provided by the Company, subject to the terms of SECTION 3.2,
and/or links to other, non-Company sites may exist on the same
Web page and elsewhere within the Health Channel. The Company
acknowledges that Snap may feature Anchor Tenants other than
the Company on any major content area within the Health
Channel that is not one of the seven major content areas of
the Health Channel in which the Company is the Anchor Tenant.
Snap and the Company shall negotiate in good faith to
incorporate additional health-related Company content, so long
as such content is Best of Breed, within the content areas of
the Health Channel in which the Company is not the Anchor
Tenant, provided; however, Snap shall not be obligated to
negotiate with respect to such Company content if an agreement
with Company regarding such Company content would be
interpreted or operate to cause Snap to breach any existing
contract or agreement between Snap and any other party, or
impair the rights of any such contract party pursuant to an
existing contract or agreement with Snap. In the event that
Snap elects to add new content areas on the Health Channel or
elsewhere on the Snap Sites, Snap will in good faith first
discuss with the Company obtaining
7
additional health-related Company content, so long as such
content is Best of Breed, for such additional new content
areas. Snap will not enter into an agreement to add or create
new health-related content areas on the Health Channel with
another party pursuant to an agreement which is comparable in
number of content areas or total consideration to those of
this Agreement. On the Health Channel, the Company will have
the right to program up to five Health Content Portals, each
measuring no larger than approximately 150 x 400 pixels, with
relevant content and links to the Company Site. Snap shall
have the right, in its sole discretion, to add additional
content portals on the Health Channel; provided, however, the
Company shall have the right to program one additional Health
Content Portal, with the specifications set forth in the
foregoing sentence, for each health content portal on the
Health Channel greater than three that Snap elects to add in
addition to the five Health Content Portals. Company will
provide the appropriate Company Content, subject to the
reasonable discretion of a Snap Product Manager, for the
Health Content Portals. The Snap Product Manager may provide
the Company with reasonable assistance to enable the Company
to effectively design the Health Content Portals. Subject to
this SECTION 4.1, the Snap Product Manager will determine the
size and location, and the Look and Feel, of the Health
Content Portals; provided, however, that the Health Content
Portals will begin Above the Fold within five of the seven
major content areas of the Health Channel in which the Company
is the Anchor Tenant.
4.2. HARVESTING. The Company shall provide Company Content as
required herein pursuant to Snap's technical specification
policies for harvesting set forth in EXHIBIT D attached hereto
(unless otherwise mutually agreed to by the parties), as
updated from time to time in Snap's sole discretion. Snap
shall have the right, in its sole discretion, to harvest such
Company Content in a manner requiring a User of the Snap Sites
to "click through" as many as two Web pages within the Snap
Sites before the User is transferred to the Company Site or
the Co-Branded Site. Harvested Company Content will maintain
the Snap Sites' Look and Feel and will include branding for
the Company using Company Marks, in such form and placement as
a Snap Product Manager shall determine in his or her sole
discretion. Harvested Company Content shall not include any
Commerce Offering, except at Snap's sole discretion.
4.3. INTERNAL PROMOTIONS. Subject to the discretion of a Snap
Product Manager, during the Term, Snap shall promote and link
the Health Channel within and throughout the Snap Sites.
Subject to the discretion of a Snap Product Manager, the
Company may receive internal promotional links within relevant
sub-areas of the Snap Sites that link to the Co-Branded Site.
Such relevant sub-areas may include, without limitation, the
following: Shopping, Local, Education, Kids and Family. =
Snap, in its sole discretion, has the right to create,
maintain or discontinue any of the foregoing sub-areas on the
Snap Sites. In addition, Snap may include a link to the Health
Channel and/or the Co-Branded Site within issues of Snap Wire,
as determined by Snap in its sole discretion.
4.4. HOSTING. Snap will host the Health Channel, the Health Content
Portals and any Company Content harvested pursuant to SECTION
4.2 on its servers (or on servers within its control) and will
provide all computer hardware, software and personnel
necessary to operate and maintain the Health Channel, the
Health Content Portals and any harvested Company Content as
functional pages accessible to Users.
4.5. ADVERTISING. Snap shall own and have the right to use or sell
all of the advertising inventory on the Health Channel and on
the Company Content it may harvest. The Company acknowledges
that any advertising for and/or links to other sites similar
to or in
8
competition with the Company may exist in the Health Channel.
Notwithstanding anything in this Agreement to the contrary,
any third party content or links may exist on any area of the
Health Channel. Moreover, other than as expressly set forth
herein, Snap shall have the right to display any third party
links, media, banner advertisements, other promotions, and/or
paid or unpaid editorial content anywhere on the Snap Sites.
5. CO-BRANDED SITE.
5.1. CO-BRANDED SITE DESCRIBED. The Company will develop the
Co-Branded Site in accordance with this SECTION 5 and Snap
will provide reasonable assistance in connection therewith.
The Co-Branded Site will provide all of the features and
functionality provided by, and will perform in a manner
substantially identical to, the Company Site, as the Company
Site may be updated and enhanced from time to time.
5.2. CHANGES. Snap acknowledges that the Company may change the
design and functionality of the Company Site from time to
time, in which case the design and functionality of the
Co-Branded Site will be changed in a similar fashion.
Notwithstanding the foregoing, the Company will ensure that
the Co-Branded Site at all times maintains the Snap Sites'
Look and Feel and will make all changes reasonably suggested
by a Snap Product Manager for editorial consistency. Snap
agrees that all such changes shall refer to the Look and Feel
of the Co-Branded Site and not to Company Content on the
Co-Branded Site. Snap shall provide reasonable written notice
to the Company prior to modifying the Look and Feel of the
Snap Sites.
5.3. CO-BRANDING FEATURES. Each page on the Co-Branded Site will
include branding for Snap and the Company so that the Snap
Marks and Company Marks are both Above the Fold and are of
substantially equivalent value and prominence to each other.
Each page of the Co-Branded Site will also comply with Snap's
co-branding technical specifications, as updated in Snap's
sole discretion from time to time, including those set forth
at ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇_▇▇▇▇▇.
html or any other successor URL designated by Snap, and
include appropriate navigation features, such as an embedded
link on each Snap logo to the front door of the Snap Sites,
drop down menus, breadcrumb trails linking the User to the
page of the Snap Sites from which the User originated,
navigation bars and a Snap search box, that will include links
to the Snap Sites. Snap Marks and links to the Snap Sites will
have placement on the Co-Branded Site that is at least as
prominent as any promotions or links to other portal or search
engine companies that may be promoted on the Co-Branded Site.
5.4. LAUNCH DATE. The Company will use its best efforts to achieve
a Launch Date for the Co-Branded Site not sooner than the date
on which the Company has paid Snap pursuant to SECTION 9.1 and
paid Snap the initial fees pursuant to SECTIONS 9.2 AND 9.3
("Initial Payment Date") and not later than seven days after
such Initial Payment Date; provided, however, that if the
Launch Date occurs later than seven days after the Initial
Payment Date or does not occur due to the fault of the
Company, then such failure will be deemed a material breach of
this Agreement by Company. Snap shall provide the Company with
reasonable assistance to launch the Co-Branded Site.
Notwithstanding the Launch Date, Snap shall have the right to
begin displaying Impressions immediately upon the Effective
Date. If the Launch Date of the Co-Branded Site does not occur
by seven days after the Initial Payment Date, due to the fault
of the Company, Snap shall be deemed to have delivered
Impressions and Click Thrus required to be delivered pursuant
to this Agreement on a daily, straight-line, pro-rata basis
for each day thereafter.
9
5.5. HOSTING. The Company will host the Co-Branded Site on its
servers (or on servers within its control) and will provide
all computer hardware, software and personnel necessary to
operate and maintain the Co-Branded Site as a functional site
accessible to Users.
5.6. ADVERTISEMENTS. The Company shall own and have the right to
use or sell all of the advertising inventory on the Co-Branded
Site. The Company will display advertising on the Co-Branded
Site consistent with the number, type, and placement of
advertising displayed on the Company Site; provided, however,
that all advertisements on the Co-Branded Site must also
comply with Snap's reasonable editorial guidelines in effect
from time to time. The Company will not display advertisements
of Competitors on the Co-Branded Site. Further, if any
advertisement on the Co-Branded Site is reasonably deemed
inappropriate by Snap, the Company shall upon notice from Snap
immediately remove the advertisement from the Co-Branded Site.
For example, pornography would reasonably be deemed
inappropriate by Snap, but advertisements for the Healthy
Sexuality magazine of the Company would not reasonably be
deemed inappropriate.
5.7. DNS MAPPING. Using Domain Name System mapping, the URL for the
Co-Branded Site will begin with ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.
The Company agrees that Snap will be entitled to count all
page views of the Co-Branded Site towards Snap's traffic as
measured by Media Metrix and other Internet traffic-auditing
firms.
5.8. MOST FAVORED CUSTOMER PRICING. The Company shall offer on the
Co-Branded Site and the Company Site to Users from the Snap
Sites the Company's most favored customer pricing, which means
pricing and terms substantially similar to the lowest pricing
and most favorable terms offered by the Company to any other
Users of the Company Site. The Company shall maintain
competitive pricing for the products and services it offers.
6. CO-BRANDED, ENHANCED, AND INTERNATIONAL EDITIONS.
6.1. CO-BRANDED EDITIONS. Company acknowledges that Snap produces
co-branded editions of the Snap Sites for various resellers,
distributors, other licensees and/or joint venture partners
(collectively the "Distributors"). In some cases, such
Distributors are entitled to replace Snap's default content
with other content within their own co-branded editions of any
Snap Site. Notwithstanding any other provisions of this
Agreement, if any such Distributor has exercised its right to
replace Company Content with other content, then Snap will not
be required to display the Promotions or Company Content
within such Distributor's co-branded edition of the Snap
Sites. If Snap does display the Promotions or Company Content
within a co-branded edition of any Snap Site, such display
will be governed by this Agreement.
6.2. ENHANCED AND INTERNATIONAL EDITIONS. Snap has created an
enhanced, high-speed version of the Snap Sites focused on rich
media content (together with any successor service(s) or
site(s) thereof and any co-branded editions of such service
that have been or may be developed for Snap's third party
distribution partners and licensees, the "Enhanced Sites") and
may desire to include appropriate rich media Company Content
within the Enhanced Sites. Snap is currently considering
creating one or more international editions of the Snap Sites
to reflect appropriate localized and local partner content
("International Editions") and may desire to include localized
Company Content within the International Site. At Snap's sole
discretion, but subject to SECTION 3.2, all terms and
conditions contained in the Agreement related to the "Snap
Sites" may also apply to the Enhanced Site and International
Editions, and any Impressions and Click Thrus required under
10
the Agreement may be delivered on the Enhanced Sites,
International Editions, and/or the existing Snap Sites.
Subject to SECTION 3.2, the Company hereby acknowledges that,
Snap, in its sole discretion, may use appropriate content,
promotions and other material provided by Company within the
Enhanced Sites and the International Editions, and all
licenses set forth in this Agreement are hereby expanded to
include the Enhanced Sites and International Editions. In the
event that the Company does not have the legal right to
deliver to Snap any Company Content for use as contemplated by
this Agreement in certain geographical markets, then the
Company will use its best efforts to obtain the consent(s) of
the other parties to such contracts to deliver and use all
Company Content as contemplated by this Agreement in such
geographical markets. So long as the Company is using its best
efforts to obtain such consents, Snap will not, unless and
until such consent is obtained, use on any International
Edition such content for which delivery to or use on the
International Edition in a certain geographical location is
prohibited by the terms of a written contract to which the
Company is a party. The Company acknowledges that the Look and
Feel of the Enhanced Site will be designed for a
high-bandwidth audience and therefore may substantially differ
from the Look and Feel of the primary Snap Sites. The Company
further acknowledges that the Look and Feel of the
International Editions will be localized for the relevant
target audience (e.g., in terms of language, culture, and
ethnicity) and therefore may substantially differ from the
Look and Feel of the primary Snap Sites.
7. NBC ON-AIR PROMOTION. During the Term, Snap will create and run a
series (i.e., no less than two) of dedicated thirty-second Snap
television advertisements which air during morning or daytime programs
appearing on the NBC Television Network, local television stations or
cable services for health, wellness and/or medicine related content
areas on the Snap Sites (the "Spots"). Snap agrees that the Company
will be featured in the Spots, in Snap's discretion, through either (i)
a promotional tag (meaning a text or graphic promoting the Company's
brands or services) of at least four seconds appearing at the end of
such Spots, or (ii) an integrated sales message within the body of such
Spots which at a minimum will consist of a voice over of at least four
seconds in length regarding the Company's brand or service. Snap shall
have sole discretion regarding the form and content of such
advertisements but will consult with the Company regarding how the
Company's brand or services will be featured in the Spots. Beginning no
less than thirty days following the Effective Date and continuing
throughout the rest of the Term, the Spots will run an average of four
times per month. The Company acknowledges that all placement of brands
or services within the Spots, as well as the Spots themselves, will be
subject to the NBC Advertising Standard Terms and Conditions as well as
the Advertising Standards set by NBC Broadcast Standards and Practices,
and Snap will have no right or power to cause NBC to make any exception
thereto for the Company or the Spots. The Company acknowledges that
neither Snap nor NBC makes any guarantee regarding what the actual
rating for any particular Spot will be and, therefore, will not be
obligated to provide any make-goods hereunder.
8. USER PROFILE DATA, COMMERCE OFFERINGS, AND DIRECT MARKETING.
8.1. DATA OWNERSHIP. The Company will be the sole owner of any
information that the Company collects from Users through the
Company Site, Snap will be the sole owner of any information
that Snap collects from Users through the Snap Sites, and the
Company and Snap shall jointly own any information that either
the Company or Snap collects from Users through the Co-Branded
Site. Further, if a User whose User Profile Data is contained
in the Company Database receives an email from Xoom pursuant
to SECTION 8.4 and purchases products offered in such email
through Xoom or an affiliated Web site,
11
then the User Profile Data for such User shall be owned
jointly by Xoom and the Company from and after the time of
such purchase.
8.2. USE OF INFORMATION AND CONFIDENTIALITY. The Company and Snap
shall exchange User Profile Data and other information
relating to Users of the Co-Branded Site at times and in a
manner as reasonably requested by either party and mutually
agreed between the parties, but in any event at least once per
month. Each party will have the right to use any information
provided by the other party pursuant to SECTION 11 subject to
the confidentiality restrictions set forth in SECTION 17.6.
Unless otherwise clearly disclosed to Users on the respective
site, all data collected from Users through the Co-Branded
Site will be kept confidential and not disclosed to third
parties in accordance with the published privacy policy of
Snap and Xoom.
8.3. SNAP MEMBER REGISTRATION. If any Company Content accessed
through links appearing on the Snap Sites or the Co-Branded
Site contains any Commerce Offering that requires the User to
register or submit any User Profile Data, then Snap has the
right in its sole discretion to cause any of the following:
(i) the Web page that requests the User Profile Data, (ii) any
other page relating to the Commerce Offering, or (iii) a
separate Snap Member registration page, to present the User
with an opportunity to register to become a Snap Member.
8.4. DIRECT MARKETING. During the Term, Xoom and, following the
NBCi Closing, NBCi, shall have the right to use, with the
prior approval of the Company which approval shall not be
unreasonably withheld, the information contained in the
Company Database for direct marketing purposes as set forth in
this Section. Xoom shall have a right to execute, or cause to
be executed, at least one promotional email offer per month
approved by the Company, which approval shall not be
unreasonably withheld, to all or some of the Users described
in the Company Database. Such email offers shall be drafted by
Xoom, approved by Company (and such approval shall not be
unreasonably withheld) and will appear to come from
"HealthGate and Xoom". Such email messages may have links to
the Snap Sites or the Co-Branded Site, as Xoom shall decide in
its sole discretion. Products offered in such emails may
include Xoom's products or services or third party products
and/or services that Xoom has the right to offer, and Xoom
shall select all of such products to be offered in its sole
discretion. Xoom shall also have the option to create and host
"sell" pages for any marketing campaign, arrange for purchase
orders to be processed and fulfilled, and for customer service
and inventory matters to be coordinated in relation to the
products offered in emails distributed pursuant to this
Section, as Xoom shall determine in its sole discretion. Xoom
shall send a copy of the email offer to the Company at least
forty-eight hours prior to the time at which the email
messages are to be sent. The Company may reject, but not
unreasonably, promotional email offers proposed by Xoom.
8.5. COMPANY OFFERS. Xoom shall, if the Company requests, make up
to one promotional email offer per month containing a Company
Product offer to Users described in the Company Database,
provided that such email messages will be sent by Xoom in
consultation with the Company. Xoom may reject promotional
email offers proposed by the Company that include products or
services which compete with products or services then offered
to Users of the Snap Sites (other than Company Products
offered through the Co-Branded Site or harvested Company
Content), or if such offer otherwise conflicts with a Snap
and/or Xoom contractual agreement or Snap's and/or Xoom's
privacy or merchandising philosophy.
12
9. PAYMENTS AND CREDITS.
9.1. PRODUCTION FEE. On the day which is thirty days after the
Initial Registration Date, the Company will pay Snap a
$250,000 production and content integration fee, which shall
be non-refundable except as provided in SECTION 10.6.
9.2. ANCHOR TENANCY FEES. The Company will pay Snap a $7,500,000
fee for the Anchor Tenant positions on the Health Channel
during Year One (the "Year One AT Fee"). $2,500,000 of the
Year One AT Fee shall be payable in Common Stock of the
Company as further provided in SECTION 9.8. The balance of the
Year One AT Fee shall be payable in cash on the day which is
thirty days after the Initial Registration Date. Payments of
the Year One AT Fee shall be non-refundable except as provided
in SECTION 10.6. For the Anchor Tenant positions on the Health
Channel during Year Two, the Company will make four payments
to Snap, each in the amount of $1,875,000, the first payment
being due on the first day of the tenth month of Year One, the
second payment due on the first day of Year Two, the third
payment due on the first day of the fourth month of Year Two,
and the fourth payment due on the first day of the seventh
month of Year Two. For the Anchor Tenant positions on the
Health Channel during Year Three, the Company will make four
payments to Snap, each in the amount of $1,875,000, the first
payment being due on the first day of the tenth month of Year
Two, the second payment due on the first day of Year Three,
the third payment due on the first day of the fourth month of
Year Three, and the fourth payment due on the first day of the
seventh month of Year Three.
9.3. MEDIA FEES. The Company will also pay Snap a $7,500,000 fee
for all Impressions Snap delivers during Year One pursuant to
SECTION 3.3 (the "Year One Media Fees"). $2,500,000 of the
Year One Media Fees shall be payable in Common Stock of the
Company as further provided in SECTION 9.8. The balance of the
Year One Media Fees shall be payable in cash on the day which
is thirty days after the Initial Registration Date. Payments
of the Year One Media Fees shall be non-refundable except as
provided in SECTION 10.6. For Impressions delivered during
Year Two, the Company will pay Snap a total fee of $7,500,000,
to be paid monthly in twelve equal monthly installments of
$625,000 payable on the first day of each month beginning on
the first day of the tenth month of Year One. For Impressions
delivered during Year Three, the Company will pay Snap a total
fee of $7,500,000, to be paid monthly in twelve equal monthly
installments of $625,000 payable on the first day of each
month beginning on the first day of the tenth month of Year
Two.
9.4. PURCHASER IDENTIFICATION FEES. If a User whose User Profile
Data is contained in the Company Database receives an email
from Xoom pursuant to SECTION 8.4 and purchases products
offered in such email through Xoom or an affiliated Web site,
then Xoom shall pay to the Company a $5 fee for the
identification of such purchasing User within thirty days
after the end of the calendar month in which Xoom receives
from the Company an invoice for such fee; provided, however,
that no more than one such $5 fee shall be billed or paid for
each unique User pursuant to this SECTION 9.4.
9.5. PERFORMANCE FEE. The Company shall pay Snap $0.50 per Click
Thru for each Click Thru delivered during Year One in excess
of 8,333,000 Click Thrus, up to a maximum payment of
$5,000,000. The Company shall pay Snap $0.55 per Click Thru
for each Click Thru delivered during Year Two in excess of
9,375,000 Click Thrus up to a maximum payment of $10,000,000.
The Company shall pay Snap $0.60 per Click Thru for each Click
Thru delivered during Year Three in excess of 10,714,000 Click
Thrus up
13
to a maximum payment of $15,000,000. Such payments shall be
made by the Company within thirty days after receipt by Snap
of the monthly report described in SECTION 11.2.
9.6. PAYMENT. All payments required to be made hereunder by Snap or
Xoom will be made to the Company by wire transfer of
immediately available funds. Except as otherwise provided
herein, all payments required to be made hereunder by the
Company will be made to Snap by wire transfer of immediately
available funds, and to Xoom by wire transfer or check for
immediately available funds. If the Company should fail to
make any payment due under this Agreement by the date such
payment is due, the overdue payment will bear interest at the
rate of one and one-half percent simple interest per month or
the maximum interest permitted by law, whichever is less. Any
payment (including the issuance of stock pursuant to SECTION
9.8) which is due on a day which is not a Business Day shall
be payable on the next succeeding day that is a Business Day.
9.7. INVOICE PROCEDURE. Snap shall send the Company all invoices
hereunder to the attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇, whose title is
Chief Financial Officer, and who has the authority to
authorize the payment of such invoices.
9.8. EQUITY. As provided in SECTION 9.2 and SECTION 9.3, $2,500,000
of the Year One AT Fee and $2,500,000 of the Year One Media
Fees shall all be payable to Snap in shares of the Company's
Common Stock (the "Shares"), valued at $10.00 per Share, on
November 3, 1999, or such later date as Snap and the Company
shall mutually agree (the "Equity Closing Date"). On or prior
to the Equity Closing Date, the Company and Snap shall
negotiate in good faith and execute a Stock Transfer Agreement
governing the transfer of the Shares, which agreement shall
contain standard representations, warranties, covenants and
other terms and conditions reasonably satisfactory to both
Snap and the Company. On the Equity Closing Date, the Company
agrees to execute and deliver to Snap a registration rights
agreement reasonably acceptable to Snap that provides Snap
with piggyback registration rights that are subject to the
limitations on priority of registration permitted under the
Company's existing registration agreements. At Snap's
direction, the Shares shall be issued to an escrow agent (the
"Escrow Agent") pursuant to an Escrow Agreement to be executed
by the Company, Snap and the Escrow Agent named therein (the
"Escrow Agreement") and, 45 days following the Effective Date,
released to Snap.
10. TERM; TERMINATION.
10.1. TERM. The term of this Agreement will begin on the Effective
Date and end on the last day of the thirty-seventh month after
the Effective Date, unless otherwise terminated or extended as
set forth in this Agreement (the "Term").
10.2. TERMINATION FOR CAUSE. Either Snap or the Company may
terminate this Agreement at any time by giving written notice
of termination to the other parties if any other party commits
a material breach of its obligations hereunder that is not
cured within thirty days after notice thereof from a
non-breaching party; provided, however, that if the Company
fails to make a payment as required hereunder, Snap or Xoom,
as the case may be, may terminate this Agreement fifteen days
following the date of notice of such non-payment if any such
payment is not made within fifteen days after the Company's
receipt of such notice. Snap or Xoom may terminate this
Agreement immediately, and shall have no further obligation
under this Agreement, if the Company becomes insolvent; makes
an assignment for the benefit of creditors; makes or sends
notice of a bulk transfer; calls a meeting of its creditors
with respect to its inability to pay its obligations owed to
such
14
creditors on customary terms; defaults under any agreement,
document or instrument relating to the Company's indebtedness
for borrowed money; ceases to do business as a going concern;
a petition is filed by or against the Company under any
bankruptcy or insolvency laws; or the Company experiences a
change in its ownership, such that a person, corporation or
other legal entity with a direct competitive interest (i.e.,
owns or operates a search and aggregation portal site on the
Web) holds an equity interest in the Company, without Snap's
prior, written consent to such ownership.
10.3. TERMINATION REGARDING COMPANY CONTENT. Snap may terminate this
Agreement at any time by giving written notice of termination
to the Company if the Company fails to timely deliver,
pursuant to SECTION 3.2, any material part of the Company
Content, including updates, and such failure is not cured
within ten days after the Company's receipt of notice thereof
from Snap.
10.4. TERMINATION REGARDING INITIAL REGISTRATION DATE. In the event
that the Initial Registration Date has occurred on or before
February 28, 2000, Snap may, in its sole discretion, terminate
this Agreement. If Snap elects to terminate this Agreement
under this SECTION 10.4, then the Company shall be required to
enter into an agreement within five days of such termination
to purchase Impressions from Snap having a value of $450,000
calculated at a 30% discount from the rates set forth in the
applicable Snap's standard rate card attached hereto as
EXHIBIT B and otherwise on Snap's standard terms and
conditions. The parties acknowledge and agree that the amount
of liquidated damages described above is a reasonable estimate
of the actual damages that Snap would suffer and incur as a
result of the failure of the Initial Registration Date to
occur by such date.
10.5. TERMINATION REGARDING PAYMENT OF EQUITY. Snap shall have a
right to terminate this Agreement, in its sole discretion, in
the event that the Company defaults in the performance of its
obligations pursuant to SECTION 9.8 or its obligations
pursuant to any agreement entered into between the Company and
Snap pursuant to SECTION 9.8. If Snap elects to terminate this
Agreement under this SECTION 10.5, then the Company shall be
required to enter into an agreement within five days of such
termination to purchase Impressions from Snap having a value
of $450,000 calculated at a 30% discount from the rates set
forth in the applicable Snap's standard rate card attached
hereto as EXHIBIT B and otherwise on Snap's standard terms and
conditions.
10.6. TERMINATION REGARDING FAILURE OF THE NBCI CLOSING. In the
event that the NBCi Closing does not occur on or before March
31, 2000, the Company shall have the option to terminate this
Agreement by giving written notice of termination to each of
Snap and Xoom. Upon the Company's exercise of this right of
termination, Snap shall return to the Company, within five
days of such termination, all consideration received by Snap
from the Company under this Agreement, and the parties hereto
shall have no further obligations or liabilities hereunder
except for such obligations and liabilities which are
expressly intended to survive the termination of this
Agreement.
10.7. CONSEQUENCES OF TERMINATION. Termination by Snap shall not
affect the rights and obligations of Xoom under this
Agreement, and termination by Xoom shall not affect the rights
and obligations of Snap under this Agreement. Upon the
termination or expiration of this Agreement, all licenses
granted hereunder shall immediately terminate; each party
shall return or destroy, all Confidential Information of the
other party in its possession. In addition, in the event this
Agreement is terminated pursuant to SECTION 10.2 and/or 10.3,
then all monies paid by the Company to Snap hereunder prior to
the termination
15
shall be deemed non-refundable except as expressly stated
otherwise in this Agreement. Finally, in the event this
Agreement is terminated by Snap only pursuant to SECTION 10.2
and/or SECTION 10.3 (excluding termination for Company's
failure to maintain the Company Site, Company Content or the
Co-Branded Site as Best of Breed pursuant to SECTION 3.5),
then the Company shall continue to pay 55% of all fees payable
by the Company to Snap during the remainder of the Term as
liquidated damages. Such payments shall be due and payable on
the dates they would have been due and payable if the
termination had not occurred. The parties acknowledge and
agree that it would be impractical to estimate the amount of
any damages that could arise out of any material breach of
this Agreement or termination pursuant to SECTION 10.2 and/or
SECTION 10.3, and agree that the amount of liquidated damages
described above is a reasonable estimate of the actual damages
that Snap would suffer and incur as a result of such breach or
termination of this Agreement. No party shall be liable to the
others for damages of any sort resulting solely from
terminating this Agreement in accordance with its terms.
11. REPORTS, RECORDS, AND ACCOUNTS.
11.1. SNAP AND XOOM REPORTS. Within 15 days after the end of each
month during the Term, Snap and Xoom will provide to the
Company their standard advertising reports for User traffic
generated from the Promotions for such month.
11.2. COMPANY REPORTS. Within 15 days after the end of each month
during the Term, the Company will provide to Snap a complete
and detailed report that includes, at a minimum, for such
month: (i) the total page views on the Co-Branded Site, (ii)
the total number of Click Thrus delivered for such month and
the aggregate number of Click Thrus delivered since the
beginning of the Contract Year containing such month, (iii)
the total payment due Snap from the Company, if any, pursuant
to SECTION 9.5, (iv) the number of unique Users to the
Co-Branded Site from the Health Channel, (v) the number of
Users and User Profile Data for Users who click through from
the Snap Sites to the Company Site and/or the Co-Branded Site,
(vi) the number of Users and User Profile Data for Users who
click through from the Snap Sites to the Company Site and/or
the Co-Branded Site and order Company Products and (vii) the
aggregate statistical and demographic characteristics of Users
in (iv), (v) and (vi). Snap will tag each User of the
Co-Branded Site originating from the Snap Sites using a cookie
or other similar technology to assist the Company in obtaining
the foregoing data.
11.3. RECORDS AND ACCOUNTS. The Company agrees to keep, on a
continuing basis, full and accurate records and accounts,
including, without limitation all logs and reports, sufficient
to permit Snap and Xoom to verify the accuracy of all reports
submitted by the Company as hereinabove required. Snap and
Xoom shall have the right, at their sole expense, to examine
such books and records, whether in electronic format or
otherwise, to the extent that such examination is necessary
and pertinent to the foregoing verification, during reasonable
business hours, using its employees or principals, or through
outside, authorized representatives. In the event such an
examination reveals that any of the reports submitted or
payments made by the Company to Snap, as hereinabove required,
understated the monies owed by five percent (5%) or more, then
the Company shall, in addition to the payment of the
additional monies owed fees determined by such examination,
promptly pay to Snap the reasonable cost of such examination.
16
12. Licenses.
12.1. COMPANY MARKS AND CONTENT. The Company hereby grants to Snap
and Xoom a non-exclusive, non-transferable, royalty-free
license, effective throughout the Term, to use, display and
publish the Company Marks and Company Content solely as
permitted hereunder; provided, however, that this license
shall not apply to any Company ▇▇▇▇ that is licensed by the
Company from any third party to the extent that the grant of
this license to Snap and Xoom is prohibited by a contractual
obligation to such third party which is disclosed in writing
to Snap prior to the Effective Date. In the event the Enhanced
Sites and/or the International Editions are deemed included
within this Agreement pursuant to SECTION 6.2, the Company
hereby further grants to Snap and Xoom a non-exclusive,
non-transferable, royalty-free license, effective throughout
the Term, to modify and create derivative works of the Company
Content solely as permitted hereunder. In the event the
International Editions are deemed included within this
Agreement pursuant to SECTION 6.2, the Company shall in good
faith modify the Company Marks to incorporate changes
reasonably suggested by Snap for the relevant target audience
(e.g., complying with local laws or avoiding the use of
offensive terms in the local language). Any use of the Company
Marks or the Company Content by Snap or Xoom must comply with
any reasonable usage guidelines communicated by the Company to
Snap and Xoom from time to time. Nothing contained in this
Agreement will give Snap or Xoom any right, title or interest
in or to the Company Content, the Company Marks or the
goodwill associated therewith, except for the limited usage
rights expressly provided above. Snap and Xoom acknowledge and
agree that, as between the Company and Snap and Xoom, the
Company is the sole owner of all rights in and to the Company
Marks and the Company Content.
12.2. SNAP MARKS. Snap hereby grants to the Company a non-exclusive,
non-transferable, royalty free license, effective throughout
the Term, to use, display and publish the Snap Marks solely
within the Co-Branded Site as permitted hereunder. Any use of
the Snap Marks by the Company must comply with any reasonable
usage guidelines communicated to the Company by Snap from time
to time. Nothing contained in this Agreement will give the
Company any right, title or interest in or to the Snap Marks
or the goodwill associated therewith, except for the limited
usage rights expressly provided above. The Company
acknowledges and agrees that, as between the Company and Snap,
Snap is the sole owner of all rights in and to the Snap Marks.
12.3. XOOM MARKS. Xoom hereby grants to the Company a non-exclusive,
non-transferable, royalty free license, effective throughout
the Term, to use, display and publish the Xoom Marks solely
within the Co-Branded Site as permitted hereunder. Any use of
the Xoom Marks by the Company must comply with any reasonable
usage guidelines communicated to the Company by Xoom from time
to time. Nothing contained in this Agreement will give the
Company any right, title or interest in or to the Xoom Marks
or the goodwill associated therewith, except for the limited
usage rights expressly provided above. The Company
acknowledges and agrees that, as between the Company and Xoom,
Xoom is the sole owner of all rights in and to the Xoom Marks.
13. RESPONSIBILITY FOR THE SITES AND PRODUCTS. The Company acknowledges and
agrees that, as between the Company and Snap and Xoom, the Company will
be solely responsible for any claims or other losses associated with or
resulting from the marketing or operation of the Company Site or the
Co-Branded Site or the offer or sale of any Company Products by the
Company or through the Company Site or the Co-Branded Site, or through
emails delivered by
17
Xoom. Snap and Xoom are not authorized to make, and agree not to make,
any representations or warranties concerning the Company Products,
except to the extent (if any) contained within Promotions delivered to
Snap or Xoom by the Company.
14. LIMITATION OF DAMAGES. NO PARTY WILL BE LIABLE FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED
TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF A CLAIM UNDER
SECTION 16 OR SECTION 17.5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY IN AN AMOUNT GREATER THAN THE AMOUNTS PAYABLE TO SNAP
BY THE COMPANY HEREUNDER.
15. NO WARRANTIES. THE IMPRESSIONS, HEALTH CHANNEL, HEALTH CONTENT PORTALS
AND COMPANY CONTENT ARE PROVIDED "AS IS" AND THE INFORMATION CONTAINED
THEREIN IS NOT WARRANTED TO BE FREE FROM ERROR. SNAP, XOOM AND THE
COMPANY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO THE IMPRESSIONS, HEALTH
CHANNEL, HEALTH CONTENT PORTALS AND COMPANY CONTENT.
16. MUTUAL INDEMNIFICATION.
16.1. INDEMNIFICATION BY SNAP. Snap shall indemnify, defend and hold
the Company harmless from and against any costs, losses,
liabilities and expenses, including all court costs,
reasonable expenses and reasonable attorney's fees
(collectively, "Losses") that the Company may suffer, incur or
be subjected to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether commenced
or threatened, arising out of or as a result of the operation
of the Snap Sites (except in cases where the Company is
required to indemnify Snap under SECTION 16.3).
16.2. INDEMNIFICATION BY XOOM. Xoom shall indemnify, defend and hold
the Company harmless from and against any Losses that the
Company may suffer, incur or be subjected to by reason of any
legal action, proceeding, arbitration or other claim by a
third party, whether commenced or threatened, arising out of
or as a result of the emails sent by Xoom or a third party
pursuant to SECTION 8.4 and the use of the unauthorized or
illegal use of the Company Database (except in cases where the
Company is required to indemnify Xoom under SECTION 16.3).
16.3. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify,
defend and hold each of Snap and Xoom harmless from and
against any Losses that Snap or Xoom may suffer, incur or be
subjected to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether commenced
or threatened, arising out of or as a result of (i) the use of
Company Content by Snap in accordance with this Agreement;
(ii) the operation of the Company Site or the Co-Branded Site;
(iii) the use of any word as a Keyword to trigger a Keyword
Promotion; (iv) the offer or sale of Company Products by the
Company on or through the Company Site, or the Co-Branded Site
or any emails sent by Xoom or a third party pursuant to
SECTION 8.4, or (v) the authorized and legal use of the
Company Database.
18
16.4. INDEMNIFICATION PROCEDURES. If any party entitled to
indemnification under this Section (an "Indemnified Party")
makes an indemnification request to the other, the Indemnified
Party shall permit the other party (the "Indemnifying Party")
to control the defense, disposition or settlement of the
matter at its own expense; provided that the Indemnifying
Party shall not, without the consent of the Indemnified Party
enter into any settlement or agree to any disposition that
imposes an obligation on the Indemnified Party that is not
wholly discharged or dischargeable by the Indemnifying Party,
or imposes any conditions or obligations on the Indemnified
Party other than the payment of monies that are readily
measurable for purposes of determining the monetary
indemnification or reimbursement obligations of Indemnifying
Party. The Indemnified Party shall notify the Indemnifying
Party promptly of any claim for which Indemnifying Party is
responsible and shall cooperate with the Indemnifying Party in
every commercially reasonable way to facilitate defense of any
such claim; provided that the Indemnified Party's failure to
notify Indemnifying Party shall not diminish Indemnifying
Party's obligations under this Section except to the extent
that Indemnifying Party is materially prejudiced as a result
of such failure. An Indemnified Party shall at all times have
the option to participate in any matter or litigation through
counsel of its own selection and at its own expense.
17. MISCELLANEOUS.
17.1. PROMOTION OF SNAP SITES. The Company may accept advertising
from other portals or search engines. If the Company accepts
advertising from other portals or search engines, and the
Company promotes such portals or search engines within a
"partner" area of the Company Site, then the Company shall
display the Snap Marks on such area of the Company Site at
least as prominently as such portal or search engine entity.
The Company shall ensure that the Snap Marks on the Company
Site link to the Co-Branded Site or the Health Channel.
17.2. ASSIGNMENT. Snap shall have the right to assign all of its
rights and liabilities hereunder to an affiliate or to any
person or entity that (i) acquires all or substantially all of
Snap's operating assets (whether by asset sale, stock sale,
merger or otherwise) or (ii) results from a merger or
reorganization of Snap pursuant to any plan of merger or
reorganization. Xoom shall have the right to assign all of its
rights and liabilities hereunder to an affiliate or to any
person or entity that (i) acquires all or substantially all of
Xoom's operating assets (whether by asset sale, stock sale,
merger or otherwise) or (ii) results from a merger or
reorganization of Xoom pursuant to any plan of merger or
reorganization. Without limiting the generality of the
foregoing, the Company expressly acknowledges that Snap and
Xoom will each have the right to freely assign this Agreement
or the operative rights and obligations hereof to any entity
resulting from the merger or other similar combination of Snap
and Xoom. The Company may assign all of its rights and
liabilities to another person, if such person or entity
accepts in writing all of the Company's rights, obligations
and liabilities hereunder, such person or entity is not a
Competitor, and the Company provides prior written notice to
Snap of such assignment.
17.3. RELATIONSHIP OF PARTIES. This Agreement will not be construed
to create a joint venture, partnership or the relationship of
principal and agent between the parties hereto, nor to impose
upon either party any obligations for any losses, debts or
other obligations incurred by the other party except as
expressly set forth herein. In no event will Snap or Xoom be
liable for the actions, omissions, duties or obligations of
the other under this Agreement.
19
17.4. APPLICABLE LAW. This Agreement will be construed in accordance
with and governed by the laws of the State of California,
without regard to principles of conflicts of law. Litigation
of disputes under this Agreement shall be conducted in courts
located in the City of San Francisco, California. The parties
hereto consent to the jurisdiction of any local, state or
federal court in which an action is commenced and located in
accordance with the terms of this Section and that is located
in San Francisco, California. The parties further agree not to
disturb such choice of forum, and if not resident in such
state, waive the personal service of any and all process upon
them, and consent that such service of process may be made by
certified or registered mail, return receipt requested,
addressed to the parties as set forth herein.
17.5. CONFIDENTIALITY. In connection with the activities
contemplated by this Agreement, each party may have access to
confidential or proprietary technical or business information
of any other party, including without limitation (i)
proposals, ideas or research related to possible new products
or services; (ii) financial statements and other financial
information; (iii) any reporting information in SECTION 11;
and (iv) the material terms of this Agreement and the
relationship between the parties; provided, however, that such
information will be considered confidential only if it is
conspicuously designated as "Confidential," or if provided
orally, identified at the time of disclosure as confidential
(collectively, "Confidential Information"). Each party will
take reasonable precautions to protect the confidentiality of
the other party's Confidential Information, which precautions
will be at least equivalent to those taken by such party to
protect its own Confidential Information. Except as required
by law or as necessary to perform under this Agreement, no
party will knowingly disclose the Confidential Information of
any other party or use such Confidential Information for its
own benefit or for the benefit of any third party. Each
party's obligations in this Section with respect to any
portion of the other party's Confidential Information shall
terminate when the party seeking to avoid its obligation under
such Section can document that: (i) it was in the public
domain at or subsequent to the time it was communicated to the
receiving party ("Recipient") by the disclosing party
("Discloser") through no fault of Recipient; (ii) it was
rightfully in Recipient's possession free of any obligation of
confidence at or subsequent to the time it was communicated to
Recipient by Discloser; (iii) it was developed by employees or
agents of Recipient independently of and without reference to
any information communicated to Recipient by Discloser; (iv)
it was communicated by the Discloser to an unaffiliated third
party free of any obligation of confidence; or (v) the
communication was in response to a valid order by a court or
other governmental body, was otherwise required by law or was
necessary to establish the rights of either party under this
Agreement.
17.6. PRESS RELEASE. No party will make any public statement or
other announcement (including without limitation, issuing a
press release or pre-briefing any member of the press or other
third party) relating to the terms or existence of this
Agreement without the prior written approval of the other
parties. Notwithstanding the foregoing and SECTION 17.5, the
parties may issue an initial joint press release, the timing
and wording of which will be subject to each party's
reasonable approval, regarding the relationship between the
parties.
17.7. INJUNCTIVE RELIEF. Each party agrees that in the event of a
breach or alleged breach of SECTIONS 17.5 or 17.6 that the
other parties shall not have an adequate remedy at law,
including monetary damages, and that the other parties shall
consequently be entitled to seek a temporary restraining
order, injunction, or other form of equitable relief against
20
the continuance of such breach, in addition to any and all
remedies to which any other party shall be entitled.
17.8. CAPTIONS AND SECTION HEADINGS. Captions and section headings
used in this Agreement are for convenience only and are not a
part of this Agreement and shall not be used in construing it.
Except as otherwise specifically provided, any reference in
this Agreement to a section or exhibit shall be deemed to be a
reference to such section or exhibit of this Agreement.
17.9. SURVIVAL. Termination or expiration of this Agreement for any
reason shall not release any party from any liabilities or
obligations set forth in this Agreement which (i) the parties
have expressly agreed shall survive any such termination or
expiration, or (ii) remain to be performed or by their nature
would be intended to be applicable following any such
termination or expiration.
17.10. TAXES. For all fees or charges payable hereunder by the
Company to Snap, the Company will pay or reimburse Snap for
50% of any taxes or fees (including all federal, state, or
local taxes) associated with Snap's provision of the services
hereunder to Company, except that Company will have no
liability for any taxes based on Snap's net assets or net
income, or for which Company has an appropriate resale or
other exemption.
17.11. FORCE MAJEURE. If any party shall be delayed in its
performance of any obligation hereunder or be prevented
entirely from performing any such obligation due to causes or
events beyond its reasonable control, including without
limitation any act of God, fire, strike or other labor
problem, such delay or non-performance shall be excused and
the time for performance shall be extended to include the
period of such delay or non-performance.
17.12. DISPUTE RESOLUTION. In the event that any dispute arises
hereunder, the parties agree that prior to commencing
litigation, arbitration, or any other legal proceeding, each
party shall send an officer of such party to negotiate a
resolution of the dispute in good faith at a time and place as
may be mutually agreed. Each officer shall have the power to
bind its respective party in all material respects related to
the dispute. If the parties cannot agree on a time or place,
upon written notice from either party to the other, the
negotiations shall be held at the principal executive offices
of Snap 21 days following such notice (or on the next
succeeding Business Day, if the 21st day is not a Business
Day).
17.13. NOTICES. All notices or other communications that shall or may
be given pursuant to this Agreement, shall be in writing, in
English, shall be sent by certified or registered air mail
with postage prepaid, return receipt requested, by facsimile,
overnight express mail, or by hand delivery. Such
communications shall be deemed given and received upon
confirmation of receipt, if sent by facsimile; the day after
delivery if by overnight express mail; or upon delivery if
hand delivered; or upon receipt of mailing, if sent by
certified or registered mail; and shall be addressed to the
parties as set forth above on the first page of this Agreement
and to the attention of ▇▇▇▇ ▇▇▇▇▇▇, if to the Company, to the
attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇, Contracts Administrator, if to
Snap, and to the attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇, if to Xoom; or to
such other addresses or persons as the parties may designate
in writing from time to time.
21
17.14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed a duplicate
original and all of which, when taken together, shall
constitute one and the same document.
17.15. ENTIRE AGREEMENT. This Agreement constitutes and contains the
entire agreement between the parties with respect to the
subject matter hereof and supersedes any prior oral or written
agreements. This Agreement may not be amended except in
writing signed by both parties. Each party acknowledges and
agrees that the other has not made any representations,
warranties or agreements of any kind, except as expressly set
forth herein. All exhibits attached to this Agreement are
incorporated hereby and shall be treated as if set forth
herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the dates indicated below.
SNAP! LLC HEALTHGATE DATA CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ----------------------------
(Signature) (Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- --------------------------
(Please print) (Please print)
Title: Chief Operating Officer Title: Chief Executive Officer
--------------------------- --------------------------
Date: 11/2/99 Date: 10/29/99
---------------------------- ---------------------------
▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
(Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
(Please print)
Title: Chairman
--------------------------
Date: 11/2/99
---------------------------
22