EXHIBIT 10.51
CONFIDENTIAL
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DEVELOPMENT AND SERVICES AGREEMENT
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This Agreement (this "Agreement"), effective as of July 1, 1999 (the "Effective
Date"), is made and entered into by and between America Online, Inc. ("AOL"), a
Delaware corporation, with its principal offices at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇.▇▇▇, Inc., ("Company"), a Delaware corporation, with
its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (each a "Party" and collectively the "Parties").
INTRODUCTION
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AOL provides online access and services through the AOL Network, including
without limitation the AOL Service, Netscape Netcenter, the CompuServe brand
service, Digital City and ▇▇▇.▇▇▇ (as such terms are defined herein).
Company is a provider of various health and medical care information, products
and services, including products and services currently offered through the
Internet at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇.▇▇▇.
AOL and Company wish to enter into an agreement on the terms and conditions set
forth herein whereby Company will have principal responsibility for developing,
producing, managing and providing Content for an online personal medical records
and health information service (as defined herein, "PMR Service") permitting
individual consumers to maintain and access online personal medical records
information and to access related value added services, products and content
provided by or in conjunction with third parties such as medical insurance
companies. The PMR Service will be managed by Company for AOL as provided
herein (the "AOL PMR Service"). In addition, Company will have the right to
operate the PMR Service on Company's own behalf on the ▇▇. ▇▇▇▇ Site (the
"Company PMR Service")
Concurrently herewith, the Parties are entering into an Interactive Services
Agreement of even date pursuant to which AOL is providing access to an Internet
Site of Company through the AOL Network (the "Interactive Services Agreement").
Defined terms used but not defined in the body of the Agreement or in the other
Exhibits attached to this Agreement will have the respective meanings set forth
on Exhibit A attached hereto.
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* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
TERMS
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1. Development.
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1.1. Initial Specifications and Development. Company and AOL will, within
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forty-five (45) days following the Effective Date, jointly agree in
writing upon a development plan setting forth detailed specifications
for the PMR Service to be developed by Company. Such development
plan, as it may be amended from time to time by written agreement of
both Parties, is referred to in this Agreement as the "Development
Plan." The Development Plan will provide for the PMR Service to
utilize AOL namespace and applicable elements and characteristics of
that namespace (collectively the "AOL Namespace Technology"), so that
all users of the PMR Service will be able to utilize AOL products,
services, tools and utilities that utilize the AOL Namespace
Technology. The Development Plan will also include the requirement
that the PMR Service (a) conform with then-existing technologies
identified by AOL which are optimized for the AOL Service and are
compatible with AOL's then-available client and host software and the
AOL Network; and (b) meet AOL's then current reasonable volume and
performance requirements. The Development Plan will also include a
commitment by Company to develop and maintain as part of the PMR
Service an applications programming interface ("API") to facilitate
the transmission and passage of data between AOL and Third Party
Service Providers, which API shall be developed and maintained at a
quality level consistent with industry APIs intended to facilitate
electronic data interchange between commerce partners. Company's
commitment to development and maintenance of the API pursuant to this
Agreement does not extend to Backend servicing of Third Party Service
Provider interfaces and connections to the API, which services the
Parties understand Company may perform at a separate charge to such
Third Party Service Providers.
1.1 Timetable. The Parties will agree on a project timetable for
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development and launch of the PMR Service as part of the Development
Plan. Such project timetable, as it may be amended from time to time
by written agreement of both Parties, is referred to in this
Agreement as the "Project Timetable."
1.2 Company Development Responsibilities. Company will be principally
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responsible for the development of the PMR Service in accordance with
this Agreement, including all technology and aspects thereof, such as
user interface, database and database management technology and
interface technology to interface the PMR Service to third parties
and content and data from such third parties. Company agrees to
diligently perform the development services and to develop and
provide the PMR Service in accordance with the Development Plan, the
Project Timetable
and the operating standards set forth in Exhibit "C" (the "Operating
Standards"). Company will be responsible for devoting such personnel,
equipment and resources as are required to accomplish such
development.
1.3 AOL Development Responsibilities. The Parties recognize that the
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Development Plan may provide for certain development tasks to be
undertaken by AOL, where AOL has particular knowledge or expertise
that would advance or facilitate such development. To the extent that
the Development Plan provides that AOL is responsible for certain
development tasks, AOL will diligently perform the development
services for which it is responsible as set forth in the Development
Plan, and AOL will be responsible for devoting such personnel,
equipment and resources as are required to accomplish such
development tasks in accordance with the Development Plan and the
Project Timetable.
1.4 Testing and Acceptance. The PMR Service shall, upon completion, be
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subjected to such testing as each party may desire to conduct, and
the PMR Service will not be deployed until approved by both Company
and AOL. Upon completion of any such testing conducted by AOL, AOL
shall provide Company written notice of approval or disapproval of
the PMR Service. The Development Plan and/or Project Timetable shall
set forth more detailed procedures, responsibilities and timetables
for the acceptance testing process. Any disapproval by AOL shall be
based upon AOL's determination that the PMR Service fails to conform
to the Development Plan or is not suitable for commercial release and
deployment. In the event of disapproval by AOL, AOL shall give its
reasons for disapproval in reasonable detail, specifying the nature
of the deficiencies, and Company shall thereafter use reasonable
efforts to modify the PMR Service and resubmit it for further
acceptance testing by AOL. This process shall continue until the PMR
Service has been approved by AOL. The date on which AOL notifies
Company that AOL approves the PMR Service is referred to herein as
the "AOL Approval Date." Any subsequent enhancements, modifications
or revisions to the PMR Service will also be subject to AOL's and
Company's approval of the specifications therefor and AOL's and
Company's testing and approval thereof as set forth in this Section
1.5. No changes or additions will be made to the PMR Service until
such changes or additions (a) conform with specifications agreed to
by AOL, (b) conform with then-existing technologies identified by AOL
which are optimized for the AOL Service and are compatible with AOL's
then-available client and host software and the AOL Network; (c) meet
AOL's then current reasonable volume and performance requirements;
(d) meet such other requirements as AOL may reasonably require as a
condition to acceptance of such changes or additions; and (e) have
been accepted pursuant to this Section 1.5.
1.2. Additional Development Services.
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(a) Requirements. At all times during the Term, Company will
undertake such development and make such changes to the PMR
Service as may be required to ensure that the PMR substantially
complies with the Operating Standards.
(b) Changes. After the initial development of the PMR Service,
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Company may make such changes to the PMR Service as Company
deems appropriate to maintain the PMR Service as a market-
competitive service, provided that such changes will be subject
to AOL's written approval, not to be unreasonably withheld. In
addition, Company will make such changes to the PMR Service as
AOL may reasonably request from time to time. Without limiting
the foregoing, Company will make such changes to the PMR
Service as AOL may reasonably request in order to implement
technological innovations as well as to integrate with the PMR
Services complementary products, services and/or technologies
designated by AOL that are provided by AOL or third parties,
including without limitation Third Party Service Providers. In
the event AOL requests that Company implement technological
innovations or complementary products, services and/or
technologies offered by an AOL Strategic Partner, Company will
undertake such changes using the technological innovations,
products, services and/or technologies offered by such third
party. In the event AOL requests that Company implement
technological innovations or complementary products, services
and/or technologies offered by a third party other than an AOL
Strategic Partner, Company may elect either to undertake such
changes using the technological innovations, products, services
and/or technologies offered by such third party or to deliver
to AOL within thirty (30) days following AOL's initial request
for such implementation a written plan for implementation of
alternative third party or Company technological innovations,
products, services and/or technologies offering comparable or
better functionality and performance, which plan shall be
subject to AOL's approval, not to be unreasonably withheld.
Company will provide development services under this Section
1.6(a)(ii) on a high priority basis and on at least as high a
priority basis as provided to any third party. Upon any request
by AOL for changes or any approval by AOL of changes proposed
by Company, the parties will agree upon the specifications for
such changes and a development schedule for such changes.
(c) Agreements with Third Party Service Providers. The Parties
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recognize that a significant portion of the value of the PMR
Service is its ability to interface with products and services
offered by Third
Party Service Providers. The Parties recognize that the
Development Plan may provide for certain development tasks to
be undertaken by third parties, where one or more third parties
has particular knowledge or expertise that would advance or
facilitate such development. If AOL reasonably requests that
Company integrate with the PMR Service complementary products,
services or technologies provided by an AOL Strategic Partner,
Company will negotiate in good faith with such third party and
will enter into, on commercially reasonable terms, such
agreements with such third party as may be required to
accomplish such integration. In the event that AOL obtains a
commitment from a Third Party Service Provider to integrate
with the PMR Service complementary products or services of such
Third Party Service Provider that are anticipated to expand the
number of consumers with access to the PMR Service, AOL may
require that Company co-brand or ingredient brand the PMR
Service with the name or logo of such Third Party Service
Provider in accordance with branding commitments negotiated by
AOL and such Third Party Service Provider, subject to the
requirements set forth in Section 2.2(a) with respect to
ingredient branding to be accorded to Company. For other
complementary products, services or technologies integrated
with the PMR Service, AOL and Company will negotiate in good
faith with one another regarding any co-branding or ingredient
branding requested by the third party providing such
complementary products, services or technologies. All
agreements that Company enters into with any Third Party
Service Providers shall explicitly provide that upon expiration
or termination of the Term of this Agreement, the Third Party
Service Provider shall not be restricted or limited in any
manner from providing its products and services to AOL, either
directly or through one or more third party transaction
processors, it being the intention that AOL will have the
ability to continue to offer the PMR Service with any related
products or services of Third Party Service Providers that were
offered during the Term as part of the PMR Service. AOL shall
be a named third party beneficiary of any such agreements.
(d) Development Committee. AOL and Company shall each designate an
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individual to serve as development representatives (the
"Development Representatives") on a development committee (the
"Development Committee"). The initial Development
Representative appointed by each Party shall be subject to the
other Party's approval, not to be unreasonably withheld. Upon
AOL's request, the Development Committee shall also include a
development representative appointed by an AOL Strategic
Partner. If either Party replaces the initially designated
Development Representative, such Development Representative
must be replaced by a person of similar rank and stature unless
the
parties otherwise agree. The Development Committee shall meet
on a regularly scheduled basis to discuss development
activities and priorities relating to the PMR Service, new
technological innovations, complementary products, services
and/or technologies, and other matters relating to the ongoing
development and maintenance of the PMR Service, including
without limitation competitive and business justifications for
implementing particular changes. Through the Development
Committee, the Parties will approve an updated and revised
Development Plan for the PMR Service at least once every six
(6) months. In the event that AOL requests that Company
integrate with the PMR Service complementary products, services
or technologies provided by an AOL Strategic Partner that are
reasonably necessary in order to maintain the PMR Service as a
market-competitive service, and such integration or
implementation would require Company to incur extraordinary
unanticipated fees or expenses (such as, by way of example,
extraordinary license fees or extraordinary additional hardware
expenses), the Development Committee shall discuss the matter
and attempt to agree on an appropriate allocation of such
expenses between the Parties.
(e) Additions As Part of General Obligations. All additions and
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changes provided hereunder will be developed, constructed,
programmed, hosted and maintained by Company as required
hereunder.
(f) AOL Right To Opt Out of Features. The features and functions of
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the AOL PMR Service and the Company PMR Service shall be the
same (subject to such user interface modifications as may be
developed by AOL pursuant to Section 2.1(a) that may
differentiate the appearance of the AOL PMR Service as it
appears on various services on the AOL Network), provided that
AOL shall have the right to decline to include in the AOL PMR
Service any features or functions of the PMR Service
implemented by Company in the Company PMR that AOL finds
unsuitable or undesirable for any reason.
(g) Data Mining and Market Research. AOL and Company shall within
sixty (60) days following the Effective Date, jointly agree in
writing upon a plan setting forth goals and procedures and
allocating responsibilities for storing and manipulating
Customer Data and generating such summary and aggregate reports
and other compilations of Customer Data as the Parties may
desire for purposes permitted under this Agreement (the "Data
Mining Plan").
2. Ownership.
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2.1. Joint Ownership of PMR Service and Underlying Rights.
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(a) Ownership and Assignments. Except as otherwise provided in this
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Section 2 and subject to the limitations set forth in Section
2.1(b) and (c) of this Agreement, the PMR Service and all
proprietary rights in the PMR Service created, developed, owned
or other acquired or used during the Term, including all PMR
Rights, shall be jointly owned by Company and AOL in equal,
undivided shares, and Company and AOL shall each have all the
rights of a joint owner of such rights, subject to the
limitations and restrictions set forth in this Agreement. To
the extent such rights would, in the absence of any assignment
of rights, be owned by one Party, such Party hereby transfers
and assigns such co-ownership rights to the other Party.
Notwithstanding the foregoing, neither Company nor AOL shall
have any duty to account to one another or to pay to one
another any revenues derived from their respective exploitation
of the PMR Service or PMR Rights, except as specifically
provided in this Agreement. Any technology or other proprietary
rights or other rights created or acquired by or on behalf of a
Party after the Term (including any rights that would be
considered PMR Rights if created or acquired during the Term)
shall belong exclusively to the party creating such rights.
Without limiting the foregoing, each Party shall own exclusive
rights in any derivative works, modifications, enhancements,
adaptations or improvements it creates after the Term based on
or derived from any of the PMR Rights, subject to the joint
ownership of the underlying PMR Rights. Despite the foregoing,
at any time, including during the Initial Term, AOL will have
the right to modify, adapt, enhance and customize the user
interface of the PMR Service as it appears on the AOL Network
(or cause Company to do so on behalf of AOL), and any such
modifications, adaptations, enhancements and customizations,
and all proprietary rights therein, shall belong exclusively to
AOL. It is understood that the PMR Service that is jointly
owned by the Parties will itself have a full featured user
interface. Customization of such user interface undertaken by
AOL for which AOL would own all proprietary rights might
include, by way of example, customization to make the user
interface of the AOL PMR Service conform to the AOL Look and
Feel of one or more of the services comprising the AOL Service,
such as the ▇▇▇.▇▇▇, CompuServe or America Online brand
services. In addition, Company shall not acquire any ownership
rights in or to the AOL Namespace Technology; provided that
Company shall have the right to utilize such technology solely
for the PMR Service after the Term. It is understood that,
except as expressly set forth herein, the foregoing is intended
to provide each Party with joint
rights in and to all aspects of the PMR Service. Each Party
will have the right to possession of all aspects of the jointly
owned technology, including source code and all documentation
of any nature whatsoever. Company shall promptly deliver to AOL
copies of all jointly owned technology, including source code
and documentation, as it is developed.
(b) License. Recognizing that the PMR Service will be developed, in
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part, by modifying, enhancing and creating derivative works
based upon the ▇▇. ▇▇▇▇ Personal Medical Records System,
Company hereby grants to AOL a perpetual, non-terminable non-
exclusive license to any and all portions and elements of the
▇▇. ▇▇▇▇ Personal Medical Records System that are incorporated
in or become a part of the PMR Service. Such license includes
all rights that a joint owner of all proprietary rights would
have in the portions and elements of the ▇▇. ▇▇▇▇ Personal
Medical Records System so incorporated into the PMR Service,
and Company acknowledges and agrees that, as set forth in
Section 2.1(a), Company and AOL will be joint owners of all
rights in the PMR Service.
(c) Third Party Agreements. All agreements that are entered into
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with any third party with respect to the PMR Service shall
explicitly provide that upon expiration or termination of the
Term of this Agreement, such third party shall not be
restricted or limited in any manner from entering into a
similar agreement directly with AOL or a third party, it being
the Parties' intention that AOL will have the ability to
continue to offer the PMR Service with any and all features,
functions and capabilities that were offered during the Term as
part of the PMR Service. AOL shall be a named third party
beneficiary of any such agreements.
(d) Limits on Use by Company. Despite its joint ownership of the
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PMR Service and PMR Rights, during the Initial Term, Company
will have the right to use the PMR Service and PMR Rights only
as follows: (i) to perform its duties under this Agreement,
(ii) to implement the Company PMR Service on the ▇▇. ▇▇▇▇ Site,
and (iii) to authorize third parties to deploy, display or
offer the Company PMR Service, provided that any such third
party deploying, displaying or offering the Company PMR Service
during the Initial Term offers is in the business of offering
medical or health related products and services and is not in
the business of offering Interactive Services or Interactive
Sites targeted to consumers, and provided that Company shall
use commercially reasonable efforts to obtain from any such
third party a written agreement in a form approved by AOL
containing (a) commitments to provide AOL with a reasonably
prominent AOL-branded button
on the first screen of such service, above-the-fold, promoting
the availability of the AOL PMR Service; and (b) commitments to
promote the availability of the AOL PMR Service in all offline
advertising, marketing and promotional materials relating to
such third party's deployment, display or offering of the
Company PMR Service, in accordance with specific details of
such branding and promotional requirements to be mutually
approved by AOL and Company, which the Parties agree not to
unreasonably withhold. Any such agreement with such third party
shall also contain such provisions as AOL reasonably requires
to protect AOL's trademark rights. Except as provided in this
Section 2.1(c), Company shall have no right, directly or
indirectly to utilize the PMR Service or the PMR Rights in any
other manner, including to deploy, display or offer the PMR
Service or the Company PMR Service (or any other personal
medical records service) through any Interactive Site or
Interactive Service or otherwise, or to permit any third party
directly or indirectly to deploy, display or offer the PMR
Service or the Company PMR Service (or any other personal
medical records service) through any other Interactive Site,
Interactive Service or otherwise. After the Initial Term,
subject only to express limitations set forth in this
Agreement, Company will have the right to implement and utilize
the PMR Service and PMR Rights in its sole and complete
discretion without limitation.
(e) Limits on Use by AOL. Despite its joint ownership of the PMR
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Technology and PMR Rights, during the Initial Term, AOL will
have the right to implement and deploy the PMR Technology and
PMR Rights and the PMR Service anywhere on the AOL Network, and
the right to sublicense to third parties the right to implement
and deploy the PMR Technology, the PMR Rights and PMR Service
outside the AOL Network. In the event AOL sublicenses the PMR
Service for deployment outside the AOL Network, AOL shall
require that any sublicensee provide Company ingredient
branding comparable to and subject to the minimum requirements
of the ingredient branding that AOL is required to accord to
Company as set forth in Section 2.2(a), and in the event that
AOL receives license fees for such sublicensing of the PMR
Service for deployment outside the AOL Network, AOL shall pay
Company an amount equal to * * * of such license fees which are
paid to AOL for the right to deploy the PMR Service during the
Initial Term. After the Initial Term, AOL will have the right
to implement and utilize the
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
PMR Technology, the PMR Rights and the PMR Service in its sole
and complete discretion without limitation.
(f) Limits on Use After the Term. Despite the provisions of
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Sections 2.1(a), (b), (c), (d) and (e) which, subject to the
provisions of Section 6.11, permit generally unlimited use of
the PMR Service and PMR Rights by each Party after the Initial
Term, at all times, including after the Initial Term and after
the Term, the rights of the Parties with respect to use of
Customer Data shall be subject to the limitations set forth in
Section 5.4 of Exhibit "B", and each Party shall utilize any
PMR Service Data and any other rights of any third party in
accordance with any privacy rights, any applicable laws, rules
and regulations and/or any contractual rights of such third
party, and shall indemnify the other Party hereto against any
claims of any such third party arising out of or related to the
use by such Party of such Customer Data or PMR Service Data.
(g) Facilitation of Licensing of Tools and Technology. To the
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extent that the ongoing use and/or maintenance of the PMR
Service requires access to proprietary tools or technology of
either Party and/or of third parties, each Party agrees to make
such Party's necessary tools and/or technology available to the
other Party at no charge for the purpose of using and
maintaining the PMR Service, agrees not to interfere with the
other Party's ability to obtain any necessary licenses to such
tools and/or technology available from third parties, and
agrees to use commercially reasonable efforts to facilitate
contacts and discussions between any such third parties and the
other Party to this Agreement to obtain any such necessary
licenses.
2.2. Ownership of AOL PMR Service and Company PMR Service.
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(a) AOL Ownership of AOL PMR Service. Subject to the provisions of
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Section 2.1 concerning ownership of the PMR Service and PMR
Rights, AOL will own all other aspects of the AOL PMR Service.
Without limiting the foregoing: (1) AOL shall retain ownership
of all trademarks and service marks used in connection with the
AOL PMR Service (other than marks licensed from Company); (2)
AOL will own all right, title and interest in and to all
aspects of the Advertising, transactional and promotional
spaces within the AOL PMR Service (including, without
limitation, Advertising, transactional and promotional spaces
on any AOL forms or pages which are included within, precede,
follow, frame or otherwise are associated with the Licensed
Content, the AOL PMR Service and/or any Linked Interactive
Sites), including without limitation all ad banners and
sponsorship opportunities for the AOL PMR Service, but not
including the Backend; (3) AOL will have the
exclusive right to sell Advertising, transactions and
promotions within the AOL PMR Service and Company will have no
right to sell any such item and the specific advertising
inventory within any AOL forms or pages or the AOL PMR Service
and all aspects of its sale and use will be as determined
solely by AOL; (4) AOL will own all URL's, screennames and
other screen space attributes of the AOL PMR Service; and (5)
except as otherwise expressly provided in this Agreement, AOL
will own and control all relationships with AOL Members, AOL
End-Users, AOL PMR Users, AOL PMR Members and other users of
the AOL PMR Services. In addition, the AOL PMR Service will be
branded by AOL in its sole and complete discretion and all such
branding will be owned by AOL, provided that, during the
Initial Term, AOL will provide Company ingredient branding such
as "Powered by ▇▇▇▇▇▇.▇▇▇, inc." on the first screen of the AOL
PMR Service appearing on any portion of the AOL Network and on
all subsequent screens of the AOL PMR Service appearing on any
portion of the AOL Network, provided that AOL may withhold
Company ingredient branding on any screen other than the
initial screen where AOL is providing ingredient or co-branding
to a third party. AOL shall also have the right to provide
Company greater branding determined by AOL in its discretion.
Without limiting the foregoing rights, AOL may also provide one
or more Third Party Service Providers with branding on the AOL
PMR Service, and may require Company to provide co-branding to
one or more Third Party Service Providers as provided in
Section 1.6(c). AOL will at all times during the Term have the
right to continue to provide ingredient branding and/or co-
branding as provided above, but its obligations to provide any
such branding will expire at the end of the Initial Term.
Subject to the provisions of this Section 2.2(a), AOL and
Company shall mutually agree on the placement and appearance of
the ingredient branding provided to Company by AOL, with
Company's approval not to be unreasonably withheld. AOL shall
have a period of one hundred twenty (120) days following the
Effective Date to conduct due diligence with respect to whether
Company has the right to grant to AOL the rights granted to AOL
by Company pursuant to this Agreement. Notwithstanding anything
to the contrary set forth in this Section 2.2(a), in the event
AOL reasonably concludes that Company does not have the right
to grant material rights granted to AOL pursuant to this
Agreement, or that the exercise by AOL of material rights
granted by Company to AOL pursuant to this Agreement will
likely subject Company and/or AOL to legal action by a third
party, AOL shall have no obligation to provide or require its
sublicensees to provide any ingredient branding or co-branding
to Company pursuant to this Agreement, without limiting any of
AOL's other rights or remedies.
(b) Company Ownership of Company PMR Service. Subject to the
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provisions of Section 2.1 concerning ownership of the PMR
Service and PMR Rights, Company will own all other aspects of
the Company PMR Service. Without limiting the foregoing: (1)
Company shall retain ownership of all trademarks and service
marks used in connection with the Company PMR Service (other
than those marks, if any, licensed from AOL - it being
understood that Company has no such rights under this
Agreement); (2) subject to the rights of AOL under the
Interactive Services Agreement, Company will own all right,
title and interest in and to all aspects of the Advertising,
transactional and promotional spaces within the Company PMR
Service (including, without limitation, Advertising,
transactional and promotional spaces on any Company forms or
pages which are included within, precede, follow, frame or
otherwise are associated with the Company PMR Service and/or
any Linked Company Interactive Sites), including without
limitation all ad banners and sponsorship opportunities for the
Company PMR Service; (3) subject to the rights of AOL under the
Interactive Services Agreement, Company will have the exclusive
right to sell Advertising, transactions and promotions within
the Company PMR Service; (4) subject to the provisions of
Section 2.1(a) with respect to AOL's ownership of AOL Namespace
Technology, Company will own all URL's, screennames and other
screen space attributes of the Company PMR Service; and (5)
Company will own and control all relationships with users of
the Company PMR Service.
(c) General Intent. The provisions of Sections 2.2(a) and (b) are
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intended to reserve for each Party rights in or to the
particular front-end implementation of the PMR Service (i.e.,
the AOL PMR Service or the Company PMR Service, as applicable)
solely to the extent the rights in such implementation are
different from the rights in or to the PMR Service and PMR
Rights. The Parties agree that, subject to the terms and
conditions of this Agreement, all proprietary rights in the
Backend of the PMR Service and PMR Rights are intended to be
solely owned by Company, except that Customer Data and all
rights therein shall be jointly owned, subject to the terms and
conditions of this Agreement, regardless of whether such
Customer Data is collected, manipulated or resident at the
Backend or the front end, provided that those portions of
Customer Data generated by Company through Permitted Products
and Services shall belong exclusively to Company.
3. Management of AOL PMR Service by Company for AOL.
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3.1. Management. Except as expressly provided herein, during the Term,
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Company will, on behalf of AOL, develop, implement, manage, maintain,
host and operate the PMR Service for use by AOL as the AOL PMR
Service (including reviewing, deleting, editing, creating, updating
and otherwise managing all Content available on or through the AOL
PMR Service) in strict accordance with the terms of this Agreement.
Except as expressly provided herein and in the Interactive Services
Agreement, all Content on the AOL PMR Service, including without
limitation, all Products, Links, buttons, promotions, sponsorships or
similar Content and all features and transaction opportunities
available from the PMR Service will be as agreed to by the Parties as
described in the Development Plan, with only such changes as are made
or approved by AOL; provided that Company may make changes to the
non-core functionality of the AOL PMR Service as reasonably necessary
to update and maintain the AOL PMR Service in the ordinary course of
management of such service upon written notice to AOL, provided such
changes do not materially affect the functioning of, or Products or
Content available through, the AOL PMR Service and do not modify the
user interface or user registration or access process or methodology.
AOL may establish written overall guidelines regarding such changes
that will eliminate the need for approval or notification of changes
on a case by case basis if such changes are within the agreed upon
guidelines. Except as contemplated by the foregoing, Company will not
place Content on the AOL PMR Service or make any change to the PMR
Service, or any aspect thereof, including the user interface, without
AOL's prior approval and AOL has sole control over all such aspects.
In addition, AOL will have the right to establish and provide to
Company reasonable rules governing the permitted Content to be
provided by third parties as part of the AOL PMR Service, and to
cause Company to remove any materially nonconforming Content from the
AOL PMR Service and to refuse such Content for the AOL PMR Service
(such as Content from specific third parties or specific Products).
As set forth more fully in, and subject to the provisions of, Section
2.2, AOL has and will retain control and management over all aspect
of the AOL PMR Service, including all Advertising, promotional and
transactional space for the AOL PMR Service and Company is merely
managing such service for AOL subject to AOL's control.
3.2. Hosting; Communications. Company will be responsible during the
-----------------------
Initial Term and the Tail Period (if applicable) for all
communications, hosting and connectivity costs and expenses
associated with the AOL PMR Service, provided that, AOL at its
discretion and cost may host any or all of the AOL PMR Service,
including the initial screen or elements thereof. Company will
provide all computer hardware (e.g., servers, network devices,
routers, switches, telephones and other similar equipment) and all
computer software (e.g., web servers, operating systems,
applications, databases and other similar resources) necessary to
make the AOL PMR Service available on and through the AOL Network. To
the extent necessary for the AOL PMR Service to be competitive with
the top two then-current market leaders in personal medical records
management
services as set forth in Section 1 of Exhibit "C", Company will
utilize a dedicated high speed connection to maintain quick and
reliable transport of information to and from the Company Data Center
and the Internet and T1 or similar connections to and from the
Company Data Center and AOL's servers. AOL will be given the
opportunity to review and comment upon significant changes to
Company's communications and hosting equipment and architecture for
the PMR Service. AOL may elect to have Company provide some or all of
the operation and hosting services provided in this Section 3 to AOL
during the Extension Period (if applicable). Company shall provide to
AOL on a weekly basis a report specifying for the prior week
aggregate usage, page views, Impressions and new registered users for
the AOL PMR Service, and setting forth such additional information
and data regarding usage of the AOL PMR Service as AOL reasonably
requests.
3.3. Operating Standards. In its operation and hosting of the PMR Service,
-------------------
Company will ensure that the PMR Service substantially complies at
all times with the Operating Standards.
3.4. Customer Service. In its operation and hosting of the PMR Service,
----------------
Company will provide the customer service and support specified for
the AOL PMR Service on Exhibit D.
3.5. Links to Other Sites.
--------------------
(a) No Links. There will be no Linked Interactive Site for the AOL
--------
PMR Service except as expressly approved by AOL; provided,
however, that notwithstanding the foregoing but subject to
Section 3.5(b), Company may include a Link to third party
Interactive Sites for contextual or editorial purposes so long
as (a) such Links only link to the specific contextually
relevant page(s) of such third party Interactive Site, which
such page(s) appear in a "second" browser window that is
smaller than the original Company browser window; (b) Company
includes navigational ability within such page(s) for AOL
Members to return to the AOL PMR Service; and (c) Company shall
use commercially reasonable efforts to ensure that such page(s)
do not include Links to areas outside of a Company Interactive
Site or the AOL PMR Service. In the event AOL is dissatisfied
with any Link from the AOL PMR Service and AOL so notifies
Company in writing, then Company shall use its commercially
reasonable best efforts to block access by AOL Members to such
Link. In the event that Company cannot, through its
commercially reasonable best efforts, block access by AOL
Members to such Link in question, then Company shall provide
AOL prompt written notice of such fact. AOL may (in addition to
AOL's other rights under this Agreement, at law or in equity)
then, at its option, either (i) restrict access from the AOL
Network to the
Link in question using technology available to AOL or (ii) in
the event access cannot be restricted, direct Company to remove
any such Link. Company will cooperate with AOL's reasonable
requests to the extent AOL elects to implement any such access
restrictions. AOL will have no obligations of any kind with
respect to any Linked Interactive Site (other than a Linked
Interactive Site owned or controlled by AOL). Company will be
responsible for any hosting or communication costs associated
with any Linked Company Interactive Sites (including, without
limitation, the costs associated with (i) any agreed-upon
direct connections between the AOL Network and such Linked
Company Interactive Site, or (ii) a mirrored version of such
Linked Company Interactive Site).
(b) Traffic Flow. Company will ensure that AOL traffic is either
------------
kept within a Linked Company Interactive Site or channeled back
into the AOL Network. To the extent that AOL notifies Company
in writing that, in AOL's judgment, links from the Linked
Company Interactive Site cause more than a de minimus amount of
AOL traffic to be diverted outside of such site and the AOL
Network in a manner that has a detrimental effect on the
traffic flow of the AOL audience, then Company will promptly
reduce the number of Links out of such site(s). If Company
cannot or does not so limit diverted traffic from the Linked
Company Interactive Site, AOL reserves the right to terminate
the Links from the AOL Network to the Linked Company
Interactive Site at issue.
(c) Competitive Services. Company will not promote, and will ensure
--------------------
that Third Party Service Providers do not promote, Interactive
Services on pages in the AOL PMR Service other than those that
AOL controls. To the extent technically possible, Company will
limit or prevent disclosure to a Third Party Service Provider
that a specific customer visit is from an AOL Customer, unless
otherwise permitted by AOL.
4. Exclusivity.
-----------
4.1. No Similar or Competitive Products or Services. During the Term,
----------------------------------------------
neither the Company nor any of its Affiliates will provide to any
Third Party for use on an Interactive Site, as part of any product or
service other than the PMR Service, any Products or services
substantially similar to the Products or services offered on the PMR
Service.
4.2. Limitations on Marketing of Products and Services. Without limiting
-------------------------------------------------
the restrictions set forth in Exhibit B on solicitation of AOL
Members, Company will not during the Term solicit AOL Members for any
products or services except as permitted in this Section 4. Subject
to the terms and
conditions of this Agreement, Company shall have the right, during
the Initial Term, to use Member Information that constitutes part of
the PMR Service Data to solicit AOL PMR Members solely through the
AOL Network and solely for Permitted Products and Services. As used
herein the term "Permitted Products and Services" shall mean those
health and medical products and services approved in writing by AOL.
AOL shall provide an initial list of Permitted Products and services
not later than ninety (90) days prior to the projected Launch Date
set forth in the Development Plan. AOL will consider and discuss in
good faith with Company on an annual basis expanding the definition
of Permitted Products and Services to include additional health and
medical products and services that Company desires to market to AOL
PMR Members and that require medical or health industry specific
knowledge and/or expertise not possessed by AOL, provided that AOL
shall have no obligation to approve the inclusion within such
definition of any product or service competitive with a product or
service offered by AOL or an AOL Strategic Partner or to which AOL
has made commitments of exclusivity. AOL agrees, upon Company's
request, to use commercially reasonable efforts to facilitate
contacts and discussions between any such third parties and Company
to explore whether a mutually advantageous business relationship may
be established between such third party and Company. During the Tail
Period or Extension Period, subject to the terms and conditions of
this Agreement, Company shall have the right to use Member
Information that constitutes part of the PMR Service Data to solicit
Existing Customers only, solely through the AOL Network and solely
for Permitted Products and Services, provided that AOL may in its
sole discretion elect to permit Company during the Tail Period or
Extension Period to solicit all AOL PMR Members rather than only
Existing Customers, subject to the other limitations of this
sentence. Any software, products and services developed by Company to
implement the Permitted Products and Services and all proprietary
rights therein shall belong solely to Company. Company shall pay to
AOL * * * of PPS Front End Revenues generated during the Term of this
Agreement.
5. Revenue Sharing.
---------------
5.1. No Sharing Except As Specifically Provided. Except as expressly
------------------------------------------
provided herein, there will be no payments between the Parties, or
any sharing of revenues with respect to the PMR Service, the Company
PMR Service or the AOL PMR Service (including any Advertising
Revenues or Transaction Revenues or Net Revenues). Without limiting
the foregoing,
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
AOL shall retain all revenues of any nature arising out of or in
connection with the AOL PMR Service and Company shall, subject to the
provisions of the Interactive Services Agreement, retain all revenues
from the Company PMR Service. Despite the foregoing, the Company PMR
Service shall be considered part of the * * * for all purposes of
revenue sharing between the Parties pursuant to the Interactive
Services Agreement. In addition, each Party shall retain any rights
and revenues it receives from its use of or implementation of the PMR
Service or the PMR Rights; without limiting the foregoing, in the
event that Company receives any revenues from any third party in
connection with the Backend of the PMR Service (such as through data
or content agreements with medical providers, insurance companies,
etc.), it shall retain such revenues.
5.2. Revenue Sharing.
---------------
(a) In consideration of the license to the ▇▇. ▇▇▇▇ Personal
Medical Records System granted to AOL by Company pursuant to
Section 2.1(b), AOL shall pay to Company the sum of Eight
Million Dollars ($8,000,000), payable as follows: * * *. In the
event AOL terminates this Agreement prior to four (4) years
following the Effective Date pursuant to Section 6.3, 6.4, 6.5
or 6.6, or pursuant to Section 6.7 as a result of a Change of
Control of Company, Company shall refund to AOL a pro rata
portion of such Eight Million Dollar ($8,000,000), with the
amount of such refund diminishing on a straight line basis from
the Effective Date to the date of such termination, calculated
daily over such four (4) year period. In the event AOL
exercises its "Buy-Out Right" pursuant to Section 7.3 of the
Interactive Services Agreement, AOL's right to receive a refund
pursuant to this Section 5.2(a) shall terminate.
(b) Other than the payments expressly provided for in this
Agreement, Company will be responsible for and pay all costs
associated with its services and obligations hereunder,
including development, implementation, programming, hosting and
production work associated with constructing, hosting,
programming, and maintaining the PMR Service and the AOL PMR
Service, all costs associated with the Additional Development
Services set forth in Section 1.6, and all costs associated
with obtaining the Content for the AOL PMR Service, and AOL
will have no obligation to repay or otherwise provide Company
with compensation for such services, other than the mutual
covenants and conditions of this Agreement and the Interactive
Services Agreement.
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
(c) AOL shall pay to Company * * * of CPMR Revenues generated
during the Initial Term. The Parties understand that it is
AOL's intention to enter into one or more Consumer Accumulative
Transactions with third parties and that it may be necessary
for AOL to commit to pay such third party(ies) a portion of
CPMR Revenues. In the event AOL fails to enter into an
agreement within six (6) months following the Effective Date
pursuant to which AOL agrees to pay a third party a portion of
CPMR Revenues, AOL shall pay to Company * * * of CPMR Revenues
generated during the remainder of the Initial Term from
Consumer Accumulative Transactions and * * * of CPMR Revenues
generated during the remainder of the Initial Term from Non-
Consumer Accumulative Transactions.
(d) If there is a Tail Period, AOL will pay Company for providing
the AOL PMR Service and all services required of Company during
the Tail Period hereunder an amount equal to the greater of (i)
the Cost Plus Reimbursement for such services provided during
the Tail Period pursuant to Section 3 or (ii) * * * of CPMR
Revenues generated during the Tail Period. If there is a Tail
Period, Company will pay AOL * * * of Backend Revenues
generated during the Tail Period.
(e) If there is an Extension Period, AOL shall pay Company an
amount equal to * * * of Existing Customer CPMR Revenues
generated during the Extension Period. In addition, for any
services pursuant to Section 3, if any, that AOL requests
Company to provide during the Extension Period, AOL will pay
Company an amount equal to the Cost Plus Reimbursement for such
services. If there is an Extension Period, Company shall pay
AOL an amount equal to * * * of Existing Customer Backend
Revenues generated during the Extension Period.
6. Term; Termination.
-----------------
6.1. Term. The Initial Term, any Tail Period, if any, any Extension
----
Period, if any, and any Transition Period, if any, are referred to
herein as the "Term."
6.2. Initial Term. Unless earlier terminated as set forth herein, the
------------
initial term of this Agreement will be co-terminus with the term of
the Interactive
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Services Agreement ("Initial Term"); provided that, if AOL terminates
the Interactive Services Agreement prior to the expiration of its
initial term pursuant to Section 7.2, 7.4, 7.5 or 7.6 of the
Interactive Services Agreement, the Initial Term will, at AOL's
discretion, either terminate concurrently with termination of the
Interactive Services Agreement or continue for the entire proposed
initial term of the Interactive Services Agreement (as if not
terminated). Despite the foregoing, it is understood that this
Agreement is separate from and severable from the Interactive
Services Agreement and that such agreements may be terminated or
extended separately and that no termination of this Agreement will
automatically terminate the Interactive Services Agreement.
6.3. Termination Prior to Launch. AOL will have the right to terminate
---------------------------
this Agreement prior to the Launch Date of the AOL PMR Service if, as
a result of Company's failure to fulfill its obligations, the
Development Plan is not agreed to within the period specified in
Section 1.1 or the Launch Date of the AOL PMR Service fails to occur
by the milestone date specified therefor in the Development Plan. The
Development Plan may include mutually agreed grace periods for
achievement of the Launch Date and may include mutually agreed
mechanisms for extending the milestone date if delays are caused by
AOL's failure to fulfill its obligations.
6.4. Termination for Breach. Either Party may terminate this Agreement at
----------------------
any time in the event of a material breach by the other Party which
remains uncured after thirty (30) days written notice thereof.
6.5. Special Termination by AOL. AOL shall have the right to terminate
--------------------------
this Agreement immediately by providing Company written notice (a) in
the event any claim or proceeding is brought against Company for
professional negligence or wrongdoing, including without limitation,
regarding malpractice or practicing medicine without the appropriate
license(s), which claim appears on its face to be potentially
meritorious or appears to have the potential for significantly
damaging or tarnishing the reputation of the Company or AOL; (b) in
the event of any act, omission, event or other cause that would allow
AOL to terminate the Interactive Services Agreement; provided that
all proper notice and cure periods (if applicable) are given, and
provided that AOL terminates the Interactive Services Agreement, or
(c) upon any event giving rise to a material claim for
indemnification by Company hereunder based upon Licensed Content,
provided that such termination right is exercised within ninety (90)
days after the circumstance giving rise to such right of termination.
6.6. Termination for Bankruptcy/Insolvency or Changes in Business. Either
------------------------------------------------------------
Party may terminate this Agreement immediately following written
notice to the other Party if the other Party (i) ceases to do
business in the normal course, (ii) becomes or is declared insolvent
or bankrupt, (iii) is the subject
of any proceeding related to its liquidation or insolvency (whether
voluntary or involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of
creditors.
6.7. Termination on Change of Control. In the event of a Change of Control
--------------------------------
of AOL during the Initial Term or a Change of Control of Company
during the Initial Term that results in a Specified Entity
(identified as such as of the date the related definitive agreement
is entered into) acquiring substantially all of the assets of Company
or acquiring, either individually or as part of a group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended) beneficial ownership (within the meaning of
Rule 13d-3 promulgated under such Act) of more than * * * of either
(i) the then outstanding shares of common stock of Company; or (ii)
the combined voting power of the then outstanding voting securities
of Company entitled to vote generally in the election of directors,
(a) AOL shall have the right, within thirty (30) days following
receipt of written notice from Company that the Change of Control is
effective, to terminate the Agreement by providing thirty (30) days
prior written notice, and (b) AOL shall also have the right to
terminate the Initial Term and elect to extend this Agreement for the
Tail Period provided in Section 6.8 or for the Extension Period as
provided in Section 6.9.
6.8. Tail Period. Upon the expiration or termination of the Initial Term,
AOL shall have the right, upon written notice to Company, to extend
this Agreement for an additional period (the "Tail Period") of six
(6) years. During the Tail Period, all of the terms and conditions of
this Agreement applicable during the Initial Period shall continue to
apply, except that AOL may elect at any time during the Tail Period
to discontinue according ingredient branding to Company as provided
in Section 2.2(a), provided that if AOL elects to discontinue such
ingredient branding, Company may elect to discontinue the branding
accorded to AOL pursuant to Section 2.1(c). AOL shall have the right
to terminate the Tail Period at any time upon thirty (30) days prior
written notice to Company. Company shall assure that it continues to
perform its services during any Tail Period and/or Transition Period
such that AOL does not experience any material diminution in quality
or timeliness of performance of services by Company during such
period s.
6.9. Extension Period. Upon the expiration or termination of the Initial
----------------
Term, AOL shall have the right, upon written notice to Company, to
extend this Agreement for an additional period (the "Extension
Period") of three (3) years. During the Extension Period, all of the
terms and conditions of this
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Agreement applicable during the Initial Period shall continue to
apply, except that (a) AOL may elect at any time during the Extension
Period to discontinue according ingredient branding to Company as
provided in Section 2.2(a), provided that if AOL elects to
discontinue such ingredient branding, Company may elect to
discontinue the branding accorded to AOL pursuant to Section 2.1(c),
and (b) Company shall provide to AOL during the Extension Period only
such communications, hosting and connectivity services as AOL
requests. AOL shall have the right to terminate the Extension Period
at any time upon thirty (30) days prior written notice to Company.
Company shall assure that it continues to perform any services it is
obligated to provide during the Extension Period such that AOL does
not experience any material diminution in quality or timeliness of
performance of services by Company during such periods.
6.10. Transition Period and Facilitation. Company will facilitate the
----------------------------------
conversion of AOL Customers who enroll in the AOL PMR Service
hereunder to a new AOL-sourced solution at the expiration or
termination of the Term of this Agreement for any reason and will
cooperate with all of AOL's reasonable requests in such conversion
process (provided that AOL shall pay for Company's services as
provided in Section 3.2(b)). At AOL's request, Company shall,
commencing eighteen (18) months prior to the end of the Initial Term,
prepare a detailed transition plan for AOL's review and approval,
including plans for data conversion and any associated software
development required to convert to a new AOL-sourced solution.
Company shall complete such transition plan and obtain AOL's approval
thereof not later than twelve (12) months prior to the end of the
Initial Term. During the period of such conversion, AOL will have the
right, but not the obligation, to have Company provide all of the
services hereunder for up to eighteen (18) months (as selected by AOL
in its discretion) after the Initial Term or during the Tail Period
or after any expiration or termination of the Term of this Agreement
for any reason whatsoever (the "Transition Period"). AOL may
terminate the Transition Period at any time upon thirty (30) days
prior written notice to Company. During the Transition Period, the
terms of this Agreement will continue to apply, including all revenue
sharing arrangements in effect immediately prior to the commencement
of the Transition Period and all payments by AOL for services
provided by Company, except that AOL may elect at any time during the
Transition Period to discontinue according ingredient branding to
Company as provided in Section 2.2(a). AOL shall pay Company for any
incremental transition services provided during the Transition Period
that would not otherwise have been provided by Company on a Cost Plus
Reimbursement basis. Company acknowledges and agrees that the
provision of such transition services are critical to AOL's business
and reputation and that monetary damages will be inadequate to
compensate AOL for damages in the event Company fails to provide such
transition services; accordingly, Company agrees that, without
limitation of any of AOL's other rights and remedies, AOL shall be
entitled to injunctive relief
and specific performance remedies to compel Company to provide such
transition services.
6.11. Rights Following Termination. Notwithstanding anything to the
----------------------------
contrary set forth in this Agreement, in the event of a termination
of this Agreement by AOL pursuant to Section 6.4, 6.5 or 6.6, or
pursuant to Section 6.7 as a result of a Change of Control of
Company, Company shall have no rights following such termination to
use any Customer Data for any purpose whatsoever. In the event of
any other expiration or termination of this Agreement, Company and
AOL shall have the rights following such expiration or termination
of a joint owner of all proprietary rights in the PMR Service and
the PMR Service Data, subject to those limitations set forth in
Section 2.1(e).
6.12. Press Releases. Upon execution, the Parties shall jointly prepare a
--------------
press release announcing this Agreement, which release shall be
disseminated at a mutually agreeable time. Thereafter, press
releases and other disclosures will be governed by the terms of
Section IV of Exhibit "B".
6.13. Terms and Conditions; Other Exhibits. Exhibits "A" through "D"
------------------------------------
including the legal terms and conditions set forth on Exhibit "B"
attached hereto, are hereby made a part of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. ▇▇▇▇▇▇.▇▇▇, INC.
By: By:
-------------------------------- -------------------------------
Print Name: Print Name:
------------------------ -----------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
EXHIBIT A -- DEFINITIONS
-------------------------
DEFINITIONS. The following definitions shall apply to this Agreement:
-----------
Advertising Sales Commission. Has the meaning set forth in Exhibit B of the
----------------------------
Interactive Services Agreement.
Affiliate. As to AOL, any agent, distributor or franchisee of AOL, or an entity
---------
in which AOL holds at least a * * * equity interest.. As to Company, any entity
or person controlling, controlled by or under common control with Company.
AOL Advertising Revenues. All cash revenues for any relevant period actually
------------------------
charged to and collected from advertisers by AOL for display of advertising, net
of reasonable Advertising Sales Commissions and costs of sale and Third Party
Payments. In the event any, all or a portion of such advertising are provided
to one or more third parties for consideration other than cash, then the amount
of revenues, if any, actually booked by AOL for financial accounting purposes in
connection therewith shall be included as part of the AOL Advertising
Revenue(s). AOL Advertising Revenue(s) does not include any advertising for
which no consideration is paid to AOL, such as, by way of example, AOL's own
promotional advertising for AOL goods or services, or public service advertising
made available by AOL at no charge to third parties.
AOL Approval Date. Has the meaning set forth in Section 1.5.
-----------------
▇▇▇.▇▇▇. AOL's primary Internet-based Interactive Site marketed under the
-------
"▇▇▇.▇▇▇(TM)" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Netscape Netcenter, any
other CompuServe or Netscape products or services or interactive sites, (d)
"ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)" or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any programming or Content area offered by or
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division, (g) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content offered by or through such site or any other AOL Interactive Site, (h)
any property, feature, product or service which AOL or its Affiliates may
acquire subsequent to the Effective Date and (i) any other version of an America
Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the "▇▇▇.▇▇▇(TM)" brand, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions and any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer.
AOL End-User. Any registered user of an AOL Property.
------------
AOL Hometown. AOL's interactive service, marketed under the "AOL Hometown"
------------
brand available to users of the AOL Network and the World Wide Web portion of
the Internet through which such users may publish and maintain World Wide Web
pages, use community tools and engage in other interactive activities,
specifically excluding (a) the AOL Service and ▇▇▇.▇▇▇, (b) any international
versions of such service and such site, (c) the CompuServe(R) brand service,
Netscape Netcenter, "ICQ," "AOL NetFind(TM)," "AOL Instant Messenger(TM),"
"NetMail(TM)" or any similar independent product or service offered by or
through any other AOL Interactive Site, (d) any programming or Content area
offered by or through such site over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas, such as, without limitation,
partner community center pages and Member Pages), (e) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through such site or any other AOL Interactive Site, (f) any
property, feature, product or service which AOL or its Affiliates may acquire
subsequent to the Effective Date and (h) any other version of an America Online
Interactive Site which is materially different from AOL's primary interactive
service marketed under the "AOL Hometown" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
AOL Look and Feel. The distinctive and particular elements of graphics, design,
-----------------
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction
_______________________
* * * Confidential treatment has been requested for portions of this exhibit.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Exhibit A - Page 1
of these elements and including the look and feel of the AOL PMR Service to the
extent different from the look and feel of the PMR Service.
AOL Member(s). Authorized users (including any sub-accounts under an authorized
-------------
master account) of the AOL Network or any AOL Property.
AOL Namespace Technology Has the meaning set forth in Section 1.1.
------------------------
AOL Net Revenues. The sum of AOL Advertising Revenues and AOL Transaction
----------------
Revenues.
AOL Network. (i) The AOL Service, (ii) ▇▇▇.▇▇▇, (iii) CompuServe Services, (iv)
------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, (v) Digital City, (vi) Netscape Netcenter and (vii) any other
product or service owned, operated, distributed or authorized to be distributed
by or through AOL or its Affiliates worldwide through which such party elects to
offer the AOL PMR Service or Licensed Content (which may include, without
limitation, AOL-related Internet sites, "offline" information browsing products,
international versions of the any of the foregoing, including those managed by
AOL or it Affiliates), MovieFone and ICQ.
AOL PMR Member. An AOL PMR User who accesses the AOL PMR Service, submits
--------------
Customer Data, and authorizes such Customer Data to be placed in the data bank
of the PMR Service.
AOL PMR Service. The version of the PMR Service operated on the AOL Network or
---------------
any AOL Property or sublicensed by AOL to others pursuant to the terms of this
Agreement.
AOL Property. Any product, service or property owned, operated, marketed,
------------
distributed, or authorized to be distributed by or through AOL or its
Affiliates, including, without limitation, the AOL Service, ▇▇▇.▇▇▇, CompuServe
Service, ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Digital City and Netscape Netcenter and any other
property on the AOL Network.
AOL Service. The narrow-band U.S. version of the America Online brand service,
-----------
specifically excluding (a) ▇▇▇.▇▇▇ and any other AOL Interactive Site, (b) the
international versions of an America Online service (e.g., AOL Japan), (c) the
CompuServe(R) brand service and any other CompuServe products or services, (d)
Netscape Netcenter(TM) and any other Netscape products or services, (e)
"ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital City(TM),"
"NetMail(TM)," "Real Fans", "Love@AOL", "Entertainment Asylum," "AOL Hometown"
or any similar independent product, service or property which may be offered by,
through or with the U.S. version of the America Online brand service, (f) any
programming or content area offered by or through the U.S. version of the
America Online brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (g) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through the U.S. version of the America Online brand service, (h)
any property, feature, product or service which AOL or its Affiliates may
acquire subsequent to the Effective Date and (i) any other version of an America
Online service which is materially different from the narrow-band U.S. version
of the America Online brand service, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded version of the service and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
AOL PMR User. (i) Any person or entity who enters the PMR Service or the AOL PMR
------------
Service from the AOL Network or any AOL Property, including, without limitation,
from any third party area therein (to the extent entry from such third party
area is traceable through both Parties' commercially reasonable efforts)
(regardless of whether such person or entity provides an e-mail address during
registration or entrance to the PMR Service which includes a domain other than
an "▇▇▇.▇▇▇" domain); and (ii) any other person or entity who, when entering the
PMR Service or AOL PMR Service provides an ▇▇▇.▇▇▇ domain name as part of such
person or entity's e-mail address.
AOL Strategic Partner. Any person or entity with which AOL has a significant
---------------------
business relationship involving two or more areas of business cooperation.
API. Has the meaning set forth in Section 1.1.
---
Backend. The engine and management system that interface with PMR Service and
-------
those portions that interface and connect from such engine and management
systems to back-end, non-consumer users/suppliers/vendors for the PMR Service,
such as medical providers, insurance companies, etc, other than through the end-
user front-ends of the AOL PMR Service or the Company Server.
Backend Revenues. Aggregate amounts collected plus the fair market value of any
----------------
other compensation received, such as barter services, by Company or Company's
agents, as the case may be, arising from the provision by Company of services or
products to Backend users, suppliers or vendors for the PMR Service, including
without limitation Third Party Service Providers.
Change of Control. (a) The consummation of a reorganization, merger or
-----------------
consolidation or sale or other disposition of substantially all of the assets of
a party * * * or (b) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit A - Page 2
* * * of either (i) the then outstanding shares of common stock of such party;
or (ii) the combined voting power of the then outstanding voting securities of
such party entitled to vote generally in the election of directors.
Company Competitor. Has the meaning set forth in Exhibit B of the Interactive
------------------
Services Agreement.
Company Interactive Site. Any interactive site or area (other than Company
------------------------
Programming) including without limitation the ▇▇. ▇▇▇▇ Site and any customized,
mirrored or private-labeled site or area (e.g., versions for local hospitals and
broadcast Affiliates), which is managed, maintained or owned by Company or its
agents or to which Company provides and/or licenses information, content or
other materials, including, by way of example and without limitation, (i) any
Company site on the World Wide Web portion of the Internet or (ii) a channel or
area delivered through a "push" product such as the Pointcast Network or
interactive environment such as Microsoft's proposed Active Desktop or
interactive television service such as WebTV.
Company Internet Site. Each of the versions of the ▇▇. ▇▇▇▇ Site customized for
---------------------
distribution through the AOL Network in accordance with the Interactive Services
Agreement.
Company Programming. Any (a) area within the AOL Network or outside the AOL
-------------------
Network but exclusively available to AOL Members, which area is developed,
programmed, and/or managed by Company, in whole or in part, pursuant to the
Interactive Services Agreement or this Agreement and all Content thereon
(including, without limitation, message boards, chat and other AOL Member-
supplied content areas contained therein) including, without limitation, any co-
branded site or page, and community centers, (b) Content provided to AOL by
Company pursuant to this Agreement for distribution on or through the AOL
Network other than on the Company Internet Site, and (c) Company Tools.
Company PMR Service. The service that may be provided by Company on the Dr.
-------------------
Koop Site utilizing the PMR Technology and PMR Rights.
Company Tool. An interactive utility owned, operated, marketed, distributed or
------------
authorized to be distributed by or through Company or it agents that displays
results based on data entered by an end-user.
CompuServe Service. The standard HTML version of the narrow-band U.S. version of
-------------------
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"▇▇▇▇▇▇▇▇▇▇.▇▇▇", "▇▇▇▇▇▇.▇▇▇" and "▇▇.▇▇▇", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g., third-
party Content areas), (e) any yellow pages, white pages, classifieds or other
search, directory or review services or Content (f) any co-branded or private
label branded version of the U.S. version of the CompuServe brand service, (g)
any version of the U.S. version of the CompuServe brand service which offers
Content, distribution, services or functionality materially different from the
Content, distribution, services or functionality associated with the standard,
narrow-band U.S. version of the CompuServe brand service, including, without
limitation, any version of such service distributed through any platform or
device other than a desktop personal computer, (h) any property, feature,
product or service which CompuServe or its affiliates may acquire subsequent to
the Effective Date, (i) the America Online brand service and any independent
product or service which may be offered by, through or with the U.S. version of
the America Online brand service and (j) the HMI versions of the CompuServe
brand service.
▇▇▇▇▇▇▇▇▇▇.▇▇▇. CompuServe's primary Internet-based Interactive Site marketed
--------------
under the "▇▇▇▇▇▇▇▇▇▇.▇▇▇(TM)" brand, specifically excluding (a) the CompuServe
Service and AOL Service, (b) any international versions of such site, (c)
▇▇▇.▇▇▇, Netscape Netcenter, any other AOL or Netscape products or services or
interactive sites, (d) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "NetMail(TM)" or any similar independent product or service
offered by or through such site or any other AOL or CompuServe Interactive Site,
(e) any programming or Content area offered by or through such site over which
AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (f) any programming or Content area offered by or through the U.S.
versions of the America Online brand service or CompuServe brand service which
was operated, maintained or controlled by the former AOL Studios division, (g)
any yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL or
CompuServe Interactive Site, (h) any property, feature, product or service which
AOL or its Affiliates may acquire subsequent to the Effective Date and (i) any
other version of an AOL or CompuServe Interactive Site which is materially
different from CompuServe's primary Internet-based Interactive Site marketed
under the "▇▇▇▇▇▇▇▇▇▇.▇▇▇(TM)" brand, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded versions and any version distributed through any broadband distribution
platform or through any platform or device other than a desktop personal
computer.
Confidential Information. Any information relating to or disclosed in the
------------------------
course of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit A - Page 3
limited to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
Consumer Accumulative Transaction. A transaction or agreement entered into by
---------------------------------
AOL with a third party by which AOL anticipates that it will materially expand
the number of consumers who access the PMR Service to include consumers with
which such third party has a preexisting relationship.
Content. Text, images, video, audio (including, without limitation, music used
-------
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, Links, pointers, technology and software.
Cost Plus Reimbursement. For providing the AOL PMR Service to AOL, or for any
-----------------------
applicable services provided by Company to AOL, an amount equal to the least of
(i) Company's incremental direct costs (without any burden, any allocation of
overhead general administrative costs or any other indirect costs) in providing
such services to AOL hereunder plus * * * of such incremental direct costs; (ii)
the fair market value of such services; and (iii) any charges for similar
services Company provides to any third party, however situated. For purposes
hereof, incremental costs will mean only those costs incurred by Company in
excess of Company's costs in operating the Company PMR Service or any aspect of
the PMR Service for the Company or for any third party, or of otherwise
providing any similar service or Content for any other purpose including to any
third party or in connection with any other Interactive Site or other use. For
purposes hereof, fair market value shall be determined considering all relevant
circumstances; provided that if there are services then being provided on
Interactive Sites which are similar to or competitive with the PMR Service, fair
market value hereunder may not exceed the costs and charges of such other
services. If there are no similar or competitive services, the primary
comparison will be to other internet management services, with appropriate
adjustments to take into account relevant differences to the extent such
services are not similar or competitive.
CPMR Revenues. Consists of (a) AOL Net Revenues generated from pages on the AOL
-------------
PMR Service targeted to consumers and (b) Data Mining Revenues.
Customer Data. Has the meaning set forth in Section 5.4 of Exhibit "C".
-------------
Data Mining Plan. Has the meaning set forth in Section 1.6(g).
----------------
Data Mining Revenues. Cash revenues charged and collected by AOL for the use,
--------------------
sale, licensing or exploitation of Customer Data (whether in the form of
individual data or summary or aggregate reports or compilations of Customer
Data).
Development Committee. Has the meaning set forth in Section 1.6(d).
---------------------
Development Representatives. Has the meaning set forth in Section 1.6(d).
---------------------------
Development Plan. Has the meaning set forth in Section 1.1.
----------------
Digital City. The standard, narrow-band U.S. version of Digital City's local
-------------
content offerings marketed under the Digital City brand name, specifically
excluding (a) the AOL Service, ▇▇▇.▇▇▇ or any other AOL Interactive Site, (b)
any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Electra", "Thrive", "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown," "My News" or any similar independent
product, service or property which may be offered by, through or with the
standard narrow band version of Digital City's local content offerings, (e) any
programming or Content area offered by or through such local content offerings
over which AOL does not exercise complete operational control (including,
without limitation, Content areas controlled by other parties and member-created
Content areas), (f) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through such local content
offerings, (g) any property, feature, product or service which AOL or its
Affiliates may acquire subsequent to the Effective Date, (h) any other version
of a Digital City local content offering which is materially different from the
narrow-band U.S. version of Digital City's local content offerings marketed
under the Digital City brand name, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any co-
branded version of the offerings and any version distributed through any
broadband distribution platform or through any platform or device other than a
desktop personal computer, and (i) Digital City- branded offerings in any local
area where such offerings are not owned or operationally controlled by AOL, Inc.
or DCI (e.g., Chicago, Orlando, South Florida, and Hampton Roads).
▇▇. ▇▇▇▇ Personal Medical Records System. All existing software owned by
----------------------------------------
Company and used on or in connection with the operation and/or maintenance of
the ▇▇. ▇▇▇▇ Site.
▇▇. ▇▇▇▇ Site. The Internet site and Content, currently located at
-------------
URL:▇▇▇▇://▇▇▇▇▇▇.▇▇▇ and all related URLs (including without limitation any
third party affiliated versions of such site (e.g., customized, mirrored, co-
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit A - Page 4
branded private labeled sites (e.g., versions for private hospitals, broadcast
affiliates)), which are managed, maintained or owned by Company or its agents
or to which Company licenses information, content or other materials.
Existing Customers. Any person who, during the Initial Term, becomes an AOL PMR
------------------
Member.
Existing Customer Ratio. In any accounting period after the Initial Term, the
-----------------------
ratio of Existing Customers to total AOL PMR Members. Total AOL PMR Members
during any accounting period after the Initial Term shall be the average of the
number of AOL PMR Members as of the beginning of such period and the number of
AOL PMR Members as of the end of such period.
Existing Customer Backend Revenues. In any accounting Period after the Initial
----------------------------------
Term, Backend Revenues for such period multiplied by the Existing Customer Ratio
for such period.
Existing Customer CPMR Revenues. In any accounting period after the Initial
-------------------------------
Term, (a) AOL Advertising Revenues generated from pages on the AOL PMR Service
targeted to consumers for such period multiplied by the Existing Customer Ratio
for such period, plus (b) AOL Transaction Revenues generated from Existing
Customers.
Extension Period. Has the meaning set forth in Section 6.9.
----------------
Keyword Search Terms. Has the meaning set forth in Exhibit B of the Interactive
--------------------
Services Agreement.
Initial Term. Has the meaning set forth in Section 6.2.
------------
Interactive Service. * * *.
-------------------
Interactive Services Agreement. Has the meaning set forth in the Recitals, as
------------------------------
such agreement may be amended from time to time.
Interactive Site. Any interactive site or area, including, by way of example and
----------------
without limitation, (i) a Company site on the World Wide Web portion of the
Internet or (ii) a channel or area delivered through a "push" product such as
the Pointcast Network or interactive environment such as Microsoft's Active
Desktop.
Launch Date. The date on which the AOL PMR Service first becomes generally
-----------
available (other than in beta versions) to AOL Members as contemplated by the
timing schedule set forth in Section 1.1 hereof.
Link. The mechanism by which a user at one Interactive Site can automatically
-----
move to another Interactive Site, or any screen within such Interactive Site.
Linked Interactive Site. Any site or area outside of the AOL Network which is
-----------------------
linked to Company Programming or the AOL PMR Service (through a "pointer" or
similar Link) subject to approval by AOL in accordance with the terms and
conditions of this Agreement.
Linked Company Interactive Site. Any Company Interactive Site which is also a
------ ------------------------
Linked Interactive Site.
Licensed Content. All Content provided by Company or its agents through the AOL
----------------
PMR Service, the Company Internet Site and/or the AOL Network in connection with
the subject matter of this Agreement, including without limitation all Company
Programming.
Notwithstanding any other provision of this Agreement it is understood that AOL
will have the same rights as Company in and to Licensed Content that is part of
the PMR Service or PMR Rights or is obtained in connection therewith, and that
such Licensed Content is co-owned by Company and AOL pursuant to Section 2 of
this Agreement. If License Content is licensed from a third party, then AOL and
Company shall each have all licensed rights, subject to the terms of this
Agreement.
Member Page. Has the meaning set forth in Exhibit B of the Interactive Services
-----------
Agreement.
Net Revenues. Has the meaning set forth in Exhibit B of the Interactive
------------
Services Agreement.
Netscape Netcenter. AOL's primary Internet-based Interactive Site marketed
------------------
under the "Netscape Netcenter(TM)" brand and located at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ or such
----------------
other URL as AOL may designate specifically excluding (a) the AOL Service and
▇▇▇.▇▇▇ (b) any international versions of such site, (c) ▇▇▇▇▇▇▇▇▇▇.▇▇▇, any
other CompuServe products or services or interactive sites, "ICQ," "AOL
NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)" or any similar
independent product or service offered by or through the Netcenter site or any
other AOL Interactive Site, (d) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (e) any programming or Content area offered by or
through the U.S. version of the America Online brand service which was operated,
maintained or controlled by the former AOL Studios division, (f) any yellow
pages, white pages, classifieds or other search, directory or review services or
Content offered by or through such site or any other AOL Interactive Site, (g)
any property, feature, product or service which AOL or its Affiliates may
acquire subsequent to the Effective Date and (h) any other version of an America
Online Interactive Site which is materially different from AOL's primary
Internet-based Interactive Site marketed under the Netscape Netcenter brand, by
virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions and any version
distributed through any broadband distribution
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit A - Page 5
platform or through any platform or device other than a desktop personal
computer.
Non-Consumer Accumulative Transaction. A transaction or agreement entered into
-------------------------------------
by AOL with a third party in which AOL does not anticipate materially expanding
the number of consumers who access the PMR Service to include consumers with
which such third party has a preexisting relationship.
Operating Standards. Has the meaning set forth in Section 1.3.
-------------------
Permitted Products and Services. Has the meaning set forth in Section 4.2(b).
-------------------------------
PMR Rights. All rights to data, contracts, technology and intellectual property
----------
and other rights developed or acquired during the Term by Company in connection
with the PMR Service or its ownership or operation, including the PMR Service
Data but not including Backend contracts with vendors to or Backend customers of
the PMR Service, including medical providers, insurance companies and any party
making data inquiries relating to data other than the Customer Data or supplying
data other than Customer Data.
PMR Service. An application and related tools and utilities that collect and/or
-----------
display and/or communicate healthcare information, communicates and/or act as a
repository or database of personal and/or general healthcare information and/or
personal medical records, and/or permit users to input data into such repository
or database and/or manage, transmit or organize any of the foregoing. The PMR
Service includes, without limitation, the API, any software programs and
business logic that effectuate any collection, manipulation, and/or storage of
data and/or any transfer of data to and from the consumer user interface of the
PMR Service and the data repository of the PMR Service. The PMR Service does
not include the Backend.
PMR Service Data. All Customer Data and other data provided to or obtained by
----------------
the PMR Service through the Backend, together with all Customer Data and other
data provided by any End-User of the AOL PMR Service or the Company PMR Service
with authorization that it be placed in the data bank of the PMR Service, but
not including any Customer Data except as so expressly authorized.
PPS Front End Revenues. (a) Amounts paid to Company by AOL PMR Members in
----------------------
connection with the sale, licensing, distribution or provision of any Permitted
Products and Services and excluding, in each case, (i) amounts collected for
sales or use taxes or duties and (ii) credits and chargebacks for returned or
canceled goods or services, but not excluding cost of goods sold or any similar
cost; and (b) amounts paid to Company by third parties for the right to sell,
license, distribute, provide or promote Permitted Products and Services to AOL
PMR Members.
Product. Any product, good or service which Company (or others acting on its
-------
behalf or as distributors) offers, sells, provides, distributes or licenses to
AOL Members directly or indirectly through (i) the AOL PMR Service or the PMR
Service (including through any Interactive Site linked thereto) (ii) any other
electronic means directed at AOL Members (e.g., e-mail offers), or (iii) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the AOL PMR Service or the PMR Service, requiring
purchasers to reference a specific promotional identifier or tracking code,
including, without limitation, products sold through surcharged downloads (to
the extent expressly permitted hereunder) and also including all Products as
defined in Exhibit B of the Interactive Services Agreement.
Project Timetable. Has the meaning set forth in Section 1.2.
-----------------
Specified Entity shall mean any of the following entities and any affiliates of
----------------
such entities:* * *. AOL shall have the right in its reasonable discretion to
add reasonably comparable parties to the definition of Specified Entity from
time to time upon sixty (60) days written notice to Company.
Tail Period. Has the meaning set forth in Section 6.8.
-----------
Term. The period beginning on the Effective Date and ending upon the expiration
----
or earlier termination of this Agreement (including the Initial Term and any
Tail Period and Transition Period).
Third Party Payments. Payments made to third parties in connection with
--------------------
distribution of an AOL Service that are directly related to revenue generated by
AOL for the display of advertising.
Third Party Service Providers. Any third party that provides Content, products
-----------------------------
or services which AOL determines are supplementary or compatible with the PMR
Service, can be utilized in conjunction with the PMR Service or provide similar
or alternative functionality to the PMR Service.
Transaction Revenues. Aggregate amounts paid by AOL PMR Users in connection with
--------------------
the sale, licensing, distribution or provision of any products which is
generated from pages on the AOL PMR Service and excluding, in each case, (a)
amounts collected for sales or use taxes or duties and (b) credits and
chargebacks for returned or canceled goods or services, but not excluding cost
of goods sold or any similar cost
Transition Period. Has the meaning set forth in Section 6.10.
-----------------
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit A - Page 6
EXHIBIT B -- STANDARD LEGAL TERMS AND CONDITIONS
------------------------------------------------
I. AOL NETWORK
1.1 Content. Company represents, warrants and covenants that all Content
-------
contained within or provided through the PMR Service, the AOL PMR Service, the
Company Internet Site, all Company Programming and all Licensed Content (i) does
and will conform to AOL's applicable Terms of Service, the terms of this
Agreement and any other standard, written policy of AOL and any applicable AOL
Property, (ii) does not and will not infringe on or violate any copyright,
trademark, U.S. patent, rights of publicity, moral rights or any other third
party right, including without limitation, any music performance or other music
related rights, and (iii) does not and will not contain any Content which
violates any applicable law or regulation ((i), (ii) and (iii) collectively,
the "Rules"). In the event that AOL notifies Company in writing that any such
Content, as reasonably determined by AOL, does not comply or adhere to the
Rules, then Company shall use its commercially reasonable best efforts to block
access by AOL PMR Users to such Content. In the event that Company cannot,
through its commercially reasonable best efforts, block access by AOL Members to
such Content in question, then Company shall provide AOL prompt written notice
of such fact. AOL may (in addition AOL's other rights under this Agreement, at
law or in equity) then, at its option, either (i) restrict access from the AOL
Network to the Content in question using technology available to AOL or (ii) in
the event access cannot be restricted, direct Company to remove any such
Content. Company will cooperate with AOL's reasonable requests to the extent
AOL elects to implement any such access restrictions. AOL will have no
obligations with respect to the Products or Content made available by or on
behalf of Company on or through the AOL PMR Service or the PMR Service,
including, but not limited to, any duty to review or monitor any such Products
or Content.
1.2 Health and Medical Information Content. Company represents, warrants and
--------------------------------------
covenants that (a) Company will not engage in or facilitate any practice or
service on or through the PMR Service, the AOL PMR Service, the Company
Programming or the Company Internet Site that would constitute the illegal or
unauthorized practice of medicine, the practice of pharmacy, or other regulated
professional practice in the health care area, as defined by applicable state
and federal laws, rules and government regulations and/or the regulations,
policies or guidelines of any applicable professional or accrediting
organization; (b) Company possesses all necessary governmental authorizations,
approvals, consents, licenses, permits, certificates or other rights and
permissions to conduct its business as contemplated by this Agreement; (c) if
any of the Licensed Content professes to provide expert, professional or other
specialty advice or Content (such as, without limitation, medical or
psychological, religious, financial, etc.), Company shall ensure that all such
Licensed Content is prepared or reviewed by licensed, insured and qualified
practitioners/professionals in such field with expertise on the particular topic
and such Licensed Content complies with applicable standards of the applicable
profession and all applicable laws and regulations; (d) any physicians used to
answer questions from users of the PMR Service, the AOL PMR Service and/or the
Company Internet Site will be experienced, qualified and competent to provide
answers to the questions posed to them, and possess any necessary special
qualifications, training, or certification appropriate in the areas in which
they answer questions, and will be properly licensed by the appropriate
governing body of each jurisdiction where the nature of heir conduct through the
PMR Service, the AOL PMR Service, or the Company Internet Site would require
such licensing; and (e) it will promptly provide AOL with such information as
AOL may from time to time reasonably request for the purpose of verifying
Company's compliance with its obligations under this paragraph. In the event
AOL reasonably determines that there has been a violation of any of the
foregoing covenants, or if AOL reasonably determines that any Content within the
PMR Service, the AOL PMR Service or the Company Internet Site may reasonably be
expected to expose AOL or its Affiliates to legal or financial liability or
other adverse consequences, then AOL may (in addition AOL's other rights under
this Agreement, at law or in equity), at its option, either (i) restrict access
from the AOL Network to the Content in question using technology available to
AOL or (ii) in the event access cannot be restricted, direct Company to remove
any such Content. Company will cooperate with AOL's reasonable requests to the
extent AOL elects to implement any such access restrictions.
1.3 AOL Network Distribution. The distribution, placements and/or promotions
------------------------
described in this Agreement or otherwise provided to Company by AOL shall be
used by Company solely for its own benefit, will link to and promote solely the
Licensed Content within the AOL PRM System, the Company Internet Site or Company
Programming. Content provided for the PMR Service or the AOL PMR Service will
not be resold, traded, exchanged, bartered, brokered or otherwise offered or
transferred to any third party or contain any branding other than branding
contemplated by this Agreement. Further, the Content of all such distribution,
placements and promotions shall be subject to AOL's policies relating to
advertising and promotion, including those relating to AOL's exclusivity
commitments and other contractual preferences to third parties.
Exhibit B - Page 1
1.4 Changes to AOL Properties. AOL reserves the right to redesign or modify
-------------------------
the organization, structure, "look and feel," navigation and other elements of
the AOL Service, AOL Hometown, ▇▇▇.▇▇▇ or any other AOL Property, including
without limitation, by adding or deleting channels, subchannels and/or screens.
1.5 Accessibility; Kids & Teen Policies. AOL reserves the right, in its
-----------------------------------
reasonable discretion at any time, to designate the AOL PMR Service, Company
Internet Site, Company Programming and all linked Interactive Sites, or any
portions thereof, as Content targeted to Kids (children ages 12 and under),
Young Teens (children 13-15) and/or Mature Teens (16-17). In the event Company
disagrees with AOL's designation, Company shall not distribute or provide the
Content in question on or through the AOL PMR Service, Company Internet Site or
Company Programming until the Parties agree upon the proper designation of such
Content. Company shall ensure that all Content (including all advertising)
distributed on or through the Company Internet Site or Company Programming which
is targeted to the above age groups, including but not limited to Content
designated as such by AOL, complies with any relevant AOL policy (Kids, Young
Teens, Mature Teens) including any viewruling obligations. Without limiting
the generality of the foregoing or any other provision of this Agreement,
Company shall (i) provide clear and prominent notice of collection practices and
all possible uses of information before collecting personal identifying
information from Kids, Young Teens or Mature Teens online; (ii) never post
personal identifying information about Kids, Young Teens or Mature Teens online
or sell or otherwise disclose such information to third parties; (iii) all
advertorial advertising and sponsorships shall be clearly labeled as
"advertorial" or with similar language and (iv) ensure that all chat rooms and
message boards are monitored on a daily basis by staff that has undergone AOL
Community Leader training; and each chat room shall (a) open and close in
accordance with a posted schedule (i.e., no 24/7 access), (b) have a special
"help" area for Kids, Young Teens and/or Mature Teens, as applicable, and (c) be
monitored (at least on a floating basis) by and AOL-trained Community Leader.
Company shall notify AOL in writing whenever it intends to distribute Content
for these age groups on or through the PMR Service, Company Internet Site and/or
Company Programming to ensure proper age restriction categorization.
1.6 Member Page. AOL will have no obligation with respect to the Content and
-----------
services available on or through any Member Page including, but not limited to,
any duty to review or monitor any such Content and services. AOL expressly
disclaims any liability to Company for the Content and services contained in any
Member Page or any expense, claim, demand, costs, loss or damage arising out of
any use of the Company-provided Content available from, without limitation, a
Community Center, the PMR Service, the AOL PMR Service or the Company Internet
Site. Company agrees to release AOL and its Affiliates, including partners,
directors, officers, employees and agents from any and all claims, rights and
recourses for such loss or damage.
1.7 Contests. Company shall ensure that any contest, sweepstakes or similar
--------
promotion conducted or promoted through the PMR Service, the AOL PMR Service or
the Company Internet Site and/or Company Programming (a "Contest") complies with
all applicable laws and regulations, except for Contests sponsored by AOL.
Company shall provide AOL with (i) at least thirty (30) days prior written
notice of any Contest and (ii) upon AOL's request, an opinion from Company's
counsel confirming that the Contest complies with all applicable federal, state
and local laws and regulations.
1.8 No Auctions. All sales, if any, of Products through the PMR Service or
-----------
the AOL PMR Service will be conducted through a direct sales format; Company
will not promote, sell, offer or otherwise distribute any Products through any
format other than a direct sales format (e.g., through auctions or clubs)
without the prior written consent of AOL.
1.9 Disclaimers. Upon AOL's request, AOL agrees to include within the PMR
-----------
Service and/or the AOL PMR Service, and/or the Company Internet Site and/or
Company Programming disclaimers (the specific form and substance to be mutually
agreed upon by the Parties) indicating that all Content (including any Products
and services) is provided solely by Company and not AOL, and any transactions
are solely between Company and AOL Members using or purchasing such Content and
AOL is not responsible for any loss, expense or damage arising out of the
Licensed Content or services provided through the PMR Service, the AOL PMR
Service, the Company Internet Site or Company Programming. In addition, Company
shall prominently provide a notice/disclaimer on the Welcome Mat and all
applicable areas and features of the PMR Service and the AOL PMR Service
substantially as follows: "The following area or feature is provided solely for
educational and entertainment purposes only and is not intended to constitute
professional medical or psychological advice or counseling. If you need medical
or psychological services, please contact a licensed professional in your area.
Always follow the advice of your physician or therapist in regards to treatment
information and considerations, rather than any information contained herein,
including without limitation, in text files, message boards, chat rooms,
articles, or software libraries. Company shall not in any manner state that AOL
recommends or endorses Company or its Content. The Parties will review the above
disclaimer from time to time with the intent of minimizing each Party's exposure
to liability.
Exhibit B - Page 2
1.10 Insurance. At all times during the Term, Company shall maintain insurance
---------
coverage no less than:* * *. Company shall include AOL as a named insured party
on all such policy or policies. Company shall provide AOL with a copy of such
policy or policies within sixty (60) days after the Effective Date, failing
which, in addition to all other available remedies, AOL shall be entitled to
delay the launch of the Licensed Content on the AOL Network. From time to time
upon AOL's request, Company shall provide AOL with certificates from the
respective insurance company(ies) confirming Company's compliance with this
paragraph. Company shall promptly notify AOL of any material adverse change in
such policy or policies.
1.11 Rewards Programs. Company shall not offer, provide, implement or
----------------
otherwise make available on the PMR Service, the AOL PMR Service, the Company
Internet Site or the Company Programming any promotional programs or plans that
are intended to provide customers with rewards or benefits in exchange for, or
on account of, their past or continued loyalty to, or patronage or purchase of,
the products or services of Company or any third party (e.g., a promotional
program similar to a "frequent flier" program), unless such promotional program
or plan is provided exclusively through AOL's "AOL Rewards" program, accessible
on the AOL Service at Keyword: "AOL Rewards."
1.12 Navigation. In cases where an AOL Member performs a search for Company
----------
through any search or navigational tool or mechanism that is accessible or
available through the AOL Network (e.g., promotions, Keyword Search Terms, or
any other navigational tools), AOL shall have the right to direct such AOL
Member to the Company Internet Site, or any other Company Interactive Site
determined by AOL in its reasonable discretion. AOL will also have the right to
establish in its discretion navigational Links and pointers connecting the AOL
PMR Service with other areas on or outside of the AOL Network.
1.13 AOL Look and Feel. Company acknowledges and agrees that AOL shall own all
-----------------
right, title and interest in and to the AOL Look and Feel, including all of the
look and feel of the AOL PMR Service (subject to Company's ownership in any
Licensed Content, Company tradenames and marks and other copyrighted material of
Company with the PMR Service. In addition, AOL shall retain editorial control
over the portions of the AOL pages and forms which frame the AOL PMR Service or
the Company Internet Site or Company Programming (the "AOL Frames"). AOL may, at
its discretion, incorporate navigational icons, Links and pointers or other
Content into such AOL Frames.
1.14 Operations. AOL shall be entitled to require reasonable changes to the
----------
AOL PMR Service, the PMR Service, the Company Internet Site and Company
Programming to the extent such services or site will, in AOL's good faith
judgment, adversely affect operations of the AOL Network, provided that this
sentence shall not be deemed to grant AOL any editorial control with respect to
the Company Internet Site and Company Programming.
1.15 Classifieds. Company shall not implement or promote any classifieds
-----------
listing features through the PMR Service, the AOL PMR Service, the Company
Programming without AOL's prior written approval. Such approval may be
conditioned upon, among other things, Company's conformance with any then-
applicable service-wide technical or other standards related to online
classifieds.
1.16 Message Boards; Chat Rooms and Comparable Vehicles. Any Content submitted
--------------------------------------------------
by Company or its agents within message boards, chat rooms or any comparable
vehicles will be subject to the license grant relating to submissions to "public
areas" set forth in the AOL Terms of Service. Company acknowledges that it has
no rights or interest in AOL Member submissions to message boards , chat rooms
or any other vehicles through which AOL Members may make submissions within the
AOL Network. Company will refrain from editing, deleting or altering, without
AOL's prior approval, any opinion expressed or submission made by an AOL Member
within Company Programming or the AOL PMR Service, except in cases where Company
has a good faith belief that the Content in question violates an applicable law,
regulation, third party right or the applicable AOL Property's Terms of Service.
1.17 Duty to Inform. Company shall promptly inform AOL of any information
--------------
related to the PMR Service, the AOL PMR Service, the Company Internet Site,
Company Programming or the Licensed Content which could reasonably lead to a
claim, demand or liability of or against AOL and/or its Affiliates by any third
party.
1.18 Customer Service. Company shall respond promptly and professionally to
----------------
questions, comments, complaints and other reasonable requests regarding the PMR
Service, the AOL PMR Service, the Company Internet Site, Company Programming or
the Licensed Content by AOL Members or on request by AOL, and shall cooperate
and assist AOL in promptly answering the same. Company shall have sole
responsibility for customer service (including, without limitation, order
processing, billing, shipping, etc.) and AOL shall have no responsibility with
respect thereto. Company shall comply with all applicable requirements of any
federal, state or local consumer protection or disclosure law.
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit B - Page 3
1.19 Production Work. In the event that Company requests any AOL production
---------------
assistance, Company shall work with AOL to develop detailed production plans for
the requested production assistance (the "Production Plan"). Following receipt
of the final Production Plan, AOL shall notify Company of (i) AOL's availability
to perform the requested production work, (ii) the proposed fee or fee structure
for the requested production work and (iii) the estimated development schedule
for such work. To the extent the Parties reach agreement regarding
implementation of agreed-upon Production Plan, such agreement shall be reflected
in a separate work order signed by the Parties. All fees to be paid to AOL for
any such production work shall be paid in advance. To the extent Company
elects to retain a third party provider to perform any such production work,
work produced by such third party provider must generally conform to AOL's
production standards available at Keyword "Styleguide." The specific production
resources which AOL allocates to any production work to be performed on behalf
of Company shall be as determined by AOL in its sole discretion. With respect to
any routine production, maintenance or related services which AOL reasonably
determines are necessary for AOL to perform in order to support the proper
functioning and integration of the Anchor Tenant Button and the Company Internet
Site ("Routine Services"), Company will pay the then-standard fees charged by
AOL for such Routine Services.
1.20 Production Tools. AOL shall determine in its sole discretion, which of
----------------
its proprietary publishing tools (each a "Tool") shall be made available to
Company in order to develop and implement the Licensed Content during the Term
(e.g., to build Rainman sites). Company shall be granted a nonexclusive license
----
to use any such Tool, which license shall be subject to: (i) Company's
compliance with all rules and regulations relating to use of the Tools, as
published from time to time by AOL, (ii) AOL's right to withdraw or modify such
license at any time, and (iii) Company's express recognition that AOL provides
all Tools on an "as is" basis, without warranties of any kind.
1.21 Launch Date. In the event that any terms contained herein relate to or
------------
depend upon the launch date of the AOL PMR Service, it is the intention of the
Parties to record the Launch Date in a written instrument signed by both Parties
promptly following such Launch Date; provided that, in the absence of such a
written instrument, the Launch Date shall be as reasonably determined by AOL
based on the information available to AOL.
1.22 Keywords. Any Keyword Search Terms to be directed to the PMR Service,
--------
the AOL PMR Service or the Company Internet Site shall be (i) subject to
availability for use by Company and (ii) limited to the combination of the
Keyword search modifier combined with a registered trademark of Company. AOL
reserves the right to revoke at any time Company's use of any Keyword Search
Terms which do not incorporate registered trademarks of Company. Company
acknowledges that its utilization of a Keyword Search Term will not create in
it, nor will it represent it has, any right, title or interest in or to such
Keyword Search Term, other than the right, title and interest Company holds in
Company's registered trademark independent of the Keyword Search Term. Without
limiting the generality of the foregoing, Company will not: (a) attempt to
register or otherwise obtain trademark or copyright protection in the Keyword
Search Term; or (b) use the Keyword Search Term, except for the purposes
expressly required or permitted under this Agreement. This Section shall survive
the completion, expiration, termination or cancellation of this Agreement.
1.23 Accounts. To the extent AOL has granted Company any accounts on the AOL
--------
Service, Company will be responsible for the actions taken under or through its
accounts, which actions are subject to AOL's applicable Terms of Service and for
any surcharges, including, without limitation, all monthly charges and usage
fees premium charges, transaction charges, and any applicable communication
surcharges incurred by any account issued to Company, [but Company will not be
liable for charges incurred by any account relating to AOL's standard monthly
usage fees and standard hourly charges, which charges AOL will bear]. Upon the
termination of this Agreement, all accounts, related screen names and any
associated usage credits or similar rights, will automatically terminate. AOL
will have no liability for loss of any data or content related to the proper
termination of any such account.
II. TRADEMARKS
2.1 Trademark License. In designing and implementing any marketing,
-----------------
advertising, or other promotional materials (expressly excluding Press Releases)
related to this Agreement and/or referencing the other Party and/or its trade
names, trademarks and service marks (the "Promotional Materials") and subject to
the other provisions contained herein, Company shall be entitled to use the
following trade names, trademarks and service marks of AOL: the "America Online"
brand service, "AOL" service/software and AOL's triangle logo and, in connection
therewith, Company shall comply with the AOL styleguide available at keyword:
"style guide"; and AOL and its Affiliates shall be entitled to use the trade
names, trademarks and service marks of Company (collectively, together with the
AOL marks listed above, the "Marks"); provided that each Party: (i) does not
create a unitary composite ▇▇▇▇ involving a ▇▇▇▇ of the other Party without the
prior written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
This Section does not
Exhibit B - Page 4
provide Company to use any of the Marks of AOL other than in connection with the
AOL PMR Service. This Section shall survive the completion, expiration,
termination or cancellation of this Agreement.
2.2 Rights. Each Party acknowledges that its utilization of the other Party's
------
Marks will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
2.3 Quality Standards. Each Party agrees that the nature and quality of its
-----------------
products and services supplied in connection with the other Party's Marks shall
conform to quality standards communicated in writing by the other Party for use
of its trademarks. Each Party agrees to supply the other Party, upon request,
with a reasonable number of samples of any Materials publicly disseminated by
such Party which utilize the other Party's Marks. Each Party shall comply with
all applicable laws, regulations and customs and obtain any required government
approvals pertaining to use of the other Party's Marks.
2.4 Promotional Materials. Each Party will submit to the other Party, for its
---------------------
prior written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after initial public announcement
of the business relationship between the Parties in accordance with the approval
and other requirements contained herein, either Party's subsequent factual
reference in Promotional Materials to the existence of a business relationship
between AOL and Company, including, without limitation, the availability of the
AOL PMR Service and the Licensed Content through the AOL Network, or use of
screen shots relating to the distribution under this Agreement (so long as the
AOL Network is clearly identified as the source of such screen shots) for
promotional purposes shall not require the approval of the other Party. Once
approved, the Promotional Materials may be used by a Party and its Affiliates
for the purpose of promoting the distribution of the AOL PMR Service and/or
Licensed Content through the AOL Network and reused for such purpose until such
approval is withdrawn with reasonable prior notice. In the event such approval
is withdrawn, existing inventories of Promotional Materials may be depleted.
2.5 Infringement Proceedings. Each Party agrees to promptly notify the other
------------------------
Party of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not materially violate any material agreement to which such Party is a
party or by which it is otherwise bound; (iii) when executed and delivered by
such Party, this Agreement will constitute the legal, valid and binding
obligation of such Party, enforceable against such Party in accordance with its
terms; (iv) such Party's Promotional Materials will neither infringe on any
copyright, U.S. patent or any other third party right nor violate any applicable
law or regulation and (v) such Party acknowledges that the other Party makes no
representations, warranties or agreements related to the subject matter hereof
which are not expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
not use Confidential Information of the other Party other than for purposes of
this Agreement and will take reasonable steps, at least substantially equivalent
to the steps it takes to protect its own proprietary information, during the
term of this Agreement, and for a period of three years following expiration or
termination of this Agreement, to prevent the disclosure of Confidential
Information of the other Party, other than to its employees, or to its other
agents who must have access to such Confidential Information for such Party to
perform its obligations hereunder, who will each agree to comply with this
section. Notwithstanding the foregoing, either Party may issue a press release
or other disclosure containing Confidential Information without the consent of
the other Party, to the extent such disclosure is required by law, rule,
regulation or government or court order. In such event, the disclosing Party
will provide at least five (5) business days prior written notice of such
proposed disclosure to the other Party (unless a shorter period is required by
an applicable legal requirement). Further, in the event such disclosure is
required of either Party under the laws, rules or regulations of the Securities
and Exchange Commission or any other applicable governing body, such Party will
(i) redact mutually agreed-upon portions of this Agreement to the fullest extent
permitted under applicable laws, rules and regulations and (ii) submit a request
to such governing body that such portions and other provisions of this Agreement
receive confidential
Exhibit B - Page 5
treatment under the laws, rules and regulations of the Securities and Exchange
Commission or otherwise be held in the strictest confidence to the fullest
extent permitted under the laws, rules or regulations of any other applicable
governing body.
V. RELATIONSHIP WITH AOL MEMBERS
5.1 Solicitation of Subscribers.
---------------------------
(a) During the term of this Agreement and for a two year period
thereafter, Company will not use the AOL Network (including, without limitation,
the e-mail network contained therein) to solicit AOL Members on behalf of
another Interactive Service. More generally, Company will not send unsolicited,
commercial e-mail (i.e., "spam") or other online communications through or into
AOL's products or services, absent a Prior Business Relationship. For purposes
of this Agreement, a "Prior Business Relationship" will mean that the AOL Member
to whom commercial e-mail or other online communication is being sent has
voluntarily either (i) engaged in a transaction with Company (not including any
transaction through the AOL PMR Service); or (ii) provided information to
Company through a contest, registration, or other communication, which included
clear notice to the AOL Member that the information provided could result in
commercial e-mail or other online communications being sent to that AOL Member
by Company or its agents. Any commercial e-mail or other online communications
to AOL Members which are otherwise permitted hereunder will (a) include a
prominent and easy means to "opt-out" of receiving any future commercial e-mail
communications from Company and (b) shall also be subject to AOL's then-standard
restrictions on distribution of bulk e-mail (e.g., related to the time and
manner in which such e-mail can be distributed through or into the AOL product
or service in question).
(b) Company shall ensure that its collection, use and disclosure of
information obtained from AOL Members under this Agreement ("Member
Information") complies with (i) all applicable laws and regulations and (ii)
AOL's standard privacy policies, available on the AOL Service at the keyword
term "Privacy" (or, in the case of the Company Internet Site, Company's standard
privacy policies so long as such policies are prominently published on the site
and provide adequate notice, disclosure and choice to Members regarding
Company's collection, use and disclosure of user information). Company will not
disclose Member Information collected hereunder to any third party in a manner
that identifies AOL Members as end users of an AOL product or service or use
Member Information collected under this Agreement to market another Interactive
Service.
5.2 Email Newsletters. Any email newsletters sent to AOL Members by Company
-----------------
or its agents shall (i) be subject to AOL's policies on use of the email
functionality, including but not limited to AOL's policy on unsolicited bulk
email, (ii) be sent only to AOL Members requesting to receive such newsletters,
(iii) not contain Content which violates AOL's Terms of Service, and (iv) not
contain any advertisements, marketing or promotion for any other Interactive
Service .
5.3 AOL Member Communications. To the extent Company is otherwise permitted
-------------------------
to send communications to AOL Members (in accordance with the other requirements
contained herein): in any such communications to AOL Members on or off the
Company Internet Site (including, without limitation, e-mail solicitations),
Company will limit the subject matter of such communications to those categories
of products, services and/or content that are specifically contemplated by this
Agreement and will not encourage AOL Members to take any action inconsistent
with the scope and purpose of this Agreement, including without limitation, the
following actions: (i) using an Interactive Site other than the Company Internet
Site for the purchase of Products, (ii) using Content other than the Licensed
Content; (iii) bookmarking of Interactive Sites; or (iv) changing the default
home page on the AOL browser. Additionally, with respect to such AOL PMR User
communications, in the event that Company encourages an AOL PMR User to purchase
products through such communications, Company shall ensure that (a) the AOL
Network is expressly promoted as the primary means through which the AOL PMR
User can access the Company Internet Site (including without limitation by
stating the applicable Keyword Search Term and including direct Links to
specific offers within the Company Internet Site) and (b) any Link to the
Company Internet Site will link to a page which indicates to the AOL PMR User
that such user is in a site which is affiliated with the AOL Network.
5.4 Customer Data; AOL Data. Any data provided by customers that is generated
-----------------------
directly from the * * * or produced by Company in performing its obligations in
managing such service, including, without limitation, customer names, addresses,
credit card information and AOL screennames is referred to herein as the
"Customer Data"). Notwithstanding the joint ownership of the Customer Data
provided in Section 2.1(a), Company (a) shall comply with all paragraphs of this
Section 5, (b) shall provide users the right to have their Customer Data deleted
from any database created by or on behalf of Company, (c) shall not have the
right to use the Customer Data to market or promote any consumer direct
information, services or products reasonably construed to be in competition with
the PMR
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit B - Page 6
Services, including without limitation any product or service that permits
consumers to view, enter or modify Customer Data; and (d) shall not have the
right to sell, license or provide Customer Data (whether in the form of
individual data or summary or aggregate reports or compilations of Customer
Data) to any third party without AOL's prior written consent. Without limiting
the foregoing, Company's and AOL's use of the Customer Data shall be subject to
the terms of this Agreement and AOL's then-applicable privacy policies; provided
that both Parties shall use customer-specific medical profile information on a
customer-by-customer basis in accordance with both Parties' applicable privacy
policies. Any data provided by AOL to Company (e.g., usage reports) (the "AOL
Data") shall be and remain the property of AOL, and the AOL Data will be
promptly returned to AOL by Company in the form in which such data is maintained
by Company or, if AOL so elects, will be destroyed, upon (i) AOL's request, (ii)
expiration or termination of this Agreement for any reason, or (iii) with
respect to any particular AOL Data, on such earlier date that the same is no
longer required by Company in order to provide the services required hereunder.
Company will not use the AOL Data for any purpose other than that of providing
such services, nor will the AOL Data, or any part thereof, be disclosed, sold,
assigned, leased, or otherwise disposed of to third parties by Company or
commercially exploited by or on behalf of Company, its employees or agents.
Company will not possess or assert any lien or other right against or to the AOL
Data. The Parties agree to amend the provisions of this paragraph from time to
time to in good faith to the extent necessary to comply with applicable law,
rule or regulation; provided that if any such amendment to the provisions of
this paragraph has, or is likely to have, an adverse effect on either Party,
then such Party may refer such matter to the Management Committee for
resolution.
VI. TREATMENT OF CLAIMS
6.1 Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
---------
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO
USE PMR SERVICE, THE AOL PMR SERVICE THE AOL NETWORK OR ANY OTHER PROVISION OF
THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT THE
FOREGOING SHALL NOT RESTRICT A PARTY'S RIGHTS FOR INDEMNIFICATION AS SET FORTH
IN SECTION 6.3 BELOW. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY" SECTION,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN * * *; PROVIDED
THAT EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT
OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS OF THIS AGREEMENT; AND
PROVIDED FURTHER THAT THE FOREGOING LIABILITY CAP SHALL NOT APPLY TO (1) EITHER
PARTY'S BREACH OF THIS AGREEMENT INVOLVING FRAUD, INTENTIONAL MISCONDUCT OR
GROSS NEGLIGENCE OR (2) EITHER PARTY'S INTENTIONAL BREACH OF ANY TERM, CONDITION
OR OBLIGATION UNDER THIS AGREEMENT.
6.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS
------------------------
AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS,
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PMR
SERVICE, THE AOL PMR SERVICE, THE AOL NETWORK, ANY AOL PUBLISHING TOOLS, OR THE
LICENSED CONTENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING
OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH
OF COMPANY AND AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE
PROFITABILITY OF AOL NETWORK, THE PMR SERVICE, THE AOL PMR SERVICE OR THE
COMPANY INTERNET SITE.
6.3 Indemnity.
---------
(a) Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach of any
obligation, representation, or warranty of this Agreement.
(b) If a Party entitled to indemnification hereunder (the "Indemnified
Party") becomes aware of any matter it believes is indemnifiable hereunder
involving any claim, action, suit, investigation, arbitration or other
proceeding against the Indemnified Party by any third party (each an "Action"),
the Indemnified Party shall give the other Party (the "Indemnifying Party")
prompt written
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit B - Page 7
notice of such Action. Such notice shall (i) provide the basis on which
indemnification is being asserted and (ii) be accompanied by copies of all
relevant pleadings, demands, and other papers related to the Action and in the
possession of the Indemnified Party. The Indemnifying Party shall have a period
of ten (10) days after delivery of such notice to respond. If the Indemnifying
Party elects to defend the Action or does not respond within the requisite ten
(10) day period, the Indemnifying Party shall be obligated to defend the Action,
at its own expense, and by counsel reasonably satisfactory to the Indemnified
Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying
Party, with the Indemnifying Party and its counsel in the defense and the
Indemnified Party shall have the right to participate fully, at its own expense,
in the defense of such Action. If the Indemnifying Party responds within the
required ten (10) day period and elects not to defend such Action, the
Indemnified Party shall be free, without prejudice to any of the Indemnified
Party's rights hereunder, to compromise or defend (and control the defense of)
such Action. In such case, the Indemnifying Party shall cooperate, at its own
expense, with the Indemnified Party and its counsel in the defense against such
Action and the Indemnifying Party shall have the right to participate fully, at
its own expense, in the defense of such Action. If a dispute arises over whether
the Party requesting indemnification hereunder is so entitled, the Party
requesting indemnification shall be free, without prejudice to any of such
Party's rights hereunder, to compromise or defend (and control the defense of)
such Action. Any compromise or settlement of an Action shall require the prior
written consent of both Parties hereunder, such consent not to be unreasonably
withheld or delayed.
6.4 Acknowledgment. AOL AND COMPANY EACH ACKNOWLEDGES THAT THE PROVISIONS OF
--------------
THIS AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION
BETWEEN THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE
TRANSACTIONS CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO
WARRANTIES AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VII. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable
efforts to promptly resolve any claim, dispute, claim, controversy or
disagreement (each a "Dispute") between the Parties or any of their respective
subsidiaries, affiliates, successors and assigns under or related to this
Agreement or any document executed pursuant to this Agreement or any of the
transactions contemplated hereby. If the Parties cannot resolve the Dispute
within such timeframe, the Dispute shall be submitted to the Management
Committee for resolution. For ten (10) days after the Dispute was submitted to
the Management Committee, the Management Committee shall have the exclusive
right to resolve such Dispute; provided further that the Management Committee
shall have the final and exclusive right to resolve Disputes arising from any
provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms. If the Management
Committee is unable to amicably resolve the Dispute during the ten (10) day
period, then the Management Committee will consider in good faith the
possibility of retaining a third party mediator to facilitate resolution of the
Dispute. In the event the Management Committee elects not to retain a mediator,
the Dispute will be subject to the resolution mechanisms described below.
"Management Committee" shall mean a committee made up of a senior executive from
each of the Parties for the purpose of resolving Disputes under this Section and
generally overseeing the relationship between the Parties contemplated by this
Agreement. Neither Party shall seek, nor shall be entitled to seek, binding
outside resolution of the Dispute unless and until the Parties have been unable
to amicably resolve the dispute as set forth in this paragraph (a) and then,
only in compliance with the procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) proprietary rights,
including but not limited to intellectual property and confidentiality, and (ii)
any provision of this Agreement which expressly or implicitly provides for the
Parties to reach mutual agreement as to certain terms (which shall be resolved
by the Parties solely and exclusively through amicable resolution as set forth
in paragraph (a), any Dispute not resolved by amicable resolution as set forth
in paragraph (a) shall be governed exclusively and finally by arbitration. Such
arbitration shall be conducted by the American Arbitration Association ("AAA")
in Washington, D.C. and shall be initiated and conducted in accordance with the
Commercial Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
Exhibit B - Page 8
(c) The arbitration panel shall consist of three arbitrators. Each
Party shall name an arbitrator within ten (10) days after the delivery of the
Demand. The two arbitrators named by the Parties may have prior relationships
with the naming Party, which in a judicial setting would be considered a
conflict of interest. The third arbitrator, selected by the first two, shall be
a neutral participant, with no prior working relationship with either Party. If
the two arbitrators are unable to select a third arbitrator within ten (10)
days, a third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state
law, shall govern the arbitrability of all Disputes. The arbitrators shall allow
such discovery as is appropriate to the purposes of arbitration in accomplishing
a fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply
in toto. The arbitrators may enter a default decision against any Party who
-------
fails to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory
damages only. Any award by the arbitrators shall be accompanied by a written
opinion setting forth the findings of fact and conclusions of law relied upon in
reaching the decision. The award rendered by the arbitrators shall be final,
binding and non-appealable, and judgment upon such award may be entered by any
court of competent jurisdiction. The Parties agree that the existence, conduct
and content of any arbitration shall be kept confidential and no Party shall
disclose to any person any information about such arbitration, except as may be
required by law or by any governmental authority or for financial reporting
purposes in each Party's financial statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of
witnesses and all other expenses and costs in connection with the presentation
of such Party's case (collectively, "Attorneys' Fees"). The remaining costs of
the arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the
Management Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the State of New York. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the State of New York and the federal courts
situated in the State of New York, over any and all Non-Arbitration Claims and
any and all actions to enforce such claims or to recover damages or other relief
in connection with such claims or to enforce a judgment rendered in an
arbitration proceeding.
VIII. MISCELLANEOUS
8.1 Auditing Rights. Each Party shall maintain complete, clear and accurate
---------------
records of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, AOL shall have the right, at its expense, to
conduct a reasonable and necessary copying and inspection of portions of the
Records of Company that are directly related to amounts payable to AOL pursuant
to this Agreement, which right may, at AOL's option, be exercised by directing
an independent certified public accounting firm to conduct such inspection. For
the sole purpose of ensuring compliance with this Agreement, Company shall have
the right, at its expense, to direct an independent certified public accounting
firm subject to strict confidentiality restrictions to conduct a reasonable and
necessary copying and inspection of portions of the Records of AOL that are
directly related to amounts payable to Company pursuant to this Agreement. Any
such audit may be conducted after twenty (20) business days prior written
notice, subject to the following. Such audits shall not be made more frequently
than once every twelve months. No such audit of AOL shall occur during the
period beginning on June 1 and ending October 1. No such audit of Company shall
occur during the period beginning on December 1 and ending April 1. In lieu of
providing access to its Records as described above, AOL shall be entitled to
provide Company with a report from an independent certified public accounting
firm confirming the information to be derived from such Records.
8.2 Excuse. Neither Party shall be liable for, or be considered in breach of
------
or default under this Agreement on account of, any delay or failure to perform
as required by this Agreement as a result of any causes or conditions which are
beyond such Party's reasonable control and which such Party is unable to
overcome by the exercise of reasonable diligence.
Exhibit B - Page 9
8.3 Independent Contractors. The Parties to this Agreement are independent
-----------------------
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
8.4 Notice. Any notice, approval, request, authorization, direction or other
------
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname "AOLNotice" in
the case of AOL) or by confirmed facsimile; (ii) on the delivery date if
delivered personally to the Party to whom the same is directed; (iii) one
business day after deposit with a commercial overnight carrier, with written
verification of receipt; or (iv) five business days after the mailing date,
whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no. 703-
▇▇▇-▇▇▇▇) and the Deputy General Counsel (fax no. ▇▇▇-▇▇▇-▇▇▇▇), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of Company, except as otherwise specified herein, the notice address shall be
the address for Company set forth in the first paragraph of this Agreement, with
the other relevant notice information, including the recipient for notice and,
as applicable, such recipient's fax number or AOL e-mail address, to be as
reasonably identified by AOL.
8.5 No Waiver. The failure of either Party to insist upon or enforce strict
---------
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
8.6 Return of Information. Upon the expiration or termination of this
---------------------
Agreement, each Party shall, upon the written request of the other Party, return
or destroy (at the option of the Party receiving the request) all confidential
information, documents, manuals and other materials specified by the other
Party.
8.7 Survival. Sections IV, V, VI, VII and VIII of this Exhibit C, shall
--------
survive the completion, expiration, termination or cancellation of this
Agreement. In addition, all payment terms of this Agreement and any provision
which, by its nature, must survive the completion, expiration, termination or
cancellation of this Agreement, shall survive the completion, expiration,
termination or cancellation of this Agreement.
8.8 Entire Agreement. This Agreement sets forth the entire agreement and
----------------
supersedes any and all prior agreements of the Parties with respect to the
transactions set forth herein. Neither Party shall be bound by, and each Party
specifically objects to, any term, condition or other provision which is
different from or in addition to the provisions of this Agreement (whether or
not it would materially alter this Agreement) and which is proffered by the
other Party in any correspondence or other document, unless the Party to be
bound thereby specifically agrees to such provision in writing.
8.9 Amendment. No change, amendment or modification of any provision of this
---------
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
8.10 Further Assurances. Each Party shall take such action (including, but not
------------------
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
8.11 Assignment. Company shall not assign this Agreement or any right,
----------
interest or benefit under this Agreement without the prior written consent of
AOL. Assumption of this Agreement by any successor to Company (including,
without limitation, by way of merger or consolidation) shall be subject to AOL's
prior written approval. Subject to the foregoing, this Agreement shall be fully
binding upon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
8.12 Subcontractors. To the extent Company utilizes consultants or
---------------
subcontractors to perform a material portion of its obligations under this
Agreement, such consultants and/or subcontractors shall be subject to AOL's
prior written approval and Company shall provide AOL with direct contact
information for the employees of such consultants and/or subcontractors who are
responsible for performing such obligations, which employees shall be available
during business hours for consultation with AOL.
8.13 Construction; Severability. In the event that any provision of this
--------------------------
Agreement conflicts with the law under which this Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Agreement, (i) such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law, and (ii) the remaining terms, provisions,
covenants and
Exhibit B - Page 10
restrictions of this Agreement shall remain in full force and effect.
8.14 Remedies. Except where otherwise specified, the rights and remedies
--------
granted to a Party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the Party may possess at law
or in equity.
8.15 Applicable Law. This Agreement shall be interpreted, construed and
--------------
enforced in all respects in accordance with the laws of the State of New York
except for its conflicts of laws principles.
8.16 Export Controls. Both parties shall adhere to all applicable laws,
---------------
regulations and rules relating to the export of technical data and shall not
export or re-export any technical data, any products received from the other
Party or the direct product of such technical data to any proscribed country
listed in such applicable laws, regulations and rules unless properly
authorized.
8.17 Headings. The captions and headings used in this Agreement are inserted
--------
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
8.18 Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original and all of which together shall constitute one
and the same document.
Exhibit B - Page 11
EXHIBIT C
---------
Operating Standards
-------------------
1. Performance Standards. Company will operate and manage the AOL PMR
Service and the PMR Service so that they each will continue to be competitive at
all times (in terms of, among other things, features, functionality, and breadth
and depth of services) with the top * * * then-current market leaders in the
United States, in aggregate personal medical records services, as determined by
each of the following methods: (a) a cross-section of third party reviewers who
are recognized authorities in the field; and (b) with respect to all material
quality averages in such field, including each of: (i) pricing of Products; (ii)
performance in technical and functional terms, including range and speed of
features and functionality and performance; (iii) scope and selection of
Products; (iii) quality of Products; (iv) customer service and fulfillment; (v)
accuracy and timeliness of Content, including regularity and thoroughness of
updating of Content (including, in particular, time sensitive Content); and (vi)
ease of use. In addition, the PMR Service will be competitive in all material
respects with those services offered by competitors of the PMR Service,
including the performance and availability of similar sites based on similar
technology. For each of the above, Company shall not be responsible for any
failure to remain competitive under such criteria where such failure is
attributable to requirements of, or features or functionality requested by, AOL
under this Agreement (not in any event relating to scalability - it being
understood that Company is required to assure performance on a fully scalable
basis). Company will perform its management obligations hereunder in a timely
and professional manner and in accordance with the terms of this Agreement.
Company will ensure that the PMR Service is current and well-organized at all
times. Company will cause the PMR Service to operate in substantial conformance
with any specifications therefore agreed upon by the Parties for the duration of
the Term, including the initial specifications agreed to pursuant to the
Development Plan.
2. Added Features. After the initial development of the PMR Service and the
--------------
AOL PMR Service, Company will offer to add to the PMR Service and AOL PMR
Service all features and functionality, data and other Content directly related
to, or part of, a personal medical records service: (a) which is available on
the ▇▇. ▇▇▇▇ Site or any other Company Internet Site or (b) is provided by
Company to any third party for use on any other Interactive Site; and/or (c)
otherwise so that the PMR Service complies with these Operating Standards. Such
additional features and functionality and Content described will be made
available to the PMR Service and the AOL PMR Service promptly and no later than
concurrently with the release of such features and functionality by Company for
any alternative use.
3. Hosting; Capacity. Company will or be responsible for all computer
-----------------
hardware (e.g., servers, routers, network devices, switches and associated
hardware) in an amount reasonably necessary to meet anticipated traffic demands,
adequate power supply (including generator back-up) and HVAC, adequate
insurance, adequate service contracts and all necessary equipment racks, floor
space, network cabling and power distribution to support the PMR Service and the
AOL PMR Service. Company is fully responsible for the maintenance and the
day-to-day operation of the PMR Service and AOL PMR Service implementations.
Company will provide AOL with a detailed Network diagram. In addition, Company
will provide AOL with detailed information regarding separate file downloads
available from the PMR Service and the AOL PMR Service, which files are of a
large enough size that they could materially impact the AOL technical network,
if any, including file size, type and download/installation procedures.
4. Speed; Accessibility. Company will ensure that the performance and
--------------------
availability of the PMR Service and of the AOL PMR Service is each monitored on
a * * * basis. Company will use commercially reasonable efforts to ensure that:
(a) the functionality and features within the AOL PMR Service are optimized for
the client software then in use by AOL Customers; and (b) the AOL PMR Service is
designed and populated in a manner that minimizes delays when AOL Customers
attempt to access such site. At a minimum, Company will ensure that AOL PMR
Service data transfer initiates within fewer than * * * on average.
5. Performance Testing. Prior to launch of any promotions described herein,
-------------------
Company will permit AOL to conduct, in a coordinated fashion with Company,
performance and/or load testing of the AOL PMR Service until AOL is reasonably
satisfied that launch can occur, to include but not be limited to the following:
(a) AOL Compatibility Testing to ensure that the Company's product
meets the compatibility standards specified in this Exhibit;
(b) Network Bandwidth Load Testing as specified in this Exhibit;
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit C - Page 1
(c) Network/Web Site Architecture as specified in this Exhibit; and
(d) Encryption Methodology
6. Service Level Response. Company agrees to use commercial best efforts to
----------------------
provide the following service levels in response to problems with or
improvements to the PMR Service and the AOL PMR Service:
(a) For material functions of software that are or have become
substantially inoperable (e.g., inability to access website or conduct
transactions), Company will respond within * * * and provide a bug fix or
workaround within * * * after the first report of such error.
(b) For functions of the software that are impaired or otherwise fail
to operate in accordance with agreed upon specifications (e.g., search engine),
Company will provide a bug fix or workaround within * * * after the first report
of such error.
(c) For errors disabling only certain non-essential functions (e.g.,
broken Links or non-critical applications), Company will provide a bug fix or
workaround within * * * after the first report of such error.
(d) For all other errors, Company will address these requests on a
case-by-case basis as soon as reasonably feasible.
7. Monitoring. The parties will mutually develop detailed escalation
----------
procedures for Company (e.g., contact names and notification mechanisms such as
email, phone, page, etc.) and for notification of AOL by Company of any
scheduled or unscheduled downtimes. In the event of any performance malfunction
or other emergency related to the PMR Service or the AOL PMR Service, Company
will keep AOL reasonably informed regarding such malfunction or emergency and
Company's efforts to remedy the situation and will comply with AOL's reasonable
response requirements. The parties will develop in consultation with each other
a process to monitor performance and member behavior with respect to access,
capacity, security and related issues both during normal operations and during
special promotions/events. Such process will require that Company keep AOL
reasonably informed regarding the results of such monitoring.
8. Telecommunications. The Parties will agree on a plan for Company to
------------------
provide encryption methodology to secure data between the Parties' data centers.
The network between Company and the Internet will be configured such that no
single component failure will significantly impact AOL Customers. The network
between Company and the Internet will be sized such that no single line runs at
more than * * * average utilization for a 5-minute peak in a daily period.
9. Security Review. Company and AOL will work together to perform an initial
---------------
security review of, and to perform tests of, the Company system, network, and
service security in order to evaluate the security risks and provide
recommendations to Company, including periodic follow-up reviews as reasonably
required by Company or AOL. Company will use commercially reasonable best
efforts to fix any security risks or breaches of security as may be identified
by AOL's Operations Security. Specific services to be performed on behalf of
AOL's Operations Security team will be as determined by AOL in its reasonable
discretion.
10. Technical Performance. Company will perform the following technical
---------------------
obligations (and any reasonable updates thereto from time to time by AOL):
. Company will design the PMR Service to support the following
browsers and platforms: MSIE 3.0 (Windows 3.1, Win95 and 98 & Mac);
MSIE 3.0 (Mac); MSIE 4.0 (Win 3.1, Win95 & 98 and Mac); MSIE 5.0
(Win 3.1, Win 95 & 98 and Mac) Netscape 3.0 (Win 3.1, Win95 & 98 &
Mac); Netscape 4.0 (Win 3.1, Win95 & 98 & Mac); Netscape 5.0 (Win
3.1, Win 95 & 98 & Mac); AOL 3.0 - 16bit and 32bit on PC; AOL 3.0
on Mac; AOL 4.0 on PC and Mac; and make commercially reasonable
efforts to support all other AOL browsers listed at:
"▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇."
. Company will configure the server from which it serves the site to
examine the HTTP User-Agent field in order to identify the "AOL
Member-Agents" listed at: "▇▇▇▇://▇▇▇▇▇▇▇▇▇.
▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇."
. Company will design its site to support HTTP 1.0 or a backward
compatible later protocol as defined in RFC 1945 (available at
"▇▇▇▇://▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇") and to adhere to AOL's
parameters for refreshing cached information listed at
▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇.▇▇▇▇.
--------------------------------------------
11. AOL Internet Services Partner Support. AOL will provide Company with
-------------------------------------
access to the standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL makes
generally available to similarly situated web-based partners. AOL support will
not, in any case, be involved with content creation on behalf of Company or
support for
--------------------
* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit C - Page 2
any technologies, databases, software or other applications which are not
supported by AOL or are related to any Company area other than the PMR Service.
Support to be provided by AOL is contingent on Company providing to AOL demo
account information (where applicable), a detailed description of the PMR
Service' software, hardware and network architecture and access to the PMR
Service for purposes of such performance and load testing as AOL elects to
conduct. Company will remain responsible to ensure that the PMR Service
satisfies the specified access and performance requirements as outlined in this
Exhibit.
12. Subcontracting. Company may subcontract with others to services required
--------------
of Company hereunder, subject to AOL's consent, not to be unreasonably withheld
or delayed. Company will remain primarily responsible for the performance of
such third parties in conformance with the requirements of this Agreement.
Without limiting the foregoing, Company will be fully responsible for the
performance and scalability of its subcontractors' platforms, as well as the
interconnectivity between Company and those subcontractors (e.g., OFX Adapter
Layer). Company will use commercially reasonable efforts to have the PMR
Service provide AOL a mechanism for AOL to interact with such third parties on
operational and other issues relating to the PMR Service. In addition, if AOL
believes any such third party is not performing as required by this Agreement,
Company will cause the correction of such performance, or, if requested by AOL,
the termination of the relationship as it relates to the PMR Service. Company
will be responsible for negotiations and account management with Third Party
Service Providers.
13. Obligation. Except as otherwise expressly set forth in this Agreement, as
----------
between the parties Company will be responsible for all aspects of the
performance of the PMR Service, including security (such as SSL encryption) and
compliance of the PMR Service with all specifications.
14. Alternative Sites. Company will maintain the AOL PMR Service as a separate
-----------------
site from any other site so that all users are AOL PMR Users. Company will not
take or omit to take any action in its provision of the AOL PMR Service that
would direct users to, or enhance or promote the possibility that users of the
AOL PMR Service would enter or use, another service or Product competitive with
or similar to the PMR Service or any Product thereon, including any Company
Internet Site. Without limiting the foregoing, Company will not direct
promotions to AOL PMR Users or third parties that promote any other such service
or Product.
15. Problem Resolution. Company agrees to use commercially reasonable efforts
------------------
to provide the following service levels in response to problems with the PMR
Service:
. For material functions of the PMR Service that have become inoperable,
Company will use its best efforts to provide a bug fix or workaround
within * * * after Company's receipt of the first report of such
error.
. For other functions of the PMR Service that are impaired or otherwise
fail to operate in accordance with agreed upon specifications, Company
will provide a bug fix or workaround within * * * after the first
report of such error.
. For all other problems with the functionality or performance of the
PMR Service, Company will use commercially reasonable efforts to fix
such problems within * * * after the first report of such problems, or
if not reasonably practicable, as soon as reasonably feasible.
For any problem that is not, or reasonably cannot be, resolved within the above
time frames, Company shall provide AOL with prompt notice of Company's inability
to timely remedy such problem.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit C - Page 3
Exhibit D
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General Requirements for Customer Service in Connection with PMR Service
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1. Delineation of Responsibilities
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a) Company will provide front line email customer service support for AOL
Customers, identified or branded with the name of the AOL Property used
by the AOL Customer. Any customer email service requests related to the
PMR Service that are received by AOL will be routed to Company.
b) AOL will provide front line telephone customer service support for AOL
Customers, and Company will provide second line telephone service support
(i.e., telephone support to AOL's customer service personnel
2. Service Level Agreements
------------------------
Company will use commercially reasonable efforts to meet the following service
level agreements and will notify AOL if there is any substantial deviation from
these agreements by Company or any of its associated content providers as
described in Exhibit G, Section 1 a) above.
CALLS- Require * * * of calls answered in 2 minutes
EMAIL- Require * * * turn-around time on emails
HOURS- Require telephone support hours to be * * *. Weekend support will be
made available based on assessment of demand
QUALITY SUPPORT- Reasonable standards are met with results from monitoring TS
Rep calls/emails (Quality Assurance Team) and results from customer satisfaction
surveys (Voice of the Customer).
REPORTING- Need weekly and monthly reporting on calls offered/handled, ASA,
emails handled & response time, case summary & detail reports
3. Reporting and Monitoring
------------------------
Company will provide AOL access to all customer service reports and statistics
needed to allow AOL to monitor customer service levels supported by Company and
its associated content providers. This includes providing AOL with access to
Company customer service logs as well as the logs of content providers who are
also providing customer service support for the PMR Service.
AOL and Company will negotiate in good faith establishing such additional
support procedures as may be required to provide AOL Customers with first class,
competitive customer support for the PMR Service.
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* * * Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit D - Page 1