EXHIBIT 10.27
MediaLinx File No. 952
CO-BRANDING CONTENT AGREEMENT
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THIS AGREEMENT made as of the 30th day of June 1999
BETWEEN:
MEDIALINX INTERACTIVE, L.P.,
represented herein by its general partner
MediaLinx Interactive Inc.
a corporation incorporated under the laws
of the Province of Ontario
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
(hereinafter called "MLX", or "Party")
- and -
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
a corporation incorporated under the
laws of the state of California
Marketplace Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
(hereinafter called "HCI" or "Party")
(both MLX and HCI to be collectively referred to as the "Parties")
WHEREAS MLX owns, hosts, licenses, publishes and maintains an Internet service
in Canada that includes, but is not limited to the "Sympatico" web site which
includes inter alia, the HealthyWay web site on the World Wide Web (the "MLX
Internet Services");
AND WHEREAS HCI owns, hosts, licenses, publishes and maintains a health services
web site known as ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ on the World Wide Web (the "HCI Site);
NOW THEREFORE in consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
CERTAIN INFORMATION ON THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1. SERVICES & DEVELOPMENT
a) MLX and HCI have agreed to provide certain services and content to each
other in order to mutually develop and integrate content from the HCI Site
into the Sympatico health section, currently known as "HealthyWay", of the
Sympatico web site (the "Co-Branded Site").
b) The Parties have agreed that they will mutually approve the design of the
Co-Branded Site and that the launch date of the Co-Branded Site shall be
September 1st, 1999 unless mutually extended by the Parties as agreed to in
writing.
2. MLX'S OBLIGATIONS AND RESPONSIBILITIES
During the Term of this Agreement MLX shall:
a) continue to technically host and moderate all of the HealthyWay discussion
forums currently residing on the forums section of the Sympatico web site.
MediaLinx shall retain all right, title to and interest in the discussion
forums;
b) promote the Co-Branded Site as set out in Schedule "1" attached hereto;
c) grant to HCI, a non-exclusive and non-transferable right to use MediaLinx
images and certain content contained in the HealthyWay web site (the
"Sympatico Content") for the sole purpose of satisfying the requirements of
this Agreement. MediaLinx shall retain all right, title to and interest in
the Sympatico Content;
d) grant to HCI, to the extent that HCI requires access to MLX logos and
trademarks (collectively "MLX Marks") the use of certain MLX Marks as
necessary for the purposes of fulfilling its obligations under this
Agreement. HCI assures that the MLX marks are used in accordance with MLX's
logo usage guidelines as provided by MLX from time to time. Without
limiting the generality of the foregoing, HCI agrees:
(i) that MLX is the owner of the MLX Marks and the goodwill and
reputation associated therewith;
(ii) not to contest the validity of the MLX Marks or MLX's title
thereto;
(iii) that HCI acquires no right, title or interest in the MLX Marks, and
any and all goodwill associated with the MLX Marks enures
exclusively to the benefit of MLX;
(iv) to notify MLX promptly of any attempt by any third party to use MLX
Marks, or any variation or imitation thereof of which HCI becomes
aware;
(v) at MLX's expense, to fully co-operate with MLX and execute such
documents and at the request of MLX to do such acts and things as
may be reasonably necessary or desirable to restrain such use;
e) ensure that in the event that it enters into an electronic commerce
agreement with a third party for the sale of goods on the Co-Branded Site
that all agreements with the third parties shall ensure that such third
party shall be wholly responsible for all products and transactions that
may occur on the Co-Branded Site, that all such transactions shall comply
with all applicable Canadian and US laws and regulations, including privacy
laws and including compliance with MediaLinx's standards and guidelines,
and ensure that such third party
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provides a full indemnity to MediaLinx and HCI in respect of any and all
transactions and products that may be hosted on the Co-Branded Site;
f) ensure that in the event that user traffic to the Co-Branded Site falls
below the levels outlined in Schedule 2, that MediaLinx will use all
commercially reasonable efforts to increase promotion to the Co-Branded
Site until usage to the site increases to levels above the levels outlined
in Schedule 2; and
g) make a reasonable effort to explore the technical possibilities of sharing
with HCI the traffic on the home page of the Sympatico Health Section of
the Sympatico web site, subject to any legal and regulatory constraints.
3. HCI's OBLIGATIONS AND RESPONSIBILITIES
During the Term of this Agreement HCI shall:
a) use reasonable commercial efforts to provide industry accepted standards of
reliability of service and to make available the appropriate production
resources to build and maintain the Co-Branded Site;
b) integrate content contained in the HCI Site into the Co-Branded Site of the
Sympatico web site subject to the prior approval of MediaLinx;
c) update the "look and feel" of the Co-Branded Site upon Launch, subject to
the prior approval and consent of MediaLinx;
d) ensure that general terms and conditions on the Co-Branded Site are subject
to the prior approval of MediaLinx;
e) host, manage, update and maintain all aspects of the mutually approved Co-
Branded Site including technology, content, production, design, operations,
and customer relations save and except forums. Without limiting the
generality of the foregoing, HCI shall use all reasonable commercial
efforts to: 1) ensure that the hosting services provided in connection with
the Co-Branded Site are provided at the same standard as the hosting of the
Sympatico web site, and 2) ensure that the Co-Branded Site is available 7
days per week and 24 hours per day;
f) ensure that the level of Canadian content contained on the Co-Branded Site
is maintained at such levels as is found on the HealthyWay section of the
Sympatico web site on the Launch Date, and ensure that the level of
Canadian content is maintained in accordance with the attached Schedule
"3";
g) design the Co-Branded Site in such a manner so as to make prominent
Canadian content, Canadian context and Canadian activity, such as described
in Schedule "3";
h) make all reasonable efforts to suppress or remove all content from the HCI
Site which is to be integrated into the Co-Branded Site that is irrelevant
and inappropriate for the Canadian market and ensure that all content
contained in the Co-Branded Site continues to be relevant for the Canadian
market in accordance with Schedule "3";
i) provide MediaLinx with daily usage statistics for the Co-Branded Site in
accordance with the following format attached hereto as Schedule "4";
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j) have the option to provide and manage some discussion forum hosts referred
to in paragraph 2(a) of this Agreement;
k) ensure that it only utilizes communications related services and tools on
the Co-Branded Site which have been provided by MediaLinx's Canadian
telecommunication partners, including but not limited to webmail,
directories, address book, and ip telephony;
l) grant to MLX, to the extent that MLX requires access to HCI logos and
trademarks (collectively "HCI Marks") the use of certain HCI Marks as
necessary for the purposes of fulfilling its obligations under this
Agreement. MLX assures that the HCI Marks are used in accordance with HCI's
logo usage guidelines as provided by HCI from time to time. Without
limiting the generality of the foregoing, MLX agrees:
(i) that HCI is the owner of the HCI Marks and the goodwill and
reputation associated therewith;
(ii) not to contest the validity of the HCI Marks or HCI's title
thereto;
(iii) that MLX acquires no right, title or interest in the HCI Marks, and
any and all goodwill associated with the HCI Marks enures
exclusively to the benefit of HCI;
(iv) to notify HCI promptly of any attempt by any third party to use the
HCI marks, or any variation or imitation thereof of which MLX
becomes aware;
(v) at HCI's expense, to fully co-operate with HCI and execute such
documents and at the request of HCI to do such acts and things as
may be reasonably necessary or desirable to restrain such use; and
m) ensure that in the event that it enters into an electronic commerce
agreement with a third party for the sale of goods on the Co-Branded Site
that all agreements with the third parties shall ensure that such third
party shall be wholly responsible for all products and transactions that
may occur on the Co-Branded Site, that all such transactions shall comply
with all applicable Canadian and US laws and regulations, including privacy
laws and including compliance with MediaLinx's standards and guidelines,
and ensure that such third party provides a full indemnity to MediaLinx and
HCI in respect of any and all transactions and products that may be hosted
on the Co-Branded Site.
4. ADVERTISING
Subject to paragraph 6, MediaLinx shall be entitled to sell advertising and
sponsorships on all pages of the Co-Branded Site to Canadian advertisers (for
the purposes of this Agreement "Canadian advertisers" shall be advertisers with
substantial places of business in Canada) and HCI shall be entitled to sell
advertising and sponsorships on all pages of the Co-Branded Site to US
advertisers (for the purposes of this Agreement, US advertisers shall be
advertisers with substantial places of business in the United States). All
sponsorship and advertising package deals for the Co-Branded Site will be
mutually agreed upon by the parties and shall abide by MediaLinx's and HCI's
standard advertising agreement and Canadian and U.S. advertising regulations and
standards. Any excess inventory that has not been sold is available to be sold
by either party. Neither party shall permit advertising on the Co-Branded Site
from an entity which is a competitor to the other party. For the purposes of
this Agreement, a "competitor" to MediaLinx shall be an Internet portal web site
and/or an internet service provider. For the purposes of this Agreement, a
"competitor" to HCI shall be a consumer health based web site. The parties shall
define a plan in writing prior to the Launch setting out how the Parties shall
work together to jointly sell advertising, serve the advertising and track the
advertising inventory on the Co-Branded Site.
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5. E-COMMERCE
Subject to paragraph 6, MediaLinx and HCI shall be entitled to negotiate e-
commerce relationships which shall reside on the Co-Branded Site. In addition to
the terms and conditions detailed in paragraphs 2(e) and 3(m), both parties
acknowledge and agree that any e-Commerce offering must be able to offer pricing
in Canadian dollars and provide shipping across Canada, unless otherwise
mutually agreed to in writing. In addition, all products offered through the Co-
Branded Site must abide by all Canadian laws and regulations. The cost of
integrating any e-Commerce relationship will be borne by the entity that brought
the relationship. Any and all marketing activities and design of an e-Commerce
system shall be approved by both parties.
6. FINANCIALS
(a) HCI shall pay MLX a guaranteed fixed sum of [*] US per annum during the
Initial Term of this Agreement to be paid out as a monthly payment of [*]
US (the "Monthly Payment"). This Monthly Payment shall be due by the 10th
day of each month;
(b) HCI shall be entitled to all net revenue generated from advertising and e-
commerce transactions generated by Canadian companies that may take place
on the Co-Branded Site up to and including [*] US in any given year.
Thereafter, any net revenues exceeding [*] US shall be shared fifty-fifty
between the parties (50% MediaLinx--50% HCI). HCI shall be entitled to all
proceeds generated from US companies on the Co-Branded Site. "Net revenue"
is defined as revenue less: 1) third party expenses directly related to the
acquisition of the revenue; for example, advertising broker commissions and
advertising management services, and 2) internally paid commissions for
selling the advertisement and/or sponsorship;
(c) Both Parties shall keep true and accurate books and records of all revenue
generated as a result of the Co-Branded Site. Either Party shall have the
right from time to time to audit and make extracts of the books and records
of the other, insofar as said books or records pertain to the terms of this
Agreement. Any such audit shall take place upon not less than seven (7)
days advance written notice, during normal business hours of normal
business days and at reasonable intervals. Any such audit shall be at the
requesting Party's expense, unless the audit determines that the other
party has underpaid by 10% or more. In the event that the calculation of
payments herein is determined by a computer-based system, then the "books
and records" shall include, without limitation, the machine-sensible data
(e.g. punch cards, magnetic tapes, discs; and
(d) Both Parties shall provide the other with quarterly accounting reports as
necessary. The quarterly reporting periods end September 30th and
December 31st, 1999, March 31st, 2000, and June 30th, 2000.
Applicable remittances and accounting reports will follow under separate
cover within sixty (60) days of the end of each quarter.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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7. CUSTOMER INFORMATION
Any and all customer data that is collected from the Co-Branded Site shall be
collected and used in accordance with Canadian federal and provincial laws and
U.S. Federal and State laws and both MediaLinx and HCI privacy guidelines and
MediaLinx and HCI shall each own an undivided interest in such data. MediaLinx
will not have access to the HCI Personal Health Records (being the longitudinal
repository of personal health information about users of the Co-Branded Site)
during or after the Term of this Agreement. During the Term of this Agreement
and for a period of six (6) months thereafter, MediaLinx shall not use or
publicly disclose the data collected from users of the Co-Branded Site if such
use is for the purpose of providing health information, advertisements, or
products that compete with those that reside on the Co-Branded Site. In other
instances, MediaLinx shall be entitled to use or publicly disclose the data
collected subject to privacy guidelines noted above.
In addition to the foregoing, HCI shall ensure that the Co-Branded Site is
integrated into the Sympatico site-wide registry in order for users to have a
single login access for all ▇▇▇▇▇▇▇▇▇.▇▇ and Sympatico co-branded web sites.
8. PAGE VIEWS
Both MediaLinx and HCI shall be entitled to count the page views on the Co-
Branded Site. In the event that it becomes necessary to have only one party
count the number of page views on the Co-Branded Site, due to third party
reporting, regulatory and/or legal requirements, HCI shall be entitled to count
one hundred percent (100%) of the content page views of the Co-Branded Site and
MLX shall be entitled to count one hundred percent (100%) of the HealthyWay
discussion forum page views and one hundred percent (100%) of the page views on
the Sympatico Health home page.
9. EXCLUSIVITY
During the Term of the Agreement, and subject to the following requirements
respecting Canadian content levels as set out in paragraphs 3(f), (g) and (h),
HCI shall be the exclusive health content partner in the health section of the
Sympatico web site, provided however, that nothing contained herein shall
prevent MediaLinx from entering into an agreement with other parties for: i) a
health based web directory; or ii) other health related content whose content
does not compete with the content contained on the Co-Branded Site; which in no
event shall receive no more than one fifth (1/5th) of the promotion and which
shall constitute no more than one fifth (1/5th) of the total health related
content which resides on the home page of the Sympatico Health section. In the
event that MediaLinx obtains a web guide from a third party, MediaLinx and HCI
shall discuss how to present both web guides to the user, and make best effort
to agree to the kind of experience that the user shall have when utilizing the
new web guide. If, at any time during the Term of this Agreement, HCI fails to
meet the content requirements set out in paragraphs 3(f), (g) and (h), HCI shall
no longer be entitled to be the exclusive health content partner in the health
section of the Sympatico web site. HCI shall not either directly or indirectly
license or deliver content to or carry on or be engaged with any other Canadian
portal web site, being a Web site which aggregates and markets a variety of
content directed to multiple communities of interest and which offers products,
tools and services to a broad base of Canadian end users.
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10. BRANDING & COMMUNICATIONS
During the first six (6) months from the Launch date, the primary branding for
the Co-Branded Site shall remain HealthyWay. In addition to the foregoing and
subject to mutual design approval, a "Powered By HealthCentral" or such other
appropriate tag line shall appear on the Co-Branded Site and shall be
approximately 80% of the font size of the HealthyWay title and will be close to
the HealthyWay brand. Thereafter, the HealthyWay and Health Central trademarks
shall be co-branded in a mutually agreed upon method. The URL for the Co-Branded
Site shall remain ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇. A separate redirect URL may be set up
for the Co-Branded Site, e.g. ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇.
All electronic communications to the users of the Co-Branded Site shall be
jointly developed, co-branded with each party's respective marks and shall be
mutually agreed upon.
11. TERM & TERMINATION
11.1 Term
The term of this Agreement shall be for a period of two (2) years (the "Term").
The effective date of the start of the Term will be from the Launch Date.
11.2 Termination
(a) Either Party may terminate this Agreement upon 30 days prior written notice
to the other Party if 1) such other Party breaches any material term of
this Agreement, unless such breach is cured within 30 days; or 2) if any of
the terms of this Agreement that require mutual approval are not mutually
agreed to;
(b) This Agreement may be terminated by a Party immediately, without notice:
(i) upon the institution by or against the other Party of insolvency,
receivership, or bankruptcy proceedings or any other proceedings
for the settlement of the other Party's debts, if such proceedings
are not dismissed within sixty (60) days;
(ii) upon the other Party making an assignment for the benefit of
creditors; or
(iii) upon the other Party's dissolution;
(c) Either party may terminate this Agreement upon 30 days written notice if
either Party's corporate structure has undergone a material ownership
change such that its corporate interests are then in conflict with the
corporate interests of the other Party; and
(d) Upon termination or expiration of this Agreement for any reason:
(i) the Parties shall immediately cease using the Marks of the other
Party;
(ii) the Parties shall immediately return to each other all property of
the other and cease using or distributing all advertising or
promotional materials, if any, containing references to the other
Party or the other Party's product;
(iii) the Parties shall remove all special links made pursuant to this
Agreement from their respective products of the other Party; and
(iv) each Party shall pay to the other Party all outstanding amounts
which have accrued and are properly owing, including without
limitation, any New Account customer commission payments or net
advertising revenue owed outstanding together with any appropriate
final reports.
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11.3 The exercise of a right of termination or other right or remedy in
connection with this Agreement shall be without prejudice to any other
right or remedy to which the terminating party may be entitled under this
Agreement or applicable law.
12. REPRESENTATIONS & WARRANTIES
(a) MLX's Representations and Warranties.
MLX represents and warrants that:
(i) it has full right, power and authority to enter into and be bound by the
terms and conditions of this Agreement and to perform its obligations
under this Agreement, without the approval or consent of any other
party;
(ii) it has sufficient right, title and interest in and to the rights granted
to HCI pursuant to this Agreement to enter and perform this Agreement
and to enable HCI to perform under this Agreement;
(iii) it owns all intellectual property in and to the MLX Marks and the
Sympatico Content, including but not limited to any and all creative
advertisement content, or has obtained all necessary licenses,
clearances, assignments and waivers in respect of any and all
intellectual property used in the Sympatico Content, including without
limitation waivers of moral rights necessary to publish, license and
distribute world-wide;
(iv) the use, reproduction, distribution or transmission of the Sympatico
Content will not violate any laws including criminal laws, commercial
laws, or any rights of any third parties including, but not limited to
such violations as infringement or misappropriation of copyright,
patent, trademark, trade defamation, invasion of privacy or rights of
celebrity, violation of any anti-discrimination law or regulation, or
any other right of any person or entity;
(v) it has all necessary skills and materials necessary to provide its
contributions to the Co-Branded Site as contemplated by this Agreement.
MLX shall perform the services described herein in a timely fashion with
all due skill, competence and diligence and the quality of the Co-
Branded Site shall meet both HCI's and MLX's standards of high quality
and excellence;
(vi) that the information contained in the MLX marks and the MLX content is
accurate, does not contain any material that is libelous, obscene,
misleading or otherwise harmful.
(b) HCI's Representations and Warranties.
HCI represents and warrants that:
(i) it has full right, power and authority to enter into and be bound by the
terms and conditions of this Agreement and to perform its obligations
under this Agreement, without the approval or consent of any other
party;
(ii) it has sufficient right, title and interest in and to the rights granted
to MLX pursuant to this Agreement to enter and perform this Agreement
and to enable MLX to perform under this Agreement;
(iii) it owns all intellectual property in and to the HCI Marks and all
content HCI contributes to the Co-Branded Site (the "HCI Content")
including but not limited to any and all creative
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advertisement content, or has obtained all necessary licenses,
clearances, assignments and waivers in respect of any and all
intellectual property used in the HCI Marks and the HCI Content,
including without limitation waivers of moral rights necessary to
publish, license and distribute world-wide;
(iv) the use, reproduction, distribution or transmission of the HCI Marks and
HCI Content will not violate any laws including criminal laws,
commercial laws, or any rights of any third parties including, but not
limited to such violations as infringement or misappropriation of
copyright, patent, trademark, trade defamation, invasion of privacy or
rights of celebrity, violation of any anti-discrimination law or
regulation, or any other right of any person or entity;
(v) the Co-Branded Site will function, operate and perform in all material
respects in accordance with the requirements described or incorporated
in the Agreement;
(vi) it has all necessary skills and materials necessary to provide its
contributions to the Co-Branded Site as contemplated by this Agreement.
HCI shall perform the services described herein in a timely fashion with
all due skill, competence and diligence and the quality of the Co-
Branded Site shall meet both HCI's and MLX's standards of high quality
and excellence;
(vii) that no advertisement submitted to MLX hereunder shall make use of any
subliminal technique and holds MLX and its affiliated and related
companies harmless against any loss or damage arising from the storage
and/or use of any and all advertising. HCI warrants that any and all
advertising that it submits complies with advertising standards in
Canada, including those of MLX and that the use, reproduction,
distribution, or transmission of such advertising will not violate any
criminal laws, commercial laws or any rights of any third parties,
including, but not limited to, such violations as infringement or
misappropriation of copyright, patent, trademark, trade secret, music,
image, video/full motion video or other proprietary or property right,
false advertising, unfair competition, defamation, invasion of privacy
or rights of celebrity, property right, false advertising, unfair
competition, defamation, invasion of privacy or rights of celebrity,
violation of any anti-discrimination law or regulation, or any other
right of any person or entity;
(viii) that the Co-Branded Site will function, operate and perform in all
material respects in accordance with the requirements described in the
Agreement; and
(vix) that the information contained in the HCI Marks and the HCI Content is
accurate, does not contain any material that is libelous, obscene,
misleading or otherwise harmful.
13. NO ADDITIONAL WARRANTIES
a) Except as specifically provided herein or as agreed to in writing by the
Parties, the services provided under this Agreement are not guaranteed and
are provided "as is" and MLX gives no representations, warranties or
conditions of any kind, express or implied, including without limitation
warranties as to insertion, display or loading of any advertisement,
sponsorship or integrated branded search engine uninterrupted or error free
operation of the Sympatico Web Site, any advertisement, sponsorship,
integrated branded search engine or link, merchantability, quality or
fitness for a particular purpose and those arising by statute or otherwise,
or from a course of dealing or usage of trade; and
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b) Except as specifically provided herein or as agreed to in writing by the
parties: 1) the services provided under this Agreement are not guaranteed
and are provided "as is"; and 2) HCI gives no representations, warranties
or conditions of any kind, express or implied, including without limitation
warranties as to: insertion, display or loading of any advertisement,
sponsorship or integrated branded search engine uninterrupted or error free
operation of the co-branded Web Site, any advertisement, sponsorship,
integrated branded search engine or link, merchantability, quality or
fitness for a particular purpose and those arising by statute or otherwise,
or from a course of dealing or usage of trade.
14. INDEMNIFICATION
(a) By MLX: MLX agrees to indemnify and hold harmless HCI and its employees,
representatives, agents and affiliates from any and all liability, loss,
claims, damages or causes of action (each a "Claim"), including reasonable
legal fees and expenses that may be incurred by, arising out of or relating
to any claim that the MLX Marks or Sympatico Content or any MLX developed
advertising infringes in any manner any copyright, patent, trademark, trade
secret or any other intellectual property right of any third party;
(b) By HCI: HCI agrees to indemnify and hold harmless MLX and its employees,
representatives, agents and affiliates from any Claim including reasonable
legal fees and expenses that may be incurred by, arising out of or relating
to any third party claim that the HCI Marks or HCI Content or any HCI
developed advertising infringes in any manner any copyright, patent,
trademark, trade secret or any other intellectual property right of any
third party; and
(c) Procedure: All indemnification obligations under Section 14, shall be
subject to the following requirements:
(i) the indemnified party shall provide the indemnifying party with
prompt written notice of any Claim;
(ii) the indemnified party shall permit the indemnifying party to assume
and control the defense of any action upon the indemnifying party's
written acknowledgment of the obligation to indemnify; and
(iii) the indemnified party shall not enter into any settlement or
compromise of any Claim without the indemnifying party's prior
written consent, which shall not be unreasonably withheld.
In addition, the indemnified party may, at its own expense, participate in
its defense of any Claim. In the event that the indemnifying party assumes
the defense of any such claim, the indemnifying party shall have no
liability for legal fees and costs incurred by the indemnified party.
15. LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO THE INDEMNITY OBLIGATIONS IN SECTION 14, THE
CONFIDENTIALITY OBLIGATIONS UNDER SECTION 16, AND THE YEAR 2000 COMPLIANCE
OBLIGATIONS UNDER SECTION 20, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE,
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STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST
BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
16. CONFIDENTIALITY
Each Party shall keep confidential any information, data and reports obtained in
connection with this Agreement, unless such information has been rightfully
obtained from a third party or is generally available to the public, or as must
be disclosed by law. Upon termination of this Agreement, each of the parties
(the "Receiving Party") shall return to the other party (the "Disclosing Party")
any records or copies thereof which it may have obtained from the Disclosing
Party in connection with its review of the Disclosing Party's business, other
than information otherwise rightfully obtained by Receiving Party, acting in
good faith, from someone other than the Disclosing Party or generally available
to the public. Each party shall hold the terms and provisions of this Agreement
confidential and shall not disclose its terms to any person except to its
management. Notwithstanding the foregoing, this Agreement and the LOI is subject
to the terms and conditions of the Confidentiality and Non-Disclosure Agreement
signed between the Parties dated May 3rd, 1999.
17. NO PUBLIC NOTICE
No public announcement of the proposed transaction will be made by either Party
unless the timing and content have been agreed upon in advance by both parties,
except as may otherwise be required by law. It is understood though that
MediaLinx may discuss this arrangement with its Sympatico Internet service
providers and affiliates to the extent necessary to meet the proposed time
lines.
18. COSTS
Unless agreed to otherwise, each party will pay for its own costs and expenses
in connection with this Agreement and the proposed activities contemplated
herein, without limitation, legal fees, brokers, accountants and other
professional advisors.
19. INDEPENDENT CONTRACTORS
It is the intention of MLX and HCI that MLX and HCI are, and shall be deemed to
be, independent contractors with respect to the subject matter of this
Agreement, and nothing contained in this Agreement shall be deemed or construed
in any manner whatsoever as creating any partnership, joint venture, employment,
agency, fiduciary or other similar relationship between MLX and HCI.
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20. YEAR 2000 COMPLIANCE
Both MLX and HCI represent and warrant that their contributions to the Co-
Branded Site are designed to be used prior to, during, and after the calendar
year 2000 AD and will operate during each such time period without error
relating to date data, specifically including any error relating to, or the
product of, date data which represents or references different centuries or more
than a century. Without limiting the generality of the foregoing, the Co-Branded
Site: (i) will not abnormally end or provide invalid or incorrect results as a
result of date data, specifically including date data which represents or
references different centuries or more than one century; (ii) has been designed
to ensure year 2000 compatibility, including, but not limited to, date data
century recognition, calculations which accommodate same century and multi-
century formulas and date values, and date data interface values that reflect
the century; and (iii) includes "Year 2000 Capabilities". For the purposes of
this Agreement, "Year 2000 Capabilities" means the Co-Branded Site (i) will
manage, calculate, sequence, compare and manipulate data involving dates,
including single century formulas and multi-century formulas, including leap
years and will not cause an abnormally ending scenario within the application or
generate incorrect values or invalid results involving such dates; (ii) provides
that all date-related user interface functionalities and data fields include the
indication of century; and (iii) provides that all date-related data interface
functionalities include the indication of century.
While HCI asserts that its code and scripts will execute properly, as described
above, and that HCI uses third party software that specifies Y2K compliance, we
can not guarantee that all third party software will perform as specified by the
manufacturer. Should a third party product fail to meet its Y2K compliance
policy, we will work with the vendor to remedy the problem in a timely fashion.
HCI will ensure that it complies with any third party recommendations that are
necessary for Y2K compliance.
21. GOVERNING LAW
This Agreement shall be governed by and interpreted and enforced in accordance
with the laws of the Province of Ontario and the Parties agree to abide by the
jurisdiction of the Courts of Ontario.
22. ENTIRE AGREEMENT
This Agreement, together with any and all attached exhibits and/or schedules,
represents the entire agreement between MLX and HCI with respect to the subject
matter herein and shall supercede all prior agreements, communications and
understanding of the Parties, oral and/or written.
23. LEGAL FEES
The prevailing Party in any legal action brought by one Party against the other
and arising out of this Agreement shall be entitled, in addition to any other
rights and remedies it may have, to reimbursement for its expenses, including
court and arbitration costs, as well as reasonable legal fees.
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24. SUCCESSORS AND ASSIGNS
Except as provided in this Section, neither Party may assign its rights or
obligations under this Agreement without the prior written consent of the other
Party, which shall not be unreasonably withheld. Notwithstanding the foregoing,
either party shall be permitted to assign this Agreement and any of its rights
and obligations hereunder to an affiliate or related company or to a purchaser
of all or substantially all of its Internet business, without obtaining the
prior written consent of the other party.
25. FORCE MAJEURE
Neither Party shall be liable for failure to perform or delay in performing any
obligation under this Agreement if such failure or delay is due to fire, flood,
earthquake, strike, war (declared or undeclared), embargo, blockade, legal
prohibition, governmental action, riot, insurrection, damage, destruction or any
other similar cause beyond the control of such Party.
26. NOTICES
All notices, requests, consents and other communications which are required or
permitted hereunder shall be in writing and shall be deemed given (a) when
delivered in person at the time of such delivery or by telecopy with confirmed
receipt of transmission at the date and time indicated on such receipt or (b)
when received if given by an internationally recognized express courier service
to the address specified below. Notice of change of address shall be given in
the same manner as other communications.
If to HCI: If to MediaLinx:
---------- ----------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Inc. MediaLinx Interactive, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
94710 Attn: Director of Content
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to Legal Department:
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
27. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which, taken together, shall constitute one and
the same instrument.
28. HEADINGS
The section and article headings contained in this Agreement are included for
convenience only, and shall not limit or otherwise affect the terms of this
Agreement.
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Schedule "1"
MLX will run [*] advertising banners, promoting the Co-Branded Site each
month, which shall run throughout the ▇▇▇▇▇▇▇▇▇.▇▇ Site.
MLX will promote the Co-Branded Site on the ▇▇▇▇▇▇▇▇▇.▇▇ homepage in a frequent
and timely fashion.
MLX will promote the Sympatico Health Site through ▇▇▇▇▇▇▇▇▇.▇▇ house
advertising, from time to time.
MLX will provide contextual integration of Health content into other areas of
▇▇▇▇▇▇▇▇▇.▇▇, as appropriate.
MLX will provide a persistent link, in fold, from the Sympatico Health Site home
page to the Co-Branded Site.
MLX will provide a link to the Sympatico Health Site home page from the
▇▇▇▇▇▇▇▇▇.▇▇ home page.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Schedule "2"
MLX will use all commercially reasonable efforts to maintain the user traffic at
a monthly minimum of:
. [*] page views three (3) months after the launch of the Co-Branded Site;
. [*] page views six (6) months after the launch of the Co-Branded Site; and
. [*] page views twelve (12) months after the launch of the Co-Branded Site.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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Schedule "3"
HCI shall ensure that Canadian content and context is promoted and maintained
within the Co-Branded Site in accordance with the following:
Ensure that Canadian spelling is used throughout the site where possible.
Ensure that non-relevant or inappropriate information is either removed or put
into context for a Canadian user.
Ensure that Canadian health information sourced from Canadian content providers
is added to the site, where possible.
Issues related to access to services:
Canadian public health care system
There is little notion of "managed care" in Canada
Inclusion of Canadian "self help" resources
Health related law & policy:
Federal and provincial government funding of healthcare and the existence of a
social safety net in Canada
Allowed distribution of drugs
Different roles related to pharmaceutical advertising
Societal context of Canada:
Canada's multicultural make up (e.g. Less Hispanics, more Asians)
Likelihood of different health risk factors for Canadians
Different behaviour of the Canadian population (e.g. travelling south for the
winter, "snowbirds")
Different health events e.g. "Heart month"
Technicalities:
Differences in drug names
Canadian currency
Metric system for measurement
The Canadian voice:
Important to highlight Canadian health experts e.g. Canadian health
professionals, researchers, companies
"local" events e.g. hospital closures, labour issues
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Schedule "4"
HCI will provide MLX with usage statistics in the following 2 formats:
1) access to real time online statistics through a web browser including a
number of preprogrammed usage reports, and
2) a format mutually agreed to by HCI and MLX
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