Content Distribution Agreement - Dow Jones & Co. Inc. and Medscape Inc.
CONTENT DISTRIBUTION AGREEMENT
THIS CONTENT DISTRIBUTION AGREEMENT is between DOW JONES & COMPANY, INC., a
Delaware corporation ("Dow Jones") and the undersigned corporation, partnership
or other legal entity ("Distributor").
Distributor owns and operates the electronic service defined in Exhibit A (the
"Distributor Service"). Distributor wants to obtain from Dow Jones the right to
receive the content defined in Exhibit B (the "Dow Jones Information") via the
delivery methods defined in Exhibit C (the "Delivery Methods") and make
available the Dow Jones Information to users who have access to a certain
restricted area in the Distributor Service, all on the terms and conditions set
1. GRANT OF RIGHTS; RESTRICTIONS.
(a) ACCESS TO DOW JONES INFORMATION. Dow Jones hereby grants to
Distributor, subject to the terms and conditions contained in this Agreement, a
limited, non-exclusive, nontransferable right to: (i) receive via the Delivery
Methods the Dow Jones Information; (ii) store only the most recent transmission
of the Dow Jones Information on one host computer owned and operated by
Distributor located within the United States (the "Distributor Host Computer");
and (iii) distribute and display the Dow Jones Information solely to "Registered
Users" (as defined in Section l(b)(I)), solely by means of the Distributor
Service and solely by means of the distribution methods defined in Exhibit A
(the "Authorized Distribution Methods"). No provision of this Agreement shall be
deemed to restrict or limit Dow Jones' right to market, sell, distribute,
display or otherwise provide access to the Dow Jones Information directly or
indirectly anywhere in the world, or enter into contracts, grant licenses or
make arrangements with any other party to market, sell, distribute, display or
otherwise provide access to the Dow Jones Information anywhere in the world.
Distributor shall not sublicense or otherwise transfer or assign any right
granted in Section I (a) to any other person or entity.
(b) REGISTERED USERS.
(i) "Registered User" shall mean an individual who (A)
provides at least his or her first and last name and email address to
Distributor, (B) becomes legally bound by Distributor's online member agreement
and (C) has access via the Restricted Area of the Distributor Service to any
portion of the Dow Jones Information. Distributor shall not permit any
corporation, partnership or other type of legal entity, other than an
individual, to become a Registered User and receive access to any Dow Jones
Information, without Dow Jones' prior written consent.
(ii) Distributor shall cause each Registered User to be
legally bound by its online member agreement, a copy of which is attached to
this Agreement as Exhibit D (the "Member Agreement"). Distributor shall not
amend the Member Agreement in any way that is
unfavorable to Dow Jones.
(iii) Distributor shall not post the Dow Jones Information in
any "public" or "free" area, or area accessible without a password, on the World
(c) ADDITIONAL LICENSE RESTRICTIONS.
(i) Distributor shall not distribute the Dow Jones Information
to any third party other than a Registered User or distribute the Dow Jones
Information through any means other than through the Restricted Area of the
Distributor Service and the Authorized Distribution methods. Distributor shall
not make the Dow Jones information available through third parties by
incorporating or "bundling" the Distributor Service as one information source or
service of many available through third-party front-end software or a
third-party, electronic information service or Internet site. Distributor shall
not permit Registered Users to access the Dow Jones Information via any
interactive online or electronic information service other than the Distributor
Service. Distributor shall not actively engage in or authorize making any, of
the Dow Jones Information available: (a) as part of a "co-branded" or "private
label" web site, web service, or Internet access service, or as part of a
"channel" through a software or Internet service. or similar arrangements or
relationships that offer or provide access to Dow Jones Information from or
through other web sites, web services, or Internet access services; or (b) as
part of the Distributor Service when "framed" and displaced as part of another
web site or web service.
(ii) Distributor shall not allow the Dow Jones Information to
be indexed by Web search engines or any search engine that is not integrated
into the Distributor Service.
(iii) Distributor shall not grant any site or enterprise
licenses to receive access to Dow Jones Information, without Dow Jones' prior
(iv) All rights not expressly granted to Distributor herein
shall be retained by Dow Jones.
2. DELIVERY OF DOW JONES INFORMATION.
(a) DELIVERY AND INSTALLATION. Distributor shall acquire, install,
operate and maintain at its expense all communications lines, equipment,
software, services and related technology necessary to receive the Dow Jones
Information via the Delivery Method. Distributor also shall be responsible for,
and shall pay for, any development work, software or hardware relating to the
setup and integration of the Dow Jones Information as part of the Distributor
(b) LIMITATIONS ON USE. Except as specifically provided herein,
Distributor shall not use, store, manipulate, distribute or otherwise make
available, and shall use reasonable commercial efforts to cause each third party
who obtains access to Dow Jones Information (including, without limitation, any
Registered User) not to use, store, manipulate, distribute or
otherwise make available, any Dow Jones Information without the prior written
consent of Dow Jones. Distributor shall not, and shall use reasonable commercial
efforts not to permit any other party to, edit, alter or otherwise change in any
manner the content, format or presentation of the Dow Jones Information,
including, without limitation, all copyright and proprietary rights notices.
(c) SERVICE PRESENTATION. Distributor shall insure that all Dow Jones
Information available through the Distributor Service is identified as content
from Dow Jones, including, without limitation, prominently displaying on the
Distributor Service the Dow Jones-branded logos provided to Distributor by Dow
Jones. Dow Jones shall have the right to approve the final design and
presentation of the Dow Jones Information in the Distributor Service prior to
the date the Dow Jones Information is first made commercially available in the
Distributor Service (the "Commercial Availability Date"), and shall have the
right to require reasonable changes in the presentation of the Dow Jones
Information from time to time during the term of this Agreement.
(d) QUALITY OF TRANSMISSIONS. Distributor shall use its best efforts to
insure that each transmission of Dow Jones Information (i) is of high quality,
(ii) contains an accurate and complete copy of the Dow Jones Information which
Distributor has been licensed to distribute, (iii) is free from errors or
defects, and (iv) with the exception of isolated short-term technical
difficulties, is made available to Registered Users within one hour after
receipt from Dow Jones.
(e) SPECIFICATIONS. Distributor shall adhere to the Dow Jones Composite
Feed specifications, a copy of which has been provided to Distributor, and any
updates thereof delivered to Distributor. Distributor shall not store, and shall
dispose of, any codes and content it receives from Dow Jones hereunder other
than the Dow Jones Information licensed hereunder.
3. PROPRIETARY RIGHTS.
(a) OWNERSHIP; COPYRIGHT. Distributor acknowledges and agrees that all
ownership and proprietary rights (including, without limitation, the copyrights)
to the Dow Jones Information are and shall remain the sole and exclusive
property of Dow Jones or its licensors.
(b) TRADEMARKS. Distributor acknowledges and agrees that Dow Jones or
its licensors are the sole owners of the trademarks and service marks ("marks")
used in connection with the Dow Jones Information and that nothing contained in
this Agreement grants Distributor any right to use any Dow Jones Mark, logo or
trade name, except as expressly provided in this Agreement.
(c) INFRINGEMENT. Distributor shall promptly advise Dow Jones of any
possible infringement of which Distributor becomes aware of any of Dow Jones'
Marks, copyrights, trade secrets or other proprietary rights, or any use of the
Dow Jones Information in violation of this Agreement.
4. ADVERTISING AND PROMOTION.
(a) ADVERTISING. Distributor shall cause all advertising or promotional
material that appears on the same screen display or web page as any Dow Jones
Information to comply with the then-current Dow Jones Online Advertising
Guidelines, as amended from time to time by Dow Jones in its sole discretion
(the "Ad Guidelines"). The current version of the Ad Guidelines are attached as
Exhibit F. Dow Jones will deliver at least 30 days' advance notice prior to
amending the Ad Guidelines.
(b) PROMOTIONAL MATERIALS. Distributor shall not make, publish or
distribute or cooperate with any third party in making, publishing or
distributing any public announcements, press releases, advertising, marketing
promotional or other materials (whether in print, electronically or otherwise)
("Materials") that use Dow Jones' name. logos, or Marks with regard to the
execution or performance of this Agreement, without the prior written approval
of Dow Jones. If Dow Jones has not notified Distributor of its disapproval
within 10 days after Distributor delivers samples of a particular item of
material, such Material shall be deemed approved.
(a) CALCULATION OF PAYMENTS. Beginning on the earlier of (i) the
Commercial Availability Date or (ii) 60 days after the Effective Date,
Distributor shall pay to Dow Jones the payments ("Payments") defined in Exhibit
E at the times set forth in Exhibit E.
(b) PAYMENT. Within thirty (30) days after the end of each calendar
month, Distributor shall deliver to Dow Jones a check in an amount equal to the
Payment for such period, and a report setting forth sufficient information for
Dow Jones to determine how the Payment was calculated, a breakdown of the number
of Registered Users whose principal residence is outside the U.S. and Canada,
and any other information agreed upon by both parties.
(c) TAXES. Distributor shall pay any taxes, fees and similar
governmental charges related to the execution or performance of this Agreement,
other than applicable income taxes imposed on Dow Jones related to its receipt
(d) MAINTENANCE AND INSPECTION OF RECORDS. Distributor shall maintain
complete and accurate books and records, in accordance with generally accepted
accounting practices, of all matters related to its compliance with its
obligations hereunder ("Records"). Dow Jones shall have the right itself, or
through its authorized representatives, upon at least 30 days' prior written
notice to inspect the Records of Distributor during normal business hours no
more than twice per year; provided, however, if such inspection reveals an
underpayment to Dow Jones of more than 4%, the cost of such inspection shall be
paid by Distributor. Dow Jones will keep confidential all information obtained
from such inspection. and use it solely for the purpose of verifying compliance
with the terms hereof.
(e) CURRENCY. All amounts are stated in U.S. Dollars and shall be paid
(a) BY DOW JONES. Dow Jones shall indemnify and hold harmless
Distributor against all liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Distributor that arise out of any claim asserted by
a third party that the Dow Jones Information infringes a U.S. copyright (except
for claims for which Dow Jones is entitled to indemnification under Section
6(b), in which case Dow Jones shall have no indemnification obligations with
respect to such claim), provided that Distributor, upon receipt of notice of a
claim that could result in Dow Jones indemnifying Distributor pursuant to this
subsection, gives prompt written notice to Dow Jones of the existence of such
claim and permits Dow Jones, if it so requests, either to conduct the defense of
such claim or to participate with Distributor in the defense thereof and in any
settlement negotiations relating thereto; provided, however, that Dow Jones
shall not be required to pay any settlement amount that it has not approved in
(b) BY DISTRIBUTOR. Distributor shall indemnify and hold harmless Dow
Jones against all liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Dow Jones that arise out of any claim asserted by a
third party that involves, relates to or concerns (i) the marketing, sale, or
promotion by Distributor of the Distributor Service, (ii) any use by Distributor
of any Dow Jones Information in violation of this Agreement; or (iii) any claim
alleging that the Distributor Service infringes any patent, trade secret,
copyright or other intellectual property rights of any third party; provided
that Dow Jones, upon receipt of notice of a claim that could result in
Distributor indemnifying Dow Jones pursuant to this subsection, gives prompt
written notice to Distributor of the existence of such claim and permits
Distributor, if it so requests, either to conduct the defense of such claim or
to participate with Dow Jones in the defense thereof and in any settlement
negotiations relating thereto; provided however, that Distributor shall not be
required to pay any settlement amount that it has not approved in advance.
(c) DISCLAIMER. DOW JONES PROVIDES THE DOW JONES INFORMATION "AS IS",
WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. FOR EXAMPLE, DOW JONES DOES NOT
WARRANT THE ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE DOW JONES INFORMATION, AND DOW JONES
SHALL NOT BE LIABLE TO DISTRIBUTOR OR TO ANY THIRD PARTY WITH RESPECT TO ANY
ACTUAL OR ALLEGED INACCURACY, UNTIMELINESS, INCOMPLETENESS, INADEQUACY,
UNMERCHANTABILITY OR UNFITNESS. DISTRIBUTOR SHALL NOT MAKE ANY STATEMENT
RESPECTING THE DOW JONES INFORMATION THAT IS CONTRADICTORY TO OR INCONSISTENT
WITH THE FOREGOING STATEMENTS.
7. TERM AND TERMINATION.
(a) TERM. The term of this Agreement shall commence on the Effective
on last page of this Agreement) and shall terminate on the first anniversary of
the Effective Date. Unless either party delivers to the other written notice of
nonrenewal at least 60 days prior to the end of the then-current term or renewal
term, this Agreement shall automatically be extended for additional one year
(b) UNCURED BREACH. If either party shall breach any provision
contained in this Agreement (other than a breach of Section 8, which shall be
deemed incurable) and such breach is not cured within 30 days after receiving
written notice of such breach from the other party, the party giving such notice
may then deliver a second written notice to the breaching party, terminating,
this Agreement, in which event this Agreement, and the licenses granted
hereunder. shall terminate on the date specified in such second notice.
(c) CESSATION OF SERVICE. If Dow Jones discontinues publishing or
commercial distribution of the Dow Jones Information, then either party may
cancel this Agreement upon thirty (30) days' prior written notice to the other
(d) INSOLVENCY. In the event that either party, shall be adjudged
insolvent or bankrupt, or upon the institution of any proceedings by it seeking
relief, reorganization or arrangement under any laws relating to insolvency, or
if an involuntary petition in bankruptcy is filed against such party and said
petition is not discharged within 60 days after such filing, or upon any
assignment for the benefit of its creditors, or upon the appointment of a
receiver, liquidator or trustee of any of its assets, or upon the liquidation,
dissolution or winding up of its business (an "Event of Bankruptcy"), then the
party affected by any such Event of Bankruptcy shall immediately Give notice
thereof to the other party, and the other party at its option may terminate this
Agreement, and the licenses granted hereunder, upon written notice.
(e) CHANGE IN CONTROL. If there is a direct or indirect change in the
effective voting control of Distributor, or if Distributor merges into or is
acquired by a third party, or if Distributor sells or transfers the Distributor
Service or all or substantially all of the assets of the business unit
containing the Distributor Service to a third party (a "Change in Control"),
then Distributor shall give prompt written notice thereof to Dow Jones, and Dow
Jones at its option may, within 30 days after receipt of such notice or
immediately, if no timely notice is given, terminate this Agreement immediately
by, delivering written notice. Distributor may notify, Dow Jones in writing of
any proposed Change in Control prior to its proposed effectiveness, and Dow
Jones shall, within 30 days after receipt of such notice, notify Distributor
whether Dow Jones would exercise its right to terminate this Agreement if such
proposed Change in Control were consummated.
(f) EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason, Distributor shall (i) immediately inhibit all access
to the Dow Jones Information through the Distributor Service, (ii) delete any
Dow Jones Information then stored on the Distributor Host Computer, (iii) cease
advertising and promoting the availability of the Dow Jones Information via the
Distributor Service and (iv) discontinue all uses of Dow Jones' trade
names or Marks. In addition, upon expiration or termination of this Agreement,
each party, at its expense, shall promptly return to the other all copies of the
other party's Confidential Information.
8. CONFIDENTIAL INFORMATION.
Distributor and Dow Jones understand and agree that in the performance
of this Agreement each party may have access to private or confidential
information of the other party, including, but not limited to, trade secrets,
marketing and business plans and technical information, which is designated as
confidential by the disclosing party in writing, whether by letter or by the use
of a proprietary stamp or legend, prior to or at the time it is disclosed to the
other party ("Confidential Information"). Both parties agree that the terms of
this Agreement. including without limitation its financial terms such as the
Payments and the information contained in reports, shall be deemed Confidential
Information owned by the other party. Distributor acknowledges and agrees that
the technical and functional specifications and the code and design of the
Composite Feed and all tools and utilities supplied by Dow Jones to Distributor
are Confidential Information of Dow Jones. In addition. information that is
orally disclosed to the other party shall constitute Confidential Information if
within 10 days after such disclosure the disclosing party delivers to the
receiving party a written document describing such Confidential Information and
referencing the place and date of such oral disclosure and the names of the
employees of the party to whom such disclosure was made. Each party agrees that:
(i) all Confidential Information shall remain the exclusive property of the
owner; (ii) it shall maintain, and shall use prudent methods to cause its
employees and agents to maintain, the confidentiality and secrecy of the
Confidential Information; (iii) it shall not, and shall use prudent methods to
ensure that its employees and agents do not, copy, publish, disclose to others
or use (other than pursuant to the terms hereof) the Confidential Information:
and (iv) it shall return or destroy all copies of Confidential Information upon
request of the other party. Notwithstanding the foregoing, Confidential
Information shall not include any information to the extent it (i) is or becomes
a part of the public domain through no act or omission on the part of the
receiving party, (ii) is disclosed to third parties by, the disclosing party
without restriction on such third parties, (iii) is in the receiving party's
possession, without actual or constructive knowledge of an obligation of
confidentiality with respect thereto, at or prior to the time of disclosure
under this Agreement, (iv) is disclosed to the receiving party by a third party
having no obligation of confidentiality with respect thereto, (v) is
independently developed by the receiving party without reference to the
disclosing party's Confidential Information or (vi) is released from
confidential treatment by written consent of the disclosing party.
(a) NOTICES. All notices shall be in writing, and delivered by
certified mail, return receipt requested, overnight courier service, or by
facsimile with confirmation to the address set forth on the signature page, or
other address stipulated in writing by a party. Notice shall be deemed delivered
and received on the date it is actually received.
(b) AMENDMENT, ASSIGNMENT. This Agreement may not be amended except in
a writing executed by authorized representatives of Distributor and Dow Jones.
Any such purported assignment without such prior written consent shall be void.
Neither party may assign this Agreement, or sublicense, assign or delegate any
right or duty hereunder, without the prior written consent of the other. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
(c) SURVIVAL OF CERTAIN PROVISIONS. The rights and obligations in
Sections 3(a), 3(b), 3(c), 5(b), 5(c), 5(d), 5(e), 6, 7(f), 8 and 9 shall
survive termination or expiration of this Agreement for any reason.
(d) CONSEQUENTIAL DAMAGES. Except for amounts payable pursuant to
Section 6 or resulting from a breach of Section 8, neither party shall be liable
to the other for any damages other than direct damages, including but not
limited to consequential, indirect, special, exemplary, or punitive damages, or
any lost revenues or lost profits, even if advised of the possibility of such
(e) ENTIRE AGREEMENT. This Agreement contains the final and entire
agreement of the parties on the subject matter herein and supersedes all
previous and contemporaneous verbal or written negotiations or agreements on the
subject matter herein.
(f) WAIVER. The failure of either party at any time to require
performance by the other party of any provision hereof shall not affect the full
right to require such performance at any time thereafter, nor shall the waiver
by either party of a breach of any provision hereof be taken or held to be a
waiver of any succeeding breach of such provision or as a waiver of the
(g) SEPARABILITY. If any provision of this Agreement or its application
in a particular circumstance is held to be invalid or unenforceable to any
extent, the remainder of the Agreement, or the application of such provision in
other circumstances, shall not be affected thereby, and each provision shall be
valid and enforced to the fullest extent permitted by law.
(h) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, United States, applicable
to contracts wholly made and wholly performed in the State of New York, United
States. This Agreement will not be governed by the United Nations Convention on
Contracts for the International Sale of Goods.
IN WITNESS WHEREOF, duly authorized representatives of both parties
hereto have executed this Agreement as of 1/22/99 ("Effective Date"):
MEDSCAPE, INC. DOW JONES & COMPANY, INC.
By: /s/ Paul T. Sheils By: /s/ Jessica Perry
Name: Paul T. Sheils Name: Jessica Perry
Title: Title: Director, Internet Distribution
Date: Date: 1-22-99
Address for Notices: Address for Notices:
134 West 29th Street U.S. Highway I at Ridge Road
New York, NY 1000 1-5399 South Brunswick, NJ 08852
Attn.: Executive Director,
Content and Distribution,
Dow Jones Interactive Publishing,
with a copy to the same street address,
Attn.: Legal Dept.
DESCRIPTION OF THE DISTRIBUTOR SERVICE;
AUTHORIZED DISTRIBUTION METHODS; TERRITORY
Description of Service:
The Distributor Service is a Web site owned and operated by Distributor at
www.medscape.com: . The Distributor Service provides access to news, information
and services to the medical community. Distributor plans to incorporate a "Money
and Medicine" feature into the Distributor Service ("Restricted Area"). Only
Registered Users will have access to the Restricted Area. The "Money and
Investing" feature will offer Registered Users personal investing news and
information and resources to assist medical professionals in managing their
Authorized Distribution Methods:
Distributor will only make the Dow Jones Information available through the
Restricted Area to Registered Users and solely through the World Wide Web.
Distributor shall only make available the most recent transmission of the Dow
Jones Information to Registered Users.
Distributor agrees to submit an application to Dow Jones to become a member of
The Wall Street Journal Interactive Edition Affiliates Program.
DESCRIPTION OF THE DOW JONES INFORMATION
The Dow Jones Information will include Dow Jones Online News ("DJON") stories
1. Top Health-Care News (stories coded with P/DHZ) ("Health Care
2. Business and Financial News Summary (stories coded with Pi'DBZ)
("Business and Financial Stories").
DJON is a newswire written and edited for the private investor and business
end-user. Its approximately 300 stories per business day, provide coverage of
corporate developments, and market and economic news.
The DJON stories that Dow Jones delivers to Distributor will not include stories
from The Wall Street Journal, Smart money or Barron's.
Dow Jones will deliver the Health Care Stories to Distributor every day at 12
noon and 5 p.m. via FTP or email in HTML or ASCII format on an as available
Dow Jones will deliver the Business and Financial Stories to Distributor
throughout the day via FTP or email in HTML or ASCII format on an as available
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