DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is entered into by and between
Infoseek Corporation, a corporation duly organized under the laws of California,
with its principal place of business at 1399 Moffett Park Drive, Sunnyvale,
California 94089-1134, hereinafter referred to as "Infoseek", and DRKOOP.COM,
INC., a corporation organized under the laws of the State of Delaware with its
principal place of business at 8920 BUSINESS PARK DRIVE, LONGHORN SUITE, AUSTIN,
TEXAS 78759, hereinafter referred to as "Content Partner" or "DRKOOP.COM". ABC
News/Starwave Partners (which operates the ABCNews.com U.S. Internet site
referred to herein a "ABCNews.com") and ESPN/Starwave Partners (also referred to
as "EIV") (which operates the ESPN.com U.S. Internet site referred to herein as
"ESPN.com") are parties to this Agreement only with respect to those provisions
herein that specifically reference and apply to "ABCNews.com", "ESPN.com" and/or
GO Partners. ABC News/Starwave Partners and ESPN/Starwave Partners are
collectively referred to herein as the "GO Partners."
WITNESSETH:
WHEREAS, Infoseek hosts and maintains a U.S. version of the Internet service
known as GO Network (the "Service" or "GO Network") located at
www.infoseek.go.com, www.go.com and/or such successor site(s) as may be
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designated by Infoseek through which information organized in applicable
subject-related centers ("the Centers") is provided to its users ("Users"); the
GO Network currently includes the following Infoseek Affiliate Internet sites:
www.abcnews.com and www.espn.com; and
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WHEREAS, Content Partner operates an Internet site located at www.drkoop.com
(the "DrKoop.com Site" ) and is the provider of information described in
Appendix A hereto ("DKC Health Content"), and e-commerce related content
described in Appendix G (the "Commerce Content") which Content Partner and
Infoseek desire to make available to Users. Content Partner and Infoseek have
been in discussions concerning this Agreement since February, 1999. DKC Health
Content and Commerce Content provided by Content Partner may be collectively
referred to herein as "Content Partner Content".
NOW, THEREFORE, for good and valuable consideration, and in consideration of the
mutual covenants and conditions herein set forth, and with the intent to be
legally bound thereby, Infoseek and Content Partner hereby agree as follows:
1. LICENSE; OBLIGATIONS OF CONTENT PARTNER; OBLIGATIONS OF INFOSEEK
1.1 Grant. Subject to the terms and conditions of this Agreement,
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Content Partner hereby grants to Infoseek and the GO Partners,
a fully-paid, worldwide, non-exclusive right and license to
use, reproduce, adapt, incorporate, integrate, distribute and
otherwise exploit the Content Partner Content solely on the
Service and to use Content Partner's trade names, trade dress,
and trademarks as expressly permitted herein and as reasonably
necessary with respect to the display and use of the Content
Partner Content on the Service. Infoseek and its subsidiaries
and Affiliates may use Content Partner Content other than on
the Service, provided that Infoseek obtains Content Partner's
prior consent for such use on a case-by-case basis. As used
herein, "Affiliate" means with respect to a party to this
Agreement, any entity that directly or indirectly controls, or
is under common control with, or is controlled by, such party;
"control" (including, with its correlative meanings,
"controlled
______________________
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 * * *. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
1
by and "under common control with") means possession, directly
or indirectly, of the power to direct or cause the direction
of management or policies (whether through ownership of
securities or partnership or other ownership interests, by
contract or otherwise). The terms set forth in the Appendices
attached hereto shall also apply to this Agreement. The
Content Partner Content shall be hosted by the parties as
described herein and in the Appendices.
1.2 Page Views. Infoseek shall guarantee, over the three year term
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of this Agreement, a minimum total number of Page Views on GO
Network in accordance with the following:
* * *
If, on the second anniversary of the Effective Date, Infoseek
has not satisfied the minimum annual Page View requirements
set forth above for Years 1 and 2 of this Agreement, * * *
Infoseek shall have * * * days to correct the shortfall by
delivering additional Page Views to Content Partner (a "make
good" period). If such shortfall has not been corrected at the
expiration of such ninety (90) day make good period, Infoseek
shall refund to Content Partner the fees paid by Content
Partner for Page Views not delivered. Notwithstanding the
foregoing, if Infoseek subsequently delivers Page Views in
excess of those guaranteed above ("Excess Page Views") * * *.
Notwithstanding the foregoing, if Infoseek delivers * * *.
As used herein, a "Page View" refers to each instance in which
an HTML page is displayed to a User, which page contains any
DKC Health Content or DrKoop.com branding (including, without
limitation, banners, buttons or links), which shall, at
minimum, contain one direct link to the GO Network-Wrapped
Pages.
* * *
As used herein "Impression" means an advertisement image that
is viewable by a person accessing a web page on the Service.
Impressions may include banners, buttons, interstitials, and
any other web-based advertising that becomes generally
available to advertisers on GO Network.
1.3 Hosting by Infoseek. DKC Health Content to be hosted on
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Infoseek's servers will be available to Users through certain
web pages located at www.drkoop.go.com. Infoseek shall host
all DKC Health Content that appears at Levels 1-3 within the
Health Center on the Service. As used herein, "Level" means a
page location within the Service as further described in
Appendix B. Level 1 is the home page of the Health Center;
Level 2 is a navigation page, and Level 3 is the first page
where full text DKC Health Content appears. GO Partners will
host any DKC Health Content on their sites.
1.4 Hosting by Dr.Koop. The portion of the DKC Health Content not
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hosted on Infoseek's servers (Level 4 content) will be hosted
on Content Partner's servers and accessed by Users from
Content Partner/Infoseek co-branded Web pages located at
http://go.drkoop. com ("GO Network-Wrapped Pages") pursuant to
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the specifications in Appendix B hereto. Content Partner shall
cooperate and assist Infoseek by promptly answering questions
and complaints regarding any Content Partner Content. Each
party shall promptly inform the other party of any event or
circumstance, and provide all information pertaining to such
event or circumstance, related or arising from this Agreement
which could lead to a claim or
_______________________
* * * 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.
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demand against the other party by any third party. All DKC
Health Content shall be provided to Users free of charge;
provided, however, that GO Partners may charge Users for ISP
services.
1.5 Delivery of Content. Content Partner will deliver to Infoseek
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the Infoseek-hosted Content Partner Content in a mutually
agreeable format, electronically via modem or Internet access
(e.g. Internet ftp or Internet e-mail). Content Partner agrees
to certify that all deliveries hereunder were made
electronically. Content Partner will make updates to the
Content Partner Content available to Infoseek and Infoseek
shall update the Infoseek-hosted Content Partner Content on a
regular mutually agreed upon basis. Infoseek shall have the
right, but not the obligation, to remove, or direct Content
Partner to remove any Content Partner Content, which Infoseek,
in its reasonable discretion, determines to be offensive, in
poor taste, or otherwise objectionable.
1.6 Exclusivity. Subject to the exceptions set forth below, during
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the term of this Agreement, Content Provider shall be the
exclusive provider of Health Content on the Center of GO
Network * * *. The Health Center shall be the only Center
within the Service devoted primarily to comprehensive health
and medical information. In addition, during the term of this
Agreement, Infoseek shall not enter into any agreements with
any third party, other than Content Partner, to sell or offer
within the Health Center (i) Health Insurance or (ii) clinical
trial or clinical research opportunities of any kind. As used
herein, Health Insurance is limited to insurance policies
written to cover medical, dental and vision bills and expenses
exclusively. * * *
1. * * *
2. Infoseek's preexisting contracts with third parties for
health related content; provided, however, Infoseek hereby
agrees it shall not renew any such existing third party
contracts and represents that such contracts shall expire on
or before September 15, 1999. The foregoing representation
concerning renewals and expirations shall not apply to third
party agreements relating to GO Shop, as referenced in
Appendix G, Section 2.1
3. Health Content provided to Infoseek by news or data feeds
or Freelancers;
4. Any content created internally by Infoseek or a GO Partner
or any of their Affiliates;
5. * * *
6. * * *
7. Infoseek standard advertising banner business and Spotlight
business * * *.
8. News and Editorial Content of any kind. As used herein
"Editorial Content" means opinion pieces related to current
events and magazine articles that may relate to health; * * *.
As used herein, "Freelancers" shall mean independent parties
who receive a fee for their services and who are not (to
Infoseek's or a GO Partner's knowledge) employed by any * * *.
_______________________
* * * 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.
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DrKoop.com acknowledges that the following shall not
constitute a breach of this Section 1.6: (a) the Infoseek
search technology may search the sites * * *; (b) Infoseek may
provide search-related products that may include results from
such * * *, health insurance information or products, or
clinical trial information; and (c) such * * * may be in the
Service Directory. As used herein, Service Directory means the
general directory on GO Network which is currently accessed
through the tab "Web Directory."
The placement and positioning of DKC Health Content within the
Health Center shall be consistent with the mock up pages
attached hereto as Appendix B. Each page of the Health Center
will include separate links to DKC Health Content relating to
pharmacy products and health insurance. Although Infoseek
reserves the right to revise the look and feel of the Health
Center and the display of DKC Health Content within the Health
Center (except as expressly set forth herein), the relative
prominence of such DKC Health Content within the Health Center
shall be consistent with the mock up pages attached hereto as
Appendix B.
In the event of a breach of this Section 1.6 by Infoseek (an
"Exclusivity Breach"), Content Partner's sole and exclusive
remedy shall be to request removal of the content that
violates this Section 1.6, and Infoseek shall comply with such
request within five (5) business days. * * *
1.7 Access. The Health Center shall be accessible by Users through
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no more than one hyperlink from the GO home page. Further,
Infoseek shall maintain the Health Center, in a manner
consistent with its development and operation of the other
Centers within GO Network.
1.8 Commerce Content. Content Partner will provide Commerce
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Content to the Service as further described in Appendix G.
1.9 * * *
1.10 Response Times. The response times which DrKoop.com shall use
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to remedy and/or correct any material limitations or errors in
any Content Partner Content made available by or through
DrKoop.com that Infoseek brings to DrKoop.com's attention or
about which DrKoop.com otherwise becomes aware are specified
in Appendix E; * * *. DrKoop.com agrees not to override
browser back button functionality to prevent Users who link to
the GO Network-Wrapped Pages from the Service from returning
to the Service. As used herein "Link" means a so-called "hot
link" in graphical and/or textual format located on the
applicable areas of the Service which takes the User directly
to another web site or area within the site.
1.11 Maintenance of Service. Each party will be responsible for its
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respective telecommunications charges with respect to the
provision of respective portions of the Content Partner
Content to Infoseek and to Users. Except as expressly provided
herein, Infoseek retains the right to adapt or otherwise alter
the design, look, and any other attributes of the Service and
Service pages. Infoseek will use reasonable efforts to
promptly incorporate into the Content Partner Content error
corrections within a reasonable period of time after Content
Partner makes such corrections available to Infoseek;
provided, however that if Content Partner advises Infoseek in
writing during normal business hours that failure to promptly
correct an error could result in serious physical injury to a
User,
_______________________
* * * 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.
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Infoseek shall exercise prompt and commercially reasonable
efforts to expedite the correction of such error.
1.12 User Registration
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a. DrKoop.com shall ensure that its privacy policy applicable
to the DrKoop.com Site and the GO Network-Wrapped Pages, to
the extent applicable to its performance under this
Agreement, is consistent with Infoseek's privacy policy, as
may be changed from time to time, including, without
limitation, a mechanism that allows Users to opt in to
sharing of User data (not including personal medical
information) with Infoseek.
b. The following illustrates the User registration experience
which shall be implemented pursuant to this Agreement:
i. An unregistered User in the Health Center encounters
DrKoop.com functionality or DKC Health Content that
provides the User with an opportunity to register. The
standard series of GO Network user registration screens
appear, the first of which explains that this is a
simultaneous registration for DrKoop.com and GO
Network. The User then has the option to continue to
register or to click back to the User's original
starting point. If the User responds "yes", then the
User's data will go simultaneously to DrKoop.com and
Infoseek. If the User responds "no", then the User
cannot proceed to use DrKoop.com functionality.
ii. If the User who responds "yes" when initially
registering as specified in Section 1.12 b.i. above,
returns to GO Network or to the DrKoop.com site (not
the GO Network-Wrapped Pages) and logs in, the User
will be recognized as a registered User of both
services (provided that the User is known to the
Content Partner as a GO Network registered User) .
iii. The Infoseek privacy policy shall be available to Users
(via a link) at the time of registration as set forth
in Section 1.12(b)(i).
iv If a User that has already registered on GO Network
elects to opt-in to Content Partner registration, the
User shall only be required to execute "one click" to
transfer his or her registration data to DrKoop.com.
1.13 DrKoop.com User Data
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a. * * * DrKoop.com shall make available to Infoseek, via a
method and timing to be mutually agreed upon, all names
and email addresses from each Dr.Koop.com User accessing
DKC Health Content from the Service provided that such
User has opted in to the sharing of his/her data with
third parties and provided such disclosure is not
prohibited by law or regulation. Notwithstanding the
foregoing, DrKoop.com shall not provide personal medical
information to Infoseek, including, without limitation,
personal medical records. In addition, except as
prohibited by law, Dr.Koop.com shall provide to Infoseek
all available data (in aggregate, anonymous form only)
concerning Users who access the GO Network Wrapped Pages
from GO Network, concerning products and/or
_______________________
* * * 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.
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services purchased by such Users, survey and promotion
responses, and other demographic information concerning
such Users. Infoseek may use such information for its
internal business purposes and may provide such aggregate,
anonymous information to third parties as it deems
appropriate in connection with its operations; provided,
however that such aggregate, anonymous data may not be
identified to third parties as DrKoop.com User data. Such
User data must be aggregated with other Infoseek User data
before being provided to a third party.
1.14 Infoseek User Data
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Infoseek shall own all right, title and interest in and to and
the exclusive right to use all User data generated on all
pages of the Service hosted by Infoseek.
1.15 Go Wrapper
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Both parties hereby acknowledge that the GO Network-Wrapped
Pages wrapper (the "GO Wrapper") will evolve over the term of
the Agreement. To this end, Infoseek shall ensure that the GO
Wrapper will include the following elements, consistent with
the mock up pages attached hereto as Appendix B
Header
Tabs
Breadcrumbs
Footer
In the event that Infoseek elects to substantially modify the
GO Wrapper that is displayed in connection with DKC Health
Content, Infoseek shall seek DrKoop.com's approval of such
modifications, which approval shall not be unreasonably
withheld or delayed.
2. FEES AND PAYMENTS
2.1 Content Partner will make payments to Infoseek in the amounts and
at the times specified in Appendix F and Appendix G. Content Partner
will be responsible for the proper payment of all taxes, including
sales, excise and value added taxes, which may be levied in connection
therewith, exclusive of taxes based upon Infoseek's net income.
2.2 All payments made to Infoseek hereunder shall be made via wire
transfer in accordance with the following instructions, or such other
instructions as may be provided to Content Partner in writing by an
authorized representative of Infoseek:
Wire transfer, EFT/ACH Payment remittance instructions:
Bank of America
San Francisco, California
ABA Number: 121000358
Account Name: Infoseek Corporation
Account Number: 12335-30390
Swift ID: BOFAUS6S
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3. CONFIDENTIAL INFORMATION
3.1 Either Infoseek (which, for purposes of this Article 3 only,
shall include the GO Partners) or Content Partner may disclose
to the other (the "Receiving Party") certain information that
the disclosing party deems to be confidential and proprietary
("Proprietary Information"), and technical and other business
information of the disclosing party that is not generally
available to the public.
3.2 The Receiving Party agrees to use Proprietary Information
solely in conjunction with its performance under this
Agreement and not to disclose or otherwise use such
information in any fashion. The Receiving Party, however, will
not be required to keep confidential such Proprietary
Information that becomes generally available without fault on
its part; is already rightfully in the Receiving Party's
possession without restriction prior to its receipt from the
disclosing party; is independently developed by the Receiving
Party; is disclosed by third parties without similar
restrictions; is rightfully obtained by the Receiving Party
from third parties without restriction; or is otherwise
required by law or judicial process.
3.3 Unless required by law or to assert its rights under this
Agreement, and except for disclosure on a "need to know basis"
to its own employees, and its legal, investment, financial and
other professional advisers on a confidential basis, each
party agrees not to disclose the terms of this Agreement or
matters related thereto without the prior written consent of
the other party.
4. REPRESENTATIONS AND WARRANTIES
4.1 Content Partner represents and warrants that it is the owner
of the Content Partner Content and/or has the right to grant
the rights hereunder. Content Partner represents and warrants
to Infoseek and the GO Partners that it holds the necessary
rights to permit the use of Content Partner Content by
Infoseek and the GO Partners for the purpose of this
Agreement; that its entry into this Agreement does not violate
any agreement with any other party; that its performance under
this Agreement will conform to applicable U.S. laws and
government rules and regulations; that to the best of its
knowledge, after reasonable inquiry, the Content Partner
Content is true, accurate and does not contain material
omissions; Content Partner further represents and warrants to
Infoseek and the GO Partners that the use, reproduction,
distribution, transmission, or display of Content Partner
Content, Content Partner's collection and use of DrKoop.com
User Data and the sale of products and services by Content
Partner as contemplated in this Agreement will not (a) violate
any laws or any rights of any third parties, including, but
not limited to, such violations as infringement or
misappropriation of any U.S. copyright, patent, trademark,
trade dress, trade secret, music, image, or other proprietary
or property right, false advertising, unfair competition,
defamation, invasion of privacy or publicity rights, moral or
otherwise, or rights of celebrity, violation of any
antidiscrimination law or regulation, or any other right of
any person or entity; or (b) contain any material that is:
unlawful, harmful, fraudulent, threatening, abusive,
harassing, defamatory, vulgar, obscene, profane, hateful,
racially, ethnically, or otherwise objectionable, including,
without limitation, any material that supports, promotes or
otherwise encourages wrongful conduct that would constitute a
criminal offense, give rise to civil liability, or otherwise
violate any applicable local, state or national laws.
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4.2 Content Partner represents and warrants that, * * * the
systems and technology utilized to operate the DrKoop.com Site
and the GO Network Wrapped Pages (including, without
limitation, order fulfillment systems relating to products
sold by Content Partner) are compliant with the following Year
2000 requirements: (a) the occurrence in or use by such
systems of dates before, on or after January 1, 2000 will not
adversely affect the performance of such systems with respect
to date-dependent data, computations, output, or other
functions (including, without limitations, calculating,
comparing and sequencing); and (b) such systems will not
abnormally end or provide invalid or incorrect results as a
result of date dependent data.
4.3 Infoseek represents and warrants* * *.
4.4 Infoseek represents and warrants to Content Partner that * *
*.
5. LIMITATION OF LIABILITY; DISCLAIMER
5.1 EXCEPT FOR EITHER PARTY'S LIABILITY FOR THIRD PARTY CLAIMS AS
SPECIFIED IN ARTICLE 9 BELOW OR IN APPENDIX A, SECTION C(7),
OR ANY PARTY'S BREACH OF ARTICLE 3, OR DAMAGES ARISING FROM
PERSONAL INJURY, IN NO EVENT SHALL CONTENT PROVIDER, INFOSEEK,
GO PARTNERS OR ANY OF THEIR AFFILIATES BE LIABLE TO ANY OTHER
PARTY OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF SUCH
PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE
NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF
WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT,
STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
5.2 EXCEPT AS SET FORTH IN ARTICLE 4, CONTENT PARTNER, INFOSEEK
AND THE GO PARTNERS MAKE NO, AND EACH PARTY ACKNOWLEDGES THAT
EACH PARTY HAS NOT MADE ANY, AND HEREBY SPECIFICALLY DISCLAIMS
ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE SERVICE, THE CONTENT PARTNER CONTENT, GO
PARTNERS, THE DRKOOP.COM SITE, OR THE OPERATION OF THE CONTENT
PARTNER CONTENT ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
6. TERM AND TERMINATION
6.1 This Agreement shall be effective on the date executed by both
parties ("Effective Date") and shall continue in force for an
initial term ending thirty-six (36) months from the Effective
Date. Upon prior mutual written agreement, the then current
term of this Agreement may be renewed at the end of such
initial term and each anniversary date thereafter for one (1)
year renewal terms. * * *
6.2 Either party will have the right to immediately terminate this
Agreement if the other party is in default of any obligation
herein, including failure of DrKoop.com to provide DKC Health
Content, or Commerce Content, and such breach is incapable of
being cured, or if such breach is capable of cure, such breach
is not cured within thirty (30) days (or fourteen (14)
_______________________
* * * 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.
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days with respect to any default in any payment obligation)
after receipt of written notice of such default from the non-
defaulting party or within such additional cure period as the
non-defaulting party may authorize.
6.3 If the GO Network-Wrapped Pages do not meet the following
performance standards (which shall be measured by Infoseek or
an independent third party mutually agreed to between the
parties and paid for solely by DrKoop.com), and such failure
is not due to force majeure events or the failure of any third
party services, hardware, software or telecommunications
systems not controlled by Content Partner, Infoseek shall
notify the Content Partner in writing and Content Partner
shall exercise commercially reasonable efforts to promptly
correct the failure. * * *
* * *
If Infoseek elects to terminate the Agreement pursuant to this
Section 6.3, such termination shall relieve both parties of
any further liability (except as provided in Section 6.5
below), including but not limited to, the payment of fees as
set forth in Section 2.
6.4 If that portion of the Health Center hosted by Infoseek
("Health Center" as used in this Section 6.4) does not meet
the following external performance standards, as measured by
Keynote or another independent service provider, mutually
agreed to between the parties, and such failure is not due to
force majeure events or the failure of any third party
services, hardware, software or telecommunications systems not
controlled by Infoseek, DrKoop.com shall notify the Infoseek
in writing and upon such notice Infoseek shall use
commercially reasonable efforts to promptly correct the
problem. * * * Such performance standards are as follows:
* * *
6.5 The following provisions of this Agreement shall survive the
termination or expiration of this Agreement: 1.13 (first
sentence only), 1.14, 2.1, Article 3, Article 5, 8.1 (first
two sentences only), 8.2, Article 4 (as to claims arising
prior to termination or expiration or claims based on events
arising prior to termination or expiration), Article 9, and
Article 10.
6.6 Upon the termination or expiration of this Agreement, each
party shall (a) promptly return all Proprietary Information,
and other information, documents, manuals and other materials
belonging to the other party (or any GO Partner), except as
may be otherwise provided in this Agreement; and (b) promptly
remove the other party's content, branding, links, and any
other material provided under this Agreement.
6.7 During the term of this Agreement, Infoseek shall not enter
into any agreements to permit the sale or distribution of
tobacco or tobacco products on the Health Center.
Notwithstanding the foregoing, Content Partner acknowledges
and agrees that information concerning tobacco and tobacco
products may be displayed in standard search and directory
result format on the Health Center in response to the search
queries of Users.
7. FORCE MAJEURE
Neither party will be liable for delay or default in the performance of
its obligations under this Agreement (other than for non-payment) if
such delay or default is caused by conditions beyond its reasonable
control, including, but not limited to, fire, flood, accident,
earthquakes,
_______________________
* * * 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.
9
telecommunications line failures, storm, acts of war, riot, government
interference, strikes and/or walk-outs. In the event of a force majeure
event which lasts longer than twenty (20) days, the party not
experiencing the force majeure event may terminate this Agreement upon
prior written notice to the other party.
8. ADVERTISING AND PROMOTION; PUBLICITY
8.1 Content Partner shall not issue or permit the issuance of any
press releases or publicity regarding, or grant any interview,
or make any public statements whatsoever concerning, this
Agreement, GO Network or Infoseek (or its Affiliates,
including, without limitation, ESPN.com, ABCNews.com, The Walt
Disney Company, or any of their Affiliates) without prior
coordination with and written approval from Infoseek, which
approval may be granted or withheld in Infoseek's sole
discretion. Infoseek shall not issue or permit the issuance of
any press releases or publicity regarding, or grant any
interview, or make any public statements whatsoever concerning
this Agreement or Content Partner without prior coordination
with and written approval from Content Partner, which approval
may be granted or withheld in Content Partner's sole
discretion. Notwithstanding the foregoing, promptly after
execution of this Agreement and during the term of the
Agreement, DrKoop.com * * * shall reasonably cooperate with
Infoseek in the issuance of a press release, mutually agreed
to between the parties, announcing this Agreement and
endorsing the distribution of DKC Health Content on the Health
Center of GO Network. All Content Partner endorsements and
public statements concerning this Agreement must receive
Infoseek's prior review and approval. Notwithstanding the
foregoing, DrKoop.com shall not state or imply, in
advertisements, writings, or otherwise, that Infoseek or its
Affiliates endorse DrKoop.com's products or services or any
other product or service. Content Partner shall not use,
verbally or in writing, the names ABC, ABCNews or The Walt
Disney Company in connection with the sale of advertising by
Content Partner (except that Content Partner may describe the
sites included within the GO Network).
8.2 Neither Infoseek or the GO Partners shall have any right to
use the name and/or likeness of Dr. C Everett Koop or to make
any statements, whether written or oral, which state or
otherwise imply, directly or indirectly, any endorsement from
or affiliation with Dr. Koop in any manner whatsoever without
the prior written consent of DrKoop.com, which consent may be
withheld in DrKoop.com's sole discretion.
8.3 Content Partner and Infoseek may undertake such joint
marketing efforts as may be mutually agreed upon from time to
time. Each party shall cooperate and assist the other party by
supplying, without charge, reasonable quantities of materials
for the other party's marketing and promotional activities.
Neither party shall be obligated to participate in any joint
marketing efforts, except as expressly provided in Section 8.1
above.
9. INDEMNIFICATION
9.1 Content Partner agrees to defend, indemnify and hold Infoseek
and the GO Partners and their officers, directors, agents and
employees harmless from and against any and all claims,
demands, liabilities, actions, judgments, and expenses,
including reasonable fees and expenses of attorneys,
paralegals and other professionals, arising out of or related
to (i) any breach or alleged breach of any of Content
Partner's representations and warranties set forth in Section
4.1; (ii) any breach by Content Partner of an international
law, rule or regulation or international third party
proprietary right (as if Content Partner had made the
representations and warranties equivalent to those set forth
in Section 4.1 regarding US laws, regulations and proprietary
rights) * * * Content Partner shall bear full responsibility
for the defense (including any settlements) of any such claim;
provided however, that (a) Content Partner shall keep Infoseek
(and GO Partners, as applicable) informed of, and
____________________
* * * 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.
10
consult with Infoseek in connection with the progress of such
litigation or settlement; and (b) Content Partner shall not
have any right, without Infoseek's written consent, to settle
any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a
stipulation to or admission or acknowledgment of, any
liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Infoseek or its Affiliates or
otherwise requires Infoseek or its Affiliates to take or
refrain from taking any material action (such as the payment
of fees).
9.2 Infoseek agrees * * * Content Partner and its officers,
directors, agents and employees * * *. Infoseek shall bear
full responsibility for the defense (including any
settlements) of any such claim; provided, however, that (a)
Infoseek shall keep Content Partner informed of, and consult
with Content Partner in connection with the progress of such
litigation or settlement; and (b) Infoseek shall not have any
right, without Content Partner's written consent, to settle
any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a
stipulation to or admission or acknowledgment of, any
liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Content Provider or its Affiliates
or otherwise requires Content Partner or its Affiliates to
take or refrain from taking any material action (such as the
payment of fees).
9.3 Each GO Partner agrees * * * Content Partner and its officers,
directors, agents and employees * * *. The indemnifying party
shall bear full responsibility for the defense (including any
settlements) of any such claim; provided however, that (a)
such party shall keep Content Partner informed of, and consult
with Content Partner in connection with the progress of such
litigation or settlement; and (b) such party shall not have
any right, without Content Partner's written consent, to
settle any such claim if such settlement arises from or is
part of any criminal action, suit or proceeding or contains a
stipulation to or admission or acknowledgment of, any
liability or wrongdoing (whether in contract, tort or
otherwise) on the part of Content Partner or otherwise
requires Content Partner to take or refrain from taking any
material action (such as the payment of fees).
10. GENERAL TERMS AND CONDITIONS
10.1 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
to incur any obligation or liability for, or to otherwise
bind, the other party. This Agreement shall not be interpreted
or construed to create an association, joint venture,
co-ownership, co-authorship, or partnership between the
parties or to impose any partnership obligation or liability
upon either party.
10.2 Neither party shall assign, sublicense or otherwise transfer
(voluntarily, by operation of law or otherwise) this Agreement
or any right, interest or benefit under this Agreement,
without the prior written consent of the other party;
provided, however, that either party may assign this Agreement
to any entity that acquires all or substantially all of the
assets or shares (or controlling shares) of such party;
provided that the acquiring entity is not a direct competitor
of the other party. Any attempted assignment, sublicense or
transfer by a party in derogation hereof shall be null and
void. 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. Any change of control of either party shall be deemed
_________________________
* * * 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.
11
an "assignment" for purposes of this Section 10.2; provided,
however, that as long as control is not transferred to a
direct competitor of the nonassigning party, it shall be an
approved assignment. As used herein, "change of control" shall
include any event (including, without limitation, a merger,
sale, liquidation, transfer, encumbrance or other disposition)
which results in a change of the control of a party. As used
in this Section 10.2 "change of control" shall mean a change
in the legal, beneficial or equitable ownership, directly or
indirectly, of more than fifty (50%) of a class of capital
stock having voting rights of either party.
10.3 No change, amendment or modification of any provision of this
Agreement or waiver of any of its terms will be valid unless
set forth in writing and signed by the party to be bound
thereby.
10.4 This Agreement shall be interpreted, construed and enforced in
all respects in accordance with the laws of the State of
California. Each party irrevocably consents to the exclusive
jurisdiction of any state or federal court for or within Santa
Clara County, California over any action or proceeding arising
out of or related to this Agreement, and waives any objection
to venue or inconvenience of the forum in any such court.
10.5 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.
10.6 Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in
writing, will reference this Agreement, and shall be deemed to
have been delivered and given (a) when delivered personally;
(b) three (3) business days after having been sent by
registered or certified U.S. mail, return receipt requested,
postage and charges prepaid; or (c) one (1) business day after
deposit with a commercial overnight courier, with written
verification of receipt. All communications will be sent to
the addresses set forth below or to such other address as may
be designated by a party by giving written notice to the other
party pursuant to this Section 10.6.
If to Infoseek: If to Content Partner:
Infoseek Corporation drkoop.com, Inc.
1399 Moffett Park Drive 8920 Business Park Drive,
Longhorn Suite
Sunnyvale, CA 94089-1134 Austin, Texas 78759
Attention: Legal Department Attention: CFO
Tel: (408) 543-6000 Tel: (512) 726-5110
With a copy to: With a copy to:
ABCNews.com Latham & Watkins
77 W. 66th Street 135 Commonwealth Drive
New York, NY 10023 Menlo Park, CA 94025
Attention: Cherie Carr, Esq. Attention: Anthony Richmond,
Esq.
Tel: (212) 456-7310 Tel: (650) 463-4600
10.7 This Agreement and the Appendices attached hereto and
incorporated herein by reference constitute the entire
agreement between the parties and supersede any and all prior
agreements or understandings between the parties with respect
to the subject matter hereof. Neither party shall be bound by,
and each party specifically objects to, any term, condition or
other provision or other condition 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
12
proffered by the other party in any purchase order,
correspondence or other document, unless the party to be bound
thereby specifically agrees to such provision in writing.
10.8 The headings used in this Agreement are for convenience only
and are not to be construed to have legal significance. 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, 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 the remainder of this Agreement shall
remain in full force and effect. This Agreement may be
executed in counterparts.
INFOSEEK CORPORATION DRKOOP.COM, INC.
By: /s/ Harry Motro By: /s/ Donald W. Hackett
-------------------------------- ---------------------------------
Authorized Signature Authorized Signature
Print Name: Harry Motro Print Name: Donald W. Hackett
------------------------- -------------------------
Title: CEO Title: CEO
------------------------------ -------------------------
Date: 4/9/99 Date: 4/9/99
------------------------------ -------------------------------
Accepted with respect to all matters affecting ABCNews.com and ABC News/Starwave
Partners d/b/a ABC News Internet Ventures:
ABC NEWS/STARWAVE PARTNERS D/B/A ABC NEWS INTERNET VENTURES
By: /s/ Patricia E. Vance
--------------------------------
Print Name: Patricia E. Vance
-------------------------
Title: Senior Vice President
------------------------------
Date: 4/9/99
-------------------------------
Accepted with respect to all matters affecting ESPN.com and ESPN/Starwave
Partners d/b/a ESPN Internet Ventures:
ESPN/STARWAVE PARTNERS D/B/A ESPN INTERNET VENTURES
By: /s/ Steve Taues
---------------------------------
Print Name: Steve Taues
-------------------------
Title: SVP-General Manager
------------------------------
Date: 4/9/99
-------------------------------
13
APPENDIX A
A. HEALTH CONTENT
"Health Content" means content that relates to human health conditions,
medicine, and the treatment of disease.
"DKC Health Content" means content that relates to human health
conditions, medicine, and the treatment of disease as further defined
on Appendix A-1, which content includes DrKoop.com branding.
Dr.Koop.com may, subject to Infoseek's approval, which shall not be
unreasonably withheld or delayed, revise Appendix A-1 to include new
content and functionality added to the DrKoop.com Site after the date
of this Agreement. As part of DKC Health Content, DrKoop.com will
provide Infoseek and the GO Partners with unique Health Content that is
not available from DrKoop.com on any other Internet portal with which
DrKoop.com has an agreement.
B. GO NETWORK PROGRAM DESCRIPTION
1. A sample schematic illustrating the layout of the Infoseek hosted
Health Center is set forth in Appendix B. Any material change to such
layout shall be mutually agreed to by Infoseek and Content Partner.
2. a. DrKoop.com shall provide DKC Health Content and related tools to the
Health Center in areas and subjects as specified by Infoseek. * * *
b. * * *
* * *
3. All links pointing to GO Network-Wrapped Pages from the Service shall
provide links back to the Service.
4. Infoseek will have editorial control over all content appearing on the
Service and branded in any way to Infoseek and GO Network.
Notwithstanding the foregoing, Infoseek shall not modify, edit,
abbreviate or censor DKC Health Content, but Infoseek shall have the
right to not include such content on any pages of GO Network.
5. All DKC Health Content shall carry Content Partner's standard legal
disclaimer, which is set forth in Appendix A-1, and may be subject to
reasonable changes from time to time. This disclaimer shall be
presented in its entirety any time DKC Health Content is displayed. In
addition, certain third party content which is provided by Content
Partner may have additional requirements for displaying, such as
including the logo of the original content provider (for example,
Dartmouth Medical content must carry the branding and logo of the
Dartmouth Medical School), which requirements are described on Appendix
A-1. Content Partner will provide further details concerning such
requirements at the time DKC Health Content is submitted for inclusion
in the Service.
_________________________
* * * 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.
14
6. At Infoseek's request, DrKoop.com shall temporarily send to Infoseek's
facilities a minimum of three (3) on-site designers/producers/engineers
during the term of this Agreement for a mutually agreed upon duration
for purposes of assisting Infoseek in building the Health Center, and
Infoseek Commerce Area as it relates to Commerce Content.
7. * * *
8. If Infoseek elects to provide Health Content for other potential GO
Network health areas during the term of this Agreement, Infoseek shall
have the option, but not the obligation, subject to Content Provider's
approval, which shall not be unreasonably withheld or delayed, to use
any such DrKoop.com Health Content pursuant to GO Network producers and
editors decisions.
9. * * *
10. Any promotions and/or links to GO Network provided by DrKoop.com shall
be approved in advance by Infoseek, which approval shall not be
unreasonably withheld or delayed.
11. Both parties will discuss how Infoseek may integrate Dr. Koop community
functions (Chat and Message Boards) into Go Network Communities Center
and Go Network Health Center * * *. Go Network Community Center is
defined as Chat and Message Boards only. Such functions are scheduled
to be launched in * * *. Fees for custom Go Community services will be
assessed on a case by case basis. Infoseek shall provide Content
Partner with a right of first negotiation (for a period not to exceed
ten (10) business days) to become a content provider with respect to
health related matters in the GO Network Community Center.
C. PROGRAM DESCRIPTION - ABCNEWS.COM
1. Subject to the following exceptions, ABCNews.com shall not * * *
2. DrKoop.com shall provide DKC Health Content to ABCNews.com in content
areas and subjects as specified by ABCNews.com. * * * All Health
Content appearing on ABCNews.com shall be hosted by ABCNews.com or
Infoseek, or an Infoseek Affiliate, unless otherwise mutually agreed.
Any links from ABCNews.com to DKC Health Content will be links directed
to GO-Network Wrapped Pages or to pages with an ABCNews.com wrapper or
to pages with no wrapper, at ABC's sole discretion. Nothing in this
Agreement shall give Content Partner the right to sell or provide
advertising of any kind on ABCNews.com.
3. ABCNews.com shall determine which of the following content
shall be included as part of the DKC Health Content displayed on
ABCNews.com and the parties shall mutually agree upon a schedule and
method for such implementation within 90 days of the Effective Date.
OVERALL HEALTH AND INDIVIDUAL ILLNESS RISK ASSESSMENT TOOLS
-----------------------------------------------------------
a. Risk calculators for specific diseases/conditions
b. Personal health diary
c. Clinical pathways/symptom checklists "trees"
d. Health IQ quizzes
_________________________
* * * 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.
15
REFERENCE MATERIALS
-------------------
a. Virtual Anatomy applications
b. Virtual tour of body
c. Link to Physician Finder Service
d. Link to Hospital Rankings
e. Link to Encyclopedic health manual
MEDICAL RECORDS
---------------
a. The ability of ABCNEWS.com users to download Personal Medical
Record(TM)
b. Personal Medical Record(TM)
VIDEO AND LIVE EVENTS
---------------------
Other
Alternative Medicine resources
4. All links pointing to the GO Network-Wrapped Pages (or pages with an
ABCNews.com wrapper, if applicable) from ABCNews.com shall provide
links back to ABCNews.com.
5. ABCNews.com and DrKoop.com shall negotiate in good faith * * * to
finalize a mutually acceptable agreement pursuant to which ABCNews.com
would be the * * * provider of news and headlines to DrKoop.com (the
"News Agreement"). Any such headlines or news stories would be provided
* * * for use on the GO Network-Wrapped Pages and/or the DrKoop.com
Site. Provided a mutually acceptable News Agreement is finalized within
such * * * period, DrKoop.com shall follow the process in item C (6)
below if it seeks to obtain news stories not provided by ABCNews.com.
If a News Agreement is not finalized within such time period, the
provisions of Section C(6) below shall be inapplicable.
6. * * *
7. ABCNews.com will have editorial control over all content appearing on
its site and shall control the look and feel of its site.
Notwithstanding the foregoing, ABCNews.com shall not modify, edit,
abbreviate or censor DKC Health Content, but ABCNews.com shall have the
right not to include such content on any pages of ABCNews.com. * * *
8. Any promotions and/or links to ABCNews.com provided by DrKoop.com shall
be approved in advance by ABCNews.com
9. Nothing in this Agreement shall restrict or limit the right of
ABCNews.com to sell and display on the ABCNews.com site advertising,
promotions and sponsorships from DrKoop.com Direct Competitors listed
on Appendix C. The advertising restrictions set forth in Section B (7)
of this Appendix A do not apply to ABCNews.com.
10. ABC AFFILIATE PROVISIONS
In consideration of this Agreement, ABCNews.com and DrKoop.com agree as
follows:
(a) Dr. Koop.com * * * a "link" on the ABC Local Net for * * *,
pursuant to a Distribution Agreement to be mutually agreed to between
the parties. The ABC Local Net makes available Internet content to 115
affiliate ABC television stations throughout the country.
_________________________
* * * 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.
16
(b) Provided that DrKoop.com has purchased the link referenced in
section 10(a) above, ABCNews.com will use reasonable efforts to
facilitate introductory communications and meetings between DrKoop.com
management and executives at all ABC owned stations concerning
DrKoop.com services and strategic initiatives.
(c) ABC owned and affiliate stations in all United States markets will
be * * * participate in DrKoop.com's station affiliate program (the
"DrKoop Affiliate Program"), in designated market areas ("DMAs") where
this program is offered at the sole discretion of DrKoop.com . Provided
that DrKoop.com has purchased the link referenced in Section 10(a)
above, Information concerning the details of the DrKoop Affiliate
Program, which details shall be mutually agreed to between the parties,
will be distributed to such affiliates by ABC, at DrKoop.com's sole
expense, within 30 days of the Execution Date of this agreement.
(d) Should an ABC affiliated station express interest in the DrKoop
Affiliate Program, DrKoop.com will arrange for a presentation of the
DrKoop Affiliate Program terms to the station at the mutual convenience
of DrKoop.com and the station, and such station will have 10 business
days following this presentation to either accept or reject the terms
of the DrKoop Affiliate Program. If DrKoop.com and such station are
unable to agree on terms * * *.
11. ABCNews.com and Infoseek shall each appoint a project liaison to
coordinate the provision of DKC Health Content to ABCNews.com.
D. PROGRAM DESCRIPTION - ESPN.COM
1. Subject to the exceptions set forth below in Section this Section D
(1), during the term of this Agreement, Content Provider shall be the
exclusive provider of Health Content to the section of the ESPN.com
site devoted primarily to health and medical related topics, which
section is currently named the Training Room (the "Training Room"). * *
*
2. ESPN.com and DrKoop.com shall mutually agree upon a schedule for the
display of DKC Health Content on the Training Room of ESPN.com, which
may include implementation of the following features:
(i) weekly articles for both the fitness and conditioning and
the sports nutrition subsections of Training Room, either re-
purposed directly from existing DKC Health Content or written
specifically by DrKoop.com staff for ESPN.com's audience of
recreational athletes and sports fans.
(ii) weekly replies from experts affiliated with DrKoop.com to
ESPN.com user questions in each of the two subsections specified
in Section D. 2(i) above.
(iii) online assessments (quizzes, rate-yourself surveys, body-
fat calculators, etc.) for both subsections.
(iv) at least one photo for each article and illustrations,
graphs, statistical tables and charts wherever appropriate in
subsections specified in Section D. 2(i) and D.2(ii) above.
(v) periodic online chats with experts provided by DrKoop.com.
_________________________
* * * 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.
17
3. DrKoop.com may provide additional health related content in areas
within the League sites (NFL, NBA, and NASCAR); subject to Infoseek, in
its role as a general partner of EIV, using commercially reasonable
efforts to receive applicable approvals from the owners of such sites;
no assurance can be provided that such approvals will be obtained.
4. DrKoop.com shall provide DKC Health Content to the Training Room in
areas and subjects as specified by ESPN.com., which shall be mutually
agreed to by the parties within 90 days of the Effective Date. * * *
5. All links pointing to the GO Network-Wrapped Pages from ESPN.com shall
provide links back to ESPN.com. All Health Content appearing on
ESPN.com shall be hosted by ESPN.com or Infoseek, or an Infoseek
Affiliate, unless otherwise mutually agreed. Any links from
ESPN.com.com to DKC Health Content will be links directed to GO-Network
Wrapped Pages or to pages with an ESPN.com wrapper or to pages with no
wrapper, at ESPN.com's sole discretion. Nothing in this Agreement shall
give Content Partner the right to sell or provide advertising of any
kind on ESPN.com.
6. * * *
7. ESPN.com will have editorial control over all content appearing on its
site and the look and feel of its site. Notwithstanding the foregoing,
ESPN.com shall not modify, edit, abbreviate or censor DKC Health
Content, but ESPN.com shall have the right to not include such content
on pages of ESPN.com.
8. Any promotions and/or links to ESPN.com provided by DrKoop.com shall be
approved in advance by ESPN.com
9. Nothing in this Agreement shall restrict or limit the right of ESPN.com
to sell or provide advertising, promotions and sponsorships for display
on ESPN.com (including the Training Center) * * *. The advertising
restrictions set forth in Section B (7) of this Appendix A do not apply
to ESPN.com.
_________________________
* * * 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.
18
APPENDIX A-1
This Appendix A-1 sets forth existing DKC Health Content as of the Effective
Date. Content Partner may revise this Appendix from time to time, to reflect new
content added to the DrKoop.com Site, and to reflect the termination or
expiration of third party agreements, which revisions shall be subject to
Infoseek's reasonable approval; notwithstanding the foregoing, Content Partner
shall maintain the quality and quantity of DKC Health Content available to
Infoseek and the GO Partners throughout the term of the Agreement.
Distribution Agreement - Infoseek Corp. and DrKoop.com Inc.
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