DOW JONES INTERACTIVE PUBLICATIONS LIBRARY
INTERNET GATEWAY AGREEMENT
THIS AGREEMENT dated as of July 14, 1998 (the "Effective Date") is
between DOW JONES & COMPANY, INC., a Delaware corporation ("Dow Jones") and
MEDSCAPE, INC., a legal entity organized under the laws of New York ("Gateway").
Dow Jones publishes, markets, and sells an electronic business and
financial information service through which subscribers can access, display,
search and retrieve business, financial and similar news and information from
databases of content, currently called the Dow Jones Publications Library (the
"Publications Library"), a section of the Dow Jones Interactive service. The
Publications Library is published and accessible via the World Wide Web portion
of the Internet, among other platforms and methods. Gateway owns or has the
legal right to operate an electronic information service, more fully described
and defined on Exhibit A (the "Gateway Service"). Gateway wants to offer
customers of its Gateway Service the opportunity to access, display, search and
retrieve content from the Publications Library (the "Publications Library
Content") through or from the Gateway Service, and Dow Jones wants to grant
Gateway the right to do so, all subject to the terms set forth in this
Agreement. Therefore, Dow Jones and Gateway agree as follows:
1. SPECIFICATIONS; TESTING PROCEDURES.
(a) SPECIFICATIONS. In connection with all aspects of making
access to, and displaying, searching and retrieval of, Publications Library
Content available through the Gateway Service, Gateway shall comply with the
terms of this Agreement and the then-current versions of the Dow Jones
Publications Library Gateway Program Integration Toolkit (collectively, the
"Specifications"), a copy of which Gateway acknowledges having received. In the
event of a conflict or ambiguity between a term in this Agreement and the
Specifications, the term in this Agreement shall prevail in meaning and
interpretation and be deemed to reflect the agreement of the parties.
(b) TESTING PROCEDURES. Upon Gateway's request, Dow Jones will
provide Gateway with a reasonable amount of technical assistance, via telephone
and during Dow Jones's normal business hours, regarding the Specifications,
capacity planning, links integration, and other matters that may be agreed to by
Dow Jones. Prior to permitting any third party to access or receive any
Publications Library Content through or from the Gateway Service, Gateway shall
provide Dow Jones reasonable amounts of unrestricted access to the Gateway
Service, at no charge to Dow Jones, for testing, and review to determine whether
the Gateway Service and its access to, display of, and transmission and delivery
of Publications Library Content complies with the Specifications and this
Agreement (the "Testing Procedures"). If, in Dow Jones' sole discretion, the
Gateway Service successfully completes the Testing Procedures, Dow Jones shall
promptly notify Gateway in writing of such successful completion. If the Gateway
Service does
not complete successfully the Testing Procedures, Gateway may alter or modify
its access to, display of, or transmission or delivery of Publications Library
Content and resubmit the Gateway Service for Testing Procedures. If for any
reason the Gateway Service fails to complete successfully the Testing
Procedures, Dow Jones shall have no obligation to appoint Gateway as an
authorized marketing representative for the Publications Library, or to permit
access to any Publications Library Content through or from the Gateway Service,
and Dow Jones shall have no further obligations to Gateway hereunder.
(c) MODIFICATIONS. Dow Jones may, from time to time, make
modifications to the Publications Library and/or the Specifications
("Modifications"). Dow Jones will deliver to Gateway reasonable advance notice
of any Modifications and of any additional Testing Procedures required in
connection therewith. Gateway, at its expense, shall use reasonable commercial
efforts to make any necessary alterations to the Gateway Service to conform to
such Modifications ("Gateway Alterations"), in accordance with a reasonable
timetable specified by Dow Jones (the "Alteration Schedule"). Gateway shall make
reasonable amounts Of unrestricted access to the revised Gateway Service
available to Dow Jones, at no charge to Dow Jones, for Testing Procedures to
determine whether the Gateway Alterations conform to such Modifications and this
Agreement. In no event will the Alteration Schedule require any Gateway
Alterations and Testing Procedures to be completed in less than sixty (60) days
after Gateway received the Alteration Schedule and Modifications. If Gateway is
unable, after using reasonable commercial efforts, to make the necessary Gateway
Alterations, or if such Gateway Alterations do not successfully complete the
Testing Procedures, either party may terminate this Agreement pursuant to the
terms in Section 9(d) of this Agreement.
2. CERTAIN DEFINITIONS.
(a) GATEWAY SERVICE CUSTOMER DEFINITION. A "Gateway Service
Customer" shall be defined as an individual (i.e., not a legal or juristic
entity) who uses the Gateway Service.
(b) PUBLICATIONS LIBRARY SUBSCRIBER. A "Publications Library
Subscriber" shall be defined as any and each individual who is a Gateway Service
Customer, who agrees to be legally bound by the DJ Subscription Agreement, and
who obtains access to or uses any Publications Library Content through or from
or in connection with or while using the Gateway Service.
(c) DJ SUBSCRIPTION AGREEMENT. A copy of the standard Dow
Jones Interactive Subscription Agreement for individual subscribers, as of the
Effective Date, is attached as Exhibit B. Dow Jones shall have the right to
amend or update the DJ Subscription Agreement at any time in its sole
discretion. Each time Dow Jones revises the DJ Subscription Agreement during the
Term, Dow Jones shall deliver a copy of the revision to Gateway prior to the
effective date of such revision.
(d) COMMERCIAL AVAILABILITY DATE. "Commercial Availability
Date" shall be
2
defined as the first date any portion of the Publications Library Content is
first made commercially available to Gateway Service Customers through or from
the Gateway Service.
3. RESPONSIBILITIES AS MARKETING REPRESENTATIVE.
(a) APPOINTMENT. Upon notifying Gateway that the Gateway
Service has successful completed the Testing Procedures, Dow Jones will appoint
Gateway as a non-exclusive authorized marketing representative for the
Publications Library Content through or from the Gateway Service. Gateway hereby
accepts such appointment, and agrees to use commercially reasonable efforts to
promote and market Publications Library Content to customers of the Gateway
Service, and cause Gateway Service Customers to become Publications Library
Subscribers.
(b) NONEXCLUSIVE APPOINTMENT. Nothing in this Agreement shall
in any way limit Dow Jones' right to appoint other authorized marketing
representatives for the Publications Library, or to locate and contract with
Publications Library customers through its own direct efforts.
(c) EQUIPMENT AND COMMUNICATIONS LINES. Gateway shall acquire,
install, operate and maintain, at its expense, all equipment, computers,
software, communications lines (if any), services and related technology
necessary to perform this Agreement and permit Gateway Service Customers to use,
access, display, search and retrieve Publications Library Content in accordance
with the Specifications and this Agreement.
(d) PROMOTIONAL MATERIALS. Gateway shall not use, publish or
distribute, or cooperate with any third party or use, publish, or distribute,
any press releases, or promotional, sales or advertising material
(collectively,"Materials") regarding the Publications Library, or this
Agreement, or containing the marks Dow Jones, The Wall Street Journal, or other
trademark or trade name known by Gateway to be owned by Dow Jones, without the
prior written approval of Dow Jones. Similarly, Dow Jones shall not use, publish
or distribute, or cooperate with any third party to use, publish, or distribute,
any Materials regarding this Agreement, or containing the mark Medscape, or
other trademark or trade name known by Dow Jones to be owned by Gateway, without
the prior written approval of Gateway. The foregoing shall not be construed to
restrict Dow Jones from engaging in any of its normal news gathering or
publishing activities. All samples of such materials delivered by a party to the
other party for such review shall be in English or translated into English. If a
party has not notified the other party of its disapproval within ten (10) days
after such party delivers samples of a particular item of Material, such
Material shall be deemed approved. Any breach by a party of this Section, among
others, shall be deemed a material breach of this Agreement.
(e) CUSTOMER SERVICE. Gateway shall promptly consult with Dow
Jones by email, telephone, or other means agreed to by both parties, regarding
all questions and complaints from Gateway Service Customers regarding the
Publications Library that Gateway personnel
3
receive. Gateway shall not answer, and shall promptly refer to Dow Jones by
email, telephone, or other means agreed to by both parties, all questions and
complaints from Publications Library Subscribers regarding use of the
Publications Library, specific items of content within the Publications Library
(such as, but not limited to, allegations of errors or omissions in content,
etc.), and regarding billing and payment for Publications Library Content, and
Dow Jones shall be responsible for promptly and professionally handling such
questions and complaints. Gateway shall have at least one customer service
representative available to Publications Library Subscribers, by telephone and
by email messages, at all times from Monday through Friday, 8AM through 9PM,
Eastern U.S. Time.
(f) CONTACT PERSONS. Each party shall designate one or more
individuals as that party's principal person(s) (each, a "Contact Person") to
contact for problems or questions that arise in the following areas: Technology
and Communications; Customer Service; and Management/Miscellaneous. Each party
shall ensure that such party has at least one Contact Person for Technology and
Communications issues immediately available at all times, 24 hours per day and 7
days per week. Exhibit C lists the Contact Persons for each Party as of the
Effective Date. A party may change designated Contact Persons by delivering
notice pursuant to Section 10(a).
4. PUBLICATIONS LIBRARY PRESENTATION STANDARDS.
(a) RESTRICTIONS. Gateway shall not make any of the
Publications Library available for use, access, display, searching or retrieval:
(1) other than as a separate branded area through or from the Gateway Service;
(2) other than through the Gateway Service as a "gateway"; or (3) through an
additional "gateway" or other third party service which incorporates or
"bundles" the Gateway Service as one information source or service of many
available through such third party's software or service or Internet site.
Gateway shall not permit a Gateway Service Customer to access the Publications
Library via any interactive online or electronic information service other than
the Gateway Service, except to the extent that a Gateway Service Customer uses
one of such services merely to connect to the Internet and then links to the
Gateway Service using browser software. Gateway shall not make the Publications
Library Content available in any "public" or "free" area, or area accessible
without a password, on the World Wide Web, except for Citations that are
displayed as Index Search Results (both defined in the Specifications). Gateway
shall not combine Publications Library Content with any content from third
parties, such that, for example, a single search request displayed results from
the Publications Library as well as results from another information service.
Without Dow Jones' prior written consent in advance, and except for Citations
that are displayed as Index Search Results as set forth in the Specifications,
Gateway shall not make any Publications Library Content available for free, or
without payment of monetary compensation, nor shall Gateway charge any Gateway
Service Customer any amount for access to, searching in, or retrieval of any
Publications Library Content.
(b) NO FRAMING; THIRD PARTY ADVERTISING. Except as set forth
in the
4
Specifications, Gateway shall not "frame" or otherwise permit matter not
authorized by Dow Jones to appear on the same screen display as, or obscure, any
portion of the Publications Library. Gateway shall cause all advertising or
promotional material that appear on the same screen display or web page as any
Publications Library Content or any Dow Jones trademark, logo or trade name, 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 D. Dow Jones will
deliver at least thirty (30) days' advance notice prior to amending the Ad
Guidelines.
(c) NO STORAGE OR ALTERATION. Except as specifically permitted
in the Specifications, Gateway shall not: (1) cache or store, or authorize any
other party (including, without limitation, any Gateway Service Customer) to
cache or store, temporarily or permanently, any Publications Library Content for
subsequent distribution, display or retrieval; or (2) alter, in any manner, the
content, format or presentation of the Publications Library.
(d) FINAL PRESENTATION REVIEW AND SERVICE PRESENTATION.
Gateway shall cause the Publications Library to appear to Gateway Service
Customers as a separate, Dow Jones-branded area or service, and shall not permit
any other content to appear on screen displays with Publication Library Content,
other than advertisements or promotional materials that comply with this
Agreement, and information and navigational features which may appear within the
Top Bar Frame and Left Bar Frame specifically authorized in the Specifications.
Dow Jones shall have the right to approve the final design and presentation of
the Publications Library through or from the Gateway Service prior to the
Commercial Availability Date, and shall have the right to require reasonable
changes in the presentation of links to the Publications Library from time to
time during the Term. Gateway shall provide Dow Jones with a reasonable number
of passwords for the Gateway Service to enable Dow Jones to review, free of
charge, the design and presentation of the Gateway Service.
(e) THIRD PARTY DATABASES. The Publications Library consists
of databases and content owned and supplied by Dow Jones ("DJ Databases") and
databases and content owned and supplied to Dow Jones by third parties ("Third
Party Databases"). Gateway acknowledges and agrees that (1) Dow Jones, in its
sole discretion, may from time to time add or delete DJ Databases and/or Third
Party Databases available through the Publications Library; (2) nothing in this
Agreement shall prohibit the providers of the Third Party Databases from
distributing such Third Party Databases either directly or indirectly; and (3)
the availability of a Third Party Database in the Publications Library for
distribution to certain customers or for access through the Gateway Service is
subject to the continuation and extent of the license agreement between Dow
Jones and the provider of such Third Party Database with respect thereto. If the
number of "Health, Medicine & Biotechnology" sources in the Publication Library
falls below 250, Gateway may terminate this Agreement by delivering 30 days
prior written notice to Dow Jones.
(f) LEGAL RESEARCH SERVICE. Gateway shall not offer any "Legal
Research
5
Materials" (as defined below) contained in or available through, either directly
or indirectly, the Gateway Service, in combination with any of the Publications
Library Content, to create an information service or product that is packaged,
priced and marketed specifically to serve the professional legal research needs
of lawyers, legal professionals, accounting professionals or tax professionals
in the United States. "Legal Research Materials" mean any statutes, laws, court
opinions, case reports, regulations, court rules, administrative rulings,
legislative history, legal periodicals, legal treatises or legal citators.
5. PRICING AND BILLING.
(a) PRICING. Dow Jones shall establish, in its sole
discretion, the pricing for access to, use of, display of, searching in, and
retrieval of Publications Library Content through or from the Gateway Service
("Fees"). Dow Jones will deliver its schedule of Fees to Gateway prior to the
Commercial Availability Date. If Dow Jones changes its schedule of Fees at any
time during the Term, Dow Jones will deliver Such amended schedule of Fees to
Gateway at least fifteen (15) days prior to the date such amended schedule will
take effect. Dow Jones shall have the right to retain all revenue from ads sold
on frames designated for Dow Jones' use in the Specifications. Similarly,
Gateway shall have the right to retain all revenue from ads sold in frames
designated for Gateway's use in the Specifications.
(b) BILLING AND COLLECTION. Dow Jones will bill Publications
Library Subscribers for all Fees, and shall use reasonable commercial efforts to
collect all payments due from such billings. In addition, Dow Jones shall bill
Publications Library Subscribers for all applicable sales, use or other similar
taxes and shall remit to the appropriate Government agency the taxes collected
(collectively, "Sales Taxes").
(c) GATEWAY'S COMMISSION. In consideration of its undertakings
hereunder, for each calendar month during the Term, Dow Jones shall pay Gateway
a commission (the "Commission") as defined on Exhibit E.
(d) MONTHLY REPORT; PAYMENT. Within forty-five (45) days after
the end of each calendar month, Dow Jones shall prepare and deliver a written
report (the "Monthly Report") to Gateway listing for the calendar month at issue
the information set forth on Exhibit E. Along with the Monthly Report, Dow Jones
shall deliver a check in an amount equal to the Commission for such month,
calculated and paid in U.S. Dollars.
(e) MAINTENANCE AND INSPECTION OF RECORDS. Each party shall
maintain complete and accurate books and records of all information necessary to
determine compliance with its obligations under this Agreement ("Records"). Each
party shall have the right itself or through its authorized representatives,
upon at least seven (7) days' prior written notice but no more often than once
each calendar year, to inspect the other party's Records at the other party's
location where such Records are kept, during such other party's regular business
hours. All information gained by the inspecting party or its authorized
representatives from any such
6
inspection shall be treated as Confidential Information subject to Section 8,
and will be used solely for the purpose of verifying compliance with the
obligations contained herein.
6. PROPRIETARY RIGHTS.
(a) OWNERSHIP; COPYRIGHT. Gateway acknowledges and agrees that
all ownership and proprietary rights (including, without limitation, the
copyright and database proprietary rights) to the Publications Library and the
contents thereof are and shall remain the property of Dow Jones or its
licensors. Gateway shall give proper notice to Gateway Service Customers of Dow
Jones' copyright in the Publications Library, and shall not remove or alter any
copyright notices appearing in any Publications Library Content.
(b) INFRINGEMENT. Gateway shall promptly advise Dow Jones of
any possible infringement of which Gateway becomes aware of any of Dow Jones'
trademarks, copyrights, database proprietary rights, trade secrets or other
proprietary rights, or any misuse of Publications Library Content or breach of
the DJ Subscription Agreement by a Publications Library Subscriber.
7. INDEMNIFICATION; DISCLAIMER.
(a) BY DOW JONES. In the event of any claim by any third party
against Gateway arising out of or resulting from the content in the Publications
Library (other than claims for which Dow Jones may seek indemnification from
Gateway under Section 7(b) below), Gateway shall promptly notify Dow Jones, and
Dow Jones shall defend such claim, Suit or action in Gateway's name but at Dow
Jones' expense. Dow Jones shall indemnify and hold harmless Gateway against any
judgment, liability, loss, cost or damage (including, without limitation,
litigation costs and reasonable attorneys' fees) arising from or related to such
claim, whether or not such claim is successful. Gateway shall have the right, at
its expense, to participate in the defense of such claim through counsel of its
own choosing; provided, however, that Dow Jones shall not be required to pay any
settlement amount that it has not approved in advance, Dow Jones shall direct
and control the conduct of the defense, and Gateway shall pay all costs and
expenses in connection with such chosen counsel.
(b) BY GATEWAY. In the event of any claim by any third party
against Dow Jones arising out of or resulting from: (1) any defect, error or
omission caused by Gateway in reformatting, displaying, retrieving, transmitting
or otherwise distributing content in the Publications Library on or through the
Gateway Service, or (2) an allegation that the Gateway Service infringes any
patent, trade secret, copyright, or other intellectual property right of any
third party, or (3) any use or distribution or display of Publications Library
Content in violation of the Specifications or this Agreement, or (4) the
advertising or promotion for the Publications Library Content by Gateway (except
in the case of third party claims arising out or resulting from language about
the Publications Library in a press release or promotional material that was
approved by Dow Jones), Dow Jones shall promptly notify Gateway, and Gateway
shall defend
7
such claim, suit or action in Dow Jones' name but at Gateway's expense. Gateway
shall indemnify and hold harmless Dow Jones against any judgment, liability,
loss, cost or damage (including, without limitation, litigation costs and
reasonable attorneys' fees) arising from or related to such claim, whether or
not such claim is successful. Dow Jones shall have the right, at its expense, to
participate in the defense of such claim through counsel of its own choosing;
provided, however, that Gateway shall not be required to pay any settlement
amount that it has not approved in advance, Gateway shall direct and control the
conduct of the defense, and Dow Jones shall pay all costs and expenses in
connection with such chosen counsel.
(c) DISCLAIMER; LIMITATION ON DAMAGES. DOW JONES PROVIDES THE
PUBLICATIONS LIBRARY CONTENT "AS IS", WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES.
DOW JONES AND ITS LICENSORS DO NOT WARRANT THE ACCURACY, TIMELINESS,
COMPLETENESS, ADEQUACY, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE CONTENT PROVIDED AS PART OF THE PUBLICATIONS LIBRARY.
EXCEPT FOR AMOUNTS OWED TO GATEWAY PURSUANT TO SECTION 7(A) OF THIS AGREEMENT,
DOW JONES AND ITS LICENSORS SHALL NOT BE LIABLE TO GATEWAY OR TO ANY THIRD PARTY
IN RESPECT OF ANY ACTUAL OR ALLEGED ERROR, OMISSION, INACCURACY, UNTIMELINESS,
OR INADEQUACY IN SUCH CONTENT, AND HEREBY DISCLAIM ANY WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GATEWAY
SHALL NOT MAKE ANY STATEMENT RESPECTING DOW JONES OR THE PUBLICATIONS LIBRARY
CONTENT THAT IS CONTRADICTORY OR INCONSISTENT WITH THE FOREGOING STATEMENTS OR
WITH THE DJ SUBSCRIPTION AGREEMENT. EXCEPT FOR AMOUNTS PAID PURSUANT TO SECTION
7 OR IN CONNECTION WITH A BREACH OF SECTION 8 OF THIS AGREEMENT, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER PARTY HERETO FOR ANY DAMAGES OTHER THAN DIRECT AND
STATUTORY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, SPECIAL,
INDIRECT, AND EXEMPLARY DAMAGES.
8. CONFIDENTIAL INFORMATION.
Gateway 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, pricing information, and technical,
technological and operational 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"). Gateway acknowledges and agrees that
all Specifications, and all technical, technological and operational information
about the Publications Library, are Confidential Information of Dow Jones. In
addition, private or confidential information that is orally disclosed to the
other party shall constitute Confidential Information if within ten (10) days
after such disclosure the disclosing party delivers to the receiving party a
written document describing such Confidential Information
8
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
the terms and conditions of this Agreement shall be deemed Confidential
Information of the other party hereto. 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, (vi) is released from confidential treatment by written consent of
the disclosing party, or (vii) is required to be disclosed by operation of law.
9. TERM AND TERMINATION.
(a) TERM. The initial term of this Agreement shall commence on
the Effective Date, and unless terminated earlier pursuant to this Agreement,
shall terminate one (1) year after the Commercial Availability Date (the
"Initial Term"). The term hereof shall be extended for consecutive additional
one-year periods (each, a "Renewal Term"), unless either party delivers to the
other party notice of its election not to renew at least ninety (90) days prior
to the end of the Initial Term, or any Renewal Term, as the case may be. The
"Term" shall be defined as the Initial Term and all Renewal Terms, if any.
(b) TERMINATION FOR DEFAULT. If either party defaults in the
performance of or compliance with any provision contained in this Agreement and
such breach is not cured within thirty (30) days after written notice thereof
was given to the appropriate party, the party giving such notice may then give
further written notice to such other party terminating this Agreement, in which
event this Agreement and the rights granted hereunder shall terminate on the
date specified in such further notice. The party giving such notice of
termination shall have such other remedies as the law or equity may afford, and
such party's rights and remedies on breach or default by the other party are
cumulative and not exclusive of those other remedies.
(c) CHANGE IN CONTROL. If there occurs during the term hereof
any change in the effective voting control of Gateway or any merger into or
acquisition by any third party of Gateway, or the sale or transfer of the
Gateway Service or substantially all of Gateway's assets to any third party (a
"Control Event"), Gateway shall notify Dow Jones in writing of such Control
9
Event within ten (10) days after its effectiveness, and Dow Jones may, within
thirty (30) days after receipt of such notice, terminate this Agreement upon at
least sixty (60) days' prior written notice. Gateway may notify Dow Jones in
writing of any proposed Control Event prior to its proposed effectiveness, and
Dow Jones shall within thirty (30) days after receipt of such notice, notify
Gateway in writing whether Dow Jones would exercise its right to terminate this
Agreement if such proposed Control Event were consummated.
(d) GATEWAY ALTERATIONS. If, pursuant to Section l(c), Gateway
is unable, after using reasonable commercial efforts, to make the necessary
Gateway Alterations, or if such Gateway Alterations do not successfully complete
the Testing Procedures, either party may terminate this Agreement by delivering
at least thirty (30) days prior notice to the other party.
(e) TERMINATION OF PUBLICATIONS LIBRARY. Either party may
terminate this Agreement, upon at least ninety (90) days advance notice, if Dow
Jones ceases publishing the Publications Library via the World Wide Web, or if
Gateway ceases offering or publishing the Gateway Service substantially as it
existed on the Commercial Availability Date.
(f) INSOLVENCY. In the event that either party shall be
adjudged insolvent or bankrupt, or upon the institution of any proceedings by
such party 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 sixty (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 upon delivery of notice.
(g) EFFECT OF TERMINATION. Upon the expiration or termination
of this Agreement for any reason, Gateway shall immediately (1) cease all
marketing and selling of the Publications Library; (2) inhibit all access to and
display of the Publications Library Content through or from the Gateway Service;
and return to Dow Jones, at Gateway's expense, all Dow Jones Confidential
Information in its possession, together with a written statement by a senior
officer of Gateway that all such Confidential Information has been so returned.
Upon the expiration or termination of this Agreement for any reason, Dow Jones
shall immediately return to Gateway, at Dow Jones' expense, all Gateway
Confidential Information in its possession, together with a written statement by
a senior officer of Dow Jones that all such Confidential Information has been so
returned.
10. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder ("Notices") shall be in writing. All Notices shall be delivered in
person, by reliable overnight courier service, by facsimile transmission, by
email with confirmation of delivery, or by U.S. first
10
class mail, to the address or facsimile number of the party set forth below, or
to such other addresses as may be stipulated in writing by the parties pursuant
hereto. A Notice shall be deemed delivered and received, and effective, on the
date it is officially recorded as delivered, as evidenced by delivery receipt or
equivalent.
(b) AMENDMENT. This Agreement may not be amended except by
written instrument executed by an authorized representative of Gateway and Dow
Jones.
(c) BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be
binding upon and shall inure to the benefit of the undersigned parties and their
respective successors and permitted assigns. No assignment of any right or
delegation of any duty under this Agreement shall be made by either party, by
operation of law or otherwise, without the prior written consent of the other.
Any such purported assignment or delegation or other transfer without such prior
written consent of the other party hereto shall be void.
(d) HEADINGS. The headings of sections and paragraphs are
included for convenience of reference only and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
(e) SURVIVAL OF CERTAIN PROVISIONS. Notwithstanding the
expiration or termination of this Agreement, Sections 5(b), 5(c), 5(d), 5(e), 6,
7, 8, 9(g) and 10, and all payment obligations accruing, but not paid, prior to
such expiration or termination, shall survive the expiration or termination of
this Agreement.
(f) WAIVER. The failure of either party at any time to require
performance by the other party of any provision hereof shall in no way 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
provision itself.
(g) SEPARABILITY. If any provision of this Agreement shall be
held to be unenforceable, the remainder of the Agreement shall not be affected
by such holding.
(h) EXCUSE OF PERFORMANCE. Performance by either party under
this Agreement shall be subject to and shall be excused to the extent and during
the period that it shall be rendered impossible by any event, condition or
occurrence beyond the reasonable control of such party.
(i) RELATIONSHIP OF THE PARTIES. This Agreement does not and
shall not be deemed to constitute a partnership or joint venture between the
parties. Neither party nor any of their respective directors, officers,
employees or agents shall, by virtue of the performance of their obligations
under this Agreement, be deemed to be an agent or employee of the other.
11
(j) GOVERNING LAW. This Agreement and all rights and
obligations hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to contracts wholly made and wholly
performed in New York. This Agreement will not be governed by the United Nations
Convention on Contracts for the International Sale of Goods.
(k) COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
(l) ENTIRE AGREEMENT. This Agreement contains the final and
entire agreement of the parties on the subject matter herein, and supersedes all
previous oral and written understandings, negotiations, and agreements on the
subject matter hereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed this
Agreement through their respective authorized representatives as of the
Effective Date.
DOW JONES & COMPANY, INC. MEDSCAPE, INC.
By: /s/ Jessica Perry By: /s/ Paul T. Sheils
------------------------------- ----------------------------
Name: Jessica Perry Name: Paul T. Sheils
Title: Director, Distribution Strategy Title: CEO
Date Signed: 7/13/98:
Notice Addresses for Dow Jones: Notice Addresses for Gateway:
U.S. Highway One at Ridge Road 134 West 29th Street
South Brunswick, New Jersey 08852 New York, NY 10001
Attn.: Director, Content Distribution,
Dow Jones Interactive Publishing
phone: 609-520-4902
fax: 609-520-4072
email: jperry@wsj.dowjones.com
with a copy to:
[same address]
Attn.: Legal Department
phone: 609-520-4094
fax: 609-520-4021
email: bob.firestone@cor.dowjones.co
12
SCHEDULE OF EXHIBITS
A Definition of Gateway Service
B Standard DJ Subscription Agreement
C Contact Persons for Each Party
D Dow Jones Online Advertising Guidelines
E Commission; Monthly Report
13
EXHIBIT A
DEFINITION OF GATEWAY SERVICE
At www.medscape.com, Gateway maintains a site on the World Wide Web offering
content and services for the medical community. The site is free to users, but
access to certain sections requires that the user first register with the
Gateway. The site's content and services include: Full-text, peer-reviewed
clinical medicine articles; Medscape's Journal Club Forum for member
discussions; Smart "hyper-keyword" searches; Navigable article outline;
graphics; annotated links to Internet resources; ability to search Medscape's
database of full-text articles; medical news Self-assessment features;
continuing medical education resources; free subscription to Medscape's a weekly
email newsletter highlighting what's new on Medscape.
14
EXHIBIT B
STANDARD DJ SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT FOR
DOW JONES INTERACTIVE ON THE WEB
THIS AGREEMENT WAS LAST UPDATED ON [MAY 21, 1998].
Dow Jones Interactive is a news and information service from Dow Jones & Company, Inc. By clicking the "I Accept" button, and using Dow Jones
Interactive, you are indicating that you are 18 years old or older, and that you
agree to be bound by all of the terms in this Subscription Agreement. You may
print and keep a copy of this Agreement. Dow Jones may change the terms in this
Subscription Agreement. When the terms are changed, Dow Jones will notify you by
e-mail and/or online postings. The changes also will appear in this document,
which you can access at any time by selecting Help " ?", then Subscription
Agreement. By accessing Dow Jones Interactive after any change in this
Subscription Agreement is posted, you agree to be bound by all of the changes as
well.
PRIVACY OF INFORMATION
By clicking the "I Accept" button, you also are agreeing that Dow Jones may
store information you provide as part of the registration process and usage
information, and provide aggregate statistical information about subscribers to
advertisers, potential advertisers, and content licensors. Dow Jones also may
use the information to inform you about other Dow Jones publications, products
and services, unless you notify Dow Jones that you do not wish to receive this
information. Dow Jones also may deliver additional messages about the Service to
you by e-mail.
As a general policy, Dow Jones does not disclose to third parties any specific
personal identifying information about you, such as your name, address, phone
number, or email address ("Personal Identifying Information"). Dow Jones will
not disclose any of your Personal Identifying Information to a third party
without first notifying you and giving you an opportunity to elect not to have
your Personal Identifying Information disclosed.
MANUALLY SIGNED PAPER AGREEMENTS
If Dow Jones and you or your employer have manually signed a paper version of a
contract governing your use of Dow Jones Interactive, or if you or your employer
subscribe to Dow Jones Interactive pursuant to an Enterprise Subscription
Agreement, the terms in that manually signed, paper document or Enterprise
Subscription Agreement are not amended by, and supersede, terms in this
Subscription Agreement.
15
FEES AND PAYMENTS
You can always find the current Subscription Fees and charges posted in Pricing
"$". Your subscription will continue until terminated by Dow Jones or until you
notify Dow Jones by telephone or electronic mail of your decision to terminate
your subscription. You agree to pay or have paid all fees and charges incurred
in connection with your user name or password at the rates in effect when the
fees and charges were incurred. All fees and charges are nonrefundable. Dow
Jones may charge late fees on overdue accounts, and you agree to pay or to have
paid all costs (including, without limitation, attorneys' fees) incurred to
collect overdue amounts. Dow Jones may change the Subscription Fees and charges
then in effect, or add new fees or charges, by giving you notice in advance.
All fees and charges incurred in connection with your user name or password will
be billed to the credit card you designate during the registration process for
Dow Jones Interactive or the service which provides you access to Dow Jones
Interactive (or, if agreed in advance by Dow Jones, billed by paper invoice.) If
there are any annual, monthly or similar periodic fees for your Dow Jones
Interactive subscription, these fees will be billed automatically to your credit
card at the start of the annual, monthly or similar period, and at the start of
each renewal period, unless you terminate your Subscription before the relevant
period begins. If you want to designate a different credit card or there is a
change in your credit card validity or expiration date, or if you believe
someone has accessed Dow Jones Interactive using your user name or password
without your authorization, you must call Dow Jones Customer Service at the
telephone numbers posted in Help "?". You also are responsible for any fees or
charges incurred to access Dow Jones Interactive through an Internet access
provider or other third party service. YOU, AND NOT DOW JONES, ARE RESPONSIBLE
FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE
NOT AUTHORIZED BY YOU.
IF DOW JONES AND YOU OR YOUR EMPLOYER HAVE MANUALLY SIGNED A PAPER VERSION OF A
CONTRACT GOVERNING YOUR USE OF DOW JONES INTERACTIVE, OR IF YOU OR YOUR EMPLOYER
SUBSCRIBE TO DOW JONES INTERACTIVE PURSUANT TO AN ENTERPRISE SUBSCRIPTION
AGREEMENT, SOME OR ALL OF THESE "FEES AND PAYMENTS" TERMS MAY NOT APPLY TO YOU.
PLEASE CONTACT YOUR EMPLOYER FOR DETAILS.
COPYRIGHT AND LIMITATIONS ON USE
Only one individual may access Dow Jones Interactive at the same time using the
same user name or password, unless agreed otherwise by Dow Jones. The content
available through Dow Jones Interactive is the property of Dow Jones or its
licensors and is protected by copyright and other intellectual property laws.
Content received through Dow Jones Interactive may be displayed, reformatted and
printed for your personal, non-commercial use only. You are not to reproduce,
retransmit, distribute, display, sell, publish, broadcast or circulate any
content received through Dow Jones Interactive to anyone, including but not
limited to others in the same company or organization, without the express prior
consent of Dow Jones, with this one exception:
16
You may, on an occasional and irregular basis, disseminate an insubstantial
portion of content retrieved from Dow Jones Interactive, for a noncommercial
purpose, without charge, and in non- electronic form, to a limited number of
individuals, provided you include all copyright and other proprietary notices
with such portion of the content in the same form in which the notices appear in
Dow Jones Interactive, and the phrase "Used with permission from Dow Jones
Interactive." To request consent for other matters, please send an e-mail using
the Feedback icon.
Dow Jones Interactive includes facts, views, opinions and recommendations of
third parties deemed of interest. Dow Jones and its content licensors do not
guarantee the accuracy, completeness or timeliness of, or otherwise endorse,
these views, opinions or recommendations, give tax or investment advice, or
advocate the purchase or sale of any security or investment.
DISCLAIMER OF WARRANTIES AND LIABILITY
Due to the number of sources from which content on Dow Jones Interactive is
obtained, and the inherent hazards of electronic distribution, there may be
delays, omissions or inaccuracies in such content and Dow Jones Interactive. DOW
JONES AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE
ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE CONTENT AVAILABLE THROUGH DOW JONES INTERACTIVE
OR DOW JONES INTERACTIVE ITSELF. DOW JONES AND ITS AFFILIATES, AGENTS OR
LICENSORS SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGE,
OTHER THAN DEATH OR PERSONAL INJURY RESULTING DIRECTLY FROM USE OF DOW JONES
INTERACTIVE, CAUSED IN WHOLE OR PART BY CONTINGENCIES BEYOND THEIR CONTROL OR
NEGLIGENCE IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING DOW
JONES INTERACTIVE AND ANY CONTENT THROUGH DOW JONES INTERACTIVE. IN NO EVENT
WILL DOW JONES, ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE
ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH CONTENT.
DOW JONES AND ITS AFFILIATES, AGENTS AND LICENSORS SHALL NOT BE LIABLE TO YOU OR
ANYONE ELSE FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES (INCLUDING, WITHOUT
LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES)
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIABILITY
OF DOW JONES, ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY
KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY
CONNECTED WITH DOW JONES INTERACTIVE OR THE CONTENT IN DOW JONES INTERACTIVE
SHALL NOT EXCEED THE AMOUNT YOU PAID TO DOW JONES FOR THE USE OF DOW JONES
INTERACTIVE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
CLAIM.
17
ADDITIONAL LEGAL TERMS AND CONDITIONS
Certain content licensors require Dow Jones to post additional legal terms,
particularly as new content is added to Dow Jones Interactive. Additional legal
terms and notices regarding Dow Jones Interactive and its content are located in
Help "?", under "Additional Legal Terms and Notices." You agree to read and be
bound by these additional legal terms and notices. You are urged to consult Help
" ?" each time you access Dow Jones Interactive. By accessing Dow Jones
Interactive after any additional legal terms or notices are posted, you are
agreeing to be bound by these additional legal terms and notices.
Dow Jones may discontinue or change Dow Jones Interactive or certain content
within Dow Jones Interactive, or its availability to you, at any time, and you
may always terminate your subscription at any time. This Agreement is personal
to you, and you may not assign your rights or obligations to anyone. If any
provision in this Agreement is invalid or unenforceable under applicable law,
the remaining provisions will continue in full force and effect. This Agreement,
your rights and obligations, and all actions contemplated by this Agreement
shall be governed by the laws of the United States of America and New York
State, as if the Agreement was a contract wholly entered into and wholly
performed within New York State. This Agreement will not be governed by the
United Nations Convention on Contracts for the International Sale of Goods.
IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS IN THIS AGREEMENT, PLEASE INDICATE
YOUR ACCEPTANCE BELOW:
[I Accept icon] [I Reject icon]
Copyright 1998 Dow Jones & Company, Inc. All rights reserved.
18
EXHIBIT C
CONTACT PERSONS FOR EACH PARTY
FOR DOW JONES
TECHNOLOGY AND COMMUNICATIONS
(From 9AM to 5PM, Monday through
Friday,
Princeton Time)
Steve Catricks
Email: stevec(gsysdev.dowjones.com
Telephone: 609-520-7651
(At all other times)
Dow Jones Global Operations Desk
Telephone: 609-520-4599
BILLING
Greg Baber
Email: greg.baber@mindspring.com
Telephone: 609-520-7099
CUSTOMER SERVICE
For Customer Support Questions:
Telephone: 800-369-7466
For Policy & Administration:
Pat Rodeawald
Email: patr@twsj.dowjones.com
Telephone: 609-520-4066
MANAGEMENT/MISCELLANEOUS
Jessica Perry,
Email: jperry,@wsj.dowjones.com
Telephone: 609-520-4902
FOR GATEWAY
TECHNOLOGY AND COMMUNICATIONS
Bill Seitz
VP Technology
Email: bill-seitz@mail.medscape.com
Telephone: 212-760-3190
Fax: 212-760-3147
BILLING
Mary Beth L. Dougherty
Director, Business Development
Email: marybeth_dougherty@maii.medscape.com
Telephone: 212-760-3246
Fax: 212-760-3140
CUSTOMER SERVICE
Mary Beth L. Dougherty
Director, Business Development
Email: marybeth_dougherty@maii.medscape.com
Telephone: 212-760-3246
Fax: 212-760-3140
MANAGEMENT/MISCELLANEOUS
Mary Beth L. Dougherty
Director, Business Development
Email: marybeth_dougherty@mail.medscape.com
Telephone: 212-760-3246
Fax: 212-760-3140
19
EXHIBIT D
DOW JONES ONLINE ADVERTISING GUIDELINES (AS OF 12/97)
Advertising or promotional materials related to the following products or
services shall not appear on any screen display or web page on which any
Publications Library Content, or any Dow Jones trademark, trade name or logo,
appears:
Tobacco products
Pornography or "adult services", including, without limitation, massage parlors
or escort services
Alcohol
Firearms
Employment recruiting
Advertisements for any product or service which gratuitously or excessively uses
the word "sex" or other sexually explicit or vulgar term or description
Games of chance, lotteries, gambling sites, and other products, services or web
sites involving wagering or betting
20
EXHIBIT E
COMMISSION; MONTHLY REPORT
Commission
For each calendar month during the Term, Dow Jones shall pay Gateway a
Commission equal to twenty percent (20%) of the Fees billed by Dow Jones for
Publications Library usage by Publications Library Subscribers who originated
their Publications Library accounts through the Gateway Service, minus: (1) an
amount reasonably accrued for anticipated bad debt, not to exceed three percent
(3%); (2) billing adjustments (other than bad debt), refunds and credits made in
the ordinary course of business; and (3) sales taxes.
Monthly Report
The Monthly Report will contain information sufficient to determine how Dow
Jones calculated the Commission, including the Fees billed, the amount of the
subtractions set forth above under "Commission", and how the Commission was
calculated.
21
Dow Jones Interactive Publications Library Internet Gateway Agreement - Dow Jones & Co. Inc. and Medscape Inc.
Was this helpful?