DELMAR PUBLISHERS
LICENSE AND SERVICE AGREEMENT
This AGREEMENT is made as of the date of signing of the Agreement, December 22,
1998 by and between ("Delmar Publishers") as Licensor and ("WebMD, Inc.") as
Licensee.
Licensor: Delmar Publishers
3 Columbia Circle
Albany, NY 12203
Licensee: WebMD, Inc.
400 The Lenox Building
3399 Peachtree Road, NE
Atlanta, GA 30326
WITNESSETH
WHEREAS, Delmar Publishers has developed and copyrighted certain proprietary
healthcare and other content ("Content"), as more fully described in Appendix A
("Delmar Publishers Content"), and in conjunction with delivery of this Content,
Delmar Publishers shall provide Content Subscription and Promotional Support
("Subscription and Promotional Support"), as more fully described in Appendix B.
WHEREAS, the parties acknowledge that the Internet is neither owned nor
controlled by any one entity; therefore, Delmar Publishers can make no guarantee
that any given End-User shall be able to access the Content Service at any given
time. Delmar Publishers represents that it shall make every good faith effort
to ensure that its Content Service is available as widely as possible and with
as little service interruption as possible.
WHEREAS, WebMD intends to engage in the marketing, sale and provision of
healthcare and other content to Subscribers and End-Users of their service, and
wishes to license the Content and make use of Subscriptions and Promotional
Support Services to make the Content available through WebMD's World Wide Web
site located at www.webrn.com which will act as an Internet aggregator of
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content and services for the nursing profession and possibly other healthcare
professionals (the "WebMD Service") and possibly through its World Wide Web site
located at www.webmd.com, and known in this Agreement as the "Service".
DEFINITIONS
For purposes of this Agreement, the following definition of terms shall be used:
ADVERTISING. Payment by a third party for placement of an advertisement in
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conjunction with Content.
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SUBSCRIPTION. Payment by a third party healthcare related entity or an
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individual healthcare professional for access to Content through WebRN.
SPONSORSHIP. Payment by a third party for subscriptions for Subscriber access
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to Content involving placement of a company trademark or notification of a
company identity in conjunction with Content.
REVENUE. Payment by third parties for products and/or services before any
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subtractions for expenses or costs. Revenue includes payments of transaction
fees, advertising, sponsorships and other sources that are unnamed, but may
occur.
END-USERS. A subscriber or consumer of any of WebMD's world website services,
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including without limitation, those services offered through webmd.com and
webrn.com.
SUBSCRIBERS. A paying subscriber to the WebRN website services.
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NOW, THEREFORE, in consideration of the premises, mutual covenants, and promises
set forth herein, the parties hereto agree as follows:
ARTICLE - DUTIES OF LICENSOR
1.1 GRANT. Delmar Publishers hereby grants to WebMD for the term of this
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Agreement the nontransferable and nonexclusive right and license to the list of
content items available in the Delmar Catalog of products in accordance with
Appendix A. The list includes the rights to any Delmar-owned graphic,
illustration, photograph, video, audiotape, animation, testbank, cd-rom,
textbook or other article of content. WebMD will obtain the right to market
this content as is, or in a repurposed format agreeable to Delmar Publishers to
the "End-Users" of their service.
1.2 NONEXCLUSIVITY. This Agreement does not impose any obligation of
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exclusivity upon either party.
1.3 MARKETS. End-Users of Content are Nurses, Nursing Students, Consumers,
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Physicians, Corporations, Hospitals, Organizations who subscribe to and continue
to have access to the service via WebMD's World Wide Web sites, including
without limitation, WebRN or WebMD.
1.4 ADVERTISING AND SPONSORSHIP. Advertising and sponsorship may from time to
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time occur in conjunction with the Content. WebMD may sell sponsorship of an
entire electronic publication as listed in Appendix A. Advertising and
sponsorship occurring in conjunction with the Content (see APPENDIX A) may be
subject to regulatory limitation as interpreted and enacted by Delmar
Publishers.
1.5 DISTRIBUTION TERRITORY. Use of Content by WebMD is limited to "End-Users"
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of their Web Site Service.
1.6 ACCESS TO CONTENT. Delmar Publishers grants authorized End-Users of the
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Service (see Section 2.1 below) access to the Content through use of an industry
standard Web browser.
1.7 CONTENT AND SUBSCRIPTION & PROMOTIONAL SUPPORT. Delmar Publishers agrees
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to provide
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WebMD with technical support for integration of "Web-Ready" content to be used
on WebMD's website. In addition, Delmar Publishers agrees to deliver a "Web-
Ready" version of Delmar's PDR for Nurses, and develop and deliver Delmar's
Electronic Care Plan Maker, and Accu-Calc to WebMd in accordance with Appendix
B.
1.8 ACTIVITY REPORTING. WebMd shall maintain and provide Delmar Publishers with
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quarterly active Subscriber statistics for WebRN website service.
1.9 NOTICE OF CONTENT CESSATION. Delmar Publishers shall have the right to
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cease normal production or updating of any of the Web-Enabled Content outlined
in this Agreement, provided that such cessation by Delmar Publishers is not with
respect to WebMD alone but is part of a program by Delmar Publishers to cease
production or updating of such Content on or through other electronically
accessed networks, including but not limited to the same or similar On-line
Distributors on which the Service is available. Delmar Publishers shall give
WebMD three (3) months' written notice prior to Delmar Publishers requesting
WebMD to cease use of any Content set, as described above. Upon receipt of such
notice and subsequent removal of the subject Delmar Publishers Content from the
Service, WebMD shall have the right in its discretion: (a) to obtain from Delmar
Publishers substitute Content acceptable to WebMD and Delmar Publishers as a
replacement; or (b) to reduce the payments. In the event that Delmar Publishers
resumes production and/or updating of Content that Delmar Publishers previously
ceased producing or updating, WebMD shall have the right but not the obligation
to again use such formerly discontinued or non-updated Content in the Service in
accordance with this Agreement. If WebMD does so, it shall be under the same
terms and conditions as such Content was formerly used hereunder.
ARTICLE II - DUTIES OF LICENSEE
2.1 AVAILABILITY OF THE CONTENT TO END-USERS. WebMD shall take all reasonable
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steps to protect the content from malicious users, and unauthorized, copying,
distributing, publishing, transmitting, or displaying.
2.2 CONTENT INTEGRITY. WebMD shall not edit or otherwise effect an editorial
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change in the Content without Delmar Publishers' consent which shall not be
unreasonably withheld. It is agreed that graphical user interfaces (GUIs)
created by WebMD shall not violate the rights of Delmar Publishers hereunder.
The foregoing shall in no way prohibit WebMD from interlinking and cross-
referencing the Content with material from other Content providers.
2.3 PROPRIETARY INTEREST. WebMD acknowledges that Delmar Publishers has
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proprietary rights in and to the Content. WebMD shall not, by virtue of this
Agreement or by virtue of its access to the Content, obtain any proprietary
rights in or to the Content except the rights specifically granted to WebMD
herein. WebMD shall not use or transmit the Content except as specifically
authorized by this Agreement.
2.4 AUDIT AND REVIEW. As long as this Agreement is in effect, and for a one-
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year period thereafter, WebMd shall maintain and supply to Delmar Publishers
every calendar quarter records that are used to calculate payments to Delmar
Publishers. This includes records on use and distribution of the Content, and
logs maintained by web servers that record end user activity. Delmar Publishers
understands and agrees that all of WebMD's financial records and statements are
confidential and subject to the Confidentiality Agreement between the parties
effective upon signing of this Agreement.
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(a) Upon a minimum of twenty (20) business days' notice to WebMD, and
during business hours, Delmar Publishers may itself or through an agent at
its expense, audit relevant books and records of WebMD for the sole purpose
of determining that WebMD is in compliance with all of the terms of this
Agreement and that the proper payment, as described in Section 3 below, has
been paid to Delmar Publishers. Such an audit may not be made more
frequently than once every twelve (12) months and once within the twelve
(12) month period following conclusion or termination of this Agreement.
(b) In the event Delmar Publishers determines that payments are due from
WebMD, it shall so notify WebMD and provide WebMD with a calculation and
supporting explanation. WebMD shall thereupon have fifteen (15) business
days within which to pay the claim. In the event WebMD does not pay the
claim; the parties shall resolve their dispute by arbitration in the City
of New York in accordance with the Rules of the American Arbitration
Association. WebMD shall promptly pay any payment thus determined to be
due and unpaid.
2.5 COPYRIGHT NOTICE. When making the Content available to End-Users as
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permitted by this Agreement, WebMD shall cause a notice comprised of the
following elements to be conspicuously displayed during every End-User session
as appropriate to protect Delmar Publishers' intellectual property rights: (a)
the word "Copyright" or the symbol (C) (the letter c in a circle), (b) the year
of first publication of such document as specified by Delmar Publishers, (c) the
name of the copyright holder or, if space constraints require, an abbreviation
by which the name can be recognized or a generally known alternative
designation, and (d) the words "All Rights Reserved" (or, if space constraints
require, an abbreviation by which such phrase can be recognized that is
reasonably acceptable to Delmar Publishers).
2.6 END-USER AGREEMENT. When making the Content available to End-Users as
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permitted by this Agreement, WebMD shall cause to have included in the terms and
conditions of the applicable End-User agreement: (a) a provision prohibiting
use of materials retrieved through the Service in any fashion that may infringe
upon any copyright or proprietary interest therein; (b) a provision prohibiting
storage of materials retrieved through the Service in a searchable, machine-
readable database; (c) a provision limiting the liability of Delmar Publishers
in a manner similar to that contained in its electronic products, especially as
it applies to the use of healthcare information by professionals; (d) a
provision prohibiting use of all the Content from any commercial use, resale, or
mailing list database development, utilization or application.
Furthermore, WebMD shall place a notice relating to all the provisions described
above on one of the first introductory screens that Subscribers must view upon
entering or using the Service in all available media. Such notice shall require
Subscriber acknowledgment and acceptance to become an authorized, registered
Subscriber.
ARTICLE III - PRICING AND PAYMENT TERMS
3.1 PRICING/APPENDIX A
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(a) In consideration of Delmar Publishers' grant to WebMD of the right and
license to access the Content and Services outlined in Appendix A in
accordance with Article I above, throughout the term of this
Agreement, WebMD shall pay Delmar Publishers a minimum fee each year
of:
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*** for year one
*** for year two
*** for year three
(b) Plus, *** per month per WebRN Subscriber.
(c) Plus, *** (***) of all Net Revenue from advertising and sponsorship
occurring in conjunction with the Content. "Net Revenue" shall be
defined as gross receipts less any End-User credits or commissions
paid by WebMD to third parties.
3.2 PAYMENT TERMS/APPENDIX A
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(a) Pro-rata minimum payments shall be made in installments of the
guaranteed totals as indicated below.
DUE DATE AMOUNT DUE
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Dec. 23, 1998 ***
Jun. 15, 1999 ***
Jan. 15, 2000 ***
Jan. 15, 2001 ***
(b) Incremental payments for subscribers (at the rate of *** per WebRN
Subscriber per month) shall be paid each quarter starting on April 15,
1999 with a final payment during the term of this Agreement occurring
on January 15, 2002.
(c) Payments for advertising sponsorship shall be paid each quarter
starting on April 15, 1999 with a final payment during the term of
this Agreement occurring on January 15, 2002.
3.3 PRICING/APPENDIX B
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(a) In consideration of Delmar Publishers' grant to WebMD of the right and
license to access the Content and Services outlined in Appendix B,
Section 2 in accordance with Article I above, throughout the term of
this Agreement, WebMD shall pay Delmar Publishers the following for
each of the web-ready products mentioned below:
PRODUCT DOLLAR AMOUNT
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Accu-Calc; ***
Electronic Care Plan Maker ***
Medical Terminology ***
---
Total: ***
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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3.4 PAYMENT TERMS/APPENDIX B
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(a) Delmar Publishers agrees to provide all additional "web-enabled"
services (Accu-Calc, Electronic Care Plan Maker, and Medical
Terminology) in a "WebMD-Approved" format according to the schedule
outlined in Appendix B, Section 2.
WebMD will have until September 15, 1999 to use and test each product.
Unless Delmar Publishers is notified otherwise in writing by this
time, the products will be considered "WebMD-Accepted", and Delmar
Publishers will invoice WebMD the above mentioned product pricing,
{see Section 3.3 (a)j} which will be payable within 90 days.
BILL SEND DATE DUE DATE
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9/15/99 12/15/99
ARTICLE IV - TERM AND TERMINATION
4.1 TERM. This Agreement shall be effective for an initial term beginning upon
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the Effective Date and ending December 31, 2001 unless sooner terminated
pursuant to this Article IV.
4.2 FAILURE TO PERFORM. If either party to this Agreement shall fail to
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perform or observe any material term, covenant, agreement or warranty, or if any
material representation contained herein is untrue, the other party may
immediately terminate this Agreement if such failure is not corrected (if
reasonably correctable) within thirty (30) days of delivery of written notice
thereof to the other party.
4.3 BANKRUPTCY AND BUSINESS TERMINATION. If either party shall cease doing
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business, become insolvent, or if a petition in bankruptcy shall be filed with
respect to a party, or upon an attempted assignment not permitted under Section
6.6 below, the other party shall have the right to immediately terminate this
Agreement upon written notice to the other party. The right and license granted
by Delmar Publishers to WebMD herein with respect to the Content is deemed a
software license for purposes of Section 605(n) of the Federal Bankruptcy Act,
and WebMD shall have the full rights of a protected licensee thereunder.
4.4 TERMINATION WITHOUT CAUSE. WebMD shall have the right to terminate the
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agreement upon ninety (90) days written notice. Upon such cessation of the
Service, this Agreement shall terminate, and neither party shall have any
obligation to the other under this Agreement except WebMD shall remit all
Payments that accrued prior to such cessation.
4.5 CONDUCT UPON TERMINATION. Upon termination of this Agreement for any
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reason, WebMD shall cease solicitation for and use of the Content.
ARTICLE V - LIABILITY LIMITATION AND INDEMNIFICATION
5.1 LIMITATION OF LIABILITY. NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR
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IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE MARKETING AND SALE OF THE
CONTENT. NEITHER PARTY SHALL HAVE ANY LIABILITY TO ANY
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THIRD PARTY RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT OR FOR ANY
FAILURE TO PERFORM HEREUNDER. NEITHER PARTY HERETO, NOR THEIR RESPECTIVE
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND SUBCONTRACTORS, SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING
LOST PROFITS) INCURRED IN CONNECTION WITH SERVICES PERFORMED OR PRODUCTS
PROVIDED UNDER THIS AGREEMENT. NEITHER PARTY SHALL BE LIABLE FOR DAMAGES CAUSED
OR ALLEGEDLY CAUSED BY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION,
DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, OR COMMUNICATIONS LINE
FAILURE INVOLVING THE CONTENT SERVICE, AND NEITHER PARTY SHALL BE LIABLE FOR ANY
ACT OR INACTION OF END-USERS REGARDING THE CONTENT, AND CONTENT SERVICE
INCLUDING BUT NOT LIMITED TO MISUSE, ABUSE, INFRINGEMENT, THEFT OR DESTRUCTION
OR UNAUTHORIZED ACCESS TO, ALTERATION OF DELMAR PUBLISHERS' RECORDS, PROGRAMS,
OR USE OF THE CONTENT, WHETHER FOR BREACH OF CONTRACT (INCLUDING BREACH OF
WARRANTY, LOST PROFITS OR OTHER ECONOMIC LOSS), TORTIOUS BEHAVIOR (INCLUDING
STRICT LIABILITY) NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
Delmar Publishers expressly limits its damages to WebMD and End-Users of the
Content Service for any non-accessibility time or other down time to a pro-rata
credit of Delmar Publishers' charges during system unavailability. Delmar
Publishers specifically denies any responsibilities for any damages arising as a
consequence of such unavailability.
5.2 FORCE MAJEURE. Neither party shall be liable in damages for any delay or
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default in performing its obligations hereunder if such delay or default is
caused by matters beyond the reasonable control of the non-performing party,
such as but not limited to power failures, wars or insurrections, acts of God,
acts of government, strikes, fires, floods, earthquakes, work stoppages,
embargoes and/or inability to obtain material; provided, however, that the party
experiencing such occurrence shall notify the other party at the earliest
possible date and take reasonable steps to mitigate and/or cure the cause of
such delay.
5.3 INDEMNIFICATION.
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(a) Delmar Publishers shall indemnify and hold harmless WebMD its affiliates,
and its and their directors, officers, employees, agents, successors and assigns
against any and all judgments, settlements, penalties, costs and expenses
(including reasonable attorneys' fees) paid or incurred in connection with
claims by any party which are attributable to: Delmar Publishers' negligence or
misconduct in collecting, collating and compiling the Content from Delmar
Publishers' original data sources (including but not limited to drug
manufacturers); a material breach of any warranty or representation made or
obligation undertaken by Delmar Publishers under this Agreement or infringement
or misappropriation by the Content of any copyright or other proprietary right
of any third party.
(b) WebMD shall indemnify and hold harmless Delmar Publishers, its affiliates
and its and their directors, officers, employees, agents, successors and assigns
against any and all judgments, settlements, penalties, costs and expenses
(including reasonable attorneys' fees) paid or incurred in connection with
claims by any party which arise from WebMD's distribution of the Content under
this
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Agreement and are attributable to a failure of the hardware or software of
WebMD's computer system (other than the Content) or to a material breach of any
warranty or representation made or obligation undertaken by WebMD under this
Agreement.
(c) If any claim or action is instituted or threatened by a third party against
a party to this Agreement for which it believes it is entitled to be indemnified
pursuant to this Agreement, it shall promptly give notice thereof to the other
party, and cooperate fully with the indemnifying party. The indemnifying party
shall solely control the defense and settlement of such claims. The indemnified
party shall be permitted to participate in such defense and represent itself at
its own expense and to use counsel of its own choosing.
5.5 REPRESENTATIONS AND WARRANTIES. Delmar Publishers represents and warrants
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that it is authorized to grant the license herein to WebMD, and covenants that
WebMD's exercise of the license herein shall infringe no copyright or other
right of any person or entity. If any portion of the Content furnished to WebMD
under this Agreement becomes (or, in the good faith judgment of Delmar
Publishers, is likely to become) the subject of a claim for infringement or
misappropriation, Delmar Publishers may, upon notice to WebMD, request that
WebMD remove such portion of the Content from the Service, and WebMD shall
comply with such request promptly; provided however, that Delmar Publishers
shall not have the right to request such removal unless such materials are
required to be removed from the services of all other similarly situated on-line
vendors (if any) to whom they are made available by Delmar Publishers; and
provided that in the event of such removal, WebMD shall have the same rights
described in Section 1.11 above. Delmar Publishers represents and warrants that
it is not aware of any pending, threatened or possible claim or action by any
third party with respect to a possible violation of that third party's rights.
Delmar Publishers makes no warranties or representations of any kind, whether
expressed or implied for the Content and Content Service it is providing
regarding the merchant-ability or fitness for a particular use or purpose.
Connection speed to the service represents the speed of a connection and does
not represent guarantees of available end to end bandwidth.
The parties agree that WebMD makes no warranty or representation regarding, nor
is WebMD responsible for, the Content, which WebMD is obtaining from Delmar
Publishers under this Agreement, and as to which WebMD has a duty not to edit or
change (Section 2.3 above).
ARTICLE VI - MISCELLANEOUS
6.1 ENTIRE AGREEMENT AND AMENDMENT. Together with all written amendments,
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exhibits and appendices, this Agreement constitutes the entire agreement between
Delmar Publishers and WebMD with respect to the subject matter addressed herein.
This Agreement can only be modified or supplemented by writing signed by duly
authorized representatives of both parties. This Agreement shall be binding
upon the parties, their successors, legal representatives and permitted assigns.
WebMD and Delmar Publishers intend this Agreement to be a valid legal instrument
and no provision of this Agreement which shall be deemed unenforceable shall in
any way invalidate any other provision of this Agreement all of which shall
remain in full force and effect.
During the term of this Agreement the parties may under mutual consent reach a
new agreement on
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license of Content and provision of Content Services to WebMD. At such time,
this Agreement shall be amended to reflect any new understanding between the
parties.
6.2 ADVERTISING, TRADE NAMES, TRADEMARKS AND COPYRIGHTED MATERIALS.
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(a) WebMD hereby grants Delmar Publishers a revocable license to use any
WebMD service mark, trademark, trade name and logo associated with WebMD (the
"WebMD Marks") solely in the advertisement and promotion of WebMD during the
term of this Agreement. Delmar Publishers shall not use any mark, name or logo
to identify WebMD other than the WebMD Marks without WebMD's prior written
consent. Delmar Publishers acknowledges that the WebMD Marks are valid service
marks, trademarks, trade names and logos and the sole property of WebMD, and
Delmar Publishers shall not disparage or challenge the validity of the WebMD
Marks during the term of this Agreement. Delmar Publishers shall promptly notify
WebMD of any actual or alleged infringements of WebMD Marks of which Delmar
Publishers becomes aware during the term. Nothing contained herein shall be
construed to authorize Delmar Publishers: (i) to use any WebMD Marks as a mark,
name or logo or as part of the mark, name or logo of any firm, partnership or
corporation; (ii) to apply any WebMD Mark to any goods or to use any WebMD Mark
in connection with any services except as set forth in this Agreement; or (iii)
at any time after the termination of this Agreement, to apply any WebMD Mark to
goods or to otherwise use any WebMD Mark in any manner whatsoever. WebMD shall
be attributed as the source of the Service in all material produced by or for
Delmar Publishers where reference is made to the use of the Content as part of
the Service hereunder.
(b) Delmar Publishers hereby grants WebMD a revocable license to use any
of Delmar Publishers' service marks, trademarks, trade names and logos (the
"Delmar Publishers Marks") in the advertisement and promotion of WebMD during
the term of this Agreement. WebMD may use Delmar Publishers Marks, mention
Delmar Publishers' name and mention and/or describe the strategic relationship
between Delmar Publishers and WebMD in print and online advertisements,
marketing materials, registration statements and other reports that are filed
with the Securities and Exchange Commission (pursuant to which WebMD may also
file this Agreement as an exhibit) and other information; provided, however,
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that Delmar Publishers shall be given five days prior written notice of WebMD's
intention to use Delmar Publishers Marks, and Delmar Publishers shall not have
reasonably objected to WebMD's use of Delmar Publishers Marks prior to the
expiration of such five-day period. WebMD acknowledges that Delmar Publishers
Marks are valid service marks, trademarks, trade names and logos of Delmar
Publishers and the sole property of Delmar Publishers, and WebMD shall not
disparage or challenge the validity of Delmar Publishers Marks during the term
of this Agreement. WebMD shall promptly notify Delmar Publishers of any actual
or alleged infringements of Delmar Publishers Marks of which WebMD becomes aware
during the term of this Agreement. Delmar Publishers shall be attributed as the
source of the Content in sales literature and in End-User documentation (if
any), and Delmar Publishers.
6.3 CONFIDENTIALITY. Each party shall preserve the confidential information of
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or pertaining to the other party and shall not, without first obtaining the
other's written consent, disclose to any person or organization, or use for its
own benefit, any confidential information of or pertaining to the other party
during and after the term of this Agreement, unless such confidential
information is required to be disclosed by a court of competent jurisdiction or
by any governmental or self-regulatory organization or authority.
6.4 NOTICES. All notices, requests, demands and other communications or
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payments under this
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Agreement shall be in writing, and shall be deemed to have been duly delivered
if delivered by hand or sent by traceable carrier or prepaid registered or
certified mail addressed as follows (or to such other address as may be
designated by a party, in writing, pursuant hereto):
Licensee:
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WebMD, Inc. cc: Corporate Counsel
400 The Lenox Building 400 The Lenox Building
3399 Peachtree Road, NE 3399 Peachtree Road, NE
Atlanta, Georgia 30326 Atlanta, Georgia 30326
Attn: Jeff Arnold, Chief Executive
Officer
Licensor:
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Delmar Publishers
3 Columbia Circle
Albany, New York 12203
Attn: Greg Burnell, Chief Executive
Officer
6.5 GOVERNING LAW. This Agreement is made and entered into in the State of New
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York and shall be construed according to internal laws, and not the laws
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pertaining to choice or conflict of laws, of that State.
6.6 RELATIONSHIP AND ASSIGNMENT. Nothing in this Agreement shall be deemed to
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create an agency, joint venture, or partnership relationship between Delmar
Publishers and WebMD. Except as expressly set forth in this Agreement, neither
patty shall have authority to act on behalf of or bind the other party in any
way. Neither WebMD nor Delmar Publishers may assign this Agreement or delegate
any rights or obligations hereunder without the prior written consent of the
other party except to an affiliated entity controlled by or under common control
of a party hereto. In the event of a third party acquiring the assets of WebMD,
this Agreement is not transferable. Any attempted assignment by either party
without such consent shall be of no effect.
6.7 DUE AUTHORIZATION. Each of WebMD and Delmar Publishers represents and
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warrants that it is authorized to enter into this Agreement and that there are
no outstanding commitments, agreements, or understandings, express or implied,
which may or can in any way defeat or modify the rights conveyed or obligations
undertaken by it under this Agreement.
6.8 HEADINGS. The heading of each Article, Section, and Appendix of this
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Agreement is for the purpose of convenience only and shall not affect the
interpretation of any provision hereof.
6.9 SURVIVAL OF OBLIGATIONS. Articles III, IV, V and VI shall survive the
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termination or expiration of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer as of the day and year first above
written.
Delmar Publishers WebMD, Inc.
By: /s/ Greg Burnell By: /s/ W. Michael Heekin
------------------------- ------------------------------
Printed Name: Greg Burnell Printed Name: W. Michael Heekin
Title: President/CEO Title: Executive Vice President
Date: 12/22/98 Date: 12/22/98
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APPENDIX A
Delmar Publishers Content
Content to be made available to WebMD throughout the term of this Agreement for
use on WebMD's website consists of:
1. DELMAR'S NURSES DRUG DATABASE. This service is already "web-ready". It is
revised and up to date as of October 1, 1998. The content is almost equally
divided between pharmacological information and Nursing Considerations. Delmar
Publishers will provide to WebMD monthly updates to include newly approved
drugs, and new drugs uses, cautions, side effects, interactions, and warnings.
Any technical support required from Delmar to integrate this content into
WebMD's web-site will be provided ***.
2. DELMAR'S CATALOG OF PRODUCTS as listed up to December 31, 1998. (see
attached catolog) Only Delmar-owned, copyrighted text, graphic, illustration,
photograph, video, audiotape, animation, testbank, cd-rom content.
3. WEB HOSTING SERVICES: Delmar Publishes agrees to provide web-hosting
services for all web-enabled products for WebMD (Delmar's Nurses Drug Database,
Accu-Calc, Electronic Care Plan Maker, and Medical Terminology) for a period of
up to 18 months, until such time that WebMD is ready to integrate the above-
mentioned Delmar content onto the existing WebMD/RN website. While Delmar
Publishers will assist in the development and hosting of a portion of the WebRN
website, it is understood that WebMD will retain their license to the content
outlined in Appendix A and B, regardless of whether it is hosted by Delmar,
WebMD or another third party.
The web-site will be operated and maintained by Delmar Publishers and selected
partners to provide a design that is consistent with the current WebMD/RN web
site. Delmar Publishers and their partners agree to uphold a professional
diligence and skill in maintaining the web-site and in a manner consistent with
high industry standards.
4. ADVERTISING SERVICES. Delmar Publisher's agrees to provide WebMD with
prominent advertising space on Delmar's website, Nursing.com, for the term of
the agreement ***. Delmar Publishers will commit to including WebMD/RN's name,
logo and description of service on the Nursing.com. website. In addition, Delmar
Publishers will set up a hyperlink to the WebMD/RN website and maintain the link
for the life of the contract.
Delmar Publishers will also include advertisement for WebMD/RN in all Nursing
and Allied Health catalogs for the term of the Agreement. In addition, Delmar
Publishers will mention the same WebMD information listed above in all relevant
Nursing Marketing material ***.
5. CONSULTATION SERVICES. Delmar Publishers agrees to provide at least 4 hours
of in-person consultation services to WebMD/WebRN personnel every month for the
life of the contract.
***Omitted pursuant to a request for confidential treatment and filed separately
with the Commission
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APPENDIX B
DELMAR PUBLISHERS
SUBSCRIPTION AND PROMOTIONAL SUPPORT
1. DELMAR'S NURSES DRUG GUIDE. Delmar Publishers agrees to supply one copy
annually of the English language text version of the Drug database for Nurses
for each active Subscriber to the WebRN services. Delmar Publishers agrees to
bundle this product with a WebRN welcome letter and flyer and ship them to
Subscribers, upon mutually agreeable terms and conditions. This WebRN
Subscriber benefit will be in effect for the term of this agreement and in
accordance with all rights, privileges, and responsibilities outlined in Article
I, II, and III in this contract. WebMD will make the content available to
authorized Subscribers.
2. WEB-ENABLED PRODUCTS. Delmar Publishers agrees to provide to WebMD an
Internet compatible version of AccuCalc and Electronic Care Plan Maker and
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Delmar's Medical Terminology CD-ROM for use by WebMD for the term of this
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agreement and in accordance with all rights, privileges and responsibilities
outlined in Article I, II, and III ***. At its sole discretion, WebMD will make
the content available to all End Users.
Web-Enabled Product Delivery Schedule
PRODUCT ESTIMATED DELIVERY DATE
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Nurses Drug Database 15 days from contract signature date
Electronic Care Plan Maker 45 days from contract signature date
Medical Terminology 95 days from contract signature date
Accu-Calc 100 days from contract signature date
3. TECHNICAL SUPPORT. Delmar Publishers will provide ***, technical and
editorial support services for integration of Internet compatible content
outlined in section 1.2 of Appendix B for deployment and use on WebMD.
4. DELMAR / WEBMD/RN CO-BRANDED WEBSITE. Upon mutually agreeable terms and
conditions, Delmar Publishers agrees to develop and host a co-branded website
marketing Delmar text, video, and cd-rom products to WebRN and WebMD customers.
Delmar Publishers will fulfill all on-line sales orders for books off the co-
branded web-site and ship product to the customer. WebMD will be entitled to
*** of the net revenue collected from sales of Delmar /ITP content off the co-
branded website.
***Omitted pursuant to a request for confidential treatment and filed separately
with the Commission
Page 13 of 13
License and Service Agreement - Delmar Publishers and WebMD Inc.
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