LINKING AGREEMENT
This Linking Agreement (the "Agreement") is made and entered into as of
February 10, 1999 (the "Effective Date") by and between Empower Health
Corporation ("EHC"), with offices at 8920 Business Park Drive, Austin, Texas
78759, and Physicians' Online ("POL"), with its principal place of business
located at 560 White Planes Road, Tarrytown, N.Y. 10591 (individually a "party"
and collectively, the "parties").
RECITALS
WHEREAS, EHC develops, markets and maintains an integrated suite of
Internet enabled, consumer oriented software applications and services,
including but not limited to, the Community Partner Program, electronic
commerce, advertising and promotional services on the Internet at the web site
located at URL: http://www.drkoop.com, or and any replacement or successor URL
(the "EHC Web Site");
WHEREAS, POL develops, markets and maintains an Internet site which
provides end user access to a Physician's directory for interactive queries
located on the Internet at the web site at URL: http://www.mydoctor.com and any
replacement or successor URL (the "MyDoctor Web Site"); and
WHEREAS, EHC and POL desire to promote the other party's web site through
cross links and other promotional activities upon the terms and subject to the
conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the obligations set forth below, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
1.1. Definitions. Capitalized terms used in this Agreement shall have
the meanings given below:
(a) Home Page shall mean the first page of a web site which is
displayed when accessing the associated URL.
(b) Links shall mean hypertext, text, banner, logo and contextual
links ("Graphical Image") which permit a user to go from one party's web site to
another by clicking on the Graphical Image.
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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 as * * *. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
ARTICLE 2.
LINKING AND PROMOTIONS
2.1. Linking
(a) POL shall establish and maintain at least one Link from the
(i) MyDoctor.com/resources page (or any replacement or successor page) to the
EHC Web Site Home Page, and (ii) MyDoctor.com/directory (or any replacement or
successor page) to the EHC Web Site Home Page. Further, POL shall establish one
or more Links from the MyDoctor Web Site to the EHC Web Site as POL deems
appropriate.
(b) EHC shall establish and maintain at least one Link from the
EHC Web Site Home Page to the MyDoctor.com/resources page (or any replacement or
successor page). Further, EHC shall establish one or more Links from the EHC Web
Site to the MyDoctor Web Site as EHC deems appropriate.
2.2. Joint Marketing Efforts
(a) POL and EHC agree to release a joint press release within
thirty (30) days of the Effective Date. From time to time thereafter, the
parties may issue joint press releases as mutually agreed upon.
(b) Upon mutual agreement of the parties, EHC and POL shall
participate in opportunities to promote their relationship in marketing and
promotional efforts.
(c) Where appropriate and at EHC's sole discretion, EHC may
periodically feature POL and the MyDoctor Web Site in its drkoop.com newsletter,
on the EHC Web Site Home Page and in other EHC marketing programs and marketing
materials.
(d) Where appropriate and at POL's sole discretion, POL will
periodically feature EHC and the EHC Web Site on the MyDoctor Web Site Home Page
and in its marketing programs and marketing materials.
(e) EHC and POL shall participate in joint sales and marketing
discussions at mutually agreed times and locations to discuss how the parties
can participate in additional joint marketing and business development
opportunities.
2.3. Banner Advertising.
(a) Each party (the "Selling Party") may sell the excess inventory
of banner advertising of the other party (the "Inventory Owner") subject to the
Inventory Owner's acceptance of such advertising. Such banner advertising may
only be sold bundled together with banner advertising of the Selling Party.
* * * (as defined below) generated by either party from such banner advertising
shall be
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* * * 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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shared between the parties with * * *. As used herein, "Revenue" means gross
revenue less reasonable amounts of actual, out-of-pocket paid for commissions,
in light of industry standards, and other direct costs. Banner advertising shall
be billed to the customer by the Selling Party.
ARTICLE 3.
PAYMENT AND FEES
3.1. Payment; Reporting. Fees from banner advertising are due and payable
within ten (10) days of receipt of payment by the Selling Party. In connection
with each banner advertisement sold, the Inventory Owner shall provide the
Selling Party on a monthly basis with a report setting forth the number of
impressions delivered of such banner advertisement.
3.2. Audit. Each party shall maintain records of all activities subject
to payments pursuant to this Agreement. Each party shall permit a reputable
independent certified public accounting firm designated by the other party to
have access, at a mutually agreed upon time during normal business hours, to the
records and books of account which relate solely to this Agreement for the
purpose of determining whether the appropriate fees have been paid. Such audits
may not be required more often than once every year; provided, however, that
either party may audit the other within six (6) months of any audit in which a
discrepancy of five percent (5%) or greater is discovered. If a discrepancy is
discovered, the party in whose favor the error was made will promptly pay the
amount of the error to the other. The party requesting the audit will pay the
cost of the audit, provided, that if a discrepancy is discovered of five percent
(5%) or greater, then the audited party will be required to pay the reasonable
costs of the audit.
ARTICLE 4.
TRADEMARKS AND OTHER PROPRIETARY MATTERS.
4.1. EHC Trademark License. Subject to the terms and conditions of this
Agreement, EHC hereby grants to POL a limited license to use the EHC trademarks
as set forth on Exhibit A (the "EHC Marks") on the MyDoctor Web Site solely for
purposes contemplated in this Agreement. If POL desires to use such EHC Marks
other than on the MyDoctor Web Site, POL shall, in each instance, obtain EHC's
prior written approval for use of the EHC Marks, which consent shall not be
unreasonably withheld or delayed.
4.2. Use of Name, Image and Likeness. POL shall not have any right to use
the name, image 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 EHC, which consent may be
withheld in EHC's sole discretion. EHC warrants to POL that it has all necessary
rights and interests to grant such consent.
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* * * 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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4.3. POL Trademark License. Subject to the terms and conditions of this
Agreement, POL hereby grants to EHC a limited license to use the POL trademarks
as set forth on Exhibit B (the "POL Marks") on the EHC Web Site solely for
purposes contemplated in this Agreement. If EHC desires to use such POL Marks
other than on the EHC Web Site, EHC shall, in each instance, obtain POL's
written approval for use of the POL Marks, which consent shall not be
unreasonably withheld or delayed.
4.4. Reservation of Rights. The parties acknowledge and agree that (i)
each party's Marks are and shall remain the sole property of that party; (ii)
nothing in this Agreement shall convey to either party any right of ownership in
the other party's Marks; (iii) neither party shall now or in the future contest
the validity of the other party's Marks; and (iv) neither party shall in any
manner take any action that would impair the value of, or goodwill associated
with, such Marks. The parties acknowledge and agree that all use of the other
party's Marks by a party shall inure to the benefit of the party whose Marks are
being used.
ARTICLE 5.
INTELLECTUAL PROPERTY
5.1. Retention of Rights. Except as expressly licensed under this
Agreement, each party shall retain all rights and interests in its web site,
trademarks, copyright and other intellectual property rights.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES; LIMITATIONS
6.1. EHC Warranty. EHC represents and warrants for the benefit of POL
that on the Effective Date and during the Term (as defined in Section 9) the:
(i) content developed by EHC, or on its behalf, on the EHC Web Site does not and
will not infringe any copyright, trademarks, or trade secrets of any third party
and does not and will not constitute a defamation or invasion of the rights of
privacy or publicity of any kind of any third party, (ii) EHC Web Site does not
violate the laws, statues or regulations of any jurisdiction, (iii) POL's use of
the EHC Marks pursuant to Article 4 does not violate the rights of any third
party, including without limitation, copyright, trademark, trade secret,
privacy, publicity or other right.
6.2. POL Warranty. POL represents and warrants for the benefit of EHC
that on the Effective Date and during the Term the: (i) content developed by
POL, or on its behalf, on the MyDoctor Web Site does not and will not infringe
any copyright, trademarks, or trade secrets of any third party and does not and
will not constitute a defamation or invasion of the rights of privacy or
publicity of any kind of any third party, (ii) MyDoctor Web Site does not
violate the laws, statues or regulations of any jurisdiction, and (iii) EHC's
use of the POL Marks pursuant to Article 4 does not violate the rights of any
third party, including without limitation, copyright, trademark, trade secret,
privacy, publicity or other right.
6.3. Indemnification By EHC. EHC agrees to indemnify and hold harmless
POL, its officers, directors, employees and agents from and against any claims,
demands, causes of action and judgments (including reasonable attorneys' fees,
court costs and costs of appeal)
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(collectively, "POL Claims") by any third party arising out of any breach or
alleged breach of any of EHC's representations and warranties contained in
Section 6.1, provided that POL gives EHC prompt written notice of the assertion
of any such POL Claim. EHC shall have the option to undertake and control the
defense and settlement of any such POL Claim; provided, however, that POL may
participate in any such proceeding at its own expense with counsel of its own
choosing.
6.4. Indemnification By POL. POL agrees to indemnify and hold harmless
EHC, its officers, directors, employees and agents from and against any claims,
demands, causes of action and judgments (including reasonable attorneys' fees
and court costs) (collectively, "EHC Claims") by any third party arising out of
any breach or alleged breach of any of POL's representations and warranties
contained in Section 6.2, provided that EHC gives POL prompt written notice of
the assertion of any such EHC Claim. POL shall have the option to undertake and
control the defense and settlement of any such POL Claim; provided, however,
that EHC may participate in any such proceeding at its own expense with counsel
of its own choosing.
ARTICLE 7.
LIMITATION OF LIABILITY
7.1. Warranty. THIS AGREEMENT IS AN AGREEMENT FOR SERVICES.
NOTWITHSTANDING THE FOREGOING AND EXCEPT AS SET FORTH IN ARTICLE 6, BOTH PARTIES
SPECIFICALLY DISCLAIM ALL WARRANTIES WITH REGARD TO THE MYDOCTOR AND EHC WEB
SITES, INFORMATION AND SERVICES PROVIDED THEREUNDER, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE. IN PARTICULAR, AND NOT BY WAY OF LIMITATION, THE PARTIES
DO NOT WARRANT THAT THE MYDOCTOR AND EHC WEB SITES WILL OPERATE ERROR-FREE OR
WITHOUT INTERRUPTION.
7.2. Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS
OR OTHER LOSS ARISING OUT OR RESULTING FROM THIS AGREEMENT EVEN IF EITHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY
REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF
WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY
OF LIABILITY. Notwithstanding the foregoing, and except as set forth in Article
6, the aggregate liability of either party arising with respect to this
Agreement will not exceed the amount of $50,000.
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ARTICLE 8.
CONFIDENTIALITY
8.1. Confidentially Obligations. Either Party (the "Disclosing Party")
may from time to time disclose Confidential Information to the other party (the
"Recipient"). "Confidential Information" is all nonpublic information
concerning the business, technology, internal structure and strategies of the
Disclosing Party which is conveyed to the Recipient orally or in tangible form
and is either marked as "confidential" or which is identified as "confidential"
prior to disclosure. During the Term of this Agreement and for a period of two
(2) years thereafter, Recipient will keep in confidence and trust and will not
disclose or disseminate, or permit any employee, agent or other person working
under Recipient's direction to disclose or disseminate, the existence, source,
content or substance of any Confidential Information to any other person.
Recipient will employ at least the same methods and degree of care, but no less
than a reasonable degree of care, to prevent disclosure of the Confidential
Information as Recipient employs with respect to its own confidential patent
data, trade secrets and proprietary information. Recipient's employees and
independent contractors will be given access to the Confidential Information
only on a need-to-know basis, and only if they have executed a form of non-
disclosure agreement with Recipient which imposes a duty to maintain the
confidentiality of information identified or described as confidential by
Recipient and after Recipient has expressly informed them of the confidential
nature of the Confidential Information. Recipient will not copy or load any of
the Confidential Information onto any computing device or store the Confidential
Information electronically except in circumstances in which Recipient has taken
all reasonable precautions to prevent access to the information stored on such
device or electronic storage facility by anyone other than the persons entitled
to receive the Confidential Information hereunder.
8.2. Permitted Disclosures. The commitments in this Section 8 will not
impose any obligations on Recipient with respect to any portion of the received
information which: (i) is now generally known or available or which, hereafter
through no act or failure to act on the part of Recipient, becomes generally
known or available; (ii) is rightfully known to Recipient at the time of
receiving such information; (iii) is furnished to Recipient by a third party
without restriction on disclosure and without Recipient having actual notice or
reason to know that the third party lacks authority to so furnish the
information; (iv) is independently developed by Recipient; or (v) is required
to be disclosed by operation of law or by an instrumentality of the government,
including but not limited to any court, tribunal or administrative agency.
ARTICLE 9.
TERM AND TERMINATION
9.1. Term. The term of this Agreement shall commence upon the Effective
Date and shall continue for one year (the "Term"). Thereafter, this Agreement
may be renewed for successive terms of one year each by mutual agreement of the
parties.
9.2. Termination for Convenience. Either party shall have the right to
terminate this Agreement, with or without cause, upon ninety (90) days prior
written notice to the other party. The parties hereto may also terminate this
Agreement with mutual written consent at any time.
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9.3. Termination for Breach. If either party is in default of any
material provision of this Agreement and such default is not cured within thirty
(30) days of receipt of written notice, the non-breaching party shall have the
right to terminate this Agreement. The remedy set forth in this Section 9.3
shall be non-exclusive and the non-terminating party shall have all other
remedies available at law and in equity.
9.4. Termination for Insolvency. Either party shall have the right to
terminate this Agreement in writing immediately if the other party (i)
voluntarily or involuntarily becomes the subject of a petition in bankruptcy or
of any proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors; or (ii) admits in writing its
inability to pay its debts as they become due.
9.5. Survival. The rights and obligations under Articles 5, 6, 7, 8 and
10 and Section 4.4 shall survive after the expiration or earlier termination of
this Agreement.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
10.1. Assignment. Neither party may sell, assign, transfer or otherwise
convey any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party, except that a party's
rights hereunder may be transferred to a successor of all or substantially all
of the business and assets of the party (no matter how the transaction or series
of related transactions is structured).
10.2. Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties, and supersedes all previous
agreements (whether written or oral) concerning the subject matter hereof. This
Agreement may not be amended or supplemented except by a written document
executed by the parties to this Agreement.
10.3. Arbitration. Any and all disputes, controversies and claims arising
out of or relating to this Agreement or concerning the respective rights or
obligations of the parties hereto shall be settled and determined by arbitration
before a panel of one (1) arbitrator pursuant to the Commercial Rules then in
effect of the American Arbitration Association. Each party shall have no longer
than 3 days to present its position. Judgment upon the award rendered may be
entered in any court having jurisdiction or application may be made to such
court for a judicial acceptance of the award and an order of enforcement. The
parties agree that the arbitrators shall have the power to award damages,
injunctive relief and reasonable attorneys' fees and expenses to any party in
such arbitration, subject to the limitations of Article 7.
10.4. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, but without giving effect to
its laws or rules relating to conflicts of laws.
10.5. Notice. All notices, statements, and reports required or permitted
by this Agreement shall be in writing and deemed to have been effectively given
and received: (i) five (5) business days after the date of mailing if sent by
registered or certified U.S. mail, postage
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prepaid, with return receipt requested; (ii) when transmitted if sent by
facsimile, provided a confirmation of transmission is produced by the sending
machine and a copy of such facsimile is promptly sent by another means specified
in this section; or (iii) when delivered if delivered personally or sent by
express courier service. Notices shall be addressed as follows:
For EHC: For POL:
Empower Health Corporation Physicians' Online
8920 Business Park Drive 560 White Planes Road
Austin, TX 78759 Tarrytown, N.Y. 10591
Attn: Chief Financial Officer Attn: Chief Technology Officer
Either party may change its address for the purpose of this paragraph by notice
given pursuant to this paragraph.
10.6. Force Majeure. Neither party hereto shall be in default hereunder by
reason of its delay in the performance or failure to perform any of its
obligations hereunder for any event, circumstance, or cause beyond its control
such as, but not limited to, acts of God, strikes, lock-outs, general
governmental orders or restrictions, war, threat of war, hostilities,
revolution, riots, epidemics, power shortages, fire, earthquake, or flood. The
party affected by any such event shall notify the other party within a maximum
period of fifteen (15) days from its occurrence. The performance of this
Agreement shall then be suspended for as long as any such event shall prevent
the affected party from performing its obligations under this Agreement.
10.7. Severability. The provisions of this Agreement are severable, and
in the event any provision hereof is determined to be invalid or unenforceable,
such invalidity or unenforceability shall not in any way affect the validity or
enforceability of the remaining provisions hereof.
10.8. Headings. The headings of the articles and several paragraphs of
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
10.9. Waiver. The waiver of a default hereunder by one party may be
effected only by a written acknowledgment signed by the other party and shall
not constitute a waiver of any other default. The failure of either party to
enforce any right or remedy for any one default shall be deemed a waiver of said
right or remedy if the party persists in such default or commits any other
default, nor shall such failure in any way affect the validity of this Agreement
or any part hereof.
10.10. Independent Parties. Nothing in this Agreement shall be deemed to
constitute, create, give effect to or otherwise recognize a partnership, joint
venture or formal business entity of any kind or create a fiduciary or similar
relationship among the parties; and the rights and obligations of the parties
shall be limited to those expressly set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the Effective Date.
Empower Health Corporation: Physicians' Online
Signature: \s\ Robert C.Hackett Jr. Signature: \s\ Jean Louis Ecochard
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Name: Robert C. Hackett Jr. Name: Jean Louis Ecochard
-------------------------------- ----------------------------------
Title: Executive Vice President Title: Chief Technology Officer
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EXHIBIT A
EHC Trademarks
Trademarks:
[LOGO]
EXHIBIT B
POL Trademarks
Physicians' Online, U.S. Reg. 1,945,952
Physicians' Online and Logo
Linking Agreements - Empower Health Corp. and Physicians' Online
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