{"id":42131,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/channel-management-agreement-mckesson-hboc-inc-and-avantgo.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"channel-management-agreement-mckesson-hboc-inc-and-avantgo","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/channel-management-agreement-mckesson-hboc-inc-and-avantgo.html","title":{"rendered":"Channel Management Agreement &#8211; McKesson HBOC Inc. and AvantGo Inc."},"content":{"rendered":"<pre>\n\n                         CHANNEL MANAGEMENT AGREEMENT\n\nThis Channel Management Agreement (the \"Agreement\") is made effective as of\nMarch 7, 2000 (the \"Effective Date\") by and between McKesson HBOC, Inc., a\n-------------                                                               \nDelaware corporation, with offices at One Post Street, San Francisco, CA 94104\n(\"McKesson\"), and AvantGo, Inc., a Delaware corporation with its principal place\nof business at 1700 S. Amphlett Blvd., Suite 300, San Mateo, CA 94402\n(\"AvantGo\").\n\n                                    RECITALS\n\nAvantGo operates an Internet service (the \"AG Service\") that facilitates\ndelivery of information obtained over the Internet through handheld devices.\n\nThe AG Service delivers information in several general interest categories and\nspecific subcategories each of which provides content supplied by individual\ncontent providers.\n\nAvantGo and McKesson have entered into an Amendment to License Agreement of even\ndate herewith under which McKesson has acquired a license to utilize certain\nAvantGo software (the \"Licensed Software\") in the conduct of its business,\nincluding offering information services to its customers.\n\nThe parties want McKesson to develop and manage a Health Category available\nthrough the AG Service.\n\nThe parties intend to share revenues generated by the Health Category, as well\nas revenues generated by similar activities conducted by McKesson using the\nAvantGo software on behalf of McKesson's customers, but do not intend to share\nrevenues arising from the operations of their respective core businesses.\n\nThe parties wish to set forth their understanding with regard to the foregoing\nmatters in this Agreement.\n\nNOW, THEREFORE, the parties agree as follows:\n\n                                   AGREEMENT\n\n1.   Certain Definitions\n\n     \"AG Site\" means the AvantGo Channels page located at\nhttp:\/\/avantgo.com\/channels or any successor site(s), including any page\nappearing on Handhelds serving similar functions.\n\n     \"Category\" is a general interest subject matter category, containing\nmultiple Channels, that appears on the first user search level of the AG Site at\nwhich Subscribers select Content.\n\n     \"Channel\" is a specific information stream within the Health Category\ndelivered via the AG Service to a Subscriber's Handheld. Currently, Content for\na particular Channel is typically web pages supplied by a single Content\nProvider, such as but not limited to an online publication or reference source,\nalthough advertising Content included in a particular Channel may be supplied by\none or more additional Content Providers.\n\n\n****** Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n\n \n     \"Confidential Information\" means (i) information about a party's (or its\nsuppliers') business or activities that is proprietary and confidential,\nincluding all business, financial, technical and other information of a party\nmarked or designated by the party as \"confidential\" or \"proprietary\"; (ii)\ninformation which, by its nature or the circumstances surrounding disclosure,\nought in good faith to be treated as confidential; and (iii) the terms and\nconditions of this Agreement. Confidential Information does not include\ninformation that (a) is in or enters the public domain without breach of this\nAgreement; (b) the receiving party lawfully receives from a third party without\nrestriction on disclosure and without breach of a nondisclosure obligation; (c)\nthe receiving party knew prior to receiving such information from the disclosing\nparty; or (d) the receiving party develops independently without use of the\ndisclosing party's Confidential Information.\n\n     \"Content\" is material supplied for delivery through the AG Service in the\nHealth Category which conforms to the Style Guide. It may include news stories,\nfeature articles, reference material, interactive services, advertising and\nother information.\n\n     \"Content Provider\" is an entity that enters into an agreement to furnish\nContent for distribution in the Health Category as described in this Agreement.\n\n     \"Handheld\" is any existing or future mobile computing or communication\ndevice, including but not limited to a cell phone, pager, handheld computer, or\nother portable device to which Content is or may in the future be delivered.\n\n     \"Health Category\" is the Category that includes Content in the Health\nSubject Areas.\n\n     \"Health Subject Areas\" are health, health care, disease, drugs and\npharmaceuticals, and medical matters.\n\n     \"Style Guide\" is the AvantGo guide which specifies guidelines and\nprocedures for developing material for the AG Service which is optimized for the\nsmall graphics display of Handhelds, a copy of which is located at\nhttp:\/\/corp.avantgo,com\/DevCorner\/StyleGuide\/.\n\n     \"Subscriber\" is any person that registers to receive Content through the AG\nService.\n\n     \"Technical Contact\" is a person appointed by AvantGo as the principal\ncontact for technical matters related to the AG Service and the Health Category.\n\n2.   McKesson Responsibilities\n\n     2.1  Category Management. McKesson will have sole authority to manage the\n          -------------------                                                 \nHealth Category, as follows.\n\n          2.1.1  Channels. McKesson's responsibilities will include exclusive\n                 --------                                                    \nmanagement of Content within the Health Subject Areas, except as provided in\nsection 3.5. McKesson will assume management of Channels within the Health\nSubject Areas promptly after the Effective Date and following orientation by\nAvantGo concerning the AG Service. Content Partner Agreements in existence prior\nto the Effective Date of this Agreement for Channels in Health Subject Areas may\ncontinue in effect only until they first expire or otherwise terminate, after\nwhich time any continuation will be within McKesson's sole discretion. McKesson\nwill determine appropriate Channels within the Health Subject Areas to add to or\ndelete from the Health Category. AvantGo may request that particular Content\nProviders or Channels be included in the Health Category, and McKesson will\nconsider in good faith accommodating such requests.\n\n\n                                    Page 2\n\n \nAvantGo will cooperate as reasonably requested by McKesson in connection with\nMcKesson's Health Category management and the allocation of Content to\nSubscribers.\n\n          2.1.2   Content Providers. McKesson will be responsible for all\n                  -----------------                                      \ninteraction with Content Providers relating to the scope and nature of the\nContent (as distinct from technical delivery of the Content). McKesson will\ninclude and exclude Content and Content Providers for the Channels in McKesson's\nsole reasonable discretion, and will communicate its determinations to AvantGo\nin a manner reasonably requested by AvantGo. Revenue will be collected and\nallocated in accordance with section 6 below.\n\n          2.1.3   Agreements. McKesson will negotiate all agreements with\n                  ----------\nContent Providers for the supply of Content in the Health Category. McKesson\nwill include in such agreements technical requirements reasonably requested by\nAvantGo. McKesson will obtain from Content Providers terms no less protective of\nAvantGo than those at Exhibit 2.1.3, and the agreement will state that AvantGo\nis a third party beneficiary of such terms. McKesson may extend to Content\nProviders promises and benefits on behalf of AvantGo no more burdensome to\nAvantGo than those specified in Exhibit 2.1.3. To the extent of the provisions\nin Exhibit 2.1.3 only, Content Providers shall be third party beneficiaries of\nthis Agreement. In McKesson's reasonable discretion, such agreements will\nprovide for compensation which may include, without limitation, any or all of\n[******].\n\n          2.1.4   McKesson Content. McKesson may itself supply Content for one\n                  ----------------\nor more Channels under the terms of this section 2.1.4 (\"McKesson Content\").\nSubject to its obligation to share revenue set forth in Section 6.2, McKesson\nwill not be obliged to pay fees for placement of McKesson Content on the AG\nSite. Notwithstanding the foregoing, if McKesson Content receives preferred\nplacement or is otherwise specially featured such that McKesson would charge\nanother Content Provider additionally for preferred treatment, then McKesson\nwill pay AvantGo [******].\n\n     2.2  Advertising. Except as provided in section 2.2.1, McKesson will have\n          -----------                                                         \nthe sole right and responsibility to enter into agreements for advertising and\nother promotions in the Health Category, provided that such capabilities are\navailable and offered through the AG Service and within the technical\ncapabilities of the AG Service. McKesson will confer with AvantGo on technical\nmatters relating to Health Category advertising, including but not limited to\ntargeting, the use of cookies and other visitor promotional and solicitation\ntools and techniques, and the requirements of third party advertising brokers\nand other vendors.\n\n          2.2.1   AvantGo Network. Subject to this section 2.2.1, AvantGo may\n                  ---------------                                            \ninvite Content Providers in the Health Category to participate in an \"AvantGo\nNetwork\" under which\n\n\n****** Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n                                    Page 3\n\n \nadvertisements are placed on various channels in the AG Service. To the extent\nreasonably practical from a technical perspective, McKesson may decline to allow\nthe placement of some or all such advertising on such basis as it reasonably\nconsiders appropriate, including but not limited to alternative advertising\nsales opportunities or avoiding excessive advertising clutter. Revenue derived\nfrom the portion of such advertising placed in the Health Category, allocated to\nthe Health Category on the basis of impressions or such other criteria as the\nparties agree, will be included as revenue shared under this Agreement.\n\n          2.2.2   Subcontracts. McKesson may subcontract the sale, serving and\n                  ------------                                                \nother aspects of advertising in its reasonable judgment.\n\n     2.3  Technical Contacts. McKesson and AvantGo will cooperate to allow\n          ------------------                                              \nContent Providers to communicate directly with AvantGo concerning technical\nmatters related to the supply and distribution of Content.\n\n     2.4  Non-Circumvention. Neither party will enter into deals with\n          -----------------                                          \nprospective Content Providers which are intended to circumvent, in whole or in\npart, the revenue sharing arrangements hereunder. The occurrence of any such\narrangement shall constitute a breach of this Agreement.\n\n3.  AvantGo Responsibilities\n\n     3.1  Hosting.\n          --------\n\n          3.1.1   Category Hosting. AvantGo will operate the AG Service and host\n                  ----------------                                              \nthe Health Category as part of the AG Site and in accordance with this\nAgreement. Except to the extent inconsistent with this Agreement, AvantGo will\nmaintain performance of the AG Site to be equal to or better than the\nperformance of other reasonably high-quality consumer oriented sites generally\nwith respect to uptime, responsiveness, and other common factors affecting site\nperformance.\n\n          3.1.2   Technical Support. All Content must conform to the Style\n                  -----------------\nGuide. AvantGo will use its commercially reasonable efforts to respond to all\nelectronic mail requests received during normal business hours within twenty-\nfour (24) hours, and will furnish such technical support to Health Category\nContent Providers as it furnishes to other Content Providers generally. AvantGo\nwill provide additional support to Content Partners, in AvantGo's sole\ndiscretion, subject to AvantGo's then-current time and materials rates. AvantGo\nwill continue to provide the \"Developer Corner\" area that is available to\nContent Providers and McKesson technical personnel on the site currently located\nat http:\/\/corp.avantgo.com\/DevCorner\/.\n\n          3.1.3   Site Operation and Navigation. AvantGo will undertake\n                  -----------------------------                        \ncommercially reasonable efforts to make the AvantGo Site continuously available\non the Internet, excluding reasonable scheduled maintenance periods. AvantGo\nwill not prevent or impede back channel and other Interact site and content\nnavigation generally available through Web browsers.\n\n          3.1.4   Subscriber Support. AvantGo will provide all technical support\n                  ------------------                                            \nto Subscribers to the Health Category as part of its Subscriber support for the\nAG Service generally. Subscriber support will be equal to or better than that\nprovided to users of non-Health Category channels.\n\n     3.2  Content Review. McKesson and AvantGo will cooperate to remove any\n          --------------                                                   \nContent that is defamatory, obscene, infringing, deemed hate speech, unlawfully\ninvasive or in any other\n\n\n                                    Page 4\n\n \nway unlawful, or that encourages violence, or otherwise is in violation of the\nContent Partner Agreements.\n\n     3.3  Promotion. AvantGo and McKesson will advertise and promote the Health\n          ---------                                                            \nCategory Channels and their Content, including but not limited to their launch.\nAvantGo promotion will be no less prominent than that typical of its\nadvertisement and promotion of other Categories, Channels and Content available\nthrough the AG Service in general.\n\n     3.4  Reports. AvantGo will provide monthly reporting to McKesson at the end\n          -------                                                               \nof the month of the total number of Subscribers to each Health Category Channel,\nand such other information reasonably available to AvantGo as McKesson\nreasonably requests. If AvantGo will incur more than minimal costs or charges to\ngenerate information that is not otherwise available, it will so advise McKesson\nin advance and McKesson will reimburse AvantGo or withdraw the request.\n\n     3.5  Non-Revenue Content. AvantGo may with McKesson's consent add Content\n          -------------------                                                 \nin a Health Subject Area that does not generate revenue. Such added Content may\nbe placed within or outside the Health Category as the parties agree, and may be\nadded in order to increase usage of the Health Category or the AG Service, or\nfor other purposes which benefit the Health Category or the AG Service\ngenerally. McKesson may decline some or all such added Content on such basis as\nit reasonably considers appropriate, taking into consideration the success and\npopularity of the Health Category as a whole, including but not limited to the\nbasis that it conflicts with agreements with Content Providers or with actual or\nproposed negotiations with potential Content Providers, but McKesson will not\nunreasonably reject such added Content.\n\n     3.6  Exclusivity. Except as expressly provided in sections 2.2.1 and 3.5,\n          -----------                                                         \nMcKesson has the exclusive right to obtain or provide, as the case may be, the\nsupply of Content for the Health Category. AvantGo will not designate any\nchannel or obtain, provide or distribute content that, in the aggregate over\ntime, is primarily within one or more of the Health Subject Areas. AvantGo will\nnot solicit or distribute through the AG Service advertising for information,\nproducts or services in the Health Subject Areas, other than that supplied\nthrough McKesson. No Category other than the Health Category will contain in its\ntitle the terms \"health\", \"wellness\", \"health care\", \"medical\", or \"medicine\" or\nany combination or synonyms of such terms.\n\n4.  Mutual Responsibilities\n\n     4.1  Principal Contacts; Meetings. Each party will appoint a person to be\n          ----------------------------                                        \nthe principal contact with the other for matters relating to this Agreement\n(each, a \"Manager\"). At least monthly, or at such other times as the parties\nagree, the Managers will meet to review the status of the activities relating to\nthis Agreement and to resolve any outstanding issues. Should the Managers be\nunable to resolve any issue, promptly upon the written request of either Manager\nspecifying the issue of concern, both Managers will arrange to have more senior\nofficers of each party meet to resolve the issue.\n\n          4.1.1   Technical Contact. AvantGo will appoint a Technical Contact as\n                  -----------------                                             \nthe principal contact for technical matters related to operation of Channels and\nthe AG Service, who will be available during business hours to assist or meet\nwith McKesson. The Technical Contact will also assist Content Providers to the\nsame extent as typically provided to other Content Providers. The Technical\nContact may be, but need not be the same person as the Manager appointed by\nAvantGo as its principal contact.\n\n\n                                    Page 5\n\n \n          4.1.2   Alternative Contacts. Each party will identify alternative\n                  --------------------                                      \ncontacts in case the principal contacts designated in accordance with this\nsection 4.1 are unavailable. Each party will give the other party the name,\ntelephone and other contact information for their respective principal contacts\nand alternative contacts, and will notify the other party reasonably promptly of\nany changes to its designated contracts or their contact information.\n\n     4.2  Branding and Licenses.\n          --------------------- \n\n          4.2.1   Category Branding. The Health Category will include in its\n                  -----------------  \nname \"Health\" or \"Health Information\" or similar terms and the phrase \"by\nMcKesson HBOC\" (or another phrase requested by McKesson such as \"presented by\nMcKesson HBOC\"). It will include the phrase and term in its listing with other\nCategories and in any and all other places on the AG Site in which it appears.\nThe Health Category will be listed no less prominently than is typical of any\nother AG Service Category, excluding special short-term promotions. Without\nlimiting the foregoing, the Health Category will typically be listed \"above the\nfold\" if any Category is typically listed \"above the fold\". To the extent that\nAvantGo is reasonably able to do so, it will feature the McKesson logo (or such\nother logo as McKesson substitutes) in the Health Category listing of the Health\nCategory pages.\n\n          4.2.2   Logo and License. McKesson will furnish AvantGo its logo in\n                  ----------------\nthe form of digitized art suitable for display on the AG Site as described in\nthis section 4.2. McKesson may from time to time furnish AvantGo other forms or\nformats of its name and logo for use in specific agreed promotional activities\nrelated to the Health Category.\n\n          4.2.3   McKesson Trademark License. Subject to the terms and\n                           -----------------\nconditions of this Agreement, McKesson hereby grants AvantGo a limited,\nworldwide, royalty-free, non-exclusive license to display its name and logo (the\n\"McKesson Marks\") as described in this section 4.2 during the term of this\nAgreement. Any such use of the McKesson Marks will be consistent in all respects\nwith then current trademark usage guidelines that McKesson may communicate to\nAvantGo from time to time. The parties agree that all rights and interests,\nincluding any and all goodwill therein and thereto, in and to the McKesson Marks\nshall inure to McKesson. AvantGo hereby assigns and agrees to assign and affirm,\nas requested by McKesson from time to time, all such rights and interests to\nMcKesson.\n\n          4.2.4   AvantGo Trademark License. Subject to the terms and conditions\n                          -----------------                                     \nof this Agreement, AvantGo hereby grants McKesson a limited, worldwide, royalty-\nfree, non-exclusive license to display its name and logo (the \"AvantGo Marks\")\nas described in this section 4.2 during the term of this Agreement. Any such use\nof the AvantGo Marks will be consistent in all respects with then current\ntrademark usage guidelines that AvantGo may communicate to McKesson from time to\ntime. The parties agree that all rights and interests, including any and all\ngoodwill therein and thereto, in and to the AvantGo Marks shall inure to\nAvantGo. McKesson hereby assigns and agrees to assign and affirm, as requested\nby AvantGo from time to time, all such rights and interests to AvantGo.\n\n          4.2.5   No Use of Similar or Competitors' Marks. AvantGo will not use\n                  ---------------------------------------                      \nany names similar to the McKesson Marks in connection with the AG Services or\notherwise, nor use names or marks that could reasonably be construed to identify\nMcKesson or its products or services, except in connection with the Health\nCategory and Content provided through McKesson. AvantGo will not use or\nauthorize others to use, in connection with the Health Category, trademarks or\nservice marks of any other party without McKesson's consent. Nothing contained\n\n\n                                    Page 6\n\n \nin this Agreement restricts AvantGo's ability to sell AvantGo Enterprise Server\nproducts to current or prospective customers.\n\n     4.3  Launch. In general, the parties will use diligent efforts to make the\n          ------                                                               \nHealth Category available on the AG Site, including but not limited to all\nContent necessary to make active Channels available. In particular, but without\nlimiting the foregoing, AvantGo will diligently implement all technical\nrequirements necessary and appropriate for the availability and distribution of\nContent through the Health Category. Each party will notify the other in writing\nof any material delay in the expected completion of its responsibilities.\n\n5.  Ownership\n\n     5.1  Party Technology. As between the parties, each party will retain\n          ----------------                                                \nownership and all rights in and to any and all U.S. and foreign intellectual\nproperty of any kind or nature in or comprising all software and other\ntechnology that is used in connection with this Agreement. However, any such\nsoftware or technology that is conveyed by one party to the other for the\nexpress written purpose of performing this Agreement will be deemed to be\nlicensed on a nonexclusive, fully-paid, revocable and nontransferable basis, for\nthe term of this Agreement, but excluding in all events the right to create\nderivative works of, distribute or sublicense such software or technology.\nNothing in this Agreement gives either party any other right, title or interest\nin or to the software or other technology of the other party. The provisions of\nthis section do not apply to jointly developed technology described in the\nfollowing section.\n\n     5.2  Jointly Developed Technology. It is the intent of the parties that no\n          ----------------------------                                         \nintellectual property in respect of technology (as distinct from Content as\nprovided in the following paragraph) of any kind or nature be created and owned\nby them jointly. However, to the extent that their joint activities result in\ntechnology or related intellectual property that is deemed under applicable laws\nto be jointly developed and jointly owned by them, the parties will affirm such\nownership in writing. The parties will cooperate, as either of them may\nreasonably request, in the protection of any such jointly owned intellectual\nproperty, by registration, prosecution and otherwise. However, neither party\nwill be required to be a named plaintiff or to expend money in connection with\nsuch protection. If such a protection action for which the parties may be joint\nplaintiffs or applicants or any related joint and equal expenditure of money is\nproposed by one party, and the other party refuses to expend such money or be a\njoint plaintiff, and if the proposing party proceeds with any such protection\naction as plaintiff or bearing all such expense, then such party may retain all\ncommercial and other rights specifically arising or maintained as a result of\nthe action, including but not limited to any right to receive and retain any\ndamages awarded or agreed. Neither party shall use or authorize any third\nparties to use any jointly owned technology or related intellectual property in\nconnection with the publication or distribution of Content in the Health Subject\nAreas other than Content distributed pursuant to this Agreement. Notwithstanding\nthe provisions of this section 5.2, a party may propose and the parties may\nmutually agree to other arrangements concerning cooperative efforts in\ndeveloping and owning technology.\n\n     5.3  Content. Content Providers will retain any ownership interest they may\n          -------                                                               \nhave in any and all Content they provide for distribution under this Agreement,\nunless they agree otherwise in writing. AvantGo and McKesson each will retain\nits respective ownership of Content. Each party will be deemed to license to the\nother party, as and to the extent reasonably necessary or useful in the\nperformance of this Agreement, on a nonexclusive, fully-paid, irrevocable and\n\n\n                                    Page 7\n\n \nnontransferable basis, for the term of this Agreement, any and all copyrighted\nmaterial that is provided to the licensee party for distribution through, or in\nconnection with the promotion of, the Health Category. It is the intent of the\nparties that no intellectual property of any kind or nature in respect of\nContent (as distinct from software and other technology as provided in the\npreceding paragraph) be created and owned by them jointly. However, to the\nextent that their joint activities result in Content or related intellectual\nproperty that is deemed under applicable laws to be jointly developed and\njointly owned by them, the parties will affirm such ownership in writing. The\nparties will cooperate, as either of them may reasonably request, in the\nprotection of any such jointly owned Content and intellectual property, by\nregistration, prosecution and otherwise. However, neither party will be\nrequired to be a named plaintiff or to expend money in connection with such\nprotection. If such protection action for which the parties may be joint\nplaintiffs or applicants or any related joint and equal expenditure of money is\nproposed by one party, and the other party refuses to expend such money, and if\nthe proposing party proceeds with any protection such action as plaintiff or\nbearing all such expense, then such party may retain all commercial and other\nrights specifically arising or maintained as a result of the action, including\nbut not limited to any right to receive and retain any damages awarded or\nagreed. In all events, neither party shall use or authorize any third parties to\nuse, publish or distribute any jointly owned Content or related intellectual\nproperty in connection with any publication or distribution of content except\npursuant to this Agreement. Notwithstanding the provisions of this section 5.3,\na party may propose and the parties may mutually agree to other arrangements\nconcerning cooperative efforts in developing and owning Content.\n\n     5.4   Subscriber Data. McKesson may retain for its exclusive use any data\n           ---------------                                                    \nconcerning Subscribers which it obtains from Content Providers. Neither party\nwill supply personally identifiable Subscriber data to third parties without the\nSubscriber's consent, except that a party may without consent supply personally\nidentifiable Subscriber data to a third party vendor, contractor or other entity\nto assist the party in its performance of functions related to the AG Service or\nother functions internal to the party, provided the third party shall have\nagreed to use personally identifiable Subscriber data for no other purpose.\n\n6.  Compensation\n\n     6.1  Costs. Each party will bear its own costs in performing this\n          -----                                                       \nAgreement.\n\n     6.2  Revenue Sharing. Health Category revenue received by either party as\n          ---------------                                                     \nwell as any revenue received by McKesson for Content offered using the Licensed\nSoftware on McKesson's servers running the AvantGo Software (collectively, the\n\"Shared Revenue\") will be divided by the parties as set forth on Exhibit 6.2.\nShared Revenue shall include, but shall not be limited to: [******].\nNotwithstanding the foregoing to the contrary, Shared Revenue shall not include \n[******]. For this calculation, revenue includes all money and the monetary\nequivalent of non-monetary consideration actually received. A party will notify\nthe other any time payment is to be in the form of non-monetary consideration,\nit shall\n\n****** Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n                                    Page 8\n\n \nobtain prior agreement of the other party as to the value of the non-monetary\nconsideration for revenue sharing hereunder, and shall pay the other its\nproportionate share in money.\n\n     6.3  Payment Terms. Shared Revenue payments will become due for each\n          -------------                                                  \ncalendar month during which a party receives revenue. AvantGo will report\nadvertising and other revenue received on account of the Health Category no\nlater than the 15th day of the following month. By the end of that following\nmonth McKesson will report to AvantGo the total Shared Revenue received by the\nparties and the revenue share amount due from McKesson to AvantGo, which payment\nwill accompany the report. If for any month the net amount of Shared Revenue is\nan amount payable by AvantGo to McKesson, then promptly upon receiving the\nMcKesson report (but in no event more than 30 calendar days thereafter) AvantGo\nwill remit the amount due. Each party's report will show the nature and source\nof revenues, identify the name and date of the contract which gives rise to the\nfee payment from the third party and such other detail as the patties agree, but\nin any case reasonable detail. Payments not made when due will bear interest\nuntil paid at the lesser rate of [******]% per month or the maximum rate allowed\nby law.\n\n     6.4  Audit Rights. Either party may audit the relevant books and records of\n          ------------                                                          \nthe other party necessary for determining revenue and amounts payable in\nconnection with this Agreement for any period not previously audited. The audit\nwill be by nationally recognized auditors reasonably acceptable to the other\nparty. Any such audit will be subject to reasonable notice given to the party\nbeing audited. The audit will take place during the audited party's normal\nbusiness hours and will be conducted in a manner that minimizes disruption to\nthe audited party's normal business activities. The audited party will provide\nreasonable facilities for the audit or allow the original books and records to\nbe taken off premise by the auditors or copied and taken off premises for the\nlimited purpose of the audit. The audited party may condition the audit upon\nreceiving the auditors' written promise in a form acceptable to the audited\nparty that information discovered in the course of the audit will be kept\nconfidential and only the amount of any overpayment or underpayment will be\ndisclosed to the auditing party. The auditing party will bear the cost of the\naudit. However, if the audit discloses any underpayment of five percent (5%) or\nmore for the audit period, then the audited party will pay the reasonable costs\nof the audit within forty five (45) days after receipt of invoice and reasonable\ncost documentation from the auditing party. Each party will keep records and\nbooks of account for at least three (3) years from the date of the relevant\nrecordable event.\n\n7.  Confidential Information\n\n     7.1  Nondisclosure. Each party (i) will not use or disclose to any third\n          -------------                                                      \nparty the other's Confidential Information except as expressly permitted in this\nAgreement, and (ii) will take all reasonable measures to maintain the\nconfidentiality of the other party's Confidential Information in its possession\nor control, but in no event less than the measures it uses to maintain the\nconfidentiality of its own information of similar importance.\n\n     7.2  Legal Process. If a party is required by subpoena or other mandatory\n          -------------                                                       \nprocess to disclose Confidential Information of the other party, it will give\nthe other party a copy of the process promptly upon receipt and cooperate with\nthe other party, at that party's expense, in reasonable efforts to defend\nagainst disclosure.\n\n     7.3  Copies of Content Provider Agreements. Within 30 days of execution of\n          -------------------------------------                                \nany Content Provider agreement, McKesson will deliver a copy to AvantGo. The\nContent Provider agreement will be Confidential Information under this\nAgreement.\n\n\n                                    Page 9\n\n \n8.  Warranties and Disclaimers\n\n     8.l  McKesson Warranties. McKesson warrants and represents that: (i) it has\n          -------------------                                                   \nsufficient authority to enter into this Agreement; (ii) all materials\noriginating with McKesson or identified by McKesson as \"McKesson Content\" and\ndelivered by McKesson to AvantGo, excluding content provided by AvantGo\n(directly or through third parties), are owned or licensed by McKesson and do\nnot infringe the copyright, trademarks or service marks of any third party;\n(iii) McKesson will not knowingly upload or permit or authorize any upload of\nany messages, data, images or programs to the Health Category that would violate\nthe property rights of others, including unauthorized copyrighted text, images,\nprograms or trade secrets or other confidential and\/or proprietary information,\nor trademarks or service marks used in an infringing fashion; and (v) the\nMcKesson Content, to the best of McKesson's knowledge, is factually accurate and\ndoes not contain any information, instruction or formula that might be injurious\nto anyone's physical well-being, and that it does not, and its use by AvantGo as\npermitted in this Agreement will not, defame or disparage any third  party.\nAvantGo's sole and exclusive remedy with respect to item (ii) relating to\nmaterials McKesson obtains from third parties is to obtain such relief as is\nactually obtained from the third party, up to the actual damages actually\nsuffered by the party seeking recovery from AvantGo and AvantGo's defense costs,\nand McKesson will make diligent efforts to obtain appropriate relief.\n\n     8.2  AvantGo Warranties. AvantGo warrants and represents that: (i) it has\n          ------------------                                                  \nsufficient authority to enter into this Agreement; (ii) all materials delivered\nby AvantGo to McKesson, excluding Content provided by McKesson (directly or\nthrough third parties), (\"AvantGo Content\") are owned or licensed by AvantGo and\ndo not infringe the copyrights, trademarks or service marks of any third party;\n(iii) to the best of its knowledge, any and all actions occurring on or through\nthe AG Site and the AG Service are in compliance with all applicable laws; (iv)\nas of the Effective Date the AG Service has approximately 350,000 registered\nSubscribers; and (v) AvantGo has submitted its privacy statement for review and\napproval by the TRUST-E privacy program, and, once approved, AvantGo shall\nremain in good standing or be a member in good standing of another industry-\nrecognized online privacy organization throughout the term of this Agreement.\nMcKesson's sole and exclusive remedy with respect to item (ii) relating to\nmaterials AvantGo obtains from third parties is to obtain such relief as is\nactually obtained from the third party, up to the actual damages actually\nsuffered by the party seeking recovery from McKesson and McKesson's defense\ncosts, and AvantGo will make diligent effort to obtain appropriate relief.\n\n     8.3  Disclaimers. Except as expressly set forth in this section 8, NEITHER\n          -----------                                                          \nPARTY MAKES, AND EACH PARTY SPECIFICALLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONTENT OR OTHERWISE UNDER THIS AGREEMENT,\nINCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,\nTITLE AND NONINFRINGEMENT, AND WARRANTIES IMPLIED FROM COURSE OF DEALING OR\nPERFORMANCE.\n\n9.  Indemnification. In this section \"Protected Materials\" means for AvantGo the\nAG Site, AvantGo's trademarks, the technology used by AvantGo to create the AG\nService, and the \"look and feel\" and other aspects of the AG Service itself; and\nfor McKesson, the McKesson Marks and the McKesson Content. Each party (an\n\"Indemnifying Party\") will indemnify, defend and hold harmless the other party,\nits affiliates, officers, directors, consultants and employees (collectively,\n\"Protected Parties\") from any and all liability, damages and\/or costs (including\nbut not\n\n\n                                    Page 10\n\n \nlimited to, reasonable attorney's fees and litigation costs) of third party\nclaims arising from (i) the Indemnifying Party's breach of any representation or\ncovenant in this Agreement; (ii) any claim that the Protected Materials infringe\nor violate the intellectual property rights of a third party; (iii) any claim\nthat the Protected Materials contain any false, deceptive, defamatory, or\nobscene material; or (iv) failure of the AG Site and the AvantGo software used\nto create and operate the AG Site to comply with applicable law and regulations.\nA Protected Party's sole and exclusive remedy with respect to Protected\nMaterials the Indemnifying Party obtains from third parties is to obtain such\nrelief as is actually obtained from the third party, up to the actual damages\nactually suffered by the party seeking recovery from the Protected Party and the\nProtected Party's defense costs, and the Indemnifying Party will make diligent\nefforts to obtain appropriate relief. A Protected Party will provide (x) prompt\nnotice of any such claim, (y) the Indemnifying Party sole control over the\ndefense and settlement of the claim, and (z) reasonable cooperation and\nassistance to the Indemnifying Party, at the Indemnifying Party's expense, to\ndefend and\/or settle the claim. The Protected Party nevertheless reserves the\nright to control any such defense if it believes that its rights are not being\neffectively protected.\n\n10.  Publicity\n\n     10.1  Press Release. The parties will promptly prepare a joint press\n           -------------                                                 \nrelease announcing the general terms of their relationship, including the\nAmendment to License Agreement and the \"Schedule D-2\" Statement of Work (both\nrelating to that certain License Agreement effective October 1, 1998, and both\nexecuted on or about the execution date of this Agreement). The joint press\nrelease will be released at such time as the parties mutually agree. No other\nannouncements will be made concerning this Agreement except as the parties\notherwise mutually agree.\n\n     10.2  Marketing. Each party will cooperate with reasonable efforts by the\n           ---------                                                          \nother to market and advertise the Health Category. Neither party will use the\nother's name or logo without prior approval of the named party.\n\n11.  Limitation of Liability\n\n     11.1  Limitation. NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL,\n           ----------                                                           \nINDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THIS\nAGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF THE PARTY HAS BEEN\nADVISED IN ADVANCE THAT SUCH DAMAGES ARE POSSIBLE. A PARTY'S LIABILITY WILL NOT\nEXCEED [******]. THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY PROVIDED IN THIS\nAGREEMENT SHOULD FAIL OF ITS ESSENTIAL PURPOSE.\n\n     11.2  Exclusion. The provisions of this section 11 do not apply to claims\n           ---------                                                          \narising under section 9 (\"Indemnification\") subpart (ii) at all, nor do they\napply to subparts (i), (iii), (iv) or (v) to the extent Protected Materials are\nobtained by either party, in whole or in part, from third parties and such party\nactually obtains relief for claims related to the subject matter of these\nsubparts.\n\n\n****** Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n                                    Page 11\n\n \n12.  Term and Termination\n\n     12.1  Initial and Renewal Term. This Agreement will be in effect for \n           ------------------------                                            \n[******] starting on the Effective Date. It will thereafter be renewed for two\nsuccessive [******] renewal terms, unless McKesson in its sole discretion gives\nwritten notice of nonrenewal at least 90 days prior to the end of the then-\ncurrent term.\n\n     12.2  Termination for Insolvency. This Agreement will terminate\n           --------------------------                               \nautomatically, with no further action of either party, if a party is adjudicated\nbankrupt, files a voluntary petition of bankruptcy, makes a general assignment\nfor the benefit of creditors, is unable to meet its obligations in the normal\ncourse of business or if a receiver is appointed on account of a party's\ninsolvency.\n\n     12.3  Termination for Breach. Either party may terminate this Agreement\n           ----------------------                                           \nupon a material breach by the other, by thirty days' prior written notice to the\nbreaching party, which describes the breach in reasonable detail. The notice\nwill become ineffective and the Agreement will remain in effect if the breach is\ncured before the end of the notice period.\n\n     12.4  Effect of Termination. Upon termination of this Agreement for any\n            --------------------                                            \nreason, all rights and obligations of the parties will cease, except as provided\nin this section and section 12.5. Any agreements with Content Providers will\ncontinue in effect until they expire (the \"Continuing Agreement\"), but in no\nevent more than one year after termination of this Agreement. During that time\nthe parties will continue to perform as required by this Agreement but solely\nwith respect to the Continuing Agreements. Revenue relating to the Continuing\nAgreements will be shared by the parties in such proportion as was in effect on\nthe day of termination.\n\n     12.5  Survival. Sections 1, 5, 8, 9.1, 11, 12.5 and 13 will survive any\n           --------                                                         \ntermination of this agreement.\n\n13.  General Provisions\n\n     13.1  Assignment. This Agreement will be binding on and inure to the\n           ----------                                                    \nbenefit of the parties and their respective heirs, successors, assigns and legal\nrepresentatives. Neither party may assign this Agreement other than to a\nsubsidiary or affiliate without the other party's prior written consent, given\nin its sole discretion. Assignment by operation of law is an assignment within\nthe meaning of this section. Any attempted assignment prohibited by this section\nis void. A party may not unreasonably withhold its consent to assignment of this\nAgreement in the event of a merger, consolidation, any sale of all or\nsubstantially all of the other's assets or any other transaction in which more\nthan fifty percent (50%) of the other's voting securities are transferred,\nprovided that no consent will be required in the event the shares of a\nsubsidiary or affiliate to which this Agreement has been assigned are\ndistributed to the shareholders of a party.\n\n     13.2  Entire Agreement. This Agreement is the entire agreement between the\n           ----------------                                                    \nparties with respect to its subject matter, and supersedes all prior agreements\nand understandings with respect to its subject matter.\n\n     13.3  Governing Law. This Agreement will be governed by California law\n           -------------                                                   \nwithout reference to its conflicts of law principles. All disputes in connection\nwith this Agreement will be subject to the exclusive jurisdiction of and venue\nin the federal and state courts located in San Francisco, California. Each party\nhereby consents to the personal and exclusive jurisdiction and venue of these\ncourts.\n\n\n****** Certain information on this page has been omitted and filed separately \nwith the Securities and Exchange Commission. Confidential treatment has been \nrequested with respect to the omitted portions.\n\n                                    Page 12\n\n \n     13.4  Severability. If any provisions of this Agreement are found invalid\n           ------------                                                       \nby a tribunal of competent jurisdiction, they are to that extent deemed omitted.\n\n     13.5  Modification and Waiver. Neither waiver of any particular breach or\n           -----------------------                                            \ndefault, nor any delay in exercising any rights, will constitute a waiver of any\nsubsequent breach or default. This Agreement may be amended only by a writing\nsigned by both parties.\n\n     13.6  Consent and Approval. Whenever this Agreement requires a party's\n           --------------------                                            \nconsent or approval, it will not be unreasonably withheld or delayed.\n\n     13.7  Notices. Notices permitted or required in this Agreement will be in\n           -------                                                            \nwriting and considered effective (i) when delivered in person, (ii) the day\nafter they are given prepaid to a nationally recognized overnight delivery\nservice, or (iii) 5 business days after they are mailed first class, registered\nor certified mail, postage prepaid, in each case to the address of the party\nfirst specified in this Agreement or such other address as either party may\nfurnish by notice.\n\n     13.8  Force Majeure. Neither party will be responsible for any failure to\n           -------------                                                      \nperform its obligations under this Agreement due to reasons beyond its\nreasonable control, such as acts of God, war, riot, embargoes, earthquake, acts\nof civil or military authorities, service outages resulting from equipment\nand\/or software failure and\/or telecommunications failures, power failures and\nnetwork failures. If a party's performance will be delayed by a force majeure\nevent, it will notify the other in writing with an estimate of the date by which\nits performance will be resumed, and will diligently attempt to resume its\nperformance. If the delay in performance extends for more than 30 days, the\nother party may by written notice terminate this Agreement.\n\n     13.9  Independent Contractors. Notwithstanding any use of the term\n           -----------------------                                     \n\"Partner\" in this Agreement or in marketing materials, the relationship of\nAvantGo and McKesson is that of independent contractors. Nothing in this\nAgreement (i) gives either party the power to direct or control the day-to-day\nactivities of the other, (ii) constitutes the parties as partners, joint\nventurers, co-owners or otherwise as participants in a joint undertaking, or\n(iii) permits a party to create or assume any obligation on behalf of the other\nfor any purpose whatsoever.\n\n     13.10  No Third Party Beneficiaries. This Agreement is intended for the\n            ----------------------------                                    \nsole and exclusive benefit of the signatories and is not intended to benefit any\nthird party except as provided in section 2.1.3. Only the parties to this\nAgreement may enforce it.\n\n     13.11  Headings. Headings and titles in this Agreement are intended for\n            --------                                                        \nconvenient reference only and do not describe the sections to which they relate.\n\n     13.12  Counterparts. This Agreement may be executed in counterparts, each\n            ------------                                                      \nof which will be deemed an original and all of which together constitute one\ninstrument.\n\n\n                                    Page 13\n\n \n     IN WITNESS WHEREOF the parties have executed this Agreement as of the\nEffective Date.\n\nMcKesson HBOC, Inc.                AvantGo, Inc.\n\n\nBy: \/s\/ William J. Dawson          \/s\/ Tom Hunter\n    ---------------------          ---------------------\n\nWilliam J. Dawson                  Tom Hunter\n-------------------------          ---------------------\nTyped or Printed Name              Typed or Printed Name\n\n\nSenior Vice President              CFO\n----------------------------       ---------------------\nTitle   Business Development       Title\n\n\n\n                                    Page 14\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6810,8164],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9619],"class_list":["post-42131","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-avantgo-inc","corporate_contracts_companies-mckesson-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42131","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42131"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42131"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42131"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42131"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}