{"id":42489,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-and-service-agreement-delmar-publishers-and-webmd-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-and-service-agreement-delmar-publishers-and-webmd-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-and-service-agreement-delmar-publishers-and-webmd-inc.html","title":{"rendered":"License and Service Agreement &#8211; Delmar Publishers and WebMD Inc."},"content":{"rendered":"<pre>\n                               DELMAR PUBLISHERS\n                         LICENSE AND SERVICE AGREEMENT\n\nThis AGREEMENT is made as of the date of signing of the Agreement, December 22,\n1998 by and between (\"Delmar Publishers\") as Licensor and (\"WebMD, Inc.\") as\nLicensee.\n\n     Licensor:      Delmar Publishers\n                    3 Columbia Circle\n                    Albany, NY 12203\n\n     Licensee:      WebMD, Inc.\n                    400 The Lenox Building\n                    3399 Peachtree Road, NE\n                    Atlanta, GA 30326\n\n\n                                  WITNESSETH\n\nWHEREAS, Delmar Publishers has developed and copyrighted certain proprietary\nhealthcare and other content (\"Content\"), as more fully described in Appendix A\n(\"Delmar Publishers Content\"), and in conjunction with delivery of this Content,\nDelmar Publishers shall provide Content Subscription and Promotional Support\n(\"Subscription and Promotional Support\"), as more fully described in Appendix B.\n\nWHEREAS, the parties acknowledge that the Internet is neither owned nor\ncontrolled by any one entity; therefore, Delmar Publishers can make no guarantee\nthat any given End-User shall be able to access the Content Service at any given\ntime.  Delmar Publishers represents that it shall make every good faith effort\nto ensure that its Content Service is available as widely as possible and with\nas little service interruption as possible.\n\nWHEREAS, WebMD intends to engage in the marketing, sale and provision of\nhealthcare and other content to Subscribers and End-Users of their service, and\nwishes to license the Content and make use of Subscriptions and Promotional\nSupport Services to make the Content available through WebMD's World Wide Web\nsite located at www.webrn.com which will act as an Internet aggregator of\n                --------------                                           \ncontent and services for the nursing profession and possibly other healthcare\nprofessionals (the \"WebMD Service\") and possibly through its World Wide Web site\nlocated at www.webmd.com, and known in this Agreement as the \"Service\".\n\n\n                                  DEFINITIONS\n\nFor purposes of this Agreement, the following definition of terms shall be used:\n\nADVERTISING.  Payment by a third party for placement of an advertisement in\n-----------                                                                \nconjunction with Content.\n\n                                 Page 1 of 13\n\n \nSUBSCRIPTION.  Payment by a third party healthcare related entity or an\n------------                                                           \nindividual healthcare professional for access to Content through WebRN.\n\nSPONSORSHIP.  Payment by a third party for subscriptions for Subscriber access\n-----------                                                                   \nto Content involving placement of a company trademark or notification of a\ncompany identity in conjunction with Content.\n\nREVENUE.  Payment by third parties for products and\/or services before any\n-------                                                                   \nsubtractions for expenses or costs.  Revenue includes payments of transaction\nfees, advertising, sponsorships and other sources that are unnamed, but may\noccur.\n\nEND-USERS.  A subscriber or consumer of any of WebMD's world website services,\n---------                                                                     \nincluding without limitation, those services offered through webmd.com and\nwebrn.com.\n\nSUBSCRIBERS.  A paying subscriber to the WebRN website services.\n-----------                                                     \n\n\nNOW, THEREFORE, in consideration of the premises, mutual covenants, and promises\nset forth herein, the parties hereto agree as follows:\n\n                         ARTICLE - DUTIES OF LICENSOR\n\n1.1  GRANT.  Delmar Publishers hereby grants to WebMD for the term of this\n     -----                                                                \nAgreement the nontransferable and nonexclusive right and license to the list of\ncontent items available in the Delmar Catalog of products in accordance with\nAppendix A.  The list includes the rights to any Delmar-owned graphic,\nillustration, photograph, video, audiotape, animation, testbank, cd-rom,\ntextbook or other article of content.  WebMD will obtain the right to market\nthis content as is, or in a repurposed format agreeable to Delmar Publishers to\nthe \"End-Users\" of their service.\n\n1.2  NONEXCLUSIVITY.  This Agreement does not impose any obligation of\n     --------------                                                   \nexclusivity upon either party.\n\n1.3  MARKETS.  End-Users of Content are Nurses, Nursing Students, Consumers,\n     -------                                                                \nPhysicians, Corporations, Hospitals, Organizations who subscribe to and continue\nto have access to the service via WebMD's World Wide Web sites, including\nwithout limitation, WebRN or WebMD.\n\n1.4  ADVERTISING AND SPONSORSHIP.  Advertising and sponsorship may from time to\n     ---------------------------                                               \ntime occur in conjunction with the Content.  WebMD may sell sponsorship of an\nentire electronic publication as listed in Appendix A.  Advertising and\nsponsorship occurring in conjunction with the Content (see APPENDIX A) may be\nsubject to regulatory limitation as interpreted and enacted by Delmar\nPublishers.\n\n1.5  DISTRIBUTION TERRITORY.  Use of Content by WebMD is limited to \"End-Users\"\n     ----------------------                                                    \nof their Web Site Service.\n\n1.6  ACCESS TO CONTENT.  Delmar Publishers grants authorized End-Users of the\n     -----------------                                                       \nService (see Section 2.1 below) access to the Content through use of an industry\nstandard Web browser.\n\n1.7  CONTENT AND SUBSCRIPTION &amp; PROMOTIONAL SUPPORT.  Delmar Publishers agrees\n     ----------------------------------------------                           \nto provide\n\n                                 Page 2 of 13\n\n \nWebMD with technical support for integration of \"Web-Ready\" content to be used\non WebMD's website.  In addition, Delmar Publishers agrees to deliver a \"Web-\nReady\" version of Delmar's PDR for Nurses, and develop and deliver Delmar's\nElectronic Care Plan Maker, and Accu-Calc to WebMd in accordance with Appendix\nB.\n\n1.8 ACTIVITY REPORTING.  WebMd shall maintain and provide Delmar Publishers with\n    ------------------                                                          \nquarterly active Subscriber statistics for WebRN website service.\n\n1.9 NOTICE OF CONTENT CESSATION.  Delmar Publishers shall have the right to\n    ---------------------------                                            \ncease normal production or updating of any of the Web-Enabled Content outlined\nin this Agreement, provided that such cessation by Delmar Publishers is not with\nrespect to WebMD alone but is part of a program by Delmar Publishers to cease\nproduction or updating of such Content on or through other electronically\naccessed networks, including but not limited to the same or similar On-line\nDistributors on which the Service is available.  Delmar Publishers shall give\nWebMD three (3) months' written notice prior to Delmar Publishers requesting\nWebMD to cease use of any Content set, as described above.  Upon receipt of such\nnotice and subsequent removal of the subject Delmar Publishers Content from the\nService, WebMD shall have the right in its discretion: (a) to obtain from Delmar\nPublishers substitute Content acceptable to WebMD and Delmar Publishers as a\nreplacement; or (b) to reduce the payments.  In the event that Delmar Publishers\nresumes production and\/or updating of Content that Delmar Publishers previously\nceased producing or updating, WebMD shall have the right but not the obligation\nto again use such formerly discontinued or non-updated Content in the Service in\naccordance with this Agreement.  If WebMD does so, it shall be under the same\nterms and conditions as such Content was formerly used hereunder.\n\n                     ARTICLE II - DUTIES OF LICENSEE\n\n2.1 AVAILABILITY OF THE CONTENT TO END-USERS.  WebMD shall take all reasonable\n    ----------------------------------------                                  \nsteps to protect the content from malicious users, and unauthorized, copying,\ndistributing, publishing, transmitting, or displaying.\n\n2.2 CONTENT INTEGRITY.  WebMD shall not edit or otherwise effect an editorial\n    -----------------                                                        \nchange in the Content without Delmar Publishers' consent which shall not be\nunreasonably withheld.  It is agreed that graphical user interfaces (GUIs)\ncreated by WebMD shall not violate the rights of Delmar Publishers hereunder.\nThe foregoing shall in no way prohibit WebMD from interlinking and cross-\nreferencing the Content with material from other Content providers.\n\n2.3 PROPRIETARY INTEREST.  WebMD acknowledges that Delmar Publishers has\n    --------------------                                                \nproprietary rights in and to the Content.  WebMD shall not, by virtue of this\nAgreement or by virtue of its access to the Content, obtain any proprietary\nrights in or to the Content except the rights specifically granted to WebMD\nherein.  WebMD shall not use or transmit the Content except as specifically\nauthorized by this Agreement.\n\n2.4 AUDIT AND REVIEW.  As long as this Agreement is in effect, and for a one-\n    ----------------                                                        \nyear period thereafter, WebMd shall maintain and supply to Delmar Publishers\nevery calendar quarter records that are used to calculate payments to Delmar\nPublishers.  This includes records on use and distribution of the Content, and\nlogs maintained by web servers that record end user activity.  Delmar Publishers\nunderstands and agrees that all of WebMD's financial records and statements are\nconfidential and subject to the Confidentiality Agreement between the parties\neffective upon signing of this Agreement.\n\n                                 Page 3 of 13\n\n \n     (a) Upon a minimum of twenty (20) business days' notice to WebMD, and\n     during business hours, Delmar Publishers may itself or through an agent at\n     its expense, audit relevant books and records of WebMD for the sole purpose\n     of determining that WebMD is in compliance with all of the terms of this\n     Agreement and that the proper payment, as described in Section 3 below, has\n     been paid to Delmar Publishers.  Such an audit may not be made more\n     frequently than once every twelve (12) months and once within the twelve\n     (12) month period following conclusion or termination of this Agreement.\n\n     (b) In the event Delmar Publishers determines that payments are due from\n     WebMD, it shall so notify WebMD and provide WebMD with a calculation and\n     supporting explanation.  WebMD shall thereupon have fifteen (15) business\n     days within which to pay the claim.  In the event WebMD does not pay the\n     claim; the parties shall resolve their dispute by arbitration in the City\n     of New York in accordance with the Rules of the American Arbitration\n     Association.  WebMD shall promptly pay any payment thus determined to be\n     due and unpaid.\n\n2.5 COPYRIGHT NOTICE.  When making the Content available to End-Users as\n    ----------------                                                    \npermitted by this Agreement, WebMD shall cause a notice comprised of the\nfollowing elements to be conspicuously displayed during every End-User session\nas appropriate to protect Delmar Publishers' intellectual property rights: (a)\nthe word \"Copyright\" or the symbol (C) (the letter c in a circle), (b) the year\nof first publication of such document as specified by Delmar Publishers, (c) the\nname of the copyright holder or, if space constraints require, an abbreviation\nby which the name can be recognized or a generally known alternative\ndesignation, and (d) the words \"All Rights Reserved\" (or, if space constraints\nrequire, an abbreviation by which such phrase can be recognized that is\nreasonably acceptable to Delmar Publishers).\n\n2.6 END-USER AGREEMENT.  When making the Content available to End-Users as\n    ------------------                                                    \npermitted by this Agreement, WebMD shall cause to have included in the terms and\nconditions of the applicable End-User agreement:  (a) a provision prohibiting\nuse of materials retrieved through the Service in any fashion that may infringe\nupon any copyright or proprietary interest therein; (b) a provision prohibiting\nstorage of materials retrieved through the Service in a searchable, machine-\nreadable database; (c) a provision limiting the liability of Delmar Publishers\nin a manner similar to that contained in its electronic products, especially as\nit applies to the use of healthcare information by professionals; (d) a\nprovision prohibiting use of all the Content from any commercial use, resale, or\nmailing list database development, utilization or application.\n\nFurthermore, WebMD shall place a notice relating to all the provisions described\nabove on one of the first introductory screens that Subscribers must view upon\nentering or using the Service in all available media.  Such notice shall require\nSubscriber acknowledgment and acceptance to become an authorized, registered\nSubscriber.\n\n                    ARTICLE III - PRICING AND PAYMENT TERMS\n\n3.1 PRICING\/APPENDIX A\n    ------------------\n\n     (a)  In consideration of Delmar Publishers' grant to WebMD of the right and\n          license to access the Content and Services outlined in Appendix A in\n          accordance with Article I above, throughout the term of this\n          Agreement, WebMD shall pay Delmar Publishers a minimum fee each year\n          of:\n\n                                 Page 4 of 13\n\n \n                    ***        for year one\n                    ***        for year two\n                    ***        for year three\n\n     (b)  Plus, *** per month per WebRN Subscriber. \n\n     (c)  Plus, *** (***) of all Net Revenue from advertising and sponsorship\n          occurring in conjunction with the Content. \"Net Revenue\" shall be\n          defined as gross receipts less any End-User credits or commissions\n          paid by WebMD to third parties.\n\n3.2  PAYMENT TERMS\/APPENDIX A\n     --------------------------\n\n     (a)  Pro-rata minimum payments shall be made in installments of the\n          guaranteed totals as indicated below.\n\n               DUE DATE         AMOUNT DUE\n               ---------------------------\n               Dec. 23, 1998       ***\n               Jun. 15, 1999       ***\n               Jan. 15, 2000       ***\n               Jan. 15, 2001       ***\n\n     (b)  Incremental payments for subscribers (at the rate of *** per WebRN\n          Subscriber per month) shall be paid each quarter starting on April 15,\n          1999 with a final payment during the term of this Agreement occurring\n          on January 15, 2002.\n\n     (c)  Payments for advertising sponsorship shall be paid each quarter\n          starting on April 15, 1999 with a final payment during the term of\n          this Agreement occurring on January 15, 2002.\n\n3.3  PRICING\/APPENDIX B\n     ------------------\n\n     (a)  In consideration of Delmar Publishers' grant to WebMD of the right and\n          license to access the Content and Services outlined in Appendix B,\n          Section 2 in accordance with Article I above, throughout the term of\n          this Agreement, WebMD shall pay Delmar Publishers the following for\n          each of the web-ready products mentioned below:\n\n          PRODUCT                             DOLLAR AMOUNT\n          -------                             -------------\n          Accu-Calc;                          ***\n          Electronic Care Plan Maker          ***\n          Medical Terminology                 ***\n                                              ---\n                         Total:               ***\n\n*** Omitted pursuant to a request for confidential treatment and filed \nseparately with the Commission.\n                               \n                                 Page 5 of 13\n\n \n3.4  PAYMENT TERMS\/APPENDIX B\n     ------------------------\n\n     (a)  Delmar Publishers agrees to provide all additional \"web-enabled\"\n          services (Accu-Calc, Electronic Care Plan Maker, and Medical\n          Terminology) in a \"WebMD-Approved\" format according to the schedule\n          outlined in Appendix B, Section 2.\n\n          WebMD will have until September 15, 1999 to use and test each product.\n          Unless Delmar Publishers is notified otherwise in writing by this\n          time, the products will be considered \"WebMD-Accepted\", and Delmar\n          Publishers will invoice WebMD the above mentioned product pricing,\n          {see Section 3.3 (a)j} which will be payable within 90 days.\n\n          BILL SEND DATE        DUE DATE\n          --------------        --------\n          9\/15\/99               12\/15\/99\n\n\n                       ARTICLE IV - TERM AND TERMINATION\n\n4.1  TERM.  This Agreement shall be effective for an initial term beginning upon\n     ----                                                                       \nthe Effective Date and ending December 31, 2001 unless sooner terminated\npursuant to this Article IV.\n\n4.2  FAILURE TO PERFORM.  If either party to this Agreement shall fail to \n     ------------------                                                   \nperform or observe any material term, covenant, agreement or warranty, or if any\nmaterial representation contained herein is untrue, the other party may\nimmediately terminate this Agreement if such failure is not corrected (if\nreasonably correctable) within thirty (30) days of delivery of written notice\nthereof to the other party.\n\n4.3  BANKRUPTCY AND BUSINESS TERMINATION.  If either party shall cease doing\n     -----------------------------------                                    \nbusiness, become insolvent, or if a petition in bankruptcy shall be filed with\nrespect to a party, or upon an attempted assignment not permitted under Section\n6.6 below, the other party shall have the right to immediately terminate this\nAgreement upon written notice to the other party.  The right and license granted\nby Delmar Publishers to WebMD herein with respect to the Content is deemed a\nsoftware license for purposes of Section 605(n) of the Federal Bankruptcy Act,\nand WebMD shall have the full rights of a protected licensee thereunder.\n\n4.4  TERMINATION WITHOUT CAUSE.  WebMD shall have the right to terminate the\n     -------------------------                                              \nagreement upon ninety (90) days written notice.  Upon such cessation of the\nService, this Agreement shall terminate, and neither party shall have any\nobligation to the other under this Agreement except WebMD shall remit all\nPayments that accrued prior to such cessation.\n\n4.5  CONDUCT UPON TERMINATION.  Upon termination of this Agreement for any\n     ------------------------                                             \nreason, WebMD shall cease solicitation for and use of the Content.\n\n             ARTICLE V - LIABILITY LIMITATION AND INDEMNIFICATION\n\n5.1  LIMITATION OF LIABILITY.  NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR\n     -----------------------                                               \nIMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS\nFOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE MARKETING AND SALE OF THE\nCONTENT.  NEITHER PARTY SHALL HAVE ANY LIABILITY TO ANY\n\n                                 Page 6 of 13\n\n \nTHIRD PARTY RESULTING FROM ITS PERFORMANCE UNDER THIS AGREEMENT OR FOR ANY\nFAILURE TO PERFORM HEREUNDER.  NEITHER PARTY HERETO, NOR THEIR RESPECTIVE\nOFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND SUBCONTRACTORS, SHALL BE LIABLE TO\nTHE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING\nLOST PROFITS) INCURRED IN CONNECTION WITH SERVICES PERFORMED OR PRODUCTS\nPROVIDED UNDER THIS AGREEMENT.  NEITHER PARTY SHALL BE LIABLE FOR DAMAGES CAUSED\nOR ALLEGEDLY CAUSED BY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION,\nDELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, OR COMMUNICATIONS LINE\nFAILURE INVOLVING THE CONTENT SERVICE, AND NEITHER PARTY SHALL BE LIABLE FOR ANY\nACT OR INACTION OF END-USERS REGARDING THE CONTENT, AND CONTENT SERVICE\nINCLUDING BUT NOT LIMITED TO MISUSE, ABUSE, INFRINGEMENT, THEFT OR DESTRUCTION\nOR UNAUTHORIZED ACCESS TO, ALTERATION OF DELMAR PUBLISHERS' RECORDS, PROGRAMS,\nOR USE OF THE CONTENT, WHETHER FOR BREACH OF CONTRACT (INCLUDING BREACH OF\nWARRANTY, LOST PROFITS OR OTHER ECONOMIC LOSS), TORTIOUS BEHAVIOR (INCLUDING\nSTRICT LIABILITY) NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.\n\nDelmar Publishers expressly limits its damages to WebMD and End-Users of the\nContent Service for any non-accessibility time or other down time to a pro-rata\ncredit of Delmar Publishers' charges during system unavailability.  Delmar\nPublishers specifically denies any responsibilities for any damages arising as a\nconsequence of such unavailability.\n\n5.2  FORCE MAJEURE.  Neither party shall be liable in damages for any delay or\n     -------------                                                            \ndefault in performing its obligations hereunder if such delay or default is\ncaused by matters beyond the reasonable control of the non-performing party,\nsuch as but not limited to power failures, wars or insurrections, acts of God,\nacts of government, strikes, fires, floods, earthquakes, work stoppages,\nembargoes and\/or inability to obtain material; provided, however, that the party\nexperiencing such occurrence shall notify the other party at the earliest\npossible date and take reasonable steps to mitigate and\/or cure the cause of\nsuch delay.\n\n5.3  INDEMNIFICATION.\n     --------------- \n\n(a)  Delmar Publishers shall indemnify and hold harmless WebMD its affiliates,\nand its and their directors, officers, employees, agents, successors and assigns\nagainst any and all judgments, settlements, penalties, costs and expenses\n(including reasonable attorneys' fees) paid or incurred in connection with\nclaims by any party which are attributable to: Delmar Publishers' negligence or\nmisconduct in collecting, collating and compiling the Content from Delmar\nPublishers' original data sources (including but not limited to drug\nmanufacturers); a material breach of any warranty or representation made or\nobligation undertaken by Delmar Publishers under this Agreement or infringement\nor misappropriation by the Content of any copyright or other proprietary right\nof any third party.\n\n(b)  WebMD shall indemnify and hold harmless Delmar Publishers, its affiliates\nand its and their directors, officers, employees, agents, successors and assigns\nagainst any and all judgments, settlements, penalties, costs and expenses\n(including reasonable attorneys' fees) paid or incurred in connection with\nclaims by any party which arise from WebMD's distribution of the Content under\nthis \n\n                                 Page 7 of 13\n\n \nAgreement and are attributable to a failure of the hardware or software of\nWebMD's computer system (other than the Content) or to a material breach of any\nwarranty or representation made or obligation undertaken by WebMD under this\nAgreement.\n\n(c)  If any claim or action is instituted or threatened by a third party against\na party to this Agreement for which it believes it is entitled to be indemnified\npursuant to this Agreement, it shall promptly give notice thereof to the other\nparty, and cooperate fully with the indemnifying party. The indemnifying party\nshall solely control the defense and settlement of such claims. The indemnified\nparty shall be permitted to participate in such defense and represent itself at\nits own expense and to use counsel of its own choosing.\n\n5.5  REPRESENTATIONS AND WARRANTIES.  Delmar Publishers represents and warrants\n     ------------------------------                                            \nthat it is authorized to grant the license herein to WebMD, and covenants that\nWebMD's exercise of the license herein shall infringe no copyright or other\nright of any person or entity.  If any portion of the Content furnished to WebMD\nunder this Agreement becomes (or, in the good faith judgment of Delmar\nPublishers, is likely to become) the subject of a claim for infringement or\nmisappropriation, Delmar Publishers may, upon notice to WebMD, request that\nWebMD remove such portion of the Content from the Service, and WebMD shall\ncomply with such request promptly; provided however, that Delmar Publishers\nshall not have the right to request such removal unless such materials are\nrequired to be removed from the services of all other similarly situated on-line\nvendors (if any) to whom they are made available by Delmar Publishers; and\nprovided that in the event of such removal, WebMD shall have the same rights\ndescribed in Section 1.11 above.  Delmar Publishers represents and warrants that\nit is not aware of any pending, threatened or possible claim or action by any\nthird party with respect to a possible violation of that third party's rights.\n\nDelmar Publishers makes no warranties or representations of any kind, whether\nexpressed or implied for the Content and Content Service it is providing\nregarding the merchant-ability or fitness for a particular use or purpose.\n\nConnection speed to the service represents the speed of a connection and does\nnot represent guarantees of available end to end bandwidth.\n\nThe parties agree that WebMD makes no warranty or representation regarding, nor\nis WebMD responsible for, the Content, which WebMD is obtaining from Delmar\nPublishers under this Agreement, and as to which WebMD has a duty not to edit or\nchange (Section 2.3 above).\n\n                          ARTICLE VI - MISCELLANEOUS\n\n6.1  ENTIRE AGREEMENT AND AMENDMENT.  Together with all written amendments,\n     ------------------------------                                        \nexhibits and appendices, this Agreement constitutes the entire agreement between\nDelmar Publishers and WebMD with respect to the subject matter addressed herein.\nThis Agreement can only be modified or supplemented by writing signed by duly\nauthorized representatives of both parties.  This Agreement shall be binding\nupon the parties, their successors, legal representatives and permitted assigns.\nWebMD and Delmar Publishers intend this Agreement to be a valid legal instrument\nand no provision of this Agreement which shall be deemed unenforceable shall in\nany way invalidate any other provision of this Agreement all of which shall\nremain in full force and effect.\n\nDuring the term of this Agreement the parties may under mutual consent reach a\nnew agreement on \n\n                                 Page 8 of 13\n\n \nlicense of Content and provision of Content Services to WebMD. At such time,\nthis Agreement shall be amended to reflect any new understanding between the\nparties.\n\n6.2  ADVERTISING, TRADE NAMES, TRADEMARKS AND COPYRIGHTED MATERIALS.\n     -------------------------------------------------------------- \n\n     (a)  WebMD hereby grants Delmar Publishers a revocable license to use any\nWebMD service mark, trademark, trade name and logo associated with WebMD (the\n\"WebMD Marks\") solely in the advertisement and promotion of WebMD during the\nterm of this Agreement. Delmar Publishers shall not use any mark, name or logo\nto identify WebMD other than the WebMD Marks without WebMD's prior written\nconsent. Delmar Publishers acknowledges that the WebMD Marks are valid service\nmarks, trademarks, trade names and logos and the sole property of WebMD, and\nDelmar Publishers shall not disparage or challenge the validity of the WebMD\nMarks during the term of this Agreement. Delmar Publishers shall promptly notify\nWebMD of any actual or alleged infringements of WebMD Marks of which Delmar\nPublishers becomes aware during the term. Nothing contained herein shall be\nconstrued to authorize Delmar Publishers: (i) to use any WebMD Marks as a mark,\nname or logo or as part of the mark, name or logo of any firm, partnership or\ncorporation; (ii) to apply any WebMD Mark to any goods or to use any WebMD Mark\nin connection with any services except as set forth in this Agreement; or (iii)\nat any time after the termination of this Agreement, to apply any WebMD Mark to\ngoods or to otherwise use any WebMD Mark in any manner whatsoever. WebMD shall\nbe attributed as the source of the Service in all material produced by or for\nDelmar Publishers where reference is made to the use of the Content as part of\nthe Service hereunder.\n\n     (b)  Delmar Publishers hereby grants WebMD a revocable license to use any\nof Delmar Publishers' service marks, trademarks, trade names and logos (the\n\"Delmar Publishers Marks\") in the advertisement and promotion of WebMD during\nthe term of this Agreement. WebMD may use Delmar Publishers Marks, mention\nDelmar Publishers' name and mention and\/or describe the strategic relationship\nbetween Delmar Publishers and WebMD in print and online advertisements,\nmarketing materials, registration statements and other reports that are filed\nwith the Securities and Exchange Commission (pursuant to which WebMD may also\nfile this Agreement as an exhibit) and other information; provided, however,\n                                                          --------  -------\nthat Delmar Publishers shall be given five days prior written notice of WebMD's\nintention to use Delmar Publishers Marks, and Delmar Publishers shall not have\nreasonably objected to WebMD's use of Delmar Publishers Marks prior to the\nexpiration of such five-day period. WebMD acknowledges that Delmar Publishers\nMarks are valid service marks, trademarks, trade names and logos of Delmar\nPublishers and the sole property of Delmar Publishers, and WebMD shall not\ndisparage or challenge the validity of Delmar Publishers Marks during the term\nof this Agreement. WebMD shall promptly notify Delmar Publishers of any actual\nor alleged infringements of Delmar Publishers Marks of which WebMD becomes aware\nduring the term of this Agreement. Delmar Publishers shall be attributed as the\nsource of the Content in sales literature and in End-User documentation (if\nany), and Delmar Publishers.\n\n6.3  CONFIDENTIALITY.  Each party shall preserve the confidential information of\n     ---------------                                                            \nor pertaining to the other party and shall not, without first obtaining the\nother's written consent, disclose to any person or organization, or use for its\nown benefit, any confidential information of or pertaining to the other party\nduring and after the term of this Agreement, unless such confidential\ninformation is required to be disclosed by a court of competent jurisdiction or\nby any governmental or self-regulatory organization or authority.\n\n6.4  NOTICES.  All notices, requests, demands and other communications or\n     -------                                                             \npayments under this \n\n                                 Page 9 of 13\n\n \nAgreement shall be in writing, and shall be deemed to have been duly delivered\nif delivered by hand or sent by traceable carrier or prepaid registered or\ncertified mail addressed as follows (or to such other address as may be\ndesignated by a party, in writing, pursuant hereto):\n\n     Licensee:\n     -------- \n\n          WebMD, Inc.                             cc:  Corporate Counsel\n          400 The Lenox Building                       400 The Lenox Building\n          3399 Peachtree Road, NE                      3399 Peachtree Road, NE\n          Atlanta, Georgia 30326                       Atlanta, Georgia 30326\n          Attn: Jeff Arnold, Chief Executive \n                 Officer\n\n     Licensor:\n     -------- \n\n          Delmar Publishers\n          3 Columbia Circle\n          Albany, New York 12203\n          Attn: Greg Burnell, Chief Executive \n                 Officer\n\n6.5  GOVERNING LAW.  This Agreement is made and entered into in the State of New\n     -------------                                                  ------------\nYork and shall be construed according to internal laws, and not the laws\n-----                                                                   \npertaining to choice or conflict of laws, of that State.\n\n6.6  RELATIONSHIP AND ASSIGNMENT.  Nothing in this Agreement shall be deemed to\n     ---------------------------                                               \ncreate an agency, joint venture, or partnership relationship between Delmar\nPublishers and WebMD.  Except as expressly set forth in this Agreement, neither\npatty shall have authority to act on behalf of or bind the other party in any\nway.  Neither WebMD nor Delmar Publishers may assign this Agreement or delegate\nany rights or obligations hereunder without the prior written consent of the\nother party except to an affiliated entity controlled by or under common control\nof a party hereto.  In the event of a third party acquiring the assets of WebMD,\nthis Agreement is not transferable.  Any attempted assignment by either party\nwithout such consent shall be of no effect.\n\n6.7  DUE AUTHORIZATION.  Each of WebMD and Delmar Publishers represents and\n     -----------------                                                     \nwarrants that it is authorized to enter into this Agreement and that there are\nno outstanding commitments, agreements, or understandings, express or implied,\nwhich may or can in any way defeat or modify the rights conveyed or obligations\nundertaken by it under this Agreement.\n\n6.8  HEADINGS.  The heading of each Article, Section, and Appendix of this\n     --------                                                             \nAgreement is for the purpose of convenience only and shall not affect the\ninterpretation of any provision hereof.\n\n6.9  SURVIVAL OF OBLIGATIONS.  Articles III, IV, V and VI shall survive the\n     -----------------------                                               \ntermination or expiration of this Agreement.\n\n                                 Page 10 of 13\n\n \nIN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be\nexecuted by its duly authorized officer as of the day and year first above\nwritten.\n\nDelmar Publishers                        WebMD, Inc.\n\n\nBy:  \/s\/ Greg Burnell               By:  \/s\/ W. Michael Heekin\n   -------------------------           ------------------------------\n\nPrinted Name:  Greg Burnell         Printed Name:  W. Michael Heekin\n\nTitle:  President\/CEO               Title:  Executive Vice President\n\nDate:  12\/22\/98                     Date:  12\/22\/98\n     -----------------------             ----------------------------\n\n                                 Page 11 of 13\n\n \n                                  APPENDIX A\n\n                           Delmar Publishers Content\n\nContent to be made available to WebMD throughout the term of this Agreement for\nuse on WebMD's website consists of:\n\n1.   DELMAR'S NURSES DRUG DATABASE.  This service is already \"web-ready\".  It is\nrevised and up to date as of October 1, 1998.  The content is almost equally\ndivided between pharmacological information and Nursing Considerations.  Delmar\nPublishers will provide to WebMD monthly updates to include newly approved\ndrugs, and new drugs uses, cautions, side effects, interactions, and warnings.\nAny technical support required from Delmar to integrate this content into\nWebMD's web-site will be provided ***.\n\n2.   DELMAR'S CATALOG OF PRODUCTS as listed up to December 31, 1998. (see\nattached catolog) Only Delmar-owned, copyrighted text, graphic, illustration,\nphotograph, video, audiotape, animation, testbank, cd-rom content.\n\n3.   WEB HOSTING SERVICES: Delmar Publishes agrees to provide web-hosting\nservices for all web-enabled products for WebMD (Delmar's Nurses Drug Database,\nAccu-Calc, Electronic Care Plan Maker, and Medical Terminology) for a period of\nup to 18 months, until such time that WebMD is ready to integrate the above-\nmentioned Delmar content onto the existing WebMD\/RN website. While Delmar\nPublishers will assist in the development and hosting of a portion of the WebRN\nwebsite, it is understood that WebMD will retain their license to the content\noutlined in Appendix A and B, regardless of whether it is hosted by Delmar,\nWebMD or another third party.\n\nThe web-site will be operated and maintained by Delmar Publishers and selected\npartners to provide a design that is consistent with the current WebMD\/RN web\nsite.  Delmar Publishers and their partners agree to uphold a professional\ndiligence and skill in maintaining the web-site and in a manner consistent with\nhigh industry standards.\n\n4.   ADVERTISING SERVICES. Delmar Publisher's agrees to provide WebMD with\nprominent advertising space on Delmar's website, Nursing.com, for the term of\nthe agreement ***. Delmar Publishers will commit to including WebMD\/RN's name,\nlogo and description of service on the Nursing.com. website. In addition, Delmar\nPublishers will set up a hyperlink to the WebMD\/RN website and maintain the link\nfor the life of the contract.\n\nDelmar Publishers will also include advertisement for WebMD\/RN in all Nursing\nand Allied Health catalogs for the term of the Agreement.  In addition, Delmar\nPublishers will mention the same WebMD information listed above in all relevant\nNursing Marketing material ***.\n\n5.   CONSULTATION SERVICES. Delmar Publishers agrees to provide at least 4 hours\nof in-person consultation services to WebMD\/WebRN personnel every month for the\nlife of the contract.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission\n\n                                 Page 12 of 13\n\n \n                                  APPENDIX B\n\n                               DELMAR PUBLISHERS\n\n                     SUBSCRIPTION AND PROMOTIONAL SUPPORT\n\n\n1.   DELMAR'S NURSES DRUG GUIDE.  Delmar Publishers agrees to supply one copy\nannually of the English language text version of the Drug database for Nurses\nfor each active Subscriber to the WebRN services.  Delmar Publishers agrees to\nbundle this product with a WebRN welcome letter and flyer and ship them to\nSubscribers, upon mutually agreeable terms and conditions.  This WebRN\nSubscriber benefit will be in effect for the term of this agreement and in\naccordance with all rights, privileges, and responsibilities outlined in Article\nI, II, and III in this contract.  WebMD will make the content available to\nauthorized Subscribers.\n\n2.   WEB-ENABLED PRODUCTS. Delmar Publishers agrees to provide to WebMD an\nInternet compatible version of AccuCalc and Electronic Care Plan Maker and\n                               --------     --------------------------\nDelmar's Medical Terminology CD-ROM for use by WebMD for the term of this\n-----------------------------------\nagreement and in accordance with all rights, privileges and responsibilities\noutlined in Article I, II, and III ***. At its sole discretion, WebMD will make\nthe content available to all End Users.\n\nWeb-Enabled Product Delivery Schedule\nPRODUCT                             ESTIMATED DELIVERY DATE\n-------                             -----------------------\nNurses Drug Database                15 days from contract signature date\nElectronic Care Plan Maker          45 days from contract signature date\nMedical Terminology                 95 days from contract signature date\nAccu-Calc                           100 days from contract signature date\n\n3.   TECHNICAL SUPPORT. Delmar Publishers will provide ***, technical and\neditorial support services for integration of Internet compatible content\noutlined in section 1.2 of Appendix B for deployment and use on WebMD.\n\n\n4.   DELMAR \/ WEBMD\/RN CO-BRANDED WEBSITE.  Upon mutually agreeable terms and\nconditions, Delmar Publishers agrees to develop and host a co-branded website\nmarketing Delmar text, video, and cd-rom products to WebRN and WebMD customers.\nDelmar Publishers will fulfill all on-line sales orders for books off the co-\nbranded web-site and ship product to the customer.  WebMD will be entitled to\n*** of the net revenue collected from sales of Delmar \/ITP content off the co-\nbranded website.\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission\n\n\n                                 Page 13 of 13\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9616],"class_list":["post-42489","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42489","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=42489"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42489"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42489"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42489"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}