{"id":42578,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/memorandum-of-understanding-webmd-inc-and-cable-news-network.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"memorandum-of-understanding-webmd-inc-and-cable-news-network","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/memorandum-of-understanding-webmd-inc-and-cable-news-network.html","title":{"rendered":"Memorandum of Understanding &#8211; WebMD Inc. and Cable News Network Inc."},"content":{"rendered":"<pre>\n                          MEMORANDUM OF UNDERSTANDING\n\n          This Memorandum of Understanding (\"MOU\"), dated December 16, 1998,\nentered into by and on behalf of WebMD, Inc., with its principal offices located\nat 40180 The Lenox Building, 3399 Peachtree Road, N.E., Atlanta, Georgia 30326\n(\"WebMD\"), and CNN Interactive, a division of Cable News Network, Inc., with its\nprincipal offices located at One CNN Center, Box 105366, Atlanta, Georgia 30348-\n5366 (\"CNN\"), is intended to set forth the basic understanding of the parties\nregarding each party's efforts to enhance and\/or promote the other party's web\nsite in certain respects, and the further agreement of the parties to negotiate\nin good faith the terms of a definitive agreement based on this understanding\n(the \"Agreement\").\n\n     Accordingly, the parties hereby agree as follows:\n\n1.   WebMD Content.  WebMD agrees to deliver and\/or make accessible to CNN\n     -------------                                                        \n     certain health and wellness related information (\"WebMD Content\") for use,\n     publication and distribution by CNN on its web site and related services,\n     CNN.com (the \"CNN Site\").  WebMD agrees that the WebMD Content provided or\n     made accessible to CNN hereunder will include, at a minimum:  (i) *** (***)\n     new articles per week; (ii) *** (***) of the total content available to\n     consumers on WebMD's web site (the \"WebMD Site\") at any given time; and\n     (iii) specific types of content to be agreed upon by the parties and set\n     forth in an exhibit to the Agreement including without limitation the types\n     of content listed on Exhibit A to this MOU.  Furthermore, WebMD agrees to\n     provide and\/or make accessible all content owned or controlled by WebMD to\n     CNN for use on the CNN Site and further agrees to use commercially\n     reasonable efforts to secure sufficient rights in any third party content\n     to enable WebMD to provide said licensed content to CNN.  The WebMD Content\n     will include editorial news stories that are timely, generally consistent\n     with the quality and editorial standards of CNN and of general interest to\n     health consumers.\n\n2.   Use of WebMD Content by CNN.  Although CNN may use content from third party\n     ---------------------------                                                \n     sources as it deems editorially appropriate, CNN hereby agrees to position\n     WebMD as its premier provider of content for the \"Health\" section of the\n     CNN Site (\"Health Section\").  As editorially appropriate, CNN will display\n     portions of the WebMD Content selected by CNN and related links and\n     branding throughout the Health Section and provide users with opportunities\n     to link to specific sections within the WebMD Site for greater depth,\n     related stories and other WebMD Site features.  In connection with each\n     party's respective performance hereunder, each party agrees to specify and\n     designate an editorial contact for the other party.  As more specifically\n     described in Paragraph 4 below, CNN will:\n\n          a.   position WebMD branding prominently on every page of the Health\n               Section;\n\n          b.   incorporate WebMD Content within the Health Section, introduce\n               WebMD editorially based services to CNN users through existing\n               CNN content areas within the Health Section and possibly create\n               new features for the Health \n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n \n               Section (by way of example only, a WebMD Health Almanac) (all of\n               which will provide further links and easy navigation to the WebMD\n               sites);\n          c.   provide prominent links, as editorially appropriate, on the CNN\n               Site homepage to the WebMD Content in the Health Section;\n          d.   promote the Health Section and the CNN\/WebMD relationship via\n               CNN's various e-mail products, as appropriate;\n          e.   promote the Health Section and the CNN\/WebMD relationship via\n               promotional banners that will run throughout the CNN family of\n               web sites;\n          f.   promote the Health Section and the CNN\/WebMD relationship to\n               health-related chats and message boards within the CNN Site\n               discussion section; and\n          g.   issue a joint press release with WebMD announcing the CNN\/WebMD\n               relationship and follow-up press releases (as and when\n               appropriate as agreed by the parties) announcing further\n               developments (e.g., traffic milestones and new content \n                             --- \n               additions).\n\n3.   Licenses.  The parties hereto agree to grant each other the appropriate\n     --------                                                               \n     licenses to use their respective content (as applicable), marks, logos and\n     brand identifiers for purposes consistent with the relationship established\n     by the Agreement.\n\n4.   Promotion of WebMD by CNN.  During the Term, CNN agrees to provide the\n     -------------------------                                             \n     following promotion to WebMD:\n\n          a.   WebMD Branding.  WebMD branding will appear on each page of\n               --------------                                             \n               the Health Section (see IDG branding on\n               http:\/\/cnn.com\/TECH\/computing\/ for an example of the integration\n               on the main page of the Health Section; the remaining Health\n               Section pages will include WebMD branding in a space above the\n               fold as mutually agreed by the parties). Additional WebMD\n               branding (and a link for \"more\" to the WebMD Site) will be\n               included on individual WebMD Content in a manner similar to the\n               current Salon Magazine branding and link on\n               http:\/\/cnn.com\/books\/rviews\/9811\/30\/dismay.salon\/index.html.\n\n          b.   WebMD Promotional Banners. CNN will create promotional banners\n               -------------------------\n               out of unsold advertising inventory promoting the Health Section\n               that will include the WebMD logo and affiliation that will rotate\n               through the CNN family of web sites and receive a minimum of ***\n               page impressions per month. In the event ad inventory is\n               unavailable, CNN will provide WebMD with promotional space in top\n               left corner of the CNN Site.\n\n          c.   Message to E-Mail Subscribers.  At least once a month, CNN will\n               -----------------------------                             \n               include in its \"QuickNews\" e-mail subscriber service a\n               promotional mention (and a link to the Health Section in the html\n               versions of such e-mails) with language similar to \"visit\n               CNN.com\/HEALTH with WebMD for the latest in health-related news.\"\n\n          d.   CNN Link of the Day Mention.  CNN will include a WebMD Content \n               ---------------------------                           \n               mention and\/or WebMD branding as part of the CNN.com\/Health\n               content \n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       2\n\n \n               offering in the Link of the Day space on the CNN Site homepage a\n               minimum of *** (***) times per month.\n\n          e.   Homepage Editorial Promotion.  CNN agrees that the Health\n               ----------------------------                             \n               Section will be eligible (in the same manner as other sections on\n               CNN.com) for promotion in the upper right hand box located on the\n               CNN.com homepage based on editorial decision. WebMD understands\n               that such promotion will be provided to the Health Section as CNN\n               deems editorially appropriate.\n\n          f.   Promotion in Health-Related Specials.  As health-related special\n               ------------------------------------                    \n               sections are created by CNN for the general CNN Specials area\n               (see http:\/\/cnn.com\/SPECIALS\/) , and as editorially appropriate,\n               CNN will include WedMD Content and branding (and\/or links to the\n               WebMD Site) within those specials. While CNN has no absolute\n               obligation to create such specials, CNN anticipates that a\n               minimum of *** health-related special (e.g., Breast Cancer\n               Awareness month) per----year will be created, subject to\n               editorial considerations.\n\n          g.   Chat\/Message Boards.  CNN agrees to promote the Health Section\n               -------------------                                   \n               and the WedMD relationship established hereunder in health-\n               related chats and message boards within the CNN discussion\n               section. Specifically, CNN agrees: (i) to provide WedMD with\n               branding \"above the fold\" on all pages containing medical- and\n               health-related message boards; (ii) that CNN will work with WedMD\n               to develop co-branded medical-and health-related chats on the CNN\n               Site; (iii) if WebMD provides webcasting capabilities, CNN will\n               work with WedMD to explore the possibility of promoting WedMD's\n               webcasting efforts as editorially appropriate; and (iv) CNN will\n               not develop co-branded medical- or health-related chats on the\n               CNN Site with Intellihealth, On Health, or Village's Better\n               Health (\"WebMD Competitors\"); additionally, CNN agrees not to\n               develop such chats with any other third party reasonably\n               considered to be a WedMD competitor without discussing the\n               opportunity with WedMD; provided, however, this latter commitment\n               specifically excludes arrangements with AccentHealth and Mayo\n               Clinic. Notwithstanding clause (iv), nothing herein will prevent\n               CNN from engaging individuals (e.g., medical experts) aligned\n                                              ----\n               with any WedMD Competitor to participate in CNN Site health-\n               related chats; however, CNN will not, in such event, provide\n               branding to the WebMD Competitor.\n\n          It is understood that CNN may be temporarily excused from performance\n          of certain of the above-commitments during periods of high traffic if\n          it is reasonably necessary for CNN to temporarily remove certain items\n          from the CNN Site to enhance performance during such high-traffic\n          periods.  Also, each party shall have the right to temporarily disable\n          links to the other party's site during any time such other Site is\n          experiencing technical difficulties.\n\n5.   Branding\/Promotion Fee.  During the Term, for WedMD promotion, linking and\n     ----------------------                                                    \n     branding hereunder, WebMD hereby agrees to pay CNN an annual fee as\n     follows: (i) Year 1 - *** \n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       3\n\n \n     (ii) Year 2 - ***; and (iii) Year 3 - ***. The annual fee shall be payable\n     on a quarterly basis in advance, with the initial payment payable upon the\n     earlier of execution of the Agreement or any approved public uses of\n     references to this MOU by WebMD (including the filing of the WedMD S-1).\n\n6.   Delivery Benchmarks.  CNN, with commercially reasonable cooperation from\n     -------------------                                                     \n     WebMD, will achieve minimum impressions for the Health Section over the\n     first two (2) years of the term as follows:  (i) *** during Year 1; and\n     (ii) *** during Year 2 (each a \"Delivery Benchmark\").  Should it appear,\n     based on monthly impressions, that CNN is not on track to achieve the\n     applicable Delivery Benchmark, WebMD agrees to work with CNN and modify the\n     mix of WebMD Content as mutually agreed to improve traffic.  It is\n     understood and agreed, however, that the foregoing Delivery Benchmarks are\n     established solely to measure performance of the branding and linking\n     relationship established hereunder.  The parties agree to schedule\n     quarterly meetings by phone or in person to discuss traffic, the WebMD\n     Content and other matters related to the parties' mutual desire to increase\n     traffic to meet the Delivery Benchmarks.  Any failure to achieve one or\n     more Delivery Benchmarks will not be deemed to be a breach of CNN's\n     obligations hereunder, but shall give rise to the following specific\n     remedies:\n\n          (i)       if traffic in year 1 does not reach the applicable Delivery\n                    Benchmark but is *** or more, WebMD's year 2 fee will be\n                    reduced by the same percentage as such year 1 under-\n                    delivery.  For example, if traffic for year 1 equals ***\n                    (i.e., *** of the *** target), then in year 2 WebMD will pay\n                    only *** of the year 2 fee;\n\n          (ii)      if traffic in year 1 does not reach *** page impressions,\n                    then WebMD and CNN will each have the right to terminate the\n                    Agreement by written notice to the other provided at any\n                    time during the ten (10) day period following CNN's written\n                    delivery of the final traffic numbers.  Said termination\n                    will take effect two (2) months after the end of year 1.\n                    During that two (2) month period (if one of the parties has\n                    elected to terminate), WebMD will pay a prorate portion of\n                    the year 1 fee;\n\n          (iii)     if traffic in year 2 does not reach the applicable Delivery\n                    Benchmark but is *** or more, WebMD's year 3 fee will be\n                    reduced by the same percentage as such year 2 under-\n                    delivery; and\n\n          (iv)      if traffic in year 2 does not reach *** page impressions,\n                    then WebMD and CNN will each have the right to terminate the\n                    Agreement by written notice to the other provided at any\n                    time during the ten (10) day period following CNN's written\n                    delivery of the final traffic numbers.  Such termination\n                    will take effect two (2) months after the end of year 2.\n                    During that two (2) month period (if one of the parties has\n                    elected to terminate), WebMD will pay a prorated portion of\n                    the Year 2 fee.\n\n7.   Development and Posting of WebMD Sponsored Page by CNN.  CNN will, in\n     ------------------------------------------------------               \n     consultation with WebMD, design and create and publish on the CNN Site a\n     page containing the\n\n***Omitted pursuant to a request for confidential treatment and filed separately\nwith the Commission.\n\n                                       4\n\n \nWebMD logo along with the CNN logo and certain CNN content (\"CNN Content\"),\nnamely, the latest headlines, from national, international, sports, weather and\nentertainment news stories selected and provided by CNN (the \"WebMD Sponsored\nPage\").  It is understood and agreed that such CNN Content is made available for\nthe WebMD Sponsored page on a non-exclusive basis and CNN retains all rights to\nuse such content in any other manner it deems appropriate, including without\nlimitation, use in other areas of the CNN Site.  The WebMD Sponsored Page will\nserve as an access point to the CNN site for users of the \"Physicians Lounge\"\narea of the professional\/subscriber overall intent to present a look and fee\nconsistent with that of the WebMD Site; however, it is understood and agreed\nthat the WebMD Sponsored Page will have CNN's \"QuickNews\" branding and text\nlinks to the CNN Site homepage and\/or stories on the CNN Site.  The WebMD\nSponsored Page will display both the CNN logo and the WebMD logo, each with an\nactive link to the CNN Site and the WebMD Site.  CNN will retain sole and\nexclusive editorial control of the regularly updated CNN Content for the WebMD\nSponsored Page.  CNN agrees that it will use or post material in connection with\nthe WebMD Sponsored Page which is of the nature and quality that is consistent\nwith web site products and services provided by CNN generally.  WebMD expressly\nagrees that CNN will be the exclusive provider of general news (i.e., hard\n                                                                ----      \ngeneral news as opposed to health-related news, financial news or sports news,\neven though the CNN Content may include health, sports and financial news) on\nthe WebMD Site during the Term.\n\n8.   Ownership.  Each party retains all rights, title and interest in and to any\n     ---------                                                                  \n     content, logos, marks and brand identifiers provided by it to the other\n     hereunder.\n\n9.   Exclusivity.  Except as specifically provided herein to the contrary, this\n     -----------                                                               \n     Agreement and all rights and licenses granted hereunder are non-exclusive\n     and, among other things, each party reserves the absolute right to enter\n     into agreements with third parties related to content for their respective\n     sites (except news content for the WebMD Site) or for the distribution of\n     their respective content through other sites even if competitive with this\n     Agreement.  Specifically, the sole exceptions to such non-exclusivity\n     relate to WebMD's commitment not to include any other general news on the\n     WebMD Site directly or indirectly by branding and extensive linking, and\n     CNN's agreement not to develop a co-branded medical or health-related chat\n     on the CNN Site with any WebMD Competitor.\n\n10.  Term.  The Agreement will commence as of the date of this MOU and will\n     ----                                                                  \n     continue for period of three (3) years from the date the WedMD Content is\n     launched and publicly available on the CNN Site, unless earlier terminated\n     in accordance with this Agreement.  It is the parties mutual desire to\n     launch such WebMD Content on the CNN site no later than February 1, 1999.\n\n11.  Termination.  Either party may terminate the Agreement at any time during\n     -----------                                                              \n     the Term in the event of a material breach by the other party that remained\n     uncured for a period of thirty (30) days after written notice of such\n     breach.  Additionally, either party may terminate the Agreement based on\n     CNN's failure to deliver the specified minimum annual impressions for the\n     Health Section as specifically outlined in Paragraph 6(ii) and Paragraph\n     6(iv) of this MOU.  Each party will have the right to terminate in the\n     event of the other party's bankruptcy or substantially similar adverse\n     financial position.  CNN will have the right to terminate this MOU (or the\n     Agreement) if:  (i) WebMD fails to consummate either of its planned\n     acquisitions of content providers, Direct Medical Knowledge or Sapient\n     Health\n\n                                       5\n\n \n     Network, within forty-five (45) days of this MOU; or (ii) the quality of\n     the WebMD Content fails, at any time, to meet CNN's editorial standards or\n     otherwise adversely affects CNN's reputation, journalistic integrity or\n     goodwill.\n\n12.  Good Faith Negotiations.  WebMD and CNN will endeavor in good faith to\n     -----------------------                                               \n     negotiate and enter into definitive written Agreement relating to the\n     matters addressed hereunder within the next sixty (60) days from the date\n     hereof (\"Negotiation Period\"), setting forth the terms outlined in this MOU\n     as well as customary representations, warranties, covenants, indemnities,\n     limitations and other undertakings appropriate for a transaction of the\n     type contemplated hereunder.\n\n13.  Press Release.  The parties shall cooperate with one another to develop a\n     -------------                                                            \n     mutually agreeable press release related to this MOU and the Agreement\n     contemplated hereunder as soon as possible after the execution of the\n     Agreement.  Any and all future releases and public announcements shall be\n     subject to the mutual written agreement of the parties as to timing,\n     content and the necessity therefor.\n\n14.  Confidentiality.  Except as and to the extent required by law, neither\n     ---------------                                                       \n     party will disclose or use, and will direct it representatives not to\n     disclose or use to the detriment of the other party, any Confidential\n     Information (as defined below) with respect to the business of the other\n     party furnished, or to be furnished, by such party, or their respective\n     representatives to the other party or its representatives at any time or in\n     any manner other than disclosures to employees on a need-to-know basis.\n     For purposes of this Paragraph, \"Confidential Information\" means any\n     information about the ongoing negotiations related to this MOU or the\n     business or activities of either party stamped \"confidential\" or identified\n     in writing as such by a party to the other party promptly following its\n     disclosure.  Disclosure of the Confidential Information to employees and\n     agents of the parties hereto will be limited to a need to know basis under\n     circumstances where the employee or agent is advised of the confidential\n     nature of the disclosure and is bound to keep said information\n     confidential.  Notwithstanding the foregoing, the following information\n     shall not be deemed Confidential Information:  (i) information that is\n     already known to the recipient party or its representatives or to others\n     not bound by a duty of confidentiality prior to disclosure; (ii)\n     information that becomes public available through no fault of the recipient\n     party or its representatives; (iii) information that is independently\n     developed by a party without the use of or reference to the Confidential\n     Information of the other party; or (iv) information that properly comes\n     into the recipient's possession from a third party who is not under an\n     obligation to maintain the confidentiality of such information.\n     Notwithstanding anything contained herein, it shall not be a breach of this\n     provision for either party to disclose Confidential Information pursuant to\n     any applicable subpoena or other legal or regulatory process or to its\n     shareholders pursuant to regulatory requirement so long as the recipient\n     notifies the disclosing party prior to making such disclosure.  Upon the\n     written request of the disclosing party, the recipient party will promptly\n     return to the disclosing party or destroy any Confidential Information in\n     its possession and certify in writing to the disclosing party that it has\n     done so.  Notwithstanding any other provision of this Paragraph, WebMD may,\n     for purposes of filing legally required documents in connection with any\n     public offerings of stock in WebMD, disclose the existence but not the\n     financial terms of the MOU or the Agreement.\n\n                                       6\n\n \n15.  Standard Terms and Conditions.  Each party will provide standard\n     -----------------------------                                   \n     representations and warranties to the other party regarding its ability to\n     enter into the Agreement and carry out the transaction contemplated\n     hereunder.  Additionally, each party will be solely responsible for the\n     content, logos, brand identifiers and other materials provided by it to the\n     other party hereunder for use in accordance with the terms of the Agreement\n     and will indemnify and hold the other party harmless from any claims\n     related to such materials.  Finally, the Agreement will contain other\n     customary provisions appropriate for a transaction of this  nature.\n\n     The signature of each party's duly authorized representative below shall\nevidence the agreement of such party that this MOU accurately summarizes its\nunderstanding with respect to the subject matter hereof.\n\nCNN INTERACTIVE, A DIVISION OF CABLE NEWS                           \nNETWORK, INC.                                     WEBMD, INC.\n\n\/s\/ Louis Lettes                                  \/s\/ Jeff Arnold\n----------------------------                      ---------------------------\nSignature                                         Signature\n                                        \n\nLouis Lettes                                      Jeffrey T. Arnold\n----------------------------                      ---------------------------\nPrint Name                                        Print Name  \n\nVP Business Development                           Chairman\/CEO\n----------------------------                      ---------------------------\nTitle                                             Title\n\n                                       7\n\n\n\n\n TYPE:  EX-10.43\n SEQUENCE:  47\n DESCRIPTION:  STRATEGIC DISTRIBUTION ALLIANCE AGREE.\n\n\n\n \n                                                CONFIDENTIAL TREATMENT REQUESTED\n                                                                   EXHIBIT 10.43\n\n                   STRATEGIC DISTRIBUTION ALLIANCE AGREEMENT\n                   -----------------------------------------\n\n\n          THIS STRATEGIC DISTRIBUTION ALLIANCE AGREEMENT (the \"Agreement\") is\nentered into this 23\/rd\/ day of October, 1998, by and between WebMD, Inc., a\nGeorgia corporation (\"WebMD\"), and HBO &amp; Company of Georgia, a Delaware\ncorporation (\"HBOC\").\n\n                                   BACKGROUND\n                                   ----------\n\n     1.   WebMD is engaged in, among other things, the business of promoting,\nselling and providing under its \"WebMD\/SM\/\" brand name certain Internet-based\ncommunications and information services (the \"WebMD Services\");\n\n     2.   HBOC is engaged, directly and through its affiliates, in the business\nof providing integrated patient care, clinical, financial, managed care and\nstrategic management software solutions and other healthcare-related products\nand services (the \"HBOC Services\");\n\n     3.   Section 10 of that certain Investment Agreement dated as of August 24,\n1998 (the \"Investment Agreement\") by and between WebMD and HBOC contemplates\nthat if WebMD and HBOC enter into a strategic alliance agreement within ninety\n(90) days of the closing of the investment by HBOC, WebMD will grant a\nPerformance-Based Warrant (as such capitalized term is defined in the Investment\nAgreement) to HBOC based upon certain annual gross revenues of WebMD derived\nfrom the strategic alliance; and\n\n     4.   The parties agree that this Agreement constitutes the strategic\nalliance as contemplated in the Investment Agreement and desire to enter into\nsuch a strategic alliance pursuant to the terms and conditions set forth herein.\n\n     NOW, THEREFORE, in consideration of the mutual promises and covenants\ncontained in this Agreement, the parties hereto agree as follows:\n\n                               TERMS OF AGREEMENT\n                               ------------------\n\n     1.   DEFINITIONS. The following capitalized terms used in this Agreement\nshall have the following meanings:\n\n          (a)  \"Affiliates\" means any entity controlling, controlled by, or\nunder common control with, either party to this Agreement.\n\n          (b)  \"Correction(s)\" means a modification, revision or supplement to\nthe WebMD Services which makes the WebMD Services perform functions it was\ndesigned to perform or corrects defects or \"bugs.\"\n\n \n         (c) \"Distributor(s)\" means HBOC, its Affiliates and those entities\nwhich (at the time in question) are authorized by HBOC either as distributor or\nagent to distribute HBOC Services.  Additional Distributors may be added by HBOC\nduring the term of this Agreement so long as HBOC requires any such entity to\nexecute a written agreement with HBOC containing terms and conditions\nsubstantially similar to those contained in this Agreement for the protection of\nProprietary Information.\n\n         (d) \"Documentation\" means the full and complete documentation in any\nmedia and form (CD, hard copy, electronic, etc.) for WebMD Services, including\nall programmer, user, training, operating, support and other manuals, technical\nspecifications and documents and manuals relating to the installation,\nimplementation, use, maintenance, testing and operation of WebMD Services,\ntogether with all revisions, updates and other modifications thereto as WebMD\nmay make from time to time.\n\n         (e) \"Enhancement(s)\" means modifications, revisions, additions or\nsupplements to the WebMD Services which enables the WebMD Services to provide or\nperform services or functions it could not previously perform or materially\nimproves the manner in which the WebMD Services performs existing functions.\n\n         (f) \"HBOC Customer(s)\" means the (i) current customers of HBOC which\nhave licensed HBOC software or purchased from HBOC services or hardware; and\n(ii) prospective customers to whom HBOC or any of its Affiliates is marketing or\nwith whom HBOC or any of its Affiliates is negotiating for the license of HBOC\nSoftware or the sale of hardware or HBOC Services.  The term \"HBOC Customer\"\nshall include Affiliates of any HBOC Customer.\n\n         (g) \"New Release(s)\" means all modifications, revisions, Enhancements,\nCorrections or replacements for WebMD Services and related Documentation which\nWebMD has agreed to provide pursuant to this Agreement or which WebMD makes\navailable to its customers in general from time to time at no additional license\nfee.\n\n         (h) \"Proprietary Information\" means any data or information regarding\n(i) the business operations of a party which is not generally known to the\npublic and affords such party a competitive advantage, including but not limited\nto, information regarding its products and product development, suppliers,\nmarketing strategies, finance, operations, customers, sales, and internal\nperformance results; (ii) proprietary software, including but not limited to:\nconcepts, designs, documentation, reports, data, specifications, source code,\nobject code, flow charts, file record layouts, databases, inventions and trade\nsecrets, whether or not patentable or copyrightable; and (iii) the terms and\nconditions of this Agreement.\n\n         (i) \"Subscription Agreement\" means the agreement which sets forth the\nterms and conditions pursuant to which HBOC Customer will be licensed to use the\nWebMD Services.\n\n                                       2\n\n \n         (j) \"Territory\" means the geographical area and territories listed in\n                                                                              \nExhibit A attached hereto.  The Territory may be extended pursuant to the mutual\n---------                                                                       \nwritten agreement of the parties.\n\n     2.   LICENSE.\n\n          (a) License Grant.  Subject to the terms and conditions set forth in\n              -------------                                                   \nthis Agreement, WebMD grants HBOC, its Affiliates and Distributors a non-\nexclusive, non-transferable license to market the WebMD Services to HBOC\nCustomers.\n\n          (b) Trademarks.\n              ---------- \n\n              (i)   WebMD grants HBOC a non-exclusive, non-transferable license\nto use WebMD's trademarks, service marks, logos, or slogans (the \"WebMD Marks\")\nsolely to advertise and promote the WebMD Services during the term of this\nAgreement. HBOC shall submit all of such materials to WebMD for prior review and\napproval. HBOC shall not receive any ownership in or to the WebMD Marks as a\nresult of such use. HBOC shall not use any of the WebMD Marks in any manner\nlikely to confuse, mislead or deceive the public, or to be adverse to the best\ninterests of WebMD.\n\n              (ii)  HBOC grants to WebMD limited permission to use the HBOC's\ntrademarks, service marks, logos, or slogans (the \"HBOC Marks\") solely to\nidentify itself as a partner of HBOC during the term of this Agreement.  WebMD\nshall use the HBOC Marks in accordance with the guidelines established by HBOC\nfrom time to time, a current copy of which is attached hereto as Exhibit B.\n                                                                 ---------  \nWebMD shall submit all such materials to HBOC for prior review and approval.\nWebMD shall not use any of the HBOC Marks in any manner likely to confuse,\nmislead or deceive the public, or to be adverse to the best interests of HBOC.\n\n         (c) Fulfillment.  WebMD agrees to allow HBOC Customers who wish to\n             -----------                                                   \nsubscribe to the WebMD Services (the \"Subscribers\") through HBOC's marketing\nefforts to subscribe to WebMD Services at the prices set forth on Exhibit C\n                                                                  ---------\nattached hereto, subject to adjustment as set forth in Section 13(o) of this\nAgreement.  Upon a potential Subscriber's execution of a Subscription Agreement,\nHBOC shall forward the executed Subscription Agreement to WebMD for\nconsideration, acceptance and fulfillment. WebMD shall act on all such\nSubscription Agreements it receives within a reasonable time after its receipt\nthereof, not to exceed three (3) business days. WebMD shall maintain appropriate\nbandwidth, storage space and access speed to permit timely access to the WebMD\nServices by all Subscribers.\n\n         (d) HBOC Internet Commerce Content.  HBOC may offer to WebMD from time\n             ------------------------------                                    \nto time a non-exclusive, non-transferable, non-assignable license to incorporate\ncertain HBOC Services (the \"HBOC Internet Commerce Content\") into the WebMD\nServices.  HBOC represents and warrants to WebMD that such HBOC Internet\nCommerce Content (A) will be licensed to or the property of HBOC or a third\nparty from whom HBOC has received the right to offer such HBOC Internet Commerce\nContent to WebMD and that HBOC or such third party will have the full right to\nallow WebMD to use such HBOC Internet Commerce Content,\n\n                                       3\n\n \nand to display and incorporate such HBOC Internet Commerce Content into WebMD\nServices, without infringement upon the rights of any party; and (B) will have\nbeen prepared and\/or compiled with care.  If such HBOC Internet Commerce Content\nis incorporated into the WebMD Services:  (x) WebMD shall have the right and\nlicense to use such HBOC Internet Commerce Content in order to display and\nincorporate such HBOC Internet Commerce Content into WebMD Services; and (y)\nother than the right and license granted pursuant the foregoing clause (x),\nWebMD shall obtain no rights in or to such HBOC Internet Commerce Content.  The\nparties will negotiate in good faith the terms and conditions under which the\nHBOC Internet Commerce Content will be incorporated into the WebMD Services.\n\n         (e) Joint Services.  The parties contemplate that they may, from time\n             --------------                                                   \nto time, develop new products and services for incorporation into the WebMD\nServices.  Concurrently with the development of such new products and services,\nthe parties agree to negotiate in good faith the terms and conditions under\nwhich those products and services will be incorporated into the WebMD Services.\nSuch terms and conditions shall include, without limitation, the terms and\nconditions set forth on Exhibit D attached hereto.\n                        ---------                 \n         (f) Goals; Performance-Based Warrant.  The parties acknowledge that the\n             --------------------------------                                   \nInvestment Agreement contemplates that if HBOC enters into this Agreement within\nninety (90) days of the closing of the investment in WebMD by HBOC and meets the\nWebMD gross revenue targets generated by the joint marketing efforts of HBOC and\nWebMD, including but not limited to HBOC's commercially reasonable efforts to\nenroll Subscribers to the WebMD Services, as set forth on Exhibit E attached\n                                                          ---------         \nhereto, within the respective time periods set forth therein, WebMD shall issue\nto HBOC, within five (5) days following the execution of this Agreement by the\nparties, a Performance-Based Warrant to purchase an aggregate of *** (***)\nshares of Preferred Stock or, in the event that the Initial Public Offering has\nbeen closed by such date, Common Stock, (as such capitalized terms are defined\nin the Investment Agreement).  The Performance-Based Warrant would be granted\nwith respect to *** (***); *** (***); and *** (***) shares on March 31 of each\nof the calendar years 1999, 2000 and 2001, respectively, with the exercise price\nper share equal to the Fair Market Value (as defined below) of the underlying\ncapital stock on the respective dates of grant (as adjusted for stock splits,\nstock dividends, combinations and the like occurring after the date thereof).\nFor purposes of this Section 2(f), \"Fair Market Value\" means:  (i) prior to an\nInitial Public Offering (as such capitalized term is defined in the Investment\nAgreement), the fair market value of the underlying capital stock on the\nrespective dates of grant as determined by the Board of Directors of WebMD, in\nits sole discretion; provided, however, that Fair Market Value shall not be\n                     --------  --------                                    \ngreater than the price at which securities of WebMD were last sold in a\ntransaction between WebMD and parties who were not, at the time of such sale,\naffiliated with WebMD; or (ii) subsequent to an Initial Public Offering, the\nMarket Price (as such capitalized term is defined in the Warrant to Purchase\nShares of Series A Preferred Stock or Common Stock of WebMD issued to HBOC and\ndated August 24, 1998) on the respective dates of grant.  The parties agree that\nall fees received by WebMD from WebMD Subscribers enrolled through the marketing\nefforts of HBOC Call Center Group or any other HBOC sales group in calendar year\n1998 (either prior to or after the execution of this Agreement) shall be\nincluded in the calculation of the gross revenues for the twelve (12)-month\nperiod ended March 31, \n\n\n***  Omitted pursuant to a request for confidential treatment and filed\n     separately with the Commission.\n\n                                       4\n\n \n1999 for purposes of the possible grant of the Performance-Based Warrant. The\nparties further agree that such targets merely constitute a good faith estimate\nby HBOC during the specified time periods and that the failure to meet such\ntargets shall not constitute a breach of this Agreement by HBOC.\n\n  3.     MARKETING.\n\n         (a) Generally.  HBOC will use commercially reasonable efforts to market\n             ---------                                                          \nthe WebMD Services.\n\n         (b) Marketing Activities.  HBOC and WebMD, as appropriate, may perform\n             --------------------                                              \nsome or all of the following marketing activities:\n\n             (i)   Press Releases. Subject to each party's prior written\n                   --------------\napproval, issue a press release announcing the creation of the strategic\nalliance and additional press releases from time to time to publicize other\nsignificant events regarding joint business developments and joint services.\n\n\n             (ii)  Marketing Materials.  Work together to develop articles or\n                   -------------------                                       \nentries regarding WebMD Services for the HBOC marketing materials, including:\nFact Sheets, WebMD Solutions Directory, HBOC Sales Manual and For Your Arsenal\n             -------------------------- -----------------     ----------------\nand other marketing materials released by HBOC from time to time during the term\nof this Agreement.  HBOC shall include references to the WebMD Services in\nmarketing presentations, as appropriate, and both parties, in consultation with\neach other, shall be responsible for the design and development of marketing\nmaterials for the WebMD Services.\n\n             (iii) RFP Responses.  Recommend WebMD Services as a solution in\n                   -------------                                            \nresponses to requests for proposals (\"RFP's\") from HBOC Customers, provided\nWebMD cooperates with HBOC in the preparation of such responses, such\ncooperation to include, without limitation, ensuring the accuracy of HBOC's\nresponses to routine questions regarding WebMD Services contained in RFP's, the\ndevelopment and update of standard information required to support HBOC\nresponses to routine questions in such RFP's, the formulation of responses to\nnon-routine questions in such RFP's, and other support to HBOC's RFP Specialists\nas reasonably required in connection with clarifications to RFP responses.\n\n             (iv)  Demonstrations. WebMD shall provide HBOC a reasonable amount\n                   -------------- \nof sales support which may include demonstrations of the WebMD Services, either\nat an HBOC or HBOC Cus tomer site, and attendance at sales presentations by\nHBOC. \n\n             (v)   Representatives. Each party shall assign a representative who\n                   --------------- \nshall serve as that party's point-of-contact or facilitator between the parties\non all matters arising under this Agreement. The representatives shall meet on a\nmutually agreed upon basis to review and coordinate all activities under this\nAgreement, including development, support, marketing and sales, and to amicably\nresolve any disputes which may arise under this Agreement.\n\n                                       5\n\n \n             (vi)  Sales Training and Assistance. From time to time and at no\n                   -----------------------------\ncharge to HBOC, upon mutually agreeable terms and conditions, HBOC and WebMD may\norganize and hold sales training workshops for the WebMD Services. WebMD agrees\nto respond timely and effectively to reasonable requests for assistance from\nHBOC in order to promote the license of the WebMD Services by HBOC.\n\n         (c) Business Partner Database.  HBOC will include information about\n             -------------------------                                      \nWebMD and WebMD Services in HBOC's Business Partner directory and other\nmaterials, as appropriate, for use by HBOC sales representatives, Affiliates,\nDistributors and others.\n\n             (i)  Trade Show Attendance.  Upon HBOC's reasonable request, WebMD\n                  ---------------------                                        \nshall participate with HBOC at vendor fairs and healthcare information industry\ntrade shows, seminars and selected user group events.\n\n             (ii) Web Page Links. As deemed appropriate, each party may\n                  --------------\nestablish a link on its respective Web site to the Web site of the other party.\n\n     4.   WebMD RESPONSIBILITIES.\n\n          (a) Technical Support for HBOC. WebMD shall provide to HBOC, at no\n              --------------------------                                    \nadditional charge, reasonable technical support and consultation from WebMD's\ndesignated offices by way of telephone, bulletin boards or other electronic\nmeans, to assist HBOC in the resolution of problems encountered by HBOC in the\noperation, configuration, implementation and support of WebMD Services.  Such\nsupport shall include commercially reasonable efforts by WebMD to verify,\ndiagnose and correct errors and defects in the WebMD Services. WebMD shall serve\nas the sole contact point and provide all technical support for the WebMD\nServices for HBOC Customers.\n\n          (b) Pre-releases.  Upon HBOC's reasonable request, WebMD shall provide\n              ------------                                                      \nnewly developed or beta versions (\"Pre-releases\") of WebMD Services for review,\nevaluation, training and planning purposes. WebMD shall make Pre-releases\navailable to HBOC no later than when WebMD makes the same available to other\nthird party distributors of the WebMD Services.  ANY PRE-RELEASE IS PROVIDED TO\nHBOC \"AS IS\" AND WebMD MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ALL\nIMPLIED WARRANTIES REGARDING THE PRE-RELEASE.\n\n          (c) Participation in Development.  WebMD shall provide HBOC with\n              ----------------------------                                \nfrequent communication regarding contemplated New Releases, Enhancements, and\nother product directions, including providing HBOC with access to WebMD Services\nunder development in order that HBOC may fully utilize all the features of the\nWebMD Services as early as is technically feasible, all of which shall be\nprovided to HBOC no later than provided to any other third party distributor of\nthe WebMD Services. WebMD agrees not to add incremental provider content\nsolutions without first previewing comparable HBOC solutions.\n\n          (d) HBOC Training.  WebMD shall provide to HBOC, at no additional\n              -------------                                                \ncharge, adequate initial training and re-training from time to time as\nreasonably necessary and \n\n                                       6\n\n \nreasonably requested by HBOC on the use, operation and installation of WebMD\nServices. All training shall be conducted by qualified personnel at such\nfacilities and at such times mutually agreed to by the parties, it being\ncontemplated that initially WebMD's personnel shall provide such training in one\nor more sessions at HBOC's offices. Unless otherwise expressly agreed, travel\nand living expenses incurred by each party in connection with the training shall\nbe the responsibility of the party incurring the expenses.\n\n         (e) Professional Services.  WebMD shall make certain other professional\n             ---------------------                                              \nservices available to HBOC beyond the scope of those provided in this Section 4\non mutually acceptable terms and conditions.\n\n         (f) Access to Technical Assistance.  WebMD shall provide HBOC with any\n             ------------------------------                                    \ntechnical assistance as may be reasonably necessary for any application or\ndatabase interfaces or integration between HBOC Services and WebMD Services on\nmutually acceptable terms and conditions; however the rates payable by HBOC for\nsuch services shall not exceed WebMD's actual costs incurred in any event.\n\n         (g) Continued Development of WebMD Services.  Recognizing that a\n             ---------------------------------------                     \nsignificant portion of a customer's perceived value in Internet-based services\nsuch as the WebMD Services is the developer's continued investment in improved\nand enhanced versions thereof, WebMD shall devote appropriate resources to\ndeveloping improved and enhanced versions of the WebMD Services (including\nversions designed to be compatible with new hardware, database,\npresentation\/windowing and operating system features and versions with improved\nand additional features).\n\n         (h) Sale of Line of Business.  In the event that HBOC should transfer\n             ------------------------                                         \nany line of business whose products or services are dependent on the WebMD\nServices, WebMD shall not unreasonably refuse to enter into a distribution\nagreement with the buyer of such product or service line on terms comparable to\nWebMD's then current terms for such a strategic relationship.\n\n         (i) Marketing Literature; Sales Support.  WebMD shall provide and\n             -----------------------------------                          \ndistribute a reasonable number of copies of its WebMD Services marketing\nmaterials to appropriate HBOC sales and marketing personnel.  WebMD shall\nrespond timely and effectively to HBOC's reasonable requests for information and\nsales assistance.\n\n         (j) Advertising and Sponsorship Placement.  WebMD shall be responsible\n             -------------------------------------                             \nfor all advertising and sponsorship placements on its Web site.\n\n         (k) Customer Support.  WebMD shall serve as the sole contact point and\n             ----------------                                                  \nprovide all customer support for the WebMD Services for HBOC Customers.\n\n     5.  PRICES AND PAYMENT.\n\n         (a) Customer Fees.  WebMD shall determine the fees to be charged for\n             -------------                                                   \nthe WebMD Services (subject to adjustment as set forth in Section 13(o) of this\nAgreement), and \n\n                                       7\n\n \nHBOC shall determine the fees to be charged for the HBOC Internet Commerce\nContent. The parties shall jointly determine the fees to be charged for services\nwhich they jointly develop. WebMD shall be responsible for billing and\ncollection of the amounts owed for the WebMD Services. Concurrently with the\nincorporation of any HBOC Internet Commerce Content as more fully described in\nSection 2(d) of this Agreement, the parties agree to negotiate in good faith an\narrangement for WebMD to bill, collect and remit to HBOC fees, if any, relating\nto any such HBOC Internet Commerce Content.\n\n         (b) Payment Terms.  WebMD shall remit to HBOC incentive commissions per\n             -------------                                                      \npaid Subscriber enrolled by HBOC or its Affiliates as set forth on Exhibit F\n                                                                   ---------\nwithin thirty (30) days of WebMD's receipt of the monthly fees from such\nSubscriber. Subscriber fees pursuant to this Section 5(b) shall be payable by\nthe Subscriber within thirty (30) days following the end of each calendar month\nin which such fees accrue.\n\n         (c) WebMD Commissions and Discounts.  In the event WebMD provides\n             -------------------------------                              \ncommissions or discounts to any similarly situated third party distributor of\nthe WebMD Services, HBOC shall be entitled to receive the benefit of such\ncommission and\/or discount offering for as long as that offering is in effect.\nWebMD shall notify HBOC of all such transactions for which HBOC either qualifies\nor for which it might qualify if it agrees to the conditions of such other\ncommission and\/or discount offering.\n\n         (d) Expenses.  Except as otherwise specified in this Agreement or\n             --------                                                     \nmutually agreed to by the parties, each party shall be solely responsible for\nits own travel and out-of-pocket expenses incurred in the performance of its\nobligations under this Agreement.\n\n     6.  PROPRIETARY RIGHTS AND CONFIDENTIALITY.\n\n         (a) Ownership and Protection.  Each party agrees that it has no\n             ------------------------                                   \ninterest in or right to use the Proprietary Information of the other except in\naccordance with the terms of this Agreement. Each party acknowledges that it may\ndisclose Proprietary Information to the other in the performance of this\nAgreement. The party receiving the Proprietary Information shall (i) maintain it\nin strict confidence and take all reasonable steps to prevent its disclosure to\nthird parties, except to the extent necessary to carry out the purposes of this\nAgreement, in which case these confidentiality restrictions shall be imposed\nupon the third parties to whom the disclosures are made; (ii) use at least the\nsame degree of care as it uses in maintaining the secrecy of its own Proprietary\nInformation (but no less than a reasonable degree of care); and (iii) prevent\nthe removal of any proprietary, confidential or copyright notices placed on the\nProprietary Information.\n\n         (b) Limitation.  Neither party shall have any obligation concerning any\n             ----------                                                         \nportion of the Proprietary Information of the other which (i) is publicly known\nprior to or after disclosure hereunder other than through acts or omissions\nattributable to the recipient or its employees or representatives; (ii) as\ndemonstrated by prior written records, is already known to the recipient at the\ntime of disclosure hereunder, (iii) is disclosed in good faith to the recipient\nby a third party having a lawful right to do so; or (iv) is the subject of\nwritten consent \n\n                                       8\n\n \nof the party which supplied such information authorizing disclosure; or (v) is\nrequired to be disclosed by the receiving party by applicable law or legal\nprocess, provided that the receiving party shall immediately notify the other\nparty so that it can take steps to prevent its disclosure.\n\n         (c) Remedies for Breach.  In the event of a breach of this Section 6,\n             -------------------                                              \nthe parties agree that the non-breaching party may suffer irreparable harm and\nthe total amount of monetary damages for any injury to the non-breaching party\nmay be impossible to calculate and would therefore be an inadequate remedy.\nAccordingly, the parties agree that the non-breaching party may be entitled to\ntemporary, preliminary and permanent injunctive relief against the breaching\nparty, its officers or employees, in addition to such other rights and remedies\nto which it may be entitled at law or in equity.\n\n     7.  WebMD WARRANTIES.\n\n         (a) Warranties of Authority and Title.  WebMD hereby warrants and\n             ---------------------------------                            \nrepresents that (i) it is a corporation duly organized, validly existing and in\ngood standing under the laws of the State of Georgia and has full power and\nauthority to enter into and consummate the transactions contemplated in this\nAgreement; (ii) the execution, delivery and performance of this Agreement does\nnot violate the terms of any security agreement, license or any other contract\nor written instrument to which WebMD is bound; (iii) the WebMD Services do not\ninfringe any patent, trademark, copyright or trade secret of a third party, and\n(iv) it is not aware of any third party infringing on the rights of WebMD with\nrespect to the WebMD Services.\n\n         (b) Product Warranties.  WebMD hereby warrants and represents that\n             ------------------                                            \nWebMD Services, including all modifications, Corrections, Enhancements and New\nReleases will have the functions and features and perform as described in the\nDocumentation provided to HBOC or to HBOC Customers by WebMD during the term of\nthis Agreement.  WebMD further warrants that prior to delivery, the WebMD\nServices have been audited and tested in accordance with WebMD's internal\nquality control processes and that the WebMD Services contains no third party\nsoftware which would require HBOC, as a distributor of the WebMD Services, to\nagree to any terms and conditions in addition to those set forth in this\nAgreement. In the event that the WebMD Services fails to conform to such\nwarranties, WebMD shall promptly and continuously provide such support as\nreasonably necessary to cause the WebMD Services to perform as warranted.\n\n         (c) WebMD Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7\n             ----------------                                                 \nOR OTHERWISE UNDER THIS AGREEMENT (OR ANY OTHER AGREEMENT BETWEEN THE PARTIES)\nOR IN ANY OTHER WebMD MATERIALS OR DOCUMENTATION PROVIDED TO SUBSCRIBERS, WebMD\nDISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM,\nINCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A\nPARTICULAR PURPOSE.\n\n                                       9\n\n \n         (d) Year 2000 Warranty.  WebMD warrants that the occurrence in or use\n             ------------------                                               \nby the WebMD Services of dates on or after January 1, 2000 (the \"Millennial\nDates\") will not have a material adverse effect on the performance of the WebMD\nServices with respect to date-dependent data, computations, output or other\nfunctions (including, without limitation, calculating, computing or sequencing),\nand the WebMD Services will create, store and generate output data related to or\nincluding the Millennial Dates without errors or omissions.\n\n     8.  HBOC WARRANTIES.\n\n         (a) Warranties of Authority.  HBOC hereby warrants and represents that\n             -----------------------                                           \n(i) it is a corporation duly organized, validly existing and in good standing\nunder the laws of the state of Delaware and has full power and authority to\nenter into and consummate the transactions contemplated in this Agreement; and\n(ii) the execution and performance of this Agreement does not violate the terms\nof any security agreement, license or any other contract or written instrument.\n\n         (b) HBOC Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8(b)\n             ---------------                                                    \nOR OTHERWISE UNDER THIS AGREEMENT (OR ANY OTHER AGREEMENT BETWEEN THE PARTIES)\nHBOC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR\nCUSTOM, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS\nFOR A PARTICULAR PURPOSE.\n\n     9.  INTELLECTUAL PROPERTY INDEMNIFICATION.  WebMD shall indemnify, defend\nand hold harmless HBOC, its Affiliates and Distributors and their officers,\ndirectors, employees agents and affiliates (collectively, for purposes of this\nSection 9, \"HBOC Persons\") from all damages, liabilities and expenses (and all\nlegal costs including reasonable attorneys fees, court costs, expenses and\nsettlements resulting from any action or claim) arising out of, connected with\nor resulting in any way from (i) any allegation that the authorized possession,\ndistribution or use (by HBOC, its Affiliates or Distributors) in a manner that\nis in compliance with this Agreement and the terms and conditions for the use of\nthe WebMD Services of WebMD Services infringes a patent, trademark, copyright,\ntrade secret or other intellectual property right of a third party; and (ii) the\nuse of WebMD Services (by HBOC, its Affiliates or Distributors) in a manner that\nis in compliance with the terms and conditions for the use of the WebMD\nServices. If any such claim or proceeding arises, HBOC Persons seeking\nindemnification hereunder shall give timely notice of the claim to WebMD after\nthey it receive actual notice of the existence of the claim.  WebMD shall have\nthe option, at its expense, to employ counsel reasonably acceptable to HBOC\nPersons to defend again such claim and to compromise, settle or otherwise\ndispose of the claim; provided, however, that no compromise or settlement of any\nclaim admitting liability of or imposing any obligations upon HBOC Persons may\nbe effected without the prior written consent of HBOC Persons. In addition, and\nat the option and expense of WebMD, WebMD may, at any time after any such claim\nhas been asserted, and shall, in the event any WebMD Services are held to\nconstitute an infringement, either procure for HBOC Persons the right to\ncontinue using the WebMD Services, or replace or modify the WebMD Services so\nthat they become non-infringing, \n\n                                       10\n\n \nprovided that such replacement or modified WebMD Services have the same\nfunctional characteristics as the infringing WebMD Services, or, if the prior\ntwo (2) remedies are commercially impractical, refund to HBOC all fees, costs\nand charges paid by HBOC to WebMD for the WebMD Services and any other WebMD\nServices reasonably rendered ineffective as the result of said infringement.\nHBOC shall cooperate fully in such actions, making available books or records\nreasonably necessary for the defense of such claim. If WebMD refuses to defend\nor does not make known to HBOC Persons its willingness to defend against such\nclaim within ten (10) days after it receives notice thereof, then HBOC Persons\nshall be free to investigate, defend, compromise, settle or otherwise dispose of\nsuch claim in its best interest and incur other costs in connection therewith,\nall at the expense of WebMD.\n\n     10. LIMITATION OF LIABILITY.\n\n         (a) Exclusion of Consequential Damages.  NEITHER PARTY WILL BE LIABLE\n             ----------------------------------                               \nTO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, WHETHER\nFORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF THE OTHER PARTY OR ITS CLIENTS,\nCUSTOMERS OR SUBSCRIBERS (INCLUDING WITHOUT LIMITATION CLAIMS FOR GOODWILL, LOST\nPROFITS OR USE OF MONEY) ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTIES,\nBREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, IN TORT OR\nOTHERWISE, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, EXCEPT ONLY IN\nTHE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES\nSUCH LIABILITY; PROVIDED, HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL IMPAIR OR\nLIMIT WebMD'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OF THIS AGREEMENT.\n\n         (b) Limitation of HBOC's Obligations.  HBOC reserves the right to\n             --------------------------------                             \nwithhold service or otherwise cease performance of its obligations hereunder\nwith respect to any HBOC Customer which is found by HBOC to be in default or\nbreach of any agreement with HBOC.  Upon such cessation of services, HBOC shall\nbe relieved of its performance obligations contained in this Agreement with\nrespect to such HBOC Customer, and shall not be found to be in breach of this\nAgreement by WebMD. HBOC's aggregate liability to WebMD for damages concerning\nperformance or non-performance by HBOC or in any way related to the subject\nmatter of this Agreement, regardless of whether the claim for such damages is\nbased on contract or tort, shall not exceed the amount received by WebMD from\nHBOC Customers during the previous twelve (12) months for the WebMD Services\ngiving rise to such claim.\n\n     11. TERMINATION; DISPUTE RESOLUTION.\n\n         (a) Term.  This Agreement shall commence on the Effective Date and\n             ----                                                          \nshall continue in full force and effect for a period of three (3) years\n(\"Initial Term\"), unless earlier terminated as provided for below. Thereafter,\nthis Agreement will automatically renew for successive terms of one (1) year\neach (each, a \"Renewal Term\"). Either party may terminate \n\n                                       11\n\n \nthis Agreement without cause at the end of the Initial Term or any Renewal Term\nby providing at least nine (9) months prior written notice to the other party.\n\n         (b) Early Termination.  Either party may terminate this Agreement\n             -----------------                                            \nimmediately by notice to the other party upon the occurrence of any of the\nfollowing events of default by the other party:\n\n             (i)   The other party fails to observe, perform or fulfill any of\nits obligations or warranties (other than confidentiality obligations) under the\nAgreement and fails to cure such default within thirty (30) days after the non-\ndefaulting party gives written notice of such failure;\n\n             (ii)  The other party fails to observe, perform or fulfill any\nconfidentiality obligation imposed hereunder and fails to cure such default\nwithin ten (10) days after the non-defaulting party gives notice of such\nfailure;\n\n             (iii) The other party's business is liquidated, dissolved or\nsuspended;\n\n             (iv)  The other party is prevented from performing any of its\nmaterial obligations hereunder for more than ninety (90) days due to an event\nbeyond its reasonable control as described in Section 13(k); or\n\n             (v)   Any representation or warranty made herein by the other party\nis false or misleading in any material respect as of the date on which it was\nmade or becomes false or misleading in any material respect at any time\nthereafter.\n\n         (c) Termination by HBOC.  HBOC may, in its reasonable discretion,\n             -------------------                                          \nterminate this Agreement upon ninety (90) days written notice by providing\nnotice to WebMD upon the occurrence of a change in the direct or indirect\nownership or control of WebMD which in HBOC's reasonable opinion may adversely\naffect HBOC's rights, goodwill, HBOC Customer relationships or competitive\nposition.\n\n         (d) Obligations After Expiration or Termination.  Upon the expiration\n             -------------------------------------------                      \nor termination of this Agreement for any reason:\n\n             (i)   Except as otherwise specified below in clause (ii), each\nparty will promptly cease using and destroy or return to the other party all\nadvertisements and promotional materials that bear a trademark of the other\nparty and all Proprietary Information of such other party.\n\n             (ii)  WebMD will continue to deliver the WebMD Services to HBOC\nCustomers, subject to their obligation to make timely payment therefor, until\nthe expirations or terminations of their respective Subscription Agreements, and\nwill continue to pay HBOC all incentive commissions set forth on Exhibit F\n                                                                 ---------\nattached hereto earned with respect to such HBOC Customers.\n\n                                       12\n\n \n             (iii) WebMD shall continue to perform all applicable warranty and\ntechnical support and other obligations regarding the WebMD Services in\naccordance with the provisions of this Agreement until such time as the last\nHBOC Customer Subscription Agreement expires or terminates.\n\n         (e) Survival.  The provisions of the Agreement which by their nature\n             --------                                                        \nare intended to survive termination or expiration of this Agreement shall\nsurvive expiration or termination of this Agreement.\n\n         (f) Dispute Resolution.  In the event of a dispute between the parties\n             ------------------                                                \nand for which dispute the parties are unable to reach a mutually agreeable\nresolution, the dispute shall be submitted to arbitration under the commercial\narbitration rules of the American Arbitration Association then in effect. There\nshall be one arbitrator mutually agreed to by both parties; such arbitrator\nshall have experience in the area of controversy. After the hearing, the\narbitrator shall decide the controversy and render a written decision setting\nforth the issues adjudicated, the resolution thereof and the reasons for the\naward. The award of the arbitrator shall be conclusive. Payment of the expenses\nof arbitration, including the fee of the arbitrator, shall be assessed by the\narbitrator based on the extent to which each party prevails.\n\n     12. EXCLUSIVITY.\n\n         (a) During the term of this Agreement, WebMD agrees that it shall not\ngrant a license to market the WebMD Services in the Territory to any of the\nentities listed on Exhibit G attached hereto, or to any entity or person that\n                   ---------                                                 \ncontrols or is controlled by, directly or indirectly, an entity listed on\n                                                                         \nExhibit G, except upon HBOC's prior written approval. The exclusivity rights\n---------                                                                   \ngranted pursuant to this Section 12(a) shall be subject to attainment of the\nWebMD gross revenue targets as set forth on Exhibit H attached hereto within the\n                                            ---------                           \nrespective time periods set forth therein.  If HBOC fails to meet either of such\ntargets, WebMD shall provide written notice to HBOC within thirty (30) days\nafter each such failure. HBOC shall then have a cure period of one hundred\neighty (180) days following (i) March 31, 2000 to meet the first target as set\nforth in Section 1 of Exhibit H and to bring current the pro rata portion of the\n                      ---------                                                 \nsecond target as set forth in Section 2 of Exhibit H; and (ii) March 31, 2001 to\n                                           ---------                            \nmeet the second target as set forth in Section 2 of Exhibit H.\n                                                    --------- \n\n         (b) During the term of this Agreement, HBOC agrees that it shall not\nenter into an agreement to market Internet-based communications and information\nservices in the Territory which are provided or distributed by any of the\nentities listed on Exhibit I attached hereto, or to any entity or person that\n                   ---------                                                 \ncontrols or is controlled by an entity listed on Exhibit I, except upon WebMD's\n                                                 ---------                     \nprior written approval. The exclusivity rights granted pursuant to this Section\n12(b) shall be subject to attainment of the WebMD gross revenue targets as set\nforth on Exhibit J attached hereto within the respective time periods set forth\n         ---------                                                             \ntherein.  If WebMD fails to meet either of such targets, WebMD shall provide\nwritten notice to HBOC within thirty (30) days after each such failure.  WebMD\nshall then have a cure period of one hundred eighty (180) days following (i)\nMarch 31, 2000 to meet the first target as set forth in Section 1 of Exhibit J\n                                                                     ---------\nand to bring current the pro rata portion of the second target as set forth in\nSection 2 \n\n                                       13\n\n \nof Exhibit J; and (ii) March 31, 2001 to meet the second target as set forth in\n   ---------\nSection 2 of Exhibit J.\n             --------- \n\n         (c) If either party fails to meet its respective targets as set forth\non Exhibit H and Exhibit J attached hereto within the respective time periods\n   ---------     ---------                                                   \nset forth therein, including the cure periods specified in this Section 12,\nneither party will be bound by the exclusivity provisions set forth in this\nSection 12.\n\n         (d) For purposes of this Section 12, \"Control\" means the ownership of\nat least a majority of the voting interests of an entity listed on Exhibit G and\n                                                                   ---------    \nExhibit I attached hereto.\n---------                 \n\n     13. MISCELLANEOUS PROVISIONS.\n\n         (a) Independent Contractor.  It is expressly agreed that WebMD and HBOC\n             ----------------------                                             \nare acting under this Agreement as independent contractors, and the relationship\nestablished under this Agreement shall not be construed as a partnership, joint\nventure or other form of joint enterprise. Neither party is authorized to make\nany representations or create any obligation or liability, expressed or implied,\non behalf of the other party, except as may be expressly provided for in this\nAgreement.\n\n         (b) Comparable Terms.  The fees charged HBOC Customers by WebMD for\n             ----------------                                               \nWebMD Services and any non-price terms imposed shall not at any time be less\nfavorable than any price or non-price terms offered by WebMD to customers of any\nthird party which markets the WebMD Services in comparable volumes. In the event\nthat WebMD offers any third party distributor of the WebMD Services more\nfavorable price or non-price terms than those offered hereunder to HBOC, the\nWebMD shall so notify HBOC, and the more favorable terms shall be immediately\nextended to HBOC.\n\n         (c) Access to Books and Records.  The parties shall keep complete,\n             ---------------------------                                   \naccurate and up-to-date books and records in accordance with generally accepted\naccounting principles and sound business practices covering all transactions\nrelating to this Agreement. Either party and\/or its authorized representatives\nshall upon reasonable notice have the right (not more than once annually) to\ninspect, audit, and\/or copy such records in order to determine whether all\nprovisions of this Agreement have been met. The parties agree that all\ninformation and records obtained in such audit shall be considered Proprietary\nInformation. This right to audit shall be available to either party for up to\ntwo (2) years following the termination of this Agreement.\n\n         (d) Omnibus Reconciliation Act of 1980.  If the provisions of Section\n             ----------------------------------                               \n952 of the Omnibus Reconciliation Act of 1980, as amended (currently codified at\n42 U.S.C. l395x(v)1(I)), are or become applicable to this Agreement, then, until\nthe expiration of four (4) years after the furnishing of services pursuant to\nthis Agreement, WebMD shall, upon written request, make available to the\nSecretary of Health and Human Services, the U.S. Comptroller General, or any\nother duly authorized representative of the federal government, the contracts\nand books, documents and records of WebMD that are necessary to certify the\nnature and extent of costs related to this Agreement.\n\n                                       14\n\n \n         (e) Compliance with Laws.  WebMD, its employees and agents shall comply\n             --------------------                                               \nwith applicable federal, state and local laws, ordinances, regulations and\ncodes, including the identification and procurement of required permits\ncertificates, approvals and inspections, in the performance of this Agreement.\n\n         (f) Export Assurance.  HBOC hereby acknowledges and agrees that it will\n             ----------------                                                   \nfirst obtain any export license or approval required by the United States\nDepartment of Commerce pursuant to Section 370 of the Export Administrative\nRegulation prior to exporting the WebMD Services.\n\n         (g) Headings.  The headings of the paragraphs of this Agreement are for\n             --------                                                           \nconvenience only and shall not be a part of or affect the meaning or\ninterpretation of this Agreement.\n\n         (h) Exhibits.  This Agreement incorporates the attached Exhibits and\n             --------                                                        \nany subsequent Exhibits or schedules referencing this Agreement.\n\n         (i) Non-Solicitation of Employees.  During the term of this Agreement\n             -----------------------------                                    \nand for a period of one (1) year thereafter, each party agrees that without the\nother party's prior written consent neither it nor its Affiliates shall solicit,\nhire or otherwise retain as an employee or independent contractor any person who\nduring the previous twelve (12) months was an employee of the other party.\nNotwithstanding the foregoing, nothing in this Section 13(i) shall be construed\nto prohibit one party from hiring any employee of the other party who, without\nsolicitation or recruitment by the hiring party, responds to any general\nadvertisement for employment in a newspaper or otherwise.\n\n         (j) Assignment.  This Agreement and any interest hereunder shall inure\n             ----------                                                        \nto the benefit of and be binding upon the parties and their respective\nsuccessors, legal representatives and permitted assigns. Upon prior notice to\nthe other party, either party may assign this Agreement (i) to any legal entity\nin connection with the merger or consolidation of the assigning Party into such\nentity or the sale of all or substantially all of the assets of the assigning\nParty to such entity; or (ii) to any direct or indirect subsidiary of the\nassigning party in connection with any corporate reorganization. Except as\nstated in the previous sentence, neither party may assign or delegate this\nAgreement without the other party's prior written consent, which consent shall\nnot be unreasonably withheld. Any attempt to assign, delegate or otherwise\ntransfer the Agreement in violation of this Section 13(j) is voidable by the\nother party.\n\n         (k) Force Majeure.  Neither party shall be responsible or considered in\n             -------------                                                      \nbreach of this Agreement for any delay or failure in the performance of any\nobligation of this Agreement to the extent that such failure or delay is caused\nby acts of God, fires, explosions, labor disputes, accidents, civil\ndisturbances, material shortages or other similar causes beyond its reasonable\ncontrol, even if such delay or failure is foreseeable; provided, however, that\nthe non-performing party provides notice of such cause preventing or delaying\nperformance and resumes its performance as soon as practicable and provided\nfurther that the other party may \n\n                                       15\n\n \nterminate this Agreement upon notice if such non-performance continues for a\nperiod of ninety (90) days.\n\n         (l) Governing Law; Statute of Limitations.  The validity and\n             -------------------------------------                   \nconstruction of this Agreement shall be governed by, subject to and construed in\naccordance with the laws of the State of Georgia, excluding its conflicts of law\nrules. In the event either party employs attorneys to enforce any right arising\nout of or relating to this Agreement, the prevailing party shall be entitled to\nrecover its reasonable attorneys fees and costs. Any claim arising out of or\nrelating to this Agreement shall be commenced within one (1) year of the date\nupon which the cause of action accrued (or, i\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6713,9303],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42578","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-aol-time-warner-inc","corporate_contracts_companies-webmd-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42578","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=42578"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42578"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42578"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42578"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}