Web Site Agreement - ACTFIT.com Inc. and Doc-Talk LLC
Web Site Agreement November 19, 1999
THIS AGREEMENT made this 23rd. day of November 1999;
BETWEEN:
ACTFIT.com Inc. Telephone: (416) 977-2001
11 Charlotte Street Fax: (416) 977-7353
Toronto, Ontario
Canada
M5H 2145
(hereinafter referred to as "ACTFIT")
OF THE FIRST PART;
- and -
Doc-Talk, L.L.C. Telephone: (301) 855-8070
8050 Southern Maryland Blvd. Fax: (410) 257-6381
Owings,MD
U.S.A.
20736
(hereinafter referred to as "DocTalk")
OF THE SECOND PART.
WHEREAS the parties wish to make mutual use of their web sites during the
term of this Agreement;
AND WHEREAS DocTalk wishes to utilize ACTFIT's web site whereby Internet
customers will gain access to DocTalk's Web Site;
NOW THEREFORE in consideration or these presents, the mutual covenants
herein contained and other good and valuable consideration, the parties agree as
follows:
1. Web cite Linkage
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(1) DocTalk agrees to permit ACTFIT at ACTFIT's sole expense to link the
ACTFIT Web Site to the DocTalk Web Site. Such link will be implemented
through a web page on the ACTFIT web site which consists of a frame
designed by ACTFIT (the "Frame") in which is displayed the content of
the DocTalk Web Site (the "DocTalk Content"), referred to collectively
in this agreement as the "Web Site Linkage";
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(2) ACTFIT will set up a graphical button (the "Button") on ACTFIT's web
page that directs visitors to the ACTFIT Web Site to the Web Site
Linkage. The design and content of the Button shall be mutually agreed
to by the Parties hereto;
(3) The Content shall contain a discount number whereby third party
Internet customers will receive a Customer discount of not less than
Five Percent (5%) on DocTalk services purchased through use of the
discount number. DocTalk agrees that the discount number and DocTalk's
telephone number will be visible to third party Internet customers
while in the home page of the Framed Content;
(4) ACTFIT will also include textual hyperlinks to the Web Site Linkages in
any channel of the ACTFIT Web Site relating to medicine, health,
fitness, wellness or other related topics;
(5) The Frame will include banner advertisements. ACTFIT will be
responsible for obtaining and serving banner advertisements in the
Frame. Such banner advertisements shall not contain any content which
is lewd, pornographic, sexually suggestive or promotes any activity
illegal if performed within the borders of the United States of
America;
2. Maintenance. Updates and Amendments
-----------------------------------
(1) In co-operation with ACTFIT, DocTalk shall be responsible at its
expense for maintaining the Content
(2) ACTFIT in its sole discretion, may change or modify Frame at any time;
3. DocTalk's Web Site
------------------
(1) DocTalk and not ACTFIT is solely responsible for the merchantability of
all goods and services and the accuracy of all .information that it
provides on DocTalk's Web Site and DocTalk and not ACTFIT is solely
responsible for the accuracy, completeness, usefulness, quality or
availability of any goods, services, or information on DocTalk's Web
Site. DocTalk is also responsible for handling any complaints that may
arise in relation to such goods, services, or information. If ACTFIT
receives any complaints, it shall forward them to DocTalk for
processing and reply;
(2) ACTFIT reserves the right to put a disclaimer on ACTFIT's Web Site to
the effect that ACTFIT does not warrant or endorse the accuracy or
merchantability of information, goods or services on the DocTalk Web
Site;
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(3) DocTalk agrees that its use of ACTFIT's Web Site is solely at its own
risk, and acknowledges that ACTFIT operates and provides the ACTFIT Web
Site on a "as is", "as available" basis without warranties of any
kind, either express or implied, unless such warranties are legally
incapable of exclusion in which case ACTFIT's liability shall be
limited to the sum of $1,00.00;
(4) It is DocTalk's responsibility that all photographs, video, sound
bites. graphics and printed information on the DocTalk Web Site do not
violate any copyright, trademark, patent, privacy laws, or other laws;
(5) DocTalk and not ACTFIT is responsible for all claims, including
negligence, actions, causes of action, damages, costs, that may
directly or indirectly arise in relation to any information, goods or
services on DocTalk's Web Site;
4. ACTFIT's WebSite
----------------
(1) Excluding the goods and services of DocTalk offered through the Web
Site Linkage, (i) ACTFIT and not DocTalk is solely responsible for the
merchantability of all goods and services and the accuracy of all
information that it provides on ACTFIT's Web Site and (ii) ACTFIT and
not DocTalk is solely responsible for the accuracy, completeness,
usefulness, quality or . availability of any goods, services, or
information on ACTFIT's Web Site. ACTFIT is also responsible for
handling any complaints that may arise in relation. to such goods,
services, or information. If DocTalk receives any complaints, it shall
forward them to ACTFIT for processing and reply;
(2) ACTFIT agrees that its use of DocTalk's Web Site is solely at its own
risk, and acknowledges that DocTalk operates and provides the DocTalk
Web Site and Content on an "as is", "as available" basis without
warranties of any kind, either express or implied, unless such
warranties are legally incapable of exclusion in which case DocTalk's
liability shall be limited to the sum of $1,000.00;
(3) It is ACTFIT's responsibility that all photographs, video, sound bites,
graphics and printed information on its WO Site do not violate any
copyright, trademark. patent privacy laws, or other laws;
(4) ACTFIT and not DocTalk is responsible for all claims, including
negligence, actions, causes of action, damages, costs, that may
directly or indirectly arise in relation to any information, goods or
services on ACTFIT's Web Site;
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5. Non-Solicitation
----------------
(1) DocTalk agrees not to solicit, contact, e-mail or send flyers,
catalogues or any other form of material, mail or communication to any
of the Internet Customers of ACTFIT directly or indirectly or in any
manner whatsoever save and except contact necessitated by customer
complaints, enquiries regarding information supplied, warranties,
product or service use or application. This clause shall survive the
termination of this Agreement for a period of 1 year. "Internet
Customers of ACTFIT" means those Internet customers who access
DocTalk's Web Site via ACTFIT's Web Site, excluding those Internet
customers who purchase or have purchased the DocTalk service;
6. Confidentiality
---------------
(1) DocTalk agrees to treat all information, pricing, commissions,
accounting methods, ACTFIT's Web Page; Web Site Linkage and Web Site
set up and ACTFIT's Internet Customer particulars as confidential and
agrees that ACTFIT's Internet Customer particulars are proprietary to
ACTFIT and DocTalk agrees not to divulge any of the foregoing to any
third party except as required by law;
7. Liability
---------
(1) Under no circumstances, including negligence, shall ACTFIT, its
offices, agents or anyone else involved in creating, producing or
distributing the Web Site Linkage be liable to DocTalk for any direct,
indirect, incidental, special or consequential damages that result from
the use of or inability to use the Web Site Linkage or any information,
products or services provided therein, or that results from mistakes,
omissions, interruptions, disruptions, malfunctions, deletion of files,
errors. defects, delays in operation, or transmission or any failure of
performance, whether or not limited to acts of God, communication
failure, theft, destruction or unauthorized access to ACTFIT's records,
programs or services.
(2) Under no circumstances, including negligence, shall DocTalk, its
offices, agents or anyone else involved in creating, producing or
distributing the DocTalk Web Site be liable to ACTFIT for any direct,
indirect, incidental, special or consequential damages that result from
the use of or inability to use the DocTalk Web Site or any information,
products or services provided therein, or that results from mistakes,
omissions, interruptions, disruptions, malfunctions, deletion of files,
errors. defects, delays in operation, or transmission or any failure of
performance, whether or not limited to acts of God, communication
failure, theft, destruction or unauthorized access to DocTalk's
records, programs or services.
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8. Lawful Purpose
--------------
(1) DocTalk may only use ACTFIT's Web Site Linkage and Home Web Page for
lawful purposes. Use of any information in violation of any law is
prohibited. This includes, but is not limited to copyrighted material,
trademarks, patents, material legally judged to be threatening or
obscene, or material protected by trade secrets.
9. Indemnification
---------------
(1) Both Parties herein agrees that it shall defend, indemnify, save and
hold the other Party; its agents, officers, directors, shareholders and
employees or assigns, harmless from any and all demands, liabilities,
losses, costs and claims, including solicitor's fees and disbursements
(upon a solicitor and own client basis) asserted against such Party,
its agents, its customers, servants, officers and employees, that may
arise or result from any service provided or performed or agreed to be
performed, information. provided or any product sold by a Party, its
agents, employees or assigns. Without limiting the generality of the
foregoing, each Party agrees to defend, indemnify and hold harmless the
other Party against liabilities arising out of any of the following:
(1) any injury to person or property caused by any information
provided, products or services, sold or otherwise distributed in
connection with this Agreement;
(2) any material or information supplied by a Party to the other
infringing on the proprietary rights of a third party;
(3) copyright and patent infringement; and
(4) any defective product or service or misinformation which a Party
provided to the other in connection with this Agreement;
(5) breach of any law.
10. Assignment
----------
This Agreement may not be assigned without the consent in writing of the
parties hereto.
11. Term and Termination
--------------------
(1) The term of this Agreement is 1 year and shall automatically be renewed
from year to year unless terminated as herein provided;
(2) Upon termination, as aforesaid, ACTFIT shall remove DocTalk from the
Web Site Linkage.
(3) Either Party may terminate this Agreement for any reason upon not less
than ten (10) calendar days written notice to the other Party.
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12. General Provision
-----------------
(1) The Agreement may not be modified unless agreed to in writing by both
parties. No waiver of any of the provisions of this Agreement shall be
deemed to constitute a waiver of any other provisions (whether or not
similar) nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided for in writing duly executed by the
parties;
(2) Headings are inserted for convenience purposes only and do not
constitute a part of this Agreement;
(3) Each Party shall be responsible for fully indemnifying the other Party
from and against all costs and expenses, including legal fees and
disbursements (upon a solicitor and own client basis), incurred by the
other Party in connection with any legal or other proceedings brought
by the other Party in enforcing the terms of this Agreement;
(4) This Agreement shall be governed by the laws of the Province of Ontario
and federal Canadian laws where applicable;
(5) Both parties agree that this Agreement may be validly executed by means
of transmission of signed facsimile;
(6) This Agreement constitutes the entire agreement between the parties and
supersedes all prior written or oral agreement, representations and
other communications between the parties relating to the subject matter
of this Agreement;
(7) The parties agree that, if any portion of this Agreement is held
invalid or unenforceable, that portion will be construed consistent
with applicable law as nearly as possible to reflect the original
intentions of the patties, and the remaining portions will remain in
full force and effect;
(8) Time shall be of the essence.
13. Currency
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(1) All references in this Agreement to monetary amounts, unless indicated
to the contrary, are in United States dollars.
14. Notices
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(1) Any notice, demand, or other communication required or permitted to be
given to any party hereunder shall be given in writing and addressed as
noted above;
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(2) Any such notice shall be deemed to be sufficiently given if personally
delivered or sent by facsimile transmission, and in each case shall be
deemed to have been received by the other party on the same day on
which it was delivered or sent by facsimile transmission.
(3) Any such notice that is mailed by prepaid registered post addressed to
the party at the address above noted or at such other then current
address as is specified by notice shall be deemed to have been received
on the 3rd day following the day of mailing.
15. Successors
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(1) This Agreement is binding on the parties hereto and their successors
and permitted assigns.
16. Survival
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(1) Any terms which by their nature are intended to survive the termination
of this agreement shall continue in full force and effect after
termination, which terms shall include, but not be limited to, any
terms dealing with confidentiality, limitation of liability,
indemnification or proprietary rights;
17. English Language
----------------
(1) It is the express wish of the parties that this Agreement and any
related documents be draw up and executed in English. Les parties
conviennent que la presente convention et tous les documents s'y
rattachant soient rediges et signes en anglais.
18. Revenue Share
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(1) DocTalk agrees to pay ACTFIT a referral fee in the amount of fifteen
percent (15%) of the Adjusted Gross Revenue, which revenue shall be
paid to ACTFIT monthly;
(2) "Adjusted Gross Revenue" means revenue after the calculation of the
said Customer discount referred to in clause 1(2) collected by DocTalk
from customers who purchase the DocTalk service in conjunction with the
use of the discount number less applicable sales taxes, refunds, credit
card charge backs and bad debt;
(3) DocTalk shall include with each monthly payment a signed certificate by
its financial officer confirming the accurate calculation of the
payment to ACTFIT;
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19. Termination
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(1) In the event that this Agreement is terminated, the said referral fee
payments shall be payable up to and including the date of termination.
(2) ACTFIT will pay DocTalk fifty percent (50%) of the revenues collected
by ACTFIT from the sale of banner advertisements displayed in the
Frame.
20. Default
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(1) DocTalk shall be in default of this Agreement if DocTalk breaches any
covenant herein including the covenant to pay the referral fees on a
timely basis and if there is any material discrepancy in the
determination of the said gross revenue payments.
21. Records
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(1) DocTalk agrees to keep full. accurate and complete records and books of
account relating to its operation under this Agreement for the accurate
determination of gross revenues be made under this Agreement. Upon not
less than ten (10) days calendar notice by ACTFIT all of the records
and books of account of DocTalk necessary for the determination of the
gross revenue payments to be made shall be open during business hours
during the term of this Agreement for inspection and audit by an
independent third party authorized by ACTFIT to ascertain the accuracy
of the gross revenue payments made by DocTalk. ACTFIT's authorized
agents shall be entitled to make notes and copies of any information
contained in the records and accounts applicable to the gross revenue
payment obligation, provided that such information is not disclosed to
any party other than ACTFIT.
In witness whereof the parties have signed this Agreement effective the date
above written.
Authorized Signature of DocTalk Authorized Signature of ACTFIT
/s/ Dale L. Hutchins /s/ Rodger Campbell
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Dale L. Hutchins Rodger Campbell
Vice President and C.O.O.