Content License Agreement - The News Corp. Ltd. and Healtheon/WebMD Corp.
CONTENT LICENSE AGREEMENT
Dated as of
January 26, 2000
Between
THE NEWS CORPORATION LIMITED
and
HEALTHEON/WEBMD CORPORATION
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TABLE OF CONTENTS
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ARTICLE 1.........................................................................................................1
DEFINITIONS....................................................................................................1
ARTICLE 2.........................................................................................................2
CREATION OF LICENSE RELATIONSHIP...............................................................................2
2.1 GRANT OF LICENSE......................................................................................2
2.2 SCOPE OF LICENSE; RESTRICTIONS ON USE OF WEBMD CONTENT................................................2
2.3 GRANT OF RIGHT IN WEBMD LOGO................................................................................3
2.4 NO OTHER RIGHTS GRANTED...............................................................................5
2.5 ROYALTY...............................................................................................5
ARTICLE 3.........................................................................................................5
WEBMD CONTENT..................................................................................................5
3.1 Selection, Format, Design and Updating................................................................5
3.2 REMOVAL OF WEBMD CONTENT..............................................................................5
3.4 OWNERSHIP OF WEBMD CONTENT............................................................................6
3.5 OTHER AGREEMENTS......................................................................................6
3.5 OTHER AGREEMENTS......................................................................................6
ARTICLE 4.........................................................................................................6
REPRESENTATIONS AND WARRANTIES.................................................................................6
4.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY..............................................7
ARTICLE 5.........................................................................................................6
TERM; TERMINATION..............................................................................................7
5.1 TERM....................................................................................................7
5.2 RIGHT TO TERMINATE BY WEBMD...........................................................................8
5.3 RIGHT TO TERMINATE BY THE COMPANY.....................................................................8
5.4 EFFECT OF TERMINATION.................................................................................8
5.5 CONTINUING OBLIGATIONS................................................................................9
ARTICLE 6........................................................................................................ 9
INDEMNIFICATION............................................................................................... 9
6.1 AGREEMENT OF WEBMD TO INDEMNIFY...................................................................... 9
6.2 AGREEMENT OF THE COMPANY TO INDEMNIFY\F C\L................................................................10
6.3 THIRD PARTY CLAIMS...................................................................................10
6.4 SPECIAL DAMAGES AND LIMITATION OF LIABILITY..........................................................11
ARTICLE 7........................................................................................................11
ADDITIONAL AGREEMENTS.........................................................................................11
7.1 CONFIDENTIALITY AND USE OF PROPRIETARY INFORMATION...................................................11
7.2 DEFINITION OF PROPRIETARY INFORMATION................................................................11
7.3 CONTENTS OF THIS AGREEMENT...........................................................................12
7.4 COMMUNICATIONS.......................................................................................12
7.5 PRESS RELEASES.......................................................................................13
7.6 GOVERNING LAW; CONSENT TO JURISDICTION...............................................................13
7.7 BINDING EFFECT; SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT.............................................13
7.8 AMENDMENTS AND WAIVERS...............................................................................14
7.9 HEADINGS.............................................................................................14
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7.10 NO IMPLIED WAIVERS...................................................................................14
7.11 COUNTERPARTS.........................................................................................14
7.12 FURTHER ASSURANCES...................................................................................14
7.13 SEVERABILITY.........................................................................................14
7.14 SEVERABILITY.........................................................................................14
7.14 INJUNCTIVE RELIEF....................................................................................15
7.15 NO PARTNERSHIP, ETC..................................................................................15
7.16 CONSTRUCTION.........................................................................................15
7.17 DISCLAIMER OF WARRANTIES.............................................................................15
7.18 PLURALS..............................................................................................15
7.19 EFFECTIVENESS........................................................................................15
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CONTENT LICENSE AGREEMENT
THIS CONTENT LICENSE AGREEMENT (THE "AGREEMENT"), dated as of
26, 2000 (the "Effective Date"), by and between HEALTHEON/WEBMD CORPORATION, a
Delaware corporation ("WebMD"), and THE NEWS CORPORATION LIMITED a South
Australia, Australia corporation (the "Company").
W I T N E S S E T H:
WHEREAS, WebMD owns and operates a Web Site on the World Wide
Web currently accessible through the URL www.webmd.com which displays health and
medical content intended for consumers and healthcare professionals and
provides, promotes and sells healthcare related information, services and
products to consumers and healthcare professionals (the "WebMD Site"); and
WHEREAS, WebMD owns or licenses the WebMD Content which WebMD
uses in connection with the development and operation of the WebMD Site; and
WHEREAS, pursuant to a Master Strategic Alliance Agreement
dated December 6, 1999, by and between WebMD and the Company (the "Strategic
Alliance Agreement") WebMD desires to license to the Company the right to use
the WebMD Content for the purpose of using, displaying and publishing the WebMD
Content in any television, print, electronic or other medium now know or
hereinafter developed, owned or operated by the Company and/or its Operating
Companies (other than a Web Site) (individually a "News Channel" and
collectively the "News Channels").
NOW, THEREFORE, in consideration of the foregoing premises and
the agreements and covenants herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
ARTICLE 1
DEFINITIONS
All capitalized terms used in this Agreement without definition shall
have the meanings ascribed to such terms in Exhibit A.
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ARTICLE 2
CREATION OF LICENSE RELATIONSHIP
2.1 GRANT OF LICENSE. Except as may be prohibited or otherwise
limited by the terms of any other obligations binding on the WebMD Group, other
than obligations that were incurred with the primary intent to frustrate the
purpose of this Agreement, and subject to terms and conditions of this
Agreement, WebMD for itself and on behalf of the other members of the WebMD
Group hereby agrees to provide, to cause Controlled Affiliates to provide, and
to use commercially reasonable efforts to cause Non-Controlled Affiliates to
provide, to the Company a non-exclusive license (the "License") during the term
hereof throughout the Territory to:
(a) use, copy, translate, display, publish and transmit
the WebMD Content solely for the purpose of developing and operating
the News Channels; and
(b) subject at all times to the obligations and duties of
the Company contained herein, sublicense only to Operating Companies
the rights granted hereunder; provided, however, that the Company shall
(i) obtain WebMD's prior written consent to each such sublicense (other
than with respect to Operating Companies directly or indirectly wholly
owned by the Company); (ii) obtain from such Operating Companies a
written instrument approved as to form and substance by WebMD, pursuant
to which each such Operating Company shall agree to be bound and comply
with the terms of this Agreement and (iii) at all times remain fully
liable for the actions of its Operating Companies. Operating Companies
with respect to which the foregoing conditions have been satisfied
shall hereinafter be referred to as "Sublicensees." The Sublicensees
shall be prohibited from granting any further sublicenses of the rights
granted hereunder to any other Person without the express prior written
approval of WebMD. WebMD agrees that any consent or approval required
by it under this Section 2.1(b) will not be unreasonably denied or
delayed and that WebMD will cooperate with the Company in completing
any approval process required hereunder in a reasonably expeditious
manner given the facts and circumstances pertaining to such approval.
As used herein, "Controlled Affiliates" means any corporation or other
entity more than 50% of whose outstanding voting securities or other equity
interest are directly or indirectly owned by WebMD; "Non-Controlled Affiliates"
means any corporation or other entity in which WebMD directly or indirectly has
a greater than 20% but no more than 50% equity interest.
2.2 SCOPE OF LICENSE; RESTRICTIONS ON USE OF WEBMD CONTENT.
(a) The License granted hereunder is non-exclusive and
the Company agrees to use the WebMD Content in accordance with the
terms hereof and solely for the purpose of engaging in the Licensed
Activities. The Company acknowledges that the grant of rights hereunder
excludes the right to use the WebMD Content in connection with (i) the
development or operation of any Web Site similar to the WebMD Site or
the development or operation of any Web Site which is otherwise
targeted or marketed primarily to health professionals anywhere in the
world; or (ii) the development or
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operation of any Web Site which is intended to display directly or
indirectly (through links or otherwise) health or medical content as a
distinct feature, section or subject matter anywhere in the world or
(iii) use the WebMD Content in connection with any Web Site described
(i) or (ii) above. The parties hereto agree that the covenants and
agreements set forth in this Section 2.2(a) are in addition to the
restrictive covenants set forth in Section 10.1 of the Strategic
Alliance Agreement. Additionally, the Company acknowledges that any
sublicense of the rights granted hereunder shall be strictly limited in
accordance with the terms hereof.
(b) The Company acknowledges and agrees that the scope of
the License granted hereunder is limited by and is subject to any and
all of WebMD's preexisting obligations, other than obligations that
were incurred with the primary intent to frustrate the purpose of this
Agreement. Accordingly, the Company agrees to conduct the activities
hereunder in accordance with all such limitations or restrictions which
may exist of which the Company has received written notice.
(c) Notwithstanding anything to the contrary contained in
this Agreement, WebMD shall have no obligation whatsoever to license to
the Company, or to authorize the Company to sublicense any of the
rights granted hereunder with respect to any particular country unless
and until WebMD shall determine, in the exercise of its reasonable
discretion, that (i) such country's laws afford adequate protection of
WebMD's interests in or ownership of the WebMD Content, WebMD Property
and WebMD Logos (collectively the "WebMD Intellectual Property"), and
(ii) the use of the WebMD Intellectual Property (or any part thereof)
in such country will not violate any Requirement of Law or expose WebMD
or any of its Affiliates to any unreasonable risk or liability which
might arise as a result of the use or display of any of the WebMD
Intellectual Property in such country. In its exercise of its
reasonable discretion under this Section 2.2(c), WebMD shall have the
right to request from the Company or a Sublicensee an opinion of
counsel or such other information to WebMD's reasonable satisfaction
opining about or providing such other information on a Requirement of
Law or such other matters relating to the protection of WebMD's
interests as WebMD may request, such opinion or information to be
obtained at the Company's or such Sublicensee's expense. WebMD agrees
to exercise its rights in the preceding sentence in a reasonable manner
so as to avoid unnecessary delays or interruptions in the business of
the Company and the Sublicensees.
2.3 GRANT OF RIGHT IN WEBMD LOGO
(a) WebMD Logo. WebMD hereby grants the Company a limited
non-exclusive license to use the WebMD logo in the form appearing in
Exhibit B attached hereto and any other WebMD marks, logotypes, or
brand identifiers as WebMD may provide to the Company from time to time
(collectively, the "WebMD Logo") during the Term of this Agreement.
Such license is granted solely in connection with the Company's rights
and obligations under this Agreement. All such uses will be in
compliance with WebMD's written trademark guidelines as provided by
WebMD to the Company from time to time. The Company will also be
allowed to use and reproduce the WebMD Logo for the promotion of the
WebMD Content, although to the extent such
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promotions involve media placements outside of the News Channels, then
the Company will only be allowed to make such uses and reproductions as
WebMD may approve in writing in advance of such promotion or
promotions.
(b) Limitations. The Company agrees that it will not in
any way suggest or imply by the use of the WebMD Logo that the News
Channels or any of their respective products or services are affiliated
with, endorsed or sponsored by or created in association with WebMD
except as agreed by WebMD. The Company acknowledges that WebMD owns all
right, title and interest and to the WebMD Logo and retains all rights
with respect thereto. The Company agrees not to do anything
inconsistent with such ownership and all uses of the WebMD Logo will
inure to the benefit of and on behalf of WebMD. The Company further
agrees that it will not attack or assist others in attacking the title
of the WebMD Logo.
(c) No Violation. The Company acknowledges and agrees
that:
(i) it will not register any WebMD Logo;
(ii) it will not knowingly permit any third party
to use any WebMD Logo unless authorized to do so in writing by
WebMD in this Agreement or otherwise;
(iii) it will not knowingly use or permit the use
of any mark, name, or image likely to cause confusion with any
WebMD Logo other than the WebMD Logo itself unless authorized
to do so in writing by WebMD; and
(iv) all goodwill associated with the Company's
use of the WebMD Logos will inure to WebMD.
(d) Prior Approval. The manner and form of use of the
WebMD Logos will be subject to WebMD's prior written approval, which
approval will not be unreasonably withheld or delayed following its
receipt of a sample, mock-up or other suitable example which provides
a fair representation of the proposed use of the WebMD Logo concerned
and indicates the context in which the WebMD Logo is to be used. Once
a use of a WebMD Logo is approved for use under certain
circumstances, then it is agreed that the Company may subsequently
make substantially similar uses of the WebMD Logo under similar
circumstances, but only until WebMD revokes or limits its approval
which it may do at its sole discretion. The Company will conform to
any alteration or revocation of the approval as soon as is
commercially reasonable.
The license granted pursuant to this Section 2.3 may be terminated
by WebMD upon a material breach by the Company, or any Affiliate of the
Company or any Sublicensee, of any material agreement, covenant or obligation
under this Section 2.3, which breach, if curable, remains uncured for a period
of sixty (60) days following the Company's receipt of written notice from
WebMD of the existence of such breach.
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2.4 NO OTHER RIGHTS GRANTED. Apart from the rights licensed under
Sections 2.1 and 2.3 above, this Agreement does not grant to the Company any
right to engage in any activity other than the Licensed Activities, nor any
ownership right, title, or interest, nor any security interest or other
interest, in any of the WebMD Intellectual Property or any proprietary rights
relating to or created from such WebMD Intellectual Property or any developments
or enhancements with respect thereto.
2.5 ROYALTY. In consideration of WebMD's commitments set forth
herein, the Company will, in addition to its other commitments hereunder, pay to
WebMD during the Initial Term an annual royalty of twelve million U.S. dollars
($12,000,000), which amount shall be payable annually in advance in four equal
quarterly installments, which shall be paid at the commencement of each
quarterly period beginning on the date hereof and on each April 1, July 1,
October 1 and January 1 thereafter.
ARTICLE 3
WEBMD CONTENT
3.1 SELECTION, FORMAT, DESIGN AND UPDATING.
(a) WebMD may from time to time, modify and update the
WebMD Content as such modifications and/or updates are deemed necessary
or desirable by WebMD and the Company shall (to the extent that
particular WebMD Content is used by the Company) use such WebMD content
as modified or updated.
(b) With respect to any content WebMD obtains for use on
the WebMD Site, WebMD shall use reasonable commercial efforts to secure
the approval of third parties for the use by the Company of such
content. WebMD shall not be required to incur any additional cost in
securing such approval; provided, however, that in the event approval
to use such content may only be obtained by payment of any fee by
WebMD, WebMD, WebMD shall incur such cost only at the Company's request
and the Company shall have the obligation to reimburse WebMD for such
cost.
(c) With respect to the WebMD Content licensed hereunder,
the Company shall have the right to determine, in its reasonable
discretion, the WebMD Content it selects to display and/or publish on
the News Channels at any time, and from time to time subject to the
other provisions hereof; provided, however, that the Company shall
clearly attribute all WebMD Content used on a News Channel to WebMD.
Except as may be authorized in advance in writing by WebMD, or for the
purpose of localizing the WebMD Content, the Company shall have no
right to substantively modify in any manner whatsoever, any of the
WebMD Content licensed hereunder. WebMD Content which is owned or
controlled by a third party shall incorporate such credit designated by
such third party or WebMD and the Company and Sublicensees shall
preserve all such attributional rights.
3.2 REMOVAL OF WEBMD CONTENT. WebMD may, for good reason, from
time to time require the removal of any WebMD Content from any News Channel. If
WebMD requests removal of certain WebMD Content from a News Channel, the Company
shall complete such
<PAGE> 9
removal on the earlier of (i) the first commercially practicable date on which
the Company could terminate distribution of such programming or (ii) five
business days following receipt of WebMD's request for such removal.
3.3 OWNERSHIP OF WEBMD CONTENT; WEBMD PROPERTY. WebMD shall at all
times remain the owner of all right, title and interest in and to the WebMD
Content or any parts or derivatives thereof or any variations thereon. WebMD
shall own all right, title and interest in all aspects of the Look and Feel,
images and all other content, regardless of whether it is capable of trademark,
patent or other intellectual property law protection, furnished by or on behalf
of WebMD to the Company or the Sublicensees and displayed on the News Channels
or any parts or derivatives thereof or any variations thereon (collectively, the
"WebMD Property").
3.4 USER INFORMATION. All data regarding any user of the WebMD
Site, their personal information, or information regarding their use of or
interaction with the WebMD Site shall at all times be and remain the sole and
exclusive property of WebMD ("WebMD User Information").
3.5 OTHER AGREEMENTS. The Company:
(a) agrees to comply with all Requirements of Law in
connection with the use of the WebMD Content;
(b) agrees that all rights in and to any of the WebMD
Content not expressly licensed hereunder are reserved to WebMD;
(c) agrees not to sublicense, assign, transfer, pledge,
offer as security, or otherwise encumber the WebMD Content or any of
the rights granted hereunder in any way other than as expressly
provided in the Agreement;
(d) agrees not to use any of the WebMD Content in any
manner or for any purpose whatsoever in violation of the terms of this
Agreement;
(e) acknowledges and agrees that it shall not at any time
during the Term or thereafter (i) challenge the title or any other
rights of WebMD or its licensors in or to the WebMD Content or any of
the other WebMD Intellectual Property or any parts or derivatives
thereof or any variations thereon, (ii) contest the validity of the
copyrights or other proprietary interests in and to the WebMD Content
or any other WebMD Intellectual Property held by WebMD or any third
party or (iii) claim any right, title or interest in or to the WebMD
Content or any other WebMD Intellectual Property or any parts or
derivatives thereof or any variation thereon; and
(f) agrees to use its best efforts to cause the
Sublicensees to comply with the terms of this Section 3.5 to the extent
this Section creates obligations for the Company.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND WEBMD.
(a) Authority of the Company. The Company agrees and
represents that the Company has the authority to execute, deliver and
perform its obligations under this Agreement, having obtained all
required consents, and is duly organized or formed and validly existing
in good standing under the laws of the state of its incorporation or
formation.
(b) Conflicts. The Company acknowledges that WebMD has
licensed the WebMD Content to other parties to promote and enhance the
goodwill of the WebMD Content. The Company agrees that in the event
WebMD determines that the Company's activities taken pursuant to this
Agreement come into conflict with the interests or rights of other
licensees, the Company shall in good faith cooperate with WebMD in
order to resolve the conflict and, in the event the conflict cannot be
resolved, shall take the action requested by WebMD as long as it is
commercially practical to do so; provided, however, that WebMD
represents and warrants that there are no such licenses which might
reasonably be expected to have a material adverse effect on the
Company.
(c) Authority of WebMD. WebMD represents and warrants
that WebMD has (i) the authority to execute, deliver and perform its
obligations under this Agreement, having obtained all required Board of
Directors or other consents, (ii) is duly organized or formed and
validly existing in good standing under the laws of the state of its
incorporation or formation and (iii) owns all right, title and interest
in and to the WebMD Content authored by WebMD and has all rights
necessary to license the third party content provided to the Company
hereunder. The parties agree that the Company's or any Sublicensee's
remedy with respect to a breach of WebMD's representation set forth in
Section 4.1(c) above shall be as set forth in Section 6.1(b) herein.
(d) EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN,
WEBMD DOES NOT MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY WEBMD
CONTENT LICENSED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM ANY NEWS
CHANNEL USING THE WEBMD CONTENT. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH ABOVE, THE WEBMD CONTENT IS USED ON AN "AS-IS" BASIS WITHOUT
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT.
ARTICLE 5
TERM; TERMINATION
5.1 TERM.
This Agreement will be effective as of the date hereof and
will continue for a period of five (5) years, unless earlier terminated in
accordance with this agreement (the "Initial Term"). The term of this Agreement
may be extended for a period of five (5) years from and after the Initial Term
(the "Renewal Term"), at the Company's option; provided, however, that
<PAGE> 11
the Company agrees to extend the term of that certain Content License Agreement
of even date herewith by and between the Company and WebMD pursuant to which the
Company has agreed to license certain content to WebMD. The parties agree that
no royalty payment will be due or owing by the Company to WebMD during the
Renewal Term. Together, the Initial Term and the Renewal Term are collectively
referred to as the "Term."
5.2 RIGHT TO TERMINATE BY WEBMD. This Agreement may be terminated
upon the written consent of the parties or by WebMD upon any of the following
events:
(a) Upon the dissolution of WebMD International as
provided in Article 8 of the Operating Agreement.
(b) Upon termination or expiration of the Operating
Agreement.
(c) Upon a material breach by the Company or any
Affiliate of the Company or any Sublicensee of any material agreement,
covenant or obligation hereunder, which breach, if curable, remains
uncured for a period of sixty (60) days following the Company's receipt
of written notice from WebMD of the existence of such breach.
(d) Upon the exercise by the News Member (as defined in
the Operating Agreement) of its put rights as set for in the Operating
Agreement.
5.3 RIGHT TO TERMINATE BY THE COMPANY
This Agreement may be terminated upon the written consent of
the parties or by the Company upon any of the following events:
(a) Upon the dissolution of WebMD International as
provided in Article 8 of the Operating Agreement;
(b) Upon termination or expiration of the Operating
Agreement;
(c) Upon a material breach by WebMD or any Affiliate of
WebMD or any Sublicensee of any material agreement, covenant or
obligation hereunder, which breach, if curable, remains uncured for a
period of sixty (60) days following the WebMD's receipt of written
notice from the Company of the existence of such breach; and
(d) Upon the exercise by the News Member (as defined in
the Operating Agreement) of its put rights as set for in the Operating
Agreement.
5.4 EFFECT OF TERMINATION. Upon the expiration or termination of
the Term:
(a) the License will automatically terminate;
(b) the Company shall and shall cause all Sublicensees to
immediately cease to use, display, reproduce, sublicense, transmit
and/or distribute in any manner and for any purpose, directly or
indirectly, the WebMD Content, any other WebMD Intellectual Property or
any other material supplied by or on behalf of WebMD to the Company or
Sublicensees;
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(c) the Company shall and shall cause all Sublicensees to
immediately return to WebMD the WebMD Content and any other WebMD
Intellectual Property in its or their possession and/or destroy any and
all embodiments of any portion of any of the foregoing together with
any copies made from the same which are then under the possession or
control of the Company or sublicensees;
(d) in the event of termination by the Company pursuant
to 5.3(c) (material breach by WebMD), WebMD shall promptly pay the
Company a pro rata portion of the royalty for that quarter paid by the
Company for the portion of the quarter remaining after termination;
(e) in the event of termination by WebMD pursuant to
Section 5.2 hereof or termination by the Company pursuant to Sections
5.3(a), (b) or (d) hereof, the Company shall pay within fifteen (15)
days from the date of termination in immediately available funds, the
[present value of the] aggregate unpaid royalties which would otherwise
become due and payable to WebMD through the end of the Initial Term as
set forth in Section 2.5 hereof; and
(f) except as otherwise provided in Sections 5.4(d) and
(e) above, the Company shall promptly pay to WebMD any royalty or other
amounts which are due and owing to WebMD pursuant to the terms hereof,
and except as provided in Section 5.5 below, no further payments shall
be due by the Company.
5.5 CONTINUING OBLIGATIONS. Except as expressly provided in this
Agreement, the termination of this Agreement or expiration of the Term for any
reason shall not release any party from the obligations set forth in Articles 3,
4, 6 and 7, Section 2.5 and 5.4(d), and this Section 5.5, and each party hereto
shall be, and shall continue to be and remain liable to the other parties for
any and all damages which such party has or may sustain by reason of such first
party's default or breach of such provisions of this Agreement.
ARTICLE 6
INDEMNIFICATION
6.1 AGREEMENT OF WEBMD TO INDEMNIFY. (a) Except as set forth in
Section 6.1(b) below and subject to the limitation of liability set
forth in Section 6.4 hereof, WebMD hereby agrees to indemnify, defend
and hold harmless the Company and its directors, officers, employees
and agents and their respective successors and assigns (collectively
the "Company Indemnitees") from and against any loss, costs, expenses
(including reasonable attorneys' fees and expenses), claims, demands,
liabilities, causes of action or damages incurred by any Company
Indemnitee in connection with or relating to any material breach of a
representation, warranty, covenant or agreement of WebMD contained in
this Agreement.
(b) The parties hereto agree that with respect to any
claim that the Company or any Sublicensee infringes any copyright or
trademark or other intellectual property
<PAGE> 13
right as a result of the Company's (or a Sublicensee's) use or display
of the WebMD Content, WebMD will only be responsible for the payment of
any judgment, fine and/or penalty finally awarded against the Company
or such Sublicensee as a result of such claim and any settlements
agreed to with respect to such claim.
6.2 AGREEMENT OF THE COMPANY TO INDEMNIFY. Subject to the
limitation of liability set forth in Section 6.4 hereof, the Company
hereby agrees to indemnify, defend and hold harmless WebMD and its
officers, directors, shareholders, employees, agents and Affiliates and
their respective successors and assigns (collectively the "WebMD
Indemnitees") from and against any loss, costs, expenses (including
reasonable attorneys' fees and expenses), claims, demands, liabilities,
causes of action or damages incurred by any WebMD Indemnitee in
connection with or relating to any material breach of a representation,
warranty, covenant or agreement contained in this Agreement by the
Company, its Affiliates, the Sublicensees or any of their respective
officers, directors, employees or agents.
6.3 THIRD PARTY CLAIMS. A Person entitled to
indemnification for a Claim hereunder (the "Indemnified Party") shall give the
indemnifying party with respect to such Claim (the "Indemnifying Party")
reasonably prompt notice of such Claim brought by a third party. Such notice
shall describe the Claim in reasonable detail. The failure of the Indemnified
Party to give such notice to the Indemnifying Party shall not impair any of the
Indemnified Party's rights or benefits under this Article 6 except to the extent
such failure adversely affects the Indemnifying Party's ability to defend such
Claim. The Indemnifying Party, within a reasonable time after receiving
knowledge of a Claim by a third party against the Indemnified Party, shall (a)
notify the Indemnified Party in writing of the preference of the Indemnifying
Party to assume the defense thereof, and (b) retain legal counsel reasonably
acceptable to the Indemnifying Party to conduct the defense of such Claim. The
Indemnified Party shall cooperate with the Indemnifying Party in any manner
reasonably requested in connection with the defense, compromise or settlement of
any Claim. In any such Claim which the Indemnifying Party chooses to defend, the
Indemnified Party shall have the right to engage separate counsel and to
participate in the prosecution, defense, compromise, or settlement thereof or to
conduct its own defense of such claim. The fees and expenses of such counsel
engaged by the Indemnified Party (if the Indemnifying Party is conducting its
defense) shall be at the expense of the Indemnified Party unless the named
parties to any such Claim (including any impleaded parties) include the
Indemnified Party and the Indemnifying Party, and the Indemnified Party shall
have been advised by its counsel that there is a conflict of interest between
the Indemnified Party and the Indemnifying Party in the conduct of the defense
thereof. In such case, the reasonable fees and expenses of such separate counsel
to the Indemnified Party shall be borne by the Indemnifying Party. The
Indemnifying Party shall not, without written consent of the Indemnified Party,
compromise, settle or consent to entry of any order or judgment with respect to
any Claim (i) which involves any relief other than the payment of money damages
against the Indemnified Party or (ii) which does not include as an unconditional
term thereof, the giving by the defendant or Person conducting such
investigation or initiating such hearing, to the Indemnified Party, of a release
from all liability with respect to such Claim and all other Claims or causes of
action (known or unknown) arising or which might arise out of the same facts.
<PAGE> 14
6.4 SPECIAL DAMAGES; LIMITATION OF LIABILITY. EXCEPT FOR (i) A
BREACH OF SECTION 7.1, (ii) USE OF THE WEBMD INTELLECTUAL PROPERTY (OR ANY OTHER
PROPRIETARY INFORMATION) IN VIOLATION OF THIS AGREEMENT, (iii) ANY ELEMENTS OF A
FINAL AWARD OR SETTLEMENT PURSUANT TO THE PARTIES' OBLIGATIONS UNDER SECTION
6.1(a) AND 6.2(a) HEREOF, AND (iv) FRAUD OR WILLFUL, INTENTIONAL OR GROSSLY
NEGLIGENT CONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED
TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 7
ADDITIONAL AGREEMENTS
7.1 CONFIDENTIALITY AND USE OF PROPRIETARY INFORMATION. Before,
at the time of or following the execution and delivery of this Agreement, the
Company shall not disclose any Proprietary Information to any Person, except (a)
with the prior written consent of WebMD; (b) to the extent necessary to comply
with law or the valid order of a court of competent jurisdiction, in which event
the Company shall so notify WebMD as promptly as practicable (and, if possible,
prior to making such disclosure) and shall seek confidential treatment of such
information; (c) as part of its normal reporting or review procedure to its
auditors and its attorneys; provided, however, that the Company shall be liable
for any breach by such auditors or attorneys of any provision of this Section
7.1; (d) in connection with the enforcement of the Company's rights hereunder;
and (e) disclosures to an Affiliate or Sublicensee of, or professional advisor
to, the Company in connection with the performance by the Company of its
obligations hereunder; provided, however, that the Company shall be liable for
any breach by such Affiliate, Sublicensee or professional advisor of any
provision of this Section 7.1. This Section 7.1 shall survive the termination of
this Agreement.
7.2 DEFINITION OF PROPRIETARY INFORMATION. "Proprietary
Information," as used herein, shall mean the WebMD Intellectual Property, and
any other proprietary ideas, plans and information, including information of a
technological or business nature, trade secrets, trade names, slogans,
copyrights, computer software, source code, object code, technology, know-how,
intellectual property, data, marketing plans, summaries, reports, or mailing
lists, in each case whether in tangible or intangible form. The parties agree
that the term "Proprietary Information" shall also include the contents of this
Agreement. Information will not be deemed to be Proprietary Information, and the
Company shall have no obligation with respect thereto, or to any part thereof,
to the extent such information: (i) is already known to the Company at the time
of receipt or disclosure, free of any obligation to keep it confidential, as
evidenced by written records made prior to such receipt or disclosure, and did
not become known to the Company through disclosure by a third party known to the
Company to be subject to an obligation to maintain the confidentiality thereof;
or (ii) is already publicly available prior to
<PAGE> 15
receipt or disclosure or subsequently becomes publicly available without any
fault of the Company or any of its Agents.
7.3 CONTENTS OF THIS AGREEMENT. The parties acknowledge however
that, notwithstanding Section 7.2 above, this Agreement, or portions hereof, may
be required under applicable law to be disclosed as part of or an exhibit to a
party's required public disclosure documents. If either party is advised by its
legal counsel that such disclosure is required, it will notify the other party
in writing and the parties will jointly seek confidential treatment of this
Agreement to the maximum extent reasonably possible in documents filed with the
applicable governmental or regulatory authorities.
7.4 COMMUNICATIONS. Unless otherwise provided therein, all notices
and other communications or designations required or permitted by this Agreement
shall be in writing, and,
If to the Company to:
The News Corporation Limited
1211 Avenue of the Americas
New York, New York 10036
Attention: Arthur M. Siskind, Esq.
Telecopier: (212) 768-2029
with a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Attention: Joel I. Papernik, Esq.
Telecopier: (212) 697-6686
or at such other address as the Company may designate in a written notice to
WebMD.
If to WebMD, to:
Healtheon/WebMD Corporation
400 The Lenox Building
3399 Peachtree Road NE
Atlanta, GA 30326
Attention: W. Michael Heekin, Esq.
Telecopier: (404) 479-7603
With a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Christopher D. Mangum, Esq.
Telecopier: (404) 881-4777
<PAGE> 16
or to such other address as WebMD may designate in a written notice to the
Company.
All notices and other communications required or permitted by this Agreement
shall be deemed to have been duly given if personally delivered to the intended
recipient at the proper address determined pursuant to this Section 7.4 or sent
to such recipient at such address by air courier, facsimile transmission,
followed by delivery by overnight courier, or by hand and will be deemed given,
unless earlier received: (a) if sent by air courier when recorded on the records
of the air courier as received by the receiving party; (b) if sent by facsimile
followed by delivery of overnight courier transmission upon transmission if on a
Business Day and during business hours in the country of receipt, otherwise, at
9:00 a.m. on the next Business Day in the country of receipt, subject to receipt
of a facsimile machine generated confirmation, and (c) if delivered by hand, on
the date of receipt.
7.5 PRESS RELEASES. Neither party will issue any press release or
make a public announcement relating in any way whatsoever to this Agreement or
the relationship established by this Agreement without the written consent of
the other party (which consent shall not be unreasonably withheld or delayed),
unless required by law or the rules of an applicable stock exchange or
over-the-counter market. If a press release or announcement of this Agreement or
the transactions contemplated hereby is required as aforesaid, the parties will
consult with each other in advance as to the contents and timing hereof.
7.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement will be
governed by, and construed in accordance with, the laws of the State of Delaware
without regard to any conflicts of law rules. Any controversy or claim arising
out of or relating to this Agreement, or breach thereof, shall be settled by
arbitration in accordance with the Arbitration Rules of the American Arbitration
Association. The Arbitration Tribunal shall consist of three arbitrators, of
whom one shall be nominated by WebMD, one by the Company, and the third, who
shall serve as Chairman, shall be chosen by the two party-nominated arbitrators
or, in the event the party-nominated arbitrators are unable to designate the
third arbitrator, by the American Arbitration Association. The situs of the
arbitration shall be Washington, D.C. The language of the arbitration shall be
English. The award of the arbitrator shall be final and binding. Judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The Parties waive any right to appeal the arbitral award,
to the extent a right to appeal may be lawfully waived. Each Party retains the
right to seek judicial assistance: (a) to compel arbitration; (b) to obtain
interim measures of protection pending arbitration; and (c) to enforce any
decision of the arbitrators, including the final arbitral award. The prevailing
Party in the arbitration shall be entitled to receive reimbursement of its
reasonable expenses incurred in connection therewith.
7.7 BINDING EFFECT; SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT.
Except as expressly provided in this Agreement, nothing in this Agreement,
express or implied, is intended or shall be construed to confer upon or give any
Person (including creditors and Affiliates of any party) other than the parties
hereto any remedy or claim under or by reason of this Agreement or
<PAGE> 17
any term, covenant or condition hereof, all of which shall be for the sole and
exclusive benefit of the parties. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors, legal representatives and permitted assigns; provided,
however, that, except as otherwise specifically permitted by this Agreement,
neither this Agreement nor any of the rights, interests or obligations of the
Company or WebMD hereunder shall be assigned or delegated without the prior
written consent of the other party. This Agreement sets forth the entire
agreement and understanding among the parties hereto as to the subject matter
hereof.
7.8 AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented unless approved in writing by each party to this
Agreement. No waiver of any right or remedy or of compliance with any provisions
hereof, and no consent provided for herein, shall be effective unless evidenced
by an instrument in writing executed by the party sought to be charged with such
waiver or consent. The rights and remedies herein expressly provided are
cumulative and not exclusive of any other rights or remedies which any party
hereto would otherwise have at law, in equity, by statute or otherwise.
7.9 HEADINGS. The headings of the Sections contained in this
Agreement are solely for convenience of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
7.10 NO IMPLIED WAIVERS. No action taken pursuant to this
Agreement, including, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representations, warranties, agreements, covenants, obligations or
commitments contained herein or made pursuant hereto. The waiver by any party of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any preceding or succeeding breach and no failure by any party to
exercise any right, privilege or remedy hereunder shall be deemed a waiver of
such party's rights, privileges or remedies hereunder or shall be deemed a
waiver of such party's rights to exercise the same at any subsequent time or
times hereunder.
7.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original of the party or
parties executing the same and all of which together shall be deemed to
constitute one and the same agreement.
7.12 FURTHER ASSURANCES. Each party shall cooperate and take such
actions as may be reasonably requested by another party in order to carry out
the provisions and purposes of this Agreement and the transactions contemplated
hereby.
7.13 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby; provided that, if any provision
hereof or the application thereof shall be so held to be invalid, void or
unenforceable by a final Judgment of a court of competent jurisdiction, then
such court may substitute therefor a suitable and equitable provision in order
to carry out, so far as may be
<PAGE> 18
valid and enforceable, the intent and purpose of the invalid, void or
unenforceable provision and if such court shall fail or decline to do so, the
parties shall negotiate in good faith a suitable and equitable substitute
provision. To the extent that any provision shall be judicially unenforceable in
any one or more states of the United States or in any foreign jurisdiction, such
provision shall not be affected with respect to any other state within the
United States or any other foreign jurisdiction, each provision with respect to
each state of the United States or foreign jurisdiction being construed as
several and independent.
7.14 INJUNCTIVE RELIEF. Each party acknowledges that a breach or
threatened breach by it or any Sublicensee or Affiliate of this Agreement will
result in immediate and irremediable damage to the other party and that money
damages alone would be inadequate to compensate such other party. Therefore, in
the event of a breach or threatened breach of this Agreement by either of the
parties (or any Sublicensee or Affiliate), the other party may, in addition to
other remedies, immediately obtain and enforce injunctive relief prohibiting the
breach or threatened breach or compelling specific performance.
7.15 NO PARTNERSHIP, ETC. Nothing contained herein shall be
construed as creating a joint venture, Company, agency, employment relationship
or other enterprise between the parties.
7.16 CONSTRUCTION. The Company and WebMD have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Company and WebMD and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
7.17 DISCLAIMER OF WARRANTIES. The Company hereby acknowledges and
agrees that WebMD has made no promises, representations, guarantees or
warranties, of any nature, other than those which may be made expressly in this
Agreement.
7.18 PLURALS. When necessary for appropriate meaning, a plural
shall be deemed to be the singular and singular shall be deemed to be the
plural.
7.19 EFFECTIVENESS. The submission of this Agreement does not
constitute an offer to license and this Agreement shall become effective only
upon execution thereof by the Company and WebMD.
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE NEWS CORPORATION LIMITED
By: /s/
------------------------------------------------
Name: Arthur Siskind
Title: Director
HEALTHEON/WEBMD CORPORATION
By: /s/
------------------------------------------------
Name: W. Michael Heekin
Title: Exec. Vice President
<PAGE> 20
EXHIBIT A
DEFINITIONS
DEFINED TERMS. As used in this Agreement, the following terms have the
meanings indicated:
Affiliate: With respect to any Person, any other Person that, directly
or indirectly through or with one or more intermediaries, controls, is
controlled by or is under common control with such Person. The term "affiliated"
(whether or not capitalized) shall have a correlative meaning. For the purposes
of this definition, "control", as used with respect to any Person, shall mean
the possession, directly or indirectly through or with one or more
intermediaries, of the power to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting securities, by
contract or otherwise. The terms "controlled by" and "under common control with"
shall have correlative meanings.
Agreement: This Agreement and any Exhibits hereto, as the same may be
amended, supplemented or modified in accordance with the terms hereof.
Business Day: Any day other than a Saturday, a Sunday or a day on which
national banking institutions in the United States are not open for business.
Claim: Claims, suits, proceedings, actions, demands, investigations or
causes of action.
The Company: Defined in the introductory paragraph of this Agreement.
Company Indemnitees: Defined in Section 6.1.
Effective Date: The date of execution and delivery of this Agreement by
all of the parties hereto.
Entity or collectively Entities means corporations, limited liability
companies, partnerships, joint ventures or other forms of legal entity.
Governmental Authority: Any nation or government, any state or other
political subdivision thereof and any court, panel, judge, board, bureau,
commission, agency or other entity, body or other Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
Graphical User Interface: the graphical user interface, text, images,
navigational devices, icons, menus, menu instructions, help and other
operational instructions and other Content which is directly visible to Users
viewing a Web Site.
Indemnified Party: Defined in Section 6.3.
Indemnifying Party: Defined in Section 6.3.
<PAGE> 21
PAGES(S)
Initial Term: Defined in Section 5.1.
Judgment: Any order, judgment, writ, decree, award or other
determination, decision or ruling of any Governmental Authority or any
arbitrator.
Licensed Activities: The activities described in Sections
2.1(a),2.1(b), and 2.3.
Look and Feel: With respect to a Web Site, those elements of the
Graphical User Interface of such Web Site comprising the visible features,
characteristics and style of such Web Site which are unique to such Web Site and
are consistent from page to page and which indicate the common identity of the
various pages and identify such pages as forming a part of a single Web Site
operated by a specific Entity.
The News Corporation Limited: Defined in the recitals to this
Agreement.
Operating Agreement: That certain Operating Agreement of even date
herewith by and among WebMD, the Company and WebMD International LLC.
Operating Company: The Company's subsidiaries or operating divisions,
formed either wholly by the Company (or by members in or Affiliates thereof) or
with third parties or entities that are not subsidiaries of the Company.
Person: Any natural person, Entity, Governmental Authority, or other
entity, whether acting in an individual, fiduciary or other capacity.
Proprietary Information: Defined in Section 7.2
Renewal Term: Defined in Section 5.1.
Requirement of Law: As to any Person, all rules, regulations,
Judgments, injunctions, standards, codes, limitations, restrictions, conditions,
prohibitions, notices, demands or other requirements or determinations of a
Governmental Authority or an arbitrator, applicable to or binding upon such
Person, any of its property or any business conducted by it or to which such
Person, any of its property or any business conducted by it is subject.
Term: Defined in Section 5.1.
Territory: The entire world.
User: Any Person who accesses a Web Site.
WebMD Content: All materials developed or owned by or on behalf of
WebMD or the WebMD Group for inclusion on the WebMD Site. The parties
acknowledge that the WebMD Content shall include only those portions of content
available from time to time on the WebMD Site that are (i) owned exclusively by
WebMD, (ii) are licensed to WebMD under an arrangement pursuant to which WebMD
is legally permitted to license same to the Company at
2
<PAGE> 22
PAGES(S)
no additional cost to WebMD or at additional cost to the Company as provided in
Section 3.1(b) for the purposes contemplated by this Agreement, and (iii) is
content the exploitation and distribution of which by the Company or
Sublicensees will in all respects comport with all Requirements of Law.
WebMD Group: WebMD and its subsidiaries and Affiliates.
WebMD Indemnitees: Defined in Section 6.2.
WebMD Intellectual Property: Defined in Section 2.2(d).
WebMDLogo: Defined in Section 2.3.
WebMD Property: Defined in Section 3.4.
WebMD Site: Defined in the recitals to this Agreement.
Web Sites: Any network of Internet Web pages accessible electronically
by a computer or other device and located in a single Internet domain.
WebMD User Information: Defined in Section 3.4.
3