Hyperlink Agreement - DocTalk LLC and William S. (Chip) Canty III d/b/a Waypages Productions
AGREEMENT
This Agreement (the "Agreement") Is made and entered into this 10 day of
November, 1999 (the "Effective Date"), by and between DocTalk, L.L.C.
(hereinafter "Doc-Talk"), a Delaware limited liability company with offices
located at 8050 Southern Maryland Boulevard, Owings, MD 20736 and William S.
(Chip) Canty III, d/b/a Waypages Productions ("Waypages"): Doc-Talk and Waypages
may also be referred to as a "Party" or collectively as the "Parties" throughout
this Agreement.
WHEREAS, Doc-Talk provides the Doc-Talk Service described below through Its toil
free telephone number;
WHEREAS, Waypages operates a Web Site designed to help visitors find information
more easily across the Internet; and
WHEREAS, Doc-Talk and Waypages desire to attract visitors to the Doc-Talk Web
Site by means of Hyper Links from the Waypages Web Site.
NOW, therefore, in consideration of the premises and the mutual covenants and
conditions contained herein, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions. For the purposes of this Agreement , the following terms shall
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have the following meanings:
1.1 "Discount Number" means the unique number which maybe used in
conjunction with the Doc-Talk service to grant the user of such service
a specified discount from the fees charged for the service.
1.2 "Doc-Talk Service" means the fee-based, medical information. service
offered by Doc-Talk through telephone access.
1.3 "Hyper Link" means the icon, logo, highlighted or colored text, figure,
or image representing a URL which allows an Internet user to move from
one web site to another web site.
1.4 "Proprietary information" means and shall include, but not be limited
to, either Party's software, data, databases, product plans, designs,
protocols, products, costs, prices, names, finances, marketing plans,
business opportunities, personnel, and research and development
originated by the disclosing Party, not previously published or
otherwise disclosed to the general public, not previously available
without restriction to the receiving Party, nor normally furnished to
others without restriction, and which the disclosing Party desires to
protect against unrestricted disclosure or competitive use.
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"Proprietary Information" shall not include information that (i) is or
enters the public domain through no fault of the receiving Party; (ii)
is known and has been reduced to tangible form by the receiving Party
prior to the time of disclosure and is not subject to restriction;
(III) is independently developed by the receiving Party without access
to or use of the Proprietary Information; (iv) is made generally
available by the disclosing Party without restriction on disclosure; or
(v) is disclosed by the receiving Party with the disclosing Party's
prior written consent.
1.5 "Web Site" means a series of pages on the World Wide Web ("Web'") that
are (1) created, controlled or maintained for a common purpose by
either Party, and (2) organized via a hierarchical set of Hyper Links
that originate from the home page of that Party's Web domain.
2. Hyper Link.
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2.1 Customer. Waypages shall create and maintain on the Waypages Web Site a
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one or more pages devoted to a brief textual description of the Doc-
Talk service. Each of these so-called gateway pages shall contain one
or more Hyper Links to the Doc-Talk Web Site. Waypages shall also
develop and maintain a series of Hyper Links to the gateway pages, and
shall cause such Hyper Links to be displayed to certain visitors,
particularly those performing health related queries on the Waypages
Web Site. The form and placement of such Hyper Links, as well as the
design of the gateway pages shall be as mutually agreed to by the
Parties, and shall be established using the graphics, images, HTML code
or other data and information provided by Doc-Talk. The text of each
gateway page shall include a Discount Number. Use of a Hyper Link to
the Doc-Talk Web Site shall in no way after the look, feel or
functionality of the Doc-Talk Web Site, nor will the Doc-Talk Web Site
be framed by any web page content of Waypages or arty third party.
2.2 Doc-Talk. Doc-Talk shall display on a web page of the Doc-Talk Web Site
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selected by Doc-Talk in its sole discretion a brief textual description
of Waypages's products and services and a Hyper Link to the Waypages
Web Site. The form and content of the text and Hyper Link shall be
mutually agreed to by the Parties and shall be established using the
graphics, images, HTML code or other data and information provided by
Waypages. Use of a Hyper Link to the Waypages Web Site shall in no way
alter the look, feel or functionality of the Waypages Web Site, nor
will the Waypages Web Site be framed by any web page content of Doc-
Talk or any third party.
3. Referral Fees.
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3.1 Amounts. Doc-Talk will pay Waypages referral fees on certain sales of
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the Doc-Talk Service to third parties who utilize the Discount Number
in purchasing the Doc-Talk Service. Referral Fees shall be in the
amount of five percent (5%) of Net Sales of the Service. For the
purposes of this Agreement; Net Sales shall mean the the gross receipts
collected by Doc-Talk from sales of the Doc-Talk Service to customers
using the Discount Number, less any discounts, refunds, sales taxes if
applicable, and charge backs due to customer credit-card payments that
prove to be uncollectible.
3.2 Payments. Doc-Talk will pay to Waypages referral fees on a calendar
quarter basis within thirty (30) days following the end of the
respective calendar quarter. The amount of the referral fee payment
shall be based upon Net Sales for the respective calendar quarter only.
If the referral fees payable for any calendar quarter are less than
$100.00, Doc-Talk will hold those referral fees until the total amount
due hereunder at least $100.00 or this Agreement Is terminated. The
referral fee payment shall be made payable to Waypages Productions, and
sent to the address in Section 14 below.
4. Policies and Pricing. Customers who buy the Doc-Talk Service using the
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Discount Number shall be deemed customers of Doc-Talk. Accordingly, all Doc-
Talk rules, policies, and operating procedures concerning customer orders,
customer service, and sales of the Doc-Talk service will apply to those
customers. Doc-Talk shall be solely responsible for all aspects of
processing and fulfilling orders for the Doc-Talk Service. Doc-Talk, in its
sole discretion, shall determine the prices to be charged for Doc-Talk
Service sold under the Discount Number. Doc-Talk may change its policies and
operating procedures at any time.
5. Limited License.
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5.1 Doc-Talk. Doc-Talk hereby grants to Waypages, and Waypages hereby
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accepts, a non-exclusive, non-transferable, worldwide, revocable right
to use and display solely in connection with establishing the Hyper
Link on the Waypages Web Site and promoting the Doc-Talk Service during
the term of this Agreement the graphic image and text described in
Section 2.1, the Doc-Talk Web Site URL, and any other trademarks or
logos of Doc-Talk provided to Waypages. All representations of the Doc-
Talk logos and trademarks that Waypages uses will be exact copies of
those provided by Doc-Talk.
5.2 Customer. Waypages hereby grants to Doc-Talk, and Doc-Talk hereby
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accepts, a non-exclusive, non-transferable, worldwide, revocable right
to use and display solely in connection with establishing the Hyper
Link on the Doc-Talk Web Site during the term of this Agreement the
graphic image and text described in Section 2.2,
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the Waypages Web Site URL, and any other trademarks or logos of
Waypages provided to Doc-Talk, All representations of the Waypages
logos and trademarks that Doc-Talk uses will be exact copies of those
provided by Waypages.
6. Customer Web Site. Waypages is solely responsible for the development,
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operation, and maintenance of Waypages Web Site and for all materials that
appear on such site, including without limitation the technical operation of
its site and all related equipment, creating and posting the text arid Hyper
Link in accordance with Section 2.1 and linking those descriptions to the
Doc-Talk Web Site, ensuring that materials posted on the Waypages Web Site
do not violate or infringe upon the rights of any third party (including,
for example, copyrights, trademarks, privacy, or other personal or
proprietary rights) and ensuring that materials posted on the Waypages Web
site are not libelous or otherwise illegal.
7. Press Release. Doc-Talk and Waypages agree to cooperate with each other in a
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joint press release following execution of this Agreement. Doc-Talk and
Waypages shall jointly determine the content, timing and necessity of all
press releases regarding this Agreement.
8. Term. The term of this Agreement shall commence on the Effective Date and
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continue for a period of one (1) year unless sooner terminated as provided
herein. Either Party may terminate this Agreement at any time upon not less
than thirty (30) days prior written notice to the other Party. Upon the
termination of this Agreement for any reason, each Party will immediately
cease use of, and remove from its site, all links to the other Party's Web
Site and all trademarks, trade dress and logos, and all other materials
provided to the Party by or on behalf of the other Party in connection with
this Agreement. Waypages shall only be eligible to earn referral fees on Net
Sales occurring during the term of the Agreement. Upon termination of the
this Agreement for any reason, Sections 8, 9, 10, 11, 12, 13, 15, 17 and 18
shall survive.
9. Relationship of Parties. Doc-Talk and Waypages are independent contractors,
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and nothing in this Agreement will create any partnership, joint venture,
agency, franchise, sales representative, or employment relationship between
the Parties. Waypages shall have no authority to make or accept any offers
or representations on behalf of Doc-Talk, and Waypages warrants that it will
not make any statement, whether on Waypages's Web Site or otherwise, that
reasonably would contradict anything in this Section.
10. Confidentiality.
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10.1 Non-disclosure. Each Party shall protect the other Party's
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Proprietary Information from unauthorized dissemination and use with
the same
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degree of care that such Party uses to protect its own like
information, but in no event less than reasonable care, for a period of
three years from receipt of the disclosing Party's Proprietary
Information. Neither Party will use the other Party's Proprietary
Information for purposes other than those necessary to directly further
the purposes of this Agreement. Neither Party will disclose to third
parties the other Party's Proprietary Information without the prior
written consent of the other Party. Except as expressly provided in
this Agreement, no ownership or license rights are granted in any
Proprietary Information. Both parties acknowledge that the restrictions
contained in this Paragraph 14.1 are reasonable and necessary to
protect their legitimate interests and that violation of these
restrictions will cause irreparable damage to the other Party and each
Party agrees that the other Party shall be entitled to injunctive
relief against each violation.
10.2 Development Rights. The Parties' obligations of confidentiality under
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this Agreement shall not be construed to limit either Party's .right to
independently develop or acquire products without the use of the other
Party's Proprietary Information.
10.3 This Agreement. Neither Party shall disclose the terms and conditions
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of this Agreement to any third party without the other Party's express
written permission, provided that a Party may disclose the terms and
conditions of this Agreement to its financial and legal advisors who
are bound by obligations of confidentiality substantially similar to
those contained in this Agreement.
11. Indemnity.
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11.1 Customer. Waypages shall indemnify and hold harmless Doc-Talk and its
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successors and assigns from all third party claims, damages,
liabilities, costs and expenses (including, without limitation,
reasonable legal fees and expenses) relating to the development,
operation, maintenance, and content of the Waypages Web Site.
11.2 Doc-Talk. Doc-Talk shall indemnify and hold harmless Waypages and its
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successors and assigns from all third party claims, damages,
liabilities, costs and expenses (including, without limitation,
reasonable legal fees and expenses) relating to the development,
operation, maintenance, and content of the Doc-Talk Web Site.
11.3 Any indemnity under this Section 11 is conditioned upon prompt written
notice by the non-indemnifying Party to the indemnifying Party of any
claim, action or demand for which indemnity is claimed and such
reasonable cooperation by the non-indemnifying Party in the
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defense as the indemnifying Party may request. The nonindemnifying
Party shall have the right, but not the obligation to control the
defense and/or settlement of any third party claim in which it is named
as a party. The non-indemnifying Party shall have the right to
participate in any defense of a third party claim against the
indemnifying Party with counsel of the non-indemnifying Party's choice
at its own expense.
12. Disclaimer. Doc-Talk provides the Doc-Talk Service on an "as-is" and
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"as-available" basis. Accordingly, Doc-Talk makes no express or implied
warranties or representations with respect to the Doc-Talk Service
(including, without limitation, warranties of fitness, merchantability,
non-infringement, or any implied warranties arising out of a course of
performance, dealing, or trade usage). In addition, we make no
representation that the operation of our site will be uninterrupted or error
free, and we will not be liable for the consequences of any interruptions or
errors.
13. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY
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FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS
AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND NEITHER PARTY'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS
AGREEMENT SHALL EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO WAYPAGES.
UNDER THIS AGREEMENT.
14. Notification. All notices and requests in connection with this Agreement
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shall be deemed given as of the day they are received either by messenger,
delivery service, or in the United States of America mails, postage prepaid,
certified or registered, return receipt requested, and addressed as follows:
To Doc-Talk: To Waypages:
Doc-Talk, L.L.C. L.L.C. Waypages Productions
8050 Southern Maryland Blvd. 132 Adams St. #10
Owings, MD 20736 Newton, MA 02458
Attention: Todd M. Lamka Attn: Chip Canty
Phone: (410) 286-2736 Phone: 617-964-9866
Fax:(410) 257-6381 FAX: 617-964-9989
15. Governing Law. This Agreement shall be governed by the laws of the State of
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Maryland, excluding its conflicts of laws rules.
16. Assignment. Neither Party may assign this Agreement or any of its rights or
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delegate any of its duties under this Agreement without the prior written
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consent of the other; provided that either Party shall have the right to
assign its rights and obligations hereunder to its parent or to any
subsidiary or affiliate upon notice to the other Party, and Doc-Talk, L.L.C.
may assign its rights and obligations herein as part of a sale of assets to
DocTalk, Inc., a Delaware corporation. Any purported assignment or
delegation without such required consent shall be null an void.
17. Construction. If for any reason a court of competent jurisdiction finds any
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provision of this Agreement, or portion thereof, to be unenforceable, that
provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the intent of the Parties, and the remainder of
this Agreement will continue in full force and effect. Failure by either
Party to enforce any provision of this Agreement will not be deemed a waiver
of future enforcement of that or any other provision. This Agreement has
been negotiated by the Parties and their respective counsel and will be
interpreted fairly in accordance with its terms and without any strict
construction in favor of or against either Party.
18. Entirety. This Agreement shall not be effective until signed by both
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Parties. This Agreement constitutes the entire agreement between the Parties
with respect to the Doc-Talk Service and all other subject matter hereof and
supersedes all prior and contemporaneous communications. This Agreement
shall not be modified except by written agreement dated subsequent to the
date of this Agreement and signed on behalf of Doc-Talk and Waypages by
their respective duly authorized representatives.
IN WITNESS WHEREOF, each of the Parties has duly executed and delivered this
Agreement as of the dates signed below.
Doc-Talk, L.L.C. Waypages Productions
By: /s/ Dale L. Hutchins By: /s/ William S. Canty III
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Name: Dale L. Hutchins Ph.D. Name: William S. (Chip) Canty III
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Title: COO Title: Principal
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Date: 11/10/99 Date: 11/03/99
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