Content License Agreement - Fox Entertainment Group Inc. and Healtheon/WebMD Corp.
CONTENT LICENSE AGREEMENT
Dated as of
January 26, 2000
Between
FOX ENTERTAINMENT GROUP, INC.
and
HEALTHEON/WEBMD CORPORATION
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TABLE OF CONTENTS
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PAGE
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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 FOX CONTENT........................ 2
2.3 GRANT OF RIGHT IN FOX LOGO........................................................... 3
2.4 NO OTHER RIGHTS GRANTED..................................................... 4
2.5 ROYALTY..................................................................... 5
ARTICLE 3 ............................................................................ 5
FOX CONTENT 5
3.1 Selection, Format, Design and Updating...................................... 5
3.2 REMOVAL OF FOX CONTENT...................................................... 5
3.4 OWNERSHIP OF FOX CONTENT.................................................... 5
3.5 OTHER AGREEMENTS............................................................ 5
3.5 OTHER AGREEMENTS............................................................ 5
ARTICLE ............................................................................ 6
REPRESENTATIONS AND WARRANTIES........................................................... 6
4.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.................... 6
ARTICLE 5 ............................................................................ 7
TERM; TERMINATION........................................................................ 7
5.1 TERM ............................................................................ 7
5.2 RIGHT TO TERMINATE BY FAX................................................... 7
5.3 RIGHT TO TERMINATE BY THE COMPANY........................................... 7
5.4 EFFECT OF TERMINATION....................................................... 7
5.5 CONTINUING OBLIGATIONS...................................................... 7
ARTICLE 6 ............................................................................ 7
INDEMNIFICATION.......................................................................... 7
6.1 AGREEMENT OF FOX TO INDEMNIFY............................................... 7
6.2 AGREEMENT OF THE COMPANY TO INDEMNIFY \F C \L............................................ 8
6.3 THIRD PARTY CLAIMS................................................................... 8
6.4 SPECIAL DAMAGES AND LIMITATION OF LIABILITY.......................................... 9
ARTICLE 7 ............................................................................ 9
ADDITIONAL AGREEMENTS.................................................................... 9
7.1 CONFIDENTIALITY AND USE OF PROPRIETARY INFORMATION................................... 9
7.2 DEFINITION OF PROPRIETARY INFORMATION................................................ 9
7.3 CONTENTS OF THIS AGREEMENT.......................................................... 10
7.4 COMMUNICATIONS...................................................................... 10
7.5 PRESS RELEASES...................................................................... 11
7.6 GOVERNING LAW; CONSENT TO JURISDICTION.............................................. 11
7.7 BINDING EFFECT; SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT............................ 12
7.8 AMENDMENTS AND WAIVERS.............................................................. 12
7.9 HEADINGS ........................................................................... 12
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7.10 NO IMPLIED WAIVERS................................................................. 12
7.11 COUNTERPARTS....................................................................... 12
7.12 FURTHER ASSURANCE.................................................................. 12
7.13 SEVERABILITY....................................................................... 13
7.14 SEVERABILITY....................................................................... 13
7.14 INJUNCTIVE RELIEF.................................................................. 13
7.15 NO PARTNERSHIP, ETC............................................................... 13
7.16 CONSTRUCTION....................................................................... 13
7.17 DISCLAIMER OF WARRANTIES........................................................... 13
7.18 PLURALS ........................................................................... 13
7.19 EFFECTIVENESS...................................................................... 13
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CONTENT LICENSE AGREEMENT
THIS CONTENT LICENSE AGREEMENT (THE "AGREEMENT"), dated as of January
26, 2000 (the "Effective Date"), by and between FOX ENTERTAINMENT GROUP, INC., a
Delaware corporation ("Fox"), THE NEWS CORPORATION LIMITED ("News Corp" and
collectively with Fox, the "Fox Parties" and together with their respective
subsidiaries and controlled and non-controlled affiliates, the "Fox Group") and
HEALTHEON/WEBMD CORPORATION, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the members of the Fox Group own and operate networks, television
broadcast stations, Non-Standard Television Services and other content creation
and distribution businesses worldwide (the "Fox Distribution Channels"); and
WHEREAS, the members of the Fox Group own or license the Fox Content which
they use in connection with the development and 'operation of the Fox
Distribution Channels; and
WHEREAS, pursuant to a Master Strategic Alliance Agreement dated December
6, 1999, by and between The News Corporation Limited, a South Australia,
Australia corporation ("News Corp"), Fox and the Company (the "Strategic
Alliance Agreement"), the Fox Parties desire to license, and cause other members
of the Fox Group to license, to the Company the right to use the Fox Content for
the purpose of adapting the Fox Content for use on the WebMD Sites.
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 I
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 upon the Fox Parties, any
member of the Fox Group or any of the Fox Distribution Channels, other than
obligations that were incurred with the prior primary intent to frustrate the
purpose of this Agreement, and subject to the terms and conditions of this
Agreement, the Fox Parties agree 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
Fox Content solely for the purpose of developing and operating the
WebMD Sites; 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 Fox's prior written consent to each such sublicense (other than
with respect to Operating Companies which are directly or indirectly
majority owned and Controlled by the Company); (ii) obtain from such
Operating Companies a written instrument approved as to form and
substance by Fox, 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 Fox. Fox agrees that any
consent or approval required by it under this Section 2.1(b) will not
be unreasonably denied or delayed and that Fox 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 interests are directly or indirectly owned by News Corp;
"Non-Controlled Affiliates" means any corporation or other entity in
which News Corp directly or indirectly has a greater than 20% but no
more than 50% equity interest.
2.2 SCOPE OF LICENSE; RESTRICTIONS ON USE OF FOX CONTENT.
(a) The License granted hereunder is non-exclusive and the
Company agrees to use the Fox 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 Fox Content other than in connection with
the development or operation of the WebMD Sites. 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 10.5 of the Strategic Alliance Agreement. The Company
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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
other obligations of Fox, any member of the Fox Group or any of the Fox
Distribution Channels. 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 notice.
(c) Notwithstanding anything to the contrary contained in this
Agreement, Fox 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 Fox shall determine, in the exercise of its reasonable
discretion, that (i) such country's laws afford adequate protection of
the Fox's interests in or ownership of Fox Content, the Fox Property
and the Fox Logos (collectively the "Fox Intellectual Property"), and
(ii) the use of the Fox Intellectual Property (or any part thereof) in
such country will not violate any Requirement of Law or expose Fox or
any of its Affiliates to any unreasonable risk or liability which might
anise as a result of the use or display of any of the Fox Intellectual
Property in such country. In its exercise of its reasonable discretion
under this Section 2.2(c), Fox shall have the night to request from the
Company or a Sublicensee an opinion of counsel or such other
information to Fox's reasonable satisfaction opining about or providing
such other information on a Requirement of Law or such other matters
relating to the protection of Fox's interests as Fox may request, such
opinion or information to be obtained at the Company's or such
Sublicensee's expense. Fox 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 FOX LOGO
(a) Fox Logo. Fox hereby grants the Company a limited,
non-exclusive, royalty-free license to such trademarks, tradenames, service
marks logotypes, or brand identifiers of members of the Fox Group as Fox may
provide to the Company from time to time (collectively, the "Fox Logos") 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 Fox's written trademark guidelines as provided by Fox to the
Company from time to time. The Company will also be allowed to use and reproduce
the Fox Logos for the promotion of the Fox Content, although to the extent such
promotions involve media placements outside of the WebMD Sites, then the Company
will only be allowed to make such uses and reproductions as Fox 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 Fox Logos that the WebMD Sites or any of
the products or services affiliated with it, are endorsed or sponsored by or
created in association with Fox except as agreed by Fox. The Company
acknowledges that Fox owns all right, title and interest and to the Fox Logos
and retains all rights with respect thereto. The Company
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agrees not to do anything inconsistent with such ownership and all uses of the
Fox Logos will inure to the benefit of and on behalf of Fox. The Company further
agrees that it will not attack or assist others in attacking the title of the
Fox Logos.
(c) No Violation. The Company acknowledges and agrees that:
(i) it will not register any Fox Logo;
(ii) it will not knowingly permit any third party to use
any Fox Logo unless authorized to do so in writing by Fox 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 Fox
Logo other than the Fox Logos themselves unless authorized to
do so in writing by Fox; and
(iv) all goodwill associated with the Company's use of
the Fox Logos will inure to Fox.
(d) Prior Approval. The manner and form of use of the Fox
Logos will be subject to Fox'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 Fox Logos concerned and
indicates the context in which the Fox Logos are to be used. Once a use
of a Fox Logo is approved for use under certain circumstances, then it
is agreed that the Company may subsequently make substantially similar
uses of such Fox Logo under similar circumstances, but only until Fox
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 Fox upon a material breach by WebMD, or any Affiliate of WebMD
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 WebMD's receipt of written notice from Fox of the existence
of such breach.
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 Fox Intellectual Property or any proprietary rights
relating to or created from such Fox Intellectual Property or any developments
or enhancements with respect thereto.
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ARTICLE 3
THE FOX CONTENT
3.1 SELECTION, FORMAT, DESIGN AND UPDATING.
(a) Fox may from time to time, modify and update the Fox
Content as such modifications and/or updates are deemed necessary or
desirable by Fox and the Company shall (to the extent that particular
Fox Content is used by the Company) use such Fox Content as modified or
updated.
(b) With respect to any content Fox obtains for use on the Fox
Distribution Channels, Fox shall, at the Company's request, use
reasonable commercial efforts to secure the approval of third parties
for the use by the Company of such content in accordance herewith. Fox
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 Fox, Fox shall
incur such cost only at the Company's request and the Company shall
have the obligation to reimburse Fox for such cost.
(c) With respect to the Fox Content licensed hereunder, the
Company shall have the right to determine, in its reasonable
discretion, the Fox Content it selects to adapt for use on the WebMD
Sites at any time, and from time to time subject to the other
provisions hereof; provided, however, that the Company shall clearly
attribute all Fox Content used on the WebMD Sites to Fox, or a member
of the Fox Group, as applicable. Except as may be authorized in advance
in writing by Fox, or for the purpose of adapting the Fox Content for
use on the WebMD Sites and/or localizing the Fox Content, the Company
shall have no right to substantively modify in any manner whatsoever,
any of the Fox Content licensed hereunder. The Fox Content which is
owned or controlled by a third party shall incorporate such credit
designated by such third party or Fox and the Company and Sublicensees
shall preserve all such attributional rights.
3.2 REMOVAL OF FOX CONTENT. Fox may, for good reason, from time to
time require removal of any Fox Content from the WebMD Sites. If Fox requests
removal of certain Fox content from the WebMD Sites, the Company shall complete
such removal on the earlier of (i) the first commercially practicable date on
which the Company could remove such content or (ii) five business days following
receipt of Fox's request for such removal.
3.3 OWNERSHIP OF FOX CONTENT; FOX PROPERTY. The members of the Fox
Group shall at all times remain the owner of all right, title and interest in
and to the Fox Content or any parts or derivatives thereof or any variations
thereon. The members of the Fox Group 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, copyright or other intellectual
property law protection, furnished by or on behalf of Fox to the Company or the
Sublicensees and displayed on the WebMD Sites or any parts or derivatives
thereof or any variations thereon collectively, the "Fox Property").
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3.4 OTHER AGREEMENTS. The Company:
(a) agrees to comply with all Requirements of Law in
connection with the use of the Fox Content;
(b) agrees that all rights in and to any of the Fox Content
not expressly licensed hereunder are reserved to the appropriate member
of the Fox Group;
(c) agrees not to sublicense, assign, transfer, pledge, offer
as security, or otherwise encumber the Fox 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 Fox 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 members of the Fox Group or their respective licensors in or
to the Fox Content or any of the other Fox 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 Fox Content or any other Fox Intellectual Property held by Fox or
any third party or (iii) claim any right, title or interest in or to
the Fox Content or any other Fox 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 3.4 to the extent this Section
creates obligations for the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND
FOX.
(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) Conflict. The Company acknowledges that members of the Fox
Group have licensed, and may license, the Fox Content to other parties
to promote and enhance the goodwill of the Fox Content. The Company
agrees that in the event Fox 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 Fox in order to resolve the conflict and, in the event the
conflict cannot be resolved, shall take the action requested by Fox as
long as it is commercially practical to do so.
(c) Authority of the Fox Parties. The Fox Parties represent
and warrant that the Fox Parties have (i) the authority to execute,
deliver and perform its obligations under this Agreement, having
obtained all required Board of Directors or other consents, (ii) are
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duly organized or formed and validly existing in good standing under
the laws of the state of its incorporation or formation and (iii) own
all right, title and interest in and to the Fox Content authored by the
Fox Parties and have all rights necessary to license the third party
content provided to the Company hereunder. The parties agree that the
Company's or any Sublicense's remedy with respect to a breach of the
Fox Parties' 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, THE FOX
PARTIES DO NOT MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY FOX CONTENT
LICENSED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM ANY WEBMD SITE
USING THE FOX CONTENT. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH
ABOVE, THE FOX 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
NONINFRINGEMENT.
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 that the Operating Agreement
has not been terminated or the joint venture created by the Operating Agreement
has been dissolved prior such date; and provided, further, that the Company
agrees to extend the term of that certain Content License Agreement of even date
herewith by and between the Company and News Corp pursuant to which the Company
has agreed to license certain content to News Corp. Together, the Initial Term
and the Renewal Term are collectively referred to as the "Term."
5.2 CONTINUING OBLIGATIONS. Except as expressly provided in this
Agreement, the expiration of the Term shall not release any party from the
obligations set forth in Articles 3, 4, 6 and 7 and this Section 5.2, 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 FOX 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, Fox hereby agrees to
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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 Fox 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 right as a result of the Company's (or a
Sublicensee's) use or display of the Fox Content, Fox 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 Fox and its officers, directors,
shareholders, employees, agents and Affiliates and their respective successors
and assigns (collectively the "Fox 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 Fox 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 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,
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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.
6.4 SPECIAL DAMAGES, LIMITATION OF LIABILITY. EXCEPT FOR (i) A BREACH
OF SECTION 7.1, (ii) USE OF THE FOX 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 Fox; (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 Fox 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 Fox 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
<PAGE> 13
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 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 Fox Parties to:
Fox Entertainment Group, Inc.
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 Fox Parties may designate in a written notice to
the Company.
If to the Company, to:
Healtheon/WebMD Corporation
400 The Lenox Building
3399 Peachtree Road NE
Atlanta, GA 30326
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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
or to such other address as the Company may designate in a written notice to
Fox.
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 i 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 and, 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 Fox, 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-oriented 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
<PAGE> 15
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 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 Fox 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 ASSURANCE. 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.
<PAGE> 16
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 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 Fox 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 Fox and no presumption or burden of
proof shall anise 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 Fox has made no promises, representations, guarantees or warranties,
of any nature, other than those which may be made expressly in this Agreement.
7.18 PLURAL. 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 Fox.
<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FOX ENTERTAINMENT GROUP, INC.
By: /s/
----------------------------------
Name:
Title: Lawrence A. Jacobs
Secretary
HEALTHEON/WEBMD CORPORATION
By: /s/
----------------------------------
Name: W. Michael Heekin
Title: Exec. Vice President
<PAGE> 18
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.
Claims: 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.
Control: The possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
Effective Date: The date of execution and delivery of this Agreement by
all of the parties hereto.
Entity or collectively Entities: Corporations, Limited Liability
Companies, Partnerships, Joint Ventures or other forms of legal entity.
Fox Content: All Health Related Materials owned or licensed by or on
behalf of Fox or the Fox Group for inclusion on the Fox Distribution Channels
(excluding any Distribution Channel that is a Web Site). The parties acknowledge
that the Fox Content shall include only those portions of content available from
time to time on the Fox Distribution Channels that are (i) owned exclusively by
members of the Fox Group, (ii) are licensed to members of the Fox Group under an
arrangement pursuant to which members of the Fox Group are legally permitted to
license same to the Company at no additional cost to members of the Fox Group or
at additional cost to the Company as provided in Section 3.1(b) for the purposes
contemplated by
<PAGE> 19
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.
Fox Distribution Channel: Defined in the recitals to this Agreement;
provided, however, that for purposes of this Agreement, the Fox Distribution
Channels shall exclude Web Sites.
Fox Group: Defined in the introductory paragraph of this Agreement
Fox Indemnitees: Defined in Section 6.2.
Fox Intellectual Property: Defined in Section 2.2 (d).
Fox Logos: Defined in Section 2.3.
Fox Property: Defined in Section 3.3.
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.
Health Related Material: Any written, photographic or audiovisual work,
as defined in the United States Copyright Act, that consists predominantly of
coverage of topics related to health, fitness, disease, medicine (including
holistic medicine and other non-western medicine), pharmaceuticals or natural
health products, including coverage of related news, commentary and analysis.
Indemnified Party: Defined in Section 6.3.
Indemnifying Party: Defined in Section 6.3.
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.
Non-Standard Television Service: Audiovisual programming delivered by
any means of transmission, whether now existing or developed in the future
(including all forms of fixed-line or wireless, narrow band or broadband,
transmission) other than (a) audiovisual programming which is made available to
viewers free-of-charge (e.g., free-to-air UHF or VHF television), even if
retransmitted via cable or any other means of retransmission for which a
facilities fee is charged, and (b) home video distribution.
Operating Agreement: That certain Operating Agreement of even date
herewith by and among News Corp, the Company and WebMD International LLC.
<PAGE> 20
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.
Web Site: Any network of Internet Web pages accessible electronically
by a computer or other device and located in a single Internet domain.
WebMD Site: Any Web Site which is owned and operated by the Company
and/or its Operating Companies and 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, currently accessible through the URL www.webmd.com.