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Exhibit 10.40
SECOND AMENDMENT TO
SNAP STRATEGIC ALLIANCE AGREEMENT
THIS is a second Amendment (the "Amendment") to that certain Snap
Strategic Alliance Agreement, dated as of October 29, 1999, between Snap, LLC
("Snap"), Xoom.com, Inc. ("Xoom") and HealthGate Data Corp. (the "Company"), as
previously amended by the terms of the parties' first amendment dated December
14, 1999 (the "Strategic Alliance Agreement"). The parties hereto seek to
further amend the Strategic Alliance Agreement in order, among other things, to
augment their strategic alliance, to reflect the assignment of the Strategic
Alliance Agreement by Snap and Xoom to NBC Internet, Inc. and to clarify certain
provisions of the Strategic Alliance Agreement.
A. Pursuant to Sections 1.4 and 17.2 of the Strategic Alliance Agreement, Snap
and Xoom hereby assign all of their rights and liabilities (and obligations)
under the Strategic Alliance Agreement to NBC Internet, Inc., a Delaware
corporation, with a principal place of business at 225 Bush Street, San
Francisco, California 94103 ("NBCi"), and NBCi hereby accepts the assignment of
such rights and liabilities. All references to Snap and Xoom, and all
derivatives thereof (except where the context clearly implies otherwise), in the
Agreement shall, from the effective date of this Amendment, be interpreted to
refer to NBCi. The Company, however, acknowledges that NBCi may fulfill its
obligations under the Strategic Alliance Agreement itself (or assign or delegate
its rights, liabilities and obligations to) various of its subsidiaries,
including Snap, Xoom, and flyswat, Inc., a Delaware corporation ("flyswat");
provided, however, NBCi shall remain liable for all such assigned or delegated
rights, liabilities and obligations. The parties agree to launch the redesigned
Company Content and Company Site, as described in the Agreement, as modified by
this Amendment, by October 31, 2000. The Company may issue a press release
regarding this Amendment only with the express written consent of NBCi. NBCi
shall have the right to approve the form and content of such press release.
B. The parties hereby agree to amend the Strategic Alliance Agreement as
follows:
1. Section 1.2 of the Strategic Alliance Agreement is revised to
read as follows:
1.2 NBCi and/or its subsidiaries operate a search and
aggregation "portal" site on the Web and a direct
marketing site on the Web.
2. Section 1.3 of the Strategic Alliance Agreement is revised to
read as follows:
1.3 Notwithstanding anything to the contrary in this
Agreement, the Company acknowledges that NBCi is
currently rebranding and redesigning some or all of
the NBCi Sites (including the site operating under
the "Snap" brand), and NBCi's rights and obligations
under this Agreement will be applied to such
rebranded and redesigned sites subject to NBCi's
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discretion. Any reference to "Snap" in this Agreement
shall be understood to include Snap's successors and
any brand for such successors.
3. Section 2.5 of the Strategic Alliance Agreement is revised to
read as follows:
2.5 "Click Thrus" means any type of link (but not a
Promotion paid for by the Company as an Impression)
from the NBCi Sites, a Wire, or flyswat's Web
navigation software that a User (as tagged by NBCi
pursuant to Section 11.2) depresses or "clicks-on"
and that delivers the User, to the Co-Branded Site or
the Company Site.
4. Section 2.7 of the Strategic Alliance Agreement is revised to
read as follows:
2.7. "Commerce Offering" means any text, content, links or
promotions providing a direct or indirect opportunity
for Users on the Snap or NBCi Sites, the Company Site
or the Co-Branded Site to engage in a commerce,
purchase, trade, exchange, or purchase transaction,
whether paid or unpaid, or any registration or
membership opportunity for Users to provide User
Profile Data, including, without limitation, content
purchase opportunities, registration or membership
sign-up opportunities, for-fee or subscription-based
content or services, other purchase opportunities for
products or services offered by the Company directly
or indirectly, links to any such opportunities
presented to Users on the Snap or NBCi Sites, the
Company Site, or the Co-Branded Site, or other
content areas of those Sites.
5. Section 2.12 of the Strategic Alliance Agreement is revised to
read as follows:
2.12 "Company Site" means the Web site operated by the
Company, including its Corporate Home Page located at
http://www.healthgate.com, and all subsequent pages
and sub-directories which incorporate the NBCi Design
Template and which are located at
http://www.healthgate.nbci.com, together with any
mirror sites, and successors to any of the foregoing,
which comprise the Company's consumer oriented Web
site.
6. Section 2.29 of the Strategic Alliance Agreement is revised to
read as follows:
2.29 "NBCi Sites" means: (i) subject to the "Distributor"
(as defined in Section 6.1 below) exclusion in
Section 6.1, any and all search and aggregation
"portal," direct marketing, and commerce Web sites,
whether operated by NBCi, Snap, Xoom or a third party
under the "NBCi," "Snap" or "Xoom" brand, including,
without limitation, the Web sites located at
http://www.snap.com, http://www.xoom.com,
http://www.nbc.com, and http://www.videoseeker.com,
together with any mirror sites, any co-branded
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editions of such site that have been or may be
developed for Distributors, and successors to the
foregoing; (ii) if NBCi so elects within its sole
discretion, the Enhanced Site and/or the
International Editions, subject to Section 6.2; and
(iii) if NBCi so elects within its sole discretion,
the Web site located at http://www.nbcin.com and
successors thereto and NBC's network of affiliate
stations' Web sites, as updated from time to time by
NBCi in its sole discretion.
7. Section 2.32 of the Strategic Alliance Agreement is revised to
read as follows:
2.32 "User Profile Data" means data regarding a User
provided by the User on the NBCi Sites, Company Sites
or the Co-Branded Site or otherwise to NBCi or the
Company, including without limitation the User's
name, e-mail address, street address, telephone
number and other information about the User.
8. Section 2.34 of the Strategic Alliance Agreement is revised to
read as follows:
2.34 "Wires" means NBCi's email newsletters sent to NBCi
Members by NBCi or one of its subsidiaries, including
the Snap Wires and the Xoom Wires.
9. Section 3.3.1 of the Strategic Alliance Agreement is revised
to read as follows:
3.3.1 IMPRESSIONS. Beginning on the Launch Date, NBCi will
use commercially reasonable efforts to deliver a
total number of Impressions in the aggregate dollar
amount of $7,500,000 during Year One and the Company
agrees to complete the purchase of an aggregate
dollar amount of $7,500,000 in Impressions by
December 31, 2000. Delivery of the Impressions
hereunder will be based on a schedule and placement
guidelines selected by NBCi in its reasonable
discretion, taking into consideration the reasonable
requests of the Company, and at a 30% discount from
the rates set forth in the applicable NBCi's standard
rate card attached hereto as EXHIBIT B; provided,
however, that if all of the rates set forth in NBCi's
then current standard rate card decrease during the
Term by more than 15% relative to all of the rates
set forth in EXHIBIT B, then the number of
Impressions to be reasonably calculated by NBCi and
to be delivered by NBCi hereunder shall increase in
proportion to the amount of decrease in rates in
excess of the aforementioned 15%, with the number
such additional Impressions to be reasonably
calculated by NBCi and to be delivered by NBCi at
such time and in such manner as NBCi in its sole
discretion shall decide during the remainder of the
Term. Any Impression not listed in the applicable
NBCi standard rate card shall be assigned the value
of a comparable Impression on such rate card by NBCi.
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10. Section 3.3.4 of the Strategic Alliance Agreement is revised
to read as follows:
3.3.4 [deleted by agreement of the parties]
11. A new Section 3.6.3 is added to read as follows:
3.6.3 COMPANY STAFFING. The Company shall provide
commercially reasonable staffing, consisting of an
average of at least 10 full time employees during
each calendar quarter during the Term, including a
product manager and engineering and product staff,
dedicated to the Company Content and the Company Site
in order to maintain, update and provide the Company
Content at the current level of quality, availability
and depth or as described in this Agreement.
12. A new Section 3.7 is added to read as follows:
3.7 CHANGES TO COMPANY CONTENT. Should the Company wish
to materially reduce, alter, diminish or eliminate
content from the Company Content or the Company Site
(a "Content Change"), the Company shall obtain prior
written approval from NBCi for such action.
Notwithstanding the foregoing, the Company shall, in
its reasonable discretion, have the right to replace,
substitute and update the content in order to
maintain the content as Best of Breed.
Notwithstanding the foregoing, the Company shall not
undertake a Content Change on channels, sections, or
pages of the Company Content or the Company Site
which would impair NBCi's ability to fulfill NBCi
contractual obligations to deliver advertising or
promotional opportunities to a third party. NBCi
shall promptly notify the Company if any such
advertising or promotional commitments include
offering an advertisement or sponsorship in the
content area of the Company Site so as to allow
adequate editorial planning. In addition, any such
commitments shall not impact the editorial
independence of the Company nor shall such
commitments prevent the Company from maintaining the
content as Best of Breed.
13. A new Section 3.8 is added to read as follows:
3.8 TRAFFIC REDIRECT. Except as provided in the following
sentence, the Company shall redirect all traffic from
the Company Site to http://healthgate.nbci.com or
another URL or URLs designated by NBCi so that NBCi
shall receive credit for all page views or
impressions as measured by third party organizations
including, but not limited to, Media Metrix. The
previous sentence shall not apply to (i) the traffic
to the Company corporate home page (the "Corporate
Home Page") which may only contain information about
the Company, its various products (which shall not
include any links to or mention products similar in
nature to the
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relationship contemplated pursuant to this
Agreement), the Company's investor relations
information, and other information which may be
mutually agreed upon by the parties from time to
time; and (ii) any traffic related to the Company's
"Choice Partner Program" Web sites,
14. A new Section 3.9 is added to read as follows:
3.9 NBCi DESIGN TEMPLATE. The Company shall implement the
NBCi Design Template, as described in the attached
EXHIBIT E, on all pages of the Company Site except
for the Corporate Home Page.
15. A new Section 3.10 is added to read as follows:
3.10 XML FEED. The Company shall provide to NBCi an XML
feed of the content described in EXHIBIT F, in
addition to the Company Content described in Section
3.2. Such content shall be incorporated into NBCi's
Health Channel at the discretion of NBCi, maintaining
any applicable trademarks or branding as required by
the Company in its agreements with its content
providers. The Company agrees to use commercially
reasonable efforts to minimize the amount and
prominence of such trademarks and branding.
16. A new Section 3.11 is added to read as follows:
3.11 ADVERTISING ON THE COMPANY SITE.
3.11.1 In the content areas of the Company Site,
the Company shall maintain the right to
sell, barter or exchange for value any and
all sponsorship or promotional opportunities
with the exception of banner advertisements.
The Company shall retain all revenue derived
from such sponsorship or promotional
opportunities.
3.11.2 NBCi shall own and have the right to use,
sell, barter and exchange for value, and
serve or serve through a third party, all of
the banner advertising inventory on the
Company Site, except for the Corporate Home
Page. NBCi shall pay to the Company 20% of
"Net Revenues" (as defined below) associated
with all banner advertising sold by NBCi on
the Company Site. "Net Revenues" shall be
defined as gross revenues actually received
by NBCi from the sale of banner advertising
on pages of the Company Site less all
associated advertising agency commissions,
third party ad serving costs, sales
commissions and advertising related
production costs (all such commissions and
costs shall not exceed 20%). NBCi shall make
such payments within forty-five (45) days
after the end of each calendar quarter and
shall accompany such payments with a
statement setting forth NBCi's calculation
of Net Revenues for such quarter.
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3.11.3 NBCi shall allow the Company to purchase up
to twenty five percent (25%) of the
available unsold or uncommitted banner
inventory on the Company Site, as determined
in NBCi's sole discretion, for the purpose
of resale by the Company to third parties.
The Company shall purchase such inventory at
a discount of thirty percent (30%) from
NBCi's standard rate card at the time. The
Company must comply with any advertising or
competitor restrictions as determined by
NBCi.
3.11.4 In addition, NBCi will allow the Company to
retain the necessary number of banner
impressions to meet the Company's
contractual agreements with its advertisers
and sponsors existing as of August 21, 2000,
including, but not limited to, Medical
SelfCare, Inc; provided, however, that such
impressions do not take up more than forty
percent (40%) of the total Company Site
banner inventory.
17. Section 4.1 of the Strategic Alliance Agreement is revised to
read as follows:
4.1 ANCHOR TENANT OF CERTAIN HEALTH CHANNEL CONTENT
AREAS. After the Launch Date and during the Term,
NBCi will feature the Company as the Anchor Tenant
within seven of the following nine major content
areas within the Health Channel: Alternative
Medicine, Drugs & Medications, Diseases & Conditions,
Nutrition, Women's Health, Sexual Health, Men's
Health, Child & Youth Health and Public Health. The
Company shall specify in writing its preference for
the seven major content areas in which it wishes to
be featured as Anchor Tenant at least thirty days
prior to the Launch Date. NBCi Product Managers shall
determine the major content areas in which the
Company shall be featured as the Anchor Tenant.
Subject to this SECTION 4, NBCi may, in the exercise
of its reasonable discretion, make changes to the
design and functionality of the Health Channel
including, without limitation, the names of major
content areas; provided, however, that major content
areas similar to, or addressing the general
categories listed above shall exist within the Health
Channel during the Term. As the Anchor Tenant of
seven major content areas of the Health Channel, the
Company will receive the most prominent positioning
within each of such major content areas. During the
Term, there shall be no other Anchor Tenant of any of
the seven major content areas of the Health Channel
in which the Company is then the Anchor Tenant;
provided, however, that other major content areas,
content not provided by the Company, subject to the
terms of SECTION 3.2, and/or links to other,
non-Company sites may exist on the same Web page and
elsewhere within the Health Channel. The Company
acknowledges that NBCi may feature Anchor Tenants
other than the Company on any major
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content area within the Health Channel that is not
one of the seven major content areas of the Health
Channel in which the Company is the Anchor Tenant.
NBCi and the Company shall negotiate in good faith to
incorporate additional health-related Company
content, so long as such content is Best of Breed,
within the content areas of the Health Channel in
which the Company is not the Anchor Tenant, provided;
however, NBCi shall not be obligated to negotiate
with respect to such Company content if an agreement
with Company regarding such Company content would be
interpreted or operate to cause NBCi to breach any
existing contract or agreement between NBCi and any
other party, or impair the rights of any such
contract party pursuant to an existing contract or
agreement with NBCi. In the event that NBCi elects to
add new content areas on the Health Channel or
elsewhere on the NBCi Sites, NBCi will in good faith
first discuss with the Company obtaining additional
health-related Company content, so long as such
content is Best of Breed, for such additional new
content areas. NBCi will not enter into an agreement
to add or create new health-related content areas on
the Health Channel with another party pursuant to an
agreement which is comparable in number of content
areas or total consideration to those of this
Agreement. On the Health Channel, the Company will
have the right to program up to five Health Content
Portals, each measuring no larger than approximately
150 x 400 pixels, with relevant content and links to
relevant content on the Company Site and to relevant
content on Company Choice Partner Program Web sites,
or to other sites, as mutually agreed upon by the
parties. NBCi shall have the right, in its sole
discretion, to add additional content portals on the
Health Channel; provided, however, the Company shall
have the right to program one additional Health
Content Portal, with the specifications set forth in
the foregoing sentence, for each health content
portal on the Health Channel greater than three that
NBCi elects to add in addition to the five Health
Content Portals. Company will provide the appropriate
Company Content, subject to the reasonable discretion
of a NBCi Product Manager, for the Health Content
Portals. The NBCi Product Manager may provide the
Company with reasonable assistance to enable the
Company to effectively design the Health Content
Portals. Subject to this SECTION 4.1, the NBCi
Product Manager will determine the size and location,
and the Look and Feel, of the Health Content Portals;
provided, however, that the Health Content Portals
will begin Above the Fold within five of the seven
major content areas of the Health Channel in which
the Company is the Anchor Tenant.
18. Section 4.2 of the Strategic Alliance Agreement is revised to
read as follows:
4.2 HARVESTING. Except as set forth in Section 3.1, the
Company shall, beginning on the Effective Date,
provide all Company Content as required
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under this Section 4 pursuant to NBCi's harvesting
technical specifications, as updated in NBCi's sole
discretion from time to time, including those
described in http://partnermarketing.snap.com/guide,
or any other successor URLs designated by NBCi. NBCi
shall have the right, in its sole discretion, to
harvest such Company Content in a manner requiring a
User of the NBCi Sites to "click through" as many as
two Web pages within the NBCi Sites before the User
is transferred to the Company Sites or the Co-Branded
Site. Harvested Company Content will maintain the
NBCi Sites' Look and Feel and will include branding
for the Company using Company Marks, in such form and
placement as an NBCi Product Manager shall determine
in his or her sole discretion. Harvested Company
Content shall not include any Commerce Offering,
except at NBCi's sole discretion. The Company shall
ensure that all Company Content remains at all times
current by continually providing NBCi with timely
updates to the Company Content. Under no
circumstances shall Company Content include any
content of a Competitor or reference a Competitor.
19. Section 4.3 of the Strategic Alliance Agreement is revised to
read as follows:
4.3 INTERNAL PROMOTIONS. Subject to the discretion of an
NBCi Product Manager, during the Term, NBCi shall
promote and link the Health Channel within and
throughout the NBCi Sites. Subject to the discretion
of an NBCi Product Manager, the Company may receive
internal promotional links within relevant sub-areas
of the NBCi Sites that link to the Co-Branded Site or
Company Site. Such relevant sub-areas may include,
without limitation, the following: Shopping, Local,
Education, Kids and Family. NBCi, in its sole
discretion, has the right to create, maintain or
discontinue any of the foregoing sub-areas on the
NBCi Sites. In addition, NBCi may include a link to
the Health Channel, Company Site and/or the
Co-Branded Site within issues of a Wire, as
determined by NBCi in its sole discretion.
20. A new Section 4.6 is added to read as follows:
4.6 COMPANY LOGO. NBCi shall provide a clickable Company
logo on the Health Content Portals that shall link to
the Corporate Home Page or another mutually agreed
upon page or URL operated by the Company.
21. A new Section 4.7 is added to read as follows:
4.7 NBCi INTERACTIVE NEIGHBORHOOD CITY CENTER LINKS. As
mutually agreed by the parties, NBCi shall create
links within each applicable NBCi Interactive
Neighborhood City Center on the NBCi Sites to the
appropriate Company Choice Partner Program Web sites.
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22. A new Section 4.8 is added to read as follows:
4.8 ANCHOR TENANCY SPONSORSHIPS. On a case-by-case basis,
NBCi may allow the Company to sell select
sponsorships within the Anchor Tenancy areas on the
NBCi Health Channel described in Section 4.1. NBCi
shall have the right, in its sole discretion, to
approve said sponsors.
23. A new Section 4.9 is added to read as follows:
4.9 SPONSORSHIPS ON CHOICE HOSPITAL SITES. On a
case-by-case basis, NBCi agrees to review potential
sponsorship opportunities (such as co-branded NBCi
home pages) on selected CHOICE hospital sites, at a
mutually agreeable rate to be determined on a
site-by-site basis.
24. A new Section 4.10 is added to read as follows:
4.10 ADDITIONAL COMPANY PRODUCT CONCEPTS. The Company
agrees to produce the product concepts set forth on
EXHIBIT G if NBCi, in its sole discretion, desires to
include such new and/or expanded offerings from the
Company in the NBCi Health Channel, up to a maximum
cost to the Company of $1,834,000 in Year Two, and up
to $2,000,000 in Year Three, at the Company's then
current consulting rates, plus any applicable content
licensing fees.
25. A new Section 5.9 of the Strategic Alliance Agreement is
revised to read as follows:
5.9 DISCONTINUANCE OF CO-BRANDED SITE. Upon the full
implementation of the NBCi Design Template on the
Company Site as described in Section 3.9, the
Co-Branded Site shall be discontinued and the
provisions of this Section 5 shall be of no further
effect.
26. Section 7 of the Strategic Alliance Agreement is revised to
read as follows:
7. NBC ON-AIR PROMOTION. During Year One, NBCi will
create and run a series (i.e., no less than two) of
dedicated thirty-second NBCi television
advertisements which air during morning or daytime
programs appearing on the NBC Television Network,
local television stations or cable services for
health, wellness and/or medicine related content
areas on the NBCi Sites (the "Spots"). NBCi agrees
that Self Care and the Company will be featured in
the Spots, in NBCi's discretion, through either (i) a
promotional tag (meaning a text or graphic promoting
the Self Care and Company brands or services) of at
least four seconds appearing at the end
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of such Spots, or (ii) an integrated sales message
within the body of such Spots which at a minimum will
consist of a voice over of at least four seconds in
length regarding the Self Care and Company brands or
services. NBCi shall have sole discretion regarding
the form and content of such advertisements but will
consult with the Company regarding how the Company's
brand or services will be featured in the Spots.
Beginning no less than thirty days following the
Effective Date and continuing throughout the rest of
Year One, the Spots will run an average of six times
per month. The Company acknowledges that all
placement of brands or services within the Spots, as
well as the Spots themselves, will be subject to the
NBC Advertising Standard Terms and Conditions as well
as the Advertising Standards set by NBC Broadcast
Standards and Practices, and NBCi will have no right
or power to cause NBC to make any exception thereto
for the Company or the Spots. The Company
acknowledges that neither NBCi nor NBC makes any
guarantee regarding what the actual rating for any
particular Spot will be and, therefore, will not be
obligated to provide any make-goods hereunder.
27. Section 8.1 of the Strategic Alliance Agreement is revised to
read as follows:
8.1 DATA OWNERSHIP. NBCi will be the sole owner of any
information that NBCi collects from Users through the
NBCi Sites. The Company and NBCi shall jointly own
any information collected from Users through the
Co-Branded Site. The Company and NBCi shall jointly
own any information collected from Users through the
Company Site, with the exception of information
collected from Users on the Corporate Home Page or
the Company's Choice Partner Program Web site or any
other pages as mutually agreed upon by the parties,
which information shall be solely owned by the
Company. Further, if a User whose User Profile Data
is contained in the Company Database receives an
email from NBCi pursuant to SECTION 8.4 and purchases
products offered in such email through NBCi or an
affiliated Web site, then the User Profile Data for
such User shall be owned jointly by NBCi and the
Company from and after the time of such purchase.
28. Section 8.2 of the Strategic Alliance Agreement is revised to
read as follows:
8.2 USE OF INFORMATION AND CONFIDENTIALITY. Each party
will have the right to use any information provided
by the other party pursuant to Section 11 subject to
the confidentiality restrictions set forth in Section
17.5. Notwithstanding the foregoing, all data
collected from Users through the Co-Branded Site
and/or Company Site will be subject to the then
current privacy policy of NBCi, unless specifically
made subject to the terms of the Company privacy
policy; provided that in such cases the Company's
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privacy policy with respect to NBCi's access to, and
use and disclosure of, data collected from such Users
may not be more restrictive than the then-current
privacy policy of NBCi.
29. Section 9.2 of the Strategic Alliance Agreement is revised to
read as follows:
9.2 ANCHOR TENANCY FEES. The Company will pay NBCi a
$7,500,000 fee for the Anchor Tenant positions on the
Health Channel during Year One (the "Year One AT
Fee"). $5,000,000 of the Year One AT Fee shall be
payable in Common Stock of the Company as further
provided in SECTION 9.8 and pursuant to the parties'
November 3, 1999 and January 18, 2000 Stock Purchase
Agreements. The balance of the Year One AT Fee shall
be payable in cash on the day which is thirty days
after the Initial Registration Date. Payments of the
Year One AT Fee shall be non-refundable except as
provided in SECTION 10.6. For the Anchor Tenant
positions on the Health Channel during Year Two, the
Company will pay NBCi $5,666,666 in five payments to
NBCi, with the first payment in the amount of
$166,666 being due on December 1, 2000, and the
remaining amount to be paid in four equal
installments of $1,375,000 each on the first day of
each calendar quarter beginning January 1, 2001. For
the Anchor Tenant positions on the Health Channel
during Year Three, the Company will pay NBCi
$5,500,000 in four equal installments of $1,375,000
each on the first day of each calendar quarter
beginning January 1, 2002.
30. Section 9.3 of the Strategic Alliance Agreement is revised to
read as follows:
9.3 MEDIA FEES. The Company will also pay NBCi a
$7,500,000 fee for all Impressions NBCi delivers
during Year One pursuant to SECTION 3.3 (the "Year
One Media Fees"). $5,000,000 of the Year One Media
Fees shall be payable in Common Stock of the Company
as further provided in SECTION 9.8 and pursuant to
the parties' November 3, 1999 and January 18, 2000
Stock Purchase Agreements. The balance of the Year
One Media Fees shall be payable in cash on the day
which is thirty days after the Initial Registration
Date. Payments of the Year One Media Fees shall be
non-refundable except as provided in SECTION 10.6.
31. Section 9.5 of the Strategic Alliance Agreement is revised to
read as follows:
9.5 [deleted by agreement of the parties]
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32. The first sentence of Section 9.8 of the Strategic Alliance
Agreement is revised to read as follows:
9.8 As provided in SECTION 9.2 and SECTION 9.3,
$5,000,000 of the Year One AT Fee and $5,000,000 of
the Year One Media Fee shall be payable to NBCi in
shares of the Company's Common Stock (the "Shares")
pursuant to the parties' November 3, 1999 and January
18, 2000 Stock Purchase Agreements.
33. Section 10.7 of the Strategic Alliance Agreement is revised to
read as follows:
10.7 CONSEQUENCES OF TERMINATION. Upon the termination or
expiration of this Agreement, all licenses granted
hereunder shall immediately terminate and each party
shall return or destroy all Confidential Information
of the other party in its possession. In addition, in
the event this Agreement is terminated pursuant to
SECTION 10.2 and/or 10.3, then all monies paid by the
Company to NBCi hereunder prior to the termination
shall be deemed non-refundable except as expressly
stated otherwise in this Agreement. Finally, in the
event this Agreement is terminated by NBCi only
pursuant to SECTION 10.2 and/or SECTION 10.3
(excluding termination for Company's failure to
maintain the Company Site, Company Content or the
Co-Branded Site as Best of Breed pursuant to SECTION
3.5), or in the event the Company requests that the
parties renegotiate the Agreement or the Amendment,
then the Company shall continue to pay 55% of all
fees payable by the Company to NBCi during the
remainder of the Term as liquidated damages. Such
payments shall be due and payable on the dates they
would have been due and payable if the termination or
renegotiation had not occurred. The Company
acknowledges that NBCi has entered into this
Amendment at Company's request. The parties
acknowledge and agree that it would be impractical to
estimate the amount of any damages that could arise
out of any material breach of this Agreement or
termination pursuant to SECTION 10.2 and/or SECTION
10.3, or out of any request for renegotiation by the
Company, and agree that the amount of liquidated
damages described above is a reasonable estimate of
the actual damages that NBCi would suffer and incur
as a result of such breach or termination of this
Agreement or request for renegotiation. No party
shall be liable to the others for damages of any sort
resulting solely from terminating this Agreement in
accordance with its terms.
34. Section 11.2 of the Strategic Alliance Agreement is revised to
read as follows:
11.2 COMPANY REPORTS. Within 15 days after the end of each
month during the Term, the Company will provide to
NBCi a complete and detailed report that includes, at
a minimum, for such month: (i) the total page views
on the Co-Branded Site and Company Site, (ii) the
total number of Click Thrus delivered for such month
and the aggregate number of Click Thrus
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delivered since the beginning of the Contract Year
containing such month, (iii) the total payment due
NBCi from the Company, if any, pursuant to SECTION
9.5, (iv) the number of unique Users to the Company
Site and/or Co-Branded Site from the Health Channel,
(v) the number of Users and User Profile Data for
Users who click through from the NBCi Sites or a link
generated by the flyswat software to the Company Site
and/or the Co-Branded Site, (vi) the number of Users
and User Profile Data for Users who click through
from the NBCi Sites or a link generated by the
flyswat software to the Company Site and/or the
Co-Branded Site and order Company Products and (vii)
the aggregate statistical and demographic
characteristics of Users in (iv), (v) and (vi). NBCi
will tag each User of the Co-Branded Site originating
from the NBCi Sites or clicking through from a link
generated by the flyswat software using a cookie or
other similar technology to assist the Company in
obtaining the foregoing data.
35. Section 12.1 of the Strategic Alliance Agreement is revised to
read as follows:
12.1 COMPANY MARKS AND CONTENT. The Company hereby grants
to NBCi and its subsidiaries a non-exclusive,
non-transferable, royalty-free license, effective
throughout the Term, to use, display and publish the
Company Marks and Company Content solely as permitted
hereunder in any medium or through any technology now
known or hereafter devised; provided, however, that
this license shall not apply to any Company Mark that
is licensed by the Company from any third party to
the extent that the grant of this license to NBCi or
its subsidiaries is prohibited by a contractual
obligation to such third party which is disclosed in
writing to NBCi prior to the Effective Date. In the
event the Enhanced Sites and/or the International
Editions are deemed included within this Agreement
pursuant to Section 6.2, the Company hereby further
grants to NBCi and its subsidiaries a non-exclusive,
non-transferable, royalty-free license, effective
throughout the Term, to modify and create derivative
works of the Company Content solely as permitted
hereunder. In the event the International Editions
are deemed included within this Agreement pursuant to
Section 6.2, the Company shall in good faith modify
the Company Marks to incorporate changes reasonably
suggested by NBCi for the relevant target audience
(e.g., complying with local laws or avoiding the use
of offensive terms in the local language). Any use of
the Company Marks or the Company Content by NBCi must
comply with any reasonable usage guidelines
communicated by the Company to NBCi from time to
time. Nothing contained in this Agreement will give
NBCi any right, title or interest in or to the
Company Content, the Company Marks or the goodwill
associated therewith, except for the limited usage
rights expressly provided above. All use of the
Company Marks by NBCi will inure to the benefit of
and be on behalf of the Company. NBCi
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acknowledges and agrees that the Company is the sole
owner of all rights in and to the Company Marks and
the Company Content. NBCi will do nothing
inconsistent with such ownership, including (a)
attacking the title of the Company to the Company
Marks or the validity of the licensed Company Marks,
(b) attempting to register the Company Marks alone or
as part of its own trademark, or (c) using or
attempting to register any marks confusingly similar
to the Company Marks.
36. Section 12.2 of the Strategic Alliance Agreement is revised to
read as follows:
12.2 NBCi MARKS. NBCi hereby grants to the Company a
non-exclusive, non-transferable, royalty free
license, effective throughout the Term, to use,
display and publish the NBCi Marks solely within the
Company Sites and Co-Branded Site as permitted
hereunder. Any use of the NBCi Marks by the Company
must comply with any reasonable usage guidelines
communicated to the Company by NBCi from time to
time. Nothing contained in this Agreement will give
the Company any right, title or interest in or to the
NBCi Marks or the goodwill associated therewith,
except for the limited usage rights expressly
provided above. All use of NBCi Marks by the Company
will inure to the benefit of and be on behalf of
NBCi. The Company acknowledges and agrees that, as
between the Company and NBCi, NBCi and its licensors
are the sole owners of all rights in and to the NBCi
Marks. The Company will do nothing inconsistent with
such ownership, including (a) attacking the title of
NBCi and its licensors to the NBCi Marks or the
validity of the licensed NBCi Marks, (b) attempting
to register NBCi Marks alone or as part of its own
trademark, or (c) using or attempting to register any
marks confusingly similar to NBCi Marks.
37. Section 12.3 of the Strategic Alliance Agreement is revised to
read as follows:
12.3 [deleted by agreement of the parties]
38. Section 16.3 of the Strategic Alliance Agreement is revised,
and a new Section 16.4 is added to the Agreement, to read as
follows:
16.3 INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify, defend and hold each of NBCi and its
subsidiaries harmless from and against any Losses
that NBCi or its subsidiaries may suffer, incur or be
subjected to by reason of any legal action,
proceeding, arbitration or other claim by a third
party, whether commenced or threatened, arising out
of or as a result of (i) the use of Company Content
by NBCi in accordance with this Agreement; (ii) the
operation of the Company Site or the Co-Branded Site;
(iii) the use of any word as a Keyword to trigger a
Keyword Promotion; (iv) the offer or sale of
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Company Products by the Company on or through the
Company Site, or the Co-Branded Site or any emails
sent by NBCi or a third party pursuant to SECTION
8.4, or (v) the authorized and legal use of the
Company Database.
16.4 INDEMNIFICATION BY NBCi. NBCi shall indemnify, defend
and hold each of the Company and its subsidiaries
harmless from and against any Losses that the Company
or its subsidiaries may suffer, incur or be subjected
to by reason of any legal action, proceeding,
arbitration or other claim by a third party, whether
commenced or threatened, arising out of or as a
result of the operation of the NBCi Sites (except in
cases where the Company is required to indemnify NBCi
under Section 16.3).
39. Section 17.1 of the Strategic Alliance Agreement is revised to
read as follows:
17.1 PROMOTION OF NBCi SITES. The Company may accept
advertising from other portals or search engines. If
the Company accepts advertising from other portals or
search engines, and the Company promotes such portals
or search engines within a "partner" area of the
Company Site, then the Company shall display the NBCi
Marks on such area of the Company Site at least as
prominently as such portal or search engine entity.
The Company shall ensure that the NBCi Marks on the
Company Site link to the Health Channel.
40. Section 17.2 of the Strategic Alliance Agreement is revised to
read as follows:
17.2 ASSIGNMENT. Except as provided in this Section 17.2,
neither party shall assign any of its rights under
this Agreement nor delegate any of its duties
hereunder to another person or legal entity without
the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided,
however, that if the assignee of the Company is a
Competitor, NBCi shall have the right to withhold its
consent to such assignment in its sole discretion.
NBCi shall have the right to assign all of its rights
and liabilities hereunder to an affiliate and either
party shall have the right to assign all of its
rights and liabilities hereunder to any person or
entity, other than a Competitor in the case of the
Company, that (i) acquires all or substantially all
of the party's operating assets (whether by asset
sale, stock sale, merger or otherwise) or (ii)
results from a merger or reorganization of the party
pursuant to any plan of merger or reorganization.
This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective
trustees, successors, permitted assignees, and legal
representatives.
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41. Section 17.3 of the Strategic Alliance Agreement is revised to
read as follows:
17.3 RELATIONSHIP OF PARTIES. The parties hereto are
independent contractors and nothing contained in this
Agreement will be construed to create a joint
venture, partnership or the relationship of principal
and agent between any of the parties hereto, nor to
impose upon either party any obligations for any
losses, debts or other obligations incurred by the
other party except as expressly set forth herein.
42. Section 17.13 of the Strategic Alliance Agreement is revised
to read as follows:
17.13 NOTICES. All notices given pursuant to this
Agreement, shall be in writing, in English, shall be
sent by certified or registered air mail with postage
prepaid, return receipt requested, by facsimile,
overnight express mail, or by hand delivery. Such
communications shall be deemed given and received
upon confirmation of receipt, if sent by facsimile;
the day after delivery if by overnight express mail;
or upon delivery if hand delivered; or upon receipt
of mailing, if sent by certified or registered mail;
and shall be addressed to the parties as set forth
above on the first page of this Agreement, or to such
other addresses as the parties may designate in
writing from time to time.
43. A new Section 17.16 is added to read as follows:
17.16 NATURE OF AGREEMENT. The parties agree that this
Agreement is a lease agreement for internet space and
that both parties have obligations under this
Agreement. The obligations are such that the failure
of either party to perform their respective
obligations would constitute a material breach of the
Agreement. If the Bankruptcy Courts were to review
the nature of this Agreement, both parties agree that
it would be considered an executory contract and/or
unexpired lease under Section 365 of the Bankruptcy
Code, 11 U.S.C et. seq., unless the Agreement is
terminated prior to the filing of a petition for
bankruptcy relief.
44. A new Section 17.17 is added to read as follows:
17.17 SEVERABILITY. In the event any provision of this
Agreement shall be held to be unenforceable in any
jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such
unenforceability; but the remaining provisions of
this Agreement shall remain in full force and effect,
and any such unenforceability in any jurisdiction
shall not invalidate or render unenforceable such
provision in any other jurisdiction. The parties
shall use their best efforts to replace the provision
that is
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unenforceable with an enforceable provision
approximating to the extent possible the original
intent of the parties.
45. Section 17.3 of the Strategic Alliance Agreement is revised to
read as follows:
18.5 CONFIDENTIALITY. In connection with the activities
contemplated by this Agreement, each party may have
access to confidential or proprietary technical or
business information of another party, including
without limitation (i) proposals, ideas or research
related to possible new products or services; (ii)
financial statements and other financial information;
(iii) any reporting information in Section 12; and
(iv) the terms of this Agreement, any Amendments
hereto, and the relationship between the parties
(collectively, "Confidential Information"). Each
party will take reasonable precautions to protect the
confidentiality of each of the other party's
Confidential Information, which precautions will be
at least equivalent to those taken by such party to
protect its own Confidential Information. Except as
required by law or as necessary to perform under this
Agreement, no party will knowingly disclose the
Confidential Information of any other party or use
such Confidential Information for its own benefit or
for the benefit of any third party. Each party's
obligations in this Section with respect to any
portion of another party's Confidential Information
shall terminate when the party seeking to avoid its
obligation under such Section can document that: (i)
it was in the public domain at or subsequent to the
time it was communicated to the receiving party
("Recipient") by the disclosing party ("Discloser")
through no fault of Recipient; (ii) it was rightfully
in Recipient's possession free of any obligation of
confidence at or subsequent to the time it was
communicated to Recipient by Discloser; (iii) it was
developed by employees or agents of Recipient
independently of and without reference to any
information communicated to Recipient by Discloser;
(iv) it was communicated by the Discloser to an
unaffiliated third party free of any obligation of
confidence; or (v) the communication was in response
to a valid order by a court or other governmental
body, was otherwise required by law or was necessary
to establish the rights of either party under this
Agreement; provided, however, the each party shall
use its best efforts to maintain the confidentiality
of all Confidential Information with regard to any
communications or filings with any court or
governmental agency relating to this Agreement, or
any Amendment hereto.
46. A new EXHIBIT E of the Strategic Alliance Agreement is added
to read as attached to this Amendment.
47. A new EXHIBIT F of the Strategic Alliance Agreement is added
to read as attached to this Amendment.
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48. A new EXHIBIT G of the Strategic Alliance Agreement is added
to read as attached to this Amendment.
49. A new EXHIBIT H of the Strategic Alliance Agreement is added
to read as attached to this Amendment.
C. PRESS RELEASE. The Company will not make any public statement or other
announcement (including without limitation, issuing a press release or
pre-briefing any member of the press or other third party) relating to the
terms or existence of this Amendment without the prior written approval of
NBCi. Notwithstanding the foregoing and Section 18.5, the Company may issue
the press release relating to this Amendment that has been agreed upon by the
parties prior to the execution of this Amendment and which is attached hereto
as Exhibit H; provided, however, that such press release shall only be issued
one time and at the close of trading on Friday, September 01, 2000, and
through the channels agreed upon in writing by the parties. Moreover, the
Company shall NOT INCLUDE NBCi's stock ticker symbol in the press release,
and shall advise the business wire not to include either NBCi's or GE's stock
ticker symbols in the body of its transmission of the press release or in the
associated coding.
D. SEC FILINGS. Pursuant to section 18.5, in the event that the Company is
required by law to disclose the Amendment or terms thereof to the United States
Securities and Exchange Commission or other governmental or regulatory agencies,
the Company shall use its best efforts to redact the financial and related,
terms of the Amendment from such disclosures or filings
E. LIQUIDATED DAMAGES. In the event of Company's breach of Section C or D of
this Amendment, Company shall pay to NBCi, 55% of the full value of the
Agreement as liquidated damages. Company acknowledges and agrees that it would
be impractial to estimate the amount of any damages to NBCi that could arise out
of Company's breach of Sections C and D of this Amendment and agrees that this
amount is a reasonable estimate of the actual damages that NBCi would suffer and
incur as a result of Company's breach of Section C or D of this Amendment.
F. Except as amended by this Amendment, the Strategic Alliance Agreement will be
and remain in full force and effect in accordance with its terms. Capitalized
terms used in this Amendment will be as defined in the Strategic Alliance
Agreement unless expressly defined in this Amendment.
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IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as
of September 1, 2000.
SNAP! LLC HEALTHGATE DATA Corp.
By: Jim Scheinman By: Rick Lawson
-------------------------------- -------------------------------
Printed Name: Jim Scheinman Printed Name: Rick Lawson
---------------------- ----------------------
Title: Sr. VP, Business Development Title: Vice President & Secretary
----------------------------- -----------------------------
Date: 9/1/00 Date: 9/1/00
------------------------------ ------------------------------
XOOM.COM, INC. NBC INTERNET, INC.
By: Jim Scheinman By: Jim Scheinman
-------------------------------- --------------------------------
Printed Name: Jim Scheinman Printed Name: Jim Scheinman
---------------------- ----------------------
Title: Sr. VP, Business Development Title: Sr. VP, Business Development
----------------------------- -----------------------------
Date: 9/1/00 Date: 9/1/00
------------------------------ -------------------------------
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