EXECUTION COPY
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THIS AGREEMENT ("Agreement") is made and effective as of September 27, 1999 (the "Ef
fective Date") by and between AltaVista Company, a
Delaware corporation with principal business offices at 529 Bryant Street, Palo Alto, California 94301 (together with its Affiliates, "AltaVista"), and HealthCentral.com, Inc., a California corporation wi
th principal business offices at 6001 Shellmound St., Suite 800, Emeryville, California 94608 ("HealthCentral").
--------
WHEREAS, HealthCentral is the owner and provider of health related Web sites, which provide
access to health content and information appearing on the Internet at www.HealthCentral.com. For purposes of this Agreement, HealthCentral Content, as defined herein, shall appear on Web pages on the AltaVista Platforms, as defined herein, with both AltaV
ista brand features and HealthCentral brand features; and
WHEREAS, as used in this Agreement, "Web" refers to the World Wide Web, that part of the Internet designed to allow easier navigation of the network of computers through the use of graphical us
er interfaces and hypertext links between different addresses. A "Web page" or "page" or a "Web site" permits an end user to view and interact with companies on the Web by displaying the content through the aforementioned graphical interfaces. "Internet"
means a global network of interconnected computer networks, each using the Transmission Control Protocol/Internet Protocol and/or such other standard network interconnection protocols as may be adapted from time to time; and
WHEREAS, AltaVista also ma
intains and/or manages certain Web pages which may be delivered to users worldwide via email, desktop "channels" or Internet "push" technologies which may incorporate content supplied by AltaVista by third parties for the purpose of providing value to Alt
aVista users and providing access to the content, products and/or services of such third parties; and
WHEREAS, AltaVista is also in the business of developing Web-page platforms, providing Web-based search capabilities, and developing and serving other Web sites on behalf of its customers and business partners; and
WHEREAS, AltaVista and its Affiliates customarily enter into third party agreements that provide for customization of one or more AltaVista Platforms. The customized AltaVista Platform
s may be branded using third parties' names, or co-branded with any combination of AltaVista's, AltaVista's Affiliates and third parties' names. Pursuant to the terms and conditions of this Agreement, through the process of AltaVista Platforms customizati
on, any amount of content, advertising or other features may be modified, added or deleted; and
CERTAIN INFORMATION ON THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WHEREAS, AltaVista desires to license the HealthCentral Content from HealthCentral for its AltaVista Platforms and AltaVista and HealthCentral wish to distribute the Content through one or more AltaVista Platforms.
NOW THEREFORE, in consideration of the agreements, covenants and conditions set forth herein, intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Whenever used in this Agreement, the following terms will have the following specified meanings:
1.1 "Above the Fold" means situated within the portion of a page that is designed to be visible on a standard computer screen at a resolution of [*] (such resolution to be updated by AltaVista at its sol
e discretion in good faith and to be consistent with the design of the AltaVista Platform throughout the Term as appropriate) without requiring the user to scroll horizontally or vertically through the page.
1.2 "Advertising Impression" means (i) a banner or other GIF advertisement for HealthCentral and/or any of its Affiliates; (ii) a Text Link Advertisement to the HealthCentral Site; or (iii) a Contextual Advertising Unit.
1.3 "Affiliate" means, with respect to a party, any Person that, directly or indirectly, Controls, or is Controlled by, or is under common Control with, such party.
1.4 "AltaVista Health Channel" means that area of the AltaVista Platform that is accessed from the "Health" link (or other comparable link
regardless of name that provides access to the AltaVista Health Channel) on the AltaVista Platform Home Page.
1.5 "AltaVista Health Channel Home Page" means with respect to the AltaVista Health Channel, the first page that is displayed to the user within the Channel.
1.6 "AltaVista Marks" means the AltaVista trademarks, service marks, logos and domain names.
1.7 "AltaVista Platform" means a generic set of domestic Web pages, and any domestic Mirror Site, that may also f
unction together as a Web site. The AltaVista Platforms may contain any or all of the following domestic sites: an Internet index, a search tool, advertising, or any other feature that might be desirable on a Web homepage. As used herein, the term "AltaV
ista Platforms" shall include generic and customized AltaVista Platforms, including but not limited to domestic sites and channels, such as an AltaVista.com, My AltaVista, AV.com, Microav.com, the AltaVista Channels, My AV, Shopping.com and Zip2.com.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
1.8 "AltaVista Search Results Page" means the page on the AltaVista Platform containing the results of a search query entered by a User.
1.9 "AltaVista Platform Home Page" means with respect to the AltaVista Platform, the page that is displayed to the user when the URL www.altavista.com is entered.
1.10 "Co-Branded Page" means a Web page that has HealthCentral Content and/or the Health Central Mark in the Masthead.
1.11 "Contextual Advertising Unit" means an advertisement whose subject matter is relevant to the content to which it is adjacent and that links to a relevant page on the HealthCentral Site.
1.12 "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether by contract or through th
e ownership of voting securities, including the ownership of more than fifty percent (50%) of the equity, partnership or similar interest in such Person.
1.13 "Damages" means judgments, losses, deficiencies, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses).
1.14 "HealthCentral Competitors" means the companies listed on Schedule 1.14 which are directly competitive to the business of HealthCentral. - -------------
1.15 "HealthCentral Content" means the content set forth on Schedule
-------- 1.15, as may be amended from time to time by mutual agreement of the Parties. - ----
1.16 "HealthCentral Mark" means the mark set forth on Schedule 1.16.
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1.17 "HealthCentral Site" means the site currently located at healthcentral.com any healthcentral.com networ
k sites, any Mirror Site and any site owned or controlled by HealthCentral or its Affiliates that provides health related content and/or information.
1.18 "including" or "include," when used herein, shall be deemed to be followed by the words "without limitation."
1.19 "Masthead" means the top area of each page within the AltaVista Health Channel containing the branded name for the Channel. An example of the current Masthead is set forth on Schedule 1.19.
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1.20 "Mirror Site" means an Internet site that (a) contains the exact form and content of a site, (b) is located at a geographic location distinct from a site, and (c) is created for the purpose of improving the performance of
and accessibility to a site.
1.21 "Other AltaVista Channels" means channels other than the Health Channel on the AltaVista Platform that, in AltaVista's sole discretion, relate to health, including but not limited to, children, family, sports,
fitness, nutrition, men and women.
1.22 "Party" or "Parties" means each of AltaVista and any of its Affiliates and HealthCentral and any of its Affiliates.
1.23 "Person" means any individual, corporation, partnership, limited liability company, trust, association or other entity or organization, including any governmental or political subdivision or any agency or instrumentality thereof.
1.24 "Search Partner Tile" means an advertisement on the AltaVista Search Results Page of approximately 88 pixels by 31 pixels.
1.25 "Start Date" means the earlier of (a) launch of the AltaVista Health Channel and (b) January 15, 2000.
1.26 "Term" shall have the meaning set forth in Section 10.1.
1.27 "Text Link Advertisement" means a text link on the AltaVista Platform that is not located or placed within any health content provided by HealthCentral.
1.28 "Third Party" means any Person that is not a party hereto or a wholly owned Affiliate of a party hereto.
1.29 "User Data" means all data entered by a user or otherwise relating to a user's experience on a site, including demographic data and e- commerce activity.
ARTICLE II
CO-BRANDING AND DESIGN
2.1 Masthead. HealthCentral hereby grants to AltaVista a non-
-------- exclusive, worldwide, royalty free, license for the Term to incorporate the HealthCentral Mark within the Masthead. AltaVista shall display the Masthead on every page of the AltaVista Health Channel; provided, however, that the
-------- HealthCentral Mark shall only be included in the Masthead with respect to all AltaVista Health Channel page
s that feature HealthCentral Content. [*] on the design of the Masthead, and the incorporation of the HealthCentral Mark within the Masthead.
2.2 Channel Design. During the Term of this Agreement, [*]
-------------- the visual a
ppearance of (a) the AltaVista Health Channel Home Page and (b) any page within the AltaVista Health Channel containing HealthCentral Content; provided, however, AltaVista shall in good faith make the final determination - -------- with respect to design
decisions (except the initial design), and AltaVista shall make reasonable efforts that such design shall be consistent with the rest of the AltaVista Platform.
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
2.3 Return Links. HealthCentral shall display a return link,
------------ subject to design specifications, to the AltaVista Health Channel on: (a
) all pages of the HealthCentral Site viewed by a user who originated from a page on the AltaVista Health Channel; and (b) any and all subsequent pages of the HealthCentral Site viewed by such user. Such link shall return the user to the page on the AltaV
ista Health Channel from which the user initially linked to the HealthCentral Site. The parties shall agree on the minimum size of such return link.
ARTICLE III
USE OF HEALTHCENTRAL CONTENT
3.1 Grant of License. HealthCentral hereby grants to AltaVista a
---------------- non-exclusive, worldwide, royalty free license for the Term, to display and distribute the HealthCentral Content on the AltaVista Health Channel, and to
make such copies as are necessary to make such display and distribution. HealthCentral shall have the obligation, at its own expense, to obtain all necessary Third Party rights and licenses to make the foregoing grant of rights to AltaVista.
3.2 Transmission and Timeliness of Content. The protocols for
-------------------------------------- transmitting the HealthCentral Content from HealthCentral to AltaVista are set forth on Schedule 3.2. HealthCentral shall ensure that substantially all of the
------------ HealthCentral Content is delivered on a timely basis such that AltaVista is in possession of the HealthCentral Content, (a) prior to such HealthCentral Content being provided to any Third Party, and (b) [*] after su
ch HealthCentral Content is displayed on the HealthCentral Site.
3.3 Use of Content. AltaVista shall cooperate with HealthCentral
-------------- regarding the placement and use of the HealthCentral Content, provided that
-------- AltaVista shall make the final determination regarding any Content placement and use issues. AltaVista shall have no obligation to use every item of the HealthCentral Content, and may edit i
ndividual HealthCentral Content items in its sole discretion within the guidelines of Schedule 3.3 (which shall be
------------ updated and mutually agreed among the Parties every ninety (90) days throughout the
Term of this Agreement) in order to meet AltaVista Platform format requirements; provided, however, AltaVista shall have the right to edit the headlines and develop abstracts and summaries of any HealthCentral Content.
3.4 Editorial Control of the Content. HealthCentral shall have
-------------------------------- complete editorial control over the topics covered by, and creation of, the HealthCentral Content, provided that AltaVista shall have reasonable input into
-------- the selection of topics covered by HealthCentral.
3.5 Archive. During the Term, and subject to the terms of any Third
------- Party
Content License Agreementswith HealthCentral, AltaVista shall have the right
to archive any of the HealthCentral Content including current and future, provided by HealthCentral to AltaVista hereunder, as provided in Schedule 3.3,
------------ and to provide users wit
h the ability to search for and retrieve HealthCentral Content that was previously displayed on the AltaVista Health Channel. AltaVista shall destroy such archived content promptly following the expiration or termination of
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
this Agreement. AltaVista shall promptly comply with any good faith request by HealthCentral to remove archived HealthCentral Content as necessary for HealthCentral to comply with its Third Party agreements.
3.6 Content Quality. HealthCentral shall use reasonable efforts to
--------------- ensure that, throughout the Term, the quality
of the HealthCentral Content is comparable to the content offered on the sites of the HealthCentral Competitors (including, timeliness,); provided that the quality of the HealthCentral Content shall always be at least as high as it exists as of the Effec
t
ive Date. HealthCentral acknowledges that a breach of this Section 3.6 shall give AltaVista a right to terminate this Agreement; provided, however, that HealthCentral may have an opportunity to cure such breach within seventy five (75) days after receivin
g a termination notice from AltaVista.
3.7 Exclusivity. HealthCentral shall be the exclusive health content
----------- provider for the AltaVista Health Channel and throughout the AltaVista Platform;
---------------------------------- provided that in the event that AltaVista requests health-related content not - -------- then-currently provided by HealthCentral, AltaVista shall provide HealthCentral with a reasonably detailed writte
n
description of the content requested ("Content Notice'). HealthCentral shall have a [*] to provide such content. In the event HealthCentral is unable to make such content available to AltaVista commencing on or before [*], AltaVista may obtain such conte
nt from a Third Party (including any of the HealthCentral Competitors listed on Schedule 1.14),
------------- and thereafter (i) HealthCentral shall have no further right to provide the content
requested in the Content Notice, and (ii) AltaVista shall have no further obligation to HealthCentral with respect to such content AltaVista shall in good faith use its reasonable efforts to integrate any content received from a Third Party into the Alta
Vista Health Channel consistent with the then current design of the AltaVista Health Channel.
In the event AltaVista creates, develops, and maintains additional channels with Third Parties within the AltaVista Platform, which contain health relat
ed content, AltaVista shall in good faith use its reasonable efforts to utilize content generated by HealthCentral for such other channels, unless such content is not substantially similar to the content offered by such Third Party.
AltaVista sh
all have the right to incorporate any and all headline health related news stories delivered to AltaVista by nationally or internationally recognized newspaper, news source, or media company, on the AltaVista Health Channel so long as such content is not
available by HealthCentral on a timely basis.
3.7 International Opportunities. The parties hereby acknowledge that
--------------------------- the terms and conditions of this Agreement shall relate only to the domestic versions o
f AltaVista Health Channel and the AltaVista Platform. However, as AltaVista develops and operates international Web sites or channels with respect to international content, information, search or otherwise, AltaVista shall in good faith use its reasonabl
e efforts to provide HealthCentral an opportunity to first negotiate the terms and conditions of a business relationship with the AltaVista entity or
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
division operating and/or developing such Web sites. In the event HealthCentral is not able to negotiate the terms and conditions with such AltaVista entity, HealthCentral shall have a
right of first refusal to at least match the terms and conditions and breadth and depth of content, including, but not limited to amount of content, timeliness of content, quality of writing, and topics covered, offered by a Third Party; provided, howeve
r
, if HealthCentral cannot at least match such terms, conditions, and content, the AltaVista entity or division operating and/or developing such international Web site may enter into an agreement with such Third Party. This Section 3.7 in its entirety is s
ubject to the approval of each AltaVista entity or division operating and/or developing any such Web sites and AltaVista shall use its best efforts to obtain such approvals within thirty (30) days of the Effective Date.
ARTICLE IV
HEALTHCENTRAL ADVERTISING
4.1 Contextual Advertising Units. Each Co-Branded Page on the
---------------------------- AltaVista Health Channel shall contain at least one Contextual Advertising
Unit. The design, size and placement of the Contextual Advertising Units shall be subject to mutual approval of the Parties; provided, that such Units shall
--------- always be displayed Above the Fold and that s
uch Units shall contain up to three links. These links may connect to any web site in the HealthCentral.com network. In addition, such links may contain at most one (1) sponsorship textual attribution with respect to only such sponsors name (i.e. "spons
ored by [name of company or name of brand]); provided, however, that such links shall
-------- not (i) be allowed to appear on the AltaVista Health Channel Home Page, and (ii) link directly to such sponsor. In connection
with any sponsorship textual attribution, (i) AltaVista shall every ninety (90) days during the Term of this Agreement provide a list of [*] that HealthCentral may not be allowed to sell any textual sponsorships to such sponsors and (ii) HealthCentral sh
all provide AltaVista with fourteen (14) days notification prior to any sponsorship placement of any and all sponsors in which HealthCentral intends to sell any textual sponsorships.
4.2 Allocation of Advertising Impressions During Term. AltaVista
------------------------------------------------- shall use its best efforts to display HealthCentral Advertising Impressions evenly on a monthly basis pursuant to the following schedule during the Term:
(a) During the first twelve months after the Start Date ("Year
1"), [*] Advertising Impressions;
(b) During the second twelve month period after the Start Date
("Year 2"), [*] Advertising Impressions; and
(c) During the third twelve month period after the Start Date
("Year 3"), [*] Advertising Impressions.
4.3 Allocation of Advertising Impressions Across the AltaVista
---------------------------------------------------------- Platform. - --------
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
(a) Year One. The guaranteed Advertising Impressions during
--------
Year 1, set forth in Section 4.2 above, shall be distributed
among the AltaVista Home Page, the AltaVista Search Results
Page, the AltaVista Health Channel, and Other AltaVista
Channels as follows:
AltaVista Home Page
-------------------
(i) Advertisement GIFS and text links: [*] impressions
AltaVista Search Results Page (when "Health" or health-
------------------------------------------------------
related keywords are included as a query):
-----------------------------------------
(i) Banners: [*] impressions
(ii) Search Partner Tiles: [*] impressions
AltaVista Health Channel:
------------------------
(i) Banners: [*] impressions
(ii) Contextual Advertising Units: [*] impressions
Other AltaVista Channels or Directories (categorized search
-----------------------------------------------------------
result listings):
-----------------
(i) Banners: [*] impressions.
(b) Year Two. The number and distribution of Advertising
--------
Impressions during Year 2 shall be [*] of those set forth
above in Section 4.3(a) for Year 1, subject to revision by
mutual agreement of the Parties.
(c) Year Three. The number and distribution of Advertising
----------
Impressions during Year 3 shall be [*] of those set forth
above in Section 4.3(b) for Year 2, subject to revision by
mutual agreement of the Parties.
4.4 Accounting. In determining the number of Advertising Impressions
---------- displayed by AltaVista pursuant to Section 4.2:
(a) A minimum of [*] of the Advertising Impressions shall be from
pages containing only one Advertising Impression;
(b) A maximum of [*] of the Advertising Impressions may be from pages
containing two Advertising Impressions;
[*]=CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
(c) A maximum of [*] of the Advertising Impressions may be from pages
containing three or more Advertising Impressions;
(d) Additional Advertising Impressions (beyond those permitted by
Sections 4.4(b) and (c) from pages with more than one Advertising
Impressions may not be credited towards the make up of any
shortfalls (as provided for in Section 7.3) or the Performance
Thresholds in Section 8.2.
(e) The inclusion of the HealthCentral Mark in the Masthead pursuant
to Section 2.1 shall not be counted as an Advertising Impression.
4.5 Location. All HealthCentral Advertising Impressions shall appear
-------- above the Fold.
4.6 Monitoring and Reporting; Reallocation. AltaVista shall monitor
-------------------------------------- the number of HealthC
entral Advertising Impressions, and provide written reports thereof, including number of impressions and number of visitors to HealthCentral, on a weekly basis, as appropriate, consistent with AltaVista's reporting policies. AltaVista and HealthCentral sh
a
ll mutually agree to on any plans to reallocate Advertising Impressions between banners and Contextual Advertising Units and to reposition Advertising Impressions within the AltaVista Platform, where available, as necessary in order to at least meet the r
equirements of Section 4.2 and maximize the performance hereunder.
4.7 Advertisin ...