Internet Gateway Service Agreement
THIS AGREEMENT is made on this [Date] (the “Effective Date”) BETWEEN HORIZON PUBLICATION LTD. (“Horizon”) a Company duly incorporated under the Companies Act and having its registered Office at [Address} AND SKYLINE NETWORK SERVICES {“Skyline”), a duly incorporated company having its registered office at [Address], WITNESSES as follows:
WHEREAS Horizon publishes, markets, and sells an electronic business and financial information service through which subscribers can access, display, search and retrieve business, financial and similar news and information from databases of content, currently called the Horizon Publications Library (the “Publications Library”), a section of the Horizon Interactive service. The Publications Library is published and accessible via the World Wide Web portion of the Internet, among other platforms and methods. Skyline owns or has the legal right to operate an electronic information service, more fully described and defined on Exhibit A (the “Skyline Service”). Skyline wants to offer customers of its Skyline Service the opportunity to access, display, and search and retrieve content from the Publications Library (the “Publications Library Content”) through or from the Skyline Service, and Horizon wants to grant Skyline the right to do so, all subject to the terms set forth in this Agreement. Therefore, Horizon and Skyline agree as follows:
1. SPECIFICATIONS; TESTING PROCEDURES:
(a) SPECIFICATIONS: In connection with all aspects of making access to, and displaying, searching and retrieval of, Publications Library Content available through the Skyline Service, Skyline shall comply with the terms of this Agreement and the then-current versions of the Horizon Publications Library Skyline Program Integration Toolkit (collectively, the “Specifications”), a copy of which Skyline acknowledges having received. In the event of a conflict or ambiguity between a term in this Agreement and the Specifications, the term in this Agreement shall prevail in meaning and interpretation and be deemed to reflect the agreement of the parties.
(b) TESTING PROCEDURES: Upon Skyline’s request, Horizon will provide Skyline with a reasonable amount of technical assistance, via telephone and during Horizon’s normal business hours, regarding the Specifications, capacity planning, links integration, and other matters that may be agreed to by Horizon. Prior to permitting any third party to access or receive any Publications Library Content through or from the Skyline Service, Skyline shall provide Horizon reasonable amounts of unrestricted access to the Skyline Service, at no charge to Horizon, for testing, and review to determine whether the Skyline Service and its access to, display of, and transmission and delivery of Publications Library Content complies with the Specifications and this Agreement (the “Testing Procedures”). If, in Horizon’ sole discretion, the Skyline Service successfully completes the Testing Procedures, Horizon shall promptly notify Skyline in writing of such successful completion. If theSkyline Service does not complete successfully the Testing Procedures, Skyline may alter or modify its access to, display of, or transmission or delivery of Publications Library Content and resubmit the Skyline Service for Testing Procedures. If for any reason the Skyline Service fails to complete successfully the Testing Procedures, Horizon shall have no obligation to appoint Skyline as an authorized marketing representative for the Publications Library, or to permit access to any Publications Library Content through or from the Skyline Service, and Horizon shall have no further obligations to Skyline hereunder.
(c) MODIFICATIONS: Horizon may, from time to time, make modifications to the Publications Library and/or the Specifications (“Modifications”). Horizon will deliver to Skyline reasonable advance notice of any Modifications and of any additional Testing Procedures required in connection therewith. Skyline, at its expense, shall use reasonable commercial efforts to make any necessary alterations to the Skyline Service to conform to such Modifications (“Skyline Alterations”), in accordance with a reasonable timetable specified by Horizon (the “Alteration Schedule”). Skyline shall make reasonable amounts of unrestricted access to the revised Skyline Service available to Horizon, at no charge to Horizon, for Testing Procedures to determine whether the Skyline Alterations conform to such Modifications and this Agreement. In no event will the Alteration Schedule require any Skyline Alterations and Testing Procedures to be completed in less than sixty (60) days after Skyline received the Alteration Schedule and Modifications. If Skyline is unable, after using reasonable commercial efforts, to make the necessary Skyline Alterations, or if such Skyline Alterations do not successfully complete the Testing Procedures, either party may terminate this Agreement pursuant to the terms in Section 9(d) of this Agreement.
2. CERTAIN DEFINITIONS:
(a) GATEWAY SERVICE CUSTOMER DEFINITION:
A “Skyline Service Customer” shall be defined as an individual (i.e., not a legal or juristic entity) who uses the Skyline Service.
(b) PUBLICATIONS LIBRARY SUBSCRIBER:
A “Publications Library Subscriber” shall be defined as any and each individual who is a Skyline Service Customer, who agrees to be legally bound by the DJ Subscription Agreement, and who obtains access to or uses any Publications Library Content through or from or in connection with or while using the Skyline Service.
(c) HORIZON SUBSCRIPTION AGREEMENT:
A copy of the standard Horizon Interactive Subscription Agreement for individual subscribers, as of the Effective Date, is attached as Exhibit B. Horizon shall have the right to amend or update the Horizon Subscription Agreement at any time in its sole discretion. Each time Horizon revises the Horizon Subscription Agreement during the Term, Horizon shall deliver a copy of the revision to Skyline prior to the effective date of such revision.
(d) COMMERCIAL AVAILABILITY DATE:
“Commercial Availability Date” shall be defined as the first date any portion of the Publications Library Content is first made commercially available to Skyline Service Customers through or from the Skyline Service.
3. RESPONSIBILITIES AS MARKETING REPRESENTATIVE:
(a) APPOINTMENT:
Upon notifying Skyline that the Skyline Service has successful completed the Testing Procedures, Horizon will appoint Skyline as a non-exclusive authorized marketing representative for the Publications Library Content through or from the Skyline Service. Skyline hereby accepts such appointment, and agrees to use commercially reasonable efforts to promote and market Publications Library Content to customers of the Skyline Service, and cause Skyline Service Customers to become Publications Library Subscribers.
(b) NON-EXCLUSIVE APPOINTMENT:
Nothing in this Agreement shall in any way limit Horizon’ right to appoint other authorized marketing representatives for the Publications Library, or to locate and contract with Publications Library customers through its own direct efforts.
(c) EQUIPMENT AND COMMUNICATIONS LINES:
Skyline shall acquire, install, operate and maintain, at its expense, all equipment, computers, software, communications lines (if any), services and related technology necessary to perform this Agreement and permit Skyline Service Customers to use, access, display, search and retrieve Publications Library Content in accordance with the Specifications and this Agreement.
(d) PROMOTIONAL MATERIALS:
Skyline shall not use, publish or distribute, or cooperate with any third party or use, publish, or distribute, any press releases, or promotional, sales or advertising material (collectively,” Materials”) regarding the Publications Library, or this Agreement, or containing the marks Horizon, The Yellow Page Journal, or other trademark or trade name known by Skyline to be owned by Horizon, without the prior written approval of Horizon. Similarly, Horizon shall not use, publish or distribute, or cooperate with any third party to use, publish, or distribute, any Materials regarding this Agreement, or containing the mark Netscape, or other trademark or trade name known by Horizon to be owned by Skyline, without the prior written approval of Skyline. The foregoing shall not be construed to restrict Horizon from engaging in any of its normal newsgathering or publishing activities. All samples of such materials delivered by a party to the other party for such review shall be in English or translated into English. If a party has not notified the other party of its disapproval within ten (10) days after such party delivers samples of a particular item of Material, such Material shall be deemed approved. Any breach by a party of this Section, among others, shall be deemed a material breach of this Agreement.
(e) CUSTOMER SERVICE:
Skyline shall promptly consult with Horizon by e-mail, telephone, or other means agreed to by both parties,regarding all questions and complaints from Skyline Service Customers regarding the Publications Library that Skyline personnel receive. Skyline shall not answer, and shall promptly refer to Horizon by email, telephone, or other means agreed to by both parties, all questions and complaints from Publications Library Subscribers regarding use of the Publications Library, specific items of content within the Publications Library (such as, but not limited to, allegations of errors or omissions in content, etc.), and regarding billing and payment for Publications Library Content, and Horizon shall be responsible for promptly and professionally handling such questions and complaints. Skyline shall have at least one customer service representative available to Publications Library Subscribers, by telephone and by email messages, at all times from Monday through Friday, 8AM through 9PM, Indian Standard Time. (f) CONTACT PERSONS:
Each party shall designate one or more individuals as that party’s principal person(s) (each, a “Contact Person”) to contact for problems or questions that arise in the following areas: Technology and Communications; Customer Service; and Management / Miscellaneous. Each party shall ensure that such party has at least one Contact Person for Technology and Communications issues immediately available at all times, 24 hours per day and 7 days per week. Exhibit C lists the Contact Persons for each Party as of the Effective Date. A party may change designated Contact Persons by delivering notice pursuant to Section 10(a).
4. PUBLICATIONS LIBRARY PRESENTATION STANDARDS:
(a) RESTRICTIONS:
Skyline shall not make any of the Publications Library available for use, access, display, searching or retrieval: (1) other than as a separate branded area through or from the Skyline Service; (2) other than through the Skyline Service as a “gateway”; or (3) through an additional “gateway” or other third party service which incorporates or “bundles” the Skyline Service as one information source or service of many available through such third party’s software or service or Internet site. Skyline shall not permit a Skyline Service Customer to access the Publications Library via any interactive online or electronic information service other than the Skyline Service, except to the extent that a Skyline Service Customer uses one of such services merely to connect to the Internet and then links to the Skyline Service using browser software. Skyline shall not make the Publications Library Content available in any “public” or “free” area, or area accessible without a password, on the World Wide Web, except for Citations that are displayed as Index Search Results (both defined in the Specifications). Skyline shall not combine Publications Library Content with any content from third parties, such that, for example, a single search request displayed results from the Publications Library as well as results from another information service. Without Horizon’ prior written consent in advance, and except for Citations that are displayed as Index Search Results as set forth in the Specifications, Skyline shall not make anyPublications Library Content available for free, or without payment of monetary compensation, nor shall Skyline charge any Skyline Service Customer any amount for access to, searching in, or retrieval of any Publications Library Content.
(b) NO FRAMING; THIRD PARTY ADVERTISING:
Except as set forth in the Specifications, Skyline shall not “frame” or otherwise permit matter not authorized by Horizon to appear on the same screen display as, or obscure, any portion of the Publications Library. Skyline shall cause all advertising or promotional material that appear on the same screen display or web page as any Publications Library Content or any Horizon trademark, logo or trade name, to comply with the thencurrent Horizon Online Advertising Guidelines, as amended from time to time by Horizon in its sole discretion (the “Ad Guidelines”). The current version of the Ad Guidelines are attached as Exhibit D. Horizon will deliver at least thirty (30) days’ advance notice prior to amending the Ad Guidelines.
(c) NO STORAGE OR ALTERATION.
Except as specifically permitted in the Specifications, Skyline shall not: (1) cache or store, or authorize any other party (including, without limitation, any Skyline Service Customer) to cache or store, temporarily or permanently, any Publications Library Content for subsequent distribution, display or retrieval; or (2) alter, in any manner, the content, format or presentation of the Publications Library.
(d) FINAL PRESENTATION REVIEW AND SERVICE PRESENTATION.
Skyline shall cause the Publications Library to appear to Skyline Service Customers as a separate, Horizon-branded area or service, and shall not permit any other content to appear on screen displays with Publication Library Content, other than advertisements or promotional materials that comply with this Agreement, and information and navigational features which may appear within the Top Bar Frame and Left Bar Frame specifically authorized in the Specifications. Horizon shall have the right to approve the final design and presentation of the Publications Library through or from the Skyline Service prior to the Commercial Availability Date, and shall have the right to require reasonable changes in the presentation of links to the Publications Library from time to time during the Term. Skyline shall provide Horizon with a reasonable number of passwords for the Skyline Service to enable Horizon to review, free of charge, the design and presentation of the Skyline Service.
(e) THIRD PARTY DATABASES.
The Publications Library consists of databases and content owned and supplied by Horizon (“Horizon Databases”) and databases and content owned and supplied to Horizon by third parties (“Third Party Databases”). Skyline acknowledges and agrees that (1) Horizon, in its sole discretion, may from time to time add or delete Horizon Databases and/or Third Party Databases available through the Publications Library; (2) nothing in this Agreement shall prohibit the providers of the Third Party Databases fromdistributing such Third Party Databases either directly or indirectly; and (3) the availability of a Third Party Database in the Publications Library for distribution to certain customers or for access through the Skyline Service is subject to the continuation and extent of the licence agreement between Horizon and the provider of such Third Party Database with respect thereto. If the number of “Health, Medicine & Biotechnology” sources in the Publication Library falls below 250, Skyline may terminate this Agreement by delivering 30 days prior written notice to Horizon.
(f) LEGAL RESEARCH SERVICE.
Skyline shall not offer any “Legal Research Materials” (as defined below) contained in or available through, either directly or indirectly, the Skyline Service, in combination with any of the Publications Library Content, to create an information service or product that is packaged, priced and marketed specifically to serve the professional legal research needs of lawyers, legal professionals, accounting professionals or tax professionals in India. “Legal Research Materials” mean any statutes, laws, court opinions, case reports, regulations, court rules, administrative rulings, legislative history, legal periodicals, legal treatises or legal citations.
5. PRICING AND BILLING.
(a) PRICING.
Horizon shall establish, in its sole discretion, the pricing for access to, use of, display of, searching in, and retrieval of Publications Library Content through or from the Skyline Service (“Fees”). Horizon will deliver its schedule of Fees to Skyline prior to the Commercial Availability Date. If Horizon changes its schedule of Fees at any time during the Term, Horizon will deliver Such amended schedule of Fees to Skyline at least fifteen (15) days prior to the date such amended schedule will take effect. Horizon shall have the right to retain all revenue from ads sold on frames designated for Horizon’ use in the Specifications. Similarly, Skyline shall have the right to retain all revenue from ads sold in frames designated for Skyline’s use in the Specifications.
(b) BILLING AND COLLECTION.
Horizon will bill Publications Library Subscribers for all Fees, and shall use reasonable commercial efforts to collect all payments due from such billings. In addition, Horizon shall bill Publications Library Subscribers for all applicable sales, use or other similar taxes and shall remit to the appropriate Government agency the taxes collected (collectively, “Sales Taxes”).
(c) GATEWAY’S COMMISSION.
In consideration of its undertakings hereunder, for each calendar month during the Term, Horizon shall pay Skyline a commission (the “Commission”) as defined on Exhibit E.
(d) MONTHLY REPORT;
PAYMENT. Within forty-five (45) days after the end of each calendar month, Horizon shall prepare and deliver a written report (the “Monthly Report”) to Skyline listing for the calendar month at issue the information set forth on Exhibit E. Along with the Monthly Report, Horizon shall deliver a cheque in an amount equal to the Commission for such month.
(e) MAINTENANCE AND INSPECTION OF RECORDS.
Each party shall maintain complete and accurate books and records of all information necessary to determine compliance with its obligations under this Agreement (“Records”). Each party shall have the right itself or through its authorized representatives, upon at least seven (7) days’ prior written notice but no more often than once each calendar year, to inspect the other party’s Records at the other party’s location where such Records are kept, during such other party’s regular business hours. All information gained by the inspecting party or its authorized representatives from any such inspection shall be treated as Confidential Information subject to Section 8, and will be used solely for the purpose of verifying compliance with the obligations contained herein.
6. PROPRIETARY RIGHTS
. (a) OWNERSHIP; COPYRIGHT.
Skyline acknowledges and agrees that all ownership and proprietary rights (including, without limitation, the copyright and database proprietary rights) to the Publications Library and the contents thereof are and shall remain the property of Horizon or its licensors. Skyline shall give proper notice to Skyline Service Customers of Horizon’s copyright in the Publications Library, and shall not remove or alter any copyright notices appearing in any Publications Library Content.
(b) INFRINGEMENT.
Skyline shall promptly advise Horizon of any possible infringement of which Skyline becomes aware of any of Horizon’s trademarks, copyrights, database proprietary rights, trade secrets or other proprietary rights, or any misuse of Publications Library Content or breach of the Horizon Subscription Agreement by a Publications Library Subscriber.
7. INDEMNIFICATION; DISCLAIMER.
(a) BY HORIZON.
In the event of any claim by any third party against Skyline arising out of or resulting from the content in the Publications Library (other than claims for which Horizon may seek indemnification from Skyline under Section 7(b) below), Skyline shall promptly notify Horizon, and Horizon shall defend such claim, Suit or action in Skyline’s name but at Horizon’s expense. Horizon shall indemnify and hold harmless Skyline against any judgment, liability, loss, cost or damage (including, without limitation, litigation costs and reasonable attorneys’ fees) arising from or related to such claim, whether or not such claim is successful. Skyline shall have the right, at its expense, to participate in the defense of such claim through counsel of its own choice; provided, however, that Horizon shall not be required to pay any settlement amount that it has not approved in advance, Horizon shall direct and control the conduct of the defense, and Skyline shall pay all costs and expenses in connection with such chosen counsel.
(b) BY GATEWAY.
In the event of any claim by any third party against Horizon arising out of or resulting from: (1) any defect, error or omission caused by Skyline in reformatting, displaying, retrieving, transmittingor otherwise distributing content in the Publications Library on or through the Skyline Service, or (2) an allegation that the Skyline Service infringes any patent, trade secret, copyright, or other intellectual property right of any third party, or (3) any use or distribution or display of Publications Library Content in violation of the Specifications or this Agreement, or (4) the advertising or promotion for the Publications Library Content by Skyline (except in the case of third party claims arising out or resulting from language about the Publications Library in a press release or promotional material that was approved by Horizon), Horizon shall promptly notify Skyline, and Skyline shall defend such claim, suit or action in Horizon’s name but at Skyline’s expense. Skyline shall indemnify and hold harmless Horizon against any judgment, liability, loss, cost or damage (including, without limitation, litigation costs and reasonable attorneys’ fees) arising from or related to such claim, whether or not such claim is successful. Horizon shall have the right, at its expense, to participate in the defense of such claim through counsel of its own choosing; provided, however, that Skyline shall not be required to pay any settlement amount that it has not approved in advance, Skyline shall direct and control the conduct of the defense, and Horizon shall pay all costs and expenses in connection with such chosen counsel.
(c) DISCLAIMER;
LIMITATION ON DAMAGES. HORIZON PROVIDES THE PUBLICATIONS LIBRARY CONTENT “AS IS”, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. HORIZON AND ITS LICENSORS DO NOT WARRANT THE ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT PROVIDED AS PART OF THE PUBLICATIONS LIBRARY EXCEPT FOR AMOUNTS OWED TO GATEWAY PURSUANT TO SECTION 7(A) OF THIS AGREEMENT, HORIZON AND ITS LICENSORS SHALL NOT BE LIABLE TO GATEWAY OR TO ANY THIRD PARTY IN RESPECT OF ANY ACTUAL OR ALLEGED ERROR, OMISSION, INACCURACY, UNTIMELINESS, OR INADEQUACY IN SUCH CONTENT, AND HEREBY DISCLAIM ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GATEWAY SHALL NOT MAKE ANY STATEMENT RESPECTING HORIZON OR THE PUBLICATIONS LIBRARY CONTENT THAT IS CONTRADICTORY OR INCONSISTENT WITH THE FOREGOING STATEMENTS OR WITH THE HORIZON SUBSCRIPTION AGREEMENT. EXCEPT FOR AMOUNTS PAID PURSUANT TO SECTION 7 OR IN CONNECTION WITH A BREACH OF SECTION 8 OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HERETO FOR ANY DAMAGES OTHER THAN DIRECT AND STATUTORY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, SPECIAL, INDIRECT, AND EXEMPLARY DAMAGES.
8. CONFIDENTIAL INFORMATION.
Skyline and Horizon understand and agree that in the performance of this Agreement each party may have access to private or confidential information ofthe other party, including but not limited to, trade secrets, marketing and business plans, pricing information, and technical, technological and operational information, which is designated as confidential by the disclosing party in writing, whether by letter or by the use of a proprietary stamp or legend, prior to or at the time it is disclosed to the other party (“Confidential Information”). Skyline acknowledges and agrees that all Specifications, and all technical, technological and operational information about the Publications Library, are Confidential Information of Horizon. In addition, private or confidential information that is orally disclosed to the other party shall constitute Confidential Information if within ten (10) days after such disclosure the disclosing party delivers to the receiving party a written document describing such Confidential Information and referencing the place and date of such oral disclosure and the names of the employees of the party to whom such disclosure was made. Each party agrees that the terms and conditions of this Agreement shall be deemed Confidential Information of the other party hereto. Each party agrees that: (i) all Confidential Information shall remain the exclusive property of the owner; (ii) it shall maintain, and shall use prudent methods to cause its employees and agents to maintain, the confidentiality and secrecy of the Confidential Information; (iii) it shall not, and shall use prudent methods to ensure that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (iv) it shall return or destroy all copies of Confidential Information upon request of the other party. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to third parties by the disclosing party without restriction on such third parties, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement, (iv) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential is required to be disclosed by operation of law.
9. TERM AND TERMINATION.
(a) TERM.
The initial term of this Agreement shall commence on the Effective Date, and unless terminated earlier pursuant to this Agreement, shall terminate one (1) year after the Commercial Availability Date (the “Initial Term”). The term hereof shall be extended for consecutive additional one-year periods (each, a “Renewal Term”), unless either party delivers to the other party notice of its election not to renew at least ninety (90) days prior to the end of the Initial Term, or any Renewal Term, as the case may be. The “Term” shall be defined as the Initial Term and all Renewal Terms, if any.
(b) TERMINATION FOR DEFAULT.
If either party defaults in the performance of or compliance with any provision contained in this Agreement and such breach is not cured within thirty (30) days after written notice thereof was given to the appropriate party, the party giving such notice may then give further written notice to such other party terminating this Agreement, in which event this Agreement and the rightsgranted hereunder shall terminate on the date specified in such further notice. The party giving such notice of termination shall have such other remedies as the law or equity may afford, and such party’s rights and remedies on breach or default by the other party are cumulative and not exclusive of those other remedies.
(c) CHANGE IN CONTROL.
If there occurs during the term hereof any change in the effective voting control of Skyline or any merger into or acquisition by any third party of Skyline, or the sale or transfer of the Skyline Service or substantially all of Skyline’s assets to any third party (a “Control Event”), Skyline shall notify Horizon in writing of such Control Event within ten (10) days after its effectiveness, and Horizon may, within thirty (30) days after receipt of such notice, terminate this Agreement upon at least sixty (60) days’ prior written notice. Skyline may notify Horizon in writing of any proposed Control Event prior to its proposed effectiveness, and Horizon shall within thirty (30) days after receipt of such notice, notify Skyline in writing whether Horizon would exercise its right to terminate this Agreement if such proposed Control Event were consummated.
(d) GATEWAY ALTERATIONS.
If, pursuant to Section l(c), Skyline is unable, after using reasonable commercial efforts, to make the necessary Skyline Alterations, or if such Skyline Alterations do not successfully complete the Testing Procedures, either party may terminate this Agreement by delivering at least thirty (30) days prior notice to the other party.
(e) TERMINATION OF PUBLICATIONS LIBRARY.
Either party may terminate this Agreement, upon at least ninety (90) days advance notice, if Horizon ceases publishing the Publications Library via the World Wide Web, or if Skyline ceases offering or publishing the Skyline Service substantially as it existed on the Commercial Availability Date.
(f) INSOLVENCY.
In the event that either party shall be adjudged insolvent or bankrupt, or upon the institution of any proceedings by such party seeking relief, reorganization or arrangement under any laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against such party and said petition is not discharged within sixty (60) days after such filing, or upon any assignment for the benefit of its creditors, or upon the appointment of a receiver, liquidator or trustee of any of its assets, or upon the liquidation, dissolution or winding up of its business (an “Event of Bankruptcy”), then the party affected by any such Event of Bankruptcy shall immediately give notice thereof to the other party, and the other party at its option may terminate this Agreement upon delivery of notice.
(g) EFFECT OF TERMINATION.
Upon the expiration or termination of this Agreement for any reason, Skyline shall immediately (1) cease all marketing and selling of the Publications Library; (2) inhibit all access to and display of the Publications Library Content through or from the Skyline Service; and return to Horizon, at Skyline’s expense, all Horizon Confidential Information in its possession, together with a writtenstatement by a senior officer of Skyline that all such Confidential Information has been so returned. Upon the expiration or termination of this Agreement for any reason, Horizon shall immediately return to Skyline, at Horizon’s expense, all Skyline Confidential Information in its possession, together with a written statement by a senior officer of Horizon that all such Confidential Information has been so returned.
10. MISCELLANEOUS.
(a) NOTICES.
All notices, requests and other communications hereunder (“Notices”) shall be in writing. All Notices shall be delivered in person, by reliable overnight courier service, by facsimile transmission, by e-mail with confirmation of delivery, or by registered post, to the last known address facsimile number of the party or to such other addresses as may be stipulated in writing by the parties pursuant hereto. A Notice shall be deemed delivered and received, and effective, on the date it is officially recorded as delivered, as evidenced by delivery receipt or equivalent.
(b) AMENDMENT.
This Agreement may not be amended except by written instrument executed by an authorized representative of Skyline and Dow Jones.
(c) BINDING AGREEMENT;
ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the undersigned parties and their respective successors and permitted assigns. No assignment of any right or delegation of any duty under this Agreement shall be made by either party, by operation of law or otherwise, without the prior written consent of the other. Any such purported assignment or delegation or other transfer without such prior written consent of the other party hereto shall be void.
(d) HEADINGS.
The headings of sections and paragraphs are included for convenience of reference only and shall not control the meaning or interpretation of any of the provisions of this Agreement.
(e) SURVIVAL OF CERTAIN PROVISIONS.
Notwithstanding the expiration or termination of this Agreement, Sections 5(b), 5(c), 5(d), 5(e), 6, 7, 8, 9(g) and 10, and all payment obligations accruing, but not paid, prior to such expiration or termination, shall survive the expiration or termination of this Agreement.
(f) WAIVER.
The failure of either party at any time to require performance by the other party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
(g) SEPARABILITY.
If any provision of this Agreement shall be held to be unenforceable, the remainder of the Agreement shall not be affected by such holding.
(h) EXCUSE OF PERFORMANCE.
Performance by either party underthis Agreement shall be subject to and shall be excused to the extent and during the period that it shall be rendered impossible by any event, condition or occurrence beyond the reasonable control of such party.
(i) RELATIONSHIP OF THE PARTIES.
This Agreement does not and shall not be deemed to constitute a partnership or joint venture between the parties. Neither party nor any of their respective directors, officers, employees or agents shall, by virtue of the performance of their obligations under this Agreement, be deemed to be an agent or employee of the other.
(j) GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be governed by, and construed in accordance with, the laws of [Country name] applicable to contracts wholly made and wholly performed in [Country name].This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(k) COUNTERPARTS.
This Agreement may be executed in two counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.
(l) ENTIRE AGREEMENT.
This Agreement contains the final and entire agreement of the parties on the subject matter herein, and supersedes all previous oral and written understandings, negotiations, and agreements on the subject matter hereof.
IN WITNESS WHEREOF, the undersigned parties have duly executed this Agreement through their respective authorized representatives as of the Effective Date written hereinabove.
Signed sealed and delivered by
The parties in the presence of
Witnesses
1.
2.
EXHIBIT A
DEFINITION OF GATEWAY SERVICE
At www.medscape.com, Skyline maintains a site on the World Wide Web offering content and services for the medical community. The site is free to users, but access to certain sections requires that the user first register with the Skyline. The site’s content and services include: Full-text, peer-reviewed clinical medicine articles; Medscape’s Journal Club Forum for member discussions; Smart “hyper keyword” searches; Navigable article outline; graphics; annotated links to Internet resources; ability to search Medscape’s database of full-text articles; medical news Self-assessment features; continuing medical education resources; free subscription to Medscape’s a weekly email newsletter highlighting what’s new on Medscape.
EXHIBIT B
STANDARD HORIZON SUBSCRIPTION AGREEMENT SUBSCRIPTION AGREEMENT FOR HORIZON INTERACTIVE ON THE WEB
Horizon Interactive is a news and information service from Horizon Publication Limited. By clicking the “I Accept” button, and using Horizon Interactive, you are indicating that you are 18 years old or older, and that you agree to be bound by all of the terms in this Subscription Agreement. You may print and keep a copy of this Agreement. Horizon may change the terms in this Subscription Agreement. When the terms are changed, Horizon will notify you by e-mail and/or online postings. The changes also will appear in this document, which you can access at any time by selecting Help “ ?”, then Subscription Agreement. By accessing Horizon Interactive after any change in this Subscription Agreement is posted, you agree to be bound by all of the changes as well.
I. PRIVACY OF INFORMATION
(1) By clicking the “I Accept” button, you also are agreeing that Horizon may store information you provide as part of the registration process and usage information, and provide aggregate statistical information about subscribers to advertisers, potential advertisers, and content licensors. Horizon also may use the information to inform you about other Horizon publications, products and services, unless you notify Horizon that you do not wish to receive this information. Horizon also may deliver additional messages about the Service to you by e-mail.
(2) As a general policy, Horizon does not disclose to third parties any specific personal identifying information about you, such as your name, address, phone number, or email address (“Personal Identifying Information”). Horizon will not disclose any of your Personal Identifying Information to a third party without first notifying you and giving you an opportunity to elect not to have your Personal Identifying Information disclosed.
II. MANUALLY SIGNED PAPER AGREEMENTS
(1) If Horizon and you or your employer have manually signed a paper version of a contract governing your use of Horizon Interactive, or if you or your employer subscribe to Horizon Interactive pursuant to an Enterprise Subscription Agreement, the terms in that manually signed, paper document or Enterprise Subscription Agreement are not amended by, and supersede, terms in this Subscription Agreement.
III. FEES AND PAYMENTS
(1) You can always find the current Subscription Fees and charges posted in Pricing “$”. Your subscription will continue until terminated by Horizon or until you notify Horizon by telephone or electronic mail of your decision to terminate your subscription. You agree to pay or have paid all fees and charges incurred in connection with your user name or password at the rates in effect when the fees and charges were incurred. All fees and charges are non-refundable. Horizon may charge late fees on overdue accounts, and you agree to pay or to have paid all costs (including, without limitation, attorneys’ fees) incurred to collect overdue amounts. Horizon may change the Subscription Fees and charges then in effect, or add new fees or charges, by giving you notice in advance.
(2) All fees and charges incurred in connection with your user name or password will be billed to the credit card you designate during the registration process for Horizon Interactive or the service which provides you access to Horizon Interactive (or, if agreed in advance by Horizon, billed by paper invoice.) If there are any annual, monthly or similar periodic fees for your Horizon Interactive subscription, these fees will be billed automatically to your credit card at the start of the annual, monthly or similar period, and at the start of each renewal period, unless you terminate your Subscription before the relevant period begins. If you want to designate a different credit card or there is a change in your credit card validity or expiration date, or if you believe someone has accessed Horizon Interactive using your user name or password without your authorization, you must call Horizon Customer Service at the telephone numbers posted in Help “?”. You also are responsible for any fees or charges incurred to access Horizon Interactive through an Internet access provider or other third party service. YOU, AND NOT HORIZON, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
(3) IF HORIZON AND YOU OR YOUR EMPLOYER HAVE MANUALLY SIGNED A PAPER VERSION OF A CONTRACT GOVERNING YOUR USE OF HORIZON INTERACTIVE, OR IF YOU OR YOUR EMPLOYER SUBSCRIBE TO HORIZON INTERACTIVE PURSUANT TO AN ENTERPRISE SUBSCRIPTION AGREEMENT, SOME OR ALL OF THESE “FEES AND PAYMENTS” TERMS MAY NOT APPLY TO YOU. PLEASE CONTACT YOUR EMPLOYER FOR DETAILS.
IV. COPYRIGHT AND LIMITATIONS ON USE
(1) Only one individual may access Horizon Interactive at the same time using the same user name or password, unless agreed otherwise by Horizon. The content available through Horizon Interactive is the property of Horizon or its licensors and is protected by copyright and other intellectual property laws. Content received through Horizon Interactive may be displayed, reformatted and printed for your personal, non-commercial use only. You are not to reproduce, retransmit, distribute, display, sell, publish, broadcast or circulate any content received through Horizon Interactive to anyone, including but not limited to others in the same company or organization, without the express prior consent of Horizon, with this one exception: may, on an occasional and irregular basis, disseminate an insubstantial portion of content retrieved from Horizon Interactive, for a non-commercial purpose, without charge, and in non- electronic form, to a limited number of individuals, provided you include all copyright and other proprietary notices with such portion of the content in the same form in which the notices appear in Horizon Interactive, and the phrase “Used with permission from Horizon Interactive.” To request consent for other matters, please send an e-mail using the Feedback icon. Horizon Interactive includes facts, views, opinions and recommendations of third parties deemed of interest. Horizon and its content licensors do not guarantee the accuracy, completeness or timeliness of, or otherwise endorse, these views, opinions or recommendations, give tax or investment advice, or advocate the purchase or sale of any security or investment.
V. DISCLAIMER OF WARRANTIES AND LIABILITY
(1) Due to the number of sources from which content on Horizon Interactive is obtained, and the inherent hazards of electronic distribution, there may be delays,omissions or inaccuracies in such content and Horizon Interactive. HORIZON AND ITS AFFILIATES, AGENTS AND LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT AVAILABLE THROUGH HORIZON INTERACTIVE OR HORIZON INTERACTIVE ITSELF. HORIZON AND ITS AFFILIATES, AGENTS OR LICENSORS SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGE, OTHER THAN DEATH OR PERSONAL INJURY RESULTING DIRECTLY FROM USE OF HORIZON INTERACTIVE, CAUSED IN WHOLE OR PART BY CONTINGENCIES BEYOND THEIR CONTROL OR NEGLIGENCE IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING HORIZON INTERACTIVE AND ANY CONTENT THROUGH HORIZON INTERACTIVE. IN NO EVENT WILL HORIZON, ITS AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH CONTENT. HORIZON AND ITS AFFILIATES, AGENTS AND LICENSORS SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR SIMILAR DAMAGES) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIABILITY OF HORIZON, ITS AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH HORIZON INTERACTIVE OR THE CONTENT IN HORIZON INTERACTIVE SHALL NOT EXCEED THE AMOUNT YOU PAID TO HORIZON FOR THE USE OF HORIZON INTERACTIVE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
VI. ADDITIONAL LEGAL TERMS AND CONDITIONS
(1) Certain content licensors require Horizon to post additional legal terms, particularly as new content is added to Horizon Interactive. Additional legal terms and notices regarding Horizon Interactive and its content are located in Help “?”, under “Additional Legal Terms and Notices.” You agree to read and be bound by these additional legal terms and notices. You are urged to consult Help “?” each time you access Horizon Interactive. By accessing Horizon Interactive after any additional legal terms or notices are posted, you are agreeing to be bound by these additional legal terms and notices.
(2) Horizon may discontinue or change Horizon Interactive or certain content within Horizon Interactive, or its availability to you, at any time, and you may always terminate your subscription at any time. This Agreement is personal to you, and you may not assign your rights or obligations to anyone. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect. This Agreement, your rights and obligations, and all actions contemplated by this Agreement shall be governed by the laws of [Country name], as if the Agreement was a contract wholly entered into and wholly performed within [Country name]. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. IF YOU AGREE TO BE BOUND BY ALL OF THE TERMS IN THIS AGREEMENT, PLEASE INDICATE YOUR ACCEPTANCE BELOW:
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EXHIBIT D
HORIZON ONLINE ADVERTISING GUIDELINES
Advertising or promotional materials related to the following products or services shall not appear on any screen display or web page on which any Publications Library Content, or any Horizon trademark, trade name or logo, appears:
(a) Tobacco products
(b) Pornography or “adult services”, including, without limitation, massage parlors or escort services
(c) Alcohol
(d) Firearms
(e) Employment recruiting
(f) Advertisements for any product or service which gratuitously or excessively uses the word “sex” or other sexually explicit or vulgar term or description
(g) Games of chance, lotteries, gambling sites, and other products, services or web sites involving wagering or betting
EXHIBIT E
COMMISSION; MONTHLY REPORT
Commission
For each calendar month during the Term, Horizon shall pay Skyline a Commission equal to twenty percent (20%) of the Fees billed by Horizon for Publications Library usage by Publications Library Subscribers who originated their Publications Library accounts through the Skyline Service, minus: (1) an amount reasonably accrued for anticipated bad debt, not to exceed three percent (3%); (2) billing adjustments (other than bad debt), refunds and credits made in the ordinary course of business; and (3) sales taxes.
Monthly Report
The Monthly Report will contain information sufficient to determine how Horizon calculated the Commission, including the Fees billed, the amount of the subtractions set forth above under “Commission”, and how the Commission was calculated.
