AFX NEWS
DISTRIBUTOR AGREEMENT
WITH
VIRTUAL TELECOM
PREPARED BY: XXXXXX XXXXX
DATED: 7TH JANUARY 1997
REFERENCE: VT0810.XXX/CON
AN AGREEMENT dated this seventh day of January 1997
BETWEEN AFX NEWS LIMITED
(hereinafter referred to as "AFX")
OF FITZROY HOUSE, 13 - 00 XXXXXXX XXXXXX, XXXXXX, XX0X 0XX
AND VIRTUAL TELECOM
(hereinafter referred to as "the Distributor")
OF MBC MORGINES
BUSINESS CENTRE
12 AVENUES DES MORGINES
1213 PETIT-XXXXX
XXXXXX
AFX agrees to supply and the Distributor agrees to accept the Service(s) as
defined in Schedule 1 subject to the terms and conditions set out herein.
THE Distributor's ATTENTION IS DRAWN TO ARTICLE 9 AS IT CONTAINS EXCLUSIONS
AND LIMITATIONS OF AFX's LIABILITY IN CERTAIN CIRCUMSTANCES, WHICH EXCLUSIONS
AND LIMITATIONS AFX CONSIDERS REASONABLE.
TERMS AND CONDITIONS
1. DEFINITIONS
In this Agreement and in any Schedules and Exhibits attached hereto
(which shall be deemed to be incorporated into and to form part of this
Agreement) the following expressions shall have the following meanings
and the singular shall include the plural and vice versa:
Schedule - the document(s) attached to this Agreement detailing
inter alia the Service, Charges, Commencement Date,
Site and method of supply.
Service - the service described in Schedule 1.
Business Day - any day on which at least London, New York, Tokyo and
Frankfurt exchanges are open for business.
Commencement - the date specified in Schedule 1 for the commencement
Date of the Service.
Term - the period during which this Agreement is to remain
in force as described in article 3.
Charges - the charges described in article 8 and Schedule 2.
Initial Term - the period of one year from the Commencement Date.
Primary Site - the geographical site specified in Schedule 1 to which
the Service is delivered and used by the Distributor.
Additional Site - any geographical site other than the Primary Site
where the Service is used by the Distributor.
Site - Primary Site or Additional Site.
Stock Exchange - the Stock Exchanges or other sources of information
from which AFX obtaining information for inclusion in
the Services.
Subscriber - Distributor's own Subscriber.
Terminal - any Distributor or Subscriber equipment on which the
Service is displayed.
Quarter Day - any 31 March, 30 June, 30 September or 31 December.
Quarter - a period of three calendar months ending on any
Quarter Day.
2. SUPPLY OF SERVICE
2.1 Subject to the terms and upon the conditions stated herein AFX will
supply the Service to the Distributor at the Primary Site.
2.2 The Service will be provided via the delivery route detailed in
Schedule 1 and in formats detailed in the AFX Technical
Specification - copies of which are available on request.
2.3 AFX may from time to time vary the formats detailed in the AFX
Technical Specification but will only do so following written notice
giving three months notice in advance where such variations are under
AFX control or such shorter notice as is reasonable in other
circumstances. In the event that such proposed changes are
unacceptable to the Distributor the Distributor shall notify AFX in
writing within fourteen days of receipt of the notice from AFX. AFX
shall have the opportunity to withdraw such proposed changes by
giving written notice of withdrawal within seven days of receipt
of the said notice from the Distributor. Absent such notice of
withdrawal by AFX the Distributor shall have the right to terminate
the Agreement without penalty by giving prior written notice to AFX
such notice to take effect on the proposed date of change or the
actual date of change if earlier.
2.4 Unless otherwise specified in the Schedule the Service will be
provided only in respect of Business Days.
3. TERM
This Agreement shall take effect on the date of execution and, subject
to the provision of article 4 below, shall remain in force for the
Initial Term and shall continue until terminated by either party giving to
the other not less than three months' prior written notice to expire at
the end of the Initial Term or thereafter on any Quarter Day.
4. TERMINATION
4.1 Either party may terminate this Agreement by written notice to the
other if the other party is in breach of any of its obligations under
this Agreement, and in the event of a breach capable of being
remedied, fails to remedy such breach within thirty days of receipt
of notice in writing specifying the nature of the breach.
4.2 Either party may terminate this Agreement by written notice to the
other if the other party shall make an arrangement with or assignment
in favor of its creditors or shall go into liquidation (other than a
voluntary liquidation for the purposes of amalgamation or
reconstruction) or have a receiver or administrator appointed over
its property or assets or any part thereof.
4.3 AFX may terminate this Agreement by giving one months' prior
written notice to the Distributor if any amount due from the
Distributor has not been paid within thirty days of the date on which
it becomes payable under the provisions of this Agreement.
4.4 Except where the Distributor terminates this Agreement pursuant to
article 2.3, 4.1 or 4.2 above or paragraph 7 of Schedule 2, AFX shall
be under no liability to refund any pre-paid amounts.
4.5 The Distributor hereby agrees that upon termination of this
Agreement for whatever reason it shall expunge the Service from its
computer equipment, certify in writing to AFX that it has done so and
cease using the Service forthwith.
4.6 Termination of this agreement for whatever reason shall not affect
any rights of either party which may have accrued up to the date of
termination.
4.7 Should the Distributor undergo a significant change in ownership
such that a competitor of AFX obtains effective control, AFX shall
have the right summarily to terminate this Agreement by giving to the
Distributor notice in writing, provided that such notice is given by
AFX within three months of such change of ownership coming to the
attention of AFX.
5. PROVISION OF EQUIPMENT
5.1 The Distributor shall be responsible for providing and maintaining
any terminal or other equipment required to receive the Service.
5.2 Whilst AFX will provide general advice to the Distributor with
respect to the compatibility of the Service and the Distributor's
equipment AFX cannot guarantee and specifically disclaims any
responsibility for continued compatibility between the Distributor's
equipment and the Service. The Distributor hereby assumes all
liability arising from or in connection with the use of Distributor's
equipment including, without limitation, interface software, printing
capabilities and quality and response times.
6. USE OF SERVICE
The Service may be used only in accordance with the provisions set out
in Schedule 2.
7. PROPRIETARY RIGHTS
7.1 The Distributor confirms that as between itself and AFX, AFX is
throughout the world the beneficial owner of the entire copyright in
the compilation of information contained in the Service for the full
period of copyright therein. The Distributor further acknowledges
that the information contained in the Service is the property of AFX
and the Distributor agrees that it will not use or disseminate such
information except as expressly provided in this Agreement
7.2 The Distributor will at the request and expense of AFX do all such
further acts, deeds and things, other than the filing or pursuit of
legal action, and execute all such further documents, deeds and
instruments, both during the term of this Agreement and thereafter,
from time to time reasonably necessary for the protection and
enforcement of all AFX proprietary rights in the Service and
information contained therein.
7.3 The Distributor shall not use or distribute the Service in any
manner except as expressly provided in this Agreement; provided,
however, that this restriction shall not apply to any data which
is coincidentally contained in the Service insofar as such data is
collected, acquired and organized by agents or employees of, or
vendors to, the Distributor, completely independently and without
reference to or use of the Service or any related documentation
therefor.
8. CHARGES
The Charges specified in Schedule 2 as amended from time to time are
payable in accordance with the provisions thereof.
9. LIABILITY AND WARRANTY
9.1 NOTWITHSTANDING ARTICLES 9.2 AND 9.3 BELOW AFX SHALL INDEMNIFY
THE Distributor IN RESPECT OF ANY LIABILITY FOR DEATH OF OR
PERSONAL INJURY TO ANY PERSON TO THE EXTENT THAT SUCH DEATH
OR INJURY IS CAUSED BY AFX's NEGLIGENCE.
9.2 THE LIABILITY OF AFX AND/OR ITS SUPPLIERS TO THE Distributor FOR
DIRECT LOSS OR DAMAGE WHETHER IN CONTRACT TORT OR OTHERWISE
ARISING FROM WHATEVER CAUSE NEGLIGENT OR OTHERWISE OUT OF OR
IN CONNECTION WITH THE PERFORMANCE OR THE TOTAL OR PARTIAL
FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT SHALL IN
RESPECT OF ANY ONE INCIDENT OR SERIES OF INCIDENTS ATTRIBUTABLE
TO THE SAME CAUSE BE LIMITED TO AND SHALL NOT IN ANY
CIRCUMSTANCES EXCEED AN AMOUNT EQUAL TO THE ANNUAL PRIMARY
SITE LICENCE FEE PAYABLE PURSUANT TO THIS AGREEMENT IN RESPECT
OF THE Service PROVIDED TO THE Distributor ON THE DATE OF THE
INCIDENT (OR IN THE CASE OF A SERIES OF INCIDENTS ATTRIBUTABLE TO
THE SAME CAUSE THE DATE OF THE FIRST INCIDENT IN SUCH SERIES).
9.3 NEITHER PARTY NOR ITS SUPPLIERS IF ANY SHALL IN ANY
CIRCUMSTANCES BE LIABLE WHETHER IN CONTRACT TORT OR
OTHERWISE FOR ANY CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE
OR FOR ANY LOSS OF PROFITS OR OF CONTRACTS HOWSOEVER ARISING
THROUGH NEGLIGENCE OR OTHERWISE AND OF WHATSOEVER NATURE
SUFFERED OR INCURRED DIRECTLY OR INDIRECTLY BY THE OTHER
PARTY.
9.4 EXCEPT IN THE CASE OF GROSS NEGLIGENCE WILFUL DEFAULT WILFUL
ACT OR WILFUL OMISSION OF AFX THE Distributor AGREES TO INDEMNIFY
AND KEEP INDEMNIFIED AFX FROM AND AGAINST ANY THIRD PARTY
CLAIMS AGAINST AFX ARISING FROM OR RELATING TO THE EXHIBITION
DISSEMINATION OR PUBLICATION BY THE Distributor OF ANY MATTER IN
ANY WAY INCLUDED IN OR FOUNDED UPON THE Service SUPPLIED BY AFX
HEREUNDER.
9.5 IT IS HEREBY AGREED THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, ALL CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY
CONCERNING THE FITNESS OF THE Service OR ANY DATA INCLUDED
THEREIN FOR A PARTICULAR PURPOSE) ARE HEREBY EXCLUDED.
10. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform its
obligations caused by any industrial dispute or other circumstances
beyond its reasonable control.
11. ASSIGNMENT
This Agreement is personal to the Distributor the Distributors parent
and subsidiaries entirely owned by the Distributor and the Distributor
shall not assign or otherwise transfer its rights or obligations under
this Agreement without the prior written consent of AFX.
12. CONFIDENTIALITY
Each party agrees to preserve the confidentiality of all "Confidential
Information" of the other party which is obtained in connection with this
Agreement, and shall not, without the prior written consent of the other
party, disclose or make available to any person, or use for its own
benefit other than as contemplated by this Agreement, any such
"Confidential Information" of the other party.
For the purpose of this section, "Confidential Information" shall mean
information pertaining to the business of either party which is actually
confidential, is disclosed at the request of or with the consent of the
receiving party, and is clearly labelled or identified as confidential;
provided that all customer lists, pricing information, business methods
and financial records of either party shall be deemed Confidential
Information even if not so labelled; and provided further that
Confidential Information shall not include any information which is or
becomes publicly available (other than through unauthorized disclosure by
the receiving party), is in the possession of or known to the receiving
party prior to its disclosure hereunder, is independently developed by the
receiving party, or is made available to the receiving party by any person
other than the disclosing party without breach of any obligation of
confidentiality of such other person.
14. AFX warrants that at the date of execution of this Agreement the
Distributor is not required to enter into any third party licence
agreement or to pay any fees to a third party. This Agreement is however
subject to any requirement of the Stock Exchange as may be imposed from
time to time. AFX will notify the Distributor of any such requirements. In
the event that the imposition of such requirements would render delivery
of the Services by the Distributor no longer commercially viable, and as a
consequence, the Distributor finds the requirements unacceptable the
Distributor may inform AFX of the position in writing within thirty days
of the notification of the requirements by AFX. AFX and the Distributor
shall then discuss the best way of proceeding in the circumstances
bearing in mind the need for both parties to fulfil existing obligations
to Customers but if no mutually acceptable arrangements can be found under
which the Distributor can continue to deliver the Services, the
Distributor may terminate this Agreement by giving AFX at least fifteen
weeks' notice in writing, such notice to expire on a Quarter Day.
15. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between AFX and the
Distributor as to the subject matter hereof and supersedes all previous
communications, representations and arrangements, either written or oral,
and the Distributor hereby acknowledges that no reliance is placed on any
representation made but not embodied in this Agreement.
16. SURVIVAL OF PROVISIONS
Notwithstanding the termination of this Agreement for whatever reason
articles 7, 9 and 12 shall continue in full force and effect.
17. LAW
This Agreement shall be subject to English Law and English Jurisdiction.
FOR AND ON BEHALF OF THE DISTRIBUTOR
Signature /s/ Xxxxxx Xxxxx /s/ Xxxx Xxxxxxx
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Name Xxxxxx Xxxxx Xxxx Xxxxxxx
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Title CFO CEO
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Date 23.1.1997 28.01.1997
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FOR AND ON BEHALF OF AFX
Signature
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Name
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Title
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Date
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SCHEDULE 1
THE SERVICE
The Service comprises of AFX-Europe as described in the current Brochure,
copies of which are available on request.
COMMENCEMENT DATE 1st February 1997
THE PRIMARY SITE MBC Morgines
Business Centre
00 Xxxxxx xxx Xxxxxxxx
0000 Xxxxx-Xxxxx
Xxxxxx
Xxxxxxxxxxx
ADDITIONAL SITE(S) To be advised
DELIVERY ROUTE(S) Via S & P Xxxxxxxx to Primary Site
SCHEDULE 2 (REDISTRIBUTOR)
TERRITORY/NETWORK PRODUCT EUROPE (Professional Service)
LICENSE GLOBAL (Private Investor Service)
GRANT OF LICENSE FOR THE DISTRIBUTOR TO MAKE INTERNAL USE OF AND TO REDISTRIBUTE
THE SERVICE
1. GRANT OF LICENSE FOR THE DISTRIBUTOR TO MAKE INTERNAL USE OF THE SERVICE
AFX grants to the Distributor the non-exclusive right and license to
store the Service on the Distributor's computer system, and to use the
data comprising the Service for marketing demonstrations and other
internal purposes not involving any direct distribution of the Service
to the Distributor's customers or to any other persons or organizations
and not involving any usage of any part of the Service as source material
for any service run by the Distributor.
2. GRANT OF LICENSE TO REDISTRIBUTE THE SERVICE
Subject to the Charges specified herein and the provisions of paragraph
3 below, AFX hereby grants to the Distributor the non-exclusive right and
license to redistribute the Service, or portions thereof, to Subscribers
within the Territory on the following basis:
a) Private Investors - WEB Delivery-Delayed
i. Base new service provided to ALL Virtual Telecom customers by
selection of:
All stories coded "SUM"
ii. Optional upgrade to full Swiss service and key economic indicators
by selection of:
All stories coded "SWI"
All stories coded "IND" and "GBR"/"USA"/"GER"/"JPN"
b) Professional Users - Xxxxxxxx Software Delivery
i. Base new service provided to ALL Virtual Telecom customers by
selection of:
All stories coded "SUM"
ii. Optional upgrade to full Swiss service and key economic indicators
by selection of:
All stories coded "SWI"
All stories coded "IND" and "GBR"/"USA"/"GER"/"JPN"
iii. Optional upgrade to full AFX-Europe service - Real Time
3. ARRANGEMENTS BETWEEN THE DISTRIBUTOR AND SUBSCRIBERS FOR THE SERVICE
The Distributor shall exert its best efforts to ensure that, before any
Subscriber may obtain access to or is provided any delivery of the
Service, such Subscriber shall have executed the Distributor's standard
form of subscription agreement, examples of which are appended hereto.
Should the Distributor wish to modify its standard form of subscription
agreement it shall give AFX reasonable prior notice of such proposed
modifications.
In the event that such proposed modifications are unacceptable to AFX,
AFX shall notify the Distributor in writing within fourteen days of
receipt of the notice from the Distributor. The Distributor shall have
the opportunity to withdraw such proposed modifications by giving written
notice of withdrawal within seven days of receipt of the said notice from
AFX. Absent such notice of withdrawal by the Distributor AFX shall have
the right to terminate the Agreement without penalty by giving prior
written notice to the Distributor such notice to take effect on the
proposed date of modification or the actual date of modification if
earlier.
4. SUBSCRIBER COMPLIANCE
The Distributor shall be under no affirmative obligation to AFX to
monitor Subscribers' on-going compliance with the specific terms of their
respective subscription agreements. However, in the event that it should
come to the attention of an officer of the Distributor, or if AFX should
notify the Distributor, Subscriber is then using the Service other than as
permitted under the terms of that Subscriber's subscription agreement for
the Service, the Distributor shall, upon becoming so aware or upon receipt
take prompt corrective action, if appropriate. Unless such breach is cured
within a reasonable period by the Subscriber after notice by the
Distributor, the Distributor shall so notify AFX, and upon receiving
appropriate written instructions from AFX, the Distributor shall
discontinue providing the Service to such Subscriber and shall take such
further action on behalf of AFX as is reasonably requested by AFX to
protect its proprietary rights in the Service; provided that any
litigation initiated against any such Subscriber shall be initiated in the
name and at the sole expense of AFX; and provided, further, that;
i) in no event shall the Distributor be under any obligation to AFX to
initiate litigation in the Distributor's own name against any
Subscriber; and
ii) in no event shall the Distributor have any obligation hereunder to
pay royalties to AFX relating to the period prior to receipt of
notice from AFX given under this Section for any such unpermitted
use of the Service by any Subscriber of which an officer of the
Distributor did not have actual knowledge or the Distributor could
not reasonably prevent.
AFX hereby agrees to indemnify the Distributor against any claims
asserted against the Distributor by Subscribers whose subscriptions to
receive the Service have been terminated by the Distributor at the
instruction of AFX in so far as such claims relate to such termination.
5. REPORTS
i) The Distributor shall provide written notification to AFX within
thirty days of the end of each month the name, address and locations
and number of Terminals of each Subscriber which had access to or
was provided any delivery of the Service within each Territory during
such months together with a listing of the Charges payable in
respect of each such Subscriber, and (for any new Subscriber) the
date of commencement of use of the Service by such Subscriber during
each month.
ii) Charges are payable quarterly in arrears and shall be remitted to AFX
together with the reports specified in paragraph 5.1 above. Charges
in respect of part periods shall be payable pro rata.
iii) The Distributor shall provide written notification to AFX on a regular
basis on Subscribers trilling the Service. See also 8 (c) below.
6. DEMONSTRATION AND TEST DATA
In connection with the Distributor's marketing efforts, the Distributor
shall have the right to conduct limited demonstrations of the use of the
Service to potential Subscribers. Such limited demonstrations shall not
include the accommodation of any person's needs beyond a point reasonably
necessary to obtain such person as a Subscriber for the Service.
Un-charged Subscriber trials of the Service will not normally exceed one
month.
7. CHARGES
i) The Distributor's Charge obligations hereunder shall arise upon
delivery of the Service. Payments shall be remitted to AFX in
Pounds Sterling at the address in London specified by AFX from time
to time.
ii) The Distributor shall maintain such books and records as are necessary
to establish the accuracy of the Charge payments and reports to be
made hereunder. The Distributor shall, not more frequently than once
each calendar year, provide access to such records during normal
working hours to independent accountants appointed by AFX. for the
purpose of verifying the Charge payments paid and payable hereunder.
Such verification shall be at AFX's expense.
CHARGES:
MINIMUM CHARGES
QTR 1 L3000
QTR 2 L4500
QTR 3 L6000
QTR 4 L7500
(a) PRIVATE INVESTOR SERVICE
i. BASE NEWS SERVICE TO ALL VIRTUAL TELECOM CUSTOMERS
L1.00 PER USER/MONTH
ii. OPTIONAL UPGRADE TO SWISS SERVICE AND ECONOMIC INDICATORS
UPGRADE L5.00 PER USER/MONTH
(b) PROFESSIONAL SERVICE
i. BASE NEWS SERVICE TO ALL VIRTUAL TELECOM CUSTOMERS
L1.00 PER USER/MONTH
ii. OPTIONAL UPGRADE TO SWISS SERVICE AND ECONOMIC INDICATORS
UPGRADE L5.00 PER USER/MONTH
iii. OPTIONAL UPGRADE TO FULL AFX-EUROPE SERVICE
UPGRADE L50.00 PER USER/MONTH
The Charges are subject to variation by AFX giving to the
Distributor at least three months written notice to expire on any
Quarter Day. In the event of AFX varying the Charges hereunder the
Distributor shall be bound to pay such varied Charges unless within
14 days of the receipt of said notice it gives AFX written
notification that it elects to treat the same as a valid notice to
terminate this Agreement in which case this Agreement shall terminate
on the expiration of said notice and AFX shall forthwith refund to
the Distributor any balance of Charges paid in respect of any period
beyond such termination date.
iii) The Distributor reserves the right to Charge its Subscribers such
fees for access to the Service as the Distributor may consider to be
appropriate under the circumstances, taking into account the
royalties payable hereunder to AFX, the prevailing market prices for
comparable services and the Distributor's own transmission services
and other costs.
8. MARKETING AND SUBSCRIBER SUPPORT
a) AFX agrees to provide to the Distributor and the Distributor's
Subscribers and prospective Subscribers, at no additional charge, copies
of documentation describing the Service. Such documentation shall
conform to AFX's usual standard.
b) Any publicity material and other documentation prepared by or at the
request of the Distributor which refers to the trademark 'AFX' or any
other name or xxxx owned by AFX shall first be submitted to AFX for
approval, and approval shall be obtained, before publication. Such
approval shall not unreasonably be withheld.
c) The Distributor agrees to exert all reasonable efforts to market the
Service and provide information to AFX on Subscriber reactions to
trials. The Distributor also agrees to provide Subscriber contact
information on prospective Subscribers in the event that the Distributor
is, for any period, unable to promote AFX fully.
9. NO AGENCY
The relationship between the parties is that of independent contractors and
nothing contained in this Agreement shall be construed so as to create any
partnership, agency, joint venture or similar relationship.
