EXHIBIT 10.9
CONTENT DISTRIBUTION AGREEMENT
THIS CONTENT DISTRIBUTION AGREEMENT is between DOW XXXXX & COMPANY, INC., a
Delaware corporation ("Dow Xxxxx") and the undersigned corporation, partnership
or other legal entity ("Distributor").
Distributor owns and operates the electronic service defined in Exhibit A (the
"Distributor Service"). Distributor wants to obtain from Dow Xxxxx the right to
receive the content defined in Exhibit B (the "Dow Xxxxx Information") via the
delivery methods defined in Exhibit C (the "Delivery Methods") and provide
subscribers to the Distributor Service access to the Dow Xxxxx Information, all
on the terms and conditions set forth below.
1. GRANT OF RIGHTS; RESTRICTIONS.
(a) ACCESS TO DOW XXXXX INFORMATION. Dow Xxxxx hereby grants to
Distributor, subject to the terms and conditions contained in this Agreement, a
limited, non-exclusive, nontransferable right to: (i) receive via the Delivery
Methods the Dow Xxxxx Information; (ii) store the Dow Xxxxx Information only for
the calendar week in which it is published in accordance with Exhibit A on one
host computer owned and operated by Distributor located within the United States
(the "Distributor Host Computer"); and (iii) distribute the Dow Xxxxx
Information solely to "Distributor Subscribers" (as defined in Section 1(b)(i)),
solely by means of the Distributor Service and solely by means of the
distribution methods defined in Exhibit A (the "Authorized Distribution
Methods"). No provision of this Agreement shall be deemed to restrict or limit
Dow Xxxxx' right to market, sell, distribute, display or otherwise provide
access to the Dow Xxxxx Information directly or indirectly anywhere in the
world, or enter into contracts, grant licenses or make arrangements with any
other party to market, sell, distribute, display or otherwise provide access to
the Dow Xxxxx Information anywhere in the world. Distributor shall not
sublicense or otherwise transfer or assign any right granted in Section 1(a) to
any other person or entity.
(b) DISTRIBUTOR SUBSCRIBERS.
(i) A "Distributor Subscriber" shall mean an individual:
(A) whose principal residence is in the territory defined in Exhibit A
("Territory"); and (B) who has become legally bound by a contract with
Distributor which contains at a minimum the terms and conditions set forth in
Exhibit D regarding access to the Dow Xxxxx Information (the "Distributor
Subscriber Agreement"); and (C) who has access via the Distributor Service to
any portion of the Dow Xxxxx Information. Distributor shall not permit any
corporation, partnership or other type of legal entity, other than an
individual, to become a Distributor Subscriber and receive access to any Dow
Xxxxx Information, without Dow Xxxxx' prior written consent. Distributor shall
not amend any term in the Distributor Subscriber Agreement that relates to the
Dow Xxxxx Information without Dow Xxxxx' prior consent. In the event of any
conflict between the Distributor Subscriber Agreement and this Agreement, the
term in this Agreement shall control.
(ii) Distributor shall distribute Dow Xxxxx Information
only to Distributor Subscribers who pay a fee for access to the Dow Xxxxx
Information through the Distributor Service. Distributor shall not post the Dow
Xxxxx Information in any "public" or "free" area, or area accessible without a
password, on the World Wide Web or through any other distribution method, except
as expressly set forth otherwise on Exhibit A.
(c) ADDITIONAL LICENSE RESTRICTIONS.
(i) Distributor shall not distribute the Dow Xxxxx
Information to any third party other than a Distributor Subscriber or distribute
the Dow Xxxxx Information through any means other than through the Distributor
Service and the Authorized Distribution Methods. Distributor shall not make the
Dow Xxxxx Information available through third parties by incorporating or
"bundling" the Distributor Service as one information source or service of many
available through third-party front-end software or a third-party electronic
information service or Internet site. Distributor shall not permit Distributor
Subscribers to access the Dow Xxxxx Information via any interactive online or
electronic information service other than the Distributor Service. Distributor
shall not actively engage in or authorize making any of the Dow Xxxxx
Information available: (a) as part of a "co-branded" or "private label" web
site, web service, or Internet access service, or as part of a "channel" through
a software or Internet service, or similar arrangements or relationships that
offer or provide access to Dow Xxxxx Information from or through other web
sites, web services, or Internet access services; or (b) as part of the
Distributor Service when "framed" and displayed as part of another web site or
web service.
(ii) Distributor shall not allow the Dow Xxxxx Information
to be indexed by a web search engine that is not operated as part of the
Distributor Service.
(iii) Distributor shall not grant any site or enterprise
licenses to receive access to Dow Xxxxx Information, without Dow Xxxxx' prior
written consent.
(iv) All rights not expressly granted to Distributor
herein shall be retained by Dow Xxxxx.
2. DELIVERY OF DOW XXXXX INFORMATION.
(a) DELIVERY AND INSTALLATION. Distributor shall acquire, install,
operate and maintain at its expense all communications lines, equipment,
software, services and related technology necessary to receive the Dow Xxxxx
Information via the Delivery Methods. Distributor also shall be responsible for,
and shall pay for, any development work, software or hardware relating to the
setup and integration of the Dow Xxxxx Information as part of the Distributor
Service.
(b) LIMITATIONS ON USE. Except as specifically provided herein,
Distributor shall not use, store, manipulate, distribute or otherwise make
available, and shall use reasonable commercial efforts to cause each third party
who obtains access to Dow Xxxxx Information (including, without limitation, any
Distributor Subscriber) not to use, store, manipulate, distribute or otherwise
make available, any Dow Xxxxx Information without the prior written consent of
Dow Xxxxx. Except for the process of converting the Text Information (defined in
Exhibit B) into audio format as described in the exhibits attached to this
Agreement, Distributor shall not, and shall use reasonable commercial efforts
not to permit any other party to, edit, alter or otherwise change in any manner
the content, format or presentation of the Dow Xxxxx Information, including,
without limitation, all copyright and proprietary rights notices.
(c) SERVICE PRESENTATION. Distributor shall insure that all Dow
Xxxxx Information available through the Distributor Service is identified as
content from Dow Xxxxx, including, without limitation, prominently displaying on
the Distributor Service the Dow Xxxxx-branded logos provided to Distributor by
Dow Xxxxx. Dow Xxxxx shall have the right to approve the final presentation of
the Dow Xxxxx Information in the Distributor Service prior to the date the Dow
Xxxxx Information is first made commercially available in the Distributor
Service (the "Commercial Availability Date"), and shall have
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the right to require reasonable changes in the presentation of the Dow Xxxxx
Information from time to time during the term of this Agreement.
(d) QUALITY OF TRANSMISSIONS. Distributor shall use its best
efforts to ensure that conversion of Text Information into audio format and each
transmission of Dow Xxxxx Information (i) is of high quality, (ii) contains an
accurate and complete copy of the Dow Xxxxx Information, and (iii) is free from
errors or defects.
3. PROPRIETARY RIGHTS.
(a) OWNERSHIP; COPYRIGHT. Distributor acknowledges and agrees that
all ownership and proprietary rights (including, without limitation, the
copyrights) to the Dow Xxxxx Information are and shall remain the sole and
exclusive property of Dow Xxxxx or its licensors.
(b) TRADEMARKS. Distributor acknowledges and agrees that Dow Xxxxx
or its licensors are the sole owners of the trademarks and service marks
("Marks") used in connection with the Dow Xxxxx Information and that nothing
contained in this Agreement grants Distributor any right to use any Dow Xxxxx
Xxxx, logo or trade name, except as expressly provided in this Agreement.
(c) INFRINGEMENT. Distributor shall promptly advise Dow Xxxxx of
any possible infringement of which Distributor becomes aware of any of Dow
Xxxxx' Marks, copyrights, trade secrets or other proprietary rights, or any use
of the Dow Xxxxx Information in violation of this Agreement.
4. ADVERTISING AND PROMOTION.
(a) ADVERTISING. Distributor shall not include (whether in visual,
audio or other format) or display third party advertising or promotional
materials with the Dow Xxxxx Information or any Dow Xxxxx Xxxx, logo or trade
name. This shall mean, among other things, that no audio advertisements will be
heard before, during or after the Dow Xxxxx Information is played and that no
banners or video advertisements will be played by the video portion of any
player while the Dow Xxxxx Information is being played.
(b) PROMOTIONAL MATERIALS. Distributor shall not make, publish or
distribute or cooperate with any third party in making, publishing or
distributing any public announcements, press releases, advertising, marketing,
promotional or other materials (whether in print, electronically or otherwise)
("Materials") that use Dow Xxxxx' name, logos, or Marks with regard to the
execution or performance of this Agreement, without the prior written approval
of Dow Xxxxx. If Dow Xxxxx has not notified Distributor of its disapproval
within 10 days after Distributor delivers samples of a particular item of
Material, such Material shall be deemed approved. Any breach by Distributor of
this Section shall be deemed an incurable default under this Agreement and in
the event of such breach, Dow Xxxxx may immediately terminate this Agreement
upon notice to Distributor.
5. PAYMENTS.
(a) CALCULATION OF PAYMENTS. Beginning on the earlier of (i) the
Commercial Availability Date or (ii) 30 days after the Effective Date,
Distributor shall pay to Dow Xxxxx the payments ("Payments") defined in Exhibit
E at the times set forth in Exhibit E.
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(b) PAYMENT. Within thirty (30) days after the end of each
calendar month during the term of this Agreement, Distributor shall deliver to
Dow Xxxxx a check in an amount equal to the Payment for such period, and a
report setting forth sufficient information for Dow Xxxxx to determine how the
Payment was calculated, a breakdown of the number of Distributor Subscribers
whose principal residence is outside the U.S. and Canada, and any other
information agreed upon by both parties.
(c) TAXES. Distributor shall pay any taxes, fees and similar
governmental charges related to the execution or performance of this Agreement,
other than applicable income taxes imposed on Dow Xxxxx related to its receipt
of Payments.
(d) MAINTENANCE AND INSPECTION OF RECORDS. Distributor shall
maintain complete and accurate books and records, in accordance with generally
accepted accounting practices, of all matters related to its compliance with its
obligations hereunder ("Records"). Dow Xxxxx shall have the right itself, or
through its authorized representatives, upon at least 30 days' prior written
notice to inspect the Records of Distributor during normal business hours no
more than twice per year; PROVIDED, HOWEVER, if such inspection reveals an
underpayment to Dow Xxxxx of more than 4%, the cost of such inspection shall be
paid by Distributor. Dow Xxxxx will keep confidential all information gained
from such inspection, and use it solely for the purpose of verifying compliance
with the terms hereof.
(e) CURRENCY. All amounts are stated in U.S. Dollars and shall be
paid in U.S. currency.
6. INDEMNIFICATION.
(a) BY DOW XXXXX. Dow Xxxxx shall indemnify and hold harmless
Distributor against all liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Distributor that arise out of any claim asserted by
a third party that involves, relates to or concerns Dow Xxxxx Information
(except for claims for which Dow Xxxxx is entitled to indemnification under
Section 6(b), in which case Dow Xxxxx shall have no indemnification obligations
with respect to such claim); provided that Distributor, upon receipt of notice
of a claim that could result in Dow Xxxxx indemnifying Distributor pursuant to
this subsection, gives prompt written notice to Dow Xxxxx of the existence of
such claim and permits Dow Xxxxx, if it so requests, either to conduct the
defense of such claim or to participate with Distributor in the defense thereof
and in any settlement negotiations relating thereto; PROVIDED, HOWEVER, that Dow
Xxxxx shall not be required to pay any settlement amount that it has not
approved in advance.
(b) BY DISTRIBUTOR. Distributor shall indemnify and hold harmless
Dow Xxxxx against all liabilities, costs and expenses (including reasonable
attorneys' fees) incurred by Dow Xxxxx that arise out of any claim asserted by a
third party that involves, relates to or concerns (i) the marketing, sale, or
promotion by Distributor of the Distributor Service, (ii) any use by Distributor
of any Dow Xxxxx Information in violation of this Agreement; or (iii) any claim
alleging that the Distributor Service infringes any patent, trade secret,
copyright or other intellectual property rights of any third party; provided
that Dow Xxxxx, upon receipt of notice of a claim that could result in
Distributor indemnifying Dow Xxxxx pursuant to this subsection, gives prompt
written notice to Distributor of the existence of such claim and permits
Distributor, if it so requests, either to conduct the defense of such claim or
to participate with Dow Xxxxx in the defense thereof and in any settlement
negotiations relating thereto; PROVIDED, HOWEVER, that Distributor shall not be
required to pay any settlement amount that it has not approved in advance.
(c) DISCLAIMER. DOW XXXXX PROVIDES THE DOW XXXXX INFORMATION "AS
IS", WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. DOW XXXXX DOES NOT WARRANT
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THE ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY, MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OF THE DOW XXXXX INFORMATION, AND DOW XXXXX SHALL NOT BE
LIABLE TO DISTRIBUTOR OR TO ANY THIRD PARTY WITH RESPECT TO ANY ACTUAL OR
ALLEGED INACCURACY, UNTIMELINESS, INCOMPLETENESS, INADEQUACY, UNMERCHANTABILITY
OR UNFITNESS. DISTRIBUTOR SHALL NOT MAKE ANY STATEMENT RESPECTING THE DOW XXXXX
INFORMATION THAT IS CONTRADICTORY TO OR INCONSISTENT WITH THE FOREGOING
STATEMENTS.
7. TERM AND TERMINATION.
(a) TERM. The term of this Agreement shall commence on the
Effective Date (defined on last page of this Agreement) and shall terminate on
the first anniversary of the Effective Date. Unless either party delivers to the
other written notice of nonrenewal at least 60 days prior to the end of the
then-current term or renewal term, this Agreement shall automatically be
extended for additional one year terms.
(b) TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement for any or no reason by delivering 90 days notice to the other party.
(c) UNCURED BREACH. If either party shall breach any provision
contained in this Agreement (other than a breach of Sections 4(b) or 8), and
such breach is not cured within 30 days after receiving written notice of such
breach from the other party, the party giving such notice may then deliver a
second written notice to the breaching party, terminating this Agreement, in
which event this Agreement, and the licenses granted hereunder, shall terminate
on the date specified in such second notice.
(d) CESSATION OF SERVICE. If Dow Xxxxx discontinues publishing or
commercial distribution of the Dow Xxxxx Information, then either party may
cancel this Agreement upon thirty (30) days' prior written notice to the other
party.
(e) INSOLVENCY. In the event that either party shall be adjudged
insolvent or bankrupt, or upon the institution of any proceedings by it 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 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, and the licenses granted hereunder, upon written notice.
(f) CHANGE IN CONTROL. If there is a direct or indirect change in
the effective voting control of Distributor, or if Distributor merges into or is
acquired by a third party, or if Distributor sells or transfers the Distributor
Service or all or substantially all of the assets of the business unit
containing the Distributor Service to a third party (a "Change in Control"),
then Distributor shall give prompt written notice thereof to Dow Xxxxx, and Dow
Xxxxx at its option may, within 30 days after receipt of such notice, terminate
this Agreement immediately by delivering written notice. Distributor may notify
Dow Xxxxx in writing of any proposed Change in Control prior to its proposed
effectiveness, and Dow Xxxxx shall, within 30 days after receipt of such notice
(or if no timely notice is given, at any time after Dow Xxxxx learns of such
Change in Control), notify Distributor whether Dow Xxxxx would exercise its
right to terminate this Agreement if such proposed Change in Control were
consummated.
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(g) EFFECT OF TERMINATION. Upon the expiration or termination of
this Agreement for any reason, Distributor shall (i) immediately inhibit all
access to the Dow Xxxxx Information through the Distributor Service, (ii) delete
any Dow Xxxxx Information then stored on the Distributor Host Computer, (iii)
cease advertising and promoting the availability of the Dow Xxxxx Information
via the Distributor Service and (iv) discontinue all uses of Dow Xxxxx' trade
names or Marks. In addition, upon expiration or termination of this Agreement,
each party, at its expense, shall promptly return to the other all copies of the
other party's Confidential Information.
8. CONFIDENTIAL INFORMATION. Distributor and Dow Xxxxx understand and
agree that in the performance of this Agreement each party may have access to
private or confidential information of the other party, including, but not
limited to, trade secrets, marketing and business plans and technical
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"). Both parties agree that the terms of this Agreement, including
without limitation its financial terms such as the Payments and the information
contained in reports, shall be deemed Confidential Information owned by the
other party. Distributor acknowledges and agrees that the technical and
functional specifications and the code and design of the Composite Feed and all
tools and utilities supplied by Dow Xxxxx to Distributor are Confidential
Information of Dow Xxxxx. In addition, information that is orally disclosed to
the other party shall constitute Confidential Information if within 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: (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
Information or (vi) is released from confidential treatment by written consent
of the disclosing party.
9. MISCELLANEOUS.
(a) NOTICES. All notices shall be in writing, and delivered by
certified mail, return receipt requested, overnight courier service, or by
facsimile with confirmation to the address set forth on the signature page, or
other address stipulated in writing by a party. Notice shall be deemed delivered
and received on the date it is actually received.
(b) AMENDMENT, ASSIGNMENT. This Agreement may not be amended
except in a writing executed by authorized representatives of Distributor and
Dow Xxxxx. Any such purported assignment without such prior written consent
shall be void. Distributor shall not assign this Agreement, or sublicense,
assign or delegate any right or duty hereunder, without the prior written
consent of Dow
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Xxxxx. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns.
(c) SURVIVAL OF CERTAIN PROVISIONS. The rights and obligations in
Sections 3(a), 3(b), 3(c), 4(b), 5(b), 5(c), 5(d), 5(e), 6, 7(g), 8 and 9 shall
survive termination or expiration of this Agreement for any reason.
(d) CONSEQUENTIAL DAMAGES. Except for amounts payable pursuant to
Section 6 or resulting from a breach of Section 8, neither party shall be liable
to the other for any damages other than direct damages, including but not
limited to consequential, indirect, special, exemplary, or punitive damages, or
any lost revenues or lost profits, even if advised of the possibility of such
damages.
(e) ENTIRE AGREEMENT. This Agreement contains the final and entire
agreement of the parties on the subject matter herein and supersedes all
previous and contemporaneous verbal or written negotiations or agreements on the
subject matter herein.
(f) WAIVER. The failure of either party at any time to require
performance by the other party of any provision hereof shall not 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 or its
application in a particular circumstance is held to be invalid or unenforceable
to any extent, the remainder of the Agreement, or the application of such
provision in other circumstances, shall not be affected thereby, and each
provision shall be valid and enforced to the fullest extent permitted by law.
(h) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, United States,
applicable to contracts wholly made and wholly performed in the State of New
York, United States. This Agreement will not be governed by the United Nations
Convention on Contracts for the International Sale of Goods.
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IN WITNESS WHEREOF, duly authorized representatives of both parties
hereto have executed this Agreement as of May 14, 1999 ("Effective Date"):
XXXXXXXXXXXX.XXX DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxx
--------------------------------- -------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxx
Title: Chief Operating Officer Title: Director, Distribution
Date: May 14, 1999 Date: May 14, 1999
Address for Notices:
00000 Xxxxxxx Xxx. X.X. Xxxxxxx 0 at Ridge Road
Cupertino, CA 95014 Xxxxx Xxxxxxxxx, XX 00000
Fax: 000.000.0000 Attn.: Director,
Internet Distribution,
Dow Xxxxx Interactive Publishing
Fax: 000.000.0000
With a copy to the same street with a copy to the same street
address, but address, but
Attn.: Legal Department Attn.: Legal Department
Fax: 000.000.0000 Fax: 000.000.0000
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EXHIBIT A
DESCRIPTION OF THE DISTRIBUTOR SERVICE;
AUTHORIZED DISTRIBUTION METHODS; TERRITORY
DESCRIPTION OF SERVICE:
The Distributor Service, which is owned and operated by Distributor, provides
users ("Users") who access Distributor's public web site at
(xxx.xxxxxxxxxxxx.xxx) with the ability to download various audio programs,
including books in audio format, radio shows, music, and other text information
that has been recorded in an audio format. Downloading is done via the
Distributor's web site. The audio files are managed by the Audio Wiz software or
by other client applications such as Media Player, which are free to Users
("Download Software"). Users can then listen to the programming when and where
they like, via either a portable listening device, or directly from their
computers with a compatible sound card and speakers attached to their computer.
Content available through the Distributor Service will be distributed in either
.wav, Microsoft Media Player, MP3, Real Audio or ADPCM format. The devices that
Users can use to access such content include the Distributor's proprietary
mobile device, the Diamond Multimedia Rio player, Creative Lab's Nomad Products
and certain audio-enabled Windows CE devices.
Distributor Subscriber will only make the Dow Xxxxx Information available to a
subset of such Users who are Distributor Subscribers and who have paid a fee to
access the Dow Xxxxx Information.
AUTHORIZED DISTRIBUTION METHODS:
Distributor shall distribute the Dow Xxxxx Information only to Distributor
Subscribers who have the Download Software, and who have paid a subscription fee
to access the Dow Xxxxx Information. Distributor may make the Dow Xxxxx
Information available in either daily or monthly packages and not in any other
packages (e.g., weekly or yearly). Distributor may make the Text Information and
Audio Information available either as a package or as separate levels of
service, so long as Distributor Subscribers are always charged a fee for the Dow
Xxxxx Information.
TERRITORY:
Distributor will only market the availability of the Dow Xxxxx Information to
Users residing in North America.
ARCHIVING: During each calendar week during the term of this Agreement,
Distributor shall be permitted to make available to Distributor Subscriber an
archive of the Dow Xxxxx Information published during the immediately preceding
seven days. Distributor shall owe monthly licensing fees on use of archived Dow
Xxxxx Information to the same extent that it owes licensing fees on current Dow
Xxxxx Information.
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EXHIBIT B
DESCRIPTION OF THE DOW XXXXX INFORMATION
The Dow Xxxxx Information is comprised of the Audio Information and the Text
Information.
AUDIO INFORMATION
THE WALL STREET JOURNAL TODAY REPORT ("WSJ Today"): Dow Xxxxx' radio group,
using its editorial discretion, will produce an audio summary that is
approximately 15-20 minutes in length covering the major stories and columns
from The Wall Street Journal. The program will be available via ISDN line, or
other format mutually acceptable to both parties, approximately 12:00 p.m.
eastern time each day The Wall Street Journal is published.
TEXT INFORMATION
The Distributor shall be permitted to record in an audio format the "What's News
- Business and Finance and World View" column, as it appears in the print
edition of The Wall Street Journal on page A1 each day The Wall Street Journal
is published. Text Information shall include only the information found on page
A1, and shall not include the full stories related to each item in the What's
News column. A sample of the Text Information is attached in Exhibit B-1.
The Text Information shall be available to Distributor upon publication in The
Wall Street Journal, which is typically around 2:00 a.m. eastern time, each day
The Wall Street Journal is published.
The Text Information shall be deemed Confidential Information of Dow Xxxxx until
6 a.m. Eastern time of the day it is published at which point it may be
distributed in accordance with this Agreement.
The Text Information shall be delivered to Distributor via e-mail in a text
file, in a format acceptable to both parties. The Text Information shall be sent
in two deliveries each day, one for "Business and Finance", using The Wall
Street Journal publishing code J/BZF as the identifier, and one for "World
Wide", using The Wall Street Journal publishing code J/WLD as the identifier.
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EXHIBIT B-1
What's News--
* * *
BUSINESS AND FINANCE
BOND PRICES FELL to their lowest level since August amid fears of higher
interest rates and worries that Japanese investors are preparing to pull some
money back home. A weak auction of two year Treasury notes was a catalyst. The
30-year bond declined 1 3/32, while its yield rose to 5.505%. The Dow Xxxxx
industrials fell 144.75 points, or 1.52%, to 9399.67, and the Nasdaq composite
declined 1.56%.
XXXXXXXXX TOOK a swipe at overpaid corporate executives and warned
against raising the minimum wage.
(Articles on Pages C1 and A2)
* * *
GUN-INDUSTRY REPRESENTATIVES and a leading lawyer representing New
Orleans in its suit against the industry have held at least one preliminary
discussion aimed at arranging a possible settlement of handgun litigation.
(Article on Page A3)
* * *
THREE SPORT-UTILITY VEHICLES flipped in crash tests by traffic-safety
regulators, the first time the government reported such results. The findings
raise the chances of tougher rules.
(Article on Page A3)
* * *
AT&T'S XXXXXX XXXXXXXXXX, president of the business-services group, is
quitting to be CEO of Global Crossing, a two-year-old firm, in a rare defection
from the chairman's executive team.
(Article on Page A3)
* * *
GLAXO'S RELENZA, a much-anticipated drug to fight the flu, failed to
clear an FDA advisory panel, and its American depositary receipts fell.
(Article on Page A4)
* * *
XXXXXX.XXX HAS BOUGHT 40% of Xxxxxxxxx.xxx, in an aggressive expansion
of its Internet shopping lineup, and may make more such investments in other
online merchants.
(Article on Page B1)
* * *
WORLD-WIDE
THE SENATE BACKED A MILITARY RAISE; THE HOUSE SPEAKER SEEKS BUDGET
FLEXIBILITY.
The Senate voted 91-8 to boost pay 4.8% for active-duty
personnel Jan. 1, with further raises later. That's more than Clinton
sought. Hastert signaled he may want to exceed spending caps at the core of
the 1997 balanced-budget deal. That would be controversial, but may help
the GOP spend more on defense and education and define itself as something
other than the impeachment party. (Articles on Pages A2 and A20)
AN AID PACKAGE OF MORE THAN $1 BILLION FOR CENTRAL AMERICA AND
JORDAN POSES A TEST FOR CLINTON AND CONGRESS AS THEY TRY TO MOVE BEYOND THE
IMPEACHMENT BATTLE.
* * *
SERB MEDIA EXULTED over what Belgrade clearly feels is a victory over
Western pressure for international peacekeepers to enforce a Kosovo deal. NATO
worries Serbia plans a big offensive against ethnic Albanians after Tuesday's
suspension of peace talks, which eased a threat of airstrikes.
* * *
THE INDEPENDENT COUNSEL LAW IS FLAWED and should be allowed to expire
in June, former Attorney General Xxxxxxx Xxxx and former GOP Senate leader
Xxxxxx Xxxxx told a Senate panel. Xxxxx favors letting the law expire, then
revising it after passions inflamed by the Starr inquiry have cooled.
* * *
WASHINGTON'S NORTH KOREA POLICY is under review. Former Defense
Secretary Perry is expected to tell Clinton tomorrow that the current cautious
engagement is a failure, and that Pyongyang should be offered a choice between
incentives to improve ties or isolation by the U.S. (Article on Page A12)
* * *
THE SUPREME COURT CLEARED the way for deportation of Palestinians
accused of backing terrorism. Justices, 5-4, barred foreigners unlawfully in the
U.S. from court reviews of claims of selective law enforcement. The ruling hurts
aliens' free-speech rights, the Palestinians' attorney said.
* * *
A CENSUS PLAN FOR 2000 WAS ATTACKED by congressional Republicans, who
warned the bureau is setting itself up for lawsuits by insisting on partial use
of statistical sampling. The bureau, following a recent Supreme Court ruling,
wants to use sampling for purposes other than apportionment.
* * *
XXXXXX XXXXXX WILL CLOSE one of its three U.S. cigarette-manufacturing
plants, eliminating 1,400 jobs and resulting in a $200 million pretax charge
against earnings in the first half.
(Article on Page A6)
* * *
GATEWAY IS BUYING A STAKE in an online computer-products retailer and
is jointly launching a site to sell software, peripherals and accessories.
(Article on Page B7)
* * *
A SENIOR MICROSOFT executive defended the business practices of his
company, saying it allows computer makers broad flexibility to add rivals'
software to machines with Windows.
(Article on Page B7)
* * *
BAAN MAY LAY OFF more employees as part of an effort to slash internal
costs and return to profitability, according to a recent internal memo.
(Article on Page B7)
* * *
XXXXXX'X ONLINE-TRADING SITE went down for the third time in two
months, in a 90-minute outage, as the company was trying to upgrade its systems.
(Article on Page C1)
* * *
OLIVETTI FILED A NEW $58 billion takeover offer for Telecom Italia,
but left unchanged the basic financial details first announced over the weekend.
(Article on Page A10)
* * *
SHORT INTEREST DECLINED 3.02% to 1.81 billion shares in the latest
month on the Nasdaq Stock Market.
(Article on Page C25)
* * *
MARKETS-
STOCKS: Volume 764,392,510 shares. Dow Xxxxx industrials 9399.67, off
144.75; transportation 3249.60, up 27.89; utilities 297.44, up 1.17.
BONDS: Xxxxxx Brothers Treasury index 8359.22, off 71.52.
COMMODITIES: Oil (April) $12.63 a barrel, up 15 cents. Dow Xxxxx-AIG
futures index 74.901, off 0.407; DJ spot index 111.92, off 0.58.
DOLLAR: 121.79 yen, up 0.87; 0.9091 euro, up 0.0007; 1.7780 marks, up
0.0013.
AN AVALANCHE STRUCK the Austrian town of Valzur, just seven miles from
where a snowslide buried dozens in Galtuer Tuesday. The two-day death toll in
the Tyrol rose to 18, and 20 remain missing at the two sites. Closed roads are
hampering rescue efforts.
* * *
U.S. JETS ATTACKED air-defense sites near Baghdad, at the edge of the
southern "no-fly" zone. Iraq says the planes were outside the zone, and
civilians died. Clinton said Baghdad appears to be aiming for the "symbolic
victory" of shooting down a U.S. jet.
* * *
THREE IRANIAN KURDS DIED fighting police during a protest over Turkey's
capture of rebel leader Xxxxxxxx Xxxxxx. In Berlin, a funeral for three Kurds
killed last week drew 8,500. Turkey again denied attorneys access to Ocalan.
(Related article on Page A12)
* * *
GENETICALLY MODIFIED PRODUCTS won't be regulated by an international
treaty after the U.S. and five other nations managed to scuttle the proposal at
talks in Colombia. Washington said it was opposed to additional burdens on
global agricultural trade.
* * *
A CHINESE AIRLINER CRASHED on approach to Wenzhou, 250 miles south of
Shanghai, killing all 61 aboard. The China Southwest Airlines Tupolev 154 was on
a flight in clear weather from the southwest city of Chengdu. Officials offered
no clues as to the cause.
* * *
CHINA "STRONGLY RESENTS" a U.S. decision to bar the $450 million sale
of a Xxxxxx Electronics satellite to Beijing, the foreign minister said. China
dismissed as groundless U.S. suspicions that the deal was intended to enhance
army communications.
* * *
SPACING BABIES 2 1/2 YEARS APART is ideal, according to a study by the
Centers for Disease Control and Prevention. Longer or shorter intervals were
found to increase the risk of underweight or premature babies.
* * *
IRELAND CHARGED ITS FIRST SUSPECT in the Aug. 15 bombing that killed 29
in Omagh, Northern Ireland. He is accused of conspiracy and belonging to an XXX
xxxxxxxx group. Others have also been detained in the case.
* * *
XXXXXXX XXXX XXXX BEGAIA ANNOUNCED HE IS quitting to teach at
Georgetown. Begaia has served since Clinton's 1992 election campaign. A White
House exodus was predicted after the end of impeachment proceedings.
EXHIBIT E
For the right to distribute Dow Xxxxx Information to Distributor Subscribers,
Distributor will pay to Dow Xxxxx monthly licensing fees ("Monthly Fees") equal
to the greater of 1, 2 and 3:
1. A monthly minimum based on the following schedule:
a. Months 1-6 following the Effective Date: $10,000 per month
b. Months 7+ following the Effective Date: $12,500 per month
2. The total of the following Per Distributor Subscriber Fees for such
month:
a. Daily Subscriptions: With respect to those Distributor
Subscribers who pay for a daily subscription to the Audio Information or the
Text Information, (1) $.30 each day for each level of service, where the Audio
Information and Text Information are sold as separate levels of service and (2)
$.50 each day if the Audio Information and the Text Information are bundled
together.
b. Monthly Subscriptions. With respect to those Distributor
Subscribers who pay for a monthly subscription to the Audio Information or the
Text Information, (1) $2.00 each month for each level of service, where the
Audio Information and Text Information are sold as separate levels of service
and (2) $3.00 each month if the Audio Information and the Text Information are
bundled together.
3. The total Percentage-Based Fees for such month:
a. Separate Services. With respect to those Distributor
Subscribers who access the Audio Information and Text Information as separate
levels of service, then 50% of any fees collected from Distributor Subscribers
in connection with such Dow Xxxxx Information.
b. Bundled Services. With respect to those Distributor
Subscribers who access the Audio Information and the Text Information as part of
a bundle containing content from other information providers, then Distributor
shall pay to Dow Xxxxx an amount calculated as follows:
Royalties = (1/2 * Fees) + Number of Information Providers;
where Royalties means the amount payable by Distributor to Dow Xxxxx in respect
of such bundled access; Fees are all the fees charged by Distributor to
Distributor Subscribers for such access and the Number of Information Providers
are the number information providers whose content are included in the bundle.
All amounts in this Exhibit are in U.S. Dollars.
14
