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Exhibit 10.12
S&P XXXXXXXX INFORMATION DISTRIBUTION
LICENSE AGREEMENT
AGREEMENT, made as of August 16, 1996, by and between S&P XxxXxxxx, Inc. a
corporation having offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
and Go2net, Inc. ("Distributor"), having an office at 0000 Xxxxx Xxxxxx, Xxx.
0000, Xxxxxxx, XX 00000.
WHEREAS, S&P XxxXxxxx, Inc. gathers, formats and distributes an information
service comprised of certain securities and commodities prices and other data
which is known as the S&P XxxXxxxx Service ("XxxXxxxx") and
WHEREAS, S&P XxxXxxxx, Inc. is licensed to distribute information from
various Stock Exchanges, Commodity Exchanges, and other sources (collectively,
"Sources") as part of S&P XxxXxxxx; and
WHEREAS, the parties desire that certain delayed information from S&P
XxxXxxxx ("the XxxXxxxx Information") as specified in Exhibit A (Part 1),
attached hereto, be made available to Distributor for display by Distributor on
its Internet and World Wide Web site (collectively, the "Distributor Service"),
as described fully in Exhibit B, attached hereto.
NOW, THEREFORE, the parties mutually agree as follows:
1. Distribution License.
(a) Distributor is hereby granted for the term of this Agreement a
nonexclusive, nontransferable right and license to distribute electronically the
XxxXxxxx Information via the Distributor Service solely for access by Internet
users of the Distributor Service (such users referred to herein as
"Subscribers"), provided that Distributor has executed in advance any and all
necessary documents with the various Sources, which documents have been accepted
and approved by the Sources. Notice of such Sources' acceptance and approval
must be supplied to S&P XxxXxxxx, Inc. prior to Distributor's use or
distribution of the XxxXxxxx Information.
(b) Distributor agrees and understands that it is not permitted to
sublicense, transfer, or assign its rights hereunder and that it shall not allow
the redistribution of the XxxXxxxx Information by any Subscriber or by any other
third party without the express prior authorization of S&P XxxXxxxx, Inc.
pursuant to a separate agreement or by mutually agreeable amendment executed and
attached hereto.
2. XxxXxxxx Equipment.
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(a) During the term of this Agreement, S&P Xxxxxxxx, Inc. shall provide
Distributor the equipment listed in Exhibit C, attached hereto ("the XxxXxxxx
Equipment"), for installation only at the site(s) specified therein. Distributor
shall not relocate the Xxxxxxxx Equipment without the written permission of S&P
Xxxxxxxx, Inc.
(b) S&P Xxxxxxxx, Inc. shall, at Distributor's expense and request,
install, furnish, and maintain necessary modems and/or communications interface
equipment.
(c) Distributor shall not attach, or permit or cause to be attached, any
nonComStock equipment to the Xxxxxxxx communications line or the XxxXxxxx
Equipment without the prior written permission of S&P XxxXxxxx, Inc.
(d) Distributor shall have no right in or to any of the XxxXxxxx Equipment
except for the rights of use herein granted. Distributor shafl pay all
extraordinary costs for repair or replacement of the Xxxxxxxx Equipment, over
and above ordinary maintenance which shall be performed by S&P XxxXxxxx, Inc.
Such extraordinary maintenance includes electrical work external to the XxxXxxxx
Equipment, maintenance of accessories or attachments, and repair of damage to
the XxxXxxxx Equipment resulting from accident, neglect, misuse, failure of
electrical power or causes other than ordinary use. Distributor shall promptly
return the Xxxxxxxx Equipment in good condition, ordinary wear and tear
excepted, upon termination of this Agreement for any reason.
3. XxxXxxxx Information.
(a) The ftirnishing to Distributor of the Xxxxxxxx Information is
conditioned upon strict compliance with the provisions of this Agreement, the
applicable policies of the Sources, and with all local, state and federal
regulations which might pertain to the use of the XxxXxxxx Information. It shall
be the sole responsibility of Distributor to confirm with the applicable Sources
whether or not all of the Xxxxxxxx Information may be distributed by Distributor
to its Subscribers. S&P Xxxxxxxx, Inc. may discontinue provision of the Xxxxxxxx
Information hereunder, without notice, whenever the terms of its agreements with
the Sources require such discontinuance, or if in its reasonable judgment S&P
XxxXxxxx, Inc. finds a breach by Distributor of any of the provisions of this
Agreement.
(B) NEITHER S&P XXXXXXXX, INC., NOR ANY OF ITS AFFILIATES, NOR ANY SOURCES
MAKE ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE).
NEITHER S&P XXXXXXXX, INC., ANY OF ITS AFFILIATES, OR ANY SOURCES WARRANT THAT
THE XXXXXXXX INFORMATION WILL BE UNINTERRUPTED OR ERROR-FREE. DISTRIBUTOR
EXPRESSLY AGREES THAT ITS USE AND DISTRIBUTION OF THE COINSTOCK INFORMATION AND
ITS USE OF THE XXXXXXXX EQUIPMENT IS AT THE SOLE RISK OF
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DISTRIBUTOR AND ITS SUBSCRIBERS. S&P XXXXXXXX, INC., ITS AFFILIATES, AND ALL
SOURCES INVOLVED IN CREATING OR PROVIDING THE XXXXXXXX INFORMATION WILL IN NO
WAY BE LIABLE TO DISTRIBUTOR OR ANY OF ITS SUBSCRIBERS FOR ANY INACCURACIES,
ERRORS OR OMISSIONS, REGARDLESS OF CAUSE, IN THE XXXXXXXX INFORMATION OR FOR ANY
DEFECTS OR FAILURES IN THE XXXXXXXX EQUIPMENT, OR FOR ANY DAMAGES (WHETHER
DIRECT OR INDIRECT, OR CONSEQUENTIAL, PUNITIVE OR EXEMPLARY) RESULTING
THEREFROM. THE LIABILITY OF S&P XXXXXXXX., INC. AND ITS AFFILIATES IN ANY AND
ALL CATEGORIES, WHETHER ARISING FROM CONTRACT, WARRANTY, NEGLIGENCE, OR
OTHERWISE SHALL, IN THE AGGREGATE, IN NO EVENT EXCEED ONE MONTH'S XXXXXXXX
INFORMATION DELIVERY FEE.
(c) Distributor agrees that it shall not display the XxxXxxxx Information
in the Distributor Service without a prominent notice indicating that the
XxxXxxxx Information is being displayed on a minimum fifteen (15) minute
delayed basis.
(d) Distributor also agrees to include S&P XxxXxxxx'x Terms and Condition
of Use, a copy of which is attached hereto as Exhibit E, within the Distributor
Service in a manner which alerts Subscribers of the applicability thereof.
(e) Distributor shall clearly and prominently identify S&P XxxXxxxx as the
source of the XxxXxxxx Information by display of the S&P XxxXxxxx logo (the
"Logo") in a manner to be agreed to by the parties. Distributor shall also
create a hypertext or other computer link from the Logo to the S&P XxxXxxxx site
on the World Wide Web.
(f) Distributor represents and warrants that it has and will employ
adequate security procedures to prevent the unauthorized access to the XxxXxxxx
Information or corruption of the XxxXxxxx Information.
(g) Distributor agrees to indemnify and hold S&P XxxXxxxx, Inc. and its
affiliates harmless from and against any and all losses, damages, liabilities,
costs, charges and expenses, including reasonable attorneys' fees, arising out
of (i) any liability of S&P XxxXxxxx, Inc. to any Subscriber where Distributor
has failed to include the Terms and Conditions of Use in the Distributor Service
pursuant to Section 3(d) above- or (ii) any breach or alleged breach on the part
of Distributor or any Subscribers with respect to its/their obligations to
obtain prior approvals from appropriate Sources and to comply with any
applicable conditions, restrictions or limitations imposed by any Source.
(h) S&P XxxXxxxx, Inc. represents that it has the rights and licenses
necessary to transmit the XxxXxxxx Information to Distributor, and that to the
best of S&P XxxXxxxx,
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Inc.'s knowledge, the license granted to Distributor hereunder does not infringe
any proprietary right or any third party right at common law or any statutory
copyright.
(i) S&P XxxXxxxx, Inc. shall deliver the XxxXxxxx Information to
Distributor at the site(s) set forth in Exhibit C or at such other locations as
Distributor may designate within the continental United States or Canada.
4. Payments.
In consideration for the license granted to Distributor by S&P XxxXxxxx,
Inc. under this Agreement, Distributor shall make the following payments to S&P
CorriStock, Inc.:
(a) Distributor shall pay to S&P XxxXxxxx, Inc. a basic XxxXxxxx
Information Delivery Fee of $ * , beginning at installation date,
which includes all recurring charges for XxxXxxxx Satellite network connection,
Satellite Communications fees, modem/line interface equipment, and standard
equipment maintenance services as determined by S&P XxxXxxxx, Inc.'s standard
price list. These charges, plus any applicable Source fees and state/local
taxes, will be billed monthly in advance. Nonrecurring charges such as
installation, relocation and removals of XxxXxxxx Equipment will be separately
billed in accordance with S&P XxxXxxxx, Inc.'s then-current standard rates.
(b) Distributor shall pay to S&P XxxXxxxx, Inc. a monthly Redistribution
Fee, in the amount of $ per month, commencing at the conclusion of
development period, not to exceed 90 days from installation of service, and as
specified in the Schedule of Fees attached hereto as Exhibit D. The
Redistribution Fees will be due and payable on the fifteenth (15th) day of each
month.
(c) Distributor shall be liable for fees due and owing to Sources from
which Distributor has agreed to receive information related to the securities
and commodities market. Any bills or invoices with respect to the foregoing
which are either sent or billed (either by error or as part of such Source's
customary billing procedure) to S&P XxxXxxxx, Inc. are the responsibility of,
and shall be paid by Distributor. Distributor shall not be liable for any fees
payable by S&P XxxXxxxx, Inc. for S&P XxxXxxxx, Inc.'s right to receive any
information from the Sources. The parties hereto acknowledge that they are
currently unaware of any fees, with the exception of OPRA and North American
Market Statistics and Indices, in addition to those provided for in Section 4
(a) and (b) hereof which would have to be paid by Distributor to either S&P
XxxXxxxx, Inc. or the Sources for the services to be rendered by S&P Xxxxxxxx,
Inc. hereunder. Distributor shall provide to S&P XxxXxxxx, Inc. a copy of its
monthly Source fee reports when and as filed with the Sources.
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* Information omitted for confidential treatment.
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(d) Any amounts payable to S&P XxxXxxxx, Inc. by Distributor hereunder
which are more than thirty (30) days past due shall bear interest at the rate of
* per month.
(e) S&P XxxXxxxx, Inc. may, in its sole discretion and at any time
following the initial term of this Agreement, change the Redistribution fee
payment schedule and/or the XxxXxxxx Information Delivery Fee as specified
herein. The change in fees instituted by Xxxxxxxx, if any, will be capped at 10%
total over the term of the Agreement. In addition if Go2net is advised of an
increase in charges, Go2net has the right to terminate the Agreement upon (30)
days notice.
(f) Once each calendar quarter, Distributor shall furnish S&P XxxXxxxx with
information regarding the number of quotes requested by Subscribers for the
previous quarter and such other additional information regarding use of the
XxxXxxxx Information as the parties agree.
5. Information Enhancements; Changes to Data Specification.
(a) Any additions of new Sources or other enhancements to the XxxXxxxx
Information which may be made by S&P XxxXxxxx, Inc. during the term of this
Agreement, while unidentified at this time, will be offered to Distributor under
terms and conditions to be negotiated, provided that (i) S&P XxxXxxxx, Inc. has
the necessary rights to convey such new information to Distributor for
redistribution; and (ii) Distributor and S&P XxxXxxxx, Inc. execute a separate
agreement or an amendment to this Agreement.
(b) S&P XxxXxxxx, Inc. shall have the right, on at least six (6) months
prior written notice, to change the XxxXxxxx Data Format Specification, provided
that any such change shall be made effective generally by S&P XxxXxxxx, Inc. to
its customers. Distributor shall be responsible at its own expense for making
any modifications to its software necessitated by such change.
6. Term.
(a) This Agreement shall take effect upon its execution by an authorized
Representative of S&P XxxXxxxx, Inc. and of Distributor.
(b) The term of this Agreement shall be for an initial term of
years commencing from the conclusion of customers development period, which
shall not exceed 90 days from installation of service, and shall continue
thereafter for additional consecutive twelve (12) month terms, unless written
notice of termination shall have been received by either party from the other at
least ninety (90) days prior to the end of the initial term or of any additional
twelve-month term. If S&P XxxXxxxx, Inc. increases charges to Distributor
pursuant to Paragraph 4(e), above, Distributor shall have the option to
terminate this
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* Information omitted for confidential treatment.
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Agreement by written notice to S&P XxxXxxxx, Inc. within sixty (60) days of
Distributor's receipt of notice of such increases, such termination will become
effective no sooner than thirty (30) days from the last day of the month in
which notice of termination by Distributor is received by S&P XxxXxxxx, Inc.
*
7. Marketing.
Distributor may not use the names "XxxXxxxx", "SK.", or "S&P XxxXxxxx,
Inc.", which are proprietary to S&P XxxXxxxx, Inc., or refer to the XxxXxxxx
Information in marketing or advertising materials without the prior written
consent of S&P XxxXxxxx, Inc., such consent not to be unreasonably withheld.
Upon S&P XxxXxxxx, Inc.'s written request, Distributor shall notify Subscribers
by a display in the service itself that S&P XxxXxxxx is the source of the quote
information and any sales literature discussing XxxXxxxx provided quotes she
list S&P XxxXxxxx as the provider of the service. Distributor may identify S&P
XxxXxxxx in its published listing of available services and sources without the
prior consent of S&P XxxXxxxx.
8. Rights to Data Specification; Other Confidential Information.
(a) Distributor agrees and acknowledges that the Data Specification is a
confidential and proprietary trade secret belonging to XxxXxxxx, and nothing in
this Agreement conveys any proprietary rights whatsoever with regard to the Data
Specification to Distributor. The Data Specification is provided to the
Distributor strictly and solely for the purpose of developing internal computer
software to receive the XxxXxxxx Information. Distributor may not use the Data
Specification for any other purpose whatsoever, including, but not limited to,
the development of systems for the receipt or transmission of computer data.
Distributor may not give, transmit, or provide access to the XxxXxxxx Data
Specification to any Subscriber or other third party. On any termination of this
Agreement, regardless of cause, Distributor shall promptly return the Data
Specification to S&P XxxXxxxx, Inc. and shall provide a written certification by
an officer that no copies have been retained by Distributor.
(b) In addition to the duties imposed on Distributor pursuant to Paragraph
8(a), above, S&P XxxXxxxx, Inc. and Distributor agrees to hold confidential any
and all of each other's trade secrets, procedures, formulae, financial data,
Subscriber lists, and future plans, which may be learned before and during the
term of this Agreement. Notwithstanding the foregoing, however, such duty of
confidentiality shall not extend to information which is or comes into the
public domain, is rightfully obtained from third parties not under a duty of
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* Information omitted for confidential treatment.
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confidentiality, or which is independently developed without reference to the
other party's confidential information.
(c) The duties of confidentiality imposed herein shall survive any
termination of this Agreement.
9. Prevention of Performance.
Neither party shall be liable for any failure in performance of this
Agreement if such failure is caused by acts of God, war, Governmental decree,
power failure, Judgment or order, strike, or other circumstances, whether or not
similar to the foregoing, beyond the reasonable control of the party so
affected. Neither party shall have any liability for any default resulting from
force majeure, which shall be deemed to include any circumstances beyond its
control. Such circumstances shall include, but are not limited to acts of the
government, fires, flood, strikes, power failures or communications line or
network failures.
10. Right of Termination in the Event of Breach or Bankruptcy; Right to
Injunctive Relief.
(a) Either party shall have the right to terminate this Agreement for
material breach by the other party by giving thirty (30) days prior written
notice, such termination to take effect unless the breach is cured or corrected
within such notice period.
(b) If a receiver is appointed for either party's business or if either
party petitions under the Bankruptcy Act and is adjudicated a bankrupt, declared
an insolvent, or makes an assignment for the benefit of creditors, then the
other party shall, upon thirty (30) days prior written notice, have the right to
terminate this Agreement.
(c) Upon termination of this Agreement for any reason, Distributor shall
cease all use and distribution of any of the XxxXxxxx Information.
(d) In addition to and notwithstanding the above, if Distributor, or any of
its employees, agents or representatives, shall attempt to use or dispose of the
XxxXxxxx Information or the Data Specification in a manner contrary to the terms
of this Agreement, S&P XxxXxxxx, Inc. shall have the right, in addition to such
other remedies as may be available to it, to injunctive relief enjoining such
acts or attempt, it being acknowledged that legal remedies are inadequate.
11. Assignment.
This Agreement may not be assigned, sublicensed or otherwise transferred by
either party without the written consent, except to a wholly owned subsidiary,
of the other party,
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such consent not to be unreasonably withheld, provided, however, that no such
consent shall be required with respect to any assignment by S&P XxxXxxxx, Inc.
to its parent company, or to any S&P XxxXxxxx, Inc. affiliate. Any attempted
transfer or assignment of this Agreement in violation of this provision shall be
null and void.
12. Entire Agreement.
This Agreement and its Exhibits embodies the entire agreement between the
parties hereto. There are no promises, representations, conditions or terms
other than those herein contained. No modification, change or alteration of this
Agreement shall be effective unless in writing and signed by the parties
hereto.
13. Non-Waiver.
The failure of either party to exercise any of its rights under this
Agreement for a breach thereof shall not be deemed to be a waiver of such rights
nor shall the same be deemed to be a waiver of any subsequent breach.
14. Notices.
All notices under this Agreement shall be given in writing to the parties
as follows:
To: S&P XxxXxxxx, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxx
To: Go2net, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
15. Governing Law.
This Agreement shall be governed by the laws of the State of New York and
the parties agree to select New York Jurisdiction for any claims or disputes
which may arise hereunder.
IN WITNESS WHEREOF, Distributor and S&P XxxXxxxx, Inc. have caused this
Agreement to be executed by their duly authorized respective officers, as of the
day and year above written.
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S&P XXXXXXXX, INC.
By: /s/
Title: V.P. of Sales
Date: 8/22/96
GO2NET
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: CEO
Date: 8/20/96
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EXHIBITS
X. XXXXXXXX INFORMATION DEFINITION; AUTHORIZED COUNTRIES
B. DESCRIPTION OF DISTRIBUTOR SERVICE
C. LISTING OF XXXXXXXX EQUIPMENT, DISTRIBUTOR DELIVERY SITES
D. SCHEDULES OF SUBSCRIBER FEES
E. TERMS AND CONDITIONS OF USE
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EXHIBIT A
PART 1: DELAYED INFORMATION DEFINITION
STOCKS:
NYSE
NYSE Corporate Bonds
AMEX, Boston, Philadelphia, Cincinnati, Northwest, Pacific
Stock Exchanges and Instinet, NASD
AMEX Corporate Bonds
XxxXxxxx Market Indicators
NASDAQ Over-the-Counter
NASDAQ National Market System
U.S. Mutual Funds - Money Markets
OTC Bulletin Board
Small Cap NASDAQ
Market Statistic's and Indices - North America
STOCK/CURRENCY OPTIONS -
AMEX, OPRA: Chicago Board of Options Exchange
NYSE, Pacific, Philadelphia Stock Exchange
PART II: AUTHORIZED GEOGRAPHICAL AREA
Distribution of the XxxXxxxx Information may only be made by Distributor to
Subscribers located on the Internet or World Wide Web.
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EXHIBIT B
DESCRIPTION OF DISTRIBUTOR SERVICE
Go2net is an interactive technology and media company, focusing on the
distribution of its products via the Internet. The primary initial product will
be the Go2net network, which will be based on both commodity and proprietary
content, and will be enhanced with strategic links and partnerships. The
proprietary content will offer authoritative perspectives and ongoing
interaction between Internet users and the Company's content and technology
partners. One of the departments within the network will be a business
department, which will offer proprietary writings from Go2net business xxxxx
xxxxxxx, business news and delayed quotes.
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EXHIBIT C
DESCRIPTION OF XXXXXXXX EQUIPMENT
Licensee will use the XxxXxxxx Digital Data feed from equipment to be
provided at the Licensee's site. The feed will be distributed through a port of
the XxxXxxxx Terminal Interface Device into the head end service of the
Licensee. The XxxXxxxx T.I.D. is fed with 19200 baud data run via Contel
satellite equipment.
Licensee location is registered at: Go2net
0000 Xxxxx Xxxxxx, Xxx. 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
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EXHIBIT D
SCHEDULE OF FEES
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* Information omitted for confidential treatment.
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EXHIBIT E
TERMS AND CONDITIONS OF USE OF XXXXXXXX INFORMATION
All information provided by S&P XxxXxxxx, Inc. ("XxxXxxxx") and its
affiliates (the "XxxXxxxx Information") on Go2net Internet and World Wide Web
site is owned by or licensed to XxxXxxxx and its affiliates and any user is
permitted to store, manipulate, analyze, reformat, print and display the
XxxXxxxx Information only for such user's personal use. In no event shall any
user publish, re transmit, redistribute or otherwise reproduce any XxxXxxxx
Information in any format to anyone, and no user shall use any XxxXxxxx
Information in or in connection with any business or commercial enterprise,
including, without limitation, any securities, investment, accounting, banking,
legal or media business or enterprise.
Prior to the execution of a security trade based upon the XxxXxxxx
Information, you are advised to consult with your broker or other Financial
representative to verify pricing information.
Neither XxxXxxxx nor its affiliates make any express or implied warranties
(including, without limitation, any warranty or merchant ability or fitness for
a particular purpose or use) regarding the XxxXxxxx Information. The XxxXxxxx
Information is to the users "as is." Neither XxxXxxxx nor its affiliates will be
liable to any user or anyone else for any interruption, inaccuracy, error or
omission, regardless of cause, in the XxxXxxxx Information or for any damages
(whether direct or indirect, consequential, punitive or exemplary) resulting
therefrom.
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