EXHIBIT 5.4
LICENSE AGREEMENT
This License Agreement (the "AGREEMENT"! is entered into by and between
Telescan, Inc. ("Telescan") and MicroCap Financial Xxxxxxxx.xxx, Inc. ("MFSI"!
effective as of ____________________ , 1999 (the "EFFECTIVE DATE").
RECITALS
Telescan is in the business of providing online systems operations
services comprised generally of loading, storing and retrieving investment data
and making the stored data available through the system providing access to
numerous computer networks known as the "Internet" to end users. MFSI is in the
business of providing investment data to viewers and end users through two
Internet sites. MFSI's XX-xXxxxx.xxx Internet site (the "UK-INVEST SITE") is
based in the United Kingdom and provides investment data services to users in
the United Kingdom and certain other European countries. MFSI's XxxxxXxxxX00.xxx
Internet site (the "MICROCAP SITE") is based in the United States and provides
investment data on MicroCap companies to end users. MFSI is knowledgeable of
Telescan's business and services and desires to obtain a license to receive and
use Telescan's content and data services on a nonexclusive basis on the terms
and conditions provided herein. Telescan and MFSI have this day also entered
into a Services Agreement (the "SERVICES AGREEMENT") pursuant to which Telescan
will provide certain system operation services. Capitalized terms not otherwise
defined herein shall have the meaning ascribed to such terms in the Services
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, and other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms shall have the meaning ascribed to them elsewhere in
this Agreement and as follows:
1.1 "AFFILIATE" means, as to any person or entity, any person or entity
controlled by, controlling or under common control with that person
or entity.
1.2 "CONTENT" means the MFSI Content and the Telescan Content,
collectively.
1.3 "LOOK AND FEEL" means the look and feel of the Service, including,
without limitation, graphics, artwork, color schemes, layout,
navigation, organization and HTML developed by Telescan
specifically for MFSI to the extent protected by applicable
copyright laws.
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1.4 "MFSI CONTENT" means the data, text and other content provided by
MFSI for inclusion within the Service and made available through
the Service as described on ATTACHMENT 1 and such other data, text
and content as Telescan and MFSI may agree that MFSI will provide
to the Service from time to time.
1.5 "MFSI SITES" means, collectively, the UK-iNvest Site and the
MicroCap Site.
1.6 "OPTION COUNTRIES" means France, Germany and Italy.
1.7 "TELESCAN CONTENT" means the data, text and other content provided
by Telescan for inclusion within the Service and made available
through the Service, all as more specifically described on
ATTACHMENT 2. and such other data, text and content as Telescan and
MFSI may agree that Telescan will provide to the Service from time
to time and which shall automatically be deemed added to such
ATTACHMENT 2.
1.8 "USAGE TERMS AND CONDITIONS" means the form of agreement to be
acknowledged by each visitor to either MFSI Site as a condition to
its receipt of the Service in the standard form required by
Telescan, as the same may be modified by Telescan from time to
time.
1.9 "WALL STREET CITY" means Telescan's Wall Street City Internet site,
located at the universal resource locator xxx.xxxxxxxxxxxxxx.xxx,
or any successor thereto ("WSC").
1.10 "WSC CONTENT" means the data, text and content made generally
available at Wall Street City.
ARTICLE 2
LICENSES
2.1 LICENSE TO TELESCAN. MFSI hereby grants to Telescan a worldwide,
non- exclusive, non-transferable license to use the MFSI Content (as existing as
of the Effective Date, and as expanded from time to time following the Effective
Date) solely in connection with the System for providing the Service in an
online environment in accordance with the terms and conditions of this
Agreement. Telescan will not use, nor permit its Affiliates to use the MFSI
Content for any purpose other than that expressly authorized under this
Agreement. The term of this license to Telescan shall expire upon any
termination of this Agreement.
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2.2 LICENSE TO MFSI.
(a) System License. Telescan hereby grants to MFSI a worldwide,
nontransferable, non-exclusive license to receive the Data Services and Telescan
Content through the System solely in connection with providing the Service on
the MFSI Sites in accordance with the terms and conditions of this Agreement.
MFSI will not use, nor permit its Affiliates to use, the Data Services, the
System or the Telescan Content for any purpose other than that expressly
authorized under this Agreement. The term of this license to MFSI shall expire
upon any termination of this Agreement. This license does not relate to the
licensing by Telescan of its software or other technology ("TELESCAN'S
TECHNOLOGY") for use or access by MFSI or any third party other than as a right
to access the Data Services through the System as part of the Service.
(b) Telescan Content. Attached hereto as ATTACHMENT 2 is a list of
the specific features to be included within the Service as Telescan Content as
of the Effective Date. In accordance with the terms and conditions Telescan will
also incorporate into the Service all updates, upgrades and revisions for such
Telescan Content features which Telescan incorporates into the equivalent
content comprising WSC Content which Telescan makes generally available at no
additional charge to its other private label customers receiving the Telescan
Content and features with such updates, upgrades and revisions automatically
becoming subject to the terms and conditions of this Agreement and the Services
Agreement.
ARTICLE 3
NONREFUNDABLE LICENSE FEES; OPTION
3.1 NONREFUNDABLE LICENSE FEES. In consideration of Telescan's
execution of this Agreement and the licenses granted to MFSI hereunder,
contemporaneously with the execution of this Agreement, MFSI shall pay Telescan
the following non-refundable license fees (collectively, the "LICENSE FEES"):
(a) Five Hundred Seventy-Eight Thousand Four Hundred Forty
USDollars ($578,440) payable in 385,627 shares of common stock of MFSI for the
license to use the System to receive the Telescan Content and Data Services on
the MicroCap Site.
(b) Five Hundred Forty-Six Thousand Five Hundred Sixty US Dollars
($546,560) payable in 364,373 shares of common stock of MFSI for the license to
use the System to receive the Telescan Content and Data Services on the UK
iNvest Site. A description for the calculation of the UK iNvest Site License Fee
is attached hereto as ATTACHMENT 3.
The License Fees are an independent obligation of MFSI and are not dependent
upon or otherwise related to the amount of revenue received by or services
provided by either party under this Agreement. This obligation accrues upon the
Effective Date.
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3.2 OPTION TO ADD COUNTRY SITES. Contemporaneously with the execution
of this Agreement, MFSI shall pay Telescan a non-refundable option fee (the
"OPTION FEE") of $25O,000 US Dollars payable in 133,333 shares of common stock
of MFSI. In consideration of the Option Fee, Telescan hereby grants MFSI an
option to obtain a license to use the System to receive the Telescan Content and
the Data Services for use on up to three Internet Sites, each of which would
cover one of the Option Countries and be the substantial equivalent of the UK
iNvest Site for the United Kingdom for each respective Option Country. In order
to exercise the option, MFSI must provide written notice to Telescan within
twelve months after the Effective Date (the "OPTION PERIOD") of MFSI's decision
to exercise its option as to one or more of the Option Countries. MFSI may
exercise its option as each Option Country separately at different times
provided that MFSI must provide notice to Telescan of exercise as to each
applicable Option Country for which it elects to exercise its option prior to
the expiration of the Option Period. As to each Option Country for which MFSI
exercises its option, MFSI must pay to Telescan a separate License Fee, Services
Fee, Incremental Costs and other fees and charges equal to the License Fee,
Services Fees, Incremental Costs and other fees and charges applicable to the UK
iNvest Site. In addition, the other terms and conditions of this Agreement and
the Services Agreement shall apply to the Internet site for the Option Country
to the same extent they apply to the UK iNvest Site, including the payment to
Telescan of mutually agreed upon development effort charges to the extent more
than minimal development time and effort is required of Telescan to implement
the applicable Option Country services.. Within thirty (30) days after receipt
by Telescan of a notice of exercise from MFSI as to any Option Country, the
parties will enter into a written amendment to this Agreement and the Services
Agreement confirming the terms and conditions of this Section 3.2 and setting
forth the schedule for the preparation of the Design Specifications and Detailed
Description of Work.
ARTICLE 4
INDEMNIFICATION; DISCLAIMERS; LIMITATIONS OF LIABILITY
4.1 TELESCAN REPRESENTATIONS. Telescan represents and warrants that:
(i) Telescan has the right to enter into this Agreement and to furnish the
Telescan Content and the Data Services and all other materials provided by
Telescan hereunder in accordance with the terms and conditions of this Agreement
and free of all liens, claims, or encumbrances and conflicts with any other
obligation of Telescan and (ii) MFSI's use thereof does not infringe any
Intellectual Property Right (defined below) of any third party provided that
such representation or warranty shall not apply to the extent any of the
foregoing are modified by anyone other than Telescan or any of the foregoing is
used in ways not contemplated by this Agreement
4.2 MFSI REPRESENTATIONS. MFSI represents and warrants that: (i) MFSI
has the right to enter into this Agreement and to furnish the MFSI Content and
all other materials provided by MFSI hereunder in accordance with the terms and
conditions of this Agreement and free of all liens, claims, or encumbrances and
conflicts with any other obligation of MFSI and (ii) the foregoing and
Telescan's use thereof does not infringe any Intellectual Property Right of any
third party provided that such representation or warranty shall not apply to the
extent any of the foregoing are modified
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by anyone other than MFSI or used in ways not contemplated by this Agreement.
4.3 INDEMNIFICATION. MFSI shall indemnify Telescan from and against any
and all claims, losses, damages or expenses proximately resulting from or
relating to any claim or allegation that the MFSI Content or any other materials
developed or designed by MFSI infringes the Intellectual Property Rights of any
third party. Telescan shall indemnify MFSI from and against any and all claims,
losses, damages or expenses proximately resulting from or relating to from any
claim or allegation that the Telescan Content or any other materials developed
or designed by Telescan or Telescan's use of thereof Services infringes the
Intellectual Property Rights of any third party.
4.4 DISCLAIMER EXCEPT AS EXPRESSLY PROVIDED HEREIN, TELESCAN MAKES NO
WARRANTY OR REPRESENTATION TO MFSI OR TO ANY THIRD PARTY AS TO THE PERFORMANCE
OR OPERATION OF THE SYSTEM, THE CONTENT, THE SERVICE, THE SYSTEM OPERATIONS
SERVICES OR RELATED PRODUCTS OR SERVICES. ANY IMPLIED WARRANTIES (INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND GOOD AND WORKMANLIKE MANNER) ARE HEREBY EXCLUDED. BOTH
PARTIES AGREE THAT TELESCAN'S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE), IF ANY, FOR ANY DAMAGES RELATING TO ANY SUCH
PRODUCT, SERVICE (OR THE MALFUNCTION THEREOF) OR THIS AGREEMENT SHALL BE LIMITED
TO THE LESSER OF (AT TELESCAN'S SOLE DISCRETION) (a) THE ACTUAL AMOUNTS RECEIVED
BY TELESCAN UNDER THIS AGREEMENT FOR SUCH PRODUCT OR SERVICE DURING THE
THREE-MONTH PERIOD PRECEDING THE EVENT CAUSING SUCH DAMAGES, OR (b) THE COST OF
REPAIR, AND WILL IN NO EVENT INCLUDE CONSEQUENTIAL, INCIDENTAL, INDIRECT,
SPECIAL OR OTHER DAMAGES OF ANY KIND INCLUDING LOSS OF PROFITS, EVEN IF TELESCAN
HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES. IN NO
EVENT SHALL TELESCAN BE LIABLE TO MFSI, USERS OF THE SERVICE OR ANY THIRD PARTY
FOR ANY DAMAGES RESULTING FROM THE CONTENT OR NATURE OF THE INFORMATION AND DATA
CONTAINED ON THE SYSTEM, OR THE RESULTS OF ANY SEARCH THEREFOR TELESCAN, AT ITS
SOLE DISCRETION, MAY CAUSE TO BE PLACED ON THE SYSTEM ANY DISCLAIMERS OF
WARRANTIES AND LIABILITIES IT DEEMS REASONABLE FOR ITS OR MFSI'S PROTECTION.
THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
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ARTICLE 5
PROPRIETARY RIGHTS OF THE PARTIES
5.1 CONFIDENTIAL INFORMATION. Except to the extent specifically
exempted or authorized by the disclosing party in writing, each party expressly
undertakes to retain in confidence and to require its employees and consultants
to retain in confidence, all information and know-how transmitted to it by the
other party which the other party has identified in writing as confidential or
which by the nature of the circumstance surrounding the disclosure ought in good
faith to require the information to be treated as confidential ("CONFIDENTIAL
INFORMATION") and will make no use of such Confidential Information except under
and in accord with the terms of this Agreement. Further, each party expressly
represents that it will implement reasonable procedures to protect and maintain
the confidential nature of the Confidential Information. Both parties also agree
to maintain the confidentiality of the Confidential Information of any Customer
Bank. The parties further agree that these confidentiality and use provisions
shall not apply to any information that appears in issued patents or which is
publicly available.
5.2 TRADEMARK. Advertising and Press Releases. Neither party shall
acquire a right to use, and shall not use without the other party's prior
written consent as to each use, the names, characters, artwork, designs,
tradenames, trademarks or service marks of the other party in any advertising,
publicity, public announcement, press release or promotion and shall maintain
all copyright, trademark, service xxxx or other proprietary notice on such
party's products or services and otherwise comply with such party's reasonable
quality control requirements. MFSI acknowledges that Telescan, as a publicly
traded company, has certain restrictions and procedures which must be complied
with when releasing to the public material information regarding Telescan and
its business. Accordingly, Telescan's consent to any proposed public release of
information relating to Telescan or this Agreement may be withheld by Telescan
at its sole discretion or conditioned upon compliance with Telescan's procedures
or restrictions. Subject to the foregoing, each party will provide a copy of any
press releases and public announcements to the other party prior to their public
release.
5.3 OWNERSHIP OF TELESCAN PROPERTY.
(a) MFSI acknowledges that Telescan owns all right, title and
interest in and to all data, content, software and other technology, including,
without limitation, source codes, object codes, operating instructions,
writings, data, formulas, algorithms, models, drawings, photographs, and design
concepts, and all other documentation developed for or relating to the Telescan
Content, the Data Services, Telescan's Technology and other materials provided
by Telescan, including any additions, and all other information of any kind,
together with all modifications, revisions, changes, copies, partial copies,
translations, compilations, and derivative works of any other foregoing which
shall all constitute the "TELESCAN PROPERTY". Unless otherwise expressly
provided for in this Agreement, MFSI shall not sell, transfer, publish,
disclose, display, license or otherwise make available to others ably part of
the Telescan Property or copies thereof. All Intellectual Property Rights and
all other property rights
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of any nature in the Telescan Property are, shall be' and shall remain in
Telescan. Telescan shall have all authorship rights in the Telescan Property.
The Telescan Property is and shall remain the sole and exclusive property of
Telescan, with Telescan having the right to obtain and to hold in its own name,
patents, copyright registrations or trademark or service xxxx registrations or
such other protection as may be appropriate to the subject matter, and any
extensions and renewals thereof. MFSI agrees, at Telescan's expense, to execute
such further documents, and perform such other acts, as Telescan may deem
necessary, useful or convenient to evidence or perfect the rights of Telescan
defined and acknowledged in this SECTION 5.3.
(b) "INTELLECTUAL PROPERTY RIGHTS" means, with respect to any data,
device, or other asset of any kind, any object code or source code, all
copyright, patent, trade secret, moral, termination, authorship and/or other
proprietary rights relating to any such data, device, object code, source code
or other asset including, without limitation, all rights necessary for the
worldwide development, manufacture, modification, enhancement, sale, licensing,
use, reproduction, publishing and display of such data, device, object code,
source code or other asset.
(c) Telescan acknowledges that MFSI owns all right, title and
interest in and to the MFSI Content and the Look and Feel of the Service,
including any additions, and all other information of any kind, together with
all modifications, revisions, changes, copies, partial copies, translations,
compilations, and derivative works of any other foregoing which shall all
constitute the "MFSI PROPERTY". Unless otherwise expressly provided for in this
Agreement, Telescan shall not sell, transfer, publish, disclose, display,
license or otherwise make available to others any part of the MFSI Property or
copies thereof. All Intellectual Property Rights and all other property rights
of any nature in the MFSI Property are, shall be and shall remain in MFSI. MFSI
shall have all authorship rights in the MFSI Property. The MFSI Property is and
shall remain the sole and exclusive property of MFSI, with MFSI having the right
to obtain and to hold in its own name, patents, copyright registrations or
trademark or service xxxx registrations or such other protection as may be
appropriate to the subject matter, and any extensions and renewals thereof.
Telescan agrees, at MFSI's expense, to execute such further documents, and
perform such other acts, as MFSI may deem necessary, useful or convenient to
evidence or perfect the rights of MFSI defined and acknowledged in this
SECTION 5.3.
5.4 RIGHT OF INJUNCTION. The parties acknowledge that a breach by
either party of this Article 5 will give rise to irreparable injury to the
other, inadequately compensable in damages. Accordingly, the parties hereby
consent to the obtaining by the other party of injunctive relief against the
breach or threatened breach of the undertakings of the parties contained in this
ARTICLE 5. The parties further agree that such an order so enjoining a party may
be issued pending final determination thereof without the requirement to post
bond. The obligation of the parties under this ARTICLE 5 shall survive the
termination of this Agreement.
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ARTICLE 6
TERMINATION
6.1 TERMINATION. Either party may terminate this Agreement for the
following reasons:
(a) if the other party materially fails to perform or comply with
this Agreement or any provision hereof or the Services Agreement;
(b) if the other party fails to strictly comply with the provisions
of Article 5 or makes an assignment in violation of SECTION 7.8;
Termination under this SECTION 6.1 shall be effective thirty (30) days after
notice of termination to the defaulting party if the defaults have not been
cured within such thirty (30) day period. The rights and remedies of the parties
provided herein shall not be exclusive and are in addition to any other rights
and remedies provided by law or this Agreement.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 RELATIONSHIP OF THE PARTIES. Nothing in this Agreement shall be
construed to create any franchise, joint venture, trust or commercial
partnership or any other partnership relationship for any purpose whatsoever.
MFSI occupies the status of an independent contractor and Telescan shall have no
right to control the details of the MFSI's marketing activities.
7.2 SURVIVAL OF CERTAIN REPRESENTATIONS, COVENANTS AND WARRANTIES. Any
and all covenants, representations, or warranties made or given by any of the
parties hereto under the terms hereof shall survive the execution of this
Agreement and shall be binding upon and enforceable against the appropriate
party or parties hereto for such period of time as specified by the applicable
statute of limitations.
7.3 NOTICES. Except as otherwise expressly provided herein, any notice
request, consent, demand or other communication required or permitted to be
given by this Agreement shall be in writing and shall be personally served or
sent by telecopy (with a copy by prepaid registered or certified mail sent on
that same day), commercial courier service or prepaid registered or certified
mail. Any written notice delivered by telecopy shall be deemed to have been
given on the day telecopied to the other party. Any written notice given by
commercial courier service or registered or certified mail shall be deemed
communicated as of actual receipt.
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For purposes of this Agreement, the addresses of the parties, until notice of
a change thereof, shall be as follows:
IF TO TELESCAN: WITH A COPY (NOT CONSTITUTING NOT:TCE) TO:
Xx. Xxxxx X. Xxxxxxxxx Xx. Xxxxx X. Xxxxxx
Telescan, Inc. Xxxxx Xxxxxxx & Xxxx LLP
0000 Xxxxxxxxx Xx. 0000 Xxxxx Xxxxx
Xxxxx 0000 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, Xxxxx 00000
Telecopy No.: 281588-9843 Teleconv No: {713) 223-3717
IF TO MICROCAP: WITH A COPY (NOT CONSTITUTING NOTICE) TO.
Xx. Xxxxxxx Xxxxxxxxx Xx. Xxxxx X. Xxxxxxxx
Xx. Xxx Xxxxxxxx Resch, Polster, Xxxxxx & Xxxxxx LLP
MicroCap Financial Xxxxxxxx.xxx, Inc.10390 Santa Xxxxxx Boulevard
2425 Olympic Boulevard - Suite 000 X 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000 Telecopy No (000) 000-0000
Mr. Xxxxxxx Xxxxxx
MicroCap Financial Xxxxxxxx.xxx, Inc.
0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
7.4 CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas (without regard to Texas'
principles of conflicts of laws) and of the United States of America.
7.5 MANDATORY MEDIATION.
(a) Except as expressly provided in this SECTION 7.5, prior to the
institution of any legal action by one party against the other arising out of or
relating to any dispute between the parties over this Agreement and/or any
breach thereof, such dispute shall be submitted to a disinterested mediator
having substantial experience and recognized expertise in the field or fields of
the matter(s) in dispute. A party shall initiate mediation proceedings by
notifying the other party in writing that it is requiring that a dispute be
mediated in accordance with this Agreement. The mediator shall be agreeable to
both parties. In the absence of agreement, the American Arbitration Association
will appoint a mediator. The mediation shall be conducted in accordance with the
Commercial Mediation Rules of the American Arbitration Association. The fee
charged by the mediator shall be borne equally by the parties. If the mediation
is initiated by Telescan, the mediation shall be conducted in Boca Raton,
Florida. If the mediation is initiated by MFSI, the mediation shall be conducted
in Houston, Texas. The fact that mediation is or may be allowed will not impair
the exercise of any termination rights under this Agreement. Any mediation and
the enforcement of any settlement entered into by the parties pursuant to such
mediation shall be governed by and construed in accordance with the laws of the
State of Texas (without regard to Texas' principles of conflicts of laws) and of
the United States of America. All parties to the dispute and their counsel (or
their duly authorized legal representative with decision-making authority)
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shall attend the mediation and will remain throughout the mediation process
until such time as the parties reach agreement or the mediator determines that
further negotiation efforts will not be productive. Each party must be
represented by a person with the authority to negotiate a binding settlement. In
the event a party to this Agreement files a lawsuit prior to conclusion of
mediation, the other party may take any and all legal or equitable action to
compel mediation and dismissal of the lawsuit. In such event, the party seeking
the mediation shall be entitled to its expenses and attorneys fees' associated
with, or incurred as a result of, having to file the legal or equitable action
to compel mediation or dismissal.
(b) No provision of, nor the exercise of any rights under this
SECTION 7.5 shall limit the right of any party to obtain injunctive relief
pursuant to Section 5.4 before, during, or after the pendency of any mediation,
and any such action shall not be deemed an election of remedies. Such injunctive
rights can be exercised at any time except to the extent such action is contrary
to a final settlement entered into by the parties pursuant to a mediation
proceeding. The institution and maintenance of an action for judicial injunctive
relief shall not constitute a waiver of the right of any party, including
without limitation the plaintiff, to submit any dispute to mediation nor render
inapplicable the compulsory mediation provisions of this SECTION 7.5.
(c) Any attorney-client privilege and other protection against
disclosure of confidential information, including without limitation any
protection afforded the work-product of any attorney, that could otherwise be
claimed by any party shall be available to and may be claimed by any such party
in any mediation proceeding. No party waives any attorney-client privilege or
any other protection against disclosure of confidential information by reason of
anything contained in or done pursuant to or in connection with this SECTION
7.5. Each party agrees to keep all disputes and mediation proceedings strictly
confidential, except for disclosures of information to the parties' legal
counsel or auditors or those required by applicable law. The parties agree to
treat all mediation proceedings as settlement negotiations and agree that such
settlement discussions shall be inadmissible in a court of law. The mediator
shall be bound to maintain the confidentiality of all matters made known to the
mediator, as well as notes or writings prepared by the mediator. The parties
agree not to subpoena or otherwise require the mediator to testify or to produce
records, notes or work product in any further proceedings. Only persons having a
direct interest in the mediation are entitled to attend.
(d) The parties agree to cooperate with each other and with the
mediator in a good faith effort to negotiate a prompt a reasonable resolution of
the dispute.
(e) The mediator is to serve as an impartial third party in
assisting the parties toward settlement of their dispute but may not compel or
coerce the parties to enter into a settlement agreement. The mediator will not
render any decision on the merits of the dispute.
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7.6 ATTORNEYS' FEES. The prevailing party in any legal proceedings
brought by the other party to enforce any provision of this Agreement shall be
entitled to recover against the non-prevailing party the reasonable attorneys'
fees, court costs and other expenses incurred by the prevailing party, including
all costs and expenses, and also including attorneys' fees of the prevailing
party associated with, or incurred as a result of, the mediation of the dispute.
7.7 SEVERABILITY. If any term, provision or part of this Agreement is
to any extent held invalid, void or unenforceable by a court of competent
jurisdiction, the remainder of this Agreement shall not be impaired or affected
thereby, and each term, provision and part shall continue in full force and
effect, and shall be valid and enforceable to the fullest extent permitted by
law.
7.8 ASSIGNMENT. Neither party may assign any of its rights or duties
under this Agreement without the prior written consent of the other party, such
consent not to be unreasonably withheld, except that either party may assign to
a successor entity in the event of its dissolutions, acquisition, merger or
other change in legal status. This Agreement shall inure to the benefit of and
be binding upon the parties to this Agreement and their respective successors
and permitted assigns.
7.9 WAIVER. The forbearance or failure of one of the parties hereto to
insist upon strict compliance by the other with any provisions of this
Agreement, whether continuing or not, shall not be construed as a waiver of any
rights or privileges hereunder. No waiver of any right or privilege of a party
arising from any default or failure hereunder shall affect such party's rights
or privileges in the event of a further default or failure of performance.
7.10 FORCE MAJEURE. Neither party hereto shall be liable to the other
for failure to perform any of its obligations hereunder to the extent
performance is prevented due to force majeure. For the purposes of this
Agreement, "FORCE MAJEURE" shall mean causes that are beyond the reasonable
control of the party claiming force majeure and that could not have been avoided
or prevented by reasonable foresight, planning or implementation of the party
claiming force majeure. Such causes shall include, but are not limited to, acts
of God, war (declared or undeclared), insurrections, hostilities, strikes or
lockouts (other than strikes by or lockouts of such party's employees, which
strikes or lockouts shall be deemed not to be force majeure events), riots,
fire, storm and interference or hindrance by any governmental authority.
7.11 LIMITATIONS. No action, regardless of form, arising out of the
transactions under this Agreement may be brought by one party against the other
more than two (2) years after the facts creating the cause of action became
known, or reasonably should have been known, to the party bringing the action.
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7.12 COMPLIANCE WITH LAWS. Each party hereto agrees to comply with all
federal, state and local laws, rules and regulations in effect in the United
States of America, the United Kingdom and the OPTION COUNTRIES in respect of
their activities contemplated by this Agreement, including without limitation
(i) the Bureau of Export Administration Regulations of the United States
Department of Commerce ("BXA Regulations"), (ii) the antiboycott provisions of
the BXA Regulations and of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal Revenue
Code and any regulations promulgated thereunder, and (iii) the United States
Foreign Corrupt Practices Act; provided, that each party shall comply with such
laws, rules and regulations to the extent (1) such laws, rules and regulations
are applicable to such party, or (2) such party's noncompliance would cause the
other party hereto to be in violation of such laws, rules and regulations.
Telescan makes no representation or warranty with respect to the ability of
MFSI, under the laws of the United Kingdom, any Option Country or of the United
States, to market or sell the Services in the United Kingdom or the Option
Countries. MFSI shall be responsible for obtaining or making, and shall use its
best efforts to obtain, any and all authorizations from any U.S. or foreign
governmental authority that are required for it to perform its obligations under
this Agreement, and if applicable, shall be responsible for filing or
registering this Agreement with appropriate governmental authorities. MFSI shall
provide proof of compliance with such required governmental authorizations to
Telescan upon request. Telescan shall not be liable to MFSI if any required
governmental authorization is delayed, denied, revoked, restricted or not
renewed, or if MFSI is otherwise prohibited from marketing or selling the
Services in any country. In addition, when this Agreement expires or is
terminated pursuant to the terms of this Agreement, Telescan or its designee
shall be exclusively entitled to any rights MFSI may have acquired in or as a
result of governmental approvals, authorizations or permits relating to the sale
or distribution of Telescan's products and services, and MFSI, upon Telescan's
request, shall to the extent permitted by applicable law, promptly transfer to
Telescan, or to any third party so identified by Telescan, all such rights, all
without any compensation to MFSI.
7.13 The following Attachments are hereby incorporated into and made a
part of this Agreement:
Attachment 1 - "MFSI Content"
Attachment 2 - "Telescan Content"
Attachment 3 - "UK-iNvest Site License Fee Calculation"
MicroCap 1000 License Agreement
Page 12 of 20
7.14 ENTIRE AGREEMENT. TOGETHER WITH THE STOCK EXCHANGE AGREEMENT, THE
STOCK OPTION AGREEMENT AND THE SERVICES AGREEMENT, THIS AGREEMENT CONSTITUTES
THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES HERETO IN RESPECT OF THE
SUBJECT MATTER CONTAINED HEREIN AND SUPERSEDES ALL PRIOR AGREEMENTS, CONSENTS
AND UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER. THE PARTIES AGREE THAT THERE
IS NO ORAL OR OTHER AGREEMENT BETWEEN THE PARTIES WHICH HAS NOT BEEN
INCORPORATED INTO THIS AGREEMENT AND THAT NO RELIANCE IS BEING MADE UPON SAME.
This Agreement may be modified or amended only by a duly authorized written
instrument executed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AGREED AND ACCEPTED BY:
Company: Telescan, Inc. Company: MicroCap Financial
Xxxxxxxx.xxx, Inc.
------------------- --------------------------
Signature: /s/ Xxxxx X. Xxxxxxxx Signature: /s/ Xxx Xxxxxxxx
------------------- --------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxx Xxxxxxxx
------------------- --------------------------
Title: Senior Vice President Title: SR. V.P.
--------------------- --------------------------
Date: 3/31/99 Date: 3/31/99
--------------------- --------------------------
MicroCaplOOO License Agreement
Page 13 of 20
ATTACHMENTS AND EXHIBITS TO THE LICENSE AGREEMENT
BETWEEN
TELESCAN, INC.
AND
MICROCAP FINANCIAL XXXXXXXX.XXX, INC.
The following Attachments have hereby incorporated into and made a part
of this Agreement:
Attachment 1 - "MFSI Content"
Attachment 2 - "Telescan Content"
Attachment 3 - "UK-iNvest Site License Fee Calculation"
MicroCap 1000 License Agreement
Page 14 of 20
ATTACHMENT 1
MFSI CONTENT
TO BE PROVIDED
To be mutually agreed upon by the parties within five days after the
Effective Date, accepted in writing (by their signatures below) and attached to
this Agreement. Each party agrees not to unreasonably withold its approval of
the MFSI Content.
AGREED AND ACCEPTED BY:
Company: Telescan, Inc. Company: MicroCap Financial
Xxxxxxxx.xxx, Inc.
------------------- --------------------------
Signature: Signature:
------------------- --------------------------
Name: Xxxxx X. Xxxxxxxxx Name:
------------------- --------------------------
Title: Senior Vice President Title:
--------------------- --------------------------
Date: Date:
--------------------- --------------------------
MicroCap 1000 License Agreement
Page 15 of 20
ATTACHMENT 2
Telescan Content
Telescan Content
-----------------------------------------------------------------------------------------------------
Corporate Snapshot - 20 year max, time period
-----------------------------------------------------------------------------------------------------
* Standard Graph * Historial Quotes * Stocks In Industry Grouop
* Company Snapshot * Comtex News * Zacks Earnings Estimates 1
* MarketGuide Company Profile * Industry Group Analysis * MarketGuide Quick Facts
* Financial Statements * Listed Options * MacroWorld Price Forecasts
-----------------------------------------------------------------------------------------------------
20 Year Graph - w/technical analysis
-----------------------------------------------------------------------------------------------------
* Commodity Channel Index * Xxxxxxx Xxxxxxx * Stochastics
* MACD * Momentum * Xxxxxx RSI
* Moving Average * Negative Volume Index
* On Balance Volume
-----------------------------------------------------------------------------------------------------
Comparison Graph - compare up to 20 years of
-----------------------------------------------------------------------------------------------------
Quotes - Get a current quote - 15 min. delay
-----------------------------------------------------------------------------------------------------
Quotes - Get a current quote - RTQ
-----------------------------------------------------------------------------------------------------
Market Snapshot - Up to theminute quotes on all
-----------------------------------------------------------------------------------------------------
Portfolio Quotes
-----------------------------------------------------------------------------------------------------
Symbol Lookup
-----------------------------------------------------------------------------------------------------
Industry Group Analysis
-----------------------------------------------------------------------------------------------------
Stocks In Industry Groups
-----------------------------------------------------------------------------------------------------
Industry Group Symbols
-----------------------------------------------------------------------------------------------------
General Best & Worst - Stocks
-----------------------------------------------------------------------------------------------------
* 6 Week High Relative Strength * Largest % Galner * Highest P/E
* 26 Week High Relative Strength * Largest % Loser * Lowest P/E
* 18 Week High Relative Strength * Largest % Price Change
* Largest Volume/30 Day Average * Most Active
-----------------------------------------------------------------------------------------------------
Listed Options
-----------------------------------------------------------------------------------------------------
Weekly Financial Events Due Out This Week
-----------------------------------------------------------------------------------------------------
Quick Search
-----------------------------------------------------------------------------------------------------
General Search
-----------------------------------------------------------------------------------------------------
Find Winning Mutual Funds
-----------------------------------------------------------------------------------------------------
* This Weeks Mutual Fund Recap * Telecom Prospector * Complete Indicate List
* What Indicative Are Working Best * What Indicators Are Working Best
-----------------------------------------------------------------------------------------------------
Mutual Funds Search
-----------------------------------------------------------------------------------------------------
Best & Worst - Mutual Funds
-----------------------------------------------------------------------------------------------------
* Best Yield * 6 Month Best Relative Perf. * 5 Year Best Relative Perf.
* 1 Week Best Relative Performance * 6 Months Worst Relative Perf. * 5 Year Worst Relative Perf.
* 1 Week Worst Relative Performance * 1 Year Best Relative Perf. * 10 Year Best Relative Perf.
* 6 Week Best Relative Perf. * 1 Year Worst Relative Perf. * 10 Year Worst Relative Perf.
* 6 Week Worst Relative Perf. * 3 Year Worst Relative Perf. * 15 Year Best Relative Perf.
* 3 Year Best Relative Perf. * 15 Year Worst Relative Perf.
-----------------------------------------------------------------------------------------------------
MicroCap 1000 License Agreement
Page 16 of 20
ATTACHMENT 2 - CONTINUED -
-----------------------------------------------------------------------------------------------------
IPO Maven News
-----------------------------------------------------------------------------------------------------
* IPI Industry Selective News * IPO Performance * IPO Research
* Market Summary * IPOs Latest Filings * IPO Calendars
-----------------------------------------------------------------------------------------------------
Techniques
-----------------------------------------------------------------------------------------------------
* Relative Strengths as an *Trading Band Theory * Stochastics: A Crystal Ball
Analytical Tool
* Xxxxxx Relative Strength Index
-----------------------------------------------------------------------------------------------------
News Watch - Autoflag - monitor up to 5 days
-----------------------------------------------------------------------------------------------------
E-mail Price and News Alerts
-----------------------------------------------------------------------------------------------------
Full Story - Ticker Selectable - Comtex Company
-----------------------------------------------------------------------------------------------------
Current News Stories - Generic
-----------------------------------------------------------------------------------------------------
* Financial News * Commodity New * International News
* Market News
-----------------------------------------------------------------------------------------------------
Additional Market Commentaries - Major Markets
-----------------------------------------------------------------------------------------------------
Telescan Ranking Chart
-----------------------------------------------------------------------------------------------------
Scan My Portfolio
-----------------------------------------------------------------------------------------------------
Quarterly Earnings
-----------------------------------------------------------------------------------------------------
Quick Facts - Market Guide
-----------------------------------------------------------------------------------------------------
Technical Data
-----------------------------------------------------------------------------------------------------
Best & Worst Lists Using PS Indicators
-----------------------------------------------------------------------------------------------------
* Analyst Rankings * Xxxxxxx Xxxxxxx * High Low Price Range
* Basing Pattern Breakouts * MACD * Quarterly Earnings
* Chalkin * Momentum * Value Momentum
* Price Range * Moving Averages * Fundamentals
* Dividends * Options * Macro World Projections
* Earnings * Price * Earnings Estimates
-----------------------------------------------------------------------------------------------------
Best & Worst Lists Using PS Indicators
-----------------------------------------------------------------------------------------------------
* Stochastics * Volume * Xxxxxx
* Telescan Rankings
-----------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx
Keyword Searchable Databases - Comtex News
New Price Highs and Lows
-----------------------------------------------------------------------------------------------------
* Stocks Making New 52 Week High * Stocks Making New 13 Week High * Stocks Making New 4 Week Highs
* Stocks Making New 52 Week Lows * Stocks Making New 13 Week Lows * Stocks Making New 4 Week Lows
* Stocks Making New 26 Week Highs * Stocks Making New 6 Week Highs
* Stocks Making New 26 Week Lows * Stocks Making New 6 Week Lows
-----------------------------------------------------------------------------------------------------
Category Search Engines
-----------------------------------------------------------------------------------------------------
* Analyst Ranking Search * Dividend Search * Volume Search
* Basing Pattern Breakout Search * Earnings Search * Xxxxxx RSI Search
* Chalkia Search * MACD Search * Value Momentum Search
* Daily Price Range Search * Momentum Search * Moving Average Search
* High/Low Price Range Search * Earnings Estimates (ESearch) * Quarterly Earnings Search
* Fundamental Search * Ranking Search * Macro World Search
* Industry Group Search * Stochastic Search * Price Growth Search
* Xxxxxxx Xxxxxxx Search
-----------------------------------------------------------------------------------------------------
MicroCap 1000 License Agreement
Page 17 of 20
ATTACHMENT 2 - CONTINUED -
-----------------------------------------------------------------------------------------------------------------------------------
Favorite Analyst Stocks
-----------------------------------------------------------------------------------------------------------------------------------
Favorite Insiders Stocks
-----------------------------------------------------------------------------------------------------------------------------------
Favorite Institutional Stocks
-----------------------------------------------------------------------------------------------------------------------------------
Corporate Profile Report - Market Guide
-----------------------------------------------------------------------------------------------------------------------------------
Find Winning Stocks - A
-----------------------------------------------------------------------------------------------------------------------------------
* What Investment Styles Are Doing Best * What Industry Groups Are Working Best
-----------------------------------------------------------------------------------------------------------------------------------
Find Winning Stocks - B
-----------------------------------------------------------------------------------------------------------------------------------
* What Searches Are Working Best * Current Investment Outlook * Performance Of Investment Style By Market Cap
* What Market Caps Are Doing Best * Telescan Prospector * Performance By Time Period
* Searches, Stocks and Stuff * Complete Search List
-----------------------------------------------------------------------------------------------------------------------------------
ProSearch - MicroCap 1000 Only
-----------------------------------------------------------------------------------------------------------------------------------
ProSearch - Full
-----------------------------------------------------------------------------------------------------------------------------------
Earnings Search
-----------------------------------------------------------------------------------------------------------------------------------
Options Search
-----------------------------------------------------------------------------------------------------------------------------------
Backtested Search Strategies - A
-----------------------------------------------------------------------------------------------------------------------------------
* Strongest Stocks in the Last 6 Weeks * High Insider Buying * Undervalued Stocks
-----------------------------------------------------------------------------------------------------------------------------------
* Impressive Analyst Rank and Recent * High Volume Strong Stocks with
Short-term Strength Earnings Upgrades
-----------------------------------------------------------------------------------------------------------------------------------
* Stocks with Very Poor Buy, Hold, Sell * Stocks with Great Earnings, Sales, and
Mean Ratings Cash Flow Growth
-----------------------------------------------------------------------------------------------------------------------------------
Backtested Search Strategies - B
-----------------------------------------------------------------------------------------------------------------------------------
* Potential Intermediate Term Reversals * Technical Breakouts * Undervalued by Low Price Book Ratio
* Potential Long Term Reversals * Stocks with Attractive Composite Ranks * Undervalued by Low Price/ Capital
Spending Ratio
* Highest 5 Week Price Projections * High Earnings Velocity * Overvalued by High Price/Sales Ratio
* Undervalued by Price/ "X" Ratio * Stocks with Surging Xxxxxxx Xxxxxxx * Projected Growth Stocks With Reversal
Potential
* Highest 4 Month Price Projection * High Short Interest Ratio * Stocks that have Broken Out of a 5
Percent Basing Pattern
* Stocks with Strong Chalkia's Money * Lowest Price Earnings Ratio * Potential Reversals With High Earnings
Flow Growth 1
* Stocks with Strong Long-term Growth * Weakest Stocks in the Last 3 Weeks * Stocks trading off their 52-week Highs
Rank with Strong Momentum Rank
* Stocks with Strong Short-term Growth * Weakest Stocks in the Last 6 Weeks * Overvalued by High Price/Book Value
Rank Ratio
* Strong Stocks with Good Fundamentals * Potential Reversals With High Earnings * Stocks with 150 Day Moving Average
Growth Breakout
* Stocks Strong in Multiple Time Periods * 30/15 Stockastics Weekly Breakout for * Stocks with Excellent Free Cash
High Cap Stocks Flow/Share
* Weak Stocks Which are Recently Strong * Unattractive Fundamentals and * Stocks with Excellent Free Cash
Technical Flow/Share and Good Earnings Growth
* Strong Stocks which are Recently Weak * Highest Positive Revision in Projected * Stocks with a High Number of
Earnings Consecutive Up Days and at 52-week
* Undervalued Growth Stock Strategy 1 * Weak Stocks that are showing signs of * High Sales Growth and Return on Sales
Recovery with Strong Earnings Growth
* Undervalued Growth Stock Strategy 2 * Strong Groups that are showing signs of * Attractive Gross Margin Stocks with
Weakening Great Revenue and Earnings Growth
* Unattractive Fundamentals and * High Sales Growth and Return on Sales * Stocks with a High Number of
Performance Consecutive Down Days and at 52-Week
* Stocks Owned By The Fewest * Stocks with Very Positive Sales/Cash * Strong Short-term and Long-term
Institutions Flow Ratios Growth plus Short-term Technical
* Lowest Projected Price Earnings Ratio * Stocks with Excellent Cash Flow Growth * Great Earnings Stability and Attractive
Value Ranks
* Small Cap with Weak Fundamentals * Projected Earnings Low Compared to * Extended Stocks with Weak Ranks and
this Year High P/E Ratios
MicroCap 1000 License Agreement
Page 18 of 20
ATTACHMENT 2 - CONTINUED -
-----------------------------------------------------------------------------------------------------
Basing Pattern Breakouts
-----------------------------------------------------------------------------------------------------
* 3 Week Positive BP Breakout * 3 Week Negative BP Breakout * All Positive BP Breakouts
* 6 Week Positive BP Breakout * 6 Week Negative BP Breakout * All Negative BP Breakouts
* 13 Week Positive BP Breakout * 13 Week Negative BP Breakout
* 26 Week Positive BP Breakout * 26 Week Negative BP Breakout
-----------------------------------------------------------------------------------------------------
Technical Breakouts
-----------------------------------------------------------------------------------------------------
* Short Term Positive Breakouts * Inter. Term Positive Breakouts * Long Term Positive Breakouts
* Short Term Negative Breakouts * Inter. Term Negative Breakouts * Long Term Negative Breakouts
-----------------------------------------------------------------------------------------------------
ProSearch Criteria Report
-----------------------------------------------------------------------------------------------------
ProSearch Valuation Data Report
-----------------------------------------------------------------------------------------------------
Macro World Price Forecast
-----------------------------------------------------------------------------------------------------
J & J Mutual Fund Reports
-----------------------------------------------------------------------------------------------------
*** END OF TELESCAN CONTENT ***
MicroCap 1000 License Agreement
Page 19 of 20
ATTACHMENT 3
UK-iNvest Site License Fee Calculation
----------------------------------------------------------------------------------------
Standard SLP Adjusted
UK-iNvest Site Annual License Fee Calculation List For Service Start Date
Price And Multi Site
----------------------------------------------------------------------------------------
(SLP) Discounts
----------------------------------------------------------------------------------------
Host System Software and Technology License: $19,500
Base Internet Technology License: $17,500
Technical Charting License: $27,500
What's Working Now License: $27,500
ProSearch License: $87,500
Host Site Technology Maintenance Fees: $210,000
Base Telescan Technology Licenses - Sub-total: $370,000 $256,560
eCast Technology License $100,000 $65,000
Telescan BOTS Technology License: $225,000 $225,000
Site Management Fees $144,000 $139,300
North American Securities - Telescan Content Fees: $960,000 $618,811
MicroCap 1000 License Agreement
Page 20 of 20
