EXHIBIT 5.5
SERVICES AGREEMENT
This Services Agreement (the "Services 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 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 is based
in the United States and provides investment data on microcap companies to end
users. The parties wish to enter into this Services Agreement whereby Telescan
will provide certain services for both of MFSI's Internet sites. Telescan and
MFSI have this day also entered into a License Agreement (the "LICENSE
AGREEMENT") pursuant to which Telescan granted MFSI certain licenses for the
content and services provided therein. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such terms in the License 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, the License Agreement, and as follows:
1.1 "DATE SERVICES" means the online information services to be
provided by Telescan under this Agreement which include loading, storing and
retrieving data and making the stored data available on the System through the
Internet to end users as described in the Design Specifications and Detailed
Description of Work.
1.2 "DESIGN SPECIFICATIONS" - means the look and feel and site
navigation of the Service to be provided under this Agreement and attached
hereto as EXHIBIT 1.
1.3 "FEATURE MODIFICATIONS" means those modifications to existing
features for the Service to be developed by Telescan in accordance with the
Detailed Description of Work as defined below.
MicroCaplOOO Services Agreement
Page 1 of 23
1.4 "MFSI CONTENT SPECIFICATIONS" means Telescan's required
specifications with respect to receiving the MFSI Content, including the
required medium and format and other technical requirements as specified on
ANNEX A attached hereto and made a part hereof.
1.5 "SERVICE" means the totality of the System and the Content.
1.6 "SYSTEM" means Telescan's computer and related hardware, hardware
configurations, operations systems and related firmware, proprietary and other
software algorithms, Internet connectivity from such hardware to peering points
with other Internet Protocol ("IP") backbone carriers, and other data and
facilities required to enable users of the Service to obtain online interactive
access through the Internet, or through dedicated access lines, to the System as
described in the Design Specifications and Detailed Description of Work,
together with any Feature Modifications.
1.7 "SYSTEM OPERATIONS SERVICES" means the online information services
to be provided by Telescan under this Agreement which includes loading, storing
and retrieving data and making the stored data available from the System through
the Internet to online users as described in the Design Specifications.
ARTICLE 2
SERVICE MATTERS
2.1 SYSTEM DESIGN; DEVELOPMENT.
(a) The functional specifications for the Service are set forth in
Attachment 2 to the License Agreement. The functional specifications set forth
in Attachment 2 to the License Agreement are the standard functionality features
(the "STANDARD FEATURES") for the Service as described therein. The Standard
Features for the XX-xXxxxx.xxx site shall be referred to individually as the "UK
STANDARD FEATURES." The Standard Features for the XxxxxXxxxXXX.xxx site shall be
referred to individually as the "MICROCAP STANDARD FEATURES." Telescan agrees to
make the Standard Features and the Feature Modifications available (which shall
then be included in the Standard Features) as such functions are made available
in accordance with the Detailed Description of Work and attached hereto as
EXHIBIT 3.. To the extent that the Feature Modifications require minimal
programming and development time and effort, Telescan will provide the Feature
Modifications at no additional charge. If more than minimal time and effort is
required, then MFSI shall pay Telescan for such development work at mutually
agreed upon charges. Such charges shall be reasonable, determined in good faith
and shall be in accordance with commercially reasonable rates and upon
commercially reasonable terms ("COMMERCIALLY REASONABLE RATES AND TERMS").
Telescan will from time to time incorporate into the Service upgrades and
revisions to features provided hereunder that Telescan makes generally available
at no additional charge to Wall Street City and its other "Wall Street City
private label partners" (i.e, third-parties to whom Telescan provides features
from Wall Street City which are then offered by those third parties under their
brand names), with such upgrades and revisions being automatically covered by
the terms and conditions of the License Agreement and this Agreement.
MicroCaplOOO Services Agreement
Page 2 of 23
Except for the Standard Features and generally available upgrades and revisions
as expressly provided above, Telescan and MFSI must mutually agree in writing
upon the addition of other features or modifications and the terms and
conditions which shall be at Commercially Reasonable Rates and Terms.
(b) Subject to the reasonable approval of Telescan, MFSI shall be
responsible for the design specifications (the "DESIGN SPECIFICATIONS") for the
Service and Telescan will collaborate with and assist MFSI in establishing the
Design Specifications as contemplated therein. MFSI will deliver the Design
Specifications to Telescan within five (5) business days after the Effective
Date. Once approved by Telescan, the Design Specifications will be attached to
the this Agreement as EXHIBIT 1 and incorporated herein for all purposes.
(c) Within ten (10) business days after Telescan's receipt of the
Design Specifications, Telescan shall prepare and deliver to MFSI a proposed
final written description of the work ("DETAILED DESCRIPTION OF WORK") required
to implement the Design Specifications that will set forth a description of, and
timetable of deadlines for provision to MFSI by Telescan of, the Standard
Features and the Feature Modifications.
(d) The proposed fmal Detailed Description of Work is subject to MFSI's
approval, which approval shall not be unreasonably withheld, within ten business
days after its delivery to MFSI. Once MFSI approves the Detailed Description of
Work, Telescan shall perform the work in accordance with the Detailed
Description of Work and this Agreement.
2.2 HARDWARE. Telescan shall make available, configure, maintain and
act as host system operator for the computer systems hardware for the System
Operation Services.
2.3 LOADING OF CONTENT. Telescan shall from time to time, but not more
or less frequently or less timely than the frequency with which it loads data
for Wall Street City, load appropriate Content into the System for use on the
Service. The availability of Telescan Content is conditioned upon receipt from
Telescan's data suppliers. Telescan may substitute reasonably equivalent data
from time to time to the same extent it does so for Wall Street City if Telescan
is unable to obtain data from an existing data supplier.
2.4 SYSTEM AVAILABILITY. The System shall be available to users of the
MFSI Sites to the same extent that Wall Street City is available to its users
2.5 USAGE AGREEMENT; INTEMET ACCESS. Each user of the Service will be
subject to the terms and conditions of the Site Usage Agreement and attached as
EXHIBIT 2. Each user of the Service is responsible for obtaining its own
connection to the Internet either through MFSI or a third-party Internet service
provider.
MicroCaplOOO Services Agreement
Page 3 of 23
2.6 MSFI CONTENT. MFSI shall furnish to Telescan by way of continuing
data insertions all text and other data to be included within the MFSI Content
in the format(s) described in the MFSI Content Specifications. In the event MFSI
furnishes text, data or graphics in formats other than as provided in the MFSI
Content Specifications, then Telescan may charge MFSI for the effort required to
incorporate such text or data into the Service in accordance with Commercially
Reasonable Rates and Terms. MFSI shall be responsible for all information and
data submitted by MFSI hereunder, and Telescan shall have no responsibility
therefor.
2.7 MARKETING. The Service will be publicized and marketed in all
respects as private labeled service offered by MFSI with such reasonable and
customary attribution and acknowledgement of Telescan as Telescan requires. MFSI
shall throughout the term hereof use its commercially reasonable efforts to
promote and advertise the Service.
2.8 PREMIUM SERVICES. Telescan and MFSI may agree from time to time to
include Telescan services ("PREMIUM SERVICES") for which a specific fee or other
charge is imposed. In such event, the parties will also agree how the revenue
and/or expenses from each Premium Service will be shared and who will process
orders and collections for the Premium Services.
2.9 CUSTOMER SUPPORT. Upon request from MFSI and the mutual agreement
of the parties as to the terms and conditions for provision of customer support,
Telescan will provide such customer support services as the parties may agree
upon in writing.
ARTICLE 3
SERVICE FEES
3.1 CURRENCY. All references to money in this Agreement are to United
States dollars. All payments due to either party shall be made in United States
dollars. To the extent that payments are received by a Party with respect to the
Service in amounts that are not denominated or converted in U.S. dollars, such
Party shall convert the payment to U.S. dollars at the exchange rate customarily
used by such Party (e.g., the exchange rate offered by the Party's usual bank)
at the specific rate applicable on the due date of the payment.
3.2 SERVICES FEES. In consideration of Telescan's execution of this
Agreement and the services provided by Telescan hereunder, contemporaneously
with the execution of this Agreement, MFSI shall pay Telescan (i) a services fee
(the "MICROCAP SERVICES FEE") equal to $850,014 US Dollars payable in 566,676
shares of common stock of MFSI for the services relating to the MicroCap Site
and (ii) a services fee (the "UK INVEST SERVICES FEE") equal to $1,516,223 US
Dollars payable in 1,010,815 shares of common stock of MFSI for the services
relating to the MicroCap Site.
MicroCaplOOO Services Agreement
Page 4 of 23
3.3 MICROCAP SITE REVENUE SHARE. Telescan shall receive 15% of all
subscription fees or other charges for services that use the Telescan Content or
the Data Services ("MicroCap Site Revenues") under this Agreement. Neither party
shall subtract from Revenues it may receive in respect of the MicroCap Site any
fees, costs or expenses (including without limitation any overhead or other
internal costs, salary and benefits from such party's employees) other than
direct, documented, out-of-pocket expenses paid to a third party. Each month,
MFSI shall pay to Telescan Telescan's share of MicroCap Site Revenues received
during the preceding month.
3.4 INCREMENTAL UK INVEST SITE COSTS. MFSI shall reimburse Telescan for
all additional or increased costs and expenses (the "INCREMENTAL UK INVEST SITE
COSTS") attributable to the services provided by Telescan to the UK iNvest Site
within 30 days of receipt of invoice. The Incremental UK iNvest Site Costs shall
include, without limitation the following: taxes or similar assessments;
merchant fees, royalties, license fees or similar charges; hardware, software,
or other systems costs; data costs; fully-burdened employee costs to the extent
they provide services directly attributable to the UK iNvest Site. Telescan
shall provide MFSI with a detailed invoice of Incremental UK iNvest Site Costs
on a monthly basis.
3.5 PAYMENTS AND REPORTS. Each party shall keep accurate records in
sufficient detail to enable the payments due to each party hereunder to be
determined and shall, by the end of each calendar month during the term of this
Agreement, submit to the other a report for the preceding month, together with
any payments due to the other party through the reporting period covered in such
report. All references herein to "month" shall mean "calendar month".
3.6 AUDIT AND EXAMINATION. Either party shall have the right, upon
thirty (30) days prior written notice, to review the other party's records with
respect to the Service. In addition, once each calendar year, each party shall
have the right, at its expense, to have the records or reports rendered by the
other party hereunder during the previous 12 months audited by independent
certified public accountants (an "AUDIT") and each party agrees to cooperate
with such accountants in conducting such Audit. All out-of-pocket costs and
expenses incurred by the audited party, such as photocopying, etc., in
connection with the Audit shall be reimbursed by the party conducting the audit.
Notwithstanding the foregoing, if as the result of any Audit, it is determined
that the auditing party's portion of revenues or expenses hereunder during the
period covered by the Audit exceeds by five percent (5%) or more the amount of
such portion of revenues or expenses actually reported and paid during such
period, then the audited party shall (i) immediately pay to the auditing party
the amount of such deficiency and (ii) reimburse the auditing party for all
reasonable out-of-pocket costs and expenses incurred by it in connection with
such Audit provided that such out-of-pocket costs and expenses shall not exceed
$5,000.
MicroCaplOOO Services Agreement
Page 5 of 23
ARTICLE 4
DISCLAIMERS; LIMITATIONS OF LIABILITY
4.1 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 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.
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 infonnation that appears in issued patents or which is
publicly available.
MicroCaplOOO Services Agreement
Page 6 of 23
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. Each party acknowledges that the other, as a
publicly traded company, has certain restrictions and procedures which must be
complied with when releasing to the public material information regarding a
party and its business. Accordingly, each party's consent to any proposed public
release of information relating to the other or this Agreement may be withheld
by a party at its sole discretion or conditioned upon compliance with the
other'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 software, content 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 System,
the Service, the Feature Modifications 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 any part of the Telescan Property
or copies thereof. All Intellectual Property Rights and all other property
rights 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.
MicroCaplOOO Services Agreement
Page 7 of 23
5.4 TRADEMARKS FOR THE SERVICE. To the extent that the parties develop
any distinctive names or graphic symbols for the Service, MFSI shall use its
commercially reasonable efforts to secure trademark and/or service xxxx
protection therefor, and any such trademarks or service marks shall belong to
MFSI; PROVIDED, HOWEVER, that MFSI shall not be entitled to use the name or xxxx
"Telescan" except pursuant to this Agreement.
5.5 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.
ARTICLE 6
TERM AND TERMINATION
6.1 TERM. The initial term (the "Initial Term") of this Agreement shall
be two (2) years commencing on the Effective Date, unless sooner terminated as
provided herein, and shall continue for successive two-year renewal periods
(each a "RENEWAL PERIOD"), until terminated in accordance with the terms hereof
The Initial Term and any Renewal Periods are referred to generally in this
Agreement as the "term." Either party may terminate this Agreement at the end of
the then-current term by providing the other party written notice at least
ninety (90) days (but not more than two years) prior to the expiration of such
term.
6.2 TERMINATION. Either party may terminate this Agreement prior to the
end of the term set forth in Section 6.1 by written notice to the other for the
following reasons:
(a) if the other party materially fails to perform or comply
with this Agreement or any provision hereof;
(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 6.2 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.
6.3 TERMINATION OF SERVICES AGREEMENT. This Agreement shall terminate
automatically upon any termination of the License Agreement.
MicroCaplOOO Services Agreement
Page 8 of 23
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. 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 NOTICE) 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
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 Services.cor4 Inc.
0000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Telecopy No.: (0000 000-0000
MicroCaplOOO Services Agreement
Page 9 of 23
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) 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 5.5 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.
MicroCaplOOO Services Agreement
Page 10 of 23
(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.
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 dissolution, acquisition, merger or other
change in legal status. This Agreement shall inure to the benefit of arid be
binding upon the parties to this Agreement and their respective successors and
permitted assigns.
MicroCaplOOO Services Agreement
Page 11 of 23
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.
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 and the Foreign Territories 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 any Foreign Territory or of the United States, to market or sell the Service
in the Foreign Territories. 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.
MicroCaplOOO Services Agreement
Page 12 of 23
7.13 The parties will have the right, but not the obligation, to
prevent the Service, including any interactive communications (E.G., bulletin
boards or forums if applicable to the Service), from being used for any purpose
which is unlawful, obscene, defamatory, which contains injurious advice or
recommendations, which reasonably appears to violate the proprietary rights
(trademark rights, patent rights, copyrights, right of privacy, rights of
publicity, etc.) of any person or entity, which is reasonably calculated to
promote hatred, discrimination or incivility, or which is likely to be injurious
to the good names or reputations of Telescan or MFSI. The parties agree that the
Service, including any interactive communications, are not intended to create a
"public forum". If applicable to the System, the source of all source-generated
data or vendor product information (not Telescan or MFSI) generated from any
interactive communications shall be solely responsible for the accuracy or
appropriateness of such data.
7.14 The following Exhibits are hereby incorporated into and made a
part of this Agreement:
Annex A - "MFSI Content Specifications"
Exhibit 1 - "Design Specifications"
Exhibit 2 - "Site Usage Agreement"
Exhibit 3 - "Detailed Description Of Work"
7.15 ENTIRE AGREEMENT. TOGETHER WITH THE STOCK EXCHANGE AGREEMENT, THE
STOCK OPTION AGREEMENT AND THE LICENSE 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 ORGAL 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. Xxxxxxxxx /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
---------------------- -------------------------------------
MicroCap1000 Stock Services Agreement
Page 13 of 23
ATTACHMENTS AND EXHIBITS TO THE SERVICES AGREEMENT
BETWEEN
TELESCAN, INC.
AND
MICROCAP FINANCIAL XXXXXXXX.XXX, INC.
The following Exhibits have hereby incorporated into and made a part of
this Agreement:
Annex A - "MFSI Content Specifications"
Exhibit 1 - "Design Specifications"
Exhibit 2 - "Site Usage Agreement"
Exhibit 3 - "Detailed Description Of Work"
MicroCaplOOO Services Agreement
Page 14 of 23
ANNEX A
MFSI Content Specifications
Data may be submitted electronically in accordance with the procedures
established as part of the design of the System. Otherwise, data must be
submitted in accordance with the requirements set forth below:
Delivery Media: 8mm Cassette Tape
FTP
9-Track Tape
Dedicated Line1
Satellite2
Diskette
CD-ROM
Data Format: Microsoft Access
Text (Delimited)
Text (Fixed Width)
Microsoft Excel
Lotus (wks, wkl, wk3)
Paradox 3.x
Btrieve
FoxPro 2.5 or 3.0
abase III or IV
HTML
Graphics Format: .GIF
.JPEG
------------
1 Licensee To Provide Communications Equipment For Both Ends Of The Transaction
2 Licensee To Provide Communications Equipment For Both Ends Of The Transaction
MicroCapl000 Services Agreement
Page 15 of 23
EXHIBIT 1
Design Specifications
To be mutually agreed upon, accepted in writing (by their signatures
below) and attached hereto within five (5) business days of the signing of this
Agreement.
AGREED AND ACCEPTED BY:
Company: Telescan, Inc. Company: MicroCap Financial
Xxxxxxxx.xxx, Inc.
------------------- --------------------------
Signature: Signature:
------------------- --------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxx Xxxxxxxx
------------------- --------------------------
Title: Senior Vice President Title: Chairman
--------------------- --------------------------
Date: Date:
--------------------- --------------------------
MicroCaplOOO Services Agreement
Page 16 of 23
EXHIBIT 2
SITE USAGE AGREEMENT
This Agreement sets forth the terms and conditions which apply to your use of
the [INSERT THE ".com " NAME OF THE SITE] web site (the "Service") which is
offered to you by [INSERT THE NAME OF THE TELESCAN MANAGED SERVICES ALLIANCE
PARTNER] ("TMSAP") and Telescan, Inc. ("Service Provider"). BY USING THIS SITE,
YOU AGREE TO THE TERMS OF THIS USAGE AGREEMENT JUST AS IF YOU HAD SIGNED THE
USAGE AGREEMENT. If you do not agree to be bound by this Agreement, please
discontinue your use of the Service.
1. OWNERSHIP AND LICENSE. This Service is owned and operated by TMSAP and its
affiliated companies and contains material and information which is derived in
whole or in part from material supplied and owned by TMSAP, Service Provider and
other sources, and is protected by copyright, trademark, and other applicable
laws. You may not modify, copy, reproduce, republish, upload, post, transmit,
publicly display, prepare derivative works based on, or distribute in any way
any material or information from this Service including code and software
("Material"), except as expressly provided herein. You may download Material
from this Service for your personal, non-commercial use only, provided you keep
intact all copyright and other proprietary notices. In the event that you
download Material from the Service, such Material is licensed to you for your
personal, non-commercial use by TMSAP, Service Provider or their licensers, and
neither TMSAP nor Service Provider, nor their licensers, transfer any title to
any such Material to you. All rights not expressly granted to you hereunder are
reserved.
2. SERVICE USAGE RESTRICTIONS.
(a) GENERAL. Violation of the terms of this Agreement may result in the
termination of your right to use the Service or the suspension, in whole or in
part, of your access to it.
(b) RULES. It is a condition of your use of this Service that you do
not: (i) restrict or inhibit any other user from using and enjoying the Service;
(ii) post or transmit any unlawful, threatening, abusive, libelous, defamatory,
obscene, vulgar, pornographic, profane or indecent information of any kind,
including without limitation any transmissions constituting or encouraging
conduct that would constitute a criminal offense, give rise to civil liability
or otherwise violate any local, state, national or international law; (iii) post
or transmit any information, software or other material which violates or
infringes the rights of others, including material which is an invasion of
privacy or publicity rights or which is protected by copyright, trademark or
other proprietary right, or derivative works with respect thereto, without first
obtaining permission from the owner or right holder; (iv) post or transmit any
information, software or other material which contains a virus or other harmful
component; (v) post, or transmit or in any way exploit any information, software
or other material for commercial purposes or which contains advertising; (vi)
solicit other users to join, become members of, or contribute money to any
online service or other organization; (vii) impersonate any person or entity or
falsely state or otherwise misrepresent your professional or other affiliation
with any person or entity; (viii) resell, redistribute, broadcast or transfer
the information made available to you through the Service or use such
information in a searchable, machine-readable database; or (viii) use the
Service to collect personally identifying information about users of the Service
in violation of our Privacy Policy. You agree that you will not use the Service,
including the information provided therein and all related equipment, networks
and network devices (specifically including Internet access) for any unlawful
purpose. TMSAP, at its sole and absolute discretion, shall determine whether any
information transmitted or received violates this provision.
MicroCaplOOO Services Agreement
Page 17 of 23
(c) MONITORING. You understand that TMSAP has no obligation to monitor
any information transmitted through use of the Service. However, TMSAP reserves
the right at all times to disclose any information as necessary to satisfy any
law, regulation or governmental request, or to refuse to post or to remove any
information or materials, in whole or in part, that in TMSAP's sole and absolute
discretion are objectionable or in violation of this Agreement. You acknowledge
that TMSAP and/or Service Provider reserve the right to, and may from time to
time, monitor any and all information transmitted or received through the
Service, for operational and other purposes. During monitoring, information may
be examined, recorded, copied, and used in accordance with our Privacy Policy or
for other authorized purposes. Your use of the Service constitutes consent to
such monitoring.
(d) LICENSE. Except as set forth in the Privacy Policy, by posting
messages, uploading files, inputting data, or engaging in any other form of
communication (a "Communication") through the Service, you are granting TMSAP a
royalty free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide
license to (i) use, copy, sublicense, adapt, transmit, publicly perform,
display, or prepare derivative works based on any such Communication, and (ii)
sublicense to third parties the unrestricted right to exercise any of the
foregoing rights granted with respect to such Communication. No Communication
shall be subject to any obligation of confidence on the part of TMSAP or Service
Provider. The foregoing grants shall include the right to exploit any
proprietary rights in such Communication, including but not limited to rights
under copyright, trademark, service xxxx, or patent laws in any relevant
jurisdiction.
3.SUBMISSIONS.. TMSAP is pleased to hear from users and welcomes your comments
regarding TMSAP's programs and services, including XXXXX.xxx. Unfortunately,
TMSAP's longstanding company policy does not allow it to accept or to consider
creative ideas, suggestions, or materials other than those it has specifically
requested. We hope that you will understand that the intent of this policy is to
avoid the possibility of future misunderstandings when projects developed by
TMSAP's employees and agents might seem to be similar to creative works
submitted by users. Accordingly, while we value your feedback on our programs
and services, we must ask that you not send us original creative materials, such
as stories, ideas for programs, program segments or products. If, at our
request, you send certain specific submissions, or without a request from us you
send creative suggestions, ideas, notes or concepts or other materials, they
shall be deemed, and shall remain, the property of TMSAP, and shall otherwise be
subject to the provisions of Section 2(d), above.
4. TRADING WITH ONLINE BROKERAGE AND MUTUAL FUND FIRMS. The Service provides
links to online trading services for your convenience only. These online trading
services are provided by registered broker dealers and mutual fund companies,
and such broker dealers and mutual fund companies are solely responsible for any
services provided to you. Neither TMSAP nor Service Provider is a registered
broker dealer or mutual fund company, and neither TMSAP nor Service Provider
endorses or recommends the services of any particular broker dealer or mutual
fund company.
5. DISCLAIMER OF WARRANTIES. TMSAP HAS PROVIDED LINKS AND POINTERS TO INTERNET
SITES MAINTAINED BY THIRD PARTIES ("THIRD PARTY SITES") AND MAY FROM TIME TO
TIME PROVIDE THIRD PARTY MATERIALS ON THIS SERVICE. NEITHER TMSAP, SERVICE
PROVIDER, THEIR PARENT OR SUBSIDIARY COMPANIES NOR THEIR AFFILIATES OR SUPPLIERS
OPERATE OR CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES ON THESE
THIRD PARTY SITES. THE MATERIALS IN THIS SERVICE AND THE THIRD PARTY SITES ARE
PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TMSAP AND SERVICE
PROVIDER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. NEITHER TMSAP NOR SERVICE PROVIDER WARRANT THAT THE FUNCTIONS
CONTAINED IN THE MATERIALS AND PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE,
THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SERVICE OR THE SERVER THAT MAKES
THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEITHER TMSAP
NOR SERVICE PROVIDER WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR
THE RESULTS OF THE USE OF THE MATERIAL IN THIS SERVICE OR IN THIRD PARTY SITES
IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY
MicroCaplOOO Services Agreement
Page 18 of 23
OR OTHERWISE. YOU ASSUME ALL RISK OF ERRORS AND/OR OMISSIONS IN THE SERVICE
INCLUDING THE TRANSMISSION OR TRANSLATION OF INFORMATION. YOU ASSUME FULL
RESPONSIBILITY FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKS TO SATISFY YOUR
REQUIREMENTS FOR THE ACCURACY AND SUITABILITY OF THE SERVICE, INCLUDING ANY
INFORMATION PROVIDED THROUGH THE SERVICE, AND FOR MAINTAINING ANY MEANS WHICH
YOU MAY REQUIRE FOR THE RECONSTRUCTION OF LOST DATA OR SUBSEQUENT MANIPULATIONS
OR ANALYSES OF THE INFORMATION PROVIDED HEREUNDER. YOU (AND NOT TMSAP OR SERVICE
PROVIDER) ASSUME THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR
CORRECTION. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY
LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU
SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE
TO STATE.
6. LIMITATION OF LIABILITY.
IN NO EVENT SHALL TMSAP, SERVICE PROVIDER, THEIR PARENT OR SUBSIDIARY COMPANIES
NOR THEIR AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE USE OF THIS SERVICE OR WITH THE DELAY OR INABILITY TO USE
THIS SERVICE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND/OR SERVICES
OBTAINED THROUGH THIS SERVICE, OR OTHERWISE ARISING OUT OF YOUR USE OF THIS
SERVICE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF
TMSAP, SERVICE PROVIDER OR ANY OF THEIR AFFILIATES OR SUPPLIERS HAS BEEN ADVISED
OF THE POSSIBILITY OF DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT
NEITHER TMSAP, SERVICE PROVIDER, THEIR PARENT OR SUBSIDIARY COMPANIES NOR THEIR
AFFILIATES OR SUPPLIERS SHALL BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL
CONDUCT OF ANY USER OF THIS SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
7. INDEMNIFICATION. You agree to defend, indemnify and hold harmless TMSAP,
Service Provider, their affiliates their respective directors, officers,
employees and agents from and against any and all claims, actions, suits or
proceedings, as well as any and all losses, liabilities, damages, costs and
expenses (including reasonable attorneys fees) arising out of or accruing from
(a) any material posted or otherwise provided by you that infringes any
copyright, trademark, trade secret, trade dress, patent, moral, or other
intellectual property right of any person, (b) any misrepresentation made by you
in connection with your use of the Service; (c) any non-compliance by you with
the terms and conditions of this Agreement; and (d) claims brought by persons or
entities other than the parties to this Usage Agreement arising from or related
to your access and use of the Service, including the infommation obtained
through the Service.
8. TERMINATION. This Agreement and the license rights granted hereunder shall
remain in full force and effect unless terminated, suspended, or canceled for
any of the following reasons: (a) upon thirty (30) days written notice by any
party of its intent to terminate this Agreement; (b) immediately by TMSAP or
Service Provider for any unauthorized access or use by you, including, without
limitation (i) concurrent access of the Service with identical user
identification numbers, (ii) permitting another person or entity to use your
user identification number to access the Service, or (iii) any other access or
use of the Service except as expressly provided in this Agreement; or (c)
immediately, if you violate the terms and conditions of this Agreement or the
rules and regulations relating to the use of, or tamper with or alter any of the
software and/or data files contained in, or accessed through, the Service.
Termination, suspension, or cancellation of this Agreement or your access rights
shall not affect any right or relief to which TMSAP or Service Provider may be
entitled, at law or in equity. Upon termination of this Agreement, all rights
granted to you will terminate and revert to TMSAP and its licensers.
MicroCaplOOO Services Agreement
Page 19 of 23
9. TRADEMARKS. [INSERT APPROPRIATE TMSAP REGISTERED TRADEMARKS] are registered
trademarks of the [INSERT THE NAME OF THE TELESCAN MANAGED SERVICES ALLIANCE
PARTNER], and all trademarks, service marks and trade names used on the Service
are the property of the [INSERT THE NAME OF THE TELESCAN MANAGED SERVICES
ALLIANCE PARTNER] or their respective owners, and may not be copied, downloaded
or otherwise exploited without the permission of TMSAP or the owner of such
trademark, service xxxx or trade name.
10. MINORS. If you have agreed to allow your minor chlid,or a child for whom you
are legal guardian (a "Minor"), to register as a member of the Service, you
agree that you shall be solely responsible for: (a) the online conduct of such
Minor; (b) monitoring such Minor's access to and use of the Service; and (c) the
consequences of any use of the Service by such Minor.
11. CHILD ONLINE PROTECTION ACT NOTIFICATION. Pursuant to 47 U.S.C. Section
230(d) as amended, TMSAP hereby notifies you that parental control protections
(such as computer hardware, software, or filtering services) are commercially
available that may assist you in limiting access to material that is harmful to
minors. information identifying current providers of such protections is
available at the Electronic Frontier Foundation website,
xxxx://xxx.xxx.xxx/xxx/Xxxxxxxxxx/Xxxxxxx_xxxxxxx_xxxxxxxxx/, and at the America
Links Up website, xxxx://xxx.xxxxxxxxxx.xxx/xxxxxxxxxxx/xxxxxxxx.xxxx.
12. INFRINGEMENT POLICY. TMSAP, on behalf of itself and Service Provider,
pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital
Millennium Copyright Act (the "Act"), reserves the right, but not the
obligation, to terminate your license to use the Service if it determines in its
sole and absolute discretion that you are involved in infringing activity,
including alleged acts of first-time or repeat infringement, regardless of
whether the material or activity is ultimately determined to be infringing.
TMSAP and Service Provider accommodate and do not interfere with standard
technical measures used by copyright owners to protect their materials. In
addition, pursuant to 17 U.S.C. Section 512(c), TMSAP, on behalf of itself and
Service Provider, has implemented procedures for receiving written notification
of claimed infringements and for processing such claims in accordance with the
Act. Our designated agent to receive notification of claimed infringement is:
[INSERT NAME]
[INSERT ADDRESS]
[INSERT PHONE NUMBER]
[INSERT EMAIL ADDRESS]
In addition, any written notice regarding any defamatory or infringing activity,
whether of a copyright, patent, trademark or other proprietary right, should be
sent to our designated agent, listed above, and must include the following
information:
A. A physical or electronic signature of a person authorized to act on behalf of
(1) the owner of an exclusive right that is allegedly infringed or (2) the
person defamed.
B. Identification of the copyrighted work claimed to have been infringed, or, if
multiple copyrighted works at a single online site are covered by a single
notification, a representative list of such works at that site. Similarly, for
other types of infringing materials, a list of such materials.
C. Identification of the material that is claimed to be infringing, to be the
subject of infringing activity, or that is claimed to be defamatory and that you
are requesting be removed or disabled, and information reasonably sufficient to
permit us to locate the material.
D. Infommation reasonably sufficient to permit us to contact you, such as your
address, telephone number, and/or electronic mail address.
E. A statement that you have a good faith belief that use of the material in the
manner complained of is not authorized by the copyright or other proprietary
right owner, its agent, or the law.
MicroCaplOOO Services Agreement
Page 20 of 23
F. A statement that the information in the notification is accurate, and under
penalty of perjury, that you are authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed or on behalf of the person defamed.
13. MODIFICATION. TMSAP reserves the right to amend this Agreement, and to
modify, add or discontinue any aspect, content, or feature of the Service. Such
amendments, modifications, additions or deletions shall become effective upon
notice thereof, which may be provided to you by posting on the Service, via
e-mail or any other reasonable means. Continued use of the Service by you shall
be deemed to indicate your acceptance of any such amendments, modifications,
additions or deletions.
14. JURISDICTION. Unless otherwise specified, the materials on this Service are
presented solely for the purpose of promoting TMSAP's [INSERT THE APPROPRIATE
TMSAP BUSINESS NAME(S)] and other products available in the United States, its
territories, possessions and protectorates. This Service is controlled and
operated by TMSAP from its offices within the state(s) of [INSERT APPROPRIATE
STATE NAMES], and by Service Provider from its offices within the State of
Texas, United States of America. TMSAP and Service Provider make no
representation that materials on this Service are appropriate or available for
use outside the United States. Those who choose to access this Service from
outside the United States do so on their own initiative and are responsible for
compliance with local laws, if and to the extent that local laws are applicable.
Software and technical data from this Service is further subject to United
States export laws and regulations (the "U.S. Export Laws"). No software or
technical data from this Service may be downloaded or otherwise exported or
re-exported in violation of the U.S. Export Laws. By using the Service, you
represent and warrant that you are not located in, under the control of, or a
national or resident of any country to which it is illegal to export the
Materials and that you are not on the U.S. Treasury Department's list of
Specially Designated Nationals (see www. xxxxx.xxx/xxxx/) or the U.S. Commerce
Department's Denial Orders or Entity lists (see xxx.xxx.xxx.xxx).
15. MISCELLANEOUS. This agreement shall be governed by and construed in
accordance with the laws of the State of Texas without giving effect to any
principles of conflicts of law. You may not assign any of your rights,
obligations or privileges hereunder without the prior written consent of TMSAP.
Any assignment other than as provided for in this Section shall be null and
void, ab initio. If any provision of this agreement shall be unlawful, void, or
for any reason unenforceable, then that provision shall be deemed severable from
this agreement and shall not affect the validity and enforceability of any
remaining provisions. This Agreement and any posted operating rules constitute
the entire agreement of the parties with respect to the subject matter hereof,
and supersede all prior or contemporaneous communications and proposals, whether
oral or written, between the parties with respect to such subject matter. No
waiver by either party of any breach or default hereunder shall be deemed a
waiver of any subsequent breach or default. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
MicroCaplOOO Services Agreement
Page 21 of 23
EXHIBIT 3
DETAILED DESCRIPTION OF WORK
To be mutually agreed upon, accepted in writing (by their signatures below) and
attached hereto within ten (10) business days of Telescan's receipt of the
Design Specifications.
AGREED AND ACCEPTED BY:
Company: Telescan, Inc. Company: MicroCap Financial
Xxxxxxxx.xxx, Inc.
------------------- --------------------------
Signature: Signature:
------------------- --------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxx Xxxxxxxx
------------------- --------------------------
Title: Senior Vice President Title: Chairman
--------------------- --------------------------
Date: Date:
--------------------- --------------------------
MicroCaplOOO Services Agreement
Page 22 of 23
