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EXHIBIT 10.28
DISTRIBUTOR AGREEMENT
This Distributor Agreement ("Agreement") is entered into by and between
Comtex Scientific Corporation ("COMTEX"), a New York corporation with its
principal offices at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
and Intelligent Information Incorporated (the "Distributor"), a Delaware
corporation with its principal offices at Xxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxxx 00000.
1. DEFINITIONS
a. Service. The term "the Service" means the electronic
information services identified in Exhibit A to this Agreement.
b. Content. The term "Content" means all material, whether or not
protected by copyright, including but not limited to text, images, and other
multimedia data, provided or made available as part of the Service.
c. Information Providers. The term "Information Providers" means
third parties from whom COMTEX acquires the right to distribute Content provided
or made available as part of the Service.
d. Users. The term "Users" means all third parties to whom
Distributor, subject to the terms and conditions of this Agreement, may license,
sell, transfer, make available or otherwise distribute the Service.
2. DISTRIBUTION
x. Xxxxx of Rights. Subject to the terms and conditions of this
Agreement, COMTEX grants Distributor a nonexclusive license and right to market
the Service, distribute the Service to Users, and license Users to use the
Service for their internal use.
b. Restrictions on Distribution
i. Unauthorized Entities. Distributor shall not knowingly
license, sell, transmit or otherwise distribute the Service or Content
to print or broadcast news media or any of their parents, subsidiaries,
and affiliates ("Unauthorized Entities"), without obtaining for each
such Unauthorized Entity the prior written consent of COMTEX. In the
event any such unauthorized distribution becomes known to Distributor,
Distributor immediately shall notify COMTEX and use its best efforts to
halt immediately such distribution.
ii. Redistribution. Distributor shall not license, sell,
transfer, make available or otherwise distribute the Service or Content
to any third party who, for the use or benefit of such third party's
Customers, licenses, purchases or otherwise obtains the Service or
Content from Distributor and then relicenses, resells, transfers, makes
available or otherwise redistributes such Service and Content to such
third party's Customers, without obtaining for each such third party
the prior written consent of COMTEX. For purposes of this subparagraph,
the term "Customer" shall include any individual, entity or other party
who licenses, purchases or otherwise obtains such Service or Content
from the third party.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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c. User Agreements. Distributor shall require that each User
enter into an agreement that contains the provisions set forth in Exhibit D or
provisions substantially equivalent thereto. Such agreement, which may be
obtained in an electronic or hard-copy format, shall be retained by Distributor
for the term of this Agreement and three (3) years thereafter. Upon the request
of COMTEX, Distributor shall provide COMTEX a copy of such user agreement.
d. Reservation. COMTEX reserves the right to add or withdraw
Information Providers, Content and items of coverage from the Service without
notice.
3. MARKETING
a. Promotion. Distributor agrees to use commercially reasonable
efforts to promote and market the Service to prospective Users and to enter into
licenses for use of the Service by Users.
b. Expenses. Distributor shall be responsible for all expenses
incurred by Distributor in promoting and marketing the Service.
c. Use of Name. Distributor shall name COMTEX as one of its
information services in its formal promotional and marketing materials relating
to the Service, including press releases and advertisements.
d. Prior Approval. COMTEX and Distributor each agrees to submit
to the other party for written approval all press releases, advertising or other
promotional materials that use Service names or a party's company name not less
than fifteen (15) days before the proposed use. Each party shall not
unreasonably withhold its approval. Unless notice of approval or disapproval is
received within ten (10) days of receipt of promotional materials, approval
shall be deemed granted. Either party, however, may identify the other in its
published listing of available services or Distributors without such written
approval.
4. DELIVERY OF THE SERVICE
a. Provision of the Service. Subject to the terms and conditions
of this Agreement, COMTEX shall provide the Service to Distributor and
Distributor shall receive the Service from COMTEX in conformance with the
Technical Specifications set forth in Exhibit A.
b. Timeliness. COMTEX shall use commercially reasonable efforts
to maintain the timeliness of the information contained in the Service.
Distributor acknowledges that COMTEX relies on the performance of Information
Providers outside the control of COMTEX in order to provide the Service.
c. Proprietary Notices. Where supplied as part of the Service by
COMTEX or its Information Providers, Distributor will cause to be displayed
appropriate copyright or other proprietary notices relating to the Service.
d. Modifications. Distributor shall not edit, abridge, rewrite or
in any other way alter the Content of the Service or create any work derived
from the Content of the Service; provided, however, that Distributor may choose
not to display every story or article.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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e. Remedies
i. Corrections. Upon receipt of written notice from
COMTEX of an error in the distribution of the Service and Content to a
User, Distributor shall use commercially reasonable efforts to promptly
correct such error.
ii. Withdrawal of Information Provider. Notwithstanding
Subparagraph 4.e.i., in the event that Distributor violates
Subparagraphs 2.b., 4.c. or 4.d., infringes any copyright of an
Information Provider, or otherwise violates the proprietary rights of
an Information Provider, COMTEX, at its sole discretion, immediately
may cease distribution of such Information Provider's Content to
Distributor until the violation or infringement is remedied by
Distributor, during which period Distributor acknowledges that such
actions by COMTEX shall not result in a breach of Subparagraphs 4.a.
and 4.b.
f. Review by COMTEX
i. Access. Throughout the term of this Agreement,
Distributor shall provide COMTEX reasonable access to Distributor's
system for distribution of the Service to Users for the sole purpose of
reviewing Distributor's implementation of the Service. This access
shall be provided by Distributor at no charge to COMTEX
ii. Opportunity to Review. Distributor shall provide
notice to COMTEX to allow COMTEX a reasonable opportunity to review
Distributor's implementation of the Service before or, if prior review
is impracticable, as soon as possible after Distributor implements the
Service or any substantial changes in its implementation of the
Service.
5. PAYMENT
a. Payment Schedule. Distributor shall pay COMTEX the Monthly
Fees and Royalties set forth in the Payment Schedule in Exhibit B.
b. Invoices and Due Date. Each month, COMTEX shall provide
Distributor an invoice setting forth the following:
(i) the Monthly Fees for the current month;
(ii) the Estimated Royalty for the current month, which
shall be equal to the prior month's actual Royalty; and
(iii) the Royalty Adjustment for the prior month, which
shall be the amount by which the prior month's Royalty, based on actual
usage, exceeds the prior month's Estimated Royalty, or Royalty Credit,
which shall be the amount by which the prior month's Estimated Royalty
exceeds the prior month's Royalty, based on actual usage. COMTEX shall
credit Distributor the amount of any Royalty Credit.
Distributor shall pay COMTEX the net amount shown on each invoice within thirty
(30) days of the date of the invoice (the "Due Date").
c. Fees Subject to Change. COMTEX may adjust the Fees set forth
in Exhibit B upon sixty (60) days prior written notice to Distributor.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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d. Reports. Within ten (10) days after the end of each month,
Distributor shall provide COMTEX a report, in the format set forth in Exhibit B
to this Agreement or as otherwise agreed to by the parties, setting forth all
information necessary to calculate the Monthly Fees and Royalties for the prior
month.
e. Taxes. Distributor shall be responsible for the payment of
all taxes, including sales, excise, and value-added taxes, which may be levied
upon the provision of the Service or on any payments by Distributor to COMTEX
hereunder, other than franchise and income taxes of COMTEX.
f. Interest. All amounts under Subparagraph a. above owed to
COMTEX by Distributor and not paid by the Due Date shall be deemed delinquent
and [*], shall be paid by Distributor to COMTEX on such amounts. In addition,
COMTEX shall be entitled to [*]. Nothing in this paragraph shall limit COMTEX'
right to terminate this Agreement in accordance with Paragraph 6.b.
g. Audit. COMTEX or its representative may, during business
hours and upon reasonable notice, inspect and audit the relevant books and
records of Distributor for the sole purpose of verifying all information
related to payments under this Agreement. Such inspection and audit shall be at
the expense of COMTEX unless the audit shows an error of ten percent (10%) or
more in the calculation of Monthly Fees and Royalties, in which case
Distributor shall bear the expense of such inspection and audit. Any deficiency
discovered by the audit shall be paid by Distributor to COMTEX within thirty
(30) days of COMTEX notifying Distributor of the deficiency.
6. TERM AND TERMINATION
a. Term. This Agreement commences on the date of the last
signature hereto or the first commercial distribution of the Service, whichever
occurs first (the "Effective Date"), and shall remain in effect for the Initial
Term set forth in Exhibit A. This Agreement shall renew automatically for
successive periods of the duration of the Renewal Term set forth in Exhibit A,
unless either party notifies the other party in writing, at least ninety (90)
days before the end of the Initial Term or any Renewal Term, of its election
not to renew.
b. Termination. Either party may terminate this Agreement at any
time if the other party materially breaches any provision of this Agreement.
Such termination shall take effect (i) if the breach is incapable of cure, then
immediately upon the breaching party's receipt of a written notice of
termination which identifies the breach, or (ii) if the breach, capable of
being cured, has not been cured within sixty (60) days after receipt of written
notice from the non-breaching party identifying the breach, then immediately
upon receipt of a written notice of termination received within thirty (30)
days of the end of such sixty (60) day period. For purposes of this paragraph,
a breach of Subparagraphs 2.b. or 4.e.i. shall be deemed a breach that is
incapable of cure.
c. Insolvency. Either party may terminate this Agreement by
written notice to the other if the other party becomes insolvent, makes a
general assignment for the benefit of creditors, permits the appointment of a
receiver for its business or assets, or takes steps to wind up or terminate its
business.
d. Obligations upon Termination. Effective upon termination of
the Agreement, Distributor shall not license, sell, transfer, make available or
otherwise distribute the Service or Content nor access, use or retransmit the
Service or Content. Within thirty (30) days of termination, Distributor shall
(i) pay to COMTEX all amounts owed under Paragraph 5 of this Agreement, and
(ii) for all Content, either (A) erase and purge the Content from any on-line
and off-line storage media and certify, in writing, to COMTEX that such erasure
and purge has been completed, or (B) certify, in writing, to COMTEX that
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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certain Content has been retained in creating back-ups during the normal course
of business and that such Content shall not be used in any manner whatsoever
without the prior consent of COMTEX.
e. Remedies upon Breach. Upon termination under Subparagraphs b.
and c. above, COMTEX shall terminate the Service and shall be entitled to
recover from Distributor (i) any payments due hereunder, (ii) the total of
Distributor's Monthly Fee multiplied by the number of months between such
termination and the date of expiration of the then current term, less savings
realized by COMTEX, (iii) all costs and expenses of collection, including
attorneys' fees, and (iv) any and all direct damages under law.
f. Survival. The provisions of Paragraphs 5, 6, 7, 8, 9, 13, 14,
15, 16 and 17 of this Agreement shall survive termination of this Agreement.
7. CONFIDENTIAL INFORMATION
a. Definition. "Confidential Information" shall mean information
which is designated as Confidential Information by the party disclosing such
information (the "Disclosing Party") (i) in Exhibit C to this Agreement, (ii)
with respect to information provided on paper, by facsimile or electronic mail,
on magnetic media, electronically or by any other medium (collectively "in
writing"), by labeling such information as "CONFIDENTIAL INFORMATION" before
the information is provided to the other party (the "Receiving Party"), or
(iii) with respect to information disclosed either verbally or in writing, by
notifying the Receiving Party, in writing within thirty (30) days of the
disclosure, that the information identified in such notice is designated
Confidential Information effective as of the Receiving Party's receipt of such
written notice.
b. Exclusions. "Confidential Information" shall not include
information that (i) is or shall become generally available without fault of
the Receiving Party, (ii) is in the Receiving Party's possession prior to its
disclosure by the Disclosing Party, (iii) is independently developed by the
Receiving Party, or (iv) is rightfully obtained by the Receiving Party from
third parties without similar restrictions.
c. Restrictions. The Receiving Party shall not disclose or
otherwise transfer Confidential Information of the Disclosing Party to any
third party, without first obtaining the Disclosing Party's consent, and shall
take all reasonable precautions to prevent inadvertent disclosure of such
Confidential Information. Except as necessary to perform under this Agreement,
the Receiving Party shall not use or copy Confidential Information of the
Disclosing Party, without first obtaining the Disclosing Party's consent, and
will take all reasonable precautions to prevent inadvertent use and copying of
such Confidential Information.
d. Injunctive Relief Exclusion of Liability Limitation. The
parties agree that damages shall be an inadequate remedy in the event of a
breach by either party of this paragraph and that any such breach by a
Receiving Party will cause the Disclosing Party great and irreparable injury
and damage. Accordingly, a party shall be entitled, without waiving any
additional rights or remedies otherwise available at law or in equity or by
statute, to injunctive and other equitable relief in the event of a breach or
intended or threatened breach of this paragraph. The provisions of Paragraph 13
shall not apply to any breach of this Paragraph 7.
8. CONTENT
a. Ownership. Distributor acknowledges that this Agreement does
not transfer to Distributor
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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or Users any proprietary right, title or interest, including copyright, in the
Content made available as part of the Service.
b. Representation. COMTEX shall use commercially reasonable
efforts to prevent the Service from distributing any Content which would
infringe any copyright or other right of any third party. Distributor
understands that COMTEX is a distributor of information services and material
licensed from Information Providers and agrees that COMTEX does not warrant
that the Content will not infringe any copyright or other right of any third
party.
9. TRADEMARKS
Distributor agrees that COMTEX' trademarks are the sole and exclusive property
of COMTEX. Pursuant to Paragraph 3.d., COMTEX shall have the right to approve
the use of its trademarks by Distributor to identify and promote use of the
Service. Upon compliance with this provision, use of such marks by Distributor
for such purposes shall be deemed approved during the term of this Agreement
unless COMTEX specifically notifies Distributor to the contrary.
10. LIMITED WARRANTIES OF COMTEX
a. Agreement. COMTEX warrants that its entry into this Agreement
does not violate any agreement between COMTEX and any third party.
b. Laws and Regulations. COMTEX warrants that its performance
under this Agreement and the use of the Service conforms to all applicable laws
and government rules and regulations, subject to the terms of this Agreement.
c. The Service and Content. Distributor agrees that the Service
and Content are provided by COMTEX "AS IS". COMTEX does not warrant the
accuracy, completeness or timeliness of the Service and Content.
11. LIMITED WARRANTIES OF DISTRIBUTOR
a. Agreement. Distributor warrants that its entry into this
Agreement does not violate any agreement between Distributor and any third
party.
b. Laws and Regulations. Distributor warrants that its
Performance under this Agreement and the use of the Service shall conform to
all applicable laws and government rules and regulations, subject to the terms
of this Agreement.
12. DISCLAIMER OF ALL OTHER WARRANTIES
THE PARTIES AGREE THAT (a) THE LIMITED WARRANTIES SET FORTH IN
PARAGRAPHS 10 AND 11 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES
PROVIDED BY EACH PARTY, AND (b) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE RELATING TO THIS AGREEMENT, PERFORMANCE UNDER
THIS AGREEMENT, THE SERVICE AND CONTENT, AND EACH PARTY'S COMPUTING AND
DISTRIBUTION SYSTEM.
13. LIMITATION OF LIABILITY
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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In no event shall COMTEX or its Information Providers be liable to
Distributor and its Users for any direct, indirect, special, exemplary or
consequential damages, including lost profits, whether or not foreseeable or
alleged to be based on breach of warranty, contract, negligence or strict
liability, arising under this Agreement or any performance under this Agreement.
14. INDEMNIFICATION
Distributor shall indemnify and hold harmless COMTEX and its
Information Providers from and against any claims, losses, expenses,
liabilities, and damages, including reasonable legal fees and expenses, arising
out of Distributor's or its Users' breach of any provision of this Agreement,
including without limitation the restrictions, obligations and warranties set
forth in Paragraphs 2, 3, 4 and 11 of this Agreement. COMTEX agrees to notify
Distributor of any such claim promptly in writing. The parties agree to
cooperate fully during such proceedings. Distributor shall defend and settle at
its sole expense all proceedings arising out of the foregoing.
15. NON-SOLICITATION
Distributor agrees that for the duration of this Agreement and for one
(1) year after expiration or termination of this Agreement, Distributor shall
not, directly or indirectly, solicit or attempt to solicit to obtain a direct
feed from any Information Provider which is providing Content made available to
Distributor as part of the Service provided by COMTEX.
16. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform under
this Agreement if caused by conditions beyond its control, including but not
limited to fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts; provided, however, no such event shall excuse
any delay or failure to perform by Distributor of its obligations to make
payment to COMTEX under Paragraph 5 of this Agreement. The affected performing
party shall promptly notify the other party of the nature and anticipated length
of continuance of such force majeure. Should any such failure or suspension of
performance by COMTEX continue for more than six (6) months, then either party
shall have the right to terminate this Agreement without further liability or
obligation on the part of either party.
17. NOTICES
All notices and demands hereunder shall be in writing and delivered by
hand delivery, certified or registered mail, return receipt requested, or
confirmed facsimile transmission at the addresses set forth below (or at such
different address as may be designated by either party by written notice to the
other party). Delivery shall be deemed to occur (i) if by hand delivery, upon
such delivery, (ii) if by mail, four (4) days after deposit with the U.S. Postal
Service, and (iii) if by facsimile transmission, upon receipt of confirmation.
If to COMTEX:
Xxxxxx Xxxxxx Ikins, Vice President, Sales
Comtex Scientific Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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Facsimile transmission: (000) 000-0000
If to Distributor:
Xxxxxx Xxxxxxx, Controller
Intelligent Information Incorporated
Xxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
18. GENERAL TERMS AND CONDITIONS
a. Not Agent. Neither party shall be considered an agent of the
other party nor shall either party have the authority to bind the other party.
b. No Assignment. Neither party may assign this Agreement without
the written consent of the other party; provided, however, that COMTEX may
assign this Agreement as part of a transaction in which substantially all of the
assets related to its rights and obligations under this Agreement are assigned
to a third party.
c. Governing Law. This Agreement and performance hereunder shall
be construed and governed by the laws of the Commonwealth of Virginia.
d. Severability. In case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such provision(s) had never been contained herein,
provided that such provision(s) shall be curtailed, limited or eliminated only
to the extent necessary to remove the invalidity, illegality or
unenforceability.
e. Waiver. No waiver of any breach of any of the provisions of
this Agreement shall be deemed a waiver of any preceding or succeeding breach
of the same or any other provisions hereof. No such waiver shall be effective
unless in writing and then only to the extent expressly set forth in writing.
f. Complete Agreement. The parties agree that this Agreement is
the complete and exclusive statement of the agreement between the parties,
which supersedes and merges all prior proposals, understandings and other
agreements, oral or written, between the parties relating to this Agreement.
g. Amendment. This Agreement may not be modified, altered or
amended except by written instrument duly executed by both parties.
h. Attorneys' Fees. Should any action be brought by either party
to enforce the provisions of this Agreement, the prevailing party, whether by
settlement, adjudication or arbitration, shall have the right to collect
reasonable attorneys' fees, expenses and costs from the nonprevailing party.
i. No Inference Against Author. No provision of this Agreement
shall be interpreted against any party because such party or its legal
representative drafted such provision.
j. Headings. The headings used in this Agreement are for
convenience only and are not to be construed to have a legal significance.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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k. Read and Understood. Each party acknowledges that it has read
and understands this Agreement and agrees to be bound by its terms.
AGREED:
INTELLIGENT INFORMATION INC.
Distributor, by: COMTEX SCIENTIFIC CORPORATION, by:
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
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Signature Signature
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
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Printed Name Printed Name
President President
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Title Title
Date:June 9, 1995 Date:June 13, 1995
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT A
THE SERVICE; TERM
1. The term "the Service" means five (5) of the following electronic
information services as selected by the Distributor:
Business CustomWire
Newswire that focuses on the activities of organizations involved with
supplying and distributing of goods and services. Features real-time
news coverage specifically in the areas of corporate performance,
executive activities, mergers and acquisitions, and new product
launches.
Community CustomWire
Newswire that focuses on the activities and events that affect people
and the quality of life in the United States. Features real-time news
coverage on safety and social services programs, regional politics,
infrastructure issues, and employment trends. Includes reports on
crime/police activities, children and education, and the effects of
natural and man-made disasters.
Entertainment CustomWire
Newswire that focuses exclusively on the world of entertainment.
Features real-time news coverage on the people and events that
captivate the imagination of the public. Includes reports on upcoming
programs, schedules, previews, and reviews in the performing, visual,
and literary arts including dance, drama, literature, film, music, and
television.
Environment CustomWire
Newswire that focuses on the events that advocate the preservation and
improvement of our natural environment. Features real-time news
coverage on the causes of air, water, and land contamination and the
effects on human health and the environment. Includes reports on
individual and industrial recycling and resource recovery efforts.
Finance CustomWire
Newswire that focuses on the events that advocate the preservation and
improvement of our natural environment. Features real-time news
coverage on the causes of air, water, and land contamination and the
effects on human health and the environment. Includes reports on
individual and industrial recycling and resource recovery efforts.
Government CustomWire
Newswire that focuses on the activities of the U.S. Federal Government.
Features real-time news coverage on our system of creating, enforcing,
and interpreting the laws of our nation. Includes reports from
Congress, the Executive Branch and its agencies, the Supreme Court,
Capitol Hill offices, labor unions, trade and industry associations,
and special-interest groups.
Healthcare CustomWire
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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Newswire that focuses on actions taken to improve and maintain the
general health of the public. Features real-time news coverage on
programs supporting the prevention and control of disease, the results
of clinical trials and tests that ensure the safety and effectiveness
of drugs and medical devices, developments in biotechnology, and
activities to improve access to healthcare services.
High Technology CustomWire
Newswire that focuses on the production and use of advanced
technologies, specifically computers and telecommunications. Features
real-time news coverage and market data reports highlighting on-line
services, CD-ROM, electronic publishing, interactive multi-media
services, software and database applications, telecommunications, and
news and information services.
International CustomWire
Newswire that focuses on news about other countries around the world.
Features a global perspective of local and international issues
generated from eight distinct regions of the world -- Africa, Asia,
Central Eurasia, China, Eastern Europe, Latin America, Russia, and
Western Europe. Includes real-time news coverage on the activities of
international organizations, trade, changing political and economic
environments, and rising conflicts and wars in other countries.
Sports CustomWire
Newswire that focuses exclusively on the world of sports competition.
Features real-time news coverage on all professional and collegiate
sporting events in the U.S., international games and events originating
in other countries, and all reported worldwide competition. Includes
score updates, team statistics, and late breaking reports on the
players, owners, and fans.
2. Technical Specifications: Delivery will be via Mainstream FM sideband
or satellite delivery. The data format will be the standard COMTEX
proprietary format.
3. The Initial Term shall be one (1) year beginning July 1, 1995.
4. Each Renewal Term shall be one (1) year.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT B
Payment Schedule
A. Monthly Fees: Distributor shall pay COMTEX the following monthly
minimum fees:
Months 1-3 [*]
Months 4-6 [*]
Months 7-9 [*]
Months 10-12 [*]
B. Royalties: The following royalties shall be applied against the monthly
minimum fees:
FOR HEADLINES ONLY:
Distributor shall pay COMTEX a minimum of [*] per subscriber per month.
Distributor shall pay COMTEX [*] per headline transmitted to a
subscriber.
Definition: Includes Headlines from five (5) COMTEX Custom Wires.
FOR SUMMARIES/BRIEFS:
Distributor shall pay COMTEX a minimum of [*] per subscriber per month.
Distributor shall pay COMTEX [*] per summary/brief transmitted to a
subscriber.
Definition: A summary/brief is not to exceed two hundred forty (240)
characters, or two sentences, in the event that either of these are not
separately reported in the Comtex feed.
FOR FULL-TEXT ARTICLES:
Distributor shall pay COMTEX [*] of the full-text article charge, as
agreed in writing by both Distributor and COMTEX.
Definition: Full-text article as provided in the COMTEX feed.
C. Royalty Reporting: Monthly reports should include the following
information, in spreadsheet format:
1. Number of paid users/subscribers
2. Total number of headlines transmitted
3. Total number of summaries/briefs transmitted
4. Total number of full-text articles transmitted
5. Minimum fees paid to COMTEX
6. Net royalty due COMTEX
7. Number of trial users
D. Pricing Exceptions: Discounts for large volume accounts may be agreed
to by both parties with an Amendment to the Agreement.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT C
Confidential Information
1. This Agreement and all Exhibits thereto, except for Exhibit D.
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CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT D
User Agreement Provisions
1. Ownership. User agrees that Comtex Scientific Corporation
("COMTEX") and its information providers retain all rights, title and
interests, including copyright and other proprietary rights, in the Service and
all material, including but not limited to text, images, and other multimedia
data, provided or made available as part of the Service ("Content").
2. Restrictions on Use. User agrees that it will not copy nor
license, sell, transfer, make available or otherwise distribute the Service or
Content to any entity or person, except that User may (a) make available to its
employees electronic copies of Content, (b) allow its employees to store,
manipulate, and reformat Content, and (c) allow its employees to make paper
copies of Content, provided that such electronic and paper copies are used
solely internally and are not distributed to any third parties. User shall use
its best efforts to stop any unauthorized copying or distribution immediately
after such unauthorized use becomes known. The provisions of this paragraph are
for the benefit of COMTEX and its information providers, each of which shall
have the right to enforce its rights hereunder directly and on its own behalf.
3. No Warranty. The Service is provided on an "AS IS" basis.
COMTEX DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
RELATING TO THIS AGREEMENT, PERFORMANCE UNDER THIS AGREEMENT, THE SERVICE AND
CONTENT. COMTEX makes no warranties regarding the completeness, accuracy or
availability of the Service or Content.
4. Limitation of Liability. In no event shall COMTEX or its
information providers be liable to User or any other person or entity for any
direct, indirect, special, exemplary or consequential damages, including lost
profits, based on breach of warranty, contract, negligence, strict liability or
otherwise, arising under this Agreement or any performance under this
Agreement, whether or not they or it had any knowledge, actual or constructive,
that such damages might be incurred.
5. Indemnification. User shall indemnify and hold harmless
COMTEX against any claim, damages, loss, liability or expense arising out of
User's use of the Service or Content in any way contrary to this Agreement.
14
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
15
EXHIBIT E
Information products and services that are individualized and delivered
to and received from wireless devices such as pagers, smr, cellular telephones,
laptop and palmtop personal computers, personal data assistants, PCMCIA
messaging cards, etc. over numerous wireless networks throughout the United
States and abroad.
15
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
