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EXHIBIT 10.3
Redacted Version
CURRENT NEWS LICENSE AGREEMENT
AGREEMENT dated as of March 20, 1998, and made in New York,
New York, between PRESS ASSOCIATION, INC. ("PA"), a wholly owned subsidiary of
The Associated Press, a New York corporation with offices at 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and NewsReal Inc.("SUBSCRIBER"), a Delaware
corporation with offices at 0000 Xxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
X. Xxxxx
PA hereby grants to SUBSCRIBER a non-exclusive license to
electronically market news distributed by The Associated Press, its subsidiary
PA, Kyodo World Service, Canadian Press and Federal Document Clearing House
(jointly referred to as the "Agencies") through AP SERVICES as defined in
Attachment A (the "Service"). This grant is to market information supplied on
the Service only to Users, as defined in IV.A., to SUBSCRIBER's electronic news
delivery system called NewsReal, as defined in Attachment B (the "System"), and
upon the terms contained in this Agreement, except that PA reserves to itself
the exclusive right to permit such use by, and SUBSCRIBER shall be prohibited
from distributing to, news organizations. For this purpose, the term "news
organization" shall include The Associated Press, United Press International,
Reuters, Agence France Presse, its and their employees, subsidiaries and
affiliates and any other person or entity engaged in distribution of news and
information principally to Users which are engaged in whole or in part in the
business of publication or broadcasting.
Notwithstanding the foregoing, SUBSCRIBER shall submit to PA the
form provided in Attachment C for approval of marketing arrangements promoting
and distributing the System containing the Service, such as links between the
System and third party sites, provided that (i) neither SUBSCRIBER nor any party
to any such arrangements resells the Service; (ii) any such arrangements do not
point directly to the Service or otherwise create a unique area displaying
exclusively the Service; and (iii) the Service remains within the System in
connection with any such arrangements.
"[*]"=omitted, confidential material, which material has been
seperately filed with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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II. PA Representations and Warranties
A. The Service to be utilized by SUBSCRIBER shall be delivered
to SUBSCRIBER's computer center at _________________. SUBSCRIBER shall be
responsible for obtaining, installing and maintaining at SUBSCRIBER's expense
such equipment as may be required for it to make use of the Service and
distribute that information to its Users;
B. When supplied to SUBSCRIBER, the information shall be
correct and complete to the best of PA's the Agencies' knowledge and belief; and
C. PA and the Agencies have the rights and licenses necessary
to transmit to SUBSCRIBER the information contained in the Service.
D. PA and the Agencies agree that all promotion and
advertising of its services in which there is reference to SUBSCRIBER or
SUBSCRIBER's System shall be subject to the review and written approval of
SUBSCRIBER before release.
III. SUBSCRIBER Representations, Warranties and Covenants
A. Information provided by PA and used by SUBSCRIBER shall
bear the Associated Press (AP), Kyodo (KNI), Canadian Press (CP), and other
logotypes, as provided in the Service, and a copyright and reservation-of-rights
notice (which shall include a prohibition against republication or
redistribution as provided by PA in Attachment A-1 hereto) when the information
is released by SUBSCRIBER and which shall be displayed when a User accesses the
Service. In addition, a copyright notice shall be displayed on each piece of the
Service that goes to a User;
B. SUBSCRIBER shall not alter the editorial content or
substance of the Service without the specific authority of PA as the
representative of the Agencies and all material supplied by PA hereunder shall
reside only in computers owned or leased by SUBSCRIBER;
C. SUBSCRIBER shall not furnish the Service to any person or
entity which has not agreed electronically or in writing to the following
limitations and exclusions of liability:
(i) that such a person or entity shall not, directly or
indirectly, publish, broadcast or distribute PA information in any
medium, except
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that corporate, governmental and institutional Users may use portions of
the Service for internal printed communications and memoranda;
(ii) that such person or entity shall not store all or any
portion of the Service in any permanent form, whether archival files,
computer-readable files or any other medium;
(iii) that the Agencies shall not be liable in any way to
the SUBSCRIBER or any third party or to any other person who may receive
information in the Service, or to any other person whatsoever, for any
delays, inaccuracies, errors or omissions therefrom or in the
transmission or delivery of all or any part thereof or for any damage
arising therefrom or occasioned thereby; and
(iv) that, in no event, shall the Agencies be liable for
any direct, consequential, punitive, special or any other damages arising
in any way from the availability of the Service regardless of the form of
action, whether contract or tort;
D. SUBSCRIBER agrees that all promotion and advertising of its
services in which there is reference to the Service or the Agencies shall be
subject to the review and written approval of PA before release;
E. SUBSCRIBER shall not build archival files using the Service
or any portion thereof. No individual portion of the Service, or the entire
Service, shall be held in SUBSCRIBER's computers or stored in another medium for
more than fourteen (14) days;
F. SUBSCRIBER shall, upon receipt from PA or The Associated
Press of a "kill," "elimination," "withheld," or "correction" directive, purge
and, if applicable, replace affected material and notify Users of the changed
status of the affected material. Any materials subject to a "corrective" from PA
or The Associated Press shall be prominently noted as subject to a corrective
(with instructions as to access to the applicable corrective article) or shall
be linked electronically to the corrective article itself when Users access
material subject to a corrective;
G. Information from the Service shall be used only in
SUBSCRIBER's System and released only to Users to the System and only in
accordance with the terms of this Agreement. Should SUBSCRIBER expand or
otherwise modify the System, use of materials in the Service in such expanded or
modified system must have prior written
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approval from PA;
H. SUBSCRIBER shall provide the Service to all of its Users
and shall offer it to its potential Users except where prohibited herein; and
IV. Payment
A. SUBSCRIBER shall pay to PA the greater of a Fee of $ [*] or
monthly royalties (the "Royalties") of $ [*] over [*] each month. Royalties are
based on the total number of Visits to the System each month.
For purposes of this Agreement, one Visit is defined as ten
(10) pages delivered to browsers such as, but not limited to Netscape Navigator
or Microsoft Explorer.
For purposes of this Agreement, a "User" shall be defined
as an individual who is granted access to the System.
B. If, at any point during the term of this Agreement, SUBSCRIBER
makes available the Service or parts of the Service, except for headlines, in a
User's electronic mail box by the use of keyword or similar pre-definable item
selection, SUBSCRIBER shall impose a fee to its Users for using this feature
and shall pay PA a royalty equal to [*] of the fee received by SUBSCRIBER from
its Users for using this feature.
C. If, at the end of the first year of this Agreement or during
any subsequent year of this Agreement, SUBSCRIBER's NewsReal ceases to exist as
a system, SUBSCRIBER may terminate the balance of this agreement by paying PA an
amount equal to six (6) months' total of the monthly Fee as calculated for the
six-month period just ended;
D. The Fee shall be due and payable by the fifteenth (15th) day of
the month for which the Fee is charged, and Royalties shall be due and payable
by the fifteenth (15th) day after the close of the month in which the Royalties
are earned. SUBSCRIBER shall deliver to PA with each Royalty payment a list of
SUBSCRIBER's Users and monthly usage figures for access to the Service. Any
payment which is late shall be subject to an interest charge of the lower of one
percent per month or the maximum rate permitted by law. All payments shall be
exclusive of taxes required to be charged SUBSCRIBER except taxes based upon
PA's net income;
* Confidential Treatment Requested
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E. The Fee shall be increased once a year by each General
Assessment Increase ordered by The Associated Press Board of Directors. Such
increase shall not exceed [*] percent ([*]%) in any two-year period.
Notice of such increases shall be given to SUBSCRIBER no later than 45 days
before such increases are to take effect;
F. SUBSCRIBER shall maintain books and records accurately
reflecting all matters affecting Royalties due to PA. PA, by its duly authorized
representative, shall have the right, at reasonable times and upon reasonable
notice to SUBSCRIBER, to inspect and audit such books and records to verify the
accuracy of any statement. If any inspection shall disclose any error of
whatever amount, the parties shall promptly adjust the same.
V. PA Password
SUBSCRIBER shall provide to PA an identification number, password
and any necessary equipment or software required to permit access to the Service
in SUBSCRIBER's System.
VI. Term and Termination
A. Unless earlier terminated as hereinafter provided, this
Agreement shall take effect on April 1, 1998, or the first date upon which PA
provides the Service to SUBSCRIBER under this Agreement, but in no event later
than sixty (60) days after April 1, 1998, and shall continue for a period of two
(2) years thereafter. It shall automatically continue thereafter for further
terms of one (1) year each, until either party delivers to the other written
notice of termination not less than sixty (60) days prior to the end of the
then-current term.
B. PA may, upon ninety (90) days' written notice to SUBSCRIBER,
terminate this Agreement as of any time after December 31, 1998 if PA determines
that it will not, by itself or with any other party, offer a service
substantially similar to the Service with respect to any unexpired portion of
the term of this Agreement.
C. Upon any material breach or material default of this Agreement
by either party, the other party may give notice of such breach or default and,
unless such breach or default shall be cured within thirty (30) days after
delivery of such notice (or ten (10) days in the case of the failure of
SUBSCRIBER to pay Fees and Royalties described in paragraph IV on the dates set
forth therein), then, without limiting any other remedy
* Confidential Treatment Requested
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available at law or equity to the non-breaching party consistent with the terms
of the Agreement particularly paragraph VII, that party may terminate this
Agreement by delivery of a notice of termination at any time thereafter before
such breach or default has been cured.
D. If either party hereto files a petition under any chapter of
the Bankruptcy Code, as amended, or for the appointment of a receiver, or if an
involuntary petition in bankruptcy is filed against such party and said petition
is not discharged within thirty (30) days, or if either party ceases to pay its
debts as they fall due or becomes insolvent or makes a general assignment for
the benefit of its creditors, or if the business or property of either party
shall come into the possession of its creditors or of any governmental agency or
of a receiver, then, in any such case and notwithstanding any other provisions
of this Agreement, the other party hereto may at its option terminate this
Agreement upon written notice to the other party.
E. Upon termination, SUBSCRIBER shall immediately cease all
use of information provided hereunder and shall remove said information from its
computer data base.
F. In the event that SUBSCRIBER issues a purchase order to PA for
purposes related to this Agreement, such purchase order will be supplementary to
this Agreement and in all instances this Agreement shall be the controlling
document in defining the terms and conditions agreed to by the parties.
VII. Limitation of Liability; Indemnities
A. PA and the Agencies shall use their best efforts to insure the
accuracy of its information. PA and the Agencies do not, however, guarantee the
sequence, accuracy or completeness of any such material and shall not be liable
in any way to SUBSCRIBER, its Users or any third parties or to any other person
who may use the information or to whom the information may be furnished, or to
any other person whatsoever, for any delays, inaccuracies, errors or omissions
therefrom or in the transmission or delivery of all or any part thereof or for
any damage arising therefrom or occasioned thereby. EXCEPT AS STATED IN
PARAGRAPH VII B BELOW, IN NO EVENT SHALL PA OR THE ASSOCIATED PRESS OR THE
AGENCIES BE LIABLE TO SUBSCRIBER FOR ANY DIRECT, CONSEQUENTIAL, PUNITIVE,
SPECIAL, OR ANY OTHER DAMAGES ARISING FROM THE AVAILABILITY OF THE INFORMATION,
REGARDLESS OF THE FORM OF ACTION WHETHER CONTRACT OR TORT.
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B. (i) Either party, at its expense, will defend any action
brought against the other based on a claim that the information or the software
supplied hereunder by the indemnifying party, infringes a United States patent,
trademark or copyright, or constitutes appropriation of a United States based
trade secret, and the indemnifying party will pay costs of the action (including
reasonable attorney's fees) and any damages finally awarded against the other
party or any users in such action; provided, however, that such defense and
payments are conditioned upon the following: (i) the indemnifying party shall be
notified promptly in writing by the other or any end user of the existence of
any such claim; (ii) the indemnifying party have sole control of the defense of
any action on such claim and all negotiations for its settlement or compromise;
and (iii) no settlement or compromise may be finally executed without the prior
written consent of the indemnifying party. If in the opinion of the indemnifying
party, the material or software described herein is likely to become the subject
of a claim of infringement of a United States patent, trademark or copyright, or
appropriation of a United States trade secret, the other party or the end user
shall permit the indemnifying party, at its option and expense, either (i) to
procure the right to continue use of the information or software at issue; (ii)
replace or modify such material so that it becomes non-infringing; or (iii) if
(i) or (ii) cannot reasonably be accomplished, to terminate this Agreement
without further liability.
(ii) In no event shall either party have any liability to
the other or to any end user under any claim described in this paragraph based
upon the sale or use of information or any software supplied hereunder in
combination with any other product, machine, software, device or equipment which
is not approved by the indemnifying party, or results from any modifications or
attempted modifications by the other party or the end user or failure by the
other party or the end user to permit the indemnifying party to implement
modifications, unless the indemnifying party shall have expressly consented to
such action in writing.
C. SUBSCRIBER shall, and hereby does, indemnify and hold harmless
PA and The Associated Press and the Agencies from and against all claims,
losses, liabilities and expenses arising out of or in connection with any acts
of SUBSCRIBER, its agents, contractors or employees.
VIII. Warranty Disclaimer
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PA NOR THE
ASSOCIATED PRESS NOR THE AGENCIES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING NO WARRANTY OF MERCHANTABILITY OR
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FITNESS FOR ANY PURPOSE.
IX. Unauthorized Use
If either party shall learn of an unauthorized transmission or
receipt of items of information included in the Service, it shall by notice
promptly and fully inform the other party of all facts known to it with respect
to such unauthorized transmission or receipt. In any such case, SUBSCRIBER shall
promptly conduct an investigation and shall keep PA fully and timely apprised of
all facts learned by it and of all interim and final findings and conclusions it
makes, as well as all steps SUBSCRIBER proposes to take to prevent recurrence of
such unauthorized transmissions or receipts. Either party may, at its own
expense, institute an action or proceeding to obtain any relief permitted in law
or equity, or both, against any person so transmitting or receiving such
information and, if any such action or proceeding be instituted, the other party
shall cooperate in all respects reasonably requested by the party maintaining
the suit.
X. Confidentiality
A. During the term of this contract and for three years after
termination, PA and SUBSCRIBER shall maintain in confidence and not disclose to
third parties without the other's prior written consent, the information
concerning Royalty Payments and Reports outlined in Paragraph IV of this
Agreement or any other information labeled "Confidential" except for normal
reporting to each party's parent corporation, if any. PA and SUBSCRIBER shall
not disclose to unaffiliated third parties the specific terms of this Agreement.
B. Notwithstanding the restrictions set forth in this
Paragraph X., neither party hereto shall have any duty of confidentiality with
respect to information or materials disclosed to it by the other party to the
extent such information:
i) is or comes into the public domain through no fault
of the receiving party hereunder;
ii) is legally obtained from third parties without
binder of secrecy;
iii) was previously known to the party to whom such
information is disclosed without binder of secrecy or is independently developed
by such party; or
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iv) is required to be disclosed by valid legal process.
XI. General Provisions
A. Neither party will be liable to the other for any delay or
default in performing its respective obligations under this Agreement due to
causes beyond its reasonable control. So long as any such failure continues, the
party affected by conditions beyond its control will keep the other party fully
informed at all times concerning the matters causing such delay or default and
the prospects for their termination.
B. Nothing in this Agreement shall be construed to constitute or
appoint either party as the agent or representative of the other party for any
purpose whatsoever, or to grant to either party any rights or authority to
assume or create any obligation or responsibility, express or implied, for or on
behalf of or in the name of the other, or to bind the other in any way or manner
whatsoever.
C. All notices required by this Agreement shall be sent in writing
(by certified or registered mail, telex, overnight courier, facsimile or
telegram) to PA and SUBSCRIBER at the following addresses:
If to PA:
Press Association, Inc. and Press Association, Inc.
00 Xxxxxxxxxxx Xxxxx 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer Attention: Director, Licensing
If to SUBSCRIBER:
NewsReal Inc.
0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:Chief Financial Officer
All notices shall be effective upon receipt. Either party may from time to time
change its address as set forth above by notifying the other party of its new
address in writing.
D. No forbearance by either party in enforcing any of the
provisions of this Agreement and no course of dealing between the parties shall
operate to prejudice either party's rights to enforce such provisions or operate
as a waiver of any of either
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party's rights hereunder.
E. This Agreement shall be subject to all applicable present and
future federal, state and local laws and regulations of the Federal
Communications Commission and any other federal or state agency. Neither party
shall be liable to the other for any failure to perform its obligations
hereunder, except for payment of charges already owing, which results directly
from such laws or regulations.
F. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. Each party consents to the personal
jurisdiction and venue of the State and Federal courts sitting in The City of
New York.
G. This Agreement may not be assigned by either party without the
prior written consent of the other but shall, in the case of any permitted
assignment, be binding upon the successors and assigns of both parties.
H. The provisions hereof, including the attachments, and any
written supplemental agreements hereto signed as of the date hereof constitute
the entire agreement between the parties relating to the transactions
contemplated herein and merge and supersede all prior discussions, agreements,
and understandings of every kind and nature between them. No oral modifications
or additions hereto shall be binding. Neither party shall be bound by any
condition, definition, warranty or representation other than as expressly
provided for in this Agreement or as may be duly set forth in a writing signed
by an authorized officer of the party hereto which is to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
NEWSREAL INC. PRESS ASSOCIATION, INC.
/s/ XXXXXXX X. XXXXX /s/ XXXXXX X. BRETTINGER
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SVP Technology Director of Business Development
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(Title) (Title)
23 MAR 98 3/27/98
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(Date) (Date)
