AGREEMENT
AGREEMENT, made on the 18th day of October, 1996 by and between Intell-X
raised to the power of x ("Intell-X raised to the power of x"), a division of
UMI, a Michigan corporation, with offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, and Scoop, Inc. (the "Distributor), with its
principal offices at Carnegie Center, 0000 Xxx Xxxx Xxxxxx, Xxxxx Xxx, XX
00000.
WITNESSETH:
WHEREAS, Distributor has developed and maintains Scoop!, a proprietary
Internet-delivered service ("Distributor's System") through which it offers
information services to its users (the "Users"); and
WHEREAS, Intell-X raised to the power of x is the provider of information
services (the "Service") described in the Price and Payment and Schedule
attached hereto as Schedule A and made a part of this Agreement, that the
Distributor desires to make available to its Users;
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the mutual covenants and conditions herein set forth, and with the intent to
be legally bound thereby, Intell-X raised to the power of x and the Distributor
hereby agree as follows:
1. REDISTRIBUTION LICENSE
a. Intell-X raised to the power of x grants the Distributor a
license to use the Service and to grant nonexclusive, limited
licenses to its Users to use the Service subject to the terms,
conditions and restrictions contained herein for an initial term
described in Schedule A, beginning November 1, 1996 subject to
the provisions of Section 6 below.
b. Intell-X raised to the power of x shall be responsible for
providing to Distributor the Service as described in the Payment
and Product Description Schedules in a manner subject to the
terms and limitations of this Agreement. Intell-X raised to the
power of x reserves the right to add or withdraw sources and
items of coverage from the Service without notice if such sources
and items of coverage are added or withdrawn from the overall
IntellX service offering.
c. Distributor acknowledges and agrees that Intell-X raised to the
power of x has the right to distribute its services through
sources other than Distributor (subject to the terms and
conditions of Addendum A) and to sell its services directly to
end-users. A.
2. OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF DISTRIBUTOR
(a) Distributor will use all reasonable efforts to promote and
encourage User access to the Service. Without limiting the
foregoing, (i) Distributor agrees to promote and encourage access
to the Service in a manner and level of effort that is consistent
with the effort Distributor uses to promote use of other similar
services provided by Distributor, and (ii) Distributor shall name
Intell-X raised to the power of x as its preferred information
source in all of its promotional and marketing materials relating
to the Service, including press releases and advertisements.
(b) Distributor agrees to provide Intell-X raised to the power of x
reasonable access to Distributor's System for the sole purpose of
allowing Intell-X raised to the power of x to review and approve
the implementation of the Service on the Distributor's System
before
commercial introduction and during the product's life cycle.
This access shall be provided at no charge to Intell-X raised to
the power of x except that Intell-X raised to the power of x
shall be responsible for paying third party communications
charges needed to connect to the Distributor's System if needed
to conduct such testing.
(c) Notwithstanding anything to the contrary contained in this
Agreement, Distributor will not sell or in any way make the
Service available (i) to any person or entity to whom Intell-X
raised to the power of x denies access by notice in writing to
Distributor (such notice intended to prevent the Service from
being made available to IntellX competitors or others with whom
IntellX has chosen not to do business) or (ii) through print,
electronic mail or CD ROM products without the prior written
consent of Intell-X raised to the power of x. Intell-X raised to
the power of x understands and agrees that Distributor's business
may include the distribution of services to Users whose primary
areas of business do not include acting as news or service
bureaus or providing public access data bases or electronic
information dissemination. Distributor shall confer with
Intell-X raised to the power of x with regard to any Users whose
primary area of business falls within the categories described
above and may not distribute the Service to such Users without
prior written consent of Intell-X raised to the power of x.
(d) Distributor may maintain information provided through the
Services for a period of six months (180) days after its receipt
for such User's archiving purposes. IntellX will notify
Distributor in writing of any specific sources which must be
maintained for periods less than six months.
(e) Distributor shall distribute the Service to its Users pursuant to
agreements which are consistant with the terms of this Agreement
and which contain the provisions described on Appendix A hereto.
(e) Distributor is authorized to allow any Other Distributor (herein
defined as a business that, for the use and/or benefit of its
customers, purchases services, such as the Service from
Distributor with the intention of reselling or otherwise
redistributing such services) to create gateways allowing Other
Distributor's customers to access Scoop! provided the Service is
operated on Scoop! servers with pricing established and data
integrity, user registration and billing are administered by
Scoop! in accordance with its standard business practices.
Distributor will not knowingly sell or enter into an arrangement
allowing any other type of redistribution or redissemination (a
"Further Distribution Arrangements") with any Other Distributor
without prior written consent of Intell-X raised to the power of
x. Distributor will use its best efforts to prevent itself,
acting through its employees and agents, from unintentionally
entering into any Further Distribution Arrangements. Distributor
further agrees not to allow any of Distributor's Users to store
any data obtained from the Service in any computer accessible
format or other medium which would allow such information to be
accessed by a third party.
(f) Distributor shall promptly notify its Users to disregard any
story previously released, that has been subsequently identified
by the source wire as being invalid. This specifically refers to
stories sent by Intell-X raised to the power of x that have the
word "kill" in the action field.
(g) Distributor agrees not to remove any copyright notice from the
information provided by Intell-X raised to the power of x
hereunder and to display all copyright notices and other source
credit as requested by Intell-X raised to the power of x in such
a manner as may be requested by Intell-X raised to the power of
x.
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(h) Distributor agrees to take such efforts as may be reasonably
required to protect the Service from unauthorized disclosure or
use. Without limiting the foregoing, Distributor agrees to take
such actions with respect to the protection of the Service
against unauthorized disclosure or use that it takes for its
other similar products and services.
(i) Distributor agrees not to provide the Service to any User which
constitutes a credit reporting agency under the Fair Credit
Reporting Act (15 U.S.C. Sections 1681 et seq.).
(j) Distributor represents and warrants to Intell-X raised to the
power of x that:
(1) its entry into this Agreement does not violate any agreement
with any other party.
(2) its performance under this Agreement and the use of the
Service will conform in all material respects to all
applicable laws and government rules and regulations.
(3) it will not edit, abridge, rewrite or in any way alter the
editorial content of the Service. The Distributor may,
however, choose not to display every story. Any changes
made by Distributor are the sole responsibility of the
Distributor.
(4) if the Agreement is terminated, the Service shall not be
used, sold or otherwise distributed by Distributor.
(5) Distributor is not a Credit Reporting Agency under the Fair
Credit Reporting Act (15 U.S.C. Section 1681 et seq.), or
any similar state act, and that Distributor will not use any
information contained in the Service for any purpose
prohibited by the Fair Credit Reporting Act, or any similar
state act, nor provide the Service to any entity which is a
Credit Reporting Agency under the Fair Credit Reporting Act,
or any similar state act.
(k) Distributor agrees to indemnify and hold Intell-X raised to the
power of x and its parents, subsidiaries, shareholders,
directors, officers and employees (the "Intell-X raised to the
power of x Indemnified Parties") harmless from any and all
claims, suits, losses, liabilities, obligations, demands, damages
or expenses which result from or based upon the breach by
Distributor of any terms, conditions, warranties, representations
or obligations under this Agreement (collectively an "Intell-X
raised to the power of x Indemnified Claim"). Distributor's
obligation to indemnify an Intell-X raised to the power of x
Indemnified Party hereunder shall be conditioned upon (i) the
Intell-X raised to the power of x Indemnified Party providing
Distributor with prompt notice of such Intell-X raised to the
power of x Indemnified Claim which notice shall in any event be
given in enough time to allow Distributor to defend such claim,
(ii) the Intell-X raised to the power of x Indemnified Party
fully cooperating with Distributor in the defense of such claim,
and (iii) the Intell-X raised to the power of x Indemnified Party
allowing Distributor to control the defense including any
potential settlement of such Intell-X raised to the power of x
Indemnified Claim.
(l) Distributor shall require its users to enter into electronic
agreements ensuring the integrity of the UMI/DataTimes/IntellX
data before any such users are allowed to purchase
UMI/DataTimes/IntellX information. IntellX will provide
Distributor with the language to be used for such agreements.
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3. PAYMENTS
(a) Distributor shall pay Intell-X raised to the power of x a monthly
fee pursuant to the Payment Schedule attached hereto.
(b) Distributor shall make payment to Intell-X raised to the power of
x of the fees described in the Payment Schedule within thirty
(30) days of the end of the month in which the fees were earned.
(c) Royalties earned in addition to the fees described in 3(a) above,
shall be due forty-five (45) days following the end of the month
in which the royalties were earned. Each payment will be
accompanied by a report specifying the total time the Service was
accessed by Distributor's Users, the type and source of the
information accessed by the Distributor's Users, the revenue
generated by the Distributors Users access to the Service and/or
other information necessary to document the amount of the fees
and/or royalties.
(d) Distributor shall be responsible for the proper 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 Intell-X raised to the power of x hereunder, other
than franchise and income taxes of Intell-X raised to the power
of x.
(e) All payments that are delinquent beyond the due date as set forth
in (b) and (c) above, or in any invoice therefore, shall bear
interest at the rate of 1.5% per month or portion thereof for
amounts that remain unpaid after the due date, and the payee
shall be entitled to reimbursement for all reasonable costs of
collection, including reasonable attorneys' fees.
(f) Distributor shall allow the calculation of such royalties to be
audited at Intell-X raised to the power of x's discretion upon
reasonable notice by Intell-X raised to the power of x to
Distributor. Such audits shall be conducted at Intell-X raised
to the power of x's expense unless such audit shows Distributor's
accounting to be in error five percent (5%) or more, in which
case Distributor shall bear the cost of such audit. Any
underfunding discovered by this audit will be paid within thirty
(30) days of its discovery. Such audit shall be conducted during
Distributor's normal business hours at Distributor's premises,
without unreasonably disrupting Distributor's business, and
Distributor agrees to provide Intell-X raised to the power of x
with access to Distributor's original books and records
reasonably necessary to conduct such audit.
(g) Intell-X raised to the power of x shall notify Distributor
regarding changes in the cost of the Service for each subsequent
renewal term, if any, of this Agreement, as described in
Paragraph 6 below, no later than one hundred twenty (120) days
prior to the start of each subsequent renewal term.
Notwithstanding the foregoing, Intell-X raised to the power of x
may increase the cost of the Service in proportion to the
increase in the Consumer Price Index for the preceding twelve
month period as of the beginning of each renewal term without
providing prior notice of such increase to Distributor.
4. CONFIDENTIAL INFORMATION
(a) Either the Distributor or Intell-X raised to the power of x may
disclose to the other certain information that the disclosing
party deems to be confidential and proprietary ("Confidential
Information"). Such Confidential Information shall be clearly and
conspicuously marked or identified as such at the time of its
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first disclosure to the receiving party. Such Confidential
Information includes, but is not limited to, the terms of this
Agreement, documentation related to the Service and technical and
other business information of the Distributor and Intell-X raised
to the power of x that is not generally available to the public.
(b) The party receiving Confidential Information agrees not to
disclose or otherwise use such information for any purpose except
as provided herein during the term of this Agreement. Further,
within ten (10) days of the date on which the Agreement is
terminated, the receiving party shall return all Confidential
information together with all materials which contain such
Confidential Information and not retain any copies of the same.
Confidential Information does not include any information that
(i) is or shall become generally available without fault on its
part, (ii) is already in the receiving party's possession prior
to its receipt from the disclosing party, or (iii) is
independently developed by the receiving party, or that is
disclosed by third parties without restrictions or is rightfully
obtained by the receiving party, from third parties or sources
without a violation of this Agreement. Notwithstanding the above,
either party may make such disclosures of confidential
information as may be required by applicable law.
5. WARRANTIES AND DISCLAIMERS OF INTELL-X RAISED TO THE POWER OF X AND
LIMITATION OF LIABILITY
5.1 Subject to the disclaimers of warranties and the limitation of
liability contained in Section 5.2 and 5.3, respectively,
Intell-X raised to the power of x represents and warrants to
Distributor that:
(a) Intell-X raised to the power of x's entry into this
Agreement does not violate any agreement with any other
party.
(b) it has full and unrestricted right to authorize the
Distributor and the Distributor's Users to access the
Service and such access does not and will not infringe on
any copyright, patent or the proprietary right of any third
party.
(c) its performance under this Agreement will conform in all
material respects to all applicable laws and government
rules and regulations.
5.2 DISCLAIMERS:
(a) THE PARTIES AGREE THAT (i) THE WARRANTIES STATED ABOVE ARE
EXCLUSIVE; (ii) EXCEPT AS STATED ABOVE THE SERVICE IS
PROVIDED "AS IS" AND (iii) THAT THERE ARE NO IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE RELATING TO ANY MATTERS IN THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE SERVICE, DISTRIBUTOR'S
DISTRIBUTION SYSTEM OR ANY OTHER RESOURCES PROVIDED BY
EITHER PARTY.
(b) THE PARTIES AGREE AND DISTRIBUTOR ACKNOWLEDGES THAT
INTELL-X RAISED TO THE POWER OF X DOES NOT WARRANT THE
ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED
HEREUNDER AND INTELL-X RAISED TO THE POWER OF X SHALL NOT
BE LIABLE IN ANY MANNER TO DISTRIBUTOR OR ITS USERS OR ANY
THIRD PARTIES WHO MAY USE THE INFORMATION PROVIDED
HEREUNDER.
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FURTHER, INTELL-X RAISED TO THE POWER OF X SHALL NOT BE
LIABLE FOR ANY DELAY, INACCURACY, ERROR OR OMISSION IN THE
INFORMATION PROVIDED HEREUNDER OR RESULTING FROM THE
TRANSMISSION, DELIVERY OF OR ANY FAILURE TO DELIVER ANY
PART OF THE SERVICE AS A RESULT OF ACTS OF GOD OR
TRANSMISSION ERRORS OUTSIDE THE CONTROL OF INTELLX.
5.3 LIMITATION OF LIABILITY AND REMEDY.
(a) Neither Intell-X raised to the power of x nor its
information providers shall be liable to Distributor in any
event for any damages, direct or indirect, including, but
not limited to, damages and losses resulting from loss of
data, loss of profits, use or misuse of the Service or for
any incidental or consequential damages even if advised to
the possibility of such damage except as set forth in
Section 5.3(b) below. This limitation will apply regardless
of the form of action whether in contract, tort or
otherwise.
(b) IntellX agrees to indemnify and hold Distributor and its
parents, subsidiaries, shareholders, directors, officers and
employees (the "Distributor Indemnified Parties") harmless
from any and all claims, suits, losses, liabilities,
obligations, demands, damages or expenses which result from
or based upon the breach by IntellX of any terms,
conditions, warranties, representations or obligations under
this Agreement (collectively, a "Distributor Indemnified
Claim"). IntellX's obligation to indemnify a Distributor
Indemnified Party hereunder shall be conditioned upon (i)
the Distributor Indemnified Party providing IntellX with
prompt notice of such Distributor Indemnified Claim which
notice shall in any event be given in enough time to allow
IntellX to defend such claim, (ii) the Distributor
Indemnified Party fully cooperating with IntellX in the
defense of such claim, and (iii) the Distributor Indemnified
Party allowing IntellX to control the defense including any
potential settlement of such Distributor Indemnified Claim.
6. TERM AND TERMINATION
(a) This Agreement shall be effective from the date of its written
acceptance by Distributor and shall continue in force for an
initial term as set forth on Schedule A , (the "Initial Term"),
and shall continue thereafter for successive terms of one (1)
year ("Renewal Term") unless either party gives the other notice
in writing of its intent not to renew this Agreement at least
ninety (90) days before the conclusion of the Initial or any
Renewal Term, in which case the obligations of both parties,
except for Distributor's obligation to pay the royalties
described in Section 3 hereof and as set forth in Section 7,
shall cease at the conclusion of the then extant term.
(b) Notwithstanding (6)(a) above, either party shall have the right
to terminate this Agreement if the other party is in default of
any obligation herein, which default has not been cured within
thirty (30) days after the receipt of written notice of such
default from the nondefaulting party or within such additional
cure period as the nondefaulting party may authorize.
(c) Either party may terminate this Agreement by written notice to
the other, and may regard the other as in default of this
Agreement, if the other party
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becomes insolvent, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a receiver for
its business or assets, initiates or becomes subject to any
proceeding under any bankruptcy or insolvency law, or has wound
up or liquidated its business. Debts and credits outstanding
between the parties shall survive termination for any cause.
(d) On any termination of this Agreement, (i) all rights granted
hereunder regarding the Service will immediately cease, unless
otherwise specified in this Agreement or any amendment hereto;
provided, however, that the Distributor's Users shall be entitled
to retain the information contained in the Service as described
in Section 2(d) above for the remainder of the one-hundred eighty
(180) day period, if any, described in such Section 2(d); (ii)
Distributor will cease to utilize or retransmit any items from
the Service from the date of termination; (iii) Distributor will
forthwith purge the same from all of its on-line and off-line
storage media; (iv) Distributor will not use for any purpose
thereafter any information included in or derived from the
Service; and (v) Distributor shall promptly pay to Intell-X
raised to the power of x all sums due pursuant to Section 3
hereof and provide all reports and information required
hereunder.
7. SURVIVAL
The obligations of Distributor under Sections 2(c), 2(k), 3 and 4 and
of Intell-X raised to the power of x under Sections 4 and 5.3(b) and
Addendum C shall survive the termination of this Agreement.
8. ADVERTISING AND PROMOTION
Each party agrees to submit to the other party for written approval,
all advertising or other promotional materials that use service names,
company names or make reference to any understanding or relationship
in this Agreement no fewer than fifteen (15) days before proposed use
and each party will not unreasonable withhold its approval. Unless
notice of approval or disapproval is received within ten (10) days of
receipt of advertising or other promotional materials, approval shall
be considered granted. Either party, however, may identify the other
in its published listing of available services or distributors without
such written approval.
9. FORCE MAJEURE
Neither party shall be liable for delay or default in the performance
of its obligations under this Agreement if such delay or default is
cased by conditions beyond its control, including but not limited to
fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts.
10. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly delivered when received or three
days after being sent by United States certified mail, postage
prepaid, return receipt requested and addressed as follows:
(a) If to Intell-X raised to the power of x:
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
0
Xxxxxxxxx, XX 00000
Attn: Vice President of Sales
(b) If to Distributor:
Scoop, Inc.
Carnegie Center
0000 Xxx Xxxx Xxxxxx
Xxxxx 000
Xxxxx Xxx, XX 00000
Attn: President
or such other address as either party designates in writing as its
notice address.
11. 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 and costs from the nonprevailing party.
12. GENERAL TERMS AND CONDITIONS
(a) Neither party shall be considered an agent for the other party
nor shall either party have the authority to bind the other.
(b) Neither party may assign this Agreement without the written
consent of the other, provided no consent shall be required in
connection with an assignment resulting from the reincorporation
of either party.
(c) No modification of this Agreement or waiver of any of its terms
will be effective against a party unless set forth in writing and
signed by the other party.
(d) In case one or more of the provisions of this Agreement shall be
deemed illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the other
provisions of this Agreement.
(e) Terms and conditions of this Agreement shall be construed in
accordance with the laws of the State of Michigan.
(f) This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior agreements or
understandings, either written or oral, with respect to the
subject matter hereof.
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(g) The headings used in this Agreement are for convenience only and
are not to be construed to have legal significance.
(h) Addendums A, B, C, D and E attached hereto are considered to be
part of this Agreement.
ACCEPTED:
Scoop, Inc. INTELL-X raised to the power x, A
-------------------------------------- DIVISION OF UMI
DISTRIBUTOR
By: By:
-------------------------------- --------------------------------
Signature Signature
Name: Name: Xxxxxx X. Xxxxxxxx
------------------------------ ------------------------------
Title: Title: Senior Vice President, Sales
------------------------------ ------------------------------
Date: Date:
------------------------------ ------------------------------
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