EXHIBIT 10.23
[Weathernews Logo
Appears Here] Weathernews Inc
Internet Weather Services
Licensing Agreement
This agreement is entered into on this 1st day of December, 1998 by:
Weathernews Inc., a California Corporation, hereinafter referred to as "WNI"
with head office located at the following address:
000 X. Xx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
And:
Axxess, Inc. d.b.a. Financial Web, a Florida Corporation, hereinafter referred
to as "Financial Web" with head office located at the following address:
000 Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
The Parties so described above do hereby agree as follows:
1. DEFINITIONS
(a) "Agreement" shall mean this document and all exhibits and schedules hereto.
(b) "WNI Weather Services" shall be defined as the Internet Weather Graphics and
Weather Forecast Information, as developed by WNI, to be provided for
general distribution to the public on the internet through the Axxess's
world wide web interface currently known as "Financial Web" (hereinafter
referred to as Financial Web) and co-branded with Financial Web's name and
logo.
(c) "Weather Information Pages" shall be defined as the Financial Web html pages
where the WNI Weather Services will be parsed and pasted.
(d) "Licensee" shall be defined as the registered Internet distribution source
for Internet users of the WNI Weather Services and shall be, for
the purposes of the Agreement, Financial Web.
(e) "Licensor" shall be defined as the owner and sole developer of the WNI
Weather Services and shall be, for the purposes of the
Agreement, WNI and its representatives.
2. PURPOSE OF AGREEMENT
The purpose of this Agreement is for both parties to jointly provide a forum for
Internet users to easily access valuable weather information.
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3. SCOPE OF AGREEMENT
WNI hereby grants to Financial Web a non-exclusive, non-transferable and non-
assignable license to make available the WNI Weather Services on Financial Web.
The WNI Weather Services are owned by WNI and are protected by United States
copyright laws and international treaty provisions. Financial Web is acquiring
only the right to provide the WNI Weather Services and not any rights of
ownership in the WNI Weather Services or the media on which it is provided. WNI
is retaining all rights, title and interest in the WNI Weather Services. The WNI
Weather Services or any portions of the WNI Weather Services and their source
code, graphic design and any software programs that incorporate the WNI Weather
Services not provided by the title, copyright and all other proprietary rights
in the WNI Weather Services and any related documentation and all parts and
copies thereof shall also remain vested in WNI.
Financial Web is retaining all rights, title and interest in the Weather
Information Pages appearing on Financial (except for the WNI Weather Services so
included). The Weather Information Pages appearing on Financial Web (except for
the WNI Weather Services so included) and their source code, graphic design and
any software programs that incorporate these pages which are not provided by the
title, copyright and all other proprietary rights in these pages as well as any
related documentation and all parts and copies thereof shall also remain vested
in Financial Web.
Pursuant to the terms of this Agreement, Financial Web may not use or make
available the WNI Weather Services for purposes other than as described above.
However, Financial Web may wish to develop new services that are not part of
Financial Web which may benefit from the use of limited weather information as
provided by WNI and incorporated into the WNI Weather Services. Under such
circumstances, during the term of this agreement, the parties shall negotiate in
good faith supplemental contractual and financial terms covering any customized
or new services beyond those referred to in this agreement. In the event of one
party proposing to the other a potential use for the WNI Weather Services, the
other party shall reasonably consider such a proposal and the parties shall
enter into negotiations under the proposal and allocation of the revenues.
4. USE
Financial Web is restricted from using the WNI Weather Services to provide
service to any third party whether by way of trade or otherwise, except as
contained in this Agreement.
Financial Web agrees to use the WNI Weather Services for the purposes of this
Agreement as follows:
The forecast information, observation data and graphic images contained within
the WNI Weather Services shall be updated and maintained within WNI servers and
transferred to Financial Web's servers on a regular basis. The WNI Weather
Services shall appear to any Internet user as part of the Weather Information
Pages appearing on Financial Web as provided by Financial Web. The transition
between the Financial Web servers, which provide Financial Web to Internet
users, and the WNI servers, which provide the WNI Weather Services, shall be
seamless.
Access to the WNI Weather Services by Internet users will be provided by
Financial Web within the design of the Weather Information Pages appearing on
Financial Web. Financial Web will
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make efforts to ensure that the WNI Weather Services are easily accessible and
are reasonably navigable by the typical Financial Web Internet user. Both
parties understand that the general design of the Financial Web site may change
from time to time, but that the ease of access to the WNI Weather Services for
the Internet user will be consistently maintained.
5. COPY RESTRICTIONS AND OTHER RESTRICTIONS
Financial Web may not make copies of the WNI Weather Services (except for
purposes related to the use described above or to maintain the availability of
WNI Weather Services on Financial Web) or any related documentation without the
prior written consent of WNI, except that Financial Web may make copies for
back-up and archival use. Except as provided in this Agreement, the WNI Weather
Services may not be sold, transferred, assigned or otherwise conveyed to another
party without the prior written consent of WNI.
6. MODIFICATION
Financial Web may not, without the prior written consent of WNI, modify, alter,
translate, or create derivative works based on the WNI Weather Services, and may
not reverse engineer, decompile, disassemble, or otherwise attempt to derive the
source code of the WNI Weather Services. Financial Web shall not remove any
product identification, copyright notices or other notices or proprietary
restrictions from the WNI Weather Services.
7. WNI WEATHER SERVICES FUNCTIONALITY
The WNI Weather Services will include weather forecast information for 2,000 US
and foreign cities/locations. For each city/location, a summarized 5-day graphic
forecast including maximum and minimum temperatures (in degrees Fahrenheit and
Celsius) will be provided. These forecasts will be available 365 days per year
and will be updated at least once per day, in some cases twice per day.
Financial Web may choose 60 images from a listing and schedule of WNI Weather
Graphic Images on Exhibit A.
The WNI Weather Services will also include current weather observation data for
as many of the cities/locations for which forecasts are provided as are
available. This observation data will feature observed and derived parameters,
including sky condition, type of precipitation, temperature, wind, barometric
pressure, visibility, relative humidity, heat index and wind chill. This data
will be available 365 days per year and will be updated every three hours or as
available for cities/locations without regular updates.
Each of the Weather Information Pages appearing on Financial Web that contains
any data or graphic images which comprise any part of the WNI Weather Services
will contain a WNI corporate logo and company identification advertising the
fact that such services are provided by WNI. Financial Web will take reasonable
steps, wherever possible, to ensure that the WNI corporate logo and name appears
within Financial Web wherever there are links to or advertisements for Weather
Information Pages appearing on Financial Web.
8. DELIVERY OF DATA
The WNI Weather Services will be transferred to Financial Web via FTP transfer
through the Internet on a pre-scheduled basis which will conform to the number
of times per day that the forecast information, weather observation data and
graphic images comprising the WNI Weather Services are updated as described in
section 7 and Exhibit A of this Agreement.
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Both parties confirm that they or their Internet Service Provider maintain at
their own cost and will continue to maintain T-1 Internet access (or other form
of Internet access at least equally as efficient) throughout the period that
this Agreement is in effect. In order to have a reasonable back-up source in
case either party's T-1 access (or other form of internet access at least
equally as efficient) should become temporarily out of service, both parties
agree to install and maintain throughout the period that this Agreement is in
effect, at their own cost, ISDN line access (or other form of internet access at
least equally as efficient) as a back-up measure.
9. MAINTENANCE OF SERVICES
Financial Web shall use all reasonable efforts to ensure that WNI Weather
Services are accessible through the Weather Information Pages appearing on
Financial Web to any Internet users at all times, 24 hours per day, throughout
the year without any unreasonable interruptions. If, due to hardware or system
failure, service is interrupted, Financial Web shall ensure to the best of its
ability that such service is resumed within a reasonable period of time.
WNI will monitor the WNI Weather Services being copied to the Weather
Information Pages appearing on Financial Web on a regular basis, and implement a
reasonable system of quality controls which will ensure that all forecast
information is reasonably accurate within the limitations of the meteorological
information and weather forecasts as described in section 13 of this Agreement.
For the purposes of this paragraph, reasonable efforts shall include, but will
not be limited to, the maintenance of regular disk to tape back-up procedures.
10. TERM OF AGREEMENT
(a) Initial Term: The term of this Agreement shall be for a period of twelve
(12) months commencing December 1st, 1998 and becomes available to Internet
users through the Weather Information Pages appearing on Financial Web.
(b) Renewals: Prior to the expiration of the current term of the Agreement,
either party must give the other party at least ninety (90) days written notice
of their decision to terminate the agreement. If such notification is not given
by either party, the Agreement shall be deemed to be renewed for an additional
period of twelve (12) months ("Renewal Period"), on substantially the same terms
and conditions as set forth herein. Both parties prior to the start of the first
and any subsequent Renewal Periods shall mutually agree upon the terms and
conditions related to pricing.
(c) Termination: This Agreement and any attached Exhibits shall automatically
terminate in the event of the following:
(i) Either party enters into bankruptcy proceedings, either voluntary or
involuntary;
(ii) Either party sells the majority or substantially all of its assets
for the benefit of its creditors;
(iii) a receiver is appointed to take control of either party's business
so as to liquidate assets for the benefit of either party's
creditors; or
(iv) Any party commits a material breach of any of the terms and conditions
implicit within this Agreement, which breach is not corrected within
30 days of notice.
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In the event of an automatic termination occurring under the provisions of this
paragraph or, in the event of any termination of this Agreement occurring
pursuant to other provisions of this Agreement and in the event that Financial
Web refuses to return or destroy copies of all WNI Weather Services software
(and certify to such effect), WNI shall have the right, without prejudice to any
obligations of Financial Web under this Agreement, to enter onto all locations
where the WNI Weather Services are installed and to take possession, custody and
control of all copies of the WNI Weather Services software, if any, which have
been or may be provided as part of this Agreement. Termination of this Agreement
shall not release any party from any obligations pursuant to this Agreement
while the Agreement was in force, including but not limited to any outstanding
payments for any allocation of advertising revenues, whether or not said
revenues have been collected or invoiced by the party responsible for such
collection.
11. PRICING
Financial Web agrees to pay WNI $1000 per month starting December 1, 1998 and
for each month thereafter for the term of the agreement for providing the
weather services described herein within thirty (30) days after receipt of
invoice.
Financial Web will ensure throughout the term and successive terms of this
Agreement that the only weather information, forecasts and weather-related
graphic images which appear on the Weather Information Pages shall be the WNI
Weather Services provided pursuant to the terms of this Agreement.
12. INDEMNITY OBLIGATIONS
Both parties agree to indemnify each other and hold the other safe and harmless
from and against any and all claims, of whatsoever kind or nature, suits,
actions, judgments and proceedings, including the payment of reasonable
attorneys fees incurred in defending any such claims, brought against Financial
Web and/or WNI by any third parties alleging property damages or personal
injuries, including death, or any infringement of any copyright, patent or other
intellectual property right, which arise out of, or are in any way connected
with, the weather forecast information located on the WNI Weather Services pages
provided under this Agreement or any attached Exhibits thereto.
13. WARRANTY DISCLAIMER
WNI does not warrant the accuracy of the meteorological information it uses in
any weather forecast appearing within the WNI Weather Services which are made
available to Internet users under this Agreement and does not assume any
responsibility for any damages arising out of these forecasts as provided,
unless such damages are a result from gross negligence or willful misconduct of
WNI.
The WNI Weather Services are to be used only as an informational aid and may not
reflect actual or future meteorological conditions and, accordingly, should not
be used as a substitute for an individual's judgment concerning weather
conditions and forecasts. Weather forecasts are predictive in nature and are
subject to inherent uncertainty. WNI does not warrant the accuracy of such
information and weather forecasts appearing on the WNI Weather Services.
WNI provides the WNI Weather Services and Weather Information Pages within this
Agreement on an "as is" basis and makes no warranties, either expressed or
implied, as to the merchantability
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or fitness of the WNI Weather Services for a particular purpose, and whether
arising by statute or in law or as a result of a course of dealing or usage of
trade with respect to the WNI Weather Services. In no event will WNI be liable
for any loss or inaccuracy of data, loss of profits or indirect, special,
incidental or consequential damages, even if WNI has been advised of the
possibility of such damages. The foregoing restrictions, disclaimers and
limitations shall apply and remain in force even in the event of a breach by WNI
hereunder of a condition or fundamental term hereunder, or in the event of a
breach, which constitutes a fundamental breach. The foregoing restrictions,
disclaimers and limitations shall apply and remain in force following the
termination and/or conclusion of the term of this Agreement.
14. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW NEITHER PARTY IS LIABLE FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, ECONOMIC OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY
AND ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE WNI WEATHER SERVICES, OR
THE DELIVERY OR OPERATION THEREOF, EVEN IF THE OTHER PARTY HAS BEEN ADVISED THAT
SUCH DAMAGES ARE POSSIBLE AND WHETHER BASED IN CONTRACT, TORT OR OTHERWISE.
15. CONFIDENTIALITY
Each party will keep confidential the terms of this Agreement and all non-public
information, know-how and materials (including any software) ("Confidential
Information") provided by one party to the other pursuant to this Agreement and
marked "Confidential", provided, however, that either party may disclose the
terms of this Agreement in confidence to its immediate legal and financial
consultants and advisers as required in the ordinary course of such party's
business or as may be required by law. All tangible materials containing
Confidential Information and marked "Confidential" ("Confidential Materials"),
including documents, tapes, computer disks and other fixed storage devices
(whether or not machine or user readable), are the property of the party making
disclosure of the Confidential Information contained therein. Upon expiration or
earlier termination of this Agreement, Confidential Materials belonging to one
party in the other party's possession must be returned or destroyed, at the
option of its owner (upon notice by the owner, to be given within 15 business
days after expiration or termination). If Confidential Materials are destroyed,
a letter of confirmation must be provided promptly upon request to their owner
and, if no request is given, no later than 21 days following expiration or
termination.
16. FORCE MAJEURE
Neither Party shall be liable for failure to perform its obligation under the
Agreement if such failure results from circumstances beyond the party's
reasonable control.
17. PAYMENT TERMS
Late payment of any payment due WNI hereunder shall bear late charges in the
amount of eighteen percent (18%) interest per annum, or one & one-half percent
(1.5%) interest per month or part thereof from the due date of payment until
paid. In the event of late or non-payment of any of the amounts required to be
paid by the Financial Web, Financial Web shall also be responsible to pay the
reasonable attorney fees incurred by WNI to collect such amounts due the WNI
under the provisions of this Agreement, regardless of whether or not such
collection efforts result in the instigation of legal proceedings against the
Financial Web.
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18. SURVIVABILITY
Both parties agree and acknowledge that, unless otherwise stated or the contrary
is implicit within the meaning of the Agreement, the following clauses of this
Agreement will survive the termination and conclusion of this Agreement and will
remain in force unless otherwise agreed by both parties:
Clause numbers: 5,6,10,12,13,14,15,16,17
19. ENTIRE AGREEMENT
Each party acknowledges that it has read this Agreement, understands it, and
agrees to be bound by the terms and conditions of this Agreement and referenced
Exhibits. This Agreement may not be modified except by a written instrument duly
executed by both parties.
20. ASSIGNMENT
In accordance with section 3 of this Agreement, either party may assign and/or
transfers rights and delegate its duties under this Agreement only to an entity
into which it is merged or reorganized or purchased all or substantially all of
a party's assets.
IN WITNESS WHEREOF, the Parties hereto have signed and executed this Licensing
Agreement on the day, month and year above and state that this Agreement shall
be governed in accordance with the laws of the State of California.
LICENSOR: LICENSEE:
Weathernews Inc. Axxess, Inc.
/s/ Xxxxxxxx Xxxx /s/ [signature appears here]
--------------------------- ----------------------------
Signature Signature
NAME: Xxxxxxxx Xxxx NAME:
TITLE: President TITLE:
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