EXHIBIT 10.27
CONFIDENTIAL TREATMENT REQESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.49
DISTRIBUTOR AGREEMENT
Agreement between MEDIA GENERAL FINANCIAL SERVICES, INC., a Virginia
Corporation, with its principal place of business at 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Media"), and XXXXXX'X, INC., a Delaware Corporation
with its principal place of business at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx
00000 ("HOOVER'S").
1. Subject to the terms and conditions of this Agreement, Media hereby
grants to HOOVER'S a non-exclusive license to install, market, and distribute
certain selected elements of Media's common stock database through the XXXXXX'X
products and services described in EXHIBIT I, attached hereto and made a part
hereof. The data elements licensed, hereinafter referred to as "Media data", are
shown in EXHIBIT II, attached hereto and made a part hereof. The licensed Media
data may be utilized in whole or in part in the approved XXXXXX'X products and
services as specified in EXHIBIT II of this Agreement. Other specific terms and
conditions relating to Media data usage are in EXHIBIT III, attached hereto and
made a part hereof. Media reserves the right to modify its databases from time
to time in its sole discretion. Media shall give XXXXXX'X sixty (60) days prior
written notice if any such change will affect the Media data. In addition to the
license granted hereunder for use of the Media data through XXXXXX'X' products
and services, XXXXXX'X may develop and market such other products and services
utilizing the Media data as the parties mutually agree to add to this Agreement
by amendment, subject to the provisions of Paragraph 14 hereof.
The Media data shall be made available to XXXXXX'X via such media and in such
format as shall be mutually agreed upon. Frequency of delivery of the Media data
to XXXXXX'X shall be daily according to a production schedule as shall be
mutually agreed upon. XXXXXX'X agrees that it shall update the Media data on its
product and service systems on at least the same frequency as the Media data are
supplied to XXXXXX'X by Media under Paragraph (1) of this Agreement and that its
failure to do so shall constitute a breach of this Agreement by XXXXXX'X. Media
shall have no liability for delays or non-performance occasioned by causes
beyond its control, including but not limited to acts of God, fires, inability
to obtain materials, strikes or other labor actions, breakdown of equipment,
delays or shutdowns of carriers or suppliers, and government acts or
regulations.
2(a). Media represents and warrants to XXXXXX'X that the Media data as
delivered to XXXXXX'X does not and will not infringe upon or violate any patent,
copyright, trade secret or any other proprietary rights of any third party. In
the event of any claim, suit or action by any third party against XXXXXX'X
arising out of Media's breach of the foregoing representation and warranty,
XXXXXX'X shall promptly notify Media, and Media shall defend such claim, suit or
action in XXXXXX'X' name but at Media's expense under Media's control. Media
shall indemnify and hold harmless XXXXXX'X against any loss, cost or damage,
expense or liability arising out of such claim, suit or action (including
litigation costs and reasonable attorneys fees) whether or not such claim, suit
or action is successful. Should any material and/or information constituting the
Media data become, or in Media's opinion be likely to become, the subject of a
claim for infringement, Media may authorize the continued use of, replacement,
removal, or modification of such material and/or information to render it
non-infringing.
2(b). XXXXXX'X represents and warrants to Media that neither the
reformatting nor the means of presentation on or through the XXXXXX'X product
and service shall cause the Media data to infringe upon or violate any patent,
copyright, trade secret or any other proprietary rights of any third party. In
the event of any claim, suit or action by any third party against Media arising
out of XXXXXX'X' breach of the foregoing representation and warranty, or any
errors in the presentation of the Media data caused by XXXXXX'X, Media shall
promptly notify XXXXXX'X, and XXXXXX'X shall defend such claim, suit or action
in Media's name but at XXXXXX'X expense under XXXXXX'X control. XXXXXX'X shall
indemnify and hold harmless Media against any loss, cost or damage, expense or
liability arising out of such claim, suit or action (including litigation costs
and reasonable attorneys fees) whether or not such claim, suit or action is
successful.
EXHIBIT 10.27
CONFIDENTIAL TREATMENT REQESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.49
2(c). Media bases its data on sources believed by it to be reliable and will
endeavor to insure that the data contained in the licensed Media data are
complete, accurate and timely. However, Media does not represent, warrant, or
guarantee such completeness, accuracy or timeliness, and it shall have no
liability of any kind whatsoever to XXXXXX'X, to any of XXXXXX'X' customers, or
to any other party, on account of any incompleteness of, inaccuracies in or
untimeliness of the Media data provided hereunder or for any delay in reporting
such data. Media expressly disclaims all warranties of fitness of the Media data
or computations and analyses thereof for a particular purpose or use. With
regard to the subject matter of this Paragraph 2(c), in no event shall Media
have any liability of any kind for any damages even if notified of the
possibility of such damages. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY
KIND WITH RESPECT TO THE DATA PROVIDED UNDER THIS AGREEMENT.
3. XXXXXX'X shall insure that the Media data shall be clearly identified
as provided by Media in the XXXXXX'X product and service and in materials that
describe the sources of data in the XXXXXX'X product and service. XXXXXX'X shall
insure that an appropriate disclaimer, approved by Media and containing a
paraphrase of the language contained in Paragraph 2(c) above, shall be shown at
appropriate places to any user of the Media data through the XXXXXX'X products
and services.
4(a). For the license hereby granted to XXXXXX'X by Media to offer the Media
data through the products and services set forth in EXHIBIT I, XXXXXX'X shall
pay to Media a monthly license fee as follows:
April 2002 - March 2003 [*](1) Year 1 Total [*](2)
April 2003 - March 2004 [*](3) Year 2 Total [*](4)
April 2004 - March 2005 [*](5) Year 3 Total [*](6)
4(b). XXXXXX'X shall pay such monthly license fee to Media on or before the
thirtieth (30th) day after the end of the month in which the fees shall have
accrued. If any payment due by XXXXXX'X hereunder is not received by Media
within that period, Media shall have the option to immediately discontinue
providing the Media data to XXXXXX'X, and Media, at its sole discretion, may
then require prepayment for all future services provided to XXXXXX'X under this
Agreement. Media may then terminate this Agreement should such payment not be
received within ten (10) days after written notice to XXXXXX'X. In addition to
and not in limitation of the foregoing, if payment is not timely made, XXXXXX'X
shall be liable for all collection costs incurred by Media, including, without
limitation, all reasonable attorneys' fees and court costs.
4(c). At Media's option and no more than once per year, an independent
auditor selected by Media may inspect, audit and copy, during regular business
hours and with advance notice of at least five (5) days, those records of
XXXXXX'X that specifically relate to usage of the Media data hereunder. Such
right of inspection shall exist during the terms of this Agreement and for
twelve (12) months thereafter. Media shall pay the fees of any auditor selected
pursuant to this subparagraph.
5. XXXXXX'X agrees that before any of its clients or customers may access
the Media data through the XXXXXX'X product and service, they must have signed
or otherwise be bound by some appropriate type of XXXXXX'X subscriber agreement
containing provisions prohibiting the resale or redistribution of any data
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(1) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
(2) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
(3) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
(4) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
(5) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
(6) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
EXHIBIT 10.27
CONFIDENTIAL TREATMENT REQESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.49
obtained from the XXXXXX'X service (which will include the Media data) in any
form. XXXXXX'X represents and warrants to media that it assumes all
responsibility for the accuracy, integrity and support of its software which
utilizes the Media data. Specific references by XXXXXX'X that the Media data has
any predictive value for the purpose of enhancing investment returns are
strictly prohibited.
6. XXXXXX'X represents and warrants that the Media data supplied
hereunder shall be used and released from its data system only in accordance
with the terms of this Agreement and in furtherance thereof. The license granted
under Paragraph 1 hereof does not permit XXXXXX'X to use, sell or distribute the
Media data for any use or purpose other than those specifically set forth in
this Agreement. Any other use of the Media data by XXXXXX'X not expressly
authorized herein must be approved in advance in writing by Media in its sole
discretion.
7. Any use of the names or marks of either party in connection with
promotional activities, advertising, or other use outside the ordinary course of
business in performing this Agreement shall be subject to the prior written
approval of the other party.
8. XXXXXX'X acknowledges that the Media data in the form delivered
represent confidential proprietary business information and that its utilization
of the Media data is strictly limited in accordance with this Agreement. Media
acknowledges that any XXXXXX'X software used for the access, delivery and
manipulation of Media data represents confidential proprietary business
information and utilization of such software by Media or any of its employees or
agents is strictly limited in accordance with the terms of this Agreement.
9. XXXXXX'X acknowledges that the Media data consist of factual
information gathered, selected and arranged by Media by special methods and at
considerable expense; that the Media data, and all titles, formats and other
descriptive headings associated herewith, are and at all times shall be, the
sole property of Media, and that neither XXXXXX'X nor any of its clients,
customers or agents in any capacity shall sell or otherwise dispose of or
distribute the Media data, or any portion thereof, to others at any time, either
during or after the expiration of this Agreement, except as permitted by the
terms hereof. XXXXXX'X will act promptly to prevent any breach or continuation
of a breach by any of its clients, customers or agents of the provisions of this
Agreement, or the XXXXXX'X subscriber agreement, such action to include
termination of services if required by Media.
10. XXXXXX'X expressly recognizes and acknowledges that its covenants set
forth in Paragraphs 6, 7, 8, and 9 are reasonable requirements of Media in the
protection of substantial business interests. XXXXXX'X further acknowledges that
the remedy at law for breach of any of its undertaking in said paragraphs would
be inadequate and that, in addition to all other remedies provided by law, Media
shall be entitled to injunctive relief restraining any breach or threatened
breach, without the necessity of posting a bond. XXXXXX'X liability for breach
of this Agreement and for sums due to Media hereunder shall survive any
termination hereof.
11(a) Subject to the terms and conditions described below, the initial term
of this Agreement shall be for a period of three (3) years from the effective
date of this Agreement specified in Paragraph 18. At the end of the initial
three-year term, this Agreement shall be automatically renewed from year to
year, unless either party gives to the other written notice of termination at
least ninety (90) days prior to the expiration of the initial term, or any
renewal term, as the case may be.
Promptly following termination of this Agreement for any reason, XXXXXX'X shall
make no further use of the Media data in any form and shall use all reasonable
efforts to purge all Media data from its electronic delivery systems. XXXXXX'X
shall certify to Media in writing that the requirements of this paragraph have
been met within seven (7) days of any termination, and XXXXXX'X shall be
obligated to pay Media a fee of
EXHIBIT 10.27
CONFIDENTIAL TREATMENT REQESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.49
[*](7) per day, or any part of a day, for each day that XXXXXX'X continues
electronic use of any Media data in any form, such post-termination payment
obligations to become effective beginning with the eighth(8th) day after any
termination of this Agreement.
Upon termination of this Agreement for any reason other than non-payment,
XXXXXX'X may, upon request and notification to Media, continue to use the Media
data only in its existing non-electronic hard copy, physical products and those
non-electronic hard copy, physical products under preparation for a period of
twelve (12) months from the date of termination, provided that Media shall not
be required to provide any continuing data service to XXXXXX'X during this
twelve (12) month period. Following the expiration of this twelve (12) month
period, XXXXXX'X shall make no further use of the Media data in any form, except
that XXXXXX'X may continue to hold the Media data only in its archive of hard
copy and physical products. Notwithstanding the termination or expiration of
this Agreement, the rights and obligations under Paragraphs 2, 4, 5, 6, 7, 8, 9,
10, 11 and 12 shall survive and continue and bind the parties and their legal
representatives and permitted assigns.
11(b). Either Media or XXXXXX'X may terminate this Agreement and the license
conferred hereunder as follows:
(i) Media may terminate as specified in Paragraph 4(b).
(ii) Either party may terminate if the other breaches any other
term or covenant of this Agreement, and such breach continues unremedied for ten
(10) days after written notice to the party in breach by the other party. Either
party may seek liability for breach of this Agreement by the other party.
(iii) Commencing April 1, 2003, XXXXXX'X may terminate this
Agreement without cause upon thirty (30) days written notice to Media.
12. All marketing and promotional references to the Media data to be used
by XXXXXX'X in its efforts to market XXXXXX'X products and services which use
the Media data shall be subject to the prior written approval of Media. In the
event that Media advertises its connection with XXXXXX'X service, or in the
event Media promotes the availability of the Media data in XXXXXX'X products and
services, XXXXXX'X shall have the right of prior approval of all materials used
in such efforts. If the approving party does not respond within five (5) days,
the other party may consider the materials approved.
13. All notices, payments and other communications permitted or required
by this Agreement shall be in writing, addressed as follows:
XXXXXX X. XXXXXXXXXX, PRESIDENT & CEO
MEDIA GENERAL FINANCIAL SERVICES, INC.
POST OFFICE BOX 85333 or 000 X. XXXXXXXX XXXXXX
XXXXXXXX, XXXXXXXX 00000 XXXXXXXX, XXXXXXXX 00000
XXXX XXXXXXXX, EXECUTIVE VICE PRESIDENT
XXXXXX'X, INC.
0000 XXXXXXX XXXXXXXXX
XXXXXX, XXXXX 00000
Either party may change its address for such matters by notice given in the
manner prescribed above. If sent by certified or registered mail, notices shall
be effective three business days after posting; otherwise, notices shall be
effective upon receipt by the other party.
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(7) [*] Indicates that material has been omitted and confidential treatment
requested. All such material has been filed separately with the
Commission pursuant to Rule 406.
EXHIBIT 10.27
CONFIDENTIAL TREATMENT REQESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.49
14. This Agreement represents the entire understanding between XXXXXX'X
and Media as to the subject matter hereof. Any amendments or additions hereto
shall be only in writing executed by the parties.
15. This Agreement is made in, and shall be governed by and construed in
accordance with the laws of, the State of Virginia.
16. The licensed rights hereunder may not be transferred or assigned by
either party in any manner without the written approval of the other party,
except that Media may assign this Agreement to any affiliate or parent of Media
without the consent of XXXXXX'X.
17. No waiver of any breach of any term or condition herein shall be
deemed to be a waiver of any subsequent breach of any term or condition. Failure
or delay by either party in exercising any right or authority hereunder shall
not be construed as a waiver of such right or authority.
18. This Agreement shall become effective on April 1, 2002.
MEDIA GENERAL FINANCIAL SERVICES, INC. XXXXXX'X, INC.
000 XXXX XXXXXXXX XXXXXX 0000 XXXXXXX XXXXXXXXX
XXXXXXXX, XXXXXXXX 00000 XXXXXX, XXXXX 00000
By: By:
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Title: Title:
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Date: Date:
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