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EXHIBIT 10.38
MULTEX CONTRIBUTOR AGREEMENT
This Contributor Agreement ("Agreement"), dated August 9, 2000 (the "Effective
Date"), is between Xxxxxx.xxx. Inc., a Delaware corporation at 00 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000 ("Multex") and Wall Street Strategies Corp.
("Contributor"; name/address at the end of this Agreement). Contributor produces
commentary on the national financial markets and stock selections each business
day in the PDF file format ("Research").
1. LICENSE. Contributor grants Multex a non-exclusive, royalty-free, worldwide
license to receive, store, copy, display, sell, license, and distribute
Contributor's Research to Multex clients and through third-party data providers
(which may include companies such as Reuters and Bloomberg) to their clients
(collectively "Clients"), in accordance with Section 8. Multex grants
Contributor, for the term of this Agreement, a non-exclusive, royalty-free,
worldwide license to use Multex's software (for automated or manual
contribution) only in connection with the provision of Research to Multex.
1.1. CONTRIBUTION. Contributor shall provide its Research to Multex promptly
upon creation and not later than it provides such Research to any other vendor
or third party. Contributor shall make reasonable efforts to (i) create and
append all necessary tags for the Research (with initial assistance from Multex)
and (ii) contribute a short summary together with any contributed Research.
Contributor shall have the right not to provide any Research, but only if
Contributor does not contribute such Research to any direct competitor of Multex
unless Contributor signs an agreement for private label or co-branded content.
1.2. UPDATES. Multex shall provide updates to its software to Contributor as it
makes them generally available.
2. COSTS. Multex shall bear all costs relating to its software and the
distribution of Research. Contributor shall bear all costs relating to the
development, tagging (except software provided by Multex), and delivery of its
Research to Multex.
3. TERMINATION. This Agreement becomes effective on the Effective Date for a
3-year term and automatically renews for additional 1-year terms unless written
notice is given by either party 90 days before the end of any term.
3.1. BREACH. Either party shall have the right to terminate this Agreement for
material breach by the other party if such breach is not cured within 30 days
from receipt of a notice of breach from the other party. For breaches that
cannot be cured within 30 days, if the breaching party has begun to cure within
the 30-day period, the cure period shall be extended for such time as is
reasonably necessary to cure the breach.
3.2. EFFECT OF TERMINATION. Upon termination or expiration of this Agreement,
upon request, each party shall destroy or return the other's materials
(including all of Multex's software, documentation, or other materials).
However, Multex shall retain contributed Research to comply with relevant laws
and regulations. Sections 4, 5, 6, 7, and 9 shall remain in effect and survive
any expiration or termination of this Agreement.
4. CONFIDENTIALITY. In the parties' relationship under this Agreement, either
party may receive or have access to Confidential Information (as defined below)
of the other. Each party shall safeguard the confidential nature of the other's
Confidential Information as it would its own Confidential Information, using at
least reasonable care. Neither party may use, copy, or disclose any Confidential
Information of the other, unless (i) necessary to perform its obligations under
this Agreement or (ii) required by law or court order. "Confidential
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Information" shall mean all proprietary information disclosed by a party to the
other and indicated as confidential. Confidential Information shall not include
information that: (a) is known to the party receiving it as of the date of
disclosure, other than by prior confidential disclosure; (b) is in the public
domain, through no fault of the party receiving it; or (c) is independently
developed by the party receiving it.
5. OWNERSHIP OF RESEARCH. As between the parties, the Research contributed to
Multex by Contributor shall remain the sole property of Contributor. Multex
shall not modify the content of Contributor's Research.
5.1. MULTEX SOFTWARE. As between the parties, the Multex software and all Multex
materials shall remain the sole property of Multex. Contributor shall not
modify, decompile, or reverse engineer the Multex software.
6. MULTEX WARRANTIES. Multex warrants that (i) its software and services do not
infringe the proprietary rights of any third party and (ii) it has the right to
grant to Contributor the rights granted herein.
6.1. CONTRIBUTOR WARRANTIES. Contributor warrants that (i) it owns and/or has
the right, and is permitted under applicable laws and regulations, to distribute
the Research it contributes to Multex and to grant to Multex the rights granted
herein; (ii) it shall comply with applicable laws and regulations in providing
Research; and (iii) the Research transmitted to Multex, the rights granted
herein, and the exercise of such rights do not infringe the proprietary rights
of any third party.
6.2. LIMITATIONS. EACH PARTY ACKNOWLEDGES THAT, OTHER THAN THE FOREGOING
WARRANTIES, THE OTHER PARTY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING
ANY SOFTWARE, INFORMATION, OR SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING
THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MULTEX'S SOFTWARE
IS PROVIDED "AS-IS." MULTEX MAKES NO WARRANTY OR REPRESENTATION THAT ITS
OPERATION SHALL BE UNINTERRUPTED OR ERROR FREE AND SHALL HAVE NO LIABILITY
ARISING FROM INTERRUPTIONS IN OR ERRORS IN THE OPERATION OF THE SOFTWARE. MULTEX
MAKES NO WARRANTY REGARDING AND SHALL HAVE NO LIABILITY ARISING FROM THE
DISPLAY OR DISTRIBUTION OF RESEARCH, THE ERRONEOUS DELIVERY OF RESEARCH OR
INACCURACY, INVALIDITY, OR INCOMPLETENESS OF RESEARCH.
7. INDEMNITY. Each of the parties agrees to indemnify and hold harmless the
other (including its affiliates, partners, officers, directors, employees,
agents, and representatives) against any claims and/or liabilities of any
nature, including reasonable attorney's fees, arising out of or relating to any
breach of the warranties made by such party pursuant to Section 6 (Warranties)
or breach of Section 4 (Confidentiality) (the breaching party being the
"Indemnifying Party" and the other party being the "Indemnified Party"). The
Indemnifying Party in its sole discretion may settle any such claim by
substituting non-infringing products, software, or services for any infringing
products, software or services. The Indemnifying Party shall not enter into any
settlement or consent to any order that could adversely affect the validity or
enforceability of the intellectual property of the other party without consent.
An Indemnified Party shall give the Indemnifying Party (i) prompt written notice
of the claim; (ii) the right to control and direct the defense and settlement of
the claim; and (iii) reasonable assistance and information. The Indemnifying
Party shall have no liability for damages to the extent that such damages result
from the Indemnified Party's
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failure to comply with clause (i), (ii) or (iii) of the preceding sentence.
7.1. LIMITATIONS ON LIABILITY. Neither party shall have any liability other than
as expressly set forth in Section 7. Each party's maximum total liability shall
not exceed US$50,000, except for damages arising out of the Indemnifying Party's
intentional misconduct, which shall not exceed US$ 1,000,000. Neither party
shall be liable for any special, punitive, indirect, or consequential damages
other than damages arising from (i) a breach of Section 4; (ii) third party
claims for which a party is obligated to indemnify the other pursuant to Section
7; or (iii) its intentional misconduct. Notwithstanding the foregoing, each
party shall be liable without limit for those claims and in jurisdiction where
such unlimited liability is required by law.
8. DISTRIBUTION. Multex shall have the right to market, sell, and license
Research, either directly or through third-party data providers, to any third
party on the terms of this Section 8. Pricing of Research shall be determined at
the sole discretion of the Contributor.
8.1. ROYALTY. Multex shall retain the first ******* of revenue received from
distribution of Research. Thereafter, within 45 days of the end of each
quarter, Multex shall pay Contributor a royalty of (i) **% of the revenues
received by Multex for the license or sale of Contributor's Research on a
demand basis and (ii) **% of revenues received by Multex for the sale of
Contributor's Research on a subscription basis, in both cases net of any
distribution fees Multex must pay. Multex shall provide a report showing sales
and licensing of Contributor's Research, broken down by on demand and
subscription sales, together with such payments.
8.2. REPORTS AND AUDITS. Multex shall prepare, at the end of each calendar year,
at Contributor's written request, a reconciliation statement showing all
royalties paid or payable for such year. Once per calendar year, Contributor's
independent auditors may inspect Multex's books and records relating to such
royalties, subject to an appropriate confidentiality agreement (which shall
prohibit disclosure of Multex's Clients to Contributor).
9. MISCELLANEOUS
9.1. PUBLICITY. Each party may disclose the existence and nature of their
relationship under this Agreement, except for the financial terms. Multex shall
be permitted to display Contributor's name and logo in press releases, client
lists (including lists in "tombstone" and similar advertisements), and annual
and other reports.
9.2. INDEPENDENT PARTIES. Neither party is an employee, agent, co-venturer, or
legal representative of the other for any purpose. The parties are independent
contractors.
9.3. ASSIGNMENT. This Agreement shall not be assignable without the written
consent of the other party, except to an affiliate of the assigning party or to
the purchaser of the business to which it relates, so long as such affiliate or
purchaser is not a direct competitor of the other party. Any other attempted
assignment shall be void. This Agreement shall bind permitted successors and
assigns.
9.4. SEVERABILITY. If any term or provision of this Agreement is held to be
invalid or unenforceable, such term or provision shall be ineffective only to
the extent of such invalidity or unenforceability and the remainder of this
Agreement shall continue in full force and effect.
9.5. ENTIRE AGREEMENT, AMENDMENT, AND WAIVER. This Agreement contains the entire
understanding and agreement between the parties. It supersedes any prior
contribution agreements between the parties and also any prior "Reuters'
Research Providers Agreement" between Contributor and Reuters. This Agreement
may not be modified or amended except in a writing signed by both parties.
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* Subject to Request for Confidential Request
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9.6. NOTICES. All notices to be given shall be in writing delivered to the
address set forth herein or sent by facsimile. The facsimile numbers are
212.607.2610 for Multex and (000) 000-0000 for Contributor. Notices shall be
sent attention: General Counsel for Multex and attention XXXX XXXXXX for
Contributor. Notices shall be effective upon receipt.
9.7. Governing Law. New York law shall govern this Agreement without regard to
its conflicts of law principles. The parties submit to the exclusive
jurisdiction of state and Federal courts in New York County, New York for the
resolution of any disputes arising under this Agreement. Each Party agrees waive
any claim or defense involving improper venue, lack of personal jurisdiction, or
forum non conveniens for any action brought in such court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
XXXXXX.XXX, INC. WALL STREET STRATEGIES CORP.:
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Name: Xxxxx X. Xxxxxxx
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Title: Title: Chief Strategy Officer
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Contributor's address and locality
of incorporation:
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Nevada
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