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EXHIBIT 10.37
AGREEMENT
This agreement (the "Agreement") is by and between XXXxx.xxx, a
division of Cable News Network LP, LLLP ("XXXxx.xxx") and YellowBrix, Inc, a
Delaware corporation formerly known as Newsreal, Inc., and BizWatch, Inc.
("YellowBrix").
Each of XXXxx.xxx and YellowBrix was a party to an earlier agreement
dated as of April 1, 1998, and amended April 21, 1999, by and between XXXxx.xxx
and Bizwatch, Inc. (now known as YellowBrix), with a term ending as of March 31,
2000 (the "Prior Agreement"). This Agreement supercedes and replaces all
previous agreements between the parties relating to the subject matter herein.
The parties hereto agree, among other things, to co-brand an area on
XXXxx.xxx and contribute various elements thereto as more specifically described
below on the following terms and conditions:
1. Term.
The term of this Agreement is for two years, beginning as of April 1,
2000 and ending as of March 31, 2002.
2. Industry Watch Product.
(a) During the term of this Agreement, YellowBrix hereby agrees to
develop and make available to XXXxx.xxx the co-branded Industry Watch Product as
more specifically described on Exhibit A hereto (the "Industry Watch Product").
The Industry Watch Product will be hosted and served by YellowBrix. The Industry
Watch Product will display both parties' trademarks, servicemarks, tradenames,
logos and/or designations as specified by XXXxx.xxx in its reasonable
discretion. XXXxx.xxx acknowledges and agrees that, subject only to XXXxx.xxx's
ownership of all rights, title and interest in and to works or other materials
provided by XXXxx.xxx to YellowBrix in furtherance of the production and
continued development of the Industry Watch Product (including, without
limitation, trademarks, servicemarks, tradenames, logos and XXXxx.xxx Content,
as defined herein), as between XXXxx.xxx and YellowBrix, the Industry Watch
Product is the property of and owned by YellowBrix. The parties further
acknowledge that the Industry Watch Product is comprised of additional content
acquired by YellowBrix from third parties and no claim or representation of
ownership is made by YellowBrix to such third-party content.
(b) It is agreed that the Industry Watch Product shall, at a
minimum, contain substantially the same industry categories, functionality,
capabilities and content as available on the previously available XXXxx.xxx
co-branded Industry Watch Product provided pursuant to the Prior Agreement and
any YellowBrix website or on any YellowBrix licensee website with a similar
contractual agreement at all times during the Term. XXXxx.xxx acknowledges that
portions of the YellowBrix content may be subject to third-party rights
restrictions that limit YellowBrix's ability to provide the same to
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XXXxx.xxx in the Industry Watch Product; nonetheless, YellowBrix agrees to use
commercially reasonable efforts to secure sufficient rights to any third-party
content to allow it to provide the same to XXXxx.xxx hereunder. YellowBrix
further represents and warrants that it shall use commercially reasonable
efforts to ensure that the technology provided by it at all times during the
term of this Agreement is "state of the art" such that it meets or exceeds
comparable functionality available in the industry, provided, however, that the
inability or failure of YellowBrix to achieve this goal will not be deemed a
breach of this Agreement. Notwithstanding the foregoing, YellowBrix will exclude
or limit particular third-party content (including but not limited to BBC and
Bridge News content) from the database for the Industry Watch Product at
XXXxx.xxx's written request as XXXxx.xxx shall, as between XXXxx.xxx and
YellowBrix, retain exclusive editorial control over all content available and
accessible through the XXXxx.xxx web site. The Industry Watch Product shall be
made available to XXXxx.xxx on an exclusive basis for use and access by users of
the XXXxx.xxx web site.
(c) It is agreed that YellowBrix will redesign and update the
XXXxx.xxx Industry Watch pages per XXXxx.xxx specifications within 30 days of
receiving such specifications from XXXxx.xxx after the signing of this agreement
and that the parties hereto will use their best efforts to ensure that the
redesigned and updated version of the Industry Watch Product is live on
XXXxx.xxx within 20 days after receipt of such specifications. Additional
material redesigns and updates made at XXXxx.xxx's request beyond one initial
material redesign and update shall be charged at YellowBrix's then standard
rates.
(d) The XXXxx.xxx website shall link to the Industry Watch Product
throughout the term. Presentation of such links (including but not limited to
the placement, size, font, color, wording, and any use of graphics or text) and
quantity of all links to the Industry Watch Product shall remain at XXXxx.xxx's
sole discretion throughout the term and may change at any time for any reason.
XXXxx.xxx guarantees no specific placements, impressions levels or clickthroughs
for any or all such links to the Industry Watch Product. However, at no time
during the term shall there be less than one link from the XXXxx.xxx website to
the Industry Watch Product.
(e) YellowBrix shall be solely responsible for securing all rights
from and making any necessary payments to any YellowBrix third party for use and
distribution of its content by XXXxx.xxx as contemplated hereunder and
YellowBrix shall indemnify XXXxx.xxx against any failure to do so as set forth
elsewhere in this Agreement.
(f) YellowBrix will provide technical resources and support
necessary to ensure and maintain a streamlined linkage between the YellowBrix
server and the XXXxx.xxx web site as contemplated by this Agreement. If, at any
time, an electronic link established on the XXXxx.xxx web site to provide access
to the Industry Watch Product shall have been nonfunctional for a period of at
least two (2) hours on a continuous basis or intermittently over a six-hour
period, then, until the functionality is restored by YellowBrix, XXXxx.xxx may,
at its option, insert a blocking page with a
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message indicating that access to the Industry Watch Product has been
temporarily suspended due to technical difficulty. Should such failure continue
for a period of eight (8) hours, XXXxx.xxx may, at its option, remove the
graphical component of such connection until the functionality has been
restored. In either event, the connection shall be restored as soon as possible
following correction of the technical problems. Such remedy shall be in addition
to any other available remedies.
(g) YellowBrix will use its best efforts to ensure that the
Industry Watch Product is available and fully functioning and updating on a
twenty-four hour per day, seven day per week, three-hundred sixty-five day per
year basis during the term of this Agreement. Without limiting the foregoing,
YellowBrix must meet the Performance Standards (as defined herein) for the
Industry Watch Product for at least ___*___ percent of every thirty day period.
XXXxx.xxx will have the absolute right to remove or disable all YellowBrix
logos, links, graphics, and promotional banners during all periods in which
YellowBrix fails to achieve the Performance Standards for the Industry Watch
Product. Repeated failure to meet the Performance Standards for the Industry
Watch Product, or a single failure to meet the Performance Standards at least
___*___ percent in any thirty day period shall give XXXxx.xxx a right to
terminate this Agreement upon thirty days written notice. Performance Standards
to meet are as follows: the Tool shall be up,available, and fully functioning
and updating for access by users who access the Industry Watch Product from the
XXXxx.xxx web site. Not included in the above Performance Standards are (x)
scheduled outages for maintenance provided that the following terms are met (i)
YellowBrix provides at least twenty-four (24) hours prior written notice to
XXXxx.xxx detailing the reason for the outage and estimated length of outage;
(ii) YellowBrix receives written confirmation from XXXxx.xxx that notification
of outage was received; (iii) such outages are not scheduled to occur during the
business day defined as 8 am to 8 pm Eastern Time Monday through Friday; (y)
outages that are caused by third parties other than third parties who have a
contract with YellowBrix, including without limitation, Internet service
providers and Web hosting companies; and (z) the result of a Force Majeure
event.
(h) YellowBrix reserves the right to add to, modify or change
(collectively, "Change") the mix of content providers in the Industry Watch
Product from time to time, provided, however, that these Changes do not
materially alter the look and feel or utility of the Industry Watch Product.
YellowBrix further provides that these Changes will not eliminate the categories
represented within the Industry Watch Product or materially diminish the scope
and volume of coverage within each category without XXXxx.xxx's prior written
consent, which XXXxx.xxx may provide or withhold at its sole discretion.
3. YellowBrix License Grant.
(a) Subject to the terms and conditions of this Agreement,
YellowBrix hereby grants to XXXxx.xxx and XXXxx.xxx accepts a non-transferable,
non-exclusive license to engage in YellowBrix Authorized Use. Notwithstanding
the foregoing, in the event XXXxx.xxx or its parent company is sold or merged,
the rights and obligations of XXXxx.xxx pursuant to this Agreement shall
transfer to such new XXXxx.xxx division
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within such new combined entity. YellowBrix Authorized Use is the right
todisplay, use and store the Industry Watch Product on the XXXxx.xxx website and
to link to the Industry Watch product as hosted and served by YellowBrix and to
engage in those uses described in Section 7(d) and (e) hereof. Without limiting
the generality of the foregoing, YellowBrix Authorized Use includes the right to
publicly or privately transmit, display and provide access to the Industry Watch
Product from the XXXxx.xxx web site by any means known during the Term.
Authorized Use does not include the right to alter, publish, transfer, deep link
to, edit, frame, redistribute or create derivative works with, to or involving
the Industry Watch Product.
(b) Subject to Section 5 below, the parties understand and agree
that the exercise of YellowBrix Authorized Use necessarily requires the limited
right to store, reproduce, use and display the trademarks, servicemarks,
tradenames, logos and other designation properties of YellowBrix incorporated in
the Industry Watch Product and such right is within YellowBrix Authorized Use.
(c) Other than promotional activities set forth in Section 7 of
this Agreement, the parties further understand and agree that XXXxx.xxx is not
granted any rights to redistribute the Industry Watch Product separate from the
XXXxx.xxx web site.
(d) Associated Press text, photo, graphic, audio and/or video
material provided as part of the Service ("AP Material") shall not be published,
broadcast, rewritten for broadcast or publication or redistributed directly or
indirectly in any medium, unless XXXxx.xxx has the rights to do so independent
of this Agreement. Neither the AP Material nor any portion thereof may be stored
in a computer except as part of the Industry Watch Product or for personal and
non-commercial use, unless XXXxx.xxx has rights to do so independent of this
Agreement. This Agreement shall not create any liability by AP to XXXxx.xxx or
to any 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 damages arising from any of the foregoing or occasioned thereby. Corporate,
governmental and institutional customers may use portions of the AP Material for
internal printed communications and memoranda. YellowBrix shall consistently
designate all AP Material and discrete parts thereof (including but not limited
to headlines) as such via the technical means by which such material is provided
to XXXxx.xxx.
4. XXXxx.xxx License Grant.
(a) Subject to the terms and conditions of this Agreement,
XXXxx.xxx hereby grants to YellowBrix and YellowBrix accepts a non-exclusive
worldwide license to engage in XXXxx.xxx Authorized Use during the Term.
XXXxx.xxx Authorized Use is the right to download, reproduce, store and use in
the Industry Watch Product stories selected and provided by XXXxx.xxx which are
not contained in the standard Industry Watch Product (the "XXXxx.xxx Content").
XXXxx.xxx Authorized Use includes the right to reproduce, distribute, transmit,
and provide network access to the XXXxx.xxx
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Content solely as incorporated in the Industry Watch Product in the manner
expressly contemplated hereunder.
(b) Subject to Section 5 below, the parties understand and agree
that XXXxx.xxx Authorized Use necessarily requires the limited right to store,
reproduce, use and display the trademarks, servicemarks, tradenames, logos and
other approved designation properties of XXXxx.xxx incorporated in the Industry
Watch Product and such right is within XXXxx.xxx Authorized Use.
(c) For any XXXxx.xxx Content delivered by YellowBrix as part of
the Industry Watch Product hereunder, YellowBrix shall display prominent
attribution to XXXxx.xxx and any reasonable copyright notice designated and
provided by XXXxx.xxx with the XXXxx.xxx Content. YellowBrix is not authorized
to display any XXXxx.xxx Content on any Other Version of the "Industrywatch"
product and may only display XXXxx.xxx Content on the Industry Watch Product.
(d) Subject to YellowBrix's continued ownership of the Industry
Watch Product (specifically excluding any content, trademarks, servicemarks, or
other elements from the XXXxx.xxx web site), as between XXXxx.xxx and
YellowBrix, the XXXxx.xxx trademarks, servicemarks, logos and design elements
for the Industry Watch Product, the XXXxx.xxx web site and all elements thereof
(specifically including any XXXxx.xxx Content included in the database of the
Industry Watch Product) are and shall remain the sole and exclusive property of
XXXxx.xxx and no rights thereto are granted or implied by this Agreement.
5. Logo License.
Each party hereby grants to the other a non-exclusive license to use
the tradenames, trademarks, servicemarks, logos and other approved designations
(collectively, "Marks") of the other party only in connection with the provision
of the Industry Watch Product and in accordance with the terms of this
Agreement, on the condition that each party's use of the Marks is in accordance
with the other party's policies in effect from time to time, including but not
limited to trademark usage and cooperative advertising policies, and is first
approved by the other party. Each party acknowledges the other party's ownership
of its Marks and agrees that it will do nothing inconsistent with such ownership
and that all uses of the other party's Marks hereunder shall inure to the
benefit of and be on behalf of the owner. Each party agrees that nothing in this
Agreement shall give it any right, title or interest in the other party's Marks
other than the limited license to use the Marks solely in accordance with this
Agreement and as approved in advance by the owner. Each party agrees that it
will not attack the title of the other party to its Marks.
6. Advertising and Fees.
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(a) Right to Sell Advertising. CNNfn shall have the sole right
and responsibility for the sale of all advertising and/or sponsorships on the
Industry Watch Product and collection of all such revenues.
(b) Fees Payable by YellowBrix. YellowBrix shall pay to XXXxx.xxx
a license fee for branding and promotion equivalent to __*__.
(c) Fees Payable by XXXxx.xxx. XXXxx.xxx shall pay to YellowBrix
__*___of all Net Advertising Revenues per year. XXXxx.xxx will remit the net
difference between the ad share owed YellowBrix and the License Fee owed
XXXxx.xxx by Yellowbrix on a monthly basis within forty-five (45) days of the
close of each month.
(d) Net Advertising Revenue. "Net Advertising Revenues" shall be
defined as gross advertising and sponsorship revenues derived from the sale of
advertising and sponsorships on the Industry Watch Product, including the value
of any barter advertising or sponsorship as presented on the Report (as defined
in section 6f below), less third-party agency commissions not to exceed
__*__without prior approval of YellowBrix.
(e) Usage Data. YellowBrix agrees to implement or retain software
acceptable to both parties on the Industry Watch Product to count page views and
collect other relevant usage data and to generate monthly usage reports and
provide the same to XXXxx.xxx within ten (10) days of the close of each month.
Such reports shall be deemed proprietary and Confidential Information (as
defined herein) to XXXxx.xxx and may not be used by YellowBrix or disclosed to
any third party without the prior written consent of XXXxx.xxx. In no event
shall any personal data be collected by YellowBrix without XXXxx.xxx's prior
written consent and then only to the extent compliant with XXXxx.xxx's privacy
policies. YellowBrix may place "cookies" on individual users accessing the
Industry Watch Product only with the prior written consent of XXXxx.xxx and only
if and to the extent not duplicative with XXXxx.xxx's cookie practice and solely
with the understanding that the resulting data shall be used solely for
informational purposes relevant to the delivery of content on the Industry Watch
Product and not for any other purpose such as solicitation, e-mail, etc.
XXXxx.xxx and YellowBrix shall share any and all cookie data relevant to the
Industry Watch Product. It is anticipated that advertising for the Industry
Watch Product will be hosted by XXXxx.xxx from its server for presentation on
the Industry Watch Product by any technical means deemed appropriate by
XXXxx.xxx (e.g. framing or other technical capabilities).
(f) Reports and Audit Rights. All monthly payments made by
XXXxx.xxx to YellowBrix shall contain a report with information such as ad
commissions paid/payable, advertising and sponsorship revenue and barter amounts
booked and payable,, methods of calculation and any other information applicable
to the Net Advertising Revenues collected pursuant to this Agreement ("Report").
YellowBrix shall have the right, no more frequently than one time per year
during the Term, at its sole cost and expense, to examine and audit, during
normal business hours at CNN offices and upon fifteen (15) days prior written
notice, the relevant records of XXXxx.xxx relating to the calculation of the Net
Advertising Revenues. In the event that such an inspection indicates that the
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amount of Net Ad Revenues reported to YellowBrix by XXXxx.xxx is inaccurate,
XXXxx.xxx shall have fifteen (15) days from receipt of notice from YellowBrix of
such inaccuracy to (i) remit to, or request from, YellowBrix, any amounts due as
a result of the inaccurate reporting, or (ii) perform an inspection, solely at
XXXxx.xxx's own expense, that concludes whether or not the findings of
YellowBrix's inspection were correct and communicate to YellowBrix the
discrepancies between the YellowBrix inspection and the XXXxx.xxx inspection.
The parties agree to use reasonable efforts to settle such discrepancy within
fifteen (15) days of conclusion of the XXXxx.xxx inspection (the "Settlement
Period"). In the event parties are unable to settle such discrepancy within the
Settlement Period, the parties agree to submit the discrepancy to final audit
(the "Final Audit") by a "Big 5" accounting firm that has never performed and is
not at the time of such discrepancy performing professional services for
YellowBrix or XXXxx.xxx, and in the event such a "Big 5" accounting firm is not
available under these terms, the parties may mutually agree upon a "Big 5"
accounting firm. YellowBrix and XXXxx.xxx shall equally share the costs arising
from or related to the Final Audit. If YellowBrix uncovers a deficiency in
payments by XXXxx.xxx, (i) XXXxx.xxx shall promptly reimburse YellowBrix the
amount of such underpayment plus interest at the rate of one (1) percent per
month from the original due date; (ii) XXXxx.xxx shall reimburse YellowBrix for
its audit expense; and (iii) such audit shall not count toward the limitation on
the number of audits described in this Section 6(e).
7. Promotional Efforts.
(a) XXXxx.xxx will promote the Industry Watch Product on its web
site by delivering __*__ prominent run-of-site banner impressions in the first
twelve (12) months of this Agreement and __*__ prominent run-of-site banner
impressions in the second twelve (12) months of this Agreement. Such banners
will link to the XXXxx.xxx Industry Watch main page.
(b) Within 30 days of the date on which this Agreement is executed
by the last party hereto, XXXxx.xxx will create a new promotional banner for the
Industry Watch Product with "powered by YellowBrix" branding linked back to the
XXXxx.xxx Industry Watch site, with such banner subject to the reasonable
approval of YellowBrix.
(c) XXXxx.xxx will, within ninety (90) days following YellowBrix's
provision to XXXxx.xxx of the feed described in this paragraph, create an e-mail
product ("CNNfn Industry Brief") with Industry Watch headline links linking back
to the XXXxx.xxx Industry Watch section. This e-mail product will be distributed
on XXXxx.xxx with XXXxx.xxx collecting and owning all e-mail addresses and
related user data. XXXxx.xxx will sell all advertising and share ad revenues on
the e-mail product per the ad share terms in Section 6 of this Agreement.
Frequency of the e-mail product will be determined in XXXxx.xxx's sole
discretion. YellowBrix will supply an API document with headline links and other
standard technical support as needed to create and maintain this e-mail product.
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(d) XXXxx.xxx retains the option to redistribute Industry Watch
headline links on the CNN Mobile product, the XXXxx.xxx AvantGo service and/or
similar services (collectively, the "Mobile Services"). YellowBrix will supply a
feed of Industry Watch headline links and other standard technical support as
needed to create and maintain XXXxx.xxx redistribution of this content on these
services. Any and all revenue generated in connection with the Mobile Services
shall not be considered part of the Net Advertising Revenue.
(e) XXXxx.xxx retains the option to redistribute Industry Watch
headline links to pre-approved third parties (the "Third Party Services").
YellowBrix will supply a feed of Industry Watch headline links and other
standard technical support as needed to create and maintain XXXxx.xxx
redistribution of these links to third parties. Any and all revenue generated in
connection with the Third Party Services,, shall not be considered part of the
Net Advertising Revenue.
(f) Yellowbrix retains the option to redistribute XXXxx.xxx
Industry Watch headline links to InfoUSA with all links linking back to the
XXXxx.xxx Industry Watch page.
8. Traffic Credit
XXXxx.xxx shall retain credit for all page and related counts
attributed by Media Metrix or similar entities for the XXXxx.xxx Industry Watch
Product pages served by YellowBrix, and YellowBrix hereby agrees to reasonably
assist XXXxx.xxx in being credited with such page and related counts.
9. YellowBrix Contextual Commerce Solution.
Should any or all web sites owned or operated by or at the direction of
CNN choose to enter into an arrangement with YellowBrix to utilize any
YellowBrix e-commerce products, YellowBrix will waive any and all set up fees
related thereto for commerce product solutions and installations that do not
result in more than __*__ of work per site.
10. Taxes.
(a) Except as otherwise expressly provided in this Agreement, each
party agrees to pay the full amount of any and all taxes, levies or charges
(including without limitation, any penalties or interest thereon) howsoever
denominated, imposed or levied against it or the other party by any law, rule or
regulation now in effect or hereafter enacted including without limitation,
sales, use, property and excise or other similar taxes, licenses, import permits
or fees, and customs duties relating to or imposed upon the Industry Watch
Product to the extent related to such party's contribution to the same if levied
in such a manner. If levied against the Industry Watch Product as a whole, it is
the intent of the parties to share any such tax liability. Notwithstanding the
foregoing, each
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party shall be responsible for any income taxes or similar charges imposed on
amounts received by such party under this Agreement.
11. Publicity.
Any and all publicity, press releases or other public announcements
related to this Agreement, the relationship established hereby or other matters
the subject of this Agreement shall be subject to the prior written approval of
both parties as to content and timing. Without limiting the generality of the
foregoing, neither party shall have the right to use the other party's
trademarks, servicemarks, tradenames or logos in any such materials without the
prior written approval of the owner as to the specific use. Notwithstanding the
foregoing, each party shall have the right to disclose and describe this
Agreement as required by applicable securities laws.
12. Representations and Warranties.
(a) By XXXxx.xxx. XXXxx.xxx represents and warrants that (i) it
has full power to enter into this Agreement and to carry out its obligations
hereunder; and (ii) the XXXxx.xxx Marks licensed hereunder and YellowBrix's use
of the same in accordance with this Agreement will not infringe upon,
misappropriate or violate the rights of any third party.
(b) By YellowBrix. YellowBrix represents and warrants that (i)
YellowBrix owns and controls the copyright and other intellectual property
rights to or has licensing rights sufficient to grant XXXxx.xxx the rights
hereunder to the Industry Watch Product (excluding XXXxx.xxx Content and
branding elements, but including without limitation all technology, databases
and content supplied by YellowBrix hereunder) and the YellowBrix Marks and that
any use of the same by XXXxx.xxx and its licensees, distributors and end users
will not infringe upon, misappropriate or violate any rights of any third party;
(ii) YellowBrix has and will maintain throughout the Term sufficient rights to
the "Industrywatch" product, the Industry Watch Product, and the YellowBrix
Marks to grant to XXXxx.xxx the rights set forth in this Agreement, and
XXXxx.xxx's exercise of any rights hereunder will not constitute an infringement
or misappropriation of any rights of any third party; (iii) YellowBrix has full
power and authority to enter into this Agreement, to carry out its obligations
hereunder and to grant the rights herein granted to XXXxx.xxx; (iv) YellowBrix
shall not make any representations to any third party or take any actions
inconsistent with the terms of this Agreement; and (v) the services provided
hereunder shall be performed in a good and workmanlike manner that is
consistent, at a minimum, with generally accepted industry standards.
13. Indemnification.
(a) By XXXxx.xxx. XXXxx.xxx agrees to indemnify, defend and hold
YellowBrix, its affiliates, officers, directors, consultants and agents harmless
from and against all losses, damages, liabilities, costs, charges and expenses,
including reasonable attorneys' fees relating to (i) a claim that the
reproduction, display or transmission of any
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XXXxx.xxx Content as provided by XXXxx.xxx and in the manner authorized
hereunder infringes the rights of any third parties; (ii) a claim that the use
of the XXXxx.xxx Marks as supplied by XXXxx.xxx and used in accordance with the
terms of this Agreement and/or XXXxx.xxx's instructions applicable thereto
infringes, misappropriates or violates the intellectual property rights of any
third party; or (iii) any breach or alleged breach on the part of XXXxx.xxx of
the representations and warranties provided by it in this Agreement.
(b) By YellowBrix. YellowBrix agrees to indemnify, defend and hold
XXXxx.xxx, its affiliates, officers, directors, consultants and agents harmless
from and against all losses, damages, liabilities, costs, charges and expenses,
including reasonable attorneys' fees relating to (i) a claim that the use of the
Industry Watch Product (specifically including, without limitation, all
databases and content other than that provided by XXXxx.xxx made available
through the search technology) or the YellowBrix Marks as supplied by YellowBrix
and used in accordance with the terms of this Agreement infringes or
misappropriates the intellectual property rights, or otherwise violates the
rights of, any third party, and (ii) any breach or alleged breach on the part of
YellowBrix of the representations and warranties provided by it in this
Agreement.
(c) Indemnification Procedures. The indemnifying party shall have
no obligation under this Section as to any action, proceeding, or claim, unless
(a) the indemnified party promptly notifies the indemnifying party of its
receipt of any claim, suit or other demand naming it as a defendant or asserting
any liability for which it would be indemnified under this Agreement; (b) the
indemnifying party shall, at its option, have sole control of its defense and
settlement; and (c) such indemnified party shall upon request of the
indemnifying party, cooperate in all reasonable respects, at the indemnifying
party's cost and expense, with the indemnifying party and such attorneys in the
investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom; provided, however, that the indemnified party may, at its own
cost, participate in such investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom. No settlement of a claim,
investigation, suit or other proceeding that involves a remedy other than the
payment of money without waiver of or prejudice to any rights by the
indemnifying party shall be entered into without the consent of the indemnified
party, which consent will not be unreasonably withheld.
(d) Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER OR TO ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUE, ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICE OR ANY INTELLECTUAL PROPERTY
UTILIZED HEREUNDER. IN NO EVENT SHALL YELLOWBRIX BE LIABLE TO XXXXX.XXX FOR ANY
CONTENT PROVIDED BY THE ASSOCIATED PRESS TO WHICH XXXXX.XXX HAS THE RIGHT, BY
VIRTUE OF AN AGREEMENT BETWEEN XXXXX.XXX AND THE ASSOCIATED PRESS, TO PUBLISH AS
PERMITTED UNDER THIS AGREEMENT. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS
SECTION ARE A BARGAINED FOR EXCHANGE IN
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CONSIDERATION OF THE FEES FOR THE SERVICE AND OTHER TERMS RELATING TO THE
SERVICE.
14. Termination.
(a) XXXxx.xxx may, upon at least sixty (60) days prior notice,
terminate this Agreement _____*_______.
(b) If the Industry Watch Product fails to meet the technical or
content standards outlined in this Agreement, in any material adverse way, and
YellowBrix fails to correct such deficiency within a commercially reasonable
period of time, but in no event later than ninety (90) days after written notice
of the same, XXXxx.xxx's sole remedy for such failures shall be termination of
this Agreement. Furthermore, in the event either party is in material breach or
material default under this Agreement, the non-breaching party may terminate
this Agreement upon thirty (30) days' written notice if the breaching party
fails to cure the breach within such time period. Upon any termination,
YellowBrix shall have no obligation to provide the Industry Watch Product to
XXXxx.xxx and YellowBrix shall discontinue any and all use of the XXXxx.xxx
Content and XXXxx.xxx logos, stories and/or other elements in the Industry Watch
Product and remove such Product from its server.
15. Confidentiality.
Each party acknowledges that it may have access to certain trade
secrets and other non-public confidential information of the other party during
and in connection with its performance hereunder ("Confidential Information"),
and hereby agrees not to disclose any Confidential Information to any third
party and not to use any such Confidential Information for any purpose other
than in connection with its performance pursuant to this Agreement. All such
Confidential Information and trade secrets are and shall remain the exclusive
property of the disclosing party and no license shall be granted or implied with
respect to such Confidential Information or trade secrets by reason of the other
party's access to the same in connection with its performance hereunder. The
foregoing agreement by the parties hereto of non-use and nondisclosure shall
survive any termination or expiration of this Agreement and shall continue in
full force and effect for a period of three (3) years from the date of this
Agreement. Notwithstanding the foregoing, this confidentiality provision shall
not apply to disclosures required by applicable securities laws.
16. Disclaimer.
EXCEPT AS OTHERWISE SPECIFIED HEREIN, (i) NEITHER PARTY MAKES ANY, AND
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS NOT MADE ANY, AND HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE; AND (ii) IN NO EVENT SHALL
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EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
EXEMPLARY DAMAGES OF ANY NATURE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
17. Costs.
Except as expressly provided herein, each party will bear its
respective costs incurred in the performance of this Agreement and shall not be
entitled to any reimbursement therefor from the other party.
18. Notices.
All notices to the parties shall be given in writing and sent to the
addresses below.
If to XXXxx.xxx:
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Cable News Network LP, LLLP
Xxx XXX Xxxxxx
Xxx 000000
Xxxxxxx, XX 00000-0000
Attention: General Counsel
If to YellowBrix:
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
All notices shall be deemed received when delivered personally, by
express courier service (i.e., Federal Express, DHL, etc.) or by faxing to the
addresses set forth above, assuming the sender retains some confirmation of
delivery. All notices mailed through the U.S. mail, postage pre-paid, first
class, to the addresses set forth above shall be deemed received the third
business day after deposit in the U.S. mail.
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19. Assignment.
Neither party shall have the right to sell, assign, transfer or
hypothecate (all hereinafter referred to as "assign" or "assignment") this
Agreement, or delegate any of the parties' obligations hereunder, voluntarily or
by operation of law (excluding a merger or sale of substantially all of its
assets), without the prior written consent of the other party (which either
party may give or withhold in its sole discretion). Any such purported
assignment or deletion without such prior written consent shall be null and void
and have no force or effect. Notwithstanding the foregoing, in the event
XXXxx.xxx or its parent company is sold or merged, the rights and obligations of
XXXxx.xxx pursuant to this Agreement shall transfer to such new XXXxx.xxx
division within such new combined entity.
20. Relationship.
YellowBrix's relationship to XXXxx.xxx shall be that of an independent
contractor. Nothing herein shall create any association, partnership, joint
venture or agency relationship between YellowBrix and XXXxx.xxx. Without
limiting the generality of the foregoing, it is expressly understood and agreed
that each party shall have no authority whatsoever to make any representations
or commitments to or enter into any agreements with any third party on behalf of
the other party.
21. Miscellaneous Provisions.
(a) Severability. In the event any provision of this Agreement
shall be found to be contrary to any law or regulation of any federal, state or
municipal administrative agency or body, the other provisions of this Agreement
shall not be affected thereby but shall notwithstanding continue in full force
and effect.
(b) Non-Waiver. No waiver by either party hereto of any breach or
default by the other party shall be construed to be a waiver of any other breach
or default by such other party. Resort to any remedies referred to herein shall
not be construed as a waiver of any other rights and remedies to which either
party is entitled under this Agreement or otherwise, nor shall an election to
terminate be deemed an election of remedies or a waiver of any claim for damages
or otherwise.
(c) Entire Agreement. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof and
all prior understandings, whether oral or written, have been merged herein and
are superceded hereby. This Agreement may not be altered or modified except in
writing signed by both parties hereto. Without limiting the foregoing, it is
specifically agreed that no terms contained on any payment documentation
(regardless of origin) such as invoices, purchase orders, etc. shall in any way
effect the terms of this Agreement.
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(d) Governing Law. Regardless of the place of execution or
performance, this Agreement shall be governed, construed and enforced in
accordance with the laws of the State of Georgia applicable to agreements
entered into and to be wholly performed therein, and YellowBrix hereby consents
and agrees to the exclusive jurisdiction of the courts of the State of Georgia
and United States courts located in the State of Georgia in connection with any
suit, action or proceeding brought by YellowBrix arising out of or related in
any manner to this Agreement. YellowBrix agrees that the service of process by
mail shall be effective service of same and that such service shall have the
same effect as personal service within the State of Georgia and result in
jurisdiction over YellowBrix in the appropriate forum in the State of Georgia
(e) Third Party Beneficiaries. This Agreement is not for the
benefit of any third party and shall not be deemed to give any right or remedy
to any third party whether referred to herein or not.
(f) Headings. Paragraph headings as used in this Agreement are for
convenience only and are not a part hereof, and shall not be used in any manner
to interpret or otherwise modify any provision of this Agreement.
(g) Survival. All representations, warranties, indemnities and
payment obligations shall survive the execution, delivery, suspension,
expiration and/or termination of this Agreement or any provision hereof.
(h) Force Majeure. Neither party shall be in default or otherwise
liable for any delay in or failure of its performance under this Agreement if
such delay or failure arises by any reason beyond its reasonable control,
including any act of God, any acts of war, elements, fires, or any act or
failure to act by the other party or such other party's employees, agents or
contractors.
XXXXX.XXX, A DIVISION OF YELLOWBRIX, INC.
CABLE NEWS NETWORK LP, LLLP
By: By:
---------------------------------- ----=----------------------------
Print Name: Print Name:
-------------------------- -------------------------
Its: Its:
--------------------------------- --------------------------------
Date: Date:
-------------------------------- -------------------------------
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EXHIBIT A
IndustryWatch:
A co-branded service that consolidates news and information from thousands of
published sources. Customers can utilize up to 150 topic categories which are
either customer created (for an additional fee) or selected from our existing
topic categories. YellowBrix hosts the content. This service includes
IntelliClix executive summaries, stock information, horoscope, weather, business
intelligence channels, MultiLinks, keyword search and Internet search.
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