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EXHIBIT 10.6
MARKETING AND LICENSE AGREEMENT
This MARKETING AND LICENSE AGREEMENT ("Agreement") is made and entered into
effective as of September 30, 1999, between XXXXXXXXXXXX.XXX, INC., a Colorado
corporation having its principal business office at 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxx 00000 ("FRT"), and Telescan, Inc., a Delaware
corporation having its principal place of business at 0000 Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("TSCN" and, collectively with FRT, the
"Parties").
RECITALS
A. WHEREAS, the Parties desire to enter into this Agreement to
memorialize their commitments to provide marketing and licensing services to
each other;
B. WHEREAS, TSCN will license its ProSearch application and provide
other XxxxXxxxxxXxxx.xxx content to FRT and the Parties will co-market
subscriptions to TSCN subscription services;
C. WHEREAS, FRT will license its BullSession application to TSCN and
the Parties will co-market subscriptions to the TSCN-BullSession portfolio
management tool;
D. WHEREAS, the Parties will co-market TSCN's INVESTools subscription
content on FRT's Web sites and to FRT's customers;
E. WHEREAS, TSCN will be the exclusive agent for the E-mail marketing
program of FRT and the Parties will share ad revenues from such program.
F. WHEREAS, the Parties will cooperate to jointly develop a new wealth
management tool combining BullSession and ProSearch enhanced features;
G. WHEREAS, the Parties will cooperate to jointly explore relationships
and alliances in several areas, including FRT providing real-time quotes to TSCN
Web sites, the Parties selling each other's ad inventory, and certain other
contract service opportunities;
H. WHEREAS, as partial consideration to enter this Agreement, the
Parties will also contribute to each other certain rights, securities and other
assets, including ad impression inventory; and
I. WHEREAS, the Parties intend to enter into this binding contractual
arrangement, the Parties intend to amend and restate this Agreement once
additional details about their relationship are determined.
NOW, THEREFORE, in consideration of the recitals, premises and mutual
covenants contained in this Agreement, the parties agree as follows:
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Agreement
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1. ProSearch License
Commitment. TSCN hereby grants FRT a worldwide, non-exclusive, non-
transferable license, subject to the terms and conditions of this Agreement, to
receive and display the TSCN ProSearch feature on Internet Web sites owned by
FRT and operated in its name ("FRT's Web sites"). TSCN will offer certain
mutually agreed upon ProSearch content, "ProSearch Lite", for free distribution
to FRT through co-branded pages via FRT's Web sites, FRT will market and promote
the subscription-based co-branded ProSearch tools and content on FRT's Web sites
including the co-branded pages and will receive a share of subscription revenues
generated from such activities as set forth below. Except as set forth herein,
no other copying, dissemination, publication, display or distribution in any
form of TSCN's content, in whole or in part, by FRT is permitted without the
prior written consent of TSCN.
TSCN Responsibilities. TSCN shall be obligated to fulfill certain
responsibilities pursuant to the ProSearch license and co-marketing agreement:
(a) Develop and deliver the free content to the FRT-ProSearch co-
branded page in accordance with co-branded page specifications to
be mutually agreed upon by both Parties. Free content shall
include pre-programmed searches, charts, company snapshots,
industry group requests, financial statistics, quarterly earnings
and technical data.
(b) Provide Web-hosting services for the co-branded page,
(c) Develop and deliver marketing campaigns, including banner ads and
price promotions, to market the ProSearch subscription products
on the FRT Web sites, including FRT-ProSearch co-branded page.
TSCN may use its FRT Impression Allocation to advertise and
promote the TSCN subscription services.
(d) Maintain commercially reasonable performance levels for the
ProSearch subscription services, including Web site and on-line
site performance, customer support and billing/administration.
(e) Provide monthly reporting regarding subscription activity,
including subscription revenue, activations, deactivations, and
subscriber traffic metrics for the ProSearch subscribers
generated by this co-marketing agreement.
FRT Responsibilities. FRT shall have an obligation to fulfill certain
responsibilities to the ProSearch license and co-marketing agreement:
(a) Develop and the FRT-ProSearch co-branded page, including
designing the content design and layout in accordance with co-
branded page specifications to be mutually agreed upon by both
Parties.
(b) Determine the execution of the marketing programs on the co-
branded page and actively promote TSCN's subscription service
throughout FRT's Web sites as well as through other means, as
mutually agreed to by both Parties, with an objective to maximize
"up-selling" from the TSCN free content to the ProSearch
subscription services.
License Fee. Upon signing the Agreement, FRT will pay TSCN a non-
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refundable license fee equal to $650,000. FRT will pay such fee in cash upon the
execution of this Agreement.
Subscription Revenue Sharing. In consideration of promoting the
ProSearch subscription services and in delivering subscribers, TSCN shall pay
FRT 50% of Net Revenues from subscriptions attributed to marketing activity on
the FRT Web sites, including the FRT-ProSearch co-branded pages. Said payments
shall be remitted to FRT by the end of each calendar month for revenues received
during the preceding calendar month. In determining Net Revenues (i.e., Gross
revenues less Direct Costs), Telescan shall be entitled to deduct direct costs
("Direct Costs") related to the operation of TSCN ProSearch and the co-branded
pages, including data center operations, data feed and programming costs, and
exchange fees (if applicable). Telescan shall permit "open-book" accounting and
verification of such Direct Costs.
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2. BullSession License
Commitment. FRT hereby grants TSCN a worldwide, non-exclusive, non-
transferable license, subject to the terms and conditions of this Agreement, to
receive and display the BullSession streaming, real-time quote and portfolio
management tool from FRT (the "TSCN-BullSession") on Internet Web sites ("TSCN
Proprietary Sites") owned by TSCN and operated in its name and on Internet Web
sites ("TSCN Customer Sites") hosted by Telescan for its private label and
co-branded customers]. FRT will set-up, develop and deliver the co-branded or
private-label TSCN-Bull Session Tool with certain features specified by TSCN, as
mutually agreed to by both Parties. TSCN will market and promote
TSCN-BullSession Tool on the TSCN Proprietary Sites and subject to the agreement
of its customers, on TSCN Customer Sites, and will share subscription revenue
with FRT as set forth below. Except as set forth herein, no other copying,
dissemination, publication, display or distribution in any form of FRT's
BullSession application, in whole or in part, by TSCN is permitted without the
prior written consent of FRT. In the event that TSCN terminates this Agreement
pursuant to paragraphs 10 (e) (ii) or (iii), TSCN shall have the right for the
remaining period of the Initial Term, and for such additional months as any
TSCN-BullSession subscriber who is active and paid-in-full at the conclusion of
the Initial Term continues as an active and paid-in-full subscriber for
consecutive monthly periods, TSCN shall have the right to assume Web hosting and
other operations as necessary to continue the normal operation and delivery of
the TSCN-BullSession service; provided, that after assumption of such
operations, TSCN will be obligated to pay to FRT the share of Net Revenue
provided for in "Subscription Revenue Sharing" below, after deduction of the
Direct Costs incurred by Telescan as provided below.
FRT Responsibilities. FRT will have an obligation to fulfill certain
responsibilities to the TSCN-Bull Session license and co-marketing agreement:
(a) Develop and deliver the TSCN-Bull Session Tool with certain
modifications and features as reasonably specified by TSCN and as
mutually agreed to by both Parties.
(b) Provide Web hosting for the TSCN-Bull Session tool and technical
support to TSCN.
(c) Maintain commercially reasonable performance levels for the TSCN-
BullSession subscription services, including Web site and on-line site
performance.
(d) Provide monthly reporting regarding subscriber activity, including
subscriber traffic metrics for the subscribers generated by this co-
marketing agreement.
TSCN Responsibilities. TSCN will have an obligation to fulfill certain
responsibilities to the TSCN-Bull Session license and co-marketing agreement:
(a) Cooperate in the joint development/modification of the TSCN-
BullSession tool as mutually agreed to by both Parties.
(b) Develop and execute marketing programs, and actively promote the TSCN-
BullSession subscription service throughout the TSCN Proprietary Sites
and, subject to the agreement of Telescan's customers, on TSCN Customer
Sites as well as through other means, including outbound e-mail to its
subscribers and ads and promotions on the Telescan Proprietary Sites
and subject to the agreement of its Customers, on Telescan Customer
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Sites, as mutually agreed to by both Parties, with an objective to
maximize subscription revenues to TSCN-BullSession.
(c) Provide customer support, billing, collection and other subscriber-
related functions.
(d) Provide monthly reporting regarding subscription activity, including
subscription revenue, activations, deactivations, and subscriber
traffic metrics for the subscribers generated by this co-marketing
agreement.
Subscription Revenue Sharing. In consideration of providing the
TSCN-BullSession Tool and certain Web-hosting and related services, TSCN shall
pay FRT 35% of monthly Net Revenues on TSCN-BullSession subscriptions for the
first 3000 subscribers, and 25% of monthly Net Revenues on subscriptions derived
from subscribers in excess of 3000. In determining Net Revenues, FRT shall be
entitled to deduct Direct Costs from revenues related to the operation of
TSCN-BullSession, including
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data center operations, data feed and programming costs, and exchange fees (if
applicable). FRT shall permit "open-book" accounting and verification of such
Direct Costs, and such FRT Direct Costs will not exceed $9 per month per
subscriber. Said payments shall be remitted to FRT by the end of each calendar
month for revenues received during the preceding calendar month.
3. INVESTools
Commitment. TSCN will provide FRT with free mutually agreed upon
"teaser" content to be displayed on FRT's Web sites, including on a co-branded
FRT-INVESTools page. FRT will develop and execute an "up-selling" marketing
program, as mutually agreed to by both Parties, with an objective to generate
new subscriptions for INVESTools. TSCN may use its FRT Impression Allocation to
advertise and promote the INVESTools subscription service. An "impression" is
each advertisement or promotion served on a Web page.
Subscription Revenue Sharing. TSCN will pay FRT 20% of Gross Revenues
from subscriptions attributed to marketing activity on the FRT Web sites and to
the FRT customers, including any FRT-INVESTools co-branded page. Said payments
shall be remitted to FRT by the end of each calendar month for revenues received
during the preceding calendar month.
4. Ad Sales of Parties Ad Inventory
Commitment. The Parties will have a non-exclusive right to represent
each other in the sales of banner ads and sponsorships. Each Party will provide
a periodic allocation of ad inventory available for the other Party to sell. In
order to minimize conflicts between the other Party and a Party's in-house ad
sales department and its third Party ad sales rep firm, if applicable, the other
Party will cooperate and coordinate with the Party in contacts with potential
advertisers and the proposed terms of advertising campaigns. Each party must
approve each specific ad sold by the other party, such approval not to be
unreasonably withheld. Each Party will have responsibility for ad serving,
traffic, reporting and credit billing-collections functions (collectively "Ad
Administration") for ad sales of its ad impression inventory.
Ad Revenue Sharing. The Party owning the ad inventory will pay the
selling Party 30% of the Net Revenues from advertising campaigns which are sold
by the selling Party. Payment shall be made by the end of each calendar month
for revenues received during the preceding calendar month. In determining Net
Revenues, the Party responsible for Ad Administration will deduct Direct Costs
associated with Ad Administration which Direct Costs shall including data center
operations, data feed, programming costs, and ad agency fees. The Ad
Administration Party shall permit "open-book" accounting and verification of
such Ad Administration Direct Costs, and such Direct Costs will not exceed $.25
per 1000 impressions served.
5. E-mail Customer-Base Management
Commitment. TSCN will have the exclusive agency or third party right to
manage the e-mail relationship with FRT's subscribers and customers. TSCN will
determine the scope and elements of the e-mail marketing program. FRT will have
the right, in its sole discretion, to limit or reject any e-mail communication
with its subscribers and to manage on an in-house basis the e-mail relationship
with its subscribers and customers TSCN may not access, utilize or otherwise
exploit the FRT subscriber database outside of its
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e-mail management services to FRT. TSCN will be responsible for selling and
managing ads, links and sponsorships on the e-mail communications that it
manages.
Ad Revenue Sharing and E-mail Advance. Upon the execution of this
Agreement, TSCN will pay FRT a $500,000 cash advance (the "E-mail Advance")
against the FRT E-mail Fees to be paid by TSCN to FRT TSCN will pay FRT 50% of
the Gross Revenues from marketing campaigns, including sponsorships and
advertisements, that are sold by TSCN on the e-mail communications (the "FRT
E-mail Fees"). Payment shall be made by the end of each calendar month for
revenues received during the preceding calendar month; provided that any FRT
E-mail Fees payable to FRT shall be
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retained by TSCN and deducted from the E-mail Advance until the outstanding
balance of the E-mail Advance has been reduced to zero.
6. FRT Impression Allocation
As separate and distinct obligation unrelated to the Ad Sales of
Parties Ad Inventory, FRT will allocate a monthly ad inventory of two million
impressions to TSCN (the "FRT Impression Allocation") subject to FRT's right to
reject inappropriate content and ads from direct competitors. TSCN will
determine in its sole discretion whether such inventory is sold to third Party
advertisers or utilized for internal marketing and promotions; provided,
however, that TSCN agrees to use at least 50% of the monthly inventory to
advertise and promote jointly managed and/or co-branded content (e.g. ProSearch
subscriptions, INVESTools, BullSession/ProSearch II). TSCN will retain 100% of
any revenues realized from the sale of the FRT Impression Allocation and FRT
will bear the responsibility to perform ad serving and traffic management
functions.
7. Joint Cooperation Efforts
TSCN-Bull,Session II. The Parties agree to cooperate and to commit
development resources as reasonably required in an effort to develop a second
generation TSCN-BullSession tool ("TSCN-BullSession II"). TSCN-Bullsession II
will enhance and modify the existing BullSession application and will include
certain TSCN content and tools. The specifications and development will be a
joint effort, with the allocation of resources as mutually agreed by both
Parties provided that each party shall continue to exclusively own their
contributions to the joint application with the other party only having the
right to use the other party's contribution only in TSCN-BullSession II as
expressly contemplated by this Agreement. TSCN-BullSession II will be a
co-branded tool and will be sold by both Parties on a subscriptions basis
pursuant to a marketing plan, including pricing and promotion, which will be
jointly determined by the Parties. The Parties will jointly determine
responsibility for Web hosting, support and other administrative functions. TSCN
and FRT will share Net Revenues on a 50:50 basis, with Net Revenues determined
after the deduction of direct costs associated with sale and operation of
TSCN-BullSession II.
Snapshot Real-Time Quotes and Co-Branded Message Boards. FRT agrees to
offer "snapshot" real-time quotes to TSCN's Proprietary and Customer Sites. Such
quote services will be similar in form and content to that offered by FRT's
xxxxxxxxxxxx.xxx Web site and will be provided through a co-branded page that
will be developed, hosted, served and administrated by FRT. FRT will pay TSCN
10% of the Net Revenue realized on the co-branded page, with Net Revenue
determined after the deduction of sales commission and expense, which will not
exceed 30%.
Data Center, Ad Serving Operations and Subscriber Administration. The
Parties agree to enter discussions regarding the availability of excess capacity
and existing systems and personnel resources at TSCN to provide contract
services to FRT. In particular, the Parties have identified potential
opportunities in the areas of data center, communications and co-location
services; ad serving, reporting and traffic management functions; and
BullSession subscriber billing and administration services. While the Parties
are committed to holding exploratory discussions, nothing herein obligates
either (i) FRT to contract for such services from TSCN or (ii) TSCN to offer to
provide such services on reasonable terms and conditions.
8. TSCN Right to Participate In FRT Private Offerings
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Any time prior to the consummation of a public offering of shares of
FRT resulting in gross proceeds to FRI of at least $10 million ("the FRT
Qualified Public Offering"), if FRT proposes to sell equity securities
representing at least 2.5% of the then outstanding shares of common stock
("Shares") of FRT ("Proposed Offering"), TSCN shall have a right to purchase all
or part of the Proposed Offering; provided that this provision shall not apply
to any business combination transaction to which FRT is a party. FRT shall
provide written notice of the terms and conditions of the Proposed Offering,
along with disclosure and other documentation customary for such offerings. TSCN
shall have a right to participate
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by giving written notice to FRT within seven days after FRT has provided written
notice of the Proposed Offering, including an indication of the amount of equity
securities TSCN elects to purchase. TSCN's right to participate shall terminate
upon the earlier or (i) TSCN's election not to participate in any Proposed
Offering and (ii) the consummation of a FRT Qualified Public Offering.
9. Exchange Consideration
TSCN and FRT have entered this Agreement with the binding commitment to
exchange certain licenses for technology, certain contractual rights, other
assets and certain services. The consideration for each Party's exchange
includes the following:
The TSCN Consideration shall consist of the following arrangements set
forth in this Agreement:
(i.) the ProSearch Technology and Other Xxxxxxxxxxxxxx.xxx Content
License and Co-Marketing Agreement;
(ii.) the INVESTools Co-Marketing Agreement;
(iii.) the TSCN-BullSession II Joint Development Agreement; and
(iv.) the Joint Cooperation Agreement.
The FRT Consideration shall consist of the following arrangements set
forth in this Agreement:
(i.) the TSCN-BullSession Technology License and Co-Marketing
Agreement
(ii.) the TSCN-BullSession II Joint Development Agreement
(iii.) the Ad Impression Inventory Contribution Agreement
(iv.) the Joint Cooperation Agreement, and
(v.) the Private Offering Participation Rights Agreement
10. General Terms & Conditions
(a) Mutual Assistance. Both Parties shall provide each other with reasonable
technical assistance, advice and expertise regarding each other's business,
content, tools and Web sites in order to facilitate each Party's compliance
with its obligations hereunder.
(b) Confidentiality. Each Party undertakes to retain in confidence the
non-public terms of this Agreement and all other non-public information and
know-how, including e-mail, subscriber and customer lists, programs,
applications, data and other information, disclosed pursuant to this
Agreement which is either designated as proprietary and/or confidential or
by the nature of the circumstances surrounding disclosure, ought in good
faith to be treated as proprietary and/or confidential ("Confidential
Information"); provided that each Party may disclose the terms and
conditions of this Agreement to its immediate legal and financial
consultants in the ordinary course of its business. Each Party agrees to use
best efforts to protect Confidential Information, with precautions at least
as great as those taken to protect its own confidential information. A
Party's disclosure of Confidential Information as required by government or
judicial order is not prohibited by this Agreement, provided that the
disclosing Party gives the other Party prompt notice of such order and
assists in the procurement of appropriate protective order (or equivalent)
imposed on such disclosure. Nothing contained herein limits either Party's
right to develop products independently without the use of the other Party's
Confidential Information. Except as may otherwise be specified in a duly
countersigned rider hereto, to the extent not inconsistent with this
Section, the terms of any non-disclosure agreement(s) entered into between
the Parties prior to this Agreement expressly survive the execution of this
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Agreement and are deemed incorporated herein by this reference.
(c) Audit Rights. In accordance with generally accepted accounting
standards, both Parties will keep such books of account and records as are
necessary to fulfill its obligations herein. Either Party (each an "Auditing
Party" and an "Audited Party", as the case may be) is entitled, at its own
expense, and upon twenty (20) days' written notice to the Audited Party to
designate independent auditors or accountants who may, once each year during
the Term, examine or audit the Audited Party's relevant books and records in
order to verify the fees to the Auditing Party pursuant to this Agreement.
Any such audit will be conducted during the Audited Party's normal business
hours and at the Audited
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Party's location where the relevant records are kept in the normal course of
business. If, it is determine that the Audited Party misreported any figure, the
Auditing Party will promptly furnish to the Audited Party a copy of the report
of its auditors or accountants setting forth the discrepancy. The Audited Party
will remit to the Auditing Party, or vice versa as the case may be, a sum equal
to the amount of any discrepancy within thirty (30) days after notification of
the discrepancy.
(d) Term. The initial term of this Agreement will take effect on the date hereof
and unless terminated earlier pursuant to this Agreement, will terminate upon
the second (2nd) anniversary (the "Initial Term"). After the Initial Term, this
Agreement shall be automatically renewed for successive one-year periods
("Extension Terms") unless FRT or TSCN gives the other Party written notice of
intent to terminate not less then sixty (60) days before the end of a Term. As
used herein, the term "Term" means the Initial Term and any Extension Term(s).
(e) Termination. In addition to any other remedy available at law or in equity,
either Party may terminate this Agreement immediately, without further
obligation to the other Party in the event of:
(i.) any material breach of this Agreement by the other Party, which
breach is not cured within thirty (30) days following written
notice of the breach to such Party;
(ii.) the other Party's making an assignment for the benefit of its
creditors, the filing of a voluntary or involuntary petition
under any bankruptcy or insolvency law that is not dismissed
within thirty (30) days, under the reorganization or arrangement
provisions of the United States Bankruptcy Code, or under the
provisions of any law of like import in connection with the
other Party, or the appointment of a trustee or receiver for the
other Party or its property; or
(iii.) in the event that either Party, and its successors, no longer
generally provide or support (a) the license or co-marketing
content to be provided to the other Party hereunder or (b) the
Party's Web sites specified herein.
(f) Obligations Upon Termination. Promptly upon termination of this Agreement
for any reason, the Parties will:
(i.) remove links to each other's content and Web sites from the
other Party's Web sites;
(ii.) delete or destroy the co-branded pages and any Party's content
and Confidential Information stored on the other Party's
servers, or otherwise in its, possession, custody or control;
and
(iii.) pay all amounts due under the terms of this Agreement; provided,
however, the Parties' obligations to make ongoing subscription
revenue sharing payments for subscriptions which continue beyond
termination shall survive the termination of this Agreement.
(g) Mutual Warranties. Each Party to this Agreement represents and warrants to
the other Parry that:
(i.) it is a duly organized corporation; and
(ii.) such Party has the full corporate right, power and authority to
enter into this Agreement and to perform the acts required of it
hereunder; and
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(iii.) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties
hereunder, do not and will not violate any agreement to which
such Party is a party or by which it is otherwise bound; and
(iv.) when executed and delivered by such Party, this Agreement will
constitute the legal, valid and binding obligation of such
Party, enforceable against such party in accordance with its
terms; and
(v.) it either owns or has the right to supply the content, tools,
services and information to the other party in accordance with
this Agreement; and
(vi.) use of the content, tools, services and information as permitted
by this Agreement will not violate or infringe any Intellectual
Property Rights of any third party; and
(vii.) the content, information, advertisements, and other marketing
material will not include any information which constitutes
defamatory or obscene material.
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(h) No Other Warranties. EXCEPT AS SPECIFICALLY SET FORTH HEREIN,
NEITHER PARTY MAKES ANY OTHER OR DIFFERENT REPRESENTATIONS OR WARRANTIES TO THE
OTHER OR TO ANY THIRD PARTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(i) Rights of the Parties. TSCN acknowledges that FRT exclusively owns
all Intellectual Property Rights in FRT'S Web sites, content, tools, services
and information or has been licensed by third parties to grant the rights set
forth herein. All rights with respect to such content and derivatives thereof,
whether now existing or which may hereafter come into existence, which are not
expressly granted to TSCN herein are reserved to FRT. FRT acknowledges that TSCN
exclusively owns all Intellectual Property Rights in the TSCN Proprietary and
Customer Sites, content, tools, services and information or has been licensed by
third parties to grant the rights set forth herein. All rights with respect to
such content and derivatives thereof, whether now existing or which may
hereafter come into existence, which are not expressly granted to FRT herein are
reserved to TSCN.
(j) Indemnification. Each Party is liable for and will indemnify and
keep indemnified the other Party as well as its clients, officers, directors,
employees, agents and contractors from and against all loss, cost, damage and/or
expense (including reasonable legal fees and expenses) arising out of or in
connection with:
(i) Subject to subparagraph (k) below, a Party's misrepresentations
or breaches of representation or warranty made or to be
performed by such Party in connection with this Agreement; and
(ii) all claims, actions, proceedings or judgments in connection with
allegations that possession, use, distribution or exploitation
of such Party's content or anything else done or omitted to be
done within the scope of the licenses granted in this Agreement
infringes or violates any copyright or other Intellectual
Property Rights of any third party; and
(iii) subject to subparagraph (k) below, all claims relating to a
Party's content, provided that such claims do not result from
any abstract or translation created by the other Party, or any
use of a Party's content by the other Party which is not in
accordance with the terms of this Agreement.
(k) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
BE LIABLE TO ANOTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES ARISING FROM THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF
REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. IN ANY EVENT A PARTY'S
LIABILITY UNDER THIS AGREEMENT HOWEVER ARISING SHALL BE LIMITED TO THE AMOUNT OF
NET REVENUES RECEIVED BY BOTH PARTIES DURING THE TWELVE-MONTH PERIOD PRECEDING
THE EVENT GIVING RISE TO SUCH LIABILITY.
(l) Accuracy/Reliability. Although each Party makes reasonable efforts
to ensure the accuracy and reliability of its content, the other Party
acknowledges that the Party and its officers, directors, and employees will not
be held liable for any loss, cost or damage suffered or incurred by the other
Party arising out of: (a) any faults, interruptions or delays in the content, or
(b) any inaccuracies, errors or omissions in the content, however such faults,
interruptions, delays, inaccuracies, errors or omissions arise unless due to the
Party's gross negligence or wilful misconduct.
(m) Entire Agreement. This Agreement and any and all addenda, schedules
or exhibits attached hereto represent the entire agreement of the Parties
regarding the subject matter hereof. There are no other oral or written
collateral representations, agreements, or understandings regarding the subject
matter hereof.
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(n) Amendments. This Agreement may not be amended, modified or superseded,
unless expressly agreed to in writing by both Parties. Within 90 days of the
date hereof, the Parties shall use their best efforts to amend and restate this
Agreement so as to reflect the Parties' subsequent agreements regarding the
subject matter hereof as additional details regarding the nature and extent of
the business relationship between the Parties are determined. Failure to so
amend and restate the Agreement shall not be deemed a breach of the Agreement
which shall remain a valid and binding obligation of both Parties in accordance
with its terms.
(o) Public Announcements. The Parties shall promptly cooperate to develop a
mutually agreeable press release announcing the execution of this Agreement and
the subsequent commencement of the various services hereunder. Except to the
extent required by law, any press releases in conjunction with this Agreement
shall be subject to mutual written approved by Parties.
(p) Force Majeure. Neither Party is liable for, and will not be considered in
default or breach of this Agreement on account of, any delay or failure to
perform as required by this Agreement (other than payment) as a result of any
causes or conditions that are beyond such Party's reasonable control and which
such Party is unable to overcome by the exercise of reasonable diligence,
provided that the affected Party will use reasonable commercial efforts to
resume normal performance.
(q) Assignment. This Agreement will bind and inure to the benefit of each
Party's permitted successors and assigns. Neither Party may assign this
Agreement, in whole or in part, without the other Party's prior written consent;
provided however, that either party may assign this Agreement without such
consent in connection with any merger, consolidation, any sale of all or
substantially all of such Party's assets or any other transaction in which 50%
of such Party's voting securities are transferred.
(r) Controlling Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware.
(s) Waiver. No waiver of any breach of any provision of this Agreement
constitutes a waiver of any prior, concurrent or subsequent breach of the same
or any other provisions, and will not be effective unless made in writing and
signed by an authorized representative of the waiving Party.
(t) Notices. All notices, authorizations, and requests in connection with this
Agreement will be deemed given on the day (i) deposited in the U.S. mails,
postage prepaid, certified or registered, return receipt requested; or (ii) sent
by air express courier, charges prepaid and addressed as follows (or to such
other address as the Party to receive the notice or request so designates by
written notice to the other):
TSCN: Telescan, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx
Attention: In House Counsel
FRT: XxxxXxxxXxxx.xxx, Inc.
0000 Xxxxxxxxx Xx.
Xxxxx 000
Xxxxxx, XX 00000
Attention: In House Counsel
(u) Severability; Headings. If any provision or term of this Agreement, not
being of a fundamental nature is held to be invalid, illegal or unenforceable,
the validity, legality and
16
enforceability of the remainder of this Agreement will continue in full force
without being impaired or invalidated in any way. The Parties agree to replace
any invalid provision with a valid provision that most closely approximates the
intent and economic effect of the invalid provision. Headings are for reference
purposes only and in no way define, limit, construe or describe the scope or
extent of such section.
(v) Counterparts. This Agreement may be executed in any number of counterparts
each of which when executed and delivered shall be an original, but all
counterparts together shall constitute one and the same instrument.
(w) Survival. Any provision of this is Agreement which must survive to give
effect to its meaning or to the intent of the Parties will survive termination
of this agreement, including but not limited all disclaimers and indemnities
contained herein or in any schedules to this Agreement.
Agreed to and accepted this 29th day of September, 1999
Telescan, Inc,
/s/ XXXXX XXXXXXXXX
----------------------------------
SENIOR V.P.
Agreed to and accepted this 29th day of September, 1999
XxxxXxxxxxxx.xxx, Inc.
/s/ XXXX XXXX
----------------------------------
PRESIDENT & CO-CEO
