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EXHIBIT 10.12
[WEATHERLABS LOGO]
DOUBLE WEBSITE WEATHER DATA LICENSE AGREEMENT
This Agreement, dated November 5, 1998 between WeatherLabs, Inc., a wholly
owned subsidiary of Digital Courier Technologies, Inc., a Delaware corporation,
with its principal place of business at 000 Xxxxxxx Xx., Xxx Xxxxxxxxx,
Xxxxxxxxxx ("WeatherLabs"), and, Internet Century with its principal place of
business at 000 X. XxxXxxxx Xxx. 000, Xxxxxxx, XX 00000 ("Company").
WITNESSETH:
WHEREAS, Company desires to provide its electronic subscribers on the
Internet's Worldwide Web with weather data, weather content and related weather
services
WHEREAS, WeatherLabs is in the business of providing weather information
worldwide to companies for distribution to end-users.
AGREEMENT:
NOW, THEREFORE, in consideration of the respective representations and
warranties hereinafter set forth and of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. Provision of Services.
(a) WeatherLabs will license weather data to Company in the format set forth
in Exhibit A to this Agreement (the "Weather Data"). Subject to the availability
of an online connection to the Internet communications infrastructure (the
"Internet"), the Weather Data will be provided to Company on a schedule set
forth in Exhibit A for selected U.S. and/or International city locations
(defined in Exhibit B). Company may only use the Weather Data to respond to
requests for weather information from its users or subscribers on the following
Worldwide Web site address (the "Licensee Web Site") with a URL that resolves
to: * see below. Company may not modify or alter the Weather Data in any manner,
except to display the Weather Data on the Licensee Web Site in the form of a
Hypertext Markup Language (HTML) template format set forth in Exhibit C to this
Agreement. In the event Company desires to present the Weather Data to its
subscribers in a format other than that set forth in Exhibit C, then Company
must have such new format approved in writing by WeatherLabs prior to its use,
which approval WeatherLabs shall not unreasonably withhold or delay.
* Xxxxxxx.xxx
Xxxxxxxxxx.xxx
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(b) WeatherLabs will commence providing Company with Weather Data within 30
days after receiving a written request from Company for Weather Data (the first
date that Weather Data is provided is referred to herein as the "Initial Service
Date"). In no event shall the Initial Service Date be a date after three
months from the date of this Agreement without the prior written consent of
WeatherLabs.
2. Payment. "Fees" means, collectively, the following charges (in U.S.
dollars): for a total cost of $36,000.00 per year.
A. A service set-up fee of: $0.00, for which Company shall receive databases,
related manuals, and up to 10 hours of technical support.
B. Product Line Overview. Forecast products provide reliable and timely
information for over 5000 U.S. cities and 2400 international locations. In
addition to city level reporting, WeatherLabs can forecast for any zip code
in the U.S. or for any latitude and longitude coordinate (geocode)
worldwide.
1. Forecast Products.
a. 24 hour detailed (morning, afternoon, evening, overnight).
b. 5-day extended.
c. Long range climate/weather.
2. Real-time products.
a. Current hourly conditions.
b. Regional Doppler radar images.
c. Composite Doppler radar images.
d. Satellite maps.
e. Weather maps
3. Special Interest reports.
a. Ski reports for US and International resorts.
b. Airport delay forecasts.
c. Astronomy report.
4. Editorial products.
a. Weather stores.
b. Weather glossary
x. Xxxxxxxxxx Report
d. Ask the WeatherLab
e. Educational weather information.
5. Weather Almanac.
a. "On this day" trivia.
b. Monthly averages for thousands of cities worldwide with 30 year
history.
C. Additional fee of: 0. Technical support in excess of 10 hours will be
charged at $100.00 per hour.
Company shall pay all Fees to WeatherLabs within 30 calendar days after the
receipt of the invoice. In addition to any other rights hereunder, Company shall
pay to WeatherLabs interest equal to 1.5% of an unpaid Fee which is not
disputed, for each 30 day period, or portion thereof, in which any Fee remains
unpaid. The Fees may be made payable via company check or electronic wire
transfer to WeatherLabs' global Citibank bank account from Company's bank.
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3. Term of Agreement.
(a) The term of this Agreement shall be for a period of one (1) year,
commencing on the date hereof and continuing through and including the day
immediately preceding the first (lst) anniversary of the date hereof (the
"Initial Term"). Unless terminated by either party by providing a 90-day written
notice prior to the expiration of the Initial Term, this Agreement will be
automatically renewed on a year-to-year basis at the expiration of the Initial
Term.
4. Termination of Agreement.
(a) After the expiration of the Initial Term, this Agreement may be
terminated at the option of the non-defaulting party, by delivery of a written
notice thereof to the defaulting party, specifying in reasonable detail the
reason for termination, if (i) the defaulting party breaches or otherwise fails
to perform or comply in a material respect with a material obligation or
covenant, and such breach or failure is not cured to the non-defaulting party's
reasonable satisfaction within 30 days receipt of such notice; or (ii) the
defaulting party fails to comply strictly with the provisions of this
Agreement. If the non-defaulting party is Company, then the sole and exclusive
remedy of the Company shall be that WeatherLabs refunds to Company all Fees
paid by Company up to the amount of the loss incurred. If the non-defaulting
party is WeatherLabs, then the sole and exclusive remedy of WeatherLabs shall
be that Company pays to WeatherLabs an amount equal to the unpaid Fees to have
accrued the remainder of the Term of Agreement up to the amount of the loss
incurred.
5. Ownership.
(a) All rights, title and interest in and to the Weather Data and any
modifications or enhancements thereto, including all trademarks, copyrights and
patent rights are and shall remain the exclusive property of WeatherLabs. This
Agreement does not grant to Company or any of its affiliates or customers any
right of ownership therein. The Weather Data, including any weather forecast
contained therein may not be re-transmitted, re-distributed, re-sold or
re-broadcast (in any electronic, video or print format) by the Company in whole
or in part to any party, other than a Company user or subscriber on the Licensee
Web Site in accordance with this Agreement, without the express written consent
of WeatherLabs.
6. Promotion.
(a) Neither party will make any public statement, press release or other
announcement relating to the terms of or existence of this Agreement without the
prior written approval of the other. Notwithstanding the foregoing, Company
hereby grants to WeatherLabs the right to issue an initial press release, the
timing and wording of which will be subject to Company's reasonable approval,
regarding the relationship between WeatherLabs and Company.
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7. Representations and Warranties.
(a) WeatherLabs warrants that it has full power and authority to provide the
Weather Data hereunder and the Weather Data will conform to the specifications
set forth in Exhibit A. WeatherLabs represents that it will deliver the Weather
Data to Company in the form of electronic data file(s). The actual transfer
method will be based on the standard Internet File Transfer Protocol (FTP), via
the Internet. WeatherLabs makes no representation or warranty as to the
capability of the Internet to provide a continuous online connection for
delivery of the Weather Data. WeatherLabs will make commercially reasonable
efforts to ensure that such online connection to the Internet is upheld.
WeatherLabs does not warrant or guarantee the accuracy of its weather forecasts.
All other warranties, including any WARRANTY OF MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE are hereby EXCLUDED.
(b) The parties represent that they have the equipment and software
necessary to adequately service the request by the counter party and by the
users or subscribers for the information in question.
8. Limitation of Liability.
(a) Neither party shall be liable to the other for any special or
consequential damages of any character, including without limitation, damages
for loss of good will, lost revenue, lost prospective economic advantage or lost
profit, arising from any performance or failure to perform under this Agreement,
irrespective of whether or not such damages are foreseeable or whether or not
any exclusive remedy is deemed to have failed, and each party hereby releases
and waives any claims against the other party regarding such damages.
WeatherLabs' liability to Company for damages arising out of the performance or
breach of this Agreement shall not exceed the total Fees paid to WeatherLabs by
Company under this Agreement. In no event shall WeatherLabs be liable for its
failure to perform under this Agreement as a result of the malfunction of the
connection to the Internet or Company's equipment or software.
9. Confidentiality.
(a) Each party will reasonably protect any and all information obtained
about the other party and at a minimum provide the same safeguards afforded its
own confidential information. Each party will keep confidential information to
which it has access in the performance of this Agreement. Confidential
information includes information contained herein with respect to Weather Data,
and data bases that WeatherLabs provides to Company, as well as information
relating to all Fees applicable to this Agreement. Confidential information
shall not include information now or hereafter in the public domain, information
already in the possession of the other party, information obtained from another
source without obligation of confidentiality, information independently
developed or information required by a court or government order.
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10. General.
(a) Notices. Except as otherwise permitted herein, any notices or
consents required or permitted by this Agreement shall be in writing and
delivered in person or by registered or certified mail, postage prepaid, return
receipt requested, or by a reputable courier delivery service, or by facsimile
during regular business hours (provided that a confirmation copy follows by
first-class U.S. Mail or any other method of delivery permitted under this
Section), as follows unless such address is changed by written notice hereunder,
and such notice shall be deemed given for purposes of this Agreement on the day
that such writing is sent to the intended recipient thereof in accordance with
the provisions of this Section:
(i) IF TO:
WeatherLabs:
XXXXXXX X. Xxxxxx, CEO
WeatherLabs, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (USA)
Phone: (000) 000-0000
Fax: (000) 000-0000
(ii) IF TO:
Internet Century
Xxxxx Xxxx
000 X. Xxx Xxxxx Xxx. 000
Xxxxxxx, XX 00000
Phone: (000)000-0000
FAX: (000)000-0000
xxxxx@xxxxxxxxxx.xxx
(b) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other party hereto; provided, that such consent shall not be
required with respect to any successor-in-interest to all or substantially all
of either party's business or assets.
(c) Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of California.
(d) Captions. The captions and headings used in this Agreement are for
convenience of reference only, and shall not affect the construction or
interpretation of any of the provisions hereof.
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(e) Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereon were upon the same instrument. This Agreement shall
become effective when all parties hereto shall have executed and delivered
counterparts hereof.
(f) Entire Agreement. This Agreement, together with the Exhibits hereto
and the other documents referred to herein, constitutes the sole and entire
understanding between and among the parties with respect to the subject matter
hereof, and supersedes all prior agreements and understandings among the parties
with respect to such subject matter. This Agreement may be modified only in
writing, signed by both parties.
(g) Waiver. The failure by either party to insist upon strict enforcement
of any terms and conditions of this Agreement shall not be construed as a waiver
or relinquishment of the right to assert or rely upon any such terms on any
future occasion.
(h) Relationship of the Parties. The parties recognize that they are
independent contractors and that neither is an agent, employee, partner or joint
venturer of the other. Furthermore, neither party is authorized to waive any
right, or assume or create any contract or obligation of any kind in the name
of, or on behalf of, the other or to make any statement that it has the
authority to do so.
(i) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement
(j) Reliance and Benefit. This Agreement is intended for the sole and
exclusive benefit of the parties hereto, and is not intended to confer any
benefit upon any other persons whatsoever. Except for the parties hereto, no
other person shall have any right to rely upon this Agreement for any purpose
whatsoever, absent the written consent of the party to be charged with such
reliance.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first set forth above.
WEATHERLABS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: CEO
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Internet Century
By: /s/ Xxxxxxxx Xxxxxxxx
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Title: Secretary/Treasurer
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