EXHIBIT 10.17
DISTRIBUTOR AGREEMENT
This Agreement ("Agreement") is entered into by and between Comtex
Scientific Corporation ("COMTEX"), a New York corporation with its principal
offices at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and Axxess
Media Group ("AXXESS"), a Florida corporation with its principal offices at 000
Xxxx Xxxxx #000, Xxxxxxxxx Xxxxxxx, XX 00000.
1. Definitions
a. Service. The term "the Service" means the electronic information
services identified in Exhibit A to this Agreement.
b. Content. The term "Content" means all material, whether or not
protected by copyright, including but not limited to text, images and other
multimedia data, provided or made available as part of the Service.
c. Information Providers. The term "Information Providers" means third
parties from whom COMTEX acquires the right to distribute Content provided or
made available as part of the Service.
d. Users. The term "Users" means all third parties to whom AXXESS, subject
to the terms and conditions of this Agreement, may license, sell, transfer, make
available or otherwise distribute the Service.
2. Distribution
x. Xxxxx of Rights. Subject to the terms and conditions of this Agreement,
COMTEX grants AXXESS a nonexclusive license and right to market the Service,
distribute the Service to Users, and license Users to use the Service for their
internal use.
b. Restrictions on Distribution
1. Unauthorized Entities. AXXESS shall not knowingly license, sell,
transmit or otherwise distribute the Service or Content to print or
broadcast news media or any of their parents, subsidiaries, and affiliates
("Unauthorized Entities"), without obtaining for each such Unauthorized
Entity the prior written consent of COMTEX. In the event any such
unauthorized distribution becomes known to AXXESS, AXXESS immediately
shall notify COMTEX and use its best efforts to halt immediately such
distribution.
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ii. Redistribution. AXXESS shall not license, sell, transfer,
make available or otherwise distribute the Service or Content to any
third party who, for the use or benefit of such third party's Customers,
licenses, purchases or otherwise obtains the Service or Content from
AXXESS and then relicenses, resells, transfers, makes available or
otherwise redistributes such Service and Content to such third party's
Customers, without obtaining for each such third party the prior written
consent of COMTEX. For purposes of this subparagraph, the term
"Customer" shall include any individual, entity or other party who
licenses, purchases or otherwise obtains such Service or Content from
the third party.
c. User Agreements. AXXESS shall require that each User enter into an
agreement that contains the provisions set forth in Exhibit D or provisions
substantially equivalent thereto. Such agreement, which may be obtained in an
electronic or hard-copy format, shall be retained by AXXESS for the term of this
Agreement and three (3) years thereafter. Upon the request of COMTEX, AXXESS
shall provide COMTEX a copy of such user agreement.
d. Reservation. COMTEX reserves the right to add or withdraw
Information Providers, Content and items of coverage from the Service without
notice.
3. Marketing
a. Promotion. AXXESS agrees to use commercially reasonable efforts to
promote and market the Service to prospective Users and to enter into licenses
for use of the Service by Users.
b. Expenses. AXXESS shall be responsible for all expenses incurred by
AXXESS in promoting and marketing the Service.
c. Use of Name. AXXESS shall name COMTEX as one of its information
services in its formal promotional and marketing materials relating to the
Service, including press releases and advertisements.
d. Prior Approval. COMTEX and AXXESS each agrees to submit to the other
party for written approval all press releases, advertising or other promotional
materials that use Service names or a party's company name not less than fifteen
(15) days before the proposed use. Each party shall not unreasonably withhold
its approval. Unless notice of approval or disapproval is received within ten
(10) days of receipt of promotional materials, approval shall be deemed granted.
Either party, however, may identify the other in its published listing of
available services or distributors without such written approval.
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4. Delivery of the Service
a. Provision of the Service. Subject to the terms and conditions of this
Agreement, COMTEX shall provide the Service to AXXESS and AXXESS shall receive
the Service from COMTEX in conformance with the Technical Specifications set
forth in Exhibit A.
b. Timeliness. COMTEX shall use commercially reasonable efforts to
maintain the timeliness of the information contained in the Service. AXXESS
acknowledges that COMTEX relies on the performance of Information Providers
outside the control of COMTEX in order to provide the Service.
c. Proprietary Notices. Where supplied as part of the Service by COMTEX
or its Information Providers, AXXESS will cause to be displayed appropriate
copyright or other proprietary notices relating to the Service.
d. Modifications. AXXESS shall not edit, abridge, rewrite or in any
other way alter the Content of the Service or create any work derived from the
Content of the Service; provided, however, that AXXESS may choose not to display
every story or article.
e. Remedies
i. Corrections. Upon receipt of written notice from COMTEX of an
error in the distribution of the Service and Content to a User, AXXESS
shall use commercially reasonable efforts to promptly correct such
error.
ii. Withdrawal of Information Provider. Notwithstanding
Subparagraph 4.e.i., in the event that AXXESS violates Subparagraph
2.b., 4.c. or 4.d., infringes any copyright of an Information Provider,
or otherwise violates the proprietary rights of an Information Provider,
COMTEX, at its sole discretion, immediately may cease distribution of
such Information Provider's Content to AXXESS until the violation or
infringement is remedied by AXXESS, during which period AXXESS
acknowledges that such actions by COMTEX shall not result in a breach of
Subparagraphs 4.a. and 4.b.
f. Review by COMTEX
i. Access. Throughout the term of this Agreement, AXXESS shall
provide COMTEX reasonable access to AXXESS's system for distribution of
the Service to Users for the sole purpose of reviewing AXXESS's
implementation of the Service. This access shall be provided by AXXESS
at no charge to COMTEX.
ii. Opportunity to Review. AXXESS shall provide notice to COMTEX
to allow COMTEX a reasonable opportunity to review AXXESS's
implementation of
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the Service before or, if prior review is impracticable, as soon as
possible after AXXESS implements the Service or any substantial changes
in its implementation of the Service.
5. Payment
AXXESS shall pay COMTEX the net amount shown on each invoice within thirty (30)
days of the date of the invoice (the "Due Date"). COMTEX reserves the right to
immediately suspend delivery of the Service should the AXXESS not pay the net
invoice amount within sixty (60) days of the invoice date. Suspension of service
does not constitute a breach of service by COMTEX as stated in Paragraph 6(b).
a. Payment Schedule. AXXESS shall pay COMTEX the Monthly Fees and
Royalties set forth in the Payment Schedule in Exhibit B.
b. Invoices and Due Date. Each month, COMTEX shall provide AXXESS an
invoice setting forth the following;
(i) the Monthly Fees for the current month;
(ii) the Estimated Royalty for the current month, which shall be
equal to the prior month's actual Royalty; and
(iii) the Royalty Adjustment for the prior month, which shall be the
amount by which the prior month's Royalty, based on actual usage, exceeds the
prior month's Estimated Royalty, or Royalty Credit, which shall be the amount
by which the prior month's Estimated Royalty exceeds the prior month's Royalty,
based on actual useage. COMTEX shall credit AXXESS the amount of any Royalty
Credit.
c. Fees Subject to Change. COMTEX may adjust the Fees set forth in
Exhibit B upon sixty (60) days prior written notice to AXXESS.
d. Reports. Within ten (10) days after the end of each month, AXXESS
shall provide COMTEX a report, in the format set forth in Exhibit B to this
Agreement or as otherwise agreed to by the parties, setting forth all
information necessary to calculate the Monthly Fees and Royalties for the prior
month.
e. Taxes. AXXESS shall be responsible for the payment of all taxes,
including sales, excise, and value-added taxes, which may be levied upon the
provision of the Service or on any payments by AXXESS to COMTEX hereunder, other
than franchise and income taxes of COMTEX.
f. Interest. All amounts under Subparagraph a. above owed to COMTEX by
AXXESS and not paid by the Due Date shall be deemed delinquent and interest,
calculated at the rate of one and one-half percent (1.5%) per month, shall be
paid by
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AXXESS to COMTEX on such amounts. In addition, COMTEX shall be entitled to
reimbursement for all reasonable costs of collection, including reasonable
attorneys' fees. Nothing in this paragraph shall limit COMTEX's right to
terminate this Agreement in accordance with Paragraph 6.b.
g. Audit. COMTEX or its representative may, during business hours and
upon reasonable notice, inspect and audit the relevant books and records of
AXXESS for the sole purpose of verifying all information related to payments
under this Agreement. Such inspection and audit shall be at the expense of
COMTEX unless the audit shows an error of ten percent (10%) or more in the
calculation of Monthly Fees and Royalties, in which case AXXESS shall bear the
expense of such inspection and audit. Any deficiency discovered by the audit
shall be paid by AXXESS to COMTEX within thirty (30) days of COMTEX notifying
AXXESS of the deficiency.
6. Term and Termination
a. Term. This Agreement commences on the date of the last signature
hereto or the first commercial distribution of the Service, whichever occurs
first (the "Effective Date"), and shall remain in effect for the Initial Term
set forth in Exhibit A. This Agreement shall renew automatically for successive
periods of the duration of the Renewal Term set forth in Exhibit A, unless
either party notifies the other party in writing, at least ninety (90) days
before the end of the Initial Term or any Renewal Term of its election not to
renew.
b. Termination. Either party may terminate this Agreement at any time if
the other party materially breaches any provision of this Agreement. Such
termination shall take effect (i) if the breach is incapable of cure, then
immediately upon the breaching party's receipt of a written notice of
termination which identifies the breach, or (ii) if the breach, capable of being
cured, has not been cured within sixty (60) days after receipt of written notice
from the non-breaching party identifying the breach, then immediately upon
receipt of a written notice of termination received within thirty (30) days of
the end of such sixty (60) day period. For purposes of this paragraph, a breach
of Subparagraphs 2.b. or 4.e.i. shall be deemed a breach that is incapable of
cure.
c. Insolvency. Either party may terminate this Agreement by written
notice to the other if the other party becomes insolvent, makes a general
assignment for the benefit of creditors, permits the appointment of a receiver
for its business or assets, or takes steps to wind up or terminate its business.
d. Obligations upon Termination. Effective upon termination of the
Agreement, AXXESS shall not license, sell, transfer, make available or otherwise
distribute the Service or Content nor access, use or retransmit the Service or
Content. Within thirty (30) days of termination, AXXESS shall (i) pay to COMTEX
all amounts owed under Paragraph 5 of this Agreement, and (ii) for all Content,
either (A) erase and purge the Content from any on-line and off-line storage
media and certify, in writing to COMTEX
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that such erasure and purge has been completed, or (B) certify, in writing, to
COMTEX that certain Content has been retained in creating back-ups during the
normal course of business and that such Content shall not be used in any manner
whatsoever without the prior consent of COMTEX.
e. Remedies upon Breach. Upon termination under Subparagraphs b. and
c. above, COMTEX shall terminate the Service and shall be entitled to recover
from AXXESS (i) any payments due hereunder, (ii) the total of AXXESS's Monthly
Fee multiplied by the number of months between such termination and the date of
expiration of the then current term, less savings realized by COMTEX, (iii) all
costs and expenses of collection, including attorneys' fees, and (iv) any and
all direct damages under law.
f. Survival. The provisions of Paragraphs 5,6,7,8,9,13,14,15,16 and 17
of this Agreement shall survive termination of this Agreement.
7. Confidential Information
a. Definition. "Confidential Information" shall mean information which
is designated as Confidential Information by the party disclosing such
information (the "Disclosing Party") (i) in Exhibit C to this Agreement, (ii)
with respect to information provided on paper, by facsimile or electronic mail,
on magnetic media, electronically or by any other medium (collectively "in
writing"), by labeling such information as "CONFIDENTIAL INFORMATION" before the
information is provided to the other party (the "Receiving Party"), or (iii)
with respect to information disclosed either verbally or in writing, by
notifying the Receiving Party, in writing within thirty (30) days of the
disclosure, that the information identified in such notice is designated
Confidential Information effective as of the Receiving Party's receipt of such
written notice.
b. Exclusions. "Confidential Information" shall not include information
that (i) is or shall become generally available without fault of the Receiving
Party, (ii) is in the Receiving Party's possession prior to its disclosure by
the Disclosing Party, (iii) is independently developed by the Receiving Party,
or (iv) is rightfully obtained by the Receiving Party from third parties without
similar restrictions.
c. Restrictions. The Receiving Party shall not disclose or otherwise
transfer Confidential Information of the Disclosing Party to any third party,
without first obtaining the Disclosing Party's consent, and shall take all
reasonable precautions to prevent inadvertent disclosure of such Confidential
Information. Except as necessary to perform under this Agreement, the Receiving
Party shall not use or copy Confidential Information of the Disclosing Party
without first obtaining the Disclosing Party's consent, and will take all
reasonable precautions to prevent inadvertent use and copying of such
Confidential Information.
d. Injunctive Relief; Exclusion of Liability Limitation. The parties
agree that damages shall be an inadequate remedy in the event of a breach by
either party of this
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paragraph and that any such breach by a Receiving Party will cause the
Disclosing Party great and irreparable injury and damage. Accordingly, a party
shall be entitled, without waiving any additional rights or remedies otherwise
available at law or in equity or by statute, to injunctive and other equitable
relief in the event of a breach or intended or threatened breach of this
paragraph. The provisions of Paragraph 13 shall not apply to any breach of this
Paragraph 7.
8. Content
a. Ownership. AXXESS acknowledges that this Agreement does not transfer
to AXXESS or Users any proprietary right, title or interest, including
copyright, in the Content made available as part of the Service.
b. Representation. COMTEX shall use commercially reasonable efforts to
prevent the Service from distributing any Content which would infringe any
copyright or other right of any third party. AXXESS understands that COMTEX is a
distributor of information services and material licensed from Information
Providers and agrees that COMTEX does not warrant that the Content will not
infringe any copyright or other right of any third party.
9. Trademarks
AXXESS agrees that COMTEX trademarks are the sole and exclusive property
of COMTEX. Pursuant to Paragraph 3.d., COMTEX shall have the right to approve
the use of its trademarks by AXXESS to identify and promote use of the Service.
Upon compliance with this provision, use of such marks by AXXESS for such
purposes shall be deemed approved during the term of this Agreement unless
COMTEX specifically notifies AXXESS to the contrary.
10. Limited Warranties of COMTEX
a. Agreement. COMTEX warrants that its entry into this Agreement does
not violate any agreement between COMTEX and any third party.
b. Laws and Regulations. COMTEX warrants that its performance under this
Agreement and the use of the Service conforms to all applicable laws and
government rules and regulations, subject to the terms of this Agreement.
c. The Service and Content. AXXESS agrees that the Service and Content
are provided by COMTEX "AS IS". COMTEX does not warrant the accuracy,
completeness or timeliness of the Service and Content.
11. Limited Warranties of AXXESS
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a. Agreement. AXXESS warrants that its entry into this Agreement does
not violate any agreement between AXXESS and any third party.
b. Laws and Regulations. AXXESS warrants that its performance under
this Agreement and the use of the Service shall conform to all applicable laws
and government rules and regulations, subject to the terms of this Agreement.
12. Disclaimer of All Other Warranties
THE PARTIES AGREE THAT (a) THE LIMITED WARRANTIES SET FORTH IN
PARAGRAPHS 10 AND 11 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES
PROVIDED BY EACH PARTY AND (b) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANT ABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE UNDER
THIS AGREEMENT, THE SERVICE AND CONTENT, AND EACH PARTY'S COMPUTING AND
DISTRIBUTION SYSTEM.
13. Limitation of Liability
In no event shall COMTEX or its Information Providers be liable to
AXXESS and its Users for any indirect, special, exemplary or consequential
damages, including lost profits, whether or not foreseeable or alleged to be
based on breach of warranty, contract, negligence or strict liability, arising
under this Agreement or any performance under this Agreement.
14. Indemnification
AXXESS shall indemnify and hold harmless COMTEX and its Information
Providers from and against any claims, losses, expenses, liabilities, and
damages, including reasonable legal fees and expenses, arising out of AXXESS's
or its Users' breach of any provision of this Agreement, including without
limitation the restrictions, obligations and warranties set forth in Paragraphs
2,3,4 and 11 of this Agreement. COMTEX agrees to notify AXXESS of any such claim
promptly in writing. The parties agree to cooperate fully during such
proceedings. AXXESS shall defend and settle at its sole expense all proceedings
arising out of the foregoing.
15. Non-Solicitation
AXXESS agrees that for the duration of this Agreement and for one (1)
year after expiration or termination of this Agreement, AXXESS shall not,
directly or indirectly, solicit or attempt to solicit to obtain a direct feed
from any Information Provider which is providing Content made available to
AXXESS as part of the Service provided by COMTEX. COMTEX recognized that AXXESS
had pre-existing communications with
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Business Wire and PR Newswire, and excepts these two Information providers from
this provision.
16. Force Majeure
Neither party shall be liable for any delay or failure to perform under
this Agreement if caused by conditions beyond its control, including but not
limited to fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts; provided, however, no such event shall excuse
any delay or failure to perform by AXXESS of its obligations to make payment to
COMTEX under Paragraph 5 of this Agreement. The affected performing party shall
promptly notify the other party of the nature and anticipated length of
continuance of such force majeure. Should any such failure or suspension of
performance by COMTEX continue for more than six (6) months, then either party
shall have the right to terminate this Agreement without further liability or
obligation on the part of either party.
17. Notices
All notices and demands hereunder shall be in writing and delivered by
hand delivery, certified or registered mail, return receipt requested, or
confirmed facsimile transmission at the addresses set forth below (or at such
different address as may be designated by either party by written notice to the
other party). Delivery shall be deemed to occur (i) if by hand delivery, upon
such delivery, (ii) if by mail, four (4) days after deposit with the U.S. Postal
Service, and (iii) if by facsimile transmission, upon receipt of confirmation.
If to COMTEX:
Xxxxxx Xxxxx, Vice President, Sales
Comtex Scientific Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile transmission: 000-000-0000
If to AXXESS:
Xxxxx Xxxxxxxx
Axxess Media Group
000 Xxxx Xxxxx #000
Xxxxxxxxx Xxxxxxx, XX 00000
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Facsimile transmission: (000) 000-0000
18. General Terms and Conditions
a. Not Agent. Neither party shall be considered an agent of the other
party nor shall either party have the authority to bind the other party.
b. No Assignment. Neither party may assign this Agreement without the
written consent of the other party; provided, however, that COMTEX may assign
this Agreement as part of a transaction in which substantially all of the assets
related to its rights and obligations under this Agreement are assigned to a
third party.
c. Governing Law. This Agreement and performance hereunder shall be
construed and governed by the laws of the Commonwealth of Virginia.
d. Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, and this Agreement shall be construed as
if such provision(s) had never been contained herein provided that such
provisions(s) shall be curtailed, limited or eliminated only to the extent
necessary to remove the invalidity, illegality or unenforceability.
e. Waiver. No waiver of any breach of any of the provisions of this
Agreement shall be deemed a waiver of any preceding or succeeding breach of the
same or any other provisions hereof. No such waiver shall be effective unless in
writing and then only to the extent expressly set forth in writing.
f. Complete Agreement. The parties agree that this Agreement is the
complete and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings and other agreements,
oral or written, between the parties relating to this Agreement.
g. Amendment. This Agreement may not be modified, altered or amended
except by written instrument duly executed by both parties.
h. Attorneys' Fees. Should any action be brought by either party to
enforce the provisions of this Agreement, the prevailing party, whether by
settlement, adjudication or arbitration, shall have the right to collect
reasonable attorneys' fees, expenses and costs from the nonprevailing party.
i. No Inference Against Author. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
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j. Headings. The headings used in this Agreement are for convenience
only and are not to be construed to have a legal significance.
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k. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.
AGREED:
COMTEX SCIENTIFIC
AXXESS MEDIA GROUP, by: CORPORATION, by:
/s/ Xxxxx Xxxxxxxx /s/ Xxxxxx Xxxxx
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Xxxxx Xxxxxxxx Xxxxxx Xxxxx
----------------------------- ------------------------------
Printed Name Printed Name
President VP, Sales
----------------------------- ------------------------------
Title Title
Date: 2/25/98 Date: 2/25/98
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