EXHIBIT 10.19
INTERNET DATA DISTRIBUTION AGREEMENT
THIS AGREEMENT (the "Agreement") is entered as of ___________________,
19__ (the "Effective Date"), between Value Line Publishing, Inc. ("VLP"),
headquartered at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
________________________________, headquartered at _______________________
__________________________________________________________________________
_________________________________________________ (the "Distributor").
RECITALS
1. VLP has developed, analyzed and owns or is the licensee in whole or in
part of certain data relating to mutual funds as more fully described in Exhibit
A (the "VLP Data").
2. Distributor wishes to obtain a license to use, and VLP agrees to license
to Distributor, the VLP Data for distribution to Distributor's clients (the
"End-Users") through Distributor's Internet web site more fully described in
Exhibit A (the "Web Site").
Therefore, both parties agree as follows:
1. License.
VLP hereby grants to Distributor a limited, non-exclusive, non-transferable, and
worldwide license during the Term (as defined in Section 2) to promote,
distribute and market (collectively, "Market(ing)") the VLP Data solely on and
through the Web Site, solely and strictly subject to the terms and conditions of
this Agreement. Nothing in this Agreement shall prohibit VLP from marketing,
licensing, selling, or otherwise providing the VLP Data, or any information
derived therefrom, directly or indirectly, such as through other licensees or
distributors, to any third party wherever located, including End-Users.
Distributor shall Market the VLP Data only through the Web Site, and not by any
other means or medium, including print, CD-ROM, on-line, or other electronic
delivery.
2. Term.
This Agreement is effective as of the Effective Date and shall continue in
effect for one (1) year (the "Term"), unless the Agreement is previously
terminated under Section 15.
3. Payments, Records and Audit.
(a) In consideration of the license granted to Distributor hereunder,
Distributor shall pay to VLP the license fees set forth in Exhibit B (the
"License Fees"). Distributor acknowledges that it shall not receive and not be
entitled to any commissions, royalties, or other compensation whatsoever from
VLP for Marketing any VLP Data. Any and all compensation due to Distributor as a
result of its Marketing of the VLP Data or other performance of this Agreement
shall be solely and exclusively derived from Distributor's agreement with its
End-Users. Nothing in this Agreement, whether expressed or implied, shall limit
or otherwise seek to influence the prices that Distributor, in its sole
discretion, may charge its End-Users for the provision of VLP Data.
(b) Distributor shall maintain throughout the Term, and twenty-four (24) months
after the termination, experiation or non-renewal of this Agreement for any
reason accurate and complete hard-copy or electronically retrievable and
reproducible records of all transactions involving the VLP Data, including
comprehensive Distributor invoicing and payment records and information. VLP or
its designated representative shall have the right, upon three (3) days prior
notice, to inspect these records at Distributor's headquarters at any time
during the Term and twenty-four (24) months after the termination, experiation
or non-renewal of this Agreement for any reason. Distributor shall fully
cooperate with such audit efforts. In the event the audit reveals an
underpayment by the Distributor, Distributor shall immediately pay VLP such
underpaid amount plus interest at the rate of one and one-half percent (1.5%)
per month or the highest monthly rate permitted by applicable law, whichever is
lower, accruing daily as of the date payment was due until the date payment is
made by the Distributors. In addition, Distributor shall, within thirty (30)
days after VLP's invoice to Distributor, reimburse VLP for its reasonable audit
and inspection costs, if any audit reveals an underpayment by the Distributor
which exceeds ten percent (10%) of the actual amount originally paid by
Distributor prior to the audit.
4. Mandatory End-User Provisions.
(a) Distributor shall at all times during the Term maintain a terms and
conditions screen on its Web Site (the "Terms and Conditions") which shall
contain each and every mandatory provision listed in Exhibit D (the "Mandatory
Provisions"). Distributor's Web Site shall display the Mandatory Provisions in a
conspicuous manner utilizing capital letters. The Mandatory Provisions must
appear on the Web Site prior to the display of any VLP Data and each End-User
must confirm its acceptance of and agreement with the Mandatory Provisions by
clicking or keying in such confirmation before obtaining access to any VLP Data.
Distributor shall not negotiate, modify, amend, or revise any Mandatory
Provision. If any End-User does not confirm its agreement with the Mandatory
Provisions, such End-User shall be given a refund of the amount, if any, the
End-User previously paid for the VLP Data.
(b) Distributor has no authority, express or implied, to undertake any
obligations or assume any liabilities on behalf of VLP. Without derogating from
the generality of the foregoing, Distributor shall make no statement of any
kind, whether oral or written, to End-Users or any other third party about the
VLP Data that is inconsistent with this Agreement or the Mandatory Provisions
and shall specifically not make or offer any representations or warranties
related to the VLP Data other than as expressly set forth in Section 8(a) of
this Agreement.
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5. Delivery.
VLP shall deliver the VLP Data to Distributor in printed or in computer-readable
formats with the same frequency as it is generally made commercially available
by VLP to VLP's other customers and distributors.
6. Distributor Warranties.
Distributor hereby represents and warrants that (i) it shall not permit any
third party (including any End-User) to obtain access to any VLP Data or any
part thereof without previously confirming such party's agreement to be bound by
the Terms and Conditions which, at a minimum, contain all Mandatory Provisions
and which include no provision that limits, derogates from, or is otherwise
inconsistent with, any Mandatory Provision or other provision in this Agreement;
(ii) Distributor is and shall remain duly qualified to transact business and
perform this Agreement to the full extent contemplated in all applicable
jurisdictions, including where the End-Users are located; (iii) the execution
and delivery of this Agreement by Distributor, and the performance of its
obligations hereunder, have been duly authorized by all requisite corporate
actions on the part of Distributor; (iv) this Agreement has been duly executed
and delivered by Distributor; and (v) Distributor shall implement this Agreement
and Market the VLP Data in compliance with applicable laws and regulations.
7. Proprietary Rights.
(a) Distributor acknowledges that the VLP Data consists of information gathered,
selected, analyzed, arranged, and presented by VLP or its licensors through the
application of methods of selection, organization, computation, analysis and
judgment unique and original to VLP or its licensors and at considerable expense
to VLP or its licensors, and that the actual value thereof far exceeds VLP's or
its licensors' cost in preparing the VLP Data. Distributor also acknowledges
that VLP or the applicable licensor owns all rights, title and interest in and
to the VLP Data and any versions, derivative works or translations thereof.
Nothing in this Agreement shall be construed to grant Distributor any license or
right not expressly granted by this Agreement.
(b) Distributor acknowledges that, in the course of dealing with VLP under this
Agreement, Distributor will obtain access to VLP Data and other information
relating to VLP's business, customers, marketing plans, product lines, software,
publications and development efforts, which VLP deems confidential or
proprietary (the "VLP Information"). Except as is expressly provided in this
Agreement, Distributor may not use the VLP Information for any purpose whether
for itself or the benefit of any third party. Distributor shall protect the VLP
Information from unauthorized use or disclosure and shall not disclose the VLP
Information within its own organization other than on a "need to know" basis to
persons who sign an agreement acknowledging the proprietary nature of the VLP
Information and ensuring its confidential treatment.
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(c) Distributor may use the Value Line name and the trademarks depicted in
Exhibit C (collectively, the "Marks") solely and exclusively for the purpose of
Marketing the VLP Data on the Web Site pursuant to this Agreement and in a
manner strictly in accordance with this Agreement. Distributor acknowledges that
VLP owns all right, title and interest in the Marks, and Distributor shall do
nothing to challenge or encumber VLP's ownership thereof. Distributor shall not,
during or after the Term hereof, use the Marks or any symbols, names or marks
confusingly similar thereto for any purpose not expressly authorized in this
Agreement. Distributor may not during or after the Term, use, adopt or attempt
to register anywhere in the world, whether alone or together with any other
xxxx, symbol or name, any trade name or xxxx or service name or xxxx that is
similar or confusingly similar to any Xxxx or other VLP xxxx or symbol.
(d) Distributor shall not (i) remove any copyright, trademark and other
proprietary rights notices contained or embedded in the VLP Data; (ii) copy,
modify, paraphrase or translate any VLP Data into a foreign language; (iii)
reverse engineer, reverse compile, reverse assemble, or otherwise attempt to
reveal or duplicate for any purpose the methodology, know-how or trade secrets
underlying any VLP Data or the means by which the VLP Data is delivered
(including any software or CD ROM source code); (iv) use any VLP Data to create
another product or service as part of a commercial time sharing, service bureau
arrangement, product or resale capacity, or otherwise for the benefit of any
third party; (v) extract ideas, algorithms, procedures, formulas, work flows or
hierarchies from any VLP Data to create a work that may be used as a substitute
for any VLP Data; or (vi) use any VLP Data on the Internet in any capacity or
for any purpose other than through the Web Site.
(e) Distributor shall (i) cooperate with VLP and protect the VLP Data and Marks
from infringement by End-Users and other third parties; (ii) promptly notify VLP
of any act of which it becomes aware that might constitute an infringement of
any VLP copyright, trademark, trade secret, or other proprietary right or that
may constitute unfair competition against VLP; (iii) promptly notify VLP of any
allegation of which Distributor becomes aware that any VLP Data, Xxxx or the
Marketing thereof infringes upon third party rights or otherwise violates any
law; and (iv) execute appropriate documents and cooperate with VLP, at VLP's
expense, to obtain or register anywhere in world for VLP's benefit its rights
under this Agreement, including any copyrights, trademarks, trade secrets, and
other proprietary rights in the VLP Data or the Marks.
(f) Notwithstanding anything to the contrary in this Agreement, since
Distributor recognizes that breach of this Section 7 may cause VLP irreparable
injury, VLP, in addition to all other remedies, shall have the right to
equitable or injunctive relief anywhere, as it deems fit, in the event of an
actual or attempted breach by Distributor of its obligations hereunder.
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8. VLP Warranties.
(a) VLP warrants to Distributor that VLP has the right to (i) enter into this
Agreement, and (ii) furnish the VLP Data to Distributor for use as contemplated
herein. VLP agrees to attempt to correct any inaccuracies in the VLP Data which
are promptly brought to its attention.
(b) THE WARRANTIES SET FORTH IN SECTION 8(a) ARE THE SOLE AND EXCLUSIVE
WARRANTIES PROVIDED BY VLP UNDER THIS AGREEMENT OR IN CONNECTION WITH THE VLP
DATA AND ARE IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
(c) VLP DOES NOT GUARANTEE THE COMPLETENESS OR ACCURACY OF THE VLP DATA. TO THE
MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, VLP DISCLAIMS ANY LIABILITY WHATSOEVER
FOR ANY FINANCIAL OR OTHER LOSS, DAMAGE, COST, OR EXPENSE SUFFERED OR INCURRED
BY DISTRIBUTOR, ANY END-USER, OR OTHER THIRD PARTY IN CONNECTION WITH ANY VLP
DATA OR OTHERWISE RELATED TO THIS AGREEMENT, OR BE LIABLE TO DISTRIBUTOR, ANY
END-USER, OR OTHER THIRD PARTY FOR DAMAGES RESULTING, OR ALLEGED TO HAVE
RESULTED, FROM ANY ERROR OR OMISSION IN THE VLP DATA OR ANY ACTION TAKEN OR NOT
TAKEN BASED THEREON, OR INFORMATION DERIVED THEREFROM; AND IN NO EVENT SHALL VLP
BE LIABLE TO DISTRIBUTOR, END-USERS OR ANY THIRD PARTY FOR ANY LOST PROFITS,
LOSS OF BUSINESS, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, PUNITIVE,
INCIDENTAL, INDIRECT, OR EXEMPLARY DAMAGES, IN ANY EVENT. VLP'S LIABILITY FOR
ANY REASON UNDER THIS AGREEMENT OR IN CONNECTION WITH THE VLP DATA SHALL NOT
EXCEED THE LICENSE FEES DISTRIBUTOR ACTUALLY PAID TO VLP IN THE CONSECUTIVE SIX
(6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO SUCH LIABILITY.
Distributor acknowledges that VLP's liability and warranty limitations set forth
in this Section 8 are reasonable under the circumstances and that Distributor's
consent thereto is fairly reflected in its payment obligations to VLP and
constitutes a material inducement for VLP's entry into this Agreement.
9. Indemnification.
Distributor shall defend, indemnify and hold harmless VLP and its officers,
directors, shareholders, and employees (each, the "Indemnified Party"), jointly
and severally, from and against any and all claims, suits, actions, proceedings,
liabilities, losses, damages, or expenses, including any legal and expert fees
and expenses and all costs of investigation, which (i) arise out of or relate to
Distributor's breach of any term or provision of this Agreement, including
Sections 4, 6 and 7, or any action or inaction that is inconsistent with any one
or more of Distributor's acknowledgments or VLP's liability limitations in this
Agreement; or (ii) are brought against VLP by any End-User.
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10. Marketing.
Distributor shall perform this Agreement in a manner consistent with VLP's
corporate practices and policies; use reasonable commercial efforts to promote
the VLP Data; take all steps reasonably necessary to maintain the quality and
integrity of the VLP Data and the Web Site; and do nothing which may adversely
affect the reputation of the VLP Data or VLP.
11. Taxes.
Distributor shall pay any and all sales, use, withholding, value added, stamp or
other taxes, duties, fees, or charges imposed or assessed in connection with
this Agreement or the Marketing of the VLP Data by Distributor that are assessed
or imposed against VLP, except for any taxes on VLP's net income payable in the
United States.
12. Waivers.
Any waiver of any right by either party to this Agreement must be in writing and
shall constitute a single and separable act, and shall not constitute a waiver
of that same right thereafter, or of any other rights.
13. Entire Agreement and Amendment.
This Agreement including Exhibits A, B, C, and D attached and incorporated
hereto constitutes the sole, final and entire agreement of the parties and
supersedes and terminates all previous agreements between the parties with
respect to the subject matter hereof. All amendments or modifications to this
Agreement must be in writing and signed by an officer of each party.
14. Assignment.
Distributor may not assign any of its rights or delegate any of its obligations
hereunder without the prior written consent of VLP. VLP has the right to assign
or delegate this Agreement. Subject to the foregoing, this Agreement binds the
parties and their permitted successors and assigns.
15. Termination.
(a) This Agreement may be terminated at any time during the Term as follows: (i)
by either party upon fifteen (15) days prior written notice to the other party,
if such other party breaches any term of this Agreement without curing same
within such fifteen (15) day cure period, and (ii) by VLP for any reason upon
giving Distributor forty-five (45) days prior written notice to that effect.
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(b) Upon the termination, expiration or non-renewal of this Agreement for any
reason, Distributor shall (i) cease Marketing the VLP Data and remove from its
Web Site all VLP Data and all references to VLP; (ii) return to VLP all VLP Data
and other tangible VLP Information or, if requested by VLP, destroy same and
provide a written certification confirming that such destruction is complete;
(iii) immediately pay VLP any payments then due and owing to VLP hereunder; (iv)
cease holding itself out as VLP's Distributor or otherwise as having any
commercial relationship with VLP; and (v) no longer use any of the Marks for any
purpose.
16. Survival.
All provisions of this Agreement which by their nature contemplate continuing
effectiveness, including those pertaining to confidentiality, proprietary
rights, exclusion of liabilities, and indemnity, shall survive any termination,
expiration or non-renewal of this Agreement.
17. Independent Contractors.
This Agreement shall not create an agency, joint venture, partnership,
employment, or other similar relationship between the parties, it being
understood that the parties' relationship shall only be that of independent
contractors.
18. Notices.
Any notice between the parties under this Agreement shall be in writing and
shall be deemed duly given if delivered or mailed by certified mail, postage
prepaid, return receipt requested, to the following addresses:
For: Value Line Publishing, Inc. To the attention of: Chairman and CEO
000 Xxxx 00xx Xxxxxx With a Copy to: General Counsel
Xxx Xxxx, XX 00000
For: To the attention of:
------------------------------ --------------------
(Name of Distributor) (Title)
------------------------------ --------------------
(Address)
------------------------------ --------------------
(City, State, Zip)
Notice shall be effective upon delivery as evidenced by courier or U.S. mail
delivery records.
19. Dispute Resolution.
This Agreement shall for all purposes be governed, interpreted, construed, and
enforced solely and exclusively in accordance with the law of the State of New
York, USA (excluding its law of
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conflict of laws). The parties hereby agree that the courts located in the State
and County of New York, USA shall constitute the sole and exclusive forum for
the resolution of any and all disputes arising out of or in connection with this
Agreement and hereby irrevocably waive any objections thereto, including on
grounds of forum non conveniens.
20. Publicity.
Neither VLP nor Distributor shall use the name of the other in publicity
releases, advertising or otherwise without the prior written consent of the
other.
21. Headings.
Headings are for reference and are not intended to affect the meaning of any
terms. If any provision of this Agreement is held invalid, illegal or
unenforceable, the remaining provisions will continue unimpaired.
22. Reimbursement.
VLP shall be reimbursed by Distributor for any and all reasonable costs and
expenses, including without limitation, legal fees, collection fees and expert
fees, incurred by VLP as a result of Distributor's failure to comply with any of
its obligations under this Agreement. VLP shall be fully reimbursed by
Distributor for all such costs within (30) days after the date of VLP's invoice
therefor.
Distributor Value Line Publishing, Inc.
By:
-------------------------------------- ----------------------------
(Name of Company)
By: Title:
----------------------------------- -------------------------
--------------------------------------
(Print Name)
Title:
--------------------------------
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