S&P COMSTOCK INFORMATION DISTRIBUTION LICENSE AGREEMENT
S&P XXXXXXXX INFORMATION DISTRIBUTION
AGREEMENT, made as of 10/09/00, by and between S&P XxxXxxxx, Inc. a corporation having offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, and DIT Ventures, ("Distributor"), having an office at 0000 Xxxxxxx Xxx., Xxxxx 000, Xx Xxxxx, XX 00000.
WHEREAS, S&P XxxXxxxx, Inc. gathers, formats and distributes an information service comprised of certain securities and commodities prices and other data which is known as the S&P XxxXxxxx Service ("XxxXxxxx") and
WHEREAS, S&P XxxXxxxx, Inc. is licensed to distribute information from various Stock Exchanges, Commodity Exchanges, and other sources (collectively, "Sources") as part of S&P XxxXxxxx; and
WHEREAS, the parties desire that certain delayed information from S&P XxxXxxxx ("the XxxXxxxx Information") as specified in Exhibit A (Part I), attached hereto, be made available to Distributor for display by Distributor on its Internet World Wide Web site (collectively, the "Distributor Service"), as described fully in Exhibit B, attached hereto.
NOW, THEREFORE, the parties mutually agree as follows:
1. Distribution License.
(a) Distributor is hereby granted for the term of this Agreement a nonexclusive, nontransferable right and license to distribute electronically the XxxXxxxx Information via the Distributor Service solely for access by Internet users of the Distributor Service (such users referred to herein as "Subscribers"), provided that the XxxXxxxx Information is supplied to the Subscribers by means (such as data encryption, or packet transmission-digitizing) which prevent unauthorized reception, use or retransmission and further provided that Distributor has executed in advance any and all necessary documents with the various Sources, which documents have been accepted and approved by the Sources. Notice of such Sources' acceptance and approval must be supplied to S&P XxxXxxxx, Inc. prior to Distributor's use or distribution of the XxxXxxxx Information.
(b) Distributor agrees and understands that it shall directly provide the XxxXxxxx Information to Subscribers, except as specifically set forth in Exhibit B. Distributor also agrees and understands that it is not permitted to sublicense, transfer, or assign its rights hereunder and that it shall not permit the redistribution of the XxxXxxxx Information by any Subscriber or by any other third party without the express prior authorization of S&P XxxXxxxx, Inc. pursuant to a separate agreement or by mutually agreeable amendment executed and attached hereto.
(c) Distributor agrees that the XxxXxxxx Information shall not be dynamically updated.
(d) Licensee shall be prohibited from: (i) distributing the Information through any joint or co-branded sites, and (ii) authorizing any third party to link a third party site to the Information.
2. XxxXxxxx Equipment.
(a) During the term of this Agreement, S&P XxxXxxxx, Inc. shall provide Distributor the equipment listed in Exhibit C, attached hereto ("the XxxXxxxx Equipment"), for installation only at the site(s) specified therein. Distributor shall not relocate the XxxXxxxx Equipment without the written permission of S&P XxxXxxxx, Inc.
(b) S&P XxxXxxxx, Inc. shall, at Distributor's expense and request, install, furnish, and maintain necessary modems and/or communications interface equipment.
(c) Distributor shall not attach, or permit or cause to be attached, any non-XxxXxxxx equipment to the XxxXxxxx communications line or the XxxXxxxx Equipment without the prior written permission of S&P XxxXxxxx, Inc.
(d) Distributor shall have no right in or to any of the XxxXxxxx Equipment except for the rights of use herein granted. Distributor shall pay all extraordinary costs for repair or replacement of the XxxXxxxx Equipment, over and above ordinary maintenance which shall be performed by S&P XxxXxxxx, Inc. Such extraordinary maintenance includes electrical work external to the XxxXxxxx Equipment, maintenance of accessories or attachments, and repair of damage to the XxxXxxxx Equipment resulting from accident, neglect, misuse, failure of electrical power or causes other than ordinary use. Distributor shall promptly return the XxxXxxxx Equipment in good condition, ordinary wear and tear excepted, upon termination of this Agreement for any reason.
3. XxxXxxxx Information.
(a) The furnishing to Distributor of the XxxXxxxx Information is conditioned upon strict compliance with the provisions of this Agreement, the applicable policies of the Sources, and with all local, state and federal regulations which might pertain to the use of the XxxXxxxx Information. It shall be the sole responsibility of Distributor to confirm with the applicable Sources whether or not all of the XxxXxxxx Information may be distributed by Distributor to its Subscribers. S&P XxxXxxxx, Inc. may discontinue provision of the XxxXxxxx Information hereunder, without notice, whenever the terms of its agreements with the Sources require such discontinuance, or if in its reasonable judgment S&P XxxXxxxx, Inc. finds a breach by Distributor of any of the provisions of this Agreement.
(b) Neither S&P XxxXxxxx, Inc., nor any of its affiliates, nor any Sources make any express or implied warranties (including, without limitation, any warranty of merchantability or fitness for a particular purpose or use). Neither S&P XxxXxxxx, Inc., any of its affiliates, or any Sources warrant that the XxxXxxxx information will be uninterrupted or error-free. Distributor expressly agrees that its use and distribution of the XxxXxxxx Information and its use of the XxxXxxxx Equipment is at the sole risk of Distributor and its Subscribers. S&P XxxXxxxx, Inc., its affiliates, and all Sources involved in creating or providing the XxxXxxxx Information will in no way be liable to Distributor or any of its Subscribers for any inaccuracies, errors or omissions, regardless of cause, in the XxxXxxxx Information or for any defects or failures in the XxxXxxxx Equipment, or for any damages (whether direct or indirect, or consequential, punitive or exemplary) resulting therefrom. The liability of S&P XxxXxxxx, Inc. and its affiliates in any and all categories, whether arising from contract, warranty, negligence, or otherwise shall, in the aggregate, in no event exceed one month's XxxXxxxx Information Delivery Fee.
(c) Distributor agrees that it shall not display the XxxXxxxx Information in the Distributor Service without a prominent notice indicating that the XxxXxxxx Information is being displayed on a minimum fifteen (15) minute delayed basis.
(d) Distributor also agrees to include S&P Xxxxxxxx'x Terms and Condition of Use, a copy of which is attached hereto as Exhibit E, within the Distributor Service in a manner which alerts Subscribers of the applicability thereof.
(e) Distributor shall clearly and prominently identify S&P XxxXxxxx as the source of the XxxXxxxx Information by display of the S&P XxxXxxxx logo (the "Logo") in a manner to be agreed to by the parties. Distributor shall also create a hypertext or other computer link from the Logo to the S&P XxxXxxxx site on the World Wide Web.
(f) Distributor represents and warrants that it has and will employ adequate security procedures to prevent the unauthorized access to the XxxXxxxx Information or corruption of the XxxXxxxx Information.
(g) Distributor agrees to indemnify and hold S&P XxxXxxxx, Inc. and its affiliates harmless from and against any and all losses, damages, liabilities, costs, charges and expenses, including reasonable attorneys' fees, arising out of: (i) any liability of S&P XxxXxxxx, Inc. to any Subscriber where Distributor has failed to include the Terms and Conditions of Use in the Distributor Service pursuant to Section 3(d) above; or (ii) any breach or alleged breach on the part of Distributor or any Subscribers with respect to its/their obligations to obtain prior approvals from appropriate Sources and to comply with any applicable conditions, restrictions or limitations imposed by any Source.
(h) S&P XxxXxxxx, Inc. represents that it has the rights and licenses necessary to transmit the XxxXxxxx Information to Distributor, and that to the best of S&P XxxXxxxx, Inc.'s knowledge, the license granted to Distributor hereunder does not infringe any proprietary right or any third party right at common law or any statutory copyright.
(i) S&P XxxXxxxx, Inc. shall deliver the XxxXxxxx Information to Distributor at the site(s) set forth in Exhibit C or at such other locations as Distributor may designate within the continental United States or Canada.
4. Payments.
In consideration for the license granted to Distributor by S&P XxxXxxxx, Inc. under this Agreement, Distributor shall make the following payments to S&P XxxXxxxx, Inc.:
(a) Distributor shall pay to S&P XxxXxxxx, Inc. a one-time, non-refundable Distribution License Fee of $1,500 due and payable upon execution of this Agreement by both parties. Such fee is payable regardless of whether or not distributor actually distributes the XxxXxxxx Information to any Subscriber.
(b) Distributor shall pay to S&P XxxXxxxx, Inc. a basic XxxXxxxx Information Delivery Fee of $720 per month, including all recurring charges for XxxXxxxx network connection, modem/line interface equipment, and standard equipment maintenance services as determined by S&P XxxXxxxx, Inc.'s standard price list. These charges, plus any applicable Source fees and state/local taxes, will be billed monthly in advance. Non-recurring charges such as installation, relocation and removals of XxxXxxxx Equipment will be separately billed in accordance with S&P XxxXxxxx, Inc.'s then-current standard rates.
(c) Distributor shall pay to S&P XxxXxxxx, Inc. a monthly Subscriber Fee, the total of which will be the higher of (i) $2,500 "the Guaranteed Minimum" or (ii) the amount as calculated using the Schedule of Fees attached hereto as Exhibit D. The Subscriber Fees will be due and payable on the fifteenth (l5th) day of each month and shall be based upon the number of Subscriber terminals receiving the XxxXxxxx Information via the Distributor Service (unless the Guaranteed Minimum is greater and therefore payable). Together with the Subscriber Fee payment, Distributor shall provide to S&P XxxXxxxx, Inc. on a monthly basis a list identifying all Subscribers and their addresses and the number of each Subscriber's terminals accessing the XxxXxxxx Information; S&P XxxXxxxx, Inc. shall keep such list confidential.
(d) Distributor shall be responsible for the payment of any and all applicable fees billed to S&P XxxXxxxx, Inc. or directly to Distributor by Sources, which fees result from Distributor's use and distribution of the XxxXxxxx Information. Distributor shall also be responsible for payment of any Subscriber's Source fees which must be paid directly by Distributor to the Sources. Distributor shall provide to S&P XxxXxxxx, Inc. a copy of its monthly Source fee reports when and as filed with the Sources.
(e) Any amounts payable to S&P XxxXxxxx, Inc. by Distributor hereunder which are more than thirty (30) days past due shall bear interest at the rate of 1-1/2% per month.
(f) S&P XxxXxxxx, Inc. may, in its sole discretion and at any time following the initial term of this Agreement, change the per-Subscriber fee payment schedule and/or the XxxXxxxx Information Delivery Fee as specified herein after having provided written notice to Distributor at least ninety (90) days in advance of such changes.
(g) S&P XxxXxxxx, Inc. may audit Distributor's records for the sole purpose of verifying the accuracy of Distributor's reported monthly Subscriber Fee payments as set forth in Paragraph 4(c), above. Distributor will make such records readily available to S&P XxxXxxxx, Inc. for inspection during normal working hours on one week's notice. S&P XxxXxxxx, Inc. agrees that Distributor's records will be treated as confidential and will not be used for any purpose other than verifying Distributor's compliance with this Agreement. Any such audit shall be at S&P XxxXxxxx, Inc.'s expense unless it is determined that S&P XxxXxxxx, Inc. has been underpaid by an amount exceeding five percent (5%) of the revenues actually received by S&P XxxXxxxx, Inc. in the period covered by the audit; in such case, the expense of the audit shall be borne by Distributor.
(h) Once each calendar quarter, Distributor shall furnish S&P XxxXxxxx with information regarding the number of quotes requested by Subscribers for the previous quarter and such other additional information regarding use of the XxxXxxxx Information as the parties agree.
5. Information Enhancements; Changes to Data Specification.
(a) Any additions of new Sources or other enhancements to the XxxXxxxx Information which may be made by S&P XxxXxxxx, Inc. during the term of this Agreement, while unidentified at this time, will be offered to Distributor under terms and conditions to be negotiated, provided that (i) S&P XxxXxxxx, Inc. has the necessary rights to convey such new information to Distributor for redistribution; and (ii) Distributor and S&P XxxXxxxx, Inc. execute a separate agreement or an amendment to this Agreement.
(b) S&P XxxXxxxx, Inc. shall have the right, on at least six (6) months prior written notice, to change the XxxXxxxx Data Format Specification, provided that any such change shall be made effective generally by S&P XxxXxxxx, Inc. to its customers. Distributor shall be responsible at its own expense for making any modifications to its software necessitated by such change.
6. Term.
(a) This Agreement shall take effect upon its execution by an authorized representative of S&P XxxXxxxx, Inc. and of Distributor.
(b) The term of this Agreement shall be for an initial term of two (2) years commencing on the first day of service operation and shall automatically renew at the end of each term for successive terms, each of the same duration as the initial term, unless it is terminated effective at the end of any term with written notice by either party given to the other at least ninety (90) days prior to the end of the then current term. If S&P XxxXxxxx, Inc. increases charges to Distributor pursuant to Paragraph 4(f), above, Distributor shall have the option to terminate this Agreement by written notice to S&P XxxXxxxx, Inc. within sixty (60) days of Distributor's receipt of notice of such increases; such termination will become effective no sooner than thirty (30) days from the last day of the month in which notice of termination by Distributor is received by S&P XxxXxxxx, Inc..
7. Marketing.
Distributor may not use the names "XxxXxxxx", "SPC.", or "S&P XxxXxxxx, Inc.", which are proprietary to S&P XxxXxxxx, Inc., or refer to the XxxXxxxx Information in marketing or advertising materials without the prior written consent of S&P XxxXxxxx, Inc., such consent not to be unreasonably withheld. Upon S&P XxxXxxxx, Inc.'s written request, Distributor shall notify Subscribers by a display in the service itself that S&P XxxXxxxx is the source of the quote information and any sales literature discussing XxxXxxxx provided quotes shall list S&P XxxXxxxx as the provider of the service.
8. Rights to Data Specification; Other Confidential Information.
(a) Distributor agrees and acknowledges that the Data Specification is a confidential and proprietary trade secret belonging to XxxXxxxx, and nothing in this Agreement conveys any proprietary rights whatsoever with regard to the Data Specification to Distributor. The Data Specification is provided to the Distributor strictly and solely for the purpose of developing internal computer software to receive the XxxXxxxx Information. Distributor may not use the Data Specification for any other purpose whatsoever, including, but not limited to, the development of systems for the receipt or transmission of computer data. Distributor may not give, transmit, or provide access to the XxxXxxxx Data Specification to any Subscriber or other third party. On any termination of this Agreement, regardless of cause, Distributor shall promptly return the Data Specification to S&P XxxXxxxx, Inc. and shall provide a written certification by an officer that no copies have been retained by Distributor.
(b) In addition to the duties imposed on Distributor pursuant to Paragraph 8(a), above, S&P XxxXxxxx, Inc. and Distributor agree to hold confidential any and all of each other's trade secrets, procedures, formulae, financial data, Subscriber lists, and future plans, which may be learned before and during the term of this Agreement. Notwithstanding the foregoing, however, such duty of confidentiality shall not extend to information which is or comes into the public domain, is rightfully obtained from third parties not under a duty of confidentiality, or which is independently developed without reference to the other party's confidential information.
(c) The duties of confidentiality imposed herein shall survive any termination of this Agreement.
9. Prevention of Performance.
Neither party shall be liable for any failure in performance of this Agreement if such failure is caused by acts of God, war, governmental decree, power failure, judgment or order, strike, or other circumstances, whether or not similar to the foregoing, beyond the reasonable control of the party so affected. Neither party shall have any liability for any default resulting from force majeure, which shall be deemed to include any circumstances beyond its control. Such circumstances shall include, but are not limited to acts of the government, fires, flood, strikes, power failures or communications line or network failures.
10. Right of Termination in the Event of Breach or Bankruptcy; Right to Injunctive Relief.
(a) Either party shall have the right to terminate this Agreement for material breach by the other party by giving thirty (30) days prior written notice, such termination to take effect unless the breach is cured or corrected within such notice period.
(b) If a receiver is appointed for either party's business or if either party petitions under the Bankruptcy Act and is adjudicated a bankrupt, declared an insolvent, or makes an assignment for the benefit of creditors, then the other party shall, upon thirty (30) days prior written notice, have the right to terminate this Agreement.
(c) Upon termination of this Agreement for any reason, Distributor shall cease all use and distribution of any of the XxxXxxxx Information.
(d) In addition to and notwithstanding the above, if Distributor, or any of its employees, agents or representatives, shall attempt to use or dispose of the XxxXxxxx Information or the Data Specification in a manner contrary to the terms of this Agreement, S&P XxxXxxxx, Inc. shall have the right, in addition to such other remedies as may be available to it, to injunctive relief enjoining such acts or attempt, it being acknowledged that legal remedies are inadequate.
(e) S&P XxxXxxxx, Inc. shall have the right to terminate this Agreement upon written notice to Distributor in the event of a sale or transfer of all or substantially all of the assets of Distributor or a sale or transfer of a controlling equity interest in Distributor.
11. Assignment.
Distributor shall be prohibited from assigning or transferring this Agreement or any rights hereunder and any proposed assignment or transfer shall be null and void and shall be considered a material breach of this Agreement.
12. Entire Agreement.
This Agreement and its Exhibits embodies the entire agreement between the parties hereto. There are no promises, representations, conditions or terms other than those herein contained. No modification, change or alteration of this Agreement shall be effective unless in writing and signed by the parties hereto.
13. Non-Waiver.
The failure of either party to exercise any of its rights under this Agreement for a breach thereof shall not be deemed to be a waiver of such rights nor shall the same be deemed to be a waiver of any subsequent breach.
14. Notices.
All notices under this Agreement shall be given in writing to the parties as follows:
To: S&P XxxXxxxx, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxxx X. Xxxxxxxx
To: DIT Ventures, Inc.
0000 Xxxxxxx Xxx, Xxxxx 000
Xx Xxxxx, XX 00000
Attn: Xxxxxxx Xxx
15. Governing Law.
This Agreement shall be governed by the laws of the State of New York and the parties agree to select New York jurisdiction for any claims or disputes which may arise hereunder.
IN WITNESS WHEREOF, Distributor and S&P XxxXxxxx, Inc. have caused this Agreement to be executed by their duly authorized respective officers, as of the day and year above written.
S&P XXXXXXXX, INC.
By: Xxxxxxx X. Xxxxxxxx
Title: National Sales Manager
Date: 10/10/00
DISTRIBUTOR
By: Xxxxxxx Xxx
Title: President
Date: 10/09/2000
E X H I B I T S
X. XXXXXXXX INFORMATION DEFINITION; AUTHORIZED COUNTRIES
B. DESCRIPTION OF DISTRIBUTOR SERVICE
C. LISTING OF XXXXXXXX EQUIPMENT; DISTRIBUTOR DELIVERY SITES
D. SCHEDULES OF SUBSCRIBER FEES
E. TERMS AND CONDITIONS OF USE
EXHIBIT A
PART I: Delayed Data Only Information Definition
STOCKS:
NYSE
NYSE Corporate Bonds
AMEX, Boston, Philadelphia, Cincinnati, Midwest, Pacific
Stock Exchanges and Instinet, NASD
NASDAQ Over-the-Counter
NASDAQ National Market System
U.S. Mutual Funds
STOCK/CURRENCY OPTIONS:
AMEX, OPRA: Chicago Board of Options Exchange
NYSE, Pacific, Philadelphia Stock Exchange
PART II: AUTHORIZED GEOGRAPHICAL AREA
Distribution of the XxxXxxxx Information may only be made by Distributor to Subscribers located on the World Wide Web. S&P XxxXxxxx understands that Subscribers may be located outside of the United States. Even though Subscribers may access the service outside of the United States, Distributor agrees not to directly market to Subscribers outside of the United States.
EXHIBIT B
DESCRIPTION OF DISTRIBUTOR SERVICE
DIT Ventures, Inc. plans to distribute the S&P Xxxxxxxx data through its Xxxxx000.xxx web site (located at xxx.xxxxx000.xxx). The S&P Xxxxxxxx quotes will be provided in snapshot format and provide information such as last trade, time of trade, bid price, ask price, 52 week range, day high, day low, and so forth. The quotes, if delayed, may be provided for free to web site visitors. Real-time S&P Xxxxxxxx quotes will be subject to registration which includes conformance to the Exchange (NYSE, Nasdaq, etc) agreements. Xxxxx000.xxx may in the future offer S& P Xxxxxxxx quotes on co-branded websites with other North American companies. These companies may have international presence and will provide S&P Xxxxxxxx data similar to those displayed on Xxxxx000.xxx and be subject to the co-branded site fees in exhibit D of this agreement.
EXHIBIT C
DESCRIPTION OF XXXXXXXX EQUIPMENT
Licensee will use the XxxXxxxx Digital Data feed from equipment to be provided at the Licensee's site. The feed will be distributed through a port of the XxxXxxxx Client Site Processor (CSP) into the head end service of the Licensee. The XxxXxxxx C.S.P. is fed with 384,000 baud data run via satellite equipment.
Licensee location is registered at:
DIT Ventures, Inc.
0000 Xxxxxxx Xxx, Xxxxx 000
Xx Xxxxx, XX 00000
EXHIBIT D
SCHEDULE OF FEES
MONTHLY FEES
A. Basic Site Information Delivery Fee $720
Communications Fee: Satellite (384kb) $400
B. Service Fee: For the Distribution of Snapshot Delayed and Real-time Data on
Subscribers (xxx.Xxxxx000.xxx) URL from the exchanges that allow a vendor to distribute information from the North American equity, option and futures Exchanges.
Month 1-3 The greater of $2,500 "the guaranteed minimum" or $.003 per quote.
Month 4+ The greater of $5,000 "the guaranteed minimum" or $.003 per quote.
Service Fee: For the Distribution of Co-Branded Delayed and Real-Time Data from the exchanges that allow a vendor to distribute information from the North American equity, option and futures Exchanges.
Co-Branded Delayed Data Only
Co-branded Sites Schedule:
Per Site $1,500 plus $.003 per quote
Guaranteed Minimum for Co-Branded Data (to commence with first Co-Brand site)
Month 1 $1,500
Month 3 $3,000
Month 5+ $5,000
C. Optional Services
Basic Fundamental, includes the following fields: included
P/E Ratio
52 week high/low
Latest dividend amount
Common Shares Outstanding
Average Daily Volume
Last Twelve Months EPS
ONE-TIME FEES:
Install Satellite $775
Shipping: $140
Redistribution License Fee $1500
Equipment Deposit (fully refundable): $2000
Total payment due for Initiation of Service $8035
EXHIBIT E
TERMS AND CONDITIONS OF USE OF XXXXXXXX INFORMATION
All information provided by S&P XxxXxxxx, Inc. ("XxxXxxxx") and its affiliates (the "XxxXxxxx Information") on Quote 000.xxx World Wide Web site is owned by or licensed to XxxXxxxx and its affiliates and any user is permitted to store, manipulate, analyze, reformat, print and display the XxxXxxxx Information only for such user's personal use. In no event shall any user publish, retransmit, redistribute or otherwise reproduce any XxxXxxxx Information in any format to anyone, and no user shall use any XxxXxxxx Information in or in connection with any business or commercial enterprise, including, without limitation, any securities, investment, accounting, banking, legal or media business or enterprise.
Prior to the execution of a security trade based upon the XxxXxxxx Information, you are advised to consult with your broker or other financial representative to verify pricing information.
Neither XxxXxxxx nor its affiliates make any express or implied warranties (including, without limitation, any warranty or merchantability or fitness for a particular purpose or use) regarding the XxxXxxxx Information. The XxxXxxxx Information is provided to the users "as is." Neither XxxXxxxx nor its affiliates will be liable to any user or anyone else for any interruption, inaccuracy, error or omission, regardless of cause, in the XxxXxxxx Information or for any damages (whether direct or indirect, consequential, punitive or exemplary) resulting therefrom.
