Stockpoint License Agreement
THIS LICENSE AGREEMENT ("Agreement") is entered into this 1st day of February,
2000 ("Effective Date") by and between Stockpoint, Inc., a Delaware corporation,
having its principal place of business at 0000 Xxxxxxxxx Xx., Xxxxxxxxxx, Xxxx
00000 ("Stockpoint") and, Vertica Software, Inc., having its principal place of
business at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 ("Licensee").
WHEREAS, Stockpoint is in the business of providing services for the
customization of, aggregating content for, and hosting of web sites for use over
Internet-based communications networks.
WHEREAS, Licensee desires to obtain from a license to use certain services and
information Stockpoint provides.
THEREFORE, in consideration of the mutual covenants herein exchanged, the
Licensee and Stockpoint agree:
1. Services. During the term of this Agreement Stockpoint shall provide
those services and make available the data more particularly described
in Exhibit A "Content."
2. License.
2.1 Subject to the terms and conditions of this Agreement,
Stockpoint grants, and Licensee accepts, a non-exclusive,
non-transferable, limited license, without right of sublicense, to
access and display Internet web pages created and hosted by Stockpoint,
including the Content that may be displayed through the applications
available thereon, through the Licensee's web site accessed through the
Uniform Resource Locator xxx.xxxxxxx.xxx. Pursuant to the foregoing
license, Licensee may include transparent links from the Licensee's web
site to the web pages hosted by Stockpoint in order to make the same
available to end users.
2.2 Licensee shall not modify the hosted web pages in any
manner. No Content shall be duplicated, re-transmitted, resold or
redistributed by Licensee separate from the hosted web pages. No
Content may be decompiled, rearranged or otherwise used by Licensee
hereunder, and no products may be created by the Licensee using the
Content, or any portion thereof, without the prior written permission
of Stockpoint.
- 1 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
3. Proprietary Rights.
3.1 Content. Licensee acknowledges that the Content is
compiled from the records of Stockpoint and its third party providers.
All rights to the Content remain exclusively the property of Stockpoint
and its third party providers. In the event of any breach of this
agreement Stockpoint or its third party providers shall be entitled to
injunctive relief for the protection and preservation of those rights.
3.2 Marks. Stockpoint is the registered service xxxx of
Stockpoint, Inc. Each party acknowledges that neither party by reason
of this Agreement obtains any rights in the Marks of the other. Neither
shall take any action that might adversely affect the validity or
enforceability of the Xxxx(s) of the other.
4. Fees.
4.1 Payment. As consideration for the license granted and all
other services provided under this Agreement the Licensee agrees to pay
Stockpoint the fees and other charges set forth in Exhibit B "Fees".
4.2 Delayed Payment. All fees are due within 30 days of the
date invoiced. All fees not paid when due shall be subject to a service
charge of 1 1/2% per month until paid in full.
5. Term and Termination.
5.1 Term. The term of this Agreement shall commence with the
Effective Date and, unless sooner terminated hereunder, remain in force
for a period of 2 years from the date Content is first distributed to
Licensee. Thereafter, the Agreement shall be automatically renew for
additional one year periods upon like terms and conditions unless a
party elects not to renew the same by giving written notice thereof no
less than 60 days prior to the expiration of the then current term.
5.2 Material Breach. Either party may terminate this Agreement
in the event of a material breach by the other upon written notice
stating i) the breach upon which the notice is based and ii) that
unless cured within 30 days of receipt of the notice the Agreement will
terminate.
5.3. Other Termination. This Agreement may be terminated by
either party immediately upon the occurrence of any of the following:
5.3.1 If the other ceases to do business, or
otherwise terminates its business operations;
5.3.2 If the other shall fail to promptly secure or
renew any license, registration, permit, authorization or
approval for the conduct of its business in the manner
contemplated by this Agreement or if any such license,
registration, permit, authorization or approval is revoked or
suspended and not reinstated within sixty (60) days;
- 2 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
5.3.3 If the other becomes insolvent or seeks
protection under any bankruptcy, receivership, trust deed,
creditors arrangement, composition or comparable proceeding,
or if any such proceeding is instituted against the other (and
not dismissed within 90 days).
5.4 Pro ration of fees upon termination. Should this Agreement
be terminated for any reason other than at the end of any term, the
fees due shall be pro rated to the date Services cease to be provided
under this Agreement. Any fees paid in excess of those due shall be
refunded to Licensee.
6.0 Attribution, Marketing.
6.1 Attribution. Licensee shall display and link the
Stockpoint registered servicemark, logo and/or textual attribution, and
that of its third party providers when required, on all pages
displaying Stockpoint Information Content.
6.2 Confidentiality, Promotion. Each party shall treat this
Agreement as confidential and shall not disclose to any third parties
any of its specific terms nor any other confidential or proprietary
information related to the technology or business of the other. This
prohibition shall not apply to information (i) rightfully known to or
independently acquired by the receiving party, without access to or use
of the other party's confidential information, (ii) disclosed in
published materials, (iii) generally known to the public, (iv) lawfully
obtained from any third party, or (v) required to be disclosed by law.
7.0 Limited Warranties; Disclaimers.
7.1. Infringement. Stockpoint represents and warrants that it
is the owner of or has the right to license the Content to be provided
under this Agreement, and that to the best of its knowledge, this
Agreement does not infringe upon the copyrights, intellectual or other
proprietary rights of any third party.
7.2 Accuracy. Stockpoint represents that it makes every
reasonable commercial effort to provide prompt service and accurate
Content. Upon notification by Licensee of any inaccuracy in the
Content, Stockpoint shall promptly make corrections to the Content over
which it has editorial control.
7.3 Year 2000 Compliance. Stockpoint represents and warrants
that the Content over which it has control and those services it
provides under this Agreement are Year 2000 Compliant. For the purposes
of this Agreement, the term "Year 2000 Compliant" shall mean i) that
the data which uses, references or relies upon any date, or any
reference to a time period, which occurs or extends before, during or
after the calendar years of 1900-1999 shall be correctly processed in
any use of the Content or any other data contained therein and ii) that
the Content and any services provided will perform properly without
interruption, delay or human intervention prior to, during and after
the year 2000 without error relating to the use, reference or reliance
upon any date.
- 3 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
7.4. Exclusion From Warranties. STOCKPOINT MAKES NO WARRANTY,
EXPRESS OR IMPLIED, (i) AS TO THE TIMELINESS, ACCURACY AND/OR THE
COMPLETENESS OF THE CONTENT OR ANY OTHER DATA CONTAINED THEREIN, (ii)
AS TO RESULTS TO BE OBTAINED BY ANY PERSON OR ENTITY FROM THE USE OF
THE CONTENT OR ANY OTHER DATA CONTAINED THEREIN (iii) AS TO THE
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE
CONTENT OR ANY OTHER DATA THEREIN INCLUDED.
7.5 Limitation of Liability, Remedies. STOCKPOINT SHALL NOT BE
LIABLE TO LICENSEE, ITS USERS OR ANY OTHER PERSON REGARDLESS OF THE
CAUSE OR DURATION ( UNLESS FROM THE GROSS NEGLIGENCE OR WILFULL
MISCONDUCT OF STOCKPOINT) FOR THE RESULTS OF ANY USE OF THE CONTENT OR
ANY OTHER DATA CONTAINED THEREIN, FOR ANY USER'S INABILITY OR FAILURE
TO CONDUCT THEIR BUSINESS, LOST PROFITS, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES. LICENSEE SPECIFICALLY AGREES THAT IN NO EVENT
WILL THE TOTAL LIABILITY OF STOCKPOINT FOR ANY CLAIMS, LOSSES, OR
DAMAGES ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE REMEDIES,
EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO STOCKPOINT DURING THE TERM
OF THIS AGREEMENT.
7.6. Force Majeure. Neither Stockpoint nor Licensee shall have
any liability for any losses arising from the delay in or interruption
in the performance of their obligations under this Agreement due to any
act of God, governmental authority, public enemy or due to war, riot,
fire, flood, civil commotion, insurrection, labor difficulty
(including, without limitation, any strike or other work stoppage or
slowdown) unauthorized third party intervention or intruders, any
internet outage or slow downs beyond their control , severe or adverse
weather condition or other causes beyond their reasonable control.
7.7. Survival. The provisions of this Section 7 shall survive
the termination of this Agreement.
8. Indemnification.
8.1 Mutual Indemnification. Excluding the provisions of
subsection 8.2 hereof, each party ("Provider") will defend and
indemnify and hold harmless the other party ("Recipient") against
losses related to, resulting from, or arising out of any claim that any
information, design, specification, instruction, software, data, or
material furnished by the Provider ("Material") and used by the
Recipient infringes any copyright or patent provided that: (i) the
Recipient notifies the Provider in writing within thirty (30) days of
the claim; (ii) the Provider has sole control of the defense and all
related settlement negotiations, except that the Recipient may retain
control to the extent necessary to protect itself in any matter
involving unindemnified claims; (iii) the Recipient provides the
Provider with the assistance, information, and authority reasonably
necessary to perform the above; and (iv) the Provider reimburses the
Recipient for all reasonable and necessary out-of-pocket expenses
Recipient incurs in providing said assistance.
- 4 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
8.2 Limitations; Exclusions. The Provider shall have no
liability for any claim of infringement resulting from: (i) the
Recipient's use of a superseded or altered release of some or all of
the Material if infringement would have been avoided by the use of a
subsequent unaltered release of the Material which is provided to the
Recipient; or (ii) any information, design, specification, instruction,
software, data, or material originating from a third party.
9. Miscellaneous.
9.1 Relationship. Stockpoint is an independent contractor.
Nothing in this Agreement shall be construed to create a partnership,
joint venture, agency or other legal relationship between the parties.
9.2 Entire Agreement. This Agreement, including exhibits
hereto, constitutes the entire Agreement of the parties and supercedes
all prior written or oral agreements. This Agreement may not be
modified, amended, rescinded, canceled or waived, in whole or on part,
except by written amendments signed by both parties hereto.
9.3 Rules, Regulations, Obligations To Third Party Providers.
Licensee acknowledges that agreements of Stockpoint with certain
financial exchanges and third party data providers may require, among
other obligations (i) that data and information be formatted or
presented differently, (ii) that certain agreements and/or disclaimers
be in place with end users, and (iii) that they may cancel or withdraw
certain information or data in their sole discretion.
9.4 Financial Exchange Agreements. If applicable, Licensee shall
provide Stockpoint with the written acknowledgement of any principal
stock exchange whose data is to be included in the Content that
Stockpoint has the authority to distribute its data to Licensee.
9.5 Substitution of Third Party Providers. Stockpoint may, at
its sole discretion, substitute any third party data provider for one
of comparable quality and content during the Term of this Agreement.
9.6 Assignment. Stockpoint may assign or otherwise transfer its
rights under this Agreement, without the prior written consent of
Client.
9.7 Notices. Notices permitted or required to be given under the
terms of this Agreement shall be deemed given when delivered by (a)
registered or certified mail, postage prepaid, return receipt requested
or (b) private courier service, addressed to the respective parties at
the addresses shown below, or such other addresses as they may from
time to time designate. Notices shall be effective upon receipt by the
party to which notice is given:
To Stockpoint: To Licensee:
Xxx Xxxxxxxx TBD
Stockpoint, Inc. Vertica Software, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx 000 0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000 Xxxxxxxxxx, Xxxxxxxxxx 00000
- 5 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
9.8 Arbitration. Any claim, dispute, controversy or other matter
in question with regard to this Agreement shall exclusively be subject
to final binding arbitration in accordance with the commercial
arbitration rules and regulations of the American Arbitration
Association (AAA).
9.9 Attorney's Fees. The unsuccessful party in any action or
proceeding shall pay for all costs, expenses and reasonable attorneys'
fees ("Legal Fees") incurred by the prevailing party or its agents or
both in enforcing the terms and conditions of the Agreement. The term
"prevailing party" as used herein shall include without limitation (i)
a party who utilizes legal counsel and brings an action against the
other party by reason of the other party's breach or default and
obtains substantially the relief sought by judgment from AAA
arbitrator(s) or a relevant court having jurisdiction over the action
or proceeding in question, and (ii) a party against whom an action is
brought by the other arty when such other party does not obtain
substantially the relief sought by judgment from the AAA arbitrator(s)
or a relevant court having jurisdiction over the action or proceeding
in question.
9.10 Severability. If one or more provisions of this Agreement
are found invalid or unenforceable, the remainder of this Agreement
shall remain in full force and effect unless the business purpose of
this Agreement is substantially frustrated thereby.
9.11 Counterparts. This Agreement may be executed in two or more
counterparts, and each such counterpart shall be deemed an original
thereof.
9.12 Waiver. The failure of either party to take any action or
assert any right hereunder shall not be deemed to be a waiver of such
right in the event of the continuation or repetition of the
circumstances giving rise to such rights.
9.13 Governing Law. This Agreement shall be governed by the
laws of the State of California.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
STOCKPOINT, INC. Licensee
Signature: ________________________ Signature: __________________________
Name:______________________________ Name:_______________________________
Title:__________________________ Title:___________________________
Date:__________________________ Date:___________________________
- 6 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
EXHIBIT A
"Content and Delivery"
1. Stockpoint Content & Deliverables
Stock Quotes - North America (Delayed)
This custom-tailored Stock Quote service displays delayed stock quote
information. The detailed information includes 20 minute delayed price quote
information including, open, change, high, low, earnings per share, volume,
shares outstanding, market capitalization, P/E ratio, and industry sector. A
ticker look-up feature is also included. North American quote information is
available for companies listed on the NYSE, NASDAQ-Amex and Canadian exchanges.
Major U.S. Market Indices
The Major Market Indices component displays a monitor of the major U.S. indices,
including Dow Xxxxx, NASDAQ-Amex, S&P 500, and the Xxxxxxx 2000. Additional U.S.
market indices may also be included as part of the market update.
Most Active Stocks
Top 10 most active US stocks from each exchange, including NYSE, NASDAQ-Amex,
and OTCBB. Most active stocks are displayed in five categories including: Most
Actives, Biggest Gainers, Biggest Losers, Percent Gainers and Percent Losers.
The stocks are updated intra-day on a 15 minute delayed basis.
Watch List Generator
The GIF generator is most often used to display dynamic data on a homepage when
the homepage is not in a framed or hosted environment, such as hosting a
thumbnail GIF chart on a homepage. The GIF Generator can be incorporated into
any web page, and this application will generate a GIF image of a watchlist
table based on the criteria provided.
- 7 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
2. Hosting Services
o Stockpoint will host and serve the financial content for Client
o Stockpoint will provide a 1-800 # for off hours customer support
o Stockpoint will provide 3 points of contacts for during business hours
operation
o Stockpoint will provide all necessary hardware, bandwidth, and
infrastructure administration
o Stockpoint will notify Client of planned, off-hours maintenance at least 48
hours in advance
3. Delivery Schedule
Stockpoint's delivery schedule and production commences upon receipt of the
following deliverables:
Signed contract
HTML Layout
Page Design
After receiving the above deliverables, Stockpoint will commence production and
provide a detailed delivery schedule.
Any major changes to the scope of work after beta review may affect budgets,
timelines and delivery dates.
- 8 -
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
EXHIBIT B
"Fees"
1. Fees
All Content is provided on an annual licensing fee. The fees below include the
complete customization, integration, hosting and maintenance of the Content
pages.
A. Set-up Fee
One Time Customization Fee: $ 3,500
B. Content and Annual Fees
Content
Stock Quotes - N. America (Delayed)
Major U.S. Market Indices
Most Active Stocks
Competitive Tracker
Annual License Fee: $36,125
C. Maintenance Fees
The Annual License fee includes up to 150,000 page views per month of Stockpoint
hosted pages. Each page view over that amount per month will be charged 1/2
xxxxx ($.005) per page.
2. Payment Schedule
Payments are due as follows: $3010.42 plus the set-up fee ($3,500) is due upon
contract execution. The remaining portion of the contract amount will be due in
monthly payments as follows:
Payment Amount Due Date Payment Amount Due Date
-------------- -------- -------------- --------
$6,510.42 02/01/00 $3,010.42 02/01/01
$3,010.42 03/01/00 $3,010.42 03/01/01
$3,010.42 04/01/00 $3,010.42 04/01/01
$3,010.42 05/01/00 $3,010.42 05/01/01
$3,010.42 06/01/00 $3,010.42 06/01/01
$3,010.42 07/01/00 $3,010.42 07/01/01
$3,010.42 08/01/00 $3,010.42 08/01/01
$3,010.42 09/01/00 $3,010.42 09/01/01
$3,010.42 10/01/00 $3,010.42 10/01/01
$3,010.42 11/01/00 $3,010.42 11/01/01
$3,010.42 12/01/00 $3,010.42 12/01/01
$3,010.42 01/01/01 $3,010.42 01/01/02
- 9-
License Agreement
Vertica Software, Inc. / Stockpoint Inc.
