S&P XXXXXXXX INFORMATION DISTRIBUTION
LICENSE AGREEMENT
AGREEMENT, made as of 1-16-98, by and between S&P XxxXxxxx, Inc. a
corporation having offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000,
and Global investor's Guide ("Distributor"), having an office at 0000 Xxxxxx
Xxx Xxx, Xxxxx 0, Xxx Xxx, 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 ComStockInformation 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
transmissiondigitizing) 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 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.
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 nonComStock 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 Tights 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
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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 war-rants 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 impose 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.
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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 $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. Nonrecurring 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
Redistribution Fee, as calculated using the Schedule of Fees attached hereto as
Exhibit D.
(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 Redistribution 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.
(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.
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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 three
(3) years commencing on the first day of service operation and shall continue
thereafter for additional consecutive twelve (12) month terms, unless written
notice of termination shall have been received by either party from the other
at least ninety (90) days prior to the end of the initial term or of any
additional twelve-month 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. Fights 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
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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 inInternaltemal
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 AgreementNotwithstanding 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 Mures.
10. Right of Termination in the Event of Breach or Bankruptcy-, Fight 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.
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(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.
11. Assignment.
This Agreement may not be assigned, sublicensed or otherwise
transferred by either party without the written consent, except to a wholly
owned subsidiary, of the other party, such consent not to be unreasonably
withheld, provided, however, that no such consent shall be required with
respect to any assignment by S&P XxxXxxxx, Inc. to its parent company, or to
any S&P XxxXxxxx, Inc. affiliate. Any attempted transfer or assignment of this
Agreement in violation of this provision shall be null and void.
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.: Xxxx Xxxxxx
To: Global Investor's Guide
0000 Xxxxxx Xxx Xxx
Xxxxx 0
Xxx Xxx, XX 00000
Attn: Xxxx Xxxxx
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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: /s/ Xxxx X. Xxxx
Title: V.P. of Sales
Date: Feb 2, 1998
DISTR1BUTOR
By: /s/ Xxxx Xxxxx
Title: PRESIDENT, Global Investors Guide
Date: January 21, 1998
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