Exhibit 4.66
FORM OF AMENDED AND RESTATED
ELECTRONIC DISTRIBUTION AGREEMENT
This Agreement is amended and restated this 14th day of February, 2003 between
Infomart Limited a company governed by the laws of Canada ("Infomart") and
______________________ (the "Company") a company governed by the laws of Canada
to reflect certain amendments to the agreement entered into by the parties as of
April 30, 2002, such amendments made as of and to take effect on February 14,
2003 as follows:
1. LICENSE
(a) Subject to the terms and conditions contained in this
Agreement, Company grants to Infomart a perpetual, world-wide
right and license to offer and sublicense all news and
editorial materials and photographs contained in all of its
publications owned now (the "Publications") (such news and
editorial materials and photographs being herein the
"Content") in conjunction with present and future digital
information storage and retrieval products and services (the
"Infomart Services"), including but not limited to: (i)
receiving, reproducing, re-marketing, displaying and
distributing the Content; (ii) making storage copies of
portions of the Content; and (iii) granting to the subscribers
of Infomart Services the right to search, display, copy and
download all or a part of the Content.
(b) For a period of two years beginning on February 14, 2003,
Company shall not grant the right and license to offer the
news and editorial materials in the Publications in
conjunction with present and future digital information
storage and retrieval products and services to any third party
except to satisfy requirements imposed by membership in the
CanWest News Network (formerly the Southam News Network) and
Canadian Press. Company represents and warrants that it has
not granted any such right or license to any third party in
the past except in respect of CanWest News Network and
Canadian Press and the right and license granted by Company to
Xxxxxx.xxx New Media Inc. dated April 30, 2002 which is a
continuation of a prior license to Xxxxxx.xxx New Media Inc.
and its predecessors which right and license shall be
terminated on February 14, 2003. Notwithstanding the
foregoing, the Company may offer the Content directly to
subscribers through its own web site.
2. LICENSE TO COMPANY
Company shall have access to the Infomart Services in respect of the Content and
the news and editorial materials and photographs of the CanWest network of
publications (the "CanWest Content"). Company shall only access the CanWest
Content for the purpose of research by Company and shall not reproduce or
redistribute the CanWest Content in any form. Company shall pay Infomart a
monthly fee to be agreed to by the parties failing which agreement no access to
the CanWest Content will be provided. Access to the Content shall be provided at
no cost.
3. CONTENT DELIVERY
Company shall, at its own expense, provide or cause the Publications to provide
the Content to Infomart, in accordance with formatting and the delivery
requirements of Infomart communicated to Company by Infomart from time to time.
4. CONTENT ENHANCEMENT
(a) Upon receipt of the Content in accordance with Section 3,
Infomart shall enhance the Content, including indexing,
archiving and converting the Content into a form appropriate
for on-line use, and will charge Company hourly fees for this
enhancement as provided by written notice to Company from time
to time.
(b) At the option of the Company, any Content provided to Infomart
may be enhanced by the Company in a form acceptable to
Infomart, in its reasonable discretion, in which event the
provisions of Section 4(a) shall not apply.
5. ROYALTY PAYMENTS
In consideration of the rights and license granted to Infomart and the other
agreements of the Company hereunder, Infomart shall pay to Company a monthly
royalty payment equal to forty percent (40%) of the revenue Infomart receives
from subscribers (excluding any subscribers who are affiliates of Infomart),
which Infomart attributes to the Content ("Royalty Payment"). In determining the
revenue for the Royalty Payment calculation, Infomart shall: (a) attribute the
revenue in accordance with Infomart's current method of apportionment, which may
change from time to time upon Notice, and shall use all reasonable efforts to
attribute the revenue in an equitable manner so as not to discriminate amongst
providers of content; and (b) deduct from the revenue any administrative fees
charged by Infomart to the subscribers in accordance with its current practices
which maybe changed from time to time upon Notice. Royalty Payments shall be
made monthly within forty-five (45) days of the end of the month in respect of
which the Royalty Payment is calculated.
6. REPORTS
Within forty-five 45 days of the end of each month Infomart shall deliver to the
Company, together with the Royalty Payment due to the Company for such month, a
report describing the manner in which the Royalty Payment was calculated.
7. INSPECTION
Company, at its expense, and upon at least thirty (30) days' Notice to Infomart,
shall have the right once in any twelve (12) month period to designate auditors
(the "Auditor"), satisfactory to Infomart acting reasonably, who may examine
Infomart's relevant books and records in order to verify the figures reported in
any monthly report, the manner in which they were calculated and the amounts
owed to Company pursuant to this Agreement. Such books of account and records
will be made available to the Auditor at the place where they are kept in the
ordinary course of business or at a location mutually agreed between the
parties. If, as a result of such examination the Auditor determines that
Infomart misreported any figure or underpaid any amount, Company
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will furnish to Infomart a copy of the report of the Auditor setting forth the
discrepancy showing, in reasonable detail, the basis upon which same was
determined. If Infomart agrees with the report, Infomart will remit to Company a
sum equal to the amount of any underpayment within thirty (30) days after Notice
to Infomart of the discrepancy. If Infomart does not agree with the report and
the parties are unable to agree on a resolution of the dispute within such
thirty (30) day period, the dispute will be referred to an independent auditor
which shall be a partner in an international accounting firm with no recent
connection to the parties as agreed by the parties and failing agreement to an
auditor chosen by a judge of the Ontario Superior Court. If the discrepancy is
greater than five percent (5%) of the total amount reported by Infomart to be
payable to Company for the period examined, then Infomart will reimburse Company
for the reasonable out-of-pocket cost of such examination.
8. CANCOPY
Subject to the terms of the applicable CANCOPY agreements, Infomart will manage
Company's membership in CANCOPY and any successor entity, including the
negotiation of the terms of membership, participation in licensing agreements
and tariffs. All revenue received by Infomart from CANCOPY in respect of
Company's membership in CANCOPY will be paid to Company in full, together with
copies of all reports and other relevant documentation. Upon not less than
thirty (30) days Notice, Infomart or Company may terminate Infomart's management
of Company's membership in CANCOPY.
9. RETENTION OF PROPRIETARY RIGHTS
Except as specifically provided in this license, Infomart shall acquire no
right, title or interest in or to any of the Content or any copyrights,
trademarks, service marks, trade secrets, patents or any other intellectual
property or intangible property or proprietary rights of Company by reason of
the license granted to Infomart hereunder, except that Infomart shall have and
retain all right, title and interest in the compilation work resulting from the
selection and arrangement of the Content with third party content.
10. PROMOTION
Infomart may promote and market the availability of the Content with respect to
the Infomart Services, subject to Company's prior written consent to the
applicable promotion and marketing material, which consent will not be
unreasonably withheld. Company hereby grants to Infomart a worldwide and
non-exclusive license to use the Company's trade-marks, trade names and logos
for the sole purpose of promoting and marketing the Content.
11. CONFIDENTIALITY
At all times during and after the term of this Agreement, each party will
maintain the confidentiality of any information supplied to it which is
designated as confidential or which by its nature should be considered to be
confidential, including without limitation the terms of this Agreement.
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12. TERM
This Agreement shall continue until February 14, 2006, unless it is terminated
in accordance with Section 13.
13. TERMINATION
(a) Either party may terminate this Agreement immediately
upon Notice to the other party in the event that: the other
party breaches or fails to perform in any material respect any
of its obligations under this Agreement, and such breach or
failure to perform remains unremedied (if capable of being
remedied) for a period of thirty (30) days after Notice of
such breach or failure has been provided to the other party;
or the other party makes a general assignment for the benefit
of creditors or a proposal or arrangement under applicable
bankruptcy and/or insolvency legislation, a bona fide petition
is filed against the other party under applicable bankruptcy
and/or insolvency legislation, the other party shall be
declared or adjudicated bankrupt, a liquidator, trustee in
bankruptcy or any other officer with similar powers shall be
appointed of or for the other party or the other party shall
commit an act of bankruptcy or shall propose a compromise or
arrangement or institute proceedings to be adjudged bankrupt
or become insolvent or consent to the institution of such
appointment or proceedings.
(b) Infomart may terminate this Agreement in respect of a
Publication upon thirty (30) days' Notice to Company if the
inclusion of and offering of such Publication as part of
Infomart's Services would be detrimental to Infomart in the
reasonable opinion of Infomart.
(c) Infomart may terminate this Agreement upon not less than six
(6) months' prior Notice to the Company in the event it
determines to discontinue providing the Infomart Services to
third parties or to any of the publications of its affiliates.
14. EFFECT OF TERMINATION OR EXPIRY
Upon termination or expiry of this Agreement, Company or the Publications shall
cease to provide the Content to Infomart. In respect of the Content provided
prior to termination or expiry of this Agreement, Infomart may continue to
exercise the rights and licenses granted herein on a non-exclusive basis and, if
so exercised, shall continue to pay Royalty Payments to Company and deliver to
Company the reports referred to in Section 6.
15. COMPANY OBLIGATIONS
Company shall ensure that and represents and warrants to Infomart as a
continuing representation and warranty that:
(a) the Content does not and will not infringe any intellectual
property right of any third party;
(b) the Content is not libelous or defamatory;
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(c) the exercise by Infomart of the rights granted under this
Agreement will not infringe any intellectual property right of
any third party or infringe the privacy or publicity rights of
any third party; and
(d) the Content has been and will be prepared by employees of
Company in the course of their employment with Company or by
persons who have assigned to Company, in writing, all their
right, title and interest in the Content and such employees
and persons have waived any and all moral rights in the
Content.
16. INDEMNITY
(a) Company will, at its own expense, defend and save harmless
Infomart and its affiliates and subsidiaries from and against
any claims, demands, actions, causes of action, damage, loss,
costs, liability or expense which may be made or brought
against Infomart or which Infomart may suffer or incur as a
result of or in connection with: (a) any default, breach or
alleged default or breach of the Company's obligations,
representations, warranties and covenants under this
Agreement; or (b) any act or omission on the part of Company.
(b) Infomart will, at its own expense, defend and save harmless
the Company and its affiliates and subsidiaries from and
against any claims, demands, actions, causes of action,
damage, loss, costs, liability or expense which may be made or
brought against the Company or which the Company may suffer or
incur as a result of or in connection with: (a) any default,
breach or alleged default or breach of the Infomart's
obligations, representations, warranties and covenants under
this Agreement; or (b) any act or omission on the part of
Infomart.
17. LIMITATION OF LIABILITY
In no event shall either party be liable to the other for any indirect, special,
punitive, incidental or consequential damages whatsoever (including, without
limitation, damages for loss of business profits, business interruption, loss of
business information, or any other pecuniary loss) arising out of or related to
any breach of this Agreement.
18. SURVIVAL
Sections 1, 5, 6, 7, 9, 10, 11, 14, 15, 16, 17, 18, 20, 21, 22 and 25 shall
survive termination or expiration of this Agreement for any reason.
19. RELATIONSHIP OF PARTIES
Nothing in this Agreement shall be construed as creating an employer-employee
relationship, a partnership, agency, franchise or a joint venture between the
parties and neither party shall have the right, power or authority to obligate
or bind the other party in any manner whatsoever without such party's written
consent.
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20. GOVERNING LAW AND ATTORNMENT
This Agreement shall be governed by the laws of the Province of Ontario and the
federal laws of Canada applicable therein. Subject to Section 21, each of the
parties hereto shall attorn and submit to the exclusive jurisdiction of the
courts of the Province of Ontario.
21. ARBITRATION
In the event of any dispute, claim, question or disagreement arising out of or
relating to this Agreement ("Dispute"), the parties shall use all reasonable
efforts to settle such Dispute within a period of thirty (30) days of one party
giving Notice of the Dispute to the other. If settlement cannot be reached
within thirty (30) days, or such longer period as the parties may agree, either
party may provide written notice to the other ("Notice to Arbitrate") and such
Dispute shall be finally determined by arbitration from which there shall be no
appeal to be held in accordance with the provisions of the Ontario Arbitration
Act, 1991. The arbitration shall be heard by a single arbitrator agreed to by
the parties and failing such agreement either party may apply to a judge of the
Ontario Superior Court to appoint the arbitrator on behalf of the parties. The
Notice to Arbitrate shall set out a concise description of the Dispute to be
submitted to arbitration and shall be delivered to the other party. The
arbitration, including the rendering of the award or decision, shall take place
in Xxxxxxx, Xxxxxxx, which shall be the seat of the proceedings. The language to
be used in the arbitration shall be English. Nothing in this Section precludes a
party from seeking interim relief by way of an injunction (mandatory or
otherwise) or other interim equitable relief in the Ontario Superior Court in
connection with this Agreement.
22. ASSIGNMENT
(a) Except with the written consent of the other party, which can
be arbitrarily withheld, or as provided in this Section, this
Agreement may not be assigned by either party.
(b) This Agreement may be assigned by a party to an affiliate of
such party provided the assignor shall remain liable for all
obligations of the assignee.
(c) This Agreement may be assigned by Infomart to any successor to
the business of Infomart upon Notice to the Company.
(d) This Agreement may be assigned by the Company in connection
with an initial public offering transaction including to an
income trust or limited partnership upon Notice to Infomart.
23. CONSTRUCTION AND WAIVER
If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision of the
Agreement will be enforced to the maximum extent permissible so as to effect the
intent of the parties, and the remainder of this Agreement will continue in full
force and effect. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any other
provision.
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24. ENTIRE AGREEMENT AND MODIFICATION
This Agreement constitutes the entire agreement between Infomart and Company
with respect to the subject matter hereof and supersedes and terminates any and
all prior agreements or contracts, written or oral, entered into between the
parties relating to the subject matter hereof. Any representations, promises or
conditions in connection therewith not in writing signed by both parties shall
not be binding upon either party.
25. NOTICE
All notices ("Notices") required or permitted by this Agreement shall be given
in writing and delivered personally or by courier, transmitted by facsimile or
email (with confirmation of receipt) to Infomart at:
Xxxxxx Xxxxxx, President
Infomart Limited
c/o CanWest Global Communications Corp.
CanWest Publications Inc.
0000 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
FAX: 000-000-0000
Email: xxxxxxx@xxxxxxxx.xx
and to CanWest Global Communications Corp. at:
Xxxx Xxxxxxx, Senior Vice-President and
Chief Operating Officer CanWest Interactive
00xx Xxxx, Xxxxxxx-Xxxxxxxx Centre
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
FAX: (000) 000-0000
Email: xxxxxxxx@xxxxxxx.xxx
Xxxxxxx Xxxxxxx, Vice-President and General Counsel
00xx Xxxxx, Xxxxxxx-Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx X0X 0X0
FAX: (000) 000-0000
Email: xxxxxxxx@xxxxxxx.xxx
and to Company at: Xxxxxxx Xxxxxx
cc. Xxxx Xxxxxx
Osprey Media Group Inc.
00 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
FAX: (000) 000-0000
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or to such other address as either party may from time to time designate in
writing. Notices shall be deemed given on the day of actual delivery if
delivered prior to 5 PM and the day after transmission if delivered by facsimile
or email.
26. SUCCESSORS AND ASSIGNS
This Agreement shall ensure to the benefit of and be binding upon the parties
and their respective successors (including any successor by reason of
amalgamation of any party) and permitted assigns.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF the parties have executed this Electronic Distribution
Agreement as of the date first written above.
INFOMART LIMITED
By: ___________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Director
By: ___________________________________
Name: Xxxxxx X. Xxxxxx
Title: Director
_______________________________________
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
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