Marketing Partner Agreement
THIS
AGREEMENT is made as of Thursday, December 15, 2005 between California News
Tech
a Nevada company with its principal offices at 000 Xxx Xxxx Xxx, Xxx Xxxxxxxxx,
XX (“Marketing Partner”), and Equis International, LLC., a Delaware company with
its principal offices at 00 Xxxxx 000 Xxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx
00000 (“Equis”).
| 1. |
DEFINITONS
|
a. ProductsThe
term
“Product” and “Products” means (i) the object code version of the computer
software described in Exhibit A, including any corrections, fixes, revisions,
enhancements, updates, upgrades or new versions thereof that Equis makes
generally available to its customers during the term of this Agreement (the
“Software”) and the data information service for End-Of-Day “Reuters DataLink”
and for Real-Time quotes and news “MetaStock QuoteCenter” (the “Data Products”),
(ii) the published user manuals and documentation that Equis makes generally
available for the Software (the “Documentation”) and (iii) all copies of the
foregoing items.
b. TerritoryThe
term
“Territory” means the market area in which Marketing Partner is authorized to
promote and market the Products, defined by geography, industry or other
criteria as described in Exhibit A.
| 2. |
APPOINTMENT
|
a. General
Subject
to this Agreement, Equis hereby grants to Marketing Partner, and Marketing
Partner hereby accepts from Equis, the non-exclusive, non-transferable, right
to
use, market, promote, and assist Equis in marketing and promoting the Products
within the Territory.
b. Non-Exclusivity
In
no
event shall either party be precluded from entering into any other alliance,
marketing and/or sales or other similar agreements or arrangements with other
parties. Equis also acknowledges and agrees that nothing herein shall preclude
Marketing Partner from developing a competitive product to the Products. Equis
acknowledges that Marketing Partner’ obligations to promote the Products under
this Agreement are on a strictly non-exclusive basis.
| 3. |
MARKETING
PARTNER’ OBLIGATIONS
|
a. Marketing
Efforts.
Marketing Partner shall promote and assist Equis in marketing the Products
within the Territory as set forth in the Exhibit A, attached hereto. To the
extent Marketing Partner conducts activities under this Agreement, Marketing
Partner shall, at all times, conduct such activities in a manner consistently
with maintaining the goodwill and business reputation of Equis.
b. Promotional
LiteratureMarketing
Partner may use the brochures and other promotional literature describing the
Products that Equis may provide Marketing
Partner
(the “Promotional Literature”). Equis represents and warrants that, prior to any
modifications that Marketing Partner may make as permitted herein, the
Promotional Literature accurately describes the Products. Marketing Partner
may
modify such Promotional Literature or create its own Promotional Literature
for
the Products. Any modifications to the Promotional Literature or Marketing
Partner-created Promotional Literature shall be submitted to Equis for its
approval, which shall not be unreasonably withheld, prior to use by Marketing
Partner. If Equis does not respond to Marketing Partner’ request to review such
modifications or Marketing Partner-created Promotional Literature within fifteen
(15) business days, Marketing Partner is authorized to make such modifications
or to use and distribute such Promotional Literature created by Marketing
Partner. All copies shall contain any copyright notices contained in the
original.
c. Marketing
ActivitiesSubject
to Section 2(b), above, Marketing Partner will use its reasonable commercial
efforts to promote and market the Products and will undertake the activities
set
forth on Exhibit A. Marketing Partner’ activities under this Section are subject
to Section 9.
d. LimitationMarketing
Partner shall be allowed to solicit Nonprofessional individuals that Marketing
Partner believes may have an interest or need for the Products. For the purpose
of this agreement “Nonprofessional” shall be defined as individual investors,
whom shall receive Market Data solely for his or her personal, non-business
use,
whom Marketing Partner has determined to qualify as a “Nonprofessional
Subscriber” and who is not trading other peoples money, not employed by a
financial institution and is not a business or organization.
| 4. |
EQUIS’S
OBLIGATIONS
|
a. Supply
and Use of Marketing Material Equis
shall provide Marketing Partner at no charge with promotional materials as
Equis
deems appropriate for Marketing Partner to promote and assist Equis in marketing
the Products. At Marketing Partner’ request, Equis shall provide Marketing
Partner at no charge with additional quantities of such materials, subject
to
their availability from Equis.
| 5. |
PRICES
AND PAYMENT
|
a. Marketing
FeesFor
each
customer who purchases a Software product or subscribes to Data Product referred
to Equis by Marketing Partner (“Customer”), and continuing so long as the
Customer remains a subscriber, Equis shall pay Marketing Partner a marketing
fee
(“Fees”) as set forth in Exhibit A. Provided that Marketing Partner fulfills its
marketing obligations under the terms of this agreement.
b. Method
and TimeUnless
Marketing Partner has otherwise agreed in writing on a case-by-case basis,
Equis
shall pay Marketing Partner the Fees earned by wire transfer or check within
forty-five (45) days after the end of each Equis’ fiscal month, as set forth in
Exhibit A, in which Equis receives the gross revenues on which such Fees are
based.
2
c. Accounting
for ReceiptsConcurrently
with the monthly remittance to Marketing Partner of Fees, Equis shall furnish
Marketing Partner with a written accounting of all gross receipts and
adjustments thereto used in calculating “Net Receipts” as that term is defined
in Exhibit A.
| 6. |
INDEMNIFICATION
OBLIGATIONS OF EQUIS
|
a. Indemnity.Equis
will defend Marketing Partner at Equis’ expense and, subject to this Section and
Section 7, will pay losses, liabilities, damages, costs and expenses (including,
without limitation, reasonable attorneys’ fees and expenses) suffered or
incurred by Marketing Partner and its affiliates arising out of Equis’
infringement or violation of the proprietary or intellectual property rights
of
any third party (an “Infringement Claim”), but only if (i) the Marketing Partner
notifies Equis promptly upon learning that the Infringement Claim might be
asserted, (ii) Equis has sole control over the defense of the Infringement
Claim
and any negotiation for its settlement or compromise and (iii) that Marketing
Partner provides reasonable cooperation to Equis, at Equis’ expense, regarding
such Infringement Claim.
b. Limitation.Equis
will have no indemnity obligation to Marketing Partner if the Infringement
Claim
results from (i) a correction or modification of the Product by Marketing
Partner not provided by Equis, or (ii) the combination of the Product by
Marketing Partner with other items not provided by Equis.
| 7. |
LIMITATION
OF LIABILITY AND DISCLAIMER OF
WARRANTIES.
|
UNDER
NO CIRUMSTANCES WILL EITHER PARTY OR ITS RELATED ENTITIES OR PERSONS BY LIABLE
FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVIE, OR INCIDENTAL DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS (INCLUDING, BUT NO LIMITED
TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE
PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK
OR
IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, REGARDLESS
OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ANY REMEDY
IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EXCEPT FOR EQUIS’
INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL THE AGGREGATE LIABILITY
WHICH EQUIS AND ITS RELATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED
THE TOTAL AMOUNT OF FEES OWED BY EQUIS TO MARKETING PARTNER UNDER THIS
AGREEMENT. EXCEPT AS SET FORTH IN THIS AGREEMENT, EQUIS MAKES NO WARRANTY OR
CONDITION TO MARKETING PARTNER REGARDING THE PRODUCTS AND EXCLUDES ALL EXPRESS
OR IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3
| 8. |
INFORMATION
|
a. Xxxxxxxxxxxxxxx.Xxxxxxxxx
Partner acknowledges that the Products and all related technical, financial,
and
business materials and incorporate confidential and proprietary information
developed or acquired by or licensed to Equis (the “Information”). Marketing
Partner will take all reasonable precautions necessary to safeguard the
confidentiality of the Information, including those taken by Marketing Partner
to protect its own confidential information.
b. Xxxxxxxxx.Xx
between Marketing Partner and Equis, and except as set forth herein, all
patents, copyrights, trade secrets and other proprietary rights in or related
to
the Products, Promotional Materials and items of Information are and will remain
the exclusive property of Equis or its licensors. Marketing Partner will not
acquire any right in the Products, Promotional Literature or Information.
c. Use. Marketing
Partner will use the Products and other items of Information exclusively to
perform its marketing activities pursuant to this Agreement. Marketing Partner
will not duplicate the Products or other items of Information in a manner not
permitted under this Agreement without Equis’ specific approval.
d. Xxxxxxxxxx.Xxxxxxxxx
Partner will not disclose, in whole or in part, any item of Information to
any
individual, entity or other person, except to those of Marketing Partner’s
employees who require access to perform its obligations under this Agreement,
provided that nothing herein shall be deemed to restrict or limit Marketing
Partner’s rights to market the Product as granted elsewhere in this
Agreement.
e. Limitation.
Marketing
Partner will have no confidentiality obligation with respect to any portion
of
the Information that (i) Marketing Partner independently knew or developed
before receiving the Products or Information from Equis; (ii) Marketing Partner
lawfully obtained from a third party under no obligation of confidentiality;
(iii) became available to the public other than as a result of an act or
omission of Marketing Partner or any of its employees or customers in violation
of this Agreement, or (iv) is required to be disclosed by applicable law or
at
the direction of a court of competent jurisdiction or appropriate governmental
agency.
If
the
disclosure referred to in subsection (e)(iv) above is required, Equis shall
give
Marketing Partner reasonable
notice to afford it the opportunity to seek a protective order or other
appropriate remedy and/or waive compliance with the non-disclosure provisions
of
this Agreement. Equis will reasonable cooperate with Marketing Partner in
connection with Marketing Partner’s efforts to seek such an order or other
remedy.
9. MARKS
a. Ownership
of Equis Marks.
As
between Marketing Partner and Equis, all trademarks, service marks, trade names,
domain names, logos or other words or symbols identifying the Products or Equis’
business (the “Equis Marks”) are and will remain the exclusive property of Equis
or its licensors. Marketing Partner will not knowingly jeopardize Equis’ or its
licensors’ proprietary rights or acquire any right in the Equis Marks, except
the limited use rights specified in Paragraph 9(b). Marketing Partner will
not
register, directly or indirectly, any trademark, service xxxx, trade name,
copyright, company name or other proprietary or commercial right, which is
identical or confusingly similar to the Equis Marks.
4
b. Use
of Equis Marks.
Marketing Partner will use the Equis Marks exclusively to advertise and promote
the Products. All advertisements and promotional materials will clearly identify
Equis as the owner of the Equis Marks and conform to Equis’ trademark and logo
guidelines which have been provided to Marketing Partner. Before publishing
or
disseminating any advertisement or promotional material bearing a Equis Xxxx,
Marketing Partner will deliver a sample of the advertisement or promotional
materials to Equis for prior approval. If Equis notifies Marketing Partner
that
the use of the Equis Xxxx is inappropriate, Marketing Partner will not publish
or otherwise disseminate the advertisement or promotional materials until they
have been modified to Equis’ reasonable satisfaction.
c. Infringement.
Marketing Partner will promptly notify Equis if Marketing Partner learn (i)
of
any potential infringement of the Equis Marks by a third party or (ii) that
the
use of the Equis Marks may infringe the proprietary rights of a third
party.
10. TERM
AND TERMINATION
a. Term.
This
agreement will become effective as of the date first set forth above, upon
its
execution by Equis and Marketing Partner, and shall remain in effect thereafter
for a term ending on the date specified in Exhibit A, unless earlier terminated
under Section 10(b) or 10(c). This Agreement will automatically renew for
additional terms of one (1) year each, unless either party notifies the other
in
writing of its intention not to renew this Agreement at least ninety (90) days
before the expiration of the initial term or any renewal thereof.
b. Termination
by Either Party.
Either
party will have just cause to terminate this Agreement immediately upon notice
to the other party, without judicial or administrative notice or resolution,
upon the occurrence of any termination event specified below or elsewhere in
this Agreement.
(1) Material Breach.
The
other party or any of its employees materially breaches any material obligation
under this Agreement and fails to cure the breach to the non-breaching party’s
satisfaction within thirty (30) days after the non-breaching party demands
its
cure.
(2) Normal
Business.
The
other party ceases to conduct business in the normal course, becomes insolvent,
enters into suspension of payments, moratorium, reorganizing or bankruptcy,
makes a general assignment for the benefit of creditors, admits in writing
ins
inability to pay debts as the mature, suffers or permits the appointment of
a
receiver for its business or assets, or avails itself of or becomes subject
to
any other judicial or administrative proceeding that relates to insolvency
or
protection of creditors’ rights.
5
11. CONSEQUENCES
OF TERMINATION
a. Termination
Obligations.
Upon the
expiration of this Agreement under Section 10(a), above, or its termination
under Section 10(b), above, all rights granted to Marketing Partner hereunder
shall immediately cease, and each party shall (i) promptly comply with the
termination obligations specified below and (ii) otherwise cooperate with the
other to terminate relations in an orderly manner.
(1) Payments.
Equis
shall immediately pay Marketing Partner all Fees that have accrued and remain
owing to Marketing Partner as of the effective date of such expiration or such
termination and shall simultaneously furnish Marketing Partner with the written
accounting under Section 5(c), above. Marketing Partner shall not accrue any
Fees after the effective date of such expiration or such
termination.
(2) Products.
Marketing Partner shall immediately deliver to Equis or its designee all
Products within Marketing Partner’ possession or control.
(3) Materials. Marketing
Partner shall, at Equis’s option, destroy or deliver to Equis or its designee
all items within Marketing Partner’ possession or control that contain any
Information or that bear an Equis Xxxx, other that Promotional Literature
created by Marketing Partner.
b. Survival. The
provisions of Sections 6, 7, 8, 9, 11, 13, 17, and 18 shall survive the
expiration or termination of this Agreement.
12. INDEPENDENT
PARTIES
a. Independent
Parties. Equis
and
Marketing Partner are independent parties and nothing under this Agreement
shall
be deemed to make either of them an employee, franchisee, joint venture,
partner, agent or legal representative of the other. Except as otherwise
provided in this Agreement, no party shall have the authority, and no party
shall represent that it has the authority, to act for or in behalf of the other
or to otherwise bind the other party in any manner whatsoever, including,
without limitation, the making of any representations or warranties in behalf
of
such other party.
13. NOTICES
a. Manner
of Giving Notice.
Any
notice to be given under this Agreement will be given in writing and may be
sent
by telefax, courier, or registered airmail, postage prepaid, to the address
specified below or to any other address that may be designated by prior notice.
Any notice or other communication delivered by telefax will be deemed to have
been received the day it is sent. Any notice or other communication sent by
courier will be deemed to have been received on the third (3rd)
day
after its date of posting. Any notice or other communication sent by registered
airmail will be deemed to have been received on the seventh (7th)
business day after its date of posting.
6
b. Notice
Addresses. The
addresses for any written notice or written consent under this Agreement shall
be as follows:
| If to Equis | If to Marketing Partner |
|
Equis International
00 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Legal Department
cc: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
|
California News Tech
000 Xxx Xxxx Xxx #000-000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxxxx.xxx
|
14. ASSIGNMENT.
This
Agreement, and each and every right and obligation under this Agreement, is
not
assignable without the other party’s prior, express, written consent; provided
further, however, that Marketing Partner agrees this Agreement to Reuters Group
PLC or any of its direct or indirect subsidiaries from time to time. Any
attempted assignment in violation of this Section 14 shall be void.
15. WAIVER
AMENDMENT
If
either
party delays or fails to exercise any right or remedy under this Agreement,
such
party shall not be deemed to have waived such right or remedy. This Agreement
may be amended, revised or otherwise changed only expressly in a prior writing
signed by the parties.
16. SEVERABILITY
If
any
provision of this Agreement that is not fundamental is found to be illegal
or
otherwise unenforceable, such provision shall be severed and shall not cause
the
remaining provisions of this Agreement to be unenforceable.
17. GOVERNING
LAW
This
Agreement will be deemed to have been executed in the State of New York and
will
be governed by and construed in accordance with the laws of the State of New
York. Marketing Partner and Equis both consent to the non-exclusive jurisdiction
of the courts of the State of New York or the United States District Court
for
the Southern District of New York for the purpose of any action or proceeding
brought by either party in connection with this Agreement.
7
18. ENTIRE
AGREEMENT
This
Agreement sets forth the entire agreement of the parties relating to the subject
matter hereof and supersedes in their entirety each and every prior proposal,
understanding, representation or other undertaking or agreement, oral or
written, pertaining to the subject matter here of
IN
WITNESS WHEREOF, Equis and Marketing Partner have entered into this Agreement
as
of the Effective Date.
Equis
International Inc. Marketing
Partner
| By:/s/ Xxxxx Xxxxxxxx | By: /s/ Xxxxxx Xxxx |
| Name: Xxxxx Xxxxxxxx | Name: Xxxxxx Xxxx |
| Title: President/CEO | Title: President & CEO |
8
EXHIBIT
A
1. The
definition of Programs shall be understood to include the following
Product(s):
A. Once-off
Software Product(s)
MetaStock
for Windows End-of-Day
MetaStock
Professional for QuoteCenter
MetaStock
Professional for eSignal
MetaStock
Professional for QCharts
MetaStock
Pro FX
MetaStock
Plug-ins
MetaStock
Add-ons
B. Data
Product(s)
DataLink
Products (End-Of-Day)
MetaStock
Subscription for Reuters DataLink Asia
MetaStock
Subscription for Reuters DataLink Europe
MetaStock
Subscription for Reuters DataLink North America
Reuters
DataLink Stocks Asia
Reuters
DataLink Stocks Europe
Reuters
DataLink Stocks North America
Reuters
DataLink Worldwide Futures
Reuters
DataLink Worlwide Indices
MetaStock
QuoteCenter Products (Real Time)
MetaStock
QuoteCenter Asia
MetaStock
QuoteCenter Europe
MetaStock
QuoteCenter North America
MetaStock
QuoteCenter Data and News Add-ons
MetaStock
Professional Subscription for QuoteCenter
MetaStock
Pro FX Subscription for QuoteCenter
2. The
parties agree to undertake the following marketing activities with respect
to
the Products:
(I) Promotion
of the Products at least once a month via email to Marketing Partner clients
existing as of the Effective Date of the Agreement and whom Marketing Partner
believes might gave a need for the Products, (II) Promotion of the Products
to
Marketing Partner’ existing and new clients on Marketing Partner’ website. (III)
Equis shall host and otherwise provide a page at its website, presently located
at xxx.xxxxx.xxx/[wherehear]
where
Marketing Partner’ clients can subscribe to the MetaStock Subscription of the
Reuter Datalink service, and also be able to buy MetaStock once-off. The
promotion of the Product is intended to be an added value to Marketing Partner’s
clients, and Equis must agree to the placement of the Product offers ineach
individual advertisement or mailing piece. Marketing Partner shall seek Equis’
approval to any promotion materials and marketing activity directly or
indirectly related to any of Equis’ Products.
9
3. Marketing
Partner shall receive the following monthly fees from Equis in connection with
Marketing Partner’s marketing activities:
For
each
customer who subscribes to the Subscription Products listed on section 1.B.
of
this Exhibit A referred to Equis by Marketing Partner (“Customer”), the Fees
payable by Equis to Marketing Partner under Section 5 of the Agreement shall
be
the product of “Net Receipts” multiplied by “Fee Percentage”.
|
A.
|
Net
Receipts means the gross receipts received by Equis in connection
with
each Customer’s Data Product subscription(s), less amounts actually
refunded by Equis to a Customer due to the Customer’s cancellation of a
subscription(s) or due to billing
errors.
|
|
B.
|
Datalink
Products - The
total “Net Receipts” collected by Equis for the DataLink Products during
the each calendar month shall be multiplied by the corresponding
fee
percentage as set forth below (“Fee Percentage”). The Fee Percentage shall
be determined by total number of Customers referred to Equis by Marketing
Partner that are, outside of the trial period, actively subscribing
to the
DataLink Products during the month according to the tiered schedule
below:
|
| 25 to 10 | 15% |
| 101 to 250 | 20% |
| 251 to 500 | 25% |
| 501 and over | 30% |
|
Equis
will have no obligation to pay royalties to Marketing Partner unless
there
are at least 25 Customers actively subscribing to the Subscription
Products; provided that in the twelve months following the date first
set
forth above, the minimum of 25 active subscribers will be waived.
As a
result, royalties will be paid 15% for each of the customers actively
subscribing to the Subscription Products in a month up to 100
Customers.
|
|
C.
|
In
each month, Marketing Partner will earn a one-time variable incentive
as
outlined below based on the number of new Customers that sing-up
for
Datalink Products during Equis International’s fiscal month. The incentive
will be in addition to the monthly fees mentioned in paragraph 3.B
of this
exhibit A.
|
| Number of New Subscribers | Monthly Incentive |
| 10 to 20 | 1% |
| 21 to 40 | 2% |
| 41 to 60 | 3% |
| 61 to 80 | 4% |
| 81 and above | 5% |
10
|
D.
|
MetaStock
QuoteCenter Products - The
total “Net Receipts” collected by Equis for the MetaStock QuoteCenter
Products during the each calendar month shall be multiplied by the
corresponding fee percentage as set forth below (“Fee Percentage”). The
Fee Percentage shall be determined by total number of Customers referred
to Equis by Marketing Partner that are, outside of the trial period,
actively subscribing to the QuoteCenter Products during the month
according to the tiered schedule
below:
|
| 15 to 150 | 15% |
| 151 to 500 | 20% |
| 501 and over | 25% |
|
Equis
will have no obligation to pay royalties to Marketing Partner unless
there
are at least 15 Customers actively subscribing to the MetaStock
QuoteCenter Products; provided that in the twelve months following
the
date first set forth above, the minimum of 15 active subscribers
will be
waived. As a result, royalties will be paid at 15% for each of the
Customers actively subscribing to the MetaStock QuoteCenter Products
in a
month up to 100 Customers.
|
|
E.
|
In
each month, Marketing Partner will earn a one-time variable incentive
as
outlined below based on the number of new Customers that sign-up
for
MetaStock QuoteCenter Products during Equis International’s fiscal month.
The incentive will b in addition to the monthly fees mentioned in
paragraph 3.D of this exhibit A.
|
| Number of New Subscribers | Monthly Incentive |
| 10 to 20 | 1% |
| 21 to 40 | 2% |
| 41 to 60 | 3% |
| 61 to 80 | 4% |
| 81 and above | 5% |
|
F.
|
For
each customer who purchases a software product listed on section
1.A. of
this Exhibit A referred to Equis by Marketing Partner (“Customer”), the
Fees payable by Equis to Marketing Partner under Section 5 of the
Agreement shall be the product of “Net Receipts” multiplied by “Fee
Percentage” as follow:
|
| MetaStock Once-off Products | 15% |
| MetaStock Plug-in | 10% |
| MetaStock add-on | 10% |
|
Equis
offers its customers an unconditional 30-day money-back guarantee.
If a
customer elects to return the Product to Equis, Marketing Partner
shall
refund any royalty payments made by Equis to Marketing Partner with
respect to the Once-Off Product(s) purchased by such
customer.
|
Equis
will have no obligation to pay royalties to Marketing Partner on any given
month
that Marketing Partner fails to fulfill its marketing obligations under this
agreement.
11
4. TERM
The
initial term of this Agreement shall be one (1) year from the Effective Date
of
this Agreement.
