Exhibit 10.32
MARKETING AGREEMENT
MARKETING AGREEMENT dated as of May 30, 2000 by and between ConSors
Discount-Broker A.G., a German corporation with its address at Xxxxxxxxxxxxx 00,
00000, Xxxxxxxxx, Xxxxxxx ("ConSors"), and Wall Street Strategies, Inc., a
Delaware corporation with its address at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000 ("WSS").
W I T N E S S E T H:
WHEREAS, ConSors is a discount brokerage firm providing brokerage
services as well as financial information to members of the public via its
website, located at the URL "xxx.xxxxxxx.xx";
WHEREAS, WSS is a provider of investment research and information
services for individual and institutional investors and financial professionals
through traditional and electronic media including its website located at the
URL "xxx.xxxxxxx.xxx";
WHEREAS, WSS and ConSors wish to enter into a relationship pursuant to
which WSS would provide ConSors with certain of its products and website content
for distribution through and promotion on ConSors's website located at the URL
"xxx.xxxxxxx.xx", and ConSors would agree to advertise WSS's website and
products on the ConSors website and to create with WSS a co-branded site, hosted
by WSS, through which subscriptions to WSS's products would be sold. From all
revenue that WSS generates by such sales as specified herein, WSS will grant
ConSors [***]. The parties acknowledge and agree that one of the primary
objectives of the marketing and promotional services hereunder shall include but
not be limited to attracting and maximizing the number of subscribers for WSS
products.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties, the parties hereto agree as follows:
1. WSS PRODUCTS
1.1. (a) WSS will post on the WSS Website, on the schedule set forth
below, "the WSS Products", providing subscribers access thereto via a Hypertext
Link from the ConSors Website to the WSS Website. WSS will post the Hotline
simultaneously with the global release of WSS's "Hotline A.M." product before
[***] (Eastern time) on each Business Day in English and subject to delays in
connection with the translation - in German before [***] (Eastern time). The
Newsletter will be posted, simultaneously with its global release, within the
[***] Business Days of each month.
(b) [***] agrees that the WSS Products will be posted both in English
and in German language. [***] will be responsible for [***] associated with
preparation and translation of the WSS Products into German and the
implementation of the translated version into the Website of WSS.
1.2. WSS will provide ConSors with access to other WSS products and WSS
Website content as the parties may from time to time agree in writing (each such
agreement in writing referred to as an "Amendment") during the term of this
Agreement (such other products and content referred to as the "Other Products").
The terms and provisions of this Agreement will be applicable to such Other
Products except as and to the extent specified in an Amendment (or any other
amendment to this Agreement).
1.3. (a) WSS hereby grants ConSors, during the term hereof, the
worldwide (other than North America), non-exclusive, non-transferable right,
subject to the terms and conditions of this Agreement, to distribute the WSS
Products solely by providing Hypertext Links between the WSS Website and the
ConSors Website and otherwise in the limited manners and for the limited
purposes described herein. Except as set forth herein, no other copying,
dissemination, publication, display or distribution in any form of the WSS
Products, in whole or in part, by ConSors is permitted without the prior written
consent of WSS.
(b) The parties hereby grant to each other, during the term hereof, the
worldwide (other than North America), non-exclusive, non-transferable right,
subject to the terms and conditions of this Agreement, to use, solely in
connection with this contract the trade names, trademarks, service marks and any
other brand names associated with the parties.
2. MARKETING AND DISTRIBUTION
2.1. ConSors agrees during the term of this Agreement to promote the
WSS Products and the WSS brand through a variety of means and media including,
without limitation, its own online and offline distribution channels and ConSors
acknowledges that it will benefit from the promotion of WSS's content both
through receiving a share of revenue described in Section 3 hereof, and by the
additional traffic to be driven to the ConSors Website by the availability of
content concerning United States equities markets.
2.2. Without limiting the provisions of Section 2.1, ConSors and WSS
will co-operate to create and implement, [***] from the date hereof, a fully
functional transparent link from the ConSors Website to pages at the WSS Website
containing the WSS Products, posted in accordance with Section 1.1. ConSors will
also prominently display on its website a button providing a Hypertext Link to
the WSS Website. The link on the ConSors Website will enable ConSors Website
users to purchase subscriptions to the WSS Products, in accordance with Section
3, directly from WSS; accordingly, WSS will be responsible for processing the
subscription transactions, including without limitation, credit card processing.
Additional marketing, promotional and distribution activities to be
conducted by ConSors pursuant hereto shall include but not be limited to those
described on Schedule 2.2 annexed hereto.
2.3. The marketing, promotion and distribution services through
ConSors' own online and offline distribution channels described herein shall be
conducted in consultation and cooperation with WSS, subject to WSS's prior
consent, and at [***]. Notwithstanding the foregoing,
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both parties will bear their own costs associated with maintenance of their
Websites, including the pages containing the WSS Products.
[***]
2.4. Notwithstanding any other provisions of this Agreement, the
parties agree that neither will make any statement (whether oral or in writing)
in any external advertising, marketing or promotion materials regarding the WSS
Products without the prior written consent of the other (which consent shall not
be unreasonably withheld or delayed), provided that materials substantially
identical to those previously submitted need not be submitted for re-approval.
Subject to the license granted to the parties pursuant to Section 1.3(b) hereof,
the parties may not use any names, trademarks, graphics or service marks of each
other or its affiliates.
2.5. Without limiting the scope of this Section 2, WSS and ConSors
agree to consult on a regular basis, and in no event less frequently than
monthly, for purposes of reviewing marketing, promotional and distribution
results and activities. Specific marketing and promotional plans and goals
consistent with and amplifying upon those described herein shall be established
no less frequently than quarterly. The parties agree that they will, [***]
establish an initial set of specific marketing and promotional plans and goals
activities.
3. FEES AND PAYMENT
3.1. Initial subscription prices for the WSS Products shall be as
follows:
(a) One week trial subscription: [***]
(b) One year subscription: [***].
Both subscription offers include the Hotline A.M. and the Newsletter. A
subscription of the Hotline A.M. or the Newsletter only, is not available.
Subscription prices shall be subject to change from time to time upon
mutual agreement of the parties; provided, however, that WSS shall have the
right, exercisable upon not less than [***] to ConSors, commencing on the [***]
and thereafter upon each successive [***] to increase each subscription price by
up to [***] of the then existing subscription price. The parties may by mutual
agreement from time to time initiate discount, trial and promotional pricing
policies for one or more of the WSS Products.
3.2. Within [***] Business Days after the end of each month, [***]
will provide [***] with a written report ("Monthly Report") of (a) the Net
Revenues actually received during such month less (b) all cancellations,
charge-backs and refunds ("Refunds") incurred or paid during such month ("the
Monthly Agreement Revenues"). Monthly Agreement Revenues shall be allocated
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[***] to WSS and [***] to ConSors, and the Monthly Report shall be accompanied
by remittance to [***] allocable portion of the Monthly Agreement Revenues.
Payment shall be made in [***] as of the date of payment to account [***], bank
code [***] at [***], with the costs of any exchange fees or similar costs or
fees being borne by ConSors. If, at any time, [***] of Monthly Agreement
Revenues is negative, such amount shall be carried over to subsequent months and
deducted from [***] of Monthly Agreement Revenues in such subsequent months. In
the event that [***] of Monthly Agreement Revenues is negative at the
termination of this Agreement, [***] shall promptly remit to [***] any such
negative balance.
3.3. At [***] request, not to be made more than once annually,
[***] will, within [***] after such request, cause to be conducted an audit of
the Monthly Agreement Revenues for the preceding 12 months (or portion thereof).
Such audit shall be conducted at [***] by an independent third party mutually
agreeable to the parties in accordance with its standard procedures, on a
reasonable basis and in a reasonable time period which will not disrupt the
operations of [***]. The determination of such auditor shall be conclusive
(absent manifest error) and a reconciliation and, if necessary, adjustment of
the allocable Monthly Agreement Revenues for the period audited shall be
completed by the parties within [***] after receipt of the audit.
4. TERM AND TERMINATION
4.1. This Agreement shall commence on the date that both parties have
executed this Agreement (the "Commencement Date") and shall continue through May
31, 2001 (the period from the Commencement Date to May 31st, 2001 referred to as
the "Initial Period"). Following the Initial Period, this Agreement shall
automatically renew itself for successive periods of twelve months, unless
terminated by either party giving to the other party written notice of such
termination not later than thirty (30) days prior to the end of the Initial
Period or the then current subsequent term.
4.2. Either party may terminate this Agreement at any time, upon
written notice ("Default Termination Notice") to the other party in the event of
the occurrence and continuation, for more than thirty (30) days after delivery
of the Default Termination Notice, of any of the following events:
(a) a material breach of any of the terms of this Agreement;
(b) the bankruptcy (voluntary or involuntary) of, appointment of a
trustee or receiver for all or a substantial portion of the assets of,
assignment for the benefit of creditors of, or failure generally to pay debts
and obligations when due by, the other party;
(c) the cessation of business, change of control or dissolution and
winding up of the other party.
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4.3. Termination of this Agreement shall be without prejudice to any
other rights or remedies to which a party hereto may be entitled, and shall not
affect any accrued rights or liabilities of either party. The provisions of
Section 3, 5 and 8 shall survive any termination of this Agreement. All licenses
granted pursuant to this Agreement shall terminate on the date of termination of
this Agreement.
5. CONFIDENTIALITY
5.1. "Confidential Information" means (a) any information regarding the
terms of this Agreement; (b) any information, in whatever form, designated by
the disclosing party (the "Disclosing Party") in writing as confidential,
proprietary or marked with words of like import when provided to the receiving
party (the "Receiving Party"); and (c) information orally conveyed if the
Disclosing Party states at the time of the oral conveyance or promptly
thereafter that such information is Confidential, and provides specific written
confirmation thereof within ten (10) days of the oral conveyance.
5.2. Confidential Information will not include information which:
(a) at or prior to the time of disclosure by the Disclosing Party
was known to the Receiving Party through lawful means;
(b) at or after the time of disclosure by the Disclosing Party becomes
generally available to the public through no act or omission on the Receiving
Party's part;
(c) is developed by the Receiving Party independent of any Confidential
Information it receives from the Disclosing Party; or
(d) the Receiving Party receives from a third person free to make such
disclosure without breach of any legal obligation.
5.3. The Receiving Party may disclose Confidential Information pursuant
to any statute, regulation, order, subpoena or document discovery request,
provided that prior written notice of such disclosure is furnished to the
Disclosing Party as soon as practicable in order to afford the Disclosing Party
an opportunity to seek a protective order (it being agreed that if the
Disclosing Party is unable to obtain or does not seek a protective order and the
Receiving Party is legally compelled to disclose such information, disclosure of
such information may be made without liability). Notwithstanding the foregoing,
the parties acknowledge that WSS' parent is or will become a "reporting company"
under United States securities laws and may be required to disclose information
regarding the terms of this Agreement and file a copy of this Agreement in
required filings with the United States Securities and Exchange Commission
("SEC"), and that should WSS deem such disclosure necessary, WSS will not be
required to provide ConSors with prior written notice of such disclosure or
otherwise be bound by the restrictions set forth in this Section 5.3.However it
will in any of such case inform ConSors about such disclosure.
5.4. The Receiving Party acknowledges the confidential and proprietary
nature of the Disclosing Party's Confidential Information and agrees that it
shall not discuss, reveal, or disclose the Disclosing Party's Confidential
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Information to any other person (other than affiliates), or use any Confidential
Information for any purpose other than as contemplated hereby, in each case,
without the prior written consent of the Disclosing Party. The Receiving Party
agrees to take reasonable precautions (no less rigorous than the Receiving Party
takes with respect to its own comparable Confidential Information) to prevent
unauthorized or inadvertent disclosure of the Confidential Information of the
Disclosing Party. In the event that a Receiving Party wishes to disclose
Confidential Information to one of its professional advisors, it may do so only
if that professional advisor agrees to abide by the terms of this Section 5.
5.5. The Receiving Party will, at the request of the Disclosing Party,
during the term hereof or thereafter (a) promptly return all Confidential
Information held or used by the Receiving Party in whatever form, or (b) at the
discretion of the Disclosing Party, promptly destroy all such Confidential
Information, including all copies thereof, and those portions of all documents
that incorporate such Confidential Information.
5.6. In view of the difficulties of placing a monetary value on the
Confidential Information, the Disclosing Party may be entitled to a preliminary
and final injunction without the necessity of posting any bond or undertaking in
connection therewith to prevent any further breach of this Section 5 or further
unauthorized use of its Confidential Information. This remedy is separate from
any other remedy the Disclosing Party may have.
5.7. The provisions of this Section 5 will survive for three (3)
years after the end of the termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1. ConSors hereby represents and warrants to WSS as of the date
hereof that:
(a) ConSors is a corporation duly organized and validly existing under
the laws of Germany and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted.
(b) The execution, delivery and performance by ConSors of this
Agreement are within the corporate powers of ConSors and, have been duly
authorized by all necessary corporate action on the part of ConSors. This
Agreement constitutes a valid and binding agreement of ConSors enforceable in
accordance with its terms.
(c) The execution, delivery and performance by ConSors of this
Agreement require no action by or in respect of, or filing with, any
governmental body, agency or official.
(d) The execution, delivery and performance by ConSors of this
Agreement do not (i) violate the organizational documents of ConSors, (ii)
violate any applicable law, judgment, injunction, order or decree, or (iii)
require any notice or consent or other action by any person under, constitute a
default under, or give rise to any right of termination, cancellation or
acceleration of any right or obligation of ConSors or to a loss of any benefit
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to which ConSors is entitled under, any agreement or other instrument binding
upon ConSors or any license, franchise, permit or other similar authorization
held by ConSors.
6.2. WSS hereby represents and warrants to ConSors as of the date
hereof that:
(a) WSS is a corporation duly organized and validly existing under the
laws of Delaware and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted.
(b) The execution, delivery and performance by WSS of this Agreement
are within the corporate powers of WSS and, have been duly authorized by all
necessary corporate action on the part of WSS. This Agreement constitutes a
valid and binding agreement of WSS enforceable in accordance with its terms.
(c) The execution, delivery and performance by WSS of this Agreement
require no action by or in respect of, or filing with, any governmental body,
agency or official (other than filings required to be made by a reporting
company with the SEC in respect of this Agreement).
(d) The execution, delivery and performance by WSS of this Agreement do
not (i) violate the organizational documents of WSS, (ii) violate any applicable
law, judgment, injunction, order or decree, or (iii) require any notice or
consent or other action by any person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of WSS or to a loss of any benefit to which WSS is entitled under,
any agreement or other instrument binding upon WSS or any license, franchise,
permit or other similar authorization held by WSS.
7. LIMITATION OF LIABILITY
7.1. ConSors acknowledges that WSS, its affiliates, and their
respective officers, directors, and employees make no representation or warranty
with respect to the WSS Products, and will not be held liable for any damages
suffered or incurred by ConSors or any third person arising out of: (a) any
faults, interruptions or delays in the WSS Products or (b) any inaccuracies,
errors or omissions in the WSS Products, however such faults, interruptions,
delays, inaccuracies, errors or omissions arise.
7.2. Neither party will be liable for any failure to perform any
obligation (other than payment obligations) hereunder, or from any delay in the
performance thereof, due to causes beyond its control, including industrial
disputes of whatever nature, acts of God, public enemy, acts of government,
failure of telecommunications, fire or other casualty.
7.3. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES, CONDITIONS, GUARANTIES OR
REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN
WRITING. EACH PARTY HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY
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WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY THE OTHER EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT.
7.4. Under no circumstances will either party, its affiliates, or their
respective officers, directors, employees and third party providers be liable
for any indirect, incidental, special or consequential damages with respect to
the provision of the WSS services to ConSors, including lost profits regardless
of whether such damages could have been foreseen or prevented by either party.
8. INDEMNIFICATION
8.1. ConSors will indemnify and hold WSS, and its affiliates and their
respective officers, directors and employees harmless from and against any and
all damages, liabilities, loses, claims, awards, settlements, and expenses
including reasonable attorney's fees (collectively, "Damages") resulting from or
arising out of (a) any misrepresentation or breach of representation or warranty
of ConSors contained herein; (b) any breach of any covenant or agreement to be
performed by ConSors hereunder or (c) the ConSors Website or any other ConSors
internet sites and site areas or any other activities of ConSors, including
infringement (or claim thereof) of any other party's intellectual property
rights (except if and to the extent arising from the WSS Products as delivered
to ConSors).
8.2. WSS will indemnify and hold ConSors and its affiliates and their
respective officers, directors and employees harmless from and against any and
all Damages as defined above in Section 8.1 resulting from or arising out of (a)
claims that the WSS Products infringe any other party's intellectual property
rights; provided, that (i) the relevant claim does not arise from any
modification to the WSS Products made by ConSors or any person receiving the WSS
Products through ConSors; and (ii) if the claim is based upon content obtained
from a third person, WSS's only obligation to ConSors will be to assign to
ConSors the indemnity, if any, which WSS received from the third party provider,
if such indemnity is assignable; (b) any misrepresentation or breach of
representation or warranty of WSS contained herein; or (c) any breach of any
covenant or agreement to be performed by WSS hereunder.
8.3. A party seeking indemnification pursuant to this Section 8 (an
"Indemnified Party") from or against the assertion of any claim by a third
person (a "Third Person Assertion") will give prompt notice to the party from
whom indemnification is sought (the "Indemnifying Party"); provided, however,
that failure to give prompt notice will not relieve the Indemnifying Party of
any liability hereunder (except to the extent the Indemnifying Party has
suffered actual material prejudice by such failure).
8.4. Within five (5) Business Days of receipt of notice from the
Indemnified Party pursuant to Section 8.3, the Indemnifying Party will have the
right, exercisable by written notice to the Indemnified Party, to assume the
defense of a Third Person Assertion. If the Indemnifying Party assumes such
defense, the Indemnifying Party may select counsel, which counsel will be
reasonably acceptable to the Indemnified Party.
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8.5. If the Indemnifying Party (a) does not assume the defense of any
Third Person Assertion in accordance with Section 8.4; (b) having so assumed
such defense, unreasonably fails to defend against such Third Person Assertion;
or (c) has been advised by the written opinion of counsel to the Indemnified
Party that the use of the same counsel to represent both the Indemnifying Party
and the Indemnified Party would present a conflict of interest, then, upon five
(5) days' written notice to the Indemnifying Party, the Indemnified Party may
assume the defense of such Third Person Assertion. In such event, the
Indemnified Party will be entitled under this Section 8 as part of its Damages
to indemnification for the costs of such defense.
8.6. The party controlling the defense of a Third Person Assertion,
will have the right to consent to the entry of judgment with respect to, or
otherwise settle, such Third Person Assertion with the prior written consent of
the other party, which consent will not be unreasonably withheld; provided,
however, that such other party may withhold its consent if any such judgment or
settlement imposes a monetary obligation on such other party that is not covered
by the indemnification, imposes any material non-monetary obligation, or does
not include an unconditional release of such other party and its Affiliates from
all claims of the Third Person Assertion.
8.7. The Indemnifying Party and the Indemnified Party will cooperate,
and cause their respective affiliates to cooperate, in the defense or
prosecution of any Third Person Assertion, including providing each other with
all information and documents reasonably necessary in the defense or prosecution
of any Third Party Assertion. The Indemnifying Party or the Indemnified Party,
as the case may be, will have the right to participate, at its own expense, in
the defense or settlement of any Third Person Assertion.
9. DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Business Day" means any day on which the United States equities
markets are open for trading.
"ConSors Users" means persons purchasing subscriptions to the WSS
Products on the WSS Website pages accessed through the link from the ConSors
Website described in Section 2.2.
"ConSors Website" means the electronic pages and other electronic media
generated by and owned and operated by ConSors and accessed via the following
URLs: xxxx://xxx.xxxxxxx.xx, xxx.xxxxxxx.xx, xxx.xxxxxxx.xx, xxx.xxxxxxx.xx or
any other Website of ConSors' subsidiary company designated by ConSors and
approved in writing by WSS (which approval shall not be unreasonably withheld or
delayed).
"Hotline A.M." means the WSS Product based upon WSS's "HotLine A.M.
Fax" and prepared for ConSors' target market of German and German speaking users
who may desire or be attracted to information regarding United States equities
markets.
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"Hypertext Link" means a URL (or an icon, logo, highlighted or colored
text, figure or image representing a URL) on which a user may point and click,
or otherwise send a command, to access another website.
"Mirror Site" means a website which contains the exact form and content
(including identical pages) of a particular website which (a) is located at a
geographic location distinct from such website and (b) is created for the
purpose of improving performance and accessibility to such website.
"Net Revenue" means [***]
"Newsletter" means the product based upon WSS's "Monthly Newsletter"
and prepared for ConSors' target market of German and German-speaking users who
may desire or be attracted to information regarding United States equity
markets, provided in downlodable or PDF-format only.
"WSS Products" means the Hotline A.M. and the Newsletter.
"WSS Website" means the electronic pages and other electronic media
generated by and owned and operated by WSS and accessed via the URL:
xxxx://xxx.xxxxxxx.xxx and any related Mirror Site.
10. MISCELLANEOUS
10.1. The parties shall perform any and all acts, as well as execute
any and all documents, that may be reasonably necessary to fully carry out the
provisions and intent of this Agreement.
10.2. This Agreement shall be binding upon and run to the benefit of
the parties hereto, their successors, and assigns. Neither party shall assign
this Agreement or its obligations hereunder, directly or by operation of law,
without the prior written consent of the other party.
10.3. Should any provisions or portion of this Agreement be held
unenforceable or invalid for any reason, the remaining provisions and portions
of this Agreement shall be unaffected by such holding.
10.4. This Agreement shall be construed and governed by the internal
laws of the State of New York (without giving effect to its conflicts of law
principles).
10.5. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument. The facsimile signature of
any party to this Agreement shall have the same effect as if such party had
manually signed this Agreement.
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10.6. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed, telexed,
sent by facsimile transmission or sent by certified, registered or express mail,
postage prepaid. Any such notice shall be deemed given when so delivered
personally, telegraphed, telexed or sent by email or facsimile transmission or,
if mailed, three days after the date of deposit in the mails, as follows:
(i) if to WSS to:
Wall Street Strategies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Chief Executive Officer
with a copy to:
Xxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
(ii) if to ConSors:
Xxxxxxxxxxxxx 00
00000 Xxxxxxxxx, Xxxxxxx
Attn: Xxxxx Xxxxxxxxx
Any party may by notice given in accordance with this Section to the
other parties designate another address or person for receipt of notices
hereunder.
10.7. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the parties hereto or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof (nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege). The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity.
10.8. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
10.9. In the event of any controversy, claim or dispute among the
parties hereto arising out of or relating to this Agreement, or breach hereof,
the prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees, expenses and costs.
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10.10. Any dispute or controversy arising under or in connection with
this Agreement shall be resolved exclusively by arbitration in the City of New
York, State of New York, in accordance with the rules of the American
Arbitration Association then in effect. The parties hereto consent to the
jurisdiction of the courts of the State of New York or the United States
District Court for the appropriate District of New York, whichever is most
appropriate, for all purposes in connection with said arbitration, and further
consent that any process or notice of motion may be served outside the State of
New York by personal service or by registered or certified mail; provided a
reasonable time for appearance is allowed.
10.11. This Agreement constitutes the entire agreement of the parties
with respect to the matters contemplated herein and supersedes any and all prior
understandings or agreements concerning the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the dates indicated opposite their signatures below.
WALL STREET STRATEGIES, INC.
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx
Title: Chief Operating Officer
CONSORS DISCOUNT-BROKER AG
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
Markets & Corporate Development
CONSORS DISCOUNT-BROKER AG
By:
-------------------------------------
Name:
Title:
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Schedule 2.2 (referring to Section 2.2 of the) Marketing Agreement dated
May 30, 2000 between WSS and ConSors
1. Within [***] after execution of this Marketing Agreement, ConSors
will provide regular and prominent home page (front page) exposure for the WSS
brand and the WSS Products on the ConSors Websites subject in all events, to
WSS' prior approval.
2. ConSors will seek to attract subscribers to the WSS Products by
means of a three step process including (a) offering [***] subscriptions to the
WSS Products, (b) seeking annual subscriptions to the WSS Products from among
ConSors Website viewers and registered users and persons electing to take the
[***] subscriptions, and (c) seeking to upgrade subscribers for one or
more WSS Products to one or more Other Products.
3. ConSors may - up to its own discretion - promote Xxxxxxx Xxxxx as
chief analyst and spokesman for WSS, will publicize his appearances in the media
(including without limitation, CNNfn, web appearances and other media outlets)
and will (subject to appropriate licensing and republication rights) transmit
and retransmit Xx. Xxxxx'x appearances by means including streaming video and
text reproduction.
4. ConSors will, on a regular basis, prominently feature WSS and its
Products in online and offline advertising it conducts to promote its
subscription products and services and its products and services of interest to
existing and potential institutional and individual investors in United States
equities markets.
13
