LICENSE AGREEMENT
This Agreement ("Agreement")is made and entered into April 26,1999 ("Effective
Date") by and between Ethos Corporation d/b/a Stockpoint, a California
corporation, (a wholly owned subsidiary of Neural Applications Corporation, a
Delaware corporation) located at 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx,
XX 00000 ("Stockpoint") and Zeta Corp., located at Xxxxx 000-0000 Xxxx X"
Xxxxxx, Xxxxxxxxx. Xx. V6JIGI ("Client").
1. Content and Services: Stockpoint shall perform such reasonable development
and custornization services required to deliver the content ("Content")
described in Exhibit A ("Content and Delivery') attached hereto.
Stockpoint agrees to meet performance standards set out in EXHIBIT C ("Service
Level").
2. License: Subject to payment under Section 3 and to the other terms of this
Agreement, Stockpoint hereby grants to client a non-exclusive license to display
for the term of this Agreement the Content described in Exhibit A ("Content and
Delivery") on Client's web site for the sole purpose of displaying said Content
to Client's web site users. Client may not distribute, transmit, or in any other
way provide Content to another entity. Nothing in this Agreement is intended nor
shall be interpreted as granting Client a license or other rights in or to, or
to use any trade names, trade or service inarks, copyrights or patents or other
intellectual or other properties A Stockpoint or Neural Applications Corporation
for any purpose unless otherwise provided in this Agreement.
Client agrees to include Stockpoint's copyright and other notices, which appear
on or in the Content and Services, on pages of Client's site that displays
Content.
3. License Fee, Consideration: The license to be provided by Stockpoint will be
provided at the rates or amounts set forth in the Exhibit B ("Fees") attached
hereto. Client shall be responsible for all governmental taxes (including,
without limitation, sales, use, import, export and excise taxes). tariffs,
assessments, duties or levies of a iy kind or nature relating to or arising from
the license of the Content or otherwise from this Agreeme shall be the
responsibility of Client. Client shall reimburse Stockpoint for any mutually
agreed upon expenses curred in performance of the services, including travel and
lodging.
Client agrees that the Stockpoint logo shall be branded on each page of the
Client's site that displays Stockpoint Content, and "mapped" to
xxxx://xxx.xxxxxxxxxx.xxx or another URL designated by Stockpoint. The size and
location or such logo shall be mutually agreed upon by the parties.
4. Except as otherwise specified in Exhibit B ("Fees") attached hereto, all fees
shall be payable by Client on in annual basis within thirty (30) days from the
date of invoice. All delinquent accounts shall be subject to a service charge of
1 1/2% per month of the amount then delinquent.
5. Term and Termination: This Agreernent shall commence on the Effective Date
and shall remain in full force and effect (unless terminated earlier as provided
below) for an initial term of one (1) year. The Agreement shall be automatically
renewable for additional one year periods (collectively. the "Term"), unless a
party gives notice of termination at least sixty (60) days prior to the
expiration of the initial term or any subsequent renewal term.
This Agreement may be terminated by a party for cause immediately by written
notice upon the occurrence of any of the following events:
i) If the other ceases to do business, or otherwise terminates its business
operations; or
ii) If the other shall fail to promptly secure or renew any license,
registration, permit, authorization or approval for the conduct of its business
in the manner contemplated by this Agreement or if any such license,
registration,
permit, authorization or approval is revoked or suspended and not reinstated
within sixty (60) days; or
iii) If the other materially breaches any material provision of this Agreement
and fails to substantially cure such breach within thirty (30) days of receiving
written notice describing the breach; or
iv) If the other becomes insolvent or seeks protection under any bankruptcy,
receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against the other(and not
dismissed within 90 days).
6. Express Warranty. Stockpoint represents and warrants to Client that for a
period of ninety (90) days from the date of receipt of the goods and services
under this Agreement, the same will be free from defects in material and
workmanship under normal installation, use and service. This warranty does not
include, and Stockpoint disclaims any warranty with respect to, errors in,
damage to or failures, defects or other problems in or with the Content arising
in any way from (i) fire; (ii) flood., lightning or other acts of God or other
force majeure; (iii) accident or a computer virus; (iv) misuse or negligence;
(v) improper handling or operation; (vi) repair, maintenance, alteration,
modification, customization or tampering of or by any person or other entity
other than Stockpoint; (vii) any Hardware or other hardware or any external
electrical work; (viii) failure to use, maintain or operate the same as provided
or in accordance with any documentation provided; (ix) any software not provided
to Stockpoint or any interfaces of the same with any other software; or (x)
ordinary wear and tear or depreciation arising from lapse of time,
If the goods or services should fail to confirm to the above warranty during the
warranty period and subject to the conditions below, Stockpoinit shall at its
option either (i) refund to Client the fee(s), in which event this Agreement
shall be deemed teriminated and Stockpoint shall have no further obligation or
liability to Client whatsoever; (ii) bring services into compliance with this
Agreement and repair or replace any good and materials.
In addition to any contingency set forth above, the above warranty is contingent
upon Client notifying Stockpoint in writing of any alleged breach of said
warranty within ten (10) days of the date on which Client discovers such breach
and in all events within the Warranty Period.
7. LIMITATION OF EXPRESS WARRANTIES: THE WARRANTIES SET FORTH IN PARAGRAPH 6
ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. WHICH ARE HEREBY
DISCLAIMED AND EXCLUDED BY STOCKPOINT, INCLUDING WITHOUT LIMITATION ANY WARRANTY
OF MERCHANTIBTLITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND ALL
OBILIGATIONS OR LIABILITIES ON THE PART OF STOCKPOINT FOR DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THE USE, FUNCTIONALITY, REPAIR OR PERFORMANCF OF THE
CONTENT AND SERVICES.
8. LIMITATION OF REMEDIES: STOCKPOINT SHALL NOT BE LIABLE FOR ANY DIRECT,
SPECIA1 INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF OR
INCLUDING, BUT WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS
INTERUPTION, LOSS OF BUSINESS INFORMATION OR INABILITY TO USE THE SOFTWARE, EVEN
IF STOCKPOINT WAS ADVISED OF THE POSSIBILITY OF DAMAGES.
9. Indemnification a. Each party ("Provider") will defend and indemnify and hold
harmless the other party ("Recipient") against all loses related to, resulting
from, or arising out of any claim that any information, design, specification,
instruction, software, data or material furnished by the Provider ("Material")
and used by the Recipient for the Services infringes a United States copyright
or patent provided that: (a) the Recipient notifies the Provider in writing
within thirty (30) days of the claim, (b) the Provider has sole control of the
defense and all related settlement negotiations; and (c) the Recipient provides
the Provider with the assistance, information, and authority reasonably
necessary to perform the above; reasonable out-of-pocket expenses incuded by the
Recipient in providing such assistance will be reimbursed by the Provider.
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b. The Provider shall have no liability for any claim of infringement resulting
from: (a) the Recipient's use of a superseded or altered release of some or all
of the Material if infringement would have been avoided by the use of subsequent
unaltered release of the Material which is provided to the Recipient; or (b) any
information, design, specification, instruction, software, data, or material not
furnished by the Provider.
c. In the event that some or all of the Material is held or is believed by the
Provider to infringe, the Provider shall have the option, at its expense, (a) to
modify the Material to be non-infringing; (b) to obtain for the Recipient a
license to continue using the Material, or (c) to require return of the
infringing Material and all rights hereto from the Recipient. If Stockpoint is
the Provider and such return materially effects Client's ability to meet its
obligations under the relevant Work Order, then Client may, at its option and
upon thirty days prior written notice to Stockpoint, terminate the Work Order
and shall be entitled to recover the fees paid by Client for that portion of the
Material prorated over a five year period from the effective date of the
applicable Work Order. If Client is the Provider and such return materially
effects Stockpoint's ability to meet its obligations under the relevant Work
Order, then Stockpoint may, at its option and upon thirty days prior written
notice to Client, terminate the Work Order and Client shall pay Stockpoint for
the Services rendered through the date of termination on a T&M or percent of
completion basis as applicable.
10. Proprietary Rights. Other than the license herein granted, all right, title
and interest in and to the Content, its enhancements, modifications, or
alterations are the property of Stockpoint or its providers. Nothing herein
shall be construed to otherwise give the Client or its end-users any proprietary
rights, thereto.
11. Confidential Information. Each party agrees to keep confidential and not
disclose or use except in performance of its obligations under this Agreement,
confidential or proprietary information related to the other party's technology
or business that it learns in connection with this Agreement and any other
information received from the other provided that such other information or
material is clearly marked confidential (or preceded by a statement that such
information is confidential, if provided in oral form, which statement must be
confirmed in writing; all of the foregoing, "Confidential Information").
"Confidential Information" shall not include information (i) already lawfully
known to or independently developed by the receiving party without access to or
use of the other party's Confidential Information, (ii) disclosed in published
materials, (iii) generally known to the public, (iv) lawfully obtained from any
third party, or (v) required to be disclosed by law.
12. Miscellaneous (a) Relationship. Stockpoint is an independent contractor;
nothing in this Agreement shall be construed to create a partership, joint
venture, or agency relationship between the parties. (b) Ownership. Client
agrees that the Content is the sole and exclusive property of Stockpoint and/or
its licensors and independent third party information and content providers and
agree not to infringe or violate its or their copyrights and other proprietary
rights therein. Ownership of all copyrights and other proprietary rights in the
Services is retained by Stockpoint and its licensors and information and content
providers. Except as expressly provided herein, Stockpoint does not convey and
Client does not obtain any right in the Content or any data or materials
utilized or provided by Stockpoint in connection with the Content and Services.
All rights not granted hereunder are expressly reserved to Stockpoint and its
licensors and information and content providers.
(c) Promotion. The parties agree that each may include the other in standard
marketing material and in press releases, and other form of promotion with prior
approval from the other party. Neither party shall otherwise disclose any
information relating to the existence or terms of this Agreement.
(d) Laws, Regulations and Exchange Rules. Both parties agree to comply with
applicable laws and regulations, and the rules of applicable exchanges and third
party data providers. Client acknowledges, and agrees that Stockpoint agreements
with such exchanges and third party data providers may require, among other
things, that data and information be formatted or presented differently, that
certain agreements and/or disclaimers be in
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place with end users, and that the exchanges may cancel or withdraw certain
information or data in their sole discretion. In addition, Client acknowledges
that Stockpoint is bound by its agreements with exchanges and third party data
providers, and to the extent that exchanges and/or third party data providers
make changes to the format or presentation of data. The Client's Site will be
affected to the same extent.
(e) Financial Exchange Agreements. Client shall obtain any necessary financial
exchange agreements from the principal stock exchanges in order to allow
Stockpoint to perform its obligations hereunder.
(f) Third Party Providers. It is expressly understood that Stockpoint may at its
sole discretion, substitute any third party data provider for one of comparable
quality during the Term of this Agreement.
(g) Assignment. Neither party may assign or otherwise transfer its rights under
this Agreement, except among the corporations, without the prior written consent
of the other, which consent shall not be unreasonably withheld.
(h) Notices. permitted or required to be given under the terms of this Agreement
shall be deemed sufficient if given by (a) registered or certified mail, postage
prepaid, return receipt requested or (b) private courier service, addressed to
the respective parties at the addresses shown below their signatures to this
Agreement, or such other addresses as they may from time to time designate.
notices shall be effective upon receipt by the party to which notice is given.
(i) Arbitration. Any claim, dispute, controversy or other matter in question
with regard to this Agreement shall exclusively be subject to final binding
arbitration in accordance with the commercial arbitration rules and regulatiors
of the American Arbitration Association (AAA). The parties or the arbitrators,
as appropriate, shall undertake the duties of the AAA under the AAA rules. All
arbitration shall be conducted in the city of Seattle, Washington.
(J) Attorney's fees. The unsuccessful party in any action or proceeding shall
pay for all costs, expenses and reasonable attomeys' fees incurred by the
prevailing party or its agents or both in enforcing the terms and conditions of
the Agreement. The term "prevailing party" as used herein shall include without
limitation a party who utilizes legal counsel and brings any action against the
other party by reason of the other party's breach or default and obtains
substantially the relief sought, whether by compromise, settlement or judgment.
(k) Severability. If any provision of this Agreement is found unenforceable,
such invalidity or unenforceability shall not invalidate any other provision of
this Agreement.
(l) Counterparts. This Agreement may be executed in two or more counterparts,
and each such counterpart shall be deemed an original thereof.
(m) Waiver. No failure of either party to take any action or assert any right
hereunder shall be deemed to be a waiver or such right in the event of the
continuation or repetition of the circumstances giving rise to such rights.
(n) Governing law. This Agreement shall be governed by the laws of the state of
California.
(o) Entire Agreement Amendment. This Agreement, including exhibits hereto,
constitutes the entire Agreement of the parties. This Agreement may not be
modified, amended, rescinded. canceled or waived, in whole or on part, except by
written amendments signed by both parties hereto.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
STOCKPOINT CLIENT
Signature: Signature: /s/ Harmel Rayat
--------------------- ---------------------
Harmel Rayat
Name: Name: /s/ Harmel Rayat
--------------------- -------------------------
Harmel Rayat
Title: --------------------- Title: Director
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EXHIBIT A
"Content and Delivery"
I. Content
Stockpoint will provide the financial content listed below. The financial
content will be displayed within a customized, co-branded web site hosted on
Stockpoint's servers. The web site will retain the "look and feel" of the
client's web site including logos, navigation and background color.
a. Stock Quote Server
This custom-tailored server displays detailed stock quote information,
including current price quotes (20 minute delay), open, change, high, low,
earnings per share, volume, shares outstanding, market capitalization, P/E
ratio, and industry sector. Users can access quote information for companies
listed on the NYSE, NASDAQ/Amex (to include OTC: BB) and Canadian Exchanges. A
ticker look-up feature is included.
A second custom tailored stock quote server will provide current price
quotes (20 minute delay) for up to five symbols that may be listed on the NYSE.
NASDAQ/Amex (to include OTC:BB) and Canadian Exchanges. Quote server my be
accessed by Client's servers at a rate not to exceed 5 requests per second for a
sustained period of 15 minutes.
b. Charting
Quick Charts(GIF)
The Quick Charts allow users to select price and volume performance as well
as time resolutions including intraday, 1 week, 1 month 3 months, 6 months, 1
year. 3 years and 5 years on NYSE, NASDAQ/Amex (OTC:BB as available) and
Canadian Exchanges listed issues as well as U.S. retail mutual funds.
Quick Charts also include interactive features such as moving average, and
the ability to plot against other stocks and indexes. Technical indicators can
be added for comparison, which include Xxxxxxxxx xxxxx, moving averages, moving
average convergence/divergence (MACD), on balance volume, price rate of change,
relative strength, standard deviation and stochastics.
Interactive Charts (Java)
The Interactive Charts include NYSE, NASDAQ/Amex(OTC:BB as available) and
Canadian excbanges listed issues as well as U.S. retail mutual funds. User
selectable time resolutions ranging from 1, 10, and 60 minutes; 52 week daily
functionality accessible via a pull down menu located at the top of the charting
feature. User has the ability to zoom in on date ranges by clicking and dragging
on chart.
Users can add technical indicators, and stocks or indices for comparison on
a chart without refreshing the chart or Web page. Technical indicators include
Xxxxxxxxx bands, moving averages, moving averages conv/div., on balance volume,
price rate of change, relative strength, standard deviation, and stochastics.
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c. Market Watch
By providing the daily top 10 traded US stocks as of intra-day based on a
20 minute delay, users will have a solid resource for tracking the movers and
shakers. Users can access quote information for companies listed on the NYSE,
NASDAQ/Amex (to include OTC: BB) and Canadian Exchanges The categories would be
a) Most active b) Biggest gainers c) Biggest losers
d. StockFinder Pro
Use StockFinder Pro to search multiple data sources of nearly 10,000
publicly traded companies. Stockfinder Pro returns a list of up to one hundred
stocks that match their customized search criteria based on over 26 data fields.
such as price, volume. P/E ratio, four-week price change percentage and industry
sectors, Results are presented in a spreadsheet format. Because StockFinder Pro
is Java-based, users can interact with the results, add customized data fields,
and reorder columns according to your personal preference without conducting
another search
e. Major US Market Indices with Mini Thumb Nail Charts
Selected Market Indices to include: Dow Xxxxx, NASDAQ, S&P 500, and the
Xxxxxxx 2000. Additional U.S. market indices may also be included as part of the
market update. This shall also include the FTSE, Nikkei, interest rates (3
month, 5 year, 10 year, 30 year), the Japanese Yen, Canadian Dollar, British
Pound and Swiss Franc.
f. SEC Filings
Through a service provided by Xxxxx Online, users can read the
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" except from SEC filings for publicly traded companies.
II. Delivery
o Stockpoint will deliver the customized web site within 5 business days upon
receipt of the executed License Agreement and design templates from Client.
o Stockpoint will host and serve the financial content for Client
o Stockpoint will provide all necessary hardware, bandwidth, and infrastructure
administration
o Stockpoint will notify Client of planned, off-hours maintenance at least 24
hours in advance
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EXHIBIT B
"Fees"
a. Development Fees
Description Fee
Set-Up Fee $10,000*
* The set-up fee will he waived if this License Agreement is executed by
April 30. 1999.
b. Annual License Fee
Annual License Fee Year One(1) $40,000
C. Maintenance Fees
Maintenance Fees, equal to .005 per page view, will be assessed if the
traffic on the co-branded web pages hosted by Stockpoint exceeds 500,000
page views per month.
d. Payment
License Fees are payable 25% down ($10,000) upon contract execution and the
remaining 75% ($30,O00) payable in quarterly installments from contract
execution.
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EXHIBIT C
"Service Level"
1. Performance
a) Average 97% uptime during business hours (6:00 A.M. to 3:00 P.M. Pacific
Time). The performance requirements; set forth in this paragraph apply to
Stockpoint's servers and Internet connectivity, and sha11 be measured on a daily
basis.
b) Average 95% up time during non-business hours. The performance
requirements set forth in this paragraph apply to Stockpoint servers mid
Internet connectivity, and shall be measured on a daily basis. The average up
time shall not include any down time for regularly scheduled maintenance.
Scheduled maintenance is defined as maintenance for which 48 hours advance
notice has been given for the required down time.
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