DISTRIBUTOR AGREEMENT
This Distributor Agreement ("Agreemenf'), is entered into by and between
COMTEX Scientific Corporation (COMTEX") and XxxxxxXxxxx.xxx, Inc. (the
"Distributor').
1. Definitions
"Information Providers" ("lPs") are third parties from whom COMTEX acquires
the right to distribute Content. "Content' means all material, whether or not
protected by copyright, including but not limited to text, images, and other
multimedia data, that COMTEX obtains from IPs or creates itself. COMTEX reserves
the right to add or withdraw IPs and items of coverage to or from the Content
without notice. "End-User' means each third party to whom Distributor provides
the Services as authorized in Exhibit A. "Services" are the electronic
information services offered by Distributor that make available the Content, as
authorized in Exhibit A.
2. Distribution
x. Xxxxx of Rights; Distribution by Distributor. Subject to the terms and
conditions of this Agreement and its Exhibits, COMTEX grants Distributor a
nonexclusive license and right (A) to distribute the Content to EndUsers as part
of the Services, and (B) to license End-Users to use the Content as authorized
by the End-User Agreement. Distributor may retain,copies of the Content for
thirty (30) days after receipt from COMTEX, or such other time period as
authorized in Exhibit A. At no charge to COMTEX, Dis tributor shall provide
COMTEX reasonable access to the Services for the purposes of reviewing
Distributors incorporation of the Content into the Services and evaluating
compliance with this Agreement. Before implementing any major changes to the
Services, Distributor shall provide notice thereof to COMTEX.
b. Notices. Distributor shall cause the Services to display as part of each
story that includes Content transmitted by COMTEX (A) the copyright notice
transmitted therewith indicating that the copyright owner is a COMTEX IP or
COMTEX, (B) the phrase "News Provided by COMTEX" (or similar phrase requested by
COMTEX), (C) the COMTEX logo, and (D) an operational link to xxx.xxxxxxxxxx.xxx
(or other COMTEX World Wide Web site). Such notices shall be conspicuous to the
End-User and comply with any further requi rements set forth in Exhibit A, and
must also be mutually agreeable to both Parties.
c. Restrictions. Distributor shall not knowingly distribute the Content to
any entity (A) for use in print, ar, television or radio news media or (B) that
redistributes the Content to its customers, with or without charge. In 4 the
event that any unauthorized distribution occurs, Distributor immediately shall
notify COMTEx and use its best efforts to immediately cease such distribution.
d. Modifications. Distributor shall not edit, abridge, rewrite, translate
or in any other way alter or modify the Content or create any work derived
from the Content, except to the minimum extent necessarily incident to forming
the look and feel of Distributor's Services.
e. Corrections. Upon receipt of notice from ComTEX of an error in Content
provided Distributor or in the provision of the Services by Distributor to
End-Users, Distributor immediately shall (A) consult, if necessary, with COMTEX
regarding the appropriate correction or other remedy for such error, (B)
implement as directed by COMTEX such correction or other remedy, such as
retracting a story or article or transmitting a correction, and (C) provide
COMTEx documentation evidencing such correction or other remedy.
f. End-User Agreements. Distributor shall obtain from each End-User, either
in writing or via acknowledgment of an electronic form (which acknowledgment can
be provided by the End-User's use of Distributor's Services), consent to the
terms set forth in Exhibit C (or terms substantially equivalent thereto).
g. Use of Name. Distributor shall name COMTEX as one of its content sources
in all material (A) provided End-Users about the Service or (B) that identify
Distributor's content sources. Distributor agrees, that at least ten (10)
business days prior to use, to submit to COMTEX for approval all promotional
materials, including press releases and advertisements (whether using print,
broadcast or on-line media) that are produced by Distributor
Confidential Distribution Agreement Page I of 2
and describe the Content or identify COMTEX' IPs. Approval of use of such
materials shall be deemed granted unless written notice of disapproval is
received within five (5) business days.
3. Terms and Termination
a. Term. The term of this Agreement starts on the date of the last
signature to this Agreement and shall remain in effect for two (2) years and
shall automatically renew for successive two-year terms unless either party
elects not to renew by giving written notice to the other party at least ninety
(90) days before the end of the then current term.
b. Suspension. COMTEX, in its sole discretion, may immediately suspend
delivery of Content to Distributor if A) the Distributor or its End-Users breach
of this Agreement has a reasonable possibility of causing COMTEX to breach its
agreement with an Information Provider or B) Distributor either fails to make
payments in full in accordance with this Agreement, or C) Distributor fails to
provide COMTEX the Usage Tracking Report as required in this Agreement. COMTEX
shall resume delivery of Content only.after Distributor has taken action
satisfactory to COMTEX to assure that no further breach of this Agreement shall
occur.
c. Termination for Breach. If a party materially breaches this Agreement,
the other party, after giving the breaching party sixty (60) days prior written
notice, may terminate this Agreement if the breach remains uncured. In addition,
either party may terminate this Agreement if the other party makes a general
assignment for the benefit of its creditors, permits the appointment of a
receiver for its business or assets, or takes steps to wind down its business.
d. Obligations upon Termination. Upon termination of this Agreement,
Distributor shall not distribute or use the Content. Distribut - or shall (A)
within thirty (30) days of termination, pay to COMTEx all charges then owed, (B)
for the remainder of the then-current term pay to COMTEX all Minimums unless
termination is due Solely to COMTEX' material breach of this Agreement, and (C)
within fifteen (15) days of termination, deliver to COMTEX all hardware owned by
COMTEX. If such hardware is not returned, Distributor shall pay COMTEX the
replacement value thereof. Within thirty (30) days of termination, Distributor
shall erase and purge the Content from any accessible database and/or storage
material. Immediately upon termination Distributor shall return to COMTEx all
materials proprietary to COMTEX or containing COMTEX Confidential Information.
4. Confidential Information.
The Receiving Party shall not disclose or otherwise transfer Confidential
Information of the Disclosing Party to any third party, without first obtaining
the Disclosing Party's consent, and shall take all reasonable precautions to
prevent inadvertent disclosure of such Confidential Information. "Confidential
Information" shall mean: (A) the terms and conditions of this Agreement, any
information regarding COMTEX' prices, or any information concerning the
composition Of COMTEX' products; (13) information w hich is designated as
Confidential Information by the party disclosing such information (the
"Disclosing Party"); (C) with respect to information provided on paper, by
facsimile or electronic mail, by any electronic means or by any other medium
(collectively "in writing"), by labeling such information as "CONFIDENTIAL
INFORMATION" before the information is provided to the other party (the
"Receiving Party"); and (iv) with respect to information disclosed either
verbally or in writing, by notifying the Rece iving Party, in writing within
thirty (30) days of the disclosure, that the information identified in such
notice is designated Confidential Information effective as of the Receiving
Party's receipt of such notice. "Confidential Information" shall not include
information that (A) is or shall become generally available without fault of the
Receiving Party, (13) is in the Receiving Party's possession prior to its
disclosure by the Disclosing Party, (C) is independently developed by the
Receiving Party, or (D ) is rightfully obtained by the Receiving Party from
third parties without similar restrictions. This contract, and everything
contained herein, is confidential.
5. Further Rights Obligations and Limitations
a. Ownership. This Agreement does not transfer to Distributor or any of its
End-Users ownership of the Content.
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b. No Warranty. Distributor agrees that the Content and Service is provided
by COMTEX "AS IS". COMTEX does not warrant (A) the accuracy, completeness or
timeliness of the Content and (B) that the Content will not infringe any
copyright or other right of any third party. COMTEX DISCLAIMS ALL WARRANTIES,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR
INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTEN T, AND EACH PARTY'S
COMPUTING AND DISTRIBUTION SYSTEM. that the Content will not infringe any
copyright or other right of any third party.
c. Indemnification. Distributor shall indemnify COMTEX and its Information
Providers against any third party claims and damages, including attorneys'fees
and related expenses, arising out of Distributors breach of this Agreement.
d. Limitation. In no event shall either party be liable to the other for
any indirect, special, exemplary or consequential damages, including lost
profits, whether arising in contract or tort.
e. Assignment. Distributor may assign this Agreement only with
COMTEX'written consent.
f. Beneficiaries. The Information Providers may enforce this Agreement to
the same extent as COMTEX.
6. General Terms
This is the complete and only agreement between the parties. This Agreement
and performance hereunder shall be governed by laws of Virginia, and the parties
consent to the exclusive jurisdiction of the state and federal courts of
Virginia. In any action related to this Agreement, the prevailing pafty shall
recover attorneys' fees and related expenses from the other party. Notices shall
be delivered by hand or U.S. certified mail to the addresses set forth below.
AGREED:
XxxxxxXxxxx.xxx, Inc., by COMTEX Scientific Corporation
0000 X. Xxxxx Xxx. #000 4900 Seminary Road, Suite 800
Vancouvor, BC V6J IG1 Xxxxxxxxxx, Xxxxxxxx 00000
(000)000-0000 (fax) 000-000-0000 (fax)
/s/ Harmel Rayat /s/
------------------------- -----------------------------
Harmel Rayat Signature
/s/ Harmel Rayat
------------------------- Executive Vice President, Sales
Printed Name
/s/ Director
------------------------- Date: -----------------------
Title
/s/ August 31, 1999
Date: --------------------
Confidential Distribution Agreement Page 3 of 3
EXHIBITS A and B - Services, Charges, Payments
1. The Services:
COMTEX shall deliver the COMTEX Public Companies CustomWire (press releases
only), and the Business, Finance, and High Tech Top Story Newsrooms to
Distributor for use by the Distributor on the Distributor's Web site:
xxx.xxxxxxxxxxx.xxx. COMTEX CustomWire news in the Services will be accessible
to End-Users for a period not to exceed thirty (30) days ("Archive Length").
2. Charges and Payment Terms
Distributor shall pay COMM any Minimums, Fees, Royalties and/or Communication
charges as set forth below. Each month, COMTEX shall provide Distributor an
invoice stating the Minimums, Fees and Communications Charges owed by
Distributor to COMTEX. Such invoice will be paid within thirty (30) days of the
date of the invoice. Further, Distributor shall calculate all due Royalties on a
monthly basis and remit such Royalties to COMTEX within thirty (30) days of the
close of the month in which the Royalties occu rred. Start-Up/Installation Fees
shall be due upon contract execution.
Monthly Fee: the following schedule, will be used for the monthly Fees due to
Comtex:
October, 1999 $625
November, 1999 $1250
December, 1999 $1875
January, 2000 and thereafter $2100
Communication Charges: $400 per month
Start-Up/Installation Fee: $1500.
Royalty (Royalties) Schedule: No Royalties will be due under the terms of this
Agreement.
Royalty Reporting: No Reporting will be necessary under the terms of this
Agreement.
3. Term. The Initial Term shall be one year. There shall be no automatic renewal
of this Agreement, unless agreed to by both Parties. This clause shall take
precedence over Section 3(a).
Confidential Distribution Agreement Page 4 of 4
Exhibit C -- COMTEX End-User Agreement Provisions
1. Ownership. End-User agrees that COMTEX Scientific Corporation ("COMTEX") and
its information providers retain all proprietary right, title or interest,
including copyright, in the stories, articles or other material, including but
not limited to text, images, and other multimedia data, that COMTEX provides as
part of Distributor's Services (the "Content").
2. Restrictions on Use. End-User agrees that it will not copy nor license, sell,
transfer, make available or otherwise distribute the Content to any entity or
person. End-User shall use its best efforts to stop any such copying or
distribution immediately after such use becomes known.
3. No Warranty. The Content is provided "AS IS." COMM AND ITS INFORMATION
PROVIDERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, THE CONTENT AND ALL PERFORMANCE
HEREUNDER. COMTEx and its information providers make no warranties regarding the
completeness, accuracy or availability of the Content.
4. Limitation of Liabilily. Iri'no event shall COMTEX or its information
providers be liable to End-User or any other person or entity for any direct,
indirect, special, exemplary or consequential damages, including lost profits,
arising under this Agreement or from performance thereunder based in contract,
negligence, strict liability or otherwise, whether or not they or it had any
knowledge, actual or constructive,, that such damages might be incurred.
5. Indemnification. End-User shall indemnify and hold harmless COMTEX and its
information providers against any claim, damages, loss, liability or expense,
including attorneys fees, arising out of End-User's use of the Content in any
way contrary to this Agreement.
6. Beneficiaries of this Agreement. The rights and limitations in this COMTEx
End-User Agreement are for the benefit Of COMTEx and its information providers,
each of which shall have the right to enforce its rights hereunder directly and
on its own behalf.
Confidential Distribution Agreement Page 5 of 5
Exhibit D - Changes and Other
The parties agree that the following items are supplemental to the terms and
conditions contained within the body of this Agreement.
Critical Information Providers: Comtex recognizes that the Information Providers
PR Newswire and Business Wire are critical to the business model of the
Distributor, and that the withdrawal of either of these Information Providers is
grounds for immediate termination with written notification to Comtex.
Performance Clause: Comtex warrants that it delivers Content on a 240 basis, and
maintains a monthly network up time of 99%. If Comtex should ever fall below
this percentage, then the Distributor may consider it a breach of this
Agreement.
Indemnification by Comtex: Comtex shall indemnify and hold harmless Distributor
from and against any third party losses, expenses, liabilities, damages and
other claims, including reasonable legal fees and expenses, arising out of
Comtex' breach of any provision of this Agreement.
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