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EXHIBIT 10.16
S&P XXXXXXXX INFORMATION DISTRIBUTION
LICENSE AGREEMENT
AGREEMENT, made as of September 23, 1999, by and between S&P XxxXxxxx,
Inc. a corporation having offices at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000, and Stockpoint, Inc. ("Distributor"), having an office at 0000 Xxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxx 00000.
WHEREAS, S&P XxxXxxxx, Inc. gathers, formats and distributes an
information service comprised of certain securities and commodities prices and
other data which is known as the S&P XxxXxxxx Service ("XxxXxxxx") and
WHEREAS, S&P XxxXxxxx, Inc. is licensed to distribute information from
various Stock Exchanges, Commodity Exchanges, and other sources (collectively,
"Sources") as part of S&P XxxXxxxx; and
WHEREAS, the parties desire that certain information from S&P XxxXxxxx
("the XxxXxxxx Information") as specified in Exhibit A (Part 1), attached
hereto, be licensed to Distributor for use by Distributor as described fully in
Exhibit B attached hereto (collectively, the "Distributor Service").
NOW, THEREFORE, the parties mutually agree as follows:
1. Distribution License.
(a) Distributor is hereby granted for the term of this Agreement a
nonexclusive, nontransferable right and license to distribute electronically the
XxxXxxxx Information via the Distributor Service solely for access by Internet
users of the Distributor Service (such users referred to herein as
"Subscribers"), provided that the XxxXxxxx Information is supplied to the
Subscribers by means (such as data encryption, or packet
transmission-digitizing) which prevent unauthorized reception, use or
retransmission and further provided that Distributor has executed in advance any
and all necessary documents with the various Sources, which documents have been
accepted and approved by the Sources. Notice of such Sources' acceptance and
approval must be supplied to S&P XxxXxxxx, Inc. prior to Distributor's use or
distribution of the XxxXxxxx Information.
(b) Distributor agrees and understands that it shall directly provide
the XxxXxxxx Information to Subscribers as specifically set forth in Exhibit B.
Distributor also agrees and understands that it shall not otherwise sublicense,
transfer, or assign its rights hereunder nor permit the redistribution of the
XxxXxxxx Information without the express prior authorization of S&P XxxXxxxx,
Inc. pursuant to a separate agreement or by mutually agreeable amendment
executed and attached hereto.
2. XxxXxxxx Equipment.
(a) During the term of this Agreement, S&P XxxXxxxx, Inc. shall provide
Distributor the equipment listed in Exhibit C, attached hereto ("the XxxXxxxx
Equipment"), for installation only at the site(s) specified therein. Distributor
shall not relocate the XxxXxxxx Equipment without the written permission of S&P
XxxXxxxx, Inc.
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(b) S&P XxxXxxxx, Inc. shall, at Distributor's expense and request,
install, furnish, and maintain necessary modems and/or communications interface
equipment.
(c) Distributor shall not attach, or permit or cause to be attached,
any non-XxxXxxxx equipment to the XxxXxxxx communications line or the XxxXxxxx
Equipment without the prior written permission of S&P XxxXxxxx, Inc.
(d) Distributor shall have no right in or to any of the XxxXxxxx
Equipment except for the rights of use herein granted. Distributor shall pay all
extraordinary costs for repair or replacement of the XxxXxxxx Equipment, over
and above ordinary maintenance which shall be performed by S&P XxxXxxxx, Inc.,
Such extraordinary maintenance includes electrical work external to the XxxXxxxx
Equipment, maintenance of accessories or attachments, and repair of damage to
the XxxXxxxx Equipment resulting from accident, neglect, misuse, failure of
electrical power or causes other than ordinary use. Distributor shall promptly
return the XxxXxxxx Equipment in good condition, ordinary wear and tear
excepted, upon termination of this Agreement for any reason.
3. XxxXxxxx Information.
(a) The furnishing to Distributor of the XxxXxxxx Information is
conditioned upon strict compliance with the provisions of this Agreement, the
applicable policies of the Sources, and with all local, state and federal
regulations which might pertain to the use of the XxxXxxxx Information. It shall
be the sole responsibility of Distributor to confirm with the applicable Sources
whether or not all of the XxxXxxxx Information may be distributed by Distributor
to its Subscribers. S&P XxxXxxxx, Inc. may discontinue provision of the XxxXxxxx
Information hereunder, without notice, whenever the terms of its agreements with
the Sources require such discontinuance, or if in its reasonable judgment S&P
XxxXxxxx, Inc. finds a breach by Distributor of any of the provisions of this
Agreement. S&P XxxXxxxx shall give Distributor at least thirty (30) days notice
before discontinuance.
(b) Neither S&P XxxXxxxx, Inc., nor any of its affiliates, nor any
Sources make any express or implied warranties (including, without limitation,
any warranty of merchantability or fitness for a particular purpose or use).
Neither S&P XxxXxxxx, Inc., any of its affiliates, or any Sources warrant that
the XxxXxxxx information will be uninterrupted or error-free. Distributor
expressly agrees that its use and distribution of the XxxXxxxx Information and
its use of the XxxXxxxx Equipment is at the sole risk of Distributor and its
Subscribers. S&P XxxXxxxx, Inc., its affiliates, and all Sources involved in
creating or providing the XxxXxxxx Information will in no way be liable to
Distributor or any of its Subscribers for any inaccuracies, errors or omissions,
regardless of cause, in the XxxXxxxx Information or for any defects or failures
in the XxxXxxxx Equipment, or for any damages (whether direct or indirect, or
consequential, punitive or exemplary) resulting therefrom. The liability of S&P
XxxXxxxx, Inc. and its affiliates in any and all categories, whether arising
from contract, warranty, negligence, or otherwise shall, in the aggregate, in no
event exceed one month's XxxXxxxx Information Delivery Fee.
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(c) Prior to commencing distribution of real time SPC Information to
any Subscriber, Distributor shall enter into a written or electronic
subscription agreement with each such Subscriber. The form of any such agreement
shall be subject to the prior review and written approval of SPC and shall
include provisions to the effect that each Subscriber:
(i) agrees that SPC and the Sources shall have no
liability for the accuracy or completeness of the SPC
Information or for delays, interruptions, or
omissions therein;
(ii) agrees that its arrangement with Distributor for
receipt of the SPC Information is subject to
termination in the event that this Agreement between
Distributor and SPC is terminated for any reason
(iii) acknowledges that the Sources described in the
preceding paragraph may have the right to terminate
provision of the SPC Information to Subscriber with
or without notice and that neither any such Source,
SPC nor Distributor shall have any liability in
connection therewith.
(d) Distributor agrees that it shall not display the XxxXxxxx
Information in the Distributor Service without a prominent notice indicating
that the XxxXxxxx Information is being displayed on a minimum fifteen (15)
minute delayed basis, where applicable.
(e) Distributor also agrees to include S&P Xxxxxxxx'x Terms and
Condition of Use, a copy of which is attached hereto as Exhibit E, within the
Distributor Service in a manner which alerts Subscribers of the applicability
thereof.
(f) Distributor shall clearly and prominently identify S&P XxxXxxxx as
the source of the XxxXxxxx Information by display of the S&P XxxXxxxx logo (the
"Logo") in a manner to be agreed to by the parties. Distributor shall also
create a hypertext or other computer link from the Logo to the S&P XxxXxxxx site
on the World Wide Web.
(g) Distributor represents and warrants that it has and will employ
adequate security procedures to prevent the unauthorized access to the XxxXxxxx
Information or corruption of the XxxXxxxx Information.
(h) Distributor agrees to indemnify and hold S&P XxxXxxxx, Inc. and its
affiliates harmless from and against any and all losses, damages, liabilities,
costs, charges and expenses, including reasonable attorneys' fees, arising out
of: (i) any liability of S&P XxxXxxxx, Inc. to any Subscriber where Distributor
has failed to include the Terms and Conditions of Use in the Distributor Service
pursuant to Section 3(d) above; or (ii) any breach or alleged breach on the part
of Distributor or any Subscribers with respect to its/their obligations to
obtain prior approvals from appropriate Sources and to comply with any
applicable conditions, restrictions or limitations imposed by any Source.
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(i) S&P XxxXxxxx, Inc. represents that it has the rights and licenses
necessary to transmit the XxxXxxxx Information to Distributor, and that to the
best of S&P XxxXxxxx, Inc.'s knowledge, the license granted to Distributor
hereunder does not infringe any proprietary right or any third party right at
common law or any statutory copyright.
(j) S&P XxxXxxxx, Inc. shall deliver the XxxXxxxx Information to
Distributor at the site(s) set forth in Exhibit C or at such other locations as
Distributor may designate within the continental United States or Canada.
4. Payments.
In consideration for the license granted to Distributor by S&P
XxxXxxxx, Inc. under this Agreement, Distributor shall make the following
payments to S&P XxxXxxxx, Inc.:
(a) Distributor shall pay to S&P XxxXxxxx, Inc. a monthly License Fee
and Subscriber Fee, as listed in Exhibit D. Together with the Subscriber Fee
payment, Distributor shall provide to S&P XxxXxxxx, Inc. on a monthly basis a
list identifying the number of web hosting 3rd parties and their respective page
views. S&P XxxXxxxx, Inc. shall keep such list confidential.
(b) Distributor shall be responsible for the payment of any and all
applicable fees billed to S&P XxxXxxxx, Inc. or directly to Distributor by
Sources, which fees result from Distributor's use and distribution of the
XxxXxxxx Information. Distributor shall also be responsible for payment of any
Subscriber's Source fees which must be paid directly by Distributor to the
Sources. Distributor shall provide to S&P XxxXxxxx, Inc. a copy of its monthly
Source fee reports when and as filed with the Sources.
(c) Any amounts payable to S&P XxxXxxxx, Inc. by Distributor hereunder
which are more than thirty (30) days past due shall bear interest at the rate of
1-1/2% per month.
(d) S&P XxxXxxxx, Inc. may, in its sole discretion and at any time
following the initial term of this Agreement, change the per-Subscriber fee
payment schedule and/or the XxxXxxxx Information Delivery Fee as specified
herein after having provided written notice to Distributor at least ninety (90)
days in advance of such changes.
(e) S&P XxxXxxxx, Inc. may audit Distributor's records for the sole
purpose of verifying the accuracy of Distributor's reported monthly Subscriber
Fee payments as set forth in Paragraph 4(a), above. Distributor will make such
records readily available to S&P XxxXxxxx, Inc. for inspection during normal
working hours on one week's notice. S&P XxxXxxxx, Inc. agrees that Distributor's
records will be treated as confidential and will not be used for any purpose
other than verifying Distributor's compliance with this Agreement. Any such
audit shall be at S&P XxxXxxxx, Inc.'s expense unless it is determined that S&P
XxxXxxxx, Inc. has been underpaid by an amount exceeding five percent (5%) of
the revenues actually received by S&P XxxXxxxx, Inc. in the period covered by
the audit; in such case, the expense of the audit shall be borne by Distributor.
5. Information Enhancements; Changes to Data Specification.
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(a) Any additions of new Sources or other enhancements to the XxxXxxxx
Information which may be made by S&P XxxXxxxx, Inc. during the term of this
Agreement, while unidentified at this time, will be offered to Distributor under
terms and conditions to be negotiated, provided that (i) S&P XxxXxxxx, Inc. has
the necessary rights to convey such new information to Distributor for
redistribution; and (ii) Distributor and S&P XxxXxxxx, Inc. execute a separate
agreement or an amendment to this Agreement.
(b) S&P XxxXxxxx, Inc. shall have the right, on at least six (6) months
prior written notice, to change the XxxXxxxx Data Format Specification, provided
that any such change shall be made effective generally by S&P XxxXxxxx, Inc. to
its customers. Distributor shall be responsible at its own expense for making
any modifications to its software necessitated by such change.
6. Term.
(a) This Agreement shall take effect upon its execution by an
authorized representative of S&P XxxXxxxx, Inc. and of Distributor.
(b) The term of this Agreement shall be for an initial term of two (2)
years commencing on the first day of service operation and shall automatically
renew at the end of each term for successive terms, each of the same duration as
the initial term, unless it is terminated effective at the end of any term with
written notice by either party given to the other at least ninety (90) days
prior to the end of the then current term. If S&P XxxXxxxx, Inc. increases
charges to Distributor pursuant to Paragraph 4(d), above, Distributor shall have
the option to terminate this Agreement by written notice to S&P XxxXxxxx, Inc.
within sixty (60) days of Distributor's receipt of notice of such increases;
such termination will become effective no sooner than thirty (30) days from the
last day of the month in which notice of termination by Distributor is received
by S&P XxxXxxxx, Inc.
7. Marketing.
Distributor may not use the names "XxxXxxxx", "SPC.", or "S&P XxxXxxxx,
Inc.", which are proprietary to S&P XxxXxxxx, Inc., or refer to the XxxXxxxx
Information in marketing or advertising materials without the prior written
consent of S&P XxxXxxxx, Inc., such consent not to be unreasonably withheld.
Upon S&P XxxXxxxx, Inc.'s written request, Distributor shall notify Subscribers
by a display in the service itself that S&P XxxXxxxx is the source of the quote
information and any sales literature discussing XxxXxxxx provided quotes shall
list S&P XxxXxxxx as the provider of the service.
8. Rights to Data Specification; Other Confidential Information.
(a) Distributor agrees and acknowledges that the Data Specification is
a confidential and proprietary trade secret belonging to XxxXxxxx, and nothing
in this Agreement conveys any proprietary rights whatsoever with regard to the
Data Specification to Distributor. The Data Specification is provided to the
Distributor strictly and solely for the purpose of developing internal computer
software to receive the XxxXxxxx Information. Distributor may not use the Data
Specification for any other purpose whatsoever, including, but not limited to,
the development of systems for the receipt or transmission of computer data.
Distributor may not give, transmit, or provide access to the XxxXxxxx Data
Specification to any Subscriber or other third party. On any termination of this
Agreement, regardless of cause, Distributor shall promptly return the Data
Specification to S&P XxxXxxxx, Inc. and shall provide a written certification by
an officer that no copies have been retained by Distributor.
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(b) In addition to the duties imposed on Distributor pursuant to
Paragraph 8(a), above, S&P XxxXxxxx, Inc. and Distributor agree to hold
confidential any and all of each other's trade secrets, procedures, formulae,
financial data, Subscriber lists, and future plans, which may be learned before
and during the term of this Agreement. Notwithstanding the foregoing, however,
such duty of confidentiality shall not extend to information which is or comes
into the public domain, is rightfully obtained from third parties not under a
duty of confidentiality, or which is independently developed without reference
to the other party's confidential information.
(c) The duties of confidentiality imposed herein shall survive any
termination of this Agreement.
9. Prevention of Performance.
Neither party shall be liable for any failure in performance of this
Agreement if such failure is caused by acts of God, war, governmental decree,
power failure, judgment or order, strike, or other circumstances, whether or not
similar to the foregoing, beyond the reasonable control of the party so
affected. Neither party shall have any liability for any default resulting from
force majeure, which shall be deemed to include any circumstances beyond its
control. Such circumstances shall include, but are not limited to acts of the
government, fires, flood, strikes, power failures or communications line or
network failures.
10. Right of Termination in the Event of Breach or Bankruptcy; Right to
Injunctive Relief.
(a) Either party shall have the right to terminate this Agreement for
material breach by the other party by giving thirty (30) days prior written
notice, such termination to take effect unless the breach is cured or corrected
within such notice period.
(b) If a receiver is appointed for either party's business or if either
party petitions under the Bankruptcy Act and is adjudicated a bankrupt, declared
an insolvent, or makes an assignment for the benefit of creditors, then the
other party shall, upon thirty (30) days prior written notice, have the right to
terminate this Agreement.
(c) Upon termination of this Agreement for any reason, Distributor
shall cease all use and distribution of any of the XxxXxxxx Information.
(d) In addition to and notwithstanding the above, if Distributor, or
any of its employees, agents or representatives, shall attempt to use or dispose
of the XxxXxxxx Information or the Data Specification in a manner contrary to
the terms of this Agreement, S&P XxxXxxxx, Inc. shall have the right, in
addition to such other remedies as may be available to it, to injunctive relief
enjoining such acts or attempt, it being acknowledged that legal remedies are
inadequate.
(e) SPC shall have the right to terminate this Agreement upon written
notice to Distributor in the event of a sale or transfer of all or substantially
all of the assets of Distributor or a sale or transfer of a controlling equity
interest in Distributor.
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11. Assignment.
This Agreement may not be assigned, sublicensed or otherwise
transferred by either party without the written consent, except to a majority
owned subsidiary, of the other party, such consent not to be unreasonably
withheld, provided, however, that no such consent shall be required with respect
to any assignment by S&P XxxXxxxx, Inc. to its parent company, or to any S&P
XxxXxxxx, Inc. affiliate. Any attempted transfer or assignment of this Agreement
in violation of this provision shall be null and void.
12. Entire Agreement.
This Agreement and its Exhibits embodies the entire agreement between
the parties hereto. There are no promises, representations, conditions or terms
other than those herein contained. No modification, change or alteration of this
Agreement shall be effective unless in writing and signed by the parties hereto.
13. Non-Waiver.
The failure of either party to exercise any of its rights under this
Agreement for a breach thereof shall not be deemed to be a waiver of such rights
nor shall the same be deemed to be a waiver of any subsequent breach.
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14. Notices.
All notices under this Agreement shall be given in writing to the parties as
follows:
To: S&P XxxXxxxx, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxx Xxxxxx
To: Stockpoint, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Attn.: Xx. Xxxxxxx Xxxxx
15. Governing Law.
This Agreement shall be governed by the laws of the State of New York
and the parties agree to select New York jurisdiction for any claims or disputes
which may arise hereunder.
IN WITNESS WHEREOF, Distributor and S&P XxxXxxxx, Inc. have caused this
Agreement to be executed by their duly authorized respective officers, as of the
day and year above written.
S&P XXXXXXXX, INC.
By: /s/ [illegible]
Title: President
Date: 9/23/99
DISTRIBUTOR
By: /s/ Xxxxxxx X. Xxxxx
Title: CEO
Date: 9/23/1999
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EXHIBITS
X. XXXXXXXX INFORMATION DEFINITION; AUTHORIZED COUNTRIES
B. DESCRIPTION OF DISTRIBUTOR SERVICE
C. LISTING OF XXXXXXXX EQUIPMENT; DISTRIBUTOR DELIVERY SITES
D. SCHEDULES OF SUBSCRIBER FEES
E. TERMS AND CONDITIONS OF USE
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