Dow Xxxxx Financial News Services
2 YEAR PLAN SUBSCRIPTION AGREEMENT
THIS AGREEMENT, between the undersigned firm or corporation
("Subscriber") and DOW XXXXX & COMPANY, INC. ("Dow Xxxxx"), sets forth the terms
under which Subscriber may receive the Dow Xxxxx News Service(R) (the "DJ
Service") within the United States.
1. Service Format. Subscriber hereby subscribes to the DJ Service in
the following combined format: (A) interactive, retrievable format, which
permits the user to search (by stock symbol or company/industry code) a database
consisting of the most recent 90 days (or when made available by both Dow Xxxxx
for the Service in question and by Subscriber's third-party vendor, if any, 180
days) of stories appearing in the DJ Service; and (B) continuous, online
printing of all headlines appearing in the DJ Service, Any Subscriber terminal,
printer, or other device that receives the DJ Service is referred to herein as a
"DJ Terininal".
2. Monthly Charges. Subscriber shall pay to Dow Xxxxx in advance for
the DJ Service the applicable monthly fees (the "Subscription Fees")
corresponding to Subscriber's minimum commitment level, as set forth in Schedule
A, plus applicable sales or similar taxes.
(i) Commitment Levels. Subscriber's initial commitment level
shall be 50 terminals. On or before April 1, 1997 Subscriber may elect to
increase its commitment level with a corresponding change in the Subscription
Fees, which shall then remain in effect for the duration of the Term.
(ii) Minimum Monthly Charge. In any event, Subscriber shall pay
Dow Xxxxx the "Minimum Monthly Charge" corresponding to Subscriber's commitment
level, which is calculated by multiplying the applicable Base Terminal Number by
the applicable Volume-based Terminal Charges, as set forth on Schedule A;
provided, however, that over the term hereof, Subscriber for any reason may
cancel (and thereby reduce such Base Terminal Number with a corresponding
reduction in such Minimum Monthly Charge) DJ Terminals such that the number of
DJ Terminals receiving the DJ Service at all times during the Term is greater
than or equal to the applicable Reduced Base Terminal Number, as set forth on
Schedule A. In the event Subscriber cancels sufficient DJ Terminals so that the
number of DJ Terminals is less than such Reduced Base Terminal Number,
Subscriber shall pay Dow Xxxxx a Minimum Monthly Charge equal to such Base
Terminal Charge as applied to such Reduced Base Terminal Number.
3. Third-Party Vendor. Subscriber acknowledges that the DJ Service may
be delivered to Subscriber by, and made available on equipment supplied by, a
third-party vendor, and Subscriber agrees to pay to such vendor all applicable
delivery or other fees charged by such vendor. If Dow Xxxxx delivers any DJ
Service directly to Subscriber, additional delivery fees may apply.
4. Dow Xxxxx Equipment Charges. Subscriber may lease from Dow Xxxxx any
DJ Terminal, related equipment and communications lines (collectively,
"Equipment") then available from Dow Xxxxx at rates then in effect. Subscriber
shall be responsible for any loss or damage to the Equipment while in its care
and custody other than loss or damage caused by the negligence of Dow Xxxxx or
its agents.
5. Copyright; Redistribution Restrictions. Subscriber agrees that the
DJ Service and the Equipment are the property of Dow Xxxxx or its licensors and
the DJ Service is protected by copyright Subscriber agrees that it shall permit
access to the DJ Service hereunder (i) only through DJ Terminals located at
Subscriber's premises and under its exclusive control, and (ii) only by its
clients who have been authorized to access such DJ Terminals and who have signed
Dow Xxxxx' Individual User Agreement, a current copy of which is attached as
Schedule B ("Authorized Clients"). Subscriber further agrees that neither it nor
any Authorized Client shall store, copy, reproduce, retransmit, disseminate,
sell, distribute, publish, broadcast or circulate the DJ Service in whole or in
part to anyone, including, but not limited to, other employees of Subscriber,
without the express prior written consent of Dow Xxxxx; provided, however, that
Authorized Clients may on an occasional basis include limited portions of the DJ
Service in oral communications with others in the normal course of business.
6. Plan Reports; Records. Within 20 days after the end of each month
during the term hereof, Subscriber shall supply Dow Xxxxx with a report
certifying the number of DJ Terminals and Authorized Clients and the originals
of the Individual User Agreements signed by Authorized Clients during the
period covered by the report. (If Subscriber receives the DJ Service through a
third-party vendor, Dow Xxxxx may, at its option, rely on such vendor's monthly
report of the information described in this Paragraph 3). Subscriber shall
maintain at all times during the Term of this Agreement adequate books and
records, which shall include the information required for the above reports and
the names and addresses of all Authorized Clients. Dow Xxxxx shall have the
right, upon reasonable advance notice, from time to time to inspect Subscriber's
offices and records to confirm the accuracy of the information contained in such
reports.
7. Disclaimer. SUBSCRIBER AGREES THAT NEITHER DOW XXXXX NOR ANY OF ITS
DISTRIBUTORS, AFFILIATES, AGENTS OR LICENSORS WARRANT THE ACCURACY,
COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OF THE DJ SERVICE. IN NO EVENT WILL DOW XXXXX OR ANY OF ITS DISTRIBUTORS,
AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY LOSS, INCLUDING CONSEQUENTIAL,
SPECIAL OR SIMILAR DAMAGES, RESULTING DIRECTLY OR INDIRECTLY FROM SUBSCRIBER'S
USE OF THE DJ SERVICE OR THE EQUIPMENT, OR FROM ANY DECISION MADE OR ACTION
TAKEN BY SUBSCRIBER OR ANY THIRD PARTY IN RELIANCE UPON INFORMATION CONTAINED IN
THE DJ SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL THE LIABILITY OF DOW XXXXX, ITS DISTRIBUTORS, AFFILIATES, AGENTS AND
LICENSORS ARISING OUT OF ANY CLAIM RELATED To THIS AGREEMENT EXCEED THE
AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
8. Term; Liquidated Damages. The term of this Agreement shall commence
on the date of execution of this Agreement (the "Commencement Date") and shall
continue for two (2) years from the Commencement Date (the "Term"). If
Subscriber terminates this Agreement for any reason other than a default by Dow
Xxxxx, Subscriber shall pay to Dow Xxxxx as liquidated damages (and not as a
penalty) an amount equal to the Minimum Monthly Charge times the number of
months remaining in the Term at the time of termination.
9. Miscellaneous. Neither party shall be liable to the other for any
delay or failure of performance of any of its obligations hereunder (other than
the payment of money) for reasons beyond the reasonable control of such party,
including natural disasters, actions or decrees of governmental bodies or
communications line failure not the fault of the affected party. This Agreement
contains the entire understanding of the parties and supersedes and terminates
all prior oral or written agreements on the subject hereof. Subscriber shall not
assign this Agreement to anyone without Dow Xxxxx' prior written consent. This
Agreement shall not be contravened by any terms contained in any purchase order,
confirmation or acknowledgment signed by the parties hereto, and no modification
or amendment of this Agreement shall be deemed effected by any purchase order,
confirmation or acknowledgment containing other or different terms. This
Agreement will be governed by, and construed in accordance with, the laws of the
State of New York applicable to contracts entered into and wholly performed in
New York.
DOW XXXXX & COMPANY, INC. ALL-TECH INVESTMENT GROUP, INC.
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SUBSCRIBER
By: Xxxx Xxxx By: Xxxx Xxxxxx - V.P.
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Name(printed): Xxxx Xxxx Name(printed): Xxxx Xxxxxx
Title: Account Executive Title: V.P.
Dated: 1/16/98 Address: 000 Xxxxxx Xxx.
Activation Date: November 1, 1996 Xxxxxxxx, XX 00000
2
ALL-TECH INVESTMENT GROUP, INC.
MEMBER: NATIONAL ASSOCIATION OF SECURITIES DEALERS o SECURITIES INVESTOR
PROTECTION CORP.
March 31, 1997
Xx. Xxxx Xxxx
Dow Xxxxx and Company Inc.
X.X. Xxx 000
Xxxxxxxxx, XX 00000-0000
Re: Commitment Revision
Dear Xxxx:
Following our March 14, 1997 letter, please change our commitment
level to fifty (50) terminals.
We understand that the news service will now be $120.00 per unit per
month for the balance of 1997 and will be increased to $122.00 for 1998.
Should you have any questions, please feel free to give me a call.
Very truly yours,
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Controller
000 Xxxxxx Xxx, Xxxxxxxx, XX 00000
(000) 000-0000 Fax (000) 000-0000
