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Exhibit 10.13
DISTRIBUTOR AGREEMENT
This Distributor Agreement ("Agreement") is entered into by and between
COMTEX Scientific Corporation ("COMTEX"), a New York corporation with its
principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and Go2Net (the "Distributor"), with its principal offices at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. DEFINITIONS
a. Service. The term "the Service" means the electronic information
services identified in Exhibit A to this Agreement.
b. Content. The term "Content" means all material, whether or not protected
by copyright, including but not limited to text, images, and other multimedia
data, provided or made available as part of the Service.
c. Information Providers. The term "Information Providers" means third
parties from whom COMTEX acquires the right to distribute Content provided or
made available as part of the Service.
d. Users. The term "Users" means all third parties to whom Distributor,
subject to the terms and conditions of this Agreement, may license, sell,
transfer, make available or otherwise distribute the Service.
2. DISTRIBUTION
▇. ▇▇▇▇▇ of Rights. Subject to the terms and conditions of this Agreement,
COMTEX grants Distributor a nonexclusive license and right to market the
Service, distribute the Service to Users, and license Users to use the Service
for their internal use.
b. Restrictions on distribution.
(i) Unauthorized Entities. Distributor shall not knowingly license, sell,
transmit or otherwise distribute the Service or Content to print or broadcast
news media or any of their parents, subsidiaries, and affiliates ("Unauthorized
Entities"), without obtaining for each such Unauthorized Entity the prior
written consent of COMTEX. In the event any such unauthorized distribution
becomes known to Distributor, Distributor immediately shall notify COMTEX and
use its best efforts to halt immediately such distribution.
(ii) Redistribution. Distributor shall not license, sell, transfer, make
available or otherwise distribute the Service or Content to any third party who,
for the use or benefit of such third party's Customers, licenses, purchases or
otherwise obtains the Service or Content from Distributor and then relicenses,
resells, transfers, makes available or otherwise redistributes such Service and
Content to such third party's Customers, without obtaining for each such third
party the prior written consent of COMTEX. For purposes of this subparagraph,
the term "Customer" shall include any individual, entity or other party who
licenses, purchases or otherwise obtains such Service or Content from the third
party.
CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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c. User Agreements. Distributor shall require that each User enter into an
agreement that contains the provisions set forth in Exhibit D or provisions
substantially equivalent thereto. Such agreement, which may be obtained in an
electronic or hard-copy format, shall be retained by Distributor for the term of
this Agreement and three (3) years thereafter. Upon the request of COMTEX,
Distributor shall provide COMTEX a copy of such user agreement.
d. Reservation. COMTEX reserves the right to add or withdraw Information
Providers, Content and items of coverage from the Service without notice.
3. MARKETING
a. Promotion. Distributor agrees to use commercially reasonable efforts to
promote and market the Service to prospective Users and to enter into licenses
for use of the Service by Users.
b. Expenses. Distributor shall be responsible for all expenses incurred by
Distributor in promoting and marketing the Service.
c. Use of Name. Distributor shall name COMTEX as one of its information
services in its formal promotional and marketing materials relating to the
Service, including press releases and advertisements.
d. Prior Approval. COMTEX and Distributor each agrees to submit to the
other party for written approval all press releases, advertising or other
promotional materials that use Service names or a party's company name not less
than fifteen (15) days before the proposed use. Each party shall not
unreasonably withhold its approval. Unless notice of approval or disapproval is
received within ten (10) days of receipt of promotional materials, approval
shall be deemed granted. Either party, however, may identify the other in its
published listing of available services or Distributors without such written
approval.
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4. DELIVERY OF THE SERVICE
a. Provision of the Service. Subject to the terms and conditions of this
Agreement, COMTEX shall provide the Service to Distributor and Distributor shall
receive the Service from COMTEX in conformance with the Technical Specifications
set forth in Exhibit A.
b. Timeliness. COMTEX shall use commercially reasonable efforts to
maintain the timeliness of the information contained in the Service.
Distributor acknowledges that COMTEX relies on the performance of Information
Providers outside the control of COMTEX in order to provide the Service.
c. Proprietary Notices. Where supplied as part of the Service by COMTEX or
its Information Providers, Distributor will cause to be displayed appropriate
copyright or other proprietary notices relating to the Service.
d. Modifications. Distributor shall not edit, abridge, rewrite or in any
other way alter the Content of the Service or create any work derived from the
Content of the Service; provided, however, that Distributor may choose not to
display every story or article.
e. Remedies
i. CORRECTIONS. Upon receipt of written notice from COMTEX of an error
in the distribution of the Service and Content to a User, Distributor shall
use commercially reasonable efforts to promptly correct such error.
ii. WITHDRAWAL OF INFORMATION PROVIDER. Notwithstanding Subparagraph
4.e.i., in the event that Distributor violates Subparagraphs 2.b., 4.c. or
4.d., infringes any copyright of an Information Provider, or otherwise
violates the proprietary rights of an Information Provider, COMTEX, at its
sole discretion, immediately may cease distribution of such Information
Provider's Content to Distributor until the violation or infringement is
remedied by Distributor, during which period Distributor acknowledges that
such actions by COMTEX shall not result in a breach of Subparagraphs 4.a.
and 4.b.
f. Review of COMTEX
i. ACCESS. Throughout the term of this Agreement, Distributor shall
provide COMTEX reasonable access to Distributor's system for distribution
of the Service to Users for the sole purpose of reviewing Distributor's
implementation of the Service. This access shall be provided by Distributor
at no charge to COMTEX
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ii. Opportunity to Review. Distributor shall provide notice to COMTEX
to allow COMTEX a reasonable opportunity to review Distributor's
implementation of the Service before or, if prior review is impracticable,
as soon as possible after Distributor implements the Service or any
substantial changes in its implementation of the Service.
5. PAYMENT
a. Payment Schedule. Distributor shall pay COMTEX the Monthly Fees and
Royalties set forth in the Payment Schedule in Exhibit B.
*
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* Information omitted for confidential treatment.
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6. TERM AND TERMINATION
a. Term. This Agreement commences on the date of the last signature hereto
or the first commercial distribution of the Service, whichever occurs first (the
"Effective Date"), and shall remain in effect for the Initial Term set forth in
Exhibit A. This Agreement shall renew automatically for successive periods of
the duration of the Renewal Term set forth in Exhibit A, unless either party
notifies the other party in writing, at least ninety (90) days before the end of
the Initial Term or any Renewal Term, of its election not to renew.
b. Termination. Either party may terminate this Agreement at any time if
the other party materially breaches any provision of this Agreement. Such
termination shall take effect (i) if the breach is incapable of cure, then
immediately upon the breaching party's receipt of a written notice of
termination which identifies the breach, or (ii) if the breach, capable of
being cured, has not been cured within sixty (60) days after receipt of written
notice from the non-breaching party identifying the breach, then immediately
upon receipt of a written notice of termination received within thirty (30)
days of the end of such sixty (60) day period. For purposes of this paragraph,
a breach of Subparagraphs 2.b. or 4.e.i. shall be deemed a breach that is
incapable of cure.
c. Insolvency. Either party may terminate this Agreement by written notice
to the other if the other party becomes insolvent, makes a general assignment
for the benefit of creditors, permits the appointment of a receiver for its
business or assets, or takes steps to wind up or terminate its business.
d. Obligations upon Termination. Effective upon termination of the
Agreement, Distributor shall not license, sell, transfer, make available or
otherwise distribute the Service or Content nor access, use or retransmit the
Service or Content. Within thirty (30) days of termination, Distributor shall
(i) pay to COMTEX all amounts owed under Paragraph 5 of this
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Agreement, and (ii) for all Content, either (A) erase and purge the Content from
any on-line and off-line storage media and certify, in writing, to COMTEX that
such erasure and purge has been completed. or (13) certify, in writing, to
COMTEX that certain Content has been retained in creating back-ups during the
normal course of business and that such Content shall not be used in any manner
whatsoever without the prior consent of COMTEX.
e. Remedies upon Breach. Upon termination under Subparagraphs b. and c.
above, COMTEX shall terminate the Service and shall be entitled to recover from
Distributor (i) any payments due hereunder, (ii) the total of Distributor's
Monthly Fee multiplied by the number of months between such termination and the
date of expiration of the then current term, less savings realized by COMTEX,
(iii) all costs and expenses of collection, including attorneys' fees, and (iv)
any and all direct damages under law.
f. Survival. The provisions of Paragraphs 5, 6, 7, 8, 9, 13, 14, 15, 16 and
17 of this Agreement shall survive termination of this Agreement.
7. CONFIDENTIAL INFORMATION
a. Definition. "Confidential Information" shall mean information which is
designated as Confidential Information by the party disclosing such information
(the "Disclosing Party") (i) in Exhibit C to this Agreement, (ii) with respect
to information provided on paper, by facsimile or electronic mail, on magnetic
media, electronically 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"), or (iii) with respect to
information disclosed either verbally or in writing, by notifying the Receiving
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 written notice.
b. Exclusions. "Confidential Information" shall not include information
that (i) is or shall become generally available without fault of the Receiving
Party, (ii) is in the Receiving Party's possession prior to its disclosure by
the Disclosing Party, (iii) is independently developed by the Receiving Party,
or (iv) is rightfully obtained by the Receiving Party from third parties without
similar restrictions.
c. Restrictions. 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. Except as necessary to perform under this Agreement, the Receiving
Party shall not use or copy Confidential Information of the Disclosing Party,
without first obtaining the Disclosing Party's consent, and will take all
reasonable precautions to prevent inadvertent use and copying of such
Confidential Information.
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d. Injunctive Relief; Exclusion of Liability Limitation. The parties agree
that damages shall be an inadequate remedy in the event of a breach by either
party of this paragraph and that any such breach by a Receiving Party will cause
the Disclosing Party great and irreparable injury and damage. Accordingly, a
party shall be entitled, without waiving any additional rights or remedies
otherwise available at law or in equity or by statute, to injunctive and other
equitable relief in the event of a breach or intended or threatened breach of
this paragraph. The provisions of Paragraph 13 shall not apply to any breach of
this Paragraph 7.
8. CONTENT
a. Ownership. Distributor acknowledges that this Agreement does not
transfer to Distributor or Users any proprietary right, title or interest,
including copyright, in the Content made available as part of the Service.
b. Representation. COMTEX shall use commercially reasonable efforts to
prevent the Service from distributing any Content which would infringe any
copyright or other right of any third party. Distributor understands that
COMTEX is a distributor of information services and material licensed from
Information Providers and agrees that COMTEX does not warrant that the Content
will not infringe any copyright or other right of any third party.
9. TRADEMARKS
Distributor agrees that COMTEX trademarks are the sole and exclusive
property of COMTEX. Pursuant to Paragraph 3.d., COMTEX shall have the right to
approve the use of its trademarks by Distributor to identify and promote use of
the Service. Upon compliance with this provision, use of such marks by
Distributor for such purposes shall be deemed approved during the term of this
Agreement unless COMTEX specifically notifies Distributor to the contrary.
10. LIMITED WARRANTIES OF COMTEX
a. Agreement. COMTEX warrants that its entry into this Agreement does not
violate any agreement between COMTEX and any third party.
b. Laws and Regulations. COMTEX warrants that its performance under this
Agreement and the use of the Service conforms to all applicable laws and
government rules and regulations, subject to the terms of this Agreement.
c. The Service and Content. Distributor agrees that the Service and Content
are provided by COMTEX "AS IS". COMTEX does not warrant the accuracy,
completeness or timeliness of the Service and Content.
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11. LIMITED WARRANTIES OF DISTRIBUTOR
a. Agreement. Distributor warrants that its entry into this Agreement does
not violate any agreement between Distributor and any third party.
b. Laws and Regulations. Distributor warrants that its performance under
this Agreement and the use of the Service shall conform to all applicable laws
and government rules and regulations, subject to the terms of this Agreement.
12. DISCLAIMER OF ALL OTHER WARRANTIES
THE PARTIES AGREE THAT (a) THE LIMITED WARRANTIES SET FORTH IN PARAGRAPHS
10 AND 11 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY
EACH PARTY, AND (b) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE UNDER THIS
AGREEMENT, THE SERVICE AND CONTENT, AND EACH PARTY'S COMPUTING AND DISTRIBUTION
SYSTEM.
13. LIMITATION OF LIABILITY
/In no event shall COMTEX or its Information Providers be liable to Distributor
and its Users for any indirect, special, exemplary or consequential damages,
including lost profits, whether or not foreseeable or alleged to be based on
breach of warranty, contract, negligence or strict liability, arising under this
Agreement or any performance under this Agreement.
14. INDEMNIFICATION
Distributor shall indemnify and hold harmless COMTEX and its Information
Providers from and against any claims, losses, expenses, liabilities, and
damages, including reasonable legal fees and expenses, arising out of
Distributor's or its Users' breach of any provision of this Agreement, including
without limitation the restrictions, obligations and warranties set forth in
Paragraphs 2, 3, 4 and I 1 of this Agreement. COMTEX agrees to notify
Distributor of any such claim promptly in writing. The parties agree to
cooperate fully during such proceedings. Distributor shall defend and settle at
its sole expense all proceedings arising out of the foregoing.
15. NON-SOLICITATION
Distributor agrees that for the duration of this Agreement and for one
(1) year after expiration or termination of this Agreement, Distributor shall
not, directly or indirectly, solicit or attempt to solicit to obtain a direct
feed from any Information Provider which is providing Content made available to
Distributor as part of the Service provided by COMTEX.
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16. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform under
this Agreement if caused by conditions beyond its control, including but not
limited to fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts; provided, however, no such event shall excuse
any delay or failure to perform by Distributor of its obligations to make
payment to COMTEX under Paragraph 5 of this Agreement. The affected performing
party shall promptly notify the other party of the nature and anticipated length
of continuance of such force majeure. Should any such failure or suspension of
performance by COMTEX continue for more than six (6) months, then either party
shall have the right to terminate this Agreement without further liability or
obligation on the part of either party.
17. NOTICES
All notices and demands hereunder shall be in writing and delivered by hand
delivery, certified or registered mail, return receipt requested, or confirmed
facsimile transmission at the addresses set forth below (or at such different
address as may be designated by either party by written notice to the other
party). Delivery shall be deemed to occur (i) if by hand delivery, upon such
delivery, (ii) if by mail, four (4) days after deposit with the U.S. Postal
Service, and (iii) if by facsimile transmission, upon receipt of confirmation.
If to COMTEX:
▇▇▇▇▇▇ ▇▇▇▇▇, Vice President, Sales
COMTEX Scientific Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile transmission: (▇▇▇) ▇▇▇-▇▇▇▇
If to Distributor:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile transmission: (▇▇▇) ▇▇▇-▇▇▇▇
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18. General Terms and Conditions
a. Not Agent. Neither party shall be considered an agent of the other party
nor shall either party have the authority to bind the other party.
b. No Assignment. Neither party may assign this Agreement without the
written consent of the other party; provided, however, that COMTEX may assign
this Agreement as part of a transaction in which substantially all of the assets
related to its rights and obligations under this Agreement are assigned to a
third party.
c. Governing Law. This Agreement and performance hereunder shall be
construed and governed by the laws of the Commonwealth of Virginia.
d. Severability. In case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such provision(s) had never been contained herein, provided that such
provision(s) shall be curtailed, limited or eliminated only to the extent
necessary to remove the invalidity, illegality or unenforceability.
e. Waiver. No waiver of any breach of any of the provisions of this
Agreement shall be deemed a waiver of any preceding or succeeding breach of the
same or any other provisions hereof. No such waiver shall be effective unless in
writing and then only to the extent expressly set forth in writing.
f. Complete Agreement. The parties agree that this Agreement is the
complete and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings and other agreements,
oral or written, between the parties relating to this Agreement.
g. Amendment. This Agreement may not be modified, altered or amended except
by written instrument duly executed by both parties.
h. Attorneys' Fees. Should any action be brought by either party to enforce
the provisions of this Agreement, the prevailing party, whether by settlement,
adjudication or arbitration, shall have the right to collect reasonable
attorneys' fees, expenses and costs from the nonprevailing party.
i. No Inference Against Author. No provision of this Agreement shall be
interpreted against any party because such party or its legal representative
drafted such provision.
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j. Headings. The headings used in this Agreement are for convenience only
and are not to be construed to have a legal significance.
k. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms,
AGREED:
go2net, Inc.
---------------------------------------- COMTEX SCIENTIFIC
Distributor, by: CORPORATION, by:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------- ------------------------------------
Signature Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------- ------------------------------------
Printed Name Printed Name
CEO V.P. Sales
---------------------------------------- ------------------------------------
Title Title
Date: 8/23/96 Date: 9/6/96
---------------------------------------- ------------------------------------
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EXHIBIT A
THE SERVICE; TERM
I. The term "the Service" means the following electronic information services:
Top news of the day displayed from the current day's Business, Finance and
High Tech categories of the COMTEX Newsroom, provided by: A&G Information
Services, Alrica News Service, AsiaInfo Services, Inc., Agence France Presse,
Business Wire, Cineman Syndicate, Futures World News, Inter Press Service (IPS),
ITAR/TASS News Agency, PR Newswire (PRN), South American Business Information
(SABI), United Press International (UPI), U.S. Newswire (USN), Xinhua News
Agency, Washington Technology, and Ziff Wire Highlights. Provider list subject
to change per this agreement. Content can be archived for UP to 24 hours.
Top Business Headline's
The COMTEX' Business category focuses only on the stories that describe
activities of companies- doing business in the U.S. and abroad. Comm editors
watch for stories that may significantly impact-the way U.S. companies conduct
business in the future. Stories that contribute include: Actions Taken To
Increase Corporate Competitiveness, Events That Affect Corporate Credibility,
Product Performance And Reliability Issues, Major Changes In The Financial
Performance Of A Company, Executive News.
Top Finance Headlines -
The COMTEX Finance category focuses on news that impacts market activity.
Our editors watch for changes in economic environments. This product provides
the news behind the numbers. Stories that contribute include. Major Market
Movers, Hot Industries, Global Economies, Emerging Markets, Regulatory Actions.
Top High Tech Headlines
The COMTEX High Tech CustomWire focuses primarily on the computer and
telecommunications industry. Our editors watch for new products that will
enhance business and personal productivity. Stories that contribute include: New
Products/Advances, information Superhighway / Infrastructure Issues, Industry
News, Regulatory Issues.
The Go2Net service is a public Internet and World Wide Web site that is
supported by advertising revenues.
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2. Technical Specifications:
The data format will be the standard COMTEX proprietary format. Content will be
delivered via Internet e-mail.
3. The Initial Term shall be one year.
4. Each Renewal Term shall be one year.
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EXHIBIT B
*
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* Information omitted for confidential treatment.
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EXHIBIT C
Confidential Information
1. This Agreement and all Exhibits thereto, except for Exhibit D.
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EXHIBIT D
USER NOTICE
1. OWNERSHIP. User understands that Comtex Scientific Corporation
("COMTEX") and its information providers retain all rights, title and interests,
including copyright and other proprietary rights, in the Service and all
material, including but not limited to text, images, and other multimedia data,
provided or made available as part of the Service ("Content").
2. RESTRICTIONS ON USE. User understands that it will not copy nor license,
sell, transfer, make available or otherwise distribute the Service or Content to
any entity or person, except that User may (a) make available to its employees
electronic copies of Content, (b) allow its employees to store, manipulate, and
reformat Content, and (c) allow its employees to make paper copies of Content,
provided that such electronic and paper copies are used solely internally and
are not distributed to any third parties. User shall use its best efforts to
stop any unauthorized copying or distribution immediately after such
unauthorized use becomes known. The provisions of this paragraph 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.
3. NO WARRANTV. The Service is provided on an "AS IS" basis. COMTEX
DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO
THIS AGREEMENT, PERFORMANCE UNDER THIS AGREEMENT, THE SERVICE AND CONTENT.
COMTEX makes no warranties regarding the completeness, accuracy or availability
of the Service or Content.
4. LIMITATION OF LIABILITY. In no event shall COMTEX or its information
providers be liable to User or any other person or entity for any direct,
indirect, special, exemplary or consequential damages, including lost profits,
based on breach of warranty, contract, negligence, strict liability or
otherwise, arising under this Agreement or any performance under this Agreement,
whether or not they or it had any knowledge, actual or constructive, that such
damages might be incurred.
5. INDEMNIFICATION. User shall indemnify and hold harmless COMTEX and its
information providers against any claim, damages, loss, liability or expense
arising out of User's use of the Service or Content in any way contrary to this
Agreement.
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