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EXHIBIT 10.29
DISTRIBUTION AGREEMENT
This Distribution Agreement ("Agreement") is entered into by and between Press
News LTD ("Provider"), incorporated under the Canada Business Corporation Act
with its principal offices at 36 King Street East, Toronto, Ontario M5C 2L9, and
Intelligent Information Incorporated ( the Distributor"), a Delaware corporation
with its principle offices at One Dock Street, Suite 500, Stamford, Connecticut
06902.
1. DEFINITIONS
a. Information Providers. The term "Information Providers" means third
parties from whom the Provider acquires the right to distribute Content provided
or made available as part of the Service.
b. Service. The term "Service" means the electronic information
services identified in Exhibit A to this Agreement.
c. Content. The term "Content" means all information and 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.
d. Resellers. The term "Resellers" means third parties through which
Distributor distributes the Service to Users, subject to the terms of this
Agreement.
e. Users. The term "Users" means all third parties to whom Distributor
may license, sell, transfer, make available or otherwise distribute the Service.
2. DISTRIBUTION
a. Grant of Rights. Subject to the terms and conditions of this
Agreement, Provider grants Distributor a nonexclusive license, except as
provided for in this Agreement, and right to distribute the Service as described
in Exhibit E. Resellers shall have the right to market the Service and
distribute the Service to Users in Canada and British Commonwealth countries
only and to use the Service for their internal use subject to the terms of this
Agreement.
b. 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 may be obtained by acquiring a
signature thereon, by providing a electronic acceptance thereto, or by delivery
to the User.
c. Reservation. Provider reserves the right to add or withdraw
Information Providers, Content and items of coverage from the Service with
thirty (30) days written notice to Distributor.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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3. MARKETING
a. Promotion. Distributor agrees to use commercially reasonable efforts
to promote and market the Service to prospective Resellers and Users, and to
enter into agreements for the use of the Service by Resellers and Users.
b. Expenses. Distributor shall be responsible for all expenses incurred
by Distributor in promoting and marketing the Service, unless such expenses have
been agreed to be paid by the Provider in advance.
c. Use of Name. Distributor shall use reasonable efforts to name
Provider as one of its information services in its formal promotional and
marketing materials relating to the Service.
d. Prior Approval. Provider 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 (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.
4. DELIVERY OF THE SERVICE
a. Provision of the Service. Subject to the terms and conditions of
this Agreement, Provider shall provide the Service to Distributor and
Distributor shall receive the Service from Provider in conformance with the
Technical Specifications set forth in Exhibit F.
b. Timeliness. Provider shall use commercially reasonable efforts to
maintain the timeliness of the content. Distributor acknowledges that, in part,
Provider relies on the performance of Information Providers outside the control
of Provider in order to provide the Service.
c. Proprietary Notices. Where supplied as part of the Service by
Provider or its Information Providers, Distributor will cause to be displayed
appropriate copyright or other propriety notices relating to the Service.
d. Modifications. Distributor shall not edit, abridge, rewrite or in
any way alter the Content of the Service or create any work derived from the
Content of the Service, that changes its meaning or tone. Provider agrees that
Distributor may make changes to the content to meet wireless display equipment
formats.
e. Review by Provider. Throughout the term of this Agreement,
Distributor shall provide Provider 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.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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f. Audit. Provider or its representative may, during business hours and
upon reasonable notice, inspect and audit the relevant books and records of
Distributor for the sole purpose of verifying all information related to
payments under this Agreement. Such inspection and audit shall be at the expense
of the Provider.
5. REPORTING AND PAYMENT
a. Reporting. Distributor shall provide to Provider by the 15th of each
month a report indicating the number of Users of the Service for the prior
calendar month and any such additional information as may reasonably be
requested by Provider.
b. Payment Schedule. Distributor shall pay Provider the Monthly Fees
set forth in the Payment Schedule in Exhibit B.
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 an Initial Term of
two (2) years. This Agreement shall renew automatically for successive one year
Renewal Terms 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. If this contract rolls over the fee per User per month
shall increase as outlined in Exhibit B.
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 thirty (30) 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 or such thirty (30) day period.
c. Insolvency. Either party may terminate this Agreement with thirty
(30) days written notice to the other if either 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 Provider all amounts owed under this 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 Provider that such eraser and purge has
been completed, or (B) certify, in writing, to Provider that
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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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 the Provider.
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.
8. CONTENT
a. Ownership. Distributor acknowledges that this Agreement does not
transfer to Distributor, Resellers or Users any proprietary right, title or
interest, including copyright, in the Content made available as part of the
Service.
9. TRADEMARKS
Distributor agrees that Provider's trademarks are the sole and
exclusive property of Provider. Pursuant to Paragraph 3.d., Provider 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 Provider specifically notifies Distributor to the
contrary.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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10. LIMITED WARRANTIES OF PROVIDER
a. Agreement. Provider warrants that its entry into this Agreement
does not violate any agreement between Provider and any third party.
b. Laws and Regulations. Provider 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 Provider "AS IS". Provider does not warrant the
accuracy, completeness or timeliness of the Service and Content. Provider
warrants that it has the right to provide the Service to Distributor.
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 Provider or its Information Providers be liable to
Distributor, Resellers and its Users for any direct, 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 Provider and its
Information Providers from and against any claims, losses, expenses,
liabilities, and damages, including reasonable legal fees and
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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expenses, arising out of Distributor's, Resellers' or Users' breach of any
provision of this Agreement, including without limitation the restrictions,
obligations and warranties set forth in Paragraphs 2,3,4 and 11 of this
Agreement. Provider 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. 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 Provider 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 Provider continue for more than one (1) month, then either party
shall have the right to terminate this Agreement without further liability or
obligation on the part of either party.
16. NOTICES
All notices and demands hereunder shall be in writing and delivered by
hand delivery, certified or registered mail, return receipt requested, express
delivery service 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, express delivery service
upon such delivery, and (iii) if by facsimile transmission, upon receipt of
confirmation.
If to Provider:
Jerry Fairbridge
The Canadian Press
36 King Street East
Toronto, Ontario M5C 2L9
If to Distributor:
Stephen Maloney, President
Intelligent Information Incorporated
One Dock Street, Suite 500
Stamford, CT 06902
Facsimile: 203.969.0018
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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17. 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 either party 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 and Forum. This Agreement shall be governed and
construed in accordance with the laws of the state/province chosen by the party
defending any action brought hereunder. The parties hereby elect to institute
any such legal proceedings in the judicial district where the defending party is
domiciled.
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. Attorney's Fees. Should any action be brought by either party to
enforce the provision of this Agreement, the prevailing party, whether by
settlement, adjudication or arbitration, shall have the right to collect
reasonable attorneys' fees, expenses and costs form the nonprevailing party.
i. Not Inference Against Author. No provision of this Agreement shall
be interpreted against any party because such party or its legal representative
drafted such provision.
j. Headings. The headings used in this Agreement are for convenience
only and are not to be construed to have a legal significance.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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k. Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.
AGREED:
Distributor, by: Provider, by:
/s/ Stephen G. Maloney /s/ David Ross
- --------------------------- ---------------------------
Signature Signature
Stephen G. Maloney David Ross
- --------------------------- ---------------------------
Printed Name, Title Printed Name, Title
Date: 12/2/98 Date: 12/14/98
------------------ ------------------
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT A
The Service
CP Online is a product of The Canadian Press, the national news co-operative of
Canada's daily newspapers. CP Online service includes major national stories,
lottery numbers on Wednesday & Saturday nights, calendars of daily events across
Canada, a nightly scorecard with up-to-date scores in pro sports stories from a
variety of sports, all major business stories including a 3-4 times-a-day wrap
up of the world markets, entertainment news from Canada along with world news
headlines. All these topics are updated frequently. Today in History and Thought
for the Day will be delivered on a weekly basis via email. All services are
deliverable in English with a similar product in Canadian French.
EXHIBIT B
Payment Schedule
a. Monthly Fees. Distributor shall pay Provider the [*]. The [*] is as
follows:
The first 30 days of this contract, Provider will make their
feed [*] for development purposes for III. After such time, the [*]. On
April 30, 1999 the [*]; on July 31, 1999 the [*]; and on December 31,
1999 the [*] for the remainder of this contract.
At renewal, the Provider will send the Distributor notification that
the User fee shall [*]. Until such notification is received by
Distributor User fees will remain as is.
b. Distributor shall pay Provider [*], if a full-text article product has been
requested by Reseller and provided Provider and Distributor have signed an
agreement setting out terms and fees for such full-text article products
c. Demo Units. Distributor may set up [*] demonstration accounts for sales and
marketing purposes, but will use its best efforts to minimize the number and
duration of such accounts.
d. Payment. Distributor will pay to Provider the required payment by check, by
the 15th day of the month following the month of Service.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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EXHIBIT C
Confidential Information
a. This Agreement and all Exhibits thereto, except for exhibit D.
EXHIBIT D
SUBSCRIBER AGREEMENT (SHORT FORM)
YOUR USE OF THE SERVICE CONSTITUTES YOUR ACCEPTANCE OF THE FOLLOWING TERMS.
1. Information obtainable through the Service has been provided by various
independent sources believed to be reliable. However, the accuracy, completeness
and/or timeliness of the Information is not guaranteed by any Provider selling,
transmitting, processing, consolidating or originating the Information, and the
Providers shall not be liable for any loss or damage arising from any inaccuracy
or error in delivering the Information.
2. EXCEPT AS SPECIFICALLY STATED HEREIN, NO PROVIDER MAKES ANY EXPRESS OR
IMPLIED WARRANTIES REGARDING THE SERVICE OR THE INFORMATION, INCLUDING ANY
EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
3. THE PROVIDERS' ENTIRE LIABILITY FOR DAMAGES IN CONNECTION WITH THE
SERVICE OR THE INFORMATION SHALL NOT EXCEED THE AMOUNTS PAID FOR SUBSCRIBING TO
THE SERVICE. IN NO EVENT WILL ANY PROVIDER BE LIABLE FOR CONSEQUENTIAL,
INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OR FOR ANY LOST PROFITS, EVEN
IF SUCH PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
4. You acknowledge that the Providers have proprietary interests in the
Information and agree not to reproduce, retransmit, sell, publish or
commercially exploit the Information in any manner.
5. The Providers reserve the right to terminate the Service at any time,
for any or no reason and without notice and shall have no liability to you upon
such termination other than to refund a pro rated portion of the fee for the
Service if such termination is without cause.
6. You represent that you are entering into this Agreement in your
individual capacity and not on behalf of any firm, corporation, partnership,
trust or association.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.
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7. You understand that the Service may include advertising messages and
e-commerce opportunities and agree to receive such messages and opportunities.
8. You acknowledge that no Provider has made any representation to you
regarding the Service or the Information that is not expressly stated in this
Agreement. If any provision of this Agreement is invalid or unenforceable under
applicable law, it shall, to that extent, be deemed omitted, and the remaining
provisions will continue in full force and effect. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
EXHIBIT E
Distribution of Service
Information products and services that are individualized and delivered
to and received by wireless devices such as pagers, smr telephones, cellular
telephones, narrowband and broadband pcs telephones, laptop and palmtop personal
computers, personal data assistants, PCMIA messaging cards, etc. over numerous
wireless networks in Canada and other British Commonwealth countries.
EXHIBIT F
Provision of the Service
Technical Specifications
Delivery of the Service will be accomplished using FTP and the Internet. The
Distributor's site will require an FTP server and a continuous Internet
connection.
Intelligent Information Incorporated & Press News LTD - CONFIDENTIAL INFORMATION (cp1198)
CONFIDENTIAL TREATMENT REQUESTED
Brackets have been used to identify information which has been omitted from this
exhibit pursuant to a request for confidential treatment and filed separately
with the Securities and Exchange Commission.