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EXHIBIT 10.23
CONTENT DISTRIBUTION AGREEMENT
THIS AGREEMENT is between DOW JONES & COMPANY, INC., U.S. Highway No. 1
at Ridge Road, South Brunswick, New Jersey 08852 ("Dow Jones"), and INTELLIGENT
INFORMATION INCORPORATED, One Dock Street, Stamford, Connecticut 06902
("Intelligent Information").
INTRODUCTION
A. Dow Jones publishes and distributes the Dow Jones Online News, a
business and financial newswire ("DJON").
B. Intelligent Information owns and distributes electronic products or
services that deliver to subscribers via wireless transmission technologies
quotation information from various equity and commodity exchanges, as well as
sports information, stock quotes, and weather information ("Direct Services").
Intelligent Information also authorizes third parties ("Authorized Resellers")
to redistribute the Direct Services (either with the same or a different brand
name from the name used by Intelligent Information for the Direct Services), and
to redistribute some or all of the content from the Direct Services as part of
the Authorized Resellers' own wireless transmission technology product or
service ("Reseller Services"). The Direct Services and the Reseller Services
shall collectively be referred to herein as the "Intelligent Information
Services".
C. Intelligent Information wishes to obtain from Dow Jones, and Dow Jones
wishes to grant to Intelligent Information, a license to incorporate headlines
from DJON into the Intelligent Information Services.
1. GRANT OF LICENSE
(a) LICENSE AND DELIVERY. Subject to Intelligent Information's compliance
with all of the terms and conditions hereof, Dow Jones hereby grants to
Intelligent Information a license to incorporate only those headlines from DJON
defined and specified on Exhibit A ("DJ Headlines"), into Direct Services, and
to make such DJ Headlines available: (1) directly to individual subscribers to
the Direct Services located in the United States and Canada ("Direct
Subscribers"); and (2) through Authorized Resellers of the Direct Services or
through Reseller Services to individuals located in the United States and Canada
("Reseller Subscribers"). The Direct Subscribers and Reseller Subscribers shall
collectively be referred to as the "Intelligent Information Subscribers". Dow
Jones shall make available from its South Brunswick, New Jersey facility the Dow
Jones composite feed containing DJON and the DJ Headlines (the "Composite
Feed"). Intelligent Information, at its expense, shall install, operate and
maintain (i) all communications lines and equipment necessary to accept such
feed at Intelligent Information's office set forth above or at 1101 Arwyn Court,
Euliss, Texas 76040, and (ii) the computer system that will receive the
Composite Feed and display the DJ Headlines. Intelligent Information shall not
receive the Composite Feed at any location other than the locations set forth
above, without Dow Jones' prior written consent. Immediately upon receipt of the
Composite Feed, Intelligent Information shall cause its computer systems to
dispose of the text of the stories contained in DJON, as well as the headlines
and text of all other stories contained on the Composite Feed, keeping, in
accordance with the terms hereof, only the DJ Headlines coded with the code set
forth on Exhibit A.
(b) ADDITIONAL LICENSE RESTRICTIONS. Intelligent Information shall not
permit, and shall cause all Authorized Resellers not to permit, Intelligent
Information Subscribers to store any DJ Headline
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for more than 24 hours after it is received. Intelligent Information shall be
permitted to store DJ Headlines for its internal billing purposes only;
provided, however, that in no event shall Intelligent Information distribute any
DJ Headline more than 24 hours after such DJ Headline is received. Other than as
expressly permitted or required pursuant to this Agreement (including, but not
limited to, Section 2), Intelligent Information shall not, and shall cause all
Authorized Resellers not to, edit, alter, change, add to or delete any DJ
Headline without the prior written consent of Dow Jones.
Intelligent Information shall not, and shall cause its Authorized
Resellers not to, distribute DJ Headlines or other Dow Jones content other than
as part of an Intelligent Information Service set forth on Exhibit C, or
otherwise approved in advance in writing by Dow Jones (and, therefore, deemed
incorporated into Exhibit C).
Intelligent Information shall not, and shall cause its Authorized
Resellers not to, distribute any Intelligent Information Service containing DJ
Headlines through or using any distribution method other than wireless
transmission technology, including, without limitation, email, cable or dial-up
communications via a modem. Intelligent Information shall not, and shall cause
its Authorized Resellers not to, deliver any Intelligent Information Service
containing DJ Headlines via an interactive online or electronic information
service, such as but not limited to, America Online, CompuServe, Microsoft
Network, Prodigy, AppleLink, eWorld, AT&T Interchange, Delphi, networkMCI, or
Telebase System, Inc.
All rights not expressly granted to Intelligent Information herein shall
be retained by Dow Jones.
(c) ADDITIONAL AUTHORIZED RESELLERS. Intelligent Information acknowledges
and agrees that all Authorized Resellers that Dow Jones has authorized to
distribute DJ Headlines to Intelligent Information Subscribers as of the date of
this Agreement are listed on Exhibit B attached hereto. Intelligent Information
shall notify Dow Jones in writing of its desire to add resellers to Exhibit B
and such proposed resellers shall be so added, and for all purposes hereof
deemed Authorized Resellers, unless within thirty (30) days of receipt of such
notice Dow Jones notifies Intelligent Information that such proposed reseller
is, in Dow Jones' reasonable discretion, unacceptable to Dow Jones. Intelligent
Information shall not make any DJ Headlines available to any third party who
does not qualify as an Authorized Reseller hereunder, other than Direct
Subscribers.
(d) RELATIONSHIP WITH RELATED COMPANIES. Beginning sixty (60) days after
the Effective Date (as defined below), Intelligent Information shall not
distribute any DJ Headlines to Mobile Telecommunications Corp. or any parent,
subsidiary or affiliate of Mobile Telecommunications Corp., without the express
prior written consent of Dow Jones. Notwithstanding anything to the contrary in
this Agreement or the License and Sales Representation Agreement between Dow
Jones and Intelligent Information dated as of July 1, 1993, if within thirty
(30) days after the Effective Date (as defined below) Dow Jones and Mobile
Telecommunications Corp. or SkyTel have not executed a mutually acceptable
agreement pursuant to which Dow Jones provides certain content from DJON to
SkyTel for redistribution by SkyTel, Intelligent Information shall request to
negotiate with Dow Jones to permit Intelligent Information to distribute DJ
Headlines to Mobile Telecommunications Corp. or SkyTel, subject to payment of an
increased renegotiated Royalty and other terms and conditions as may be
acceptable to Dow Jones and Intelligent Information.
2. COPYRIGHT. Intelligent Information acknowledges and agrees that the
copyright to the DJ Headlines, DJON and the coding and contents thereof is and
shall remain the sole and exclusive property of Dow Jones. Intelligent
Information shall take appropriate measures to insure that notice of such
copyright is made known to all persons with access to the Intelligent
Information Services, including
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displaying in a conspicuous location in all documentation distributed to
Intelligent Information Subscribers by Intelligent Information or its Authorized
Resellers ("Subscriber Materials") the following: "Copyright 19__ Dow Jones &
Company, Inc. All Rights Reserved. Distributed by Intelligent Information (or
Reseller name) under license from Dow Jones & Company, Inc. The headlines
contained in this Intelligent Information Service are the sole and exclusive
property of Dow Jones & Company, Inc. and are protected by copyright. Such
headlines may not be copied, republished or redistributed without the prior
written consent of Dow Jones & Company, Inc." Intelligent Information shall also
cause, and shall cause all Authorized Resellers to cause, the words "DJ NEWS" to
appear on each screen and printout containing a DJ Headline received, displayed
or printed by any Intelligent Information Subscriber; provided, however, that if
there is insufficient character space or other capacity to include all of the
words "DJ NEWS" in a particular display from the Intelligent Information Service
because of the length of the DJ Headline, Intelligent Information or an
Authorized Reseller may truncate this message to read "DJ"; if insufficient
character space is available to display the letters "DJ", this sentence shall
not apply.
3. ROYALTIES
(a) CALCULATION OF ROYALTY. In consideration of the rights granted
herein, Intelligent Information shall pay to Dow Jones monthly royalties
("Royalties") equal to the greater of (i) $5,000 per month; and (ii) $0.50 per
month per Intelligent Information Subscriber who receives DJ Headlines on up to
four companies or news categories, plus $0.10 per month for each additional
company or news category received by such Intelligent Information Subscriber.
(b) PAYMENT. Within 20 days after the end of each month during the term
hereof, Intelligent Information shall deliver to Dow Jones a report showing the
name of each Direct Service and Reseller Service, each Authorized Reseller, and
each Direct Subscriber, and the calculation of the Royalties due in respect
thereof, together with a check payable to Dow Jones for such Royalties.
(c) MAINTENANCE AND INSPECTION OF RECORDS. Intelligent Information shall
maintain, and shall cause its Authorized Resellers to maintain, complete and
accurate records of all Intelligent Information Subscribers receiving DJ
Headlines hereunder and of the Royalties payable with respect thereto
("Intelligent Information Records"). Dow Jones shall have the right, upon at
least 20 days' prior written notice to inspect and copy the Intelligent
Information Records during normal business hours not more frequently than twice
per year; provided, however, that if such inspection reveals an underpayment to
Dow Jones of four percent (4%) or more, then the cost of such inspection shall
be borne by Intelligent Information. All information gained by Dow Jones or its
authorized representatives from such inspection will be kept in strict
confidence and will be used solely for the purpose of verifying the accuracy of
the Royalties payable hereunder.
(d) INCREASES. By written notice to Intelligent Information at least 60
days prior to the end of the Initial Term, Dow Jones may increase the rates for
the first Renewal Term by a percentage not greater than the percentage increase
in the Consumer Price Index for All Urban Consumers -- All Items, U.S. City
Average, Unadjusted for Seasonal Variation (1982-1984 = 100) (the "CPI") during
the Initial Term. Subsequent rate increases by Dow Jones shall not exceed the
greater of (i) the percentage increase in the CPI per year; or (ii) six percent
(6%) per year.
4. INDEMNIFICATION
(a) BY DOW JONES. In the event of any claim, suit or action by any third
party (other than an Authorized Reseller) against Intelligent Information
arising out of the DJ Headlines (except for claims described in Section 4(b)),
Intelligent Information shall promptly notify Dow Jones, and Dow Jones shall
defend such claim, suit or action in Intelligent Information's name but at Dow
Jones' expense and under Dow Jones' control. Dow Jones shall indemnify and hold
harmless Intelligent Information against any judgment, liability, loss, cost or
damage (including litigation costs and reasonable attorneys' fees) arising
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from or related to such claim, suit or action, whether or not such claim, suit
or action is successful.
(b) BY INTELLIGENT INFORMATION. In the event of any claim, suit or action
by any third party against Dow Jones arising out of any error caused by: (i)
Intelligent Information in receiving, storing or transmitting the DJ Headlines
on or through any Direct Service, or (ii) an Authorized Reseller transmitting
the DJ Headlines on or through any Reseller Service, Dow Jones shall promptly
notify Intelligent Information, and Intelligent Information shall defend such
claim, suit or action in Dow Jones' name but at Intelligent Information's
expense and under Intelligent Information's control. Intelligent Information
shall indemnify and hold harmless Dow Jones against any judgment, liability,
loss, cost or damage (including litigation costs and reasonable attorneys' fees)
arising from or related to such claim, suit or action, whether or not such
claim, suit or action is successful.
5. SERVICE MARKS; PRESS RELEASES AND PROMOTIONAL MATERIALS. Intelligent
Information acknowledges and agrees that (i) Dow Jones is the sole and exclusive
owner of the service marks Dow Jones Online News and DOW JONES, and (ii)
Intelligent Information and its Authorized Resellers neither have nor shall
obtain any right, except as expressly provided herein, to use any such service
mark or any other service mark, trademark or trade name of Dow Jones.
Intelligent Information shall not, and shall cause its Authorized Resellers not
to, publish or distribute any advertising, promotional materials or other
printed matter including, but not limited to, Subscriber Materials, or make any
public announcements using any service mark, trademark or trade name of Dow
Jones or otherwise referring to the availability of the DJ Headlines on the
Intelligent Information Services without the prior written consent of Dow Jones,
which consent shall not be unreasonably withheld. If within ten (10) business
days after delivery of samples of any such materials, Dow Jones has not notified
the sending party of its disapproval, such material shall be deemed approved.
Any breach of this Section 5 shall be deemed a material breach of this
Agreement.
6. TERM; TERMINATION
(a) TERM. The parties hereby terminate the License and Sales
Representation Agreement between Dow Jones and Intelligent Information dated as
of July 1, 1993, provided, however, that Sections 2 and 3 shall survive the
termination of such agreement regarding actions occurring prior to the
termination date. The initial term of this Agreement (the "Initial Term") shall
commence on the date hereof and, unless terminated earlier or extended pursuant
hereto, shall expire twelve (12) months after the date hereof. Unless either
party sends to the other written notice of its election not to renew at least
sixty (60) days prior to the end of the Initial Term, or any Renewal Term, as
the case may be, the term hereof shall be extended for an additional one-year
term (a "Renewal Term").
(b) TERMINATION FOR DEFAULT. If either party shall default in the
performance of or compliance with any provision contained in this Agreement and
such default shall not have been cured within 30 days after written notice
thereof shall have been given to the appropriate party, the party giving such
notice may then give further written notice to such other party terminating this
Agreement, in which event this Agreement and rights granted hereunder shall
terminate on the date specified in such further notice.
(c) CHANGE IN CONTROL. If there occurs during the term hereof any change
in the effective voting control of Intelligent Information, or any merger into
or acquisition by any third party of Intelligence Information, or the sale or
transfer of one or more Intelligent Information Services, or the sale or
transfer of all or substantially all of the other assets of Intelligent
Information to any third party, including, without limitation, to or by Mobile
Telecommunications Corp., SkyTel, or any other corporate parent, subsidiary or
affiliate (collectively, a "Control Event"), Intelligent Information shall
notify Dow
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Jones in writing of such Control Event within 10 days after its effectiveness.
Dow Jones may, within 30 days after receipt of such written notice, terminate
this Agreement upon at least 60 days' prior written notice. Intelligent
Information may notify Dow Jones in writing of any proposed Control Event prior
to its proposed effectiveness, and Dow Jones shall within 30 days after receipt
of such notice, notify Intelligent Information in writing whether Dow Jones
would exercise its right to terminate this Agreement if such proposed Control
Event were consummated.
7. MISCELLANEOUS
Sections 1(b), 2, 4, 5 and 7 shall survive the expiration or termination
of this Agreement for any reason. Intelligent Information hereby represents and
warrants to Dow Jones that it will cause all Authorized Resellers to comply with
and be bound by the terms and conditions of Sections 1(b), 2 and 5 of this
Agreement. This Agreement may not be amended except by written instrument
executed by Intelligent Information and Dow Jones. This Agreement shall be
binding upon and shall inure to the benefit of the undersigned parties and their
respective successors and permitted assigns. No assignment of this Agreement, by
operation of law or otherwise, shall be made by either party without the prior
written consent of the other. Except with respect to third party claims
described in Section 4 above, neither party shall be liable to the other for any
lost revenue, lost profits or other consequential damages, even if advised of
the possibility of such damages. If any term or provision of this Agreement is
found to be invalid, illegal or unenforceable, in whole or in part, for any
reason, such term or provision shall be deemed to be severed from this
Agreement, and all remaining terms and provisions shall not be affected or
impaired thereby and shall be enforced in accordance with their terms. This
Agreement contains the entire understanding of the parties and supersedes all
previous verbal and written agreements on the subject thereof, including,
without limitation, the July 1, 1993 License and Sales Representation Agreement.
This Agreement does not and shall not be deemed to constitute a partnership or
joint venture between the parties. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey applicable to
contracts wholly made and wholly performed in New Jersey.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of Feb. 20, 1996
(the "Effective Date").
INTELLIGENT INFORMATION INC. DOW JONES & COMPANY, INC.
By: /s/ R M Unnold By: /s/ Jessica Perry
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Name: R. M. Unnold Name: Jessica Perry
Title: CEO Title: Assistant Director
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EXHIBIT A
DJ HEADLINES
Headlines containing the P/DHL transmission code which also carry company stock
symbol and/or news category subcodes.
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EXHIBIT B
AUTHORIZED RESELLERS
As of 2/96
Air Call Northwest
Airtouch
American Personal Communications
American Paging
Axcess Global
Bell Atlantic
Bell Mobility Canada
Comwest
Flower City Paging
MCI Paging
Metrocall
Message Center USA
National Dispatch Center
Nextel Communications
PageMart
Paging Dimensions
Paging Partners
Telecom
USA Mobile
US Healthcare
5 By 5 Communications
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EXHIBIT C
INTELLIGENT INFORMATION SERVICES
The Intelligent Information Service provides data in the form of short messages
to a user's wireless device based on the user's personal criteria as that
criteria is met.
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