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EXHIBIT 10.11
INTELLIGENT INFORMATION INCORPORATED SERVICE AGREEMENT
THIS AGREEMENT is entered into by and between Intelligent Information
Incorporated, a Delaware corporation (hereinafter referred to as "III") and BELL
MOBILITY CELLULAR INC., a corporation incorporated pursuant to the laws of
Canada (hereinafter referred to as "Reseller"). The effective date of this
agreement is May 12, 1998.
WHEREAS, III owns computer software and hardware and has related procedures
(hereinafter referred to as "Systems") and by utilizing these Systems provides
"Products" in the form of "Services" and "Packages" that deliver "intelligent
information" based on data from various sources (hereinafter referred to as
"Information Providers") to text displaying wireless devices either at
prearranged times, as data conditions change by prearranged parameters or
on-demand; and
WHEREAS, Reseller is desirous of providing these Products to its customers
[hereinafter such customers receiving Product(s) are referred to as
"Subscribers"]; and
WHEREAS, the parties agree to enter into certain arrangements, as set forth
herein, for that purpose;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, it is agreed as follows:
1) TERM
The term of this agreement is one (1) year beginning on the effective date
of this agreement. This entire agreement shall automatically renew itself
annually for additional one (1) year terms unless either party sends notice
of termination to the other party sixty (60) days before the anniversary of
the effective date of this agreement, by certified mail or confirmed
receipt delivery service.
2) PROVISION OF PRODUCTS
III shall provide the Products as set forth in Appendix B to Reseller
Subscribers with modifications from time to time as mutually determined and
agreed to in writing by the parties hereto. Reseller will provide
reasonable feedback to III on use of the Products by Subscribers.
3) PRODUCT MATERIALS
III will cooperate with Reseller in the development and production of
promotional or instructional literature or information relating to the
Products.
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4) COMMUNICATIONS
Reseller shall provide and maintain at its cost, mutually agreeable
communications protocol(s) and communications connection(s) with III for
the purposes of providing the Products to Subscribers.
5) PROFILE MAINTENANCE
Reseller acknowledges its responsibility to provide a mechanism to serve
Subscribers for the purpose of adding, changing and deleting parameters in
the Subscriber's database maintained in III Systems. III will be responsible
for receiving and effecting any additions, changes or deletions in
Subscriber information within twenty-four (24) hours of receipt of written
requests from the Reseller. III will maintain a facsimile machine for
receipt of such requests.
6) SUBSCRIBER AGREEMENT
For each Subscriber, III shall have executed a Subscriber Agreement (hereto
annexed as Appendix A) prior to delivery of service.
a) III shall maintain a record of the electronic acceptance, i.e., execution,
of the Subscriber Agreement by the Subscriber, for the duration of service to
the Subscriber, plus three (3) years.
b) Reseller agrees not to activate or support two (2) or more wireless devices
with the same identification number so as to allow a single registration in the
System for more than one wireless device.
7) PATENT AND COPYRIGHT
a) III shall defend, at its own expense, all suits, claims or actions
against Bell Mobility and its Subscribers for infringement of any
Canadian, U.S. or other Intellectual Property rights by any of the
Service, part thereof or the use thereof by Bell Mobility. III shall
pay forthwith all amounts which Bell Mobility or its Subscribers must
pay, whether by final judgment, award or settlement, provided that III
is given:
i. notice of any such suit, claim or action brought or threatened
against Bell Mobility or its Subscriber's;
ii. authority to assume the sole defense thereof through its own
counsel and to compromise or settle any such suit, claim or
action provided that such is without prejudice to Bell Mobility's
or its Subscriber's right to continue to use, as contemplated,
the Service.
a) If III does not defend such suit, claim or action according to the
foregoing, then Bell Mobility and/or its Subscribers may do so, at
Bell Mobility's option but at III's sole cost and expense, without
prejudice to any of Bell Mobility's or its Subscriber's other remedies
hereunder.
b) If in any such suit, claim or action any part of the Service or the
use thereof is held to constitute an infringement or its use is
otherwise enjoined, or if in the light of any such suit, claim or
action III deems it advisable to do so, III shall forthwith do one of
the following, at III's sole expense:
i. use its best efforts to procure the right for Bell Mobility and
its Subscriber's to continue to use the Service as contemplated
by this Agreement;
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ii. if III after using its best efforts, is unable to comply with
clause (i), then use its best efforts to forthwith replace the
infringing Service or part thereof with non-infringing services
which are functionally equivalent to the infringing Service and
which conform in all material respects with Appendix B.
c) Reseller shall take appropriate measures to insure that proper
copyright notice is made known to all Subscribers, including
displaying the copyright notice with each Subscriber or Customer
Agreement and in all instructions for use of the Packages and
Services. Requirements for copyright notice are set forth in Appendix
D
8) REPORTING
Prior to the fifth (5th) day of each month this agreement is effective, III
shall provide to the Reseller a count of all Subscribers on III Systems by
Package and/or Service type for the prior calendar month and a total
message sent count for Services for the prior calendar month.
9) PAYMENT
Prior to the fifth (5th) day of the month, III shall render to Reseller an
invoice, based on the report described in paragraph 8. Within thirty (30)
days from the date of a Correct Invoice Reseller shall remit in U. S.
dollars, using a form or method acceptable to III, payment for its
Subscribers. The amount of the payment due is the total number of
Subscribers, based on the report described in paragraph 8, times the rate
per Subscriber for each Package and Service, plus the setup charge for each
new Subscriber, plus message charges. The Package and Service rates per
Subscriber, setup charges, message charges and associated conditions are as
listed in Appendix B. Any preexisting Reseller related Subscribers, e.g.,
executives, demos, etc., are not to be subject to the setup fee provisions
of Appendix B, however each one of these Subscribers will be assigned to a
Package or Service, subject to the appropriate charges, upon execution of
this Agreement. A Correct Invoice is an invoice that, when reviewed with
the report described in paragraph 8, includes sufficient information or
detail as maybe reasonably requested by Reseller to reconcile invoice
amounts and contains no additional Terms and Conditions located on the
reverse of such invoice which supersede those in the signed agreement. No
term or condition of any such invoice shall be binding upon Customer unless
the invoice term or condition has been previously agreed to by both
parties.
If the Reseller fails to make payment as due hereunder, and said payment is
not actually received by III within ten (10) days of a written notice
mailed to Reseller by III informing Reseller that the payment has not been
made as agreed, III's further performance under this agreement shall be
excused and the Reseller's liability for damages shall continue. If any
dispute exists with respect to an amount invoiced by III, this Agreement
shall not be terminated. Reseller shall pay the amount not in dispute to
III and provide III with a written memorandum specifying the disputed
portion of the invoiced amount and the basis for such dispute. Reseller and
III agree to use their best efforts to discuss in good faith and promptly
resolve any such disputes. Any refund or credit due to Reseller will be
applied to Reseller's account.
10) TAXES
The charges payable by Reseller are exclusive of federal, provincial,
sales, duty or other taxes now or hereafter levied or imposed on the
performance of this Agreement or on services provided hereunder. Reseller
shall be responsible for and shall pay any taxes levied or imposed by the
jurisdiction in
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which the services are provided and that are based upon the services
performed by III in connection therewith. Any other taxes, including
personal property taxes and any taxes or amounts due in whole or in part
because of any failure by III or its agents to file any return or
information required by law, rule or regulation, shall be borne by III. All
taxes included in a correct invoice submitted to Reseller by III shall be
listed as a separate line item.
11) DISTRIBUTION RIGHTS
With the exception of that which has been developed exclusively for
Reseller, III shall have the right, at its sole discretion to sell or
license the Products to any other person or company for any purpose.
12) NO RESTRICTIONS
The parties acknowledge that Reseller and/or its Affiliates is currently
reviewing and/or may in the future review similar technology which is the
subject matter of this agreement (the "Subject Matter") with other proposed
vendors. In the event that Reseller or its Affiliates enter into such an
agreement with a third party vendor for the Subject Matter, then that will
not be considered to be a breach or violation of this agreement.
Nothing in this Agreement shall prohibit or restrict either parties right
to develop, use or market products or services similar to or competitive
with those disclosed in the Confidential Information as long as it shall
not thereby breach this Agreement. Each party acknowledges that the other
may already posses or have developed products or services similar to or
competitive with those disclosed in the Confidential Information. Each
party shall be free to use in the course of its business its general
knowledge, skills and experience incurred before, during and after the
activities hereunder.
13) TRADEMARKS
Reseller shall use the trademarks, service marks, and logos as listed in
Appendix C (the "Trademarks") in connection with the marketing and
providing of Products to Subscribers.
a) Reseller shall use and clearly show in connection with the Products,
associated advertising, labels and packaging, the Trademarks and any
appropriate legends, markings, and/or notices of property right as may
be reasonably required by III from time to time. Depending on the
trademarks used, the current legend or notice requirements are:
i) A TM should appear adjacent to the Trademarks.
ii) A legend should appear indicating that the Trademark is a
trademark of Intelligent Information Incorporated. For example,
"Quote Alert is a trademark of Intelligent Information
Incorporated".
b) Reseller agrees to submit to III a sample of the proposed use of the
Trademarks on or with the Products, boxes, containers and/or packaging,
and III shall have approved such proposed use in writing prior to any
sale of the Products using such Trademarks in the proposed manner or
any other public use of the Trademarks in the proposed manner by
Reseller. Approval will not be unreasonably withheld, and if III does
not provide a written response within ten days of the receipt of such a
request, approval shall be considered granted.
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c) Reseller shall not remove or permit to be removed from any Products,
or cover or permit to be covered in any way, and Licensee shall at all
times use and clearly show on all Products and all packaging and
advertising for Products, the Trademarks and applicable product names
for such Products.
d) Licensee will not harm, misuse or bring into disrepute the Trademarks.
e) The III acknowledges that all "Marks" which include the "Bell
Mobility" trade-mark, trade name and all other trade-marks, trade
names, other commercial symbols, designs and logos owned, used or
claimed by Reseller from time to time are the exclusive property of
Reseller, and that neither this Agreement nor the carrying on of
business by the III shall in any way give or be deemed to give to the
III any interest or ownership in any of the Marks, promotional
advertising or other written materials relating to the Service or the
Products, except for the right to use the Marks strictly in accordance
with the terms and conditions of this Agreement. All goodwill
associated with the Marks shall enure exclusively to the benefit of
Reseller.
14) APPROVALS
Reseller agrees to submit to III for written approval all advertising or
other promotional materials that use any Trademarks, Logos, other service
marks or company names or make reference to any understanding or
relationship in this Agreement no fewer than fifteen (15) days before
proposed use. Approval will not be unreasonably withheld, and if III does
not provide a written response within ten (10) days of the receipt of such
a request, approval shall be considered granted.
III agrees not to use Resellers name or refer to Reseller directly or
indirectly in any advertisement, sales promotion, news release to any
professional or trade publication without receiving Resellers specific
prior written authorization. Such authorization will not be unreasonably
withheld.
15) IP REPORTING
Reseller acknowledges that III is required to provide certain information
relating to the usage of the Products to the Information Providers (IP).
III warrants to Reseller that any such data pertaining to Subscriber
identification will remain proprietary and confidential with the exception
of satisfying III's reporting requirements to the Information Providers or
their agencies. Such information may include:
a) the number of Subscribers registered in III Systems at midnight of
each day;
b) the number and types of messages sent by III Systems;
c) the number and types of Subscriber requests registered in III Systems;
and
d) any additional information as required by the Information Providers,
from time-to-time.
16) AUDIT
Additionally, Reseller hereby authorizes III, the Information Providers or
their agents, during Reseller's regular business hours, access to
Reseller's business records related to III Services for the purpose of
verifying the authorized distribution of Information. Reseller further
agrees to maintain such business records for not less than three (3) years.
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17) UNAUTHORIZED USE OF PRODUCTS
The information provided by III shall not be used by Reseller or its agents
for any other purpose other than the specified use of the distribution of
the Products through wireless devices. In the event that Reseller becomes
aware that any third party is improperly using the information or the
Products, including, without limitation, providing or about to provide the
information to Reseller, Reseller shall immediately notify III of the facts
of which it is aware in connection with such actual or potential
unauthorized use and shall provide III with any documents in its possession
with respect to the same. The parties shall cooperate to the fullest extent
possible to take all actions necessary to eliminate such unauthorized use
as expeditiously as possible.
18) LIABILITY
a) III AND THE INFORMATION PROVIDERS SHALL HAVE NO LIABILITY FOR CLAIMS
OR DAMAGES, INCLUDING BUT NOT LIMITED TO ANTICIPATED OR LOST PROFITS
OR ANY ACTUAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
TO RESELLER OR ANY OF ITS AGENTS OR SUBSCRIBERS FOR ANY DEFECTS,
DELAYS OR FAILURES OF TRANSMISSION OR RECEPTION OF INFORMATION
PROCESSED OR TO BE PROCESSED IN ANY WAY OR MANNER BY III SYSTEMS,
INCLUDING, BUT NOT LIMITED TO, DAMAGES OF ANY NATURE ARISING FROM ANY
NEGLIGENCE OF III, AND/OR THE INFORMATION PROVIDERS, THEIR CUSTOMERS,
OFFICERS, AGENTS, DIRECTORS AND EMPLOYEES. IN NO EVENT SHALL LIABILITY
BY III AND THE INFORMATION PROVIDERS FOR ANY CLAIM ARISING OUT OF THIS
AGREEMENT EXCEED THE AMOUNT PAID TO III BY RESELLER UNDER THIS
AGREEMENT WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING
THE ACCRUAL OF SUCH CLAIM.
b) In no event shall either party be liable for any indirect, incidental,
consequential or special damages, including without limitation loss of
revenue or loss of profits, for any reason whatsoever, to the extent
such may be disclaimed by law, whether arising out of breach of
warranty, breach of condition, breach of contract, tort or otherwise,
whether foreseeable or not, and whether or not advised of the
possibility thereof.
19) WARRANTY
a) Personnel: III represents and warrants that, during the term of this
Agreement, they and all relevant Personnel possess the knowledge,
skill and experience necessary for the provision of Services as stated
in this Agreement.
b) Ownership: During the term of this Agreement, III warrants that it is
the owner of such Software and/or has the right to use such Software
employed by III to provide the Service. III does not warrant that the
operation of the Software will be uninterrupted or error free except
that III will correct all program errors and defects which relate to a
defective in the Software.
c) Millennium:
i) Software/Hardware: III warrants that its Software and/or Hardware
is "Year 2000 compliant", which means that the Software and/or
Hardware shall operate without error relating to date data,
specifically including any error relating to date data which
represents or references
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different centuries or more than a century, will not abnormally
end and will be able to accurately process date data (including,
but not limited to, calculating, comparing, and sequencing) from,
into, and between the twentieth and twenty-first centuries,
including leap year calculations, when used in accordance with
their specifications, provided that all products (e.g. hardware,
software, middleware and firmware) which interconnect with or
which are used in combination with the Software and Hardware are
Year 2000 Compliant and properly exchange date data with them.
ii) Services: III further warrants during the term of this Agreement
that any software and/or hardware products used by III in support
of the processes and services necessary in the delivery of III's
obligations as contained in this Agreement are year 2000
compliant and that the provision of services under this Agreement
will be uninterrupted.
iii) Testing: III will, from time to time provide Reseller with the
results of testing done by III on the Software to verify that the
Software is Year 2000 compliant in accordance with the terms of
this warranty. Should the results of testing reveal that the
Software is not Year 2000 compliant in accordance with the terms
of this warranty, III shall, without charge to Reseller, repair
or replace the non-compliant components of the Software within
the period of time to be specified by Reseller (which shall in
any event be a reasonable period of time). If such repair or
replacement is not completed within the time specified, Reseller
shall have the right to have any necessary changes or repairs
performed itself and III shall reimburse Reseller for any expense
incurred thereby.
d) In the event of a breach of the Year 2000 warranty herein, and
notwithstanding anything to the contrary in the Agreement, III shall
assume all risks and responsibilities inherent to such warranty and
shall indemnify and save harmless Reseller and its customers from and
against any and all claims, demands, suits, actions, or causes of
actions, of any kind whatsoever, for direct or indirect damages,
losses, costs, injuries, death, property damage, claims and/or
expenses resulting from this Agreement, and shall also include all
reasonable legal fees and disbursements incurred by Reseller arising
from such breach.
20) ASSIGNMENT
This agreement may not be assigned by either party without the prior
written consent of the other party where such consent will not be
unreasonably withheld, and such assignment does not relieve that party of
their obligations hereunder, unless expressly agreed in writing. Reseller
may assign this agreement to a purchaser of all or substantially all of
Reseller's assets, or other successor in interest through merger,
consolidation or other business combination, or to an Affiliate (including
Parents or Subsidiaries of Reseller). "Parent" means an entity having
control of Reseller and "Subsidiary" means an entity that Reseller
controls, with in both cases control meaning ownership of a majority of
shares or other voting interests.
21) TERMINATION
Any party may terminate this Agreement upon not less than thirty (30) days
prior written notice to the other party if:
a) Any other party makes an assignment for the benefit of its creditors;
or
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b) Any petition shall be filed by or against such other party under any
Section or Chapter of the Federal Bankruptcy Act as amended or as may be
amended or any similar law or statute of the United States or any state
thereof which is not dismissed within thirty-five (35) days after filing;
or
c) The III Systems fails to materially perform or becomes materially
defective, and such defect(s) or failure(s) of performance cannot be
remedied by III in ten (10) working days from the receipt of notice to III
of the failure or defect.
22) ADDRESSES
Any and all notices or other information to be given by one of the parties
to the other shall be deemed sufficiently given when forwarded by prepaid
registered or certified first class mail or by facsimile or hand delivery
to the other party at the following address:
If to Bell Mobility If to Intelligent Information Incorporated
Att: Peter Winn Att: General Counsel
Services Development One Dock Street, Suite 500
2920 Matheson Blvd Stamford, CT
Missisauga, Ontario USA 06902
L4W 5J4
Canada
and such notices shall be deemed to have been received ten (10) business
days after mailing if forwarded by mail, and the following business day if
forwarded by facsimile or hand delivery.
23) LAW
This Agreement shall be governed and construed in accordance with the laws
of the State of New York and venue shall be maintained only in a Federal or
State Court having subject matter jurisdiction located in New York County,
New York State. In any action between the parties to enforce any of the
terms of this Agreement, the prevailing party shall be entitled to recover
reasonable expenses, including reasonable attorneys' fees.
24) CONTRACTORS
It is expressly agreed that III and Reseller are acting hereunder as
independent contractors. Under no circumstances shall any of the employees
of one party be deemed the employees of the other for any purpose.
25) NO AFFECT
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other part or provision of
this Agreement. A waiver by either party of any term or condition of this
Agreement in any instance shall not be deemed or construed as a waiver of
such term or condition for the future, or of any subsequent breach thereof.
All remedies, rights, undertakings, obligations and agreements contained in
this Agreement shall be cumulative, and none of them shall be in limitation
of any other remedy, right, undertaking, obligation or agreement of either
party set forth herein.
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26) RIGHT TO MODIFY INFORMATION
Except as provided in this Agreement, Reseller shall have no right to
delete, modify or revise the information provided by III or the Information
Providers.
27) CONFIDENTIALITY
The following is agreed to for the treatment of confidential information:
a) III and Reseller agree to keep confidential all confidential and
proprietary information and materials (a) prepared or developed by or
for it (including the financial terms of this Agreement) and (b)
supplied by one party to the other under this Agreement, provided that
information and materials intended to be held in confidence are (i)
designated as "Confidential" and (ii) are not available in the public
domain.
b) Confidential information may be disclosed as necessary to enforce a
party's rights under this Agreement and to comply with any legal or
governmental action. In the event of legal or governmental action, the
disclosing party shall promptly notify the other and shall cooperate
in any reasonable manner with the other in contesting such disclosure.
28) ENTIRE AGREEMENT
This Agreement, including the Appendices attached hereto, constitutes the
entire agreement between the parties with respect to this subject matter
and supersedes all previous proposals, both oral and written, negotiations,
representations, commitments, writings and all other communications between
the parties. This Agreement may not be released, discharged or modified
except by an instrument in writing signed by the parties.
IN WITNESS WHEREOF, the parties have hereto hereby execute this Agreement.
Authorized Reseller Signature Authorized III Signature
/s/ R.J. Reynolds /s/ Stephen G. Maloney
- ------------------------------ ------------------------------------
Name Name
Randall J. Reynolds Stephen G. Maloney
Title Title
President and COO President
Date Date
May 22, 1998 May 26, 1998
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APPENDIX A
SUBSCRIBER AGREEMENT
IMPORTANT: READ THIS AGREEMENT BEFORE USING THE SERVICE PROVIDED BY BELL
MOBILITY CELLULAR INC. (hereafter referred to as "BMC"). YOUR USE OF THE
SERVICE, OR ACKNOWLEDGMENT TO AGREE WILL INDICATE YOUR ACCEPTANCE OF ALL OF THE
FOLLOWING TERMS. If this agreement is unacceptable to you, do not use the
Service. BMC is willing to provide you the Service only if you agree to be bound
by the following terms:
1. Information, data or messages provided through the Service, including but not
limited to, prices or values of various items such as stocks, bonds, options,
futures and currencies, or relating to horoscopes, traffic reports, personal
reminder information, weather forecasts or any other type of information, data
or messages delivered via the Service (hereafter referred to as "Information"),
has been independently obtained by BMC from various securities markets, such as
stock exchanges, or such other third party Information suppliers (collectively,
hereafter referred to as "Information Providers" or "IPs" ), through sources
believed to be reliable, but the accuracy, completeness, timeliness, or correct
sequencing of the Information is not guaranteed by BMC, the IPs, or any parties
transmitting or processing the Information (hereafter referred to as
"Information Processors"). (Hereafter, collectively BMC, the IPs and Information
Processors are referred to as "Disseminating Parties".) There may be delays,
omissions, or inaccuracies in the Information. NO DISSEMINATING PARTY WILL BE
LIABLE IN ANY WAY TO YOU OR ANY OTHER PERSON FOR (A) ANY INACCURACY, ERROR OR
DELAY IN, OR OMISSION OF, (I) ANY INFORMATION OR (II) THE TRANSMISSION OR
DELIVERY OF ANY SUCH INFORMATION` OR (B) ANY LOSS OR DAMAGE ARISING FROM OR
OCCASIONED BY (I) ANY SUCH INACCURACY, ERROR, DELAY OR OMISSION, (II)
NON-PERFORMANCE, OR (III) INTERRUPTION IN ANY SUCH INFORMATION, DUE EITHER TO
ANY NEGLIGENT ACT OR OMISSION BY ANY DISSEMINATING PARTY OR TO ANY "FORCE
MAJEURE" (I.E., ANY FLOOD, EXTRAORDINARY WEATHER CONDITIONS, EARTHQUAKE OR OTHER
ACT OF GOD, FIRE, WAR, INSURRECTION, RIOT, LABOR DISPUTE, ACCIDENT, ACTION OF
GOVERNMENT, COMMUNICATIONS OR POWER FAILURE, OR EQUIPMENT OR SOFTWARE
MALFUNCTION) OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF THE
DISSEMINATING PARTIES. THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF
FITNESS FOR A PARTICULAR USE, AND NO OTHER WARRANTY OF ANY KIND, EXPRESS, OR
IMPLIED, REGARDING THE INFORMATION OR ANY ASPECT OF THE SERVICE (INCLUDING BUT
NOT LIMITED TO ACCESS TO INFORMATION).
2. IN NO EVENT WILL ANY DISSEMINATING PARTY BE LIABLE TO YOU OR ANYONE ELSE FOR
ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT
LIMITED TO LOST PROFITS, TRADING LOSSES, AND DAMAGES THAT RESULT FROM
INCONVENIENCE, DELAY OR LOSS OF THE USE OF THE SERVICE) EVEN IF ANY
DISSEMINATING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSSES. YOU AGREE THAT THE LIABILITY OF ANY DISSEMINATING PARTY, ARISING OUT OF
ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY
CONNECTED WITH THE SERVICE OR THE INFORMATION, WILL NOT EXCEED THE AMOUNT
CHARGED FOR RECEIVING THE INFORMATION. No Disseminating Party shall be liable
for any loss resulting from a cause over which such entity does not have
control, including but not limited to failure of electronic or mechanical
equipment or communication lines, telephone or other
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interconnect problems, unauthorized access, theft, operator errors, severe
weather, earthquakes, floods, acts of war, and strikes or other labor problems.
3. BMC, the IPs and others have proprietary interest in the Information. You
agree not to reproduce, re-transmit, disseminate, sell, distribute, publish,
broadcast, circulate or commercially exploit the Information in any manner
without the express written consent of BMC, and the relevant Information
Provider(s); nor to use the Information for any unlawful purpose. You agree to
comply with reasonable written requests from BMC, and to protect the IPs' and
BMC's respective contractual, statutory and common law rights to the Information
and the Service.
4. You acknowledge that neither the Service nor any of the Information is
intended to supply tax or legal advice. Although the Service may provide
Information about how to invest and what to buy, none of this Information is
recommended by any Disseminating Party. The Disseminating Parties do not
recommend any investment advisory service or product, nor offer any advise
regarding the nature, potential value, or suitability of any particular
security, transaction, or investment strategy.
5. You agree to immediately notify BMC if you become aware of any of the
following: (a) any loss or theft of your access number(s) and/or password(s), or
(b) any unauthorized use of any of your access number(s) and/or password(s), or
of the Service or any Information.
6. You agree to indemnify and hold the Disseminating Parties harmless from and
against any and all claims, losses, liabilities, costs and expenses (including
but not limited to attorneys' fees) arising from your violation of this
Agreement or any third party's rights.
7. BMC reserves the right to terminate your access to the Service or any portion
of it at its sole discretion, without notice and without limitation, for any
reason whatsoever, including but not limited to the unauthorized use of your
access number(s) and/or password(s), breach of this Agreement, discontinuance of
BMC or loss of access to any Information from any of the IPs. The Information
Processors and BMC shall have no liability to you; provided, however, that if
the termination is without cause, BMC shall refund the prorata portion of any
fee which may have been paid by you for the portion of the Service not furnished
to you as of the date of such termination.
8. As a condition of being approved to use the Service, you represent and agree
that you are making this Agreement in your own individual capacity and not on
behalf of a firm, corporation, partnership, trust or association.
9. You acknowledge that, in providing you with the Service, BMC has relied upon
your agreement to be bound by the terms of this Agreement. You further
acknowledge that this Agreement and all other present and future agreements
between you and BMC constitute the complete statement of the agreement between
you and BMC, and that the agreement does not include any other or prior
contemporaneous promises, representations or descriptions regarding the Service
or the Information even if it were contained in materials provided by BMC. This
Agreement may be modified only in writing; if BMC sends you written notice of
the modification, your use of the Service after receiving such notice will
indicate your acceptance of the modification. If any provision of this Agreement
is invalid or unenforceable under applicable laws, it is, to that extent, deemed
omitted and the remaining provisions will continue in full force and effect.
This Agreement and performance hereunder will be governed by and construed in
accordance with the laws of the Province of Ontario and the applicable laws of
Canada, as applied to agreements entered into, no matter where you might
legally reside.
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10. The terms and conditions of Sections 1, 2, 3 and 6 of this Agreement shall
survive any termination of this Agreement.
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APPENDIX B
PRODUCT DESCRIPTION AND RATES
1) The services are defined as follows:
a) Horoscope - receive daily horoscope according to astrological sign.
b) Weather - receive daily weather forecast for local area.
c) Traffic - receive traffic updates for selected areas or roads of
interest.
d) Reminder - receive reminder based on input from subscriber.
2) The service includes all four (4) services. Bell Mobility will remit to III
a sum, each month, equal to the number of subscribers activated on the
service, times the rate, where the rate is defined by the following
schedule:
Total Subscribers Price per subscriber per month
----------------- ------------------------------
Total number of subscribers less than 5000 $1.80 US
5000 - 19999 $1.65 US
20000 - 29999 $1.55 US
30000 - 39999 $1.45 US
Total number of subscribers greater than 40000 $1.25 US
3) Bell Mobility will enter a promotional period immediately following launch
on May 12, 1998. During this period, III will offer Bell Mobility a
promotional period price of $1.15 US per subscriber, regardless of volume.
This pricing will be in effect until August 31, 1998 at which point, the
table in (2) above will govern pricing.
4) Bell Mobility and III agree to investigate advertising opportunities
associated with this service as a way of generating additional revenue.
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APPENDIX C
TRADEMARKS
"Powered by iii"
Reseller shall follow "Powered by iii" Guidelines for Use, Exhibit 1.
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APPENDIX D
COPYRIGHTS
The Copyright notice, with current year inserted, is as follows:
1. Copyright (C) 199__ INTELLIGENT INFORMATION INCORPORATED. All rights
reserved.
2. If Dow Jones & Company, Inc. information is to be included, then the
following notice must be included: "Copyright 199__ Dow Jones & Company, Inc.
All Rights Reserved. Distributed by Intelligent Information (or _________ 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."
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EXHIBIT 1
"POWERED BY iii" GUIDELINES FOR USE
The Value of "Powered by iii"
The "Powered by iii" Logo (the "Logo") is an effective way to identify
information services offering as incorporating the benefits and features of the
leading source of personalized content for wireless devices, Intelligent
Information Incorporated (III). Use of the Logo also qualifies resellers to
participate in III's advanced business partner support programs.
The Logo's Meaning for Business Partner Use
The Logo conveys the value and excitement of personalized information services
provided by the III platform. Business partners are required to use this Logo in
advertising, point-of-purchase displays, and marketing materials to promote
information services. Use of the Logo is made mandatory under the trademark
license granted in the standard III Service Agreement, and the Logo may only be
used according to these Guidelines. These Guidelines help ensure that the Logo
continues to provide consumers with a clear identification of information
service quality.
To protect this valuable trademark, the business partner may not use the Logo in
any way other than as described in these guidelines or as may be provided in
writing by III from time to time. Any unauthorized use of the Logo is an
infringement of III's trademark rights.
Business Partner Logo Artwork
Do not use artwork provided by any source other than III. III will provide
approved Business Partners that agree to follow these guidelines with electronic
versions of the Logo. You may not alter this artwork in any way, separate the
words from the graphic, or replace the words with any others. The trademark
symbol(TM) must appear at the lower right corner of the graphic portion of
the Logo. Documents including the Powered by iii logo must also include the
footnote, in no less than 6 point text, "Powered by iii is a registered
trademark of Intelligent Information Incorporated."
Sizing and Placement Requirement
The Logo may be used only on materials that make accurate references to the
information services as provided by III. The Logo must be placed in close
proximity to headline copy or logo treatments dealing with information services.
The Logo cannot be larger or more prominent than your company name, company
logo, product name (if applicable), or service name.
The Logo may stand-alone, or be incorporated into your information services logo
if appropriate. If the Logo is used as a stand alone element, a minimum amount
of empty space must be left between the Logo and any other object such as type,
photography, borders, edges, etc. The required border of empty space around the
Logo must be 1/4x wide, where x equals the height of the graphic, as measured
from the highest point on the graphic portion of the Logo to the lowest point on
the graphic portion of the Logo.
Minimum size for the Logo is 3/8 of an inch high.
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Business partners may not use the Logo in any manner that suggests that
advertising, point-of-purchase displays, or other marketing materials are from
III.
The footnote "Powered by iii is a registered trademark of Intelligent
Information Incorporated", in not less than 6 point type, must accompany each
use of the Logo.
Intelligent Information Incorporated reserves the right to object to unfair uses
or misuses of its trademarks or other violations of applicable law.
Color Treatment
You may not alter the colors of the Logo in any way from the treatments provided
by III, without the written approval of III.
Quality Control
III reserves the right to review business partner use of the Logo. Business
partner must correct any deficiencies in the use of the Logo upon reasonable
notice from III.
Address any questions concerning the Logo to the appropriate III Account Manager
or III's Director of Marketing.
Intelligent Information Incorporated reserves the right to change the Logo
and/or these guidelines at any time at its discretion. You must comply with the
guidelines as amended from time to time.
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