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EXHIBIT 10.4
AGREEMENT
AGREEMENT, made on the 7th day of August, 1997 by and between Intell-X(x)
("Intell-X(x)"), a division of UMI, a Michigan corporation, with offices at 5900
Centreville Road, Centreville, VA 20120 and BizWatch, Inc., a Delaware
corporation (the "Distributor), with its principal offices at 211 N. Union St.,
Suite 100, Alexandria, VA 22314.
WITNESSETH:
WHEREAS, Distributor has developed and maintains a proprietary
computerized system ("Distributor's System") through which it offers various
remote services, including but not limited to delivery of information by
computer, telephone, and telefax services to its users (the "Users"); and
WHEREAS, Intell-X(x) is the provider of information services (the
"Service") described in the Payment and Product Description Schedules attached
hereto as Schedules A & B and made a part of this Agreement, that the
Distributor desires to make available to its Users;
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the mutual covenants and conditions herein set forth, and with the intent to
be legally bound thereby, Intell-X(x) and the Distributor hereby agree as
follows:
1. REDISTRIBUTION LICENSE REDISTRIBUTION LICENSE
a. Intell-X(x) grants the Distributor a nonexclusive, limited
license to use the Service and to grant nonexclusive,
limited licenses to its Users to use the Service subject to
the terms, conditions and restrictions contained herein for
an initial term described in Schedule A, beginning August
8, 1997, subject to the provisions of Section 6 below.
Distributor is granted the right to make its product
available via other distributors, provided their end-users
directly access Distributor's product. Distributor is not
granted a license to distribute raw feeds of content or to
make any portions of its product available to other
distributors for inclusion in their products. Intell-X(x)
grants the Distributor a nonexclusive, limited license to
use the Service and to grant nonexclusive, limited licenses
to its Users to use the Service subject to the terms,
conditions and restrictions contained herein for an initial
term described in the Payment Schedule _____beginning
___________________ subject to the provisions of Section 6
below.
b. Intell-X(x) shall be responsible for providing to
Distributor the Service as described in the Payment and
Product Description Schedules in a manner subject to the
terms and limitations of this Agreement. Intell-X(x)
reserves the right to add or withdraw sources and items of
coverage from the Service without notice as such
alterations are generally made by IntellX for other
customers of the Service.Intell-X(x) shall be responsible
for providing to Distributor the Service as described in
the Payment Schedule and Product Description Schedule in a
manner subject to the terms and limitations of this
Agreement. Intell-X(x) reserves the right to add or
withdraw sources and items of coverage from the Service
without notice.
c. Distributor acknowledges and agrees that Intell-X(x) has
the right to distribute its services through sources other
than Distributor and that the rights granted hereunder are
not exclusive to Distributor.Distributor acknowledges and
agrees that Intell-X(x) has the right to distribute its
services through sources other than Distributor and that
the rights granted hereunder are not exclusive to
Distributor.
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2. OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF DISTRIBUTOR
OBLIGATIONS, REPRESENTATIONS AND WARRANTIES OF DISTRIBUTOR
(b) Distributor agrees to provide Intell-X(x) reasonable access to
Distributor's System for the sole purpose of allowing
Intell-X(x) to review and approve the implementation of the
Service on the Distributor's System before commercial
introduction and during the product's life cycle. This
access shall be provided at no charge to Intell-X(x) except
that Intell-X(x) shall be responsible for paying third
party communications charges needed to connect to the
Distributor's System if needed to conduct such testing.
(a) Notwithstanding anything to the contrary contained in this
Agreement, Distributor will not sell or in any way make the
Service available through print or CD ROM products without
the prior written consent of Intell-X(x).
(b) Distributor agrees not to remove, and shall retain thereon,
any copyright notices and other sourced credits from the
information provided by Intell-X(x).(f) Distributor agrees
not to remove any copyright notice from the information
provided by Intell-X(x) hereunder and to display all
copyright notices and other source credit as requested by
Intell-X(x) in such a manner as may be requested by
Intell-X(x).
(c) Distributor agrees not to alter any of the information
contained in the Service without the prior written
authorization of Intell-X(x).(g) Distributor agrees not to
alter any of the information contained in the Service
without the prior written authorization of Intell-X(x).
(d) Subject to the disclaimers of warranties and the limitation
of liability contained in Sections 5.2 and 5.3,
respectively, Distributor represents and warrants to
Intell-X(x) that:(j) Distributor represents and warrants to
Intell-X(x) that:
(1) its entry into this Agreement does not violate any
agreement between Distributor and any other
party.(2) its entry into this Agreement does not
violate any agreement with any other party.
(2) its performance under this Agreement and the use of
the Service will conform to all applicable laws and
government rules and regulations.(3) its
performance under this Agreement and the use of the
Service will conform to all applicable laws and
government rules and regulations.
(3) it will not edit, abridge, rewrite or in any way
alter the editorial content of the Service. The
Distributor may, however, choose not to display
every story. Any changes made by Distributor are the
sole responsibility of the Distributor. (4) it will
not edit, abridge, rewrite or in any way alter the
editorial content of the Service. The Distributor
may, however, choose not to display every story. Any
changes made by Distributor are the sole
responsibility of the Distributor.
(4) if the Agreement is terminated, the Service shall
not be used, sold or otherwise distributed by
Distributor.(5) if the Agreement is terminated, the
Service shall not be used, sold or otherwise
distributed by Distributor.
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3. PAYMENTS
(a) Distributor shall pay Intell-Xx a monthly fee pursuant to
the Payment Schedule attached hereto. (a) Distributor
shall pay Intell-Xx a monthly fee in advance pursuant to
the Payment Schedule attached hereto.
(b) Distributor shall make payment to IntellXx of the fees
described in the Payment Schedule within thirty (30) days
of the end of the month in which the fees were earned. (b)
Distributor shall make payment to Intell-Xx of the fees
described in the Payment Schedule within thirty (30) days
of the beginning of the month in which the fees were
earned.
(c) Distributor shall be responsible for the proper payment of
all taxes, including sales, excise and value-added taxes,
which may be levied upon the provision of the Service or on
any payments by Distributor to Intell-Xx hereunder, other
than franchise and income taxes of Intell-Xx. (d)
Distributor shall be responsible for the proper payment of
all taxes, including sales, excise and value-added taxes,
which may be levied upon the provision of the Service or on
any payments by Distributor to Intell-Xx hereunder, other
than franchise and income taxes of Intell-Xx.
(d) IntellXx shall notify Distributor regarding changes in the
cost of the Service for each subsequent renewal term, if
any, of this Agreement, no later than one hundred twenty
(120) days prior to the start of each such renewal term The
terms and conditions of any such renewal term shall be
mutually agreed upon by both parties.
4. CONFIDENTIAL INFORMATION
(a) Either the Distributor or Intell-Xx may disclose to the
other certain information that the disclosing party deems
to be confidential and proprietary ("Confidential
Information"). Such Confidential Information shall be
clearly and conspicuously marked at the time of its first
disclosure to the receiving party. Such Confidential
Information includes, but is not limited to, the terms of
this Agreement, documentation related to the Service and
technical and other business information of the Distributor
and Intell-Xx that is not generally available to the
public.a. Either the Distributor or Intell-Xx may disclose
to the other certain information that the disclosing party
deems to be confidential and proprietary ("Confidential
Information"). Such Confidential Information shall be
clearly and conspicuously marked at the time of its first
disclosure to the receiving party. Such Confidential
Information includes, but is not limited to, the terms of
this Agreement, documentation related to the Service and
technical and other business information of the Distributor
and Intell-Xx that is not generally available to the
public.
(b) The party receiving Confidential Information agrees not to
disclose or otherwise use such information for any purpose
except as provided herein during the term of this
Agreement. Further, within ten (10) days of the date on
which the Agreement is terminated, the receiving party
shall return all Confidential information together with all
materials which contain such Confidential Information and
not retain any copies of the same. Confidential Information
does not include any information that (I) is or shall
become generally available without fault on its part, (ii)
is already rightfully in the receiving party's possession
prior to its receipt from the disclosing party, (iii) is
independently developed by the receiving party, or that is
disclosed by third parties without restrictions or is
rightfully obtained by the receiving party, from third
parties
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or sources without a violation of this Agreement, or (iv)
is otherwise required to be disclosed by operation of law,
government regulations or court order.
5. WARRANTIES AND DISCLAIMERS OF INTELL-Xx AND LIMITATION OF
LIABILITY
5.1 Subject to the disclaimers of warranties and the limitation
of liability contained in Section 5.2 and 5.3, respectively,
Intell-Xx represents and warrants to Distributor that:
(a) Intell-Xx's entry into this Agreement does not
violate any agreement with any other party.(a)
Intell-Xx's entry into this Agreement does not
violate any agreement with any other party.
(b) it has full and unrestricted right to authorize the
Distributor and the Distributor's Users to access to
the Service and such access does not and will not
infringe on any copyright, patent or any other
proprietary right of any third party. it has full
and unrestricted right to authorize the Distributor
and the Distributor's Users to access to the Service
and such access does not and will not infringe on
any copyright, patent or the proprietary right of
any third party.
(c) its performance under this Agreement and
Distributor's licensed use of the Service conforms
to all applicable laws and government rules and
regulations.(c) its performance under this Agreement
conforms to all applicable laws and government rules
and regulations.
5.2 Disclaimers:
(a) THE PARTIES AGREE THAT (i) THE WARRANTIES STATED
ABOVE ARE EXCLUSIVE; (ii) EXCEPT AS STATED ABOVE THE
SERVICE IS PROVIDED "AS IS" AND (iii) THAT THERE ARE
NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE RELATING TO ANY MATTERS IN
THIS AGREEMENT, INCLUDING, WiTHOUT LIMITATION, THE
SERVICE, DISTRIBUTOR'S SYSTEM OR ANY OTHER RESOURCES
PROVIDED BY EITHER PARTY.
(b) THE PARTIES AGREE AND DISTRIBUTOR ACKNOWLEDGES THAT
INTELL-Xx DOES NOT WARRANT THE ACCURACY OR
COMPLETENESS OF ANY INFORMATION PROVIDED HEREUNDER
AND INTELL-Xx SHALL NOT BE LIABLE IN ANY MANNER TO
DISTRIBUTOR OR ITS USERS OR ANY THIRD PARTIES WHO
MAY USE THE INFORMATION PROVIDED HEREUNDER. FURTHER,
INTELL-Xx SHALL NOT BE LIABLE FOR ANY DELAY,
INACCURACY, ERROR OR OMISSION IN THE INFORMATION
PROVIDED HEREUNDER OR RESULTING FROM THE
TRANSMISSION, DELIVERY OF OR ANY FAILURE TO DELIVER
ANY PART OF THE SERVICE.
(c) THE PARTIES AGREE AND IntellX ACKNOWLEDGES THAT
DISTRIBUTOR DOES NOT WARRANT THE PERFORMANCE OF
DISTRIBUTOR'S SYSTEM AND DISTRIBUTOR SHALL NOT BE
LIABLE IN ANY MANNER TO IntellX FOR FAILURES OF THE
SYSTEM.
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FURTHER, DISTRIBUTOR SHALL NOT BE LIABLE FOR ANY
DELAY, INACCURACY, ERROR, FAILURE OR OMISSION
RELATED TO THE PERFORMANCE OF DISTRIBUTOR'S SYSTEM.
5.3 Limitation of Liability and Remedy.
(a) Neither (I) Intell-Xx nor its information providers
nor (ii) Distributor shall be liable to the other in
any event for any damages, direct or indirect,
including, but not limited to, damages and losses
resulting from loss of data, loss of profits arising
out of this Agreement, or for any incidental or
consequential damages even if advised to the
possibility of such damage except as set forth in
Section 5.3(b) and (c) below.
(b) In the event any third person or entity asserts any
claim, suit, loss, liability, obligation, demand,
damages or expenses against Distributor based upon a
breach of any warranty described in Section 5.1
above (collectively a "Distributor Indemnified
Claim"), Intell-Xx hereby agrees to defend,
indemnify and hold Distributor and its parents,
subsidiaries, directors, officers, employees and
shareholders (the "Distributor Indemnified Parties")
harmless from and against any and all such
Distributor Indemnified Claims. Intell-Xx's
obligation to indemnify the Distributor Indemnified
Parties hereunder shall be conditioned upon (i) the
Distributor Indemnified Party providing Intell-Xx
with prompt notice of such Distributor Indemnified
Claim, which notice shall in any event be given in
enough time to allow Intell-Xx to defend such
Distributor Indemnified Claim, (ii) the Distributor
Indemnified Party fully cooperating with Intell-Xx
at IntellX's expense in the defense of such
Distributor Indemnified Claim, and (iii) the
Distributor Indemnified Party allowing Intell-Xx to
control the defense including any potential
settlement of such Distributor Indemnified Claim.
(c) In the event any third person or entity asserts any
claim, suit, loss, liability, obligation, demand,
damages or expenses against IntellX based upon a
breach of any warranty described in Section 2(d)
above (collectively an "IntellX Indemnified Claim"),
Distributor hereby agrees to defend, indemnify and
hold IntellX and its parents, subsidiaries,
directors, officers, employees and shareholders (the
"IntellX Indemnified Parties") harmless from and
against any and all such IntellX Indemnified Claims.
Distributor's obligation to indemnify the IntellX
Indemnified Parties hereunder shall be conditioned
upon (i) the IntellX Indemnified Party providing
Distributor with prompt notice of such IntellX
Indemnified Claim, which notice shall in any event
be given in enough time to allow Distributor to
defend such IntellX Indemnified Claim, (ii) the
IntellX Indemnified Party fully cooperating with
Distributor at Distributor's expense in the defense
of such IntellX Indemnified Claim, and (iii) the
IntellX Indemnified Party allowing Distributor to
control the defense including any potential
settlement of such IntellX Indemnified Claim.
6. TERM AND TERMINATION
(a) This Agreement shall be effective from the date of its
written acceptance by Distributor and shall continue in
force for an initial term as set forth on Schedule A.
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(b) Notwithstanding (a) above, either party shall have the
right to terminate this Agreement if the other party is in
default of any obligation herein, which default is
incapable of cure or which, being capable of cure, has not
been cured within thirty (30) days after the receipt of
written notice of such default from the nondefaulting party
or within such additional cure period as the nondefaulting
party may authorize.(b) Notwithstanding (1) above, either
party shall have the right to terminate this Agreement if
the other party is in default of any obligation herein,
which default is incapable of cure or which, being capable
of cure, has not been cured within thirty (30) days after
the receipt of written notice of such default from the
nondefaulting party or within such additional cure period
as the nondefaulting party may authorize.
(c) Either party may terminate this Agreement by written notice
to the other, and may regard the other as in default of
this Agreement, if the other party becomes insolvent, makes
a general assignment for the benefit of creditors, suffers
or permits the appointment of a receiver for its business
or assets, initiates or becomes subject to any proceeding
under any bankruptcy or insolvency law, or has wound up or
liquidated its business. Debts and credits outstanding as
of the date of termination between the parties shall
survive termination for any cause.(c) Either party may
terminate this Agreement by written notice to the other,
and may regard the other as in default of this Agreement,
if the other party becomes insolvent, makes a general
assignment for the benefit of creditors, suffers or permits
the appointment of a receiver for its business or assets,
initiates or becomes subject to any proceeding under any
bankruptcy or insolvency law, or has wound up or liquidated
its business. Debts and credits outstanding between the
parties shall survive termination for any cause.
(d) On any termination of this Agreement, (i) all rights
granted hereunder regarding the Service will immediately
cease, unless otherwise specified in this Agreement or any
amendment hereto; (ii) Distributor will cease to utilize or
retransmit any items from the Service from the date of
termination; and (iii) Distributor shall promptly pay to
Intell-Xx all sums then due and payable to IntellX as of
the date of such termination.(d) On any termination of this
Agreement, (i) all rights granted hereunder regarding the
Service will immediately cease, unless otherwise specified
in this Agreement or any amendment hereto; provided,
however, that the Distributor's Users shall be entitled to
retain the information contained in the Service as
described in Section 2(c) above for the remainder of the
sixty (60) day period, if any, described in such Section
2(c); (ii) Distributor will cease to utilize or retransmit
any items from the Service from the date of termination;
(iii) Distributor will forthwith purge the same from all of
its on-line and off-line storage media; (iv) Distributor
will not use for any purpose thereafter any information
included in or derived from the Service; and (v)
Distributor shall promptly pay to Intell-Xx all sums due
pursuant to Section 3 hereof and provide all reports and
information required hereunder.
7. SURVIVAL7. SURVIVAL
The obligations of the parties under Sections 2(c), 2(k), 4, 5, 6,
10, 11 and 12 shall survive the termination of this Agreement.
8. ADVERTISING AND PROMOTION8. ADVERTISING AND PROMOTION
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Each party agrees to submit to the other party for written
approval, all advertising or other promotional materials that use service names,
company names or make reference to any understanding or relationship in this
Agreement no fewer than fifteen (15) days before proposed use and each party
will not unreasonably withhold its approval. Unless notice of approval or
disapproval is received within ten (10) days of receipt of advertising or other
promotional materials, approval shall be considered granted. Either party,
however, may identify the other in its published listing of available services
or distributors without such written approval.
9. FORCE MAJEURE
Neither party shall be liable for delay or default in the
performance of its obligations under this Agreement if such delay or default is
cased by conditions beyond its control, including but not limited to fire,
flood, accident, storm, acts of war, riot, government interference, strikes or
walkouts.
10. NOTICES
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly delivered when (a) delivered personally;
(b) three (3) business days after having been sent by registered or certified
U.S. mail, return receipt requested, postage and charges prepaid; or (c) one (1)
business day after deposit with a commercial overnight carrier, with written
verification of recepit. Notices should be addressed as follows:
(a) If to Intell-Xx:a. If to IntellXx:
a. If to Intell-Xx:
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5900 Centreville Road
Suite 302
Centreville, VA 20121
Attn: Vice President of Channel sales
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(b) If to Distributor:b. If to Distributor:
BizWatch, Inc.
211 N. Union St.
Suite 100
Alexandria, VA 22314
or such other address as either party designates in writing as its notice
address.
11. 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 and costs from the nonprevailing party.
12. GENERAL TERMS AND CONDITIONS
(a) The parties to this Agreement are independent contractors.
Neither party is an agent, representative or partner of the
other party. Neither party shall have any right, power or
authority to enter into any agreement for or on behalf of,
or to incur any obligation or liability of, or to otherwise
bind, the other party. This Agreement shall not be
interpreted or construed to create an association, joint
venture or partnership between the parties or to impose any
partnership obligation or liability upon either party.a.
Neither party shall be considered an agent for the other
party nor shall either party have the authority to bind the
other.
(b) Neither party may assign this Agreement without the written
consent of the other, provided, however, this entire
Agreement may be assigned without the other party's consent
to a successor by merger or acquisition of all or
substantially all of the assigning party's assets, provided
that such assignee (a) is not a direct competitor of the
assigning party and (b) has financial assets equal to or
greater than that of the assigning party, and (c) is bound
by law or written agreements to all of the obligations of
the assigning party under this Agreement.b. Neither party
may assign this Agreement without the written consent of
the other. Any attempted assignment or delegation in
violation of this section shall be deemed null and void.
(c) No modification of this Agreement or waiver of any of its
terms will be effective against a party unless set forth in
writing and signed by the other party.No modification of
this Agreement or waiver of any of its terms will be
effective against a party unless set forth in writing and
signed by the other party.
(d) In cases one or more of the provisions of this Agreement
shall be deemed illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect
the other provisions of this Agreement.d. In cases one or
more of the provisions of this Agreement shall be deemed
illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the other
provisions of this Agreement.
(e) Terms and conditions of this Agreement shall be construed
in accordance with the laws of the State of Oklahoma.e.
Terms and conditions of this Agreement shall be construed
in accordance with the laws of the State of Oklahoma.
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(f) This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior agreements or
understandings, either written or oral, with respect to the
subject matter hereof.
f. This Agreement constitutes the entire agreement between the
parties and supersedes any and all prior agreements or
understandings, either written or oral, with respect to the
subject matter hereof.
(g) The headings used in this Agreement are for convenience
only and are not to be construed to have legal
significance.
g. The headings used in this Agreement are for convenience only and are not
to be construed to have legal significance.
ACCEPTED:
x
BizWatch, Inc INTELL-X , A DIVISION OF UMI
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DISTRIBUTOR
By: /s/ DAVID HOPPMANN By: /s/ ARTHUR P. BUSHNELL
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Signature Signature
Name: David Hoppmann Name: Arthur P. Bushnell
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Title: President Title: Vice President
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Date: 17-NOV-97 Date: 9/7/97
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Amendment No. 1 to
Agreement,
between
BizWatch, Inc.
and
UMI Company
dated August 7, 1997
THIS AMENDMENT, effective October 27, 1997, is entered into by BizWatch, Inc.,
211 N. Union Street, Suite 100, Alexandria, VA 22314, (hereinafter
"Distributor") and UMI Company, a Delaware corporation, with offices at 300
North Zeeb Road, Ann Arbor, MI 48103, USA, (hereinafter "UMI") and amends that
certain Agreement entered into by the parties dated August 7, 1997, (hereinafter
"Agreement").
WHEREAS, Distributor wishes to receive certain summarized news stories from
UMI; and
WHEREAS, UMI wishes to provide such summarized news stories to Distributor and
be compensated therefor;
NOW, THEREFORE in consideration of the mutual promises set forth herein, and
other good and valuable consideration, the parties agree as follows:
1. Capitalized terms not otherwise defined in this Amendment shall have the
meaning set forth in the Agreement.
2. Schedule A of the Agreement is amended by adding the Addendum to Schedule
A attached to this Amendment.
Except as modified herein, the Agreement remains in full force and effect. This
Amendment shall be effective as of the first date set forth above.
UMI COMPANY BizWatch, Inc.
By /s/ VALERIE MACLEOD By /s/ DAVID HOPPMANN
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Valerie MacLeod
Title Vice President, Title PRESIDENT
Strategic Alliances -------------------------
Date 10/27/97 Date 17-NOV-97
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