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EXHIBIT 10.7
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made on the 26th day of October, 1999, by
and between NewsReal, Inc., a Delaware corporation ("NewsReal"), with its
principal place of business at 66 Canal Center Plaza, Suite 700, Alexandria, VA
22314, and ChamberBiz, Inc., L.L.C., a Delaware limited liability company
("Distributor"), with its principal offices at 1155 15th Street, N.W.,
Washington, D.C. 20005. The "Effective Date" of this Agreement shall be the
later of the date first specified above the last date on which both parties have
executed this Agreement (as shown on the signature page hereto).
RECITALS:
NewsReal is an on-line provider of a business software and information
service known as IndustryWatch and certain other services described on SCHEDULES
A-1 through A-3 (the "Services"). NewsReal has developed and maintains a
proprietary computerized system (the "System") through which it offers the
Services and various remote services, including but not limited to delivery of
information by computer, telephone, and Internet services to its users (the
"NewsReal Users"). Distributor desires to introduce the Services to its users
and NewsReal desires to make the Services available to those users, subject to
the terms and conditions of this Agreement.
For good and valuable consideration, receipt of which is hereby
acknowledged, in consideration of the mutual covenants and conditions herein set
forth, and with the intent to be legally bound, NewsReal and Distributor hereby
agree as follows.
A. DEFINITIONS
1. Distributor Site: As used herein, the term "Distributor Site" means the
Internet World Wide Web site maintained by Distributor (a/k/a
"chamberbiz.com").
2. Distributor Users: As used herein, the term "Distributor User" or
"Distributor Users" means persons who access the Services by using Links
maintained on the Distributor Site.
3. Email Service: As used herein, the term "Email Service" means the email
service referred to in the Recitals above and more particularly described in
SCHEDULES A-2 AND D-2 hereto and includes as such Service may be updated,
enhanced, supplemented, revised or modified by NewsReal during the term of,
and in accordance with, this Agreement.
4. IndustryWatch: As used herein, the term "IndustryWatch" means the business
software and information service referred to in the Recitals above and more
particularly described in SCHEDULES A-1, C AND D-1 hereto and includes as
such service may be updated, enhanced, supplemented, revised or modified by
NewsReal during the term of, and in accordance with, this Agreement.
5. . Links: As used herein, the term "Link" or "Links" means hypertext links,
graphic devices, files or images, or similar functions, which access the
Virtual Domain to be maintained by NewsReal pursuant to this Agreement when
activated by a Distributor User.
6. . MySite Selective Personalization Service: As used herein, the term "MySite
Selective Personalization Service" refers to the registration-based,
personalized Web page designed and hosted for the Distributor by NewsReal,
as more particularly described in SCHEDULES A-3 AND D-3 hereto and includes
as such Service may be updated, enhanced, supplemented, revised or modified
by NewsReal during the term of, and in accordance with, this Agreement.
7. NewsReal Site: As used herein, the term "NewsReal Site" means the Internet
World Wide Web site maintained by NewsReal for the purpose of providing
access to the Services, including any Virtual Domain required to be
maintained by NewsReal pursuant to this Agreement.
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8. NewsReal Users: As used herein, the term "NewsReal User" or "NewsReal Users"
means persons who access the Services by using Links maintained on the
Distributor Site.
9. Services: As used herein, the term "Services" means (a) NewsReal's business
software and information service known as IndustryWatch, including the
features, benefits, and information sources described in SCHEDULES A-1, C
AND D-1 to this Agreement, (b) NewsReal's Email Service described below and
in SCHEDULES A-2 AND D-2 hereto, and (c) NewsReal's MySite Selective
Personalization Service described above and in SCHEDULES A-3 AND D-3 hereto.
If and to the extent NewsReal, during the term of this Agreement, makes
generally available to its customers any new, enhanced and/or expanded
functionality, features or information and content as part of IndustryWatch,
NewReal's Email Service and/or NewReal's MySite Selective Personalization
Service, such new, enhanced and/or expanded functionality, features or
information and content shall be automatically deemed to be part of the
Services. Without limiting the generality of the foregoing, the Services
shall include, without limitation, any services, functions,
responsibilities, equipment and other products and materials not
specifically described in this Agreement that are reasonably required for
the proper performance of the Services.
10. System: As used herein, the term "System" means the proprietary computerized
system developed, owned, operated and maintained by NewsReal for the
delivery of the Service, and consisting of software, hardware, software
applications and network systems combined into a single proprietary system
by NewsReal.
11. Virtual Domain: As used herein, the term "Virtual Domain" means a page or
segment of an Internet World Wide Web site, replicating the look and
character of the Distributor Site and bearing the branding of both
Distributor and NewsReal.
B. OBLIGATIONS, REPRESENTATIONS AND COVENANTS OF NEWSREAL
1. Subject to the terms, conditions, and restrictions of this Agreement,
NewsReal grants Distributor a nonexclusive license to permit Distributor
Users to access the Services through the Distributor Site and the System.
The foregoing license is solely for the purpose of permitting Distributor to
allow Distributor Users to access the Services in accordance with this
Agreement, and shall not be construed to grant a license to use, store or
distribute the Services or the content of such services for any other
purpose (including Distributor's branding, redistribution or resale of any
licensed content). By way of illustration and without limiting the
foregoing, the nonexclusive license granted Distributor by NewsReal does not
permit Distributor to distribute raw feeds of content or to make any
portions of its product available to other distributors for inclusion in
their products.
2. NewsReal will be responsible for providing the information and content
contained in the Services (the "Information and Content") and for serving
any advertising being sold by Distributor within any add space on the
Virtual Domain. The parties acknowledge and agree that the Virtual Domain
will contain a reasonable amount of add space and that any revenues
generated by advertising within such add space shall be retained entirely by
Distributor. The Information and Content provided in the Services as of the
Effective Date is listed in SCHEDULE C hereto. NewsReal reserves the right
to add, modify, or withdraw Information and Content from the Services
without notice at any time; provided, however, that NewsReal shall: (i) not,
at its election, modify or withdraw any Information or Content for reasons
other than avoiding or curing breach of this Agreement and, in the event of
such a modification or withdrawal, NewsReal shall use commercially
reasonable efforts to ensure than on the whole, the Information and Content
after such modification or withdrawal is, in terms of breadth, depth and
quality, equivalent to or better than the Information and Content prior to
such modification or withdrawal; and (ii) use commercially reasonable
efforts to provide Distributor with prompt notification of any modification
or withdrawal of Information and Content that has a material adverse impact
on the depth, breadth or quality of the Information and Content on the
whole. Distributor is granted the right to add to or suppress any
Information and or Content included in the Services, subject to the
limitations and conditions contained in this Agreement.
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3. With respect to the contractual arrangements by which NewsReal obtains
Information and Content from third parties, NewsReal shall use commercially
reasonable efforts to: (i) remain in good standing under such contractual
arrangements; and (ii) in the absence of circumstances underwhich NewsReal
has deemed it to be in the best interests of NewsReal and/or the Distributor
to do otherwise (A) continue to provide the Information and Content provided
through such contractual arrangements and (B) not exercise any termination
rights, or fail to exercise any renewal rights, it may have with respect to
such contractual arrangements.
4. NewsReal shall use commercially reasonable efforts to obtain and maintain
high-quality reputable feeds of third party originated Information and
Content.
5. Distributor acknowledges and agrees that NewsReal has the right to
distribute and provide access to the Services through sources or systems
other than Distributor and that the rights granted hereunder are not
exclusive to Distributor.
6. NewsReal hereby grants Distributor the right to install, display and
maintain Links from the Distributor Site to the NewsReal Site and the
Virtual Domain. The Links used by Distributor for this purpose shall be as
designated on SCHEDULE B attached hereto; provided that Distributor shall
have the final right of approval over the appearance, size and placement of
such Links.
7. NewsReal agrees to create, host, and maintain, on servers operated and
maintained by or at the direction of NewsReal, a Virtual Domain that
replicates the look and character of the Distributor Site, as provided in
SCHEDULE A-1, and the Services, as described in SCHEDULES A-1 through A-3.
The appearance of the Virtual Domain created pursuant to this Agreement
shall be subject to the approval of Distributor to the extent provided in
SCHEDULES A-1, A-2, AND/OR A-3.
8. NewsReal will provide Distributor with online access to obtain reports on
MySite registered users during the term of this Agreement. In addition,
NewsReal will provide monthly reports to Distributor during the term of this
Agreement, which shall contain information regarding traffic and page views
by Distributor Users accessing the Services and the Virtual Domain via the
Distributor Site (including but not limited to which portion of the NewsReal
Site such traffic was generated), and registration information obtained in
connection with any of the Services. NewsReal will provide additional
reporting as reasonably requested by Distributor; provided that any such
additional reporting provided will be considered customized reporting,
subject to additional set-up fees and charges set forth in ANNEX I AND
SCHEDULE A-1 hereto. Upon fourteen (14) days notice by Distributor to
NewsReal or immediately following termination of this Agreement for any
reason, NewsReal shall provide Distributor with a complete copy of the data
contained in the MySite user profile database and, as reasonably requested
by Distributor, such other information regarding the usage of the Services
by Distributor Users collected by NewsReal in the normal course of business.
NewsReal shall provide such data and information to Distributor in a file
format(s) acceptable to both parties.
9. NewsReal shall provide service and support to Distributor as provided in
SCHEDULES A-1 THROUGH A-3, AND D-1 THROUGH D-3 hereto.
10. Subject to the license granted by this Agreement, NewsReal reserves and
retains all right, title, and interest, including but not limited to all
copyright and other intellectual property rights, in and to the Services.
11. When averaged over a consecutive 30-day period, the Services and the System
supporting the Services shall be available to perform critical functions,
such as fulfilling a search request, 98% of a true 24/7 schedule of
operations, as measured by NewsReal in a manner that is considered customary
in the industry.
12. NewsReal agrees that any date sensitive hardware or software components
(i.e., hardware or software components the functionality of which includes
processing, providing and/or receiving date data) used in the provision of
the Services will be year 2000 compliant (i.e., will, when used in
accordance with
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associated documentation, be capable of correctly processing, providing
and/or receiving date data from, into, within or between the twentieth and
twenty-first centuries); provided that NewsReal will not be responsible for
adverse effects attributable to any systemic Internet failures and
interruptions in Services of any of NewReal's Internet service provider
(ISP's) or any force majeure events. Distributor further acknowledges that
the capability of the Services to manage and manipulate date-related
information appropriately depends on the quality of information imported or
input into the Services, including the presence of adequate indicators of
century in such information.
13. NewsReal will use commercially reasonable efforts in accordance with normal
industry practices to keep the NewsReal Site and the Virtual Domains free o
viruses, trojan horses, worms, time bombs, cancelbots or other computer
programming routines that are intended to damage, detrimentally interfere
with, surreptitiously intercept or expropriate any system, data or
information.
C. OBLIGATIONS, REPRESENTATIONS AND COVENANTS OF DISTRIBUTOR
1. The parties agree that advertising and/or sponsorships will, at
Distributor's election, be sold by Distributor on the Virtual Domain.
2. Distributor will use all commercially reasonable and diligent efforts to
promote and encourage Distributor User access to the Services.
3. Distributor will not remove any copyright notice or disclaimer included in
or appended to the Services, the Virtual Domains or any other information
provided by NewsReal pursuant to this Agreement.
4. Distributor agrees not to alter, modify or change any of the information
contained in the Services without the prior written authorization of
NewsReal. Distributor may, however, choose not to display every story. Any
approved changes made by Distributor are the sole responsibility of
Distributor.
5. Distributor agrees that if this Agreement is terminated pursuant to
paragraph I hereunder, the Services shall not be used, sold or otherwise
distributed by Distributor or Distributor Users following the effective dat
of termination.
6. Distributor hereby grants NewsReal the right to install and maintain Links
to the NewsReal Site from the Distributor Site, subject to the terms and
conditions of this Agreement, and as necessary for NewsReal to provide the
Services. The respective icons and logos of NewsReal as screen indicators of
such Link(s) shall be designated on SCHEDULE B attached hereto, according to
the specifications and placement, artwork and design supplied by NewsReal;
provided, however, that Distributor shall have final approval right over
such specifications, placement, artwork and design.
D. USE OF BRANDING.
1. The Virtual Domain shall contain the branding of both parties to the extent
described in SCHEDULE A-1. The use of trademarks, trade names, and logos of
the parties on the Virtual Domain shall be as specified in SCHEDULES A-1 AND
B.
2. NewsReal agrees not to use or display any trademark, trade name, or logo of
Distributor in any manner, except as permitted by this Agreement.
3. Distributor agrees not to use or display any trademark, trade name, or logo
of NewsReal in any manner, except as permitted by this Agreement.
E. PAYMENTS
1. Payments to be made by NewsReal to Distributor and by Distributor to
NewsReal shall be made as described in the Pricing Addendum attached as
ANNEX 1 and in SCHEDULES A-1 THROUGH A-4 hereto.
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2. NewsReal shall notify Distributor regarding changes in the cost of the
Services for each subsequent renewal term, if any, of this Agreement, no
later than sixty (60) days prior to the start of each such renewal term.
F. CONFIDENTIAL INFORMATION
1. Either NewsReal or Distributor may disclose to the other certain information
that the disclosing party deems to be confidential and proprietary
("Confidential Information"). Such Confidential Information will be clearly
and conspicuously identified as such by the disclosing party 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 Services, and technical and other business information of
NewsReal and Distributor that is not available to the general public.
2. The party receiving the Confidential Information of the other party agrees
not to disclose such information to persons or entities other than that
party's officers, directors, employees, agents, attorneys, or contractors
with a need to know such information, during the term of this Agreement and
for a period of two (2) years following the date on which this Agreement is
terminated. Further, the receiving party agrees not to use Confidential
Information it receives from the disclosing party for any purpose other than
the formation or performance of this Agreement. The receiving party shall be
liable for any improper use or disclosure of Confidential Information of the
disclosing party by any officer, director, employee, agent, or contractor to
whom such information is disclosed.
3. Within fourteen (14) days of the date on which a written request therefore
is received from the disclosing party, or promptly following the expiration
or termination of this Agreement for any reason, the receiving party shall
return to the disclosing party all Confidential Information of the
disclosing party then in its possession together with all materials in any
media or format whatsoever which contain such Confidential Information and
not retain any copies of the same.
4. The restrictions and obligations placed on the receiving party by this
Section F with respect to the disclosure and use of Confidential Information
of the disclosing party shall not apply to Confidential Information of the
disclosing party that is or becomes known to the general public without
fault on the part of the receiving party; is already in the receiving
party's possession prior to its receipt from the disclosing party; is
independently developed by the receiving party, without the use of any
Confidential Information of the disclosing party; or is provided to the
receiving party by third parties not subject to any nondisclosure or
confidentiality agreement with the disclosing party.
5. The receiving party may disclose Confidential Information of the disclosing
party in a manner not otherwise permitted by this Agreement if prior written
authorization is obtained from the disclosing party. The receiving party may
also disclose Confidential Information of the disclosing party in response
to any order, warrant, subpoena, or other form of legally enforceable
demand, provided that prior written notice of such a demand is given to the
disclosing party as soon as practicable, in order to permit the disclosing
party to seek an order limiting or preventing disclosure.
G. WARRANTIES AND DISCLAIMERS
1. NewsReal represents and warrants to Distributor that:
(a) Its entry into this Agreement does not violate any agreement with any
other party.
(b) The Services (including without limitation the Information and Content,
Links and any other software, content and other materials used by
NewsReal in the provision of the Services) and any of NewsReal marks
licensed hereunder will not to the knowledge of NewsReal infringe any
trade name, trademark, trade secret, service mark, copyright or patent.
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(c) The delivery or use of the Services (including without limitation the
Information and Content, Links and any other software, content and other
materials used by NewsReal in the provision of the Services) does not
invade or violate any right to privacy, personal or proprietary right,
or other common law or statutory right of any person.
(d) Its performance under this Agreement and the use of the Services by
Distributor anticipated by this Agreement conforms to all applicable
laws and government rules and regulations.
2. Distributor represents and warrants that:
(a) Its entry into this Agreement does not violate any agreement with any
other party.
(b) Its performance under this Agreement will conform to applicable laws and
government rules and regulations.
(c) The use of the Distributor marks as contemplated by this Agreement does
not to the knowledge of Distributor infringe any trade name, trademark,
service mark, copyright or patent.
3. THE PARTIES AGREE THAT THE WARRANTIES STATED HEREIN ARE EXCLUSIVE AND 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 SERVICES, DISTRIBUTOR'S COMPUTING AND DISTRIBUTION
SYSTEM OR ANY OTHER COMPUTER OR TECHNICAL RESOURCES PROVIDED BY EITHER
PARTY.
4. THE PARTIES AGREE THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, NEWSREAL DOES
NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED IN THE
SERVICES OR PROVIDED HEREUNDER AND NEWSREAL SHALL NOT BE LIABLE IN ANY
MANNER TO DISTRIBUTOR BASED ON ANY USE OF THE INFORMATION PROVIDED UNDER THE
SERVICES. FURTHER, TO THE EXTENT THE RESULT OF THE PERFORMANCE (OR LACK OF
PERFORMANCE) OF NEWSREAL'S COMPUTING AND DISTRIBUTION SYSTEM OR OTHERWISE
NOT WITHIN NEWSREAL'S CONTROL, NEWSREAL SHALL NOT BE LIABLE FOR ANY DELAY,
INACCURACY, ERROR OR OMISSION IN THE INFORMATION PROVIDED UNDER THE SERVICES
OR RESULTING FROM THE TRANSMISSION, DELIVERY OF, OR ANY FAILURE TO DELIVER
ANY PART OF THE SERVICES. HOWEVER, SUCH DELAYS, ERRORS, OMISSIONS, OR
FAILURES TO DELIVER AS TO ALL OR PART OF THE SERVICES MAY RESULT IN THE
TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION I.
5. THE PARTIES AGREE AND ACKNOWLEDGE THAT DISTRIBUTOR DOES NOT WARRANT THE
PERFORMANCE OF DISTRIBUTOR'S COMPUTING AND DISTRIBUTION SYSTEM AND
DISTRIBUTOR SHALL NOT BE LIABLE IN ANY MANNER TO NEWSREAL FOR FAILURES OF
THAT SYSTEM, OR FOR ANY DELAY, INACCURACY, ERROR, FAILURE OR OMISSION
RELATED TO THE PERFORMANCE OF THAT SYSTEM. HOWEVER, SUCH DELAYS, ERRORS,
OMISSIONS, OR FAILURES TO DELIVER AS TO ALL OR PART OF THE SERVICES MAY
RESULT IN THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION I.
H. LIMITATION OF LIABILITY AND INDEMNIFICATION
1. Neither party shall be liable to the other in any event for any indirect
damages, 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 herein. Each party's maximum aggregate
liability to the other for any direct damages under this Agreement will in
no event exceed the amounts received by NewsReal in the twelve (12) months
prior to the action giving rise to liability, except as set forth herein.
Notwithstanding any other provision in this Agreement to the contrary,
either party may seek, without
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limitation, indenmification or contribution from the other, in the event
that one party is required to pay any third party based on a claim that
arises in whole or in part from the conduct of the other party (and
including, without limitation, any third party claims a party is required to
indemnify the other party against pursuant to paragraph 2 below (in the case
of NewsReal) and paragraph 3 below (in the case of Distributor)).
2. In the event any third person or entity asserts any claim, suit loss,
liability, obligation, demand, damages or expenses against Distributor based
upon (i) a breach of any warranty made by NewsReal described in this
Agreement or (ii) the Services (including without limitation the
Information and Content, Links and any other software, content and other
materials used by NewsReal in the provision of the Services) or any of
NewsReal marks licensed hereunder infringing any trade name, trademark,
trade secret, service mark, copyright or patent, NewsReal hereby agrees to
defend, indemnify and hold Distributor and its parents, subsidiaries,
directors, officers, employees and shareholders harmless from and against
any and all such claims. NewsReal's obligation to indemnify Distributor
hereunder shall be conditioned upon (a) Distributor providing NewsReal with
prompt notice of any claim, which notice shall in any event be given in
enough time to allow NewsReal to defend such claim, (b) Distributor fully
cooperating with NewsReal at NewsReal's expense in defense of the claim, and
(c) Distributor allowing NewsReal to control the defense including any
potential settlement of claims, provided that Distributor shall be notified
of and have the right to approve or disapprove any settlement.
3. In the event any person or entity asserts any claim, suit, loss, liability,
obligation, demand, damages or expenses against NewsReal based upon a breach
of any warranty by Distributor described in the Agreement, Distributor
hereby agrees to defend, indemnify, and hold NewsReal and its parents,
subsidiaries, directors, officers, employees and shareholders harmless from
and against any and all such claims. Distributor's obligation to indemnify
NewsReal hereunder shall be conditioned upon (a) NewsReal providing
Distributor with prompt notice of such claims, which notice shall in any
event be given in enough time to allow Distributor to defend such claims,
(b) NewsReal fully cooperating with Distributor at Distributor's expense in
the defense of such claims, and (c) NewsReal allowing Distributor to control
the defense including any potential settlement of such claims, provided that
NewsReal shall be notified of and have the right to approve or disapprove
any settlement.
I TERM AND TERMINATION
1. This Agreement shall be effective from the date set forth in the last
sentence of the Introductory paragraph of this Agreement and shall continue
in force for an initial Term and renewal terms as set forth in SCHEDULE A-1
attached hereto.
2. 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 receipt of written notice of such default from the non-defaulting
party, or within such additional cure period as the non-defaulting party may
authorize.
3. Either party may terminate this Agreement by written notice to the other if
the other party becomes insolvent, makes a general assignment for the
benefit of creditors, 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 which is not dismissed within 120 days, 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.
4. NewsReal shall have the right to terminate this Agreement at any time on
thirty (30) days prior written notice to Distributor if the ability of
NewsReal to provide the Services is substantially impeded by the request or
actions of any court or any federal or state regulatory agency; provided
that such request or actions: (i) substantially impede the ability of
NewsReal to provide the Services for an open-ended or extended period of
time and (ii) are generally applicable to NewsReal's market sector (i.e.,
apply to all businesses in NewsReal's market sector as opposed to just
NewsReal).
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5. The rights and obligations provided by the following sections of this
Agreement shall survive its termination: section F, section I, section M,
and section N.
J. ADVERTISING AND PROMOTION
1. Each party agrees to submit to the other party for written approval all
advertising or other promotional materials, including press releases, that
use company names, service marks, or trademarks of the other party or make
reference to any understanding or relationship in this Agreement, no fewer
than seven (7) days before the proposed first use. Such approval will not be
unreasonably withheld. Unless notice of approval or disapproval is received
within five (5) days of receipt of advertising or other promotional
materials, approval will be considered granted.
2. The parties agree to create a plan to announce the launch and availability
of the Services on Distributor's Site, through separate press releases or a
joint press release as mutually agreed by the parties, and on a release date
as mutually agreed. The release date of such announcement(s) shall be prior
to or coinciding with the availability of the Services or such other date as
mutually agreed. Either party, however, may identify the other in its
published listing of available services or distributors without the written
approval specified in section J(1), following the announcement of the
Services as defined in this section.
3. Within thirty (30) days of the Effective Date of this Agreement, the parties
agree to create a plan to promote the availability of the Services on the
Distributor's Site on an ongoing basis through the use of mutually agreed
upon links, teasers, banner ads, etc. within the Distributor's Site as well
as reasonable efforts to promote the Services on external promotional
campaigns being conducted by the Distributor.
K. 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 caused by
conditions beyond its control, including but not limited to unanticipated
interruptions in services to and access from Internet service providers for
either party, fire, flood, accident, storm, acts of war, riot, government
interference, strikes or walkouts.
L. NOTICES
1. All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly delivered: (a) on the day they are delivered
personally; (b) three (3) business days after having been sent by registered
or certified mail, return receipt requested, postage and charges prepaid;
(c) one business day after deposit with a nationally recognized commercial
overnight carrier, with written verification of receipt, (d) one business
day after delivery by facsimile, with written confirmation of message
delivery, or (e) on the date sent by email, if confirmed by first-class
mail; in each case properly posted and fully prepaid to the appropriate
address set forth below.
2. Notices required to be provided by this Agreement shall be delivered to the
following addresses, or to such other address as either party hereafter
designates in writing as its notice address:
(a) If to NewsReal:
NewsReal, Inc.
Attention: Chief Financial Officer or General Counsel
66 Canal Center Plaza
Suite 700
Alexandria, VA 22314
Fax No: 703-548-9161
With a copy to:
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Wayne M. Zell, Esq.
Powell, Goldstein, Frazer & Murphy, LLP
6th Floor South
Washington, D.C. 20004
Fax. No.: (202) 624-7222
(b) If to Distributor:
General Counsel
ChamberBiz, L.L.C.
1155 15th Street, N.W.
Suite 600
Washington, D.C. 20005
Fax No.: (202) 835-1420
M. 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.
N. GENERAL TERMS AND CONDITIONS
1. 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, to incur any obligation or liability for,
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 on either party.
2. Neither party may assign this Agreement without the written consent of
the other party, provided, however, this entire Agreement may be
assigned without the other party's consent to a successor entity in the
event such successor receives substantially all of such party's assets
by merger, consolidation, or purchase, and provided that such successor
(a) is not a direct competitor of the non-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 agreement to all of the obligations
of the assigning party under this Agreement.
3. No modification, amendment, novation, or renewal of this Agreement will
be effective unless set forth in a writing signed by both parties. No
waiver of any right or obligation under this Agreement will be effective
against unless set forth in a writing signed by both parties.
4. In case 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.
5. The terms and conditions of this Agreement will be construed in
accordance with the laws of the Commonwealth of Virginia.
6. This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements or understandings with respect to the
subject matter hereof.
7. The headings used in this document are for convenience only and are not
to be construed to have legal significance.
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8. This Agreement and any amendments hereto may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Signatures are on the next page.]
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IN WITNESS WHEREOF, this Agreement has been duly executed by an authorized
officer of the undersigned parties as of the Effective Date set forth in the
introductory paragraph of this Agreement.
NEWSREAL, INC. CHAMBERBIZ, L.L.C.
By: /s/ [SIG] By: /s/ [SIG]
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Name: /s/ [SIG] Name: /s/ [SIG]
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Title: CTO Title: PRESIDENT
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Date: 28 OCT 99 Date: OCT 27/99
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