Content Licensing Agreement - Axxess Inc. and Nathaniel Cohen
[LETTERHEAD OF AXXESS MEDIA GROUP, INC. APPEARS HERE]
CONTENT LICENSING AGREEMENT
This Agreement between AXXESS, INC., a Nevada Corporation with its
principal place of business at 201 Park Place, suite 321, Altamonte Springs, FL
32701 ("AXXS"), and Nathaniel Cohen, an individual whose principal place of
residence is at 1723 19th Street, NW, Washington, D.C. 20009 ("Mr. COHEN") is
entered into on December 23, 1997.
1. Subject to the terms and conditions of this agreement, MR. COHEN
hereby grants to AXXS a license to install, market, and distribute over the
World Wide Web editorial content developed by MR. COHEN and known as the "Bear
Tracker" through AXXS's web sites, as described in Sections 2(f) and 2(g) below.
Subject to such license, MR. COHEN retains all right, title and interest to the
Bear Tracker content. The Bear Tracker may be utilized in part or in whole by
the AXXS web site and AXXS may edit any such content so long as it does not
change the meaning of facts or opinions of such content materially.
(a) In connection with the Bear Tracker content MR. COHEN will endeavor
to provide AXXS:
(i) on monthly basis, one article of approximately 1500-2500 words
in length describing one or more securities listed on a U.S. Stock
exchange which MR. COHEN identifies as a potential short sale and hereby
known as the "Short Sale of the Month". In regards to the "Short Sale of
the Month" article, MR. COHEN will provide to AXXS a finished article no
later than the 5th business day of each calendar month for publication
by AXXS on or before the 15th day of said month, and:
(ii) from time to time, additional articles as mutually agreed and
considered complementary to the Bear Tracker content.
(b) MR. COHEN shall have no liability for delays or non-performance
occasioned by causes beyond his control, including but not limited to acts of
God, fires, inability to obtain materials, strikes or other labor actions,
breakdown of equipment, delays or shutdowns of carriers or suppliers, and
government acts or regulations.
2. MR. COHEN represents and warrants to AXXS that:
(a) The Bear Tracker content as delivered to AXXS does not and will not
infringe upon or violate any patent, copyright, trade secret or any other
proprietary rights of any third party. In the event of any claim, suit or action
of any third party against AXXS arising out of MR. COHEN's alleged breach of the
foregoing representation and warranty, AXXS shall promptly notify MR. COHEN,
and, unless such claim, suit or action results from any editing of the Bear
Tracker content by AXXS pursuant to Section 1 or any other action by AXXS,
(i) MR. COHEN shall defend such claim, suit or action in AXXS's name
but at MR. COHEN's expense under MR. COHEN's control, and
(ii) MR. COHEN shall indemnify and hold harmless AXXS against any
loss, cost or damage, expense or liability arising out of such claim,
suit or action (including litigation costs and reasonable attorney's
fees) whether or not such claim, become, or action is successful. Should
any material and/or information constituting the Bear Tracker content
become, or in MR. COHEN's opinion be likely to become, the subject of a
claim for infringement, MR. COHEN may authorize the continued use of,
replacement, removal, or modification of such material and/or
information to render it non-infringing.
(b) AXXS represents and warrants to MR. COHEN that none of the
reformatting or editing of Bear Tracker content pursuant to Section 1 nor the
means of presentation on or through the
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AXXS service will cause the Bear Tracker content to infringe upon or violate any
patent, copyright, trade secret or any other proprietary rights of any third
party, or otherwise subject MR. COHEN to liability. In the event of any claim,
suit or action by any third party against MR. COHEN arising out of AXXS's
alleged breach of the foregoing representation and warranty, MR. COHEN shall
promptly notify AXXS, and AXXS shall defend such claim, suit or action in MR.
COHEN's name but at AXXS's expense under AXXS's control. AXXS shall indemnify
and hold harmless MR. COHEN against any loss, cost or damage, expense or
liability arising out of such claim, suit or action (including litigation costs
and reasonable attorneys fees) whether or not such claim, suit or action is
successful.
(c) MR. COHEN bases his content on sources believed by himself to be
reliable and will take reasonable steps to ensure that the data contained in the
Bear Tracker content is accurate and timely. However, MR. COHEN does not
represent, warrant, or guarantee such completeness, accuracy or timeliness, and
shall have no liability of any kind whatsoever to AXXS, to any of AXXS's
customers, or to any other party, on account of any incompleteness of,
inaccuracies in or untimeliness of the Bear Tracker content provided hereunder,
or for any delay in reporting such content. MR. COHEN expressly disclaims all
warranties of fitness of the Bear Tracker content or computations and analyses
thereof for a particular purpose or use.
(d) AXXS shall insure that the Bear Tracker content displayed in web pages,
individual reports and elsewhere on the AXXS web site shall be clearly
identified as provided by MR. COHEN. AXXS shall ensure that the following
disclaimer shall be displayed at the end of each "Short Sale of the Month"
article:
While the BearTracker strives to present accurate and useful information, we
make no guarantee of accuracy or completeness. All information and opinion
expressed herein is subject to change without notice. Opinions and
recommendations contained herein should not be construed as investment advice.
Under no circumstances does the information in this column represent a
recommendation to buy or sell stocks. Do not assume that any recommendations,
insights, charts, theories or philosophies will ensure profitable investment.
The information contained herein is for personal use only. Any redistribution of
this information is strictly prohibited.
In addition, AXXS shall include in its www.stockdetective.com service, at the
request of MR. COHEN, a hyperlink to MR. COHEN's web site.
(e) Except for the indemnity provided in Sections 2(a) and 2(b), neither
party shall be liable to the other for more than the aggregate amounts payable
to MR. COHEN by AXXS pursuant to Section 4 of this Agreement.
(f) MR. COHEN grants AXXS the right to use the domain name BearTracker.com
for the purpose of hosting BearTracker content for the duration of this
agreement. MR. COHEN grants AXXS the right to host BearTracker.com on the server
of AXXS's choice for the purpose of hosting BearTracker content for the duration
of this agreement. As such, MR. COHEN will provide authorization to InterNIC to
recognize AXXS as the administrative, technical and billing contracts for the
purpose of domain name registration records of the BearTracker.com address.
(g) AXXS will host BearTracker content at the BearTracker.com address for
the duration of this agreement. AXXS will provide a link to the BearTracker
content on the FinancialWeb main page for the duration of this agreement. For
the duration of this agreement AXXS will provide on the top half of the
www.stockdetective.com site a link to the BearTracker content, such link
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containing the Bear Tracker name and logo.
(h) AXXS will retain authority over all navigation elements, links, graphic
images and advertising displayed on the pages containing the Beartracker content
at the BearTracker.com address including the right to display the AXXS logo or
other logos of publications owned by AXXS. In connection with the sale of
advertising or other sponsorship of content or pages comprising the
BearTracker.com address, AXXS will retain, throughout the duration of this
agreement, exclusive authority to solicit, collect or approve of any such sale.
3. The purpose of providing the Bear Tracker content to AXXS is to disseminate
the Bear Tracker content over the World Wide Web in the markets served by AXXS.
Any other use of the Bear Tracker content by AXXS not expressly authorized
herein must be approved in advance in writing by MR. COHEN at his sole
discretion.
4. AXXS will perform all necessary accounting, billing and collection for its
use of the Bear Tracker content.
(a) For the license hereby granted to AXXS by MR. COHEN to offer the Bear
Tracker content through the AXXS web site, AXXS shall pay to MR. COHEN a monthly
royalty fee calculated as follows: a monthly fee which shall be the greater of:
(i) 50% of the net advertising revenue realized by any page that
contains the Bear Tracker content (net advertising revenue will be the gross
receipts of any advertisements contained on any page of Bear Tracker content,
less agency fees or commissions), or
(ii) $100 per month
(b) Royalty payments will begin with the first month in which the Bear
Tracker content is made available by MR. COHEN to AXXS.
(c) AXXS shall pay such royalties to MR. COHEN in full on or before the
fifteenth (15th) day after the month in which the royalties shall accrue, and if
any payment due hereunder is not received by MR. COHEN within that period, MR.
COHEN shall have the option to discontinue providing the Bear Tracker content
and of terminating its Agreement should such payment not to be received within
30 days after written notice to AXXS. Each royalty payment by AXXS for use of
the Bear Tracker content shall be accompanied by a royalty statement showing
detailed computation (including agency and advertising sales commission) of
monthly royalty fees due MR. COHEN, in those months when such fees exceed $100.
AXXS also agrees to provide MR. COHEN with actual monthly figures on the number
of "page views" of the Bear Tracker content on its service.
(d) At MR. COHEN's option an no more than once per year, an independent
auditor selected by MR. COHEN may inspect, audit and copy, during regular
business hours and with advance notice of at least five (5) days, those records
of AXXS that specifically relate to the usage of the Bear Tracker content
hereunder, for the purpose of verifying the accuracy of the royalty payments
made to MR. COHEN and the accuracy of AXXS's reports specified in Paragraph
4(c). Such right of inspection shall exist during the terms of this agreement
and for twelve (12) months thereafter. MR. COHEN shall pay the fees of any
auditor selected pursuant to this subparagraph, unless the results of the audit
show a deficiency of more than five percent (5%) in royalty payments made to MR.
COHEN hereunder, in which case, in addition to the deficiency, which shall be
due MR. COHEN in any event, AXXS shall pay the costs of such audit.
5. MR. COHEN agrees to refrain from trading in the security profiled as the
"Short Sale of the Month" during the period beginning two weeks prior to the
date of first publication of the Bear Tracker content
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containing that profile and ending four weeks after that date.
6. AXXS agrees that its user agreements do and will contain provisions
prohibiting its customers assessing the Bear Tracker content for resale and
redistribution of the data obtained from the AXXS service (which will include
the Bear Tracker content) in any form. AXXS represents and warrants to MR. COHEN
that it assumes all responsibility for the accuracy, integrity and support of
its software which utilizes the Bear Tracker content. Specific references by
AXXS that the Bear Tracker content has any predicative value for the purpose of
enhancing investment returns are strictly prohibited.
7. AXXS represents and warrants that the Bear Tracker content supplied hereunder
shall be used and released from its data system only in accordance with the
terms of this Agreement and in furtherance thereof.
8. Any use of the names or marks of one party to this agreement by the other
party to this agreement in connection with promotional activities, advertising,
or other use outside the ordinary course of business in performing this
Agreement shall be subject to the prior written approval of the other party.
Notwithstanding anything contained herein to the contrary, both parties shall
have the right to disclose that it has entered into this Agreement.
9. AXXS acknowledges that the Bear Tracker content in the form delivered
represents confidential proprietary business information and that its
utilization of the Bear Tracker content is strictly limited in accordance with
this Agreement. MR. COHEN acknowledges that any AXXS software used for the
access, delivery and manipulation of Bear Tracker content represents
confidential proprietary business information and utilization of such software
by MR. COHEN or any of its employees or agents is strictly limited in accordance
with the terms of this Agreement.
10. AXXS acknowledges that the Bear Tracker content consist of factual
information gathered, selected, analyzed and arranged by MR. COHEN by special
methods and at considerable expense; that the Bear Tracker name, trade marks and
other descriptive headings associated herewith, are and at all times shall be,
the sole property of MR. COHEN.
11. AXXS expressly recognizes and acknowledges that its covenants set forth in
this Agreement are reasonable requirements by MR. COHEN in the protection of
substantial business interests. AXXS further acknowledges that the remedy at law
for breach of any of its undertaking in said paragraphs would be inadequate and
that, in addition to all other remedies provided by law, MR. COHEN shall be
entitled to injunctive relief restraining any breach or threatened breach.
AXXS's liability for breach of this Assignment and for sums due to MR. COHEN
hereunder shall survive any termination hereof. Except for amounts payable to
third parties pursuant to the indemnification provisions of Section 2 hereof,
neither MR. COHEN nor AXXS shall have any liability for any special, indirect,
incidental or consequential damages even if advised of the possibility thereof.
The foregoing limitation of liability shall apply regardless of the cause of
action under which such damages are sought, including, without limitation,
breach of contract, negligence, or other tort.
12. (a) Subject to the terms and conditions described below, the term of this
Agreement shall be for a period of twenty four (24) months from the effective
date of this Agreement, specified in Paragraph 20, unless sooner terminated
pursuant to Section 13. Notwithstanding the
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termination or expiration of this Agreement, the right and obligations under
Section 3, 6 through 12, and 14 of this Agreement shall survive and continue and
bind the parties and their legal representatives and permitted assigns.
9b) Promptly following termination or expiration of this Agreement for any
reason, AXXS shall use reasonable efforts to purge all Bear Tracker content or
any other information from MR. COHEN may have been provided, together with all
copies thereof, whether in printed or machine readable from , to MR. COHEN in
writing that the requirements of this paragraph have been met within ten (10)
days of termination.
13. Either MR. COHEN or AXXS may terminate this Agreement and the license
conferred hereunder as follows:
(i) MR. COHEN may terminate as specified in Paragraph 4.
(ii) Either party may terminate if the other breaches any other term or
covenant of this Agreement, and such breach continues unremedied for sixty (60)
days after written notice to the party in breach by the other party. Either
party may seek liability for breach by the other party.
(iii) MR. COHEN may terminate with thirty (30) days' prior written notice if
the monthly royalty payment specified in Paragraph 4 for the thirteenth or any
succeeding month after the effective date of this agreement, specified in
Paragraph 20, is less than $500 per month.
14. All marketing promotional references to the Bear Tracker content to be used
by AXXS in its efforts to market AXXS's service involving use of the Bear
Tracker content shall be subject to the prior written approval of MR. COHEN. In
the event that MR. COHEN advertises its connection with AXXS's service, or in
the event MR. COHEN or any MR. COHEN agent promotes the availability of the Bear
Tracker content on AXXS's service, AXXS shall have the right to prior approval
of all materials used in such efforts. If the approving party does not respond
within five (5) days, the other party may consider the materials approved.
15. All notices, payments and other communications permitted or required by
this Agreement shall be in writing addressed as follows:
(a) MR. NATHANIEL COHEN
1723 19th STREET NW
WASHINGTON, DC 20009
(b) AXXESS, INC.
PARK PLACE, #321
ALTAMONTE SPRINGS, FLORIDA 32701
ATTN: KEVIN LICHTMAN, PRESIDENT
AXXS shall send a copy (which shall not constitute notice) of all communications
to MR. COHEN to MR. COHEN's e-mail address at NatCohen@writeme.com to the extent
reasonably prescribed above. If sent by certified or registered mail, notices
shall be effective three business days after posting; otherwise notices shall be
effective upon receipt by the other party.
16. This Agreement represents the entire understanding between AXXS and
MR. COHEN as to the subject matter hereof. Any amendments or additions hereto
shall be only in writing executed by
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both parties.
17. This Agreement is made in, and shall be governed by and construed in
accordance with the laws of, the State of Florida.
18. No rights or duties hereunder may be transferred or assigned by either party
in any manner without the written approval of the other party in its sole
discretion, other than to a subsidiary, parent or other affiliate of the
transferring of assigning party. MR. COHEN may not transfer or assign this
Agreement without the consent of AXXS, which shall not be unreasonably withheld.
19. No waiver of any breach of any term or condition herein shall be deemed to
be a waiver of any subsequent breach of any term or condition. Failure or delay
by either party in exercising any right or authority hereunder shall not be
construed as a waiver of such right or authority.
20. This Agreement shall become effective on February 1, 1998 or the date it is
signed by the last party to execute the Agreement, as shown below, whichever is
later.
21. Any subscriber list hereafter maintained by AXXS of viewers or subscribers
to Bear Tracker material shall be provided to MR. COHEN in Excel 5.0 format both
(i) within seven (7) days of written request by MR. COHEN, and (ii)
semi-annually.
22. The parties to this Agreement are independent contractors. Neither party is
an agent, representative or partner of the other. Neither party will have any
right or authority to enter into any agreement for or on behalf of the other
party.
Acknowledged:
/s/ Nathaniel Cohen 12/30/1997
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NATHANIEL COHEN date
/s/ [Signature Appears Here] 12/23/1992
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AXXESS, INC. date