Website Agreement - Thomson Investors Network and Axxess Inc.
THIS WEBSITE AGREEMENT (Agreement) is entered into as of the 15th day of
September, 1997, ("Effective Date") by and between Thomson Investors Network
("TIN"), having an address at 1355 Piccard Drive, Rockville, MD ("TIN"), and
Axxess, Inc., a Delaware corporation having offices at 201 Park Place, Ste.
321, Altamonte Springs, FL 32701 ("Axxess").
W I T N E S S E T H :
WHEREAS, TIN is in the business of assembling and organizing information from
electronic databases and creating therefrom HTML content for distribution by
way of the Internet.
WHEREAS, TIN is the proprietor of and has the right to license the Thomson
Investors Network content described in greater detail in Paragraph 1.
WHEREAS, Axxess offers Internet-based information services through a World Wide
Web service known as "FinancialWeb" capable of receiving, storing and
disseminating content by use of the Internet based computer hardware and
computer software and Internet based data communications networks ("the
System").
WHEREAS, TIN desires to make its HTML content available to Axxess for Axxess'
use.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein. TIN
and Axxess (collectively, the Parties) hereby agree as follows:
1. SERVICES
During the term of this Agreement, TIN agrees to provide the following services
to Axxess:
TIN will provide, host and maintain a co-branded Web site containing the
following:
Stock and Fund TipSheets; 25 Stock and 25 Funds reports per registered user per
month; PortfolioTracker for both Stocks and Funds; FlashMail for both Stocks and
Funds; LiveTicker; OTC Bulletin Board quotes, News.
TIN agrees to modify the report per user per month allotment going forward,
based on the mutual analysis and agreement between TIN and FinancialWeb.
1.2. TIN will provide, host and maintain for Axxess a private labelled
version of TIN's Real Time Quotes product for $50/CPM, no minimum flight
requirements. CPM count begins on the Indices page, which is the first quotes
page. Ad banner revenue on the private labelled site belongs to Axxess.
A full flight on the sponsored version of the Real Time Quotes site, for
$15/CPM, will be discounted by 10% if Axxess commits to the flight before
October 1, 1997.
1.3. "Trade Now" buttons on the current TIN site's Funds and Company
pages linking to Axxess from TIN's Trading Room.
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2. GRANT OF LICENSE
2.1. Grant of License. Subject to the terms and conditions of this
Agreement, TIN hereby grants to Axxess a non-exclusive, non-transferable license
to distribute electronically via the Internet the HTML content for the sole
purposes of permitting Axxess's Subscribers to access the HTML content for
search and retrieval activities.
2.2. Distribution over Media. No other distribution of the HTML content
by Axxess including, but not limited to, distribution via site licensing, on-
line distribution, off-line downloading tapes, discs, CD-ROM, optical media,
hard copy formats, or print publication shall be permitted without the express
written permission of an authorized officer of TIN.
2.3. Sub-licensing. Axxess specifically agrees and understands that no
rights of dissemination by any third party and no rights to sub-license to any
third party are being granted to Axxess under this Agreement.
2.4. Right to HTML content, Copyrights and Trademarks. Except for the
limited license specifically provided herein, this Agreement shall not transfer
to Axxess any right, to or interest in, the HTML content, or in any data
included in the HTML content, or in any copyright or trademark pertaining
thereto.
3. PROPRIETARY RIGHTS
3.1. Axxess agrees to allow the System to display or print the following
notice (as such notice may be revised from time to time) whenever any user is
given access to a TIN page or report in the System:
Copyright, Thomson Investors Network, [year] All Rights Reserved
3.2. Upon the effective date of cancellation, expiration, or other
termination of this Agreement, the non-owning party shall discontinue any and
all use of the other's Marks, excepting solely for reasonable quantities of
general purpose materials (i.e., catalogs and brochures) which may be on hand at
that time and may be used until same are replaced or reprinted but not for
longer than six (6) months.
4. FEES
Axxess shall pay TIN fees owing to TIN within forty-five (45) days after the end
of each calendar month:
4.1. Licensing fee of $15,000 per month, payable as follows: $5,000 for
each of the first three months; $10,000 for each of the following three months;
$15,000 for each of the following three months; $30,000 for each of the
remaining three months.
Pay per view fees, based on fees offered TIN subscribers for this
service, will be shared equally between TIN and FinancialWeb.
5. WARRANTIES; DISCLAIMERS
5.1. TIN represents and warrants that TIN is the owner of, or has the
right to license the HTML content, as provided herein, and that, to the best of
its knowledge, the HTML content does not violate the copyrights, trademarks or
other proprietary rights of any third party.
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5.2. TIN shall promptly correct or authorize Axxess to correct any
inaccuracies in the HTML content brought to TIN's attention by Axxess, provided
that TIN agrees that such corrections are reasonable.
5.3. TIN obtains information for inclusion in the HTML content from
sources which TIN believes to be reliable, but TIN does not guarantee the
accuracy and/or completeness of the HTML content or any date included therein.
TIN MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO RESULTS TO BE OBTAINED BY ANY
PERSON OR ENTITY FROM THE USE OF THE HTML CONTENT OR ANY DATA INCLUDED THEREIN.
TIN MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF USE WITH RESPECT TO THE HTML CONTENT OR ANY DATA INCLUDED
THEREIN. AXXESS AGREES, AND SHALL REQUIRE EACH SUBSCRIBER TO AGREE, THAT IN NO
EVENT WILL TIN BE LIABLE FOR THE RESULTS OF AXXESS'S OR ANY SUBSCRIBER'S USE OF
THE HTML CONTENT, FOR ITS OR THEIR INABILITY OR FAILURE TO CONDUCT ITS OR THEIR
BUSINESS, OR FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES. AXXESS FURTHER
AGREES THAT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF TIN FOR ANY
CLAIMS, LOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED
HEREUNDER. WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE TOTAL
AMOUNT PAID BY AXXESS TO TIN DURING THE PRECEDING TWELVE- (12-) MONTH PERIOD,
EVEN IF TIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIM, LOSS,
OR DAMAGE. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN
DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER
REMEDIES.
Neither party shall have any liability for lost profits, indirect,
special or consequential damages.
5.5. TIN acknowledges and agrees that it will not:
(i) recommend or endorse specific securities;
(ii) take part (other than by routing messages) in the financial
services offered by Axxess, including the opening, maintenance,
administration, or closing of accounts, the solicitation of trades, or
provide specialized assistance in resolving problems, discrepancies or
disputes involving brokerage accounts or related securities
transactions;
(iii) answer questions or engage in negotiations involving
Axxess brokerage accounts or related securities transactions and will
direct all such inquiries to Axxess customer service support personnel;
(iv) accept orders, select among broker-dealers or route orders
for customers to markets for execution;
(v) handle customer funds or securities related to securities
orders transmitted to Axxess or effect clearance or settlement of
customer trades; or
(vi) extend credit to any customer for the purpose of purchasing
securities through, or carrying securities with, Axxess.
5.6. The provisions of this Paragraph 5 shall survive any termination of
this Agreement.
6. FORCE MAJEURE
Neither Axxess nor TIN shall bear any responsibility or liability for any losses
arising out of any delay
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in or interruption of their performance of their obligations under this
Agreement due to any act of God, act of governmental authority, act of the
public enemy or due to war, riot, fire, flood, civil commotion, insurrection,
labor difficulty (including, without limitation, any strike or other work
stoppage or slowdown) severe or adverse weather condition or other cause beyond
the reasonable control of the party so affected.
7. TERMINATION
The term of this Agreement shall commence as of the date hereof and
shall terminate one (1) year from the Commencement Date. Thereafter, this
Agreement shall automatically renew each year for successive one (1) year terms,
unless Axxess notifies TIN in writing of its decision not to renew at least
thirty (30) days prior to the end of any such one year term, or unless TIN
notifies Axxess in writing of its decision not to renew at least ninety (90)
days prior to the end of any one (1) year renewal term after the first renewal
term.
7.1. In the case of material breach by either party of any of the terms
of this Agreement, the party not in breach may terminate this Agreement by
giving thirty (30) days' written notice if the breaching party shall not have
corrected such material breach within such thirty (30) day period.
Either party hereto may terminate this Agreement immediately by giving
written notice if a petition shall be filed against the other party under any
provision of the Bankruptcy Code or amendments thereto or if a receiver shall be
appointed for the other party or any of its property and said petition or
appointment shall remain un-vacated for a period of thirty (30) days, or if the
other party shall file a petition under any provision of the Bankruptcy Code or
amendments thereto or file any petition or action under any reorganization,
insolvency or debt moratorium law or any other law or laws for the relief of or
relating to debtors, or if the other party takes any corporate action to
initiate any of the foregoing, or if a writ of attachment or injunction shall be
issued against the other party or any of its property such that either will not
be able to continue its normal operations as contemplated under this Agreement
and said attachment or injunction shall not be removed, bonded or vacated within
thirty (30) days, or if the other party shall be unable to admit in writing that
it is able to pay its debts as they mature, become insolvent, however evidenced,
commit an act of bankruptcy, make an assignment for the benefit of creditors,
appoint a committee of creditors or liquidating agent, or make an offer of
composition or bulk sale or if the other party shall be dissolved or apply for
dissolution or cease to do business, other than in connection with a corporate
reorganization.
8. INDEMNIFICATION
8.1. TIN shall indemnify Axxess and hold it harmless from any and all
actions, injuries, damages and liabilities, including reasonable attorneys'
fees, arising out of (i) an alleged infringement of the copyrights or trademarks
of any person resulting from Axxess's authorized distribution of the HTML
content, or (ii) a breach of TIN's representations and warranties of this
Agreement.
8.2. Axxess shall indemnify TIN and hold it harmless from any and all
actions, injuries, damages and liabilities, including reasonable attorneys'
fees, arising out of (i) an alleged infringement of the copyrights or trademarks
of any person with respect to the System; or (ii) a breach of Axxess's
representations and warranties of this Agreement.
Conditions Precedent. The obligations of either party to provide
indemnification under this Agreement shall be contingent upon the party seeking
indemnification (i) providing the indemnifying party with prompt written notice
of any claim for which indemnification is sought, (ii) cooperating fully with
the indemnifying party and (iii) allowing the indemnifying party to control the
defense and settlement of such claim.
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8.4. Axxess will indemnify TIN for any claim arising in connection with
the activities referred to in Section 5.5.
9. INJUNCTIVE RELIEF
In the event of a breach of threatened breach of any of the provisions
of this Agreement by Axxess, or any employee or representative of Axxess, Axxess
acknowledges that TIN shall be entitled to seek preliminary and permanent
injunctive relief to enforce the provisions hereof, but nothing herein shall
preclude TIN from pursuing any action or other remedy for any breach or
threatened breach of this Agreement, all of which shall be cumulative.
10. CONFIDENTIALITY
10.1. Axxess shall treat as strictly confidential and shall not disclose
or transmit to any third parties the specific terms of this Agreement, or any
documentation, contents thereof, or other proprietary or confidential materials
provided to Axxess during the term of this Agreement. Information shall not be
deemed as "proprietary" or "confidential" which (i) is or becomes publicly known
through no wrongful act of the Axxess; (ii) is rightfully received from a third
party without restriction and without breach of this Agreement; (iii) is
developed or received independently by Axxess; or (iv) is approved for release
by written authorization by TIN.
10.2. TIN shall treat as strictly confidential and shall not disclose or
transmit to any third parties any documentation, contents thereof, or other
proprietary or confidential materials provided to TIN during the term of this
Agreement. Information shall not be deemed "proprietary" or "confidential" which
(i) is or becomes publicly known through no wrongful act of TIN; (ii) is
rightfully received from a third party without restriction and without breach of
this Agreement; (iii) is developed or received independently by TIN; or (iv) is
approved for release by written authorization by Axxess.
11. OTHER MATTERS
11.1. This Agreement shall be binding upon and shall inure to the
benefit of the undersigned parties and their respective successors and permitted
assigns. No assignment of this Agreement shall be made by either party without
the prior written consent of the other party, except that either party may
assign this Agreement to any company in control of, controlled by or under
common control with such party. Except in the case of transfers to affiliated
companies, any change in the effective voting control of either party or any
merger into or acquisition by any third party of either party hereto or the sale
of all or substantially all of the assets of either party shall be deemed an
attempted assignment requiring the prior written consent of the other party.
11.2. This Agreement constitutes the entire agreement of the parties
hereto with respect to its subject matter and may be amended or modified only in
writing and signed by duly authorized officers of both parties. This Agreement
supersedes all previous agreements between the parties. There are no oral or
written collateral representations, agreements, or understandings except as
provided herein.
11.3. No breach, default or threatened breach of this Agreement by
either party shall relieve the other party of its obligations or liabilities
under this Agreement with respect to the protection of the property or
proprietary nature of any property which is the subject of this Agreement.
11.4. If any provision of this Agreement shall finally be held illegal
or unenforceable, such provisions shall be severed and the remainder of the
Agreement shall remain in full force and effect unless the business purpose of
the Agreement is substantially frustrated thereby.
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11.5. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any other breach of the same or other provision of this
Agreement and no waiver shall be effective unless made in writing.
11.6. All notices and other communications under this Agreement shall be
in writing and shall be deemed given when delivered by hand or by confirmed
facsimile transmission or five (5) days after mailing, postage prepaid, by
register or certified mail, return receipt requested, to the below address or
such other addresses as either party shall specify in a written notice to the
other.
Notice to TIN: Thomson Investors Network
1355 Piccard Drive
Rockville, MD 20850
Attention: Edward F. Murphy
Notice to Axxess: Axxess, Inc.
201 Park Place, Suite 321
Altamonte Springs, FL 32701
Attention: Kevin A. Lichtman
11.7. Headings used in this Agreement are for reference purposes only
and shall not be deemed a part of this Agreement.
11.8. This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above.
Axxess, Inc.
By: [Signature Appears Here]
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Title: President
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Thomson Investors Network
By:
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Title:
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