License Agreement - CBS Broadcasting Inc. and MarketWatch.com LLC
AMENDED AND RESTATED LICENSE AGREEMENT
This AGREEMENT made on October __, 1998, and effective as of the 29th
day of October, 1997, by and between CBS Broadcasting, Inc. (formerly known as
CBS Inc.), 51 West 52nd Street, New York, New York 10019 (herein called "CBS"),
and Marketwatch.Com, LLC, 825 Battery St., San Francisco, CA 94111 (herein
called "MarketWatch") hereby amends and restates the License Agreement entered
into between the parties as of October 29, 1997 (that was attached to and formed
a part of the CONTRIBUTION AGREEMENT, dated as of October 29, 1997, between CBS,
INC., DATA BROADCASTING CORPORATION ("DBC") and MARKETWATCH.COM,LLC).
1. DEFINITIONS
1.1 "CBS Content Pages" means pages of the MarketWatch Site that include
any CBS News Content.
1.2 "CBS License Guidelines and Restrictions" or "CBS License
Guidelines" means the clearance, form, format and use restrictions and
procedures set forth in Exhibit 2 attached hereto which MarketWatch shall adhere
to in its use of CBS News Content, CBS Marks, MarketWatch Site Content on the
MarketWatch Site.
1.3 "CBS Marks" means the following CBS registered trademarks, as shown
in Exhibit 1 attached hereto: CBS(R) and the CBS "Eye" design.
1.4 "CBS News Content" means any current news Television Content
(excluding, for avoidance of doubt, any archival Content or television/radio
program outtakes and the content to be supplied by MarketWatch to CBS in
connection with the Broadcast Personnel Agreement to be entered into between the
parties herewith) related to business and financial issues and contained in CBS
News' regularly scheduled hard news broadcasts, scheduled special events
coverage and unscheduled live breaking news coverage which CBS has the right to
license for use on the Internet. (Nothing herein shall be construed to grant
MarketWatch any rights to CBS Radio Content or any Content of CBS Cable [i.e.,
Content contained in coverage or broadcasts of the CBS Radio division of CBS
and/or CBS Cable]).
1.5 "Content" means text, graphics, photographs, video, audio and/or
other data or information, including, without limitation, Television Content,
relating to any subject.
1.6 "Core Business" means an Internet service or Web site that (i)
provides information or services of a financial nature, including without
limitation the delivery of financial news or real-time or delayed stock market
quotations to consumers, or (ii) uses the CBS Marks.
1.7 "Date and Time Network Guidelines" means the guidelines issued by
CBS which restrict any advertisement from disclosing the date and time of the
program or event advertised.
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1.8 "Intellectual Property Rights" means all inventions, discoveries,
trademarks, patents, trade names, copyrights, moral rights, jingles, know-how,
intellectual property, software, shop rights, licenses, developments, research
data, designs, technology, trade secrets, test procedures, processes, route
lists, computer programs, computer discs, computer tapes, literature, reports
and other confidential information, intellectual and similar intangible property
rights, whether or not patentable or copyrightable (or otherwise subject to
legally enforceable restrictions or protections against unauthorized third party
usage), and any and all applications for, registrations of and extensions,
divisions, renewals and reissuance of, any of the foregoing, and rights therein,
including without limitation (a) rights under any royalty or licensing
agreements, and (b) programming and programming rights, whether on film, tape or
any other medium.
1.9 "Internet" means global network of interconnected computer networks,
each using the Transmission Control Protocol/Internet Protocol and/or such other
standard network interconnection protocols as may be adopted from time to time,
which is used to transmit Content that is directly or indirectly delivered to a
computer or other digital electronic device for display to an end-user, whether
such Content is delivered through on-line browsers, off-line browsers, or
through "push" technology, electronic mail, broadband distribution, satellite,
wireless or otherwise, and any subset of such global network, such as
"intranets."
1.10 "Internet Site" means any site or service delivering Content on or
through the Internet, including, without limitation, any on-line service such as
America Online, Compuserve, Prodigy and the Microsoft Network.
1.11 "MarketWatch Content" means any Content owned or controlled by
MarketWatch other than CBS Property (as defined in subparagraph 7.1(a)).
1.12 "MarketWatch Site" means the Internet Web sites owned or controlled
by MarketWatch as of the effective date of this Agreement that provide stock
quotes, personal finance information and business, stock stories and that are
accessed via (i) the top-level domains Marketwatch.com and Stockchat.com, (ii)
the URLs http://cbs.marketwatch.newsalert.com,
http://www.marketwatch.newsalert.com and http://www.marketwatchrt.newsalert.com
(or any successor URLs), (iii) the URL http://www.dbc.com (so long as
www.dbc.com serves only as an entry point to the foregoing URLs); and (iv) any
Mirror Site.
1.13 "Mirror Site" means an Internet Site which contains the exact form
and content as the MarketWatch Site which (a) is located at a geographic
location distinct from the MarketWatch Site and (b) is created for the purpose
of improving the performance of and accessibility to the MarketWatch Site. For
purposes of clarification, a mirror site may be used only in accordance with the
preceding purposes.
1.14 "Person" means any natural person, legal entity, or other organized
group of persons or entities. (All pronouns whether personal or impersonal,
which refer to Person include natural persons and other Persons.)
1.15 "Television Content" consists of Content broadcast on television.
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2. LICENSE
2.1 CBS grants to MarketWatch, during the term of this Agreement and
subject to the terms and conditions contained herein, the non-exclusive right
and license:
(a) to use, copy, publicly display, edit, revise, perform,
distribute or otherwise make available on or through the MarketWatch Site, the
CBS News Content, to the extent CBS has the right to so license such Content.
CBS agrees that users of the MarketWatch Site may view, access, retrieve, copy
and print only for noncommercial private use any CBS News Content distributed
hereunder on the MarketWatch Site.
(b) to use the CBS Marks, together with the MARKETWATCH mark, in
connection with MarketWatch's advertising, promotion and operation of the
MarketWatch Site.
(c) to use the CBS Marks in connection with identifying,
marketing and promoting MarketWatch Content to third-parties, provided that such
MarketWatch Content is also branded with the MARKETWATCH mark.
Nothing in this Agreement grants MarketWatch ownership or other rights in or to
the CBS News Content or the CBS Marks, except in accordance and to the extent of
this license.
2.2 MarketWatch's exercise of the rights granted herein shall conform to
the restrictions or requirements set forth in the CBS License Guidelines
(attached hereto as Exhibit 2), as such License Guidelines may be amended or
revised from time to time by CBS, in its reasonable discretion, to reflect any
changes in the business, practice, procedures or policies of CBS.
2.3 (a) MarketWatch shall have access to all CBS News Content, and,
subject to the conditions stated in the next sentence, CBS shall deliver, at
times reasonably requested by MarketWatch, all CBS News Content in a mutually
agreed form and format (including, for avoidance of doubt, video and text, to
the extent reasonably possible). CBS shall have the right to refuse to deliver
to MarketWatch any CBS News Content if, in CBS's sole discretion, the CBS News
Content or the use contemplated, conflicts with, interferes with or is
detrimental to CBS's interests, reputation or business or might subject CBS to
unfavorable regulatory action, violate any law, infringe the rights of any
person, or subject CBS to liability for any reason.
(b) MarketWatch shall be responsible for and shall reimburse CBS
for all actual costs and expenses, above and beyond those expenses normally
incurred by CBS in the ordinary course of business, which are incurred by CBS in
preparing and/or delivering the CBS News Content in the desired form and format,
and which are agreed to in advance by MarketWatch. Any amounts to be paid under
this paragraph 2.3(b) shall be due and payable within 30 days of receipt of an
invoice relating to such amounts. Those amounts will also be recoupable from all
monies becoming payable to MarketWatch under this or any other Agreement or
otherwise to the extent to which they have not actually been paid or reimbursed
as provided for in the preceding sentence.
2.4 All Content which MarketWatch intends to use on the MarketWatch Site
shall consist of business or financial-related content and other content deemed
appropriate by CBS. During the term of this Agreement, any Content displayed on
the MarketWatch Site shall be
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subject to any restrictions or requirements set forth in the CBS License
Guidelines. CBS shall have the right to demand the withdrawal from the
MarketWatch Site of any Content which in CBS's sole opinion conflicts with,
interferes with or is detrimental to CBS's interests, reputation or business or
which might subject CBS to unfavorable regulatory action, violate any law,
infringe the rights of any Person, or subject CBS to liability for any reason.
Upon notice from CBS to withdraw the Content concerned, MarketWatch shall cease
using any such Content on the MarketWatch Site as soon as commercially and
technically feasible, but in any event within three (3) days after the date of
CBS's notice. If MarketWatch cannot cease using such Content within twenty-four
(24) hours, MarketWatch will so notify CBS detailing why the cessation cannot be
effected within twenty-four (24) hours and when the cessation will be effected,
subject to the terms of the preceding sentence.
2.5 (a) During the term of this Agreement, MarketWatch shall consult
with CBS regarding the general (visual and editorial) presentation of the CBS
News Content on the MarketWatch Site; provided, however, that in the event the
parties cannot agree in any instance, then CBS's decision will be conclusive. In
no event shall MarketWatch distort or misrepresent any material contained in the
CBS News Content. No CBS News Content shall be used/displayed out of context;
MarketWatch shall have the right (subject to CBS License Guidelines) to edit and
revise the CBS News Content to meet spatial requirements provided that any such
edits or revisions shall not distort or misrepresent any events, opinions or
statements contained in the CBS News Content received by MarketWatch.
(b) MarketWatch shall be solely responsible for the engineering,
production, maintenance and monitoring of all CBS News Content which MarketWatch
makes available on the MarketWatch Site.
(c) Subject to any restrictions or requirements in the CBS
License Guidelines, MarketWatch shall have the right, but not the obligation, to
correct any errors, omissions and/or inaccuracies in the transmission or
transcription of the CBS News Content identified by MarketWatch or reported to
MarketWatch by MarketWatch Site users.
(d) Notwithstanding anything to the contrary contained herein,
upon notice from CBS, MarketWatch shall immediately cease using any CBS News
Content which (i) in CBS's sole opinion, conflicts, interferes with or is
detrimental to CBS's reputation or business or (ii) becomes subject to any third
party restriction or claim which would prohibit, limit or restrict the use
thereof on the Internet.
2.6 In the event that MarketWatch desires to use any music contained in
any CBS News Content on the MarketWatch Site, prior to such use, MarketWatch
shall (i) report to the applicable music rights society on behalf of CBS, all
titles and publishers of all such music and, (ii) secure, at its sole cost and
expense, and pay for all performing, duplication and/or recording rights
licenses, if any, necessary for the use of such music on the Internet. CBS shall
endeavor to deliver to MarketWatch accurate music cue sheets for all such music.
2.7 Upon expiration or termination of this Agreement, MarketWatch shall
cease all use of the CBS Marks as provided in Section 4.4 below, and, except as
otherwise provided in this paragraph, any CBS News Content or Content derived
therefrom in connection with the operation of the MarketWatch Site or otherwise.
In connection with the above, MarketWatch
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shall immediately remove or erase the CBS News Content (and any Content derived
therefrom) and CBS Marks from the MarketWatch Site, and from any advertising and
promotional materials, as soon as commercially and technically practicable,
given customary Internet business practices, but in no event shall any such
material remain on the MarketWatch Site more than five (5) days after expiration
or CBS's notice of termination, as applicable, and at CBS's request, MarketWatch
shall furnish CBS with certified evidence of such removal or erasure
satisfactory to CBS.
3. TERM
3.1 The term of this Agreement shall begin on October 29, 1997 and shall
continue in full force and effect for a period of five (5) consecutive years,
through and including October 29, 2002, unless it is terminated earlier in
accordance with the terms and conditions contained herein.
4. TRADEMARKS
4.1 (a) CBS shall deliver to MarketWatch a copy of each CBS Mark in the
form in which such Mark may be used by MarketWatch hereunder. Both parties
acknowledge that the CBS Marks are trademarks exclusively owned or controlled by
CBS Broadcasting Inc. and that all uses by MarketWatch of such CBS Marks shall
inure to CBS's benefit. MarketWatch shall maintain CBS quality standards with
respect to its use of the CBS Marks, and otherwise use the CBS Marks subject to
any reasonable restrictions or requirements disclosed by CBS (including any
requirements/restrictions delineated in the CBS License Guidelines).
(b) In the event that during the term of this Agreement
MarketWatch shall create any proprietary right in any CBS Marks, as a result of
the exercise by MarketWatch of any right granted to it hereunder, such
proprietary right shall immediately vest in CBS and MarketWatch shall be
authorized to use such new proprietary right as though same had specifically
been included in this Agreement.
4.2 (a) MarketWatch shall not file any application in any country to
register a trademark which contains "CBS," the CBS "eye" or any other trademark
which is the same as, similar to, or misleading with respect to the CBS Marks or
any other CBS trademark. If any application for registration is filed in any
country by MarketWatch in contravention of this paragraph 4.2, CBS shall have
the right to take appropriate action against MarketWatch, including seeking
injunctive relief, to prohibit or otherwise restrain MarketWatch's use of the
infringement party's use of the infringing mark.
(b) MarketWatch shall furnish CBS proofs of all materials
bearing any CBS Marks (including, without limitation, advertising and publicity
materials). MarketWatch will not authorize full scale production of any such
material until after obtaining CBS's written approval in each instance. Any
changes in such material shall also be subject to CBS's prior written approval.
Approval by CBS shall not relieve MarketWatch of any of its warranties or
obligations under this Agreement and all materials that bear any CBS Marks shall
strictly conform with the samples and proofs approved by CBS. Samples and
materials to be approved by CBS shall be submitted to the Associate General
Counsel, Contracts, Rights and Development, CBS Law Department and/or such other
person that may be designated in writing by CBS. The materials
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bearing the CBS Marks which are identified in Exhibit 3 attached hereto are
hereby deemed approved by CBS.
4.3 In the event that MarketWatch learns of any infringement, threatened
infringement, or passing off of the CBS's trademarks or logos licensed for use
under this Agreement, or that any Person claims or alleges that the such
trademarks or logos are liable to cause deception or confusion to the public,
then MarketWatch shall notify CBS of the particulars thereof.
4.4 Upon the expiration or termination of this Agreement, MarketWatch
shall cease all use of the CBS Marks, as soon as commercially and technically
practicable, but in any event, no later than five (5) days after expiration or
termination of this Agreement.
5. COMPENSATION
5.1 In consideration of the rights herein granted, MarketWatch shall pay
CBS a royalty computed at the applicable percentage, indicated below, of the
Gross Revenues recognized by MarketWatch during the year concerned, as follows:
(a) (i) During the 1998 calendar year:
(A) With respect to the first Forty Million
Dollars ($40,000,000) of Gross Revenues recognized over and
above the first One Million Dollars ($1,000,000) of Gross
Revenues recognized during such year: 8%.
(B) With respect to Gross Revenues recognized in
excess of Forty-One Million Dollars ($41,000,000): 6%.
(ii) During the 1999 calendar year:
(A) With respect to the first Forty Million
Dollars ($40,000,000) of Gross Revenues over and above the first
Five Hundred Thousand Dollars ($500,000) of Gross Revenues
recognized during such year: 8%.
(B) With respect to Gross Revenues recognized in
excess of Forty Million Five Hundred Thousand Dollars
($40,500,000): 6%.
(iii) During each calendar year (or portion thereof, if
applicable) subsequent to the 1999 calendar year:
(A) With respect to the first Forty Million
Dollars ($40,000,000) of Gross Revenues recognized during such
calendar year (or portion thereof, if applicable): 8%.
(B) With respect to Gross Revenues recognized in
excess of Forty Million Dollars ($40,000,000): 6%.
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(b) (i) For avoidance of doubt, for purposes of this paragraph
5.1, calculation of Gross Revenues shall be made on a calendar yearly
basis, rather than a cumulative basis.
(ii) (A) "Gross Revenues" as used in this paragraph 5.1
shall mean gross operating revenues (excluding the revenues
described in the last sentence of this paragraph 5.1(b)(ii)(A)
and in 5.1(b)(ii)(B)) of MarketWatch, its subsidiaries and, to
the extent of any dividends or other distributions paid to
MarketWatch or its subsidiaries, any Person in which MarketWatch
or any of its subsidiaries has an interest, derived from the
Core Business presented in accordance with generally accepted
accounting principles and, if applicable, based on revenues as
reported in the periodic quarterly and annual statements
required by the Securities and Exchange Commission, provided
that Gross Revenues shall not be reduced for royalties,
commissions (except as otherwise set forth in clause
5.1(b)(ii)(B) below) fees or other expenses incurred in
generating such operating revenue. If an income statement of
MarketWatch presents operating revenue net of any reductions not
allowed under this Section 5, then for purposes of this
paragraph 5.1, operating revenue as presented shall be increased
by the amount of reductions. Sources of operating revenue
include, but are not limited to, advertising, sponsorship,
partnership/commerce, subscriptions, and sales of products and
services and shall include all monetary consideration and the
fair value of all non-monetary considerations. Sources of
operating revenue shall not include: (I) revenue realized by
MarketWatch pursuant to paragraph 1.2 of the DBC Services
Agreement between DBC and MarketWatch dated as of October 27,
1997, as amended and restated on _________________ [DATE] (the
"Services Agreement") (i.e., the stated dollar portion of
subscriber fees from various DBC-owned subscriber devices
(including portable personal computers) and the stated
percentage of Net Revenues (as defined in the Services
Agreement) derived from the real-time market feeds currently
known as MarketWatch Live and MarketWatch RT); (II) revenue
realized from advertisements purchased by DBC from MarketWatch
which advertise/promote DBC on the MarketWatch Site; and (III)
revenue realized from advertisements purchased by any third
party advertising on the MarketWatch Site if and to the extent
CBS determines that revenues from such Person should be excluded
from the calculation of "Gross Revenues" under this Section 5.1.
(B) Notwithstanding anything to the contrary
contained in clause 5.1(b)(ii)(A) above, Gross Revenues may be
reduced by the amount of any sales representative commission(s)
paid by MarketWatch to any third party sales representative(s)
not affiliated with MarketWatch and in which MarketWatch has no
interest, not to exceed fifteen percent (15%) of the actual ad
price in each instance. Additionally, Gross Revenues for any
particular quarterly period shall not include revenues reported
by MarketWatch as a result of revenues recognized prior to the
effective date of the acquisition of an entity acquired by
MarketWatch and accounted for as a pooling of interest
transaction.
5.2 In the event that the rights granted by CBS to MarketWatch pursuant
to this Agreement cause CBS to recognize income for federal income tax
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purposes in an amount which exceeds the amount prescribed for such rights in
paragraph 5.1 above (the "Excess"), then the entire amount of any deductions
available to MarketWatch solely attributable to such Excess shall be allocated
by MarketWatch to CBS.
6. ACCOUNTINGS
6.1 MarketWatch will compute Gross Revenues as of each March 31, June
30, September 30 and December 31 for the prior three (3) months. Within
ninety-five (95) days after the fourth calendar quarterly period and within
forty-five (45) days after each of the first three (3) calendar quarterly
periods concerned, MarketWatch will send CBS a statement covering Gross Revenues
and will pay CBS CBS's share of Gross Revenues due. Acceptance by CBS of any
statement or payment shall not preclude CBS from challenging the accuracy
thereof.
6.2 MarketWatch will maintain accurate books and records which report
the recognition of Gross Revenues. CBS may, at its own expenses, examine and
copy those books and records, as provided in this paragraph. CBS may make such
an examination for a particular statement within three (3) years after the date
when the other party sends the examining party the statement concerned.
(MarketWatch will be deemed conclusively to have sent CBS the statement
concerned on the date prescribed in paragraph 6.1, unless CBS notifies
MarketWatch otherwise with respect to any statement, within ninety (90) days
after that date). CBS may make those examinations only during MarketWatch's
usual business hours, and at the place where it keeps the books and records.
Such books and records shall be kept at the MarketWatch office in San Francisco,
California, unless otherwise notified. CBS will be required to notify
MarketWatch at least ten (10) days before the date of planned examination. If
CBS's examination has not been completed within two months from the time CBS
begins it, MarketWatch may require CBS to terminate it on seven (7) days notice
to CBS at any time, provided that MarketWatch has cooperated with CBS in the
examination of such books and records.
7. RIGHTS
7.1 (a) As between CBS and MarketWatch: CBS is or shall be the exclusive
owner of and shall retain all right, title and interest to the CBS's News
Content or any Content derived therefrom, and the CBS Marks, including all
Intellectual Property Rights therein (the "CBS Property").
(b) MarketWatch is the exclusive owner of and shall retain all
right, title and interest to the MarketWatch Content or any Content derived
therefrom, the MarketWatch Site, MarketWatch marks, and all Intellectual
Property Rights therein, excluding the CBS Property.
(c) MarketWatch shall place a notice of copyright on each CBS
Content Page in accordance with the CBS License Guidelines. No CBS Content Page
shall contain any other copyright notice whatsoever except as provided in the
CBS License Guidelines. MarketWatch shall cooperate fully with CBS in connection
with CBS's obtaining appropriate copyright protection in the name of CBS for any
CBS Content Page.
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7.2 Each party agrees to take all action and cooperate as is reasonably
necessary, at the other party's request and expense, to protect the other's
respective rights, titles, and interests specified in this Article 7, and
further agrees to execute any documents that might be necessary to perfect each
party's ownership of such rights, titles, and interests.
7.3 (a) During the term of this Agreement, CBS shall not license nor
authorize another to license any Person other than MarketWatch the right to use
the CBS Marks in connection with promoting in the United States any Internet
service or Web site that has as its primary function and its principal theme and
format the delivering of comprehensive real-time or delayed stock market
quotations and financial news in the English language to consumers.
(b) MarketWatch acknowledges and agrees that the following are
either not within the express terms of the preceding prohibition or, if so,
shall nevertheless be excluded from said prohibition:
(1) any use of the CBS Marks by CBS, its divisions, business
units, affiliates and/or any of the following CBS related entities in connection
with any of the above Person's Internet service(s) or Web site(s) as long as
such Internet service or Web site does not have as its primary function and its
principal theme and format the delivering of comprehensive real-time or delayed
stock market quotations and financial news in the English language to consumers:
(i) the CBS Television Network;
(ii) any CBS owned and operated or affiliated standard
television station;
(iii) CBS Cable;
(iv) any CBS non-standard television network;
(v) any CBS owned or affiliated non-standard television
facilities;
(vi) the CBS Radio Network;
(vii) any CBS owned and affiliated radio station;
(viii) Westwood One, Inc.; and
(ix) any Internet services in which CBS currently has an
interest (such as CBS SportsLine);
(2) an Internet service or Web site that delivers general news,
sports or entertainment, with a financial news segment or portion included, will
not be considered to have as its primary function or as its principal theme and
format the delivering of comprehensive real-time or delayed stock market
quotations and financial news in the English language to consumers;
(3) an Internet service or Web site will not be considered to
have as its primary function or as its principal theme and format the delivering
of comprehensive real-time
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or delayed stock market quotations and financial news in the English language to
consumers solely on the basis of its providing a stock price ticker crawl line;
(4) any activity conducted by CBS and/or its affiliates as of
October __, 1998, the execution date of this Agreement;
(5) any activity conducted by a CBS Television or Radio Network
Affiliate that is not a CBS owned and operated television or radio station;
(6) any activity of Westwood One, Inc. provided that such
activity does not produce a substantial portion of revenues from an Internet
service or Web site that has as its primary function and principal theme and
format the delivering of comprehensive real-time or delayed stock market
quotations and financial news in the English language to consumers;
(7) any Internet services in which CBS has an interest as of
October __, 1998, the execution date of this Agreement;
(8) any transmission, retransmission, uplink or satellite
transponder delivery of any signal, of any nature or type, by and through CBS
Cable; and
(9) any occasional use of the CBS Marks by an Internet service
or Web site, as opposed to repeated and regular use.
8. WARRANTIES; REPRESENTATIONS; INDEMNITIES
8.1 (a) CBS represents and warrants that:
(i) it has full power and authority to enter into this
Agreement.
(ii) it has sufficient right and authority to grant to
MarketWatch all licenses and rights granted by CBS hereunder.
(iii) the CBS Marks and the use thereof as permitted
pursuant to this Agreement shall not violate any law or infringe
upon or violate any rights of any Person.
(iv) the CBS Content and the use thereof as permitted
pursuant to this Agreement shall not violate any United States
law or infringe upon or violate any rights of any Person under
any United States law.
(b) MarketWatch represents and warrants that:
(i) it owns or controls all right, title, and interest
in and to the MarketWatch Site, and all Intellectual Property
Rights therein, necessary to carry out its obligations hereunder
and to grant and assign the rights and licenses granted to CBS
herein.
(ii) it is has the full power and authority to enter
into and fully perform this Agreement.
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(iii) the MarketWatch Site, any MarketWatch Site Content
and any Content developed or furnished by MarketWatch hereunder
and the use thereof shall not violate any law or infringe upon
or violate any rights of any Person.
(iv) the MarketWatch Site will be produced, advertised,
distributed, transmitted and licensed in accordance with all
applicable federal, state, local and foreign laws and in a
manner that will not reflect adversely on CBS.
8.2 (a) Each party shall at all times indemnify, hold harmless and
defend the other party in accordance with the indemnification provisions
(applicable to such party) set forth in Article VI of the Contribution Agreement
among CBS, MarketWatch and DBC dated as of October 29, 1997 (the "Contribution
Agreement"); provided, however, that, MarketWatch agrees that neither CBS nor
any agent, subsidiary, or representative of CBS shall have any liability,
contingent or otherwise, for the truthfulness, accuracy or timeliness of the CBS
News Content, or for any decision made or action taken by MarketWatch or its
customers in reliance upon the CBS News Content except to the extent that such
liability arises from CBS's malfeasance or nonfeasance. THERE IS NO WARRANTY OF
MERCHANTABILITY NOR WARRANTY OF FITNESS FOR A PARTICULAR USE, NOR ANY IMPLIED
WARRANTY OF ANY KIND, REGARDING THE CBS NEWS CONTENT. MARKETWATCH RECOGNIZES
THAT THE ACCURACY OF THE CBS NEWS CONTENT SHOULD BE CHECKED BEFORE ITS CUSTOMERS
RELY ON IT.
(b) IN NO EVENT WILL MARKETWATCH OR CBS BE LIABLE TO
MARKETWATCH'S CUSTOMERS, EACH OTHER, OR ANY OTHER PARTY FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST
PROFITS, TRADING LOSSES, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR
LOSS OF THE USE OF THE CBS NEWS CONTENT), OR CLAIMS ARISING IN TORT (INCLUDING
NEGLIGENCE), EVEN IF MARKETWATCH OR CBS HAS BEEN ADVISED OF OR IS OTHERWISE
AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING.
(c) Neither MarketWatch nor CBS shall be liable for any loss
resulting from a cause over which such entities do not have direct control,
including but not limited to the failure of electronic or mechanical equipment
or communication lines, telephone or other interconnect problems, unauthorized
access or theft.
(d) MarketWatch agrees to indemnify and hold CBS harmless from
and against any and all claims, losses, liability, costs and expenses (including
but not limited to attorneys' fees) to the extent arising from or relating to
MarketWatch's modification of the CBS News Content, or the combination of the
CBS News Content with other information or content, and/or MarketWatch's
violation of this Agreement.
9. REMEDIES
9.1 CBS shall have the right to terminate this Agreement upon providing
written notice to MarketWatch if (any of the following occurs):
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(a) MarketWatch breaches any material term or condition of this
Agreement, and has failed to cure such breach within ten (10) days after written
notice of such breach from CBS. The foregoing cure period will not apply where a
specific cure period is provided herein, or to breaches incapable of being
cured.
(b) MarketWatch: (i) becomes insolvent or unable to pay its
debts as they mature or makes an assignment for the benefit of its creditors;
(ii) is the subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing: (iii) becomes the subject of any involuntary petition
in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing; (iv)
is liquidated or dissolved; or (v) issues to a CBS competitor or actively
participates in the acquisition by a CBS competitor, in any one transaction or
any series of transactions, of a number of voting securities of MarketWatch such
that after such issuance or acquisition or series of issuances or acquisitions,
such CBS competitor beneficially owns, directly or indirectly, nine percent (9%)
or more of the outstanding common stock of MarketWatch or nine percent (9%) or
more of the total voting power of MarketWatch.
(c) any CBS competitor beneficially owns, directly or
indirectly, fifteen percent (15%) or more of the then-outstanding shares of
common stock of MarketWatch or fifteen percent (15%) or more of the total voting
power of MarketWatch.
(d) If MarketWatch discontinues using the "MARKETWATCH" mark
and, within a reasonable time thereafter, MarketWatch does not establish a
substitute mark acceptable to CBS in its sole discretion.
(e) Notwithstanding the foregoing, for purposes of this Section
9.1, the mere acquisition by a CBS competitor of an interest in DBC which
acquisition constitutes or triggers a "DBC Change of Control" (as defined in the
Stockholders' Agreement dated as of the date hereof among CBS, DBC and
MarketWatch) shall not be deemed to constitute the acquisition, directly or
indirectly, of, "beneficial ownership," common stock or "voting power" of
MarketWatch in the absence of other facts demonstrating "beneficial ownership"
thereof.
For purposes of this Section 9.1: (i) the term beneficial
ownership shall have the meaning set forth in Section 13(d) of the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder;
(ii) the term total voting power shall mean, at any time, the total number of
votes that may be cast in the election of directors of MarketWatch at any
meeting of the holders of voting securities held at such time for such purpose;
and (iii) the term voting securities shall mean the common stock of MarketWatch
and any other securities issued by MarketWatch having the power to vote in the
election of directors of MarketWatch, including without limitation any
securities having such power only upon the occurrence of a default or any other
extraordinary contingency.
9.2 MarketWatch shall have the right to terminate this Agreement if CBS
breaches any material term or condition of this Agreement, and has failed to
cure such breach within thirty (30) days after receipt of written notice of such
breach.
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9.3 Either Party may exercise its right to terminate pursuant to this
Section 9 by sending the other party appropriate notice. No exercise by CBS of
its rights under this Section 9 will limit CBS's remedies by reason of
MarketWatch's default, CBS's rights to exercise any other rights under this
Section 9, or any of CBS's other rights. No exercise by MarketWatch of its
rights under this Section 9 will limit MarketWatch's remedies by reason of CBS's
default, MarketWatch's rights to exercise any other rights under this Section 9,
or any of Marketwatch's other rights.
10. GENERAL
10.1 Neither party may assign this Agreement, or their respective rights
and obligations hereunder, in whole or in part without the other party's prior
written consent. Any attempt to assign this Agreement without such consent shall
be void and of no effect ab initio. Notwithstanding the foregoing, (i)
MarketWatch may assign this Agreement to its successor, MarketWatch.com, Inc., a
Delaware corporation, provided that MarketWatch.com, Inc. thereafter succeeds to
all of the rights and is subject to all of the obligations of MarketWatch under
this Agreement, and (ii) CBS may assign this Agreement or any of its rights and
obligations hereunder to any entity controlling, controlled by or under common
control with, CBS, or to any entity that acquires CBS by purchase of stock or by
merger or otherwise, or by obtaining substantially all of CBS assets (a "CBS
Assignee"), provided that any such CBS Assignee, or any division thereof,
thereafter succeeds to all of the rights and is subject to all of the
obligations of CBS under this Agreement.
10.2 Each party hereto irrevocably submits to the exclusive jurisdiction
of (a) the Supreme Court of the State of New York, New York County, or (b) the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby or thereby. Each of CBS and MarketWatch
agrees to commence any such action, suit or proceeding either in the United
States District Court for the Southern District of New York or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the Supreme Court of the State of New York, New York County. Each of
CBS and MarketWatch further agrees that service of any process, summons, notice
or documents by U.S. registered mail to such party's respective address set
forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any maters to which it has submitted to
jurisdiction in this Section 10.2. Each of CBS and MarketWatch irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby and thereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby and thereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
10.3 Each party shall comply in all material respects with all laws and
regulations applicable to its activities under this Agreement.
10.4 If any provision of this Agreement (or any portion thereof) or the
application of any such provision (or any portion thereof) to any Person or
circumstance shall be held invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity,
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illegality or unenforcability shall not affect any other provision hereof (or
the remaining portion thereof) or the application of such provision to any other
Persons or circumstances.
10.5 All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent,
postage prepaid, by registered, certified or express mail or reputable overnight
courier service and shall be deemed given when so delivered by hand, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows:
(i) if to MarketWatch,
MarketWatch.Com Inc.
825 Battery St.,
San Francisco, CA 94111
Attention of Larry Kramer and Peter Bardwick
(ii) if to CBS,
CBS Broadcasting Inc.
51 West 52nd Street
New York, New York 10019
Attention of Fredric G. Reynolds and
Louis J. Briskman
with copies to:
CBS Broadcasting Inc.
51 West 52nd Street
New York, New York 10019
Attention of General Counsel, and
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention of Peter S. Wilson, Esq., and
Data Broadcasting Corporation
3955 Point Eden Way
Hayward, CA 94549
Attention of Mark F. Imperiale
10.6 The parties to this Agreement are independent contractors. There is
no relationship of partnership, joint venture, employment, franchise, or agency
between the parties. Neither party shall have the power to bind the other or
incur obligations on the other's behalf without the other's prior written
consent.
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10.7 No failure of either party to exercise or enforce any of its rights
under this Agreement shall act as a waiver of such right.
10.8 This Agreement, along with the Exhibits hereto, contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. Neither party shall be liable or bound to any
other party in any manner by any representations, warranties or covenants
relating to such subject matter except as specifically set forth herein.
10.9 This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each of the parties and
delivered to each of the other parties.
10.10 This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto. By an instrument in
writing, any two parties hereto may waive compliance by the third party with any
term or provision of this Agreement that such third party was or is obligated to
comply with or perform.
10.11 This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed entirely within such State, without regard to the conflicts
of law principles of such State.
10.12 Except as provided in Article VI of the Contribution Agreement,
this Agreement is for the sole benefit of the parties hereto and their permitted
assigns (including MarketWatch.com, Inc., the successor to MarketWatch) and
nothing herein expressed or implied shall give or be construed to give to any
person, other than the parties hereto and such assigns, any legal or equitable
rights hereunder.
10.13 The headings contained in this Agreement or in any Exhibit or
Schedule hereto are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. All Exhibits and Schedules
annexed hereto or referred to herein are hereby incorporated in and made a part
of this Agreement as if set forth in full herein. Any capitalized terms used in
any Schedule or Exhibit but not otherwise defined therein, shall have the
meaning as defined in this Agreement. When a reference is made in this Agreement
to a Section, Exhibit or Schedule, such reference shall be to a Section of, or
an Exhibit or Schedule to, this Agreement unless otherwise indicated.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
MARKETWATCH.COM, LLC CBS BROADCASTING INC.
By: By:
------------------------------------ ---------------------------------
Name: Peter Bardwick Name:
---------------------------------- -------------------------------
Title: CFO and Secretary Title:
--------------------------------- -------------------------------
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EXHIBIT 1
(Attached to and forming a part of the Agreement, made October __, 1998, and
effective as of October 29, 1997 between CBS Broadcasting Inc. and
MarketWatch.Com, LLC)
CBS MARKS
CBS
[EYEBALL LOGO]
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EXHIBIT 2
(Attached to and forming a part of the Agreement, made October __, 1998, and
effective as of October 29, 1997 between CBS Broadcasting Inc. and
MarketWatch.Com, LLC)
CBS LICENSE GUIDELINES AND RESTRICTIONS
I. GENERAL
The MarketWatch Site shall not include Content that: (i) is sexually
explicit, (ii) contains profanity or (iii) that denigrates a particular
group based on gender, race, creed, religion, sexual preference or
handicap.
II. CBS NEWS CONTENT
1. Each party shall notify the other of all errors, omissions, and/or
inaccuracies in transmission or transcription of the CBS News Content
within forty-eight (48) hours after it becomes aware thereof.
2. If MarketWatch provides such notice, it shall specify to CBS what
action, if any, it has taken to correct the error, omission and/or
inaccuracy.
3. If CBS provides such a notice, or receives such notice, it may
specify the action to be taken by MarketWatch to correct the error,
omission and/or inaccuracy or resubmit such content.
4. All CBS News Content shall be subject to restrictions and
instructions disclosed by CBS at any time.
5. CBS shall have the right to refuse to deliver to MarketWatch any CBS
News Content if, in CBS's sole discretion, the CBS News Content or
the use contemplated, conflicts with, interferes with or is
detrimental to CBS's interests, reputation or business or which might
subject CBS to unfavorable regulatory action, violate any law,
infringe the rights of any person, or subject CBS to liability for
any reason.
6. MarketWatch shall abide by responsible journalistic standards. No CBS
News Content shall be used/displayed out of context. MarketWatch
shall no distort or misrepresent any events, opinions or statements
contained in the CBS News Content received by MarketWatch.
III. TRADEMARKS
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MarketWatch shall place a trademark notice to be furnished by CBS on all
items or materials utilizing CBS Marks. CBS shall provide MarketWatch
with the manner, style and placement of such notice, which shall be
deemed incorporated into this Section.
IV. CROSS-LINKS
1. MarketWatch shall not establish any links from the MarketWatch Site
to any gambling, pornographic or obscenity Content.
2. MarketWatch shall not conduct any cross promotions between the
MarketWatch Site and any Internet Site which uses or exhibits
gambling, pornographic or obscenity Content.
V. OWNERSHIP
1. MarketWatch shall place an appropriate copyright notice to be
furnished by CBS on all CBS Content Pages of the MarketWatch Site.
2. MarketWatch and CBS shall mutually develop the procedures for placing
any third party copyright notice on any CBS Content Page.
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EXHIBIT 3
APPROVED USAGE OF CBS MARKS
The following materials (bearing the CBS marks) are approved:
Munsingware long sleeve t-shirt
grey & black pens
white cocktail napkin
business card, subject to * below
*CBS has a colored photostat of the business card which reflects the
outer circle of the "Eye" fading into the black background. Assuming
that the fading is due to the photostatic process, then the card is
acceptable .
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