REPUBLISHING AGREEMENT
THIS REPUBLISHING AGREEMENT dated as of 11/23, 1999
BETWEEN:
EARTHRAMP.COM,
having an office at
701 - 889 W. Pender
Vancouver, BC
("Licensor")
AND:
MOSTACTIVES.COM, (Benson York Group)
having an office at: 8723 4th Ave., Brooklyn, NY 11209
("MOSTACTIVES.COM")
(each of EARTHRAMP.COM and MOSTACTIVES.COM are referred to herein as a
"Party")
WHEREAS:
A. Licensor is the owner or licensee of rights to certain financial content
more particularly described in Schedule A attached hereto and incorporated
herein by reference (the "Material");
B. MOSTACTIVES.COM owns, operates and maintains a Web site located at
WWW.MOSTACTIVES.COM and other sites located at other domain names (the
"MOSTACTIVES.COM Site")
C. Licensor desires to grant to MOSTACTIVES.COM, and MOSTACTIVES.COM desires
to accept from Licensor, the right to republish the Material, in whole or in
part on the MOSTACTIVES.COM Site.
NOW THEREFORE the Parties have agreed to the following terms and conditions:
1. License. Licensor hereby grants to MOSTACTIVES.COM a non-exclusive,
worldwide license for the term set out below to use the Material subject to the
following provisions. The License granted pursuant to this Section 1 shall
include the non-exclusive right to (i) publish, publicly display and otherwise
exploit and utilize, the Material, and all or any portions, adaptions or updates
thereof, and (ii) make use of such trademarks and names of Licensor as are
associated with the material with such quality control requirements as Licensor
may reasonably specify.
2. Delivery. Licensor shall provide MOSTACTIVES.COM the Material at such
time and in such formats as are set forth in Schedule A. The parties may agree
to add content to the Material by executing an additional document in the form
of Schedule A and any such document shall constitute an addition to the
Agreement and shall be subject to all the terms thereof.
3. Content and Style. Licensor shall be the exclusive owner of the Material
and all intellectual property rights related thereto. MOSTACTIVES.COM covenants
that it shall not, either during the term of this Agreement or thereafter,
directly or indirectly, contest, or assist any third party to contest, the
Licensor's ownership of the Material. Notwithstanding the foregoing, neither
Party shall be responsible for the content of the other Party's Web site.
4. Linking. MOSTACTIVES.COM shall display a logo, no larger than 164 pixels
wide and 35 pixels tall, supplied by the Licensor and hyper linked to a URL
specified by the Licensor (the "Link Logos") on every page of the
MOSTACTIVES.COM Site containing the Materials. The placement Link Logos shall
be at MOSTACTIVES.COM's reasonable discretion.
5. Trade-Mark License.
(1) Licensor hereby grants to MOSTACTIVES.COM a non-exclusive,
non-transferable, limited license to use only those trade-marks of the Licensor
to create links to the Licensor's site.
(2) MOSTACTIVES.COM agrees that:
(a) they will not alter the appearance of the other Licensor's trade-marks;
(b) MOSTACTIVES.COM will use only the approved graphical image of the Link
Logo supplied by the Licensor;
(c) the Link Logos may not be reduced in size beyond what is electronically
provided by the Licensor provided, however, that Link Logo shall not be larger
in size than 164 pixels wide and 35 pixels high;
(d) the Link Logo must stand by itself and must include a minimum amount or
[30] pixels of empty space around it so as to avoid unintended associations with
other objects, including without limitation, type, photography, borders and
edges;
(e) MOSTACTIVES.COM will comply with any other reasonable trade-mark usage
policies established by the Licensor from time to time;
(f) all goodwill associated with the Licensor's Link Logos shall accrue to
the Licensor;
(g) MOSTACTIVES.COM will not use any other logos, slogans, copyright
material or trade-marks of the Licensor as set forth herein.
(h) MOSTACTIVES.COM will not use the Licensor's Link Logo more prominently
than its own company, product or Web site name or Logo; and
(j) MOSTACIVES.COM will include a notice on its Web site to the effect that
the Licensor's Link Logo is a trade-mark of the Licensor and is used under
license.
(4) MOSTACTIVES.COM acknowledges the Licensor's worldwide ownership of
its Link Logos and will not contest such ownership.
6. Approvals. The initial location and appearance, and any subsequent
change in location or appearance, of the Link shall be subject to prior approval
by the Licensor which approval may be conditional upon the inclusion of notices
or statements as required by the Licensor.
7. Appropriate Conduct. Neither Party will use the Link Logos in any manner
that implies sponsorship or product endorsement by the other Party. Neither
Party will place the other Party's Web pages in a "frame" within its own site,
or otherwise cause a user's browser to frame the other Party's Web site such
that both Party's sites appear on the same screen, without prior written
permission from the other Party. Each Party agrees that its Web site will to
the best of either party's knowledge not contain material that is obscene,
pornographic, excessively violent or which breaches any Canadian federal or
provincial statute or regulation. Subject to the foregoing, each Party reserves
the right to alter, modify or discontinue its Web site at any time.
8. Warranties. MOSTACTIVES.COM represents and warrants to the Licensor that
(i) it has duly registered the domain name of its respective Web site with all
applicable authorities and possesses all rights necessary to use such domain
name, and (ii) the content and material (other than the Material) which it has
placed on its Web site to the best of MOSTACTIVES.COM's knowledge does not
infringe upon or violate any (a) copyright, patent, trade-mark or proprietary
right of a third party, or (b) any applicable law, regulation or non-proprietary
third-party right.
Licensor represents and warrants to MOSTACTIVES.COM that (i) the Material does
not infringe upon or violate any (a) copyright, patent, trade-mark or
proprietary right of a third party, or (b) any applicable law, regulation or
non-proprietary third-party right.
9. Indemnity. Each Party (the "First Party") agrees to indemnify, defend
and hold harmless the other Party and its directors, officers, employees and
agents from any and all actions, claims, costs, damages, demands, expenses,
liabilities, losses and suits (including reasonable legal fees) arising from, in
whole or in part, (i) a breach by the First Party of the warranties, (ii) a
claim that the First Party's Link Logos infringe or violate the intellectual
property rights of a third party, or (iii) any acts or omissions of the First
Party or its employees or agents in performing under this Agreement.
10. Term and Termination.
(1) This Agreement shall remain in effect for the period of one year after
which the term shall be reviewed automatically for additional one year periods
unless either party gives written notice not to renew no later than 60 days
before the end of the then-current term. In the event that either Party has
breached a material provision of this Agreement and such breach hasn't been
corrected within 5 business days after notice from the First Party, the other
Party may terminate this agreement immediately by written notice.
(2) Upon termination of this Agreement MOSTACTIVES.COM shall (i) immediately
remove all Link Logos from its Web site; and (ii) MOSTACTIVES.COM will delete
the Materials from the MOSTACTIVES.COM Site and cease offering visitors to the
site access to the Materials as soon as possible; and (iii) neither Party shall
under any circumstances provide any link from its Web site to the other Party's
Web site nor shall either Party represent or otherwise take any action which
could be construed as suggesting that such Party has any relationship with or is
otherwise associated with the other Party.
11. Limitation of Liability. Neither Party shall be liable to the other
Party for any special or punitive damages, damages for lost profits or revenues,
or for any other types of economic loss or consequential damages.
12. Confidential and Restricted Information.
(1) Each Party acknowledges that the other Party (the "Discloser") may
disclose to such Party (the "Recipient"), or allow the Recipient access to,
trade secrets and other information, in the possession of the Discloser and
owned by the Discloser or entities affiliated, associated or related to the
Discloser, or by their respective suppliers, customers or other business
partners, that is not generally known to the public including, without
limitation, financial information, legal, corporate, marketing, product,
technical, personnel, customer and supplier information and any other
information, in whatever form or media, specifically identified as confidential
by the Discloser, or the nature of which is such that it would generally be
considered confidential in the industry of the Discloser, or which the Discloser
is obligated to treat as confidential or proprietary (collectively,
"Confidential Information"). The Recipient acknowledges that this information
is of significant value to the Discloser.
(2) The non-disclosure obligations of the Recipient under this Section
12 shall not apply to Confidential Information which the Recipient can
establish:
(a) is, or becomes, readily available to the pubic other than through a
breach of this Section;
(b) is disclosed, lawfully and not in breach of any contractual or other
legal obligation, to the Recipient by a third party; or
(c) through written records, was known to the Recipient, prior to the date
of first disclosure of the Confidential Information to the Recipient by the
Discloser.
(3) The Recipient acknowledges that Confidential Information is and
shall be the sole and exclusive property of the Discloser or its designate and
that the Recipient shall not acquire any right, title or interest in or to any
Confidential Information.
(4) The Recipient shall keep all Confidential Information strictly
confidential and shall take all necessary precautions against unauthorized
disclosure of the Confidential Information during the term of this Agreement and
thereafter. Without limitation, the Recipient shall not, and shall take all
reasonable steps to ensure that its employees do not, directly or indirectly,
disclose, allow access to, transmit or transfer the Confidential Information to
a third party without the Discloser's consent, or use or reproduce Confidential
Information, in any manner, except as reasonably required to fulfill the
purposes of this Agreement. Notwithstanding the foregoing, to the extent that
the Recipient can establish it is required by law to disclose any Confidential
Information, it shall be permitted to do so, provided that notice of this
requirement to disclose is first delivered to the Discloser, so that it may
contest this potential disclosure. The Recipient shall ensure that all copies
of Confidential Information are clearly marked, or otherwise identified as
confidential and proprietary to the Discloser, and are stored in a secure
location while in the Recipient's possession, control, charge or custody.
(5) Notwithstanding any other provision of this Section 12 or any other
term of this Agreement, there is certain information which the Licensor is
prohibited by law from disclosing to third parties including, without
limitation, financial and personal information relating to its customers
(collectively, "Restricted Information MOSTACTIVES.COM therefore covenants and
agrees that it shall not either directly or indirectly take any steps or actions
which result in or which could have the effect of resulting in MOSTACTIVES.COM
having access to any Restricted Information and MOSTACTIVES.COM shall take all
reasonable steps to ensure that none of its employees or users of the
MOSTACTIVES.COM Site obtain access to Restricted Information.
13. General
(1) Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the Parties on the subject hereof and supersedes any
and all prior oral or written agreements, statements, representations,
warranties or understandings by any Party, and all of which are merged herein
and superseded hereby. Neither Party shall be bound by any definition,
warranty, condition or representation other than as expressly set forth in this
Agreement or as may be set forth in a writing signed by the Party to be bound
thereby. This Agreement may not be modified except by a written agreement
signed by the Parties hereto.
(2) Interpretation. In construing this Agreement or determining the
rights of the Parties hereto, no Party shall be deemed to have drafted or
created this Agreement.
(3) Governing Law. This Agreement is made and entered into under the
laws of the state of the defending party and shall be interpreted, applied and
enforced under those laws.
(4) Severability. The provisions of this Agreement are severable, and
if any one or more provisions is determined to be illegal, indefinite, invalid
or otherwise unenforceable, in whole or in part, the remaining provisions of
this Agreement shall continue in full force and effect and shall be binding and
enforceable.
(5) Assignment. Neither this Agreement nor any right or duty hereunder
shall be assignable or delegable by either Party without the express consent of
the other Party, and nothing in this Agreement, express or implied, is intended
to confer upon any person other than the Parties hereto any rights or remedies
under or by reason of this Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective heirs,
administrators, executors, legal representatives, successors in interest and
permitted assigns.
(6) Waiver. No wavier of any provision of this Agreement shall be
deemed to be or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No wavier shall
be binding unless executed in writing by the Party making the wavier. The
failure of any Party to object any act, omission or breach by the other Party or
to declare the other Party in default, irrespective of how long such failure
continues, shall not constitute a waiver by such Party of any rights or remedies
hereunder or otherwise provided at law or in equity.
(7) Notices. All notices, requests, demands and other communications
to be given hereunder shall be in writing and shall be deemed to have been duly
given on the date of personal service or on the fifth day after mailing by
certified or registered mail or on the date sent by facsimile addressed to the
Parties at the addresses noted on page one or at such other address as either
Party may hereafter indicate by appropriate notice.
(8) No Agency. Nothing in this Agreement creates a relationship of
agency, partnership, joint venture, or the like between the Parties, and neither
Party shall be entitled to, or purport to, bind or represent the other Party.
Neither party shall do or allow any act which would imply apparent authority to
act for the other Party.
IN WITNESS WHEREOF the Parties have signed this Agreement as of the date first
above written.
MOSTACTIVES.COM EARTHRAMP.COM
By: By:
Name: Name:
Title: Title:
Date: Date:
<PAGE>
SCHEDULE A
MATERIAL
The latest commercially available version of the following content is added
and made subject to the certain Republishing Agreement dated as of 11/23/99
between EARTHRAMP.COM And MOSTACTIVES.COM (the "Agreement") and shall constitute
Material (as that term is defined in the Agreement):
Web Site Title: www.EARTHRAMP.com
Publisher: EARTHRAMP.COM
Content Description: financial data
Frequency: up to 20 minute delay
Electronic data provided in comma delimited format and/or graphical image format
Primary Logo Location: http://EARTHRAMP.com/img/bannersmall.gif
Online Copyright Notice: http://www.EARTHRAMP.com/copyright.cfm
Full Copyright Notice: 1999 EARTHRAMP.Com, All rights reserved.
MOSTACTIVES.COM EARTHRAMP.COM
By: By:
Name: Name:
Title: Title:
Date: Date:
