Exhibit 10.31
SALES AND MARKETING AGREEMENT
This SALES AND MARKETING AGREEMENT is entered into as of April 29, 2000
(the "Effective Date"), by and between Wall Street Strategies, Inc., a Delaware
corporation, with offices at 130 William Street, Suite 401, New York, New York
10038 ("WSS"), and Data Broadcasting Corporation, a Delaware corporation, with
offices at 3955 Point Eden Way, Hayward, California 94545-3720 ("DBC").
WHEREAS, WSS generates commentary and quantitative data relating to the
financial and options markets;
WHEREAS, DBC is a general financial market data provider;
WHEREAS, DBC has the ability to promote and market the WSS Research;
WHEREAS, on the terms and subject to the conditions hereinafter set
forth, WSS desires to grant to DBC, and DBC desires to accept from WSS, the
appointment as a sales and marketing representative for the WSS Research.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and promises herein contained, the parties hereto agree as follows:
1. Use of WSS Research
1.1. For purposes of this Agreement, "WSS Research" shall mean the
text, information, data and images (still and moving) which
comprise the daily "Morning Shot" and daily "Closing Shot"
products of WSS, together with market commentary on the
Morning Shot product, as described in Exhibit A attached
hereto.
1.2. WSS hereby grants to DBC, during the Term (as defined herein)
and so long as DBC is not in breach of any provisions hereof,
the worldwide, non-exclusive, non-transferable right, subject
to the terms and conditions of this Agreement (i) to
distribute the WSS Research solely by displaying it to DBC's
paid subscribers on DBC's Web sites having the Uniform
Resource Locators corresponding to "www.dbc.com" and
"www.esignal.com" (the "DBC Web Sites") and to make only such
internal copies as are necessary to create that display, and
(ii) to use the trade names and trademarks of WSS and the WSS
Research (the "WSS Marks") in connection with its advertising,
marketing, sale and display of the WSS Research, but in no
event shall DBC have any ownership in or to any of the WSS
Marks. Except as set forth herein, no other copying,
dissemination, publication, display or distribution in any
form of the WSS Research or the WSS Marks, in whole or in
part, by DBC is permitted without the prior written consent of
WSS. All other rights whatsoever, including without limitation
rights in respect of any other media, are expressly reserved
for WSS.
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2. Duties of WSS
WSS hereby agrees to perform the following obligations:
2.1. WSS shall establish a Web site on which WSS Research will be
available only to DBC's paid subscribers who subscribe to the
WSS Research on the DBC Web Sites. WSS and DBC may agree on
other methods of making the WSS Research available to DBC.
2.2. WSS will retain sole responsibility for the editorial matter
and opinions that may be expressed in the WSS Research. WSS
reserves to itself complete editorial freedom in the form and
content of the WSS Research and may alter the same from time
to time. WSS will keep the WSS Research current, notify DBC of
any errors and/or omissions in the WSS Research within 24
hours of identifying such errors and/or omissions, and will
correct such errors and/or omissions within 24 hours of such
identification.
2.3. WSS will maintain a subscriber phone line during normal
business hours (Eastern Time 8:00 a.m. to 6:00 p.m.) in order
to respond to subscriber inquiries regarding the content of
the WSS Research or any matter referenced therein.
2.4. WSS will be responsible for product design and content and may
make whatever changes it deems appropriate from time to time.
WSS shall be solely responsible for delivering the WSS
Research to the communications carrier selected by the joint
agreement of both parties.
2.5. WSS will comply with all laws and regulations pertaining to
the publication of the WSS Research, and shall comply with the
requirements of all regulatory agencies that may have
jurisdiction over the publication of the WSS Research.
2.6. WSS's employees will be accessible to discuss or meet monthly
with DBC at mutually agreeable times to discuss its sales and
marketing efforts and other issues pertaining to the WSS
Research.
2.7. During the term of this Agreement, WSS agrees not to offer the
WSS Research to any financial market data provider that
competes with DBC, or to the subscribers thereof, at a rate
lower than that specified in this Agreement, unless WSS also
offers such lower rate under this Agreement to DBC and its
subscribers.
3. Duties of DBC
DBC hereby agrees to perform the following obligations:
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3.1. DBC will display the WSS Research in a password-protected
environment and in the exact form in which it is received by
DBC, and shall not modify or edit any WSS Research without the
prior written consent of WSS. DBC will display the WSS
Research on DBC's Web Sites promptly after the later of (i)
the time on which such WSS Research is received at DBC's Web
Sites and (ii) the end of any embargo period that is
identified by WSS with respect to all or any portion of the
WSS Research. DBC may display WSS Research that is more than
24 hours old in DBC's Web Sites only if such WSS Research is
clearly identified by the date on which it was originally
provided to DBC by WSS and only during the term of this
Agreement.
3.2. DBC will use its best business judgment and efforts to market
and promote the WSS Research through the DBC Web Sites, online
newsletter, direct mail, e-mail and print advertisements. DBC
agrees to give WSS the right of final approval of all
advertisements and marketing communications in regard to WSS
Research, including any use of the WSS Marks. DBC may from
time to time offer technical assistance in order to improve
and automate the layout process.
3.3. DBC will comply with all laws and regulations relating or
pertaining to the sales, advertising or promotion of the WSS
Research, and shall comply with the requirements of all
regulatory agencies that have jurisdiction over the sale and
promotion of the WSS Research.
3.4. DBC's employees will be available to discuss or meet monthly
with WSS at mutually agreeable times to discuss its sales and
marketing efforts and other issues pertaining to the WSS
Research.
3.5. DBC agrees to send a sales representative to the home office
of WSS for product training every six months. DBC also gives
WSS the right to observe the DBC sales process through
visitation to the DBC home office at least once per year.
3.6. DBC agrees to allow Charles Payne to be a featured speaker (or
another representative if Charles is unavailable) at a DBC
sponsored seminar at a minimum of once per quarter.
4. Free Trials
[* * *]
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5. Fees and Payments
5.1. During the Term, the WSS Research shall be sold by DBC at the
price of [* * *] per month.
5.2. [* * *] will be responsible for the billing, accounting and
collection of subscription fees paid by [* * *].
5.3. [* * *]
5.3.1. [* * *] Each statement shall contain information in
detail to permit the accuracy of each payment due and
payable to [* * *] pursuant to this Agreement to be
readily ascertainable. Each statement shall also
include the name, mailing address, phone number and
e-mail address for each subscriber covered by such
statement. Full payment of the amounts owing to
[* * *] as set forth in the statement, shall be made
with the delivery of the statement.
5.3.2. WSS and its agents and representatives shall, upon
reasonable advance notice, have the right to inspect
and audit DBC's books and records during normal hours
once per year. If such audit determines that
[* * *] of the amounts actually
due for the period under audit, DBC will reimburse
WSS for the reasonable, actual cost of the inspection
and audit, and shall remit payment to WSS as they
relate to this Agreement within 10 business days
following DBC's receipt of the result of such audit.
DBC shall have access to all work papers and other
data requested by auditor.
5.4. If DBC fails to make payments as required under this
Agreement [* * *], or the highest level allowable by law,
whichever is less, plus any reasonable attorneys' fees that
are incurred in collection.
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6. Proprietary Rights
6.1. WSS retains exclusive title to, and ownership of, the WSS
Research, all computer software, processes and formulas used
in developing such information, the WSS Marks, and all
intellectual property rights thereto. This Agreement does not,
and shall not be construed to, give DBC, or any other party,
any right, claim, title to or ownership interest in the WSS
Research, the WSS Marks, or any trade secret, patent,
copyright, trade name, trademark or other proprietary right
owned, applied for or subsequently acquired by WSS.
6.2. This Agreement does not give, and shall not be construed to
give, to WSS or any other party any right, claim, title or
ownership interest in any trade secret, patent, copyright,
trade name, trademark or other proprietary right owned,
applied for or subsequently acquired by DBC.
6.3. DBC shall not remove, cancel or obliterate any copyright or
other proprietary notice or any credit-line included in the
WSS Research. DBC shall insert on each screen that contains
any WSS Research, and in close proximity to the WSS Research,
the following notice: "Copyright [insert current year] Wall
Street Strategies, Inc. All rights reserved. Republication or
redistribution of Wall Street Strategies content, including by
framing or similar means, is expressly prohibited without the
prior written consent of Wall Street Strategies. Wall Street
Strategies shall not be liable for any errors or delays in the
content, or for any actions taken in reliance thereon." or
such other notice as may be specified in writing by WSS from
time to time during the Term.
6.4. To the extent technologically feasible, DBC shall not permit
any third party Internet site or on-line service to frame any
DBC Web Site such that any WSS Research appears on the same
screen as such party's Internet site or on-line service. To
the extent that it is not technologically feasible to prevent
such framing, DBC shall cooperate with WSS, to the extent
reasonably requested by WSS and at the expense of WSS, in
causing such third party to cease and desist from such
framing.
7. Confidentiality
Each party (the "Receiving Party") undertakes to retain in confidence
the terms of this Agreement and all other non-public information and
know-how of the other party disclosed or acquired by the Receiving
Party pursuant to or in connection with this Agreement which is either
designated as proprietary and/or confidential or by the nature of the
circumstances surrounding disclosure, ought in good faith to be treated
as proprietary and/or confidential ("Confidential Information");
provided that each party may disclose the terms and conditions of this
Agreement to its immediate legal and financial consultants in the
ordinary course of its business. Each party agrees to use commercially
reasonable efforts to protect Confidential Information of the other
party, and in any event, to take precautions at least as great as those
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taken to protect its own confidential information of a similar nature.
Each party acknowledges that the terms of this Agreement are
Confidential Information of the other party. The foregoing restrictions
shall not apply to any information that: (a) was known by the Receiving
Party prior to disclosure thereof by the other party; (b) was in or
entered the public domain through no fault of the Receiving Party; (c)
is disclosed to the Receiving Party by a third party legally entitled
to make such disclosure without violation of any obligation of
confidentiality; (d) is required to be disclosed by applicable laws or
regulations (but in such event, only to the extent required to be
disclosed); or (e) is independently developed by the Receiving Party
without reference to any Confidential Information of the other party.
Upon request of the other party, or in any event upon any termination
or expiration of the Term, each party shall return to the other all
materials, in any medium, which contain, embody, reflect or reference
all or any part of any Confidential Information of the other party.
Each party acknowledges that breach of this provision by it would
result in irreparable harm to the other party, for which money damages
would be an insufficient remedy, and therefore that the other party
shall be entitled to seek injunctive relief to enforce the provisions
of this Paragraph 7.
8. Term
The term of this Agreement (the "Term") shall be for a period of one
(1) year from the Effective Date unless earlier terminated in
accordance with the provisions hereof and shall be automatically
renewed for an additional one (1) year period unless either party gives
written notice of its intent not to renew at least sixty (60) days
prior to the end of the then current term.
9. Termination
9.1. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may immediately be terminated
at any time prior to the expiration of the Term, without
prejudice to any rights which the terminating party may have,
by 60 days' prior written notice from the terminating party to
the other party upon the occurrence of any of the following
events:
9.1.1. by WSS upon DBC's default in the performance of any
of its obligations provided for in this Agreement
(including, but not limited to, failure to make any
payment due hereunder) or upon the breach by DBC of
any material provision of this Agreement, if such
default or breach is not cured by DBC within 30 days
after receiving written notice thereof from WSS;
9.1.2. by DBC upon WSS's default in the performance of any
of its obligations provided for in this Agreement or
upon the breach by WSS of any material provision of
this Agreement, if such default or breach is not
cured within 30 days after receiving written notice
thereof from DBC; or
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9.1.3. by either party if the other party makes an
assignment for the benefit of its creditors, or files
a voluntary petition under any bankruptcy or
insolvency law, the reorganization or arrangement
provisions of the United States Bankruptcy Code, or
any law or like import, or fails to obtain the
dismissal within 60 days of an involuntary petition
filed under any such law, or if a trustee or receiver
is appointed for the other party or its property.
9.2. Immediately upon termination of this agreement for any cause,
DBC's right to market, sell and display WSS Research under
this Agreement shall terminate and DBC is not entitled to
further compensation under this Agreement except as set out in
Section 10.
9.3. Upon termination of this Agreement by DBC or WSS, DBC will
immediately delete all files and data items transferred from
WSS, and/or files and data items which were derived from such
transferred files, that are stored on DBC's servers or in any
databases or systems owned by DBC or under DBC control, or
under the control of any contractor, service bureau, general
or limited partner or agent, whose control and/or possession
of said data derives from an association or relationship with
DBC. No data of WSS in any form shall remain in the possession
of DBC or any contractors, service bureaus, general or limited
partners or agents, whose control and/or possession of said
data derives from an association or relationship with DBC,
after this Agreement has been terminated.
10. Survival of DBC Revenue Participation
10.1. In the event of the termination of this Agreement, DBC agrees
to provide WSS with all the information that is necessary to
continue serving the then existing subscribers including the
trial subscribers such as names, mailing addresses, voice
phone numbers, e-mail addresses, billing information, and any
other necessary information.
10.2. In the event of the termination of this Agreement, DBC agrees
to remit payment to WSS for all amounts due hereunder for
revenue earned by DBC up to and including the date of
termination, notwithstanding that such revenue may actually be
received by DBC subsequent to the date of such termination.
11. Representations, Warranties, Disclaimers and Limitation of Remedies
11.1. Each of WSS and DBC hereby represents and warrants to the
other, as of the date hereof, that:
11.1.1. it is a corporation duly organized and validly
existing under the laws of the jurisdiction of its
incorporation and has all corporate powers and all
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material governmental licenses, authorizations,
permits, consents and approvals required to carry on
its business as now conducted;
11.1.2. the execution, delivery and performance by it of this
Agreement are within its corporate powers and have
been duly authorized by all necessary corporate
action on its part;
11.1.3. this Agreement constitutes a valid and binding
agreement enforceable against it in accordance with
its terms, except as (i) the enforceability hereof
may be limited by bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of
creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by
equitable principles of general applicability;
11.1.4. the execution, delivery and performance of this
Agreement by it require no action by or in respect
of, or filing with, any governmental body, agency or
official, except such filings as have been or shall
be timely made; and
11.1.5. the execution, delivery and performance of this
Agreement by it do not and will not (i) violate its
organizational documents, (ii) violate any applicable
law, regulation, judgment, injunction, order or
decree, or (iii) require any notice or consent or
other action by any person under, constitute a
default under, or give rise to any right of
termination, cancellation or acceleration of any
right or obligation of it or to a loss of any benefit
to which it is entitled under, any agreement or other
instrument binding upon it or any license, franchise,
permit or other similar authorization held by it.
11.2. WSS hereby represents and warrants that the WSS Research, and
the contents thereof, shall not infringe or violate any
copyright or other proprietary right of any third party.
11.3. Neither party shall be liable for any failure to perform any
obligation (other than payment obligations) hereunder, or from
any delay in the performance thereof, due to causes reasonably
beyond its control, including industrial disputes of whatever
nature, acts of God, public enemy, acts of government, failure
of telecommunications, fire or other casualty.
11.4. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WSS EXPRESSLY DISCLAIMS
ALL WARRANTIES WITH RESPECT TO THE WSS RESEARCH AND THE WSS
MARKS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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11.5. Under no circumstances will either party, its affiliates, or
their respective officers, employees, directors and agents be
liable for any indirect, incidental, special or consequential
damages with respect to the provision of the WSS Research to
DBC, including lost profits, regardless of whether such
damages could reasonably have been foreseen or prevented.
12. Indemnification
12.1. DBC shall defend and indemnify WSS and its affiliates and each
of their respective officers, employees, directors and agents,
and the heirs, executors, successors and assigns of each of
the foregoing (collectively, the "WSS Indemnified Parties")
from and against any and all Losses (as hereinafter defined)
incurred by any WSS Indemnified Party arising out of, relating
to or resulting from (i) any breach by DBC of any
representation, warranty, covenant or agreement of it
contained in this Agreement or in connection with the
transaction contemplated hereby, and (ii) the marketing, sales
and advertising of the WSS Research by DBC, including the
infringement of any third party's intellectual property rights
by the content of the DBC Web Sites other than the WSS
Research.
12.2. WSS shall defend and indemnify DBC and its affiliates and each
of their respective officers, employees, directors and agents,
and the heirs, executors, successors and assigns of each of
the foregoing (collectively, the "DBC Indemnified Parties")
from and against any and all Losses (as hereinafter defined)
incurred by any DBC Indemnified Party arising out of, relating
to or resulting from (i) any breach by WSS of any
representation, warranty, covenant or agreement of it
contained in this Agreement or in connection with the
transaction contemplated hereby, and (ii) any claims that the
content and distribution of the WSS Research or any WSS Mark
infringes any third party's rights, provided that (a) the
relevant claim does not arise from any modification of the WSS
Research or the WSS Marks made by DBC or any person receiving
the WSS Research through DBC, and (b) the relevant claim does
not concern content that WSS has notified DBC should not be
used.
12.3. For purposes of this Agreement, "Losses" means any and all
claims, losses, costs, obligations, liabilities, settlement
payments, awards, judgments, fines, penalties, damages,
expenses, deficiencies or other charges of any kind, nature or
description whatsoever, including reasonable attorneys' fees.
12.4. An indemnified party shall notify an indemnifying party in
writing of any claim for defense or indemnification hereunder,
including, without limitation, any claim for defense or
indemnification based upon a claim asserted by a third party
("Third Party Claim"), within a reasonable period of time
after the indemnified party first becomes aware of the
existence of such claim. Such notice shall specify the nature
of such claim in reasonable detail and the indemnifying party
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shall be given reasonable access to any documents or
properties within the control of the indemnified party as may
be useful in the investigation of the basis for such claim.
12.5. Within 10 business days after receiving written notice from
the indemnified party pursuant to Section 12.4, the
indemnifying party will have the right, exercisable by written
notice to the indemnified party, to assume the defense of a
Third Party Claim. If the indemnifying party assumes such
defense, the indemnifying party may select counsel reasonably
acceptable to the indemnified party.
12.6. If the indemnifying party (a) does not assume the defense
of any Third Party Claim in accordance with Section 12.5; or
(b) having assumed such defense, fails to defend against such
Third Party Claim with reasonable diligence; or (c) has been
advised by the written opinion of counsel to the indemnified
party that the use of the same counsel to represent both the
indemnifying party and the indemnified party would present a
conflict of interest under the applicable rules of
professional conduct; then upon 10 business days' notice the
indemnified party may assume the defense of such Third Party
Claim. In such event, the indemnified party will be entitled
to indemnification for the costs of such defense as Losses
under this Section 12.
12.7. The party controlling the defense of a Third Party Claim will
have the right to consent to the entry of judgment with
respect to, or otherwise settle, such Third Party Claim with
the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed; provided, that
such other party may withhold its consent if any such judgment
or settlement would impose a monetary obligation on such other
party that is not covered by the indemnification under this
Section 12, would impose material non-monetary obligations, or
does not include an unconditional release of such other party
and its affiliates from all claims of the Third Party Claim.
12.8. The indemnifying party and the indemnified party will
cooperate, and will cause their respective affiliates to
cooperate, in the defense or prosecution of any Third Party
Claim. The indemnifying party or the indemnified party, as the
case may be, will have right to participate, at its own
expense, in the defense or settlement of any Third Party
Claim.
13. Notices
All notices, requests, legal process or other communications
to be given hereunder shall be in writing and shall be given
by (a) certified or registered mail, return receipt requested,
or (b) nationally recognized commercial courier, addressed to
the other at the address hereinafter in this paragraph set
forth, or at such other address as may be designated in
writing by any such party to the other given in the manner
prescribed in this paragraph:
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If to WSS: Wall Street Strategies
130 William Street, suite 401
New York, NY 10038
212-514-9500
If to DBC: Data Broadcasting Corporation-eSignal
3955 Point Eden Way
Hayward, CA 94545-3720
510-266-6000
14. No Partnership or Joint Venture
This agreement does not constitute, and shall not be construed as
creating, any agency, employment, joint venture, partnership,
representation or fiduciary relationship between the parties. Except
with respect to WSS Indemnified Parties and DBC Indemnified Parties,
nothing herein contained shall give, or is intended to give, any rights
of any kind to third persons.
15. Successor and Assignment
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns upon written
agreement of both parties. A party shall not assign its rights under
this Agreement or this Agreement without the written consent of the
other party. Any attempted assignment without such written consent
shall be void. A sale or transfer of the business of either party to
which this Agreement relates, whether by a sale or transfer of assets
or of capital stock, or by merger, consolidation or other arrangement,
shall be deemed an assignment of this Agreement.
16. Waiver and Modification
No waiver, modification, alteration, amendment or cancellation of any
term or condition of this Agreement shall be effective unless executed
in writing and signed by both parties. No written waiver shall excuse
the performance of any act other than those specifically referred to
therein.
17. Construction
The validity, construction and enforcement of this Agreement shall be
governed by and interpreted in accordance with the laws of New York,
New York without regard to conflict of laws principles.
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18. Severability
If any sentence, paragraph, clause, or combination of the same in this
Agreement is held by a court or other tribunal of competent
jurisdiction to be unenforceable in any jurisdiction, such sentence,
paragraph, clause, or combination shall be unenforceable in the
jurisdiction where it is invalid and the remainder of this Agreement
shall remain binding on the parties in such jurisdiction as if such
unenforceable provision had not been contained herein. The
enforceability of such sentence, paragraph, clause, or combination of
the same in this Agreement shall be otherwise unaffected and shall
remain enforceable in all other jurisdictions.
19. Arbitration
Any controversy between the parties regarding payment obligations
hereunder that the parties are unable to resolve after 90 days of good
faith and diligent negotiations following the written notice of such
controversy by one party to the other party, shall be submitted to
arbitration before the American Arbitration Association, in accordance
with the rules then obtaining. The situs of any such arbitration shall
be in New York, New York. Any arbitration hereunder shall be before at
least three arbitrators and the award of the arbitrators, or a majority
of them, shall be final, binding and conclusive, and judgment upon the
award rendered may be entered in any court, state or federal, having
jurisdiction. The arbitrators shall apportion all costs and expenses of
the arbitration, including the arbitrators' fees and expenses of
experts between the prevailing and non-prevailing parties as the
arbitrators deem fair and reasonable, and may include in the award the
prevailing party's attorneys' fees and expenses in connection with any
and all proceedings under the arbitration.
20. Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior written or oral representations, commitments, understandings or
agreements.
IN WITNESS WHEREOF, the parties have executed this Sales and Marketing
Agreement as of the day and year first above written.
DATA BROADCASTING CORPORATION WALL STREET STRATEGIES, INC.
By /s/ Charles M. Thompson By /s/ Shawn D. Baldwin
---------------------------------- --------------------------------
Charles M. Thompson Shawn D. Baldwin
Senior Vice President & Managing Title: Chief Strategy Officer
Director
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EXHIBIT A
TO SALES AND MARKETING AGREEMENT
WSS will provide the following content in the co-branded Street Shots product:
1. [***] daily market commentary at approximately [***] and [***] New York
City time with Trading Tip box and archived commentary.
2. Stock Updates at approximately [***] and [***] New York City time. (Not
all Stock Updates will include an actual buy recommendation due to
unfavorable market conditions.)
Each Stock Update will include:
[***]
3. Track Record for Street Shots
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