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EXHIBIT 10.5
FINAL
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made on the 10th day of May, 1999, by and
between NewsReal, Inc., a Delaware corporation ("NewsReal"), with its principal
place of business at 66 Canal Center Plaza, Suite 700, Alexandria, VA 22314, and
infoUSA Inc, a Delaware corporation ("Distributor"), with its principal offices
5711 South 86th Circle, Box 27347, Omaha, NE 68127.
RECITALS:
NewsReal is an on-line provider of a business software and information
services product known as IndustryWatch. NewsReal has developed and maintains a
proprietary computerized system (the "System") through which it offers various
remote services, including but not limited to delivery of information by
computer, telephone, and Internet services to its users (the "NewsReal Users").
Distributor desires to introduce the service to its users and NewsReal desires
to make the Service available to those users, subject to the terms and
conditions of this agreement.
For good and valuable consideration, receipt of which is hereby
acknowledged, in consideration of the mutual covenants and conditions herein set
forth, and with the intent to be legally bound, NewsReal and Distributor hereby
agree as follows.
A. DEFINITIONS
1. Distributor Site: As used herein, the term "Distributor Sites" mean the
national Internet World Wide Web site maintained by Distributor (currently
known as "INFOUSA.com").
2. Distributor Users: As used herein, the term "Distributor User" or
"Distributor Users" means persons who access the Service by using Links
maintained on the Distributor Site.
3. Links: As used herein, the term "Link" or "Links" means hypertext links,
graphic devices, files or images, or similar functions, which access the
Virtual Domain to be maintained by NewsReal pursuant to this Agreement when
activated by a Distributor User.
4. NewsReal Site: As used herein, the term "NewsReal Site" means the Internet
World Wide Web site maintained by NewsReal for the purpose of providing
access to the Service, including any Virtual Domain required to be
maintained by NewsReal pursuant to this Agreement.
5. Service: As used herein, the term "Service" means NewsReal's business
software and information service known as IndustryWatch, including the
features, benefits, and information sources described in Schedule C to this
Agreement and as more fully described or from time-to-time modified in
Schedule A hereto.
6. System: As used herein, the term "System" means the proprietary
computerized system developed, owned, operated and maintained by NewsReal
for the delivery of the Service.
7. Virtual Domain: As used herein, the term "Virtual Domain" means a page or
segment of an Internet World Wide Web site, replicating the look and
character of and accessed through the Distributor Site and bearing the
branding of both Distributor and NewsReal.
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B. OBLIGATIONS OF NEWSREAL
1. Subject to the terms, conditions, and restrictions of this Agreement,
NewsReal grants Distributor a nonexclusive license to permit Distributor
Users to access the Service through the Distributor Site and the System.
The foregoing license is solely for the purpose of permitting Distributor
to allow Distributor Users to access the Service in accordance with this
Agreement, and shall not be construed to grant a license to use, store or
distribute the Service or its content for any other purpose (including
Distributor's branding, redistribution or resale of any licensed content).
By way of illustration and without limiting the foregoing, the nonexclusive
license granted Distributor by NewsReal does not permit Distributor to
distribute raw feeds of content or to make any portions of its product
available to other distributors for inclusion in their products.
2. NewsReal will be responsible for providing the information and content
contained in the Service. The content currently provided in the Service is
listed in Schedule C attached hereto. NewsReal reserves the right to add,
modify, or withdraw information or content from the Service without notice
at any time. Distributor is granted the right to add to or suppress
information or content included in the Service, subject to the limitations
and conditions contained in this Agreement.
3. Distributor acknowledges and agrees that NewsReal has the right to
distribute and provide access to the Service through sources or systems
other than Distributor and that the rights granted hereunder are not
exclusive to Distributor.
4. NewsReal hereby grants Distributor the right to install and maintain Links
from the Distributor Sites to the NewsReal Site. The Links used by
Distributor for this purpose shall be as designated on Schedule B attached
hereto.
5. NewsReal agrees to create, host, and maintain, on servers operated and
maintained by or at the direction of NewsReal, a Virtual Domain that
replicates the look and character of the Distributor Site, as provided in
Schedule A. The appearance of the Virtual Domain created pursuant to this
Agreement shall be subject to the approval of Distributor to the extent
provided in Schedule A.
6. Subject to the Revenue Share obligations described in Schedule A.2.6
NewsReal will supply and display third-party advertising (Ads) for the
Virtual Domain, provided however, that
a) two percent (2%) of the total Ads that appear on the Virtual Domain
will be Ads for Distributor products and services provided to NewsReal
by Distributor (Distributor Ads);
b) No Ads from Distributor's competitors in the business list, consumer
list, business credit, or Internet directory services industries will
be displayed. Such competitors include, but are not limited to: Dun &
Bradstreet, Experian and Acxiom.
c) Upon 120 days prior written notice, Distributor may, at its sole
option, supply its own third-party advertising (Ads) for a revenue
share to be negotiated by the parties in good faith. At the end of the
notice period, NewsReal will no longer have any obligation to provide
Ads for the Virtual Domain.
7. NewsReal will provide reports to Distributor within forty-five (45) days
following the end of each calendar quarter during the term of this
Agreement. The information contained in these reports shall contain at a
minimum all information regarding traffic and page views by Distributor
Users accessing the Service via the Distributor Site (including but not
limited to which portion of the NewsReal Site such traffic was generated).
8. NewsReal shall provide service and support to Distributor as provided in
Schedule A.
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9. Subject to the license granted by this Agreement, NewsReal reserves and
retains all right, title, and interest, including but not limited to all
copyright and other intellectual property rights, in and to the Service.
C. OBLIGATIONS OF DISTRIBUTOR
1. Distributor will use all commercially reasonable and diligent efforts to
promote and encourage Distributor User access to the Service.
2. Distributor will not remove any copyright notice or disclaimer included in
or appended to the Service, the Virtual Domain or any other information
provided by NewsReal pursuant to this Agreement.
3. Distributor agrees not to alter, modify or change any of the information
contained in the Service without the prior written authorization of
NewsReal. Distributor may, however, choose not to display every story. Any
approved changes made by Distributor are the sole responsibility of the
Distributor.
4. Distributor acknowledges and agrees that NewsReal may display advertising
on the Virtual Domain, including but not limited to such advertising as
banner ads and sponsorships, as further provided in Schedule A.
5. Distributor agrees that if this Agreement is terminated pursuant to
paragraph I hereunder, the Service shall not be used, sold or otherwise
distributed by Distributor or Distributor Users following the effective
date of termination.
6. Distributor hereby grants NewsReal the right to install and maintain a Link
from the NewsReal Site to the Distributor Site, subject to the terms and
conditions of this Agreement. The respective icons and logos of NewsReal as
screen indicators of the Link shall be designated on Schedule B attached
hereto, according to the specifications and placement, artwork and design
supplied by NewsReal and used in accordance with Section D, Paragraph 2.
D. USE OF BRANDING.
1. The use of trademarks, trade names, and logos of the parties on the Virtual
Domain shall be as specified in Schedule B.
2. NewsReal agrees not to use or display any trademark, trade name, or logo of
Distributor in any manner, except as permitted by this Agreement.
3. Distributor agrees not to use or display any trademark, trade name, or logo
of NewsReal in any manner, except as permitted by this Agreement.
E. PAYMENTS
1. Payments to be made by NewsReal to Distributor and by Distributor to
NewsReal shall be made as described in Schedule A attached hereto.
2. Any payments required to be made by NewsReal to Distributor under this
Agreement, including without limitation any payments referred to in
Schedule A, shall be made within thirty (30) days of the end of the month
in which the Ad Revenue and E-commerce revenue or fees are collected.
NewsReal acknowledges that if Distributor elects to provide its own
third-party advertising for the Virtual Domain (as described in paragraph
B.6.c) such election shall not terminate, diminish or otherwise affect
NewsReal's obligations to pay Distributor Revenue Shares owed to, but not
collected by NewsReal from third parties.
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3. NewsReal shall notify Distributor regarding changes in the cost of the
Service for each subsequent renewal term, if any, of this Agreement, no
later than sixty (60) days prior to the start of each such renewal term.
F. CONFIDENTIAL INFORMATION
1. Either NewsReal or Distributor may disclose to the other certain
information that the disclosing party deems to be confidential and
proprietary ("Confidential Information"). Such Confidential Information
will be clearly and conspicuously identified at the time of its first
disclosure to the receiving party. Such Confidential Information includes,
but is not limited to, the terms of this Agreement, documentation related
to the Service, and technical and other business information of NewsReal
and Distributor that is not available to the general public.
2. The party receiving Confidential Information agrees not to disclose such
information to persons or entities other than that party's officers,
directors, employees, agents, attorneys, or contractors with a need to know
such information, for a period of two (2) years following the date on which
this Agreement is terminated. Further, the parties agree not to use
Confidential Information they receive for any purpose other than the
formation or performance of this Agreement. The receiving party shall be
liable for any improper use or disclosure of Confidential Information by
any officer, director, employee, agent, or contractor to whom such
information is disclosed.
3. Within fourteen (14) days of the date on which a written request therefore
is received from the disclosing party, the receiving party shall return all
Confidential Information together with all materials in any media or format
whatsoever which contain such Confidential Information and not retain any
copies of the same.
4. The receiving party will not be required to keep Confidential Information
that becomes known to the general public without fault on its part; is
already in the receiving party's possession prior to its receipt from the
disclosing party; is independently developed by the receiving party,
without the use of any Confidential Information; or is provided to the
receiving party by third parties not subject to any nondisclosure or
confidentiality agreement with the disclosing party.
5. The receiving party may disclose Confidential Information in a manner not
otherwise permitted by this Agreement if prior written authorization is
obtained from the disclosing party. The receiving party may also disclose
Confidential Information in response to any order, warrant, subpoena, or
other form of legally enforceable demand, provided that prior written
notice of such a demand is given to the disclosing party as soon as
practicable, in order to permit the disclosing party to seek an order
limiting or preventing disclosure.
G. WARRANTIES AND DISCLAIMERS
1. NewsReal represents and warrants to Distributor that:
(a) Its entry into this Agreement does not violate any agreement with any
other party.
(b) The use of the Service and any of NewsReal marks licensed hereunder as
contemplated by this Agreement does not to the knowledge of NewsReal
infringe any trade name, trademark, service mark, copyright or patent.
(c) The delivery or use of the Service does not to the knowledge of
NewsReal invade or violate any right to privacy, personal or
proprietary right, or other common law or statutory right of any
person.
(d) Its performance under this Agreement and the use of the Service by
Distributor anticipated by this Agreement conforms to all applicable
laws and government rules and regulations.
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2. Distributor represents and warrants that:
(a) Its entry into this Agreement does not violate any agreement with any
other party
(b) Its performance under this Agreement will conform to applicable laws
and government rules and regulations.
(c) The use of the Distributor marks as contemplated by this Agreement does
not to the knowledge of Distributor infringe any trade name, trademark,
service mark, copyright or patent.
3. THE PARTIES AGREE THAT THE WARRANTIES STATED HEREIN ARE EXCLUSIVE AND THAT
THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE RELATING TO ANY MATTERS IN THIS AGREEMENT INCLUDING,
WITHOUT LIMITATION, THE SERVICE, DISTRIBUTOR'S COMPUTING AND DISTRIBUTION
SYSTEM OR ANY OTHER COMPUTER OR TECHNICAL RESOURCES PROVIDED BY EITHER
PARTY.
4. THE PARTIES AGREE THAT, EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY
WARRANTS THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED IN THE
SERVICE, DISTRIBUTOR SITE OR VIRTUAL DOMAIN (COLLECTIVELY "PROPERTY") OR
PROVIDED HEREUNDER AND NEITHER PARTY SHALL BE LIABLE IN ANY MANNER TO THE
OTHER PARTY BASED ON ANY USE OF THE INFORMATION PROVIDED UNDER THE
PROPERTY. FURTHER, NEITHER PARTY SHALL BE LIABLE FOR ANY DELAY, INACCURACY,
ERROR OR OMISSION IN THE INFORMATION PROVIDED UNDER THE PROPERTY OR
RESULTING FROM THE TRANSMISSION, DELIVERY OF, OR ANY FAILURE TO DELIVER ANY
PART OF THE PROPERTY. HOWEVER, SUCH DELAYS, ERRORS, OMISSIONS, OR FAILURES
TO DELIVER AS TO ALL OR PART OF THE PROPERTY MAY RESULT IN THE TERMINATION
OF THIS AGREEMENT PURSUANT TO SECTION I.
5. THE PARTIES AGREE AND ACKNOWLEDGE THAT DISTRIBUTOR DOES NOT WARRANT THE
PERFORMANCE OF DISTRIBUTOR'S COMPUTING AND DISTRIBUTION SYSTEM AND
DISTRIBUTOR SHALL NOT BE LIABLE IN ANY MANNER TO NEWSREAL FOR FAILURES OF
THAT SYSTEM, OR FOR ANY DELAY, INACCURACY, ERROR, FAILURE OR OMISSION
RELATED TO THE PERFORMANCE OF THAT SYSTEM. HOWEVER, SUCH DELAYS, ERRORS,
OMISSIONS, OR FAILURES TO DELIVER AS TO ALL OR PART OF THE SERVICE MAY
RESULT IN THE TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION I.
H. LIMITATION OF LIABILITY AND INDEMNIFICATION
1. Neither party shall be liable to the other in any event for any damages,
direct or indirect, including, but not limited to, damages and losses
resulting from loss of data, loss of profits arising out of this Agreement,
or for any incidental or consequential damages, even if advised to the
possibility of such damage, except as set forth herein. However, nothing in
this section shall be construed to prevent either party from seeking
indemnification or contribution from the other, in the event that one party
is required to pay any third party based on a claim that arises in whole or
in part from the conduct of the other party.
2. In the event any third person or entity asserts any claim, suit loss,
liability, obligation, demand, damages or expenses against Distributor
based upon a breach of any warranty made by NewsReal described in this
Agreement, NewsReal hereby agrees to defend, indemnify and hold Distributor
and its parents, subsidiaries, directors, officers, employees and
shareholders harmless from and against any and all such claims. NewsReal's
obligation to indemnify Distributor hereunder shall be conditioned upon (a)
Distributor providing NewsReal with prompt notice of any claim, which
notice shall in any event be given in enough time to allow NewsReal to
defend such claim, (b) Distributor fully cooperating with NewsReal at
NewsReal's expense in defense of the claim, and (c) Distributor
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allowing NewsReal to control the defense including any potential
settlement of claims, provided that Distributor shall be notified of any
have the right to approve or disapprove any settlement.
3. In the event any person or entity asserts any claim, suit, loss,
liability, obligation, demand, damages or expenses against NewsReal based
upon a breach of any warranty by Distributor described in the Agreement,
Distributor hereby agrees to defend, indemnify, and hold NewsReal and its
parents, subsidiaries, directors, officers, employees and shareholders
harmless from and against any and all such claims. Distributor's
obligation to indemnify NewsReal hereunder shall be conditioned upon (a)
NewsReal providing Distributor with prompt notice of such claims, which
notice shall in any event be given in enough time to allow Distributor to
defend such claims, (b) NewsReal fully cooperating with Distributor at
Distributor's expense in the defense of such claims, and (c) NewsReal
allowing Distributor to control the defense including any potential
settlement of such claims, provided that NewsReal shall be notified of
any have the right to approve or disapprove any settlement.
I. TERM AND TERMINATION
1. This Agreement shall be effective from the date set forth in Schedule A
and shall continue in force for an initial term as set forth in Schedule
A attached hereto.
2. Either party shall have the right to terminate this Agreement if the
other party is in default of any obligation herein, which default is
incapable of cure or which, being capable of cure, has not been cured
within thirty (30) days after receipt of written notice of such default
from the non-defaulting party, or within such additional cure period as
the non-defaulting party may authorize.
3. Either party may terminate this Agreement by written notice to the other,
and may regard the other as in default of this Agreement, if the other
party becomes insolvent, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a receiver for its
business or assets, initiates or becomes subject to any proceeding under
any bankruptcy or insolvency law, or has wound up or liquidated its
business. Debts and credits outstanding as of the date of termination
between the parties shall survive termination for any cause.
4. NewsReal shall have the right to terminate this Agreement at any time on
thirty (30) days prior written notice to Distributor if the ability of
NewsReal to provide the Service is substantially impeded by the request
or actions of any federal or state regulatory agency.
5. The rights and obligations provided by the following sections of this
Agreement shall survive its termination: section F, section I, section M,
and section N.
J. ADVERTISING AND PROMOTION
1. Each party agrees to submit to the other party for written approval all
advertising or other promotional materials, including press releases,
that use company names, service marks, or trademarks of the other party
or make reference to any understanding or relationship in this Agreement,
no fewer than seven (7) days before proposed use. Such approval will not
be unreasonably withheld. Unless notice of approval or disapproval is
received within five (5) days of receipt of advertising or other
promotional materials, approval will be considered granted.
2. The parties agree to create a plan to announce the launch and
availability of the Service on Distributor's Site, through separate press
releases or a joint press release as mutually agreed by the parties, and
on a release date as mutually agreed. The release date of such
announcement(s) shall be prior to or coinciding with the availability of
the Service or such other date as mutually agreed. Either party, however,
may identify the other in its published listing of available services or
distributors without the written approval specified in section J(1),
following the announcement of the Service as defined in this section.
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K. FORCE MAJEURE
Neither party shall be liable for delay or default in the performance of
its obligations under this Agreement if such delay or default is caused
by conditions beyond its control, including but not limited to
unanticipated interruptions in services to and access from Internet
service providers for either party, fire, flood, accident, storm, acts of
war, riot, government interference, strikes or walkouts.
L. NOTICES
1. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly delivered: (a) on the day they are
delivered personally; (b) three (3) business days after having been sent
by registered or certified mail, return receipt requested, postage and
charges prepaid; (c) two business days after deposit with a commercial
overnight carrier, with written verification of receipt, or (d) one
business day after delivery by facsimile, with written confirmation of
message delivery.
2. Notices required to be provided by this Agreement shall be delivered to
the following addresses, or to such other address as either party
hereafter designates in writing as its notice address:
(a) If to NewsReal:
NewsReal, Inc.
Attention: Chief Financial Officer
Suite 700
66 Canal Center Plaza
Alexandria, VA 22314
Fax No. 703-548-9161
(b) If to Distributor:
William J. Chasse
President and CEO
INFOUSA.com
5711 South 86th Circle, Box 27347
Omaha, NE 68127
Fax # 402-593-4671
M. GENERAL TERMS AND CONDITIONS
1. The parties to this Agreement are independent contractors. Neither party
is an agent, representative, or partner of the other party. Neither party
shall have any right, power, or authority to enter into any agreement for
or on behalf of, to incur any obligation or liability for, or to
otherwise bind the other party. This Agreement shall not be interpreted
or construed to create an association, joint venture, or partnership
between the parties, or to impose any partnership obligation or liability
on either party.
2. Neither party may assign this Agreement without the written consent of
the other party, provided, however, this entire Agreement may be assigned
without the other party's consent to a successor entity in the event such
successor receives substantially all of such party's assets by merger,
consolidation, or purchase, and provided that such successor (a) is not a
direct competitor of the non-assigning party, and (b) has financial
assets equal to or greater than that of the assigning party, and (c) is
bound by law or written agreement to all of the obligations of the
assigning party under this Agreement. If either party breaches this
paragraph M.2, the non-breaching party shall have the right to
immediately terminate the Agreement.
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3. No modification, amendment, novation, or renewal of this Agreement will be
effective unless set forth in a writing signed by both parties. No waiver
of any right or obligation under this Agreement will be effective against
unless set forth in a writing signed by both parties.
4. In case one or more of the provisions of this Agreement shall be deemed
illegal, invalid, or unenforceable, such illegality, invalidity, or
unenforceability shall not affect the other provisions of this Agreement.
5. The terms and conditions of this Agreement will be construed in accordance
with the laws of the Commonwealth of Virginia.
6. Except for that certain agreement between American Business Information,
Inc. ("ABI") and NewsReal dated July 21, 1998, this Agreement constitutes
the entire agreement between the parties and supersedes all prior agreements
or understandings with respect to the subject matter hereof.
7. The headings used in this document are for convenience only and are not
to be construed to have legal significance.
IN WITNESS WHEREOF, this Agreement has been duly executed by an authorized
officer of the undersigned parties as of the last date set forth on Schedule A
attached hereto.
NEWSREAL, INC. INFOUSA INC.
By: /s/ Scott Slater By: /s/ D.J. Thayer
---------------------------------- --------------------------
Name: Scott Slater Name: D.J. Thayer
Title: Vice President of Business Title: Senior Vice President
Development
Date: 5-5-99 Date: 5-5-99
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AMENDMENT TO DISTRIBUTION AGREEMENT
This amendment (the "Amendment") is made to the Distribution Agreement (the
"Agreement") between NewsReal, Inc. ("NewsReal") and [[infoUSA, Inc.]], a
[[Delaware]] corporation ("Distributor"), dated as of 31 December 1999. All
capitalized terms used in this Amendment shall be as set forth in the
Agreement, except as otherwise set forth herein.
RECITALS
The parties desire to amend the Agreement to provide for the integration
of additional information services described on Schedule A-1 attached hereto
and the creation, development and maintenance of a custom business report
generator, as described on Schedule D-1 attached hereto. The parties desire to
continue the Agreement in all other respects.
NOW, THEREFORE, in consideration of the mutual premises and covenants set
forth herein, the parties hereto agree as follows:
1. Distributor and NewsReal agree to extend the term of the Agreement (the
"Term") for a period of twelve (12) months from the date of this Amendment,
subject to the additional terms and conditions set forth below. To that end,
Distributor desires to have NewsReal continue to provide, and NewsReal desires
to continue to provide Distributor,the SmallBiz Service as described in the
Agreement. Additionally, the Distributor desires to have NewsReal provide the
IndustryWatch Service, and custom business report generator product described in
Schedule A-1 and D-1 attached hereto for the Term of the Agreement as extended
hereunder on the terms and conditions set forth in the Agreement and in this
Amendment.
2. From the Effective Date of this Amendment and for the remainder of the
Term, Distributor agrees to pay NewsReal the fees set forth in Annex 1 attached
hereto.
3. Section L.2(a) of the Agreement is deleted in its entirety and in lieu
thereof, the following language is inserted:
"L. NOTICES
"2. If to NewsReal:
NewsReal, Inc.
Attention: Vice President of Sales
66 Canal Center Plaza
Suite 700
Alexandria, VA 22314
Fax. No.: (703) 548-9161
With a copy to:
Wayne M. Zell, Esq.
Powell, Goldstein, Frazer & Murphy, LLP
6th Floor South
Washington, D.C. 20004
Fax. No.: (202) 624-7222".
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4. Except as provided herein, all other terms and conditions of the Agreement
shall remain in full force and effect. Any conflict between the terms and
conditions contained in the Agreement and in this Amendment shall be governed
by reference to the terms and conditions of the Agreement.
IN WITNESS WHEREOF, the duly authorized representatives of each of the
parties hereto have executed this Amendment on the last date set forth below:
NEWSREAL, INC. infoUSA, INC.
By: /s/ Jeffrey P. Massa By:
Name: Jeffrey P. Massa Name:
Title: CTO Title:
Date: 12/28/99 Date:
