FinancialContent Services, Inc. ("FC") and the undersigned customer ("Customer") agree to enter into this agreement ("Agreement") in accordance with the terms and conditions set forth below and in the executed FinancialContent Syndication Agreement ("Syndication Agreement"). FC agrees to provide services to support Customer in the distribution, retraction and tracking of press releases.
Agreement shall commence on the effective date ("Effective Date") as specified in Syndication Agreement, and unless terminated earlier as permitted hereunder, will continue for the length of the term as set forth in the Syndication Agreement ("Initial Term"), which at the end of Initial Term will automatically convert to recurring terms ("Recurring Terms") (each Initial Term and Recurring Terms collectively referred to as "Term”), until at least sixty (60) days written notice of termination is given by either party prior to the end of the then-current Term.
FC agrees to process full-text feeds in RSS, Atom or other mutually agreed upon format provided by Customer at regular intervals ("Feeds"), to parse press releases contained within Feeds ("Releases"), and to distribute Releases to online media outlets by all means necessary and to the best of FC's ability. FC may at its sole discretion further parse tags that are embedded in Feeds by Customer. FC reserves the right to alter Releases in order to enhance their presentation and positioning with respect to search engine optimization.
Upon written notification by Customer, FC agrees to retract Releases within two business days by all means necessary and to the best of FC's ability. FC cannot effect retraction of copies of Releases that have been parsed and cached by other online services.
FC agrees to track Releases by all means necessary and to the best of FC's ability. FC shall provide clipping reports identifying the URLs of Releases that have been distributed ("Clippings"). FC may change the size and format of Clippings at its sole discretion and without notice.
FC and Customer agree that the above services provided by FC ("FC Services") are not exclusive to Customer.
Fees. In consideration of FC Services provided by FC to Customer in Agreement, Customer, or Payor if different from Customer as specified in the Syndication Agreement, will pay FC all fees and charges as set forth and scheduled on the Syndication Agreement ("Fees"). All recurring Fees shall be invoiced in advance and must be prepaid by the 1st of the calendar month, with no grace period for late payment. Unless otherwise expressed in the Syndication Agreement, billing shall commence on the Effective Date. Unless otherwise expressed in the Syndication Agreement, total due to initiate services as specified in the Syndication Agreement shall be payable before the commencement of FC Services.
Late Payments. All amounts owed hereunder not paid when due and payable will bear interest from the date such amounts are due and payable at the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum allowable rate of interest in the State of California for transactions between sophisticated commercial entities. FC shall have the right to suspend Customer's access to any FC Services until all invoices are paid.
Fee Increases. Upon the commencement of the thirteenth (13th) month and at each subsequent twelfth (12th) month anniversary that Agreement is in effect, FC reserves the right to increase the recurring fees payable for the FC Services as set forth on the Syndication Agreement. FC agrees to cap such fee increases to no more than ten (10) percent, based on fees that were payable in the last recurring period of the prior term. In the event of a fee increase, Customer may terminate Agreement upon written notice effective as of the date of increase, without further obligation.
FC reserves the right to remove Releases without the permission of Customer when compelled by legal mandates or court orders.
FC owns and controls its trade name and trade marks ("Marks"). FC may at its sole discretion grant the use of Marks to Customer. Customer acknowledges that Marks are valuable intellectual property of FC. Any goodwill generated through Customer's use of Marks shall inure solely to the benefit of FC.
Due to the inherent unreliability of the Internet and computers, FC and its affiliates shall have no liability to Customer or any third party for any loss, expense, or damages relating to reduced performance, accuracy, interruption, or termination of FC Services. Customer agrees to hold FC and its affiliates harmless from and against such loss, expense, or damages based upon any third party claims relating to FC Services.
FC will maintain a support ticket system at support@financialcontent.com, for the purpose of providing tracking for Customer issues, and will respond to Customer issues within four (4) hours from the time at which a ticket is opened, Monday through Friday during normal business hours. For all requests made on other days and at other times, FC will respond within one (1) business day from the time of such inquiry. For clarification, FC does not guarantee the resolution of Customer issues within one (1) business day
During the term of this Agreement, each party may have access to certain nonpublic information of the other party, which information a reasonable person would consider confidential or which will be labeled as "confidential" or "proprietary" by party ("Confidential Information"). Confidential Information does not include information that is generally known and available or becomes available, or in the public domain through no fault of the receiving party. Each party agrees (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except carrying out its rights and responsibilities under this Agreement, and (iii) to use that degree of care, which it uses with respect to its own confidential information to keep the Confidential Information confidential. The obligations under this paragraph survive for 3 (three) years after termination of this Agreement. Each party may disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement as required by any court or any governmental body and as otherwise required by law only after the party has given the other party reasonable notice and an opportunity to move for an injunction. Additionally, each party may disclose the terms and conditions of this Agreement to accountants, banks, and financing sources and their advisors and in connection with an actual or proposed merger, acquisition, public offering, or similar transaction; provided that such third parties are subject to confidentiality obligations.
Force Majeure. Neither party will be liable for any failure to perform any obligation hereunder, or for any delay in the performance thereof, due to causes beyond its control (each a "Force Majeure"), including, but not limited to, acts of God, war, terrorism, or riot; embargoes; strikes or other industrial disputes; acts of civil or military authorities; denial of or delays in processing of export license applications; fire, floods, earthquakes, or other accidents; or fuel crises or failures of telecommunication or electric power; provided that such part gives prompt written notice thereof to the other party.
Special Damages. Under no circumstances will either party be liable for any indirect, incidental, special, punitive or consequential damages with respect to the subject matter hereof, including lost profits, regardless of whether such damages could have been foreseen or prevented by either party.
Aggregate Liability. Except for the parties' obligation under Section 14 and to the extent permitted by law, in no event will the aggregate liability of either party to the other party or to any third party for damages, direct or otherwise, arising out of or in connection with this Agreement exceed the total value of the Fees payable to FC during the Initial Term regardless of the cause or form of action; provided, however, that the foregoing limitation on liability shall not apply to any violation by Customer of the provisions of Section 3, 6,7, and 8, hereof.
Limitation of Action. No action arising out of Agreement (other than an action for any Fees or expenses owing by Customer or Payor) may be brought more than one year after the date the cause of action first became known
Generally. Each party hereto represents and warrants that: (a) it has the full right and power to enter into and fully perform this Agreement in accordance with its terms; and (b) the execution, delivery and performance of this Agreement will not violate rights granted by such party to any third party or violate the provisions of any agreement to which it is a party or violate any applicable law or regulation, including those regarding export control.
"FC Warranties. FC represents and warrants that (a) FC is the Owner of the FC Services; (b) FC has the right to provide FC Services; (c) and the FC Services are free from any claim that Customer's receipt and use of such infringes on any copyright, trade secret, trademark, trade dress of any third party or knowingly infringes upon any patent right of any third party.
Customer Warranties. Customer represents and warrants that (a) Customer owns the copyrights on Releases or has been assigned the copyrights to Releases; (b) Customer has the irrevocable right to engage FC for FC Services; (c) Customer has the exclusive and irrevocable right to delete Releases.
Exclusion of Warranties. To the extent permitted by law, FC and its affiliates shall not be liable for any damages suffered or incurred by Customer or any third party arising out of any faults, interruptions, or delays in FC Services or any inaccuracies, errors, or omissions in FC Services. Except as expressly stated in this agreement, no warranties, conditions, guarantees, or representations (as used in this section, "warranties") are made as to merchantability, fitness for a particular purpose, or the warranties, whether expressed or implied, in law or in fact, oral or in writing. Each party hereby acknowledges that it has not relied upon any warranty made by the other except as specifically set forth in this agreement.
Indemnification by Customer. Customer shall indemnify and hold FC harmless from and against any and all liabilities, damages, awards, settlements, losses, claims, and expenses, including reasonable attorney's fees and costs or investigation ("Damages"), due to any claim by a third party relating to or arising out of (a) the misuse of the FC Services by Customer, its affiliates and its users; (b) a breach or violation of this Agreement by Customer; (c) infringement by Customer on any third party's intellectual property rights; and (d) any representation made by Customer based on reduced performance, accuracy, interruption, or termination of the FC Services as set forth under Section 9 above. Customer shall uphold these indemnification terms by updating the terms and conditions that bind the Customer's affiliates and users.
Indemnification by FC. FC shall indemnify and hold Customer harmless from and against any and all Damages due to any claims by a third party that FC Services infringes on any third party's intellectual property rights; provided that (a) the relevant claim does not arise from any modification made by Customer to FC Services; and (b) the relevant claim does not concern FC Services that FC notified Customer should not use; further provided that (c) if the relevant claim is based upon content obtained by FC from a third party, FC shall be obligated to indemnify Customer only to the extent such third party has agreed to indemnify FC Customers.
Notice and Participation. A party seeking indemnification pursuant to this Section 14 (an "Indemnified Party") from or against the assertion of any claim by a third party will give prompt notice to the party from whom indemnification is sought (the "Indemnifying Party"); provided, however, that failure to give prompt notice will not relieve the Indemnifying Party of any liability hereunder (except to the extent he Indemnifying Party has suffered actual material prejudice by such failure). The Indemnifying Party and the Indemnified Party will cooperate in the defense or prosecution of any third party claims.
Termination for Breach. In addition to any other remedy available at law or in equity, either party may terminate this Agreement immediately, without further obligation to the other party, in the event of any material breach of this Agreement by the other party that is not remedied within thirty (30) days following written notice of such breach.
Termination for Interruption of Services. In the event that, due to any reason within FC's control, FC Services are interrupted for a continuous period of five (5) days following written notice to FC of such interruption, Customer may terminate this Agreement immediately without further obligation.
Rights upon Termination. Upon termination of this Agreement for any reason, all rights granted to Customer hereunder shall terminate.
Obligations Upon Termination. Promptly upon Termination of this Agreement for any breach, Customer agrees to (a) delete or otherwise destroy any FC Services stored or otherwise in its possession, custody, or control; and (b) all Fees payable under the then-current Terms shall be accelerated and immediately become due and payable along will all other accrued Fees and expenses. In the event this Agreement is terminated by Customer for breach by FC, FC agrees to refund, pro rata, any unused Fees paid in advance.
Similar Agreements. Nothing in this Agreement will be deemed to limit or restrict either party from entering into similar agreements with any other party, or from offering services similar to the other party's.
Controlling Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict law principals, and shall not be effective until accepted by FC. Any purchase order issued by Customer for FC Services covered by this Agreement shall be considered only as confirming the existence of the Agreement, and if terms and conditions of the purchase order conflict with this Agreement, this Agreement shall govern. This Agreement is to be performed in San Mateo, County California. The parties hereto submit and consent to the exclusive jurisdiction of the state and federal courts in and for the State of California, for the purpose of all legal proceedings arising out of or relating to this Agreement.
Attorneys Fees and Costs. Should either party, through any court of competent jurisdiction or otherwise, successfully enforce any of the terms and conditions of this Agreement against the other party, the losing party agrees to pay to the prevailing party its costs including reasonable attorneys' fees.
Notices. Except as otherwise provided herein, whenever any notice, request, consent, approval, or other communication shall be given by one party to the other, such communication shall be delivered by a reputable overnight courier, to the addresses named in the Syndication Agreement, or to such other address as either party may specify in notice given hereunder. Notice shall be deemed given upon receipt.
Assignment. This Agreement will be binding upon and inure to the benefit of the parties, their respective personal representatives, and permitted successors and assigns. Customer may not assign or otherwise transfer any of its rights or delegate any of its obligation under this Agreement without the express prior written consent of FC, such consent not to be unreasonably withheld, but in no event to any entity that (a) FC considers a competitor; (b) could harm FC's reputation; or (c) lacks sufficient assets to meet Customer's obligations hereunder. FC reserves the right, in its sole discretion, to assign this Agreement to a controlled subsidiary or business successor of FC. Each party will respond to any written request for consent within thirty (30) days of receipt of such request, and in failing to respond consent will be deemed granted.
Relationship between the Parties. No joint venture, partnership, agency, or fiduciary relationship exists between the parties, and the parties do not intend to create any such relationship by this Agreement.
Amendments and Waivers. This Agreement may not be amended, modified, or suspended unless expressly agreed to in writing by both parties. No provision of this Agreement may be waived except by an instrument in writing executed by the party against whom the waiver is to be effective. The failure of either party at any time or times to require full performance of any provision hereof will in no manner affect the right of such party at a later time to enforce the same.
Severability. If any provision of this Agreement, not being of a fundamental nature, is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remainder of the Agreement will not be affected.
Survival. The provisions of Section 11, 12, 14, 15 and 16(ii), (iii) and (ix) of this Agreement will survive the termination of the Agreement.
Continuity. Unless terminated earlier in accordance herewith, this Agreement shall be continuous and shall survive each successive Term.