Skip to main content
Find a Lawyer

Services Agreement - LLC and Data Broadcasting Corp.

                              AMENDED AND RESTATED
                               SERVICES AGREEMENT

        This AGREEMENT made as of the 13th Day of January, 1999, by and
between MARKETWATCH.COM.LLC, 825 Battery Street, San Francisco, CA 94111,
(herein called 'MarketWatch') and DATA BROADCASTING CORPORATION, 3955 Point Eden
Way, Hayward, CA 94545 (herein called 'DBC') hereby amends and restates this
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 Broadcasting, Inc. (formerly known as CBS, Inc.), DBC and


        1.1 During the term of this Agreement, subject to the terms and
conditions stated herein

                (a) at the request of MarketWatch, DBC will perform the
following services for MarketWatch:

                (i) (A) subject to MarketWatch's prior approval in each
                instance, DBC shall engage or employ personnel assigned to
                service MarketWatch (hereinafter referred to as 'MarketWatch
                Employees') on a full-time or part-time basis as needed,
                including the calculation and administration of employee (or
                engaged personnel) compensation, benefits and/or related
                payments or deductions/withholdings. MarketWatch shall have the
                right to require DBC to terminate any employee (or engaged
                personnel, as applicable). In connection with the foregoing
                services, MarketWatch shall hold DBC harmless from liability
                with respect to any personnel action involving a MarketWatch
                Employee (acting solely within the scope of his or her
                employment for MarketWatch), provided such personnel action is
                directed by MarketWatch. (For avoidance of doubt, the preceding
                sentence shall not relieve DBC of liability in its capacity as a
                principal of MarketWatch.)

                        (B) For avoidance of any doubt, all material(s)
                produced, developed, created or furnished to MarketWatch by
                MarketWatch Employees, excluding the MarketWatchRT Software,
                will be deemed 'work(s) made for hire' for MarketWatch under the
                United States Copyright Act; but in the event it is determined
                that such materials in whole or in part are not 'work(s) made
                for hire', they will be deemed transferred to MarketWatch by
                this Agreement. All such materials made or furnished to
                MarketWatch by MarketWatch Employees, excluding the
                MarketWatchRT Software, shall be the sole property of
                MarketWatch, free from any claims by any MarketWatch Employee,
                DBC or any other person, firm or entity; and MarketWatch shall
                have the exclusive right to

                copyright such materials in its name as the author and owner of
                them and to secure any and all renewals and extensions of such
                copyright throughout the world. DBC will cause engaged personnel
                to execute and deliver to MarketWatch documents reflecting that
                materials developed, produced, created or furnished by such
                personnel, excluding the MarketWatchRT Software, are/shall be
                deemed a 'work made for hire' for MarketWatch; and if any of
                such material is determined not to be a 'work made for hire' it
                will be deemed transferred to MarketWatch.

                (ii) handle customer billing and collection for MarketWatch
                subscription products and services and other services including
                without limitation, real-time data service.

                (iii) provide computer software programming assistance,
                including, without limitation, assistance with the operation of
                the on-line services (including advertising services) offered by
                MarketWatch and the creation of MarketWatch web site pages and
                navigation systems.

                (b) (i) At the request of MarketWatch in each instance, DBC will
license to MarketWatch, free of charge, the delayed commodities and stock data
feeds (the 'Data Feed') delivered from the financial exchanges with whom DBC has
existing contracts (including, without limitation, the New York Stock Exchange;
The American Stock Exchange; The Nasdaq Stock Market. Inc.; New York Mercantile
Exchange; Chicago Board Options Exchange; Chicago Board of Trade; MidAmerica
Commodity Exchange; Commodities Exchange Center; Chicago Mercantile Exchange;
and Coffee, Sugar & Cocoa Exchange) (the 'Data Providers'). The Data Feed is
currently made available by DBC to users/subscribers of the Internet web site
currently known as

                (ii) DBC will provide MarketWatch with communications lines
                (including at least two (2) T-3 connections to the Internet,
                hardware and software to effect the required capability to
                receive/transmit etc. the data feeds described in Section
                1.1(b)(i) above. DBC will use its best efforts to ensure third
                party provided lines will be in good working order at all times.

                (iii) In connection with the data feed described in Section
                1.1(b)(i) above, DBC will provide MarketWatch with network
                operations and web site management support (including, without
                limitation, hosting connectivity, serving content, serving and
                reporting ads and reporting content) twenty-four hours a day
                seven days a week.

                (c) At MarketWatch's request, DBC will provide (from its rented
or owned office space) office space and related facilities, to the extent
available, for MarketWatch Employees. Such right to use such facilities shall in
no way be construed as a sublease or license by DBC of any real property but
shall only be construed as a reimbursement arrangement.


        1.2 During the term of this Agreement, subject to the terms and
conditions stated herein:

                (a) DBC will pay MarketWatch:

                (i) Two Dollars and Fifty Cents ($2.50) per month per subscriber
                for each portable device subscriber who receives real-time
                quotes and news, and Five Dollars ($5.00) per month per
                subscriber for all other subscriber devices (including all
                portable personal computers) who receive real-time quotes and
                news, with both types of payments to be made until and through
                October 29, 2002. No such payments shall be made with respect to
                multi-user 'institutional' clients that receive a volume
                discount. For the purposes of the preceding sentence, the term
                'institutional' means: banks, broker-dealers, money managers,
                investment advisors, insurance companies or other similar
                organizations. The payment will be a minimum of $100,000 per
                month until and through October 29, 2002.

                (ii) With respect to subscribers of the real-time market feeds
                described below:

                        (A) twenty-five percent (25%) of the Net Revenues earned
                from the real-time market feed currently known as 'MarketWatch
                Live'; and

                        (B) seventy-five percent (75%) of the Net Revenues
                earned from the real-time market feed currently known as
                'MarketWatch RT.'

                As used in Section 1.2(a)(ii), the term 'Net Revenues' shall
                mean gross subscription fees collected less exchange fees
                actually paid by DBC, credit card fees actually paid by DBC and
                any applicable sales taxes billed by DBC and paid by the
                subscriber concerned.


        2.1 The term of this Agreement shall begin as of the date hereof and
shall continue in full force and effect for a period of eight (8) consecutive
years, from October 29, 1997 through and including October 29, 2005, unless it
is terminated earlier in accordance with the terms and conditions contained


        3.1 In consideration for all grants herein made or agreed to be made and
all rights, licenses, privileges and property herein conveyed or agreed to be
conveyed, and all warranties, representations and covenants herein made by DBC,
MarketWatch agrees to pay DBC as follows:

                (a) DBC's actual costs, subject, however, to the approval of
MarketWatch of the costs to be incurred, other than the costs incurred by DBC in
the ordinary course of business. in connection with:

                (i) the services rendered pursuant to Section 1.1 (a) and
                Section 1.1(b)(iii); and


                (ii) the provision of communications lines described in Section
                1.1(b)(ii) above.

                (iii) the provision of office space and related facilities to
                MarketWatch personnel, it being understood that such actual cost
                shall be DBC's cost per rented square foot of space utilized by
                the MarketWatch personnel concerned, subject to the next
                sentence. The provision of office space and related facilities
                to MarketWatch personnel at DBC's current San Mateo location,
                however, shall be free of charge.

        3.2 In the event that DBC breaches subparagraph 1.01(b) of the
Contribution Agreement among CBS Inc., DBC and MarketWatch dated as of October
29, 1997 (the 'Contribution Agreement'), then, in addition to whatever other
rights and remedies MarketWatch may have under the Contribution Agreement,
MarketWatch may offset any monies due and owing from DBC under the (Section 1.01
(b) of the) Contribution Agreement against monies payable (from MarketWatch) to
DBC hereunder.

        3.3 In the event that the services provided by DBC pursuant to this
Agreement cause DBC to recognize income for federal income tax purposes in an
amount which exceeds the amount prescribed for such services in Section 3.1(a)
above (the 'Excess'), then the entire amount of any deductions available to
MarketWatch solely attributable to such Excess shall be allocated by MarketWatch
to DBC.


        4.1 At no additional charge, DBC will grant MarketWatch a royalty-free,
worldwide, non-exclusive license to use, copy, publicly display, make derivative
works from, perform, distribute or otherwise make available on or through the
MarketWatch Site and in connection with products and services distributed from
the MarketWatch Site the following data feeds:

                (a) Those feeds/services set forth in Section 1.1(b)(i) hereof;

                (b) The following additional data feeds/services, provided that
DBC has in place a license to redistribute such data feeds/services: Fundamental
Data, Historical Data, Intraday Tick Data.

        4.2 At no additional charge, DBC hereby irrevocably transfers and
assigns to MarketWatch all right, title and interest in and to all deliverables,
materials, copyrightable works, inventions, improvements, trade secrets,
trademarks, servicemarks, made, conceived or developed by DBC either alone or
with others in connection with this Agreement, and all DBC proprietary software
and technology used in connection with the services and data feeds provided
under this Agreement (collectively, the 'DBC Services'), excluding DBC
proprietary software used by DBC in connection with providing MarketWatch the
MarketWatchRT data feed (the 'MarketWatchRT Software').


        4.3 At no additional charge, MarketWatch hereby grants to DBC a
non-exclusive, perpetual license to use, copy, modify and make derivative works
from the DBC proprietary software and technology used by DBC in providing the
DBC Services.

        4.4 'MarketWatch Site' means the Internet websites owned or controlled
by MarketWatch that provide stock quotes, personal finance information and
business, stock stories and related products and services.


        5.1 DBC will provide all DBC Services in a professional manner,
consistent with industry standards.

        5.2 DBC will use its best efforts to cause all hosting and data services
to meet the Performance Specifications (attached hereto as Schedule A, and
hereby made a part of this Agreement).

        5.3 In the event that DBC materially fails to meet the Up-Time
Requirements set forth in the Performance Specifications during any MarketWatch
Business Day, defined below, MarketWatch's payments for the DBC network
operations set forth in Section 1.1(a)(iii) hereof for that month shall be
reduced by a percentage equal to the hours that the DBC Services failed to meet
such Performance Specifications divided by the number of hours in the business
days for that month. A 'MarketWatch Business Day' shall be considered to run
from the hours of 4AM to 8PM PST. DBC shall not be responsible for failures
caused by MarketWatch's fault, or by the actions of a non-affiliated third
party, provided that DBC has taken reasonable actions to anticipate and handle
any such failure caused by a third-party, and further provided that DBC shall
credit MarketWatch with any credits or payments received from third parties
related to such failure. DBC shall use its best efforts to ensure that all third
parties conform to the provisions hereof.

        5.4 DBC shall provide, at DBC's out-of-pocket cost, a redundant hosting
center capable of providing immediate back up capability and such Internet
connectivity as reasonably requested by MarketWatch.

        5.5 DBC will use its reasonable efforts to provide MarketWatch with
additional required hardware, software or communications bandwidth, and will
provide all of the foregoing to MarketWatch at DBC's cost.


        At no additional charge, DBC will grant MarketWatch a worldwide,
non-exclusive license to use the DBC trademark(s) in connection with the
marketing, promotion, and operation of the MarketWatch Site, and the
distribution of content from such Site and related products and


services. MarketWatch's use of such trademarks shall be in accordance with DBC's
reasonable trademark usage guidelines, as such guidelines are provided to
MarketWatch in writing from time to time.


        7.1 DBC will, upon MarketWatch's request, provide MarketWatch with
reasonably detailed specifications for the DBC technology used in providing the
DBC Services, and for all hardware, software, firmware and system configurations
which MarketWatch will require to properly perform or have performed the
services and procedures performed by DBC. The foregoing shall be subject to any
limitations on disclosure imposed upon DBC by third party suppliers and

        7.2 Upon any termination or expiration of this Agreement, or of any of
the services provided by DBC hereunder, DBC will provide the following
assistance and deliverables:

                (a) assist MarketWatch, or MarketWatch's designee, in the
configuration and installation of any hardware, software, firmware or equipment
procured by MarketWatch in connection with the DBC Services.

                (b) DBC will deliver to MarketWatch or its designee, and install
on hardware and equipment designated by MarketWatch, those DBC materials and DBC
proprietary software programs necessary to provide the DBC Services.

                (c) DBC will deliver to MarketWatch, and install on
MarketWatch's hardware and equipment, the current version of any MarketWatch
software then being used by DBC in connection with the DBC Services, excluding
the MarketWatch RT Software.

                (d) DBC will provide appropriate training for the MarketWatch
employees or its agents or contractors who will be assuming responsibility for
operation of the DBC technology following such transition. MarketWatch will be
charged time and material, at current rates, for any training provided to
MarketWatch due to termination.

                (e) DBC will assist MarketWatch, at MarketWatch's expense, in
MarketWatch's acquisition of any necessary rights to access and use any
third-party data feeds, hardware, software, documentation then being used by DBC
in connection with the DBC Services. Upon MarketWatch's request, DBC will
transfer or assign, or use its best efforts to cause to be transferred or
assigned, to MarketWatch or its designee, on mutually acceptable terms and
conditions, any contracts applicable to such data feeds, hardware, software and

                (f) MarketWatch shall have the option to buy any hardware and/or
software that DBC is utilizing to provide the DBC Services for an amount to be
negotiated in good faith by the parties.


                (g) upon termination of this Agreement, MarketWatch shall
purchase from DBC any hardware and/or software purchased and paid for by DBC
specifically at MarketWatch's request, at the then-current net book value of
such hardware and/or software, computed using generally accepted accounting


        8.1 (a) DBC represents and warrants that:

                (i) it has full power and authority to enter into and fully
                perform this Agreement.

                (ii) it has sufficient right and authority to grant to
                MarketWatch all licenses and rights granted or agreed to be
                granted by it hereunder.

                (iii) all materials and services furnished to MarketWatch or the
                use thereof will not violate any applicable lay, or violate or
                infringe upon the rights of any third party.

                (iv) at all times. DBC will comply with all applicable federal,
                state and local laws.

                (b) MarketWatch represents and warrants that it is free to enter
into and fully perform this Agreement.

        8.2 (a) DBC will assume all obligations for and indemnify and hold
MarketWatch harmless from (i) malfunctions or other usage problems resulting
from or in connection with the 'Year 2000 Problem' (i.e., the year 2000 (and
later years) as distinct from the years 1900 through 1999, (and earlier years)),
and (ii) 'bugs', 'viruses' or defects in the feeds or other software goods
provided herein, which affect the function or capabilities of such feeds or

                (b) 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; provided, however, that, MarketWatch agrees that neither DBC, nor its
Data Providers, nor any agent, subsidiary, or representative thereof shall have
any liability, contingent or otherwise, for the truthfulness, accuracy or
timeliness of the Data Feed or the truthfulness, accuracy, timeliness,
completeness or correct sequencing of the Data Feed by DBC or the Data
Providers, or for any decision made or action taken by MarketWatch or its
customers in reliance upon the Data Feed, or for interruption or delay of the
Data Feed except to the extent that such liability arises from DBC's malfeasance




                (d) Neither MarketWatch, DBC nor the Data Providers 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.

                (e) MarketWatch agrees to indemnify and hold DBC and the Data
Providers 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 information
provided by DBC or the Data Providers or of the Data Feed, or the combination of
such information or Data Feed with other information or content, and/or
MarketWatch's violation of this Agreement.


        9.1 DBC will compute Net Revenues or any other transactions on which
monies are payable to MarketWatch as of each March 31, June 30, September 30 and
December 31, for the prior three (3) months. Within sixty (60) days after the
close of the calendar quarterly period concerned, DBC will send MarketWatch a
statement covering the number of subscribers who pay for the feeds described in
Section 1.2 during such quarterly period and will pay MarketWatch for any Net
Revenues or other monies due (including, without limitation, sums due in
connection with the subscriptions concerned).

        9.2 DBC will maintain books and records which report the sales and
maintenance of subscriptions hereunder. Any Member of MarketWatch may make an
examination of a particular statement within three (3) years after the date when
DBC sends the statement concerned. Any Member of MarketWatch may review and copy
the books and records of DBC with respect to such statement, upon reasonable
notice during normal working hours.


        10.1 MarketWatch shall have the right to terminate this Agreement if:

                (a) DBC breaches any material term or condition of this
Agreement and has failed to cure such breach within ten (10) days after
MarketWatch's notice of default. The


foregoing cure period will not apply to DBC's obligations regarding the
provision of delayed data feeds or to breaches incapable of being cured;

                (b) DBC: (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; or
(iv) is liquidated or dissolved; or

                (c) MarketWatch is dissolved.

MarketWatch may exercise its rights pursuant to this Section 10.1 by sending DBC
the appropriate notice. No exercise of MarketWatch's rights under this Section
10.1 will limit MarketWatch's remedies by reason of DBC's default, MarketWatch s
rights to exercise any other right under this Section 10.1, or any of
MarketWatch's other rights. The terms and conditions of Sections 4.3 and 7.2
shall survive any termination or expiration of this Agreement.


        11.1 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, MarketWatch
may have the right to assign this Agreement or any of its rights and obligations
hereunder to any entity controlling, controlled by or under common control with,
MarketWatch, or to any entity that acquires MarketWatch by purchase of stock or
by merger or otherwise, or by obtaining substantially all of MarketWatch's
assets (a 'MarketWatch Assignee'), provided that any such MarketWatch Assignee,
or any division thereof, thereafter succeeds to all of the rights and is subject
to all of the obligations of MarketWatch under this Agreement. In the event that
any entity acquires DBC by purchase of stock or by merger or otherwise, or by
obtaining substantially all of DBC's assets (a 'DBC Assignee'), such DBC
Assignee shall succeed to all of the rights and be subject to all of the
obligations of DBC under this Agreement and MarketWatch shall be entitled to
injunctive, and other appropriate equitable relief, without the necessity of
posting a bond, to ensure DBC's and the DBC Assignee's compliance with the terms
and conditions of this Agreement.

        11.2 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.

        11.3 Each party hereto irrevocably submits to the exclusive jurisdiction
of (a) the Supreme Court of the State of New York, New York County, and (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 DBC 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 DBC and MarketWatch further agrees that service
of any process, summons, notice or document 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 matters to
which it has submitted to jurisdiction in this Section 11. Each of DBC 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.

        11.4 Each party shall comply in all material respects with all laws and
regulations applicable to its activities under this Agreement.

        11.5 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, illegality or unenforceability
shall not affect any other provision hereof (or the remaining portion thereof)
or the application of such provision to any other Persons or circumstances.

        11.6 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,

                      825 Battery Street
                      San Francisco, CA 94111

                      Attention of Larry Kramer and Peter Bardwick

                      with copies to:
                      Fenwick & West LLP
                      Two Palo Alto Square
                      Palo Alto, CA 94306

                      Attention of Mark C. Stevens, Esq.


               (ii)   if to DBC,

                      Data Broadcasting Corporation
                      3955 Point Eden Way
                      Hayward, CA 94545-3720

                      Attention of Mark F. Imperiale, President

            with copies to:

                      Camhy Karlinsky & Stein LLP
                      1740 Broadway
                      Sixteenth Floor
                      New York, NY 10019

                      Attention of Alan I. Annex, Esq.

                      CBS Broadcasting Inc.
                      51 W 52nd Street
                      New York, NY 10019

                      Attention of Fredric G. Reynolds
                                   Louis J. Briskman

        11.7 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

        11.8 No failure of either party to exercise or enforce any of its rights
under this Agreement shall act as a waiver of such right.

        11.9 This Agreement, along with the Exhibits thereto, 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 part, in any manner by any representations, warranties or covenants
relating to such subject matter except as specifically set forth herein.

        11.10 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.

        11.11 This Agreement shall not become effective until executed by all
proposed Parties hereto.


        11.12 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 partly with
any term or provision of this Agreement that such third party was or is
obligated to comply with or perform.

        11.13 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 and nothing herein expressed or implies shall give or be construed to
give to any person, other than the parties hereto and such assigns, any legal or
equitable rights hereunder.

        11.14 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. When a reference is made in this Agreement to a Section such
reference shall be to a Section of this Agreement unless otherwise indicated.

        IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above


By:  /s/ Mark F. Imperiale                  By:  /s/ J. Peter Bardwick
   ---------------------------------           ---------------------------------

Title:   President                          Title:   Chief Financial Officer
      ------------------------------              ------------------------------
                                                            and Secretary


Was this helpful?

Response sent, thank you

Copied to clipboard