{"id":42454,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-agreement-cbs-broadcasting-inc-and-marketwatch-com-llc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-agreement-cbs-broadcasting-inc-and-marketwatch-com-llc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-agreement-cbs-broadcasting-inc-and-marketwatch-com-llc.html","title":{"rendered":"License Agreement &#8211; CBS Broadcasting Inc. and MarketWatch.com LLC"},"content":{"rendered":"<pre>                     AMENDED AND RESTATED LICENSE AGREEMENT\n\n   \n        This AGREEMENT made on January 13, 1999, and effective as of the 29th\nday of October, 1997, by and between CBS Broadcasting, Inc. (formerly known as\nCBS Inc.), 51 West 52nd Street, New York, New York 10019 (herein called 'CBS'),\nand Marketwatch.Com, LLC, 825 Battery St., San Francisco, CA 94111 (herein\ncalled 'MarketWatch') hereby amends and restates the License Agreement entered\ninto between the parties as of October 29, 1997 (that was attached to and formed\na part of the CONTRIBUTION AGREEMENT, dated as of October 29, 1997, between CBS,\nINC., DATA BROADCASTING CORPORATION ('DBC') and MARKETWATCH.COM,LLC).\n    \n\n1. DEFINITIONS\n\n        1.1 'Acquired Business' means a corporation, partnership, limited \nliability company, other business entity or division of any of the foregoing or \nassets of the foregoing constituting a business or line of business acquired by \nthe Company or any of its subsidiaries.\n\n\n\n        1.2 'CBS Content Pages' means pages of the MarketWatch Site that include\nany CBS News Content.\n\n\n\n        1.3 'CBS License Guidelines and Restrictions' or 'CBS License\nGuidelines' means the clearance, form, format and use restrictions and\nprocedures set forth in Exhibit 2 attached hereto which MarketWatch shall adhere\nto in its use of CBS News Content, CBS Marks, MarketWatch Site Content on the\nMarketWatch Site.\n\n        1.4 'CBS Marks' means the following CBS registered trademarks, as shown\nin Exhibit 1 attached hereto: CBS(R) and the CBS 'Eye' design.\n\n\n        1.5 'CBS News Content' means any current news Television Content\n(excluding, for avoidance of doubt, any archival Content or television\/radio\nprogram outtakes and the content to be supplied by MarketWatch to CBS in\nconnection with the Broadcast Personnel Agreement to be entered into between the\nparties herewith) related to business and financial issues and contained in CBS\nNews' regularly scheduled hard news broadcasts, scheduled special events\ncoverage and unscheduled live breaking news coverage which CBS has the right to\nlicense for use on the Internet. (Nothing herein shall be construed to grant\nMarketWatch any rights to CBS Radio Content or any Content of CBS Cable [i.e.,\nContent contained in coverage or broadcasts of the CBS Radio division of CBS\nand\/or CBS Cable]).\n\n\n\n        1.6 'Content' means text, graphics, photographs, video, audio and\/or\nother data or information, including, without limitation, Television Content,\nrelating to any subject.\n\n\n\n        1.7 'Core Business' means an Internet service or Web site that (i)\nprovides information or services of a financial nature, including without\nlimitation the delivery of financial news or real-time or delayed stock market\nquotations to consumers, or (ii) uses the CBS Marks.\n\n\n\n        1.8 'Date and Time Network Guidelines' means the guidelines issued by\nCBS which restrict any advertisement from disclosing the date and time of the\nprogram or event advertised.\n\n\n\n\n\n        1.9 'Intellectual Property Rights' means all inventions, discoveries,\ntrademarks, patents, trade names, copyrights, moral rights, jingles, know-how,\nintellectual property, software, shop rights, licenses, developments, research\ndata, designs, technology, trade secrets, test procedures, processes, route\nlists, computer programs, computer discs, computer tapes, literature, reports\nand other confidential information, intellectual and similar intangible property\nrights, whether or not patentable or copyrightable (or otherwise subject to\nlegally enforceable restrictions or protections against unauthorized third party\nusage), and any and all applications for, registrations of and extensions,\ndivisions, renewals and reissuance of, any of the foregoing, and rights therein,\nincluding without limitation (a) rights under any royalty or licensing\nagreements, and (b) programming and programming rights, whether on film, tape or\nany other medium.\n\n\n        1.10 'Internet' means global network of interconnected computer\nnetworks, each using the Transmission Control Protocol\/Internet Protocol and\/or\nsuch other standard network interconnection protocols as may be adopted from\ntime to time, which is used to transmit Content that is directly or indirectly\ndelivered to a computer or other digital electronic device for display to an\nend-user, whether such Content is delivered through on-line browsers, off-line\nbrowsers, or through 'push' technology, electronic mail, broadband distribution,\nsatellite, wireless or otherwise, and any subset of such global network, such as\n'intranets.'\n\n\n\n        1.11 'Internet Site' means any site or service delivering Content on or\nthrough the Internet, including, without limitation, any on-line service such as\nAmerica Online, Compuserve, Prodigy and the Microsoft Network.\n\n\n\n        1.12 'MarketWatch Content' means any Content owned or controlled by\nMarketWatch other than CBS Property (as defined in subparagraph 7.1(a)).\n\n\n\n        1.13 'MarketWatch Site' means the Internet Web sites owned or controlled\nby MarketWatch as of the effective date of this Agreement that provide stock\nquotes, personal finance information and business, stock stories and that are\naccessed via (i) the top-level domains Marketwatch.com and Stockchat.com, (ii)\nthe URLs http:\/\/cbs.marketwatch.newsalert.com,\nhttp:\/\/www.marketwatch.newsalert.com and http:\/\/www.marketwatchrt.newsalert.com\n(or any successor URLs), (iii) the URL http:\/\/www.dbc.com (so long as\nwww.dbc.com serves only as an entry point to the foregoing URLs); and (iv) any\nMirror Site.\n\n\n\n        1.14 'Mirror Site' means an Internet Site which contains the exact form\nand content as the MarketWatch Site which (a) is located at a geographic\nlocation distinct from the MarketWatch Site and (b) is created for the purpose\nof improving the performance of and accessibility to the MarketWatch Site. For\npurposes of clarification, a mirror site may be used only in accordance with the\npreceding purposes.\n\n\n\n        1.15 'Person' means any natural person, legal entity, or other organized\ngroup of persons or entities. (All pronouns whether personal or impersonal,\nwhich refer to Person include natural persons and other Persons.)\n\n\n\n        1.16 'Television Content' consists of Content broadcast on television.\n\n\n\n                                       2\n\n\n2. LICENSE\n\n        2.1 CBS grants to MarketWatch, during the term of this Agreement and\nsubject to the terms and conditions contained herein, the non-exclusive right\nand license:\n\n                (a) to use, copy, publicly display, edit, revise, perform,\ndistribute or otherwise make available on or through the MarketWatch Site, the\nCBS News Content, to the extent CBS has the right to so license such Content.\nCBS agrees that users of the MarketWatch Site may view, access, retrieve, copy\nand print only for noncommercial private use any CBS News Content distributed\nhereunder on the MarketWatch Site.\n\n                (b) to use the CBS Marks, together with the MARKETWATCH mark, in\nconnection with MarketWatch's advertising, promotion and operation of the\nMarketWatch Site.\n\n                (c) to use the CBS Marks in connection with identifying,\nmarketing and promoting MarketWatch Content to third-parties, provided that such\nMarketWatch Content is also branded with the MARKETWATCH mark.\n\nNothing in this Agreement grants MarketWatch ownership or other rights in or to\nthe CBS News Content or the CBS Marks, except in accordance and to the extent of\nthis license.\n\n        2.2 MarketWatch's exercise of the rights granted herein shall conform to\nthe restrictions or requirements set forth in the CBS License Guidelines\n(attached hereto as Exhibit 2), as such License Guidelines may be amended or\nrevised from time to time by CBS, in its reasonable discretion, to reflect any\nchanges in the business, practice, procedures or policies of CBS.\n\n        2.3 (a) MarketWatch shall have access to all CBS News Content, and,\nsubject to the conditions stated in the next sentence, CBS shall deliver, at\ntimes reasonably requested by MarketWatch, all CBS News Content in a mutually\nagreed form and format (including, for avoidance of doubt, video and text, to\nthe extent reasonably possible). CBS shall have the right to refuse to deliver\nto MarketWatch any CBS News Content if, in CBS's sole discretion, the CBS News\nContent or the use contemplated, conflicts with, interferes with or is\ndetrimental to CBS's interests, reputation or business or might subject CBS to\nunfavorable regulatory action, violate any law, infringe the rights of any\nperson, or subject CBS to liability for any reason.\n\n                (b) MarketWatch shall be responsible for and shall reimburse CBS\nfor all actual costs and expenses, above and beyond those expenses normally\nincurred by CBS in the ordinary course of business, which are incurred by CBS in\npreparing and\/or delivering the CBS News Content in the desired form and format,\nand which are agreed to in advance by MarketWatch. Any amounts to be paid under\nthis paragraph 2.3(b) shall be due and payable within 30 days of receipt of an\ninvoice relating to such amounts. Those amounts will also be recoupable from all\nmonies becoming payable to MarketWatch under this or any other Agreement or\notherwise to the extent to which they have not actually been paid or reimbursed\nas provided for in the preceding sentence.\n\n        2.4 All Content which MarketWatch intends to use on the MarketWatch Site\nshall consist of business or financial-related content and other content deemed\nappropriate by CBS. During the term of this Agreement, any Content displayed on\nthe MarketWatch Site shall be\n\n\n                                       3\n\n\nsubject to any restrictions or requirements set forth in the CBS License\nGuidelines. CBS shall have the right to demand the withdrawal from the\nMarketWatch Site of any Content which in CBS's sole opinion conflicts with,\ninterferes with or is detrimental to CBS's interests, reputation or business or\nwhich might subject CBS to unfavorable regulatory action, violate any law,\ninfringe the rights of any Person, or subject CBS to liability for any reason.\nUpon notice from CBS to withdraw the Content concerned, MarketWatch shall cease\nusing any such Content on the MarketWatch Site as soon as commercially and\ntechnically feasible, but in any event within three (3) days after the date of\nCBS's notice. If MarketWatch cannot cease using such Content within twenty-four\n(24) hours, MarketWatch will so notify CBS detailing why the cessation cannot be\neffected within twenty-four (24) hours and when the cessation will be effected,\nsubject to the terms of the preceding sentence.\n\n        2.5 (a) During the term of this Agreement, MarketWatch shall consult\nwith CBS regarding the general (visual and editorial) presentation of the CBS\nNews Content on the MarketWatch Site; provided, however, that in the event the\nparties cannot agree in any instance, then CBS's decision will be conclusive. In\nno event shall MarketWatch distort or misrepresent any material contained in the\nCBS News Content. No CBS News Content shall be used\/displayed out of context;\nMarketWatch shall have the right (subject to CBS License Guidelines) to edit and\nrevise the CBS News Content to meet spatial requirements provided that any such\nedits or revisions shall not distort or misrepresent any events, opinions or\nstatements contained in the CBS News Content received by MarketWatch.\n\n                (b) MarketWatch shall be solely responsible for the engineering,\nproduction, maintenance and monitoring of all CBS News Content which MarketWatch\nmakes available on the MarketWatch Site.\n\n                (c) Subject to any restrictions or requirements in the CBS\nLicense Guidelines, MarketWatch shall have the right, but not the obligation, to\ncorrect any errors, omissions and\/or inaccuracies in the transmission or\ntranscription of the CBS News Content identified by MarketWatch or reported to\nMarketWatch by MarketWatch Site users.\n\n                (d) Notwithstanding anything to the contrary contained herein,\nupon notice from CBS, MarketWatch shall immediately cease using any CBS News\nContent which (i) in CBS's sole opinion, conflicts, interferes with or is\ndetrimental to CBS's reputation or business or (ii) becomes subject to any third\nparty restriction or claim which would prohibit, limit or restrict the use\nthereof on the Internet.\n\n        2.6 In the event that MarketWatch desires to use any music contained in\nany CBS News Content on the MarketWatch Site, prior to such use, MarketWatch\nshall (i) report to the applicable music rights society on behalf of CBS, all\ntitles and publishers of all such music and, (ii) secure, at its sole cost and\nexpense, and pay for all performing, duplication and\/or recording rights\nlicenses, if any, necessary for the use of such music on the Internet. CBS shall\nendeavor to deliver to MarketWatch accurate music cue sheets for all such music.\n\n        2.7 Upon expiration or termination of this Agreement, MarketWatch shall\ncease all use of the CBS Marks as provided in Section 4.4 below, and, except as\notherwise provided in this paragraph, any CBS News Content or Content derived\ntherefrom in connection with the operation of the MarketWatch Site or otherwise.\nIn connection with the above, MarketWatch\n\n\n                                       4\n\n\nshall immediately remove or erase the CBS News Content (and any Content derived\ntherefrom) and CBS Marks from the MarketWatch Site, and from any advertising and\npromotional materials, as soon as commercially and technically practicable,\ngiven customary Internet business practices, but in no event shall any such\nmaterial remain on the MarketWatch Site more than five (5) days after expiration\nor CBS's notice of termination, as applicable, and at CBS's request, MarketWatch\nshall furnish CBS with certified evidence of such removal or erasure\nsatisfactory to CBS.\n\n3. TERM\n\n\n        3.1 The term of this Agreement shall begin on October 29, 1997 and shall\ncontinue in full force and effect for a period of eight (8) consecutive years,\nthrough and including October 29, 2005, unless it is terminated earlier in\naccordance with the terms and conditions contained herein.\n\n\n4. TRADEMARKS\n\n        4.1 (a) CBS shall deliver to MarketWatch a copy of each CBS Mark in the\nform in which such Mark may be used by MarketWatch hereunder. Both parties\nacknowledge that the CBS Marks are trademarks exclusively owned or controlled by\nCBS Broadcasting Inc. and that all uses by MarketWatch of such CBS Marks shall\ninure to CBS's benefit. MarketWatch shall maintain CBS quality standards with\nrespect to its use of the CBS Marks, and otherwise use the CBS Marks subject to\nany reasonable restrictions or requirements disclosed by CBS (including any\nrequirements\/restrictions delineated in the CBS License Guidelines).\n\n                (b) In the event that during the term of this Agreement\nMarketWatch shall create any proprietary right in any CBS Marks, as a result of\nthe exercise by MarketWatch of any right granted to it hereunder, such\nproprietary right shall immediately vest in CBS and MarketWatch shall be\nauthorized to use such new proprietary right as though same had specifically\nbeen included in this Agreement.\n\n        4.2 (a) MarketWatch shall not file any application in any country to\nregister a trademark which contains 'CBS,' the CBS 'eye' or any other trademark\nwhich is the same as, similar to, or misleading with respect to the CBS Marks or\nany other CBS trademark. If any application for registration is filed in any\ncountry by MarketWatch in contravention of this paragraph 4.2, CBS shall have\nthe right to take appropriate action against MarketWatch, including seeking\ninjunctive relief, to prohibit or otherwise restrain MarketWatch's use of the\ninfringement party's use of the infringing mark.\n\n                (b) MarketWatch shall furnish CBS proofs of all materials\nbearing any CBS Marks (including, without limitation, advertising and publicity\nmaterials). MarketWatch will not authorize full scale production of any such\nmaterial until after obtaining CBS's written approval in each instance. Any\nchanges in such material shall also be subject to CBS's prior written approval.\nApproval by CBS shall not relieve MarketWatch of any of its warranties or\nobligations under this Agreement and all materials that bear any CBS Marks shall\nstrictly conform with the samples and proofs approved by CBS. Samples and\nmaterials to be approved by CBS shall be submitted to the Associate General\nCounsel, Contracts, Rights and Development, CBS Law Department and\/or such other\nperson that may be designated in writing by CBS. The materials\n\n\n                                       5\n\n\nbearing the CBS Marks which are identified in Exhibit 3 attached hereto are\nhereby deemed approved by CBS.\n\n        4.3 In the event that MarketWatch learns of any infringement, threatened\ninfringement, or passing off of the CBS's trademarks or logos licensed for use\nunder this Agreement, or that any Person claims or alleges that the such\ntrademarks or logos are liable to cause deception or confusion to the public,\nthen MarketWatch shall notify CBS of the particulars thereof.\n\n        4.4 Upon the expiration or termination of this Agreement, MarketWatch\nshall cease all use of the CBS Marks, as soon as commercially and technically\npracticable, but in any event, no later than five (5) days after expiration or\ntermination of this Agreement.\n\n5. COMPENSATION\n\n        5.1 In consideration of the rights herein granted, MarketWatch shall pay\nCBS a royalty computed at the applicable percentage, indicated below, of the\nGross Revenues recognized by MarketWatch during the year concerned, as follows:\n\n                (a) (i) During the 1998 calendar year:\n\n\n                              (A) With respect to the first Fifty Million\n                Dollars ($50,000,000) of Gross Revenues recognized over and\n                above the first One Million Dollars ($1,000,000) of Gross\n                Revenues recognized during such year: 8%.\n\n\n\n                              (B) With respect to Gross Revenues recognized in\n                excess of Fifty-One Million Dollars ($51,000,000): 6%.\n\n\n                        (ii) During the 1999 calendar year:\n\n\n                              (A) With respect to the first Fifty Million\n                Dollars ($50,000,000) of Gross Revenues over and above the first\n                Five Hundred Thousand Dollars ($500,000) of Gross Revenues\n                recognized during such year: 8%.\n\n\n                              (B) With respect to Gross Revenues recognized in\n                excess of Fifty Million Five Hundred Thousand Dollars\n                ($50,500,000): 6%.\n\n\n                        (iii) During each calendar year (or portion thereof, if\n                applicable) subsequent to the 1999 calendar year:\n\n\n                              (A) With respect to the first Fifty Million\n                Dollars ($50,000,000) of Gross Revenues recognized during such\n                calendar year (or portion thereof, if applicable): 8%.\n\n\n\n                              (B) With respect to Gross Revenues recognized in\n                excess of Fifty Million Dollars ($50,000,000): 6%.\n\n\n\n                                       6\n\n\n                (b) (i) For avoidance of doubt, for purposes of this paragraph\n        5.1, calculation of Gross Revenues shall be made on a calendar yearly\n        basis, rather than a cumulative basis.\n\n   \n                        (ii) (A) 'Gross Revenues' as used in this paragraph 5.1\n                shall mean gross operating revenues (excluding the revenues\n                described in the last sentence of this paragraph 5.1(b)(ii)(A)\n                and in 5.1(b)(ii)(B)) of MarketWatch, its subsidiaries and, to\n                the extent of any dividends or other distributions paid to\n                MarketWatch or its subsidiaries, any Person in which MarketWatch\n                or any of its subsidiaries has an interest, derived from the\n                Core Business presented in accordance with generally accepted\n                accounting principles and, if applicable, based on revenues as\n                reported in the periodic quarterly and annual statements\n                required by the Securities and Exchange Commission, provided\n                that Gross Revenues shall not be reduced for royalties,\n                commissions (except as otherwise set forth in clause\n                5.1(b)(ii)(B) below) fees or other expenses incurred in\n                generating such operating revenue. If an income statement of\n                MarketWatch presents operating revenue net of any reductions not\n                allowed under this Section 5, then for purposes of this\n                paragraph 5.1, operating revenue as presented shall be increased\n                by the amount of reductions. Sources of operating revenue\n                include, but are not limited to, advertising, sponsorship,\n                partnership\/commerce, subscriptions, and sales of products and\n                services and shall include all monetary consideration and the\n                fair value of all non-monetary considerations. Sources of\n                operating revenue shall not include: (I) revenue realized by\n                MarketWatch pursuant to paragraph 1.2 of the DBC Services\n                Agreement between DBC and MarketWatch dated as of October 27,\n                1997, as amended and restated on January __, 1999 (the\n                'Services Agreement') (i.e., the stated dollar portion of\n                subscriber fees from various DBC-owned subscriber devices\n                (including portable personal computers) and the stated\n                percentage of Net Revenues (as defined in the Services\n                Agreement) derived from the real-time market feeds currently\n                known as MarketWatch Live and MarketWatch RT); (II) revenue\n                realized from advertisements purchased by DBC from MarketWatch\n                which advertise\/promote DBC on the MarketWatch Site; (III)\n                revenue realized from advertisements purchased by any third\n                party advertising on the MarketWatch Site if and to the extent\n                CBS determines that revenues from such Person should be excluded\n                from the calculation of 'Gross Revenues' under this Section \n                5.1; and (IV) an amount equal to the total revenues (calculated\n                in accordance with U.S. generally accepted accounting \n                principles) for the 12 months prior to the date of consummation\n                of the acquisition of such Acquired Business. \n    \n\n                              (B) Notwithstanding anything to the contrary\n                contained in clause 5.1(b)(ii)(A) above, Gross Revenues may be\n                reduced by the amount of any sales representative commission(s)\n                paid by MarketWatch to any third party sales representative(s)\n                not affiliated with MarketWatch and in which MarketWatch has no\n                interest, not to exceed fifteen percent (15%) of the actual ad\n                price in each instance. Additionally, Gross Revenues for any\n                particular quarterly period shall not include revenues reported\n                by MarketWatch as a result of revenues recognized prior to the\n                effective date of the acquisition of an entity acquired by\n                MarketWatch and accounted for as a pooling of interest\n                transaction.\n\n        5.2 In the event that the rights granted by CBS to MarketWatch pursuant\nto this Agreement cause CBS to recognize income for federal income tax\n\n\n                                       7\n\n\npurposes in an amount which exceeds the amount prescribed for such rights in\nparagraph 5.1 above (the 'Excess'), then the entire amount of any deductions\navailable to MarketWatch solely attributable to such Excess shall be allocated\nby MarketWatch to CBS.\n\n6. ACCOUNTINGS\n\n        6.1 MarketWatch will compute Gross Revenues as of each March 31, June\n30, September 30 and December 31 for the prior three (3) months. Within\nninety-five (95) days after the fourth calendar quarterly period and within\nforty-five (45) days after each of the first three (3) calendar quarterly\nperiods concerned, MarketWatch will send CBS a statement covering Gross Revenues\nand will pay CBS CBS's share of Gross Revenues due. Acceptance by CBS of any\nstatement or payment shall not preclude CBS from challenging the accuracy\nthereof.\n\n        6.2 MarketWatch will maintain accurate books and records which report\nthe recognition of Gross Revenues. CBS may, at its own expenses, examine and\ncopy those books and records, as provided in this paragraph. CBS may make such\nan examination for a particular statement within three (3) years after the date\nwhen the other party sends the examining party the statement concerned.\n(MarketWatch will be deemed conclusively to have sent CBS the statement\nconcerned on the date prescribed in paragraph 6.1, unless CBS notifies\nMarketWatch otherwise with respect to any statement, within ninety (90) days\nafter that date). CBS may make those examinations only during MarketWatch's\nusual business hours, and at the place where it keeps the books and records.\nSuch books and records shall be kept at the MarketWatch office in San Francisco,\nCalifornia, unless otherwise notified. CBS will be required to notify\nMarketWatch at least ten (10) days before the date of planned examination. If\nCBS's examination has not been completed within two months from the time CBS\nbegins it, MarketWatch may require CBS to terminate it on seven (7) days notice\nto CBS at any time, provided that MarketWatch has cooperated with CBS in the\nexamination of such books and records.\n\n7. RIGHTS\n\n        7.1 (a) As between CBS and MarketWatch: CBS is or shall be the exclusive\nowner of and shall retain all right, title and interest to the CBS's News\nContent or any Content derived therefrom, and the CBS Marks, including all\nIntellectual Property Rights therein (the 'CBS Property').\n\n                (b) MarketWatch is the exclusive owner of and shall retain all\nright, title and interest to the MarketWatch Content or any Content derived\ntherefrom, the MarketWatch Site, MarketWatch marks, and all Intellectual\nProperty Rights therein, excluding the CBS Property.\n\n                (c) MarketWatch shall place a notice of copyright on each CBS\nContent Page in accordance with the CBS License Guidelines. No CBS Content Page\nshall contain any other copyright notice whatsoever except as provided in the\nCBS License Guidelines. MarketWatch shall cooperate fully with CBS in connection\nwith CBS's obtaining appropriate copyright protection in the name of CBS for any\nCBS Content Page.\n\n\n                                       8\n\n\n        7.2 Each party agrees to take all action and cooperate as is reasonably\nnecessary, at the other party's request and expense, to protect the other's\nrespective rights, titles, and interests specified in this Article 7, and\nfurther agrees to execute any documents that might be necessary to perfect each\nparty's ownership of such rights, titles, and interests.\n\n        7.3 (a) During the term of this Agreement, CBS shall not license nor\nauthorize another to license any Person other than MarketWatch the right to use\nthe CBS Marks in connection with promoting in the United States any Internet\nservice or Web site that has as its primary function and its principal theme and\nformat the delivering of comprehensive real-time or delayed stock market\nquotations and financial news in the English language to consumers.\n\n            (b) MarketWatch acknowledges and agrees that the following are\neither not within the express terms of the preceding prohibition or, if so,\nshall nevertheless be excluded from said prohibition:\n\n                (1) any use of the CBS Marks by CBS, its divisions, business\nunits, affiliates and\/or any of the following CBS related entities in connection\nwith any of the above Person's Internet service(s) or Web site(s) as long as\nsuch Internet service or Web site does not have as its primary function and its\nprincipal theme and format the delivering of comprehensive real-time or delayed\nstock market quotations and financial news in the English language to consumers:\n\n                       (i) the CBS Television Network;\n\n                      (ii) any CBS owned and operated or affiliated standard\n               television station;\n\n                     (iii) CBS Cable;\n\n                      (iv) any CBS non-standard television network;\n\n                       (v) any CBS owned or affiliated non-standard television\n               facilities;\n\n                      (vi) the CBS Radio Network;\n\n                     (vii) any CBS owned and affiliated radio station;\n\n                    (viii) Westwood One, Inc.; and\n\n                      (ix) any Internet services in which CBS currently has an\n               interest (such as CBS SportsLine);\n\n                (2) an Internet service or Web site that delivers general news,\nsports or entertainment, with a financial news segment or portion included, will\nnot be considered to have as its primary function or as its principal theme and\nformat the delivering of comprehensive real-time or delayed stock market\nquotations and financial news in the English language to consumers;\n\n                (3) an Internet service or Web site will not be considered to\nhave as its primary function or as its principal theme and format the delivering\nof comprehensive real-time\n\n\n                                       9\n\n\nor delayed stock market quotations and financial news in the English language to\nconsumers solely on the basis of its providing a stock price ticker crawl line;\n\n   \n                (4) any activity conducted by CBS and\/or its affiliates as of\nJanuary 13, 1999, the execution date of this Agreement;\n    \n\n                (5) any activity conducted by a CBS Television or Radio Network\nAffiliate that is not a CBS owned and operated television or radio station;\n\n                (6) any activity of Westwood One, Inc. provided that such\nactivity does not produce a substantial portion of revenues from an Internet\nservice or Web site that has as its primary function and principal theme and\nformat the delivering of comprehensive real-time or delayed stock market\nquotations and financial news in the English language to consumers;\n\n   \n                (7) any Internet services in which CBS has an interest as of\nJanuary 13, 1999, the execution date of this Agreement;\n    \n\n                (8) any transmission, retransmission, uplink or satellite\ntransponder delivery of any signal, of any nature or type, by and through CBS\nCable; and\n\n                (9) any occasional use of the CBS Marks by an Internet service\nor Web site, as opposed to repeated and regular use.\n\n8. WARRANTIES; REPRESENTATIONS; INDEMNITIES\n\n        8.1 (a) CBS represents and warrants that:\n\n                        (i) it has full power and authority to enter into this\n                Agreement.\n\n                        (ii) it has sufficient right and authority to grant to\n                MarketWatch all licenses and rights granted by CBS hereunder.\n\n                        (iii) the CBS Marks and the use thereof as permitted\n                pursuant to this Agreement shall not violate any law or infringe\n                upon or violate any rights of any Person.\n\n                        (iv) the CBS Content and the use thereof as permitted\n                pursuant to this Agreement shall not violate any United States\n                law or infringe upon or violate any rights of any Person under\n                any United States law.\n\n                (b) MarketWatch represents and warrants that:\n\n                        (i) it owns or controls all right, title, and interest\n                in and to the MarketWatch Site, and all Intellectual Property\n                Rights therein, necessary to carry out its obligations hereunder\n                and to grant and assign the rights and licenses granted to CBS\n                herein.\n\n                        (ii) it is has the full power and authority to enter\n                into and fully perform this Agreement.\n\n\n                                       10\n\n\n                        (iii) the MarketWatch Site, any MarketWatch Site Content\n                and any Content developed or furnished by MarketWatch hereunder\n                and the use thereof shall not violate any law or infringe upon\n                or violate any rights of any Person.\n\n                        (iv) the MarketWatch Site will be produced, advertised,\n                distributed, transmitted and licensed in accordance with all\n                applicable federal, state, local and foreign laws and in a\n                manner that will not reflect adversely on CBS.\n\n        8.2 (a) Each party shall at all times indemnify, hold harmless and\ndefend the other party in accordance with the indemnification provisions\n(applicable to such party) set forth in Article VI of the Contribution Agreement\namong CBS, MarketWatch and DBC dated as of October 29, 1997 (the 'Contribution\nAgreement'); provided, however, that, MarketWatch agrees that neither CBS nor\nany agent, subsidiary, or representative of CBS shall have any liability,\ncontingent or otherwise, for the truthfulness, accuracy or timeliness of the CBS\nNews Content, or for any decision made or action taken by MarketWatch or its\ncustomers in reliance upon the CBS News Content except to the extent that such\nliability arises from CBS's malfeasance or nonfeasance. THERE IS NO WARRANTY OF\nMERCHANTABILITY NOR WARRANTY OF FITNESS FOR A PARTICULAR USE, NOR ANY IMPLIED\nWARRANTY OF ANY KIND, REGARDING THE CBS NEWS CONTENT. MARKETWATCH RECOGNIZES\nTHAT THE ACCURACY OF THE CBS NEWS CONTENT SHOULD BE CHECKED BEFORE ITS CUSTOMERS\nRELY ON IT.\n\n                (b) IN NO EVENT WILL MARKETWATCH OR CBS BE LIABLE TO\nMARKETWATCH'S CUSTOMERS, EACH OTHER, OR ANY OTHER PARTY FOR ANY INCIDENTAL,\nCONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST\nPROFITS, TRADING LOSSES, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR\nLOSS OF THE USE OF THE CBS NEWS CONTENT), OR CLAIMS ARISING IN TORT (INCLUDING\nNEGLIGENCE), EVEN IF MARKETWATCH OR CBS HAS BEEN ADVISED OF OR IS OTHERWISE\nAWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING.\n\n                (c) Neither MarketWatch nor CBS shall be liable for any loss\nresulting from a cause over which such entities do not have direct control,\nincluding but not limited to the failure of electronic or mechanical equipment\nor communication lines, telephone or other interconnect problems, unauthorized\naccess or theft.\n\n                (d) MarketWatch agrees to indemnify and hold CBS harmless from\nand against any and all claims, losses, liability, costs and expenses (including\nbut not limited to attorneys' fees) to the extent arising from or relating to\nMarketWatch's modification of the CBS News Content, or the combination of the\nCBS News Content with other information or content, and\/or MarketWatch's\nviolation of this Agreement.\n\n9. REMEDIES\n\n        9.1 CBS shall have the right to terminate this Agreement upon providing\nwritten notice to MarketWatch if (any of the following occurs):\n\n\n                                       11\n\n\n                (a) MarketWatch breaches any material term or condition of this\nAgreement, and has failed to cure such breach within ten (10) days after written\nnotice of such breach from CBS. The foregoing cure period will not apply where a\nspecific cure period is provided herein, or to breaches incapable of being\ncured.\n\n                (b) MarketWatch: (i) becomes insolvent or unable to pay its\ndebts as they mature or makes an assignment for the benefit of its creditors;\n(ii) is the subject of a voluntary petition in bankruptcy or any voluntary\nproceeding relating to insolvency, receivership, liquidation, or composition for\nthe benefit of creditors, if such petition or proceeding is not dismissed within\nsixty (60) days of filing: (iii) becomes the subject of any involuntary petition\nin bankruptcy or any involuntary proceeding relating to insolvency,\nreceivership, liquidation, or composition for the benefit of creditors, if such\npetition or proceeding is not dismissed within sixty (60) days of filing; (iv)\nis liquidated or dissolved; or (v) issues to a CBS competitor or actively\nparticipates in the acquisition by a CBS competitor, in any one transaction or\nany series of transactions, of a number of voting securities of MarketWatch such\nthat after such issuance or acquisition or series of issuances or acquisitions,\nsuch CBS competitor beneficially owns, directly or indirectly, nine percent (9%)\nor more of the outstanding common stock of MarketWatch or nine percent (9%) or\nmore of the total voting power of MarketWatch.\n\n                (c) any CBS competitor beneficially owns, directly or\nindirectly, fifteen percent (15%) or more of the then-outstanding shares of\ncommon stock of MarketWatch or fifteen percent (15%) or more of the total voting\npower of MarketWatch.\n\n                (d) If MarketWatch discontinues using the 'MARKETWATCH' mark\nand, within a reasonable time thereafter, MarketWatch does not establish a\nsubstitute mark acceptable to CBS in its sole discretion.\n\n                (e) Notwithstanding the foregoing, for purposes of this Section\n9.1, the mere acquisition by a CBS competitor of an interest in DBC which\nacquisition constitutes or triggers a 'DBC Change of Control' (as defined in the\nStockholders' Agreement dated as of the date hereof among CBS, DBC and\nMarketWatch) shall not be deemed to constitute the acquisition, directly or\nindirectly, of, 'beneficial ownership,' common stock or 'voting power' of\nMarketWatch in the absence of other facts demonstrating 'beneficial ownership'\nthereof.\n\n                For purposes of this Section 9.1: (i) the term beneficial\nownership shall have the meaning set forth in Section 13(d) of the Securities\nAct of 1933, as amended, and the rules and regulations promulgated thereunder;\n(ii) the term total voting power shall mean, at any time, the total number of\nvotes that may be cast in the election of directors of MarketWatch at any\nmeeting of the holders of voting securities held at such time for such purpose;\nand (iii) the term voting securities shall mean the common stock of MarketWatch\nand any other securities issued by MarketWatch having the power to vote in the\nelection of directors of MarketWatch, including without limitation any\nsecurities having such power only upon the occurrence of a default or any other\nextraordinary contingency.\n\n        9.2 MarketWatch shall have the right to terminate this Agreement if CBS\nbreaches any material term or condition of this Agreement, and has failed to\ncure such breach within thirty (30) days after receipt of written notice of such\nbreach.\n\n\n                                       12\n\n\n        9.3 Either Party may exercise its right to terminate pursuant to this\nSection 9 by sending the other party appropriate notice. No exercise by CBS of\nits rights under this Section 9 will limit CBS's remedies by reason of\nMarketWatch's default, CBS's rights to exercise any other rights under this\nSection 9, or any of CBS's other rights. No exercise by MarketWatch of its\nrights under this Section 9 will limit MarketWatch's remedies by reason of CBS's\ndefault, MarketWatch's rights to exercise any other rights under this Section 9,\nor any of Marketwatch's other rights.\n\n10. GENERAL\n\n        10.1 Neither party may assign this Agreement, or their respective rights\nand obligations hereunder, in whole or in part without the other party's prior\nwritten consent. Any attempt to assign this Agreement without such consent shall\nbe void and of no effect ab initio. Notwithstanding the foregoing, (i)\nMarketWatch may assign this Agreement to its successor, MarketWatch.com, Inc., a\nDelaware corporation, provided that MarketWatch.com, Inc. thereafter succeeds to\nall of the rights and is subject to all of the obligations of MarketWatch under\nthis Agreement, and (ii) CBS may assign this Agreement or any of its rights and\nobligations hereunder to any entity controlling, controlled by or under common\ncontrol with, CBS, or to any entity that acquires CBS by purchase of stock or by\nmerger or otherwise, or by obtaining substantially all of CBS assets (a 'CBS\nAssignee'), provided that any such CBS Assignee, or any division thereof,\nthereafter succeeds to all of the rights and is subject to all of the\nobligations of CBS under this Agreement.\n\n        10.2 Each party hereto irrevocably submits to the exclusive jurisdiction\nof (a) the Supreme Court of the State of New York, New York County, or (b) the\nUnited States District Court for the Southern District of New York, for the\npurposes of any suit, action or other proceeding arising out of this Agreement\nor any transaction contemplated hereby or thereby. Each of CBS and MarketWatch\nagrees to commence any such action, suit or proceeding either in the United\nStates District Court for the Southern District of New York or if such suit,\naction or other proceeding may not be brought in such court for jurisdictional\nreasons, in the Supreme Court of the State of New York, New York County. Each of\nCBS and MarketWatch further agrees that service of any process, summons, notice\nor documents by U.S. registered mail to such party's respective address set\nforth above shall be effective service of process for any action, suit or\nproceeding in New York with respect to any maters to which it has submitted to\njurisdiction in this Section 10.2. Each of CBS and MarketWatch irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit\nor proceeding arising out of this Agreement or the transactions contemplated\nhereby and thereby in (i) the Supreme Court of the State of New York, New York\nCounty, or (ii) the United States District Court for the Southern District of\nNew York, and hereby and thereby further irrevocably and unconditionally waives\nand agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n\n        10.3 Each party shall comply in all material respects with all laws and\nregulations applicable to its activities under this Agreement.\n\n        10.4 If any provision of this Agreement (or any portion thereof) or the\napplication of any such provision (or any portion thereof) to any Person or\ncircumstance shall be held invalid, illegal or unenforceable in any respect by a\ncourt of competent jurisdiction, such invalidity,\n\n\n                                       13\n\n\nillegality or unenforcability shall not affect any other provision hereof (or\nthe remaining portion thereof) or the application of such provision to any other\nPersons or circumstances.\n\n        10.5 All notices or other communications required or permitted to be\ngiven hereunder shall be in writing and shall be delivered by hand or sent,\npostage prepaid, by registered, certified or express mail or reputable overnight\ncourier service and shall be deemed given when so delivered by hand, or if\nmailed, three days after mailing (one business day in the case of express mail\nor overnight courier service), as follows:\n\n               (i)    if to MarketWatch,\n\n                      MarketWatch.Com Inc.\n                      825 Battery St.,\n                      San Francisco, CA 94111\n\n                      Attention of Larry Kramer and Peter Bardwick\n\n               (ii)   if to CBS,\n\n                      CBS Broadcasting Inc.\n                      51 West 52nd Street\n                      New York, New York 10019\n\n                      Attention of Fredric G. Reynolds and\n                                   Louis J. Briskman\n\n        with copies to:\n\n                      CBS Broadcasting Inc.\n                      51 West 52nd Street\n                      New York, New York 10019\n\n                      Attention of General Counsel, and\n\n                      Cravath, Swaine &amp; Moore\n                      825 Eighth Avenue\n                      New York, New York 10019\n\n                      Attention of Peter S. Wilson, Esq., and\n\n                      Data Broadcasting Corporation\n                      3955 Point Eden Way\n                      Hayward, CA 94549\n\n                      Attention of Mark F. Imperiale\n\n        10.6 The parties to this Agreement are independent contractors. There is\nno relationship of partnership, joint venture, employment, franchise, or agency\nbetween the parties. Neither party shall have the power to bind the other or\nincur obligations on the other's behalf without the other's prior written\nconsent.\n\n\n                                       14\n\n\n        10.7 No failure of either party to exercise or enforce any of its rights\nunder this Agreement shall act as a waiver of such right.\n\n        10.8 This Agreement, along with the Exhibits hereto, contains the entire\nagreement and understanding between the parties hereto with respect to the\nsubject matter hereof and supersedes all prior agreements and understandings\nrelating to such subject matter. Neither party shall be liable or bound to any\nother party in any manner by any representations, warranties or covenants\nrelating to such subject matter except as specifically set forth herein.\n\n        10.9 This Agreement may be executed in one or more counterparts, all of\nwhich shall be considered one and the same agreement, and shall become effective\nwhen one or more such counterparts have been signed by each of the parties and\ndelivered to each of the other parties.\n\n        10.10 This Agreement may not be amended except by an instrument in\nwriting signed on behalf of each of the parties hereto. By an instrument in\nwriting, any two parties hereto may waive compliance by the third party with any\nterm or provision of this Agreement that such third party was or is obligated to\ncomply with or perform.\n\n        10.11 This Agreement shall be governed by and construed in accordance\nwith the internal laws of the State of New York applicable to agreements made\nand to be performed entirely within such State, without regard to the conflicts\nof law principles of such State.\n\n        10.12 Except as provided in Article VI of the Contribution Agreement,\nthis Agreement is for the sole benefit of the parties hereto and their permitted\nassigns (including MarketWatch.com, Inc., the successor to MarketWatch) and\nnothing herein expressed or implied shall give or be construed to give to any\nperson, other than the parties hereto and such assigns, any legal or equitable\nrights hereunder.\n\n        10.13 The headings contained in this Agreement or in any Exhibit or\nSchedule hereto are for reference purposes only and shall not affect in any way\nthe meaning or interpretation of this Agreement. All Exhibits and Schedules\nannexed hereto or referred to herein are hereby incorporated in and made a part\nof this Agreement as if set forth in full herein. Any capitalized terms used in\nany Schedule or Exhibit but not otherwise defined therein, shall have the\nmeaning as defined in this Agreement. When a reference is made in this Agreement\nto a Section, Exhibit or Schedule, such reference shall be to a Section of, or\nan Exhibit or Schedule to, this Agreement unless otherwise indicated.\n\n\n                                       15\n\n\n        IN WITNESS WHEREOF, the parties have caused this Agreement to be\nexecuted by their duly authorized representatives as of the date first above\nwritten.\n\nMARKETWATCH.COM, LLC                        CBS BROADCASTING INC.\n\n\nBy: \/S\/ J. PETER BARDWICK                   By: \/s\/ LOUIS J. BRISKMAN\n   ------------------------------------        ---------------------------------\n\nName: J. Peter Bardwick                     Name: Louis J. Briskman\n     ----------------------------------          -------------------------------\n\nTitle: CFO and Secretary                    Title: Executive Vice President and\n      ---------------------------------            General Counsel\n                                                  ------------------------------\n\n\n                                       16\n\n\n                                    EXHIBIT 1\n\n\n   \n(Attached to and forming a part of the Agreement, made January 13, 1999, and\neffective as of October 29, 1997 between CBS Broadcasting Inc. and\nMarketwatch.Com, LLC)\n    \n\n\n                                    CBS MARKS\n\n                                       CBS\n\n\n                                 [EYEBALL LOGO]\n\n\n                                       17\n\n\n                                    EXHIBIT 2\n\n\n   \n(Attached to and forming a part of the Agreement, made January 13, 1999, and\neffective as of October 29, 1997 between CBS Broadcasting Inc. and\nMarketwatch.Com, LLC)\n    \n\n\n                     CBS LICENSE GUIDELINES AND RESTRICTIONS\n\n\nI. GENERAL\n\n        The MarketWatch Site shall not include Content that: (i) is sexually\n        explicit, (ii) contains profanity or (iii) that denigrates a particular\n        group based on gender, race, creed, religion, sexual preference or\n        handicap.\n\nII. CBS NEWS CONTENT\n\n        1. Each party shall notify the other of all errors, omissions, and\/or\n           inaccuracies in transmission or transcription of the CBS News Content\n           within forty-eight (48) hours after it becomes aware thereof.\n\n        2. If MarketWatch provides such notice, it shall specify to CBS what\n           action, if any, it has taken to correct the error, omission and\/or\n           inaccuracy.\n\n        3. If CBS provides such a notice, or receives such notice, it may\n           specify the action to be taken by MarketWatch to correct the error,\n           omission and\/or inaccuracy or resubmit such content.\n\n        4. All CBS News Content shall be subject to restrictions and\n           instructions disclosed by CBS at any time.\n\n        5. CBS shall have the right to refuse to deliver to MarketWatch any CBS\n           News Content if, in CBS's sole discretion, the CBS News Content or\n           the use contemplated, conflicts with, interferes with or is\n           detrimental to CBS's interests, reputation or business or which might\n           subject CBS to unfavorable regulatory action, violate any law,\n           infringe the rights of any person, or subject CBS to liability for\n           any reason.\n\n        6. MarketWatch shall abide by responsible journalistic standards. No CBS\n           News Content shall be used\/displayed out of context. MarketWatch\n           shall no distort or misrepresent any events, opinions or statements\n           contained in the CBS News Content received by MarketWatch.\n\nIII. TRADEMARKS\n\n\n                                       18\n\n\n        MarketWatch shall place a trademark notice to be furnished by CBS on all\n        items or materials utilizing CBS Marks. CBS shall provide MarketWatch\n        with the manner, style and placement of such notice, which shall be\n        deemed incorporated into this Section.\n\nIV. CROSS-LINKS\n\n        1. MarketWatch shall not establish any links from the MarketWatch Site\n           to any gambling, pornographic or obscenity Content.\n\n        2. MarketWatch shall not conduct any cross promotions between the\n           MarketWatch Site and any Internet Site which uses or exhibits\n           gambling, pornographic or obscenity Content.\n\nV. OWNERSHIP\n\n        1. MarketWatch shall place an appropriate copyright notice to be\n           furnished by CBS on all CBS Content Pages of the MarketWatch Site.\n\n        2. MarketWatch and CBS shall mutually develop the procedures for placing\n           any third party copyright notice on any CBS Content Page.\n\n\n                                       19\n\n\n                                    EXHIBIT 3\n\n                           APPROVED USAGE OF CBS MARKS\n\n\n\n        The following materials (bearing the CBS marks) are approved:\n\n        Munsingware long sleeve t-shirt\n        grey &amp; black pens\n        white cocktail napkin\n        business card, subject to * below\n\n        *CBS has a colored photostat of the business card which reflects the\n        outer circle of the 'Eye' fading into the black background. Assuming\n        that the fading is due to the photostatic process, then the card is\n        acceptable .\n\n                                       20\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9252],"corporate_contracts_industries":[9465],"corporate_contracts_types":[9613,9616],"class_list":["post-42454","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-viacom-inc","corporate_contracts_industries-media__broadcasting","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42454","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42454"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42454"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42454"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42454"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}