{"id":42779,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/services-agreement-marketwatch-com-llc-and-data-broadcasting.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"services-agreement-marketwatch-com-llc-and-data-broadcasting","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/services-agreement-marketwatch-com-llc-and-data-broadcasting.html","title":{"rendered":"Services Agreement &#8211; MarketWatch.com LLC and Data Broadcasting Corp."},"content":{"rendered":"<pre>\n                               SERVICES AGREEMENT\n\n                  AGREEMENT made as of the 29th Day of October, 1997, by and\nbetween MARKETWATCH.COM.LLC, c\/o Data Broadcasting Corporation, 1900 South\nNorfolk Street. San Mateo, CA 94403 (herein called 'MarketWatch') and DATA\nBROADCASTING CORPORATION, 1900 South Norfolk Street, San Mateo, CA 94403 (herein\ncalled 'DBC').\n\n1.       DESCRIPTION\n\n         1.1 During the term of this Agreement, subject to the terms and\nconditions stated herein\n\n                  (a) at the request of MarketWatch, DBC Will perform the\nfollowing services for MarketWatch:\n\n                           (i) subject to MarketWatch's prior approval in each\n                  instance, DBC shall engage or employ personnel assigned to\n                  service MarketWatch (hereinafter referred to as 'MarketWatch\n                  Employees') on a full-time or part-time basis as needed,\n                  including the calculation and administration of employee (or\n                  engaged personnel) compensation, benefits and\/or related\n                  payments or deductions\/withholdings. MarketWatch shall have\n                  the right to require DBC to terminate any employee (or engaged\n                  personnel, as applicable). In connection with the foregoing\n                  services, MarketWatch shall hold DBC harmless from liability\n                  with respect to any personnel action involving a MarketWatch\n                  Employee (acting solely within the scope of his or her\n                  employment for MarketWatch), provided such personnel action is\n                  directed by MarketWatch. (For avoidance of doubt, the\n                  preceding sentence shall not relieve DBC of liability in its\n                  capacity as a principal of MarketWatch.)\n\n                           (ii) handle customer billing and collection for\n                  MarketWatch subscription products and services and other\n                  services including without limitation, real-time data service.\n\n                           (iii) provide computer software programming\n                  assistance, including, without limitation, assistance with the\n                  operation of the on-line services (including advertising\n                  services) offered by MarketWatch and the creation of\n                  MarketWatch web site pages and navigation systems.\n\n\n\n\n\n                  (b) (i) At the request of MarketWatch in each instance, DBC\n                  will license to MarketWatch, free of charge, the delayed\n                  commodities and stock data feeds delivered from the financial\n                  exchanges with whom DBC has existing contracts (including,\n                  without limitation, the New York Stock Exchange; The American\n                  Stock Exchange; The Nasdaq Stock Market. Inc.; New York\n                  Mercantile Exchange; Chicago Board Options Exchange; Chicago\n                  Board of Trade; MidAmerica Commodity Exchange; Commodities\n                  Exchange Center; Chicago Mercantile Exchange; and Coffee,\n                  Sugar &amp; Cocoa Exchange), which feeds are currently made\n                  available by DBC to users\/subscribers of the Internet web site\n                  currently knows as dbc.com.\n\n                           (ii) DBC will provide MarketWatch with communications\n                  lines (including at least two (2) T-3 connections to the\n                  Internet, hardware and software to effect the required\n                  capability to receive\/transmit etc. the data feeds described\n                  in section 1.1(b)(i) above. DBC will use its best efforts to\n                  ensure third party provided lines will be in good working\n                  order at all times.\n\n                           (iii) In connection with the data feed described in\n                  section 1.1(b)(i) above, DBC will provide MarketWatch with\n                  network operations and web site management support (including,\n                  without limitation, hosting connectivity, serving content,\n                  serving and reporting ads and reporting content) twenty-four\n                  hours a day seven days a week.\n\n                  (c) At MarketWatch's request, DBC Will provide (from its\nrented or owned office space) office space and related facilities, to the extent\navailable, for MarketWatch Employees; provided, however, DBC will furnish\nMarketWatch with sufficient space in its San Mateo offices to conduct\nMarketWatch's current operations until the current lease for DBC's San Mateo\noffices expires. Such right to use such facilities shall in no way be construed\nas a sublease or license by DBC of any real property but shall only be construed\nas a reimbursement arrangement. The provision of space at DBC's current offices\nin San Mateo shall be free of charge.\n\n         1.2 During the term of this Agreement, subject to the terms and\nconditions stated herein:\n\n                  (a)      DBC will pay MarketWatch:\n\n                           (i) Five Dollars ($5) per month per subscriber for\n                  each DBC PC-based subscriber who receives real-time quotes and\n                  news, and Two Dollars Fifty Cents ($2.50) per month for each\n                  Quotrek subscriber who receives real-time quotes and news. The\n                  payment will be a minimum of $100,000 per month.\n\n                           (ii) With respect to subscribers of the real-time\n                  market feeds described below:\n\n\n\n                                       2\n\n\n                                    (A) twenty-five percent (25%) of the Net\n                           Revenues earned from the real-time market feed to be\n                           known as 'MarketWatch Live'; and\n\n                                    (B) seventy-five percent (75%) of the Net\n                           Revenues earned from the real-time market feed to be\n                           known as 'MarketWatch RT'.\n\n                  As used in section 1 2(a)(ii), the term 'Net Revenues' shall\n                  mean gross subscription fees collected less exchange fees\n                  actually paid by DBC, credit card fees actually paid by DBC\n                  and any applicable sales taxes billed by DBC and paid by the\n                  subscriber concerned.\n\n2.       TERM\n\n         2.1 The term of this Agreement shall begin as of the date hereof and\nshall continue in full force and effect for a period of five (5) consecutive\nyears, through and including October [ ], 2002, unless it is terminated earlier\nin accordance with the terms and conditions contained herein.\n\n3.       COMPENSATION; OFFSET\n\n         3.1 In consideration for all grants herein made or agreed to be made\nand all rights, licenses, privileges and property herein conveyed or agreed to\nbe conveyed, and all warranties, representations and covenants herein made by\nDBC, MarketWatch agrees to pay DBC as follows:\n\n                  (a) DBC's actual costs, subject, however, to the approval of\nMarketWatch of the costs to be incurred, other than the costs incurred by DBC in\nthe ordinary course of business. in connection with:\n\n                           (i) the services rendered pursuant to subparagraph\n                  1.1 (a) and section 1.1(b)(iii); and\n\n                           (ii) the provision of communications lines described\n                  in section 1.1(b)(ii) above.\n\n                           (iii) the provision of office space and related\n                  facilities to MarketWatch personnel, it being understood that\n                  such actual cost shall be DBC's cost per rented square foot of\n                  space utilized by the MarketWatch personnel concerned, subject\n                  to the next sentence. The provision of office space and\n                  related facilities to MarketWatch personnel at DBC's current\n                  San Mateo location, however, shall be free of charge.\n\n         3.2 In the event that DBC breaches subparagraph 1.01(b) of the\nContribution Agreement among CBS Inc., DBC and MarketWatch dated as of October\n29, 1997 (the 'Contribution Agreement'), then, in addition to whatever other\nrights and remedies MarketWatch may have under the Contribution Agreement,\nMarketWatch may offset any\n\n\n\n                                       3\n\n\nmonies due and owing from DBC under the (subparagraph 1.01 (b) of the)\nContribution Agreement against monies payable (from MarketWatch) to DBC\nhereunder.\n\n         3.3 In the event that the services provided by DBC pursuant to this\nAgreement cause DBC to recognize income for federal income tax purposes in an\namount which exceeds the amount prescribed for such services in subparagraph\n3.1(a) above (the 'Excess'), then the entire amount of any deductions available\nto MarketWatch solely attributable to such Excess shall be allocated by\nMarketWatch to DBC.\n\n4.       WARRANTIES; REPRESENTATIONS; INDEMNITIES\n\n         4.1      (a)      DBC represents and warrants that:\n\n                           (i) it has full power and authority to enter into and\n                  fully perform this Agreement.\n\n                           (ii) it has sufficient right and authority to grant\n                  to MarketWatch all licenses and rights granted or agreed to be\n                  granted by it hereunder.\n\n                           (iii) all materials and services furnished to\n                  MarketWatch or the use thereof will not violate any applicable\n                  lay, or violate or infringe upon the rights of any third\n                  party.\n\n                           (iv) at all times. DBC will comply with all\n                  applicable federal, state and local laws.\n\n                  (b) MarketWatch represents and warrants that it is free to\nenter into and fully perform this Agreement.\n\n         4.2 (a) DBC will assume all obligations for and indemnify and hold\nMarketWatch harmless from (i) malfunctions or other usage problems resulting\nfrom or in connection with the 'Year 2000 Problem' (i.e., the year 2000 (and\nlater years) as distinct from the years 1900 through 1999, (and earlier years)),\nand (ii) 'bugs', 'viruses' or defects in the feeds or other software goods\nprovided herein, which affect the function or capabilities of such feeds or\nsoftware.\n\n                  (b) 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\nAgreement.\n\n5.       ACCOUNTINGS\n\n         5.1 DBC will compute Net Revenues or any other transactions on which\nmonies are payable to MarketWatch as of each March 31, June 30, September 30 and\nDecember 31, for the prior three (3) months. Within sixty (60) days after the\nclose of the calendar quarterly period concerned, DBC will send MarketWatch a\nstatement covering the number of subscribers who pay for the feeds described in\nparagraph 1.2 during such quarterly period and will pay\n\n\n\n                                       4\n\n\nMarketWatch for any Net Revenues or other monies due (including, without\nlimitation, sums due in connection with the subscriptions concerned).\n\n         5.2 DBC will maintain books and records which report the sales and\nmaintenance of subscriptions hereunder. Any Member of MarketWatch may make an\nexamination of a particular statement within three (3) years after the date when\nDBC sends the statement concerned. Any Member of MarketWatch may review and copy\nthe books and records of DBC with respect to such statement, upon reasonable\nnotice during normal working hours.\n\n6.       REMEDIES\n\n         6.1 MarketWatch shall have the right to terminate this Agreement if:\n\n                  (a) DBC breaches any material term or condition of this\nAgreement and has failed to cure such breach within ten (10) days after\nMarketWatch's notice of default. The foregoing cure period will not apply to\nDBC's obligations regarding the provision of delayed data feeds or to breaches\nincapable of being cured;\n\n                  (b) DBC: (i) becomes insolvent or unable to pay its debts as\nthey mature or makes an assignment for the benefit of its creditors; (ii) is the\nsubject of a voluntary petition in bankruptcy or any voluntary proceeding\nrelating to insolvency, receivership, liquidation, or composition for the\nbenefit 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; or\n(iv) is liquidated or dissolved; or\n\n                  (c) MarketWatch is dissolved.\n\nMarketWatch may exercise its rights pursuant to this paragraph 6.1 by sending\nDBC the appropriate notice. No exercise of MarketWatch's rights under this\nSection 6.1 will limit MarketWatch's remedies by reason of DBC's default,\nMarketWatch s rights to exercise any other right under this paragraph 6.1, or\nany of MarketWatch's other rights.\n\n7.       GENERAL\n\n         7.1 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, MarketWatch\nmay have the right to assign this Agreement or any of its rights and obligations\nhereunder to any entity controlling, controlled by or under common control with,\nMarketWatch, or to any entity that acquires MarketWatch by purchase of stock or\nby merger or otherwise, or by obtaining substantially all of MarketWatch's\nassets (a '`MarketWatch Assignee'), provided that any such MarketWatch Assignee,\nor any division thereof, thereafter succeeds to all of the rights and is subject\nto all of the obligations of MarketWatch under this Agreement.\n\n\n\n                                       5\n\n\n         7.2 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         7.3 Each party hereto irrevocably submits to the exclusive jurisdiction\nof (a) the Supreme Court of the State of New York, New York County, and (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 DBC 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\nDBC and MarketWatch further agrees that service of any process, summons, notice\nor document by U.S. registered mail to such party's respective address set forth\nabove shall be effective service of process for any action, suit or proceeding\nin New York, with respect to any matters to which it has submitted to\njurisdiction in this Section 7.3. Each of DBC 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         7.4 Each party shall comply in all material respects with all laws and\nregulations applicable to its activities under this Agreement.\n\n         7.5 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, illegality or unenforceability\nshall not affect any other provision hereof (or the remaining portion thereof)\nor the application of such provision to any other Persons or circumstances.\n\n         7.6 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                           c\/o Data Broadcasting Corporation\n                           1900 South Norfolk Street\n                           San Mateo, CA 94403\n\n                           Attention of Larry Kramer\n\n\n\n                                       6\n\n\n                  (ii)     if to DBC,\n\n                           Data Broadcasting Corporation\n                           1900 South Norfolk Street\n                           San Mateo, CA 94403\n\n                           Attention of Mark Imperiale, President\n\n               with copies to:\n\n                           Camhy Karlinsky &amp; Stein LLP\n                           1740 Broadway\n                           Sixteenth Floor\n                           New York, NY 10019\n\n                           Attention of Alan I. Annex, Esq.\n\n         7.7 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         7.8 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         7.9 This Agreement, along with the Exhibits thereto, contains the\nentire agreement and understanding between the parties hereto with respect to\nthe subject matter hereof and supersedes all prior agreements and understandings\nrelating to such subject matter. Neither party shall be liable or bound to any\nother part, in any manner by any representations, warranties or covenants\nrelating to such subject matter except as specifically set forth herein.\n\n         7.10 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         7.11 This Agreement shall not become effective until executed by all\nproposed Parties hereto.\n\n         7.12 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 partly with\nany term or provision of this Agreement that such third party was or is\nobligated to comply with or perform.\n\n         7.13 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 and nothing herein expressed or implies shall give or be construed to\ngive to any person, other than the parties hereto and such assigns, any legal or\nequitable rights hereunder.\n\n\n\n                                       7\n\n\n         7.14 The headings contained in this Agreement are for reference\npurposes only and shall not affect in any way the meaning or interpretation of\nthis Agreement. When a reference is made in this Agreement to a paragraph such\nreference shall be to a paragraph of this Agreement unless otherwise indicated.\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\nDATA BROADCASTING CORPORATION                MARKETWATCH.COM, LLC\n\nBy: \/s\/ MARK F. IMPERIALE                    By: \/s\/ DEREK R.. REISFIELD\n    -------------------------------              -------------------------------\nTitle:     President                         Title:       Chairman\n       ----------------------------                 ----------------------------\n\n\n\n                                       8\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7878],"corporate_contracts_industries":[9418],"corporate_contracts_types":[9613,9620],"class_list":["post-42779","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-interactive-data-corp","corporate_contracts_industries-financial__securities","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42779","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=42779"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42779"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42779"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42779"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}