{"id":42780,"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-broadcasting2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"services-agreement-marketwatch-com-llc-and-data-broadcasting2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/services-agreement-marketwatch-com-llc-and-data-broadcasting2.html","title":{"rendered":"Services Agreement &#8211; MarketWatch.com LLC and Data Broadcasting Corp."},"content":{"rendered":"<pre>                              AMENDED AND RESTATED\n                               SERVICES AGREEMENT\n\n   \n        This AGREEMENT made as of the 13th Day of January, 1999, by and\nbetween MARKETWATCH.COM.LLC, 825 Battery Street, San Francisco, CA 94111,\n(herein called 'MarketWatch') and DATA BROADCASTING CORPORATION, 3955 Point Eden\nWay, Hayward, CA 94545 (herein called 'DBC') hereby amends and restates this\nAgreement entered into between the parties as of October 29, 1997 (that was\nattached to and formed a part of the CONTRIBUTION AGREEMENT, dated as of October\n29, 1997 between CBS Broadcasting, Inc. (formerly known as CBS, Inc.), DBC and\nMarketWatch.\n    \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) (A) 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 the\n                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 preceding\n                sentence shall not relieve DBC of liability in its capacity as a\n                principal of MarketWatch.)\n\n                        (B) For avoidance of any doubt, all material(s)\n                produced, developed, created or furnished to MarketWatch by\n                MarketWatch Employees, excluding the MarketWatchRT Software,\n                will be deemed 'work(s) made for hire' for MarketWatch under the\n                United States Copyright Act; but in the event it is determined\n                that such materials in whole or in part are not 'work(s) made\n                for hire', they will be deemed transferred to MarketWatch by\n                this Agreement. All such materials made or furnished to\n                MarketWatch by MarketWatch Employees, excluding the\n                MarketWatchRT Software, shall be the sole property of\n                MarketWatch, free from any claims by any MarketWatch Employee,\n                DBC or any other person, firm or entity; and MarketWatch shall\n                have the exclusive right to\n\n\n\n\n                copyright such materials in its name as the author and owner of\n                them and to secure any and all renewals and extensions of such\n                copyright throughout the world. DBC will cause engaged personnel\n                to execute and deliver to MarketWatch documents reflecting that\n                materials developed, produced, created or furnished by such\n                personnel, excluding the MarketWatchRT Software, are\/shall be\n                deemed a 'work made for hire' for MarketWatch; and if any of\n                such material is determined not to be a 'work made for hire' it\n                will be deemed transferred to MarketWatch.\n\n                (ii) handle customer billing and collection for MarketWatch\n                subscription products and services and other services including\n                without limitation, real-time data service.\n\n                (iii) provide computer software programming assistance,\n                including, without limitation, assistance with the operation of\n                the on-line services (including advertising services) offered by\n                MarketWatch and the creation of MarketWatch web site pages and\n                navigation systems.\n\n                (b) (i) At the request of MarketWatch in each instance, DBC will\nlicense to MarketWatch, free of charge, the delayed commodities and stock data\nfeeds (the 'Data Feed') delivered from the financial exchanges with whom DBC has\nexisting contracts (including, without limitation, the New York Stock Exchange;\nThe American Stock Exchange; The Nasdaq Stock Market. Inc.; New York Mercantile\nExchange; Chicago Board Options Exchange; Chicago Board of Trade; MidAmerica\nCommodity Exchange; Commodities Exchange Center; Chicago Mercantile Exchange;\nand Coffee, Sugar &amp; Cocoa Exchange) (the 'Data Providers'). The Data Feed is\ncurrently made available by DBC to users\/subscribers of the Internet web site\ncurrently known as dbc.com.\n\n                (ii) DBC will provide MarketWatch with communications lines\n                (including at least two (2) T-3 connections to the Internet,\n                hardware and software to effect the required capability to\n                receive\/transmit etc. the data feeds described in Section\n                1.1(b)(i) above. DBC will use its best efforts to ensure third\n                party provided lines will be in good working order at all times.\n\n                (iii) In connection with the data feed described in Section\n                1.1(b)(i) above, DBC will provide MarketWatch with network\n                operations and web site management support (including, without\n                limitation, hosting connectivity, serving content, serving and\n                reporting ads and reporting content) twenty-four hours a day\n                seven days a week.\n\n                (c) At MarketWatch's request, DBC will provide (from its rented\nor owned office space) office space and related facilities, to the extent\navailable, for MarketWatch Employees. Such right to use such facilities shall in\nno way be construed as a sublease or license by DBC of any real property but\nshall only be construed as a reimbursement arrangement.\n\n\n                                       2\n\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) Two Dollars and Fifty Cents ($2.50) per month per subscriber\n                for each portable device subscriber who receives real-time\n                quotes and news, and Five Dollars ($5.00) per month per\n                subscriber for all other subscriber devices (including all\n                portable personal computers) who receive real-time quotes and\n                news, with both types of payments to be made until and through\n                October 29, 2002. No such payments shall be made with respect to\n                multi-user 'institutional' clients that receive a volume\n                discount. For the purposes of the preceding sentence, the term\n                'institutional' means: banks, broker-dealers, money managers,\n                investment advisors, insurance companies or other similar\n                organizations. The payment will be a minimum of $100,000 per\n                month until and through October 29, 2002.\n\n\n                (ii) With respect to subscribers of the real-time market feeds\n                described below:\n\n                        (A) twenty-five percent (25%) of the Net Revenues earned\n                from the real-time market feed currently known as 'MarketWatch\n                Live'; and\n\n                        (B) seventy-five percent (75%) of the Net Revenues\n                earned from the real-time market feed currently known as\n                '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 and\n                any applicable sales taxes billed by DBC and paid by the\n                subscriber concerned.\n\n2. TERM\n\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 eight (8) consecutive\nyears, from October 29, 1997 through and including October 29, 2005, unless it\nis terminated earlier in accordance with the terms and conditions contained\nherein.\n\n\n3. COMPENSATION; OFFSET\n\n        3.1 In consideration for all grants herein made or agreed to be made and\nall rights, licenses, privileges and property herein conveyed or agreed to be\nconveyed, and all warranties, representations and covenants herein made by DBC,\nMarketWatch 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 Section 1.1 (a) and\n                Section 1.1(b)(iii); and\n\n\n                                       3\n\n\n                (ii) the provision of communications lines described in Section\n                1.1(b)(ii) above.\n\n                (iii) the provision of office space and related facilities to\n                MarketWatch personnel, it being understood that such actual cost\n                shall be DBC's cost per rented square foot of space utilized by\n                the MarketWatch personnel concerned, subject to the next\n                sentence. The provision of office space and related facilities\n                to MarketWatch personnel at DBC's current San Mateo location,\n                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 monies due and owing from DBC under the (Section 1.01\n(b) of the) Contribution Agreement against monies payable (from MarketWatch) to\nDBC hereunder.\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 Section 3.1(a)\nabove (the 'Excess'), then the entire amount of any deductions available to\nMarketWatch solely attributable to such Excess shall be allocated by MarketWatch\nto DBC.\n\n4. CONTENT AND DELIVERABLES\n\n        4.1 At no additional charge, DBC will grant MarketWatch a royalty-free,\nworldwide, non-exclusive license to use, copy, publicly display, make derivative\nworks from, perform, distribute or otherwise make available on or through the\nMarketWatch Site and in connection with products and services distributed from\nthe MarketWatch Site the following data feeds:\n\n                (a) Those feeds\/services set forth in Section 1.1(b)(i) hereof;\nand\n\n                (b) The following additional data feeds\/services, provided that\nDBC has in place a license to redistribute such data feeds\/services: Fundamental\nData, Historical Data, Intraday Tick Data.\n\n        4.2 At no additional charge, DBC hereby irrevocably transfers and\nassigns to MarketWatch all right, title and interest in and to all deliverables,\nmaterials, copyrightable works, inventions, improvements, trade secrets,\ntrademarks, servicemarks, made, conceived or developed by DBC either alone or\nwith others in connection with this Agreement, and all DBC proprietary software\nand technology used in connection with the services and data feeds provided\nunder this Agreement (collectively, the 'DBC Services'), excluding DBC\nproprietary software used by DBC in connection with providing MarketWatch the\nMarketWatchRT data feed (the 'MarketWatchRT Software').\n\n\n                                       4\n\n\n        4.3 At no additional charge, MarketWatch hereby grants to DBC a\nnon-exclusive, perpetual license to use, copy, modify and make derivative works\nfrom the DBC proprietary software and technology used by DBC in providing the\nDBC Services.\n\n        4.4 'MarketWatch Site' means the Internet websites owned or controlled\nby MarketWatch that provide stock quotes, personal finance information and\nbusiness, stock stories and related products and services.\n\n5. PERFORMANCE STANDARDS AND SPECIFICATIONS\n\n        5.1 DBC will provide all DBC Services in a professional manner,\nconsistent with industry standards.\n\n        5.2 DBC will use its best efforts to cause all hosting and data services\nto meet the Performance Specifications (attached hereto as Schedule A, and\nhereby made a part of this Agreement).\n\n        5.3 In the event that DBC materially fails to meet the Up-Time\nRequirements set forth in the Performance Specifications during any MarketWatch\nBusiness Day, defined below, MarketWatch's payments for the DBC network\noperations set forth in Section 1.1(a)(iii) hereof for that month shall be\nreduced by a percentage equal to the hours that the DBC Services failed to meet\nsuch Performance Specifications divided by the number of hours in the business\ndays for that month. A 'MarketWatch Business Day' shall be considered to run\nfrom the hours of 4AM to 8PM PST. DBC shall not be responsible for failures\ncaused by MarketWatch's fault, or by the actions of a non-affiliated third\nparty, provided that DBC has taken reasonable actions to anticipate and handle\nany such failure caused by a third-party, and further provided that DBC shall\ncredit MarketWatch with any credits or payments received from third parties\nrelated to such failure. DBC shall use its best efforts to ensure that all third\nparties conform to the provisions hereof.\n\n        5.4 DBC shall provide, at DBC's out-of-pocket cost, a redundant hosting\ncenter capable of providing immediate back up capability and such Internet\nconnectivity as reasonably requested by MarketWatch.\n\n        5.5 DBC will use its reasonable efforts to provide MarketWatch with\nadditional required hardware, software or communications bandwidth, and will\nprovide all of the foregoing to MarketWatch at DBC's cost.\n\n6. DBC TRADEMARK\n\n        At no additional charge, DBC will grant MarketWatch a worldwide,\nnon-exclusive license to use the DBC trademark(s) in connection with the\nmarketing, promotion, and operation of the MarketWatch Site, and the\ndistribution of content from such Site and related products and\n\n\n                                       5\n\n\nservices. MarketWatch's use of such trademarks shall be in accordance with DBC's\nreasonable trademark usage guidelines, as such guidelines are provided to\nMarketWatch in writing from time to time.\n\n7. HOSTING SPECIFICATIONS AND TRANSITION SERVICES\n\n        7.1 DBC will, upon MarketWatch's request, provide MarketWatch with\nreasonably detailed specifications for the DBC technology used in providing the\nDBC Services, and for all hardware, software, firmware and system configurations\nwhich MarketWatch will require to properly perform or have performed the\nservices and procedures performed by DBC. The foregoing shall be subject to any\nlimitations on disclosure imposed upon DBC by third party suppliers and\nlicensors.\n\n        7.2 Upon any termination or expiration of this Agreement, or of any of\nthe services provided by DBC hereunder, DBC will provide the following\nassistance and deliverables:\n\n                (a) assist MarketWatch, or MarketWatch's designee, in the\nconfiguration and installation of any hardware, software, firmware or equipment\nprocured by MarketWatch in connection with the DBC Services.\n\n                (b) DBC will deliver to MarketWatch or its designee, and install\non hardware and equipment designated by MarketWatch, those DBC materials and DBC\nproprietary software programs necessary to provide the DBC Services.\n\n                (c) DBC will deliver to MarketWatch, and install on\nMarketWatch's hardware and equipment, the current version of any MarketWatch\nsoftware then being used by DBC in connection with the DBC Services, excluding\nthe MarketWatch RT Software.\n\n                (d) DBC will provide appropriate training for the MarketWatch\nemployees or its agents or contractors who will be assuming responsibility for\noperation of the DBC technology following such transition. MarketWatch will be\ncharged time and material, at current rates, for any training provided to\nMarketWatch due to termination.\n\n                (e) DBC will assist MarketWatch, at MarketWatch's expense, in\nMarketWatch's acquisition of any necessary rights to access and use any\nthird-party data feeds, hardware, software, documentation then being used by DBC\nin connection with the DBC Services. Upon MarketWatch's request, DBC will\ntransfer or assign, or use its best efforts to cause to be transferred or\nassigned, to MarketWatch or its designee, on mutually acceptable terms and\nconditions, any contracts applicable to such data feeds, hardware, software and\ndocumentation.\n\n                (f) MarketWatch shall have the option to buy any hardware and\/or\nsoftware that DBC is utilizing to provide the DBC Services for an amount to be\nnegotiated in good faith by the parties.\n\n\n                                       6\n\n\n                (g) upon termination of this Agreement, MarketWatch shall\npurchase from DBC any hardware and\/or software purchased and paid for by DBC\nspecifically at MarketWatch's request, at the then-current net book value of\nsuch hardware and\/or software, computed using generally accepted accounting\nprinciples.\n\n8. WARRANTIES; REPRESENTATIONS; INDEMNITIES\n\n        8.1 (a) DBC represents and warrants that:\n\n                (i) it has full power and authority to enter into and fully\n                perform this Agreement.\n\n                (ii) it has sufficient right and authority to grant to\n                MarketWatch all licenses and rights granted or agreed to be\n                granted by it hereunder.\n\n                (iii) all materials and services furnished to MarketWatch or the\n                use thereof will not violate any applicable lay, or violate or\n                infringe upon the rights of any third party.\n\n                (iv) at all times. DBC will comply with all applicable federal,\n                state and local laws.\n\n                (b) MarketWatch represents and warrants that it is free to enter\ninto and fully perform this Agreement.\n\n        8.2 (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; provided, however, that, MarketWatch agrees that neither DBC, nor its\nData Providers, nor any agent, subsidiary, or representative thereof shall have\nany liability, contingent or otherwise, for the truthfulness, accuracy or\ntimeliness of the Data Feed or the truthfulness, accuracy, timeliness,\ncompleteness or correct sequencing of the Data Feed by DBC or the Data\nProviders, or for any decision made or action taken by MarketWatch or its\ncustomers in reliance upon the Data Feed, or for interruption or delay of the\nData Feed except to the extent that such liability arises from DBC's malfeasance\nor nonfeasance. THERE IS NO WARRANTY OF MERCHANTABILITY NOR WARRANTY OF FITNESS\nFOR A PARTICULAR USE, NOR ANY IMPLIED WARRANTY OF ANY KIND, REGARDING THE\nINFORMATION OR ANY ASPECT OF THE DATA FEED (INCLUDING BUT NOT LIMITED TO\nINFORMATION ACCESS). MARKETWATCH RECOGNIZES THAT THE ACCURACY OF THE INFORMATION\nSHOULD BE CHECKED BEFORE ITS\n\n\n                                       7\n\n\nCUSTOMERS RELY ON IT.\n\n                (c) IN NO EVENT WILL MARKETWATCH, DBC OR THE DATA PROVIDERS BE\nLIABLE TO MARKETWATCH'S CUSTOMERS, EACH OTHER, OR ANY OTHER PARTY FOR ANY\nINCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT\nLIMITED TO LOST PROFITS, TRADING LOSSES, OR DAMAGES THAT RESULT FROM\nINCONVENIENCE, DELAY OR LOSS OF THE USE OF THE DATA FEED), OR CLAIMS ARISING IN\nTORT (INCLUDING NEGLIGENCE), EVEN IF MARKETWATCH, DBC OR THE DATA PROVIDERS HAVE\nBEEN ADVISED OF OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF ANY OF THE\nFOREGOING.\n\n                (d) Neither MarketWatch, DBC nor the Data Providers shall be\nliable for any loss resulting from a cause over which such entities do not have\ndirect control, including but not limited to the failure of electronic or\nmechanical equipment or communication lines, telephone or other interconnect\nproblems, unauthorized access or theft.\n\n                (e) MarketWatch agrees to indemnify and hold DBC and the Data\nProviders harmless from and against any and all claims, losses, liability, costs\nand expenses (including but not limited to attorneys' fees) to the extent\narising from or relating to MarketWatch's modification of the information\nprovided by DBC or the Data Providers or of the Data Feed, or the combination of\nsuch information or Data Feed with other information or content, and\/or\nMarketWatch's violation of this Agreement.\n\n9. ACCOUNTINGS\n\n        9.1 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\nSection 1.2 during such quarterly period and will pay MarketWatch for any Net\nRevenues or other monies due (including, without limitation, sums due in\nconnection with the subscriptions concerned).\n\n        9.2 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\n10. REMEDIES\n\n        10.1 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\n\n\n                                       8\n\n\nforegoing cure period will not apply to DBC's obligations regarding the\nprovision of delayed data feeds or to breaches incapable 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 Section 10.1 by sending DBC\nthe appropriate notice. No exercise of MarketWatch's rights under this Section\n10.1 will limit MarketWatch's remedies by reason of DBC's default, MarketWatch s\nrights to exercise any other right under this Section 10.1, or any of\nMarketWatch's other rights. The terms and conditions of Sections 4.3 and 7.2\nshall survive any termination or expiration of this Agreement.\n\n11. GENERAL\n\n        11.1 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. In the event that\nany entity acquires DBC by purchase of stock or by merger or otherwise, or by\nobtaining substantially all of DBC's assets (a 'DBC Assignee'), such DBC\nAssignee shall succeed to all of the rights and be subject to all of the\nobligations of DBC under this Agreement and MarketWatch shall be entitled to\ninjunctive, and other appropriate equitable relief, without the necessity of\nposting a bond, to ensure DBC's and the DBC Assignee's compliance with the terms\nand conditions of this Agreement.\n\n        11.2 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        11.3 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.\n\n\n                                       9\n\n\nEach of DBC and MarketWatch agrees to commence any such action, suit or\nproceeding either in the United States District Court for the Southern District\nof New York or if such suit, action or other proceeding may not be brought in\nsuch court for jurisdictional reasons, in the Supreme Court of the State of New\nYork, New York County. Each of DBC and MarketWatch further agrees that service\nof any process, summons, notice or document by U.S. registered mail to such\nparty's respective address set forth above shall be effective service of process\nfor any action, suit or proceeding in New York, with respect to any matters to\nwhich it has submitted to jurisdiction in this Section 11. Each of DBC and\nMarketWatch irrevocably and unconditionally waives any objection to the laying\nof venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby and thereby in (i) the Supreme Court of the\nState of New York, New York County, or (ii) the United States District Court for\nthe Southern District of New York, and hereby and thereby further irrevocably\nand unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n\n        11.4 Each party shall comply in all material respects with all laws and\nregulations applicable to its activities under this Agreement.\n\n        11.5 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        11.6 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                      825 Battery Street\n                      San Francisco, CA 94111\n\n                      Attention of Larry Kramer and Peter Bardwick\n\n                      with copies to:\n                      Fenwick &amp; West LLP\n                      Two Palo Alto Square\n                      Palo Alto, CA 94306\n\n                      Attention of Mark C. Stevens, Esq.\n\n\n                                       10\n\n\n               (ii)   if to DBC,\n\n                      Data Broadcasting Corporation\n                      3955 Point Eden Way\n                      Hayward, CA 94545-3720\n\n                      Attention of Mark F. Imperiale, President\n\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                      CBS Broadcasting Inc.\n                      51 W 52nd Street\n                      New York, NY 10019\n\n                      Attention of Fredric G. Reynolds\n                                   Louis J. Briskman\n\n        11.7 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        11.8 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        11.9 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        11.10 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        11.11 This Agreement shall not become effective until executed by all\nproposed Parties hereto.\n\n\n                                       11\n\n\n        11.12 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        11.13 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        11.14 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 Section such\nreference shall be to a Section 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\n\nBy:  \/s\/ Mark F. Imperiale                  By:  \/s\/ J. Peter Bardwick\n   ---------------------------------           ---------------------------------\n\nTitle:   President                          Title:   Chief Financial Officer\n      ------------------------------              ------------------------------\n                                                            and Secretary\n\n\n\n\n\n                                       12\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8132],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42780","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-marketwatchcom-inc","corporate_contracts_industries-technology__programming","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\/42780","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=42780"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42780"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42780"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42780"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}