EXHIBIT 10.5
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CHANNEL PARTNER AGREEMENT
This CHANNEL PARTNER AGREEMENT (this "Agreement") is entered into as of
September 1st , 2001, by and between Intellicorp LTD ("Intellicorp"), an Ohio
Limited Partnership , with a principal place of business at 0000 Xxxxxxx Xx,
Xxxxx 000, Xxxxx, Xxxx 00000, and LocatePLUS Holdings Corporation, a Delaware
corporation, with its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx
000X, Xxxxxxx, XX 00000 ("LocatePLUS(R)").
B A C K G R O U N D
LocatePLUS(R) is in the business of developing, integrating and licensing
certain data content for and to third parties. Intellicorp wishes LocatePLUS(R)
to develop specific content for Intellicorp and to license that content to
Intellicorp, LocatePLUS(R) is interested in developing and licensing such
website content to Intellicorp under the terms and conditions set forth in this
Agreement.
Intellicorp mission is to provide their customers with end-to-end wireless
solutions that will lead to increased customer satisfaction and revenue, while
providing a dynamic wireless platform that will grow as technology and
requirements change. LocatePLUS(R) wishes to have wirelessly enabled specific
content with the Intellicorp technology for the sole purpose that LocatePLUS(R)
can resell to its customer base. Intellicorp is interested in developing and
licensing such technology to LocatePLUS(R) under the terms and conditions set
forth in this Agreement.
NOW THEREFORE, IN CONSIDERATION OF THE FOREGOING, FOR OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, AND
THE MUTUAL COVENANTS AND AGREEMENTS SET FORTH HEREIN, THE PARTIES AGREE AS
FOLLOWS:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings given to such
terms elsewhere in this Agreement or as set forth below:
(a) "Intellicorp Content" means the materials, if any, provided to
LocatePLUS(R)by Intellicorp from time to time to be incorporated
into the Licensed Data Content.
(b) "Error" means any failure of the Licensed Data Content to meet
the Specifications.
(c) "Licensed Data Content" means all works of authorship and other
materials and intellectual property, including, without
limitation, proprietary data content, text, graphics, images,
illustrations, still photography, animation, sound, music, and
motion videography, and software (including hypertext markup
language (HTML) and extensible markup language (XML)) developed
or provided by LocatePLUS(R) pursuant to this Agreement.
(d) "Licensed Technology" means all works of authorship and other
materials and intellectual property, including, without
limitation, proprietary data content, text, graphics, images,
illustrations, still photography, animation, sound, music, and
motion videography, and software (including hypertext markup
language (HTML) and extensible markup language (XML)) developed
or provided by Intellicorp pursuant to this Agreement
(e) "Source Materials" means all documentation, notes, and other
materials provided to LocatePLUS(R) by Intellicorp for use in
developing the Licensed Data Content.
(f) "Specifications" means Intellicorp requirements for the Licensed
Data Content as set forth on EXHIBIT A, as the same may be
amended by agreement of the parties from time to time.
(g) "Website" means Intellicorp Internet website for which the
Licensed Data Content is being developed and on which the
Licensed Data Content will be presented through links to
LocatePLUS(R)'s data repository more specifically described in
the Specifications.
(h) "Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, liabilities,
obligations, liens, losses, expenses, and fees, including court
costs and attorneys' fees and expenses, but shall not include any
internal costs of either party (such as salary, overhead, ETC.).
Adverse Consequences shall be net of any available insurance
proceeds and any tax benefit.
ARTICLE 2
DELIVERY OF THE LICENSED DATA CONTENT
LOCATEPLUS(R)
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2.1 DATA DELIVERY. Pursuant to the terms of this Agreement, LocatePLUS(R) shall
provide Licensed Data Content in accordance with the Specifications and deliver
Licensed Data Content pursuant to the terms of this Agreement. LocatePLUS(R)
agrees to provide access to its database for the purposes of this Agreement;
PROVIDED, HOWEVER, that LocatePLUS(R) makes no representation that such access
will be uninterrupted or Error-free.
2.2 EDITORIAL CONTROL. LocatePLUS(R)shall have complete editorial control and
responsibility over the Licensed Data Content, subject to its compliance with
the terms of this Agreement.
2.3 USE OF LICENSED DATA CONTENT. Intellicorp shall have no obligation to
LocatePLUS(R) to use or display the Licensed Data Content, in whole or in part.
For the duration of this Agreement, Intellicorp shall have the right to display
the Licensed Data Content through a link to LocatePLUS(R)'s data repository in
any manner it chooses, PROVIDED that such display is consistent with the
provisions of Section 3.5 of this Agreement.
INTELLICORP
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2.4 DATA DELIVERY. Pursuant to the terms of this Agreement, Intellicorp shall
provide Licensed Technology in accordance with the Specifications and deliver
Licensed Technology pursuant to the terms of this Agreement. Intellicorp agrees
to provide access to its Technology for the purposes of this Agreement;
PROVIDED, HOWEVER, that Intellicorp makes no representation that such access
will be uninterrupted or Error-free.
2.5 TECHNOLOGY CONTROL. Intellicorp shall have complete technology control and
responsibility over the Wireless Licensed Data Content, subject to its
compliance with the terms of this Agreement.
2.6 USE OF LICENSED TECHNOLOGY. LocatePLUS(R) shall have no obligation to
Intellicorp to use the Licensed Technology, in whole or in part. For the
duration of this Agreement, LocatePLUS(R) shall have the right to demonstrate
the Licensed Technology through any wireless device deemed acceptable by
Intellicorp in any manner it chooses, PROVIDED that such demonstration is
consistent with the provisions of Section 3.5 of this Agreement.
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ARTICLE 3
PROPRIETARY RIGHTS AND LICENSE
3.1A OWNERSHIP RIGHTS. Intellicorp acknowledges and agrees that the Licensed
Data Content is and shall remain the property of LocatePLUS(R) or
LocatePLUS(R)'s licensors or assigns. Except as otherwise provided in this
Agreement, LocatePLUS(R) is the owner of all right, title and interest to all
intellectual property rights constituting the Licensed Data Content including,
but not limited to, copyrights, trademarks, trade names, patents and trade
secrets (collectively, the "Intellectual Property Rights").
3.1B OWNERSHIP RIGHTS. LocatePLUS(R) acknowledges and agrees that the Licensed
Technology is and shall remain the property of Intellicorp or Intellicorp's
licensors or assigns. Except as otherwise provided in this Agreement,
Intellicorp is the owner of all right, title and interest to all intellectual
property rights constituting the Licensed Technology including, but not limited
to, copyrights, trademarks, trade names, patents and trade secrets
(collectively, the "Intellectual Property Rights").
3.2 LOCATEPLUS(R) RESTRICTED LICENSE GRANT; DERIVATIVE WORKS; PRIVACY COMPLIANCE
(a) Subject to the terms of this Agreement, LocatePLUS(R) hereby grants
to Intellicorp (for its benefit and for the benefit of its agents and/or
customers), a non-exclusive, worldwide right and license, to use, reproduce,
publicly and privately display, publicly and privately perform, modify, transmit
and distribute the Licensed Data Content, in whole or in part, or copies
thereof, in any form and format, including, but not limited to, on and in
connection with the Web Site and through e-mail messages ("Permitted Uses");
PROVIDED, that no bulk duplication of the Licensed Data Content will not be
deemed a "Permitted Use" for the purpose of this Agreement.
(b) Any derivative works based on the Licensed Data Content developed
or prepared by or through Intellicorp in accordance with Section 3.2(a) shall be
owned solely by LocatePLUS(R) and LocatePLUS(R) shall retain all rights in such
derivative works, including copyright and all other intellectual property
rights; PROVIDED, HOWEVER, that LocatePLUS(R) hereby grants to Intellicorp for
Intellicorp benefit and for the benefit of its agents and/or customers, for the
duration of this Agreement, the worldwide, non-exclusive, paid-up right and
license, to (I) use, reproduce, publicly and privately display, publicly and
privately perform, modify, transmit and distribute the Licensed Data Content, in
whole or in part, or copies thereof, in any form and format on and in connection
with the Permitted Uses; (II) prepare derivative works therefrom for use on and
in connection with the Permitted Uses; and (III) authorize others to do any or
all of the foregoing in conjunction with Intellicorp business.
(c) Notwithstanding the foregoing, neither Intellicorp nor its
affiliates or end users shall use any of the Licensed Data Content in violation
of any federal, state, local or foreign law, ordinance, or directive, including
but not limited to the Fair Credit Reporting Act, the Xxxxx-Xxxxx-Xxxxxx Act,
and the European Union Privacy Directive. Intellicorp agrees to establish such
procedural safeguards to ensure compliance with the provisions of this Section
3.2(c) as LocatePLUS(R) may request, in its sole discretion, from time to time.
3.3 INTELLICORP RESTRICTED LICENSE GRANT; DERIVATIVE WORKS; PRIVACY COMPLIANCE
(a) Intellicorp grants to LocatePLUS(R) a nonexclusive, worldwide
license to use, reproduce and modify the Intellicorp Content and the Source
Materials for the sole purpose of developing the Licensed Data Content in
accordance with the terms of this Agreement. Except for the foregoing,
Intellicorp shall retain all right, title and interest in and to the Intellicorp
Content and Source Materials, including copyright and all other intellectual
property rights. LocatePLUS(R) shall have no rights to copy, use, reproduce,
display, perform, modify or transfer the Intellicorp Content or Source Materials
or any derivative works thereof unless expressly provided for herein or
authorized by advance written authorization from Intellicorp.
(b) Any derivative works based on the Licensed Technology or Content
developed or prepared by or through LocatePLUS(R) in accordance with Section
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3.3(a) shall be owned solely by Intellicorp and Intellicorp shall retain all
rights in such derivative works, including copyright and all other intellectual
property rights; PROVIDED, HOWEVER, that Intellicorp hereby grants to
LocatePLUS(R) for LocatePLUS(R) benefit and for the benefit of its agents and/or
customers, for the duration of this Agreement, the worldwide, non-exclusive,
paid-up right and license, to (I) use, reproduce, publicly and privately
display, publicly and privately perform, modify, transmit and distribute the
Licensed Technology or Content, in whole or in part, or copies thereof, in any
form and format on and in connection with the Permitted Uses; (II) prepare
derivative works therefore for use on and in connection with the Permitted Uses;
and (III) authorize others to do any or all of the foregoing in conjunction with
LocatePLUS(R) business.
(c) Notwithstanding the foregoing, neither LocatePLUS(R) nor its
affiliates or end users shall use any of the Licensed Technology or Content in
violation of any federal, state, local or foreign law, ordinance, or directive,
including but not limited to the Fair Credit Reporting Act, the
Xxxxx-Xxxxx-Xxxxxx Act, and the European Union Privacy Directive. Intellicorp
agrees to establish such procedural safeguards to ensure compliance with the
provisions of this Section 3.3(c) as Intellicorp may request, in its sole
discretion, from time to time.
3.4 WEBSITE LINKAGES. During the term of this Agreement and subject to its
terms, LocatePLUS(R)grants to Intellicorp a license to link to LocatePLUS(R)'s
data repository to obtain the Licensed Data Content.
3.5 WIRELESS ACCESS. N/A
3.6 PROMOTION, BRANDING AND USE OF TRADEMARKS. Each of the parties hereby
licenses the other the right to use such party's name, logo, and trademarks for
the purpose of this Agreement and its promotion. Further, Intellicorp and
LocatePLUS(R) shall use its best efforts to market and advertise mutually each
others product or service to existing and future customer base using both
Intellicorp and LocatePLUS(R) full marketing resources and will provide 24 hour
support for the LocatePLUS(R)/Intellicorp integrated system 365 days per year
via toll free in-bound telephone lines.
3.7 ATTRIBUTION. Intellicorp shall indicate LocatePLUS(R)'s ownership of the
Licensed Data Content by displaying LocatePLUS(R)'s copyright notice as may be
requested by LocatePLUS(R) from time to time.
3.8 EXCLUSIVITY. Neither party shall be bound to the other party by an exclusive
or semi-exclusive license to exchange data or products. Specifically, it is
recognized that both the LocatePLUS(R) and Intellicorp have other existing or
potential "Channel Partners" and relationships that it shall continue or develop
subsequent to this Agreement. No such Channel Partners or similar relationships
shall be affected by the Agreement.
3.9 DISCLOSURE. Each of the parties recognizes the strategic importance of the
announcement of a "Channel Partner Agreement" and both parties agree to work
together on any press release or announcement relating to this Agreement.
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ARTICLE 4
PAYMENT
4.1 REVENUE SHARING. Intellicorp agrees to pay a royalty (the "Revenue Share")
for the Licensed Data Content equal to 50% of all of Intellicorp revenue arising
from the Licensed Data Content, after Intellicorp cost, discounts or promotional
items; PROVIDED, HOWEVER, that no Revenue Share shall be due to LocatePLUS(R)
arising from sales or licenses of data that do not include access to the
Licensed Data Content. Intellicorp agrees that it shall keep true and correct
books of account with respect to all revenue in accordance with generally
accepted accounting principles, consistently applied. LocatePLUS(R) agrees to
pay a royalty (the "Revenue Share") for the Licensed Technology or Content equal
to 50% of all of LocatePLUS(R) revenue arising from the Licensed Technology or
Content, after discounts or promotional items; PROVIDED, HOWEVER, that no
Revenue Share shall be due to Intellicorp arising from sales or licenses of data
that do not include access to the Licensed Technology or Content. LocatePLUS(R)
agrees that it shall keep true and correct books of account with respect to all
revenue in accordance with generally accepted accounting principles,
consistently applied.
4.2 TAXES. Mutually each party shall be responsible for the payment of all
sales, use and similar taxes, if any for their respected revenue or service.
4.3 EXPENSES. LocatePLUS(R) shall bear all "data" related expenses arising from
the performance of its obligations under this Agreement; PROVIDED, HOWEVER, that
LocatePLUS(R) and Intellicorp shall share equally the expenses relating to
establishing and maintaining data lines between them.
4.4 PAYMENT. Each party shall pay the Revenue Share due for each month no later
than the tenth day of the following month, without requirement of an invoice or
demand..
4.5 AUDIT RIGHT. Each party may, from time to time, during each other's
customary business hours and in a manner that will not be unduly burdensome to
the other party review the books and records for the sole purpose of determining
each party's compliance with this Article. No more than once per year, the
respective party may request an audit of the other party's financial records to
determine compliance with this Article by a Certified Public Accountant of the
requesting party selection; PROVIDED that the costs of such audit will be borne
by the requesting party; PROVIDED FURTHER, HOWEVER, that the costs of such audit
will be borne by the other party in the event that the audit determines that the
fees due under this Article (including the Revenue Share) have been knowingly
understated by the other party by 10% or more. All information and data obtained
for such reviews or audits shall be maintained in strict confidence bythe
requesting party, will be used solely for the express purpose set forth in this
Agreement, and will not be disclosed to third-parties except as may be so
ordered by a court of competent jurisdiction.
4.6 ADDITIONAL PRODUCT OFFERINGS. Each party acknowledges that the initial
product offering will not be fully and totally comprehensive and, that it (the
product) will initially be offered at a discount to entice customers to purchase
the product. Thereafter, the parties agree that additional features, content,
and/or functionality will result in an additional charge to existing customers
as well as to prospective future customers. The same revenue and royalty sharing
arrangement shall still be in effect as prices increase to the customer base,
hence revenue, and on the same 50:50 split as noted above.
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ARTICLE 5
CONFIDENTIALITY
5.1 CONFIDENTIAL INFORMATION. "Confidential Information" means all trade secret,
competitive, confidential, technical, business and economic information or data
owned and/or developed by a party to this Agreement, whether or not the same is
labeled or marked as "proprietary," "confidential," or the like. Confidential
Information will not include information that (I) a party can verify that it had
in its possession prior to disclosure of such information under this Agreement;
(II) is furnished to a party by a third-party as a matter of right without
restriction and which was not received directly or indirectly from a party to
this Agreement; (III) becomes part of the public domain by publication or
otherwise through no fault of a party to this Agreement or any of such party's
agents; (IV) is approved, in writing, for release or disclosure by the
disclosing party; or (V) is disclosed by reason of order of a court of competent
jurisdiction.
5.2 RETURN OF CONFIDENTIAL INFORMATION. Upon termination of this Agreement for
any reason, each party's Confidential Information will be immediately returned
to that party.
5.3 PUBLICITY. Both parties to this Agreement shall work closely together in
promoting their respective products and shall seek written permission from the
other party before the release of details or other activities surrounding and
encompassing the obligations contained within this Agreement.
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ARTICLE 6
WARRANTIES AND REPRESENTATIONS
6.1 WARRANTIES AND REPRESENTATIONS OF LOCATEPLUS(R). As a material inducement to
Intellicorp to enter into this Agreement, LocatePLUS(R) represents, warrants and
covenants to Intellicorp as follows:
(a) LocatePLUS(R) has the full power to enter into this Agreement and
perform the services provided for herein, and that such ability is not limited
or restricted by any agreements or understandings between LocatePLUS(R) and
other persons or companies.
(b) LocatePLUS(R) has the ability to perform and continue to perform
its obligations under this Agreement, that no legal proceedings have been
threatened or brought against LocatePLUS(R) that could threaten performance of
this Agreement and that entering into this Agreement is not prohibited by any
contract, applicable law, governmental regulation, or order by any court of
competent jurisdiction.
(c) The Licensed Data Content is provided "as is." LocatePLUS(R) makes
no warranty, unless otherwise agreed upon that all Errors have been or can be
eliminated from the Licensed Data Content, and LocatePLUS(R) will in no event be
responsible for losses of any kind resulting from the use of the Licensed Data
Content or derivative works thereof, including, without limitation, any
liability for business expense, machine downtime, or damages caused to
Intellicorp or any of its customers by any Error, deficiency, defect, or
malfunction. LocatePLUS(R) will not be responsible for any adverse consequences
resulting from any interruption of the Licensed Data Content; PROVIDED that such
interruption is not the result of the intentional misconduct or gross negligence
of LocatePLUS(R). EXCEPT AS SPECIFICALLY SET FORTH HEREIN, LOCATEPLUS(R)
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATING TO THE
LICENSED DATA CONTENT AND ANY DERIVATIVE WORKS THEREOF OR ANY USE THEREOF,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WHATSOEVER AS TO THE FITNESS FOR A
PARTICULAR PURPOSE OF, THE MERCHANTABILITY OF, OR THE NON-INFRINGEMENT BY THE
LICENSED DATA CONTENT OR ANY DERIVATIVE WORKS THEREOF OF ANY THIRD PARTY'S
INTELLECTUAL PROPERTY RIGHTS.
6.2 WARRANTIES AND REPRESENTATIONS OF INTELLICORP. As a material inducement to
LocatePLUS(R) enter into this Agreement, Intellicorp represents, warrants and
covenants to Intellicorp as follows:
(a) Intellicorp has the full power to enter into this Agreement and
perform the services provided for herein, and that such ability is not limited
or restricted by any agreements or understandings between Intellicorp and other
persons or companies.
(b) Intellicorp has the ability to perform and continue to perform its
obligations under this Agreement, that no legal proceedings have been threatened
or brought against Intellicorp that could threaten performance of this Agreement
and that entering into this Agreement is not prohibited by any contract,
applicable law, governmental regulation, or order by any court of competent
jurisdiction.
(c) The Licensed Technology and or Content is provided "as is".
Intellicorp makes no warranty, unless otherwise agreed upon that all Errors have
been or can be eliminated from the Licensed Technology and or Content, and
Intellicorp will in no event be responsible for losses of any kind resulting
from the use of the Licensed Technology and or Content or derivative works
thereof, including, without limitation, any liability for business expense,
machine downtime, or damages caused to LocatePLUS(R) or any of its customers by
any Error, deficiency, defect, or malfunction. Intellicorp will not be
responsible for any adverse consequences resulting from any interruption of the
Licensed Technology and or Content; PROVIDED that such interruption is not the
result of the intentional misconduct or gross negligence of Intellicorp. EXCEPT
AS SPECIFICALLY SET FORTH HEREIN, INTELLICORP DISCLAIMS ALL WARRANTIES, EXPRESS
OR IMPLIED, ARISING OUT OF OR RELATING TO THE LICENSED TECHNOLOGY AND OR CONTENT
AND ANY DERIVATIVE WORKS THEREOF OR ANY USE THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY WHATSOEVER AS TO THE FITNESS FOR A PARTICULAR PURPOSE
OF, THE MERCHANTABILITY OF, OR THE NON-INFRINGEMENT BY THE LICENSED TECHNOLOGY
AND OR CONTENT OR ANY DERIVATIVE WORKS THEREOF OF ANY THIRD PARTY'S INTELLECTUAL
PROPERTY RIGHTS
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ARTICLE 7
TERM AND TERMINATION
7.1 TERM. This Agreement will become effective on the date set forth on the
signature page and will be in effect for a period of (2) two years (the "Term"),
unless terminated sooner by either party in accordance with this Article. The
Term may be extended only by written agreement signed by both parties.
7.2 TERMINATION. Notwithstanding Section 7.1 above, this Agreement may be
terminated at any time by either party upon 180 days' written notice to the
other party; PROVIDED, HOWEVER, that either party may terminate this Agreement
upon a material breach of this Agreement's terms by the other party upon 30 days
notice and the opportunity to cure such breach; PROVIDED FURTHER that no such
cure period need be provided in the case of breaches of the provisions of
Article 3.
7.3 EFFECT OF TERMINATION. Upon the effective date of termination (I)
LocatePLUS(R) shall immediately cease to provide the Licensed Data Content; (II)
Intellicorp shall immediately cease to provide the Licensed Technology or
Content; (III) each party shall return to the other or destroy, at the other
party's instruction, all of the other party's Confidential Information; and (IV)
both parties shall promptly discontinue all use of the other's trademarks, logos
and names, including in promotional and marketing materials and on the Website.
ARTICLE 8
MUTUAL INDEMNIFICATION
8.1 MUTUAL INDEMNIFICATION. Each of the parties (the "Indemnifying Party")
agrees to indemnify and hold the other (the "Indemnified Party") harmless from
and against any claims, damages, demands, or actions arising out of or relating
to breaches of the provisions of Sections 3, 4, 5, 6, and 7 of this Agreement.
8.2 MATTERS INVOLVING THIRD PARTIES.
(a) If a third party makes any claim or demand on an Indemnified Party
with respect to any matter which may give rise to a claim for indemnification
under Section 8.1 (a "Third Party Claim"), then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing; PROVIDED, HOWEVER,
that no delay on the part of the Indemnified Party in notifying the Indemnifying
Party shall relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the Indemnifying
Party notifies the Indemnified Party in writing within fifteen days after the
Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnified Party from and against any
Adverse Consequences the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of, or caused by the Third Party Claim, and
(B) the Indemnifying Party conducts the defense of the Third Party Claim
actively and diligently.
(c) So long as the Indemnifying Party is conducting the defense of the
Third Party Claim in accordance with Section 8.2(b) above, (A) the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Third Party Claim, (B) the Indemnified Party
will not consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of the
Indemnifying Party unless the Indemnified Party chooses to exercise its rights
under Section 8.2(d), below, to assume all defense and liability for such Third
Party Claim, and (C) the Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnified Party, unless any such
judgment or settlement requires only the payment of money and no injunctive or
other equitable relief.
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(d) In the event any of the conditions in Section 8.2(c) above is or
becomes unsatisfied, however, (A) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with respect
to, the Third Party Claim in any manner it reasonably may deem appropriate (and
the Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith), and (B) the Indemnifying Party will
reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including attorneys' fees and
expenses).
(e) In the event all of the conditions of Section 8.2(c) above are and
remain satisfied, if (A) the Third Party Claim seeks an injunction or other
equitable relief, or (B) settlement of, or an adverse judgment with respect to,
the Third Party Claim is, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice adverse to the continuing
business interests of the Indemnified Party, then the Indemnified Party, in its
sole discretion and at its sole expense, may assume the defense of such Third
Party Claim by giving written notice of its intention to do so as part of the
notice to be given by the Indemnified Party pursuant to Section 8.2(c) above.
ARTICLE 9
DISPUTE RESOLUTION
9.1 EXECUTIVE MANAGEMENT. All disputes shall initially be referred jointly to a
representative designated by each party, which may, but need not, be the
"Designated Person" as defined in Section 10.2. If the designated
representative(s) are unable to resolve the dispute within seven business days
after referral of the matter to them, the parties shall submit the dispute to a
senior executive from each party for resolution.
9.2 BINDING ARBITRATION AND JURY TRIAL WAIVER. Any dispute with respect to this
Agreement which is not resolved within ten days after referral to the parties'
senior executives in accordance with Section 9.1, shall at any time thereafter
at the initiation of either party, be submitted to arbitration which shall be
the exclusive means for resolving any such disputes. Such arbitration shall be
held in the Boston, Massachusetts and shall be conducted by the American
Arbitration Association in accordance with its Arbitration Rules and Procedures
then in effect. The arbitrators will be selected from a panel of retired judges
and will have familiarity with dispute resolution in the information technology
industry. Any costs associated with the arbitration shall be borne by the
non-prevailing party. All decisions of the arbitrators shall be binding on both
parties. Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND
IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY AND AGREE THAT IF THE FOREGOING
BINDING ARBITRATION PROVISION IS DETERMINED FOR ANY REASON TO BE UNENFORCEABLE
OR INAPPLICABLE TO A PARTICULAR DISPUTE, THEN SUCH DISPUTE SHALL BE DECIDED
SOLELY BY A JUDGE, WITHOUT THE USE OF A JURY, SITTING IN A COURT OF COMPETENT
JURISDICTION. This binding arbitration and jury trial waiver provision shall
survive termination of this Agreement. Nothing in this Agreement will prevent
either party from applying for injunctive relief in any court of competent
jurisdiction.
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ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 NOTICES. For purposes of all notices and other communications required or
permitted to be given hereunder, the addresses of the parties hereto shall be as
indicated below. All notices shall be in writing and shall be deemed to have
been duly given if sent by facsimile, the receipt of which is confirmed by
return facsimile, or sent by first class registered or certified mail or its
equivalent, return receipt requested, addressed to the parties at their
addresses set forth below:
IF TO LOCATEPLUS(R). COM, INC., TO: WITH A MANDATORY COPY TO:
LocatePLUS(R).com, Inc. Xxxxxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 000X 00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, CFO Attention: Xxxxxxx X. Xxxxxxx
IF TO INTELLICORP, TO:
Intellicorp Systems, Inc.
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
10.2 DESIGNATED PERSON. The parties agree that all materials exchanged between
them for formal approval shall be communicated between a single designated
person at each party, or a single alternate designated person at each party (in
either case, the "Designated Person"). Neither party shall have any obligation
to consider for approval or respond to materials submitted other than through
the Designated Persons. Each party shall have the right to change its Designated
Person from time to time and to so notify the other in writing of such change.
The initial Designated Person for Intellicorp is Xxxxx Xxxxx and for
LocatePLUS(R) is Xxxxxx Xxxxxxx.
10.3 GOVERNING LAW. The laws of the Commonwealth of Massachusetts shall govern
the validity, construction, and performance of this Agreement without giving
effect to its conflicts of laws provisions.
10.4 ENTIRE AGREEMENT. This Agreement, including the attached Schedules which
are incorporated herein by reference, contains the entire understanding and
agreement of the parties with respect to the subject mater contained herein,
supersedes all prior oral or written understandings and agreements relating
thereto except as expressly otherwise provided, and may not be altered, modified
or waived in whole or in part, except in writing, signed by duly authorized
representatives of both of the parties.
10.5 SEVERABILITY. If any provision of this Agreement shall be held by a court
of competent jurisdiction to be contrary to any law, the remaining provisions
shall remain in full force and effect as if said provision never existed.
10.6 ASSIGNMENT. Neither party may sell, transfer, sublicense, hypothecate or
assign its rights and duties under this Agreement without the written consent of
the other party. No rights of either party hereunder shall devolve by operation
of law or otherwise upon any receiver, liquidator, trustee, or other party. This
Agreement shall inure to the benefit of both parties, their successors and
assigns.
10.7 WAIVER AND AMENDMENTS. No waiver, amendment, or modification of any
provision of this Agreement shall be effective unless consented to by both
parties in writing. No failure or delay by either party in exercising any
rights, powers, or remedies under this Agreement shall operate as a waiver of
any such right, power, or remedy.
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10.8 SURVIVAL. Sections 5, 8, 9 and 10 will survive the expiration or
termination of this Agreement for any reason.
10.9 USER DATA. All individual customer information and data provided to
customers of Intellicorp or otherwise collected by LocatePLUS(R) relating to
user activity on the Intellicorp Website shall be owned solely by Intellicorp
LocatePLUS(R) agrees to use such information only as required by relevant law or
as authorized under this Agreement and shall not disclose, sell, license, or
otherwise transfer any such information to any third party or use any such
confidential information for the transmission of "junk mail," "spam," or any
other unsolicited mass distribution of information.
* * *
THE PARTIES HERETO AS OF THE DATE FIRST ABOVE WRITTEN EXECUTE IN WITNESS
WHEREOF, THIS AGREEMENT.
INTELLICORP SYSTEMS, INC. LOCATEPLUS HOLDINGS CORPORATION
By: /s/ Xxxx Salashour By: /s/ Xxxxxx X. Xxxxxxx
------------------ ---------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Managing Member Title: CFO & Treasurer
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SCHEDULE A
SPECIFICATIONS AND DELIVERY SCHEDULE
I. LICENSED DATA CONTENT SPECIFICATIONS
A GENERAL DESCRIPTION OF THE "LICENSED DATA CONTENT." LocatePLUS(R) will provide
Intellicorp with internet-delivered comprehensive background data, including but
not limited to: address history reports; civil court actions; bankruptcies;
liens and judgments; real property records; professional licenses; and
controlled substance issuer licenser records, when integrated. (Collectively,
the "Data").
LocatePLUS(R) will add supplemental data sets in the future, including but not
limited to:
========================================================
FUTURE DATABASE INTEGRATIONS
========================================================
Criminal, Arrest, and Conviction Records
========================================================
Motor Vehicle Records
========================================================
Corporate and Uniform Commercial Code Filings
========================================================
Death Records
========================================================
Driver's License Records
========================================================
IRS Enrolled Agents and Tax Practitioners
========================================================
Professional Licenses
========================================================
Firearms and Explosives Licensing
========================================================
DEA Controlled Substance Licensing
========================================================
Fictitious Business Name Filings
========================================================
Regional Consumer Licenses
========================================================
Via an XML stream, LocatePLUS(R) will be able to provide the following reports
you offer immediately upon contract signature and XML setup delivery and site
design:
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SCHEDULE B
PAYMENT SCHEDULE
In establishing the communications linkage between the LocatePLUS(R)
and Intellicorp, certain "upfront" engineering expenses will occur. As such, the
LocatePLUS(R) agrees to establish the linkage between the two parties. In
conjunction with the execution of this Agreement, Intellicorp shall agree to
provide all necessary support and expenses pertaining to their end of the
"linkage" as described herein. LocatePLUS(R) shall bear its expenses for its end
of the "linkage" as described herein.
On a monthly basis, the LocatePLUS(R) shall provide Intellicorp with a
detailed report of activity and usage of the data by users of Intellicorp. In
conjunction with that report, Intellicorp shall supply the LocatePLUS(R) with
the charges and pricing in effect for that current month for access to the
LocatePLUS(R)'s data. LocatePLUS(R)'s Finance Department shall compute the usage
for the month and implied revenue received by Intellicorp and submit to
Intellicorp an invoice that shall be paid and satisfied as per the terms set
forth herein. LocatePLUS(R) will allow Intellicorp, Inc free of charge usage of
the database for demonstration purposes of the Licensed Data Content.
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