AMENDED AND RESTATED
DATABASE AND SOFTWARE LICENSE AGREEMENT
AGREEMENT, dated as of October 31, 1998 among Xxxxxx & Xxxxx, Inc.
("Licensor"), a Delaware corporation having an office located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxxxxxxx.xxx llc, a Delaware limited
liability company having an office located at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Licensee"), and xxxxxxxxxxxxxx.xxx inc. (formerly known
as Xxxxxx and Noble Online, Inc.) ("Online"), amending and restating that
certain Database and Software License Agreement dated as of January 15, 1997
between B&N and Online ("Prior Agreement").
WHEREAS, Licensor and Online have entered into the Prior Agreement;
WHEREAS, Online is transferring substantially all of its assets and
business to Licensee for a 100% membership interest in Licensee and will
thereafter assign its interest in Licensee to an entity that will be entering
into an Amended and Restated Limited Liability Company Agreement with XXX.XX
Online, Inc. (the "LLC Agreement"; capitalized terms used herein without
definition shall have the meanings assigned to them in the LLC Agreement); and
WHEREAS, in connection therewith, Licensor, Licensee and Online
desire to amend and restate the Prior Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Grant of License. (a) Subject to Section 8 below, Licensor hereby
grants to Licensee a nonexclusive right and license (the "License") for the
duration of the Term (as hereinafter defined) to use the following databases,
software and informational materials, including without limitation any
additions, revisions and modifications made thereto by Licensor and Licensee
during the Term (collectively, the "Licensed Materials"):
(i) Licensor's title database;
(ii) Licensor's electronic shopping and special order software;
(iii) Licensor's customer lists; and
(iv) all demographic information compiled by Licensor.
(b) The Licensed Materials may only be used by Licensee for
purposes of conducting Licensee's Business, to sublicense the Licensed Materials
to BOL and parties operating under the BOL name solely in order to develop and
maintain the links described in Article II of the LLC Agreement and to further
sublicense the Licensed Materials as the BN Managers, in their sole discretion,
see fit in connection with the operation of the Business. Nothing in the
License: (i) is intended to permit Licensee to use the Licensed Materials for
any other purpose, including without limitation the operation of retail
bookstores; or (ii) shall be construed to broaden the
areas of business in which Licensor may engage under the terms of the LLC
Agreement.
(c) The Licensed Materials shall be made available to Licensee
at such times and in such format as the parties shall mutually agree. Licensor
shall use its commercially reasonable best efforts to keep the Licensed
Materials current and accurate in all material respects during the Term.
Licensee shall have the right to make changes, modifications, additions and
deletions to the Licensed Materials subject to any third party license rights.
If Licensee makes any additions, revisions or modifications to the Licensed
Materials, it shall promptly make such additions, revisions or modifications
available to Licensor for its use.
(d) To the extent any of the Licensed Materials are provided to
Licensor through any agreement with a third party, Licensor shall furnish
Licensee with a copy of such agreement and Licensee agrees to comply with the
terms thereof. Licensee further agrees to comply with any reasonable
restrictions on the use of the Licensed Materials established by Licensor.
2. Term; Effects of Termination. (a) The term of this Agreement (the
"Term") shall commence on the date hereof and shall continue until terminated as
provided herein. Subject to Section 8 below, Licensor may terminate this
Agreement, on prior written notice to Licensee, in the event that: (i) Licensee
is in default of the terms of this Agreement and such default continues for more
than thirty (30) days after written notice thereof to Licensee and BAG, provided
that such default is not a result of the action or inaction of the BN Managers;
or (ii) Licensee files a petition in bankruptcy or is adjudicated a bankrupt or
insolvent, or makes an assignment for the benefit of creditors, or an
arrangement pursuant to any bankruptcy law, or if Licensee discontinues or
dissolves its business or if a receiver is appointed for Licensee or for
Licensee's business and such receiver is not discharged within 30 days.
Additionally, subject to Section 8 below, Licensor may terminate this Agreement
if Licensee makes any transfer which would allow for the termination of the Name
License Agreement pursuant to Section 7.5(b) of the LLC Agreement.
(b) Upon termination of this Agreement, subject to Section 8
below: (i) the License shall terminate; (ii) Licensee shall cease to use the
Licensed Materials; (iii) Licensee shall promptly return to Licensor all copies
of the Licensed Materials and (iv) Licensee shall execute and deliver to
Licensor any documents reasonably requested by Licensor to confirm Licensor's
ownership of the Licensed Materials.
3. Non-exclusivity. Nothing in this Agreement is intended to prevent
Licensor from entering into license agreements with others with respect to all
or any part of the Licensed Materials.
4. Limited Warranty. Licensor hereby represents and warrants to
Licensee that: (a) it owns or otherwise has the right to use the Licensed
Materials; (b) it has the right and power to grant the License to Licensee as
provided herein; and (c) the grant of the License to Licensee as provided herein
does not require the consent of any third party. EXCEPT AS EXPRESSLY PROVIDED IN
THE FOREGOING SENTENCE, LICENSOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LICENSED MATERIALS OR ANY
INFORMATION, REPORTS OR OUTPUT GENERATED THEREBY. LICENSOR HEREBY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR
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FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL LICENSOR BE LIABLE TO
LICENSEE HEREUNDER FOR ANY CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES.
5. Ownership of Licensed Materials. All Licensed Materials, including
any copies, translations or compilations of all or any part thereof, and any
revisions, modifications or additions thereto made by Licensor or Licensee, are
and shall remain the sole exclusive property of Licensor, except for any
revisions, modifications or additions thereto which were made solely by
Licensee, which shall be owned by Licensee, but with respect to which Licensor
shall hereby be granted a non-exclusive, perpetual, non-revokable,
non-transferrable license to use. This Section 5 shall survive the termination
of this Agreement.
6. Confidentiality. Licensee acknowledges that the Licensed Materials
constitute valuable, confidential and proprietary information and trade secrets
of Licensor. Accordingly, Licensee shall not, except as permitted by the LLC
Agreement, the Agreements executed in connection therewith or the Business Plan,
directly or indirectly, during or after the Term, disclose or divulge to any
third party, or permit any third party to use or have access to, any of the
Licensed Materials, without the prior written consent of Licensor.
7. Injunctive Relief. Licensee acknowledges that money damages would
not adequately compensate Licensor in the event of a breach by Licensee of its
obligations hereunder, and that injunctive relief would be essential for
Licensor to adequately protect itself hereunder. Accordingly, Licensee agrees
that, in addition to any other remedies available to Licensor at law or in
equity, Licensor shall be entitled to injunctive relief in the event Licensee is
in breach of any covenant or agreement contained herein.
8. Sale of Licensor Interest; Effects of Termination. Notwithstanding
anything to the contrary contained herein, from and after the End Date (as
defined below) the License granted hereunder with respect to anything that
became a part of the Licensed Materials prior to the End Date shall become a
non-exclusive, perpetual, non-revokable, non-transferrable License and from and
after the End Date the License shall not cover any additional Licensed Materials
and from and after the End Date Licensor shall not have any obligation under
this Agreement to deliver any additional Licensed Materials to Licensee and
Licensee shall have no right to receive any additional Licensed Materials from
Licensor. "End Date" means the earlier to occur of (i) the date Licensor or any
of its Affiliates no longer have any interest in Licensee and (ii) the date that
this Agreement is terminated. This Section 8 shall survive the termination of
this Agreement.
9. Miscellaneous. (a) This Agreement shall be governed by the
internal laws of the State of New York without giving effect to the conflict of
law principles thereof.
(b) This Agreement sets forth the entire agreement between the
parties hereto with respect to the subject matter hereof and is intended to
supersede all prior negotiations, understandings and agreements. This Agreement
supersedes, and amends in its entirety, the Prior Agreement. No provision of
this Agreement may be waived or amended, except by a writing signed by Licensor
and Licensee.
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(c) This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and together which shall constitute
one and the same instrument.
(d) The failure of any party to exercise any right or remedy
provided for herein shall not be deemed a waiver of any right or remedy
hereunder.
(e) If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or otherwise unenforceable, such
determination shall not affect the validity or enforceability of any remaining
provisions of this Agreement. If any provision of this Agreement is invalid
under any applicable statute or rule of law, it shall be enforced to the maximum
extent possible so as to effect the intent of the parties, and the remainder of
this Agreement shall continue in full force and effect.
(f) Any and all notices or other communications hereunder shall
be sufficiently given if in writing and sent by hand, telecopier, reputable
overnight courier or by certified mail, return receipt requested, postage
prepaid, addressed to the party to receive the same at its address as set forth
on page 1 hereof, or to such other address as the party to receive the same
shall have specified by written notice given in the manner provided for in this
Section 9(f). Such notices or other communications shall be deemed to have been
given on the date of such delivery. Any party may change its address for the
purpose of this Agreement by notice to the other parties given as aforesaid.
(g) This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns, provided that Licensee may not assign any of its rights hereunder
without the prior written consent of Licensor.
(h) The section headings used herein are for the convenience of
the parties only, are not substantive and shall not be used to interpret or
construe any of the provisions contained herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above.
XXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
of Finance
xxxxxxxxxxxxxx.xxx inc.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Finance
-----------------------------------
xxxxxxxxxxxxxx.xxx llc
By: xxxxxxxxxxxxxx.xxx inc., its
managing member
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice
President, Finance
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