** Indicates information which has been omitted and filed separately with the
SEC pursuant to a confidential treatment request. Asterisks appear on page 2
and 3 of this agreement.
DATABASE ACCESS AGREEMENT
This is a Database access Agreement between Digital Media Resources, Ltd.,
with a principal office located at Xxxxxxxxxxxx 0 0000 Xxxxxxxxx Xxxxxxx,
referred to in this Agreement as ``Vendor,'' and Xxxxxx Industries, Inc., of 000
Xxxxx Xxxx Xxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, XXX, referred to in this
Agreement as ``Customer.''
RECITALS
Vendor represents that it is the exclusive publishing agent for the Xxxxx
Book of Switzerland and has established a database or other digitally based
medium (collectively referred to as "Database") that is available for access by
its customers pursuant to the terms and conditions of this Agreement.
Customer desires to obtain access to Vendor's Database known as Art Library
Auction Index, which uses the contents of the most recently published Xxxxx Book
of Switzerland as its principal information source.
Therefore, in consideration of the promises made in this Agreement, Vendor and
Customer agree as follows:
ACCESS TO DATABASE
1. When Vendor accepts and the parties execute this Agreement, during the
term of this Agreement Customer shall be entitled to access Vendor's Database as
specified in this Agreement continuously, twenty-four (24) hours per day,
throughout the term of this Agreement, subject to the other terms and conditions
stated in this Agreement. Vendor agrees to always provide access in accordance
with the then current minimum industry standards and Vendor acknowledges that
such minimums will likely change with new technology. Specifically and
currently, Vendor agrees to provide a minimum access capacity on its
xxxxxxxxxx.xxx site of two hundred and fifty six kilobytes per second (256kb/s).
In the event that the volume of traffic renders this 256kb/s level of bandwidth
insufficient, Vendor agrees to increase the bandwidth and/or server capacity in
line with the increase in server usage at Vendor's sole expense.
TERM
2. This Agreement shall take effect on the date of its acceptance by Vendor
and shall continue in effect for thirty-six (36) months, except as otherwise
provided in this Agreement. This Agreement shall be automatically renewed on a
month to month basis at the end of the thirty-six (36) month period unless it is
terminated in writing by either party giving ninety (90) days written notice.
1
CONTENTS OF DATABASE
3. (a) Customer shall have access to Vendor's Database known as Art
Library Auction Index which contains auction records from more than 800 auction
houses in 40 countries through its site xxxxxxxxxx.xxx, and uses the contents of
the most recently published Xxxxx Book of Switzerland as its principal
information source.
(b) Vendor agrees to deliver custom designed interfaces that links Customer's
sites to the Database stored on Vendor's server. Vendor further agrees to allow
the Customer to improve the custom interfaces to take advantages of any
technological advancements that may occur during the term of this Agreement.
(c) Vendor shall maintain and update the Database with the same care and
frequency as in the twelve (12) months proceeding the date of this Agreement.
Vendor shall update the Database with respect to future auction records within
the following time limits:
(i) 1998 data by September 1, 1999;
(ii) 1999 data by September 1, 2000; and
(iii) 2000 data by September 1, 2001.
Vendor acknowledges that time is of the essence in relation to these time
limits.
SECURITY AND INTELLECTUAL PROPERTY
4. (a) Customer acknowledges the title of Vendor to all intellectual
property rights now or in the future asserted by Vendor in relation to materials
contained on Vendor's xxxxxxxxxx.xxx site. Customer agrees not to challenge
Xxxxxx's said rights.
(b) Customer shall protect the security in regard with access to the data
on the Database, using no less care than it does to protect its own data.
(c) Vendor acknowledges the title of Customer to all intellectual property
rights now or in the future asserted by Customer in relation to materials
contained on Customer's site, other than the pages licensed to Vendor. Vendor
agrees not to challenge Xxxxxxxx's said rights.
CHARGES
5. (a) Customer shall pay a monthly fee of **. Payments shall be made
quarterly upon execution of this Agreement. Customer may at Customer's sole
discretion make lump sums payments during the term of this Agreement for a
discount fee as follows:
(i) ** lump sum payment for 24 months; or
(ii) ** lump sum payment for 36 months.
Customer will pay a lump sum payment for the first 12 months as follows:
- ** upon execution of this agreement.
- ** on or before 15 November 1999 as the balance of the annual lump
sum, less discounts and payments made **
Customer is in no way obligated to make other said lump sum payments after the
First twelve months.
2
TERMINATION
6. (a) Vendor may cancel this Agreement if Customer fails to pay the
agreed fee as stated in Paragraph 5 herein after thirty (30) days written
notice. Customer may terminate this Agreement on ten (10) days written notice to
Vendor if Vendor:
(i) fails to maintain and enhance the Database on a regular basis;
(ii) fails to provide the agreed bandwidth and/or server capacity as
specified in Paragraph 1 herein.; or
(iii) sells, assigns, reassigns, or in any way compromises its contract as
the exclusive publishing agent for the Xxxxx Book of Switzerland which is
essential to Customer.
EXCLUSIVITY
7. (a) Vendor shall not grant access to it Database to any sites that are
operated in the English language other than access previously granted to
Interactive Collector Limited ("IC"), London, UK, and to Vendor itself. Vendor
agrees to grant Customer a right of second refusal, after IC, to meet any offers
Vendor receives for its Database and related content during the term of this
Agreement, and for a period of three (3) months following the termination of
this agreement.
(b) **
(c) Vendor shall vigorously prevent IC from reselling, reassigning, or
redistributing the contents of, or the access rights to, the Database records.
Other than Customer, IC, their wholly-owned subsidiaries and those parties
covered under 7(b) of this Agreement, no other party (included, but not limited
to, clients, partners and affiliates of IC) may offer any products or the
internet as a distribution medium. **
ASSIGNMENT
8. Customer and Vendor agrees that this Agreement shall not be assigned or
transferred and that any attempt on either part to assign or transfer this
Agreement or any of its rights or obligations under this Agreement shall be null
and void. Customer further agrees that Vendor may assign payments due under this
Agreement with prior permission or approval of Customer.
GOVERNING LAW
9. This Agreement shall be construed under and be governed by the laws of
the State of Texas in the United States of America.
ENTIRE AGREEMENT
10. This Agreement, including all attachments, constitutes the entire
Agreement of the parties.
3
NOTICES
11. Notices required or provided for under this Agreement may be given by
Vendor to Customer in writing or electronically over its computer service.
Notices required or provided for under this Agreement may be given by Customer
to Vendor in writing or electronically over Vendor's computer service. No public
statements in regard to the nature of this agreement may be made before the
option fee of US$ 33,000 is received by Vendor.
NONWAIVER OF RIGHTS
12. Customer and Vendor agree that no failure or delay to exercise any
right, power, or privilege on the part of either party shall operate as a waiver
of any right, power, or privilege under this Agreement. Customer and Vendor
also agree that no single or partial exercise of any right under this Agreement
shall preclude further exercise of the right.
SEVERABILITY
13. If any court determines that any provision in this Agreement is
invalid, void, or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect.
ATTORNEY'S FEES
14. If any legal action is necessary to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees
in addition to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire Agreement.
August 13
Executed at Houston, Texas on -----------------------, 1999.
DIGITAL MEDIA RESOURCES LTD.
/s/Xxxxx Xxxxxxx
By:------------------------------
Xxxxx Xxxxxxx
Managing Director
XXXXXX INDUSTRIES, INC.
./s/Xxxx Xxxxxx
By: -----------------------------
Xxxx Xxxxxx
Chief Executive Officer
