DATABASE LICENSE AGREEMENT
This Database License Agreement ("Agreement") is made on this 30th day of
March, 2004 by and between MarketShare Recovery, Inc., a New York corporation
("MarketShare") and Jade Entertainment Group, Inc., a New York corporation
("Jade").
RECITALS
WHEREAS, MarketShare owns the databases described in Exhibit A attached to
this Agreement (the "Databases");
WHEREAS, Jade wishes to obtain, and MarketShare wishes to grant Jade, a
license to use and to sublicense the use of the Databases pursuant to the terms
and conditions of this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and promises set forth
below, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
I. DELIVERY OF DATABASES TO JADE
1.1 Delivery. MarketShare will deliver one copy of the Databases to Jade
electronically, in a format specified by MarketShare, promptly upon execution of
this Agreement.
1.2 Updates. MarketShare will from time to time refresh the content of the
Databases by providing monthly electronic updates to Jade in a format specified
by MarketShare. MarketShare will also provide Jade with a backup tape of the
indexed primary fields of the Databases on a weekly basis, and on a daily basis
will make available by electronic transfer its updated inventory status, both in
formats specified by MarketShare. MarketShare will provide Database updates to
Jade, so that Jade has access to the best content employed by MarketShare in any
database used by it or licensed to any third party by it during the term of this
Agreement.
II. LICENSE GRANT
2.1 Grant of License. Subject to the other provisions set forth in this
Agreement, MarketShare grants Jade the non-exclusive, worldwide right to use and
distribute the Databases and to sublicense the right to use the Databases and
allow retrieval of selected data records as specifically provided below.
2.2 Use of Data Elements. With respect to data elements described on
Exhibit A, Jade may:
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(a) store the data elements on its computer(s) and retrieve
records for Jade's internal use, which use includes generating
and sending emails to the email addresses that are included in
the Databases;
(b) sublicense Jade's customers to store the data elements on the
sublicensee's computer(s) and allow retrieval of a limited
number of records through the sublicensee's private, secure
computer network or website that cannot be accessed by the
public. Such uses could include company intranets,
password-protected websites that can be accessed only by
distributors, agents or entities affiliated with the
sublicensee, networks or password-protected websites of
associations that can be accessed only by association members.
Jade shall not allow or permit any other entity to allow the
retrieval of records from the Restricted data elements by the
public at large, except for the purpose of demonstrating
Jade's system to prospective customers, investors and other
interested parties with a need to know to further the business
of Jade.
III. METHODS OF DATABASE ACCESS
3.1 Method of Accessing Records. MarketShare shall have the right to
approve the software and methods used by Jade or its sublicensees to retrieve
records from the Databases. Approval may be granted or denied in MarketShare's
sole discretion, or conditioned on items such as limiting the number of records
that can be retrieved during any one session, or providing for a limited number
of users with password access. Notwithstanding the foregoing, MarketShare will
not withhold its approval for reasons unrelated to protecting the security of
the Databases or MarketShare's intellectual property rights in them.
3.2 Responsibility for Software Licenses. As between MarketShare and Jade,
Jade shall have the responsibility for obtaining rights to use any software
necessary for Jade or any sublicensee of Jade to store, access, display or
retrieve records from the Databases.
IV. SECURITY; STORAGE OF DATABASES
4.1 Security. Jade acknowledges that the Databases are proprietary to
MarketShare, have been compiled and maintained at significant time and expense
to MarketShare, and have been maintained as trade secrets of MarketShare. Jade
agrees to store the Databases in such a manner to maintain and protect the
security of the Databases and not to disclose or use them for any purpose not
contemplated by this Agreement. Jade agrees to adopt and employ appropriate
safeguards in light of its own operating activities to ensure the protection of
the Databases and the maintenance of their status as trade secrets of
MarketShare.
4.2 Commingling. Jade may not aggregate or commingle the data records of
the Databases with other data not provided by MarketShare, unless Jade takes
measures, which must be approved in advance by MarketShare, to ensure that the
MarketShare data records can be segregated from the data not provided by
MarketShare upon termination or expiration of this Agreement. The use by Jade of
any MarketShare data records in connection with any data not provided by
MarketShare will be subject to Jade's payment of license fees pursuant to
Section 5.1 below.
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IV. LICENSE FEES; PAYMENT
5.1 License Fees. The license granted in this Agreement shall be free of
charge for a period of ten years from the effective date of the Agreement; it
being recognized that the sum of $45,567 due from MarketShare to Jade used in
the development of the Database is being forgiven by Jade in exchange for this
license.
VI. EXCLUSIVITY
6.1 No Conflicting Licenses. For five years from the effective date of
this Agreement, MarketShare will not grant any rights to use, distribute or
sublicense the Databases to any entities believed to be competitors of Jade that
are engaged in developing or operating adult oriented internet portals or the
distribution of adult video or products of services by any means ("Competitive
Use").
6.2 Reservation of Rights. Nothing in Section 6.1 shall be deemed to
prohibit MarketShare from (a) using the Databases internally, or (b) allowing
the retrieval of records from the Databases by MarketShare's customers via the
Internet, in each case, provided the Database is employed for a Competitive Use.
VII. TERM AND TERMINATION
7.1 Term. Unless otherwise terminated as provided in this Agreement, the
term of this Agreement shall be for [ten] years from the effective date of the
Agreement. The Agreement may be extended at the option of Jade for additional
terms of one year, subject to mutual agreement of the parties on an applicable
license fee. If Jade desires to extend this Agreement, it will notify
MarketShare at least ninety (90) days prior to the end of the then-current term
or extended term, in which case the parties will negotiate in good faith upon an
applicable license fee for the one year extension of the term. If the parties do
not agree on the license fee, then the agreement shall expire at the end of the
then-current term or extended term.
7.2 Termination for Breach. In addition to such other rights and remedies
as may be available in law or in equity, each party shall have the right to
terminate this Agreement by written notice to the other party if the other party
has materially breached any provision of this Agreement and such breach remains
uncured for a period of sixty (60) days after written notice of such breach is
received by such other party.
7.3 Duties Upon Termination. Upon termination or expiration of this
Agreement Jade shall immediately cease using and allowing access to the
Databases. It shall immediately remove all copies of the Databases from its
systems, and return the copies to MarketShare or destroy them. Any sublicense
granted by Jade with respect to the Databases shall automatically terminate, and
Jade shall ensure that each sublicensee has removed all copies of the Databases
from the sublicensee's systems and has either returned them to Jade or destroyed
them. Upon request of MarketShare, Jade will provide MarketShare with a written
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certification of its compliance with the foregoing, signed by an officer of
Jade. Termination or expirations of this Agreement shall not relieve Jade from
its obligations arising hereunder before termination, including but not limited
to the responsibility for paying license fees on revenues for use of the
Databases prior to the effective date of termination or expiration.
7.4 Survival. The rights and obligations under Sections 5.1, 5.2, 7.3,
9.1, and 9.3, and all of Article XI and Article XIV, shall continue to bind the
parties after termination or expiration of this Agreement.
VIII. SUBLICENSE AGREEMENTS; PRICING AND COLLECTION
8.1 Sublicense Agreements. Each sublicense granted by Jade with respect to
the Databases shall be contingent upon the sublicensee entering into an
agreement with Jade which incorporates the terms and conditions attached to this
Agreement as Exhibit B or which has been approved in advance by MarketShare. In
the event that a proposed sublicensee is unwilling to accept the terms and
conditions found in Exhibit B, Jade will not grant the proposed sublicense
unless MarketShare approves the proposed agreement between Jade and the
sublicensee prior to its execution, which approval Jade may grant or withhold in
its sole discretion.
8.2 Pricing and Collection. Jade may offer sublicenses (as permitted
herein) to its customers at prices as Jade may in its sole discretion establish.
If Jade offers a sublicense in exchange for non-monetary consideration, for the
purposes of calculating the license fee due under Section 5.1 above, the revenue
from the sublicense shall be deemed to be the revenue that would have been
obtained from the sublicensee if it were based on monetary consideration, as
determined by mutual agreement of the parties in light of other similar
licenses.
IX. INTELLECTUAL PROPERTY RIGHTS IN DATABASES
9.1 Ownership. As between Jade and MarketShare, MarketShare shall be the
sole owner of the Databases, including any copyrights, trade secrets or other
intellectual property rights associated with the Databases.
9.2 Proprietary Rights Notices. Jade shall follow MarketShare's
requirements with respect to notices and legends that MarketShare may from time
to time require Jade to include in copies, extracts, printouts, screen displays
and other output derived from the Databases.
9.3 Registration and Protection of Databases. Jade shall cooperate with
MarketShare with regard to any copyright registration or other registration of
the intellectual property rights in the Databases, including updated versions
thereof, that MarketShare may choose to obtain. Jade agrees to cooperate with
MarketShare with respect to any other action that may be necessary or
appropriate, in the discretion of MarketShare, for the protection of the
Databases under applicable intellectual property laws.
9.4 Infringement. In the event Jade becomes aware of an instance of
possible infringement of MarketShare's rights in the Databases, Jade shall
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promptly notify MarketShare. Jade will cooperate with MarketShare with respect
to any action that MarketShare determines is appropriate to stop or remedy such
infringement.
9.5 Third Party Claims.
(a) If a third party claims that the exercise by Jade of the
rights granted in this Agreement infringes the intellectual
property or proprietary rights of any third party, MarketShare
may, at its option, (i) procure for Jade the right to continue
to use the Databases as provided in this Agreement, or (ii)
replace, modify or remove the portions of the Databases
subject to the claim of infringement. If neither (i) nor (ii)
above is practicable, as determined by MarketShare in its sole
discretion, MarketShare may terminate this Agreement.
(b) In the event that any claim alleging infringement of a U.S.
patent, copyright or trade secret is asserted against Jade
arising out of Jade's use of the Databases as permitted in
this Agreement, and provided that Jade provides MarketShare
with prompt written notice of the claim and complete authority
and information required for the defense of such claim,
MarketShare will defend Jade against that claim at
MarketShare's expense, with counsel of MarketShare's choice,
and indemnify and hold harmless Jade from and against any
associated loss, liability, damage, or expense (including
reasonable attorneys' fees). MarketShare may determine, in its
sole discretion, the most cost-effective and practical means
for responding to and disposing of any such claim, and Jade
will reasonably cooperate with MarketShare in its efforts to
do so.
(c) The indemnity set forth in subsection (b) above will not
extend to any claims of infringement resulting from (i)
modification of, or additions to, any Database or portion
thereof, or (ii) the use of any Database or portion thereof in
a manner not expressly permitted by this Agreement. In
addition, and notwithstanding anything in this Agreement to
the contrary, MarketShare shall have no obligation to
indemnify or defend Jade against any claims arising from the
use or display of any data in violation of anti-spam law or
regulation.
X. MUTUAL REPRESENTATIONS AND WARRANTIES
Each party represents and warrants (a) that it has the right, power and
authority to enter into this Agreement and to perform all of its obligations
hereunder; (b) that the execution of this Agreement by such party, and the
performance of its obligations in this Agreement, do not and will not violate
any agreement to which such party is otherwise bound; and (c) that when executed
and delivered by such party, this Agreement shall constitute the legal, valid
and binding obligation of such party in accordance with its terms.
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XI. LIMITATIONS; DISCLAIMER
11.1 Errors and Omissions. Jade acknowledges that data entry,
communications and storage are subject to a possibility of human and machine
errors, omissions, delays, and losses, which may give rise to loss or damage.
MarketShare NEITHER UNDERTAKES NOR ACCEPTS ANY LIABILITY WHATSOEVER TO JADE FOR
ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES UNLESS CAUSED BY ITS WILLFUL
MISCONDUCT.
11.2 No Warranties.
(a) The Databases are provided by MarketShare to Jade "as is,"
without warranty of any kind. MarketShare MAKES AND JADE
RECEIVES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY
OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION,
REGARDING THE DATABASES, AND LICENSOR SPECIFICALLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
(b) Jade shall not make any warranties or representations to third
parties with respect to the Databases.
11.3 Limitation of Liability. Notwithstanding anything to the contrary in
this Agreement, except by way of indemnity pursuant to Section 9.5(b),
MarketShare shall not have any liability to Jade or any third person for any
damages, expenses, costs or losses of any kind whatsoever arising out of or
alleged to result from use of the Databases, and Jade shall hold MarketShare
harmless from and against any and all claims and liabilities of any kind
whatsoever arising out of or alleged to result therefrom. MarketShare SHALL IN
NO EVENT HAVE ANY LIABILITY WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES OR LOST PROFITS AS A RESULT OF JADE'S USE, INABILITY TO USE, OR
SUBLICENSING OF THE DATABASES.
XII. NO OTHER RIGHTS GRANTED
12.1 Reservation of Rights in the Databases. Except for those rights
expressly granted herein, MarketShare expressly reserves all rights in the
Databases, and no other rights are granted to Jade with respect to the Databases
by this Agreement.
12.2 Other Intellectual Property. Each party owns and shall retain all
rights, title and interest in its own copyrights, trademarks, proprietary
features and technology that may be used in connection with the Databases, and
neither party shall copy, distribute, reproduce or use the above proprietary
items, except with the express written permission of the other party.
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XIII. ACQUISITION OF ADDITIONAL DATA ELEMENTS
13.1 New Data Elements Obtained by MarketShare. The license granted in
this Agreement does not include any new data elements that MarketShare may
develop in the future and which Jade may have a desire to obtain. Any such
additional data elements that MarketShare is willing to license will be licensed
to Jade only if and to the extent such data elements are the subject of a
separate license agreement that describes the license fee and other terms upon
which these elements are licensed. Any such separate license agreement will be
subject to future negotiation and must be mutually agreed upon by the parties.
13.2 Acquisition of Third Party Data Elements by Jade. If Jade believes it
would be more economical for MarketShare to attempt to acquire rights to
additional data owned by third parties than for Jade itself to acquire rights to
the data, MarketShare will act as Jade's agent and will use commercially
reasonable efforts to obtain for Jade rights to such other data, subject to
payment by Jade to MarketShare of a fee acceptable to MarketShare, at its sole
discretion. Jade shall indemnify and hold MarketShare harmless from any claims,
losses, liabilities, damages and expenses (including reasonable attorneys' fees)
that arise out of Jade's use or acquisition of rights to any data pursuant to
this Section.
XIV. MISCELLANEOUS
14.1 Entire Agreement. This Agreement constitutes the complete agreement
between the parties and supersedes all previous and contemporaneous agreements,
proposals, or representations, written or oral, concerning this subject matter
of this Agreement. This Agreement may not be modified or amended except in a
writing signed by a duly authorized representative of each party; no other act,
document, usage, or custom shall be deemed to amend or modify this Agreement.
14.2 No Implied Rights or Obligations. Nothing in this Agreement is
intended to create any implied right to require, or any implied duty to provide,
a level of effort or results (in general or in particular) with respect to the
Databases, or to require a party to refrain from engaging in any other activity,
including any activity involving similar products or services with the same or
similar customers or providers, unless specifically prohibited in this
Agreement.
14.3 Remedies. Jade acknowledges and agrees that monetary damages may not
be a sufficient remedy for any breach of this Agreement by Jade, and that
MarketShare therefore will be entitled to specific performance and injunctive
relief as remedies for any such breach. Such remedies shall not be deemed to be
the exclusive remedies for a breach of this Agreement but shall be in addition
to all other remedies available at law or equity.
14.4 Independent Contractors. The relationship of the parties hereunder
shall be that of independent contractors. Nothing herein shall be construed to
constitute a partnership between or joint venture of the parties, nor shall any
party be deemed the agent of any other party or have the right to bind another
party in any way without the prior written consent of such party, except as
specifically provided in this Agreement.
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14.5 Assignment. Jade may not assign this Agreement or any of its rights
or obligations under it without the prior written consent of MarketShare, which
may be withheld in MarketShare's sole discretion. MarketShare may assign this
Agreement upon written notice to Jade of such assignment.
14.6 Notice. All notices, requests, demands, directions, and other
communications given to or made upon any party hereto under the provisions of
this Agreement shall be in writing (including facsimile communication). Notice
shall be deemed to be effective on (a) the day following transmission if sent by
facsimile and followed by written confirmation by registered overnight carrier
or certified United States mail; (b) the day following posting when sent by
registered private overnight carrier (e.g. Federal Express); or (c) five (5)
days after posting when sent by certified United States mail. Notice shall be
sent to the addresses specified below for each party, to such other addresses as
shall be specified by either party upon written notice to the other.
If to Jade:
Jade Entertainment Group, Inc.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to MarketShare:
MarketShare Recovery, Inc.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
14.7 Waiver. The waiver by any party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach.
14.8 Governing. This Agreement, and all matters arising out of or relating
to this Agreement, shall be governed by the laws of the State of New York,
without giving effect to its choice of law provisions.
14.9 Enforcement. Jade (a) hereby irrevocably submits to the jurisdiction
of the state courts of the State courts located in the counties of Nassau and
Suffolk, New York, or the United States District Courts for the Eastern District
of New York, for the purpose of any suit, action or other proceeding arising out
of or based upon this Agreement or the subject matter hereof brought by
MarketShare or its successors or assigns and (b) hereby waives, and agrees not
to assert, by way of motion, as a defense, or otherwise, in any such suit,
action or proceeding, any claim that it is not subject personally to the
jurisdiction of the above-named courts. Jade hereby consents to service of
process by certified or registered mail at the address to which notices are to
be given.
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14.10 Force Majeure. In the event that either party hereto shall be
delayed or hindered or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability to procure
materials, failure of power, riots, insurrection, war or other reasons of a like
nature not the fault of the party delayed in performing work or doing acts
required under the terms of this Agreement, such party shall immediately provide
notice to the other party of such delay, and performance of such act shall be
excused for the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay.
14.11 Attorney's Fees. If any action at law or in equity is necessary to
enforce this Agreement or seek recovery for breach thereof, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and expenses, in addition
to any other relief to which it may be entitled.
14.12 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court or agency of competent jurisdiction, the parties
shall mutually agree on an alternate, legally valid and enforceable provision.
The remainder of this Agreement shall nevertheless continue in full force and
effect to the extent that continued operation under this Agreement without the
invalid or unenforceable provision is consistent with the intent of the parties
as expressed in this Agreement.
14.13 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to enter into this Agreement as of the date first written above.
JADE ENTERTAINMENT GROUP, INC. MARKETSHARE RECOVERY, INC.
By: By:
-------------------------------- --------------------------------
Xxxxxxx Xxxxxx, President Xxxxxxx Xxxxxx, President
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EXHIBIT A
DATABASE
The database licensed consists of approximately 70 million records,
consisting of email addresses and other information such as date of birth,
gender, mailing address, telephone number, various descriptors indicating
personal interest, purchasing preferences, socio-economic variables and other
data collected, licensed or copied by MarketShare in compliance with applicable
law, functional indices which permit the utilization of data for commercial
purposes such as the stratification and selection of data along variables of
commercial relevance to the user and functional interfaces such as email
generation, distribution and reporting formats relating thereto.
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EXHIBIT B
TERMS AND CONDITIONS FOR DATABASE LICENSE
1. Permitted Uses of Licensed Databases. Licensee may only use the data
elements in the Licensed Databases as specifically permitted below. Licensee may
make no other use of the Databases whatsoever without the prior written approval
of Jade, which may be subject to the approval of Jade's licensor(s).
(a) Restricted Use Data Elements. With respect to data elements
identified by Jade as "Restricted," Licensee may:
(i) store the data elements on its computer(s) and retrieve
records for Licensee's internal use;
(ii) allow retrieval of a limited number of records through a
private, noncommercial, secure computer network or
website that cannot be accessed by the public and that
is owned or controlled by Licensee. Licensee shall not
allow or permit any other entity to allow the retrieval
of records from the Restricted data elements from the
public at large. Access to the data elements must be
controlled by a password or other means of security.
(b) Internal Use. With respect to data elements identified by Jade
as "Internal Use," Licensee may store the data elements on its
computer(s) and retrieve a limited number of records for its
internal use only, and may not allow a third party any access
to database records.
2. Database Security. Licensee acknowledges that the Licensed Databases
are proprietary to Jade or its Licensor(s), and have been compiled and
maintained at significant time and expense, and have been maintained as trade
secrets of Jade or its Licensor(s). Licensee agrees to store the Licensed
Databases in such a manner to maintain and protect the security of the Licensed
Databases and not to disclose or use them for any purpose not authorized by this
Agreement. Licensee agrees to adopt and employ appropriate safeguards in light
of its own operating activities to erasure the protection of the Licensed
Databases and the maintenance of their status as trade secrets of Jade or its
Licensor(s).
3. No Commingling. Licensee may not aggregate or commingle the data
records of the Licensed Databases with other data not provided by Jade.
4. Methods of Accessing Database Records. Jade shall have the right to
approve the software and methods used by Licensee to allow for the retrieval of
records from the Databases. Approval may be granted or denied in the sole
discretion of Jade and/or its licensor(s), or conditioned on items such as
limiting the number of records that can be retrieved during any one session, or
providing for a limited number of users with password access. Licensee shall not
employ any method of retrieval which would enable Licensee or any third party to
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retrieve all or substantially all of the records in the database. The method of
retrieval specified in this agreement, if any, shall be deemed approved by Jade
without any additional actions by the parties.
5. Duties Upon Termination. Upon termination or expiration of this license
agreement, Licensee shall immediately cease using and allowing access to the
Databases. Licensee shall immediately remove all copies of the Databases from
its systems, and return the copies to Jade or destroy them. Upon request of
Jade, Licensee will provide Jade with a written certification of its compliance
with the foregoing, signed by an officer of Licensee.
6. Termination by Licensor(s) of Jade. In addition to any other grounds
for termination that pray be agreed upon by Licensee and Jade, Licensee's rights
with respect to any components of the Licensed Databases shall immediately
terminate if the rights granted to Jade by its licensor with respect to such
components of the Licensed Databases we terminated.
7. Proprietary Rights Notices. Licensee shall follow Jade's requirements
with respect to notices and legends that Jade or its licensor(s) may from time
to time require Licensee to include in copies, extracts, printouts, screen
displays and other output derived from the Databases.
8. Errors and Omissions. Licensee acknowledges that data entry,
communications and storage are subject to a possibility of human and machine
errors, omissions, delays, and losses, which may give rise to loss or damage.
NEITHER JADE NOR ANY OF ITS LICENSOR(S) UNDERTAKES OR ACCEPTS ANY LIABILITY
WHATSOEVER TO LICENSEE FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES
UNLESS CAUSED BY JADE'S WILLFUL MISCONDUCT.
9. No Warranty. The Databases are provided by Jade to Licensee "as is,"
without warranty of any kind. JADE MAKES AND LICENSEE RECEIVES NO WARRANTIES,
EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY
OTHER COMMUNICATION, REGARDING THE DATABASES, AND JADE SPECIFICALLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability. Notwithstanding anything to the contrary in
this Agreement, neither Jade nor its licensor(s) shall have any liability to
Licensee or any third person for any damages, expenses, costs or losses of any
kind whatsoever arising out of or alleged to result from use of the Licensed
Databases, and Licensee shall hold Jade and its licensors harmless from, and
against any and all claims arid liabilities of any kind whatsoever arising out
of or alleged to result therefrom. JADE SHALL IN NO EVENT HAVE ANY LIABILITY
WHATSOEVER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES AS A RESULT
OF THE OF TILE DATABASES BY LICENSEE OR ANY THIRD PARTY.
11. Remedies. Licensee acknowledges and agrees that monetary damages may
not be a sufficient remedy for any breach of this agreement (including these
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Terms and Conditions) by Licensee, and that Jade or its licensor(s) therefore
will be entitled to specific performance and injunctive relief as remedies for
any such breach. Such remedies shall not be deemed to be the exclusive remedies
for a breach of this Agreement but shall be in addition to all other remedies
available at law or equity.
12. Enforcement. Licensee (a) hereby irrevocably submits to the
jurisdiction of the state courts of the State courts located in the counties of
Nassau and Suffolk, New York, or the United States District Courts for the
Eastern District of New York, for the purpose of any suit, action or other
proceeding arising out of or based upon the licensing of the Databases or the
subject matter hereof brought by Jade, its licensor(s), or any of their
successors or assigns and (b) hereby waives, and agrees not to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or proceeding, any
claim that Licensee is not subject personally to the jurisdiction of the
above-named courts. Licensee hereby consents to service of process by certified
or registered mail.
13. Third Party Beneficiaries. Licensee acknowledges that Jade's
licensor(s), including MarkeShare Recovery, Inc., are third party beneficiaries
of these terms and conditions and shall have the right to enforce these terms
and conditions as necessary to protect their interests.
IN WITNESS WHEREOF, Licensee and Jade agree to and accept these terms and
conditions.
JADE ENTERTAINMENT GROUP, INC. LICENSEE
By: By:
------------------------------- --------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: President Title: President
Date: Date:
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