Exhibit 10.1
LOCATEPLUS HOLDINGS CORPORATION.
CHANNEL PARTNER AGREEMENT
This Channel Partner Agreement ("Agreement") is entered into effective
January (month) 3 (day), 2005 (year) ("Effective Date") by and between
LOCATEPLUS HOLDINGS CORPORATION., a Delaware Corporation ("LPLH") and Omni Data
Services, Inc. ("Partner"). LPLH and _Omni Data Services, Inc.__ are referred
to in this Agreement collectively as the "Parties" and individually as a
"Party."
1. TERM. The term of this Agreement ("Term") will commence on the Effective
Date and will terminate at the earlier of two years from the Effective date or
30 days after either Party provides written notice to the other of its intention
to terminate or as otherwise provided herein.
2. ENGINEERING SERVICES. If requested, LPLH will perform engineering
services as agreed upon and as set forth in Attachment 2, if applicable.
3. INDIVIDUAL REFERENCE SERVICES. Upon request by Partner during the Term,
LPLH will provide Partner with reporting services offered by LPLH. Certain of
the services consist of providing criminal record reports ("Public Records") on
individuals ("Individuals") from Public Records compiled by LPLH ("Services") to
be distributed by Partner to third parties ("End-Users") for investigative
purposes.
4. PERFORMANCE. LPLH will perform the Services in response to electronic
requests provided by Partner during the term and in the manner specified by
LPLH. Each such request will contain sufficient identifying information
concerning the individual about whom information is requested to enable LPLH to
perform the Services and will identify that the request is being made by the
Partner.
5. METHOD OFPERFORMANCE. LPLH will use commercially reasonable efforts to
provide the Services expeditiously. Partner expressly agrees that use of LPLH's
Services is at Partner's sole risk. NEITHER LPLH NOR ITS EMPLOYEES, AFFILIATED
COMPANIES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, OR THE LIKE, WARRANT THAT
LPLH'S SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF LPLH'S SERVICES
OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY PUBLIC RECORDS OR OTHER
INFORMATION SERVICE CONTAINED IN OR PROVIDED THROUGH LPLH'S SERVICES, OTHER THAN
AS EXPRESSLY STATED IN THIS CONTRACT IN THE SECTION HEADED "EXCLUSIVE LIMITED
WARRANTY." UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL LPLH, ITS
OFFICERS, AGENTS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING
LPLH 'S SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT MAY RESULT FROM THE USE OF OR
INABILITY TO USE LPLH'S SERVICES.
6. ACCESS TO LPLH'S SERVERS. All access to LPLH's Public Records by Partner
is via the Internet. Partner acknowledges that the Internet is neither owned nor
controlled by any one entity; and that therefore, LPLH can make no guarantee
that any given user will be able to access LPLH's servers at any given time.
LPLH represents that it will use commercially reasonable efforts to avoid or
minimize service interruption.
7. TRIAL ACCESS TO LPLH'S SERVERS. All trial access to LPLH's Public
Records by Partner is via the XML gateway. Partner will request from LPLH a
trial for each new customer and an approximate start and end of the trial period
in writing. Partner will work with LPLH to provide a list of itemized searches
and reports that were completed during the LPLH permitted trial period. LPLH
reserves the right to charge Partner for any usage above the mutually agreed
upon trial date of any customer. LPLH and Partner shall work together to limit
the time frame of such test and trial period. Partner represents that it will
use commercially reasonable efforts to avoid prolonged trials in to the LPLH
database.
8. EXCLUSIVE LIMITED WARRANTY. LPLH hereby warrants to Partner that LPLH
has obtained the Public Records in a legitimate and lawful manner and that LPLH
will use commercially reasonable efforts to confirm that the Public Records
information delivered to Partner hereunder will be accurate and reliable. LPLH
does not guarantee the accuracy or reliability of such information. THIS
WARRANTY IS THE ONLY WARRANTY LPLH GIVES PARTNER WITH RESPECT TO SUCH
INFORMATION AND LPLH'S SERVICES; AND SUCH WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, THAT LPLH MIGHT HAVE GIVEN PARTNER. LPLH DOES
NOT WARRANT THAT ANY OF THE PUBLIC RECORDS CONTAINED IN THE NATIONAL DATA
REGISTRY DATABASE, OR AS REPORTED BY ANY PUBLIC AGENCY OR COURT IN THEIR
ORIGINAL FORM, ARE CORRECT, COMPLETE, CURRENT, PROPERLY ATTRIBUTED, PROPERLY
RECORDED, PROPERLY FILED, PROPERLY DOCKETED, LEGIBLE, OR OTHERWISE ACCURATE OR
USABLE FOR THE PARTNER'S INTENDED PURPOSE. Upon notification that any Public
Records information delivered to Partner fails to meet the foregoing warranty,
LPLH will, at its election and sole discretion, either (a) deliver replacement
Public Records information to Partner that conforms to the foregoing warranty or
(b) refund or credit to Partner all amounts paid to LPLH for the particular
Public Records information that fails to meet the foregoing warranty. THE
FOREGOING ARE PARTNER'S SOLE REMEDIES FOR BREACH OF THE FOREGOING WARRANTY.
LPLH WILL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS, REVENUES, OR
BUSINESS OPPORTUNITIES, OR FOR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND AS A RESULT OF ANY
BREACH OF THE FOREGOING WARRANTY.
9. INDEMNIFICATION. Partner will indemnify, defend, and hold LPLH harmless
from or against any and all liabilities, damages, losses, costs, and expenses
including attorney fees arising out of or resulting from Partner's use of LPLH's
Services under this Agreement. In particular, but without limiting the scope of
the foregoing indemnification, Partner will defend, hold harmless, and indemnify
LPLH from and against all claims or actions asserted or brought against LPLH by
any third party resulting from or arising out of any asserted: (a) violation by
Partner of the Fair Credit Reporting Act (15 USC 1681, et seq.) ("FCRA") or
the Fair Housing Act (42 USC 3601, et seq.) ("FHA"), as such are from time to
time amended; (b) violation by Partner of comparable state laws governing
reporting of criminal records and other information on Individuals to End-Users;
(c) violation by Partner of laws governing the disclosure of criminal records
provided by the various jurisdictions to LPLH; or (d) negligent, grossly
negligent, or intentional action or inaction by Partner relating to the Services
obtained from LPLH.
10. FEES. For each response (excluding "no record" responses) to a request
for Services made by Partner, LPLH reserves the right to charge Partner
according to LPLH's standard charges for the requested Services less any
applicable discounts in effect during the Term. LPLH reserves the right to
change these charges at any time upon 180 days written notice. Attachment 1
sets forth the standard fees and discounts for Partner's use of LPLH's Services
as of the Effective Date.
11. TAXES. Partner will be solely responsible for all federal, state, and
local taxes levied or assessed in connection with Partner's purchase or use of
LPLH's Services.
12. METHOD OF PAYMENT. LPLH shall provide invoices to Partner on a monthly
basis for the monthly usage. Partner shall pay such invoices within thirty (30)
days of the invoice date. Partner will review the invoices and notify LPLH
within 10 days of receipt of any amounts that it contends are incorrect or
unauthorized Services by Partner or its End-Users. LPLH will credit against
Partner's invoice any amounts that it determines, after reasonable
investigation, represent incorrect charges or unauthorized Services, provided
Partner (a) promptly notifies LPLH upon discovering any unauthorized Services or
billing errors, and (b) cooperates with LPLH in identifying who requested any
claimed unauthorized Services and taking appropriate action to preclude future
unauthorized requests. Without limiting any of LPLH's remedies for non-payment
or late payment of invoices, it is agreed that invoices that are not paid within
sixty (60) days of the due date will be subject to a late charge of one and
one-half percent (1.5%) per month (18% per year) or the maximum allowed by law
if lower than 18% per year. If collection efforts are required, Partner shall
pay all costs of collection, including reasonable attorneys' fees.
13. APPROPRIATE PURPOSES. Partner hereby acknowledges that the information
it receives from LPLH under this Agreement includes personal information about
Individuals. While such information is derived from Public Records, Partner
recognizes the parties' mutual interest in Partner treating such information
responsibly. Therefore, Partner will use its best efforts to ensure that such
information is not misused or released to unauthorized persons by Partner and
its End-Users. Partner will further require all of Partner's End Users to agree
to use the information contained in the Public Records solely for legal and
appropriate investigative purposes by legitimate businesses.
14. COMPLIANCE WITH LAW. In performing this Agreement and in using
information provided hereunder, both Parties will comply with all Federal,
State, and local statutes, regulations, and rules applicable to individual
reference information in effect during the Term. Partner represents that it is
experienced, knowledgeable, and competent in providing criminal records for
investigative purposes in accordance with applicable law in all jurisdictions in
which it does business.
15. USE OF LPLH'S PUBLIC RECORDS. Partner hereby certifies that it will
request and distribute Public Record information received from LPLH to third
parties (End-Users) solely for said End-Users' use for non-FCRA investigative
purposes.
16. COMPLIANCE WITH PARTNER'S PROCEDURES. Partner agrees to conduct a
reasonably diligent investigation of its End-Users to satisfy itself that each
is a legitimate business and has a legitimate and permissible purpose for
accessing LPLH's Public Records database. LPLH reserves the right to require
changes or modifications in these procedures as needed by law. Partner will be
given 120 - days written notice of such changes. Partner agrees to full and
complete audits that LPLH may deem necessary for compliance with these
procedures and the requirements of this Agreement upon ten days prior written
notice.
17. CONFIDENTIAL TREATMENT. Partner will use its best efforts to ensure
that Individual reference information, including the Public Records in LPLH's
Public Records database, will be held in strict confidence and disclosed only to
its employees and/or those of its End-Users whose duties reasonably relate to
the legitimate business purposes for which the information is requested or used
and to no one else. This restriction does not preclude Partner and authorized
End-Users from subsequently obtaining a copy of the original public record
identified by the Services from the applicable public repository in a lawful
manner and using such original record for other lawful purposes.
18. INTELLECTUAL PROPERTY
A. No Licenses. Partner acknowledges the ownership by LPLH of the
copyrights and other intellectual property in the Services and products that
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LPLH provides under this Agreement. Partner has no patent rights, copyright
interest, or other rights, claims or interests with respect to the computer
programs, forms, manuals, or other proprietary items utilized or provided by
LPLH in connection with Services.
B. Restrictions on Trademark Use. Neither Party will use, or permit their
respective employees, agents, or subcontractors to use the trademarks, service
marks, logos, names, or any other designations of proprietary information or
designation of the other Party, whether registered or unregistered, without such
other Party's prior written consent.
C. Ownership of Database. Partner acknowledges that LPLH has expended
substantial time, effort, and funds to compile its Public Records database and
that all information contained in such database is and will continue to be the
exclusive property of LPLH. Nothing contained in this Agreement will be deemed
to convey to Partner any right, title, or interest in LPLH Public Records
database or any part thereof.
19. CONFIDENTIALITY.
A. The Parties acknowledge that during the Term, they may receive
information from the other Party that is proprietary and confidential. Each
Party will identify any such information by labeling it as "Confidential" at or
near the time of disclosure. The Party receiving confidential information from
the other will: (a) maintain the confidentiality of such information with the
same degree of care, and no less than reasonable care, as it uses for its own
proprietary and confidential information, (b) limit access to such confidential
information to those employees and outside contractors who have the need for
such information and are under a duty of confidentiality to that Party, (c) not
disclose the confidential information to any other person or entity, and (d)
will not use the confidential information for any purpose other than performance
of its business under this Agreement.
B. Among its other duties of confidentiality, Partner acknowledges that LPLH
has expended considerable effort and expense in compiling the LPLH Public
Records database. Partner agrees to not use information regarding LPLH Public
Records database, the sources of the compiled data, and contract terms,
conditions, and pricing for the purpose of establishing a competing screening
product. Furthermore, Partner agrees to not provide information about LPLH
Public Records database to competitors of LPLH or other companies in the
background screening business, without written permission of LPLH. Partner may
distribute or sell background checks from LPLH Public Records database to other
companies for distribution or resale to End-Users, providing these resellers
comply with the terms of this Agreement.
20. AMENDMENTS, TERMINATION AND WAIVER
A. Amendments. This Agreement may be amended at any time, but only by
written instrument signed by both Parties.
B. Termination. Either party may terminate this Agreement for the other
party's breach of any material provision of this Agreement; provided the
non-breaching party has provided the party in breach with written notice
specifying such breach and the party in breach has failed to cure such breach
thirty (30) days of receipt of such notice. Following termination of this
Agreement for any reason, in no event shall Partner retain any information from
LPLH's Public Records database. The foregoing notwithstanding, at LPLH's sole
option, Partner may provide written certification signed by an officer of
Partner that all such Public Record information have been destroyed.
C. Accelerated and Unilateral Termination by LPLH. Notwithstanding the
notice period and other requirements for termination in Section 18.b, without
limiting any other remedies to which LPLH may be entitled, LPLH reserves the
right to immediately suspend its performance under this Agreement and/or
terminate this Agreement if LPLH, in good faith, determines that (i) the
requirements of any law have not been met; (ii) as a result of changes in laws,
regulations or regulatory or judicial action, LPLH, in good faith believes that
the requirements of any law or regulation will not be met; (iii) the use of the
Public Records or Services is the subject of litigation or threatened litigation
by any governmental entity and/or is the subject of an adverse and documented
consumer reaction related to consumer privacy issues; or (iv) LPLH discontinues
offering the Public Records or Services for the uses set forth herein. LPLH
shall promptly provide written notification to Partner of such action.
D. Survival. With the exception of Sections 2, 3, 4, and 5, all provisions
of this Agreement shall survive any termination of this Agreement. Moreover,
any termination shall not relieve either Party of any royalties, fees or other
payments due to the other Party through the date of any such termination nor
affect any rights, duties or obligations of either Party that accrue prior to
the effective date of any such termination. The Parties' obligations and duties
of indemnification, compliance with law, compliance with procedures,
intellectual property, confidentiality, privacy, compliance with law, and
non-disclosure described herein will survive termination or expiration of this
Agreement.
E. Waiver. No provision of this Agreement will be considered waived by
LPLH except in writing by authorized officer or agent. No waiver will prevent
LPLH from requiring compliance with this Agreement as to other provisions or
other occasions.
21. MISCELLANEOUS
A. Status. The Parties will perform their obligations hereunder as
independent contractors. Nothing contained in this Agreement will be deemed to
create any association, partnership, joint venture, or relationship of principal
and agent. The term "Channel Partner" is used for marketing and convenience,
and is not a legal term.
B. Excusable Delays. Neither Party will be liable to the other for any
delay or failure in its performance of any of the acts required by this
Agreement when such delay or failure arises beyond the reasonable control of
such Party, including, without limitation, acts of God or public enemies, labor
disputes, embargoes, earthquakes, rationing, acts of local, state or national
governments or public agencies, utility or communication failures or delays,
fire, flood, epidemics, riots and strikes.
C. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts regardless of
conflicts of law provisions thereof. The Parties agree to submit any dispute,
controversy or claim arising out of or in relation to this Agreement or the
breach, termination or invalidity thereof, be submitted, upon the demand of
either Party, for binding arbitration before one arbitrator in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in
force. The arbitration will take place in Massachusetts. The Parties agree
that the arbitration award and any matter requiring injunctive or other
provisional or emergency relief may be enforced in any court with jurisdiction,
and consent to jurisdiction and venue in Massachusetts courts for such
proceedings. The prevailing Party in any arbitration or court proceedings will
be entitled to recover its costs and expenses, including reasonable attorney
fees and the arbitration fees, expenses, and arbitrator's compensation.
D. Severability. If any provision of this Agreement will be determined to
be unlawful or unenforceable by binding arbitration or by a court of competent
jurisdiction, then such provision will be deemed amended to conform with
applicable laws or regulations or, if it cannot be so amended without materially
altering the intention of the parties, it will be stricken from this Agreement
and every other provision of this Agreement will remain in full force and
effect.
E. Assignment. This Agreement will be binding upon and inure to the benefit
of the successors of each of the Parties hereto, but will not be assignable by
either Party without the prior written consent of the other.
F. Notice. Any notices required or permitted to be given under this
Agreement will be in writing, addressed to the address set forth in the last
page of this Agreement or such subsequent address of which the Party is notified
in the manner provided for in this section. Notices delivered by certified mail
or by any transmission or electronic mail will constitute notice hereunder.
G. No Third Parties. Neither this Agreement nor any provisions set forth
herein are intended to, or will, create any rights in or confer any benefits
upon any person other than the Parties hereto.
H. Complete Agreement. This Agreement sets forth the entire understanding
of the Parties hereto with respect to the subject matter hereof and supercedes
all prior letters of intent, agreements, covenants, arrangements,
communications, representations, or warranties, whether oral or written, by any
officer, employee, or representative of either Party relating thereto.
IN WITNESS THEREOF, Partner and LPLH have each caused this Agreement to be
executed by their respective duly authorized representatives as of the Effective
Date.
LOCATEPLUS HOLDINGS CORPORATION _PARTNER___
/s/Xxx X. Latorella__________________ /s/ Xxxxxx Chapman__________________
Signature Signature
Xxx X. Latorella_____________________ Xxxxxx Chapman______________________
Print or Type Name Print or Type Name
_CEO________________________________ President___________________________
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Title Title
Addresses for Notices:
Mailing: 000 Xxxxxxxx Xxxxxx, 000 XXXXXXXXX XX
Xxx 000X Xxxxxxx, XX 00000 XXXXXXXX, XX 00000-0000
Fax: (978) 524 - 8887 Fax:
Email: Email:
_January 3, 2005_____________________ __January 3, 2005___________________
Date Signed Date Signed
ATTACHMENT 1
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TOCHANNEL PARTNER AGREEMENT
---------------------------
Dated January 3, 2005
--------------------
This shall serve as an Attachment 1 (this "Attachment") to the Channel Partner
Agreement (the "Agreement") between Omni Data Services, Inc. ("Partner") and
LocatePLUS Holdings Corporation ("LPLH") dated January 3, 2005.
The parties agree as follows:
The Agreement and the terms, provisions, and definitions thereof shall continue
in full force and effect and are hereby incorporated herein in their entirety by
this reference thereto, except to the extent that the Agreement is modified by
this Attachment.
I. Access to Data: LPLH agrees to provide unlimited access to its XML data
stream. The monthly charge beginning February 1, 2005 will be *** per month.
This charge will increase to *** per month beginning May 1, 2005.
III. Payment Terms: LPLH will provide an initial grace period of 120 from
completion of its web site for payment, at which time monthly installments will
be due and payable.
LOCATEPLUS CORPORATION. Partner
By:_/s/ Xxx X. Latorella_____________ By:_Kristy Chapman__________
Name:_Jon R. Latorella_____________ Name:_Kristy Chapman________
Title:_CEO_______________________ Title:_President_______________
Date: _January 3, 2005___________ Date:___January 3, 2005___________
*** Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with the
Commission.
ATTACHMENT 2
------------
TOCHANNEL PARTNER AGREEMENT
---------------------------
Dated January 3, 2005
--------------------
This shall serve as an Attachment 2 (this "Attachment") to the Channel Partner
Agreement (the "Agreement") between Omni Data Services, Inc. ("Partner") and
LocatePLUS Holdings Corporation ("LPLH") dated January 3, 2005.
The parties agree as follows:
The Agreement and the terms, provisions, and definitions thereof shall continue
in full force and effect and are hereby incorporated herein in their entirety by
this reference thereto, except to the extent that the Agreement is modified by
this Attachment.
I. Private Label Website: LPLH agrees to build and maintain a private label
website based on the specifications defined by Partner. For the development of
the web site, Partner agrees to pay a flat fee ***.
III. Payment Terms: Partner agrees that upon completion of the development,
LPLH shall be entitled to its full fee. LPLH will provide an initial grace
period of 120 from completion for payment, at which time 50% of the fee, or * *
* will be due and payable. The remaining balance will be due 180 days from
completion.
LOCATEPLUS CORPORATION. Partner
By:_/s/ Xxx X. Latorella_____________ By:_Kristy Chapman__________
Name:_Jon R. Latorella_____________ Name:_Kristy Chapman________
Title:_CEO_______________________ Title:_President_______________
Date: _January 3, 2005___________ Date:___January 3, 2005___________
*** Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with the
Commission.
