EXHIBIT 10.3
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"CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION."
DATABASE LICENSE AGREEMENT
THIS DATABASE LICENSE AGREEMENT (this "Agreement"), dated as of November
27, 2001, is between Xxxxx Information Services Co., a Delaware corporation
("Licensor"), and XxxxxxXxxx.xxx, Inc., a Delaware corporation ("Licensee").
RECITALS
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A. Licensor has developed and maintains a proprietary public records
database (the "Database") which, as of the date hereof, contains the data filing
elements (the "Data Elements") listed on Schedule A attached hereto.
B. Licensee desires to license the Database from Licensor pursuant to the
terms and conditions contained herein.
AGREEMENT
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For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Grant of License. Subject to the terms and conditions set forth herein,
during the Term (as defined below), Licensor hereby grants to Licensee a
limited, revocable, non-exclusive, non-transferable and non-sublicenseable
license ("License") to use the Database and any information contained therein or
derived therefrom for the limited purpose (the "Purpose") set forth in Schedule
B attached hereto. Notwithstanding the foregoing, Licensee acknowledges and
agrees that Licensor may from time to time remove one or more Data Elements from
the Database and Licensor shall have no obligation either to continue to supply
any Data Element removed from the Database or to provide a substitute Data
Element,
2. Term. The initial term (the "Initial Term") of this Agreement shall commence
on the date hereof and expire on November 27, 2002, unless extended in
accordance with this Section 2 or earlier terminated in accordance with Sections
3 or 9(b). The Initial Term SHALL AUTOMATICALLY BE RENEWED AND EXTENDED on the
same terms and conditions contained herein for successive periods of thirty (30)
days (each such successive period a "Renewal Term," and together with the
Initial Term, the "Term"), unless the Initial Term or any Renewal Term is
earlier terminated pursuant Sections 3 or 9(b) or either Licensor. or Licensee,
as the case may be, provides written notice to the other party, at least thirty
(30) days prior to the termination of the 1nitial Term or any Renewal Term,
stating its desire to terminate this Agreement, and any such termination shall
be effective as of the expiration of the Initial Term or the Renewal Term, as
applicable.
3. Termination.
a. Either party may terminate this Agreement at any time and for any
reason upon
thirty-(30) days prior written notice to the other party.
b. Either party may terminate this Agreement immediately upon a breach by
the other party of any term, condition or agreement contained in this
Agreement unless such breach is cured (but only to the extent such
breach is capable of being cured and the breaching party is taking
reasonable steps to cure such breach) within fifteen (15) days of
receipt of written notice thereof from the non-breaching party.
c. In the event that (i) legislation, governmental regulations or
industry self-regulation prohibits the use of the Database or the
information contained therein or derived therefrom for the Purpose or
(ii) Licensor reasonably believes there is legislative, regulatory,
industry or political pressure with respect thereto or this Agreement,
Licensor shall have the option, upon written notice to Licensee, to
terminate this Agreement without liability to Licensor. Such
termination shall be effective as of the effective date of such
legislation, regulation, or determination and Licensee shall
discontinue using the Database and any information contained therein
or derived therefrom as of the effective date of such termination.
4. Fees. In consideration of the License granted hereunder, Licensee shall pay
to Licensor a monthly license fee (the "License Fee") described in Schedule C
attached hereto. Licensee shall, within thirty (30) days after the end of each
calendar month, (i) pay the appropriate License Fee for the subject month and
(ii) provide to Licensor a complete accounting of the total number of (x)
Permitted Background Reports (as defined in Schedule B) containing any
information contained in or derived from the Database accessed by a customer of
Licensee during the subject month and (y) searches of a Permitted Background
Report regarding whether an identified individual has filed bankruptcy or has
had a tax lien or judgment fled against him/her during the subject month.
5. Delivery and Format. Promptly following execution of this Agreement, Licensor
shall deliver to Licensee one copy of the Database on media and in a file layout
mutually agreed upon by the parties. During the Term, Licensor shall provide to
Licensee a daily feed of data on media and in a file layout mutually agreed upon
by the parties.
6. Representations and Warranties.
a. Licensee represents and warrants to Licensor that: (i) it has the
legal right, capacity and authority to enter into this Agreement, (ii)
the execution, delivery and performance of this Agreement by Licensee
have been duly authorized by all necessary corporate action and (iii)
the person signing this Agreement on behalf of Licensee has the full
power and authority to bind Licensee.
b. Licensor represents and warrants to Licensee that: (i) it has the
legal right, capacity and authority to enter into this Agreement, (ii)
the execution, delivery and performance of this Agreement by Licensor
have been duly authorized by all necessary corporate action and (iii)
the person signing this Agreement on behalf of Licensor has the full
power and authority to bind Licensor.
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7. Covenants of Licensee. During the Term, Licensee agrees:
a. To store the Database and each update thereto in its original form at
Licensee's principal place of business as reflected in Section 20, and
any other place(s) agreed to in writing by Licensor, and not make or
permit to be made any copies of the Database; provided, however, that
Licensee may make one copy of the Database solely for back-up
purposes; provided further that such back-up copy shall (i) include
any proprietary notices and designations required by Licensor in its
sole discretion, without modification thereof, (ii) not include any
other proprietary notice or designation, and (iii) shall not be given
to, or accessible by, any third party;
b. To maintain accurate and up-to-date records of the number and location
of all copies of the Database permitted to be made hereunder and
inform Licensor in writing of such location(s);
c. To use the Database and the information contained therein or derived
therefrom in compliance with all federal, state and local laws, rules,
regulations and ordinances (including, without limitation, the United
States Fair Credit Reporting Act), all applicable privacy and data
protection laws, rules and regulations;
d. To use the Database and the information contained therein or derived
therefrom solely for the Purpose;
e. To ensure that none of the Database, the information contained
therein, or derivatives thereof are Transferred in Bulk. For purposes
of this Agreement, "Transfer in Bulk " shall mean selling,
transferring or otherwise making available more than 5% of the
individual records contained in the Database to a third party or any
related group of third parties in any 12-month period, whether in a
single transaction or a series of related transactions; provided that
in calculating such 5%, the total number of records in the Database
shall equal the daily average of the total number of records contained
in the Database over such 12-month period; and
f. Not to provide the Database or the information contained therein or
derived therefrom to any individual or entity who is in the business
of providing public record information, providing data processing
services using public record information, hosting an Internet site
that displays public record information or similar activities and is
in competition with Licensor, as determined by Licensor in its
reasonable discretion.
8. Indemnification of Licensor. Licensee shall defend, indemnify and hold
harmless Licensor and its affiliates and its and their respective employees,
agents, officers and directors, from and against all damages, liabilities and
expenses (including all legal costs such as attorneys' fees, court costs and
settlement expenses) arising out of, connected with, or resulting in any way
from (i) the breach of any representation, warranty, covenant or other provision
of this Agreement by Licensee or, where applicable, its customers, or (ii) use
or misuse of the Database
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(or any part thereof) or any information contained therein or derived therefrom
by Licensee or its customers. If any such claim or proceeding arises, Licensor
shall provide written notice to Licensee in a timely manner after it receives
actual notice of its existence. Licensee shall have the right, at its expense,
to employ counsel reasonably acceptable to Licensor to defend the claim, and to
compromise, settle or otherwise dispose of the claim; provided, however, that no
compromise or settlement of any claim admitting liability of or imposing duties
or restrictions upon Licensor may be effected without the prior written consent
of Licensor. Licensor will cooperate in any such action by making available to
Licensee, at Licensee's expense, books or records reasonably necessary for the
defense of the claim or proceeding. If Licensee does not avail itself of the
opportunity to defend or otherwise dispose of the claim or proceeding within
thirty (30) days after receipt of notice thereof (or such shorter time as may be
specified in the notice if the circumstances so dictate), Licensor shall be free
to investigate, defend, compromise, settle or otherwise dispose of the claim or
proceeding, and incur other costs in connection therewith, for the account and
at the expense of Licensee, all as Licensor deems in its best interest.
9. Indemnification of Licensee.
a. Licensor shall defend, indemnify and hold harmless Licensee and its
affiliates and its and their respective employees, agents, officers
and directors, from and against all damages, liabilities and expenses
(including all reasonable legal costs such as attorneys' fees, court
costs and settlement expenses) arising out of, connected with, or
resulting from any allegation that the use of the Database by Licensee
infringes any copyright of any third party, unless such allegation
arises from (i) the combination or use of the Database or the
information contained therein or derived therefrom with any software,
data, information or materials not furnished by Licensor hereunder,
(ii) the use of the Database or the information contained therein or
derived therefrom other than as permitted hereunder, or (iii) any
modifications to the Database or the information contained therein or
derived therefrom by any individual or entity other than Licensor. If
any such claim or proceeding arises, Licensee shall provide written
notice to Licensor in a timely manner after it receives actual notice
of its existence and shall cooperate fully with Licensor in the
defense of any such allegation. Licensor shall have the right, at its
expense, to employ counsel reasonably acceptable to Licensee to defend
the claim, and to compromise, settle or otherwise dispose of the
claim; provided, however, that no compromise or settlement of any
claim admitting liability of or imposing duties or restrictions upon
Licensee may be effected without the prior written consent of
Licensee. Licensee will cooperate in any such action by making
available to Licensor, at Licensee's expense, books or records
reasonably necessary for the defense of the claim or proceeding.
b. If the Database or any portion thereof becomes or, in Licensee's
opinion, is likely to become, the subject of any claim or action that
it violates the intellectual property rights of another person or
entity, then Licensor may, in its sole discretion and at its expense,
(i) procure the right for Licensee to continue using the Database;
(ii) modify the Database to render it non-infringing; or (iii) replace
the Database or any portion thereof with equally suitable,
functionally equivalent
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non-infringing data. If none of the foregoing is commercially
practicable, Licensor may terminate this Agreement without liability
to Licensor.
c. THE FOREGOING CONSITUTES LICENSOR'S TOTAL LIABILITY WITH RESPECT TO
ANY CLAIM AGAINST LICENSEE, ITS AFFILIATES AND ITS AND THEIR
RESPECTIVE EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS FOR INTELLECTUAL
PROPERTY INFRINGEMENT RELATING TO THE DATABASE.
10. Disclaimer of Warranty. THE DATABASE IS LICENSED HEREUNDER ON AN "AS IS, AS
AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT,
LICENSOR DISCLAIMS ALL REPRESENTATIONS AND WARRANTES OF ANY KIND OR NATURE,
EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE DATABASE OR
THE INFORMATION CONTAINED THEREIN OR DERIVED THEREFROM, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES REGARDING QUALITY, CORRECTNESS, COMPLETENESS,
COMPREHENSIVENESS, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, NON-INFRINGEMENT OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF
DEALING, CUSTOM OR USAGE OF TRADE) OF THE DATABASE OR THE INFORMATION CONTAINED
THEREIN OR DERIVED THEREFROM, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF
THE PARTIES. LICENSOR AND LICENSEE HEREBY AGREE THAT THE OBLIGATIONS OF LICENSOR
TO LICENSEE ARE RELATED TO SERVICES PROVIDED BY LICENSOR, AND THAT THIS
AGREEMENT IS A SERVICE AGREEMENT FOR THE PURPOSES OF THE UNIFORM COMMERCIAL CODE
OF ANY APPLICABLE JURISDICTION (THE "UCC") AND THE PROVISIONS OF THE UCC SHALL
NOT APPLY TO THIS AGREEMENT.
11. Exclusion of Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE
CONTRARY, IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR ANY OF ITS OR THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE
UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES OR
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SIMILAR
DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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12. Limitation of Liability. LICENSOR'S CUMULATIVE LIABILITY FOR ALL LOSSES
RELATING TO OR ARISING IN CONNECTION WITH THIS AGREEMENT, THE DATABASE OR THE
INFORMATION CONTAINED THEREIN OR DERIVED THEREFROM SHALL NOT UNDER ANY
CIRCUMSTANCES OR IN ANY EVENT EXCEED THE LICENSE FEE ACTUALLY PAID TO LICENSOR
HEREUNDER DURING THE TWELVE MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO
SUCH LIABILITY.
13. Confidentiality. The Database provided hereunder is to be stored and used by
Licensee in such manner that the use of and access thereto is limited as
contemplated in this Agreement. Licensee shall treat this Agreement, the
Database and the information contained therein as strictly confidential and
shall not, unless specifically permitted hereunder or otherwise agreed to in
writing by Licensor, disclose to any individual or entity any information
regarding this Agreement or the Database, including, but not limited to, the
terms and conditions contained herein, the Data Elements and the configuration
of the Database. In addition, Licensee agrees (i) to disclose, or provide access
to, the Database and the information contained therein only to Licensee's
officers and employees who have a "need-to-know" in order for Licensee to
perform its obligations under this Agreement, (ii) to cause Licensee's officers
and employees to execute appropriate confidentiality or non-disclosure
agreements with respect to the Database and the information contained therein,
and (iii) that Licensee shall in any event be responsible for any breach of this
Agreement by Licensee's officers and employees. Upon termination or expiration
of this Agreement, Licensee shall, at Licensee's option, either return to
Licensor, or destroy, all copies of the Database in its possession, together
with all excerpts of, or extracts from, the Database, and shall deliver to
Licensor a certificate executed by a senior officer of Licensee attesting to
such return or destruction.
14. Title to Database. Licensee acknowledges that Licensor has expended
considerable time, effort and funds to compile the Database and Licensee agrees
that, as between Licensor and Licensee, all right, title, and interest in and to
the Database and all information contained therein, including all copyrights and
other intellectual property inherent therein, or appurtenant thereto, are, and
at all times shall remain, the sole and exclusive property of Licensor. Except
for the License, nothing contained in this Agreement shall confer any right,
title or interest in the Database or any information contained therein and no
other license is granted to Licensee hereunder, whether by estoppel or
otherwise. To the extent Licensee acquires any rights to the Database or any
information contained therein, Licensee agrees to execute, and to cause its
employees and agents to execute, any assignment agreements or other instruments
assigning, transferring and conveying all right, title and interest in and to
the Database and the information contained therein, including copyrights and
other intellectual property, to Licensor.
15. Assignment. Neither this Agreement nor the License granted hereunder may be
assigned, in whole or in part, by Licensee without the prior written consent of
the Licensor. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person or entity, other than the parties, and their
permitted successors and assigns hereto, any rights or remedies under or by
reason of this Agreement unless so stated to the contrary. Licensee's right to
use the Database and the information contained therein, is personal to, and
non-assignable by, Licensee.
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16. Taxes. Licensee shall pay all taxes (excluding those based upon Licensor's
income), fees and assessments now or hereafter imposed by any governmental
authority with respect to the License.
17. Audit. Licensee shall maintain current, accurate and complete books and
records regarding the Database and the use thereof during the Term and for a
minimum of six (6) years following termination or expiration of this Agreement.
At any time during the Term, and thereafter for a period of three (3) years,
Licensor or its designees may examine, inspect and audit such books and records
and any source documents pertaining thereto for the purpose of verifying
Licensee's compliance with this Agreement. Such examination, inspection or audit
shall take place during normal business hours upon not less than two (2) days'
prior notice. Licensor may, during the course of such audit, make such copies
and extracts of Licensee's books and records as Licensor may deem appropriate to
the extent they relate to the Database, use thereof, calculation of the License
Fee or compliance with this Agreement. Licensee agrees to fully cooperate, and
cause its employees and agents to fully cooperate, with Licensor and/or its
designees in the conduct of such audit. In the event that after such audit,
Licensor disputes any calculation of the License Fee (the "Disputed Amount")
previously made by Licensee, Licensor shall deliver a written notice of such
dispute to Licensee (the "Dispute Notice"). If Licensor and Licensee are unable
to resolve such dispute within thirty (30) days following the delivery of the
Dispute Notice, Licensor and Licensee shall immediately submit the dispute for
resolution to a nationally recognized public accounting firm to be mutually
agreed upon by Licensor and Licensee (the "Accounting Firm"). In connection with
the resolution of any such dispute, the Accounting Firm shall have reasonable
access during normal business hours to all of Licensee's books, records,
facilities and personnel reasonably necessary to perform its functions
hereunder. The decision of the Accounting Firm with respect to any such dispute
shall be final, conclusive and binding upon the parties. If the Accounting Firm
determines that Licensee's calculation of the License Fee is understated, then
Licensee shall pay to Licensor such understated amount (the "Adjusted-Amount-')
within fifteen (15) days of the Accounting Firm's determination. If the
Accounting Firm determines that Licensee's calculation of the License Fee is
understated by more than the lesser of (i) $5,000 and (ii) five percent (5%) of
the Disputed Amount, then, in, addition to the Adjusted Amount, Licensee shall
pay the entire cost of the Accounting Firm's engagement and the costs of
Licensee's inspection of the books and records of Licensee simultaneously with
the payment of the Adjusted Amount. If the Accounting Firm determines that
Licensee's calculation of License Fee is understated by more than the lesser of
(i) $10,000 and (ii) ten percent (10%) of the Disputed Amount, then (x) Licensee
shall pay to Licensor, in addition to the Adjusted Amount, a penalty equal to
ten (10) times the Adjusted Amount along with the costs and expenses set forth
in the preceding sentence. In all other events, the cost of the Accounting
Firm's engagement and the costs of Licensor' inspection of the books and records
of Licensee shall be borne by Licensor. Nothing in this Section 17 will be
construed as prohibiting Licensor from pursuing any other remedies available to
it for any breach of this Agreement, including the recovery of money damages.
18. Uncontrollable Events. Licensor shall not be responsible, liable or deemed
in breach or default hereof for any cessation or delay in the performance of any
of its obligations hereunder due to causes beyond its control including, but not
limited to, fire, accident, labor difficulty,
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strike, riot, civil commotion, acts of God, equipment or system failure or
changes in any federal, state or local laws, rules, regulations or ordinances
(or the interpretation thereof by Licensor).
19. Independent Contractors. The relationship of Licensor to Licensee shall be
solely that of an independent contractor. Licensor and Licensee acknowledge and
agree that neither Licensor nor Licensee is an agent, partner or joint venturer
of the other. Neither Licensor nor Licensee shall have or hold itself out as
having the right or authority to assume or create any obligation or
responsibility, whether expressed or implied, on behalf of or in the name of the
other party, except with the express written consent of the other party.
20. Notices. Any notice provided for in this Agreement shall be in writing and
shall be deemed to have been duly delivered (i) on the date of personal
delivery, (ii) three (3) days after mailing, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or (iii) on the
date of delivery, if sent by an overnight delivery service, in each case to the
following addresses:
To Licensor:
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Xxxxx Information Services Co.
c/x Xxxxx Media Company
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: President
To Licensee:
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XxxxxxXxxx.xxx, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Either party may at any time give notice in writing to the other party of any
change of address.
21. Survival. The following shall survive the expiration or earlier termination
of this Agreement: (i) each party's accrued rights and obligations (including,
without limitation, Licensee's obligation to pay all accrued License Fees) as of
the date of expiration or termination, (ii) Sections 6-14, 16, 17, and 20-30,
and (iii) any other provision of this Agreement which is expressly or by
implication intended to come into force or continue in force on or after the
expiration or earlier termination of this Agreement.
22. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Delaware, without giving effect to any choice or conflict of law
provision or rule thereof.
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23. Equitable Remedies. Licensee acknowledges and agrees that irreparable injury
will result to Licensor if Licensee breaches any of the terms and conditions of
this Agreement and that, in the event of any such actual or threatened breach,
Licensor will have no adequate remedy at law. Licensee accordingly agrees that,
in the event of any actual or threatened breach by Licensee of any of the terms
and conditions of this Agreement, Licensor will be entitled to immediate
injunctive and other equitable relief, without the posting of a bond or other
security and without the necessity of showing actual monetary damages. Nothing
in this Section 23 will be construed as prohibiting Licensor from pursuing any
other remedies available to it for any such breach or threatened breach,
including the recovery of money damages.
24. Complete Agreement. This Agreement constitutes the sole and exclusive
statement of the terms and conditions relating to the subject matter hereof and
supersedes all prior or contemporaneous oral and written statements of any kind
whatsoever made by the parties hereto with respect to such subject matter.
25. Counterparts. This Agreement may be executed in two counterparts, including
facsimile counterparts, each of which shall be deemed an original and both of
which together shall constitute one and the same instrument.
26. Amendment. No modification or amendment of this Agreement shall be binding
on the parties hereto unless agreed to in writing referring specifically to this
Agreement and signed by the duly authorized representatives of both of the
parties.
27. Waiver. None of the remedies provided for in this Agreement is intended to
be exclusive, and each party shall have available all other remedies now or
hereinafter existing at law or in equity or by statute or otherwise. The delay
or failure of either party hereto to force any of its rights hereunder shall not
act as a waiver of any such right. No waiver shall be effective unless evidenced
by an instrument in writing signed by the party against whom enforcement of such
waiver is sought, nor shall the waiver of any breach hereunder be deemed a
waiver of any subsequent breach of that or any other provision.
28. Successors Bound. This Agreement shall inure to the benefit of and be
binding upon the parties' respective successors and assigns.
29. Headings. Paragraph headings used in this Agreement are for convenience of
reference only, are not part of this Agreement, and shall not be used in
interpreting it,
30. Other. Where appropriate, singular terms used in this Agreement include the
plural, and pronouns of one gender include all genders,
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IN WITNESS WHEREOF, each party hereto has caused this Database License
Agreement to be executed by its duly authorized representative as of the date
first written above.
LICENSEE: LICENSOR:
XXXXXXXXXX.XXX, INC. XXXXX INFORMATION SERVICES CO.
By: /s/ Xxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxx Xxxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: President & CEO Title: EVP
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SCHEDULE A
[CONFIDENTIAL TREATMENT REQUESTED BY LOCATEPLUS HOLDINGS CORPORATION]
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