EXHIBIT 10.4
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"CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION."
LICENSE AGREEMENT
(this "Agreement")
Dated: March 31, 1999
Between
WORLDWIDE INFORMATION, INC. FIRST AMERICAN REAL ESTATE
- And - SOLUTIONS, LLC,
a corporation within the state of a California limited liability
Massachusetts company.
("Licensee") ("FARES")
RECITALS
1. FARES maintains a database of information gathered from real estate public
records and other sources for various counties in the United States.
2. The parties desire that FARES grant Licensee a license to use certain
Licensed Data as provided herein.
NOW THEREFORE In consideration of the promises and other good and valuable
consideration had and received, FARES and licensee hereby agree as follows:
1. DEFINITIONS
In addition to the terms defined above, the following terms will have the
meanings specified below when used in this Agreement with initial capital
letters:
(a) Fees: As defined in Section 4.1 hereof.
(b) Licensed Data: The data described in Appendix A, Part A, hereto.
(c) Permitted Applications: The applications set forth in Appendix A,
Part B hereto.
(d) Processor: An entity independent of Licensee which processes data on
behalf of Licensee.
(e) Term; Initial Term: The Initial Term and any Renewal Term. Subject
to the termination provisions of Article 7, the Initial Term of this
Agreement ("Initial Term") is the period described in Appendix A,
Part C hereto. This Agreement shall have no Renewal Term unless
otherwise specified in Appendix A, Part C.
(f) Sublicensing: The redistribution of data, in whole or in part, alone
or in combination with other products or services Licensee may
offer, through any individual or company which has been licensed as a
distributor of the data by FARES. This includes, but is not limited
to, distribution of the data on magnetic media, by electronic
transmission, or through gateway relationships linking on-line
services.
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2. GRANT OF LICENSE
2.1 License: Subject to the reservations of rights and exceptions set forth
herein, FARES hereby grants Licensee during the Term the non-exclusive right to
use the Licensed Data only for the Permitted Applications, with no right to
provide such data to any other party or to sublicense such data unless otherwise
provided in Appendix A, Part B. Except as expressly provided in the limited
license provided herein. FARES reserves all rights in and to: (i) the Licensed
Data; (ii) all underlying data, compilations and information gathered, compiled
or published by FARES in connection with its creation and preparation of the
Licensed Data; (iii) all other data, compilations and publications created,
prepared or authored by FARES not consisting of the Licensed Data, and (iv) all
copyrights and other proprietary rights in any of the foregoing.
3. DELIVERY OF DATA AND FORMAT
3.1 Initial File: FARES will deliver to Licensee one copy of the Licensed Data
on or before the date specified in Appendix A, Part D.
3.2 Updates: FARES will provide Licensee with an update of the Licensed Data in
accordance with the schedule set forth in Appendix A, Part D.
3.3 Shipping Address: FARES will ship the initial file and all updates to
Licensee at the address specified in Appendix A, Part D.
3.4 Format and Layout: FARES will furnish the Licensed Data on magnetic tape in
IBM compatible format, and In the record layout sex forth on Appendix B.
4. FEES
4.1 Consideration: In consideration of the rights granted Licensee hereunder,
Licensee will pay FARES the Fees described in Appendix A, Part E hereto
("Fees").
4.2 Report and Payment of Royalties: If the Fees include royalty payments, the
following provisions will apply:
(a) Report: Within thirty (30) days after the end of each calendar month,
Licensee will provide FARES a detailed and accurate statement of the calculation
of all such royalty payments earned with respect to such month, together with
payment thereof.
(b) Audit: Licensee will maintain current, accurate and complete books and
records relating to its usage of the Licensed Data and all payments due FARES
hereunder. FARES or its designee (which may be a certified public accountant
chosen by FARES) may, at any time while this Agreement is in effect and for a
period of six months thereafter, require Licensee to provide a certified
statement prepared by a certified public accountant, at Licensee's expense,
verifying the accuracy of records relating to Licensee's usage of the Licensed
Data and all payments due FARES. If such certified statement indicates any
errors in Licensee's records, FARES, or its designee, may, on reasonable advance
notice to Licensee and during reasonable business hours, examine, inspect and
audit such books and records and any source documents pertaining thereto far the
limited purpose of verifying the accuracy of Licensee's reports and the amounts
due hereunder, FARES, or Its designee, may, during the course of such
examination, review or audit and make such copies and/or extracts of Licensee's
books and records relating to Licensee's usage of the Licensed Data. FARES shall
treat all such information reviewed during an audit as confidential and will not
disclose same to any third party (excluding FARES' designee) without the written
consent of Licensee.
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4.3 Taxes: In addition to the Fees, Licensee shall pay all applicable taxes
(excluding those based upon FARES' net income), fees and assessments now or
hereafter imposed by any governmental authority with respect to the data
licensed hereunder.
5. INTELLECTUAL PROPERTY; OWNERSHIP; CONFIDENTIALITY
5.1 Acknowledgment: Licensee acknowledges FARES' valuable rights in and to the
compilations of the Licensed Data and the data those compilations contain,
including FARES' copyrights and other proprietary rights therein.
5.2 Restriction on Copying, Disclosure, Commingling and Use: Without FARES'
prior written consent, Licensee will not:
(a) disclose any portion of the Licensed Data in any manner other than as
expressly authorized in this Agreement;
(b) provide or cause to be provided data including the Licensed data to a
Processor unless such Processor enters into a certification in the form of
Appendix C acknowledging that Processor will not use the Licensed data except
for fulfilling its processing obligations to Licensee;
(c) use, merge, commingle or mix the Licensed Data or any portion thereof with
other data from any other source without FARES' prior written consent;
(d) make any copies of the Licensed Data in any form except for two (2)
authorized back-up copies;
(e) transfer the Licensed Data to any other party except as expressly permitted
herein; or
(f) decompile, disassemble or reverse engineer, or cause or allow any third
party to decompile, disassemble or reverse engineer any of the Licensed Data or
the software code or any computer software program allowing for the retrieval
and/or access of such Data.
5.3 Contractual Restrictions on End Users: If Appendix A, Part B indicates that
the Permitted Applications include providing the data to end-users. Licensee by
contract will impose the following restrictions on each end-user to which
Licensee provides Licensed Data:
(i) Such party shall use the Licensed Data only for the purposes described
for end-users in Appendix A, Part B and shall not use the Licensed Data, or any
portion thereof, to build or enhance any data base in any form for resale or
redistribution; and
(ii) Such party shall not provide the Licensed Data, or any portion
thereof, or derivative products or services produced from the Licensed Data, in
any form to any other person without the prior written approval of FARES.
(iii) Such party shall not publish, broadcast or otherwise make public the
owner's name, address, property value, location or characteristics of any
individual property owner, nor permit any other party to make such disclosure
without the express written consent of said property owner and FARES.
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This Section 5.3 is not intended to authorize the Licensee to provide the
Licensed Data to end-users unless Appendix A, Part B so provides.
5.4 Contractual Restrictions on Sublicensees: If Appendix A, Part B-4 indicates
that the Permitted Applications include the right to sublicense the Licensed
Data, any such sublicense shall contain restrictions on such sublicensee's use
of the Licensed Data comparable to the restrictions imposed on Licensee by this
Article 5 and any additional restrictions set forth in Appendix A, Part B-4;
(ii) Licensee will require such sublicensee to include in any agreement for the
sale of Licensed Data restrictions on third parties comparable to the
restrictions set forth or described in Section 5.3; and (iii) such sublicensee
shall have no right to further sublicense the Licensed Data. FARES may require
as a condition to its approval that a sublicensee obtain a performance bond in
favor of FARES to assure such subliconsee's compliance with the restrictions set
forth herein. This Section 5.4 is not intended to authorize the Licensee to
sublicense the Licensed Data unless Appendix A, Part B-4 so provides.
5.5 Trademarks, Copyrights Etc.: Neither party will use, or permit their
respective employees, agents and subcontractors to use, the trademarks, service
marks, copyrighted material, logos, names, or any other proprietary designations
of the other party, or the other party's affiliates, whether registered or
unregistered, without such other party's prior written consent. Notwithstanding
the preceding, Licensee shall be responsible at all times for the entire
supervision, management and control of the Licensed Data incorporated into
Licensee's own computer system(s) and under Licensee's control, including
without limitation all responsibility for design and maintenance of proper
machine configuration, audit controls, operating methods, back-up plans,
security, insurance, maintenance and all other activities necessary for
effective utilization of the system as well as protection of proprietary FARES
interest in the Licensed Data. Any possession or use of the Licensed Data not
expressly authorized under this Agreement is strictly prohibited, nor may any
use not expressly authorized under this Agreement be waived by FARES except in a
written authorization, Licensee acknowledges that neither this Agreement nor the
conduct of the parties subsequent to the execution thereof shall be construed to
create a grant, implied or otherwise, of collateral rights In this Agreement,
nor can such be granted except by express written grant of FARES.
5.6 Return of Database: Upon termination of this Agreement, Licensee shall
return or cause to be returned to FARES, or pursuant to FARES' instructions
destroy, all copies of the Licensed Data in its possession (or provided by it to
any other party), together with all excerpts of or extracts from said Licensed
Data along with all reference material, and supporting documentation furnished
to Licensee by FARES. At the time of such return or destruction. Licensee shall
deliver to FARES a certificate executed by an officer of Licensee attesting to
the fact that all such copies of, excerpts of and extracts from the Licensed
Data have been returned to FARES or destroyed as provided for hereunder.
5.7 Further Acknowledgement: The mere act of running a diagnostic, while not
expressly prohibited by FARES, shall in no way be construed to be a grant of
further license by FARES to Licensee in the Licensed Data or FARES software
beyond that expressed in this license.
5.8 Property; The software products and Licensed Data information and dial-up
access provided by FARES are owned and copyrighted by FARES. No ownership rights
beyond the License granted herein are conferred to any FARES product or
information, and, except for the License provided, FARES reserves all rights in
and to the Licensed Data and related software, including but not limited to the
exclusive rights under copyright and the right to grant further licenses. The
Licensed Data is for the sole use within Licensee's own organization, Licensee
shall not lend or transfer or copy the Licensed data, for any purpose, (except
as detailed in 5.2(d), above), without prior written consent from FARES. Title
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to all copies OF the Licensed Data and any software related thereto, including
back-up copies, shall remain exclusively with FARES, and no rights whatsoever In
such title may be further waived or granted by any employee or agent of FARES,
including, but not limited to, those rights granted by the 1976 Copyright Act,
as amended (17 U.S.C.ss.101,et seq.). Licensee further assumes all liability and
is financially responsible for any unauthorized use of the Licensed Data and any
software related thereto.
6. WARRANTIES AND INDEMNIFICATION
6.1 FARES WARRANTIES: FARES WARRANTS TO LICENSEE THAT FARES HAS THE RIGHT TO
LICENSE TO LICENSEE THE INFORMATION IN THE LICENSED DATA. FARES DOES NOT
GUARANTEE THE ACCURACY OR RELIABILITY OF SUCH INFORMATION. SUCH WARRANTY IS THE
ONLY WARRANTY FARES HAS GIVEN LICENSEE WITH RESPECT TO THE LICENSED DATA, AND
SUCH WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 LIMITATION OF LIABILITY: NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, UNDER NO CIRCUMSTANCES WILL FARES HAVE ANY OBLIGATION OIL LIABILITY
TO LICENSEE FOR ANY CLAIM, INJURY, OR DAMAGE RELATING TO, ARISING OUT OF, OR
RESULTING FROM THE INACCURACY OF THE INFORMATION USED TO COMPILE THE LICENSED
DATA. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO
CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY TO THE OTHER
HEREUNDER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER
PARTY, REGARDLESS OF HOW SUCH DAMAGES ARISE AND OF WHETHER OR NOT A PARTY WAS
ADVISED SUCH DAMAGES MIGHT ARISE.
6.3 Other Parties; Indemnification by Licensee: Licensee will include provisions
consistent with those set forth in Sections 6.1 and 6.2 in any agreement
pursuant to which Licensee provides the Licensed Data to any other party.
Licensee will indemnify, defend and hold harmless FARES. its employees, agents
and representatives from and against any losses, claims, suits, costs anchor
expenses, including attorney fees, arising out of any claim by any third party
arising out of Licensee's use of, providing of, or sublicensing of, the Licensed
Data.
6.4 Limitation Of Remedy. FARES TOTAL LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY
UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO GENERAL MONEY DAMAGES NOT
EXCEEDING ANY AMOUNTS RAID BY LICENSEE UNDER THE CURRENT TERM OF THE AGREEMENT.
ADDITIONALLY, ANY ACTION ARISING UNDER THIS AGREEMENT OR BECAUSE OF ITS BREACH
MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
HOWEVER, BECAUSE OF THE UNIQUE AND PROPRIETARY NATURE OF THE LICENSED DATA,
FARES SHALL BE ENTITLED TO MONETARY AS WELL AS EQUITABLE RELIEF, INCLUDING
WITHOUT LIMITATION INJUNCTIVE RELIEF, IN THE EVENT OF DEFAULT OIL BREACH BY
LICENSEE.
6.5 Indemnification: LICENSEE AGREES TO INDEMNIFY AND HOLD FARES HARMLESS FROM
AND AGAINST ALL CLAIMS OF THIRD PARTIES ARISING OUT OF OR RELATED TO THE USE OF
THE LICENSED DATA BY ANY THIRD PARTY, INCLUDING THE END-USER.
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7. AMENDMENTS, TERMINATION, AND WAIVER
7.1 Amendments: This Agreement may be amended at any time, but only by written
instrument signed by both parties which refers specifically to this Agreement.
7.2 Mutual Termination: This Agreement may be terminated by mutual agreement at
any time, but only by A written instrument signed by both parties specifying the
date and time as of which the Term ends.
7.3 Unilateral Termination: This Agreement may be terminated unilaterally by
either party, but only if and when (a) the other party has breached a material
obligation under this Agreement, (b) the party desiring to terminate has
delivered to the breaching party a written demand that the breaching party cure
the breach, (c) the breaching party has failed to cure such breach within five
(5) days (in the case of the nonpayment of fees or royalties) or sixty (60) days
(in the case of any other breach) after receipt of the demand, and (d) the
party desiring to terminate delivers to the breaching party written notice of
termination. Licensee shall be deemed to have breached a material obligation
hereunder if it (a) fails to perform its obligations hereunder in accordance
with the terms hereof, or breaches any of the covenants, warranties or
representations hereunder, (b) fails to provide FARES any required statement of
account or make any payment hereunder as and when such statement is to be
provided or such payment is to be made, or (c) becomes insolvent, makes an
assignment for the benefit of creditors, suspends its business operations, files
a voluntary petition of bankruptcy under federal or state bankruptcy statutes or
has filed against it an involuntary petition in bankruptcy which is not
dismissed or withdrawn within thirty (30) days of the filing thereof.
7.4 Discontinuation: Notwithstanding anything herein to the contrary, FARES may
discontinue providing Licensed Data for any geographic location which prohibits
FARES' providing of such data in accordance with this Agreement, or for any
geographic location as to which FARES has discontinued the collection of data
for its own business.
8. MISCELLANEOUS
8.1 Advertising: Licensee will not disclose FARES as a data source to any third
party, except as may be authorized in writing by FARES or required by federal,
state or local government regulations. Where such disclosure is to be made
without advance authorization, Licensee will transmit notice of intent to
disclose information to FARES five (5) days prior to the release of any
information by Licensee.
8.2 Waivers. Either party may at any time waive compliance by the other with any
covenants or conditions contained in this Agreement, but only by written
instrument executed by the party waiving such compliance. No such waiver,
however, shall be deemed to constitute the waiver of any such covenant or
condition in any other circumstance or the waiver of any other covenant or
condition.
8.3 Status: The parties will perform all services hereunder AS independent
contractors. Nothing contained In this Agreement shall be deemed to create any
association, partnership, joint venture, or relationship of principal and agent
or master and servant between the parties.
8.4 Excusable Delays: No party shall be liable for any delay or failure in its
performance of any of the acts required by this Agreement when such delay or
failure arises for reasons beyond the reasonable control of such party. The time
for performance of any act delayed by such causes shall be postponed for a
period equal to the delay. Provided, however, that the party so affected shall
give prompt notice to the other party of such delay. The party so affected,
however, shall use its best efforts to avoid or remove such causes of
nonperformance and to complete performance of the act delayed, whenever such
causes are removed.
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8.5 Governing Law: This Agreement will be governed by and construed in
accordance with the internal substantive laws of the State of California, except
where the substantive laws of another jurisdiction mandatorily apply.
8.6 Severability: If any provision of this Agreement shall finally be determined
to be unlawful. then such provision shall be deemed to be severed from this
Agreement and every other provision of this Agreement shall remain in full force
and effect.
8.7 Assignment: This Agreement shall be binding upon and inure to the benefit of
the successors of each of the parties hereto, but shall not be assignable by
either party without the prior written consent of the other.
8.8 No Third Parties: Neither this Agreement nor any provisions set forth herein
is Intended to, or shall, create any rights in or confer any benefits upon any
person other than the parties hereto.
8.9 Incorporation by Reference: The Appendices to this Agreement constitute
integral parts of this Agreement and are hereby incorporated into this Agreement
by this reference.
8.10 Notices: All notices, requests and other communications hereunder shall be
in writing and shall be deemed to have been duly given at the time of receipt if
delivered by hand or communicated by electronic transmission, or, if mailed,
three (3) days after mailing registered or certified mail, return receipt
requested, with postage prepaid (i) if to FARES, then to: FARES, 0000 X. Xx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: General Manager, with a copy
to the person indicated below FARES' signature; or (ii) if to Licensee, to the
address specified below Licensee's signature, provided, however, that if either
party shall have designated a different address by notice to the other given as
provided above, then to the last address so designated.
8.11 Confidentiality: Each party agrees that it will not disclose any
"Confidential Information" of the other party. "Confidential Information" means
any information which the other party marks "Confidential" or if not disclosed
in writing, identifies as confidential at the time of disclosure and confirms
thereafter in writing within 30 days of such disclosure. Confidential
Information does not include any information which was either in the public
domain or already known to the recipient at the time of disclosure,
independently developed by the recipient, disclosed to recipient by a third
party without breach of an obligation of confidentiality or disclosed pursuant
to a court order.
8.12 Counterparts: More than one counterpart of this Agreement may be executed
by the parties hereto, and each fully executed counterpart shall be deemed an
original without production of the others.
8.13 Other Agreements: Licensee certifies that its use of the Licensed Data will
not violate any agreement to which Licensee is a party.
8.14 Complete Agreement: This Agreement sets forth the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes 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.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by its duty authorized representatives.
FIRST AMERICAN REAL ESTATE SOLUTIONS WORLDWIDE INFORMATION, INC.
A division of First American Real Estate a corporation within the state of
Solutions L.L.C (a California limited Massachusetts
Liability Company)
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx Xxx Xxxxxxxxx
Title: Division President Title: President & CEO
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Date: 11/3/99 Date: 10/29/99
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A copy of each notice to FARES
should be sent to: Address for Notice to Licensee:
President President
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FARES WORLDWIDE INFORMATION, INC.
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0000 X. Xx Xxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 000X
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Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
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Telefax: (000) 000-0000
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Attention:
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APPENDIX A
[CONFIDENTIAL TREATMENT REQUESTED BY LOCATEPLUS HOLDINGS CORPORATION]
