DATA LICENSE AGREEMENT
This Data License Agreement ("Agreement") is DATED as of the 1st day of
March, 1999 ("Effective Date") by AND BETWEEN ACXIOM CORPORATION ("ACXIOM"),
A DELAWARE CORPORATION, 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx
00000-0000 and Global Business Information Directory ("Licensee"), a
Delaware corporation, Xxxxx 000, 000-0000 XxXxx Xxx., Xxxxxxx, XX X0X 0X0.
WHEREAS, Acxiom procures, compiles and maintains a proprietary computerized
database composed, inter alia, of names, addresses and telephone numbers
derived from white page telephone directories and other sources of
information more particularly described in Exhibit A attached hereto and
made a part hereof ("Data"); and
WHEREAS, Licensee desires to license the Data upon the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the premises set forth above and the
mutual promises, agreements and conditions stated herein, the parties agree
as follows:
1. License. Acxiom hereby grants and Licensee hereby accepts a
non-transferable, nonexclusive license to use the Data in accordance with
the terms and conditions hereof.
2. Term. The initial term ("Initial Term") of the Agreement shall be
one year and shall commence on the Effective Date.
3. Renewal/Termination. (a) The Agreement shall be automatically renewed at
the end of the Initial Term for subsequent terms (the Initial Term and any
subsequent terms are collectively referred to herein as the "Term") of one
(1) year each and shall continue in effect thereafter until either party
shall give the other ninety (90) days prior written notice of termination.
Notwithstanding the foregoing, either party may terminate the Agreement
immediately in the event the other party is in default hereunder and fails
to cure such default within forty-five (45) days of written notice from the
other party specifying the nature of such default.
(b) Upon termination of this Agreement, the following shall occur:
(i) Acxiom shall cease to provide the Data to Licensee;
(ii) Licensee shall pay Acxiom for all sums, if any, due
hereunder within thirty (30)days of the effective date of termination;
and
(iii) Unless otherwise provided herein, Licensee shall promptly return
to Acxiom all tapes, copies, partial copies and any other documentation,
materials, or other information evidencing the Data, together with a
written certification that all of the Data has been returned or, in
the alternative, destroyed.
(C) In the event that legislation, governmental regulations or
judicial rulings require that Acxiom cease providing the Data, Acxiom may
terminate this Agreement upon the effective date of such legislation,
regulations or rulings.
4. Delivery of the Data. Acxiom shall deliver the Data to Licensee
on the type of media, in the format, on the delivery date and containing
those data elements specified in Exhibit A. In addition,
Acxiom shall deliver to Licensee periodic updates ("Updates") to the Data in
accordance with the schedule set forth on Exhibit A.
5. Restrictions Upon Use of Data. Licensee hereby agrees that it
will hold and use the Data strictly in accordance with the following
conditions, unless otherwise agreed in writing:
(a) Except as otherwise provided in Exhibit A, the Data shall be
received, held and possessed by Licensee only at the address set forth
above, and at no other location.
(b) Licensee shall not use the Data as part of any CD-ROM product or
resell the Data or technology in any way except as provided in this Agreement.
(C) The Data is licensed only to Licensee, and neither Licensee nor
its customers may distribute the Data, or any subset thereof, other than as
provided in Exhibit A.
(d) Licensee will not knowingly allow its customers to use the Data as part
of any interactive on-line, CDROM, or other derivative product. Licensee
will establish reasonable precautions to prevent such unauthorized use;
provided, however, Licensee shall not be in breach of this Agreement if it
promptly notifies Acxiom in writing any unauthorized use of which it becomes
aware and reasonably cooperates with Acxiom to prevent any further
unauthorized use.
(e) If Licensee displays or sells the Data on the Internet, Licensee agrees
to include the following statement regarding copyright and unauthorized use,
which statement shall be prominently displayed on such Web site: "This
information is proprietary to Acxiom Corporation and is protected under U.S.
copyright law and international treaty provisions. This information is
licensed for your personal or professional use and may not be resold or
provided to others. You may not distribute, sell, rent, sublicense, or lease
such information, in whole or in part to any third party; and you will not
make such Acxiom information available in whole or in part to any other user
in any networked or time-sharing environment, or transfer the information in
whole or in part to any computer other than the PC used to access this
information."
6. Permitted Uses of Data. The Data shall only be used by Licensee
in the ways set forth in Exhibit A, unless otherwise agreed in writing.
7. License Fees. Licensee agrees to pay license fees ("License
Fees") to Acxiom for the use of the Data in accordance with the terms set
forth in Exhibit A.
8. Right to Audit. Licensee agrees that at all times it shall maintain
current, accurate and complete books and records relating to its usage of
the Data and any payments due Acxiom derived therefrom. Licensee agrees that
Acxiom, or any designee of Acxiom, shall have the right at any time
following the Effective Date of this Agreement to examine, inspect, audit,
review and copy or make extracts from all such books, records and any source
documents used in the preparation thereof during normal business hours upon
written notice to Licensee at least three (3) business days prior to the
commencement of any such examination, inspection, review or audit. Such
audit shall be strictly limited to those books and records which
specifically relate to information pertinent to the use of the Data.
9. Title to Data. The parties expressly acknowledge and agree that
title to the Data shall at all times remain exclusively in Acxiom.
10. Confidential. The parties agree that the terms and conditions of this
Agreement, including all Exhibits hereto, and any policies, business
practices, plans and methods not in the public domain which may be known or
disclosed by either party to the other as a result of this Agreement will be
held in confidence and not disclosed to any third party for any reason.
11. Injunctive Relief. Licensee hereby acknowledges that the Data has been
developed and created at great time and expense and that Acxiom has a
proprietary interest therein. Licensee further acknowledges that Acxiom may
suffer great harm if Licensee misappropriates the Data. Accordingly,
Licensee agrees to take reasonable precautions to prevent the mis-use of the
Data. Licensee's obligations under this Section shall survive any
termination of this Agreement. Acxiom may seek injunctive or other equitable
relief against the breach or threatened breach of this Section in addition
to any other legal remedies which may be available.
12. Warranties. (a) Acxiom warrants that the Data will be as current,
accurate and complete as possible using the source data, compilation and
data processing methods normally employed by Acxiom in the ordinary course
of its business; provided, however, there is no warranty that the Data is
error-free. Acxiom further warrants that the compilation of and transmittal
of the Data to Licensee is not in violation of any law, statute or other
governmental regulation; and that Acxiom has full power and authority to
enter into this Agreement.
(b) Licensee represents and warrants to Acxiom that it has full power and
authority to enter into this Agreement; that the execution, delivery and
performance by Licensee of this Agreement will not violate any law, statute
or other governmental regulation; and that Licensee's use of the Data will
comply with all privacy, data protection, telemarketing and any other laws,
statutes and governmental regulations applicable to such use of the Data.
(C) EXCEPT AS STATED IN SUBSECTIONS (a) AND (b) ABOVE, THERE ARE NO OTHER
WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A, PARTICULAR PURPOSE.
13. Remedies. Acxiom's sole obligation and Licensee's sole remedy under the
limited warranty set forth in Section 12(a) above is strictly and
exclusively limited to the prompt correction of any errors in the Data which
are made known to Acxiom by written notice from Licensee describing such
errors in sufficient detail; provided, however, Licensee acknowledges that
some errors in the Data may be the result of errors contained in the source
data, in which case Acxiom shall not be obligated to correct such errors.
Notwithstanding the foregoing, Acxiom reserves the right to satisfy its
warranty obligations in full by refunding a pro rata portion of the fee paid
by Licensee for the particular data which is in error.
14. Third-Party Indemnify. (a) Licensee agrees to indemnify and hold Acxiom
harmless from and against all direct costs, losses, damages, liabilities and
expenses, including reasonable attorneys' fees (which may include the
allocable cost of in-house counsel), attributable to any claim made by a
third party arising out of Licensee's use of the Data and/or its performance
of its obligations under this Agreement, provided that (I) Acxiom gives
Licensee prompt written notice of any such claim of which Acxiom has
knowledge; and (ii) Licensee is given full control over the defense of such
claim and receives the full cooperation of Acxiom in the defense thereof.
(b) Acxiom agrees to indemnify and hold Licensee harmless from and
against all direct costs, losses, damages, liabilities and expenses,
including reasonable attorneys' fees, attributable to any
claim made by a third party that the use of the Data infringes upon any
proprietary right of such third party, provided that (1) Licensee gives
Acxiom prompt written notice of any such claim of which Licensee has
knowledge; and (2) Acxiom is given full control over the defense of such
claim and receives the full cooperation of Licensee in the defense thereof.
Acxiom shall have no obligation under this Section to indemnify or defend
Licensee against a lawsuit or claim of infringement to the extent any such
lawsuit or claim results from (1) other material, including information,
data or software prepared by Licensee, which is combined with or
incorporated into the Data; or (2) any substantial changes or alterations to
the Data made by Licensee.
15. Limitation of Liabilitv. ACXIOM SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER
THEORY. Any cause of action arising from or in connection with this
Agreement shall be asserted within one (1) year of the date upon which such
cause of action accrued, or the date upon which the complaining party should
have reasonably discovered the existence of such cause of action, whichever
is later.
16. Public. All media releases, public announcements and any form of
advertising or sales promotion by Licensee or its agents relating to this
Agreement or the use of the Data shall be subject to prior written approval
of Acxiom. Acxiom may include Licensee on its customer list in presentations
made to shareholders, customers and stock analysts, provided no
representation, express or implied, is or will be made as to Licensee's
opinion of Acxiom's services and/or products (including but not limited to
by way of predictions or projections of future business).
17. Applicable Law. The Agreement shall be governed and construed in
accordance with the laws of the State of Arkansas, without regard to
conflicts of law principles, and shall benefit and be binding upon the
parties hereto and their respective successors and assigns.
18. Entire Agreement. The Agreement, together with the Exhibit(s) attached
hereto, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes any and all written or oral prior
agreements and understandings between the parties.
19. Modification / Severance / Waiver. The Agreement, and any of the
Exhibit(s) attached hereto, may only be amended by a separate writing signed
by both parties. If any one or more of the provisions of the Agreement shall
for any reason be held to be invalid, illegal or unenforceable, the same
shall not affect any, of the other portions of the Agreement. Failure or
delay by either party in exercising any right hereunder shall not operate as
a waiver of such right.
20. Assignment. Licensee may not assign its rights and obligations
hereunder without the prior written consent of Acxiom.
21. Force Majeure/ Neither party shall be liable for any losses arising out
of the delay or interruption of its performance of obligations under the
Agreement due to any act of God, act of governmental authority, act of
public enemy, war, riot, flood, civil commotion, insurrection, severe
weather conditions, or any other cause beyond the reasonable control of the
party delayed.
22. Notices. Any notice or other communication required hereunder
shall be made in writing and addressed to the parties at their addresses set
forth above.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date
set forth above.
ACXIOM CORPORATION GLOBAL BUSINESS INFORMATION DIRECTORY
BY: /s/Xxxxxxx Xxxxxxx BY: /s/Xxxxxxx X. Xxxxxxxxxx
XXXXXXX XXXXXXX, BUL XXXXXXX X. XXXXXXXXXX, PRES./CEO
EXHIBIT A
to the Data License Agreement
between Acxiom Corporation and
Licensee
A. DESCRIPTION OF DATA/DATA ELEMENTS:
To include approximately 18,000,000 U.S. and Canada business white and
yellow page listings (16 million U.S. and 2 million Canadian). Data includes
business name, xxxxxxx, xxxx, xxxxx, xxxxxxxxxx, zip + 4, postal code, phone
number, yellow page heading code.
B. TYPE OF MEDIA, FORMAT AND DATE OF DELIVERY:
Media: CD-ROM
Format: ASCII comma delimited flat file
Delivery Date: Within fifteen (15) business days of execution of the Agreement
C. UPDATE DELIVERY SCHEDULE:
Quarterly
D. PERMITTED USES OF DATA:
The Data will be provided only as a component of Licensee's World Wide Web
Internet Site. Licensee will not use the Data for any CD-ROM product or any
other product or service.
Any other uses of the Data not specifically permitted by this Agreement must
be mutually agreed upon in writing by both parties.
E. LICENSE FEES:
Term: $100,000 (Annually)
Payment by Licensee of the License Fees due for the Term shall be due and
payable in full upon execution of the Agreement. Thereafter, payment by
Licensee of the annual License Fees due, as described above, for each
renewal Term of the Agreement shall be due and payable at each anniversary
of the Effective Date.
F. ADDITIONAL TERMS AND CONDITIONS:
Licensee will provide to Acxiom, free of charge, twenty-five percent (25%)
of all unsold advertising space on Licensee's World Wide Web Internet Site
when Acxiom Data is displayed. "Unsold advertising space" on a particular
day is defined as advertising space on such pages which has not been
committed to a third party for valuable consideration of any kind as of the
close of business on the previous day. Licensee will generate quarterly
reports showing the specific insertion information for this unsold
advertising space and the percentage of the total unsold space represented
by Acxiom insertions.
Each Licensee Web page containing Acxiom Data will display a logo as
demonstrated at xxx.xxxxxxxxxxxx.xxx/xxxxxxx/xxxxxxx0.xxxx on the first or
initial screen of each results page. Licensee agrees that each logo will be
hyper-linked to the xxx.xxxxxxxxxxxxx.xxx page or another page within the
Acxiom Web site as determined by Acxiom.
Licensee agrees to include a statement regarding copyright and unauthorized
use prominently displayed on Licensee's World Wide Web Internet Site as
described in Section 5(e) of the Agreement.
