1
EXHIBIT 10.10.2
DATABASE LICENSE AGREEMENT
This Database License Agreement (this "Agreement"), effective as of June 20,
2000 (the "Effective Date"), is by and between Naviant Marketing Solution, Inc.
("Naviant"), and Xxxxxxx Communications, Inc. ("Customer").
SECTION 1. DATABASE. The term "Database" means the High-Tech Household database
(the "Database") owned and/or licensed by Naviant, or any portion thereof or
information derived either in whole or in part therefrom, as it may be changed
from time to time by Naviant.
SECTION 2. LICENSE. Subject to the terms, restrictions and conditions set forth
herein, Naviant hereby grants to Customer a non-exclusive non-transferable
license to the name, mailing address and e-mail address fields of those records
within the Database which have been added to the Database since April 1, 2000
(and from month to month thereafter), which have both name and e-mail addresses
(the "Monthly E-Mail File"), solely for (and only to the extent of) (i)
Customer's own internal use, (ii) with respect to the name and e-mail address
fields only, Customer's use with respect to marketing programs on behalf of
others to which Customer has secured rights, and (iii) with respect to the
mailing address field only, appending such data to records of persons giving
Customer permission to use such persons' data through responses to Customer's
marketing programs (which records are not Naviant's property), and in each case
in the United States. The Monthly E-Mail File shall only be used for Customer's
sales and marketing purposes relating to (i) and (ii) foregoing, subject to
Customer's compliance with the use restrictions set forth in Schedule 1 (the
"Use Restrictions"). Except as otherwise provided for herein, Customer shall not
provide, make available, permit or otherwise allow the Monthly E-Mail File to be
provided to or made available to any third party, and consistent with the
foregoing, Naviant reserves all rights to use and/or license the Monthly E-Mail
File. On a monthly basis beginning July 1, 2000, Naviant shall deliver to
Customer one copy of the Monthly E-Mail File to the following location: Xxxxxxx
Communications, Inc., Xxx Xxxx Xxxx Xxxxx, 0xx Xxxxx, Xxxxx Xxxxx, XX 00000.
Customer will store the Monthly E-Mail File at such location and will not make
any copies of the Monthly E-Mail File without the prior written consent of
Naviant; provided, however, one copy of the Monthly E-Mail File may be made for
back-up purposes.
SECTION 3. CONSIDERATION. In consideration for the license to the Monthly E-Mail
File, Customer shall (i) pay Naviant {CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION} for net new records added to the Database on or
after October 1, 2000 and (ii) provide Naviant with a monthly update of the
Monthly E-Mail File based upon Customer's merge/purge, subscribe/unsubscribe and
other database management activities. Naviant shall provide any new records
added to the Database prior to October 1, 2000 {CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION}.
1
2
Customer shall remit the amount described in clause (i) above not later than
thirty (30) days after delivery of the Monthly E-Mail File. If any such payment
is not received when due, such payment shall be subject to a late charge of 1.5%
per month, or the maximum rate allowed by law if such rate is lower than 1.5%
per month. In the event that Naviant terminates this Agreement pursuant to
Section 7 prior to March 31, 2001, then Naviant shall refund to Customer a
pro-rated portion (on a 12-month basis) of the consideration in clause (i)
above.
SECTION 4. TERM; TERMINATION; INJUNCTIVE RELIEF. The term (the "Term") of this
Agreement shall commence on the Effective Date, and shall expire in eighteen
(18) months from execution of this Agreement. Notwithstanding the foregoing,
this Agreement may be terminated upon the occurrence of any of the following
events: (a) either party's failure to cure any material breach of a term,
covenant, condition or agreement contained in this Agreement within 30 days
after the breaching party receives written notice of such breach; (b) upon the
giving of notice by Naviant if Customer or any Approved Third Party, provides or
otherwise makes the Monthly E-Mail File available to a third party other than in
accordance with the provisions of this Agreement; (c) notice is given by Naviant
or Customer pursuant to Section 7. Termination pursuant to the preceding
sentence shall be effective upon the date set forth in a notice of termination
which shall be provided in writing by the terminating party. Upon termination of
this Agreement for any reason whatsoever, Customer shall either return to
Naviant or destroy all copies of the Monthly E-Mail File in its possession
together with all excerpts of or extracts therefrom and provide a certificate
from a senior officer certifying compliance with this provision. Customer
acknowledges that Naviant cannot be adequately compensated in money damages in
the event of any improper disclosure of the Monthly E-Mail File and agrees that,
in addition to its other remedies hereunder in the event of any such disclosure,
Naviant shall be entitled to an order enjoining any further disclosure.
SECTION 5. INDEMNIFICATION. Each party (the "Indemnifying Party") shall defend,
indemnify and hold harmless the other party and its affiliates (the "Indemnified
Party") from all damages, liabilities and expenses (and all legal costs
including attorneys' fees, court costs, expenses and settlements resulting from
any action or claim) (collectively, "Losses"), arising out of, connected with,
or resulting in any way from (a) any misrepresentation or breach of any
warranty, covenant or agreement made by the Indemnifying Party in this
Agreement, (b) if Naviant is the Indemnifying Party, any allegation that the
possession, distribution or use by Customer of the Database (i) infringes an
intellectual property right, (ii) violates the policies of the Direct Marketing
Association, or (iii) violates a restriction regarding Customer's right contact
persons within the E-Mail File, in each case unless the allegation is based on
an action arising from any modification to the E-Mail File by Customer (e.g.,
the inclusion in the E-Mail File of data not provided by Naviant) or the
combination or use of the E-Mail File with any other data or materials not
furnished by Naviant; and (c) if Customer is the Indemnifying Party, (I) use of
the E-Mail File by Customer or any third party gaining access, directly or
indirectly, to the E-Mail File through Customer, whether or not a violation of
this Agreement or (II) any direct or indirect disclosure of the source of the
Database or any of its elements; provided, however, that no such obligation
shall arise unless (x) the Indemnified Party
2
3
gives the Indemnifying Party written notice of the claim in a timely manner
after it receives actual notice, and (y) the Indemnified Party cooperates with
the Indemnifying Party in defending any such action. Notwithstanding anything
contained herein to the contrary, neither party shall be liable or required to
indemnify the other party for such other party's gross negligence or intentional
wrongdoing.
SECTION 6. DEFENSE OF CLAIMS. The Indemnifying Party shall have the right at its
expense to employ counsel reasonably acceptable to the Indemnified Party to
defend against the claim but not to settle the claim. If the Indemnifying Party
does not avail itself of the opportunity to defend against or resist the claim
or proceeding within 30 days after receipt of notice thereof (or such shorter
time specified in the notice as circumstances may dictate) the Indemnified Party
shall be free to investigate, defend, compromise, settle or otherwise dispose of
the claim or proceeding and be reimbursed for all costs associated therewith by
the Indemnifying Party.
SECTION 7. INTELLECTUAL PROPERTY CLAIM REMEDIES. If the Database, or any portion
thereof (including the Monthly E-Mail File) becomes, or in Naviant's opinion is
likely to become, the subject of any claim or action that it violates the
intellectual property rights of another person, then Naviant, at its option and
expense, may either: (i) procure the right to continue using the Database; (ii)
modify the Database to render it non-infringing; or (iii) replace the Database
or any portion thereof (including the Monthly E-Mail File) with equally
suitable, functionally equivalent, compatible, non-infringing data. If none of
the foregoing are commercially practicable, Naviant may terminate this Agreement
unless Customer desires to continue using the Monthly E-Mail File after the
removal of the infringing portion thereof. In the event that Naviant makes any
material modification to the Monthly E-Mail File pursuant to the provisions of
this Section that has a material adverse effect on Customer's ability to conduct
that part of its business relating to the Monthly E-Mail File, Customer may, at
its option, terminate this Agreement. The remedies set forth in Section 5 and
this Section 7 constitute Naviant's total liability with respect to any claim
against Customer for intellectual property infringement by the Database.
SECTION 8. DISCLAIMER OF WARRANTY. Except as expressly otherwise provided in
this Agreement, Naviant disclaims all representations and warranties of any kind
or nature, express or implied, arising out of or related to this Agreement and
the Database (including the Monthly E-Mail File), including, without limitation,
any warranties regarding quality, correctness, completeness, comprehensiveness,
suitability, merchantability, fitness for a particular purpose, title and
non-infringement or otherwise (irrespective of any course of dealing, custom or
usage of trade) and each of which is hereby excluded by agreement of the
parties.
SECTION 9. EXCLUSION OF DAMAGES. Notwithstanding any provision of this Agreement
to the contrary, with the exception of claims arising from a claim by a third
party arising from a breach of Sections 2, 5, 11 or 12, neither party shall be
liable to the other for lost profits, lost revenues, lost business
opportunities, exemplary, punitive, or consequential damages.
3
4
SECTION 10. LIMITATION OF LIABILITY. Except for claims arising under Sections 2,
3, 5, 11 or 12, each party's cumulative liability for all losses relating to or
arising in connection with this Agreement shall not under any circumstances
exceed the payments made by Customer to Naviant hereunder.
SECTION 11. TAXES. Customer shall pay all taxes (excluding those based upon
Naviant's income), fees and assessments now or hereafter imposed by any
governmental authority with respect to: (a) the license granted hereunder by
Naviant; and (b) Customer's or Approved Third Parties' use of the Monthly E-Mail
File.
SECTION 12. CONFIDENTIALITY. During the Term, and for a period of two years
thereafter, each party shall: (a) limit access to any Confidential Information
of the other party received by it to its employees who have a need-to-know in
connection with the performance of such party's duties and obligations under
this Agreement; (b) advise its employees having access to the Confidential
Information of the other party of the proprietary nature thereof and of the
obligations set forth in this Agreement; (c) safeguard all Confidential
Information of the other party received by it using a reasonable degree of care,
but not less than that degree of care used by it in safeguarding its own similar
information or material; (d) not disclose any Confidential Information of the
other party received by it to third parties otherwise than in conformity with
the provisions of this Agreement; (e) not disclose the terms and conditions of
this Agreement to any third party; and (f) be responsible for any breach of the
terms hereunder by the party or any person who receives any Confidential
Information from such party. As used in this Agreement, the term "Confidential
Information" includes, without limitation, any data or information that: (i) is
labeled as proprietary or confidential; (ii) is identified at the time of its
disclosure as confidential; (iii) a reasonably prudent person would recognize
would not be made available to third parties without restriction or payment;
(iv) is competitively sensitive material, and not generally known to the public.
Confidential Information includes, without limitation, this Agreement, the
Database, the Monthly E-Mail File and/or the configuration thereof. Confidential
Information does not include information that: (w) was or is in the public
domain prior to the date of disclosure; (x) was or is lawfully received by the
recipient party from a third party without obligation of confidentiality; (y)
was or is already known by or in the possession of the recipient party; or (z)
is required to be disclosed by under applicable law or by a governmental order,
decree, regulation or rule (provided that the recipient party gives written
notice to the disclosing party as far in advance as possible prior to
disclosure.)
SECTION 13. AUDIT. Customer shall maintain current, accurate and complete books
and records regarding the Monthly E-Mail File and the use thereof. During the
Term of this Agreement, and for a period of 2 years thereafter, Naviant may,
either itself or through a third party, up to two times per year, examine,
inspect, audit and copy such books and records and any source documents
pertaining thereto to determine Customer's compliance with the terms and
conditions of this Agreement. Such audit shall be conducted at Naviant's sole
cost and expense; provided, however, if such audit reveals that Customer failed
to properly use the Monthly E-Mail File in conformance with the terms and
restrictions set forth herein, Customer shall, in addition to promptly ceasing
such usage, reimburse Naviant for the expense of such audit.
4
5
SECTION 14. MISCELLANEOUS.
14.1. INDEPENDENT CONTRACTORS. The relationship of Naviant to Customer
hereunder shall be solely that of an independent contractor. Naviant and
Customer each acknowledge and agree that neither is an employee, employer,
agent, partner, or joint venturer of the other.
14.2. NON-ASSIGNMENT. Neither this Agreement nor the license granted
hereunder nor any rights or obligations set forth herein may be assigned,
delegated or otherwise transferred, by Customer to any third party, whether by
operation of law or otherwise, without the express prior written consent of
Naviant, which consent shall not be unreasonably withheld.
14.3. FORCE MAJEURE. No delay or failure of Naviant to perform any of its
obligations under the Agreement shall be considered a breach of this Agreement
if it results from any cause beyond its control including, without limitation,
any act of God, earthquake, hurricane, flood, fire, natural catastrophe, severe
weather, public emergency, accident, labor difficulty, strike, lock-out or other
dispute, riot, civil commotion, insurrection, equipment or system failure or
changes in any federal, state, or local laws, statutes, rules, regulations, or
ordinances or other action of any governmental authority having jurisdiction.
14.4 NOTICES. All notices, requests, demands and other communications
required or permitted to be given under this Agreement shall be in writing, and
shall be deemed to be given when delivered in person, or when sent by facsimile
(with receipt confirmed), or on the first business day after posting thereof
with a nationally recognized overnight courier as follows (or such other address
as the parties may designate by written notice in the manner aforesaid):
To Naviant: with a copy to: To Customer:
Naviant, Inc. Naviant, Inc. Xxxxxxx Communications, Inc.
000 Xxxx Xxxxxx Xxxxx, 00xx Floor 00 Xxxxxx Xxxxxxxxx, Xxxxx 000 One Xxxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxxx Xxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx Attention: General Counsel Attention: Xxx Xxxxxxxxx
Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000 Facsimile Number: (000) 000-0000
14.6. SEVERABILITY. Any determination by any court of competent jurisdiction
of the invalidity of any provision of this Agreement shall not affect the
validity of any other provision of this Agreement, which shall remain in full
force and effect and which shall be construed as valid under applicable law.
14.7. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York without giving effect to any choice or
conflict of law provision or rule.
14.8. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of
the parties with respect to the subject matter hereof.
5
6
14.9. ATTORNEYS' FEES. If litigation between the parties arises out of or
relates to this Agreement, the prevailing party of any such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
other costs incurred in such litigation.
14.10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, including facsimile counterparts, each of which shall be deemed to
be an original and all of which together shall constitute one and the same
agreement.
14.11. TITLE TO DATABASE AND E-MAIL FILE. Customer agrees that other than the
license granted pursuant to this Agreement, neither Customer nor any other third
party, including, without limitation, Approved Third Parties, has any other
right, title, or interest in the Database or the Monthly E-Mail File.
14.12. DISPUTE RESOLUTION. Any controversy or claim relating to this
Agreement shall be exclusively settled by binding arbitration administered by
the American Arbitration Association ("AAA") conducted in New York, New York, in
accordance with the then current Commercial Arbitration Rules of the AAA.
14.13. SURVIVAL. Sections 3, 5, 8, 9, 10, 11, 12, 13 and 14 shall survive
the termination of this Agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by its duly authorized representative as of the date first written
above.
Naviant, Inc. XXXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxx 6/22/00
--------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxx Name:
------------------------ -------------------------------
Title: Senior Vice President Title:
Sales & Marketing ------------------------------
6
7
SCHEDULE 1: USE RESTRICTIONS
For purposes of this Schedule, the term "Recipients" shall refer to Customer
and, to the extent applicable, Approved Third Parties.
1. Recipient shall not copy, duplicate or reproduce in any manner the Database
except as consistent with this Agreement and these Use Restrictions. The
Database may contain decoy names to permit detection of unauthorized use.
2. Recipient shall provide Naviant, upon request, with all requested advertising
copy, e-mail message copy, scripts or other communications produced by or for
Recipient using information derived from the Database. Recipient shall not use
the mailing address fields of the Database for any direct marketing purpose
other than to provide to Customer's client's a terrestrial address and name
relating to e-mail addresses of those persons in the Database who respond
favorably to Customer's (or Customer's client's) e-mail message(s). Recipient
covenants that it shall not disclose, directly or indirectly, the source of the
Database or any of its elements, and Customer covenants that it shall require
each of its clients receiving name and terrestrial address information pursuant
to this Agreement to abide by such restriction.
3. Recipient shall use the Database in compliance with: (a) all federal, state
and local laws, statutes, rules, regulations and ordinances including, without
limitation, the Fair Credit Reporting Act (15 U.S.C. Sections 1681-1681t, as
such act may be amended, modified or supplemented from time to time); (b) all
applicable privacy and data protection laws, rules and regulations; (c) all
reasonable regulations, rules and policies adopted by Naviant; and (d) all
regulations, rules and policies published by the Direct Marketing Association.
4. All marketing efforts, solicitations, advertising copy and other
communications produced by or for Recipient and derived either in whole or in
part from the Database shall: (a) not contain any reference to any selection
criteria or presumed knowledge concerning the intended recipient of such
solicitation or the source of such recipient's name and address or e-mail; (b)
be designed such that the recipient of such communication cannot determine that
state title or registration information was used as an information source; and
(c) be in good taste in accordance with generally recognized standards of high
integrity.
5. Unless otherwise permitted by Naviant and except for Section 2 of this
Schedule 1, Recipient shall not provide, or otherwise make available, the
Database or any excerpts therefrom, or any information derived either in whole
or in part therefrom, or any copies of the foregoing, to any third party for any
purpose.
6. Recipient shall not make the Database, or any excerpts thereof or any
information derived either in whole or in part from the Database available in an
on-line environment except by an appropriately secured and encrypted bulletin
board service, tape-to-tape batch transmission or remote job entry. For purposes
of this paragraph, the term "on-
7
8
line" means the delivery of data from the Database residing in Recipient's host
computer using telecommunications to transport the data to another location.
7. Recipient shall not use the Database, either in whole or in part, as a factor
in: (a) establishing an individual's eligibility for credit or insurance; (b)
connection with underwriting individual insurance; (c) evaluating an individual
for employment or promotions, reassignment or retention as an employee; (d) in
connection with a determination of an individual's eligibility for a license or
other benefit granted by a governmental authority; or (e) in any other manner in
which the usage of the Database or any information contained therein would cause
such information to be construed as a Consumer Report, as defined in 15 U.S.C.
Section 1681a, by any regulatory authority having jurisdiction over Naviant any
of its successors or the Database.
8. Subject to the terms, restrictions and conditions set forth herein, Customer
may also provide the Monthly E-Mail File to a third party which performs
(itself, not through any subcontractors) one of the following services for
Customer and is under contract with Customer for such services: (a)
telemarketing or mailing services in connection with marketing Customer's
products ("Channel Marketer"); or (b) database processing services ("Processor,"
and, together with Channel Marketer, "Approved Third Parties"); provided,
however, that providing the Monthly E-Mail File to Approved Third Parties shall
be subject to the following: (i) Customer shall obtain Naviant's prior written
consent; (ii) Approved Third Parties use shall be limited to providing the
services to Customer; (iii) Approved Third Parties shall have no right to use
the Monthly E-Mail File for their own internal purposes; or for the resale to
others; (iv) Customer shall not reveal to Approved Third Parties the fact that
the origin of the Monthly E-Mail File is from Naviant without obtaining the
prior written consent of Naviant; (v) Customer shall be responsible for
obligating Approved Third Parties to comply with the terms of this Agreement,
including, without limitation, the terms of this Section and the Use
Restrictions, to the extent applicable; (vi) Customer shall be responsible for
any improper use of the Monthly E-Mail File by Approved Third Parties; (vii)
Customer shall not provide, or otherwise allow, the Monthly E-Mail File to be
made available to any Approved Third Party prior to the execution by such party
of an agreement, satisfactory to Naviant, containing, among other things, the
applicable terms, permitted uses, use restrictions and confidentiality
provisions set forth in this Agreement; (vii) Customer hereby assigns to Naviant
any rights to any causes of action which relate to the improper use or
misappropriation of the Monthly E-Mail File under such agreements between
Customer and Approved Third Parties; and (viii), upon Naviant's election,
Customer shall name Naviant as a third party beneficiary to applicable agreement
between Customer and the Approved Third Party.
9. Customer shall not sell or license the Monthly E-Mail File without prior
written consent of Naviant.
8
