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Exhibit 10.10.1
MUTUAL DATABASE LICENSE AND MARKETING AGREEMENT
This Mutual Database License and Marketing Agreement (this
"Agreement"), dated as of February 1, 2001, by and between Traffix, Inc.
("Traffix"), a Delaware corporation with an office at Xxx Xxxx Xxxx Xxxxx, Xxxxx
Xxxxx, XX 00000, and Naviant Marketing Solutions, Inc. ("Naviant"), a Delaware
corporation with an office at 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, XX
00000-0000.
RECITALS
Traffix is engaged in marketing and management of permission-based
proprietary and affiliate databases. Naviant is engaged in precision marketing
services for web marketers. Traffix and Naviant have access to certain consumer
data that they wish to share. The parties also desire to share certain data that
they obtain in the future. In addition, the parties would like to maximize the
breadth of the permission to market to these data files, minimize the cost of
obtaining future data, and maximize the revenue that they can generate from such
data. The parties wish by this Agreement to set forth the terms and conditions
by which they would work together to achieve these objectives.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the receipt and sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1. Naviant Registration Page.
a. Design and Permission Statement. Traffix will assist Naviant
to redesign the recommended template for its affinity
marketing registration pages/application (the "Naviant
Affinity Reg Pages"). To the extent permitted by Naviant's
third-party registration customers, Naviant will modify its
Naviant Affinity Reg Pages so that end-users who are offered
and select to display Naviant Affinity Reg Pages will have the
opportunity, by a pre-checked box, to elect to receive via
e-mail both Traffix's GroupLotto offers and Naviant's offers.
The permission questions shall specifically refer to the
GroupLotto permission statement (the "Permission Statement")
which will be broadly written to cover, at a minimum, all
GroupLotto offers, Naviant offers, and related third-parties.
b. Data to be Shared. For all individuals who elect to receive
any Traffix offers presented on any Naviant Affinity Reg
Pages, Naviant shall provide Traffix, on a daily basis, the
following
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information (in each case to the extent available and
permitted by Naviant's third-party registration customers):
full name, home address with city, state and zip code, e-mail
address, sex, telephone number and birth date.
2. Affinity Marketing Referral. Each party agrees to give reasonable
consideration to affinity marketing partners introduced by the other
party during the Term. During the Term, each party shall pay a
commission equal to ) {Confidential portion omitted and filed
separately with the Commission} of the Net Revenue received from
offers presented on such party's affinity marketing websites by an
affinity marketing partner introduced by the other. Each party shall
provide detailed reporting weekly (and summary reporting monthly)
for all offers relating to affinity marketing partners originated by
the other party, and payments from such activities shall be due to
the party owed 30 days after payment is received in respect of such
offer. For the purposes of this Agreement, "Net Revenue" shall mean
gross revenue less third-party brokerage and sales commissions.
3. License to GroupLotto Database. Traffix owns a registered-user
database of persons who have elected to receive GroupLotto offers
(estimated to be approximately 5,000,000 records in the U.S. with
e-mail and other related address information, as such may be
modified and updated from time to time, the "GroupLotto Database").
Traffix hereby represents and warrants that: (i) it has sufficient
right and title to the GroupLotto Database to license the GroupLotto
Database to Naviant as provided herein; (ii) the GroupLotto Database
has been and will be collected and licensed hereunder 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.Sections1681-1681t), as such
act may be amended, modified or supplemented from time to time),
including all applicable privacy and data protection laws, rules and
regulations, and (b) all regulations, rules and policies published
by the Direct Marketing Association and imposed on its members;
(iii) the GroupLotto Database is comprised of records relating to
persons who have registered on-line; (iv) the GroupLotto Database
contains, at a minimum, the following fields: first name, last name,
birth date, mailing address (including street, number, city, state
and zip code), e-mail address, date of registration and
permissioning information; and (v) the data in the GroupLotto
Database was collected pursuant to the privacy/permissioning
policies and/or statements set forth on Exhibit A hereto. Traffix
hereby grants, and Naviant hereby accepts, a world-wide,
non-exclusive license for the Term (except with respect to following
clause (D), which shall be perpetual) to use the GroupLotto Database
for (A) sublicensing the GroupLotto Database (in whole or in part)
to
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Naviant's clients for the exclusive purpose of appending data from
the GroupLotto Database to Naviant's clients' customer databases,
(B) sending marketing messages (for itself or on behalf of others)
to persons in the GroupLotto Database, through any means and medium
(limited to no more than the mathematical equivalent of two times
the whole file in any month), (C) flagging its databases to
facilitate the dispatch of marketing messages by Traffix (for
Naviant or on behalf of Naviant's clients) to persons in the
GroupLotto Database, through any means and medium, and (D) to
process the information in the GroupLotto Database with and against
databases Naviant owns or licenses in order to permanently record in
Naviant's High Tech Household database (the "HTHH") information
regarding any matches. Naviant's use of the GroupLotto Database
shall be subject to the following restrictions: (i) Naviant shall
not disclose, directly or indirectly, the source of the GroupLotto
Database or any of its elements; (ii) in its use of the GroupLotto
Database, Naviant shall comply with all federal, state and local
laws, statutes, rules, regulations and ordinances including, without
limitation, the Fair Credit Reporting Act (15
U.S.C.SectionSection1681-1681t, as such act may be amended, modified
or supplemented from time to time); (iii) (except as provided
herein) unless otherwise permitted by Traffix, Naviant shall not
sell, provide or otherwise make available, the GroupLotto Database,
or any information derived either in whole or in part therefrom, or
any copies of the foregoing, to any third party for any purpose;
(iv) Naviant shall use the GroupLotto Database only in connection
with reputable marketing programs. On or before February 10, 2001,
and monthly thereafter during the Term, Traffix shall deliver one
copy of the GroupLotto Database in its current form to a location
and in a format reasonably designated by Naviant. Naviant shall owe
Traffix the following royalties in respect of the license contained
in this Section 3:
a. For uses and/or licenses of the GroupLotto Database pursuant
to license clauses (A): {CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION}.
b. For uses and/or licenses of the GroupLotto Database pursuant
to license clauses (B) and (C): {CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION} provided that
Naviant shall owe no additional fees in respect of delivery of
such messages or receipt of standard reports relating thereto.
c. For use of the GroupLotto Database pursuant to license clauses
(D): {CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION}.
Naviant shall provide detailed reporting monthly for all activity
relating to use and/or sublicense of the GroupLotto Database
pursuant to Section 3, and payments from such activities shall be
due to Traffix
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30 days after such payment is received in respect of such use/
sublicense.
4. Limited License to HTHH. For each new record added to the HTHH
Database pursuant to the license granted in clause (D) of Section 3,
Naviant hereby grants to Traffix, and Traffix hereby accepts a
one-year (measured from the time such data is provided to Client)
non-exclusive non-transferable license to the Household Income, Age
(of head of household), Age and Sex (of family members), Presence of
Children, Household Size, Dwelling Unit Type, Length of Residence,
Area Code, Telephone Number and Hispanic Surname fields of such HTHH
records, where available, solely for (and only to the extent of )
Traffix's own internal use in the United States for Traffix's own
sales and marketing purposes, subject to Traffix's compliance with
the following use restrictions: (i) Traffix shall not disclose,
directly or indirectly, the source of the HTHH or any of its
elements; (ii) in its use of the HTHH, Traffix shall comply with all
federal, state and local laws, statutes, rules, regulations and
ordinances including, without limitation, the Fair Credit Reporting
Act (15 U.S.C.SectionSection1681-1681t, as such act may be amended,
modified or supplemented from time to time); (iii) unless otherwise
permitted by Naviant, Traffix shall not sell, provide or otherwise
make available, the HTHH, or any information derived either in whole
or in part therefrom, or any copies of the foregoing, to any third
party for any purpose; (iv) Traffix shall use the HTHH only in
connection with reputable marketing programs. Within 30 days of
Naviant's receipt of any GroupLotto database (but not more
frequently than once per month, Naviant shall deliver one copy of
the records of the HTHH licensed to Traffix pursuant to this Section
4 to a location and in a format reasonably designated by Naviant.
The license in this Section 4 shall be {CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION} so long as Traffix
complies with the other terms and conditions of this Agreement.
5. Joint Acquisition of Records. Traffix will use its best efforts to
purchase (and/or receive appropriate perpetual licenses of)
additional database information (each, a "New Database") from third
parties for joint ownership by Traffix and Naviant. Provided that
the New Database records contain at least full name, postal address,
age/birth date, date of acquisition, and sufficient permissioning
information, Traffix shall have the authority to set any additional
requirements for such New Databases (e.g., unique to the GroupLotto
Database, minimum age, data fields and such other standards that
Traffix deems appropriate). Naviant and Traffix agree that, upon
payment of any required fees or royalties pursuant to this Section,
each shall have equal ownership of (or license to) the New
Databases. Within ten days of its receipt of any New Database
conforming to the terms of this
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Section 5, Traffix shall deliver (or cause the controller or such
New Database to deliver) one copy of the such New Database to a
location and in a format reasonably designated by Naviant. Naviant
and Traffix agree to share equally the cost of acquiring rights to
each New Database pursuant to this Section 5, provided that (a) both
parties have unrestricted ownership of (or perpetual license to)
such New Database (with any restrictions being subject to both
parties' prior approval), (b) the cost of acquiring each record in
such New Database does not exceed {CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION}, and (c) Naviant's obligation
with respect thereto does not exceed {CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION}per month. Notwithstanding
the foregoing, Naviant's obligation to pay for any New Database
records shall be reduced (on a record-for-record basis) to the
extent that unique new GroupLotto registered users/members are
accepted by Traffix pursuant to Section 1 of this Agreement. Traffix
shall xxxx Naviant monthly in arrears, and such payments shall be
due within seven days of Naviant's receipt thereof. The parties
agree to discuss on a monthly basis any payment offsets which may be
generated with respect to payments due under this Agreement.
6. Cookie Setting. At Naviant's request, Traffix agrees to either (i)
redirect those persons who register for its offers (or for whom
Traffix otherwise has an IP connection supporting the setting of
cookies or similar devices) to a web site maintained by Naviant, at
which web site Naviant shall be permitted to set cookies (or similar
devices) for the benefit of Naviant, or (ii) use commercially
reasonable efforts to deploy such technology as is necessary for
Traffix to set cookies (or similar devices) for the benefit of
Naviant. Each party covenants to provide such access and assistance,
and make such technical modifications, as is reasonably requested by
the other to effect the foregoing. In exchange for the rights
afforded Naviant pursuant to this Section 6, Naviant shall pay
Traffix {CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION} (or similar device) set by Naviant (or by Traffix for
Naviant) pursuant to this Section 6. After implementation of the
redirect process described in this Section 6, Naviant shall provide
detailed reporting monthly for all activity relating this Section 6,
and payments from such activities shall be due to Traffix within 30
days of receipt of such report.
7. 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
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(a) any misrepresentation or breach of any warranty, covenant or
agreement made by the Indemnifying Party in this Agreement, (b) if
Traffix is the Indemnifying Party, any allegation that the
possession, distribution or use by Naviant of the GroupLotto
Database infringes an intellectual property right; provided,
however, that no such obligation shall arise unless (i) the
Indemnified Party gives the Indemnifying Party written notice of the
claim in a timely manner after it receives actual notice, and (ii)
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. 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.
8. Press Release. Naviant and Traffix agree to collaborate on the
development of a public announcement of this Agreement. Such
announcement shall only be made in a form and at a time agreed by
both parties. Each party may use the other's name and logo for
promotional purposes; however, each party's use must be in
conformity to the other party's guidelines and sound commercial
practices and that such use make no representation beyond the scope
of this Agreement.
9. Term and Termination.
a. This Agreement will commence on the date hereof and shall
expire 24 months thereafter, unless terminated sooner as
provided below.
b. Either party may terminate this Agreement for any reason upon
60 days notice, provided such notice may not be given within
12 months of the date hereof.
c. Either party may terminate this Agreement (i) upon the other
party's material breach or default of a term of this Agreement
which is not cured within 30 days of receipt of notice of such
breach or default from the non-defaulting party; (ii) if the
other party ceases doing business.
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Upon termination or expiration of this Agreement for any
reason, (i) Naviant shall promptly return to Traffix all
copies of the GroupLotto Database in its possession, (ii)
Traffix shall promptly return to Naviant all copies of the
HTHH in its possession, and (iii) the parties shall issue
final reports and invoices with respect to amounts owed
hereunder within 60 days.
10. Arbitration. All disputes, including without limitation claims
of breach of contract, fraud in the inducement and negligence,
shall be referred to binding arbitration, in New York City,
NY, in accordance with the then-current Commercial Rules of
Arbitration of the American Arbitration Association. The
decision of the arbitrator will be final, binding and
non-appealable, and an award thereon may be enforced in any
court of competent jurisdiction. The parties will share
equally the costs and expenses of the arbitrator, but will
bear their separate costs and expenses of the arbitration
proceeding, including legal fees. Either party may seek
judicial relief to compel the other party to comply with the
provisions of this Section.
11. Audit. Each party shall maintain current, accurate and
complete books and records regarding the performance of this
Agreement. During the Term, and for a period of two years
thereafter, either party 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 hereto to determine the others's compliance with
the terms and conditions of this Agreement. Such audit shall
be conducted at the auditing party's sole cost and expense;
provided, however, if such audit reveals that the audited
party materially failed to comply with this Agreement, the
audited party shall, in addition to promptly curing such
non-compliance, reimburse the auditing party for the expense
of such audit.
12. Miscellaneous.
a. Relationship of the Parties. Nothing in this Agreement
shall be construed as creating any joint venture,
partnership or agency relationship between the parties
for any purpose whatsoever including, but not limited
to, state or foreign taxation law or any other purpose,
or as constituting either party as the legal
representative of the other, and neither party shall
have the right or the authority to assume, create or
incur any liability or obligation of any kind, express
or implied, against or in the name of or on behalf of
the other. No party shall use the other party's name to
imply any endorsement, sponsorship or affiliation with
the other, except as otherwise provided in the
Agreement.
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b. Notices. Any notice hereunder shall be deemed to have
been given and received when personally delivered in
writing, the next business day after being sent via
overnight express courier, or five (5) business days
after it has been deposited in United States mail,
registered mail, return receipt requested, postage
pre-paid, properly addressed to the other party at their
address on the first page of this Agreement.
c. Governing Law. This Agreement shall in all respects be
governed by and interpreted, construed and enforced in
accordance with the laws of the State of New York.
d. Assignment. Neither party may not assign this Agreement
without the prior written consent of the other; however,
this Agreement may be assigned to any party acquiring
substantially all of the assets or stock of such party.
e. Counterparts. This Agreement may be executed by
facsimile and in several counterparts and all
counterparts so executed shall constitute one agreement
binding on all the parties hereto, notwithstanding that
all the parties are not signatory to the original or the
same counterpart.
f. Force Majeure. No delay or failure of either party 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, 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.
g. Severability. Any determination by any court of
competent jurisdiction of the invalidity any provision
of this Agreement shall not effect 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.
h. 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 to the address set forth in
the initial paragraph hereof.
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i. Entire Agreement. This Agreement sets forth the entire
agreement of the parties with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date set forth above.
TRAFFIX, INC. NAVIANT MARKETING SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxx
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Name: Name:
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Title: Title:
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