EXHIBIT 10.1
SETTLEMENT AGREEMENT
BY AND BETWEEN
FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P.
AND
MONSTERDAATA, INC.
RECITAL
First American Real Estate Solutions, L.P., ("FARES") and MonsterDaata, Inc.
("MONSTERDAATA") entered into a License Agreement, dated May 1, 2000 (the
"Terminating Agreement"), which both parties now seek to terminate under the
conditions set forth below. FARES and MONSTERDAATA (a "Party" and together, the
"Parties") desire and agree to resolve any and all disputes regarding the
Terminating Agreement. Accordingly, the Parties agree to terminate the
Terminating Agreement effective this date under the following conditions:
SECTION 1
MONSTERDAATA'S RELEASE AND PROMISES
In exchange for FARES forgiving all accounts receivable currently owing and for
allowing forgiveness of all remaining obligations under the Terminating
Agreement, MONSTERDAATA promises to assign to FARES the equipment listed in
Exhibit C, which is valued at $140,000.
MONSTERDAATA shall further assign the eight contracts listed on Exhibit A in
their entirety to FARES as legal consideration for FARES' promises contained in
this Settlement Agreement. MONSTERDAATA shall tender assignments signed by each
of its customers named in Exhibit A confirming such customer's consent to the
assignment of the agreement. MONSTERDAATA further agrees to not solicit these
customers for any future business of the type performed by MONSTERDAATA (real
estate data and/or mapping products) under the respective customer contract for
at least five (5) years after the date of these assignments.
MONSTERDAATA shall enter into a new License Agreement with FARES with a two year
term (the "New Agreement") attached hereto as Exhibit B wherein FARES shall
supply MONSTERDAATA with data under similar terms as the Terminating Agreement.
The New Agreement shall be valued at One Hundred Fifty Thousand Dollars
($150,000) per year.
MONSTERDAATA shall provide support during a two week transition period to
fulfill the contracts being acquired by FARES at the rates specified in Exhibit
D. Such employees shall work at the direction of FARES. FARES shall pay for the
employees at the rates described in
Exhibit D, with the payment due at the end of the support period. FARES shall
have the option to extend the support schedule beyond two weeks if needed, at
the same rates, by providing MONSTERDAATA not less than 72 hours notice prior to
the end of the two week support period, although MONSTERDAATA can not ensure all
employees will continue to work for MONSTERDAATA. Providing such employees do
not quit, they shall remain employed during this period to fulfill the support
needs of FARES. If the support period extends beyond one month, FARES shall pay
MONSTERDAATA on a monthly basis, rather than at the end of the support period.
MONSTERDAATA warrants that it has the intellectual property rights to the
MapTracker software and MONSTERDAATA'S distribution rights to AccuSoft/Netvue as
granted in the Distribution Agreement dated 11/2/2000. MONSTERDAATA shall assign
all of its intellectual property rights in the Maptracker Product and the
AccuSoft/Netvue Contract to FARES. Except as set forth in this Agreement,
MONSTERDAATA is making no warranty, express or implied, concerning the equipment
and intellectual property being assigned to FARES hereunder.
SECTION 2
FARES' RELEASE AND PROMISES
As consideration for MONSTERDAATA's promises as contained in this Agreement,
FARES agrees to release MONSTERDAATA from further obligation to pay fees or
perform further under the Terminating Agreement. Additionally, FARES agrees to
pay MONSTERDAATA Four Hundred Twenty -Five Thousand Dollars. ($425,000) payable
upon completion of the contract assignments, assignment of equipment, execution
of this Settlement Agreement and fulfillment of MONSTERDAATA'S obligations
hereunder. FARES shall also pay for the support services defined in Exhibit D at
the end of the transition period.
SECTION 3
MUTUAL PROMISES AND COVENANTS
The Parties also agree: that they will not engage in any conduct or make any
statements which are critical of the other Party relating to or in connection
with the Agreement, the termination of the Terminating Agreement, or the
Settlement Agreement; that they will not disclose any information, knowledge or
data about the other Party which has been designated and/or treated as
confidential; that they will not claim as their own, make use of or take with
them any intellectual property, including without limitation trade secrets,
trademarks, trade names and/or copyrighted material, or licensed data; and that
they will surrender or have surrendered to the other Party all material being
assigned hereunder. The Parties further acknowledge that they understand that
these provisions may not be waived, except in writing signed by authorized
officers of both Parties.
The Parties (on behalf of themselves, and all of their heirs, assigns, legal
representatives, successors-in-interest, or any person claiming through them)
agree to release and discharge any claim, charge, complaint, demand, dispute or
liability of any kind that relates to or involves the Terminating Agreement,
except those claims that may arise from any breach of this Settlement Agreement,
which they have had or now have against the other Party. The claims being
released
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by the Parties include, but are not limited to, any and all claims for damages,
fees and costs, or any other relief that may be or could have been asserted in
any legal or administrative proceeding under state or federal law. The Parties
knowingly and voluntarily release any and all claims they have had or may have
against the other Party.
The Parties further acknowledge that they are aware of and have had the
opportunity to consult with an attorney and become aware of their rights under
the laws specifically and generally described above in this Section 3, and that
they are permanently waiving those legal rights to the fullest extent that a
waiver is allowed by law.
SECTION 4
CONFIDENTIALITY
The Parties further agree not to disclose or publicly comment upon the terms,
provisions of or information regarding this Settlement Agreement and the events
that led up to it; provided, however, that the Parties may disclose the terms to
legal counsel as long as legal counsel agrees to be bound by this
confidentiality obligation. All other disclosures are expressly prohibited.
SECTION 5
DENIAL OF VIOLATIONS
The Parties acknowledge and agree that the making of these promises by the other
Party in this Agreement does not mean that the other Party has violated any
federal or state law or regulation, or violated any contractual or other
obligation it may have to the other Party, and that any such violation expressly
is denied. Rather, each Party is making these promises solely in exchange for
the other Party's promises as contained in this Agreement.
SECTION 6
REMEDIES IN CASE OF DEFAULT
Both Parties acknowledge that if they fail to keep any of their respective
promises to the other Party as stated herein, the other Party may take whatever
legal action it chooses to enforce those promises and/or to recover the amount
of any damage the other Party suffers because of their failure to keep those
promises. The prevailing party in such an action shall be entitled to attorneys'
fees and costs from the other Party.
SECTION 7
ENTIRE AGREEMENT
The Parties agree that this document contains all of the promises and
obligations between the Parties, and extinguishes and terminates all preexisting
agreements, including the Agreement. None of the promises in this Agreement can
be changed unless both Parties agree to the change and put that change in
writing.
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SECTION 8
GOVERNING LAW
The rights and obligations of the Parties shall be construed and enforced in
accordance with the laws of the State of California. Both parties agree to the
venue and personal jurisdiction of the State and Federal Courts of Orange
County, California.
SECTION 9
INVALIDITY OF PROVISIONS
Should any portion of this Agreement be found to be invalid for any reason
whatsoever, no other provision shall be affected, and this Agreement shall be
read as if it did not contain that provision. The Parties intend for any invalid
provision to be severable from the remainder.
IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THEIR RESPECTIVE DULY AUTHORIZED
OFFICERS TO EXECUTE THIS SETTLEMENT AGREEMENT ON THE DATES WRITTEN BELOW.
FIRST AMERICAN REAL ESTATE SOLUTIONS, L.P. MONSTERDAATA, INC.
By: RES LLC, its General Partner By:/s/ Xxxxx X. Xxxxxxx, Xx.
-----------------------------
/s/ Xxxxxx Xxxxxxxxx Xxxxx X. Xxxxxxx, Xx.
-------------------- President and Chief
By: Xxxxxx Xxxxxxxxx Executive Officer
Its President
Date: February 22, 2002 Date: February 22, 2002
