EXHIBIT 10.2
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"CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION."
REDACTED MATERIAL INDICATED BY "***".
DATABASE LICENSE AGREEMENT
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This LICENSE AGREEMENT ("Agreement"), dated July 6, 1999, (the "Effective
date"), is entered into by and between Worldwide Information, Inc., a
Massachusetts corporation ("Licensee") and Trans Union, LLC, a Delaware limited
liability company ("TU").
WHEREAS, Licensee offers to its subscribers a computer assisted, data
retrieval service that enables its customers to obtain information through
various methods, including without limitation, online access, telephone and
facsimile; and,
WHEREAS, TU owns a confidential database which it is willing to license to
Licensee to make available to its customers under the terms and conditions set
forth below,
NOW THEREFORE, in consideration of the premises the parties agree as follows:
1. GRANT OF LICENSE
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1.1 As used in this agreement, the following terms shall have the meanings
indicated:
(a) "Licensed Materials" means the compilation of information prepared by
or on behalf of TU specified on Schedule A and provided to Licensee pursuant
hereto, including all languages, editions, issues, versions and all Updates (as
defined below) thereto during the term of this Agreement.
(b) "Permitted Uses" means products and services produced or distributed
by Licensee consisting of; or utilizing, computer-assisted access to, or
distribution, reproduction or use of Licensed Materials in a manner consistent
with the terms and conditions of this Agreement.
1.2. TU hereby grants to Licensee a non-exclusive, non-transferable license to
lawfully use and authorize the lawful use of Licensed Materials and any portion
thereof in Permitted Uses, including rights to reproduce, display and distribute
Licensed Materials in connection with producing, distributing and marketing
Permitted Uses. Licensee may not re-distribute the Licensed Materials in bulk to
any of its customers and may distribute only through its own system interface.
All marketing and promotional materials produced by Licensee regarding or making
any use of or reference to the Licensed Materials must be approved in writing by
TU prior any use.
1.3 Licensee shall use the Licensed Materials solely as a stand alone product.
Licensed Materials shall not be merged with other data to create a distinct
database without the prior written approval of TU.
1.4 Licensee shall not promote or distribute the Licensed Materials through
the Internet without prior written approval of TU. Licensee shall not distribute
licensed materials to consumers, and shall insure that its commercial customers
do not distribute licensed materials to consumers.
1.5 TU believes that: (i) it is authorized to grant this license to Licensee;
(ii) Licensee's exercise of this license will not infringe a copyright or other
right of any person or entity: and (iii) no portion of the Licensed Materials is
subject to the requirements of the Fair Credit Reporting Act.
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1.6 Licensee warrants it will utilize Licensed Materials in compliance with
and according to the principles outlined by the Individual Reference Services
Group (IRSG) dated December 15, 1997, IRSG Principles and Commentary are
attached and incorporated herein by reference as Schedule S. Licensee. may use
Social Security Numbers only as specifically permitted by the IR G Principles
and Commentary.
2. DELIVERY OF LICENSED MATERIALS
------------------------------
2.1 TU shall, at its expense, deliver to Licensee all Licensed Materials,
including updates thereto consisting of all changes, additions and modifications
to the Licensed Materials since the most recent delivery of Licensed Materials
to Licensee ("Updates').
2.2 Initial delivery of the Licensed Materials to Licensee shall be made as
soon as reasonably practicable after the Effective Date hereof. Thereafter, TU
shall deliver Updates to Licensee on a monthly basis. In addition, TU shall
deliver a full reload of the Licensed Materials to Licensee no less frequently
than three times annually which shall consist of an entire replacement of the
Licensed Materials delivered under this Agreement and all changes, additions and
modifications to the Licensed Materials since either the initial delivery of
Licensed Materials to Licensee or the prior full reload of the Licensed
Materials which was delivered to Licensee, as the case may be.
2.3 TV shall use all reasonable efforts to transmit accurate and reliable
information and data. TU does not warrant or guarantee that Licensed Materials
are accurate, complete or up-to-date, and TU sh'ail incur no liability to
Licensee with respect thereto, whether direct or indirect, and whether or not
based upon the acts or omissions of TU or its officers, employees, agents, or
any third party contractors or suppliers of TU.
2.4 TU MAKES NO WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED. TU EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
ANY WARRANTIES THAT THE LICENSED MATERIALS COMPLY WITH ANY FEDERAL, STATE OR
LOCAL LAW OIL REGULATION NOT SPECIFICALLY RECITED HEREIN. TV HEREPY DISCLAIMS
ANY AND ALL SUCH OTHER WARRANTIES.
3. ROYALTY PAYMENTS
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3.1 Annual Schedule
Agreement Year *** Fee Royalty Payment to TU
-------------- ------------------------ ---------------------
Year 1 *** ***
Year 2 *** ***
Years 3-5 *** ***
*of revenue generated by Licensee from the use of the licensed Material(s) for
each particular query. See attached appendix 'A' for details.
3.2 Unless otherwise mutually agreed to in writing by the parties, the royalty
payment and
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minimum guarantee payable to TU after the Initial Term (as defined below in
Section B) shall be negotiated in good faith by the parties on a year by year
basis. Such negotiation shall commence no later than ***
*** For such payments due during Year six (B), (if
applicable), such negotiations shall begin ***
*** In the event the parties can not reach an agreement
by the end of any given term, this Agreement shall automatically terminate upon
the last day of the then current term.
3.3 Royalty payments will be made to TU by the Licensee on a *** basis
based on the royalty earned for that given ***
***
***
***
***
3.4 For royalty purposes, licensee will maintain a log of all inquiries made
against the TU Licensed Materials. The log will contain the User ID or other
appropriate identifier of the customer making the search and the date of the
search. The log will be used for determining royalty payments due TU. The
royalty log and customer invoices of the Licensee will be made available to TU
upon request for inspection and auditing. Licensee warrants it will maintain
accurate records of all royalty payments due to TU hereunder.
3.5 Payments shall be made in U.S. dollars. Within fifteen (15) days:
following each calendar month, Licensee shall provide TU with a summary billing
statement containing full supporting documentation to show royalty payments due
per this Agreement. Payment statements shall be paid and sent to the payment
address specified on Schedule C.
3.6 ***
***
***
***
4. VERIFICATION ACCESS
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4.1 When Licensed Materials become available in any of Licensee's online
services, Licensee shall furnish TU with an identification number (the "Special
ID") giving TU access to such Materials.
4.2 TU may, during the term of this Agreement, use the Special ID to access
the Iicensed Materials on Licensee's system, without charge. TU shall also pay
Licensee's standard commercial and published charges for use of Licensee's
products, using its Special ID, that do not include the Licensed materials.
Invoices for use of the Special ID shall be sent to the billing address
specified on Schedule D.
4.3 At all times while this Agreement is in effect, TU shall provide Licensee
with such access to, or furnish Licensee with such reports as may be requested
by Licensee from TU's database containing the Licensed Materials as may be
reasonably necessary or desirable for purposes of verification of the Licensed
Materials.
5. INDEMNIFICATION
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5.1 TU shall indemnify and hold Licensee, its affiliates and their respective
directors, officers,
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employees, agents, successors, assigns, licensees and distributors harmless
against any and all judgments, settlements, penalties, costs and expenses
(including attorneys' fees) paid or incurred in connection with claims by any
person which both (a) arise from use of Licensed Materials under this Agreement;
and (b) are attributable to infringement or misappropriation of any copyright or
other proprietary right of any third party, unless either is caused by a breach
by Licensee of any of its obligations under this Agreement. Notwithstanding the
above, in no event shall TU's aggregate liability (including all costs) for
all indemnification it becomes obligated to provide hereunder exceed the total
dollar amount received from Licensee hereunder for the six months immediately
preceding the claim giving rise to the obligation to indemnify.
5.2 Licensee shall indemnify and hold TU, its affiliates and their respective
directors, officers, employees, agents, successors and assigns harmless from and
against any and all judgments, settlements, penalties costs and expenses
(including attorneys' fees) paid or incurred in connection with claims by any
person which arise from the use of Licensed Materials under this Agreement.
5.3 If any claim or action is instituted or threatened by a third party
against a party to this Agreement for which it believes it has been indemnified
pursuant to this agreement, it shall promptly give notice thereof to the other
party. EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY FOR LOST PROFITS, LOST SAVINGS, DOWNTIME COSTS, OR ANY OTHER
INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT,
EVEN IF SUCH PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. TERM, TERMINATION
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6.1 The initial term of this Agreement. (the "Initial Term") shall commence on
the Effective Date and shall, unless sooner terminated pursuant to this
Agreement, continue for a period of five (5) years. Thereafter, this Agreement
shall automatically renew for successive additional one year terms. Except as
provided for elsewhere in this Agreement, after the Initial Term, either party
may terminate this Agreement upon providing the other party with ninety (90)
days' prior written notice.
6.2 This Agreement may be terminated prior to the expiration of the Initial
Term or any renewal term by either Licensee or TU in the event of a material
default by the other party. For purposes of this Section 6.2, the term material
default shall mean (a) failure by Licensee to pay any undisputed amounts which
remain past due under Section 3 for a period of thirty (30) days after receipt
by Licensee of written notice thereof from TU, or (b) failure by TU to provide
the Licensed Materials in accordance with this Agreement for a period of thirty
(30) days after TU's receipt of written notice thereof from Licensee, or (c)
failure of Licensee to comply with the principles outlined by the IRSG in
Schedule B within thirty (30) days after receiving written notice therof from
TU.
6.3 Either party may terminate this Agreement on thirty (30) days (or such
shorter time as may be necessary to comply with applicable law), prior written
notice to the other if the use of the Licensed Materials (or any portion
thereof) (i) is determined, in good faith by the terminating party, to be, or
will be, in violation of applicable law, regulatory or judicial action or (ii)
is the subject of litigation or threatened litigation by any governmental entity
or (iii) is the subject of an adverse and documented consumer reaction
related to consumer privacy issues. In the event of the occurrence of one or
more of the above, the
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parties shall undertake good faith discussions to determine whether any part of
the Licensed Materials may still be reasonably be delivered, or whether the
terms hereof may reasonably be modified so that it can continue.
6.4 TU may terminate this agreement on ninety (90) days prior written notice
for any reason.
6.5 Upon termination for any of the above clauses, on effective date thereof,
Licensee must physically return all TU Data and Licensed Materials or any
derivative works thereof to TU in its possession. Within thirty (30) days of
termination, Licensee must certify in writing to TU that Licensee has purged all
such information from its system.
7. CONFIDENTIALITY
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7.1 As used in this Agreement, "Confidential Information" means (a)
proprietary or trade secret information which is clearly labeled or designated
as confidential by the disclosing party, (b) any of the Licensed Materials or
information regarding the use of the Licensed Materials pursuant to this
Agreement, and (c) the provisions of this Agreement.
7.2 Licensee and TU agree that they will not, during the term of this
Agreement and for two years thereafter, disclose, nor permit any of their
employees or agents to disclose, to any other person or entity any Confidential
Information received from the other, except, as may be required by law.
8. NOTICES
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8.1 All notices given pursuant to this Agreement shall be in writing and sent
to TU or Licensee at the address specified below;
If to TU: If to Licensee:
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Trans Union LLC Worldwide Information, Inc.
555 West Xxxxx 00 Xxxxxxxx Xxxxxx - Xxxxx 000X
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel Attn: Chairman, C.E.O.
8.2 Either party may from time to time change its address specified herein by
notice to the other party.
9. SCHEDULES: ENTIRE AGREEMENT
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9.1 The schedules referenced in this Agreement are hereby incorporated in,
and made a part of, this Agreement.
9.2 This Agreement constitutes the entire agreement of the parties relating to
the subject matter hereof and supersedes all prior communications,
understandings and agreements, oral or written.
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10. GOVERNING LAW
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10.1 This agreement shall be interpreted and construed according to, and
governed by, the laws of the State of Illinois, without regard to its conflicts
of law principles.
11. MISCELLANEOUS
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11.1 With the exception of the license grant set forth in Subsection 1.2;
Subsections 2.1, 2.2, and 2.3; and Sections 3 and 4, all provisions of this
Agreement shall survive any termination of this Agreement. Moreover, termination
of this Agreement shall not relieve Licensee of payments due to TU through the
date of any such termination nor affect any rights, duties or obligations of
either party that accrue prior to the effective date of any such termination.
11.2 This Agreement and any amendments may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one agreement.
11.3 Nothing in this Agreement shall be construed to constitute or appoint
either party as the agent or representative of the other party for any purpose
whatsoever, or to grant to either party any right or authority to assume or
create any obligation or responsibility, express or implied, for or on behalf of
or in the name of the other, or to bind the other in any way or manner
whatsoever.
11.4 Neither party shall be liable to the other for any loss or damage
attributable to, and neither party shall deemed to be in default hereunder as a
result of any failure or delay in performance caused by force majeure. For
purposes of this Agreement, the term "force majeure" shall include strike,
lockout, earthquake, hurricane, flood, fire, or other acts of God or nature,
war, rebellion, civil disorders, laws, regulations, acts of civil or military
authorities (including the denial or cancellation of any export or other
necessary license), unavailability of materials, carriers or communications
facilities, and any other causes beyond the reasonable control of the party
whose performance is affected. Both parties shall use all reasonable efforts to
minimize the consequences of force majeure. Where force majeure remains in
effect for more than three months or if, at the beginning of a force majeure
condition it is clear that it will last longer than three months, either party
shall have the right to terminate this Agreement upon written notification to
the non-affected party.
11.5 Neither this Agreement nor any interest herein or in the license granted
under Section 1 may be assigned by either party without the prior written
approval of the other party, which approval will not be unreasonably withheld,
except that either party may assign this Agreement in its entirety to any
purchaser of all or any substantial-portion of its business or assets or to any
majority owned subsidiary without the other party's approval; provided however,
that in no event may Licensee assign this Agreement to a competitor of TU and
any attempt to do so shall be null and void and TU shall have the right to
immediately terminate this Agreement.
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IN WITNESS WHEREOF, the parties, through their duly authorized representatives
and intending to be legally bound, have executed this Agreement as of the first
date above written. The parties hereto agree that a faosimile transmission of
this fully executed Agreement shall constitute an original and legally binding
document.
TRANS UNION LLC WORLDWIDE INFORMATION, INC.
BY: /s/ XXXXXX XXXXXX BY: /s/ XXX X. XXXXXXXXX
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NAME: XXXXXX XXXXXX NAME: XXX X. XXXXXXXXX
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TITLE: V.P. New Business Development TITLE: President & C.E.O.
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SCHEDULE A
Credit File Header records consisting of the following information:
Last, first and middle name, and/or maiden name
Up to (3) three aliases
Most current and previous two (2) addresses
Date address reported
Telephone number
Birth date
Social security number
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APPENDIX A
ROYALTY %
PROJECT: LOCATE PLUS
ITEM; APPENDIX FOR TRANS UNION
SUMMARY: THE FOLLOWING LISTS SEARCHES AND THEIR USE OF TRANS UNION DATA.
THE AMOUNT OF USE IS LISTED BY PERCENTAGE.
LOCATING PEOPLE. TU (%)
(1) Search by name
a. Last name, first name, MI (opt) ***
b..Last name, first name, MI (opt) DOB ***
c. Last name, first name,.Ml (opt) XXX ***
d. Last name and DOB ***
e. Last name and state ***
f. Last name and city ***
g. Last name and zip code ***
(2) Search by address
a. Physical address ***
b. Mailing address or PO Box ***
c. Neighbor search by residential address ***
(3) Search by SS# ***
(4) Extended SS# Search ***
BUSINESS SEARCHES:
(1) Corporation and Limited Partnership Search
a. By company name ***
b. By owner name ***
c. By officer name ***
d. By registered agent ***
e. By state 1D No. ***
(2) Uniform Com ercial Code Filings
a. By debtor name ***
b. By secured party name ***
c. By filing number ***
REAL PROPERTY OWNERSHIP:
a. By individual or business name ***
b. By physical address ***
c. By mailing address ***
d. By parcel number ***
CIVIL SEARCHES: TU (%)
(1) Civil Judgements
a. By individual name ***
b. By business name ***
c. By case number ***
(2) Tax Liens
a. By individual name ***
b. By business name ***
c. By filing name ***
(3) Bankruptcy Filings
a. By individual name ***
b. By business name ***
c. By case number ***
d. By SS# /FEIN ***
(4) Bankruptcy, Liens, and Judgements (combination search)
a. By individual name ***
b. By business name ***
c. By case number ***
DRIVERS / MOTOR VEHICLE SEARCHES:
(1) Drivers Records (See attached schedule)
a. Input criteria will vary. Standard fields will be first name, last
name, MI, DOB, and license number.
(2) Vehicle Registrations
a. By plate number ***
b. By VIN number ***
COMPREHENSIVE SEARCH:
(1) Search combines the following: *** ***
a. Data from "Locating People" (name, ss#, YOB, all known addresses)
b. Expanded search on "all known addresses" to include relatives,
associates, and their identifying information
c. Corporations and limited partnerships by owner, officer, or registered
agent name
d. Real property by individual name
e. Bankruptcy, Liens, and Judgements by individual name.
f. FAA Airman Directory
g. US Coast Guard Vessel Records
h. Death records
TU (%)
DEATH SEARCH:
a. By name ***
b. By name and date of birth ***
c. By S S# ***
FAA AIRMAN DIRECTORY:
a. By name
b. By license number
US COAST GUARD VESSEL RECORDS:
a. By vessel name ***
b. By vessel number ***
REAL-TIME TELEPHONE SEARCH:
a. By telephone xxxxxx *** ***
b. By address ***
Schedule B
Attached Individual Reference Service Group Principles and Commentary
