EXHIBIT 10.5
Cooperative Marketing Agreement dated as of November 17, 1999
by and between the Company and CDB Infotek
Edgarized on or about January 3, 2000 as an exhibit to Form X-0 Xxxxx
X.X. Xxxxxxxxx Job #31589FS1
COOPERATIVE MARKETING AGREEMENT
This COOPERATIVE MARKETING AGREEMENT (the "Agreement") is entered into as
of the 17th day of November, 1999 by and between Xxxxxxx.xxx, Inc.,
("XXXXXXX.XXX"), and CDB Infotek, a subsidiary of ChoicePoint Services Inc.
("CDB") with reference to the following facts.
WHEREAS, CDB is the owner and operator of a proprietary electronic public
record information reference and retrieval system maintained on the World Wide
Web portion of the Internet ("CDB Site") containing certain data set forth on
Exhibit "A" ("CDB Data"), which it provides to its legal market subscribers
("CDB Subscribers"); and
WHEREAS, XXXXXXX.XXX is a legal publisher operating a proprietary
electronic law library maintained on the World Wide Web portion of the Internet
("XXXXXXX.XXX Site") containing certain data set forth on Exhibit "B"
("XXXXXXX.XXX Data"), which it provides to its subscribers ("XXXXXXX.XXX
Subscribers"); and
WHEREAS, CDB and XXXXXXX.XXX do not currently compete with each other, and
CDB and XXXXXXX.XXX desire to enter into a mutually beneficial arrangement so
they can better compete in their respective markets by offering enhanced
products and services; and
WHEREAS, CDB desires to make certain CDB Data available to XXXXXXX.XXX
Subscribers who are eligible to become CDB Subscribers ("Referred Subscribers")
through the normal course of business and via a hotlinked URL connection to a
co-branded CDB maintained site on the World Wide Web portion of the Internet
("Co-Branded Site"), and XXXXXXX.XXX
desires to provide access to the CDB Data to the Referred Subscribers, on the
terms and subject to the conditions set forth herein; and
WHEREAS, XXXXXXX.XXX desires to make the XXXXXXX.XXX Data available to CDB
Subscribers through the normal course of business and via a hotlinked URL
connection to the XXXXXXX.XXX Site, and CDB desires to provide access to the
XXXXXXX.XXX Data to CDB Subscribers, on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties agree as follows:
1. Icon(s). Each party shall provide the other with an icon(s) that
represents the other party's web site. Each Party will incorporate the
other party's icon(s) into its web site and will make such icon(s)
visible to all customers accessing such web site. In order to
facilitate such access, each party will supply the NIC registered
address(es) of those server(s) that will be accessed when any users
double-clicks the other party's icon(s).
2. Proprietary Interest. Each party acknowledges that the other party's
intellectual property, including without limitation, trademarks, logos
or icons are proprietary to each party and are protected by applicable
laws relating to copyright, trademark, patent and trade secrets. Each
party agrees that no proprietary rights pass to the other party by
virtue of this Agreement except for the right to incorporate each
party's icon(s) on the other party's web site.
3. Grant to XXXXXXX.XXX.
(a) CDB hereby grants to XXXXXXX.XXX the right to offer to the
XXXXXXX.XXX Subscribers the opportunity to become Referred
Subscribers, as determined by CDB, and to access the CDB Data on
the Co-Branded Site.
(b) XXXXXXX.XXX agrees that it will not offer data, which is the same
or similar to the CDB Data, from other public records providers
(except for data which may be offered by a subsidiary, parent, or
affiliate of XXXXXXX.XXX) on the XXXXXXX.XXX Site, any other
XXXXXXX.XXX site or any third party web site. Other public record
providers include without limitation, LEXIS-NEXIS, West Group,
Merlin, Dun & Bradstreet, DBT, Information America, U.S.
Xxxxxx.xxx, Inc. and any parent, subsidiary, or affiliate of
each.
(c) XXXXXXX.XXX agrees to cooperate with CDB throughout the term
hereof and to dedicate such resources as shall be necessary and
reasonable to assist CDB in the automation, tracking, fulfillment
and customer delivery of the CDB Data, without recourse to CDB
for any costs or expenses incurred by XXXXXXX.XXX. CDB shall be
responsible for all costs associated with the development and
maintenance of the CDB Site, the Co-Branded Site and the link
between the Co-Branded Site and the XXXXXXX.XXX Site, without
recourse to XXXXXXX.XXX for any costs or expenses incurred by CDB
in the development and maintenance of said sites.
(d) CDB shall have the exclusive right to determine whether
XXXXXXX.XXX Subscribers qualify to become Referred Subscribers in
order to access
CDB Data. CDB may in its sole discretion terminate any Referred
Subscriber's access immediately for any reason.
(e) CDB shall perform for the Referred Subscribers all functions that
it performs for its customers generally including customer
service and training for qualified Referred Subscribers, and CDB
shall act as the point of contact and communication with Referred
Subscribers for CDB Data and services.
4. Use Limitations of the CDB Data.
(a) Both parties acknowledge that CDB, XXXXXXX.XXX and Referred
Subscribers will be required to agree that CDB Data cannot be
used for any consumer credit purposes, consumer insurance
underwriting, employment purposes, tenant screening purposes, or
for any other purpose(s) specified by the federal Fair Credit
Reporting Act (15 U.S.C. Sec. 1681 et seq., as amended) or
similar state or federal statute.
(b) XXXXXXX.XXX understands and acknowledges that CDB complies with
the IRSG Principles and that compliance to IRSG Principles
extends to the Referred Subscribers. XXXXXXX.XXX also understands
and acknowledges that CDB has identified industry specific
appropriate uses for which the CDB Data is to be used, and
XXXXXXX.XXX understands and acknowledges that the IRSG Principles
may be amended at any time and/or that other industry principles
or CDB policies and procedures may be amended at any time, which
may have the effect of either limiting or
expanding the ability of XXXXXXX.XXX or Referred Subscribers to
use the CDB Data.
(c) XXXXXXX.XXX understands and acknowledges that the Referred
Subscribers must agree to state their appropriate use for any CDB
Data, prior to accessing it, must limit their use to those stated
purposes, and must take appropriate measures so as to protect
against the misuse of CDB's Data. Provided however, that
XXXXXXX.XXX shall not be responsible, and shall have no
liability, with respect to any misuse of CDB Data by a Referred
Subscriber. XXXXXXX.XXX understands and agrees that in order to
ensure compliance with IRSG Principles and other use limitations,
CDB will conduct periodic audits and reviews of the Referred
Subscriber activity and will, on a random basis, contact the
Referred Subscribers to provide documentation of executed
searches.
(d) XXXXXXX.XXX acknowledges that CDB and/or third parties retain all
right, title and interest under applicable contractual, copyright
and related laws in the CDB Data, and XXXXXXX.XXX and Referred
Subscribers shall be required to use such CDB Data consistent
with such right, title and interest of CDB.
(e) XXXXXXX.XXX further acknowledges that Referred Subscribers must
agree not to reproduce, retransmit, republish or otherwise
transfer for commercial purpose any CDB Data, except to employees
whose duties reasonably relate to the legitimate business
purposes for which the
information is requested. XXXXXXX.XXX acknowledges that Referred
Subscribers shall warrant that they are the end users of the
information.
5. Grant to CDB.
(a) XXXXXXX.XXX hereby grants to CDB the right to offer CDB
Subscribers access to the XXXXXXX.XXX Data by way of the Co-
Branded Site and/or the CDB Site.
(b) CDB agrees that it will not offer data, which is the same or
similar to the XXXXXXX.XXX Data, from comprehensive electronic
case law providers (except for data which may be offered by a
subsidiary, parent or affiliate of CDB) on the Co-Branded Site,
the CDB Site, or on another CDB or third party web site. Other
comprehensive electronic case law providers include without
limitation, LEXIS-NEXIS, West Group and any parent, subsidiary,
or affiliate of each.
(c) CDB agrees to cooperate with XXXXXXX.XXX throughout the term
hereof and to dedicate such resources as shall be necessary and
reasonable to assist XXXXXXX.XXX in the automation, tracking,
fulfillment and customer delivery of XXXXXXX.XXX Data, without
recourse to XXXXXXX.XXX for any costs or expenses incurred by
CDB. XXXXXXX.XXX shall be responsible for all costs associated
with the development and maintenance of the XXXXXXX.XXX site and
the link between the XXXXXXX.XXX Site and the CDB Site, without
recourse to CDB for any costs or expenses incurred by XXXXXXX.XXX
in the development and maintenance of said site.
(d) XXXXXXX.XXX shall perform for CDB Subscribers all functions that
it performs for its customers generally, including without
limitation, customer service and related functions, including
training for all qualified CDB Subscribers, and XXXXXXX.XXX shall
act as the point of contact and communication with CDB
Subscribers for XXXXXXX.XXX Data and services.
(e) XXXXXXX.XXX grants to CDB the right to use XXXXXXX.XXX's merchant
identification number for the orders placed by Referred
Subscribers under this Agreement.
6. Pricing.
(a) Each party shall have the right at all times to determine the
product it will offer, the prices to be charged by it for each
product and the methods of sale and distribution of its products,
it being the intention of the parties hereto to preserve in full
CDB's unencumbered ownership of the CDB Data and the rights and
benefits thereof and XXXXXXX.XXX's unencumbered ownership of the
XXXXXXX.XXX data and the rights and benefits thereof.
(i) For each search purchased by a Referred Subscriber and
charged to XXXXXXX.XXX's merchant identification number, CDB
will receive $22.50 for each Comprehensive Business Search
and $11.70 for each Comprehensive Individual Search from
XXXXXXX.XXX. XXXXXXX.XXX is free to determine the prices to
be charged for each product as stated above. If a Referred
Subscriber stops accessing the Co-Branded Site and starts
accessing CDB Date directly from the CDB Site and is not
already a CDB Subscriber, then CDB agrees to pay XXXXXXX.XXX
10% of the payment made by Referred Subscriber to CDB for
each search of the CDB Data conducted by the Referred
Subscriber for a period of one (1) year after the initial
search.
(ii) XXXXXXX.XXX agrees to pay to CDB a 30% commission for a
period of one (1) year from the initial (not renewal)
commencement date of any subscription (based on the price of
all the XXXXXXX.XXX products or services) sold by CDB and
licensed by XXXXXXX.XXX. The appropriate split on commission
for joint sales efforts will be determined on a case-by-case
basis.
(b) All fees for the previous month's activity are due within thirty
(30) days after the end of that month.
7. Marketing and Sales Efforts.
(a) The parties hereby undertake to use their reasonable efforts
during the Initial Term and any Renewal Term(s) to promote the
availability of the other party's data, to undertake marketing
and promotional activities both jointly and separately related
thereto, and to make regular efforts to increase the number of
Subscribers with access to each other's Sites. Without limiting
the foregoing, each party shall advise its Subscribers on or
about the Effective Date, either through notice, publication in
its
newsletter or the circulation of announcements of the
availability of the CDB Data and the XXXXXXX.XXX Data.
(b) All marketing materials describing this agreement or relationship
between the parties must be approved prior to production and
distribution by both parties.
(c) Both parties agree to make joint sales calls to the largest 250
law firms in the United States.
8. CDB Database Enhancement. XXXXXXX.XXX agrees on a quarterly basis to
update the CDB lawyer database with the lawyer address and law firm
affiliation information that XXXXXXX.XXX has in its possession.
9. Representations and Warranties.
(a) CDB hereby represents and warrants to XXXXXXX.XXX that (i) it is
a corporation duly organized and validly existing under the laws
of the State of California, (ii) it has the right, authority, and
ability to conduct its business as it is currently being
conducted, (iii) to its knowledge, its license and distribution
of the CDB Data to Referred Subscribers shall be in accordance
with all applicable laws, regulations and ordinances, and (iv) to
its knowledge, such license and distribution of the CDB Data to
Referred Subscribers shall not infringe on the rights of any
other person or entity.
(b) XXXXXXX.XXX hereby represents and warrants to CDB that (i) it is
a corporation duly organized and validly existing under the laws
of the State of Delaware, (ii) it has the right, authority, and
ability to conduct its
business as it is currently being conducted, (iii) to its
knowledge, its licensing and distribution of the XXXXXXX.XXX Data
to CDB Subscribers shall be in accordance with all applicable
laws, regulations and ordinances, and (iv) to its knowledge, such
licensing and distribution of the XXXXXXX.XXX Data by CDB shall
not infringe on the rights of any other person or entity.
(c) Neither party shall be liable to the other party or any third
party in contract, tort, or otherwise for any indirect,
incidental, or consequential loss or damage.
(d) EACH PARTY COVENANTS AND PROMISES THAT IT WILL NOT XXX THE OTHER
PARTY FOR OR SEEK PUNITIVE DAMAGES IN ANY SUIT. EACH PARTY DOES
NOT MAKE AND HEREBY DISCLAIMS ANY WARRANTY EXPRESS OR IMPLIED.
NEITHER PARTY GUARANTEES OR WARRANTS THE CORRECTNESS,
COMPLETENESS, CURRENTNESS, MERCHANT ABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE OF THE DATA. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER PARTY OR TO ANY PERSON CLAIMING THROUGH IT FOR ANY LOSS
OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART, BY SUCH
OTHER PARTY'S NEGLIGENT ACTS OR OMISSIONS IN PROCURING,
COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR
DELIVERING THE DATA.
10. Breach of Representations and Warranties. Notwithstanding section
9(c), in the event that either party breaches any of the
representations and warranties made to the other party herein, or
fails to perform any of its obligations contained in this Agreement,
and if such breach or failure is not cured within 10 business days of
written notice thereof (or if a cure is not commenced if such breach
or failure is not readily curable within such period) and damages
result therefrom, the non-breaching party shall be entitled to receive
from a court of competent jurisdiction the entire amount of costs,
claims, demands, damages, losses or liabilities incurred or suffered
by such non-breaching party resulting from such breach or failure by
the other party, including, without limitation, reasonable attorneys'
fees and costs of suit incurred in defending any action brought by any
person or entity as a result of such breach of failure, as such fees
and costs are incurred.
11. Term and Termination.
(a) The term of this Agreement ("Term") shall be for an initial
period of two (2) years (the "Initial Term"), unless earlier
terminated pursuant hereto, commencing on the date first set
forth above ("Effective Date"). This Agreement shall
automatically be renewed for additional one year periods (each a
"Renewal Term") unless either party, within the 60 day period
prior to the end of the Initial Term or of any Renewal Term,
informs the other party of its intention not to renew this
Agreement.
(b) Either party may terminate this Agreement and the rights granted
hereunder at any time without any liability or obligation
whatsoever: (i)
upon One Hundred and Twenty (120) days prior written notice to
the other party, or (ii) upon fifteen (15) business days prior
written notice of a material breach of the other party, if such
breach is not cured within such fifteen (15) business day period.
(c) If at any time during the Initial Term or any Renewal Term,
applicable law or regulation, including the Individual Reference
Services Group ("IRSG") Principles dated December 15, 1997 set
forth at Exhibit "C", restricts or forbids CDB's resale of the
CDB Data or XXXX LAW. COM Data such that the benefit to CDB from
this Agreement is materially reduced or eliminated, CDB shall
have the right, in its discretion, to terminate this Agreement
upon ten (10) days prior written notice to XXXXXXX.XXX.
(d) If XXXXXXX.XXX terminates this Agreement pursuant to paragraph
(b) of this section, XXXXXXX.XXX agrees that it will not enter
into the same or similar business arrangement offering data,
which is the same or similar to the CDB Data, from any other
public records provider for a period of one (1) year after the
termination of this Agreement. If CDB terminates this Agreement
pursuant to paragraph (b) of this Section, CDB agrees that it
will not enter into the same or similar business arrangement
offering data, which is the same or similar to the XXXXXXX.XXX
Data, from any other comprehensive electronic case law provider
for a period of one (1) year after the termination of this
Agreement.
12. Miscellaneous.
(a) Notwithstanding any of the provisions of this Agreement, the
relationship between the parties shall be that of independent
contractors. No provision hereof shall be construed to imply the
formation of a joint venture, partnership, agency relationship or
any other joint relationship, and neither party shall have the
right, power or authority to create any obligation, express or
implied, on behalf of the other without its express prior written
permission.
(b) This Agreement may be executed in one of more counterparts, each
of which shall be deemed an original, but all of which together
shall constitute one and the same document. This Agreement is
entered into and shall be interpreted in accordance with the laws
of the State of Georgia, without giving effect to the principles
of conflicts of law thereof.
(c) All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been given
or made when delivered personally or three business days after
having been sent by registered or certified mail (postage
prepaid, return receipt requested) or one business day after
having been sent by Federal Express or other comparable
nationally recognized overnight courier service (receipt
requested), as follows:
Xxxx X. Xxxxxx
Xxxxxxx.xxx, Inc.
000 Xxxxx 00xx Xxxxxx
Xxx Xxxxx, XX 00000
Phone: 000-000-0000
Fax: (000) 000-0000
If to CDB, to:
CDB Infotek
Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Attn: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
ChoicePoint Services Inc.
0000 Xxxxxxxx Xxxxx, XX00X
Xxxxxxxxxx, XX 00000
Attn: J. Xxxxxxx xx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other persons or at such other addresses as either party shall have
designated by like notice in writing to the other party.
(d) If any provision of this Agreement shall be declared by any court
of competent jurisdiction to be illegal, void or unenforceable,
all other provisions of this Agreement shall not be affected and
shall remain in full force and effect. The headings contained in
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement. This Agreement (including
Exhibits) constitutes the entire agreement among the parties
hereto and supersedes all prior and contemporaneous agreements
and understandings, both written and oral, between the parties
hereto, with respect to the subject matter hereof.
(e) This Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors and assigns. Neither
this Agreement nor any of the parties' rights, interests or
obligations hereunder
shall be assignable by either party without the prior written
consent of the other party, provided that no transfer of the
capital stock or sale of all or substantially all of the assets
of a party shall be considered an assignment hereunder. Any
attempted assignment of this Agreement in breach of this
provision shall be void and of no effect.
(f) In the event any dispute between the parties relating to
enforcement or interpretation of this Agreement cannot be
resolved, the parties hereby agree to have such dispute settled
by arbitration conducted by a single arbitrator acceptable to
both parties pursuant to the then current rules of the American
Arbitration Association. Unless the arbitrator shall rule
otherwise, each party shall pay its own expenses related to such
arbitration and one-half of the costs of conducting the
arbitration procedure.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
officers, have executed this Agreement as of the day and year first above
written.
Xxxxxxx.xxx, Inc. CDB Infotek
By: /s/ Xxxx Xxxxxx By: /s/ J. Xxxxxxx xx Xxxxx
----------------------------- -----------------------------
Name: Xxxx Xxxxxx Name: J. Xxxxxxx xx Xxxxx
------------------------- -------------------------
Title: C.E.O Title: General Counsel
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List of Exhibits
Exhibit A: Description of CDB Data Used by the Legal Market Segment
Exhibit B: Description of Xxxxxxx.xxx Data
Exhibit C: Individual References Services Group Principles
