DATABASE LICENSE AGREEMENT
(SINGLE SERVER/INTERNET)
THIS IS AN AGREEMENT, dated as of July 9, 1998 by and between XXXXX &
XXXXXX, INC. ("B&T"), a Delaware corporation having a place of business at Five
Xxxx Xxxxxx Xxxxx, Xxxxx 000, 2709 Water Ridge Parkway, Charlotte, North
Carolina and YouNetwork Corporation ("Licensee"), a New York State Corporation
having a place of business at 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx, Xxxx, Xxx
Xxxx 00000.
W I T N E S S E T H:
WHEREAS, B&T, through its unincorporated operating unit Xxxxx & Xxxxxx
Books ("Books") distributes books, spoken word audio products and other similar
products and provides value-added services; and
WHEREAS, B&T, through its unincorporated operating unit Electronic
Business and Information Services, grants limited access to its Database
(hereinafter defined) to specified users; and
WHEREAS, Licensee desires B&T to grant to Licensee a license, under
the terms and conditions set forth herein, to use the Licensed Data or any
portion thereof and CD-EXPORT (hereinafter defined); and
WHEREAS, B&T is willing to grant such a license in accordance with the
terms and conditions set forth below.
ACCORDINGLY, in consideration of the covenants, promises and
undertakings provided for herein and for other valuable consideration, the
receipt and legal sufficiency of which the parties acknowledge, the parties
agree as follows:
1.00 DEFINITIONS
As used throughout this Agreement the following terms have the
following meanings:
1.01 "CD-EXPORT" means B&T's specialized software application which
allows Licensee to search the Database without using any other application
screen interfaces;
1.02 "Database" means B&T's complete title file database containing
the bibliographic records consisting of, among other things, the Licensed Data
or any portion thereof, as the same from time to time may be modified by B&T
during the Term of this Agreement (hereinafter defined), for books and spoken
word audio products (sometimes hereinafter collectively referred to as "Books
Products").
1.03 "Effective Date" means the date of this Agreement.
1.04 "Licensed Data" means (a) the data elements in electronic
database form which are more particularly set forth on Schedule 1.04 attached
hereto and made a part hereof, for each title on the Database, (b) any updates
provided by B&T to such data elements from time to time, and (c) such other
data elements as B&T at its sole discretion from time to time hereafter may
agree to add without further consideration by Licensee;
[[1.05 "Year" means the twelve (12) month period beginning at 12:00
(Eastern U.S. Time) on the Effective Date and terminating at 11:59 P.M.
(Eastern U.S. Time) on the day immediately preceding the anniversary of the
Effective Date or any one (1) twelve (12) month period subsequent thereto.]]
2.00 LICENSE
2.01 Subject to the terms and conditions of this Agreement and extent
of the license which Licensee is granted hereby, and based upon B&T's receipt
of its license fee payments then currently due, B&T hereby grants to Licensee
and Licensee hereby accepts from B&T a non-exclusive, nontransferable and
revocable license:
(a) to display all or a portion of the Licensed Data on Licensee's
Internet web site for viewing by users in "read only" access;
(b) to use CD-EXPORT solely for the purpose of utilizing the Licensed
Data or any portion thereof at Licensee's Internet web site; and
(c) to display all or a portion of the Licensed Data on Licensee's
in-house database system by means of a single server for viewing by users.
(d) to display Xxxxx & Xxxxxx'x name and logo as the supplier of the
database and/or books and related product.
Licensee will not make all or any portion of the Database, the Licensed Data
and/or CD-EXPORT accessible to any persons other than persons specifically
authorized for the purposes above. Licensee will use its best efforts to take
all reasonable steps to prevent or restrict the downloading, transmission,
display or copying of the information contained in all or any portion of the
Database and/or the Licensed Data to a degree which is not necessary for
purposes of ordering the products listed thereon. Such steps may include, but
will not be limited to, the following: the use of passwords,
encryption/de-encryption algorithms used in the security process and similar
tools. The license granted hereby is personal to the Licensee. Licensee may use
the license solely for the purposes specified above. Nothing contained in this
Agreement will, or will be deemed to, convey any title or will, or will be
deemed to, convey any title or
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ownership interest in all or any portion of the Database, the Licensed Data
and/or CD-EXPORT regardless of whether any portion thereof is used by Licensee
or other users.
2.02 B&T reserves all rights with respect to all or any portion of the
Database, the Licensed Data and/or CD-EXPORT not expressly granted to Licensee,
nor expressly contemplated, herein. This reservation specifically applies, but
is not limited, to any media, mode or method of distribution or transmission or
other technology that may be commercialized or developed in the future.
3.00 TERM
[3.01 (a) Subject to the terms and conditions hereof, this Agreement
will be effective for a period (the "Term") beginning on the Effective Date and
ending at 11:59 P.M. (Eastern U.S. Time) on the day preceding the first
anniversary of the Effective Date (as the case may be, the "Termination Date").
(b) Despite the statements in the preceding clause (a) of this Section
3.01, Licensee may terminate this Agreement for any reason whatsoever during
the Term by giving notice to B&T not less than thirty (30) days prior to the
date on which Licensee wishes to terminate this agreement. In such an event,
this Agreement automatically will terminate on the date set forth in Licensee's
notice as if it were the Termination Date. If Licensee wishes to terminate this
Agreement pursuant to this clause (b), none of the annual licensee fees payable
with respect to the period of time after which this Agreement is terminated
will be refunded to Licensee.]
[[3.01 (a) Subject to the terms and conditions hereof, this Agreement
will be effective for a period (the "Initial Term") beginning on the Effective
Date and ending at 11:59 P.M. (Eastern U.S. Time) on the day preceding the
[first][second][third] anniversary of the Effective Date (the "Initial
Termination Date").
(b) Unless one of the parties (the "Notifying Party") to this
Agreement notifies the other party not less than 60 days prior to the Initial
Termination Date or any subsequent Termination Date (hereinafter defined) that
the Notifying Party desires that this Agreement not be renewed, and if this
Agreement otherwise is in full force and effect and no Event of Default has
occurred, this Agreement automatically may be renewed for not more than two (2)
consecutive periods of one (1) Year each (each such period, a "Renewal Term",
and the Initial Term or any Renewal Term being hereinafter referred to as the
"Term"). Each such renewal will be under the terms and conditions as set forth
in this Agreement, except that the annual license fee for each Renewal Term may
be increased by B&T at its option on notice given to Licensee not
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less than 75 days prior to the Initial Termination Date or any subsequent
Termination Date. If the Notifying Party desires that this Agreement not be
renewed, this Agreement automatically will expire on the Initial Termination
Date or on the Termination Date of the Term, as the case may be. As used in
this Agreement, "Termination Date" means the anniversary of the Initial
Termination Date in a Renewal Term to which the same relates.]]
3.02 Immediately upon termination of this Agreement, whether or not
pursuant to this Article, the following will occur:
(a) all rights and licenses granted to Licensee hereunder
automatically will terminate;
(b) Licensee promptly will permanently delete all or any portion of
the Database, the Licensed Data and/or CD-EXPORT and any copies thereof from
all computers, all database and other systems and/or any storage medium of
Licensee in any location, whether backup or otherwise (including persons and/or
entities within Licensee's direct control, such as non-Internet users having
access by, through or under Licensee);
(c) Licensee will not use, or permit any user having access by,
through or under Licensee to use, all or any portion of the Database, the
Licensed Data and/or CD-EXPORT in any way; and
(d) Licensee will return all Database, Licensed Data and/or CD-EXPORT
media received from B&T, together with any copies made from the same. For a
period of not less than ten (10) consecutive days immediately following the
date on which this Agreement terminates, Licensee will post the following
notice at Licensee's Internet web site so that it is visible by all users
thereof: "Effective immediately, [insert Licensee's name used at its web site)
will no longer be using Xxxxx & Xxxxxx, Inc.'s database of books and spoken
word audio products at this web site." Licensee will certify in writing that
the terms contained in the preceding clauses (a)-(d) have been complied with.
4.00 THE PARTIES' OBLIGATIONS
4.01 Licensee will:
(a) pay B&T according to the terms of this Agreement;
(b) not directly or indirectly duplicate, copy, transmit, publish,
provide access to (by electronic or any other means) exchange, throw away, or
incorporate with, or as part of another database, package, program, record or
system, all or any portion of the Database, the Licensed Data and/or CD-EXPORT
for any purpose except as provided in Section 2.01 of this Agreement;
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(c) use its best efforts to take all reasonably necessary steps to
ensure compliance with Licensee's obligations under this Agreement by users of
its Internet web site and its employees, agents, representatives and customers.
Such best efforts will include, but not be limited to, taking such steps as
directed pursuant to this Agreement and pursuant to any instruction made by B&T
at any time during the effective period and after termination of this
Agreement;
(d) except to display the same as expressly provided herein at
Licensee's Internet web site and/or on Licensee's in-house database system at a
single location for viewing by users at such location, not sell, offer for
re-sale, distribute, rent, sublicense or lease all or any portion of the
Database, the Licensed Data and/or CD-EXPORT, nor use all or any portion of the
Database, the Licensed Data and/or CD-EXPORT in a network, timesharing,
multiple central processor unit or multi-user arrangement;
(e) not combine or incorporate all or any portion of the Database, the
Licensed Data and/or CD-EXPORT with any other program, database, record or
system which will be sold, offered for re-sale, distributed, rented,
sublicensed or leased;
(f) not utilize all or any portion of the Database and/or the Licensed
Data in connection with any sales by Licensee, by any partner or affiliate of
Licensee or by any enterprise or entity in which Licensee has any interest,
except for sales to retail consumers;
(g) pay all sales, use, value-added, excise or similar taxes
associated with Licensee's or its users' use of all or any portion of the
Database, the Licensed Data and/or CD-EXPORT;
(h) reproduce, incorporate and maintain each and every B&T
proprietary, trade secret or copyright notice in any copy or partial copy of
ail or any portion of the Database, the Licensed Data and/or CD-EXPORT or in
any database containing any element of the Database and/or the Licensed Data,
and not remove or obscure any B&T proprietary, trade secret or copyright notice
or other legend with respect to all or any portion of the Database, the
Licensed Data and/or CD-EXPORT;
(i) comply with all laws and regulations relating to or pertaining to
the sale, distribution, export or use of all or any portion of the Database,
the Licensed Data and/or CD-EXPORT and maintain high quality and standards
associated with B&T;
(j) promptly notify B&T in writing if Licensee becomes aware of the
unauthorized reproduction, manufacture or sale of, or of any acts that are
prohibited in this section with respect to, all
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or any portion of the Database, the Licensed Data and/or CD-EXPORT by anyone
having access to the Licensed Data or any portion thereof by means of
Licensee's Internet web site or Licensee's in-house database system.
4.02 B&T will deliver CD-EXPORT to Licensee contemporaneously with
the software which contains the Database and any updates to the Database so
that Licensee may access the Licensed Data from the Database.
5.00 FEES AND PAYMENTS
5.01 (a) Licensee will pay B&T a $1,000 license fee for the Database
and the Licensed Data in consideration of the license of the same [[for each
Year]] during the Term.
(b) Licensee will pay B&T a $1,650 subscription fee for a one (1) year
subscription of the weekly edition of THE TITLE SOURCE [[for each Year during
the Term]].
5.02 (a) Payment of the license and subscription fees will be made in
full prior to delivery of THE TITLE SOURCE, the Licensed Data and/or CD-EXPORT
to Licensee at the beginning of the [[Initial]] Term [[and, if this Agreement
is renewed beyond the Initial Term, prior to the first day of each Year
thereafter]]. B&T has no obligation to deliver all or any portion of THE TITLE
SOURCE, the Licensed Data and/or CD-EXPORT until Licensee pays the license and
subscription fees. All fees are non-refundable.
(b) B&T will send all billing invoices to Licensee at the address from
time to time specified in writing by Licensee.
(c) All payments to B&T will be made in U.S. Dollars and by delivery
to the address set forth in B&T's billing invoice to Licensee.
6.00 DEFAULT AND REMEDIES
6.01 The following will be an Event of Default: Licensee's failure to
perform any of its obligations, or failure to comply with any of its
agreements, hereunder which failure is not cured within ten (10) business days
after notice from B&T (including, but not limited to, Licensee's use of all or
any portion of the Licensed Data and/or CD EXPORT in a manner or form not
expressly authorized by this Agreement).
6.02 If an Event of Default occurs, B&T will have all rights and
remedies available to it under applicable law or in equity. In addition to
such rights and remedies, B&T also may:
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(a) declare this Agreement and the license granted herein immediately
terminated;
(b) xxx Licensee for the fulfillment of its obligations under this
Agreement; and/or
(c) seek an injunction against Licensee to compel Licensee to comply
with the terms of this Agreement and/or to cease activities which constitute a
default of Licensee's obligations hereunder.
In addition to B&T's rights set forth above in subsections (a)-(c), Licensee
also will cease use and/or display of all or any portion of the Licensed Data
within 36 hours after receipt of B&T's notice that an event of Default has
occurred.
6.03 If an Event of Default occurs in which Licensee is either using,
or providing access to, all or any portion of the Database, the Licensed Data
and/or the CD-EXPORT, in breach of the terms of this Agreement then, in
addition to any other remedies which B&T may seek hereunder, Licensee will be
obligated to promptly pay B&T, as and for liquidated damages, an amount equal
to the product of $10,000 and each day in which such Event of Default remains
unremedied. For the purposes of calculating liquidated damages under this
Section 6.03, a portion of a day will constitute a full day.
7.00 NO WARRANTY
7.01 THE DATABASE, THE LICENSED DATA OR ANY PORTION THEREOF AND/OR
CD-EXPORT ARE PROVIDED "AS IS" WITHOUT WARRANTY, EXPRESS OR IMPLIED, OF ANY
KIND. EXPRESSLY EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. Licensee will advise all users that B&T makes no
warranties with respect to the Database, the Licensed Data or any portion
thereof and/or CD-EXPORT.
7.02 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY B&T, ITS AGENTS
OR EMPLOYEES WILL CREATE A WARRANTY AND LICENSEE MAY NOT RELY ON ANY SUCH
INFORMATION OR ADVICE.
7.03 B&T's sole liability and Licensee's exclusive remedy with respect
to a defect in the medium on which the Database and/or the Licensed Data is
delivered to Licensee will be replacement of such medium, as long as the
defective medium is returned to B&T with a copy of the receipt which accompanied
delivery of the medium to Licensee. If failure of the medium results from
accident, abuse or misapplication, B&T will have no responsibility to replace
the medium.
8.00 INDEMNIFICATION
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8.01 As long as Licensee promptly notifies B&T in writing of such a
claim, B&T at its own expense will defend any action brought and pay any final
judgement against Licensee to the extent that such action is based on a claim
that all or any portion of the Database, the Licensed Data and/or CD-EXPORT
infringes any copyright or subscription rights in existence as of the effective
date of this Agreement. B&T will have the right to control the defense of all
such claims, lawsuits or proceedings without Licensee's prior written approval.
If, because of any claim of infringement against any copyright or subscription
right which is based on a claim that all or any portion of the Database, the
Licensed Data and/or CD-EXPORT infringes any copyright or subscription rights,
either B&T or Licensee is enjoined from using all or any portion of the
Database, the Licensed Data and/or CD-EXPORT, or if B&T believes that all or
any portion of the Database, the Licensed Data and/or CD-EXPORT is likely to
become the subject of such a claim of infringement, B&T may, at its sole option
and expense, may do the following: (a) obtain the right for Licensee to
continue to use the Database, the Licensed Data or any portion thereof and/or
CD-EXPORT; or (b) replace or modify all or any portion of the Database, the
Licensed Data and/or CD-EXPORT so as to make it non-infringing. If neither of
these two options is reasonably practicable, B&T may terminate this Agreement
by written notice to Licensee. The foregoing states the entire liability of B&T
with respect to infringement of any copyright or subscription rights by the
Database or the Licensed Data.
8.02 The indemnity set forth in Section 8.01 will not extend to any
claims of infringement resulting from (i) modification of all or any portion of
the Database, the Licensed Data and/or CD-EXPORT by Licensee or any user
having access to the same, (ii) modification of all or any portion of the
Licensed Data and/or CD-EXPORT by, through or under Licensee, (iii) the use of
all or any portion of the Database, the Licensed Data and/or CD-EXPORT in
combination with any other software, hardware or server or (iv) the use of the
same by Licensee or any user in a manner for which all or any portion of the
Database, the Licensed Data and/or CD-EXPORT are not designed, or from any
product which incorporates any of the modifications noted above.
8.03 Licensee will indemnify and hold harmless B&T, its officers,
employees and directors from any loss, liability, damage, cost or expense,
including reasonable attorneys' fees and expenses, arising out of
(a) Licensee's breach of its obligations under this Agreement; and/or (b) any
modifications, however slight, made by or on behalf of Licensee to all or any
portion of the Database, the Licensed Data and/or CD-EXPORT. Licensee expressly
acknowledges that B&T will not be liable to Licensee or any of its customers
for any damage incurred by any of them arising from such modifications.
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9.00 NOTICES
All communications, notices, and the like required or given pursuant
to any provision of this Agreement, must be given by Express Mail or by
Certified Mail, Return Receipt Request and will be deemed to have been properly
made or given, if by Express Mail, when received by the addressee and, if by
certified mail, five (5) days after deposit, postage prepaid, with the U.S.
Postal Service, addressed as follows:
If to B&T:
Xxxxx & Xxxxxx, Inc.
000 X. Xxxxxxxxx
Xxxxxxx, Xxxxxxxx X.X.X. 00000
Attn.: ITG Distribution Coordinator
If to Licensee:
YouNetwork Corporation
000 Xxxx 00xx Xxxxxx,
Xxxxx 000,
Xxx Xxxx, Xxx Xxxx 00000.
Attention: Xxxx X. Xxxxxx
Either party may change its address as set forth above by notification in
writing to the other party, however any such notification will only become
effective upon actual receipt thereof.
10.00 MISCELLANEOUS
10.01 The waiver or failure of either party hereto to exercise in any
respect any right provided for herein will not be deemed a waiver of any
further right hereunder.
10.02 Dates or terms by which either party is required to perform
under this Agreement will be postponed automatically to the extent that either
party is prevented from meeting them by causes beyond its reasonable control
and for the duration of any such cause.
10.03 (a) This Agreement and the transactions provided for herein will
be governed, construed and enforced according to the laws of the State of New
Jersey (excluding any conflict-of-law provisions thereof).
(b) Licensee and B&T hereby agree to bring any dispute, controversy or
claim arising out of this Agreement or the matters provided for in this
Agreement and which has not been resolved by the parties through an informal
process within 45 days after
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either party notifies the other that a matter is in dispute, for settlement in
Newark, New Jersey in accordance with the Rules of American Arbitration
Association (the "Rules") . Each party will bear its own legal expenses,
attorneys' fees and disbursements and costs of all experts and witnesses.
However, if the claim of either party is upheld by the arbitrators in all
material respects, then the prevailing party will be promptly reimbursed by the
other party for its legal expenses, attorneys' fees and disbursements and costs
of its experts and witnesses and the prevailing party also will pay all fees,
costs and expenses of the arbitration. Any award rendered will be final and
conclusive upon the parties. Any judgment thereon may be enforced in any court
having jurisdiction. Both parties will continue to perform their respective
obligations under this Agreement during any arbitration proceedings.
Notwithstanding the Rules, the arbitrator's determination will only be in favor
of one party's position.
10.04 For a period of time not to exceed two (2) years after the date
on which this Agreement expires or terminates, Licensee will maintain accurate
records at one office of Licensee within the continental United States
concerning Licensee's use of, including without limitation all records of
access to, all or any portion of the Database, the Licensed Data and/or
CD-EXPORT under this Agreement. During the Term, and for a two (2) year period
after the date on which Agreement expires or terminates, on reasonable prior
notice to Licensee and during Licensee's normal business hours, B&T will have
the right to audit Licensee's records with respect to such use and with respect
to Licensee's compliance with the terms hereof. As soon as Licensee uses any
portion of the Licensed Data at its Internet web site, Licensee also will
provide B&T at no expense to B&T with any passwords and access codes necessary
to enable B&T to have access to the same in order to confirm Licensee's
compliance with the terms of this Agreement.
10.05 Licensee agrees in advance that this Agreement may be assigned
by B&T. Licensee will not assign this Agreement, by operation of law or
otherwise, without B&T's prior written consent, which may be withheld in B&T's
sole discretion. Notwithstanding the preceding sentence, on notice given to B&T
contemporaneously with such assignment, Licensee may assign this Agreement to
an affiliate of Licensee who will remain an affiliate of Licensee during the
term of this Agreement. As used herein, "affiliate of Licensee" means (a) a
corporation which controls, is controlled by or is under common control with
Licensee; the term "control" meaning ownership of not less than 51% of the
outstanding voting stock of a corporation; or (b) a partnership in which
Licensee is a general partner and of which Licensee owns not less than 51% of
the legal and equitable interest.
10.06 English will be the official text for this Agreement.
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No translation will be used to construe the meaning or intent hereof.
10.07 If any of the terms or provisions of this Agreement are ruled to
be invalid or unenforceable in an arbitration proceeding or by a court or
administrative bureau of competent jurisdiction, the remainder of the Agreement
will not be affected thereby. If an arbitrator, court or bureau does not
replace a provision in this Agreement ruled to be invalid or unenforceable with
a valid and enforceable one which accomplishes the same general purpose to the
maximum extent possible, the parties will reasonably try to negotiate a
replacement for the provision which accomplishes the same general purpose to
the maximum extent possible.
10.08 This Agreement constitutes the complete and exclusive statement
of the terms and conditions between the parties and supersedes and merges all
prior proposals, understandings and all other agreements, oral and written,
between the parties relating to the subject matter of this Agreement. This
Agreement may not be modified or altered except by written instrument duly
executed by both parties. This Agreement will be binding upon, and will inure
to the benefit of, the parties hereto and their respective successors,
permitted assigns and legal representatives.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and year
first above written.
LICENSEE: YouNetwork Corporation
-------------------------------
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Title: President
----------------------------------
XXXXX & XXXXXX, INC.,
by Electronic Business and
Information Services
By: /s/
-------------------------------------
Title:
----------------------------------
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SCHEDULE 1.04
LICENSED DATA
TITLE
SOURCE
FILE
FORMAT
----------------------------------------------
FIELD LENGTH
NAME (BYTES)
----------------------------------------------
ISBN 10
Title 150
Author 70
Binding 3
Status 2
Price 9
Subject 30
1
Subject 30
2
Subject 30
3
Subject 30
4
Subject 30
5
Pub 5
Date
Publisher 11
Code
Publisher 150
Name
Bookstore 3
Sub.
Code
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