EXHIBIT 10.38
TECHNOLOGY ALLIANCE AGREEMENT
This Technology Alliance Agreement ("Agreement") is entered into as of
October 29, 1998, by and between Vista Information Solutions, Inc., a Delaware
corporation ("Vista") and XxxxXxxxxxx.xxx, Inc., a Nevada corporation ("HSI").
RECITALS
A. Vista is a leading provider of, among other things, offering
to home buyers, real estate agents, mortgage and title
insurance companies home disclosure reports, insurance of all
types to the home seller/buyer or home owner, property risk
reports, market data and demographic information, statistical
data and summary information, and other products desired by a
person in a home real estate transaction.
B. HSI is a leading provider of on-line and desktop residential
real estate information and software for use by home buyers,
real estate agents, mortgage and title insurance companies
through HomeSeekers(TM), HSI's proprietary internet products
available AT XXX.XXXXXXXXXXX.XXX, or through
HomeSeekers/CityNet(TM), HSI's proprietary intranet product,
users can search for a home within a specified geographical
area and with desired features such as number of bedrooms and
baths, security, and other added features, apply for and
arrange for mortgage and title insurance and track the process
of the closing.
C. The parties desire to form a technology alliance providing to
each other certain market place rights, web positioning,
revenue sharing arrangements, and other consideration, all as
is more particularly set forth in this Agreement.
AGREEMENT
1. DEFINITIONS
1.1 CONFIDENTIAL INFORMATION means all nonpublic information,
whether in oral, written or other tangible form that the party
disclosing the information (the "Disclosing Party") designates
as being confidential or which, under the circumstances
surrounding disclosure, the receiving party (the "Recipient")
know or has reason to know should be treated as confidential,
including without limitation, the terms and conditions of this
Agreement. Notwithstanding the foregoing, Confidential
Information does not include information that: (i) is or
becomes generally available to the public other than (a) as a
result of a disclosure by Recipient or its employees or any
other person who directly or indirectly receives such
information from Recipient or its employees or (b) in
violation of a confidentiality obligation to Disclosing Party
known to Recipient, (ii) is or becomes available to Recipient
on a non-confidential basis from a source which is entitled to
disclose it to Recipient, or (iii) was developed by employees
or agents of the Recipient independently of and without
reference to any information communicated to Recipient by the
Disclosing Party.
1.2 EFFECTIVE DATE means the date set forth in the preamble
hereof.
1.3 GROSS RECEIPTS shall mean the purchase price received by Vista
on account of sales of Vista Products to customers. "Gross
Receipts" shall not be reduced by deductions for costs or
expenses incurred in the manufacture, distribution, sale or
advertisement of the Vista Products unless otherwise provided
in this agreement but shall not include freight, taxes, or
royalties paid to third parties or other monies received by
Vista which do not represent the purchase price of the Vista
Product.
1.4 HSI DATABASE CONTENT means one or more databases now existing
or hereafter developed by HSI or licensed by HSI from third
parties, including without limitation lists of agents, real
estate listings, buyers, site users and other customers, users
or affiliated companies marketing services via HSI to the same
intended buyers as Vista is seeking to serve. The HSI Database
Content in existence as of the Effective Date are set forth on
Exhibit 1.4.
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1.5 HSI PRODUCTS means those certain products and services
identified by HSI from time to time during the term of this
Agreement by written notice to Vista, including without
limitation, HSI's proprietary internet products available at
the HSI Web Page known as XxxxXxxxxxx.xxx, or HSI's
proprietary intranet product known as HomeSeekers/CityNet(TM),
REOSeekers, and users or prospects for HSI desktop software
products, channel bars and any other products now existing or
hereafter offered by HSI and targeted to the real estate
industry.
1.6 HSI SOFTWARE means the object code version of HSI's
proprietary software which provides access to certain HSI
Products and access to the HSI Database Content.
1.7 HSI WEB PAGE means the web sites owned and maintained by HSI
for the purposes of serving the real estate industry in any
form or manner. INTELLECTUAL PROPERTY means copyright rights
(including, without limitation, the exclusive right to use,
reproduce, modify, distribute, publicly display and publicly
perform the copyrighted work), trademark rights (including,
without limitation, trade names, trademarks, service marks,
and trade dress), patent rights (including, without
limitation, the exclusive right to make, use and sell), trade
secrets, moral rights, right of publicity, authors' rights,
contract and licensing rights, goodwill and all other
intellectual property rights as may exist now and/or hereafter
come into existence and all renewals and extensions thereof,
regardless of whether such rights arise under the law of the
United States or any other state, country or jurisdiction.
1.8 INTERNET means that network of computer networks integrated
through the use of all TCP/IP protocol.
1.9 NET RECEIPTS shall mean the royalties, fees and other sums
received by Vista on account of sales of Vista Products to
customers, less returns, rebates and other costs and expenses
incurred in the manufacture, distribution, sale or
advertisement of the Vista Products or royalties or fees paid
to third parties based on the sales of Vista's products. In
addition, "Net Receipts" shall not include freight, taxes or
other monies received by Vista which do not represent the
purchase price of the Vista Product.
1.10 ORDER INFORMATION is defined in Section 2.3.
1.11 ROYALTY ADVANCE is defined in Section 8.1.
1.12 SALES INFORMATION is defined in Section 2.5.
1.13 SUPPORT TOOLS is defined in Section 3.7.
1.14 TRADEMARKS shall mean, collectively, the Vista trademarks and
the HSI Trademarks listed on Exhibit 1.14 hereto, and HSI
Trademarks and Vista Trademarks commonly owned or applied for
in the future.
1.15 VISTA PRODUCTS means those certain products and services
identified by Vista from time to time during the term of this
Agreement by written notice to HSI, including without
limitation, home disclosure reports, insurance, property risk
reports, market data demographic information, statistical data
and summary information, prospect lists and target marketing
information derived from the combination of HSI Database
Content or Products and other related or new products in
Vista's discretion.
2. ON-LINE PRODUCT OFFERINGS
2.1 PRODUCT OFFERING. HSI authorizes Vista to offer the Vista
Products through dedicated areas on the HSI Web Page. The
advertising, manufacturing and shipping of all Vista Products
sold or offered for sale by Vista under this Agreement shall
be the sole responsibility of Vista. Vista also shall be
responsible for providing customer service and support to all
customers ordering Vista Products from Vista. Title and risk
of loss for the Vista Products remain with Vista until
shipment to the customer and does not transfer to or vest in
HSI.
2.2 PRODUCT INFORMATION. Vista will provide to HSI information to
prepare dedicated areas and linkages on the HSI Web Page to
advertise and offer the Vista Products for sale to customers.
Vista hereby grants to HSI a non-exclusive, royalty-free,
worldwide, license to reproduce, distribute, make derivative
works of, and
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publicly display the Product Information during the term of
this Agreement, for the sole purpose of allowing Vista to
promote the Vista Products on the HSI Web Page.
2.3 CUSTOMER ORDERS. Customer will place on-line orders for Vista
Products via linking from the HSI Web Page, using such order
process as Vista may, in its sole discretion, determine Vista
will be responsible for fulfilling all customer orders in a
manner it sees fit and customary to how it currently fulfills
customers in the same markets intended by this agreement.
Vista shall, at its sole discretion, determine its own
pricing, shipping and handling fees, billing and collection
policy, delivery methods and sales policies, except as
provided in Section 7 ("Royalty"). HSI shall provide the
capability within the HSI software to record and transmit
certain information and databases about prospective customers
or customer order to Vista, including, without limitation, (i)
the name, address and telephone number of the customer, and
other information collected in the HSI database known as the
MLS databases (provided it is available to HSI) which Vista
may reasonably require to solicit or fulfill customer orders.
2.4 PHASE-OUT OF VISTA PRODUCTS. If Vista decides to phase-out a
particular Vista Product it will provide HSI with ten (10)
days notice prior to such Vista Product becoming unavailable.
HSI will remove the relevant information for such Vista
Product from Vista's dedicated area on the HSI Web Page within
seven (7) calendar days after receipt of Vista's notice.
2.5 SALES AND INVENTORY REPORT. Each calendar month Vista shall
provide HSI with an electronic report showing, for that month,
the date Vista Products were ordered by a customer, the
quantity of each type of Vista Product ordered, the customers'
names and addresses and the payment due to Vista for Vista
Products sold to customers placing orders through the HSI Web
Page (the "Sales Information"). Vista will deliver this report
within ten (10) days of the end of the calendar month.
3. JOINT MARKETING
3.1 VISTA AND HSI MARKETING SUPPORT. Both parties agree that it
will use commercially reasonable efforts to promote the Vista
Products to HSI customers. To assist in these efforts, each
agrees to provide the other with reasonable quantities of
marketing materials, for which they shall reimburse the other
for its out of pocket costs for such materials in the event
they exceed $1000 a month.
3.2 BRANDING AND POSITIONING. HSI agrees to use best efforts to
promote and provide market positioning of the Vista Products
and Trademarks without limiting the promotional obligations
described elsewhere in this Agreement. HSI agrees to feature
prominently the Vista Trademarks and web links on the HSI Web
Page, in other HSI Products and in promotional and
merchandising materials used in connection with promoting the
HSI Real Estate Offerings and to permit Vista to participate
in all seminars and sales events in order to specifically
promote Vista Products covered by this Agreement. HSI shall
provide Vista with a copy of any such placement, and Vista
shall have the right, in the reasonable exercise of its
discretion, to select in which HSI products the Vista
Trademarks will be displayed, and the specific location in
which such display shall take place.
3.3 LINKING. HSI agrees to use best efforts to promote the Vista
Products, including without limitation by linking the HSI Web
Page to one or more Vista web sites in a manner to facilitate
the purchase of Vista products. Without limiting the
promotional obligations described elsewhere in this Agreement,
HSI agrees to link the HSI Web Page to such URLs as Vista may
from time to time reasonably request during the term of this
Agreement.
3.4 RELATIONSHIP MANAGERS. Each party shall appoint a Relationship
Manager. As of the Effective Date, the HSI Relationship
Manager shall be Xxxx Xxxxxxx and the Vista Relationship
Manager shall be Xxxxxx Xxx. Either party may change its
relationship manager by providing notice as provided in
Section 15.3 ("Notice and Service").
3.5 RESPONSIBILITIES OF RELATIONSHIP MANAGERS. The HSI and Vista
Relationship Managers shall be responsible for the following
activities:
(a) Determining the location and use of the Vista
Trademarks in the HSI Real Estate Offerings as
required by Section 3.2;
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(b) Determining the location and linking of the HSI Web
Page to Vista sites as required by Section 3.3;
(c) Working on the evaluation and development of the
Support Tools as described in Section 3.7 for use on
the HSI Web Page or in connection with the Vista
Products; and
(d) Working to coordinate the training of each party's
personnel; and the coordination of customer training
seminars]
(e) Working to develop marketing strategies for the Vista
Products as contemplated by this Agreement;
(f) Meet as required under Section 14.5 ("Escalation
Procedure") to settle disputes between the parties.
3.6 PERIODIC MEETINGS. The parties agree that the Relationship
Managers, and any other persons designated by the Relationship
Managers, shall meet, electronically, telephonically or
otherwise, not less frequently than monthly and, in addition,
as reasonably requested by Vista or HSI for a general review
of the ongoing marketing of the Vista Products and any other
issues of concern to the parties.
3.7 SUPPORT TOOLS. HSI and Vista agree to mutually use reasonable
efforts to cooperate with the other to identify and evaluate
(i) potential banner advertising and other management tools,
(ii) a mechanism to aggregate the reporting of usage
statistics and registration data for the users of the HSI Web
Page, and (iii) interfaces to support database transfers as
contemplated for providing Vista services to the real estate
markets served by HSI. The Support Tools may be either third
party software or proprietary software developed by Vista or
HSI with input from the other, as mutually agreed upon by
Vista or HSI.
3.8 TECHNICAL SUPPORT. The parties acknowledge and agree that HSI
shall be solely responsible for the maintenance and support of
the HSI Web Page, all third party licenses in connection
therewith, all ISP fees and charges in connection therewith
and otherwise with respect to the maintenance and operation of
the HSI Web Page. Without limiting the foregoing, HSI shall be
responsible for all programming efforts associated with the
development of any custom Support Tools pursuant to this
Agreement. Vista's responsibility for such development efforts
shall be limited to (i) providing input into the desired
features for such Support Tools; (ii) the evaluation of such
Support Tools and (iii) the integration and testing of such
Support Tools into the Vista software and Web sites, and the
technical support needed to fulfill customer orders, where
applicable.
3.9 LICENSE. Each party grants the other a nonexclusive,
worldwide, nontransferable license to reproduce, distribute,
publicly perform and publicly display the Support Tools
developed by such part.
4. EXCLUSIVITY AND NON-COMPETITION
4.1 EXCLUSIVITY. During the term of this Agreement, including any
renewal term (but except as described in Section 8.3), HSI
agrees that it shall not permit any person or entity to
display product offerings or web linkages on the HSI Web Page,
which product offerings are competitive with the Vista
Products or where the person or entity uses the HSI Web Page
to link to other services which may be competitive to the
Vista Products without the express written consent of Vista.
Without limiting the foregoing, the parties agree that
competitive products include products described in Section
1.15. Additionally, Vista will not enter into agreement with
another entity operating as an "MLS" internet web listings
provider without the express written consent of HSI. In either
case, such consent shall not be unreasonably withheld.
4.2 NON-COMPETITION. During the term of this Agreement, including
any renewal term, neither party shall, directly or indirectly,
develop, produce, manufacture, distribute, license or sell any
products which are competitive with (I) with respect to HSI,
the HomeSeekers(TM) and HomeSeekers/CityNet(TM), and (ii) with
respect to Vista, the Vista Products except where they are
provided directly through other Vista sales affiliate
organizations or web sites which are not directly competitive
with the HSI Web Page for its intended real estate agent or
consumer markets or in the case of Vista where prior
relationships may already exist provided they are disclosed to
HSI.
5. DATABASE LICNESES
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5.1 DELIVERY OF HSI DATABASE CONTENT. On or before the expiration
of fifteen (15) days from the date requested by Vista, HSI
shall deliver to Vista the database content more particularly
described on Exhibit 1.4 attached and incorporated herein by
reference. Such delivery shall be on such media and in such
format as is more particularly described on Exhibit 1.4. HSI
will deliver to Vista an updated version of the HSI Database
Content at a minimum of one time per week. HSI shall deliver
the initial HSI Database Content, and each date thereof in a
manner to be mutually agreed upon but minimally to allow
electron handling of the database to facilitate its intended
use as a source from providing Vista Products. Vista shall
have the right to load the HSI Database Content on one or more
servers or CPUs, in Vista's discretion. Vista may change the
location of the Vista servers containing the HSI Database
Content upon written notice to HSI.
5.2 LICENSE TO HSI DATABASE CONTENT. Subject to the terms and
conditions of this Agreement, HSI grants to Vista a limited
non-exclusive license to the HSI Database Content for the
following applications:
(a) Vista may publish, reproduce, and publicly display
the HSI Database Content in hard copy or in
electronic form on a secure Intranet or network
within Vista, for access by Vista employees and
agents for the purpose of developing leads or
otherwise marketing and promoting the Vista Products;
(b) Vista may conduct any sorting necessary to organize
the HSI Database Content to be useful for such
marketing and promotional purposes;
(c) Vista may download or print mailing or telemarketing
lists from the HSI Database Content, and distribute
such lists;
(d) Vista may produce Home Disclosure and other property
information reports and provide them to agents,
buyers or sellers of real estate or other parties
seeking to present services to the same within the
industries reflected by Section 1.15 Controls on HSI
Database Content. Vista shall maintain a system of
controls that will:
(e) Protect the integrity and confidentiality of the HSI
Database Content by ensuring that only authorized
personnel of Vista may alter the HSI Database
Content,
(f) Control access to the HSI Database such that access
is limited to Vista employees and agents who are
authorized by Vista;
6. TRADEMARK LICENSES
6.1 VISTA LICENSE. During the term of this Agreement, HSI grants
to Vista a nonexclusive, worldwide an non-transferable license
to use the HSI Trademarks in connection with Vista's marketing
and promotion of the Vista Products, including without
limitation representing itself to be a strategic partner of
HSI. This license does not include the right to sublicense the
use of the HSI Trademarks. The Trademark license is subject to
the restrictions set forth in Section 6.3.
6.2 HSI LICENSE. During the term of this Agreement, Vista grants
to HSI a nonexclusive, worldwide and non-transferable license
to use the Vista Trademarks in connection with HSI's marketing
and promotion of the Vista Products. This license does not
include the right to sublicense the use of the Vista Marks.
The Trademark license is subject to the restrictions set forth
in Section 6.3.
6.3 TRADEMARK LICENSE RESTRICTIONS. Vista's use of the HSI
Trademarks and HSI's use of the Vista Trademarks are subject
to the following license restrictions:
(a) A party's use (the "trademark licensee") use of the
other party's Trademarks (the "trademark licensor")
shall be in compliance with the trademark licensor's
Trademark Usage Guidelines, as amended from time to
time, a copy of which will be provided to the
trademark licensee concurrently with the execution of
this Agreement.
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(b) The trademark licensee agrees that the nature and
quality of any materials supplied by the trademark
licensee bearing the trademark licensor Trademarks
shall be of high quality as measured by standards
generally observed in the Internet industry. The
trademark licensor shall have the right to determine,
in its reasonable discretion, whether such materials
or services conform to such quality standards. Upon
trademark licensor's written request, the trademark
licensee shall promptly provide trademark licensor
with specimens of all materials bearing the trademark
licensor Trademarks. If the trademark licensor
determines that any materials bearing the trademark
licensor Trademarks or any services provided under
the trademark licensor Trademarks fail to conform to
such quality standards, the trademark licensor shall
notify the trademark licensee in writing of such
non-conformance and shall specify whether such
non-conformance is material. If the non-conformance
is material, the trademark licensee shall provide a
corrected specimen to trademark licensor for review
within thirty (30) days from the date of notice or
cease the use of all trademark licensor Trademarks on
such materials upon written notice from trademark
licensor.
(c) The trademark licensee acknowledges that the
trademark licensor is the sole and exclusive owner of
the trademark licensor Trademarks. Except as
prohibited by law, the trademark licensee agrees that
it will do nothing inconsistent with such ownership,
either during the term of this Agreement or
afterwards. The trademark licensee agrees that the
use of the trademark licensor Trademarks by the
trademark licensee shall inure to the benefit of and
be on behalf of the trademark licensor. The trademark
licensee acknowledges that the trademark licensor
Trademarks are valid under applicable law and that
the trademark licensee's utilization of the trademark
licensor Trademarks will not create any right, title
or interest in such trademark licensor Trademarks.
Except as permitted in this Agreement, the trademark
licensee agrees that it will not adopt or use as part
or all of any corporate name, trade name, domain
names, trademark or service xxxx or any other
trademark based on the trademark licensor Trademarks
or any other designation confusingly similar to the
trademark licensor Trademarks. Trademark licensee
shall use the trademark licensor Trademarks so that
they create a separate and distinct impression from
any other trademark licensor Trademark that may be
used or affixed to materials bearing the trademark
licensor Trademarks or used in connection with
services provided under the trademark licensor
Trademarks.
(d) Trademark licensee agrees to use reasonable
commercial efforts to notify trademark licensor of
any unauthorized use of (I) the trademark licensor
Trademarks, or (ii) trademarks or service marks in
the on-line or electronic industries by third parties
based on or confusingly similar to the trademark
licensor Trademarks. Trademark licensee shall assist
trademark licensor or its authorized representatives,
at trademark licensor's expense, in investigating or
prosecuting an action against such third parties. The
trademark licensor shall have the sole right and
discretion to bring, prosecute and settle
infringement, unfair competition and similar
proceedings based on the trademark licensor
Trademarks.
(e) Trademark licensee agrees not to apply to register
the trademark licensor Trademarks either as a
trademark, servicemark, tradename, corporate name or
domain name or any word or combination of words
confusingly similar to the trademark licensor
Trademarks anywhere in the world. If an application
for registration is or has been filed y or on behalf
of Trademark licensee in any country and relates to
any trademark licensor Trademark which, in the
reasonable opinion of trademark licensor, is
confusingly similar, deceptive or misleading with
respect to, or dilutes or in any way damages the
trademark licensor Trademarks, Trademark licensee
shall, at trademark licensor's request, abandon all
use of such trademark licensor Trademark, and any
registration or application for registration thereof
and shall reimburse trademark licensor all costs and
expenses of any opposition or related legal
proceeding, including attorney's fees, instigated by
trademark licensor or its authorized representative
on account of such usage.
7. ROYALTY
7.1 ROYALTY RATE.
(a) Vista shall pay to HSI a royalty of forty percent
(40%) of Gross Receipts on sales of Vista Products,
for orders which were placed by customers from the
HSI Web Page (under the process more particularly
described in Section 2.3 above).
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(b) Vista shall pay to HSI a royalty of thirty percent
(30%) of Net Receipts on sales of Vista Products to
customers, which sales were generated by information
obtained by Vista from the HSI Database Content. As
used herein, "generated" means that leads for such
sales were obtained by Vista from the names in the
HSI Database Content, or marketing materials were
sent to names obtained in the HSI Database Content.
7.2 EXCEPTIONS FROM ROYALTY OBLIGATION. No royalty shall be owed
or paid with respect to (a) copies of the Vista Product
distributed as "free", "complimentary", "no charge",
"demonstration copies", or at nominal prices less than eight
dollars per unit to promote or stimulate sales of the Vista
Product, (b) copies of the Vista Product delivered to
customers without the "certification" or other authenticating
document, which sale shall be deemed to occur only upon the
delivery of such certificate and where no revenues are
received by Vista.
7.3 BUNDLE PRICING. For purposes of determining Gross Receipts and
Net Receipts, if Vista receives an indivisible price for two
(2) or more Vista products, including the Vista Product (a
"Bundle"), then such indivisible price for all products in the
Bundle shall be allocated among the products involved
(including the Vista Product) in proportion to their
respective full product single user prices in the United
States.
7.4 OTHER PRICING. In the event that Vista plans to distribute the
Vista Product in any manner for which Gross Receipts or Net
Receipts will be indeterminate or otherwise not clearly
identifiable, Vista and HSI shall negotiate in good faith for
such distribution the appropriate earned royalty therefor.
Vista shall use reasonable commercial efforts to ensure that
whenever possible, such negotiations shall be conducted prior
to Vista engaging in such manner of distribution.
8. PAYMENT AND PAYMENT TERMS
8.1 POSITIONING FEE. Vista will pay HSI a non-refundable (except
as otherwise set forth in Section 8.3), recoupable fee against
future royalties (the "positioning fee"), as follows:
(a) an amount equal to Two Hundred and Fifty Thousand
Dollars ($250,000), payable on November 1, 1998,
(b) an amount equal to Two Hundred and Fifty Thousand
Dollars ($250,000), payable on January 1, 1999,
(c) an amount equal to Two Hundred and Fifty Thousand
Dollars ($250,000), payable on Xxxxx 0, 0000,
(x) an amount equal to Two Hundred and Fifty Thousand
Dollars ($250,000), payable on May 1, 1999,
(e) an amount equal to Five Hundred Thousand Dollars
($500,000), payable on August 1, 1999,
(f) an amount equal to Five Hundred Thousand Dollars
($500,000), payable on November 1, 1999,
8.2 CREDIT FOR POSITIONING FEE AGAINST EARNED ROYALTIES. Earned
royalties owned by Vista to HSI will first be recouped against
the total positioning fee paid to date before any royalty
payments will be made to HSI. HSI shall not receive any
additional payments until earned royalties exceed the total of
positioning fees paid.
8.3 REFUND OF POSITIONING FEE. In the event that, upon the
expiration of two (2) years from the Effective Date, sales of
Vista Products on which royalties area payable hereunder shall
not be at the level sufficient to fully exhaust the credit for
paid positioning fees under the terms of Section 8.2 Vista, at
its discretion, may reduce royalty payment rates to a level of
25% of the otherwise agreed rate until such time as the
remaining unpaid credit is fully recovered. All other
provisions of this Agreement shall remain in force with the
exception that this Agreement shall also become non-exclusive
and either party may participate in competitive activities
without violating this Agreement. In the event of a breach, as
defined herein, by SSI, then Vista may elect to suspend
further payments of Positioning Fees as described in Section
8.1 and elect to demand repayment of the then outstanding and
unused Positioning Fee credit remaining.
8.4 PAYMENT. Royalties shall be paid and a royalty statement shall
be provided to HSI by Vista on a quarterly basis throughout
the term of the Agreement, within forty-five (45) days after
the close of each respective quarter. Quarters shall be based
on a standard calendar year. The royalty statement shall be
based upon Gross Receipts
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and Net Receipts for the quarter then ended, and shall contain
information sufficient to discern how the royalty payment was
computed on the sales of the Vista Product. Such statement of
Vista's sales of the Vista Product will be delivered to HSI
whether or not royalties are due for the respective quarter.
All amounts past due shall be subject to a late charge of one
percent (1%) per month (or the highest rate allowed by law if
lower), from the date such payments were due.
8.5 NO OTHER PAYMENTS. The parties agree that no royalties,
license fees, residuals, service charges, fees for creative
materials or any other fees, except as stated in this
Agreement are due as between the parties and neither party
will invoice the other party for such charges without prior
written agreement.
9. AUDITS
9.1 RECORDS. Vista agrees to keep, for at least three (3) years,
all proper records and books of account and all proper entries
therein relating to the distribution and sale of the Vista
Products and Vista's Gross and Net Receipts therefrom.
9.2 AUDIT. HSI may cause an audit to be made, at its expense, of
Vista's applicable records relating to the Vista Product (and
the manner in which royalties were calculated) in order to
verify statements rendered hereunder. Any such audit shall be
conducted only by an independent certified public accountant
(other than on a contingency fee basis) after prior written
notice to Vista, and shall be conducted during regular
business hours at Vista's offices and in such a manner as not
to interfere with Vista's normal business activities. The
auditor may make copies and extracts of the records audited.
The results of any such audit shall be subject to the
nondisclosure obligation set forth in Section 10.
10. CONFIDENTIALITY
10.1 EXCEPTIONS FROM SCOPE OF CONFIDENTIALITY OBLIGATIONS. The
parties acknowledge that a fundamental aspect of the
relationship between the parties hereunder is the joint
marketing and promotion of Vista Products. In furtherance of
that purpose, HSI has licensed to Vista the HSI Database
Content. The use by Vista of the HSI Database Content is
governed by the license terms of Section 5 and not by this
Section 10.
10.2 OBLIGATION OF CONFIDENTIALITY. During the term of this
Agreement, the Disclosing Party may provide Confidential
Information to the Recipient. Recipient shall hold the
Confidential Information in strict confidence, provided that
the Confidential Information may be disclosed to such of
Recipient's employees, contractor and advisors and employees,
contractors and advisors of Vista who have a need to know for
the purpose of fulfilling Recipient's obligations under this
Agreement. Recipient shall advise any such individuals that
the Confidential Information is confidential and that by
receiving such information such individuals are agreeing to be
bound by the terms of this Section 10 ("Confidentiality") and
are agreeing not to use such information for any purpose other
than described herein. Without the Disclosing Party's prior
written consent, Recipient shall not, and shall direct such
individuals not to, disclose the Confidential Information in
whole or in part, except to the extent compelled by law.
Recipient shall employ all reasonable steps to protect the
Confidential Information from unauthorized or inadvertent
disclosure or use, including, without limitation, all steps
that it takes to protect its own information that it considers
a trade secret.
10.3 INJUNCTIVE RELIEF. It is further understood and agreed that
money damages would not be a sufficient remedy for any breach
of Recipient's obligations under Section 10
("Confidentiality") by Recipient, or any employees,
contractors or advisors under Recipient's supervision and that
Disclosing Party shall be entitled to specific injunctive
relief as a remedy for any such breach. Such remedy shall not
be deemed to be the exclusive remedy for the breach of
obligations under Section 10 ("Confidentiality") but shall be
in addition to all other available legal or equitable
remedies. Recipient agrees to reimburse Disclosing Party for
costs and expenses (including, without limitation, reasonable
outside attorney's fees) incurred by Disclosing Party in
connection with the enforcement of this Agreement.
11. REPRESENTATIONS
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11.1 HSI REPRESENTATION. HSI represents and warrants to Vista that
(i) HSI has the right to grant the licenses herein granted and
to make the covenants made herein, and (ii) the provision of
the HSI Database Content and the granting of the licenses
governed hereby do not breach any agreement to which HSI is a
party or by which its assets are bound.
11.2 VISTA REPRESENTATION. Vista represents and warrants to HSI
that (i) Vista has the right to grant the licenses herein
granted and to make the covenants made herein, and (ii) the
granting of the licenses governed hereby do not breach any
agreement to which HSI is a party or by which its assets are
bound.
11.3 LIMITED WARRANTY. HSI acknowledges that Vista does not
guarantee or warrant the accuracy of any information provided
in connection with the Vista Products. HSI further
acknowledges that Vista does not provide legal, accounting or
other professional advice or services. Vista and/or Vista's
vendors, suppliers or licensors have obtained the information
contained in the Vista Products from sources which it (or
they) believe(s) reliable, but neither Vista nor Vista's
vendors, suppliers or licensors has verified the accuracy of
any information set forth in the Vista Products and cannot and
does not guarantee or warrant the accuracy thereof. Vista
shall not be liable for any loss, injury, claim, liability or
damage of any kind resulting in any way from (a) any errors in
or omissions from the Vista Products, (b) the unavailability
or interruption of the delivery of the Vista Products, (c)
HSI's use or the use by HSI customers of the Vista Products,
or (d) the content of the Vista Products.
11.4 EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 11, NO OTHER
REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED,
INCLUDING WITHOUT LIMITATION TITLE, NONINFRINGEMENT, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE MADE.
12. INDEMNIFICATION. Each party ("the indemnifying party") hereby indemnifies,
defends, and holds harmless the other and its officers, directors, employees and
agents (the "indemnified parties") from and against any and all losses,
liabilities, claims, obligations, costs, expenses, (including, without
limitation, reasonable attorney's fees) which result from, arise in connection
with or are related I any way to (i) any breach or alleged breach by the
indemnifying party of any of its representations and warranties set forth
herein, or (ii) the misrepresentation, or error or omission by the indemnifying
party. The obligations of this paragraph are conditioned on the indemnified
parties (i) giving the indemnifying party prompt written notice of any such
claim, and (ii) providing reasonable cooperation in the defense and all related
settlement negotiations.
13. TERM AND TERMINATION.
13.1 TERM. The term of this Agreement will commence upon the
Effective Date and will terminate five (5) years thereafter.
13.2 CHANGE OF CONTROL. In the event of a change in control of the
ownership of either HSI or Vista, the other party shall have
the right to extend this Agreement for a period of ten (10)
years provided they deliver written notice to the other within
ninety (90) days of the change of control event actually
occurring.
13.3 RENEWAL. Vista may renew this Agreement, at Vista's
discretion, for an additional five (5) year period (the
"Renewal Period") exercisable by providing HSI not less than
six (6) month's notice of intent to renew prior to the
expiration of the initial term.
13.4 TERMINATION FOR CAUSE. Either party may terminate this
Agreement upon written notice of a material breach by the
other party as provided below. Each party agrees to use best
efforts to resolve all conflicts arising under this Agreement
in accordance with the terms of Section 14.5 ("Escalation
Procedure"). However, if a material breach of this Agreement
remains unresolved after the steps in Section 14.5
("Escalation Procedure") have been exhausted, this Agreement
may be terminated in its entirely by the non-breaching party.
For the purposes of this Agreement, material breach shall
include, without limitation, the failure by Vista or HSI to
make payments when due or HSI's failure or inability to
deliver the HSI Database Content for whatever reason. If the
breaching party has failed to cure the breach within ninety
(90) days after the receipt by the breaching party of written
notice of such breach, (except for breaches by a party of the
confidentiality obligations or payment obligations, for which
the period will be thirty (30) days after receipt
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by the breaching party of written notice of such breach), the
non-breaching party may give a second notice to the breaching party
terminating the Agreement. In addition, this Agreement may be
terminated immediately upon the occurrence of one of the events of
default described in (a) through (f) below ("Specified Event");
provided, however, that the breaching party will have ninety (90) days
to cure the occurrence of a Specified Event identified in subparagraphs
(a) through (f) below.
(a) the filing of an application for or the consenting to or
directing the appointment of, or the taking of possession by,
a receiver, a custodian, trustee or liquidator of all or
substantially all of a party's property, whether tangible or
intangible, wherever located;
(b) the making of a general assignment for the benefit of
creditors;
(c) the commencing or the intention to commence a voluntary case
under federal bankruptcy laws (as now or hereinafter may be in
effect);
(d) the adjudication that a party is bankrupt or insolvent;
(e) the filing of or the intent to file by a party of a petition
seeking to take advantage of any other law providing for the
relief of debtors, or
(f) the acquiescence to or the failure to have dismissed within
ninety (90) days, any petition filed against a party in any
involuntary case under such bankruptcy law.
14. RIGHTS AND OBLIGATIONS UPON EXPIRATION OR TERMINATION
14.1 REMOVAL OF VISTA PRODUCT OFFERING VISTA TRADEMARKS. Upon the
expiration or termination of this Agreement, HSI shall
immediately remove all Vista Trademarks from the HSI Web Page
and shall otherwise immediately cease all representation of
itself as an authorized distributor of Vista Products and
strategic partner of HSI. Notwithstanding the foregoing, HSI
shall permit Vista to fill orders received by Vista prior to
such expiration or termination (subject to the obligation to
pay HSI in accordance with the terms of Section 7).
14.2 REDELIVERY OF HSI DATABASE CONTENT. Upon the expiration or
termination of this Agreement, Vista shall immediately
redeliver to HSI all copies of the HSI Database Content and
shall otherwise immediately cease all representation of itself
as a strategic partner of HSI. Notwithstanding the foregoing,
HSI shall permit Vista to fill orders received by Vista prior
to such expiration or termination (subject to the obligation
to pay HSI in accordance with the terms of Section 7).
14.3 NO EFFECT ON CUSTOMERS. Expiration or termination of this
Agreement for any reason shall not affect customer agreements
for the Vista Product, which shall continue in full force and
effect in accordance with their terms.
14.4 RETURN OF PROPERTY. Within thirty (30) days after any
termination or expiration of this Agreement, each party shall
immediately deliver to the other party all copies of
Confidential Information or other materials then in its
possession owned solely by such other party.
14.5 ESCALATION PROCEDURE. The Relationship Managers for both
parties have the primary responsibility to resolve conflicts
under this Agreement in a timely manner. Any conflicts
unresolved by the Relationship Managers within fifteen (15)
business days of the Relationship Managers' first meeting to
discuss such conflict will be escalated in writing to CHIEF
EXECUTIVE OFFICER of Vista and of HSI, their successors or
such other officers of the parties as are designated in
writing in accordance with the notice provisions of Section
15.3 ("Notice and Service"). Such individuals will use best
efforts to resolve the conflict as soon as possible and to
record the resolution of the conflict in writing. These
efforts shall not prevent termination of the Agreement in the
periods provided in Section 13.1 ("Termination for Cause").
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15. GENERAL
15.1 NO PARTNERSHIP OR JOINT VENTURE. HSI and Vista are independent
contractors and neither party is the legal representative,
agent, joint venturer, partner, or employee of the other party
for any purpose whatsoever. Neither party has any right or
authority to assume or create any obligations of any kind or
to make any representation or warranty on behalf of the other
party, whether express or implied, or to bind the other party
in any respect whatsoever.
15.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR
ITS TERMINATION, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR
TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND
IRRESPECTIVE OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
15.3 NOTICE AND SERVICE. All notices or requests, including
communications and statements which are required or permitted
under the terms of this Agreement, shall be in writing and
shall be sent by facsimile, or recognized commercial overnight
courier. Notices shall be deemed received upon receipt of
written confirmation of transmissions when sent by facsimile
or signing for receipt of delivery if sent by overnight
courier. Notices shall be sent to the parties at the following
addresses:
For HSI: XxxxXxxxxxx.xxx, Inc.
0000 Xxxx Xxxxx, Xxxxx X
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx
For Vista: Vista Information Solutions, Inc.
0000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
15.4 CAPTIONS. All indices, titles, subject headings, section
titles and similar items contained in this Agreement are
provided for the purpose of reference and convenience only and
are not intended to be inclusive, definitive or to affect the
meaning, content or scope of this Agreement.
15.5 ASSIGNMENTS. Vista may not assign, voluntarily, by operation
of law, or otherwise, any rights or delegate any duties under
this Agreement (other than the right to receive payments)
without HSI's prior written consent. This Agreement will bind
and inure to the benefit of the parties and their respective
successors and permitted assigns.
15.6 SURVIVAL. Upon any termination of this Agreement, the
following Sections shall remain in full force and effect: 10
("Confidentiality"), 12 ("Indemnification"), 13 ("Term and
Termination"), 14 ("Return of Property"), and 15 ("General").
15.7 GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by and construed under the laws of the State of
California without regard to conflict of laws principles.
15.8 WAIVERS; MODIFICATION. No failure or delay by either party in
exercising any right, power, or remedy under this Agreement
shall operate as a waiver of any such right, power, or remedy.
No waiver or modification of any provision of this Agreement
shall be effective unless in writing and signed by both
parties. Any waiver by either party of any provision of this
Agreement shall not be construed as a waiver of any other
provision of this Agreement, nor shall such waiver operate as
or be construed as a waiver of such provision respecting any
future event or circumstance.
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15.9 SEVERABILITY. In the event any provision of this Agreement (or
portion thereof) is determined by a court of competent
jurisdiction to be invalid, illegal, or otherwise
unenforceable, such provision shall be deemed to have been
deleted from this Agreement, while the remainder of this
Agreement shall remain in full force and effect according to
its terms.
15.10 CONSTRUCTION. This Agreement reflects the wording accepted by
the parties and no rule of construction shall apply against
either party. Each party retains the right to correct any
typographical or other clerical errors in this Agreement.
15.11 ENTIRE AGREEMENT. This Agreement (together with the Exhibits
hereto) constitute the entire agreement and understanding
between the parties hereto with respect to the subject matter
hereof and supersede any and all other agreements, written or
oral, that the parties heretofore may have had with respect to
the subject matter herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed.
XXXXXXXXXXX.XXX, Inc. Vista Information Solutions, Inc.
HSI Corp.
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By: By:
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Title: Title:
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